United States Second Circuit

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US v. Diaz, 15-3776

Conviction of being a previously convicted felon in possession of a firearm in violation of 18 U.S.C. section 922(g) is affirmed, over defendant's claim that the officer's search which produced the firearm violated the Fourth Amendment, where: 1) the officer had probable cause to arrest defendant inasmuch as she had a reasonable belief that an apartment‐building stairwell is a public place for purposes of the open‐container law and that defendant was violating that law; and 2) because she had probable cause to arrest defendant--and ultimately did arrest him--the warrantless search was a lawful search incident to an arrest, even though the officer testified that before finding the gun she intended only to issue a summons, not to make an arrest.

Appellate Information

  • Decided
  • Published 2017/04/18


  • SACK


  • United States Second Circuit


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