Why did the SCOTUS grant cert in Heien

December 16, 2014

Tuesday, December 16, 2014

Good afternoon:

Annie Cabani asked the following question:

It’s baffling, too, why they granted certiorari in this particular case. Apparently, the NC Supreme Court had achieved the same result as the SCOTUS, so why didn’t they just leave it alone?

It’s like they went out of their way to issue this constitutional ruling (and a quick one … only two months) when they didn’t even need to, yet they slam their door on folks who really need to be heard. What’s up with that?

Answer:

They had an agenda. They have been looking for a case with a suitably appropriate set of facts upon which they could base their decision carving out an exception to the reasonable-suspicion rule and the exclusionary rule, which is a judicial remedy that excludes evidence seized in violation of that rule (and others). They wanted the Heien case from NC because it only applies in NC. The federal courts and all other state courts are not bound by it. They accepted review because they wanted to establish that rule for all courts.

I believe this new rule that exempts operation of the exclusionary rule for reasonable mistakes by police regarding what is unlawful is absolutely awful. Only time will tell what constitutes reasonable ignorance or stupidity. Nothing good will come of this bizarre decision.

Explanation:

The SCOTUS has the power of discretionary review, which means they get to choose the cases they are willing to review. With few exceptions, intermediate courts of appeal do not have the power of discretionary review. They have to accept review because litigants in the trial, where all trials take place, have a right to appeal if they are unhappy with the result.

Before each term, the nine justices of the SCOTUS meet and decide what new legal rules they want to establish and what existing rules they want to eliminate or change. Each term they receive thousands of cert petitions, which are applications for discretionary review. They are called petitions (requests) for a writ (order) of certiorari (granting review). They review them for cases containing the issues they want to address. Within that group they look for cases with the best set of facts to support the decision they want to reach. They grant cert in those cases and deny cert in the rest. At least four votes in favor of granting cert are necessary for a petition to be granted.

All state supreme courts have the same power but they call the requests for review petitions for discretionary review.

A decision by a state supreme court is binding authority on every court within that state. It is non-binding authority on other state courts and the federal courts.

A SCOTUS decision interpreting federal law, the Constitution or its amendments, including the Bill of Rights, is binding authority on every court in the land. A decision by a federal circuit court of appeal interpreting federal law, the Constitution or its amendments, including the Bill of Rights, is only binding on courts in that circuit.

Procedural History of Heien

The following summary was prepared by the official Reporter of Decisions:

Following a suspicious vehicle, Sergeant Matt Darisse noticed that only one of the vehicle’s brake lights was working and pulled the driver over. While issuing a warning ticket for the broken brake light, Darisse became suspicious of the actions of the two occupants and their answers to his questions. Petitioner Nicholas Brady Heien, the car’s owner, gave Darisse consent to search the vehicle. Darisse found cocaine, and Heien was arrested and charged with attempted trafficking. The trial court denied Heien’s motion to suppress the seized evidence on Fourth Amendment grounds, concluding that the vehicle’s faulty brake light gave Darisse reasonable suspicion to initiate the stop. The North Carolina Court of Appeals reversed, holding that the relevant code provision, which requires that a car be “equipped with a stop lamp,” N. C. Gen.Stat. Ann. §20–129(g), requires only a single lamp—which Heien’s vehicle had—and therefore the justification for the stop was objectively unreasonable. Reversing in turn, the State Supreme Court held that, even assuming no violation of the state law
had occurred, Darisse’s mistaken understanding of the law was reasonable, and thus the stop was valid.

Note that this summary is not part of the decision itself. Better to read the opinion itself and cite from it rather than the summary that is not binding on anyone. Some summaries are better than others. Woe unto the law student or lawyer who gets it wrong by relying on the summary. Lawyers fondly refer to such moments as get-out-your-checkbook time.

We could sure use some donations. We have only had one donation for $10 this month. Please help, if you can afford it.

Thanks.


Could the prosecution’s case against Craig Wood be derailed by a warrantless search?

February 26, 2014

Wednesday, February 26, 2014

Good Afternoon:

I recently commented in response to a question raised by Betty-Kath regarding the warrantless entry into Craig Wood’s house by the police to search for Hailey Owens and their use of information, which they acquired during that search, to obtain a warrant to search his house for evidence that he had kidnapped and detained her in his home.

I said I did not believe the warrantless entry would affect the outcome of the case.

I reconsider my answer today and explain why the warrantless entry could jeopardize the prosecution’s case.

Detective Neal McAmis referred to the warrantless entry into Wood’s residence in his affidavit attached to the complaint:

Officers did a safety sweep of the residence to search for Owens. When the officers got to the basement steps, they could smell a strong odor of bleach. The odor continued as they entered the basement. The officers informed me the basement floor was wet. They also said they saw bottles of bleach in the basement.

On 02/19/14, at 0128 Detective Barb obtained a signed search warrant to search Craig’s residence. Several crime scene technicians responded to the scene. In the basement the crime scene technicians located two plastic storage totes. They were stacked one on top of the other. There were papers and documents in the top tote. In the bottom tote was what appeared to be the body of a small child. The body was concealed inside two trash bags. The crime scene technicians removed the trash bags and confirmed it was the body of Owens.

(emphasis supplied)

Detective Barb also applied for a second search warrant of the residence a little over 12 hours later during the afternoon of February 19th. In that affidavit, he described what he found during the search earlier that day, including firearms, video cameras, a computer, digital storage media, child pornography, cleaning fluids, journals and bedding, and he requested a search warrant authorizing him to search for and seize those items.

He did not mention the earlier warrantless search.

The issues the court may have to consider before this case goes to trial are whether the initial warrantless safety sweep of the residence was unlawful and, assuming for the sake of argument that it was, the second issue is whether any information obtained during that search was used to obtain a subsequent search warrant.

If so, that may invalidate the search and result in the suppression of the evidence seized. Without that evidence, the prosecution might not be able to convict Wood.

The general rules:

(1) A search of a residence without a warrant is unlawful unless an occupant voluntarily consents to the search or exigent circumstances exist that would make it impractical and unreasonable to obtain a search warrant, such as an entry in hot pursuit of a fleeing suspect (see United States v. Santana, 427 US 38 (1976)), an entry to prevent the destruction of evidence (see Kentucky v. King, 131 S.Ct. 1849 (2011)) or an entry to prevent someone from suffering imminent injury or death.

(2) The police cannot use “fruit from the poisonous tree” (i.e., information obtained unlawfully) to establish probable cause (i.e., reasonable grounds) to believe that a residence contains evidence of a crime.

Consent, hot pursuit and preventing the destruction of evidence are not applicable.

Thus, the question the court will have to resolve is whether the warrantless entry was reasonably necessary to prevent someone from suffering imminent injury or death.

The problem for the prosecution is that the police arrived at the residence before Wood arrived. They were waiting for him and when he arrived, they pulled into his driveway and parked behind him, preventing him from backing out. They took him into custody and transported him to the station house for interrogation.

The warrantless entry into his residence took place after Wood was removed from the scene.

With their only suspect in custody and no particular reason to believe that Hailey Owens was in the residence and in any immediate danger, if she was, I am not seeing any evidence that would justify a warrantless entry into his residence to prevent her from suffering imminent injury or death. Absent probable cause to believe that, the warrantless entry would be unlawful and any evidence seized as a result of it would not be admissible.

I also do not see them acting as though they believed she was endangered in the house. Moreover, the absence of any reference to the warrantless entry in the second affidavit for search warrant appears to have been a deliberate omission that the defense probably will interpret as deliberate.

The prosecution may be able to navigate its way through this potential disaster, if it can satisfy the court that (1) no information obtained during the warrantless entry was relied on to obtain a search warrant, or if they did rely on it, they relied on other independent evidence with which to establish probable cause, such that they would have discovered the evidence they seized even if the information obtained during the warrantless search were excised from the affidavit for the first search warrant that was issued at 0128 on February 19th.

How this potential issue is resolved may determine the outcome of this case.


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