Tuesday, May 31, 2005

 

Case Brief: Kirby v. Illinois, 406 U.S. 683 (1972)

Here's another case brief that should make the lives of law school students and CJ students a whole lot easier. Please do not copy this verbatim. Instead, use it as reference for writing your own case brief. Sometimes the issues of older cases are hard to grasp compared to the varied legal issues surrounding the cases we work on today, which is the only reason I post my own briefs.

Name of the Case

Kirby v. Illinois, 406 U.S. 683 (1972)

Facts of the Case

The defendant and a companion were stopped for questioning by police officers, and during the process, when asked for identification, each of the defendants produced items bearing a name. After being arrested on an unrelated charge, the officers learned of a robbery involving someone with the name that was presented as identification by the suspects two days earlier. The officers sent for the victim of the robbery, who identified the suspects. The suspects were not advised of their right to counsel prior to the identification, and this issue was brought up during the appeal process. The appeal was denied and the original conviction was affirmed.

Issue

The main issue at hand is whether or not there was a Sixth Amendment violation. The suspects were not advised of their right to counsel before the victim of the crime appeared to identify them. The Sixth Amendment states that the accused should"… have the Assistance of Counsel for his defence," which not only applies to the criminal trial, but from the point at which he has been arrested and charged with a crime in order to not violate his due process rights.

Court Decision

The Court affirmed the conviction of robbery by the defendants, and concluded that no violation of rights occurred.

Rationale for the Decision

Justice Stewart wrote for the majority and delivered the opinion of the court. The Court concluded that there was no violation of the suspects' due process right to an attorney. The suspects were arrested, and not advised of their rights. The arrest was for another issue not relayed in the facts presented in the decision of the court, and the subsequent identification by the victim of the robbery was not related to the arrest. Because of this, the suspect has no right to a lawyer if he is going to be presented in a lineup, being that he has not been formally charged with a crime. The victim of the crime appeared at the police station and "positively identified them as the men who had robbed him two days earlier." A case was made by the defense, claiming that the lineup itself violated the defendants right against self-incrimination, although the decision of the court stated that in order for one to incriminate him/herself, one must speak on behalf of him/herself, citing Schmerber v. California, 384 U.S. 757. Detailing the aspect of a right to counsel, the court determines that following the rules outlined in Miranda v. Arizona, 384 U.S. 436, best conclude when the right to counsel becomes apparent. In this case, as in all others, the right to counsel comes into play during the combination of custody and questioning, and not before or after. As soon as an arrest has been made, the right to counsel becomes the foremost authority. In conclusion, the court determined the lineup performed by the police officers was not in violation of the Fifth and Fourteenth Amendments. The aforementioned Amendments require that a lineup avoid any suggestive notions. Citing Stovall v. Denno, 388 U.S. 293, and Foster v. California, 394 U.S. 440, the rules of a proper lineup are outlined by stating that a befitting balance must be performed at all times.

Concurring Opinions

Chief Justice Burger, and Justice Powell concur, stating that the results reached by the Court are within reason.

Dissention Opinion

Justice Brennan wrote the dissenting opinion. Justice Douglas and Justice Marshall join. The matter of dissent is one of semantics is reference to the style of lineup performed by the officers. It is duly noted that the identification made by the victim of the robbery was not that of a lineup, but of a show-up in which the victim identified the suspects who were seated with the officers at a table. Justice Brennan states that the show-up was highly suggestive, due to the fact that the officers were sitting at the table with the defendant. Justice White joins in the dissenting opinion, citing United States v. Wade, 388 U.S. 281 (1967), and Gilbert v. California, 388 U.S. 283 (1967) as argument for the decision.

Holding of the Court

The court determined that if a suspect is being held on one offence, only to be identified later for another offence, the original terms of the detainment do not apply. No violation of due process rights are made when the advisement as to the right to counsel are not made, as the current period of being detained is under different circumstances, thus making all actions prior to formal charges allowable.

Monday, May 30, 2005

 

Missouri State Trooper in critical condition

Lee has the details of the incident. The assailant decided it would be a good idea to shoot the trooper nine times, and then blame it on temporary insanity induced by the ills of society. Sure, buddy.

 

Creating division among Americans

These people who are against the Minuteman Project drive me up a wall.

Protesters on Sunday gathered outside a meeting where members of a controversial civilian group that has been monitoring the Mexican border gathered with other activists seeking to curb illegal
immigration.

More than 150 demonstrators used placards and bullhorns and waved Mexican flags to get their message out: "Racists, go home!" they screamed.

Hundreds of people had gathered for the two-day summit titled "Unite to Fight Against Illegal Immigration" at a Las Vegas convention center.

Miguel Barrientos, president of the Las Vegas Mexican-American Political Association, said people sopping up the rhetoric of Minuteman Project founder Jim Gilchrist were not protecting the country - they were harming it.

"They're creating division among Americans," he said. "We don't need it."

Nearly 900 Minuteman volunteers, some of them armed, patrolled the Arizona border in April.


I love how they mention that "some of them [were] armed" in every single report about the Minutemen. Arizona allows you to carry an exposed weapon, meaning that if you want to carry a SW1911, you're more than welcome to. All that it does it demonstrate the bias of the article by tryinh to pull a quick one on the readers who might not realize that you can carry a gun in Arizona by trying to make the Minutemen sounds like a bunch of thugs, all of the while protecting their precious illegal immigrants.

Thursday, May 26, 2005

 

Accredited?

Yesterday I wrote about how non-ABA-accredited law schools are achieving BAR passage rates that will rival the time-honored traditional law schools within a matter of years. It seems that Sandra Matthews agrees with me.

Many non-ABA law graduates have distinguished themselves in the legal profession and have succeeded in a wide range of careers in the field of law.

Among the graduates of non-ABA legal institutions are the real estate commissioner for the state of California, numerous Superior Court judges, and many other outstanding attorneys, corporate counsel and judges nationwide.

The time has come for employers to think outside of the box and recognize that great legal minds can be found in both ABA and non-ABA programs. This is especially true because an important hiring criterion is passing the Bar Examination, the ultimate equalizer.

The legal profession will be disadvantaged if hiring practices do not reflect an openness to consider all applicants who are able to show their knowledge and competence regarding the law.

Wednesday, May 25, 2005

 

Deputy Shaq

The US Marshals have a new Deputy in Florida.
He’s Shaquille O’Neal, basketball star and undercover officer.

The 7-foot-1, 325-pound Miami Heat center, who has a fascination with law enforcement, was recently sworn in as a U.S. deputy marshal. He spent six hours on a Saturday afternoon with Miami Beach police investigators helping with cases.

O’Neal has joined a Department of Justice task force that tracks down sexual predators who target children on the Internet.
Works for me. If Shaq was doing this as some form of PR, I don't think I'd be as enthusiastic about it, but I heard years ago that he was interested in law enforcement, so far as to the point that he wanted to be a CHP officer when he was out here in Los Angeles. As far as I'm concerned, that's great. The law enforcement field is becoming filled with people who are more interested in the pension and retirement plans associated with being officers and investigators, versus the desire to fight crime. Shaq wants to fight crime, something that should be respected regardless of your opinion of him as a sports figure.

 

California BAR passage rates

All in all, we're not doing so bad in terms of BAR passage rates. What's even more surprising, if not illustrative of times to come, is how California State CALBAR (non-ABA-Accredited) law school have a passage rate that is growing by the year. Here's the averages:
California Pass Rates by School for all candidates, ABA-Accredited Schools:

Stanford 90.5% (86/95)
Boalt 85.5% (213/249)
UCLA 84.7% (244/288)
Hastings 75% (301/400)
USC 74.9% (155/207)
UC Davis 70.7% (133/188)
USD 65.2% (182/279)
Pepperdine 61.4% (105/171)
Santa Clara 58.8% (161/274)
Loyola 58.4% (240/411)
USF 58.3% (123/211)
McGeorge 57.9% (165/285)
Chapman 55.7% (59/106)
Southwestern 47.3% (123/260)
Cal Western 41.9% (75/179)
Thomas Jefferson 30.6% (48/157)
Western State 29.5% (49/166)
Golden Gate 29.3% (56/191)
Whittier 27.5% (63/229)

State-Accredited-Only Schools:

La Verne 31.3% (10/32)
San Joaquin 26.9% (14/52)
Concord 38.5% (10/26)
Oak Brook 27.8% (5/18)

Think that's impressive? Check out the State Accredited first-time passage rates:
First-timer takers, CA Correspondence Schools (Not ABA-Accredited):

Oak Brook 73% (8/11)
Concord 43% (6/14)

I've been putting a lot of faith into Concord Law School for close to a year now. Not only are they a part of Kaplan University, but owned by Kaplan Inc., a company that provides standardized test materials and one of the best LSAT study courses in the world. This article by MSNBC tells a lot about Corcord and how online law school isn't, and has never been, a bad idea. In fact, Corcord graduates seem to be passing the BAR exam as well as many of their traditional counterparts.

Tuesday, May 24, 2005

 

Noteworthy stats

It's worthy to note that even though I've written detailed case briefs about the Fourth Amendment, offered discount legal services, answered questions about civil procedure, and explained in painstaking detail about what goes on during a criminal investigation, nothing has driven as many people to my website as my post about Sharon Tay and Cher Calvin.

Typical.

It seems that Kevin Roderick, journalist and writer extraordinaire, also experienced the same thing over at his blog.

Saturday, May 21, 2005

 

Case Brief: Mapp v. Ohio (1961)

Here's another case brief that should make the lives of law school students and CJ students a whole lot easier. Please do not copy this verbatim. Instead, use it as reference for writing your own case brief. Sometimes the issues of older cases are hard to grasp compared to the varied legal issues surrounding the cases we work on today, which is the only reason I post my own briefs.

Name of the Case

Mapp v. Ohio, 367 U.S. 643 (1961)

Facts of the Case

In Cleveland, Ohio, three police officers arrived at a house with the intent to perform a search for lewd materials that violated state law. At the house were the plaintiff, Mapp, and her daughter, both of whom lived on the second story of the two-family residence. The officers received information that someone was hiding in the home that was wanted for questioning in relation to a recent bombing, and that there was a large amount of related literature that was hidden in the home as well. Upon knocking on the door and demanding entrance to search the premises, Miss Mapp denied the request after speaking with her attorney about the situation. The officers informed their command post, and waited in a surveillance position outside of the house. A few hours later, the officers attempted to gain entry into the house again after the arrival of four more of their colleagues, and after Miss Mapp did not open the door immediately at their request, they proceeded to enter by force. When Miss Mapp's attorney arrived at the residence, the officers would not allow him entrance, nor would they allow him to view the search warrant. When Miss Mapp questioned the officers about the warrant, an officer flashed a piece of paper, at which point Miss Mapp promptly grabbed the piece of paper and held it against her chest. A conflict between the officers and Miss Mapp began as a result of her grabbing the "warrant," at which point the officers placed her in custody under the premise of her being belligerent. In handcuffs, Miss Mapp was taken to the upstairs of the house, where officers searched the dresser, the drawers, the closet, some suitcases, and various personal items. The second place they searched was the child's bedroom, followed by the living room, the kitchen, and the dining area. Finally, they searched the basement, where a trunk was discovered. The materials in question were discovered throughout various points of contact in the house. When brought to trial, a search warrant was never produced, and the reason for its disappearance was never accounted for. However, despite that fact, the court did allow the evidence to be admitted, citing case law that pertained to the acquisition of evidence in comparison to the use of force.

Issue

The issue at hand is whether or not evidence that was seized under a violation of the Fourth Amendment is admissible in court. According to the law, people have a right under the Fourth Amendment to be guarded against unlawful searches and seizures.

Court Decision

The Court reversed the decision of the State Supreme Court.

Rationale for the Decision

Justice Clark wrote for the majority. The materials that were introduced into evidence for the prosecution of Miss Mapp were obtained in an illegal search of the defendants' house. However, the court realized the importance of dissecting the Fourth Amendment and figuring out how to apply it to people, and not inanimate objects, which in this case make up the bulk of the evidence. The police broke down the door to the house, and entered it to locate the lewd materials that violated state law. In the course of searching, the defendant got into a physical altercation with the police, and they detained her. This is the part of the story where Fourth Amendment privileges become blurred. The way the court sees it, a Fourth Amendment violation would have occurred if the defendant was handcuffed as soon as the peace officers entered the premises, and dragged along on the search, all of the while asked to point-out and locate the materials in question. It is stated that a breach of "personal security or personal liberty" is the essence of a Fourth Amendment violation. Falling down the center of the aisle, the court sees the evidence as being obtained illegally, but still admissible in court due to the legality of the evidence in question.

Concurring Opinions

Justices Black and Douglas concur.

Dissenting Opinions

Justice Harlan wrote the dissenting opinion. Justices Frankfurter and Whittaker join. It is noted that an issue of legality can be established by observing whether or not a Fourteenth Amendment violation occurred in this case as well. The Fourteenth Amendment grants the same rights as the Fourth Amendment to citizens of each state, and prevents the state from taking action against them if there is a clear case of a violation of due process rights. In fact, one can take it a step further and say that it is a violation of the Federal Constitution to incite fear into people by making them believe that "Big Brother" is watching their every move, thus making it impossible "to read, to believe or disbelieve" in a private manner. A violating of this basic principal would provide for a violation of the Fourth, or Fourteenth Amendments, and any evidence seized would not be allowed in a court of law, as covered by the exclusionary rule, regardless of the legality of the evidence.

Holding of the Court

Evidence that is obtained illegally is admissible in a court of law and can be used in the prosecution of the defendant.

Friday, May 20, 2005

 

Escaping justice

Los Angeles County District Attorney Steve Cooley is on a mission to crack-down on illegal immigrants and the crimes they commit. Let's see if we can get him the help he needs and deserves.

Perhaps no one has fought longer or harder than Steve Cooley, Los Angeles County District Attorney. He has been at the forefront of this issue and the victims' fight for justice since taking office in December, 2000. Visit the L.A. County D.A.'s Office.

Through Steve Cooley's efforts, the United States Senate, United States House of Representatives, California Legislature, National League of Cities, California League of Cities, International Association of Chiefs of Police, National Latino Peace Officer’s Association, National Narcotics Officers’ Association Coalition, California District Attorney’s Association, and dozens of law enforcement, victims’ rights organizations, cities and municipalities, have taken action to draft letters and resolutions and to lobby for change on behalf of victims everywhere.

On August 15, 2004, California Governor Arnold Schwarzenegger signed into law, legislation written and championed by the Los Angeles County District Attorney’s Office which brings California in line with 44 other states who reserve the right to retry anyone prosecuted in a foreign jurisdiction for crimes committed on U.S. soil should they re-enter this country. (AB 1432)


Thursday, May 19, 2005

 

Terrorist Watch: Black Hebrew Israelites

Here's a great article by the Southern Poverty Law Center about a lesser known domestic terrorist group, the Black Hebrew Israelites.

On a quiet street in a poor section of Albuquerque, N.M., known as the "war zone," there is a white stucco building with the word "YASHARAHLA" painted on the front window. Inside, law enforcement officials say, a gruesome mural depicts sword-bearing, black men standing triumphant amid bloodied white bodies.

As many as 40 men, many of them dressed in camouflage pants and black shirts and bearing the Star of David, congregate here. Many, officials say, are heavily armed. They frequently leave the fortress-like building to practice martial arts in a nearby park. The group, officials say, is amassing weapons and ammunition.

This is the Stream of Knowledge.

Law enforcement agencies in six states are looking into the group, described as an offshoot of the black supremacist Black Hebrew Israelite religion. The Stream, officials say, is recruiting at military bases and in prisons. Members allegedly are preparing for a race war they expect to end in black victory by the year 2000.

Black Hebrew Israelites believe God is black and whites are "devils." Blacks are the true Jews, God’s chosen people, while those who call themselves Jews are imposters usually seen as part of a Satanic plot to destroy blacks.

"Since 1992, we believe this group has been building up a tremendous arsenal for the war against whites they see coming," says a senior New Mexico law enforcement official. "We don’t know yet if its members have been involved in any criminal violence. But we do believe they have connections to an extremely violent group in Florida. And that has us deeply worried."

Miami’s Yahweh Ben Yahweh cult, the most notorious sect of the Black Hebrew Israelites, was implicated in a reign of terror in the 1980s, and has now all but disappeared. But at its height, it controlled an $8 million empire of properties, including a Miami headquarters known as the "Temple of Love" and temples in 22 states. It left a track record of horrific violence, including the murders of 14 people.

Its doomsday leader, Oklahoma native Hulon Mitchell Jr. (known as Yahweh Ben Yahweh, Hebrew for "God, son of God"), is in prison with six other sect members for conspiracy in connection with the murders. Mitchell ordered the slayings of black cult defectors to keep others in line, and the random murders of whites as part of an initiation to a secret "Brotherhood" within the temple. The killers, as proof of their deeds, often brought back severed heads and ears to Mitchell.

No direct connections between the Yahweh Ben Yahweh cult and the Stream of Knowledge have been proven. But like the Florida group, officials allege, the Albuquerque adherents are violently anti-white.

"The white man has been killing the black man, killing the Puerto Ricans, killing the Indians, and he’s got to pay for this crime," a 19-year-old man told a television audience in 1993. Officials believe this man, who identified himself only as Shayarahla, may have helped form the Stream in Albuquerque.

"Black men," he said, "get ready for war!"

Mirror image of Christian Identity

In many ways, Black Hebrew Israelite beliefs are a mirror image of the white supremacist Christian Identity religion, which holds that northern Europeans, not Jews, are God’s true chosen people. Both see Jews as the spawn of Satan and accuse them of secretly controlling society by Machiavellian string-pulling. Tom Metzger, leader of the White Aryan Resistance, has said, "They’re the black counterpart of us."

Black Hebrews believe the descendants of American slaves and the indigenous peoples of the Americas make up the 12 tribes of Israel. They expect to some day return to Israel (which they call "Northeast Africa"). Adherents reject black Africans, who are usually seen as "traitors" who sold their black brethren into slavery.

In Albuquerque, the Stream is believed to have been started in 1992. Law enforcement officials say it was created by John McGee III (who calls himself "Ya Han Na Ga"), now 26, a worker at Kirtland Air Force Base’s commissary, and Carl Anthony Bennett ("Ka Ariah"), 34, a Veterans Administration Medical Center clerk.

Bennett could not be reached for comment. A man answering a phone listed in the name of John McGee said only, "I’m not interested, so just forget about it."

Officials say services of the sect were originally held at an apartment building in Albuquerque. But they were moved after neighbors complained that armed men, possibly including street gang members, were creating disturbances. Since 1993, the group has held its services at the concrete building in the "war zone."

The sect is allegedly all-male. Law enforcement officials say female relatives are subservient to their men. They must wear demure clothing and look respectfully at their partner if he is speaking to another man. They cannot attend services.

According to the officials, one leader says that when the race war comes, "My bitch better not be whining and crying."

The Stream is believed to own $900,000 worth of property in the Albuquerque area. It’s not known how it finances itself, but members are thought to tithe. In addition, the group supposedly runs a security company and a company called Mid East Oils that sells products at a local flea market.

Officials in Arizona, Colorado, Florida, Oklahoma and Texas, in addition to New Mexico, are interested in the Albuquerque group. Some officials say they believe that the group may be linked to an armed compound outside Pueblo, N.M., and a Black Hebrew Israelite faction in Tempe, Ariz. Earlier this year, Oklahoma City police stopped a van with five men who identified themselves as Stream members. Although guns were found, they were legal, and no arrests were made.

History of criminality

Other Black Israelite sects have a proven history of criminality.

  • Leaders of the Chicago-based Original African Hebrew Israelite Nation of Jerusalem, including founder Ben Ami Carter and top aide Warren Parker ("Prince Asiel Ben Israel"), were convicted in 1986 of trafficking in stolen passports and securities and forging checks and savings bonds in Washington, D.C. Chicago officials also alleged church members stole $6 million to $10 million from banks and supermarkets.
  • The next year, three members of a New York Yahweh faction, including leader Yesher Israel, were convicted of child abuse after children of members were tortured for failing to meet daily financial soliciting quotas. The children were beaten, had barbecue sauce poured into open wounds, and were threatened with castration.
  • In Miami, as many as 2,000 members were taught to worship the "great, good and terrible black God, Yahweh." Mitchell, the leader, was protected by an elite corps of bodyguards known as the
    "Circle of Ten." He was accused by defectors of ordering both adult and minor female members to have sex with him. Devotees were allowed only four hours of daily sleep, fed starvation diets and forced to pray for hours.
Members of the Yahweh Ben Yahweh cult were implicated in the firebombing of a Delray Beach neighborhood, extortion and other crimes. In 1981, cult defector Ashton Green was abducted and beheaded with a machete. Mildred Banks, whose neck was hacked with a machete after she was shot, survived to testify against Mitchell. In 1983, later testimony showed, Mitchell ordered former U.S. karate champion Leonard Dupree to fight a cult member. After Dupree won, Mitchell allegedly ordered up to 50 of his disciples to kill him. He was beaten to death, and an eye poked out with a broom.

Even as the violence occurred, Mitchell and his church received public accolades. In 1988, Mayor Xavier Suarez told reporters he was "quite impressed" with Mitchell. A month before Mitchell’s indictment, Suarez proclaimed Oct. 7, 1990, "Yahweh Ben Yahweh Day." The Urban League in Miami, citing Mitchell’s contribution to affordable housing and economic development, honored him with two major awards.

"The racism, paranoia and millenialism that they have is very flammable," says Suliman Nyang, an expert at Howard University. "They want to take on the entire system, the entire world that they think is evil and against them. The line between reality and imagination doesn’t exist for them."

Tuesday, May 17, 2005

 

The center of the wheel

Former Director of the US Marshals Service, Roger Ray, gets some great coverage in one of the few positive columns written about Marshals.
"How I like to describe the Marshals," Ray says, "is if you looked at the federal law enforcement system, you see the hub of a wheel. The Marshals are the center of that wheel, because everything flows to the Marshals and comes back to the Marshals. All federal warrants must go through the U.S. Marshals Office and return to the court after being served. Marshals consider unserved warrants as fugitives from justice and do not give up the chase until they are apprehended."

In fact, he points out, the Marshals arrest more people every year than all the other law enforcement agencies combined.

Monday, May 16, 2005

 

Inflammatory and self-serving

The lawyer for the 10 Los Angeles Sheriffs' Deputies told Jesse Jackson exactly where he could shove it after the king of exploitation latched onto the situation from last week.
"Mr. Jackson's comments are self-serving, inflammatory, irresponsible and pathetic," Emerson said, adding that his "defamatory remarks are entirely false."

Sunday, May 15, 2005

 

Palestinian gang targets Fort Worth, TX. LEO's

This is unbelievable --- it seems that the roaring 20's are making a comeback, because more and more LEO's (law enforcement officers) are being targeted on a daily basis. LGF has the details.

 

Extradition uncertain

If the killer of Detective Donald Young of the Denver PD managed to make it to Mexico, it looks like the Mexican authorities have no plans of giving him back.

Denver would prefer to extradite Garcia-Gomez, Jackson said.

But he was born in Durango, Mexico, said his girlfriend, Sandra Rivas, and that could pose a problem.

Mexico does not extradite its citizens when a suspect faces the possibility of a death penalty or life in prison, said Joe Bahena, a police officer in the Foreign Prosecution/Interpol Liaison Unit of the Los Angeles Police Department.

Morrissey said he has not yet decided whether he would seek the death penalty if Garcia-Gomez were convicted.

At least one of Garcia-Gomez's associates said he believed the suspect fled to Mexico, Denver Police Chief Gerry Whitman said. Local authorities have warned the Border Patrol and Mexican Authorities.

If Garcia-Gomez is captured in Mexico and Mexican authorities reject a Denver extradition petition, Denver police and prosecutors might invoke Article IV of Mexico's penal code and have him tried in a federal court in Mexico.

Under Article IV, Denver police and prosecutors would prepare evidence in Spanish and lawyers from the Mexican attorney general's office would file a case in a Mexican court.

If convicted, Garcia-Gomez would be sentenced to serve time in a Mexican prison.


Saturday, May 14, 2005

 

Case Brief: Terry v. Ohio, 392 U.S. 1 (1968)

Here's another case brief that should make the lives of law school students and CJ students a whole lot easier. Please do not copy this verbatim. Instead, use it as reference for writing your own case brief. Sometimes the issues of older cases are hard to grasp compared to the varied legal issues surrounding the cases we work on today, which is the only reason I post my own briefs.

Name of the Case

Terry v. Ohio, 392 U.S. 1 (1968)

Facts of the Case

Detective McFadden was on the downtown beat, the same beat he had been working for a number of years, when he noticed two men (petitioner, Terry, and Chilton) who were strangers to the neighborhood standing on a street corner. Upon observation, he noticed the men would alternate and take turns passing in front of a store, and stopping to look inside of the window of it. He observed this take place close to 24 times, each time resulting in a conversation between the suspects. The two men were joined by a third, Katz, who quickly left the scene after a brief appearance. Detective McFadden suspected something was going on, and believed the trio was casing the store for a stick-up, so he proceeded to walk up to the suspects, identify himself as a peace officer, and ask their names. The suspects "mumbled something," upon being questioned, at which point Detective McFadden initiated a frisk and found a pistol in the overcoat of the petitioner. He then ordered the three suspects into a store, removed the overcoat of the petitioner, and seized the pistol. He proceeded to order the three to face an opposing wall, raise their hands in the air, and searched each of them, finding a pistol in Chilton's outside overcoat. The three were taken to the police station, and the petitioner and Chilton were charged with carrying concealed weapons. The defense moved to suppress the weapons, citing that the frisk by Detective McFadden was a violation of the Fourth Amendment right against unreasonable searches and seizures.

Issues

The facts surrounding the grounds for a lawful search and seizure without violating the Fourth Amendment surfaced over six points that were presented for review. The first issue is whether the Fourth Amendment protects people against unreasonable searches and seizures, and where this rule can be applied. (i.e. in homes, on the street, etc.) The second issue is whether or not the evidence that was seized can be used against the petitioner, due to the legality of the seizure. In concurrence with the second point, the third point addresses whether the exclusionary rule would go into effect, based upon the facts presented by the defense as to whether or not the seizure was lawful. The fourth issue at hand is whether or not the procedures of a "stop and frisk" applied to the situation involving the three suspects. The fifth issue involves a tier of circumstances, which branch from the idea of safety. In essence, a peace officer is allowed to make a reasonable search for weapons if he feels his life may be in danger, and the question posed is whether or not the frisking of the three suspects was warranted. Finally, the sixth issue deals with whether or not the search and seizure of the defendant and his companions falls within the boundaries of being "reasonable" as defined by a normal person.

Court Decision

The Court affirmed the decision of the trial court and the appellate court.

Rationale for the Decision

Chief Justice Warren wrote for the majority. The Fourth Amendment provides for protection against unreasonable searches and seizures, but does not protect suspects who are acting in a suspicious manner from being questioned by peace officers and possibly searched for contraband if the officer(s) believe the situation can escalate to a matter of life and limb. In simple terms the issue at hand is whether or not the evidence of the firearms that were seized can be suppressed based on the belief that the initial line of questioning that developed into a pat down was a violation of the suspects Fourth Amendment rights. From the point of view of the defense, the detective did not establish that the defendants were acting in a manner that required a search of their person in any way, shape, or form. However, the detective offered testimony that is had been his experience over thirty-plus years that when someone is acting in a manner as the defendant(s) were, it was most likely due to the fact that they were planning an illegal action of some sort. Acting in the best interest of his job description, the detective proceeded to question the defendants, and feeling that it would be prudent to protect himself, he initiated a search, which led to the seizure of two firearms from the defendants. The exclusionary rule removes items from evidence that are illegally seized. If the detective had initiated a frisk that involved more than patting down the outer portions of the garments of the defendants, there would be reason to exclude the firearms, but since the detective did not reach inside of the garments until he felt what he believed to be a pistol on the defendants, the proper method of a warranted search and seizure were followed.

Concurring Opinions

Justices Harlan and White offer concurring opinions. Justice Black concurs in judgment, but does not concur where the opinion relies on quotes from Katz v. United States or the concurring opinion in Warden v. Hayden.

Dissenting Opinions

Justice Douglas offers the dissenting opinion of the court, citing the fact that no connection can be made by a reasonable person to conduct a reasonable search for weapons on suspects who were merely loitering in front of a property. He states that a magistrate would not have issued a warrant for a search based on the lack of probable cause stated by the detective, in which he cited the facts which led him to believe that the suspects might be armed, thus making him fear for his life. Justice Douglas offers text from Henry v. United States, 361 U.S. 98, 100-102, in which it is stated that a "strong reason to suspect" was needed in order to establish probable cause. It is his belief that the level of probable cause was not established when the detective initiated a search of the defendants, and subsequently seized firearms.

Holding of the Court

The technique of stopping and frisking suspects who peace officers believes might be potentially dangerous is within Constitutional boundaries, and does not violate any portion of the Fourth Amendment. Probable cause is established through the actions of the suspects, and is deemed worthy of a search if there is reasonable suspicion that they are a threat to the personal safety of the officers.

Friday, May 13, 2005

 

Midnight run

The illegal immigrant who killed Detective Donald Young (Denver PD) fled to Mexico after the shooting. Rep. Tom Tancredo slams the policy of not being able to detain illegal immigrants and send them back over the border, even if they've been pulled over multiple times and cited, as in the case of Raul Garcia-Gomez, who shot Det. Young.

 

Malkin stands up for LEO's

Michelle Malkin points out that LEO's (law enforcement officers) nationwide can barely do their jobs any longer without feeling pressure from the citizens they're protecting and the politicians they work for.

Thursday, May 12, 2005

 

See Jack run, see Jack get shot

If you decide it's time to get into a high-speed chase, make sure you don't end up in Long Beach PD's jurisdiction, or else you're in for a world of hurt.
Police shot and killed a stolen-car suspect after an erratic, 100-mph-plus chase that began and ended in Long Beach.

The suspect was hospitalized after the chase ended in the parking lot of a fast food restaurant near Redondo Avenue and Anaheim Street about 5:45 p.m., Sgt. Paul Lebaron of the Long Beach Police Department said.

The chase began at 5:04 p.m. at Lemon Avenue and 20th Street when a check of the car's license plates revealed it was stolen during a home invasion robbery, Lebaron said.

Thursday, May 05, 2005

 

How PC killed the LAPD

Jan Golab from The American Enterprise has a great long-term study about how political correctness has killed the LAPD.
Los Angeles County averages 1,000 murders every year, two thirds of them carried out by gangs. Most of the victims never make the papers (though every charge of "racial profiling" by an ACLU attorney gets headlines). After the Rampart scandal, L.A.'s anti-gang units were disbanded, leaving the gang-directed narcotics trade virtually unpoliced. During the year that followed, crime increased 10 percent, and the murder rate rose 25 percent, while arrests dropped 25 percent. The best cops fled to jobs at more supportive departments and communities.

By 2001, the LAPD was 884 officers short of full strength. Half the cops on the street suddenly had less than five years experience. The remaining veterans continued to leave in droves; at some divisions, 40 percent of the officers were applying for jobs at other departments. The attrition rate was double the hiring rate. Special units were disbanded or cannibalized just to keep officers on the street.

Monday, May 02, 2005

 

You Can Run, But You Can't Hide

Everyone seems to be having problems finding this article, which is simply fascinating in nature. I decided to post the entire text, as written by Sara J. Berman-Barrett, due to the fact that it makes for worthy cites and compelling coffee talk.

While patrolling a "high-crime" district in Chicago, two police officers saw a man take off running when he spotted their patrol car. The police chased and caught him, patted him down and found an illegal weapon. At his trial, the man -- Wardlow by name -- asked the court to keep the weapon out of evidence, arguing that the chase and pat down were illegal. Wardlow argued that the police had no constitutional basis to believe that he might be engaged in criminal activity. The trial court refused Wardlow's request, and the case ultimately reached the United States Supreme Court.

On January 12, 2000, the Court ruled that the police acted constitutionally and that the trial court was correct in allowing the weapon into evidence. (Illinois v. Wardlow, http://caselaw.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=98-1036.)

What does the Wardlow case teach us? Basically, it confirms what most of us already suspect -- when it comes to the police you can run, but you can't hide. But if this rule is so simple, why did it take a U.S. Supreme Court case to set us right? Let's take a closer look at the law of search and seizure, and why this case makes an important contribution to it.

The Fourth Amendment to the Constitution requires that to make a valid search, the police must first have probable cause to believe that contraband or other evidence of a crime will be uncovered. Probable cause has no fixed definition. In essence, it means that there is adequate objective information to form a belief that it is more likely than not that a crime has occurred or is occurring and that the suspect is involved. The police are supposed to obtain a search warrant -- written permission from a judge -- before making a search. However, there are exceptions, such as when circumstances don't allow adequate time to get a warrant.

In the Wardlow case, there was no search in the classic sense. Rather, the officers conducted what's known as a "stop and frisk." In a case decided over 30 years ago, the Supreme Court ruled that the police may:
If the police discover evidence of a crime in the course of conducting the frisk, that evidence can be used in a criminal trial only if the police can demonstrate "reasonable suspicion" for the initial stop. But what is reasonable suspicion? As with probable cause, the definition varies from case to case. Reasonable suspicion requires less certainty than probable cause but more than a mere hunch. All we really know for sure is that the police must base their suspicion on facts that can be articulated and not on mere intuition. In Wardlow, the articulated facts were:
These facts, said the Court, were enough to justify the stop (actually, the chase) under the reasonable suspicion standard, so the frisk was therefore legal.

Suppose Wardlow had stood his ground. Even though it was a high crime area, previous cases have held that the police cannot use that one fact to justify a stop and frisk. It was only because Wardlow took flight that the police succeeded in proving reasonable suspicion.

So what's the lesson for you the reader? If you're in a high-crime neighborhood and don't want to talk to police you see headed your way, stay put and tell them you don't want to talk to them -- even though you shouldn't be too surprised if you're harassed or searched anyway if you happen to fit a profile. If you run away -- for whatever reason -- you are providing them with all the justification they need to chase, stop and frisk you. Is this news? To most of you it won't be -- but now, at least, you know that the Supreme Court agrees with you.

 

Case Brief: United States v. Leon

Here's another case brief that should make the lives of law school students and CJ students a whole lot easier. Please do not copy this verbatim. Instead, use it as reference for writing your own case brief. Sometimes the issues of older cases are hard to grasp compared to the varied legal issues surrounding the cases we work on today, which is the only reason I post my own briefs.

Name of the Case

United States v. Leon, 468 U.S. 897 (1984)

Facts of the Case


After receiving a tip from a confidential informant, the Burbank Police Department began to monitor the activities of an Armando Sanchez and Patsy Stewart, of whom the police department were lead to believe were selling substantial quantities of cocaine and methaqualone from their home. The information was backed by the fact that the informant had observed a drug sale by "Patsy" at another residence a few months earlier.

Upon investigation, officers linked two other people, Ricardo Del Castillo, and Alberto Leon, to the sale(s) of illegal narcotics in association with Sanchez and Stewart. After viewing several other people arrive at three residences in which the suspects resided in, as well as automobiles, the Burbank Police officers applied for a search warrant, which was reviewed by several Deputy District Attorneys, and issued by a California Superior Court Judge. A grand jury indicted the defendants and charged them with conspiracy to possess and distribute cocaine and a variety of substantive counts.

Issue

Whether there was a due process violation by an unclear declaration of probable cause.

Court Decision

Reversed

Rationale for the Decision

Justice White wrote for the majority. The issue at hand is whether or not evidence that is seized and does not fall within the exact text of the search warrant can be admitted as evidence in a court of law, or whether it will fall under the exclusionary rule and be barred from evidence. The exclusionary rule states that evidence that is seized in violation of the Fourth and Fifth Amendments, and covered by the Fourteenth Amendment in connection with states rights, cannot be admitted into evidence in a court of law. Therefore, when the case was presented to the Court of Appeals to be reviewed, the Court declared the search warrant lacked probable cause and suppressed portions of the evidence. When the Government responded to the motion for appeal, citing that the Burbank Police officer who wrote the application for the warrant acted in good faith, it was denied. After review, Justice White quoted the cases US v. Chadwick, Johnson v. US, US v. Ventresca, and Aguilar v. Texas, in relation to a search warrant, in which the warrant itself "provides the detached scrutiny of a neutral magistrate, which is a more reliable safeguard [468 U.S. 897, 914] against improper searches than the hurried judgment of a law enforcement officer `engaged in the often competitive enterprise of ferreting out crime,'" United States v. Chadwick, 433 U.S. 1, 9 (1977) (quoting Johnson v. United States, 333 U.S. 10, 14 (1948)), we have expressed a strong preference for warrants and declared that "in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fall." By this declaration, even when the warrant itself does not contain specific facts, or lacks the facts in whole, the prior investigation and statement of likely facts would entail enough probable cause the initiate the search warrant and seize applicable evidence.

Concurring Opinions

Justice Blackmun wrote the concurring opinion. Evidence obtained in good faith by peace officers does not need to be excluded in court of law, so long as the officers act in "reasonable reliance" of what is stated in the search warrant.

Dissenting Opinions

Justice Brennan wrote the dissenting opinion, and Justice Marshall joins. The exclusionary rule is demanded by the Constitution in the Fourth and Fifth Amendments, and applied to the states in the Fourteenth Amendment. By allowing the evidence to be admitted, it charges the court with a violation of due process rights, and examples such as the lack of cause shown by the search warrant should serve as a lesson to future cases, and should make officers do a more thorough job of establishing a case for the search warrant. This decision takes away the need for officers to specify exactly what they are looking for, and dictates the need to only outline, in vague terms, the conditions of the search warrant.

Holding of the Court

A search warrant lacking the proper declaration of probable cause can be initiated, and the evidence seized can be admitted into a court of law.

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