Warrantless Searches/4th Amendment

this topic for a little while and after United States v. Hearing came out a few years ago we called it the Eroding 4th Amendment because I really fought after that opinion that the cat was out of the bag and we were about to see Matt vs Ohio. And any notion of judicially force supression rule disappear. I really thought they are going to do that. The Robert’s Court look to be headed that way but this term has given me some hope. Now Marilyn v. King came out just last week and I don’t have it in the paper, don’t have it in the powerpoint. We turned this stuff in over month ago which for me is like act to God. This because this Supreme Courtroom, Betty Black will call, see David they don’t have your powerpoint. Yes ma’am I straight up make sure that got in. Marilyn v. King is the DNA swap case. She had been hearing about of the paper were and will diSupreme Courtuss it, it link the little bit later but they put the DNA swap or inaudible swap in the mouth of people arrested in series of crime not convicted yet.

Lets see what Briar was excited with Blacky Bett off on it. Well that’s not a search. I ask a lot of people, its kinda like,” excuse me while I stick this in your mouth”. That’s not a search, be careful when we deal with the erosion, we were trying get a picture up here off my cell phone, one day about a year ago Harley comes in my office. “Dave”, “yeah man”, “come look outside”, “whats up?”, “wind’s blowing”. “Well it is Lubbock and the days ends in like this, how’s this special?” And so we go over to the alley and look up to the North and we’re having, what we learned on the internet and TV from our friends in Iraq and Afghanistan and its called a huboob. That’s like Dorthy and the Yellow Brick Road and most club in New Mexico come by about 80 miles an hour and you cant see for 20 yards now I have a picture on my cellphone of that for you.

That’s one form of your errosion if you live over here where in the land where it rains and stuff like yesterday you deal with water errosion alot but think of it as it doesn’t have to be slow but just the disappearence of something that perhaps you took for granted or that was always in place. In 2011 my youngest child and my wife and I were in Boston and April on patriorts day to ran a little race up there. And when we got done I felt like done and kept walking and we went down to the granery already which is where they have people’s tombstones, great people. If you took most Texas government classes and even political science classes and liberal arts education you didn’t get to hear about James Otis. But if you’re quick and bored and use their little free internet you can look him up on wikipedia and find out he really was against illegal search and seisures. They said unreasonable and didn’t mean it perhaps like we did. He was a lawyer, he did admiralty work in Boston. His father worked with the crown and had been promised a position and as English and other politics or want be; had the rug pulled out under him. Well after that Mr Otis started getting hired by merchants who were subject to general warrants. Genreal warrants was this horible thing not even signed by judge where a cop or magestrate got one naked. Teared down your shirt everyday, all day and tell you. You better like it.

Mr Otis represented serveral merchantse in court and a young man was sitting in the audience and say listen to him speak for 4 hours about how horrible abstrusive and antithetical to any notion of free civilised people will cherish the celebrity this was. That’s James tombstone, it’s a huge block of granite about I’d say 3 and a half feet wide, two and a half feet tall with a big brass plate on it that says who he was and even its suffers with litle bit of erosion but slowly. His speeches were called ‘the spark of the American revolution’. You’d read about that in 1950 descent by justice Frankfurter that later become the law in Chimel v. California against to point to opening here is the 4th ammendment matters. When you hear about it, roll your eyes back and head and goe,” yeah there’s nothing we can really do and I don’t have the judge with brains or backbone after grand emotion even if it’s on the law or they just going to believe the police office everytime why bother?” You need to bother! Even if it’s a class B or class C bother with it because if you don’t preserve it you don’t protect it it will disappear.

See if this language sounds like somethig you might hear not on fox news; there have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantess and give the police the upper hand.That hydraulic presure ha probably never been great then it is today. That could have been out i imagine any district court jduge with a DA going,” judge if you grant this supression motion and let this drug dealer off your liberal you’re weak. We will run against you, we’ll beat you up”. That’s pressure, the highcourt, the court of criminal appeals or fifth circuit,” you really want to get that nomination of the higher court. Don’t you rule against the police give them the upper hand they are stopping the bad guys right”. Can you hear me now Mr Obama can you hear me now? You know its just give him the upper hand we need the tools tursted.

We’re the governemt! Now that was in 1968 hell I was 2. Terry V. Ohio, I think Terry v. Ohio was connected to Marilyn v. King and that you talk some otherwise smart people in it what seems to be a very limited fact bound Okay, I see that decision that comes back later and didn’t bite you in the butt it will bite you at base of your neck. It can be a real bad thing. Persistant pressure of any form gets this Erosion. Things disappers on you, the more you let go the more you lose. We know that if you get older, eat a little more, excercies little less what you thought was a shape beceomes a new shape Erodes in inverse direction. People say and they say to you as cirmial defense lawyer how can you represent somebody who is guilty? You say pretty damn well and not cheaply.

David: they say how do you, I mean gosh they’re guilty and you hear that, remember the expression, motion no descent 1993 had been real busy and find me some cases in El Paso court and some from the court of criminal law appeals and by gully I looked out I was right. They’d illegally seize this evidence and it was the drug case. And so if the drugs are out they got no case. And the assitance DA’s response when judge Mccore says,” well Sir what do you say about these cases?” and he says “I was ready for something lucky here in Mccore law school”. “Well your honor those are distinguishel because of salient facts if you look at foot on note 4…” I was looking for one of those answers. Instead what I heard was,” judge this was cracked cocaine”

David: What do you mean? You know its little bit of marijuana, hole lot of child pornography doesn’t matter what it is remove that from logically equation and asks how did the police get to be where they were and seize the item they did. it really desn’t matter what they hell it is. But they did that in map, the criminal must go free if he must but it’s the law that sets him free. Nothing can destroy a government more quickly then its failer to observe its own laws or worse disregard of the character of its own existance. We operate under rule of law liberity is inherit in character to disregard those things for even seemingly good reasons at the moment, never really is!
Looking at what the Supreme Court and other courts have done we see a preference. Other then Marilyn v. King if you gotta a warrant and you’re the police in better shape far and away. Where we in criminal defense bar can seize the most fruit in a warrantless situation. That’s where they gotta scramble a little bit, make it up as they go. The court give greater protection at least this term to the body and home except for poking at your mouth. Now if you want to put nail in your arm then that’s a whole different bail away but apparantly the suave in the mouth is not so big a deal.

Florida v. Jardines came out this spring take a loot at that. Its significant not because I mean I don’t know about you all I like in town called Adloo that don’t even have drug dog in Luback they have few. I didn’t think this was that bigger case until I read it and thought about it while. Its in Miami they hear the Mr. Hardines might be pervior of a currently illegal agricultural comodity its kinda green and leafy and you can put it in the store room in the bag and they go watch his place and they see a little eye traffic. So they just take Fido the Big Belgian [inaudible] that was is 95 pounds and get it up on his porch. Back and forth back and forth yeah we got a hit. And they backout and they got a search warrant. And I think wel,” hell I will realise this just like a car on the side of the road. Dog’s deaf not a search, its passed that the dog’s credible and reliable. We got that from Florida v. Herra she can’t even markup that tree, yeah I intended a pun. And they went back and got a warrant which is preferred Mr Hardines about to have a nice little visit to the…well not to Federal correction list too but to the Florida correction list too which is not see inaudible because they don’t correct a shit.

David: Probably desiring not to return, here’s what significant about Florida v. hardine. We have a spilit opinon and you got interesting bed fellow so do Mccor is in majority on it and Scalia writes the big part of the opinion and he hauls often says, he says,” look I do it on straight property right. You bring a dog on my porch. I am calling the police, that’s tresspass that’s common law of tresspass. There is a real good concurring opinon that says look property asides I do this on priviacy and the decent came back and said no no no look there is a liscense of the public, The Avon lady, the boys Scouts, the girls Scout, It is not offense to people to have someone come and just knock on your doors. Scalia says,” yea but you brought that big damn dog. And he was going back and forth” can you imagine people you know layn’ there watching the rangers got your boxers and a t shirt on. Wifes on cellphone, kids are playing on floor. That’s song kind of like that lazy inaudible used to be on heehaw when they’re haivng the routine. All of suddent they hear this big dog barking and the door shaking. No body moves whats that! Ah, just police helping catching smell of that one hitter you had last night. “Ahh” “Don’t worry about it not big thing”. No it would shock to snore out of you. Here is whats significant about Florida v. Jardines. Marina v. cats, you know forever we fought this fourth ammendments was grounded in property and then Kathes came in and says no it’s a reasonable expection of privacy.

You don’t have to own the place which will be property no just an expectation of privacy. You maybe a guest in a home of a friend, it might be the area immediately around you and a car but you do a privacy expections so everthing was reasonably expectation of privacy. Floria v. Jardines says; no, you put them together its privacy plus property so it expands our 4th ammendement protection at least electionally or expedentially it was kind of like a sign. Hey folks don’t forget this. Florida v. Jardines matters. This going to matter a other cases later. Missori v. McNeely, Mr McNeely was driving along mind his onw business got pulled over for speeding and then lock the check list every report in your office to take this strong alcoholic beaverage, had red blood shot eyes. [inaudible] a car where he stumble when he did. Wanted an extend search took him immediately to hospital. He didn’t want to get blood or she didn’t want to get blood so told them to put the needle in and she did them in to nail and they did. Justice Thomas is this sole descense at the other end that takes the governemt position which was at the disappearence of blood within the body.

Always constitutes an emergency exception to do away with the warrant requirement. And factors leading up to the stop or always going to be your problem that will cause because its alcohol we’re concerned to about what we’re told about. Mattabelisation and the simulation and elimination in the human body its always an emergency exception. That’s what Thomas said and that ain’t the law, that’s what Missouri wanted it to be. The rest of the descendent Robertson there kind of through almost reasonable purposal out and they said well look don’t go to this case by case basis but lets kind of break traditional 4th ammendment thinking here and have a little more bright line rule that just do traditional emergency exception analysis and say look its time to get a warrant. And if there is time to get a warrant you got a go get one and if there is not time to get warrant and you can provev that well well let it slide. And you could see that being workable and find it out but here they came out and said you gotta wash because people read this case wrong. It doesn’t mean per say that all warrant less blood draws mean admissible evidence. You do get to know the notion that if you have a warrant on a blood draw the state say in a whole lot better shap assuming the warrant is sufficient.

They say its still going to be totallity of the circumstances case by case basis. So what a prosecutor is kind of try to do if they were card in a woodchair is get in there and really add some stuff that cop didn’t put the police report. That’s going to say pushing it towards an emergency that in this case they needed to. But in Missouri v. McNeely they said no that dissipation of blood does not automatically create emergency. They didn’t preclude the possibility that it could happened in the future but they said it might. So there is still going to plenty of litigation here but Missouri v. McNeely does give the defense significantly and upper hand here espacially when you look at how many judges are available. I don’t care if you are here in Wood County, Upton County or Young County or a Up pass where one of those county in which there is 2000 people in it. You know every trooper must have a sheriff a cell phone, they’ve got a computer. You can rattle a judge out of bed and do regularly because I know some of them told me about it. Judge want some coffee this morning make it two. They called me a one in the morning for a search warrant. It happeneds so when you get a warrant though how do you start evaluating it.

Well ask yourself, what are they searching for and where? When did who say it was there and why? We come back to confidential sources. I remember being in law school and learn about inaudible aguilar spinelli and having to do this dance of really proving up which you had to do and the search warrant when you were talking about a confidential source. And then they came out with a case and said,” well no its gates” [inaudible] and it’s a totality of the circumstances and the message got out wrong in the legal community. It happeneds a lot, like McNeely doesn’t stand for rule that; all warrantless blood draws are inadmissible but people don’t say that just like they are going to say on Marilyn v. King,” Ok, swab inside the mouth is not a search we can do it to whoever we want whenever we want. You know we are about to get a drivers license or there are a lot of places that could get real slippery with and go down on hill in a hurry. But within formats all those aguilar spinelli rules still apply, they just fit within the broader totality of the circumstances approach. Some cases did help you with it has got a of teaching and talking about everything, let me give you best two I can think of. You don’t need to know 30 cases on it. If you are making notes learn these two; The Huddleston case actually I think with all due respect Judge Cockern who is a real…

Francisco Hernandez

Author Francisco Hernandez

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