Archives for: April 2012, 15


Permalink 11:10:54 am, by fourth, 665 words, 493 views   English (US)
Categories: General

ME: Illegal search did not bar witness discovered by it under Ceccolini

An illegal search of video enabled the state to find other witnesses. While the search was bad, the witness was not barred under Ceccolini. State v. Bailey, 2012 ME 55, 41 A.3d 535 (2012):

[*P20] In Ceccolini the Supreme Court addressed the factors that dictate whether the exclusionary rule should apply to live-witness testimony. The factors are (1) the amount of free will exercised by the witness; (2) whether the initial illegality that led to the discovery of the witness was used to compel the witness to testify, or if the witness testifies as a product of "detached reflection and a desire to be cooperative"; (3) whether the testimony is related to the purpose of the original illegal search, keeping in mind that the exclusion would forever prevent the witness from testifying; (4) the amount of time that elapsed between the initial illegality and the initial contact with the witness, and between the initial contact with the witness and the testimony at trial; (5) whether the witness was known to the police officers prior to the illegal conduct; and (6) whether applying the exclusionary rule would have a future deterrent effect on police conduct. Ceccolini, 435 U.S. at 276-80.

[*P21] Although the Court in Ceccolini declined to adopt a per se rule that live-witness testimony should never be excluded, it acknowledged that witness testimony must be evaluated differently from physical evidence. Id. at 274-76 ("Witnesses are not like guns or documents which remain hidden from view until one turns over a sofa or opens a filing cabinet."). The Court instructed that the decision "cannot be decided on the basis of causation in the logical sense alone." Id. at 274. Instead, the Court indicated that a closer link between the illegality and the witness's testimony is required to exclude the testimony than with nontestimonial evidence because "the cost of excluding live-witness testimony often will be greater." Id. at 278.

[*P22] In a case factually similar to this one, the police received information about the sexual abuse of minors at a school. United States v. Wipf, 397 F.3d 677, 680 (8th Cir. 2005). The police obtained a search warrant and seized videotapes, among other evidence, from Wipf's home and used the videotapes to identify a previously unknown victim. Id. at 681. The victim's parents and a psychologist persuaded him to talk about the past abuse, partially by revealing the existence of the videotapes. Id. at 681, 684. The trial court granted Wipf's motion to suppress the evidence seized from his house, but allowed the victim to testify. Id. at 681-83. The Eighth Circuit Court of Appeals upheld the admission of the victim's testimony after applying the Ceccolini factors, specifically finding that the victim testified willingly; the illegally-seized videotapes were used indirectly to convince the victim to talk; the police never confronted the victim with the existence of the videotapes; the videotapes were never shown to the victim; about nine days elapsed between the illegal search and the first contact with the victim, and nine months elapsed before the victim testified at trial; and the purpose of the search was not to identify additional victims, but rather to corroborate the information originally received. Id. at 684-85.

[*P23] As the trial court found, application of the Ceccolini factors to this case weigh in favor of admitting the live-witness testimony. In its decision, the court found that the witnesses testified of their own free will, that there was a possibility that the witnesses could come forward in the future, and that the purpose of Detective Beaulieu's search was not to identify the then unknown victims. These findings support the court's decision to deny the motion to suppress the live-witness testimony. Additionally, the facts that the testimony was not directly related to the purpose of the original search, that the victims testified in court over two years after they were first identified, and that the victims would otherwise be forever prevented from testifying against Bailey also weigh in favor of admitting the testimony.

There aren't many cases dealing with the Ceccolini rule, so every one of them is important.

Permalink 10:42:23 am, by fourth, 338 words, 401 views   English (US)
Categories: General

CA5: Reasonable suspicion from both driving and actions after stop

Defendant’s actions amounting to reasonable suspicion based on driving and actions after the stop. United States v. Ervin, 469 Fed. Appx. 374 (5th Cir. 2012)*:

At the suppression hearing, Officer Vallet first set forth his experience in highway interdiction, including a year and a half working interdiction and 200 hours of training in interdiction. Officer Vallet then articulated several facts that led him to suspect that Ervin may have been involved in criminal activity before Officer Vallet decided to prolong the detention. From the outset, Officer Vallet found it suspicious that Ervin, while approaching the sheriff's vehicle, dropped speed, changed lanes, and took a close position behind another vehicle. Officer Vallet testified that in his training and experience, such activity was an attempt "to blend in with other traffic, not stand out." Officer Vallet then found it suspicious that twice when Ervin exited his vehicle, he "stopped just prior to the back of his vehicle, as if to stay close to the vehicle." Based on Officer Vallet's training and experience, people acting in such a manner indicate that "they have something that is of value or there's something connected to that car that they don't want to get too far from." During his interaction with Ervin, Officer Vallet noticed that Ervin "seemed overly nervous for a minor traffic violator" as evidenced by Ervin's avoidance of eye contact. Officer Vallet also did not find out of all suspicion the sequence in which Ervin expressed his travel plans. Ervin initially stated that the purpose of his trip was to visit a family member and later added that the purpose of the trip was to start a new business. The fact that Ervin was unable to produce a rental agreement raised Officer Vallet's suspicions because "[s]ometimes that is a way to distance yourself from the vehicle, or you don't want anybody to see who rented it or if it was rented in a false name." Further, Officer Vallet found it suspicious that Ervin failed to disclose fully the details of his criminal history.

Permalink 10:35:53 am, by fourth, 170 words, 369 views   English (US)
Categories: General

W.D.Mo.: Defendant failed to show standing in a car not registered to him

There was reasonable suspicion to stop a car stopped in the middle of an intersection with its lights out when the officer came on the scene of a shots fired call. Defendant had no standing to challenge the search of the car because he could not show any connection to it or why he was driving somebody else’s car. United States v. Mitchell, 2012 U.S. Dist. LEXIS 51080 (W.D. Mo. March 1, 2012).*

UnMirandized defendant consented on the totality of circumstances. United States v. Lewis, 2012 U.S. Dist. LEXIS 51752 (W.D. Va. April 13, 2012).*

Defendant’s PO was at his house for a “field visit” and saw a notebook on top of the TV. He opened the book, and saw directions about hooking up a computer to the TV, and saw names of files from the computer suggestive of child pornography. He was handcuffed and taken outside. He started the conversation and admitted to looking at “porn.,” and that was voluntary. United States v. Gardner, 2012 U.S. Dist. LEXIS 51924 (D. Utah April 12, 2012).*

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
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2013-14 Term:
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  United States v. Wurie, granted Jan.17, argued Apr. 29 (ScotusBlog)
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  Navarette v. California, granted Oct.1, argued Jan. 21 (ScotusBlog)
  Fernandez v. California, 134 S.Ct. 1126, 188 L. Ed. 2d 25 (Feb. 25) (ScotusBlog)

2012-13 Term:
  Maryland v. King, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013) (ScotusBlog)
  Missouri v. McNeeley, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (ScotusBlog)
  Bailey v. United States, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013) (ScotusBlog)
  Florida v. Harris, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013) (ScotusBlog)
  Florida v. Jardines, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) (ScotusBlog)
  Clapper v. Amnesty International USA, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (ScotusBlog)

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)
  Messerschmidt v. Millender, 132 S.Ct. 1235, 182 L.Ed.2d 47 (2012) (ScotusBlog)

2010-11 Term:
  Kentucky v. King, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) (ScotusBlog)
  Camreta v. Greene, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011) (ScotusBlog)
  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)

2009-10 Term:

  Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam) (ScotusBlog)
  City of Ontario v. Quon, 560 U.S. 746, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010) (ScotusBlog)

2008-09 Term:
  Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (ScotusBlog)
  Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (ScotusBlog)
  Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) (ScotusBlog)
  Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (ScotusBlog)
  Safford Unified School District #1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009) (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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