Archives for: January 2007, 06

01/06/07

Permalink 08:49:39 pm, by fourth, 1091 words, 844 views   English (US)
Categories: General

FL 5DCA: Good faith exception applied because probable cause was a close call, but the court cheapens Leon in the process

Florida's 5th DCA holds that the good faith exception applied to sustain a search without the court even attempting to analyze whether probable cause existed. The case apparently was close enough on probable cause that it was easier to go directly to the good faith exception, and gratuitously relied on the experience of the judge, the lack of evidence of corruption [well, Duh!], and the reliance of the police in finding the good faith exception applicable. State v. Watt, 946 So. 2d 108 (Fla. App. 5th Dist. January 5, 2007, released for publication January 24, 2007):

In this case, an experienced trial judge reviewed Agent Brannon's affidavit and determined that probable cause existed to justify the issuance of a search warrant. The police executed the search pursuant to the warrant issued by the judge. In order to reject the application of the good faith exception in this case, we would need to conclude that an objectively reasonable police officer would have a better understanding of the law of search and seizure and probable cause than did the trial judge who issued the warrant. We are not willing to do so.

No indication exists in the record that either the police officer or the trial judge was corrupt, dishonest, or acted in bad faith. Accordingly, this case is controlled by the principle we articulated in State v. Harris, 629 So. 2d 983 (Fla. 5th DCA 1993):

"The warrant was regular on its face and the affidavit upon which it was based was not so lacking in indicia of probable cause that the officer executing the warrant could not with reasonable objectivity rely in good faith on the magistrate's probable cause determination and on the technical sufficiency of the warrant."

Id. at 984.

Comment: I, for one, find such a cavalier attitude toward the good faith exception to be troublesome. This is an understatement, so let me rephrase: This opinion reads like an ad hominem judicial cop-out. Of course the judge was experienced. Does that imply that less experienced judges' paperwork is to be subjected to more or closer scrutiny? Hardly. I have seen experienced judges literally sign search warrant applications in chambers without even reading them. They would qualify as "experienced," if an old, worn rubberstamp for the police could be called "experienced." To say that there is no evidence of corruption of the judge is an extreme hypothetical situation which would rarely be made and even more rarely provable, barely hinted at in Leon on the lack of a neutral and detached magistrate issuing a search warrant, if one reads between Leon's lines. If being a shill for the police is a form of intellectual "corruption," most issuing judges will fall in that category because the good faith exception has given them an out--they don't have to read the paperwork as closely or even think about it because they well know that it doesn't even matter as much under Leon because the proof is in the affirmances. Worse yet, the police know it, too. It shows in suppression hearings where officers parrot the lines necessary to get in under Leon. Finally, the comment that the defendant here would expect the police to know the law better than the magistrate overlooks the fact that the police control the affidavit process because they prepare the affidavits, and, after 22 years of Leon, police officers watching judges sign off on search warrants without (or perfunctorily) reading them means that they have to know what they put in there no longer matters. This is a simple truth, and it was inevitable from Leon, but the Supreme Court was warned of its folly by the dissenters and amici and did not care. After reading this opinion, one is almost struck with a sense of the court's near desperation to sustain the search. Why could the court not just say "We have looked at the affidavit for the search warrant, and the question is too close to call. Anything near a tie goes to the state." Moreover, there are two questions when Leon is invoked: (1) Is there probable cause? (2) If not, does the good faith exception apply or does one of the four exceptions to the good faith exception apply? That is the gist of the good faith exception. Skipping the first question and going straight to the second only encourages judicial laziness, on all levels of the judiciary, which is evident on this court. When probable cause does not matter to the appellate courts, it does not matter to the trial courts, and it finally gets through to the police that it does not matter to them, either. This case is an embarrassment to the Florida judiciary. It could have been dealt with "more professional," as they say to us lawyers, or more judiciously, as judges would say. Leon is demeaned in any case, such as this one, where it is viewed as a judicial panacea thrown up to the defense as an impenetrable wall. It is not. Treating it as such devalues Leon, the court writing the opinion, and the law as a whole.

Defendant's 15 year old daughter reported capital sexual battery on her father, and the police came to investigate. At their strong suggestion, she entered defendant's bedroom to retrieve used condoms as evidence. The trial court found, and the appellate court agreed, that she was acting as an agent of the state when she made the entry on the officer's strong suggestion. The state's alternative argument of consent failed because there was no showing of equal access to the room. Suppression order affirmed. State v. Moninger, 957 So. 2d 2 (Fla. App. 2d Dist. 2007). (There is a case I read more than a year ago reaching opposite result on the child's apparent authority to go into the father's bedroom because that was where the sexual assaults occurred. I cannot remember the name, and the cases from more than a year ago are archived.)

California again decides that an officer has to know that the defendant is on probation before the state can rely on a post hoc rationalization of probation status as justifying an otherwise unlawful search. People v. Miller, 146 Cal. App. 4th 545, 52 Cal. Rptr. 3d 894 (4th Dist. January 4, 2007).

Stop never matured into a de facto arrest (although officers had developed probable cause in the meantime). Defendant was conversing with officer and minimizing his role in the suspected offense, and he was always free to go and not even obligated by the police to go with them to talk to them. He consented. United States v. Moss, 2007 U.S. Dist. LEXIS 293 (S.D. Fla. January 2, 2007).*

Permalink 11:32:16 am, by fourth, 771 words, 1103 views   English (US)
Categories: General

Under collective knowledge rule, officers with probable cause do not have to communicate the probable cause to the officer they direct to make a stop

Officers collectively had probable cause to believe that defendant was transporting drugs when he drove off from their surveillance, and they called for a uniform officer to stop the defendant. The officers were not required to tell the officer making the stop what the probable cause was; all that is required is that there be probable cause. United States v. Covarrubias, 2007 U.S. Dist. LEXIS 199 (D. Ore. January 4, 2007):

All of these cases [cited by the defense], however, are distinguishable from this matter because they involved an assessment of probable cause or reasonable suspicion developing in the field under quickly evolving and uncertain circumstances. Here, on the other hand, it is undisputed that the JTF and DEA officers already had probable cause to stop and to search Defendant's vehicle and to arrest him when they called for the "walled off" stop of Defendant's vehicle. In addition, probable cause in this case grew out of a long-term, judicially supervised, multi-agency investigation instead of a quick assessment of rapidly evolving circumstances. Moreover, although the trial courts in each of these cases relied on by Defendant interpreted the collective-knowledge doctrine to require, at the least, communication of the existence of probable cause to the arresting officer, none of these interpretations of the collective-knowledge rule has been reviewed by an appellate court. Indeed, in the Ninth Circuit, it appears

"there is room in our precedent to conclude that the collective knowledge of law enforcement can support reasonable suspicion, even if the information known to others is not communicated to the detaining officer prior to a Terry stop, cf. United States v. Butler, 74 F.3d 916, 921 (9th Cir. 1996)(holding that "collective knowledge of police officers involved in an investigation, even if some of the information known to other officers is not communicated to the arresting officer" can establish probable cause)...."

United States v. Terry-Crespo, 356 F.3d 1170, 1177 (9th Cir. 2004).

Accordingly, in the absence of clear guidance from the Ninth Circuit, this Court does not find the reasoning of the decisions on which Defendant relies to be persuasive under these particular circumstances.

Evidence supported the USMJ's R&R conclusion that defendant abandoned his hotel room. He had packed up to leave, attached his companion, and fled the area. United States v. James, 2007 U.S. Dist. LEXIS 187 (D. Minn. January 3, 2007):

James also contends that Judge Graham erred in concluding that he abandoned his room at the Excel Inn. James relies primarily on United States v. Hoey, 983 F.2d 890, 893 (8th Cir. 1993), in which the court found that the defendant had abandoned her apartment because she was six weeks behind in paying rent, had held a moving sale, and was seen leaving. James points to differences between Hoey's situation and his situation -- such as the fact that he had reserved his hotel room through the following day -- and argues that these differences compel a finding that he had not abandoned his hotel room in the way that Hoey had abandoned her apartment.

In determining whether property was abandoned for Fourth Amendment purposes, courts consider all of the circumstances at the time of the alleged abandonment. Id. at 892. The facts of this case -- while indeed different from the facts in Hoey -- are more than sufficient to demonstrate that James had abandoned his room at the Excel Inn. Residence in a hotel room is almost by definition transient; in contrast, residence in an apartment is typically long-term. The type of evidence necessary to show that an individual has abandoned an apartment will thus differ from the type of evidence needed to establish that a hotel room has been abandoned. Even putting that difference aside, the evidence of abandonment here is at least as strong as that in Hoey. James had packed up his belongings and was in the process of leaving when he attacked his companion and fled the hotel. Based on this evidence, the Court finds that James had abandoned his room at the Excel Inn.

Two habeas cases from Michigan: Petitioner was afforded a full opportunity to litigate his Fourth Amendment claim because Michigan courts do not default search and seizure claims not made in the trial court. No motion was made here, but it was decided on the merits on appeal, and that satisfies Stone v. Powell. Mendoza v. Berghuis, 2007 U.S. Dist. LEXIS 164 (E.D. Mich. January 4, 2007).* "The relevant inquiry is whether a habeas petitioner had an opportunity to litigate his claims, not whether he in fact did so or even whether the Fourth Amendment claim was correctly decided. See Wynne v. Renico, 279 F. Supp. 2d 866, 892 (E.D. Mich. 2003)." Calicut v. Quigley, 2007 U.S. Dist. LEXIS 166 (E.D. Mich. January 3, 2007).*

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by John Wesley Hall
Criminal Defense Lawyer and
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Little Rock, Arkansas
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"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me

"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud

"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

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"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)


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