{"id":3417,"date":"2010-12-29T14:45:49","date_gmt":"2009-10-03T13:08:01","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2009-10-03T13:08:01","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=3417","title":{"rendered":"NM: Pepperspraying was seizure, so flight from that was not governed by Hodari D.<\/em>"},"content":{"rendered":"

Defendant was pepper sprayed before he tried to run, and he got a few steps and dropped drugs. His pepperspraying was a seizure, and it continued into his flight, so Hodari D.<\/a> is distinguished. State v. Garcia<\/a>, 2009 NMSC 46, 147 N.M. 134, 217 P.3d 1032 (2009):<\/p>\n

[*22] First, we cannot agree that under the Fourth Amendment Defendant’s seizure ended the moment the officer stopped spraying him with mace. The Hodari D.<\/a> Court’s hypothetical example of a discontinued seizure seems to contemplate something more than the limited motion that Defendant took away from the officer in the present case. 499 U.S. at 625. For example, in describing the type of action by a suspect that would discontinue his or her seizure, the Court used the terms “escape,” “period of fugitivity,” and “br[eak] away.” Id. These words connote a complete, even extended, separation between the suspect and the officer that is lacking in the facts before us. After being pepper sprayed, Defendant only took several strides before he dropped the cocaine and was tackled. During this time, Defendant continued to be under the effects of the pepper spray as evidenced by the fact that he later had to be allowed to decontaminate. It seems irrational to us that the Fourth Amendment would parse into multiple seizures the separate moments of physical contact making up an officer’s brief, forceful submission of a suspect. This being said, we must acknowledge that the United States Supreme Court has not explained what constitutes having “broken away” from an officer, and as such we cannot be certain that under the Fourth Amendment, Defendant was seized at the moment he disclosed the cocaine.<\/p>\n

. . .<\/p>\n

[*24] In the case at bar, where only several strides on Defendant’s part intervened between the officer’s pepper spraying of Defendant and the dropping of the cocaine, we do not believe the link to the illegal seizure was attenuated, if indeed that seizure had ended at all. Further, because the exclusionary rule is designed to deter unlawful police conduct, such as the unconstitutional application of physical force resulting in the discovery of evidence, we believe the policies of the fruit of the poisonous tree doctrine weigh heavily in favor of suppression. We note that other courts confronting similar situations have excluded evidence on this basis. See e.g., United States v. Wilson, 953 F.2d 116, 127 (4th Cir. 1991) (distinguishing Hodari D.<\/a> and suppressing cocaine dropped by the defendant while fleeing from an unlawful seizure because the dropping occurred after the illegal seizure and was the “direct result” of the illegal seizure); United States v. Newman, 490 F.2d 993, 995 (10th Cir. 1974) (holding that marijuana that fell out of a truck as the defendants fled an illegal seizure was not abandoned because “[e]verything was triggered by the original illegal intrusion”); State v. Ingram, 1998 NMCA 177, PP 16-17, 126 N.M. 426, 970 P.2d 1151 (suppressing evidence abandoned while the defendant was fleeing from an illegal search because it was “a direct result” of the illegal search). Again, however, we must acknowledge that the statements in Hodari D. seem to be in conflict with our interpretation of Fourth Amendment case law.<\/p><\/blockquote>\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-3417","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/3417","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=3417"}],"version-history":[{"count":0,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/3417\/revisions"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=3417"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=3417"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=3417"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}