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: Kansas DefendersNo arrest, so no search incident [NOT FINAL]
By Randall Hodgkinson
Looking objectively at the facts, a reasonable person under the circumstances would not have believed an arrest had occurred. Sparks had not patted down Murphy, nor physically restrained him in any way. Instead, Sparks asked for permission to search, which would not have been necessary if Sparks believed he was performing a search incident to a lawful arrest. Given these facts, a reasonable person would not have believed Murphy was under arrest when Sparks started searching his car. In fact, if Sparks had found the intended object of his search, Murphy's identification, Sparks could have then written Murphy a citation and ended the investigatory detention. When one views all the circumstances, Murphy was not under arrest. These facts are more indicative of a routine traffic stop than an arrest.Because Murphy was subject to an investigatory detention rather than an arrest, Sparks' search is circumscribed by the rules set forth in Terry. The case restricts an officer's search to a search for weapons in the defendant's immediate area only. An officer may not search for evidence during an investigative detention. Thus, Sparks'
search for evidence in a bag in the back seat of Murphy's car before placing him under arrest exceeds the scope of a Terry search. Sparks performed an illegal search, and the evidence discovered in the illegal search must be suppressed.
The COA avoided possible constitutional implications of the new search and seizure statute by noting that this search occurred before the effective date of the new statute.
Full post as published by Kansas Defenders on April 02, 2008 (boomark / email).
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Strip-Search Lawsuit Settled for $1.1 Million
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alleging false arrest for violating an unconstitutional anti-loitering law.
Canadian Government
seeks new law enabling them to search your laptop

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Cert. granted in Arizona v. Gant, a search incident case
WA: Search incident of defendant's purse was justified by her arrest for refusal to get out of truck
Search incident: may occur prior to arrest; 30 minutes later not too late
WY: Arrest for violation of an order of protection permitted a search incident







