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State v. Arthur J. Cain, 2010AP999-CR, District 4, 3/17/11

court of appeals decision (1-judge, not for publication); for Cain: John M. Carroll; case activity

Search & Seizure – “Contraband” (Illegal Switchblade), Delayed Determination

Where the detention of Cain and seizure of his knife were concededly proper, the fact that the officer forgot to return the knife when he released Cain, and didn’t determine until later that it was in fact an illegal switchblade, didn’t require suppression of the knife.

¶14      Hocking asserts that only facts “known to the officer at the moment of the intrusion, and not facts determined subsequently” may be “considered to determine if a search or seizure is lawful.”  This is not the law.  Probable cause is an objective standard.  As a general rule, the subjective intentions of arresting officers are immaterial in judging whether their actions were reasonable for Fourth Amendment purposes.  See Devenpeck v. Alford, 543 U.S. 146, 153 (2004); Whren, 517 U.S. at 814.  Therefore, it does not matter that the officer testified at the suppression hearing that he “forgot” to return the knife, implying that he should have returned it to Hocking at the time officers decided to release Hocking from temporary detention.  Under the objective view, a reasonably prudent officer would not have returned the knife without first inspecting it and discovering its illegality. 

¶15      Hocking cites United States v. Place, 462 U.S. 696 (1983), for the proposition that a temporary property seizure made under authority of Terry, as supported by reasonable suspicion, may violate the Fourth Amendment when police take too much time in attempting to develop the probable cause they seek to establish.  However, this case does not involve temporarily seized containers suspected to contain contraband, as in PlaceId. at 700-01.  This case involves temporarily seized contraband, which a reasonably prudent officer would have recognized as such while still in lawful possession of the contraband.

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