Invalid "Terry frisk"

[CdwJava]

Ultimately the state has to prove this at trial. The defense has a couple of options available to try and prevent it from ever getting to trial. Given the statements at your arraignment (or whatever that first hearing was) a prosecutor may decide not to go through with this. But, you will - unfortunately - have to have an attorney deal with this matter on your behalf.

- Carl

 

[Joshuaace2]

"Besides, how can you argue with the logic. You had the marijuana in your pocket ... if arrested for DUI how would they NOT have discovered it? It is reasonable to assume they would search you after they arrested you and then they would discover it. The defense can certainly argue that it is not inevitable, but it would be a long shot"

Carl, this is what you said. Was it the dicovery of the mj upon a lawful arrest that was inevitable?

Or, was it the arrest after the unlawful discovery of the mj that was inevitable?

Do you think the arrest was in no part related to his unlawfully acquired knowledge that I had mj in my pocket?

 

[CdwJava]

Carl, this is what you said. Was it the dicovery of the mj upon a lawful arrest that was inevitable?

Yes. If you were arrested for DUI, the marijuana would almost certainly have been discovered unless the officers were completely derelict in their duty.

Do you think the arrest was in no part related to his unlawfully acquired knowledge that I had mj in my pocket?

I do not know. Without reading the report of his evaluations on your FSTs, I cannot make that leap as to whether he fudged otherwise inclusive results into an arrest because he knew you possessed marijuana or not. It is certainly a valid argument for the defense to make, however. Though, if the FSTs and/or vehicle or officer video showed you were notably impaired, then the argument would likely go out the window.

- Carl

 

[Joshuaace2]

Performed three FST's.

1) 9 heel tot toe baby steps turn 180 degrees, make the same 9 steps back.

When the officer asked me to do this test, I responded "I can't sir, on step five I will walk into your car". He promptly got in and moved his car.

2) Horizontal gaze nystagmus (HGN), officer testified, blah blah blah.

received 2 citations that night. 1 for DUI, 1 for posession. ticket 1 says I was S/B with blue eyes, ticket 2 says I was N/B with brown eyes.

If I was traveling 2 different directions at the same time, with two different eye colors, someone was impaired, and it wasn't me. (btw both my eyes are blue)

3) Stand on one foot, other foot six inches off the ground and count 1001, 1002, 1003

Performed this test to one thousand and ten, two different times.

Cop said I failed this test because I put my foot down before I was instructed.

He testified at 1010 I looked him straight in the eye, shrugged, and put my foot down.

He didn't say anything about swaying, swerving, leaning, slurred speech, nothing like that.

You also said "an independent ongoing investigation" is not the standard you're familiar with for proving inevitable discovery. Then what is the standard you're familiar with?

Thanks,

Roger

 

[dave33]

Joshuaace2, Seems like at this point you will have to see if in your state the blood test you took will be able to determine the time that you used. Sounds like the officer testified that you were clearly impaired. Since the judge is letting everything in, you have no other chance. Although it also sounds like the judge has already made up his mind. I hope on appeal you have more luck with the supp. hearing. Are you planning on going that route? I understand what you are saying about the tickets, but from the decisions so far I would not count on that for much. goodluck.

 

[Joshuaace2]

Funny thing about that videotape. I moved to discover that since the officers'
report stated in fact that a videotape existed. One day before trial the SA informed me that infact there was no video.

Something tells me if there would have been video that actually showed me in an impaired state, they would have shown it. Since it didn't show me in an impaired state, "poof" gone.

The phlebotomist that drew my blood, when asked what he rembered about the defendant, he testified:

"He was the most sober, coherent, person I've ever drawn blood from as the result of a DUI stop. I saw no signs of impairment whatsoever". He also testified he had drawn blood under these circumstances "hundreds of times".

Again I will ask, Can anyone cite a case where the Governments "proof" of inevitable discovery was the testimony of the officer who committed the illegal search in the first place? Remember this is a stop and frisk.

Thanks,

Roger

 

[dave33]

Joshuaace2, I can feel your frustration and understand it completely. The whole video tape incident seems like more of the same injustice. Did your lawyer argue that they were suppresing exculpatory evidence? Has this trial already come to a conclusion? I think that this whole case is unjust. The police have become very efficient at making their case. I am still convinced the marijuana should have been tossed. The whole case is based on the officers word that you were impaired and if you truly were not than you can see how clever they are at putting this all together.I sincerely wish you goodluck.

 

[CdwJava]

You also said "an independent ongoing investigation" is not the standard you're familiar with for proving inevitable discovery. Then what is the standard you're familiar with?

Something to the effect of whether in the course of the investigation there is compelling reason to believe that the evidence would have been discovered.

The doctrine of inevitable discovery provides that illegally seized evidence may be used where it would have been discovered by the police through lawful means. (People v. Robles (2000) 23 Cal.4th 789, 800.) "The purpose of the inevitable discovery rule is to block setting aside convictions that would have been obtained without police misconduct." (Nix v. Williams (1984) 467 U.S. 431, 444, fn. 4 [81 L.Ed.2d 377, 387, fn. 4].)

Ultimately the state will have to prove its case. If the FSTs are weak or inconclusive, if the state cannot produce a videotape, if the phlebotomist testified at trial the way you stated, and if there is not a compelling case for impairment, then the jury will almost certainly find there to be reasonable doubt for the DUI. But, that's not a given, it's just what I would think likely.

However, I am confused ... You cite some testimony that was already presented? Does that mean you have had your trial? If so, what was the verdict?

Your state may be different than mine, but in my state we do not have a preliminary hearing for misdemeanors, so either this was a prelim. or it was something else. What was this hearing?

- Carl

 

[Joshuaace2]

Carl,

In "Nix" he sought to suppress the body of a little girl, he led the police to the body after they unlawfully solicited incriminating statements from him.

A search of the area where the girls body was found was being conducted with the aid of 200 volunteers, and had been initiated PRIOR to Nix's incriminating statements. (independant, ongoing)

"For inevitable discovery to be demonstrable, it must be the case that the evidence would have been acquired lawfully through an independent source absent the government misconduct..... Proof of inevitable discovery involves no speculative elements but focuses on demonstrated historical facts capable of ready verification or impeachment and does not require a departure from the usual burden of proof at suppression hearins". United States v. Eng, 997 F. 2d 987, 990 (2d Cir. 1993)

Note the independant source absent the government misconduct part, as well as the no speculative elements part.

There was no independant source. One would have to speculate to say the arrest would have occured without the illegal search.

"A ruling admitting evidence in a criminal trial has the necessary effect of legitimizing the conduct which produced the evidence, while an application of the exclusionary rule withholds the constitutional imprimatur. (Terry v. Ohio 392 U.S. 3)

So the judge legitimized the officers policy of "I search everyone I come in contact with".

How could anyone reasonably conclude the officers finding of the mj was not a contributing factor in his decision to arrest? I say it was THE REASON.

Carl, again I thank you.

Roger

 

[CdwJava]

Carl,

In "Nix" he sought to suppress the body of a little girl, he led the police to the body after they unlawfully solicited incriminating statements from him.

A search of the area where the girls body was found was being conducted with the aid of 200 volunteers, and had been initiated PRIOR to Nix's incriminating statements. (independant, ongoing)

"For inevitable discovery to be demonstrable, it must be the case that the evidence would have been acquired lawfully through an independent source absent the government misconduct..... Proof of inevitable discovery involves no speculative elements but focuses on demonstrated historical facts capable of ready verification or impeachment and does not require a departure from the usual burden of proof at suppression hearins". United States v. Eng, 997 F. 2d 987, 990 (2d Cir. 1993)

Different court ... I'm in the 9th Circuit, the holding here would seem to be a tad different in the language. But, I do not think they mean "independent" as in an outside source, but "independent" in that it would result from a line of inquiry not directly related to the finding of the marijuana. Finding marijuana on you no more proves DUI on marijuana than having a bottle of beer in the back seat proves DUI on alcohol.

There was no independant source. One would have to speculate to say the arrest would have occured without the illegal search.

I do not think so. Provided the officer can sufficiently articulate the probable cause for the arrest then that is an offense independent of the possession of the marijuana. Since it seems he was already intent on evaluating you for DUI as he got you out of the car, it does not seem that this decision was provoked solely by the discovery of the marijuana.

However, if your attorney feels that in your state this is an acceptable line of inquiry, go for it.

So the judge legitimized the officers policy of "I search everyone I come in contact with".

And he should not have done so. The search was outside the scope of Terry and cannot be legally justified by it being common practice or even policy. That is clear case law.

But, inevitable can still be argued. In this case, it was apparently accepted by the court right away. You can appeal.

How could anyone reasonably conclude the officers finding of the mj was not a contributing factor in his decision to arrest? I say it was THE REASON.

The state can say otherwise. Since we do not have mind reading machines, a decision can only be based upon the objective facts that are presented. if the evidence shows sufficient probable cause for an arrest for DUI (even if there is later insufficient proof to convict you of the crime) then it can be argued that the marijuana would have been found pursuant to that arrest - thus, inevitable discovery.

So, I again ask, what kind of hearing was this where all these people said these things?

- Carl

 

[Joshuaace2]

Nix v Williams, the body of the little girl wasn't included because he lead the police to it, it was included because of the 200 people searching the area the body was found. (independant, ongoing)

Why would you interpret "independant source" as anything other than an independant source. We would have to speculate to determine if he would have ultimately made the arrest. And since we don't have "mind reading machines". Speculating on how this investigation would have turned out is all anyone can do.

Wouldn't finding the mj, lead one to believe, if it's in his pocket, it's in his blood?

Was he intent on evaluating me for DUI when he got me out of the car; Or was he intent on searching me in the hope of finding some sort of evidence?

"But, inevitable can still be argued. In this case, it was apparently accepted by the court right away". Damn right it was accepted right away, it was the judge's argument. I never once heard the prosecutor utter the words inevitable discovery, or anything remotely like that.

Btw, The testimony was received at a suppression hearing, and a jury trial.

With the bloodtest in, they deliberated about 3 seconds before finding me guilty.

Have you personally ever heard of a case where the "Terry frisk" was unlawful, and the evidence was permitted under this exception?

Thank you Carl,

Roger

 

[CavemanLawyer]

Why would you interpret "independant source" as anything other than an independant source. We would have to speculate to determine if he would have ultimately made the arrest. And since we don't have "mind reading machines". Speculating on how this investigation would have turned out is all anyone can do.

The case that you cited explains what "independent source" means.

viewing affairs as they existed at the instant before the unlawful search, what would have happened had the unlawful search never occurred.

Independent source simply means probable cause or other exception to search the item in question that is obtained independently from the unlawful actions of the officer. The question seems very simple in your case. Just assume that there was no marihuana in your pocket at all. Throughout the entire investigation did the officer ultimately acquire probable cause to arrest you for dui? The question absolutely is NOT whether the finding of the marihuana contributed to the arrest. Obviously it did. The question is whether absent the finding of the marihuana you still would have been arrested. I don't think any of us can really say without hearing all of the evidence. The judge obviously felt there was PC "independently" acquired.

It also is not a matter of speculating or trying to mind read, it is a matter of proof for the prosecution. The inevitable discovery exception places the burden on the State to prove by a preponderance that the item would have been discovered anyway. The judge felt they met that burden. You can always appeal error at trial and you can always appeal the denial of a motion to suppress. So... see what the appellate court(s) think about it.

 

[CdwJava]

Sort of another way of restating what I think I have been saying all along.

Thanks.

- Carl

 

[Joshuaace2]

Still challenging anyone to cite a case where the governments "proof" of inevitable discovery was testimony of the officer who performed the illegal search.

Caveman, again you quote "Nix v Williams".

"viewing affairs as they existed at the instant before the unlawful search, what would have happened had the unlawful search never occurred."

In that case there was a 200 person search party performing a grid search on the area where the body was found.

To view the affairs as they existed in that case, there was a grid search ALREADY being conducted in that area by 200 people. Hence, the body would have been discovered, by the search party. That is a historical fact capable of ready verification or impeachment.

In this case there is no historical fact capable of ready verification or impeachment. Only the officers conclusions, based on his observations, that were tainted by his unlawful discovery.

Now, maybe, just maybe, if they had the videotape the officer stated existed, that could be a historical fact. It also might have been exculpatory.

Independant- Not dependant; not subject to control, restriction, modification, or limitation from a given outside source (Blacks Law Dictionary)

If the evidence to be introduced can be traced to a source independant of the originally illegally obtained fruits of interogation or arrest, it is admissable. (Wong Sun v. U.S. 371)

As I have stated before, the proscutor never even argued inevitable discovery.

inevitable discovery is not an exception to be invoked casually, and if it is to be prevented from swallowing the Fourth Amendment and the exclusionary rule, courts must take care to hold the government to its burden of proofUnited States v. Jones, 72F.3d1324, 1334(7thCir. 1995)

The Cherry court stated that, before applying inevitable discovery: The prosecution must demonstrate (1) a reasonable probability that the evidence would have been discovered by lawful means but for the police misconduct, (2) that the leads making the discovery inevitable were possessed by the police at the time of the misconduct, and (3) that the police also prior to the misconduct were actively pursuing this alternate line of investigation...United States v. Thomas, 955 F.2d 207, 201 (4th Cir. 1992)

Note the part about the alternate line of investigation.

Again, Ithank you guys for your input.

Roger

 

[CdwJava]

I believe it has been explained to you. It is not required that another officer be conducting a separate investigation, only that an alternate line of inquiry would have likely resulted in the inevitable discovery.

If a court believes that the officer had developed sufficient independent probable cause to suppor tan arrest for DUI, then the argument can be made that the marijuana in your possession would be discovered.

You are free to have your attorney appeal the trial court's decision if you wish.

Good luck.

- Carl