09-06-02

Why Was My Case Dismissed?

Cases can be dismissed for a variety of reasons, but one of the reasons that is completely avoidable is when the filing officer fails to show up for court.

If the defendant does not show up for court, a Nisi warrant is issued. If the officer does not show up, the case can be dismissed (remember the “speedy trial” rule?).

If you, as the filing officer, cannot appear in court on the scheduled day, call the prosecutor’s office and let them know what to advise the court. It is possible the case can be reset.

MOTHERLY BURGLARS
Burglars broke into a veterinary clinic in Indiana and stole a large quantity of OxyTocin. Police said the suspects were probably seeking OxyContin, which produces effects similar to heroin -- but their booty, OxyTocin, induces childbirth and prompts the body to lactate.

DEFECTIVE DETECTIVE
Police in Milford, Connecticut arrested a man who allegedly stole money from local merchants by impersonating a police detective. Authorities said the suspect would ask for tens and twenties from the business' cash registers because he was conducting an investigation into counterfeiting.

WITHOUT A LEG TO STAND ON
A man with a broken leg in a cast robbed the Dip 'N Sip donut shop in Brockton, Massachusetts. As he was making his way out of the shop, patrons jumped him and held him for police. The suspect had two broken legs by the time officers arrived.

HERE'S A MODEL YOU HAVEN'T SEEN...
An Oregon auto dealership was fined 31 thousand dollars and agreed to pay 90 thousand to the family of a man with Alzheimer's Disease. Hillsboro Chrysler-Plymouth sold the 78-year-old man seven vehicles over a period of four weeks.

ROBBIN' HOODS
People scrambled to pick up thousands of dollars after bank robbers tossed it into a street in West Palm Beach, Florida. The haul was marked by an exploding dye pack so the crooks threw piles from it into the air, knowing pedestrians would block police on their tails. More cash was found in their abandoned vehicle.

HOW NOW BROWN SPOTS?
A shoplifting suspect at a Wal-Mart store in Clovis, California should have pulled his heist more quickly. A security officer detained the man when the 16 giant chocolate bars stuffed in his pockets melted and showed through his white jeans.

Friday the 13th is an unlucky day in much of Western Europe, North America, and Australia. Many people avoid travel and avoid signing contracts on Friday the 13th. Floors in tall buildings often skip from 12 to 14. And while the superstition is believed to be fading, it nonetheless has deep roots in both Christian and pagan culture.

Many Christians have long believed that Friday was unlucky because it was the day of the week when Jesus was crucified. The number 13 was believed to bring bad luck because there were 13 people at The Last Supper. Since there were 12 tribes of Israel, that number was considered lucky.

Thirteen was also a sinister number in Norse mythology. Loki, one of the most evil of the Norse gods, went uninvited to a party for 12 at Valhalla, a banquet hall of the gods. As a result, he caused the death of Balder, the god of light, joy, and reconciliation. Loki tricked Balder's blind brother, Hod, into throwing a sprig of mistletoe at Balder's chest. Since mistletoe was the only thing on Earth fatal to Balder, the beloved god fell dead.

During the Middle Ages, the superstition against Friday the 13th grew. Over time a large body of literature and folk wisdom have reinforced the belief. In the 18th century, the HMS Friday was launched on Friday the 13th. It was never heard from again. Since then, ships are not usually launched on that date.

It is considered especially unlucky to have 13 people at the table during a meal, such as in Agatha Christie's mystery novel, Thirteen at Dinner. During the 1880s, a men's group that felt superstition was an unhealthy influence on public life held Thirteen Club dinners. Those diners would have doubtless deplored Triskaidekaphobia, which is a fear of the number 13. They would also have looked askance at Triskaidekamania, which is an excessive enthusiasm for the number 13.

From the InfoPlease website at http://www.infoplease.com/spot/friday13th.

Officers on a drug task force suspected that a drug lab was operating in a rural location. They obtained a search warrant for the premises, and set up surveillance while waiting for darkness to fall before executing the warrant.

The officers saw a “white, older model vehicle” approach the gate to the premises. Someone came out of the house unlocked the gate, and let the car drive in. Later, it left the premises. It could not be seen what the occupants of the vehicle were doing while in the house.

An officer stopped the vehicle a mile or two away from the house, although he had not seen the driver violate any traffic laws. Two officers removed two men from the car placed them on the ground and handcuffed them. A woman who had been in the car was allowed to stand and hold a minor child.

Other officers arrived on the scene and the suspects were given Miranda warnings, then advised that they were being placed in “72-hour investigative detention” until the warrant could be executed.

The female occupant of the car said they had gone to the house to get a bed, a statement an officer said he did not believe. The officer told the woman that they believed there was a drug lab at the location, and asked her if they got narcotics at the house.

The woman admitted that they had obtained drugs, which could be found in a container behind the back seat. After the occupants were taken to jail for the “72-hour investigatory detention,” a drug dog was used to search their vehicle, and it alerted on a bottle containing amphetamines.

The defendants moved to suppress the drugs, contending that there was no justification for the stop of the car; that they were arrested illegally and without probable cause before making any statements; and that they had not given consent for the search of the car.

The State argued that the defendants lacked standing to complain about any search because the car in which they were riding was owned by the mother of one of the occupants, and not by any of them. In the alternative, the State claimed that the stop was a temporary detention during which admissions were made that created probable cause for an arrest, or for a warrantless “automobile exception” search.

Holding: In order to assert a privacy right in a vehicle, a person must have a personal expectation of privacy in the vehicle that was violated. Because the car in this case was borrowed from the passenger’s mother, with her permission, she could contest the search of that car.

Also, a person may complain about the legality of his or her arrest or detention. For these passengers, “if their Fourth Amendment rights were violated because they were illegally detained or illegally arrested, each would have standing to contest the search of the car.”

All three of the defendants ultimately were arrested and taken to jail. The issue is when the arrest occurred.

No questions were asked of the suspects immediately following the stop. The two men were removed from the car, placed on the ground, and handcuffed. All three suspects were then given Miranda warnings and told they would be placed in “72-hour investigatory detention” and not allowed to leave.

A person is arrested if “a reasonable person in the suspect’s position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest.”

By handcuffing the men while they were placed on the ground, giving all three suspects Miranda warnings, and telling them they were going to jail, their freedom “was restricted by an officer’s physical force and verbal directive.”

All three of the vehicle occupants were arrested immediately after the vehicle was stopped. Any reasonable person in their positions would have understood the restraint on their freedom to be consistent with formal arrest.

The woman’s admission that there were drugs in the car came only after she had been arrested, and “cannot be used retroactively as probable cause for her arrest and the arrests of the other two defendants.” Nothing else happened prior to the arrests that provided the officers probable cause.

Even if the officers had reasonable suspicion to stop the car for an investigative detention, there was no such investigation, but only an illegal arrest of each defendant. The evidence that was found and seized following their illegal arrests was a “fruit” of the arrests and the trail court properly ordered suppression.

COMMENT: This case is a good example of the way in which “seizures” of persons are analyzed by courts. It is irrelevant whether the officers or the defendants considered the police action to be an “arrest.” The question for the court is whether a reasonable person in the situation would have believed his liberty sufficiently restrained to amount to a formal arrest. If the answer to this question is “yes,” probable cause must have existed at the time to support the arrest. Evidence of criminal wrongdoing that is discovered after the arrest occurs cannot help provide probable cause. Because the officers in this case essentially “arrested first, and asked questions later,” the arrests were illegal and the drugs in the car were inadmissible. Texas v. Crisp & Uloth, 2002 WL 433594 (Tex. App. – Waco, 3-20-02).

An old Cherokee was teaching his grandson about life. “A terrible fight is going on inside me,” he told the boy. “It is a terrible fight and it is between two wolves.”

He said, “One is evil – he is anger, envy, greed, arrogance, self-pity, guilt, resentment, lies, false pride, superiority, self-doubt and ego.”

Then, he said, “The other is good – he is joy, peace, love, serenity, humility, kindness, benevolence, generosity, truth, compassion, and faith. The same fight is inside you, and inside every other person, too.”

The grandson thought about it for a minute and then asked his grandfather, “Which wolf will win?”