Tuesday, December 26, 2006

Truth In Affidaviting: "Concerned Citizen" Label Not Fatal To CI-Based Search Warrant

UNITED STATES v. TAYLOR, USCA-7, No. 05-3819, 2006 U.S.App. LEXIS 31303, appeal from USDC-ILCD, before Circuit Judges Bauer, Wood, and Williams, opinion by Williams filed 20 Dec 2006,

LONG STORY SHORT: Though the seach warrant affidavit omitted some information about a confidential informant's unsavory background, the affidavit still established probable cause to search, even if the omitted information were put back in. Binding in IL, IN

FACTS: On 24 May 2004, Detective Atteberry of the Bloomington, Illinois Police Department applied for a search warrant supported by an affidavit containing the following facts: Ten days ago, CS 241, the identifier for a reliable confidential source that the department had been using for a long time, said Defendant had been growing 150-200 marijuana plants for each of the last 15 years on his property in Bloomington. At the moment, Defendant had 160 plants growing under a tarp next to a boat and a 6-foot fence. The plants were by now 4 feet high and Defendant removed the tarp every morning to give the plants light. CS 241 also related Defendant's full name, weight, height, phone number, description and color of Defendant's house where the plants were growing and the car he drove. CS 241, with Detective Atteberry next to him listening, phoned Defendant on 24 May to ask if the plants were still there, and Defendant confirmed same. Detective Atteberry surveilled the house, determined that the fence and boat were present, saw a man answering Defendant's description walk inside, and checked water bills and tax records to confirm that Defendant lived there. The body of the affidavit referred to CS 241 as a "confidential informant/source" but a report attached to the affidavit called him a "concerned citizen."

Not in the affidavit were any mentions of CS 241's criminal record, probation violations, drug use, or that he took cash payments from the police department for information. The warrant issued as requested. That same day, police executed it while Defendant's wife was home but Defendant was absent. Between a fence and a boat in the yard, police found four flats of styrofoam cups in which were growing 1,417 marijuana plants.

PROCEDURE: The United States indicted Defendant for unlawful manufacture and of possession with intent to manufacture more than 1000 marijuana plants, 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). Defendant moved to suppress on grounds that if the warrant affidavit had included the negative information about CS 241 and not referred to him as a "concerned citizen," the affidavit would not have established probable cause to issue the warrant. At the Franks hearing, Detective Atteberry testified that "concerned citizen" was how his department always referred to interviewees in first contact reports and that the term was not in the affidavit itself. Detective Atterberry listed cases in 1998, 2003, and 2004 in which CS 241's information had led to a number of felony arrests and convictions. The trial court admonished Detective Atteberry's department to do away with the term "concerned citizen" altogether, but that there had been no attempt to mislead the issuing judge, and the very substantial corroboration tended to enhance credibility. SUPPRESSION DENIED. A jury convicted Defendant as charged and he received 120 months minimum mandatory. Defendant appealed his conviction and sentence to the U.S. Court of Appeals for the Seventh Circuit, arguing that suppression should have been granted on the same grounds as at the trial court.

DECISION: To win a Franks challenge, Defendant had to establish by preponderance of the evidence both (1) the search warrant affiant committed perjury or acted with reckless disregard by including false statements in the warrant affidavit, and (2) upon the exclusion of those false statements from the affidavit and the inclusion of any material omitted facts, the remaining information is insufficient to establish probable cause. In the Seventh Circuit, confidential informants' reliability, veracity, and basis of knowledge must face four questions (no one of which is dispositive) as to whether the informant (1) had firsthand knowledge, (2) provided sufficient detail, (3) relayed information which was subsequently corroborated, and (4) testified at a probable cause hearing. CS 241 satisfied the first three. Although he did not testify as to probable cause, in these circumstance CS 241 had already established his reliability. Criminal records by themselves do not disqualify a CI. Defendant could not prevail on a Franks challenge. Denial of suppression AFFIRMED; conviction AFFIRMED; sentence VACATED on other grounds.

EDITORIAL: Hey, people don't show the Pope their marijuana plants. CIs are absolutely necessary to narc work, but of course, CIs get their intel from, well, being in the same lifestyle. They provide a valuable service, so they should get paid somehow, whether in cash or in breaks on their pending cases. It helps that ganja growers can get complacent and forget that the federal government cares about them, very much. When you have a veritable Felony Forest of product in your backyard, you probably shouldn't talk about it even to your friends. Can you imagine the phone call CS 241 made to confirm? Must have gone about like:

ring, ring.
"yo."
"Dude?"
"Yo, dude."
"Dude! It's CS 241 dude!"
"Dude, heyy sup?"
"Dude, you still got all that herb dude?"
"Dude, can you even ask!? Sure it's still there dude!"
"Dude, my brother from another mother, you mean like 160 plants dude?"
"Dude, you have NO idea. More like 1,417 plants dude."
"Dude, well, hook a brother up dude!"
"Dude, no problemo. Haven't I been hooking you up for 15 years dude?"
"Dude, how could I have doubted you. There in ten, dude."
"Dude, sure thing, just remember to bring your [Also Sprach Zarathustra from 2001] bong, Bong, BONGGGGG ... BONGbong, dude!"
[raucous laughter on both ends]
"Later, dude."
"Dude, later."

Well anyway, suburban grass growing might have been a great gig for awhile, but the word is out and the heat is on. The bigger the operation, the more people inevitably know about it, so get out while the getting's good.

Saturday, December 23, 2006

Righteous Baton Wielder--or Officer Fru-Fru? Jury Must Decide

BAKER V CITY OF HAMILTON, USCA-6 No. 05-4390, 2006 U.S.App. LEXIS 31056, appeal from USDC-OHSD, before Circuit Judges Siler, Gilman, and Griffin, opinion by Griffin, filed 18 Dec 2006.

LONG STORY SHORT: Two citizens testified that the same officer used his baton to hit them on the head when they were not resisting, which a reasonable jury could find to be excessive force and could deny qualified immunity. Binding in KY, MI, OH, TN.

FACTS: Plaintiff 1 had spent 15 Dec 2002 smoking a rock or two of crack and drinking at least 10 beers when he encountered one of his regular drug dealers on the sidewalk. As he was in the process of declining the dealer's offer of sale on grounds that he had enough crack to tide him over at the moment, Plaintiff 1 saw Hamilton Police Officer Taylor and his partner cruise by in a police car. Plaintiff 1 began to walk away. The officers told him to stop, and Plaintiff 1 ran for two blocks and hid in bushes. Plaintiff 1 testified that Officer Taylor discovered him, but even though he stood up with his arms extended in the traditional surrender posture, Officer Taylor hit him in the head and in the knee with an ASP collapsible baton. Also according to Plaintiff 1, "that's for running from me" was Officer Taylor's comment after the knee strike. Plaintiff 1 required stitches to close the head wound. Plaintiff 1 also had three crack rocks on him when arrested, and later pleaded guilty to related charges including resisting arrest.

Plaintiff 2, age 17, was walking outside with two friends at 3:50 in the morning of 23 Oct 2003 when Officer Schuster drove by and stopped them to ask about recent car break-ins nearby. The trio said they had been at a friend's house and while waiting for permission to spend the night there, decided to take a walk around the block. No one had identification, but neither did Officer Schuster's Terry patdowns find any tools, weapons, contraband, or evidence of criminal activity. Plaintiff 2 gave a false name and overstated his age. A curfew made it illegal for 17-year-olds to be out at that hour. Officer Alatore arrived, performed a second search, and escorted the other two subjects to the back seat of the patrol car. Plaintiff 2 ran away until he believed he had evaded the officers, then slowed to a walk, but Officer Taylor and others had heard the activity over the radio and responded to the scene. Plaintiff 2 ran again upon seeing them, and testified that Officer Taylor yelled "stop or I'll shoot," so Plaintiff 2 slowed down and said "I'm stopping, I'm stopping." Plaintiff 2 testified that Officer Taylor hit him in the back of his head with an ASP baton, tackled him, and sat on his back, maintaining a choke hold while other unknown officers kept hitting him in the legs with batons. Plaintiff 2 was later convicted of curfew violation.

PROCEDURE: Both Plaintiffs sued Officer Taylor in U.S. District Court for the Southern District of Ohio, seeking compensation under 42 U.S.C. § 1983 for violation of their Fourth Amendment rights against unreasonable seizure, and also for damages on state assault and battery claims. Officer Taylor moved for summary judgment on grounds that as a matter of law, he did not use unreasonable force, and even if he did, qualified immunity protected him because he was performing his official duties. SUMMARY JUDGMENT GRANTED in all respects; case closed. Plaintiffs appealed to the U.S. Court of Appeals for the Sixth Circuit, arguing that material issues of fact were still in dispute and that Officer Taylor could not use qualified immunity.

DECISION: The Sixth Circuit looks at three factors to decide whether force was excessive: (1) the severity of the crime at issue; (2) whether the subject posed an immediate threat to the safety of police or others; and (3) whether the subject actively resisted arrest or fled to evade arrest. Courts must apply these factors in light of the split-second judgment required of officers in dangerous, dynamic encounters with arrestees. The Sixth Circuit also noted that other reported cases featured far worse police behavior than what might have happened here.

Even so, the Sixth Circuit ruled at least eight months before the events in this case that once a subject is incapacitated or not resisting, further use of force is excessive as a matter of law. A reasonable jury could credit Plaintiffs' testimony and find that Officer Taylor had used excessive force, and since he was on notice that such force was excessive, a jury could also deny him qualified immunity. Furthermore, even though his department's baton policy forbids it except in cases of extreme physical danger, Officer Taylor struck Plaintiffs on their heads, and Plaintiff 1 on his knee, after they had surrendered. Lastly, Plaintiffs had put forth evidence that Officer Taylor's use of force was gratuitous, which could prove the necessary malice or bad faith element of assault and battery under Ohio tort law. Summary judgment REVERSED and cause REMANDED for further proceedings on Plaintiffs' civil rights and state tort claims.

EDITORIAL: What the Sixth Circuit calls an "asp" is of course a Tactical Baton from Armament Systems and Procedures, Inc. It looks like a thin rubber-covered flashlight until you flick your wrist and out comes a telescoping length of steel, from 16" to 31" long depending on the exact model (mine is 21", the best overall length). To collapse it, you must smack the end on a very hard surface, preferably the sidewalk or a brick, and then you put it back in the belt holster. Some call it an "expandable" baton, others a "collapsible" baton, depending on whether the glass is half empty or half full, I guess. ASPs aren't the only such baton out there but they were (I think) the first and (everybody thinks) the best, so all telescoping batons are ASPs like all copiers are Xerox machines.

I've never had to take mine out in earnest (but the day is young) and hope never to need it, if for no other reason than exactly this sort of incident. We were thoroughly trained in a number of baton moves with the weapon both expanded and closed, and all authorized impact points are where strong bone lies underneath meaty muscle. Batons are not for inflicting injury, but for distraction by means of temporary pain, long enough for you to gain control and handcuff the subject. Strikes to the joints are verboten, and one of my instructors had her career ended when a fellow officer broke her knee in half during training. Rib cages, necks, and heads are off limits unless it's a deadly force situation. Now, ASS-U-ME-ing that the subjects here are telling the truth, it's time for the Good Fairy to pepper-spray this officer and inquire kindly about all the head-bopping.

Then again, Plaintiff 1 is in technical medico-legal terms a "crackhead," meaning that he would rather climb a tree and tell a lie than stand fast and tell the truth. The Sixth Circuit found it unnecessary to consider his alleged hospital records because his sworn testimony was enough for a jury to believe. I suspect that Their Honors held their noses when writing that, since no one is likely to credit Smokey Joe Twelvepack here. Plaintiff 2 and his buds maybe were just out for their evening constitutional, and maybe they were trying door handles. Since all he was convicted of was a status offense for breaking curfew, he shouldn't even have been arrested, but at the time, the police didn't know that. I think the case will settle for a moderate amount and we won't hear anything more about it.

Monday, December 18, 2006

We Could Use Some NEW Movies

Saw Eragon last night with about 20 of my closest friends. I would summarize it thus: If you've seen Star Wars 100 times and Empire Strikes Back 50 times, you've seen Eragon 300 times. If you're under 10 years old, you will eat it up because you don't know any better and because it has swordfights and cool dragons, well ONE dragon anyway. I thought the whole thing was a flagrant waste of Jeremy Irons, who plays Obi-wan, I mean Brom the washed-up dragonrider. The poor guy stands fast while the rest of the film collapses around him under the dead weight of a million cliches. I do look forward to the DVD (not that I'm going to buy it; I'll just watch it with someone who did) so I can write a list of everything shamelessly ripped off from a long time ago in a galaxy far, far away.

Some have, if only to complain about the resemblance to still other films, compared Eragon to Lord of the Rings. Don't you dare. The only thing the two worlds have in common is that they're sort of medieval. There is no overriding Quest for a single object, other than the actors' frantic off-camera search for their agents to find other gigs which will render them unavailable for the sequel(s). There are only occasional mentions of elves and dwarves, but we never see any--I guess a plot summary got leaked to them and they fled in terror. John Malkovich is unrecognizable as the Eeeevill Lord (probably because he wanted to be unrecognizable). And when Durza sneeringly wastes one of his flunkies and tells the next one in line he's just been promoted, I had to add, "... Admiral Piett."

I understand Eragon the book is quite popular and probably you should read the book and spend your movie time on something else.

Saturday, December 16, 2006

Iffy Warrant Affidavits: Appeal 'Em All, Let Trial Courts Sort 'Em Out

STATE v. MCKINNEY, Supreme Court of NC No. 622PA05, http://www.aoc.state.nc.us/www/public/sc/opinions/2006/622-05-1.htm , on discretionary review from the Court of Appeals of NC, opinion by Justice Martin, filed 15 Dec 2006.

LONG STORY SHORT: The trial court did not resolve the factual issue of whether the search warrant affidavit established probable cause independently of the fruits of an illegal warrantless search, leaving the appellate courts with insufficient facts to decide the case, necessitating remand to the trial court for further factfinding. Binding in NC.

FACTS: Based on a tip from a citizen that her roomate's friend, street name Phoenix, had killed his roommate, Sergeants Morgan of the Greensboro Police Department on 17 May 2003 interviewed Phoenix's friend about the matter. Phoenix's friend described Phoenix's house to them, and Sergeant Morgan related the description to Sergeant Allen, who located the house answering that description. Sergeant Morgan also told Sergeant Allen that Phoenix was probably driving around in the roommate's blue Jeep Cherokee, and Sergeant Allen did not see that vehicle at the house. Sergeant Allen learned that the roommate did not show up for work the day before, contrary to his usual habit; that Phoenix had told his friend that the roommate "wouldn't be coming back" because he had pulled a knife on Phoenix, who "didn't know what else to do"; and that the roommate's sister and brother, who arrived at the house while Sergeant Allen was there, had not heard from him in days. No one present had a house key and the house was locked.

While Sergeant Allen was briefly absent from the house, the roommate's brother removed an air conditioner from a window and crawled inside. When Sergeant Allen returned and Sergeant Morgan arrived, the roommate's brother invited them inside. Believing that a victim might be inside the house and in need of assistance, and that evidence of an assault might be inside, the sergeants went in. Upon seeing what looked like blood spatter in the front bedroom, the sergeants left the house to get a search warrant while other officers secured it. They returned with a warrant and a detective and crime scene specialists. In a front bedroom was a city-issued trash can, on the lid of which were a towel and two candles. Underneath the towel was a computer-generated note reading: "Glenn Devon McKinney [Phoenix's real name] did this." Inside was the roommate's dead body.

PROCEDURE: The State of North Carolina indicted Defendant for first-degree murder in Guilford County Superior Court but did not seek the death penalty. Before trial, Defendant moved to suppress all evidence found in the house on grounds that the initial entry was warrantless and not subject to any exception to the warrant requirement, and that the warrant depended on the blood spatter seen during the initial entry, rendering both searches unreasonable and illegal under the Fourth Amendment. The State responded that exigent circumstances did not allow time to get a search warrant, and also that Defendant did not have standing to move for suppression. SUPPRESSION DENIED without specifying the factual or legal basis for the decision. A jury convicted Defendant as charged and the trial court sentenced him to mandatory life without parole.

Defendant appealed as of right to the Court of Appeals of North Carolina, arguing that the initial entry was illegal and that all that followed was fruit of the poisonous tree. The Court of Appeals agreed. CONVICTION REVERSED without dissent. The Supreme Court of North Carolina allowed the State's petition for discretionary review and considered two issues: whether the initial entry was allowed under any exception to the warrant requirement, and if the initial search was illegal, whether independent sources had provided enough evidence to make probable cause for a magistrate to issue a search warrant.

DECISION: As to the first issue, warrantless searches are presumptively unreasonable, and the State must show the existence of some recognized exception to the warrant requirement. Here, the Court of Appeals correctly ruled that the totality of the circumstances did not establish exigent circumstances, and the officers should not have entered without a search warrant. AFFIRMED IN PART.

As to the second issue, Defendant's standing to move for suppression depended on contested facts before the trial court, but the trial court's order denying suppression did not resolve that factual dispute. Neither did the order state the factual or legal basis for denying suppression. While it appeared to the Supreme Court that enough other facts were present to establish probable cause independent of the evidence from the illegal search, even the Supreme Court would not usurp the trial court's prerogative and duty (and better ability) to decide initially whether, if the warrant had not referred to the evidence from the illegal search, probable cause still existed. JUDGMENT VACATED; REVERSED IN PART AND REMANDED to the trial court for further inquiry into the basis for the search warrant.

EDITORIAL: Never time to do things right; always time to do things over; but this doesn't have to be done over. As y'all know, I am very big on pushing decisions down the chain of command, and very small on appellate court micromanagement of trial courts. I guess I'm supposed to be glad that the NC Supremes handed it back to the Superior Court, but just this once, I'm not. Since probable cause is no more than slightly educated common sense, it's clear from the facts that the opinion found in the record that the warrant should have issued. Though the initial FOAF tip (friend of a friend) was pretty thin, the police then asked around like any ordinary citizen could have done, and found out the victim's vehicle was gone and nobody had seen him lately and he hadn't shown up for work. It looks like no officer was around to stop the victim's brother from breaking and entering, and he would have found the blood spatter in about five seconds without any help from the government. The Supreme Court should have saved the taxpayers and the victim's family the unnecessary pain of relitigating this horror. If the AG wants me to cosign a motion for rehearing, I'll sure see what I can do.

Unless something was left out of the opinion, I don't see why exigent circumstances didn't justify the officers in at least looking around for a victim or perpetrator. As soon as they saw the blood, they skedaddled, as they should have. In hindsight, the IAD should have been to order the brother out of the house to keep him from contaminating the scene, and look for plain view evidence justifying exigent circumstances or a warrant. That's the way to keep evidence safe, but not necessarily victims, and I'd rather save a victim who can be saved than have to dig out the dang law book every time I respond to a possible homicide scene.

Thursday, December 14, 2006

Tenth Circuit Still Says Only Arrests Justify Protective Sweeps

UNITED STATES v. TORRES-CASTRO, USCA-10 No. 05-2357, 2006 U.S.App. LEXIS 30420, appeal from USDC-NMD, before Chief Judge Tacha and Circuit Judges Kelly and Murphy, opinion by Kelly, filed 12 Dec 2006.

LONG STORY SHORT: Unless incident to arrest, a warrantless protective sweep of a home is an illegal search, although the inevitable discovery rule applied here to deny suppression. Binding in CO, KS, NM, OK, UT, WY.

FACTS: On 02 Dec 2004, officers of the Albuquerque, NM Police Department encountered a 14-year-old female running down a street. She told officers that Defendant, her 20-year-old boyfriend, was an armed illegal alien who had beaten her and restrained her from leaving, threatening to shoot anyone who tried to take her away from him. Officers Phel (who told the others that Defendant was a DV perpetrator and armed), Guevara, and Elrick arrived at Defendant's home for a knock-and-talk at about 1900 on 04 Dec 2004. Before knocking, the officers could see Defendant and other persons through the window. The officers then saw one person look up and then speak to other persons, some of whom moved to back rooms.

Defendant answered the knock and consented to the officers' entry. Officer Phel asked Defendant about his relationship with the female juvenile (who was in the house at the time) while Officers Guevara and Elrick, seeing other people in the back rooms, conducted a protective sweep of the house to return everybody to the front room. Officer Elrick told the others that a clear bag containing a box of shotgun shells was in plain view on a bedroom closet shelf. Officer Guevara advised Defendant that he did not have to answer, but asked him specifically, "Is there a shotgun in the house? Where's the shotgun at?" Defendant said there was a shotgun under the mattress in the same bedroom as the shotgun shells, and Officer Guevara found it there, noticing that it appeared to have an illegally short barrel.

Officer Phel continued questioning Defendant, who became uncooperative, and Officer Phel handcuffed Defendant, telling him he was under arrest for possessing an illegal weapon and for charges related to his juvenile girlfriend. No officer knew in advance that Defendant was illegally in the United States and therefore could not legally possess firearms or ammunition. Officer Phel testified that he did not intent to arrest Defendant until after discovering the short-barrel shotgun. About five minutes elapsed from entry to arrest. Five to ten minutes after arrest, an ATF agent arrived and Mirandized Defendant, who then made incriminating statements.

PROCEDURE: The United States indicted Defendant for possession of an unregistered firearm under the National Firearms Act, 26 U.S.C. §§ 5841, 5681(d), 5871, and being an illegal alien in possession of a firearm, 18 U.S.C. §§ 922(g)(5), 924(a)(2). Defendant moved to suppress the shotgun and shells and all statements he made as fruits of the poisonous tree of illegal search. The District Court agreed that the protective sweep was an unreasonable search under the Fourth Amendment and therefore illegal, but ruled that independent sources prior to the sweep gave officers probable cause to arrest Defendant, and that Defendant validly consented to entry and voluntarily made incriminating statements. SUPPRESSION DENIED. A jury convicted Defendant as charged and the court sentenced him to 46 months. He appealed, arguing that the lack of intent to arrest him before the sweep meant that it could not have been incident to arrest. The United States argued for reversal of Tenth Circuit precedent limiting protective sweeps to incidents of arrest, noting that officer safety can be at risk regardless of whether anyone is arrested.

DECISION: Before walking up to Defendant's house, the officers had objective probable cause to arrest him for abusing his juvenile girlfriend, so their subjective intentions not to arrest were irrelevant. Defendant voluntarily let the officers in and answered questions without being restrained, but once Defendant understood the nature of the officers' visit, he could have gotten violent, and the officers knew he kept weapons. All this added up to reasonable suspicion justifying a protective sweep so long as it was incident to arrest, but even though the Tenth Circuit (and the Eighth Circuit, and one panel of the Ninth) require arrest to justify a protective sweep (and measure "incident to" primarily by the time elapsed between sweep and arrest), and even assuming the sweep here was not incident to arrest, the sweep was not the "but for" key to finding the evidence.

Whether or not they saw any weapons or ammunition, reasonable officers forewarned of potential armed domestic violence would have asked Defendant if there were any weapons in the house, and then asked for permission to search. That is exactly what these officers did, and Defendant consented to search. Though Defendant argued that questions about the shotgun did not begin until after Officer Elrick said he found the shells, the officers did not know that Defendant was an illegal alien, or that the shells belonged to Defendant, or that the shotgun associated with them had a short barrel, so the statement was not designed to elicit incriminating statements. Inevitably, officers would have found the shotgun. Defendant's post-arrest, post-Miranda statements to the ATF agent were also part of the inevitable discovery chain. The Tenth Circuit never reached the question of whether protective sweeps must still be incident to arrest. Denial of suppression, conviction, and sentence AFFIRMED in all respects.

EDITORIAL: Man, my head is hurting from all these whifferdills that the Tenth Circuit went through to justify what everybody else considers no-brainer officer safety tactics. We got a good decision in the end, but I don't like this business of calling a spade a shovel and then saying you can use shovels but not spades. For those who were wondering what exactly is a "firearm" and what is it doing in the Internal Revenue Code (Title 26) instead of the federal criminal code (Title 18), this is part of the National Firearms Act of 1933, which defines "firearms" as machine guns, grenades, silencers, sawed-off shotguns, etc. (they never let us have ANY fun). NFA didn't make anything illegal; it just required such stuff, also known as "Class 3" weapons, to be registered with what is now the Bureau of Alcohol, Tobacco, Firearms, and Explosives (all the things that make life worth living), or ATF for short, and also slapped a $200 transfer or manufacture tax on them. Although new machine guns can't be registered anymore, many other NFA toys can be, including sawed-off shotguns. Criminals, of course, can't be bothered with such bureacratic impediments, so they get convicted under this statute not for possessing "firearms" but for not registering them--same difference. I of course think NFA restrictions are hooey because the facts show machine guns etc. to be the LEAST likely types of weapons to be used in crime. But the lemonade of this lemon is that we can use NFA to really hammer the real criminals.

Advanced Concept: Wait, and Think, Before Judging

I checked LEXIS today and found probably eight new Fourth Amendment cases that you folks might like to know about. That is a bit much to summarize in one day so why not start with something totally different--the deal with former Deputy Long, who fired the bullet(s) that killed handyman/thug Peyton Strickland.

Note how I said in the previous post about this incident that waiting for some facts was prudent. Little did I know HOW prudent. We all know that if a grand jury refuses to follow the prosecutor's orders and returns no true bill, there is some very good reason for it. And although deputies in North Carolina serve at the sheriff's pleasure, when a deputy gets fired, there is also usually some very good reason. I will now hazard a guess that regardless of how culpable or not the former deputy was, what's really driving the continuing investigation is that New Hanover County is desperate for somebody to throw under the bus. It's way better for the shooting to look like the malfeasance of a rogue deputy than to look like there may have been a problem with selection, training, equipment, policy, tactics, or leadership.

In no way am I presuming to evaluate anybody or any department. I'm not SWAT and haven't ever served a high-risk warrant and I just don't have any business after-actioning this operation one way or the other. All I am saying is that I have no reason to think that the decision to ask for Mr. Long's badge was wrong, and neither do I have any reason to think the non-indictment was wrong. If over a week of investigation couldn't turn up even probable cause for murder two, then leave the guy alone. The civil suit will be torture enough.

Sunday, December 10, 2006

"Hands-On Life"? Yah, that's what the people he beat up and robbed say

Our beloved Noise and Disturber is at it again.

http://www.newsobserver.com/1419/story/519960.html

To read the articles about him, you'd think Peyton Strickland was the greatest mechanic, welder, restorer, shipwright, and humanitarian who ever lived. He moved to Wilmington with "a cast of buddies" becaused he loved to build things and "Cape Fear Community College's welding program was top-notch." Yeah, well Bladen Community College's welding program is even better, and we win more competitions. It seems that Peyton was "a peacemaker" who "built a chopper motorcycle from scratch after watching people do it on television" and had a delightful childhood and would do anything for anybody and was "always surrounded by friends" and "his care for people didn't fade as he grew older" and helped out pregnant neighbors and some homeless guy in Paris, and of course "learned by doing, always trying to figure out how things worked."

Wow, if we had TWO of him, the world would be perfect.

Now we don't have even one of him, the N&O wails, because a New Hanover County deputy shot the poor unarmed boy and his German Shepherd when serving a search warrant for only a couple of stolen PlayStation 3s. The poor boy died for absolutely no reason. Donations are being accepted so his face can be added to Mount Rushmore.

Hey, fool, Peyton Strickland was A HOOD, A THUG, AND A CRIMINAL who needed to sit in prison at least until he grew out of it. How he got that PS3 was find two other college kids who waited on line for over a day and paid money for it, and then he beat the tar out of the rightful owner and took what didn't belong to him. This is BAD. And he was up on other assault charges too.

Why is the liberal media in sackcloth and ashes? They love to hose the police at every opportunity, but I have never seen the likes of it. I guess the major reason is that Peyton Strickland is WHITE. If this had happened to a black man similarly situated, they would have run an article or two, and an editorial about institutional police racism, and that 's it.

Unfortunately, the decedent's dad is a big-time personal injury lawyer, so there will be a huge settlement whether or not the police were doing anything wrong. Notice how I haven't passed judgment one way or the other about the officers involved, because I DON'T KNOW ENOUGH TO DO THAT. Liberal media, that is what you need to admit.

Hands-on life? Thug life.

Friday, December 8, 2006

"He Was Violent So I Cuffed Him" + "You Started It And You Were Mean" = "Bring In The Jury, Bailiff"

MCKENNA v. CITY OF ROYAL OAK, USCA-6 No. 05-2650, 2006 U.S.App. LEXIS 29191, appeal from USDC-MIED, before Circuit Judges Moore, Rogers, and Gibson, opinion by Rogers, filed 28 Nov 2006.

LONG STORY SHORT: When officers testify to one version of events, and Plaintiff's witness testified to another, the dispute of fact prevented summary judgment and qualified immunity, and deprived the Court of Appeals of jurisdiction to hear the appeal. Binding in KY, MI, OH, TN.

FACTS: On 18 March 2004, Plaintiff suffered a seizure at his home where he was the single father of three daughters. The 14-year-old called 911 and Royal Oak Police Officers Edgell and Honsowetz responded, finding Plaintiff lying in bed. After that, accounts differ.

Plaintiff's 14-year-old testified that she heard the officers tell Plaintiff to get up and get dressed, which Plaintiff started to do but then laid back down. The officers tried to pull him out of bed, telling him to put his pants on, but Plaintiff kept lying back down and telling the officers to stop, in words that Plaintiff's daughter could understand, until the officers cuffed his wrists and ankles, after which he began resisting.

The officers testified that they questioned Plaintiff with no response, so Officer Edgell placed a hand on Plaintiff's shoulder or upper arm to awaken him. When Plaintiff arose, he pushed the officers away and caused Officer Honsowetz to fall backwards. The officers had to cuff his wrists and ankles because of his violent behavior.

Firefighters arrived as the officers were restraining Plaintiff. Plaintiff himself had no memory of what happened.

PROCEDURE: Plaintiff sued the officers and the City of Royal Oak in U.S. District Court for the Eastern District of Michigan per 42 U.S.C. § 1983 for violating his Fourth Amendment right to be free from unreasonable seizure. The City won summary judgment because there was no evidence that it had a policy or custom that caused the complained-of violations. The officers argued that Plaintiff was never arrested or unreasonably restrained. Since he was not aware of what was going on, he had no freedom to be taken away. Also, the officers' actions did not violate any clearly established constitutional right, entitling them to qualified immunity.

The district court ruled that the differing accounts of Plaintiff's daughter and the officers established a genuine issue of material fact that the court could not resolve as a matter of law. SUMMARY JUDGMENT DENIED. The officers immediately appealed the denial of qualified immunity to the U.S. Court of Appeals for the Sixth Circuit, and submitted the Fourth Amendment issue on pendent jurisdiction.

DECISION: Qualified immunity, if none of the facts material to it are still in dispute, is appealable immediately, contrary to the usual wait for final judgment, because qualified immunity is supposed to protect officials from trial as well as liability. However, immediate appeal is only possible if enough facts remain undisputed to make the decision a purely legal one. Here, if it happened as the officers testified, they might escape liability. But if it happened as Plaintiff's daughter testified, then a reasonable jury could find for Plaintiff.

Given this dispute of fact, the Sixth Circuit could not rule that the officers were entitled to qualified immunity. Indeed, since a factual dispute still existed, no appellate court even had subject matter jurisdiction. Without jurisdiction to consider questions of qualified immunity, neither could there be pendent jurisdiction over the Fourth Amendment issues. APPEAL DISMISSED for lack of subject matter jurisdiction.

EDITORIAL: By now, all y'all know that I have no use for gold-diggers playing lawsuit lottery with the police, and even less use for their assclown PI lawyers who should know far better. Then again, I am just as merciless on unethical insurance defense firms who pee on judges' heads and tell them it's raining. This was a clear case of one side swearing to apples, the other side swearing to oranges, and defense counsel trying to hornswoggle the court by ignoring the testimony they don't like and then saying see, our guys are the undisputed champs!

If I had been the defendant officer here, I would have fired Sir Sleazy and taken over. Wrong is wrong. I know personally that no good deed goes unpunished and it totally sucks to be sued, but like I say, you can't shoot misses fast enough to win the gunfight. Instead, you use the true facts and correct law to turn up the suckage on THEM. Sooner or later, you will cost them enough that any victory is Pyrrhic. Works for me, every time.

Thursday, December 7, 2006

Naked Ninjas Caught Flushing Meth Should Object At Trial

UNITED STATES v. NEWMAN, USCA-5 No. 20603, 2006 U.S.App. LEXIS 29813, appeal from USDC-TXSD, before Circuit Judges King, Garza, and Owen, opinion by Garza, filed 05 Dec 2006.

LONG STORY SHORT: Though the suspicious activity that officers saw in plain view might have set up a close question of probable cause, Defendant did not raise the issue at trial, severely limiting the appellate court's ability to correct any error. Binding in LA, MS, TX.

FACTS: DEA agents had a warrant to arrest George Nguyen and responded to a house he frequented and near which his rental car was parked. The agents knew he did not own the house and they had no probable cause to enter it with only an arrest warrant, so they surveilled the house for two hours hoping he would exit. Finally, ten agents overtly carrying raid gear and weapons walked up to the house to try a knock-and-talk. When they were fifteen to twenty feet away, a man burst open the front door, leaving it partially ajar, and ran off, but three agents detained him after he had scrambled over a six-foot fence. The others knocked on the door frame and yelled "Police. DEA. George Nguyen, we've got a warrant for you."

While outside, the agents saw someone moving behind a curtain and also a security camera monitor showing their vehicles outside. The agents entered the house, observed throwing stars and nunchaku on the table, ran upstairs to the sound of running water, and caught Defendant naked in the shower, trying to wash crystal methamphetamine down the drain. Agents arrested him on the spot for drug possession and Mirandized him. Defendant owned the house and consented to search. Agents found more "martial arts" weapons in the kitchen, George Nguyen in the basement, a shotgun under the couch cushions, and a pistol under Defendant's mattress.

PROCEDURE: The United States indicted Defendant for possessing firearms while a convicted felon. He moved to suppress the firearms on grounds that the agents had time to get a warrant but did not do so. SUPPRESSION DENIED. At trial, a jury convicted Defendant as charged. He appealed the denial of suppression on grounds that police did not have probable cause to believe there was contraband or illegal activity in his house, and no exigent circumstances justified the warrantless entry, or if there were exigent circumstances, the government manufactured them.

DECISION: Because Defendant did not bring up the lack of probable cause at trial, review on appeal was limited to the very tough "plain error" standard. Agents knew that a drug dealer frequented the house and his car was parked nearby; they knew a security camera had caught their approach; somebody ran out of the house and over a tall fence; and suspicious movement was in plain view. Put together, these four facts might have been a close question of probable cause, had Defendant argued them in his motion. Since he did not, no error was plain.

In plain view, officers saw a man excited enough to run away and jump fences, and secretive movement behind a curtain, and a surveillance system watching them. These facts, coupled with common knowledge that drug dealers often keep weapons, inspired reasonable concern for officer safety. The agents were trying a perfectly legitimate knock-and-talk when these observations came into plain view and had no obligation to stop their actions and go get a warrant. The fence jumper, not illegitimate government activity, was the key factor in establishing exigency. Suppression denial, and subsequent conviction, AFFIRMED in all respects.

EDITORIAL: Let's see ... shotgun under the cushions ... throwing stars ... numchucks ... you might be a redneck if. All that's missing are Chinese thumb cuffs and Kung Fu Season 1 on DVD. Glad they didn't break out anything that could actually hurt anybody. Naked Ninja's attempted liquidation of assets was not entirely off-base, since methamphetamine hydrochloride is indeed water-soluble, but why the frontal nudity? Well, maybe we don't want to know. Anyway, when you don't like something the police did, you have to tell the trial court first. If you don't keep the toothpaste in the tube, then the appellate lawyer probably won't be able to cram it back in. Nevertheless, given Mr. Hurdles, Candid Camera, and the if-I-can't-see-them-they-can't-see-me bonehead rustling the drapes, I don't think it would have worked to argue lack of probable cause, not in the Fifth Circuit. That means the inevitable ineffective assistance of counsel is not going to habeas his corpus either, thank goodness.

Tuesday, December 5, 2006

Just DISAGREE With A Liberal And You're DIRTY

In today's Raleigh Noise and Disturber, sometimes known as The News and Observer, we learn that the John William Pope Foundation has been talking with the dean of CHASS (College of Humanities and Social Sciences) at North Carolina State University (3-9) about funding maybe some study abroad scholarships and French and German programs. Already the Pope Foundation has given $511,000 to NCSU for a lecture series that brings very distinguished speakers, including a Nobel-winning economist, to campus.

Leftist faculty have their panties in a knot over this. "I think it's a very dangerous step to take to even accept a penny of this money," said associate professor of history David Ambaras. Better yet, philosophy professor David Auerbach pronounced: "This is dirty money."

Why? Does the Pope Foundation sell drugs? extort money from consumers who don't owe it? run numbers rackets? fence stolen property? collaborate with Al-Quaeda?

Heck no! The terrible problem with the Pope Foundation is: it has a CONSERVATIVE OPINION.

And it thinks that private funding for higher education is preferable to public funding. So to put its money where its position papers are, the Pope Foundation contributes money to universities. But worst of all, the Pope Foundation thinks that maybe education should consist of less political correctness, and more ideas of Western Civilization that made us free and keep us free.

By the beard of Lenin, we can't have any of THAT nonsense around here, says the CHASS faculty. You expect this idiocy from Chapel Hill--and in fact, that's exactly what UNC-CH faculty said too, resulting in $2 million going not to education but to the FOOTBALL TEAM--but not from NC State.

Oh, wait--then again, I might. You see, I hold a BS in Philosophy from State, and during my undergrad days from 1984 to 1989 I well remember the feminist multicultural animal-rights atmosphere in which all points of view enjoyed tolerance and acceptance, except Republicans, low taxes, gun rights, military preparedness, and of course conservative Christianity. I well remember Dr. Auerbach, who taught me symbolic logic, into which politics can scarcely enter. However, logic should inform one's politics. Dr. Auerbach needs to practice what he teaches (logic) just as the Pope Foundation does (private funding).

Commendably, not all State faculty have been drinking this particular flavor of Kool-Aid. Ruth Gross, department head of foreign languages and literature, thinks that "some fruitful way" can be found to use the money for students' benefit, and has urged the faculty to be open-minded. Sadly, open-mindedness is not repeat NOT allowed in the education establishment. Raises, promotion, tenure, prestige, and social acceptance in today's academy depend only and entirely on unquestioning agreement with the ironclad socialist party line. College professors and convicted felons have something interesting in common: over 90% of them vote Democrat.

There's no use in imploring closed-minded and intolerant faculty to allow more than one opinion on campus, so I won't waste electrons on that. I will, instead, ask for some way to get diversity of thought and opinion into college faculty, maybe by affirmative action.

Friday, December 1, 2006

Accentuate the Attenuation, Don't Mess With Mr. In-Between

MOSBY v. SENKOWSKI, USCA-2, No. 05-1122-pr, 2006 U.S.App. LEXIS 29402, appeal from USDC-NYWD, before Chief Circuit Judge Jacobs, Circuit Judge Parker, and USDJ-DCD Oberdorfer, opinion by Parker, filed 30 Nov 2006.

LONG STORY SHORT: Whether or not any exception to the warrant requirement justified entry into Petitioner's home to arrest him, a passer-by's identification of Petitioner as a murder suspect and Petitioner's subsequent confession were too remote from the arrest to suppress them. Binding in CT, NY, VT.

FACTS: On 15 April 1994 in Rochester, New York, someone with the street name "Florida" shot and killed two men. Five days later and two miles away, Petitioner sold crack through the window of the house at 46 Costar Street to an informant in the presence of an undercover officer. Four uniformed officers knocked on the door of the same house and petitioner's 10-year-old son opened the door. Petitioner was asleep upstairs and would not come downstairs voluntarily, so the four officers entered the house and took Petitioner into custody. The UC narc identified him as the one whom he had seen selling crack, and after his arrest while sitting in the police car outside, a neighbor walked by and asked what was the deal with "Florida." The arresting officers called homicide detectives, and police showed photo packs to people who had seen the shootings. Four witnesses identified Petitioner as the shooter. Police Mirandized Petitioner, who waived counsel. Five hours after his arrest, police began questioning him about the murders. He confessed to the murders and signed a written confession that police prepared for him.

PROCEDURE: The State of New York indicted and tried Petitioner for both murders. Before trial, Petitioner claimed that 46 Costar Street was his legal residence where he had lived for two months and moved to suppress his confession and the photo identifications because police did not have an arrest or search warrant. The trial court ruled that Petitioner was only a transient in that house with no legitimate expectation of privacy and therefore had no standing to assert Fourth Amendment rights. SUPPRESSION DENIED in all respects.
At trial, the four witnesses who had identified him before did so again during the State's case-in-chief. Petitioner testified that he shot the decedents in self-defense. The State introduced Petitioner's written confession during its rebuttal case. The jury convicted Petitioner of two counts of second-degree murder and the trial court sentenced him to two consecutive terms of 25 years to life.
Petitioner appealed his conviction and sentence, but did not argue that the trial court erred in denying suppression. The Appellate Division AFFIRMED in all respects and the New York Court of Appeals denied Petitioner leave to appeal. Petitioner went back to the Appellate Division and applied for a writ of coram nobis on grounds of ineffective assistance of appellate counsel for not raising several issues including suppression. WRIT OF CORAM NOBIS DENIED summarily.
His state remedies exhausted, Petitioner petitioned the U.S. District Court for the Western District of New York for a writ of habeas corpus per 28 U.S.C. § 2254 on the same grounds as his coram nobis petition. WRIT OF HABEAS CORPUS DENIED. Petitioner requested and received a certificate of appealability from the U.S. Court of Appeals for the Second Circuit.

DECISION: Under the well-known Strickland test, ineffective assistance of counsel means that the representation fell below an objective standard of reasonableness and also prejudiced the client, which in turn requires a showing of reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Here, if Petitioner probably would have won reversal of his conviction if his appellate lawyer had argued the suppression issue on direct appeal. The Second Circuit reviewed the trial court proceedings and determined that indeed, Petitioner had a legitimate expectation of privacy in the house and therefore had standing to invoke his Fourth Amendment rights against unreasonable search and seizure.
But that was not the end of the inquiry. Petitioner still had to show that the police conduct was not subject to the exigent circumstances or consent exception, and then a connection between any Fourth Amendment violation and the evidence he wanted to suppress. Police did have probable cause to arrest Petitioner for drug dealing, and had no idea that he would turn out to be a murder suspect, making the subsequent events unforeseeable. Petitioner's confession was made outside the home where he may have been illegally arrested. Also, police did not start questioning him until five hours after the possibly illegal arrest, long enough to attenuate any taint. His neighbor's identifying him as "Florida" was not the police's doing. Neither was the photo pack identification a result of the possibly illegal arrest. Petitioner could not have had the evidence suppressed under either New York or federal law, so Petitioner's appellate counsel could not have been ineffective. Given the attenuation present in the case, the Second Circuit did not decide whether the arrest was legal or not. Denial of habeas corpus AFFIRMED in all respects.

EDITORIAL: Florida!? What kind of lame street name is that? Florida was J.J.'s mother on Good Times! Well anyway, I am a little uncomfortable with this decision, and I think it might have gone another way if Florida had done something less than cap two people. Police could have secured the house until they got a warrant, and that's a safe course for the future.

Thursday, November 30, 2006

Friends Don't Let Friends Fall For "Drug Dog Ahead" Signs

UNITED STATES v. TEAGUE, USCA-1 No. 05-1789, 2006 U.S.App. LEXIS 29293, appeal from USDC-MAD, before Circuit Judges Torruella and Lynch and USDJ-MED Woodcock, opinion by Woodcock, filed 29 Nov 2006.

LONG STORY SHORT: A person caught unloading drugs from a vehicle cannot have the evidence suppressed on grounds that police discovered the trafficking scheme by illegally stopping that vehicle the day before. Binding in MA, ME, NH, RI.

FACTS: On 23 Oct 2003, Sugar and Stark were driving a 39-foot RV on I-44 in St. Louis County, Missouri when they saw a sign stating that a drug checkpoint, complete with drug-sniffing K9, was set up after Sugar Tree Road exit. Sugar and Stark exited there even though Sugar Tree Road has no gas, food, lodging, or other usual reasons to take an exit. However, it does have a convenient hiding place for police cars at the end of the off-ramp, and I-44 is a known drug conduit, so police frequently set up checkpoint signs and follow vehicles that take the exit. Inevitably, a subject vehicle will commit a traffic infraction, whereupon officers stop the vehicle and ask for consent to search; if consent is not forthcoming, police detain the vehicle until a (real) drug K9 arrives for a sniff test. Sugar and Stark were no exception, and after their RV veered over the fog line on a 2-lane road, police stopped them and found 27 bales of marijuana in a closet. Sugar and Stark decided to cooperate, and drove on to Marlboro, Massachusetts, where Defendant and two other men in a white Lexus met the RV in a Holiday Inn parking lot and began transferring the marijuana to the Lexus in broad daylight, until police arrested them.

PROCEDURE: The United States indicted all five men for possession with intent to distribute marijuana, 21 U.S.C. § 841, and conspiracy to possess marijuana with intent to distribute, 21 U.S.C. § 846. Discontinuing further cooperation, Sugar and Stark moved to suppress the marijuana on grounds that the Missouri traffic statute that they supposedly violated only applied to roads with three or more travel lanes. The trial court agreed and ordered the evidence suppressed as to Sugar and Stark. Defendant then moved to suppress the same evidence, on grounds that using the fruits of the illegal stop violated his due process rights. The trial court ruled that the police conduct was not so egregiously illegal as all that. SUPPRESSION DENIED as to Defendant. A jury convicted Defendant as charged and the court sentenced him to 96 months. Defendant appealed his conviction and sentence.

DECISION: Defendant correctly conceded that the Fourth Amendment did not help him because he was not the one searched, and the vehicle did not belong to him, so he had no standing to assert someone else's rights to be free from unreasonable search. Instead, he argued that due process under the Fifth Amendment required the evidence to be suppressed. The First Circuit held that like Fourth Amendment rights, the Due Process Clause of the Fifth Amendment is personal to whoever suffered the violation of it. Trial courts may not dismiss a charge against a defendant because of an offense to a non-defendant's due process rights. No evidence of record showed that police were acting in bad faith or egregiously outside the law. Conviction and sentence AFFIRMED in all respects.

EDITORIAL: Our hero seems not to be a disciple of John Farnam, who is forever telling us not to do stupid things, go to stupid places, or associate with stupid people. Using a Lexus for a dope wagon, and loading it with bales of herb in a Holiday Inn parking lot in the middle of the day, is not what Chairman Mao would call swimming like a fish in the sea. But in the first place, somebody should have briefed Dumb and Dumberer about those "drug checkpoint and dog ahead" signs, which everybody knows are fake and are only there to get you to take that suspiciously convenient next exit, which is where the po-po's REALLY are. Notice how the opinion didn't say the fake checkpoint was wrong, just that narcs need to read the fine print in the traffic laws. Since the Fourth and Fifth amendments protect people, not places or property, this guy has six years to chill, which he will use to work up a plan to recruit brighter personnel for his next drug enterprise.

News Flash: Kicking People To Sleep Is Generally Illegal (duh)

UNITED STATES v. PERKINS, 470 F.3d 150 (4th Cir. 2006), No. 05-4798, 2006 U.S.App. LEXIS 29297, appeal from USDC-VAED, before Circuit Judges Williams and Gregory and USDJ-WVSD Johnston sitting by designation, opinion by Williams, filed 29 Nov 2006.

LONG STORY SHORT: When a subject is lying face-down and not resisting, kicking him and stomping on his head is a felony violation of federal civil rights law, especially if the subject sustains severe injury. Binding in MD, NC, SC, VA, WV.

FACTS: Just before midnight 13 Oct 2003, Officers Tweedy and House of the Petersburg, Virginia Police Department stopped motorist Koonce to issue him a warning ticket for driving without headlights. Koonce ran away and after a lengthy foot chase Officer Tweedy finally pushed him to the ground and pepper-sprayed him. Officer House ran up and tried to handcuff Koonce, who grabbed Officer House's ankle. Officer House punched Koonce three times in the arm without result, so Officer Tweedy stomped on Koonce's head until Koonce said "all right man, all right" and let Officer House cuff his left wrist. Officer Tweedy radioed for backup and Sergeant Waldron put out the call, but Officer House radioed that the subject was under control, so Sergeant Waldron cancelled the backup call. Officer Fisher responded to the scene anyway, where Officer House asked him to secure Koonce's right arm. Officer Fisher then saw Officer Tweedy walk up to Koonce, kick him two or three times in his side, and stomp on his head three times. Koonce was now bloody and motionless when Defendant, an off-duty officer, ran up to him and kicked him twice. Finally, Officer Tweedy stomped on Koonce's head twice more, Defendant pulled him away, and Officers Fisher and House cuffed Koonce's other wrist. Koonce arrived unconscious at the hospital with multiple skull and facial fractures, punctured right lung, bruised left lung, and bleeding and contusions in the brain. On the Glasgow coma scale, he scored a 1 for mental status (eyes remained closed), 1 for verbal response (not speaking), and 3 for motor response (moved away from pain stimulus). Officer Tweedy wrote a police report claiming that Koonce had resisted and that Officer Tweedy had used no more than necessary force to control him.

PROCEDURE: Officer Tweedy pleaded guilty to violation of civil rights (here, the Fourth Amendment protection against unreasonable seizure) resulting in bodily injury, a felony per 18 U.S.C. § 242, and also to falsifying a police report with intent to obstruct a federal investigation, a felony per 18 U.S.C. § 1519, receiving 108 months. The United States indicted Defendant for violating 18 U.S.C. § 242. At trial, Officers House and Fisher testified that they had seen Defendant kick Koonce, demonstrated same on a use-of-force dummy, and testified about their department's UOF policy and DT training. Upon being asked whether there was any law enforcement reason for such kicking, and an overruled defense objection on grounds of ultimate issue, Officer House testified that he saw no reason for it. Officer Fisher, upon being asked whether Defendant's kicking of Koonce was in his training and experience reasonable, answered no, and further testified that other subject control techniques would have been appropriate, all without defense objection. Three other officers, one of whom was Defendant's DT instructor, all testified that the kicking was unreasonable, although they had not seen it. Defendant did not object to any of that testimony. The physician who attended Koonce at the hospital testified that blunt trauma caused the puncturing and brusing of his lungs. The trial judge instructed the jury that bodily injury, an element of the 18 U.S.C. § 242, is "a cut, abrasion, bruise, fracture, or other disfigurement, or mere physical pain, or any other injury to the body, even if not significant, severe, or permanent." The jury convicted Defendant as charged, and he got 51 months. He appealed his conviction.

DECISION: Defendant argued that allowing the five officers to testify to an opinion that Defendant's force was unreasonable, without qualifying them as expert witnesses, was error. The Fourth Circuit agreed that the three officers not at the scene should not have been allowed to offer opinion testimony without having been qualified as experts. However, since Defendant did not object to their testimony on that basis, the standard of review was the very tough "plain error" level, which it was not. Even had Defendant objected, Officers House and Fisher were eyewitnesses and did not have to be experts to offer opinions that what they saw was unreasonable. The often hairsplitting difference between legal "objective reasonableness" and dictionary "unreasonableness" was not present here, and the officers' nonexpert opinion testimony did not supplant the jury's common sense. Next, Defendant argued that he could not have caused any bodily injury because Koonce was already unconscious and incapable of feeling further pain when Defendant kicked him, and the Glasgow pain stimulus test was insufficient as a matter of law to prove pain sensitivity. The Fourth Circuit disagreed, since "bodily injury" need not be cataclysmic, just painful or impairing and only temporarily. A reasonable jury could have found from the attending physician's testimony that Defendant was the one who caused the brusing and puncturing of Koonce's lungs. Conviction and sentence AFFIRMED in all respects.

EDITORIAL: Jeez Louise, take a chill pill guys! This is one of the more off-the-chain cases I've seen, and I've seen more than some. Remember, it says "To Protect and Serve" on the car, not "To Stomp and Kick." Obviously Rafael Septien here had some preexisting issues going on, but you can get help for that, or find some other job. And then our man says even if I tried to boot him through the goalposts, that wasn't bodily injury because he was already asleep and couldn't feel it. Pray givest thou unto me a break. Yup, didn't do NOTHIN. One more reminder why I don't take criminal defense cases anymore except for officers, and if THAT officer had tried to hire me, I would have kicked HIM into next week. Also, here's another reminder that if you don't like what the other side's witness is about to say, then OBJECT for petesakes. If you make a crap sandwich at trial, it is mighty hard for us appellate lawyers to whip up enough fries and milkshakes to get two out of three appellate judges to devour the main course. I'm only a miracle worker, not a magician. Since, as part of the opinion pointed out, 18 U.S.C. § 242 is the criminal analogue of 42 U.S. § 1983, shall we even TALK about the civil settlement. And it all started with a no-headlight stop. BTW, the stupid story about gangstas killing everybody in the first car to blink their lights at them IS AN URBAN LEGEND!!! IT IS NOT TRUE! So blink away and save yourself years in prison and several Ferraris worth of civil damages.

Wednesday, November 29, 2006

No Knock, No Announce, No Problem When Serving Arrest Warrants

UNITED STATES v. PELLETIER, USCA-1 No. 06-1287, 2006 U.S.App. LEXIS 29214, appeal from USDC-MND, before Circuit Judges Selya and Howard and USDJ-RID Smith sitting by designation, opinion by Selya, decided 28 Nov 2006.

LONG STORY SHORT: The Supreme Court's decision in Hudson v. Michigan that failure to knock and announce before forcing entry to serve a search warrant does not justify suppression of evidence also applies when forcing entry to a subject's home to serve an arrest warrant. Binding in MA, ME, NH, RI.

FACTS: On 30 Dec 2004 the U.S. Parole Commission issued a warrant for Defendant's arrest for violating the substance abuse terms of his parole. Officers learned that he was in Room 151 of the EconoLodge. At 0900 21 Jan 2005, officers arrived at the EconoLodge and discovered that the room was in Defendant's girlfriend's sister's name. However, a motel employee said Defendant was really the occupant. A team of officers stacked outside the door and knocked four or five times loudly in succession, without response, and 15 seconds after the first knock, the officers used a passkey to enter the room, yelling "Police!" Officers found Defendant inside, arrested him on the parole arrest warrant without resistance, and Mirandized him. In plain view were numerous drug paraphernalia, including $4,740 U.S. currency and a substance later tested to be heroin in a partially open drawer.

PROCEDURE: The United States indicted Defendant for possession of heroin with intent to distribute, 21 U.S.C. § 841(a)(1). Defendant moved to suppress all evidence in the motel room for violating the knock-and-announce rule. Even though the U.S. conceded a failure of knock-and-announce sufficiency, the court ruled that exigent circumstances justified a no-knock entry. SUPPRESSION DENIED in all respects. Defendant pleaded guilty on condition that he could appeal the suppression issue.

DECISION: While the case was on appeal, the Supreme Court decided Hudson v. Michigan, 126 S.Ct. 2159 (2006), in which officers serving a search warrant waited 3 to 5 seconds after knocking and announcing before forcing entry. The Supreme Court held that even though this may be an unreasonable search under the Fourth Amendment, and might subject the officers to civil suit, suppression of evidence would not further the goals of the exclusionary rule, and would lead to endless argument about how long is too long to wait. The First Circuit reasoned that since an arrest warrant allows officers to force entry into the subject's home to arrest him if there is probable cause to think he is there, the situation was just like Hudson for exclusionary rule purposes. Defendant was the de facto occpant of the motel room even if it was in his girlfriend's sister's name. Since the arrest warrant was for a parole violation, Defendant had even less basis to argue violation of his rights, since parolees trade most of their rights against search and seizure in return for not having to stay in prison. Neither did Defendant challenge the validity of the parole warrant. Denial of suppression AFFIRMED in all respects.

EDITORIAL: Lotsa luck in the civil rights suit, guy. The rest of the case shows that he was quite a dope-slinger and general ne'er-do-well so he is sitting in Club Fed for the next 14 years or so. Had the police yelled "Police!" at the same time as they were knocking, there wouldn't have been any issue with not announcing. Not that I am a particular fan of giving bad guys time to come up with a resistance plan, since one of my fellow deputies got shot that way a few months ago. He's back on duty now but he does not remember that evening fondly.

Hello world

At last, here's the Fourth Amendment and Fair Debt Collection Practices Act blog that after a few days you'll wonder how you ever got along without. Published semi-occasionally whenever I don't have anything better to do. Check out my homepage at www.fairdebtlawyer.com and yes I know the design sucks so I'll change it in the very near future.

The Fourth Amendment is about search and seizure, and it is the most important part of the Constitution to law enforcement officers, because they are the ones who search and seize rather often. It reads in full: "The right of the people to be secure in their persons, houses, papers, and effects, against unresonable searches and seizures, shall not be violated, and no Warrants whall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The kernel of Fourth Amendment protection is reasonableness. Searches and seizures that are so unreasonable as to violate the Fourth Amendment can get the officer in all kinds of trouble. Your department may discipline or fire you, the judge may throw out your evidence and let a dangerous criminal walk, you may get sued and have to pay a lot of money, and in extreme cases you may go to prison for years or for life. So PAY ATTENTION young Jedi, and I'll try to help you stay away from the Dark Side.

The Fair Debt Collection Practices Act takes up a few pages, which you can find starting at 15 U.S.C. § 1692 et seq. (translation, Title 15 of the United States Code, Section 1692 and following sections). FDCPA sets rules for third-party debt collectors (usually collection agencies or collection law firms, CA for short) and provides for damages and attorney fees for collectors who get caught violating the rules. Many states, including my home drome of North Carolina, have additional fair debt collection practices laws and licensing of CAs. There are 6,000 collection agencies in the United States, many of whom are A-OK, many of whom are downright shady, and some of whom are little more than organized crime fronts. I've seen all kinds of CA shenanigans, from technical glitches in dunning letters to flat-out wire fraud and extortion. Some bad things are obviously illegal, but some bad things are only bad if you read FDCPA very carefully. The main federal watchdog agency for debt collection is the Federal Trade Commission, but FTC has A LOT to do and they can only sue two or three of the very worst FDCPA offenders every year. For the most part, it's us private consumer lawyers that make FDCPA happen. This area of law has long been obscure, but more and more lawyers are getting the word that debt collection is THE most complained-about industry that FTC keeps track of, and complaints have about doubled in just three years. I'll try to keep track of some of the more interesting FDCPA developments here.

Y'all chime in with comments and questions as often as you like. I tend to forget that not everybody has spent so many years looking at court opinions that now they read like novels to me. If the learner hasn't learned, the teacher hasn't taught.