Archives for: January 2007, 15


Permalink 10:53:15 am, by fourth, 958 words, 4489 views   English (US)
Categories: General

Devlin kidnapping case: Was a search warrant required for the entry to rescue? No, assuming probable cause exists

As the Devlin kidnapping case unfolds, one cannot yet tell from the news stories (see and whether a search warrant was used for the entry into the apartment where the boys were found. The Times article talks about a "hunch," but the hunch was what led the officers to keep Devlin under surveillance. When they decided to confront Devlin as he was taking out the trash, his demeanor was at first friendly and cooperative and then turned "180 degrees." That would potentially be reasonable suspicion at the least. Devlin's vehicle matched the description of the kidnapper's vehicle. But, according to the news articles, they did not enter: they called the FBI which came out. Apparently the FBI made the entry.

Did they need a warrant to enter? Cases generally hold that officers may enter with probable cause but without a warrant where they are seeking to rescue a kidnapping victim. Wedgeworth v. State, 610 So. 2d 1244 (Ala. Crim. App. 1992); State v. Hatter, 342 N.W.2d 851 (Iowa 1983); Oliver v. United States, 656 A.2d 1159, 1167-68 (D.C. App. 1995):

Other jurisdictions have reflected these unique qualities of kidnapping in holding that kidnapping may create exigent or emergency circumstances, even without direct evidence of a threat of bodily harm to the victim. See People v. Thiret, 685 P.2d 193, 200 (Colo. 1984) (en banc) (finding exigent circumstance when a "three-year-old child had recently been abducted, her life could well have been in danger, and the Sheridan police were engaged in efforts to determine her whereabouts"); Benefiel v. State, 578 N.E.2d 338, 345 (Ind. 1991) (finding emergency situation when a 17 year-old kidnapping and rape victim's life is in danger), cert. denied, 504 U.S. 987, 112 S.Ct. 2971, 119 L. Ed. 2d 591 (1992); Johnson v. State, 554 P.2d 51, 54 (Okla. Crim. App.) (finding exigent circumstances in kidnapping case in "hopes of saving a human life" when police suspected that elderly man being held in a trunk of an automobile during cold days), cert. denied, 429 U.S. 943, 97 S. Ct. 364, 50 L. Ed. 2d 314 (1976); People v. Diaz, 170 A.D.2d 618, 566 N.Y.S.2d 391, 392 (N.Y. App. Div. 1991) (finding emergency situation when father allegedly kidnapped four-year-old son because the "safety of the child was potentially in jeopardy"), appeal denied, 588 N.E.2d 762 (1992).

A recent case in our neighboring jurisdiction involved a report that a man and woman had been missing for eighteen hours. Burks v. State, 96 Md. App. 173, 624 A.2d 1257 (Ct. Spec. App.), cert. denied, 332 Md. 381, 631 A.2d 451 (Md. 1993). An officer spotted the man's car outside a motel room and through a gap in the curtains saw a fully clothed man and woman lying on top of one bed and a third person lying face down on the other bed; all three appeared to be asleep. 624 A.2d at 1267. The trial judge acknowledged that "there was no blood on the scene. There were no signs of injury or struggle. The room was not ransacked from anything that [the officer] could tell, nor did he have any information as to the identity of the perpetrator, or as to whether this person was armed." 624 A.2d at 1270. Nevertheless the trial court ruled, and the appellate court affirmed, that for the officer "to have waited to get a warrant or to have called the room to say 'are you all right in there' would have been ill-advised, and may well have resulted in serious injury or escape." Id. Thus, the officer's warrantless entry was permissible under the exigent circumstances exception. Id.

When dealing with something as significant as a kidnapping victim inside, the quantum of probable cause for an entry effectively becomes a sliding scale: the greater the exigency, the easier it will be for any court to conclude there was probable cause. See Brinegar v. United States, 338 U.S. 160, 175 (1949) ("The standard of proof for [probable cause] is ... correlative to what must be proved.") which suggests this, and which Justice Jackson dissenting in Brinegar, at 183, admitted:

But if we are to make judicial exceptions to the Fourth Amendment for these reasons, it seems to me they should depend somewhat upon the gravity of the offense. If we assume, for example, that a child is kidnaped and the officers throw a roadblock about the neighborhood and search every outgoing car, it would be a drastic and undiscriminating use of the search. The officers might be unable to show probable cause for searching any particular car. However, I should candidly strive hard to sustain such an action, executed fairly and in good faith, because it might be reasonable to subject travelers to that indignity if it was the only way to save a threatened life and detect a vicious crime. But I should not strain to sustain such a roadblock and universal search to salvage a few bottles of bourbon and catch a bootlegger.

Also, remember that, under Illinois v. Gates, 462 U.S. 213, 238 (1983), probable cause is a "fair probability" on the totality of the circumstances. It is not "more probable than not." Indeed, what would normally be "reasonable suspicion" might effectively become "probable cause" in a case like this; no matter that the question of probable cause for a warrantless entry is reviewed de novo on appeal. Orneleas v. United States, 517 U.S. 690 (1996).

The bottom line: Once this case is in court, all doubts will be resolved in favor of sustaining the entry.

Tuesday Update: The St. Louis Post-Dispatch reports today that Devlin refused consent to search.

Devlin refused to let officers check his apartment, which triggered surveillance that resulted in Devlin's arrest Friday and the subsequent rescue of the boys.

An article yesterday reports that the police found child porn on his computer.

Presumably they had a warrant for the computer. The emergency exception only allows them to enter to look for a missing child, not conduct a wholesale search.

Permalink 09:48:55 am, by fourth, 247 words, 443 views   English (US)
Categories: General

Co-tenant could consent; no evidence defendant was removed just to prevent him from objecting

The defendant's co-tenant could consent as long as there was no showing that the defendant's removal from the premises was not to prevent him from consenting, following United States v. Groves, 470 F.3d 311, 321(7th Cir. 2006). United States v. Ryerson, 2007 U.S. Dist. LEXIS 2279 (W.D. Wis. January 9, 2007).*

Owner of a tire shop in Memphis was arrested and he consented to a search of his business. Officers already had a conversation on a wire where one employee bragged that they had guns on the premises and one was an armed felon, and that gave reasonable suspicion to confront the employees with drawn weapons. Defendant was not an employee of the tire shop, but it was understood that he was to the officers when they entered. The initial detention was reasonable under Summers and the frisk of defendant was reasonable based on officer safety. United States v. Bearden, 213 Fed. Appx. 410 (6th Cir. 2007)* (unpublished).

After an anonymous tip of marijuana growing on defendant's property, police got a search warrant. "What is in dispute is the timing of the search vis-a-vis the issuance of the warrant." The trial court found the search followed issuance of the warrant, and that was not clearly erroneous. United States v. Hartman, 213 Fed. Appx. 396 (6th Cir. 2007)* (unpublished).

Excessive force claim during seizure for mental evaluation of reportedly suicidal citizen failed because the officer's conduct under all the circumstances was not unreasonable and did not shock the conscience. Clark v. Summit County, 508 F. Supp. 2d 929 (D. Utah 2007).*

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by John Wesley Hall
Criminal Defense Lawyer and
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Little Rock, Arkansas
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  Missouri v. McNeeley, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (ScotusBlog)
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2011-12 Term:
  Ryburn v. Huff, 132 S.Ct. 987, 181 L.Ed.2d 966 (2012) (other blog)
  Florence v. Board of Chosen Freeholders, 132 S.Ct. 1510, 182 L.Ed.2d 566 (2012) (ScotusBlog)
  United States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (ScotusBlog)
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2010-11 Term:
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  Ashcroft v. al-Kidd, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (ScotusBlog)
  Davis v. United States, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) (ScotusBlog)

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"If it was easy, everybody would be doing it. It isn't, and they don't."

"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

"There is never enough time, unless you are serving it."
Malcolm Forbes

"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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