Tenth Addresses Inventory Search, Exigent Circumstances Issues
U.S. v. Creighton, 2011 WL 1797912 (5/12/11) (Solo.) (Published) - The officers conducted an inventory search of the defendant's luggage according to standard criteria where the standard operating procedures required inventorying "all personal property" coming into the department's possession. The defendant did not have a reasonable expectation of privacy in a hotel room where the defendant knew management had claimed the rent was overdue and had told the registered occupant to pay or vacate the premises. There might be an exception to this rule if there was a pattern or practice of allowing the person to stay beyond the check-out time, but there was no evidence of such here.
The 10th also found the officers reasonably believed exigent circumstances existed to remove the defendant from a home. The defendant's cohort falsely told police he threatened to hurt her mother, who was in the home, if she did not return to the home in 3 hours. The police had the cohort call the mother to come out of the house. When the mother came out she knew nothing about any threat to her, but the cohort never claimed the mother knew about the threat. The officers had 3 concerns that justified them threatening to send in a police dog if the defendant did not leave the house: (1) the cohort had said the defendant had held her against her will; (2) the defendant remained armed with a gun; and (3) he was engaged in forgery and fraud. Everything was okay because the police could take seriously the lies the cohort told until her story unraveled after the defendant's arrest. The officers had to secure the entire crime scene and gain safe access to all individuals before investigating. In addition, the majority suggested the defendant may have waived the argument that his removal from the home was unlawful when he failed to raise that issue during the government's prior interlocutory appeal as an alternative ground for affirming the d.ct.'s initial granting of the suppression motion, based on the illegality of the subsequent arrest. Judge Lucero concurred with the majority's decision on the merits, but strongly objected to the notion that the defendant may have waived an argument by not raising it during the government's appeal. He pointed out there was no authority a defendant must raise alternative arguments when the government appeals. He had no right to cross-appeal. Given the state of the record at the time, it may have been frivolous for the defendant to make the argument then.
The 10th also found the officers reasonably believed exigent circumstances existed to remove the defendant from a home. The defendant's cohort falsely told police he threatened to hurt her mother, who was in the home, if she did not return to the home in 3 hours. The police had the cohort call the mother to come out of the house. When the mother came out she knew nothing about any threat to her, but the cohort never claimed the mother knew about the threat. The officers had 3 concerns that justified them threatening to send in a police dog if the defendant did not leave the house: (1) the cohort had said the defendant had held her against her will; (2) the defendant remained armed with a gun; and (3) he was engaged in forgery and fraud. Everything was okay because the police could take seriously the lies the cohort told until her story unraveled after the defendant's arrest. The officers had to secure the entire crime scene and gain safe access to all individuals before investigating. In addition, the majority suggested the defendant may have waived the argument that his removal from the home was unlawful when he failed to raise that issue during the government's prior interlocutory appeal as an alternative ground for affirming the d.ct.'s initial granting of the suppression motion, based on the illegality of the subsequent arrest. Judge Lucero concurred with the majority's decision on the merits, but strongly objected to the notion that the defendant may have waived an argument by not raising it during the government's appeal. He pointed out there was no authority a defendant must raise alternative arguments when the government appeals. He had no right to cross-appeal. Given the state of the record at the time, it may have been frivolous for the defendant to make the argument then.
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