OK, it is a ways away from criminal procedure. But it does almost always involve self defense so maybe this post isn't too far off subject.
I am a bit surprised here in 2011 that there are so many different procedures in the various counties, cities and states to investigate officer involved shootings. It seems to me that where politics, egos, and turfdom are put aside, the best way to investigate these incidents is clear. I was thinking about this area recently when I read the story about the double murderer in the Ft. Bragg area that had hid from the cops for a month in the woods and was ultimately shot and killed by a Sacramento County SWAT team. It appeared that officer(s) involved shooting was not much in the way of "self defense" . In that case, it was the use of deadly force to apprehend a fleeing felon. I will get back to this thought later.....keep it in mind.
From the mid 1990's until I retired in 2009, I was involved with, or commanded the investigation of over twenty officer involved shootings. Here in this area of California, the law enforcement agencies entered into an agreement in 1996 to form an "Officer Involved Shooting and Critical Incident Team" Very experienced investigators from each agency were members of the OIS Team. If an officer involved shooting occured, all of the police agencies would send their top investigator(s) and they would conduct the investigation. This way, the agency whose officer was involved did not conduct the investigation. The entire process was overseen by the elected district attorney who ultimately would determine if any law was broken, cop or bad guy. Because there would be twenty or more investigators assembled to do the investigation, it was usually the case that a finding could be made as to the legaliity of the officers shooting within 24 hours. This allowed the involved officers to know where they stood and were not off on administrative leave for days, weeks, or months waiting for the D.A. to decide. It works very well
I am continually suprised to read in the newspaper that some DA somewhere finally decided that the officers involved in a shooting MONTHS AGO are cleared of any wrong doing...Wow! Really?...It took months to make that decision? What about the poor cops involved waiting for your decision, week after week? You see, the shooting team approach will only work when the police chiefs, the sheriff and the DA put their egos and turf issues aside and agree to do what is right....Multi-agency officer involved shooting teams work and are the best way to investigate this issues.
Now, I told you there was some connection to criminal law. The Ft. Bragg shooting of a murderer was the first police shooting I can think of in decades in this area where the legal justification for the police shooting was really centered on apprehension, not self defense. Once upon a time cops could use deadly force in the apprehension of any felon. In those days, if you ran, you just died tired. Then along came Tennessee v. Garner. The SCOTUS said killing people to arrest them was justified only where the bad guy posed a clear and present danger to the community, etc. This use of deadly force rule then reduced the number of police killings to the point where those that happen now are almost exclusively self defense or defense of others. The investigative issue is then focused on the conduct of the officers that shot and whether their perception of the threat to them or others was objectively reasonable. If it was, then their use of deadly force results in a finding of justifiable homicide
As for the use of force in the Ft. Bragg case, based on what little I know, I have no heartache with what occured. This guy shot at the officers searching for him and as the Mendocino County Sheriff said, "he brought the fight to them".
Tuesday, November 1, 2011
Thursday, October 6, 2011
Searches of Cell Phones W/O Warrant Upheld
WOW, I did not notice it had been so long since I added to this blog. I guess with only six followers it isn't a monumental issue. It is kinda like talking to yourself......Anyway.
People v Nottoli, CA 6th Court of Appeals, September, 2011. OK OK, I know it is only a California court of appeals decision and has no affect anywhere else in the world, it may just be upheld by the California Supreme Court.
Nottoli and his girlfriend were driving along at 90 MPH on a 45 MPH zone early one morning and were stopped by a local sheriff deputy. You know the drill...speech rapid, eyes blown out, sweating on a cold night. Enough where the deputy thought he was driving under the influence of a controlled substance. The deputy ultimately arrests Nottoli for that, cuffs him, and places him in the cage of his car.
OK, there are a couple of things going on here with the 4th Amendment. First, a case decades ago said that cops can search the interior of cars and all contents therein "incident to an arrest" That was black letter law for a really long time....that is until the Gant case came along a couple of years ago. There, the Supremes said not so fast. It,(to them) does not make sense to allow a search incident to arrest of a car if the bad guy is already restrained. The idea behind Belton was to protect cops from weapons the bad guy might go for in the car so a search was "reasonable" without a warrant. SO, if the arrestee is secured in the cop car, then the search of the interior of the car incident to the arrest is not allowed. Gant, however, also said the ruling did not affect the Ross holding and if probable cause to believe there is evidence of crime in the car, then the cops can search without a warrant.
In Nottoli, the deputy searched the car after arresting and securing Nottoli, counter to the holding in Gant, some would say. But, wait, there's more!!!. Shifting back a couple of decades, a case called Ross came along and Ross said: If a cop has probable cause to believe a vehicle contains evidence of crime, then no search warrant is required and the entire vehicle can be searched for evidence. Gant also said that. So, OK, it looks like the deputy in Nottoli is off the hook, right? Yes he was, so said the CA Court of Appeals. Here Nottoli was found to be under the influence of a controlled substance and arrested and it was deemed reasonable to conclude there may be evidence of crime (dope) in the vehicle. So far so good. The deputy saw a cell phone later determined to be Nottoli's in the cup holder. The deputy checked it to see if it worked and then went through the text messages and found photos of Nottoli with illegal weapons (he was a convicted felon) and evidence of drug dealing. The trial court suppressed this evidence because the cell phone search was without a warrant. Well, searches of vehicles based not on an arrest but on probable cause allow searches of all of the vehicle and all "containers" in the vehicle. In basic terms, the court in Nottoli held that the data in the cell phone can be accessed and searched since the cell phone was a "container" within the automobile.
So, here is how it works. Cop stops car for speeding. Driver is under the influence of dope. Driver is arrested. Any cell phone found on driver or in his vehicle can now be searched and the data downloaded as it pertains to the crime of driving under the influence of dope. If any other crimes are discovered (like kiddie porn photos in the phone for example), then the defendant can be charged with those crimes as well.
I agree with the constitutional rationale and the outcome of this case, but I bet the defense attorneys are going to go nuts over this one. It is a broad new tool for law enforcement. We will see if the California Supreme Court will uphold it and if the U.S. Supreme Court will affirm as well. Oh, by the by......What if Nottoli's lap top computer was in the car?.....is it a "container"......Interesting, don't you think?
People v Nottoli, CA 6th Court of Appeals, September, 2011. OK OK, I know it is only a California court of appeals decision and has no affect anywhere else in the world, it may just be upheld by the California Supreme Court.
Nottoli and his girlfriend were driving along at 90 MPH on a 45 MPH zone early one morning and were stopped by a local sheriff deputy. You know the drill...speech rapid, eyes blown out, sweating on a cold night. Enough where the deputy thought he was driving under the influence of a controlled substance. The deputy ultimately arrests Nottoli for that, cuffs him, and places him in the cage of his car.
OK, there are a couple of things going on here with the 4th Amendment. First, a case decades ago said that cops can search the interior of cars and all contents therein "incident to an arrest" That was black letter law for a really long time....that is until the Gant case came along a couple of years ago. There, the Supremes said not so fast. It,(to them) does not make sense to allow a search incident to arrest of a car if the bad guy is already restrained. The idea behind Belton was to protect cops from weapons the bad guy might go for in the car so a search was "reasonable" without a warrant. SO, if the arrestee is secured in the cop car, then the search of the interior of the car incident to the arrest is not allowed. Gant, however, also said the ruling did not affect the Ross holding and if probable cause to believe there is evidence of crime in the car, then the cops can search without a warrant.
In Nottoli, the deputy searched the car after arresting and securing Nottoli, counter to the holding in Gant, some would say. But, wait, there's more!!!. Shifting back a couple of decades, a case called Ross came along and Ross said: If a cop has probable cause to believe a vehicle contains evidence of crime, then no search warrant is required and the entire vehicle can be searched for evidence. Gant also said that. So, OK, it looks like the deputy in Nottoli is off the hook, right? Yes he was, so said the CA Court of Appeals. Here Nottoli was found to be under the influence of a controlled substance and arrested and it was deemed reasonable to conclude there may be evidence of crime (dope) in the vehicle. So far so good. The deputy saw a cell phone later determined to be Nottoli's in the cup holder. The deputy checked it to see if it worked and then went through the text messages and found photos of Nottoli with illegal weapons (he was a convicted felon) and evidence of drug dealing. The trial court suppressed this evidence because the cell phone search was without a warrant. Well, searches of vehicles based not on an arrest but on probable cause allow searches of all of the vehicle and all "containers" in the vehicle. In basic terms, the court in Nottoli held that the data in the cell phone can be accessed and searched since the cell phone was a "container" within the automobile.
So, here is how it works. Cop stops car for speeding. Driver is under the influence of dope. Driver is arrested. Any cell phone found on driver or in his vehicle can now be searched and the data downloaded as it pertains to the crime of driving under the influence of dope. If any other crimes are discovered (like kiddie porn photos in the phone for example), then the defendant can be charged with those crimes as well.
I agree with the constitutional rationale and the outcome of this case, but I bet the defense attorneys are going to go nuts over this one. It is a broad new tool for law enforcement. We will see if the California Supreme Court will uphold it and if the U.S. Supreme Court will affirm as well. Oh, by the by......What if Nottoli's lap top computer was in the car?.....is it a "container"......Interesting, don't you think?
Monday, January 10, 2011
He Has Got To Be Crazy
This weekends shooting of nineteen people including a congresswoman and a federal judge in Arizona is a tragic and deplorable act and should be condemned by all civilized people. Assignation of our government officials is not the way we do business in this country. Already, there are calls for new and more restrictive gun controls, specifically a federal ban on large capacity magazines, as has existed in California for many years. More on that later.
The act of this "whacko" is likely to be characterized as proof alone that the shooter is "crazy". Most people tend to look at the result of an act as sufficient evidence of legal insanity. To do so is natural but legally flawed.
First, being mentally ill and "crazy" is not the same as being legally insane. In fact, some very, very nutty people have done some very nutty things and are very legally sane. One can point to some infamous killers in our time, like Charles Manson, who were found legally sane and responsible legally for their acts. Some can point to some mental defenses such as diminished capacity as a "loop hole" allowing people to not be held accountable for their crimes. You may recall the murders of Mayor Mosconi and Councilman Harvey Milk who were shot and killed by a person who claimed he was "high" on sugar from Twinkies, and his capacity to understand was diminished. and, indeed, the jury bought it and he got manslaughter instead of murder. This led to a so-called banning of the diminished capacity defense in California. I say "co-called" because , in effect, it did not ban the defense, but changed it into something else
As a general rule, and the law in the majority of states, a person is not legally insane if: They understand the nature and quality of their act or they didn't, they knew it was wrong, they are sane. A person can be crazier than a bed bug but if they know what they are doing is killing a human being and that to do so is wrong, they are legally sane.
So, Mr. Arizona Whacko can rant all he wants about not wanting to use the countries money because it is not on the gold standard, or his "dreams" or what every the hell he wants to rant and rave about. If he knew that shooting people was held as wrong by society and he knew that he was, in fact, shooting people, he is legally sane. How do you prove that? Well, he tried to get away, for one thing. People who believe they are not doing something wrong, have no reason to run.
The fact is that mental defenses do not work often and jurys don't like them. They don't care if his mommy was mean to him or he was picked on at school. Mr. Whacko can have all the shrinks he wants to testify about his little brain and how it doesn't work. It will not work, in my humble opinion.
So, when someone comments this guy was "nuts" or "crazy" because of all the news stories about his Facebook statements or whatever he as written in his dream journal, just shake your head and tell them that just because he is nuts, it doesn't mean he is legally insane. I wish Arizona or the Feds had an electric chair with really, really high voltage. No one is more deserving than this guy.
The act of this "whacko" is likely to be characterized as proof alone that the shooter is "crazy". Most people tend to look at the result of an act as sufficient evidence of legal insanity. To do so is natural but legally flawed.
First, being mentally ill and "crazy" is not the same as being legally insane. In fact, some very, very nutty people have done some very nutty things and are very legally sane. One can point to some infamous killers in our time, like Charles Manson, who were found legally sane and responsible legally for their acts. Some can point to some mental defenses such as diminished capacity as a "loop hole" allowing people to not be held accountable for their crimes. You may recall the murders of Mayor Mosconi and Councilman Harvey Milk who were shot and killed by a person who claimed he was "high" on sugar from Twinkies, and his capacity to understand was diminished. and, indeed, the jury bought it and he got manslaughter instead of murder. This led to a so-called banning of the diminished capacity defense in California. I say "co-called" because , in effect, it did not ban the defense, but changed it into something else
As a general rule, and the law in the majority of states, a person is not legally insane if: They understand the nature and quality of their act or they didn't, they knew it was wrong, they are sane. A person can be crazier than a bed bug but if they know what they are doing is killing a human being and that to do so is wrong, they are legally sane.
So, Mr. Arizona Whacko can rant all he wants about not wanting to use the countries money because it is not on the gold standard, or his "dreams" or what every the hell he wants to rant and rave about. If he knew that shooting people was held as wrong by society and he knew that he was, in fact, shooting people, he is legally sane. How do you prove that? Well, he tried to get away, for one thing. People who believe they are not doing something wrong, have no reason to run.
The fact is that mental defenses do not work often and jurys don't like them. They don't care if his mommy was mean to him or he was picked on at school. Mr. Whacko can have all the shrinks he wants to testify about his little brain and how it doesn't work. It will not work, in my humble opinion.
So, when someone comments this guy was "nuts" or "crazy" because of all the news stories about his Facebook statements or whatever he as written in his dream journal, just shake your head and tell them that just because he is nuts, it doesn't mean he is legally insane. I wish Arizona or the Feds had an electric chair with really, really high voltage. No one is more deserving than this guy.
Subscribe to:
Posts (Atom)