{"id":1296,"date":"2008-02-03T12:36:50","date_gmt":"2007-08-29T07:02:54","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2007-08-29T07:02:54","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=1296","title":{"rendered":"72 hour delay in arraignment was presumptively unreasonable, but harmless"},"content":{"rendered":"

Defendant was arrested and not arraigned for more than 72 hours, so his detention was presumptively unreasonable under County of Riverside v. McLaughlin<\/a>. It was, however, harmless because the remedy is not dismissal, but exclusion of evidence. Since defendant showed nothing had been derived from it or admitted in evidence against him, he was not entitled to habeas relief. Hunt v. Wolfenbarger, 2007 U.S. Dist. LEXIS 62834 (E.D. Mich. August 27, 2007)*:<\/p>\n

However, the mere fact that a violation of McLaughlin may have occurred does not imply that the petitioner is entitled to habeas relief. The Sixth Circuit discussed the appropriate remedy for such a violation in United States v. Fullerton<\/em>, 187 F.3d 587 (6th Cir. 1999). Fullerton’s warrantless arrest was not validated by a judicial officer until 72 hours after his arrest, and he argued that the trial court should have suppressed evidence obtained in connection with the arrest. Id.<\/em> at 590-91. The Sixth Circuit rejected the argument on the grounds that the evidence at issue was actually seized before the delay occurred, but it also endorsed the concept that McLaughlin violations are “susceptible to harmless error analysis.” Id.<\/em> at 592. In this case, the petitioner has not alleged that he was prejudiced in any way by the delay by, for example, the seizure of evidence or eliciting of incriminating statements. Compare with Powell v. State,<\/em> 113 Nev. 41, 930 P.2d 1123, 1126 (1997) (discussed in Fullerton,<\/em> 187 F.3d at 592). Moreover, as the Sixth Circuit noted in Fullerton<\/em>, the Supreme Court has yet to delineate “the appropriate remedy for a McLaughlin violation.” Fullerton,<\/em> 187 F.3d at 591. [Therefore, the state court ruling was not contrary to Supreme Court cases.]<\/p><\/blockquote>\n

Reasonable suspicion existed for a detention, and defendant admitted that he gave consent. United States v. Blanc<\/a>, 245 Fed. Appx. 271 (4th Cir. 2007)* (unpublished).<\/p>\n

The district court credited the officers by finding that the defendant consented to a search of his house and not just the entry of the house. The evidence supports the district court’s conclusion that defendant consented. United States v. Venzant-Diaz<\/a>, 2007 U.S. App. LEXIS 20507 (10th Cir. August 27, 2007)* (unpublished).<\/p>\n

In response to defense counsel’s Anders<\/em> brief, defendant pro se argued that defense counsel was ineffective for not pursuing a search issue. That issue had to be brought in a \u00a7 2255 when a record was made. United States v. Mulgado<\/a>, 241 Fed. Appx. 567 (10th Cir. 2007) (unpublished).<\/p>\n

Defendant’s Franks<\/em> claim could not prevail in any event, so his request for a COA<\/a> to appeal denial of his \u00a7 2254 is denied. Bernard v. Ray<\/a>, 246 Fed. Appx. 553 (10th Cir. 2007)* (unpublished).<\/p>\n

Petitioner’s state law violation of a prison cell search that led to evidence of a crime was not cognizable in habeas, even if the court could reach it under Stone v. Powell<\/em>. Harris v. Wolfenbarger, 2007 U.S. Dist. LEXIS 62828 (E.D. Mich. August 27, 2007).<\/p>\n","protected":false},"excerpt":{"rendered":"

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