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#303106 - 10/08/08 10:58 PM Supreme Court Decisions?
pugwash Offline
Amidst all of the current crap we are bombarded with each day, almost unnoticed, The Supreme Court started another session this week, and on Tuesday, Hearing vs The United States was on the docket.

http://www.usdoj.gov/osg/briefs/2007/0responses/2007-0513.resp.html

Stemming from a 2004 arrest the case revolves around the legality of the search.

In July, 2004 Herring showed up at the Sheriffs Dept to reclaim some personal items for an impounded vehicle: a Coffee County (Alabama) investigator at the station asked for an outstanding warrant check, was told there was one in a neighboring (Dale) county, and that it was being faxed over. The officer(s) followed his truck and proceeded to stop Bernie Dean Herring, finding a loaded gun an a bag of Meth in his possession.

The county clerk in Dale county meanwhile was unable to locate the physical warrant and called the Judge, only to be told the warrant had been recalled: she called Coffee county who radioed the officers to inform them of the screw up , but by that time, some 10-15 minutes later, the stop, search and arrest had been made.

The district court decided that the screw up was in Dale county and the officers acted in good faith, and sentenced Herring to 27 months: the appeal was based on the failure of the district court to throw out the fruits of a poisoned search.

The investigators did not find he had “rolled through a stop sign” or “crossed a white line” either of which would have been grounds for stopping and searching the truck, they followed procedure, and a clerical error by a filing clerk is the root cause of this suit

The appeals process has now made its way to the Supreme court of the land where the case of someone so stupid as to show up at the sheriffs department with an illegal gun (he was already a convicted felon) and meth amphetamine will either upheld or will be overturned, with the inevitable civil suite sure to follow!

The war of ideology is being fought on many fronts each and every day smile
_________________________
It's rarely rocket science, it's usually just math: then again if you can't do the math.......

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#303244 - 10/09/08 08:52 PM Re: Supreme Court Decisions? [Re: pugwash]
Leah-Ann Offline
While I wouldn't label it "ideology" I do agree the Supreme Court is looking at an important constitutional issue in Herring v. US. For me, the only issue the court should be looking at is what do we seek to deter by the sanction of excluding evidence. It is a very straight forward 4th Amendment issue. The specific facts of this case are irrelevant. (Should there be felonly and misdemeanor levels of stupid? probably - but there aren't, so far it is not a crime to be an idiot.) What matters is the principle to be applied in all the cases to follow.
Though not representative of law enforcement as a whole, there will always be bad cops who will engage in pretextual stops or invent reasons to justify searches. For the most part the exclusionary rule curtails that. Is the same remedy necessary to make government clerical officers do their jobs with diligence? Would such a rule force clerical staff to do better jobs? Would the failure to enact such a rule encourage them to do shoddy work? What rule do we want? More importantly what rule does the constitution demand? The lower courts are divided on this issue and Herring is the perfect case for the Supremes to address the split in authority.
For those who would argue the ends justifies the means, how, if at all, does your view change when some idiot at the clerk's office is busy goofing off on a Belize message board and misstypes the address on a search warrant, thus providing your house number instead of your criminal neighbor's. The cops in good faith execute the warrant, search your house and find your stash. Savvy shopper that you are, you're holding more than the acceptable "personal use" amount and are hauled off to jail and given a court date to answer a couple of felony charges. Now is it a bad search? These are not easy issues.

An interesting aside: Herring was represented at oral argument in the Supreme Court by Stanford law professor Pamela Karlan - an incredibly bright attorney once impersonated by a poster on this message board. laugh


Edited by Leah-Ann (10/10/08 03:45 PM)
Edit Reason: KC spells better than I do ;)
_________________________
I can never remember which is better . . . safe? . . . or sorry?

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#303253 - 10/09/08 09:44 PM Re: Supreme Court Decisions? [Re: Leah-Ann]
KC Jayhawk Offline
Leah Ann, you're hitting a little close to home here with toss-off comments about idiots and the message board. I would be all depressed about it if I wasn't a savvy shopper!! whistle
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When you find a big kettle of crazy, it's best not to stir it.

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#303256 - 10/09/08 10:05 PM Re: Supreme Court Decisions? [Re: KC Jayhawk]
pugwash Offline
The poisoned fruit argument always seems to lead to a slippery slope?

In this case the investigator followed procedures and the case was tripped up by poor clerical work in a different county, although reading between the “lines” (pun intended), it would appear that the Coffee County guys saw something when Herring appeared at the Sheriffs office and were looking for a reason to stop him....being tweaked is hard to hide from a trained set of eyes, and if there were no warrants then I have to wonder if a routine traffic stop would have been the next avenue?

The area for the justices to explore would seem to be at what level of detachment the error occurred and if due diligence was shown by the officers when making the warrant check.

I would suggest that had the clerical error been within the Coffee County office, there would be a verdict for Herring, but am not sure where, from a legal and precedent setting standpoint, I fall when assessing third party error?

And I damn sure don't want the BDF entering my home because someone down the beach was robbed, and finding I have a Sig 228 protection system.....
_________________________
It's rarely rocket science, it's usually just math: then again if you can't do the math.......

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#303307 - 10/10/08 03:12 AM Re: Supreme Court Decisions? [Re: pugwash]
Dan Carey Offline
pugwash,
I'm not sure I understand where you stand on this, but the law is obvious: It was an unlawful search. Period. No debate. The evidence is inadmissable in court. End of question.
Quote:
The investigators did not find he had “rolled through a stop sign” or “crossed a white line” either of which would have been grounds for stopping and searching the truck

Not true. Either would have been grounds to pull stop the vehicle and issue a citation. Searching a vehicle still requires a valid, reasonable suspicion. Now, there is no reason that the cops couldn't have claimed to see the truck swerving from lane to lane. There is no reason that the cops couldn't have claimed to smell a little reefer, which would have justified a search. The fact is, they didn't claim these things. Case dismissed.

There is a good reason why being told that there's a warrant doesn't hold the same weight as being shown that there is a warrant. That's obvious. The cops could have waited until the warrant was faxed to them before they searched the pickup. They did not. It's a bad bust. Kick it out of the system and go on with life.

This is not ideology. It's legal procedure. Follow procedure and get convictions. Don't follow procedure and your cases go south on you.

It's easy to get offended that some tweaker goes free, but the taxpayers have a right to be upset that their policemen are cutting corners and filing bad arrests. Let's face it: Ol' Bernie Dean isn't some kind of criminal mastermind. He would have gotten busted sooner or later anyway. Just watch him until he screws up. That's how the system works.

Dan
_________________________
"Facts are the enemy of Truth"
Don Quixote

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#303324 - 10/10/08 04:49 AM Re: Supreme Court Decisions? [Re: Dan Carey]
pugwash Offline
Dan,

The reason this is going to the Supreme Court and not being tried on the ACMB is because its not "easy, Case Dismissed"

At what level of government are any and all employees held to what standard is the crux of this case, as is the level of reliance a field employee can give to information passed through the normal chain of command and control without independent verification, which is why I found it more worthy of comment than the Sonar and the Whales !

And, yes I am aware that between rolling through a stop sign and a legal search there are several other steps, however I was perhaps remiss in thinking that in order to participate in a discussion such as this a reasonable understanding of legal proceedings would be a pre requisite?

It was merely an example of how the officers could have chosen to proceed were they intent on skirting Mr Herrings rights

The usual compliant about both myself and Leah Ann is one of too much detail, but here is an example of what happens when even a small piece of the chain is left out!
_________________________
It's rarely rocket science, it's usually just math: then again if you can't do the math.......

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#303520 - 10/10/08 11:57 PM Re: Supreme Court Decisions? [Re: pugwash]
Leah-Ann Offline
Dan, your post makes an interesting point. Interesting inasmuch as none of the parties, including government officials all the way up the line, disagree that the search was illegal. What many people don't realize is that even where there is agreement that a search was not legal, the evidence obtained from that search is not necessarily inadmissible. Exclusion is one remedy, but there are others. For example a police agency can be sued civilly for an illegal search.
The exclusionary rule is not constitutionally mandated - it is legislatively created. So the issue in Herring is what the remedy should be where a search was conducted in good faith but was still illegal. The only reason our courts recognize the exclusion of evidence as a remedy for a bad search is to deter improper behavior, so the question in Herring is whether exclusion as a sanction would deter poor clerical work. I don't think there is an easy answer to that.
_________________________
I can never remember which is better . . . safe? . . . or sorry?

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