fourth amendment
I’m jealous of the 4th Amendment
Oct 8th
She seems to keep getting smaller shedding weight, while I can’t drop a pound even after a 4-week starvation diet.
Drive away. I dare you.
Sep 24th
Let’s try a little game. I will give you the opening lines of a recent Connecticut Supreme Court decision [pdf] and you tell me (you can do this silently, sitting at your computer) what the outcome is. Ready?
The sole issue in this appeal is whether the Appellate Court properly concluded that the defendant, David Burroughs, was seized within the meaning of article first, §§ 71 and 9,2 of the Connecticut constitution when two uniformed, armed police officers exited their patrol car and approached his vehicle. The state appeals from the Appellate Court’s judgment, claiming that that court improperly reversed the trial court’s determination that the conduct of the officers did not amount to an unconstitutional seizure of the defendant. The state specifically argues that such conduct would not have caused a reasonable person in the defendant’s position to believe that he was not free to leave.
So. Raise your hands if you think the Appellate Court was wrong. Okay. You – the only one with the raised hand, there’s a job waiting for you at the State’s Attorney’s Office of Delusion.
The Court, naturally, finds that the Appellate Court was incorrect and that when two cops approach a stationary car – one from either side – a reasonable individual in that position would feel free to leave.
The car was parked in front of a private residence. At the time the cops got out of their police cruiser and began to approach the vehicle, there was no criminal activity and they had no R & AS. It was only when the approached an open window did they “smell” marijuana and the dance began. So it was essential to determine whether the defendant was “seized” when the cops began to approach his car.
The Court agreed with the State that there was “an insufficient show of authority” before the cops smelled the marijuana to constitute a seizure.
So, in essence, you’re free to go. Try it next time. I dare you.
This argument endorsed by the Court and proposed by the State is also rather troublesome. Consider the knowledgeable defendant who reads the Court’s decision and now knows that he is free to leave when cops approach his car. What is the natural reaction of “a reasonable person”? Drive away. This will lead to several things: cops and prosecutors putting forth the rather (dis)ingenuous argument that the act of driving away was sufficient to create reasonable suspicion and prosecutors relentlessly arguing consciousness of guilt. Of course, we can always argue that the defendant was merely exercising his Constitutional right to drive away, but that and a dollar will get you 50 cents.
Hidden in this reasoning is the disturbing notion of “if you’ve done nothing wrong, you’ve got no reason to run”, implying that anyone who drives off when a cop approaches has something to hide. Will that be enough, in future cases, to establish reasonable suspicion?
Officer: “Well, Mr. Prosecutor, when I approached the car, I was just trying to determine if the man needed help. But as soon as I started to approach, he put his car in gear and took off. In my training and experience, only criminals drive away from the police and based on my years in the force, I knew criminal activity was afoot. Why else would he drive away?”
The Court: “I find probable cause”.
The Supreme Court: “Affirmed”.
Someone please try this. I’m not brave enough.
After all that, we have a poll. Imagine you are legally parked by the side of a road. A police cruiser parks behind you and the officer disembarks and starts walking toward your vehicle. At that point, would you feel free to drive away?
[poll id="24"]
Cops lie and people die
Jul 7th
Grits for Breakfast points us to this important and disturbing story published in the L.A. Times a few days ago. It is a report on the murder of 16-year old Martha Puebla, whose name the police used while fabricating an identification.
They were trying to get her boyfriend for an unrelated murder and during their interrogation of him, they showed him a photo array (already a source of many problems) where they forged a circle around his picture with Martha’s initials and an “identification” beneath it.
To drive home his point, [police officer] Pinner laid down a “six-pack” — an array of mug shots that detectives often show to witnesses or victims of crimes. On it, [suspect] Ledesma’s photo was circled, and the initials “M.P.” were written below it. “Those is the guy that shot my friends boyfriend” was scrawled along the margin, followed by Puebla’s signature.
“I don’t even know a Martha,” Ledesma lied.
Police deceit during investigations and interrogations has long been tolerated (see, e.g. Illinios v. Perkins), but this may be one of those instances of the disconnect between theory and reality. In this case, it lead to Puebla’s death:
The next night, Ledesma reached for a pay phone outside his cell. “Cokester,” he said into the receiver, calling his friend Javier Covarrubias by one of his gang monikers, “do you know the slut that lives there by . . . my house? Her name starts with an M . . . I need her to disappear. She is dropping dimes.”
To the gang, Puebla was a snitch and needed to be dealt with.
“Uh huh, like that,” Ledesma told Covarrubias, using a mix of Spanish and English. “But [keep a] low-pro[file]. ..Stay on your toes, homie. And don’t get caught.”
Of course, this is also a product of the anti-snitching culture that has garnered much attention. But the fact remains that as a result of the deceit on the part of these law enforcement officers, a young girl is dead.
Cases like Illinois above have given cops free reign of the interrogation room – everyone’s heard of good cop, bad cop – and license to lie about almost anything, resulting in false confessions.
While I recognize the arguments supporting lying to suspects during interrogations, there has to be some sort of oversight and limits placed on the extent of permissible deceit. Certainly, endangering the life of someone who is innocent and whom the cops should know would be in danger of losing his/her life as a result of their lie should be outside those limits.
The responsibility of law enforcement is to protect citizens and ensure their safety, not to endanger them while engaged in a tunnel-visioned pursuit of “catching a criminal”.
So what is the line? When is deceit okay, if at all? Should it hinge on waiver of Miranda rights? I’ll expound on those thoughts in a later post.
There’s pretext and then there’s pretext
Jun 22nd
Among the many discussions clogging the bandwith of the local listserve this week was one about the validity of a traffic stop based on the police officer’s observation of an air-freshener hanging from the rear-view mirror of a vehicle. (Yes, I recognize that what’s in the accompanying picture is anything but an air-freshener.)
There’s pretext and then there’s this.
The legislature in its infinite wisdom deemed it worthy to make it a traffic offense to have anything hanging from the rear-view mirror of a motor vehicle. Codified in C.G.S. 14-99f(c):
No article, device, sticker or ornament shall be attached or affixed to or hung on or in any motor vehicle in such a manner or location as to interfere with the operator’s unobstructed view of the highway or to distract the attention of the operator.
The underlying intentions in passing this statute remain shrouded in mystery, yet there should be none about its use by law enforcement as a tool in pulling motorists over.
First of all, the statute doesn’t mention whether the obstruction of the view of the operator is a subjective or objective standard. So, boys and girls, what does that mean? That means if anyone (read: police officers) thinks it is obstructing the view, then it is.
Second, having anything hanging from your rear view mirror is giving cops automatic license to pull you over. Take Mr. Gamache for instance. He had:
“a large cluster of air freshener ornaments hanging from the rearview mirror,” “three and a half to four inches tall and maybe an inch and a half or two inches wide” obstructing “the peripheral vision, especially”
The cop doesn’t pull him over, but follows him for about half a mile, until he pulls into the parking lot of a bar. There, he approaches and “immediately noticed a very strong odor of alcohol and observed that the defendant’s
eyes were glassy and bloodshot.”
Mr. Gamache is placed under arrest for DUI.
This is not just a CT phenomenon. From footnote 2 of the opinion:
The reported cases reflect the wide variety of such objects. United States v. Barragan, 379 F.3d 524 (8th Cir. 2004) (air freshener); United States v. Santiago, 310 F.3d 336 (5th Cir. 2002) (golf ball-sized spherical crystals); United States v. King, 244 F.3d 736 (9th Cir. 2001) (parking placard); Moore v. Winer, 190 F.Sup.2d 804 (D.Md. 2002) (medic alert card); Duffey v. State, 741 So.2d 1192 (Fla. 4th DCA 1999) (dog tags); In re Jose Z., 116 Cal.App.4th 953, 10 Cal.Rptr.3d 842 (2004) (Mardi Gras-type beads); People v. Paxton, 255 Cal.App.2d 62, 62 Cal.Rptr. 770 (1967), overruled on other grounds by People v. Tribble, 4 Cal. 3d 826, 484 P.2d 589, 94 Cal.Rptr. 613 (1974) (St. Christopher medal); Thompson v. State, 399 A.2d 194 (Del. 1979) (graduation tassel); People v. Alvarez, 243 Ill.App.3d 933, 613 N.E.2d 290, 184 Ill. Dec. 263 (1993) (cross
hanging on a chain); People v. Mendoza, 234 Ill.App.3d 826, 599 N.E.2d 1375, 175 Ill. Dec. 361 (1992) (fuzzy dice); Commonwealth v. Murray, 27 Mass.App.Ct. 872, 545 N.E.2d 858 (1989) (garter belt); De La Beckwith v. State, 707 So .2d 547 (Miss. 1997) (Masonic emblem); State v. Harris, 839 S.W.2d 54 (Tenn. 1992) (handcuffs).
Most states, however, require that the item hanging from the rearview mirror cannot materially obstruct the view. CT, on the other hand, requires that the view be unobstructed. There is no materially obstruct requirement. Indeed, in Mr. Gamache’s case,
Officer Solak testified that the air freshener did not obstruct the driver’s view to the front or rear of the vehicle, he could reasonably conclude that the operator’s peripheral vision in the right-hand direction was obstructed. These circumstances provided Officer Solak with, at the very least, reasonable suspicion sufficient to briefly detain the defendant and investigate the suspected violation.
The court then goes on to recognize that these infractions could lead to a vast majority of the motor vehicles on the road being pulled over, just the same as cars going 66 miles per hour.
So, in essence, it acknowledges that this is a pretext, but says that’s okay, because technically it is a violation of a statute.
The advice, then, is to not have anything hanging from your rearview mirror, even if it is a parking permit or a handicapped permit. Because that may potentially somehow perhaps in the eye of maybe one overzealous cop be viewed as obstructing.
I’m all for people driving safely and obviously not while under the influence of drugs and/or alcohol. This, however, gives police the power to pull over just about anybody they choose even when there is no visible indicator of erratic driving.
This is a hunch in sheep’s clothing.
Can a State copyright its statutes?
May 6th
Apparently, Oregon is trying. The story goes thusly: Oregon sent a cease and desist letter to Justia and Public.Resource.Org. They claimed a copyright in the “arrangement and subject matter compilation of Oregon statutory law…” Thus, Oregon is asking these sites to take down the Oregon statutes they make available for free.
Most of the correspondence is available for view here. As Justia and P.R.O point out in this letter, the Oregon website is horribly W3C non-compliant (there are over 503,000 HTML errors!), is not “section 508” compliant, doesn’t use CSS (!!!) and even has a robots.txt file that blocks search engines!
How is that “accessible to the public”? The site lacks functionality and may not be accessible by all browsers and all operating systems.
So, what if a State decides to either charge for access to its statutes or makes it publicly available on a crappy website where not all can view the pages. Do we have a legitimate notice problem? I know we are all presumed to know the law, but if the State is charging for access to the actual text of the Statutes, or makes them difficult to access, what are the chances of successfully defending a prosecution on due process grounds?
Also, what the hell is wrong with Oregon? Why, in this day and age, would you be so stubborn and so stupid? What is really the point of “protecting” the Code? I don’t understand what they’re trying to accomplish, other than look foolish.
Anyway, anyone see a potential notice problem here?
Pop quiz: Reasonable expectation of privacy
May 5th
Do you have a reasonable expectation of privacy in your car, which you left unlocked in the parking lot of your place of business? Would police require a warrant to open the doors to your car and look inside? Assume nothing in plain sight.
Texas polygamist raid based on defective warrant?
Apr 9th
Grits is all over the story that the search warrant and accompanying affidavit used to enter and search the polygamist compound headed by the now convicted Warren Jeffs may be illegal.
For starters, the initial warrant named the wrong person. Dale Barlow, the 50-year old man who an anonymous phone call accused of marrying and assaulting an underage girl. Barlow is actually on probation living in Arizona, says he’s never met the girl in question, and has not been arrested.
Indeed, they can’t even find the 16 year old girl who’s phone call set off the whole chain of events. None of the information on which authorities based the raid appears to have panned out. The error regarding Barlow in the warrant could easily wind up creating a “fruit of the poisonous tree” situation where none of the evidence from the compound searches can be used in court.
So if the first warrant targeted the wrong person, and the second, expanded warrant was based on observations from the first, I don’t see how these warrants stand up in court, though maybe some attorneys in the crowd have additional thoughts. Several criminal defense lawyers interviewed on CNN also questioned the breathtaking scope of the warrants.
As a commenter correctly points out, the exact scope of the warrants will need to be seen to determine if they are indeed illegal. Grits also raises another interesting issue about whether some of the laws the sect has been accused of violating were passed specifically as a challenge to their religious beliefs.
This Texas mess just got a lot more interesting.
Eyewitness reform bill fails; DNA on arrest bill passes
Mar 25th
Just to show you how skewed the priorities of legislators are, let us compare two bills side by side.
On the left, we have the eyewitness id reform bill and on the right, the “collect DNA from the innocent” bill.
One is clearly needed, the other could be a significant violation of due process. (Yes, I do know that some states have held such DNA collection to not be a violation of the 4th. I disagree with them.)
As EyeID points out, the bill, while missing some legs, would have been a significant step in the right process. Alas, it was not to be. However, the esteemed legislators have deemed it worthy to collect DNA samples from people arrested of crimes. The argument behind this piece of legislation is that collection of DNA at the time of arrest would permit law enforcement to solve more crimes…because, you know, if you’re arrested, then you’ve probably committed a crime in the past.
Another rationale put forth by the State [pdf]- and I do love this – is that collection of DNA at the time of arrest would not only serve to solve unsolved crimes, but also prevent wrongful convictions.
The irony here, lest it be lost on you, is that the very same State opposed [pdf] the eyewitness ID reform bill, when DNA exonerations have shown that in 75% of wrongful conviction cases faulty IDs have been the culprit. Apparently, in eyewitness ID reform, there is a “pilot program” and the “jury is still out” on whether sequential or simultaneous lineups are better. Yes, you read that right. Apparently, no one knows how to use Google. There is some heavy citing of the Mecklenburg Report, which permits law enforcement to continually bury its head in the sand. The State’s testimony then quotes Gary Wells out of context (I’ve read about this being done in other states too) and ignores his response to this misquoting (I’m going on memory here – I’m sure the guys at EyeID know what I’m talking about – or if I’m imagining this whole thing, I’ll take it down).
The CT Public Defender’s response to the EyeID bill is here and to the DNA bill here. All the testimony submitted on these bills is available here.
On a positive note, the committee did pass the probation reform bill, which I discussed previously.
All the bills reported out of committee by last night’s deadline are here. For example, here‘s a bill “encouraging” bar owners to install breath alcohol testing devices. Here‘s a bill making it illegal to hang on a noose on public property, or private property without the consent of the owner.
When an arrest is illegal, but yet lawful and the search… Wow.
Jan 14th
Earlier today, I was perusing the transcript of oral argument in the Supreme Court in the matter of Virginia v. Moore. Mr. Moore’s case was argued by Tom Goldstein, of SCOTUSblog. I’ll let his co-blogger give you the skinny:
If the hearing had been confined to the two core arguments of opposing counsel, the discussion would have been simple. The state of Virginia, backed by the federal government, argued for a starkly simple rule: if police have a reason to believe a crime has been committed — that is, they have probable cause — they may make an arrest, even if that is illegal under state law. And, having made the arrest, they may search for evidence of crime and that will not violate the federal Fourth Amendment. Defense counsel for David Lee Moore argued for a rule of equal simplicity: if the arrest is illegal under state law or otherwise, no search may follow, and any evidence found in a search that occurs anyway is barred by the Fourth Amendment. The Court, in reaction, seemed at times to lean each way, but mostly seemed to be diverted by difficult theoretical complications.
Interesting enough. But that’s not what made my day. This did:
JUSTICE SCALIA: Mr. McCullough, the proposition that you’re arguing, does it apply at the Federal level as well? Suppose — suppose I think that my neighbor next door is growing marijuana and I have probable cause to believe that, all right?
So I go in and search his house; and sure enough, there is marijuana. And I bring it to the police’s attention, and they eventually arrest him. Is that lawful search?
MR. McCULLOUGH: If there is State action –
JUSTICE SCALIA: I’m a State actor, I guess. You know –
(Laughter.)
MR. McCULLOUGH: If you have State actors –
JUSTICE SCALIA: You know, a Supreme Court Justice should not be –
(Laughter.)
JUSTICE SCALIA: — should not be living next door to somebody growing marijuana. It doesn’t seem right.
MR. McCULLOUGH: That’s not a smart neighbor.
(Laughter.)
MR. McCULLOUGH: If you have State action and you enter into someone’s home, then the Constitution affords a heightened level of protection. But –
JUSTICE SCALIA: Don’t dance around. Is it– is it rendered an unreasonable search by the fact that I’m not a law enforcement officer at all?
MR. McCULLOUGH: I don’t think the fact of — no. The fact that –
JUSTICE SCALIA: So any Federal employee can go crashing around conducting searches and seizures?
MR. McCULLOUGH: So long –
JUSTICE SCALIA: So long as he has probable cause?
MR. McCULLOUGH: That’s correct.
JUSTICE SCALIA: That’s fantastic.
(Laughter.)
JUSTICE SCALIA: Do you really think that?
MR. McCULLOUGH: I think if there is State action, it doesn’t matter that you’re wearing a badge or that you’ve gone through the police academy.
JUSTICE SCALIA: Or that you are an administrative law judge at the, you know, Bureau of Customs? It doesn’t matter?
MR. McCULLOUGH: I think that’s right. That if you have — if the State –
JUSTICE SCALIA: What about a janitor? You’re a janitor, a federally employed janitor.
MR. McCULLOUGH: Your Honor –
JUSTICE SCALIA: His neighbor is growing marijuana, and he’s just as offended as a Supreme Court Justice would be. Can he conduct a search?
MR. McCULLOUGH: I think if he’s doing it on behalf of the State, the answer is yes.
JUSTICE SCALIA: Wow.
There’s not much I agree with Justice Scalia on, but “wow” is right.
The secret police
Dec 22nd
When do police officers have the power to carry a weapon, patrol the streets and make arrests, but yet cannot be questioned for their actions? When they’re University Police. Back in May, a 16-yr old boy was arrested for riding his bike on a sidewalk. He was then charged with breach of peace and briefly held in jail.
When his public defender sought disciplinary records for the officers making the arrest, she was told that the records were private and did not have to be disclosed.
While some elite liberal arts schools are nestled amid woods and cow pastures, Yale occupies the heart of a city racked by poverty and crime. Its police department was founded in 1894 when two New Haven cops, assigned to campus, resigned and became special constables for Yale. Today the department has 80sworn officers — roughly a fifth the size of New Haven’s. Its officers have a visible presence downtown and members of the bike patrol are frequently seen, it turns out, pedaling on city sidewalks.
As a private police force, Yale argues, it is exempt from open-records laws. In 1992, New Haven formally relinquished any oversight it may have had. Today, Yale hires, fires, promotes and disciplines its own officers and neither city nor state provides retirement benefits.
Despite that independence in hiring, Yale Police is almost identical to New Haven police in all other aspects. They drive similar cars, wear similar uniforms, have the power to make felony arrests all over the State, receive similar training, follow the same state regulations and even take the same oath.
Yet, they are private and their records are not subject to release. Similar challenges have occurred in other parts of the country, almost always resulting in no success:
The courts, so far, have taken a narrower view. In Georgia, Virginia and Massachusetts, attempts to gain access to campus crime records have failed, but legislatures in all three states have since introduced sunshine laws to bring more transparency.
By hiding behind the shield of student privacy, the schools are jeopardizing public safety, says S. Daniel Carter, vice president of Security on Campus, a national watchdog group. “Our concern lies with making sure communities are informed about crime and what’s being done to protect them,” he said.
This matter has been appealed to the FOI Commission. The mighty power of Yale is being tested.
¡Ay Dios Mio!
Nov 14th
Would you believe it? Two reversals in two weeks! Two! The Appellate Court yesterday reversed a conviction on the grounds that a Motion to Suppress should have been granted on an issue, apparently, of first impression in Connecticut.
We conclude that the defendant was unlawfully detained, that his consent to search the vehicle was tainted by that illegal detention and that the state failed to purge the taint of the illegal detention.
The defendant was stopped for illegal lane changes. After obtaining his license and determining that there were no outstanding warrants for him, the cop wrote him a ticket and then started inquiring about any other illegal activity. The Court was asked to determine whether the extension of the stop was supported by any reasonable suspicion supported by articulable facts that a crime has been or is being committed.
The Court held that the extension of the stop was not supported by “R & AS” and that his subsequent consent to search the car was not voluntary.
Reversed! (Of course, as is par for the course, here’s the dissent.)
Here’s some context for the title:
Warrants released
Oct 24th
For those of you interested, the search warrants in the Cheshire case have been made public. The Bristol Press (of all things) has made them available on their website here.
There’s really nothing remarkable in any of them (and certainly not anything new), except for one bit that I found a little laughable.
The police sought permission to examine Komisarjevsky’s family laptop because it is their experience that
the world wide web contains web sites that include information that provide detailed directions on how to restrain people, how to conceal, destruct and alter evidence as well as detailed accounts of criminal activities such as burglary, kidnapping, robbery and arson.
It certainly is curious that they didn’t include murder or even felony murder.
The day the law almost died: the David Pollitt story
Oct 11th
Connecticut was fast becoming a scary place to live. As yesterday’s post shows, residents of a small section of Southbury, a suburban town in Connecticut, were becoming increasingly concerned and paranoid with the news that one of their own was about to take in her brother – a convicted sexual offender – upon his release from prison. Mr. David Pollitt is scheduled to be released tomorrow after serving the full length of his sentence and will embark on a torturous journey of five years’ probation.
Residents of that nook of Southbury, rightly concerned and wrongly outraged, embarked on a full-press lobbying of the Governor to keep this from happening. Scarily, she bit. This morning, she wrote a letter to Attorney General Blumenthal asking him if Mr. Pollitt could be confined beyond his legal discharge date.
While recognizing that Mr. Pollitt has served his sentence and that his release and probation are statutorily governed, we also have a duty to ensure that we have left no stone unturned in safeguarding the safety and welfare of the Southbury residents. Numerous children and elderly residents reside in the Fox Run Drive neighborhood. I am asking that you explore immediately the possibility of filing a motion in Superior Court seeking the delay of Mr. Pollitt’s release. This additional time will allow all interested parties to carefully review all possible safety measures that may be implemented to protect the Southbury residents.
There are several, several problems with this request that I intended to outline in full detail, but in light of recent happenings, will only mention briefly:
First, this exhibits a blatant disregard for law in the State of Connecticut and flouts the Constitutions of both the Constitution State and the United States of America. I cannot imagine that Gov. Rell is not adequately advised as to the illegality of her request.
Second, assuming that she is advised as to the illegality of her request, this can be nothing but blatant political pandering. Which is abhorrable abhorrent. You do not play with people’s liberty to further your political goal.
Third, she makes this request of Attorney General Blumenthal, who has zero standing to request changes in the conditions of probation. An appropriate request would have been one made to Chief State’s Attorney Kevin Kane, who I suspect might not have indulged her to the extent the AG did by filing this motion.
Fourth, her request indicates that the State agencies have not had time to evaluate the impact of his release into the community and make adequate preparations to safeguard the community. What, 24 years wasn’t enough to get their act together? [By all accounts, let it be noted, probation has done an excellent job of going out to the community and spending a significant amount of time attempting to assuage the fears of the residents. Paranoia, however, cannot be easily reassured.]
Finally, a half-way house or an in-patient facility is not an alternative form of probation, but an alternative form of incarceration. Mr. Pollitt has fully satisfied his period of incarceration and any such admission to a half-way house or in-patient facility would be the equivalent of keeping him in a correctional facility.
So, as you might know by now, AG Blumenthal did file a motion in New London Superior Court this afternoon, which was, by all accounts, summarily dismissed by Judge Susan Handy. She may not realize it (she probably does), but she has single-handedly saved the rule of law in the “Constitution” state.
Judge Susan Handy told Attorney General Richard Blumenthal that he has no standing to intervene in the case. Blumenthal said he was acting on behalf of Gov. M. Jodi Rell.
[She] said 54-year-old David Pollitt has served his sentence and is entitled to his freedom.
If this motion were granted (or if it is granted on appeal – if they appeal), it will mark the end of the rule of law in Connecticut. What it will signal is that the State has the power to confine individuals beyond their legal sentences for specious reasons.
Gov. Rell has just issued a statement in light of Judge Handy’s ruling:
“I am very disappointed that this reasonable and prudent request was rejected,” she said. “Public safety is our top priority — I empathize completely with the residents of the Fox Run Drive community [in Southbury], and despite this decision I want them to know that everything possible is being done to safeguard their homes and families.
Forgive me if I scoff. I’m sure every community in the State has received such assurances when sex offenders are released to them on a weekly basis.
CT rejects “automatic standing” rule
Jul 24th
In an opinion released last week [State v. Davis], the CT Supreme Court rejected the automatic standing rule. The automatic standing rule says that an individual has standing to challenge the Constitutionality of a search, even if he does not have a reasonable expectation of privacy in the subject of the search, if he was legitimately on the searched premises or was charged with an offense of which possession of the seized item is an element.
SCOTUS rejected the “automatic standing” rule in US v. Salvucci, but the defendant here was asking the CT court to hold that the state constitution afforded greater protection than the Federal one.
The court then engages in a lengthy Geisler analysis and concludes that “effects” and “possessions” are one and the same; no dicta or holding of the court has suggested adoption of the “automatic standing” doctrine; Federal precedent clearly favors the state; sister state decisions also favor the state; no historical considerations and finally, that policy and sociological considerations favor the state (!!).
So the bottom line is that the person challenging the search has to have a reasonable expectation of privacy in the subject of the search. The Courant article provides some examples:
Under the stricter rule adopted by the state Supreme Court, the owner of a motor vehicle could challenge the validity of a search of the vehicle, while his or her passengers could not.
If you were a guest at someone’s home, the homeowners could challenge a search of the premises and seizure of items whereas you, as a guest and not an inhabitant of the home, would not have standing to challenge the seizure of the briefcase or bong you brought along with you.
I guess to most of you, this is no big deal, but this was an undecided question for a while here in CT and now we’ll have to stick to the narrow Federal standard. Boo.
“Banned words” trial starts/ends (?) with mistrial
Jul 13th
Before the trial began, the Nebraska judge that earlier banned [previous coverage] the use of the words “rape”, “victim”, etc… declared a mistrial stating that all the publicity surrounding his decision would make it difficult for jurors to be untainted.
In a written explanation of his ruling, Cheuvront said Bowen and her friends drummed up pretrial publicity that tainted potential jurors.
They signed a petition decrying the word ban and posted it on a Web site that encouraged people to gather in front of the courthouse Monday to protest, Cheuvront wrote. Monday was the first day of jury selection; another rally occurred Wednesday.
“The inescapable conclusion from the petition promoting the rally is that Ms. Bowen and her friends hoped to intimidate this court and interfere with the selection of a fair and impartial jury,” Cheuvront wrote in his order released Thursday afternoon.
Bowen said she did not intend to taint the jury and wants closure in the matter, but chose to speak out after Cheuvront’s order because “silencing rape victims is something that has been done for far too long.”
Cheuvront also wrote the trial would be continued, with a date to be set later, and that the court may move the trial to a different county.
Once this story hit the national headlines, it was inevitable that something like this would happen. Interesting to note, however, is that this would have been the second trial, the first having ended up with a hung jury. The judge had banned the use of those words in the first trial as well. Was there any outrage then?
My thoughts on this are pretty well documented in my previous post.
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