For suspects who weren’t sure, you have no privacy interest in the way you smell.
The Virginia Court of Appeals didn’t have to hold its nose to embrace the “plain smell” doctrine, which gives cops the right to go into your pockets if you smell like marijuana.
“While some have questioned our willingness” to embrace the doctrine, sniffed Judge D. Arthur Kelsey in Bunch v. Commonwealth, it’s clear to the court that an individual “has no privacy interest in his odors. He cannot broadcast an unusual odor” and “reasonably expect” others to take no notice.
“We concur with the accepted view that there is no reasonable expectation of privacy from lawfully positioned agents with inquisitive nostrils,” Kelsey quoted in the court's published opinion April 8.
So be careful who’s standing downwind.
Showing posts with label Search and Seizure. Show all posts
Showing posts with label Search and Seizure. Show all posts
Thursday, April 10, 2008
Monday, January 14, 2008
Officer Scalia?
Our DC-based colleague over at Lawyers USA, Kim Atkins, was down at the U.S. Supreme Court today, listening to argument in a case from Portsmouth, Virginia v. Moore.
It's a search case that has already been through the Supreme Court of Virginia, where the defendant prevailed.
But 18 attorneys general from other states have backed the Virginia authorities in the case, even if the ABA and the NACDL are supporting Mr. Moore.
Justice Antonin Scalia, in a line of questions for Stephen McCullough, the deputy solicitor general appearing on behalf of the commonwealth, played "what if." He asked what if he had a neighbor near his home in McLean who was growing dope and what if he conducted a search on behalf of the commonwealth.
Check out the DC Dicta post to see just how far Scalia took this one.
It's a search case that has already been through the Supreme Court of Virginia, where the defendant prevailed.
But 18 attorneys general from other states have backed the Virginia authorities in the case, even if the ABA and the NACDL are supporting Mr. Moore.
Justice Antonin Scalia, in a line of questions for Stephen McCullough, the deputy solicitor general appearing on behalf of the commonwealth, played "what if." He asked what if he had a neighbor near his home in McLean who was growing dope and what if he conducted a search on behalf of the commonwealth.
Check out the DC Dicta post to see just how far Scalia took this one.
Tuesday, July 3, 2007
No privacy expectation in friend’s apartment
Home is not where your Nintendo is, according to the 4th U.S. Circuit Court of Appeals.
Two men who sold cocaine together in Huntington, W.Va., were more than business partners. Joshua Gray and Terrence Askew hung out together at Gray’s apartment, watching TV and playing video games. Askew even kept a change of clothes and a toothbrush at Gray’s apartment.
But the business relationship was paramount, according to the 4th Circuit in its July 2 decision in U.S. v. Gray. Because the buddies also spent their time selling cocaine base from the apartment, Askew had no reasonable expectation of privacy in the apartment.
That meant that when police pushed their way into Gray’s apartment on July 3, 2003, in response to a neighbor’s complaint about the drug dealing, they could not use the drugs and drug paraphernalia spread out on tables in the apartment against Gray, but they could use the drug evidence against Askew, who had no standing to contest the illegal search.
Writing for a panel majority, Judge J. Harvie Wilkinson III declined to “create a toothbrush or Nintendo rule that would inflexibly mark a relationship as social in the face of testimony of extensive drug operations, replete with scales, large amounts of cash, neighborhood complaints and multiple customers.”
Wilkinson also said the district court was entitled to reinforce its view of the defendants’ business relationship with information from a presentence report.
Judge M. Blane Michael dissented with a lengthy critique of the majority for becoming “the first court to hold that facts from a defendant’s sentencing investigation and proceeding may be used in deciding a suppression appeal.”
Two men who sold cocaine together in Huntington, W.Va., were more than business partners. Joshua Gray and Terrence Askew hung out together at Gray’s apartment, watching TV and playing video games. Askew even kept a change of clothes and a toothbrush at Gray’s apartment.
But the business relationship was paramount, according to the 4th Circuit in its July 2 decision in U.S. v. Gray. Because the buddies also spent their time selling cocaine base from the apartment, Askew had no reasonable expectation of privacy in the apartment.
That meant that when police pushed their way into Gray’s apartment on July 3, 2003, in response to a neighbor’s complaint about the drug dealing, they could not use the drugs and drug paraphernalia spread out on tables in the apartment against Gray, but they could use the drug evidence against Askew, who had no standing to contest the illegal search.
Writing for a panel majority, Judge J. Harvie Wilkinson III declined to “create a toothbrush or Nintendo rule that would inflexibly mark a relationship as social in the face of testimony of extensive drug operations, replete with scales, large amounts of cash, neighborhood complaints and multiple customers.”
Wilkinson also said the district court was entitled to reinforce its view of the defendants’ business relationship with information from a presentence report.
Judge M. Blane Michael dissented with a lengthy critique of the majority for becoming “the first court to hold that facts from a defendant’s sentencing investigation and proceeding may be used in deciding a suppression appeal.”
Monday, March 26, 2007
Folded-up bill wasn’t origami; search upheld
To an experienced narcotics detective, a dollar bill folded in a certain way can only mean drugs. A defense lawyer tries to get the fact-finder to see other possibilities.
In Snell v. Commonwealth, police found a folded-up dollar bill in the wallet of a runaway kid. Unfolding the bill, which contained cocaine, was an unlawful search, his lawyer claimed. But the Court of Appeals, in an opinion written by Judge D. Arthur Kelsey, upheld the search.
Narcotics detectives are trained to recognize the “peculiar nature” of a tightly folded buck as a “characteristic method of packaging narcotics.”
Kelsey knows the value of a rhetorical device, and that a little hyperbole can go a long way. “In theory,” Kelsey wrote, someone might manipulate a dollar bill in this manner simply for the origami fun of it.”
But as a practical matter, the little bitty bill, together with the boy’s flight and his tossing something from his pocket, allowed the cops to unfold the bill and seize its cocaine contents.
In Snell v. Commonwealth, police found a folded-up dollar bill in the wallet of a runaway kid. Unfolding the bill, which contained cocaine, was an unlawful search, his lawyer claimed. But the Court of Appeals, in an opinion written by Judge D. Arthur Kelsey, upheld the search.
Narcotics detectives are trained to recognize the “peculiar nature” of a tightly folded buck as a “characteristic method of packaging narcotics.”
Kelsey knows the value of a rhetorical device, and that a little hyperbole can go a long way. “In theory,” Kelsey wrote, someone might manipulate a dollar bill in this manner simply for the origami fun of it.”
But as a practical matter, the little bitty bill, together with the boy’s flight and his tossing something from his pocket, allowed the cops to unfold the bill and seize its cocaine contents.
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