The officer testified that his body armor accidentally muted the microphone on the body recorder on his belt when he bent over, and this was not a due process violation. There was exigency here for a community caretaking function entry based on a loud argument inside and the officer being invited in. United States v. Givens, 2016 U.S. Dist. LEXIS 167433 (W.D. Mo. Nov. 18, 2016), adopted, 2016 U.S. Dist. LEXIS 167140 (W.D. Mo. Dec. 5, 2016):
Defendant argues that it was a violation of Department of Justice and Kansas City Police Department protocol not to use the body recorder during the entire incident (referring to the 10 to 12 minutes that are missing on the recording) and this violates his Fifth Amendment rights.
Violation of Department of Justice or Kansas City Police Department protocol does not create any rights on behalf of a criminal defendant. See United States v. Kubini, 19 F. Supp. 3d 579, 619 (W.D. Pa. 2014) (provisions in U.S. Attorney’s Manual do not create enforceable rights); United States v. Gomez, 237 F.3d 238, n.1 (3rd Cir. 2000) (provisions of U.S. Attorney’s Manual do not create any judicially enforceable rights); United States v. Jarrett, 447 F.3d 520, 529 (7th Cir. 2006) (case law, not internal handbooks, provides the guidance for whether rights have been violated); United States v. Gross, 41 F.Supp.2d 1096, 1098 (C.D. Cal. 1999) aff’d 40 Fed. Appx. 397 (9th Cir. 2002) (US Attorney’s Manual did not create enforceable rights).
Officer Lightner testified that his body microphone was accidentally muted when his vest pushed the mute button as he was getting out of his patrol car. This did not violate any of defendant’s rights.
. . .
Here, the uncontroverted evidence is that the officers were called to the residence on a disturbance; when they arrived they heard loud arguing coming from within the residence; when Sonya Wiggins saw them approaching the residence, she began waving for them to come in; Ms. Wiggins yelled that someone had a gun; when the officers entered the residence, they heard a metal clinking sound which they believed to be the sound of a gun being dropped into a metal sink; Ms. Wiggins was yelling that he had a gun and was trying to hide it in the sink; there were other people present besides defendant and Ms. Wiggins; and the officers did not yet know the circumstances of the disturbance which prompted the call for help to the police other than hearing loud arguing and a female screaming that a male had a gun. I find that a reasonable officer would have believed that an emergency was at hand. Therefore, the entry into the residence was lawful, and the search of the sink for the gun was lawful pursuant to the community caretaking function of the police.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)