Monthly Archives: January 2011

From dropsy to consent

Are police officers lying at suppression hearings? That question was raised last week by the Florida Court of Appeals in Ruiz v. State.  I think every criminal defense lawyer should read that opinion. In fact, I hope that everyone involved in the criminal justice system reads it.

Why is a court of appeals opinion from another jurisdiction important? It’s important because the court called it the way they saw it. The cops were lying:

the story told by the police is unbelievable.

Unfortunately, the court didn’t “see” it. They weren’t there to watch the witness testify. Under the standard of review, the appellate court defers to the trial court to judge the credibility of the witness. If the trial judge believed it, the appellate court accepts it.

Reluctantly, the court accepted it in Ruiz. They affirmed the conviction, but not before blasting away at consent.

The opinion quotes extensively from Younger, ‘The Perjury Routine,’ The Nation, May 8, 1967. Again, this opinion is well worth reading.

In Mapp  v. Ohio, 367 U.S. 643  (1961), the Supreme  Court  laid  down  the  rule  that  evidence obtained  by the police  through  an unreasonable search and seizure may not be used in a state criminal prosecution.

Before  Mapp,  the  policeman typically  testified  that  he  stopped  the  defendant  for little or no reason, searched him, and found narcotics on his person.  This had the ring of truth.  It was an illegal search (not based upon ‘probable cause’), but the evidence was admissible because Mapp had not yet been decided.  Since it made no difference, the policeman testified truthfully. After the decision in Mapp, it made a great deal of difference. For the first few months, New York policemen continued to tell the truth about the circumstances of their searches, with the result that evidence was suppressed.  Then  the police made  the  great  discovery  that  if  the  defendant drops  the  narcotics  on  the  ground,  after  which  the policeman  arrests  him,  the  search  is  reasonable  and the  evidence  is  admissible. Spend a few hours  in  the New York City Criminal Court nowadays, and you will hear case after case in which a policeman testifies that the  defendant  dropped the  narcotics  on the ground, whereupon  the  policeman arrested  him.  Usually  the very  language  of  the  testimony  is  identical  from  the case  to  another. This is now known among defense lawyers and prosecutors as ‘dropsy’ testimony.  The judge has no  reason  to disbelieve  it  in any particular case,  and of  course  the  judge must  decide  each  case on its own evidence, without regard to the testimony in other cases. Surely, though, not in every case was the defendant unlucky enough to drop his narcotics at the feet of a policeman.  It follows that at least in some of these cases the police are lying.

“Dropsy” in 1970 has evolved into “consent” in 2010.  The more things change the more they stay the same.

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More Coastal Preseason Honors

The Big South Conference Head Baseball Coaches voted Coastal Carolina’s Baseball Team the conference’s preseason favorite yesterday. The coaches also voted Coastal Second Baseman Tommy La Stella the Conference’s Preseason Player of the Year and Coastal junior Anthony Meo the Pitcher of the Year.

The Chants, who have won 35 consecutive regular-season Big South games, return seven starters and 17 letterwinners from last year’s record-breaking club.  Coastal enters the 2011 campaign ranked No. 17 in the College Baseball Lineup preseason Top 30, No. 19 in the Rivals.com preseason Top 25 and No. 24 in the Collegiate Baseball Newspaper preseason rankings.

Tommy La Stella was All Big South First Team and All Tournament Team last year. He can hit and he can field. He led the Chants last year with a .378 batting average and 93 hits. He ranked 29th in the nation in the “toughest to strike out” category.  He also had a .977 fielding percentage, a school record for second base. He should play a key role in the Chanticleer offense and defense this year.

Anthony Meo begins the season the way he ended it last year: Unanimously. Last year he was the unanimous Pitcher of the Year; now he is the unanimous preseason Pitcher of the Year. He adds this to this year’s preseason All American awards from Collegiate Baseball, the NCBWA and College Baseball Lineup.

Opening Day is February 18.

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Crime of the Day: Bigamy

Horry County police are searching for a Conway man, who is suspected of being married to two women at the same time according to an article in the Sun News Breaking News today. I don’t know if I would consider it Breaking News, but I’m sure it will be the source of some interesting jokes.

In case anyone is wondering, here is the law:

§ 16-15-10 Bigamy

Any person who is married who shall marry another person shall, unless:

(1) His or her husband or wife has remained continually for seven years beyond the sea or continually absented himself or herself from such person for the space of seven years together, such person not knowing his or her wife or husband to be living within that time;

(2) He or she was married before the age of consent;

(3) His or her wife or husband is under sentence of imprisonment for life; or

(4) His or her marriage has been annulled or he or she has been divorced by decree of a competent tribunal having jurisdiction both of the cause and the parties;

On conviction, be punished by imprisonment in the Penitentiary for not more than five years nor less than six months or by imprisonment in the jail for six months and by a fine of not less than five hundred dollars.

 

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Is there a perjury routine at suppression hearings?

An appellate court case out of Florida came pretty damn close to getting it right last week. It read like a home run for the defendant and for citizens everywhere, but by the time all was said and done, it was merely a long fly ball.

Ruiz v. State involved the issue of an alleged illegal search and seizure. Two police officers testified that Ruiz gave consent to search his apartment. Ruiz testified that he didn’t. Typical hearing; two different stories. It’s up to the judge to determine who to believe and we know how that goes. The problem with Ruiz is that the police officers’ story doesn’t make any sense. On paper, it simply is not believable.

Right away you know the opinion is going to be a good one. The first sentence tells us we are in for a ride:

This case is a paradigm for a type of case that is common in our courts, where “consent” to a search is found under objectively questionable circumstances.

Here is the short version of the officers’ testimony.

They “nonchalantly” approached Ruiz on the street and “calmly” asked his name. He told them his name was Freddie and that his identification was upstairs in his apartment. He offered to take them up there if they wanted to see it.  They wanted to see it.  Ruiz led them up to his apartment and “motioned” the officers to come inside.  The police officers saw a scale and some cocaine residue in plain view. They arrested Ruiz and he told them about some cocaine hidden in a shaving cream can and some “weed” hidden in his dresser drawer.

Does that sound believable?

The defendant’s story was a little different.

Ruiz was on his way back from the store when three officers stopped their vehicle in front of him, jumped out with their guns drawn, and told him not to move.  Ruiz did not think he was free to leave.  One officer frisked him and asked for his identification.  Ruiz said he did not have any identification and  the police  said  they  would  arrest  him  if  he could  not  produce  some identification.  Ruiz said that his identification was in his apartment.  The officers escorted him to his apartment.  After he opened the door, the officers went inside and searched through everything.  Ruiz did not give the officers permission to enter his residence.

This case is a great illustration of what is typically wrong with suppression hearings.

Cases like this one call into question the fairness of some trial court proceedings.  On  the  pages  of  the  record,  the  story  told  by the police  is  unbelievable—an anonymous informant  gives  incriminating information;  police  surveillance  uncovers  no criminal  conduct;  the defendant  is  “nonchalantly” and “casually” approached by the police on the  street;  the  defendant  cooperatively  leads  the  police  back to his apartment to obtain his identification and invites the police inside, where a detective sees contraband  in plain view, a fact certainly known  to  the defendant when he issued  the  invitation; after his arrest,  the defendant tells the police about all the hidden drugs in the apartment.

That’s pretty strong language: the story told by the police is unbelievable.

Unfortunately, the court affirmed the trial judge’s refusal to suppress the drugs: If believed, the detectives’ testimony supports the ruling.

Whoever wins at the trial level is almost always assured of victory at the appellate court. This is especially true if the issue is consent. The reason is that the appellate court is going to defer to the lower court for findings of fact. That makes sense because the trial judge gets to look at the witness and is therefore, in a better position to judge credibility.

I have yet to find a case where the appellate court reversed under this standard. If unbelievable is not enough, I’m not sure what it would take.

H/T: @kreyes

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Conway Police Officers and Employee of the Year

The Conway Police Department honored Lisa Hill, a telecommunications officer, as the 2010 employee of the year yesterday according to the Sun News. Also recognized were Officer Mark Johnson, the 2010 rookie of the year; and Officer Kendall Dixon, the 2010 police officer of the year. Congratulations for a job well done.

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Polygraph on Trial in Conway

The title of this post is the headline of an article in the Horry Independent today.

Parties in a homicide by child abuse case coming up in Horry County Court in March are waiting to see if their case will be a “keystone” one in the state of South Carolina.

One of the attorneys involved in the case has asked that polygraph results be admitted into the case and after hearing two days of testimony on the issue, Circuit Judge Larry Hyman is considering the issue.

The South Carolina Supreme Court has consistently held the results of polygraph examinations are generally not admissible because the reliability of the tests is questionable. The results have been held inadmissible because they didn’t pass the standards for scientific analysis under Rules 702 and 403, SCRE and the Jones factors.

Two days of expert witness testimony. For this case, the defense wants the results admitted; the prosecution doesn’t. What about the next case? What happens if the roles are reversed? It is the proverbial slippery slope.

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Preliminary Hearings – Hang on loosely

I was in court yesterday for a preliminary hearing. Most lawyers say that prelims are a waste of time. To a large extent I agree: The burden of proof is ridiculously low; hearsay testimony is not only allowed, but encouraged; and the defense can’t put up any evidence. Why bother?

We bother because sometimes there is no case. A prelim is a good way to get the case dismissed. There are other good reasons. Sometimes you get a case and the State’s evidence just doesn’t make sense. That’s as good a reason as any for a preliminary hearing.

Preliminary hearings are held in Horry County on Friday mornings. All cases are noticed for 8:30 and the judge usually starts at 9:00. There is no particular order in which the cases are called. I like to think of it as a secret, yet arbitrary method of calling the docket. No one complains, nor should they. Someone has to go first and someone has to go last.

Anyway, I’m sitting in the courtroom waiting for my client’s case to be called. A police officer is testifying about some particularly gruesome event. Other police officers, defense lawyers, clients, family and friends are milling about. No one is paying much attention. It’s a typical day in the criminal court system.

From the witness stand I hear the following: I applied the term loosely.

I stopped what I was doing. I looked up at the witness and over to the judge. It was cross-examination. I glanced at the prosecutor and I looked around at the other lawyers. Maybe I didn’t hear it right.

Criminal defense lawyers develop a sense or a feel for certain words. Maybe it’s a type of radar. Usually it alerts us when the prosecutor is asking about hearsay or other objectionable evidence. Sometimes though it alerts us to a word used by the witness.

Turns out that I did hear it right and so did the defense lawyer in that case. He heard it and he hammered on it. It was the turning point in the case. That “term” was a statutory definition. It defined who could be charged with this crime. The defendant did not fit the definition. There were codefendants charged with this crime. They fit the definition. The case against this defendant should be dismissed.

It’s not.

Was that preliminary hearing a waste of time? Maybe it was because the charge didn’t get dismissed. Maybe it wasn’t because the defense now has some pretty good evidence. Sometimes that is all you can hope for at a prelim.

In the meantime though, the case is not dismissed. It’s just hanging on – loosely.

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