Invalid "Terry frisk"

[Joshuaace2]

Carl, you mean the judge that tried to lead the officer to lawful justification for the search in the first place, if he finds reason to believe the evidence would have been discovered through an alternate line of inquiry, thats what makes discovery inevitable?

Of course thats what the judge ruled, it was his argument to begin with!

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

Because I have not. And trust me, I have searched diligently for such a case.

What I do find is this "If the protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its FRUITS WILL BE SUPPRESSED". (Minnesota v. Dickerson, 508 U.S. 366, 376) (1993)

It doesn't say can be, could be, should be. It says Will be.

 

[tranquility]

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

That's not the legal question. You cannot combine those seperate issues into one. They are not the same thing. While you can attempt to distinguish the case in such a manner, that's not the way it's done. Each issue must be looked at seperately.

 

[CdwJava]

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

Yes, I have.

Because I have not. And trust me, I have searched diligently for such a case.

Not every decision by a court is a "published" opinion. A ruling of a trial court is not going to be "published" and if there is no contrary case law or statutory law in your state, then it would seem am an argument can be made for the exception.

As I said, you are free to appeal the court's decision. Good luck with that. And if he really had no evidence of impairment, then I suspect an appellate court will agree that you were not impaired, should not have been arrested, and the marijuana would not have been discovered as a result of that exception. At that point, the original search should be excluded as beyond the scope of Terry.

I'm still curious what kind of hearing this was as you have not answered that. You say all these people testified to things that would seem to benefit you, yet you indicate the court found you guilty? Was this a court trial? Was this a jury trial? Or was this a Grand Jury proceeding?

What I do find is this "If the protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its FRUITS WILL BE SUPPRESSED". (Minnesota v. Dickerson, 508 U.S. 366, 376) (1993)

It doesn't say can be, could be, should be. It says Will be.

If no exception through inevitable discovery existed, it should be suppressed. But, the exception was successfully argued by the state. So, now you have to appeal.

- Carl

 

[tranquility]

And if he really had no evidence of impairment, then I suspect an appellate court will agree that you were not impaired, should not have been arrested, and the marijuana would not have been discovered as a result of that exception. At that point, the original search should be excluded as beyond the scope of Terry.

I agree with this completely. Terry is not the issue as the officer already admitted facts which put the search beyond Terry. The factual issue will be if, without the pot, did the officer have probable cause to arrest? If so, inevitable discovery gets it in. If not, I think it stays out.

 

[CavemanLawyer]

Joshuaace2 trust me there are plenty of cases out of Illinois where a Terry frisk was deemed unlawful and the evidence seized was still allowed into trial through the inevitable discovery doctrine. I did a Westlaw search on "inevitable discovery" and "terry" and I found 59 cases dealing with the issue. The exception both applied in many cases and didn't apply in many cases depending on the specific facts. If you want one example check out People v. Hoskins 101 Ill.2d 209, 461 N.E.2d 941 Ill.,1984. which is an Illinois Supreme Court case. A woman was detained for prostitution and the officer immediately did a terry search of her purse and found drugs. The search was deemed unlawful under the terry search exception because she was already in handcuffs and had no access to her purse. Among other justifications for the search, the Court held that there was sufficient probable cause to arrest for prostitution so she would have been arrested anyway and her purse would have been searched pursuant to her arrest. Thus the evidence was admissible under the inevitable discovery exception. Take your case and substitute the charge of prostitution for DUI and purse for pocket and its pretty darn identical.

If you are trying to find caselaw on google you will never get anywhere. 99.99% of all published opinions are copyrighted and are only available through an official reporter.

The bottom line is that you can be searched incident to an arrest, or at the latest, during the booking process. If the officer has sufficient cause to arrest you for an independent offense other then possession of the unlawfully seized item, and the officer would have gained that sufficient cause even without the unlawful search, then the item was going to be found anyway when you were arrested on the other offense. That is an inevitable discovery. You case is actually probably the MOST common type of incident where inevitable discovery applies.

The key issue in your case has already been pointed out by multiple people. Was there sufficient probable cause for you to be arrested for DUI without the finding of the drugs? That's what it all boils down to.

 

[Joshuaace2]

Carl, I answered your question in post # 26 I believe.

Caveman, very good info, I thank you greatly. I also did as you suggested and substituted her/me and purse/pocket.

The glaring difference being at the time of the search in her case PC to arrest already existed. Established through an independant line of investigation.

In my case, the officer said PC existed after the FST's, which were performed after the illegal search.

BTW, I would love to apply this to my case. At the time of the search if PC already existed, then the FST's would have been a violation of the Fifth Amendment. As I would have been compelled to incriminate myself while under arrest, and not informed of that arrest.

There is a brief summary ot the FST's in post #19 I believe.

Now lets revisit the Thomas case:

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)


To apply this standard to my case, the following scenario would have to be accepted:

At the time of the initial traffic stop, the officer was concurrently pursuing two lines of investigation. The first line of investigation was the officer investigating whether the defendant was driving while under the influence of marijuana. This line of investigation resulted in the unlawful discovery of mj in the defendants pocket.

The alternate line of investigation was the officer investigating whether the defendant was driving while under the influence of marijuana. This line of investigation resulted in the defendant performing FST's and subsequently being arrested for driving under the influence of mj.

This alternate line of investigation was independant, unprejudiced, and unpersuaded by the officers unlawful discovery in the other line of investigation.

At best this would be a casual application of the inevitable discovery exception to the exclusionary rule.

Now lets review the Jones case:

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 proof United States v. Jones, 72F.3d1324, 1334(7thCir. 1995)

Chomp, chomp, chomp, exception eats exclusion. And takes a darn good bite out of the Fourth Amendment in the process.


Again, I thank everyone for their input (especially Caveman and Carl).

As always,feedback appreciated.

Roger

 

[CdwJava]

You appear to be left solely with the option of an appeal. Apparently a jury found the evidence of impairment credible, and a judge found the evidence of the probable cause to support the arrest to be valid. So, your attorney will have his work cut out for him in an attempt to make a case on appeal.

- Carl

 

[Joshuaace2]

Carl, thanks for your participation. BTW, the jury didn't hear any testimony of impairment. In Illinois you are presumed guilty if you have any amount of THC metabolites in your system. Blood test in = GUILTY, I knew that going in though. I don't believe this is constitutional, but that's another debate.

Thanks again

Roger

 

[tranquility]

In my case, the officer said PC existed after the FST's, which were performed after the illegal search.

Big problem for you.

BTW, I would love to apply this to my case. At the time of the search if PC already existed, then the FST's would have been a violation of the Fifth Amendment. As I would have been compelled to incriminate myself while under arrest, and not informed of that arrest.

No. The police don't need to arrest the moment they have probable cause. They can continue their investigation. You have a big misunderstanding of what the fifth amendment means. On the most basic level, in an FST, you were not compelled to "testify" against yourself any more than the blood test was a testimony against yourself.

While I agree in an intellectual debating society sense, we can accept the fact the investigation may have taken a different turn when the pot was found; in a real world sense, I don't see any real argument here. Since you have been already found guilty and your only hope is on appeal, you have no real hope. That's because you are not going to have a legal argument, but a factual one. I don't see any legal error here notwithstanding your argument. What you have is that the facts are such that the result will not fall into inevitiable discovery. The standard of review of such a factual argument is that very difficult. See:
http://www.wsba.org/media/publications/denovo/archives/sepoct-97-appellate.htm

 

[Joshuaace2]

Ohiogal,

This is a little off topic, but why would a person being investigated perform FST's? To make a good faith effort to show the police he is indeed not impaired, and avoid arrest, correct?

Do you agree your right to an attorney extends to the investigative stage, provided you are under arrest at that time? So if the suspect is in fact arrested, uninformed of that arrest, and asked to perform FST's, that could only worsen his position, in lieu of being informed of his right to an attorney, he has been compelled to be a witness against himself.

 

[Zigner]

Ohiogal,

This is a little off topic, but why would a person being investigated perform FST's? To make a good faith effort to show the police he is indeed not impaired, and avoid arrest, correct?

Do you agree your right to an attorney extends to the investigative stage, provided you are under arrest at that time? So if the suspect is in fact arrested, uninformed of that arrest, and asked to perform FST's, that could only worsen his position, in lieu of being informed of his right to an attorney, he has been compelled to be a witness against himself.

Umm - no.

 

[Joshuaace2]

Are you saying your rights on arrest don't include the privelege of being informed of that arrest, when it is being effected?

 

[tranquility]

If you don't know you are under arrest, you are not under arrest unless a reasonable person would feel they are under arrest and not merely temporarilly detained. Even if the cop knows he is going to arrest the person. Period. FSTs are not testimony. Period.

 

[Joshuaace2]

BTW, did anyone read the part where I said the SA did not introduce, or argue the theory of inevitable discovery. It was offered, argued, and ruled on by the judge.

I suppose there are probably people that agree with that too.

 

[CdwJava]

Perhaps you can use that as some element of the appeal ... not sure if it really constitutes judicial misconduct or not as judges are granted a great deal of leeway. But, you can always try.

What does your attorney think of your chances?

Oh, and to answer your question to Ohiogal as to why do the FSTs if you are already arrestable for the pot, that's because DUI is a separate offense. Without evidence of DUI there may be no lawful authority to compel a chemical test for the present of the THC metabolite.

- Carl