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Supreme Court Decision Allows Admission of Evidence After Illegal Stop

A recent U.S. Supreme Court decision is making headlines and putting people up in arms about the potential implications. Is it as bad as they say?  It definitely could play out that way and, although the Supreme Court allowed the admission of evidence obtained after an illegal stop, the Justices didn’t completely throw probable cause out the window.

The case stemmed from a surveillance operation of a home after local police received an anonymous tip suggesting frequent drug activity. Over the course of the surveillance, an officer observed numerous brief visits in and out of the house and eventually detained an individual, apparently at random, upon leaving the house.  The officer identified himself, asked the individual what he was doing at the house, requested identification, and then relayed the information to dispatch, subsequently finding an active arrest warrant for a traffic violation.  The officer arrested and searched him, and found methamphetamine and drug paraphernalia on his person.

The defendant moved to suppress the evidence based on an unlawful investigatory stop, i.e. no probable cause, which was initially denied. However,  the Utah Court of Appeals reversed and ultimately suppressed the evidence.  The Supreme Court disagreed.

The 4th Amendment and the Exclusionary Rule

The 4th Amendment protects us from unreasonable searches and seizures. Case law protects us from the admission of illegally obtained evidence—the exclusionary rule. Evidence obtained as a direct result of an illegal search and seizure, as well as evidence later discovered as part of that illegality, is not admissible.  You can’t use the fruit from the poisonous tree. Search

As with most things, exceptions apply and the exclusionary rule is no different. When the costs of exclusion outweigh its deterrent benefits, the exclusionary rule will not apply. Officers can admit evidence obtained from an unlawful search if that evidence was obtained from an independently acquired source or if it would have been discovered regardless of an unconstitutional source.  But, it’s the 3rd exception the Supreme Court used when handing down their recent decision.

The attenuation doctrine says when evidence “has become so attenuated as to dissipate the taint” it will be admissible. What does that even mean?  Evidence discovered through government misconduct is admissible if the connection between the misconduct and the discovery of the evidence is sufficiently weak.

Justice Thomas’s Majority Opinion vs. Justice Sotomayor’s Dissent

When applying the attenuation doctrine, courts are to consider:

  1.  “temporal proximity” between unconstitutional conduct and discovery of evidence to determine how closely discovery of evidence followed an unconstitutional search,
  2. “presence of intervening circumstances,” and
  3. “purpose and flagrancy of the official misconduct.”

Justice Thomas’s opinion explains discovery of the defendant’s “valid arrest warrant was a sufficient intervening event to break the causal chain between the unlawful stop and the discovery of drug-related evidence…” The opinion rationalizes, although the temporal proximity of time between the illegal stop and discovery of evidence favors suppression, presence of a valid arrest warrant unrelated to an illegal stop and a lack of purposeful or flagrant disregard for constitutional rights is enough to weaken the casual link.

The opinion goes on to explain, despite the fact that the officer should have asked the defendant if he could speak to him, rather than demanding so, these mistakes didn’t rise to the level of a 4th Amendment violation, but merely “at most negligent” and an “isolated incident in connection with a bona fide investigation of a suspected drug house.” Nothing prevents an officer from approaching an individual simply to ask.

Justice Sotomayor’s dissent argues pretty flawlessly the decision allows officers to stop anyone off the street, ask for their license, check for pending warrants, even small ones such as unpaid traffic tickets, and ultimately forgive any officer wrongdoing upon finding an arrest warrant.

“Fruit that must be cast aside includes not only evidence directly found by an illegal search but also evidence ‘come at by exploitation of that illegality’”

Asking questions doesn’t result in a seizure, but, Justice Sotomayor explains, the officer “exploited his illegal stop to discover” the drugs. The drugs were found only after learning of the traffic violation and he only learned of that traffic violation because he unlawfully stopped to check the defendant’s license. Classic fruit of the poisonous tree argument.

Further, she reasons the officer acknowledged his sole purpose for stopping the defendant was investigative and not an isolated incident. Warrant checks incident to a traffic stop are integral to the safety of the roadways whereas, here, the officer had no probable cause to believe the defendant was a danger.  Justice Sotomayor goes on to explain the warrant check was for the sole and hopeful purpose of finding something against the defendant.  In other words, finding an arrest warrant wasn’t an intervening circumstance leading to a break in the casual link.

Although Justice Sotomayor’s dissent that the majority wrongfully applied the rule hit the nail on the head, the silver lining is that the majority opinion rests on the particular facts of this case and doesn’t seem to be intended as a blanket rule applying to any illegal stops. However, in application, the effects of this ruling will inevitably be challenged and it will be interesting to see how this decision’s applied in other situations.

Understanding Hate Crime Law in the Wake of Orlando

The recent attack on the Pulse nightclub in Orlando was the deadliest shooting in U.S. history. It was also motivated by hatred against the Lesbian, Gay, Bisexual, and Transgender (LGBT) community—a community that is already under siege.  Within a week of the tragedy in Orlando, a black transgender woman was bludgeoned to death, then burned in a car.

Violence against the LGBT community, motivated by prejudice and hatred, is terrifyingly widespread. In 2014, the FBI reported that 20.8% of all hate crimes committed are based on perceived sexual orientation.  This number was up more than 6% from 2005.  Per capita, more hate crimes are committed against the LGBT community than any other group.

Hate crime laws are designed to punish those with a motive of hatred. They often involve especially serious penalties for these especially despicable crimes.

U.S. Hate Crime Law Protecting the LGBT Community

Hate crime laws are not uniform in the U.S.; different states have different approaches.  However, hate crimes can generally be discussed as crimes motivated by bias or prejudice against a protected group.

When a crime is considered a hate crime, an enhanced penalty is applied to the perpetrator.  A few examples of crimes that can be enhanced when motivated by prejudice against the victim include: assault, murder, rape, sexual assault, vandalism, defamation, denial of certain rights, and others.

In 31 states, a hate crime also gives rise to a civil cause of action above and beyond the enhanced criminal charges brought against the perpetrator.  This civil lawsuit is brought by the victim of the hate crime or their surviving family. Flag

Exactly what constitutes a protected group varies from state to state.  However, common protected groups include race, age, sex, gender, disability, gender identity, and sexual preference or orientation.

Protection based on sexual orientation has been expanding following the premeditated torture and murder of a young homosexual man—Matthew Shepard—in 1998. The accounts of a young man so badly beaten that his entire face was covered in blood, except where his tears washed it away, helped shock the nation into taking action.

The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act was passed into law in 2009. The name alongside Shepard, James Byrd Jr., is the name of an African-American man dragged behind a truck and ultimately beheaded by white supremacists in 1998.  The measure expanded federal hate crime law to include more types of crimes and included sexual orientation, perceived gender, gender identity, and disability as protected classes.  It has not yet been applied in a case involving a hate crime against the LGBT community.  However, it has been used in several cases achieving a conviction, including a case where a New Mexico man branded a swastika onto a disabled Navajo man.

Despite these advances, sexual orientation and gender identity are not protected nationwide. The federal law discussed above only applies where federal criminal jurisdiction exists—a very limited set of cases.  Only 31 of the 50 states, along with the District of Columbia, treat sexual orientation as a protected group.  Gender identity receives even less protection, with only 17 states treating it as a protected group.  There are currently 5 states that have no hate crime laws whatsoever—Arkansas, Indiana, Wyoming (the state where Matthew Shepard was murdered), Georgia (whose statute was struck down by the Georgia Supreme Court in 2004) and South Carolina.

Terrifying Times and a Community Standing Strong

The crimes against the LGBT community are unconscionable. The unfortunate truth is that we live in a time where such crimes border on commonplace—in 2014 there were an average of 3.5 hate crimes committed against the LGBT community reported every single day.  This number does not include hate crimes motivated by multiple factors and represents numbers in a notably underreported area of crime.

The bravery of the LGBT community in standing up and being true to themselves in the face of these attacks is awe inspiring. Hate crime laws provide important protection for a targeted group, knowledge of these laws can hopefully help in some small way by allowing those who have been victimized turn a system which has mistreated them at every turn towards helping keep those who would harm them off the streets.

The hope is that the increased penalties will discourage people from committing crimes based on their prejudice. Expanding hate crime law in the states that either have no hate crime laws whatsoever or don’t include sexual orientation and gender identity as a protected group is an important first step.

However, hate crime laws are not enough. The problem is not one that can be totally addressed by any law.  While the importance of legal protection through hate crime legislation and equal rights cannot be overstated, it is the society that creates the laws that places the LGBT community in the most danger.  We have made progress over the last century, but the societal stigma around those who love others of the same sex or do not identify with their biological gender is the true problem.

To call solving this issue complicated is beyond an understatement. However, there are simple steps that anybody can take to help prevent violence against the LGBT community.  Speak out when you see prejudice.  This can mean reporting hate crimes you witness or hear of, hate crimes are currently highly underreported.  It can mean also be as simple as calling out prejudice within your own neighborhood, political leaders, or media personalities.

Support the LGBT members of your community. This can involve as little as providing a sympathetic ear or as much as working alongside groups committed to stopping violence against the LGBT community such as the Matthew Shepard Project.

What happened at Pulse night club was a tragedy. Preventing tragedies such as this in the future will require changes in law and social perception.

Tragedy Sparks Gun-Control Policy Change for Government’s No Fly List

It’s no surprise that the tragedy of the recent Orlando massacre sparks yet another heated political debate on our country’s gun-control policy. If you’ve been following recent news, presidential candidates have both introduced new gun-control measures they believe will solve this country’s mass casualty problem at the hands of gun use.

Presidential candidate Hillary Clinton plans to strengthen background checks for those trying to purchase a gun, while Presidential candidate Donald Trump is generally against any major gun control policy change. One thing both candidates have seemed to agree on since the news of the Orlando tragedy is that no one on the government’s “No Fly List” should not be allowed to purchase a gun.  This has sparked an even bigger debate about whether enforcing stricter gun-control measures against those on the no-fly lists is even constitutional to begin with.

The National Rifle Association (NRA) believes, “Restrictions like bans on gun purchases by people on ‘watch lists’ are ineffective, unconstitutional, or both.” The American Civil Liberties Union (ACLU) has expressed a similar position in that the current issues with the no-fly lists should be fixed before restricting gun rights.

According to the group’s National Security Project Director, “The standards for inclusion on the No Fly List are unconstitutionally vague, and innocent people are blacklisted without a fair process to correct government error…” The group hopes to help implement change to allow those on the list a proper means to challenge their placement on the list because of the significant consequences it can have on an individual’s life.

If You’re On the List, You Won’t Be Getting In or Out of the Country

The No Fly List prohibits individuals on the list from boarding any commercial aircrafts for travel in or out of the United States; it was created after the attacks on 9/11 to prevent specific known or suspected terrorist threats. TSA Security

Obviously the easiest way to end up on the list is to be suspected of direct terrorist activity. How the government determines you to be a suspect of terrorist activity is unclear.  Reportedly anyone arrested or convicted for acts of terrorism, bombers, hostage takers, assassins, and associates of terror groups are among the list.  Frequent travel to certain countries will likely get you on the list as well.

Many critics argue non-violent political activists or social media users can get put on the list for things they say that the government deems worrisome. Others argue they were put on the list because they refused to be informants for the government.

Clerical errors are another way to get on the list; either by having a similar name or someone making a mistake when adding a name to the list. Those with warrants out for their arrest or suspicions of other criminal activity unrelated to terrorism have been known to be on the list as well.

Possible Due Process and Civil Liberties Violations

Scrutiny of the list began early on because no one really knows the exact process the government uses to add people to the list. The government maintains secrecy is necessary for national security. It definitely makes sense that a level of secrecy is needed, as you don’t want potential terrorists to be tipped off, but it’s a fine line to draw between national security and constitutional due process protections.

In 2005, TSA officials stated that at least 30,000 people had complained that their names were on the list and were only matched within the system because their names were an exact match to someone else. Passengers are not told when they book a ticket that their name has been flagged and don’t usually find out about it until they go to check in the day of their flight. Once they arrive and are told they can’t fly due to being on the list, they’re not going anywhere unless they can differentiate themselves and this leads to missed flights and a denial of boarding access all together.

Obviously that’s a problem when a person that isn’t supposed to be on the list has a name that matches someone else. With such secrecy about the list, it’s hard to determine whether due process rights are being protected and whether the government is providing the proper means to get off the list if wrongfully put on it.

Getting Off the List Isn’t Easy

Critics argue it’s nearly impossible to get off the list once you’re on it. There is a procedure available for travelers who are delayed or denied boarding an aircraft. Travelers can complete an online application at the Department of Homeland Security website, which requires several identifying documents. Once reviewed, the traveler will be notified via letter whether any corrections of data information have been changed, but it doesn’t typically take a traveler’s name off the list and doesn’t usually provide a wealth of information.

It’s a process and definitely not an easy one. It’s a major problem because travelers aren’t always told why they’re on the list, the reasons they’re barred from travel, or given a chance to challenge the findings that put them on the list in the first place.

Was Brock Turner’s Sentence a Slap on the Wrist?

On June 2nd, Santa Clara Superior Court Judge Aaron Persky sentenced former Stanford University athlete Brock Turner to six months in jail and three years of probation after Turner was convicted of sexually assaulting an unconscious woman behind a dumpster.

Turner’s seemingly light sentence sparked nationwide outrage, with a petition on demanding Persky’s resignation getting more than 1 million signatures. Critics allege that Turner would have been punished more harshly if he hadn’t been a white, celebrated Stanford athlete from a relatively privileged background.

Many questions remain in the wake of Turner’s sentencing. For one thing, what could Judge Persky’s rationale have been for giving Turner what some have called a slap on the wrist? Also, what is the expected sentence in sexual assault cases like Turner’s? And did the judge make a horrible mistake in how he punished Turner?

The Rationale Behind Judge Perskys Sentence

Although Brock Turner has been labeled by many as a rapist, this is not, in California and in many other states, technically the case. Under California law, rape is defined as “an act of sexual intercourse” while a victim is unconscious or incapable of giving consent.

In other words, because Brock Turner did not penetrate the victim with his penis, he cannot legally be considered to have raped her. This legal distinction between rape and sexual assault caused the two most serious charges leveled against Turner—rape of an intoxicated person and rape of an unconscious person—to be dropped. This is a factor that (most likely) spared him a harsher sentence. Brock Turner

Instead of rape, a jury convicted Turner of assault with the intent to commit rape of an unconscious person; sexual penetration of an unconscious person; and sexual penetration of an unconscious person—all felonies. While Turner faced a maximum penalty of 14 years in prison, prosecutors recommended that Judge Persky impose a six-year prison term.

Judge Persky instead sentenced Turner to six months in county jail and three years’ probation, and required that Turner register as a sex offender. When announcing Turner’s sentence, Judge Persky cited the defendant’s youth as well as lack of a prior criminal history as mitigating factors. Persky also stated that he believed a prison sentence would have a “severe impact” on the defendant and that he did not believe Turner would be a danger to others.

Critics noted the similarities between Persky and the defendant’s backgrounds —like Turner, Persky attended Stanford, where he played lacrosse. However, it is important to keep in mind that Santa Clara County’s probation department also supported a “moderate” jail sentence for Turner. In their recommendation to the judge, the probation department mentioned Turner’s lack of a criminal history as well as their belief that his high intoxication level during the sexual assault reduced the seriousness of his crime.

What Penalties Have Others Charged With Sexual Assault Received?

Legal experts around America expressed disbelief at the sentence handed down to Brock Turner. Sex crimes prosecutor Dmitry Gorin told the Los Angeles Times that he could not think of a similar case in his area where a defendant convicted by a jury of a violent crime avoided prison. He stated that it is very unusual for someone convicted of such a crime to receive probation.

Information comparing how Turner’s sentence compares to the sentences of others convicted of sexual assault is hard to come by. Although a 1997 Bureau of Justice Statistics report said that the average sexual assault prison sentence was 6 1/2 years with three years served, Ohio State University Professor Douglas Berman said that a lack of data on sexual assault sentencing makes it hard to judge the relative severity of Turner’s sentence.

So Did Judge Persky Make The Wrong Decision?

Not everyone thinks the sentence Judge Persky imposed on Turner is too lenient. Santa Clara County public defender Sajid Khan told that he doubts Turner’s race and affluence influenced Judge Persky’s sentence. Khan stated that no one has been able to give an example of a case in which a minority defendant received a harsher sentence than Brock Turner after being convicted of a similar crime. Khan pointed out that, regardless of the length of Turner’s time in custody, he will have to register as a sex offender and will be labeled a felon for life.

Although much of the public discourse surrounding Brock Turner’s sentence has failed to discuss how he must register as a sex offender, registration is not something to be taken lightly. Restrictive registration laws make it almost impossible for those on the sex offender registry to find or keep jobs and housing. It is almost certain that Brock Turner’s life will never reach its former potential just because he has to register as a sex offender.

However, any thought that a few months in jail, probation and having to register as a sex offender are punishment enough for Brock Turner disappears when you consider that he has not, to this day, acknowledged sexually assaulting his victim. During his sentencing, Turner told the court: “For anybody’s life to be impacted by my actions…makes me want to live the rest of my life to change it.” This vague statement about “anybody’s life” fails to make any mention of Turner’s victim and the irrevocable harm he has caused her.

Strangely, Judge Persky admitted in court that Turner may never acknowledge that he sexually assaulted his victim—“I don’t think that bridge will ever be crossed,” Persky said. It is troubling to think the judge believes someone as dishonest as Brock Turner is really not a danger to others. It seems that in the case of Brock Turner, the wrong sentence was indeed given.

Is a Parrot’s Testimony Admissible in Court?

Parrots are a lot more than just loyal companions. Relatives of Martin Duram, who was murdered in May 2015, are hoping that Martin’s African grey parrot can provide pivotal testimony. Martin’s wife, Glenna Duram, is a suspect in his murder.

The African grey parrot, named Bud, belonged to the deceased. In a chilling video taken several weeks after Martin’s murder, Bud was caught saying, “shut up,” then mimicking a female voice. Bud then exclaims, “don’t f*cking shoot.” Bird experts claim African grey parrots are known for mimicking voices, both male and female, and believe Bud was reciting an argument between a man and woman he heard recently. Could Bud be mimicking an argument between Martin and Glenna Duram moments before Martin died?

That’s what Martin’s parents believe. Glenna was found with a bullet wound to the head but still alive. The family believes Glenna murdered Martin and then attempted to commit suicide.

While the video does appear to be convincing evidence that Bud was “parroting” an argument he recently heard, is the bird’s recitation admissible evidence?

Animals as Witnesses in the United States

The United States legal system allows witnesses to testify in court during the trial of a suspected criminal. In general, a witness is someone who has, claims to have, or is believed to have, relevant knowledge to an event or other matter of interest. African Grey Parrot

There are several different types of witnesses. A percipient or eyewitness testifies as to what he or she perceived through the senses (i.e. seeing, hearing, smelling, or touching). Expert witnesses are people who have superior knowledge to the average person as to a specific topic for which he or she will testify. Doctors, for example, are considered expert witnesses. Character witnesses vouch under oath as to the good reputation of another person.

In addition, all witnesses must swear under oath that their testimony is true and accurate. Further, both the defense and prosecution must be given the opportunity to ask the witness questions relating to his or her statements.

In this case, Bud would be considered an eyewitness. However, he could not swear as to the veracity of his testimony. There is also no ability to cross-examine a parrot, or ask them any questions as to what they actually saw. Any testimony by an animal would call into question the truthfulness of the statements. When the words of Bud are weighed against Glenna Duram, who swears she didn’t kill her husband, a court of law would not allow Bud’s testimony.

Moreover, there is no case precedent allowing any animal, including parrots, to be witnesses in a trial. As such, any evidence they may provide would be inadmissible.

Animals as Witnesses in the United Kingdom

While it appears that the U.S. has a strict restriction on animals as witnesses, the U.K. is more open to the idea. In 2008, a dog named “Scooby” became the first animal in the world to appear as a witness in a murder trial. Scooby was believed to have been with his owner when she was found hanging from the ceilings in her home in Paris. Police thought it was a suicide, but the woman’s family demanded a murder investigation.

During a preliminary hearing, her faithful dog was led into the witness box by a veterinarian to see how it reacted to a specific suspect. When the dog saw a particular suspect, the dog barked furiously. The purpose of the preliminary hearing was to determine whether the dog’s “testimony” was sufficient evidence to launch a full murder investigation. Ultimately, the French judge concluded that Scooby’s barking was inconclusive.