Two interesting DNA cases from Massachusetts and North Carolina:<\/p>\n
The police obtained defendant’s DNA from defendant’s used cigarette butts and a water bottle abandoned in trash. This was a valid seizure. The defense characterization “that the police effectively performed an oral cavity search by preparing and deploying the cigarettes and water bottle” was unpersuasive [putting it mildly]. Commonwealth v. Bly, 448 Mass. 473 (March 7, 2007).<\/p>\n
The police were talking to the defendant in his backyard and he shredded a cigarette butt and put it in his pocket saying that he watched “CSI.” He smoked another cigarette and flicked the butt at a trash pile, but it rolled down near his feet. He forgot about it, and turned and left, and the officer took it. The seizure off the curtilage was invalid. State v. Reed, 641 S.E.2d 320 (N.C. App. 2007):<\/p>\n
The fact that the cigarette butt was removed from the curtilage when one of the detectives kicked the butt off of the patio fails to defeat defendant’s reasonable expectation of privacy. Additionally, the furtive nature of the seizure raises a suspicion that the detective was aware that defendant would not consent to his taking the butt and that the detective knew that a seizure of the butt would be illegal so long as it was on the patio. It is possible that had defendant placed the cigarette butt in the common area, he may have lost his reasonable expectation of privacy; the police may not, however, by removing evidence from the curtilage, proceed as if the evidence had been left open to the public by defendant.<\/p><\/blockquote>\n
A BOLO for “a brownish or maroonish Mercury Topaz, Ford Taurus” being driven by a white male with a baseball cap did not support stop of defendant. State v. Dias, 284 Ga. App. 10, 642 S.E.2d 925 (2007):<\/p>\n
Although the State’s brief contends the BOLO described the suspect as wearing a white cap and the trial court found that the suspect was described as wearing a baseball cap, neither officer who testified said that this information was in the BOLO. The only support that we have found for that contention is that during his testimony Dias stated that one officer said that he was pulled over because of the white hat he was wearing. Later, the officers asked him where the white hat was, and it appears that no white hat was found in Dias’s car. In any event, the officer testified that when he was stopped Dias was wearing a “black do rag.”<\/p>\n
The trial court found that the car described in the BOLO, either a maroon Mercury Topaz or a Ford Taurus is not a particularized description because the cars are two different makes and models, that describing the driver as a white male in a baseball cap was insufficient to particularly identify a suspect, and that Dias was stopped two miles from the burglary.<\/p>\n
Further, we note that the Ford Taurus was one of the most popular cars manufactured in this country and that from their testimony the descriptions provided to the officer were not as specific as the trial court credited to the State. The officer testified it was either a maroonish or a brownish Ford Taurus, or Ford Tempo, or Mercury Topaz, “or something like that, the caller was not real sure.” (Emphasis supplied.) Further, the evidence is uncontradicted that Dias was not wearing a white baseball cap.<\/p>\n
No year or body style, information about the condition, or number of doors was provided about the suspect car and no details were provided about the driver or his dress other than his skin color and gender and perhaps he was wearing a white baseball cap. The effect of the description was that the officers should look for some sort of brown or maroon automobile manufactured by the Ford Motor Company driven by a white male who might be wearing a baseball cap. This description would cover a staggering number of vehicles and drivers in the State of Georgia.<\/p>\n
In his treatise on Search and Seizure, Professor LaFave identified six factors to be considered when courts determine whether reasonable suspicion to conduct an investigatory detention existed: <\/p>\n
“(1) the particularity of the description of the offender or the vehicle in which he fled; (2) the size of the area in which the offender might be found, as indicated by such facts as the elapsed time since the crime occurred; (3) the number of persons about in that area; (4) the known or probable direction of the offender’s flight; (5) observed activity by the particular person stopped; and (6) knowledge or suspicion that the person or vehicle stopped has been involved in other criminality of the type presently under investigation.”<\/p>\n
4 LaFave, Search and Seizure, A Treatise on the Fourth Amendment (4 th ed.), \u00a7 9.5(g). In considering these factors we find (1) that for the reasons stated above the description of the vehicle and the suspect were inadequate. (2) We have no idea of the size of the area in which the offender might be found because no information was provided about the lapse of time between the crime occurring and Dias being stopped. We only know that the officer stopped Dias two minutes after he heard the BOLO, but we have no information about the time elapsed between the crime and the stop. (3) No information was provided about the number of persons about in the area. (4) The known or probable direction of the offender’s flight was provided. (5) Dias was not engaged in any activity which would have otherwise authorized a traffic stop. (6) The officers had no knowledge or suspicion that the person or vehicle stopped had been involved in other criminality of the type presently under investigation. Therefore, even applying Professor LaFave’s factors we find that no reasonable suspicion existed sufficient to warrant a stop and investigatory detention of Dias.<\/p>\n
We find that the cases the State relies upon are distinguishable from this case because the descriptions contained more detailed information about the vehicles stopped. Compare, e.g., Thomason v. State,<\/em> 268 Ga. 298, 301-302 (2) (a) (486 SE2d 861) (1997) (the officer “knew the color of both the car and its top, the manufacturer, model, and model year of the car, and the driver’s gender and race.”); Burnham v. State,<\/em> 277 Ga. App. 310, 311 (1) (626 SE2d 525) (2006) (the officer knew “the description, make and model of the car. He knew that it was suspected that Burnham would return to his house soon. And, he observed a car matching the description drive directly into the cul-de-sac and stop in front of the Burnham home.”); Hestley v. State<\/em>, 216 Ga. App. 573, 574 (1) (455 SE2d 333) (1995) (a white panel van that “didn’t have a lot of windows,” in the same general vicinity as reported by a concerned citizen.”)<\/p>\n
Accordingly, we find that the trial court did not err in granting Dias’s motion to suppress.<\/p><\/blockquote>\n
A state search warrant issued for federal licensed firearms protected from self-incrimination under 26 U.S.C. \u00a7 5848 was suppressed and the good faith exception did not apply. People v. Sun, 148 Cal. App. 4th 374, 55 Cal. Rptr. 3d 696 (4th Dist. 2007):<\/p>\n
The trial court also granted the defense motion to suppress all evidence seized under the warrant. It stated in its ruling that it found “suppression of the evidence obtained by the State of California is required by 26 U.S.C. section 5848. The search was based on evidence obtained from the defendant’s compliance with the National Firearms Act [NFA].” The District Attorney appeals from this order, contending there was nothing in the affidavit lifted from any records Sun filed or kept as required by the NFA; and, even if there was such evidence, there is no authority that a warrant issued by a magistrate should be suppressed notwithstanding any arguable violation of title 26 United States Code section 5848(a). Lastly, the District Attorney contends, the fruits of an executed search warrant are admissible under the “good faith” exception of United States v. Leon<\/em> (1984) 468 U.S. 897, irrespective of errors made prior to its issuance. Because suppression of evidence is only possible if mandated by federal law (see Cal. Const. art. I, \u00a7 28, subd. (d)), suppression was, he argues, unauthorized in this situation.<\/p>\n
. . .<\/p>\n
On the other hand, the officer’s reliance in objective good faith is the crux of the rule. In People v. Jackson<\/em> (2005) 129 Cal.App.4th 129, the fruits from the search permitted by warrant were suppressed because the information establishing probable cause for that warrant was obtained from an illegal wiretap. As the wiretap authority, 18 United States Code sections 2510 et seq., was established long before the judicially created “good faith exception,” its bar was prevailing over the exception crafted by the Supreme Court after its passage. Moreover, Congress had never attempted to provide–although given the opportunity–such a loophole in the intervening years. “Moreover, the policy reasons that led to the adoption of a good faith exception to the judicial exclusionary rule in cases involving search warrants do not apply to the statutory exclusionary rule in cases involving wiretap orders. In a case involving a search warrant, the true check on law enforcement’s abuse of power was ‘the detached scrutiny of a neutral magistrate.’ To obtain a wiretap, the person seeking the order must first obtain the approval for the wiretap from the United States Attorney General <\/em>or an authorized designee. [Citation.] Hence, ‘if an appellate court determines wiretap evidence was gathered under a legally erroneous order, the government cannot place the blame on the magistrate who issued the order.’ [Citation.]” (4 Witkin & Epstein, Cal. Criminal Law (3d ed. 2006 Supp.) Illegally Obtained Evidence \u00a7 12, pp. 120-121 [italics added].)<\/p>\n
By analogy, the same thing occurred here. Local law enforcement obtained information from another jurisdiction’s law enforcement agent who under the authority which granted him the power to inspect, also was ordered to keep confidential and privileged all information obtained from the entity he inspected. Nonetheless, the local agents presented the information to a magistrate and then blanketed themselves under the sanitizing “robe” of that unknowing magistrate once the warrant was signed. Such manipulation of a magistrate will be repeated if we permit one police agency to use information that another police agency is barred from using. Police reliance cannot be deemed in “objective good faith” when the original agent is aware the incriminating information was obtained by less than legal means. As the state’s reliance on the authority of the magistrate issuing the warrant was not in objective good faith, suppression of the fruits of the search was proper.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"
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