New information in Zimmerman affidavit for search warrant

Tuesday, November 26, 2013

Good morning:

The Orlando Sentinel has the latest report on George Zimmerman.

According to the search warrant, Zimmerman talked to deputies after he was taken into custody. He told them that he and Scheibe had lived together since Aug. 23, that she was pregnant with his child and that they had agreed earlier that day to separate.

He said his plan was to move to Texas, according to the warrant.

He told deputies that as he was packing, Scheibe began to throw his belongings around the house, including two of his guns, the shotgun and one of the handguns.

In a recorded phone call with a dispatcher, he said he had not pointed a gun at her. He told deputies in his face-to-face interview that he had not touched or pushed her, according to the warrant.

He also told deputies that he had recorded the argument on his cell phone. Deputies seized two, a black Apple iPhone and a Blackberry.

But his claim of having recorded what happened does not mesh with paperwork filed by his lawyer last week. In it, Zimmerman asked for the return of both of those phones, alleging they had no evidence related to the case.

Deputies got the warrant, suspecting that Zimmerman had locked away the shotgun after the confrontation but before deputies unlocked the door and pushed their way inside.

Deputies found the guns in a black soft-sided case secured with a combination lock, according to the warrant.

This information would have been listed in the affidavit for the search warrant.

When Samantha Scheibe denies that she was pregnant and denies that she ever told him she was pregnant, I expect we will hear the defense accuse her of lying and having an abortion. This will be added to accusing her of screwing him literally and figuratively for a BIG payday selling her story.

I’m tired and disgusted with this little man’s games.

If Florida can’t lock him up, maybe Texas will.

Analysis of the prosecution’s case against Philip Chism

http://www.flickr.com/photos/104178037@N08/10445423715/in/photolist-gV2wyk-9kAfrM-9kDhhL-9kDiHC-9kDhtj-9kDhQy-9kDius-9kAf22-9kDibL-9kDhUY-9kDiz7-9kDipW-9kDikE-9kDig9-9kDiDb-9kDi7C-gWFrp8/lightbox/

Creative Commons on Flickr by Marsmettn Tallahassee

Friday, November 22, 2013

Good afternoon:

Go to this link to read the 9-page affidavit filed in support of the application for a search warrant in Philip Chism’s case. Warning: Contains graphic details.

Today I am going to analyze the prosecution’s case against Philip Chism and ask readers to indicate which of three alternative ways of proving first degree murder they would select, if they were to prosecute this case.

The prosecution is not limited to proving only one theory. Separate verdict forms can be submitted as to each alternative way of proving first degree murder. To convict him of first degree murder, the prosecution need only prove one alternative. Proving one, two or all three alternative methods of committing a crime only proves one crime and only one sentence may be imposed for that one crime.

Even though Philip Chism is only 14-years-old, he will be prosecuted as an adult because Massachusetts has a statute that mandates the prosecution as adults of all juveniles over the age of 13 who are charged with murder. If convicted, he cannot be sentenced to death because Massachusetts does not have a death penalty.

He also cannot be sentenced to life without possibility of parole (LWOP) because the Supreme Court of the United States (SCOTUS) has prohibited sentencing juveniles under the age of 16 to LWOP.

He cannot be prosecuted as an adult for the charges of aggravated rape and armed robbery unless the juvenile court declines jurisdiction. Therefore, he will have to be arraigned in juvenile court on those charges.

After the arraignment, the prosecutor will file a motion asking the juvenile court to decline jurisdiction and to transfer those two charges to adult court for adjudication on the grounds that, if convicted, the court lacks the resources to rehabilitate him before he turns 21 and the alleged crimes are an inextricable part of a single criminal episode that includes the murder over which the juvenile court lacks jurisdiction. Readers can reasonably expect the juvenile court will grant the prosecution’s request.

Philip Chism will be arraigned on the three charges in adult court. Pleas of not guilty will be entered on his behalf and his counsel will be provided with discovery.

Eventually, he will have to decide whether to go to trial and contest the charges or plead guilty.

Every defendant in a criminal case has a right to be presumed innocent and go to trial, even if he committed the crime(s) charged, and the jury must be instructed to return a verdict of not guilty as to each charge, if the prosecution fails to prove it beyond a reasonable doubt.

Given his confession that is confirmed by the videotape from a hallway camera showing him entering the women’s bathroom while wearing a jacket, hat and gloves and departing sometime after that with her body in a recycling bin, little doubt exists that he killed her while acting alone.

First degree murder in Massachusetts is defined by Chapter 265, Section 1 as:

Murder committed with deliberately premeditated malice aforethought, or with extreme atrocity or cruelty, or in the commission or attempted commission of a crime punishable with death or imprisonment for life, is murder in the first degree.

Notice that there are 3 ways to commit this crime:

(1) Murder committed with deliberately premeditated malice aforethought;

(2) Murder committed with extreme atrocity or cruelty; or

(3) Murder committed in the commission or attempted commission of a crime punishable with death or imprisonment for life.

Analysis of the statute

The prosecution may be able to prove that he committed the murder by each of the following three methods.

He came to school with a box cutter, balaklava ski mask, gloves and multiple changes of clothing strongly suggesting that he premeditated the murder with malice aforethought.

The second option does not require proof of intent to kill or premeditation, if the murder itself demonstrated extreme atrocity or cruelty. The use of a boxcutter to slash her throat from behind while gripping her hair and pulling her head back suggests extreme atrocity or cruelty as would the use of the box cutter ante mortem to penetrate and slash her vagina (see below).

The third option is a felony-murder rule that does not require proof of intent to kill or premeditation, if the murder occurred during the commission of a felony that can result in a life sentence. Aggravated rape and armed robbery are felonies that can result in life sentences, so a murder committed during the commission of either those felonies would be a first degree murder.

Aggravated rape requires proof of penetration of the vagina, no matter how slight, with the penis or finger(s), or an object and proof of the use of force or threatened use of force. Massachusetts defines penetration of the mouth or anus as “unnatural sexual intercourse.”

Proof beyond a reasonable doubt of any of the following three felonies will satisfy the use-of-force element:

(1) assault with a dangerous weapon; or

(2) robbery; or

(3) armed robbery.

According to the news report last night, the prosecution has alleged that he penetrated her vagina with an object. If the object is the box cutter used ante mortem, that would likely establish that the murder was committed with extreme atrocity or cruelty.

Her body was found in the woods supine with her legs spread and a tree branch inserted into her vagina. Since this staging occurred post mortem, it should not be considered as evidence establishing that the murder was committed with extreme atrocity or cruelty.

Police also found a note with the body that said, “I hate you all.”

If you were prosecuting this case, which alternative way of proving first degree murder would you choose (assuming you had to choose one)?

Or, which alternatives are the easiest and weakest to prove and why?

Here’s a link to a Boston Globe story about the affidavit.

Police violated the Fourth Amendment in Watertown house to house searches

Tuesday, April 23, 2013

Good morning:

We begin today with a history lesson purchased in blood, sweat and tears:

William Pitt declared in Parliament in 1763,

“The poorest man may in his cottage bid defiance to all the force of the crown. It may be frail—its roof may shake—the wind may blow through it—the storm may enter, the rain may enter—but the King of England cannot enter—all his force dares not cross the threshold of the ruined tenement.”

The house to house searches by police without search warrants in Watertown violated the Fourth Amendment.

The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

With the exception of a few narrow and well-delineated exceptions that do not apply to the house to house general searches in Watertown, the Fourth Amendment prohibits police searches of residences without a search warrant issued by a neutral and detached magistrate upon reviewing a sworn affidavit and finding that it establishes probable cause to believe that the residence to be searched contains evidence of a particular crime. Both the residence to be searched and the evidence to be sought must be particularly described in the affidavit and the search warrant.

Consent to search is one exception; however, consent must be free and voluntary. Mere acquiescence to authority at the point of a gun is not valid consent.

When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid. The result can be no different when it turns out that the State does not even attempt to rely upon the validity of the warrant, or fails to show that there was, in fact, any warrant at all.

When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion—albeit colorably lawful coercion. Where there is coercion there cannot be consent.

Bumper v. North Carolina, 391 U.S. 543, 548-550 (1968).

Exigent circumstances is another exception. For example, police can lawfully enter a residence without a search warrant, if they are in hot pursuit of a fleeing suspect for whom they have probable cause to arrest or to prevent the destruction of evidence. United States v. Santana, 427 U.S. 38 (1976).

In Santana for example,

Michael Gilletti, an undercover officer with the Philadelphia Narcotics Squad arranged a heroin “buy” with one Patricia McCafferty (from whom he had purchased narcotics before). McCafferty told him it would cost $115 “and we will go down to Mom Santana’s for the dope.”

Gilletti notified his superiors of the impending transaction, recorded the serial numbers of $110 (sic) in marked bills, and went to meet McCafferty at a prearranged location. She got in his car and directed him to drive to 2311 North Fifth Street, which, as she had previously informed him, was respondent Santana’s residence.

McCafferty took the money and went inside the house, stopping briefly to speak to respondent Alejandro who was sitting on the front steps. She came out shortly afterwards and got into the car. Gilletti asked for the heroin; she thereupon extracted from her bra several glassine envelopes containing a brownish-white powder and gave them to him.

Gilletti then stopped the car, displayed his badge, and placed McCafferty under arrest. He told her that the police were going back to 2311 North Fifth Street and that he wanted to know where the money was. She said, “Mom has the money.” At this point Sergeant Pruitt and other officers came up to the car. Gilletti showed them the envelope and said “Mom Santana has the money.” Gilletti then took McCafferty to the police station.

Pruitt and the others then drove approximately two blocks back to 2311 North Fifth Street. They saw Santana standing in the doorway of the house with a brown paper bag in her hand. They pulled up to within 15 feet of Santana and got out of their van, shouting “police,” and displaying their identification. As the officers approached, Santana retreated into the vestibule of her house.

The officers followed through the open door, catching her in the vestibule. As she tried to pull away, the bag tilted and “two bundles of glazed paper packets with a white powder” fell to the floor. Respondent Alejandro tried to make off with the dropped envelopes but was forcibly restrained. When Santana was told to empty her pockets she produced $135, $70 of which could be identified as Gilletti’s marked money. The white powder in the bag was later determined to be heroin.

Santana, at 39-41

Justice Rehnquist wrote the majority opinion upholding the warrantless arrest and seizure of heroin and money from Santana thereby reversing the Third Circuit Court Of Appeals decision. He said,

In United States v. Watson, 423 U. S. 411 (1976), we held that the warrantless arrest of an individual in a public place upon probable cause did not violate the Fourth Amendment. Thus the first question we must decide is whether, when the police first sought to arrest Santana, she was in a public place.

While it may be true that under the common law of property the threshold of one’s dwelling is “private,” as is the yard surrounding the house, it is nonetheless clear that under the cases interpreting the Fourth Amendment Santana was in a “public” place. She was not in an area where she had any expectation of privacy. “What a person knowingly exposes to the public, even in his own house or office, is not a subject of Fourth Amendment protection.” Katz v. United States, 389 U. S. 347, 351 (1967). She was not merely visible to the public but was as exposed to public view, speech, hearing, and touch as if she had been standing completely outside her house. Hester v. United States, 265 U. S. 57, 59 (1924). Thus, when the police, who concededly had probable cause to do so, sought to arrest her, they merely intended to perform a function which we have approved in Watson.

The only remaining question is whether her act of retreating into her house could thwart an otherwise proper arrest. We hold that it could not. In Warden v. Hayden, 387 U. S. 294 (1967), we recognized the right of police, who had probable cause to believe that an armed robber had entered a house a few minutes before, to make a warrantless entry to arrest the robber and to search for weapons. This case, involving a true “hot pursuit,” is clearly governed by Warden; the need to act quickly here is even greater than in that case while the intrusion is much less. The District Court was correct in concluding that “hot pursuit” means some sort of a chase, but it need not be an extended hue and cry “in and about [the] public streets.” The fact that the pursuit here ended almost as soon as it began did not render it any the less a “hot pursuit” sufficient to justify the warrantless entry into Santana’s house. Once Santana saw the police, there was likewise a realistic expectation that any delay would result in destruction of evidence. See Vale v. Louisiana, 399 U. S. 30, 35 (1970). Once she had been arrested the search, incident to that arrest, which produced the drugs and money was clearly justified. United States v. Robinson, 414 U. S. 218 (1973); Chimel v. California, 395 U. S. 752, 762-763 (1969).

We thus conclude that a suspect may not defeat an arrest which has been set in motion in a public place, and is therefore proper under Watson, by the expedient of escaping to a private place. The judgment of the Court of Appeals is

Reversed.

Santana, at 42-43

The police who conducted the Watertown house to house searches did not apply for search warrants. They did not have probable cause to search any of the houses they searched and they did not find the suspects or any evidence to be used against them. These were general searches which are specifically prohibited by the Fourth Amendment.

Dzhokhar Tsarnaev was ultimately found hiding in a boat outside the area that the police searched. He was discovered by the owner of the boat who promptly notified police. The boat was situated on a trailer parked in the owner’s driveway.

Either we are a nation of laws or we are not.

We cannot claim to be a nation of laws when we break our laws.

________________________________________

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Fred