When being arrested, defendant pulled away from officers in his room and dove for his bed and reached under a pillow. Officers thought he was going for a gun, and a melee ensued. He was charged with assault and resisting arrest. Even if the arrest was unlawful, the new crime exception is adopted. His offense against the officers occurred after the alleged illegal entry [which it probably wasn’t anyway]. Picogna v. State, 2022 Ala. Crim. App. LEXIS 8 (Feb. 11, 2022):
Stated succinctly, the new-crime exception to the exclusionary rule provides that, when a defendant commits a new and distinct crime in response to a Fourth Amendment violation, the exclusionary rule does not bar evidence of the new crime. Courts have advanced different rationales for the exception. Some have held that a defendant does not have a reasonable expectation of privacy in his or her actions in the presence of police after a Fourth Amendment violation. See United States v. Waupekenay, 973 F.2d 1533, 1537 (10th Cir. 1992). Some view the new-crime exception as an extension of the attenuation-from-taint exception, finding that the commission of the new crime is a “free and independent action” that dissipates the taint. People v. Townes, 41 N.Y.2d 97, 102, 359 N.E.2d 402, 406, 390 N.Y.S.2d 893, 897 (1976). And others focus on the purpose of the exclusionary rule, finding that “the limited objective of the exclusionary rule is to deter unlawful police conduct — not to provide citizens with a shield so as to afford an unfettered right to threaten or harm police officers in response to the illegality.” Brocuglio, 264 Conn. at 788, 826 A.2d at 152. Finally, some courts apply a combination of rationales, as this Court did in Hornsby, supra, in finding that the defendant’s actions over the course of a month in plotting with a jail inmate to dispose of the marijuana evidence against him dissipated the taint even if the initial search and seizure of the marijuana was illegal, but also noting that “[s]ound public policy dictates that the law should discourage and deter the incentive on the part of accused persons to commit other new and separate crimes.” 517 So. 2d at 639. See also Doke, 171 P.3d at 240-41 (applying “[t]he attenuation rational for admitting evidence of a new crime committed in response to police misconduct” but also pointing out that ‘[a] rule that would allow a person whose right to be free from unreasonable searches and seizures was allegedly violated to respond with acts of violence would be contrary to the public interest”).
The third rationale is particularly persuasive as a basis for applying the new-crime exception in this case. As the Connecticut Supreme Court explained [ State v. Brocuglio, 264 Conn. 778, 826 A.2d 145 (2003)] ….
"If it was easy, everybody would be doing it. It isn't, and they don't."
“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."
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."
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
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
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."
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."
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."
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.”
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.”
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
“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
v. United States, 333 U.S. 10, 13-14 (1948)