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Search and Seizure Update

By Steve Sady

The November 2007 version of Developments in Federal Search and Seizure Law is now available on the Oregon Federal Public Defender website here. We have been collecting Fourth Amendment cases for over ten years, integrating defense wins into an outline that provides counterpoints to the trends away from protection of individual rights. The outline is getting pretty long, and we have added a table of cases on the recommendation of users who wanted to be able to go directly to the name of a case.

In reviewing the new cases and updating the outline, I am once again reminded of the two key components of a successful search and seizure motion: development of the facts beyond the police reports through investigation and experts; and creative use of the law beyond the head notes to customize a memorandum in support of suppression. Some of the new cases that we have added to the outline do a nice job of illustrating these points:

? Brendlin: This Supreme Court case holding that a passenger?s Fourth Amendment rights are implicated by a traffic stop ? which was already the law in the Ninth Circuit and most other jurisdictions ? provides a wonderful restatement of the law of stops, with some excellent language on how a reasonable person ? whether passenger, driver, or pedestrian ? would feel restricted in their movements by police officer conduct;

? Washington: An important Ninth Circuit case on the totality of circumstances considered for escalation of a voluntary conversation into a stop as well as consent, which included evidence regarding reasonable concerns of African Americans in asserting rights against white police officers;

? Grigg: The Ninth Circuit held that reasonable suspicion of past violation of a noise ordinance, a misdemeanor not involving public safety, did not justify a car stop;

? Flatter: The Ninth Circuit held that a pat-down of a postal worker suspected of theft was unjustified because there was no reasonable suspicion that the suspect was armed or dangerous.

If you spot Fourth Amendment cases you think should be added, please let me know for the 2008 update.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon

Full post as published by Ninth Circuit Blog on November 21, 2007 (boomark / email).