{"id":3235,"date":"2010-03-21T06:35:57","date_gmt":"2009-07-10T07:23:07","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2009-07-10T07:23:07","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=3235","title":{"rendered":"GA: Exclusionary rule inapplicable to DNA taken weeks after defendant’s release from prison"},"content":{"rendered":"

The exclusionary rule does not apply to prevent the use of DNA from a convict that was not taken until weeks after his release from prison that was used to match to another crime. Leftwich v. State<\/a>, 299 Ga. App. 392, 682 S.E.2d 614 (2009):<\/p>\n

Moreover, the DNA sample was taken from Leftwich on February 18, 2005, rather than January 2, 2005, (the final date Leftwich argues that he was legally held in prison) simply because he was physically discharged from custody on February 18. 10 Thus, even assuming that Leftwich’s detention at the time was illegal, the exclusionary rule does not apply to this case because the DNA extraction (and thereby, the CODIS match to E. C.’s attacker) was not a result of any illegal detention by the State. 11 Furthermore, the threat of exclusion of evidence in this case is not likely to deter future instances of the presumed illegal conduct in this case–holding an inmate beyond the end of his sentence term–because the Department of Corrections employees responsible for calculating prison terms have no stake in the outcome of future criminal prosecutions. <\/p><\/blockquote>\n

The purpose of the traffic stop was dispelled as the officer approached the back of the car and saw the temporary tag. He was obliged to permit the defendant to leave without questioning. There is no basis to permit the officer to explain the erroneous purpose of the stop and then letting him go. State v. Morris<\/a>, 2009 UT App 181, 214 P.3d 883, 633 Utah Adv. Rep. 23 (2009):<\/p>\n

[*P10] The State argues that the traffic stop was justified at its inception because Trooper Williams could not see the temporary permit when he signaled Mr. Morris to pull the SUV to the side of the road. 5 The State further contends that, regardless of when Trooper Williams actually recognized the temporary permit, he was justified in approaching the SUV window to explain his mistake. In support, the State cites United States v. McSwain, 29 F.3d 558 (10th Cir. 1994), wherein the Tenth Circuit Court of Appeals stated, in dicta, that a police officer may, “[a]s a matter of courtesy,” explain to an erroneously stopped driver the mistaken reason for the stop, before “allow[ing] them to continue on their way.” Id. at 562. The State urges us to adopt this as the policy in cases, such as the present case, where a driver is mistakenly pulled over. Mr. Morris, on the other hand, emphasizes that McSwain is not binding on this court and argues that adoption of the McSwain dicta would be contrary to well-settled Utah precedent prohibiting continued police detention once reasonable suspicion has dissipated. For reasons discussed more thoroughly below, we agree with Mr. Morris and decline to adopt the McSwain dicta.<\/p><\/blockquote>\n

Defendant probably could challenge the search of his backpack in the vehicle of another. While he lacked “standing” as to the vehicle, he had standing as to the backpack. The smell of marijuana from the backpack, however, gave probable cause to search it. State ex rel. D.A.B. v. State<\/a>, 2009 UT App 169, 214 P.3d 878, 633 Utah Adv. Rep. 10 (2009).*<\/p>\n","protected":false},"excerpt":{"rendered":"

b2evALnk.b2WPAutP Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"pingsdone","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-3235","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/3235","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=3235"}],"version-history":[{"count":0,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/3235\/revisions"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=3235"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=3235"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=3235"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}