Ohio Plain Dealer: Keep DNA evidence private by Jonathan Witmer-Rich and Brendan Heil:
On Nov. 1, the Ohio Supreme Court issued a startling -- and unnecessary -- opinion eroding DNA privacy for Ohio citizens. The court held that the Fourth Amendment does not protect an individual's personal DNA profile. In the court's words, "[a] person has no reasonable expectation of privacy in his or her DNA profile extracted from a lawfully obtained DNA sample."
The case, State v. Emerson, originally involved DNA evidence legally obtained from Emerson through a valid warrant in a rape investigation. Emerson was acquitted of the rape charge, but his DNA profile was kept in the Ohio DNA database. His DNA profile could then be searched again and again, anytime law enforcement compared a sample from a new crime scene with the DNA profiles in the database. Emerson was later convicted of murder, mostly due to a DNA match with a sample found at the scene of that crime.
The case is here.
The box delivered to defendant had a beeper inside that was supposed to emit a continuous tone when it was opened. It malfunctioned and continued to emit a continuous tone before it left police custody. There were no exigent circumstances justifying a warrantless entry into defendant’s dwelling to secure the package because the police had no information of imminent destruction of evidence. United States v. Lawson, 499 Fed. Appx. 711 (9th Cir. 2012).*
Defense counsel was not ineffective for not moving to suppress a photograph in a camera that was already lawfully subject to search under a warrant. In it was a picture of defendant wearing the same shirt described by the witnesses to this shooting. People v. Marshall, 298 Mich. App. 607, 830 N.W.2d 414 (2012).
Defendant was allowed free access to a storage room in the house searched, but he had no key to it. Consequently he had no reasonable expectation of privacy and, thus, no standing. United States v. Gardner, 2012 U.S. Dist. LEXIS 170258 (E.D. N.C. November 30, 2012).*
Government failed to prove its theory of protective sweep. It’s argument essentially put the burden on the defendant to prove that the protective sweep was unjustified, and that’s wrong. Also, the government’s waiver of an opportunity to put on additional proof of exigency before the Magistrate Judge is binding on remand–no new hearing for it. United States v. Delgado, 701 F.3d 1161 (7th Cir. 2012):
For the government's theory to be reasonable under these circumstances, one would have to believe that the shooter (lethally armed and bent on killing Aviles), Delgado (potentially lethally armed and bent on protecting Aviles), and Aviles rushed into the sole-occupant apartment and were poised for a fatal showdown, but that the officers happened to knock on Delgado's door at the precise climactic moment before anyone could pull a trigger or throw a punch, causing the parties to immediately suspend all hostilities while the shooter scrambled into a hiding position and Aviles and Delgado left acting as if nothing had happened. The presumption of unconstitutionality that attaches to warrantless searches requires the government to point to something that would lead a reasonable officer to think that this improbable scenario actually transpired, but the government simply has not done so.
The government argues that Aviles's and Delgado's silence when they came out of the apartment does not mean that the shooter was not in the apartment, because victims of violence sometimes choose to remain silent to prevent an investigation into their own criminal activity or to prevent their wounded foe from receiving aid. But this argument erroneously suggests that the defendant carries the burden of proving a lack of exigent circumstances, when it is actually incumbent upon the government to point to some affirmative sign of exigency. Silence in this context cannot be that sign, as it could have easily meant any number of things having nothing to do with exigent circumstances. Cf., e.g., Ellis, 499 F.3d at 691 (finding no exigent circumstances because general movement noises in response to officer's knocking do not automatically mean that evidence is about to be destroyed, when they could simply signal someone getting up to answer the door). The government notes that in other cases, police officers have validly entered homes without a warrant upon suspicion of domestic violence even when the victim remains silent upon answering the door, but in those cases, silence or an indication that everything was fine was not in and of itself an affirmative indication of exigent circumstances. The victim's silence simply failed to vitiate other affirmative indications that something dangerous was happening inside the home. ... Absent such other affirmative indications here, Aviles's and Delgado's silence adds nothing to the exigent circumstances equation.
The government's failure to carry its burden compels us to find that the officers violated Delgado's Fourth Amendment rights when conducting a warrantless search of his apartment. So we reverse the denial of Delgado's suppression motion, vacate his conviction, and remand for additional proceedings consistent with this decision. In remanding, we also instruct the district court to grant Delgado's suppression motion. After the magistrate judge found a lack of exigent circumstances based on a set of stipulated facts, the government could have asked the district court to supplement the record and could have requested an evidentiary hearing. See 28 U.S.C. § 636(b)(1); Hynes v. Squillace, 143 F.3d 653, 656 (7th Cir. 1998); Goffman v. Gross, 59 F.3d 668, 671 (7th Cir. 1995). It did not. Though the government has not suggested that it is now entitled to an evidentiary hearing at this late stage, our instructions to grant the suppression motion do not include providing an evidentiary hearing. It is too late for that.
A suppression hearing judge sits like an appellate judge in determining the adequacy of the showing of probable cause. The suppression judge improperly second guessed the probable cause here, and the suppression order is reversed. State v. Johnson, __ Md. App. __, 56 A.3d 830 (2012) (Moylan, J.):
What A Reviewing Judge Must Not Do:
Determine Probable Cause De Novo
[Query: Isn’t that exactly what appellate courts do under Ornelas? Come on; you’re going too far in your rhetoric.]
What A Reviewing Judge Should Do: Be Content With A Substantial Basis
In Fitzgerald v. State, 153 Md. App. 601, 627, 837 A.2d 989 (2003), aff'd, 384 Md. 484, 864 A.2d 1006 (2004), this Court switched to affirmative terms to praise a suppression hearing judge for doing what a reviewing judge should do:
Once again [the suppression hearing judge] commendably recognized the constraints on her reviewing role. She did not presume to find probable cause. That was not her job. What she found was that [the warrant-issuing judge] had had a "substantial basis" for finding probable cause. That was her job. .
The relatively lower hurdle that must be cleared by an application for a search warrant is that it must provide a "substantial basis" for the issuance of the warrant. Illinois v. Gates described that lower hurdle, 462 U.S. at 236: ...
. . .
"Substantial Basis" Is Less Than "Probable Cause"
Terms such as "substantial basis" and "probable cause" can be, however, frustratingly slippery. The one thing we can be certain about is their relative weight when compared with each other. A substantial basis is less weighty and less logically probative than probable cause. A tightly reasoned examination, for instance, might reveal a subtle logical flaw in the posited probable cause, but the substantial basis test would not subject the warrant application to so rigorous an analysis. The preference for the warrant and the resulting presumptive validity of the warrant will be able to cover over flaws that might be more compromising if one were examining probable cause in a warrantless setting. Fine points in the arguable nexus between the street criminality of the suspect and the police entitlement to search his home for evidence might well constitute such a case wherein the relative intensities of the examinations might produce very different conclusions. What we know for certain is that some warrant applications will past muster under the lesser test that would not pass muster under the more demanding test.
. . .
A Prima Facie Case Is Not Required
Defendant was arrested for obstruction, and the search of his truck after he was handcuffed was invalid under Gant. Hargis v. State, 319 Ga. App. 432, 735 S.E.2d 91 (2012).
The court credits the officers’ testimony that defendant spontaneously admitted to having a gun on him after a brief encounter that was not a confrontation and involved “exchanging pleasantries.” United States v. Pankey, 2012 U.S. Dist. LEXIS 169276 (D. Ore. November 29, 2012).*
Defendant’s stop was for a broken taillight, and the officer saw furtive movements under the seat, and there was a cigarette pack with glass tubes sticking out in plain view. State v. Bridges, 104 So. 3d 657 (La. App. 4 Cir. 2012).*
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"If it was easy, everybody would be doing it. It isn't, and they don't."
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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
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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
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than it is today."
— Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
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—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
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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
—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
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—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
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—Arizona v. Hicks, 480 U.S. 321, 325 (1987)
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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."
"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)