The police responded to a 911 call about a “break-in” and a shooting. They found the defendant outside the house, confused and under the likely influence of drugs. They did a “protective sweep” on exigency and found drug stuff. They proceeded to search. The USMJ recommended suppression for lack of a warrant, and the USDJ agreed. The proper recourse was to get a search warrant and not rely on an alleged consent from a man they admit was hallucinating. Motion to suppress granted for lack of a warrant. United States v. Einerson, 2011 U.S. Dist. LEXIS 15633 (D. Neb. February 16, 2011):
The officers testified that the defendant appeared to be under the influence of a drug and was acting erratic, excited, nervous, paranoid and fidgety. Id. at 53-55. The defendant was pacing in the middle of the street and scratching his face. Id. He later made statements that led the officers to believe he was hallucinating. Id. at 55. At the time the second search was conducted, the defendant had been handcuffed and placed in the police cruiser. Id. at 38. He was later arrested on an outstanding warrant for driving under suspension and failure to appear and was transported to the police station and booked. Id. at 40.
. . .
The court agrees with the magistrate judge’s conclusion for the reasons stated in his opinion. The court finds the government’s reliance on Colorado v. Connelly, 479 U.S. 157, 164 (1986), for the proposition that “a Defendant’s mental condition, by itself and apart from its relation to official coercion, should never dispose of the inquiry into constitutional voluntariness” is misplaced. See Filing No. 47, Government Brief at 2. That case involves the voluntariness of a confession in the context of Fourteenth Amendment/Fifth Amendment [*5] Due Process rights and the Fifth Amendment’s protection against self-incrimination. Connelly, 479 U.S. at 167, 170. Coercive police activity is a necessary predicate to the finding that a confession is not “voluntary” within the meaning of the Due Process Clause of the Fourteenth Amendment. Id. at 167 (emphasis added). The voluntariness of a waiver of the privilege against self-incrimination has always depended on the absence of police overreaching, not on “free choice” in any broader sense of the word. Id. at 170 (stating that “Miranda protects defendants against government coercion leading them to surrender rights protected by the Fifth Amendment; it goes no further than that”). The case has no application to the voluntariness of a consent to search under the Fourth Amendment. See, e.g., United States v. Montgomery, 621 F.3d 568, 573 (6th Cir. 2010) (noting that Fifth Amendment waiver and Fourth Amendment consent-to-search inquiries are not the same and that one difference is that the involuntariness prong of a Miranda waiver requires coercive police activity as a necessary predicate, something generally not required in Fourth Amendment consent cases).
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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)