Post details: N-M: Four hour search incident in sex assault investigation unreasonable
08/25/12
N-M: Four hour search incident in sex assault investigation unreasonable
Four hour search incident for a sexual assault investigation was unreasonable. Consent was also rejected. Trial judge ruled against government, and this was an interlocutory appeal. United States v. Murray, 2012 CCA LEXIS 308 (N.-M. Ct. Crim. App. August 21, 2012):
Although the military judge placed undue weight on the safety concerns of the SILA [search incident to lawful apprension] exception over the evidentiary concerns, he nevertheless also discussed the risk that evidence might disappear, and that those circumstances could justify a search, citing to Schmerber v. California, 384 U.S. 757 (1966). He concluded that those considerations do not apply to this situation in which the appellee was subjected to a four-hour SANE [sexual assault nurse examination] exam conducted by a nurse hours after apprehension under a dubious consent pretext, and that such a search was well-outside the scope of Mil. R. Evid. 314(g)'s exception to the warrant requirement. The trial judge perhaps should have discussed more thoroughly the "destructible evidence" justification for the SILA exception to the warrant requirement, and articulated more careful consideration of whether the evidence seized during the SANE exam was "destructible evidence" within the meaning of Mil. R. Evid. 314(g). Nonetheless, we do not find his conclusion of law that the SANE exam was outside the scope of the SILA exception to be incorrect. Ayala, 43 M.J. at 298.
Nothing in the record indicates that, at the time the SANE examination was conducted, law enforcement personnel believed that the physical examination of the appellee was actually being conducted as a search incident to his apprehension. Special Agent (SA) Harris, the NCIS agent waiting at the hospital for the completion of the exam, believed that it was a consent search, with the consent to be obtained by the SANE nurse conducting the exam. AE I, Attachment 4 at 14-15. Likewise, the SANE nurse testified at the motions hearing that it was a consent exam, and that she was "required to have either the suspect's consent or ... [the] equivalent to a warrant from NCIS to gather the evidence." Record at 23. If the appellee had not consented, LCDR McMullen would have "stepped out of the room, and ... gone to NCIS and said, "I cannot proceed without that search order." Id. at 30, 64-65.
Obviously, the nurse's understanding of the basis for the search is in no way dispositive of its admissibility. For that matter, the NCIS agent's understanding of the basis of the search is not necessarily dispositive. The fact that the SANE exam was conducted with the nurse and the agent believing they had the appellee's consent does not necessarily preclude its admissibility as a search incident to the appellee's apprehension. Nevertheless, what the military judge was faced with, and what we are now faced with, is a two-fold problem.
Pingbacks:
No Pingbacks for this post yet...
FourthAmendment.com
Notes on Use
| Sun | Mon | Tue | Wed | Thu | Fri | Sat |
|---|---|---|---|---|---|---|
| << < | ||||||
| 1 | 2 | 3 | 4 | |||
| 5 | 6 | 7 | 8 | 9 | 10 | 11 |
| 12 | 13 | 14 | 15 | 16 | 17 | 18 |
| 19 | 20 | 21 | 22 | 23 | 24 | 25 |
| 26 | 27 | 28 | 29 | 30 | 31 | |
Search
by John Wesley Hall
Criminal Defense Lawyer
Little Rock, Arkansas
Contact / About
www.johnwesleyhall.com
www.LawofCriminalDefense.com
@JohnWesleyHall
Online since Feb. 24, 2003
~~~~~~~~~~~~~~~~~~~~~~~~~~
Fourth Amendment cases,
citations, and links
Latest Slip Opinions:
U.S. Supreme Court (Home)
Federal Appellate Courts Opinions
First Circuit
Second Circuit
Third Circuit
Fourth
Circuit
Fifth Circuit
Sixth
Circuit
Seventh
Circuit
Eighth
Circuit
Ninth Circuit
Tenth Circuit
Eleventh
Circuit
D.C.
Circuit
Military Courts: C.A.A.F.,
Army, AF,
N-M, CG
State courts
Google Scholar
Advanced Google Scholar
Google
search tips
LexisWeb
LII State Appellate
Courts
LexisONE
free caselaw
Findlaw Free Opinions
To
search Search and Seizure on Lexis.com $
Most recent SCOTUS cases:
2013-14 Term:
Fernandez v. California, granted May 20 (ScotusBlog)
2012-13 Term: 2010-11 Term: General (many free): Congressional Research Service: "If it was easy, everybody would be doing it. It isn't, and they don't." "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." "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." Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment. "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." "The great end, for which men entered into society, was to secure their
property." "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." "The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth." "A search is a search, even if it happens to disclose nothing but the
bottom of a turntable." "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." “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.” “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.” "You can't always get what you want /
But if you try sometimes / You just might find / You get what you need." "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." “You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
"There is never enough time, unless you are serving it."
Maryland v. King, granted Nov. 9, argued Feb. 26
(ScotusBlog)
Missouri
v. McNeeley, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (Apr. 17) (ScotusBlog)
Bailey
v. United States, 133 S. Ct. 1031, 185 L. Ed. 2d 19 (Feb. 19) (ScotusBlog)
Florida
v. Harris, 133 S. Ct. 1050, 185 L. Ed. 2d 61 (Feb.
19) (ScotusBlog)
Florida
v. Jardines, 133 S. Ct. 1409, 185 L. Ed. 2d 495 (Mar. 26) (ScotusBlog)
2011-12 Term:
Ryburn
v. Huff, 132 S.Ct. 987, 181 L.Ed.2d 966 (Jan. 23,
2012) (other
blog)
Florence
v. Board of Chosen Freeholders, 132 S.Ct. 1510, 182 L.Ed.2d 566 (April 2,
2012) (ScotusBlog)
United
States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (Jan. 23, 2012) (ScotusBlog)
Messerschmidt
v. Millender, 132 S.Ct. 1235, 182 L.Ed.2d 47 (Feb. 22, 2012) (ScotusBlog)
Kentucky
v. King, 131 S.Ct. 1849, 179 L.Ed.2d 865 (May 16, 2011) (ScotusBlog)
Camreta
v. Greene, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (May 26, 2011) (ScotusBlog)
Ashcroft
v. al-Kidd, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (May 31, 2011) (ScotusBlog)
Davis
v. United States, 131 S.Ct. 2419, 180 L.Ed.2d 285 (June 16, 2011) (ScotusBlog)
2009-10 Term:
Michigan
v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (Dec. 7, 2009) (per
curiam) (ScotusBlog)
City
of Ontario v. Quon, 130 S.Ct. 2619, 177 L.Ed.2d 216 (June 17, 2010) (ScotusBlog)
2008-09 Term:
Herring
v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (Jan. 13,
2009) (ScotusBlog)
Pearson
v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (Jan. 21, 2009)
(ScotusBlog)
Arizona
v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (Jan. 26, 2009)
(ScotusBlog)
Arizona
v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (April 21, 2009)
(ScotusBlog)
Safford
Unified School District #1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 174
L.Ed.2d 354 (June 25, 2009) (ScotusBlog)
Research Links:
Supreme Court:
SCOTUSBlog
S. Ct.
Docket
Solicitor General's
site
SCOTUSreport
Briefs
online (but no amicus briefs)
Curiae (Yale
Law)
Oyez
Project (NWU)
"On the Docket"–Medill
S.Ct.
Monitor: Law.com
S.Ct.
Com't'ry: Law.com
LexisWeb
Google Scholar | Google
LexisOne
Legal Website Directory
Crimelynx
Lexis.com
$
Lexis.com
(criminal law/ 4th Amd) $
Findlaw.com
Findlaw.com (4th
Amd)
Westlaw.com
$
F.R.Crim.P.
41
www.fd.org
FBI
Domestic Investigations and Operations Guide (2008) (pdf)
DEA
Agents Manual (2002) (download)
DOJ
Computer Search Manual (2009) (pdf)
Electronic
Communications Privacy Act (2012)
Overview
of the Electronic Communications Privacy Act (2012)
Outline
of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
Federal
Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
Federal
Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012)
ACLU on privacy
Privacy
Foundation
Electronic Privacy
Information Center
Criminal
Appeal (post-conviction) (9th Cir.)
Section 1983 Blog
—Me
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
—Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
—Katz
v. United States, 389 U.S. 347, 351 (1967)
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
—Mick Jagger & Keith Richards
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
—Pepé Le Pew
—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)
Archives
- May 2013 (78)
- April 2013 (139)
- March 2013 (122)
- February 2013 (127)
- January 2013 (137)
- December 2012 (137)
- November 2012 (124)
- October 2012 (128)
- September 2012 (127)
- August 2012 (140)
- July 2012 (138)
- June 2012 (150)
- More...
Misc
XML Feeds
What is RSS?
Who's Online?
- blawlibrign
- cruirlscubs
- orvilrvlivr
- Guest Users: 138
powered by
