Tagged: Fourth Amendment

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #409

JESSICA JONES RECONSTRUCTS THE CRIME

Well, I can’t put it off any longer no matter how hard I try. And believe me, I’ve tried.

The last time I started a column with those words we were engaged in a not-so-great Civil War. It’s how I began my multi-column series on Marvel’s Civil War II. Today we turn to the aftermath of Civil War II. Call it Marvel’s Reconstruction Era, only the historical one was probably less painful.

Inhuman Ulysses Cain predicted future crimes. Captain Marvel arrested everyone the predictions said would commit some future crime and put them in jail. I wrote about why this was against the law. You know, it’s a pity that this Captain Marvel is forcing a perfectly respectable Captain Marvel  to call himself Shazam.

One of the future criminals Captain Marvel imprisoned was Allison Green. Problem was, the prediction about Allison was wrong. She was neither a terrorist nor a criminal mastermind. Or wasn’t until she got so upset by what happened to her that she dedicated herself to bringing down Captain Marvel and other super heroes. Then she became both.

Toward this end, Alison formed an anti-super hero network which Captain Marvel wanted to infiltrate. Toward that end, Captain Marvel enlisted former super heroine turned private investigator Jessica Jones. They faked a fall from grace that sent Jessica to jail and ruined her reputation. Then they dangled the Jessica bait in front of Allison Green.

This fake-somebody’s-fall-so-the-badguys-will-recruit-him ploy was already old when 77 Sunset Strip used it in its first season, and that was so long ago that even men of a certain age are too young to have seen it first-run. (Only men of an more uncertain age, like me, had that chance.) Still, the ploy worked as well as it did back when Hector’s grandfather was a pup. Allison Green scooped up Jessica and in Jessica Jones #6, Jessica lured Captain Marvel into Allison’s trap.

This ploy only works if the big bad cooperates by revealing his or her plan. Allison did not disappoint, other than that she fell for a trick as old as the fruit salad in the Garden of Eden. She monologued like she was performing every tragedy Shakespeare ever wrote. She admitted she was going to kill the Champions and make it look like it was their fault then use the ensuing chaos to turn people against the super heroes. “The world is going to burn you all at the stake. The heroes are going to try to fight back and that ensuing ugliness is the end of the age of heroes.”

At which point, Captain Marvel and Jessica Jones revealed their plan, arrested Allison, and told her that she was going to a deep, dark prison cell where the S.H.I.E.L.D. Psych Squad would “pull all the other names and details of your burgeoning organization right out of your head … whether you like it or not.”

This story raised a few questions. I have a few answers. Let’s hope as many answers as there were questions.

Was faking Jessica Jones’s fall from grace so Allison Green would recruit her into her evil empire entrapment? No.

Entrapment happens when law enforcement officials originate a criminal design and implant the disposition to commit a crime into an innocent person’s head. If an undercover cop offers to sell someone drugs, that would be entrapment, as the government planted the idea of buying drugs into the innocent person’s head.

Allison Green was about as innocent as a newborn babe thirty-six years later; after he had become a paid assassin. She had already committed some crimes. She formed an organization to commit more crimes. Jessica did not implant the idea of committing crimes in Allison.

Did Allison’s monologued confession violate the Fifth Amendment guarantee against self-incrimination? No.

Captain Marvel and Jessica Jones tricked Allison into confessing, so there was state action. But the state action has to force the criminal to confess in order to violate the Fifth Amendment. Allison gave her confession like she was entering Dracula’s castle, freely and of her own will.

If the S.H.I.E.L.D. Psych Squad extracts information from Allison’s brain “whether she likes it or not,” would that information be suppressed under the Fifth Amendment? Hell yes!

In Schmerber v. California, the Supreme Court ruled the police could forcibly take a blood sample from a suspected drunk driver. But taking evidence using a bodily intrusion could only be done after the police obtained a search warrant. Schmerber allowed this because blood samples are not testimonial in nature. That meant only Fourth Amendment search and seizure law applied, not Fifth Amendment self-incrimination law.

Non-testimonial evidence is evidence which doesn’t require the suspect to reveal anything. As the Supreme Court noted in Curcio v. United States, the Fifth Amendment prohibits forcing someone to “disclose the contents of his own mind.” Ordering a defendant to produce blood samples, fingerprints, or the like does not require a defendant to “disclose the contents of his mind.”

Extracting thoughts from a criminal’s brain by telepathy “whether she likes it or not,” on the other hand, does force the defendant to “disclose the contents of [her] mind.” Literally.

So Captain Marvel, if you want to teep Allison’s house – well, her mental house, as it were – I have some advice; don’t. Any evidence telepathically extracted from Allison’s mind would be inadmissible because it would violate her Fifth Amendment rights. In addition, under the Fruit of the Poisonous Tree Doctrine, that evidence wouldn’t be admissible against any member of her “burgeoning organization” either. Apparently Civil War II didn’t teach Captain Marvel anything about the law, because her costume is still a fascist statement.

Last, and most important question, do I have any more columns about Civil Wars II on tap? You’ll be glad to know, the answer is no.

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #376

THE SPIRIT AND LAWYERING OOPS

“Look at my diploma. Does it say Placebo State University?”

That’s what I wanted to say to my clients then they complained that they didn’t want a public defender, they wanted a real lawyer. Now I always thought I had made up good ol’ Placebo State. Then I read Will Eisner’s The Spirit #5 and the dialog of one Chadwick Swineheart attorney at law. Then I realized there really must have been a P.S.U., because Chadwick obviously attended that august institution. And based on the knowledge of law he demonstrated in this story, Swineheart attended it in July.

In said story, the Spirit, masked crime fighter of Central City, was trying to find out the current whereabouts and master plan of The Octopus, master criminal and the Spirit’s archenemy. Spirit broke into the office of the Octopus’s lawyer, the aforementioned Mr. Swineheart, rifled Swineheart’s files, and started reading like a teenager devouring the Twilight trilogy. When Swineheart caught Spirit in flagrante lectio, Spirit asked Swineheart, “So tell me … Where’s The Octopus? What’s his latest game?”

Swineheart steeled himself and said, “Private, stolen documents are against the law. Inadmissible as evidence.” To which Spirit answered, “One of the many reasons I’m not a cop.” After this compelling legal argument, Swineheart coughed up everything he knew about the Octopus. And, considering the way he was portrayed, Swineheart probably dislodged a hairball, too.

So how many different legal mistakes did Mr. Swineheart make in said scene? Surprisingly, not violating the code of professional responsibility by revealing privileged information about his client. That’s one of the few things Swineheart didn’t get wrong.

Swineheart told Spirit that the Octopus “is running some big scam to sell inferior plate steel to a government contractor.” I added the emphasis, because it showed the Octopus was running an on-going criminal activity and was going to commit future criminal acts. The Code of Professional Responsibility permits an attorney to reveal privileged information when a client is going to commit a future crime in order to prevent said crime from happening. So Swineheart was correct on this one.

However, one out of several is only a good record if you’re playing Football in Cleveland. For lawyers it’s lousy. Even Hamilton Burger won all the ones he tried after Perry Mason told him where to look.

So what did Swineheart get wrong? Let’s start with the concept that “Private, stolen documents are against the law. Inadmissible as evidence.” Sure they are. If someone stole a bunch of private documents from a business to sell to its competitor, wouldn’t those stolen documents be admissible in the industrial espionage trial as proof that the theft occurred? Of course they would. So private, stolen documents are admissible as evidence.

Now before you accuse me of being fast and loose with the law, because Swineheart obviously meant that you can’t steal private documents from him and use them as evidence against him or his client, let me respond to your accusation. You’re right.

But don’t go gloating that you caught me in an error; not yet. Sure Swineheart probably did mean you can’t steal private documents from him and use them as evidence against him or his client. It doesn’t matter. Either way you interpret Swineheart’s statement, he was incorrect.

Private citizens can break into lawyer offices – or other places – and steal private incriminating documents – or other incriminating evidence – and turn that information over the police. The police and prosecutors office may then, in turn, use that information as evidence in prosecutions against the persons who had evidence stolen from them.

I’ve written about this before, so everybody let’s say it together, It’s the Silver Platter Doctrine. Hey, Swineheart, I didn’t hear you back there. I said, “everybody!”

The Fourth Amendment forbids the police from making illegal searches and seizures. When they do, the evidence seized during said illegal search and seizure is excluded by the Exclusionary Rule. As the United States Supreme Court explained in Mapp v. Ohio, the rational of the Exclusionary Rule is that the police should not be able to benefit from it’s illegal behavior and excluding the illegally-seized evidence will deter the police from committing similar violations in the future.

The police don’t like the Exclusionary Rule. Prosecutor Offices don’t like the Exclusionary Rule. And, truth be told, neither do courts. In fact, the only people who seem to like the Exclusionary Rule are the criminals.

No one likes letting criminals go because key evidence that would have convicted said criminal has to be excluded. As a result, courts have carved some exceptions into the Exclusionary Rule. And by “some,” I mean courts have carved so many exceptions into the Rule it looks like a turkey one hour after Thanksgiving dinner.

One of the chief exceptions to the Exclusion Rule looks at the rule’s justification that it deters future police misconduct The courts routinely hold that if excluding the evidence would not deter future police misconduct, then there is no underlying justification to excluding the evidence and it should not be excluded.

So if private citizens make an illegal search and find evidence which they turn over to the police, the underlying future misconduct justification doesn’t apply. Excluding the evidence would not deter future police misconduct, as there was no police misconduct in the first place. The misconduct was all on the part of the private citizen.

Sure the private citizen might have broken the law by trespassing and stealing evidence, but the police did nothing wrong. So the evidence should not be suppressed. See, Burdeau v. McDowell, a decision of the United States Supreme Court which holds precisely what I just wrote.

Naturally it did. If Burdeau didn’t support the argument I was making, would I have cited to it as support? Maybe if I were Chadwick Swineheart. But I’m not, so the Burdeau case says precisely what I argued.

The Burdeau case came out in 1921. It’s not exactly new law. Even if this current Spirit series takes place sometime in the past, it still has to take place after 1921. After all, The Spirit didn’t even start until 1940. So there’s no reason for Swineheart not to have know Burdeau’s rule and that evidence stolen by the Spirit would be admissible in court.

Okay, there’s one reason: Swineheart is to legal scholarship what the Quadruple Bypass Burger is to Jenny Craig.

But here’s what really hurts in the whole Swineheart matter. I’ve written about the Silver Platter doctrine before. I don’t think several times before would be an exaggeration. You’d think that a lawyer who’s an actual comic-book character would read the column of the foremost comic-book legal analyst. But >>sob<< he doesn’t.

Maybe that’s why he’s such a lousy lawyer.

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #363: SPIDER-MAN WATCHES A JUDGE GO FOURTH AND STULTIFY

backgroundWell, at least this time the judge had a reason for getting the law completely wrong.

We’re talking The Amazing Spider-Man #16.1 (16.1? Seriously? What’s with the odd-ball numbering in comics nowadays? We’ve had zero issues. Millionth issues. Fractional issues. Now decimal point issues? I should adapt Life of Pi to a comic book mini-series and number the issues 3.1, 3.14, 3.141, 3.1415, and so on.)

In the aforementioned and strangely numbered Spider-Man comic, Detective Teddy Rangel obtained a search warrant for a building based on a tip he received that it was a hideout of wanted crime boss Lonnie Thompson Lincoln, a.k.a. Tombstone. The New York Police Department, with the help of Spider-Man – because, after all, it was his comic – executed said warrant and arrested Tombstone and his men. Had this been Hawaii Five-O, the story would have ended when Danno booked em. It wasn’t Hawaii Five-O. It wasn’t even the revival. So the story didn’t end there.

Eight days later, Judge Anson Howell– who was to judges what Thurston was to millionaires– granted Tombstone’s motion to suppress the evidence. He ruled the search warrant was defective so the search was invalid and all the evidence obtained during said search was inadmissible.

As decisions go, that one was more questionable than “Put Your Daughters to Work Day,” which never really caught on the way that other day did. It’s true that ever since 1961 and Mapp v. Ohio, the states have lived under the exclusionary rule; a rule created by the Supreme Court that says when police obtain evidence in violation of the Fourth Amendment, that illegally seized evidence must be excluded from trial. One would think that evidence seized under a defective search warrant would be suppressed. And one would be right, if the world had stopped in 1961. It didn’t. I know because I’m waaay older than nine.

Since it’s inception, the exclusionary rule has been less popular than Justice Scalia at a gay pride parade. Over the years, the Supreme Court chipped away at the exclusionary rule by creating exceptions to it. Lots of exceptions. Ever since 1984, the year not the novel, when the Supreme Court decided United States v Leon, the country has had a “good faith” exception to the exclusionary rule.

The good faith exception says that if the police execute a search warrant in good faith and later it turns out that the search warrant was defective, then the evidence obtained during the search should not be excluded from trial. The Leon court reasoned that the exclusionary rule exists to prevent the police from violating the Fourth Amendment, because they know evidence won’t be admissible, if they do violate it. However, if the police believe in good faith that they obtained a valid warrant, then they didn’t violate the Fourth Amendment. It wasn’t their fault that a neutral and detached magistrate issued the warrant in error. So suppressing the evidence would not further the the exclusionary rule’s purpose of preventing police misconduct, because there was no police misconduct. For that reason, evidence obtained by good faith reliance on a search warrant that turned out to be defective should not be suppressed.

In the case of The People v Tombstone – yes, I know it’s actually The People of New York v. Lonnie Thompson Lincoln, but who wants to keep typing The People of New York v. Lonnie Thompson Lincoln? – Judge Howell should not have suppressed the evidence seized from Tombstone’s hideout. Even though the search warrant to have been defective, the police executed it in good faith and the good faith exception required that the evidence be admissible.

There are some exceptions to the good faith exception. One is if the police lie in their application for a search warrant and mislead the magistrate who issued it, then they know that warrant was defective They knowingly got the warrant in bad faith so can’t rely on its validity in good faith

So, did Detective Rangel obtain the warrant in bad faith by lying to the magistrate? Possibly. In fact, I’ll say probably. Detective Rangel’s source was the super villain crime boss Mr. Negative. It’s not likely that either the law or the order part of the criminal justice system would put much stock in what Mr. Negative said, as it would rather put Mr. Negative in the stocks. So it is likely that Detective Rangel claimed his source was an anonymous informant who had supplied him with reliable information in the past rather than admitting it was Mr. Negative. Judges routinely issue search warrants based on similar reliable anonymous informant representations.

If the basis of Tombstone’s motion to suppress the evidence was that the source who tipped Detective Rangel wasn’t reliable, Rangel would have had to testify at the hearing to vouch for the reliability of his source. I suspect that was the basis of the motion, as Judge Howell based his ruling on the fact that Rangel – who had been shot in the line of duty, was in a coma, and ultimately died – couldn’t testify and verify his source’s reliability.

If Rangel did lie about his source and misled the judge who issued the search warrant then he acted in bad faith. That bad faith would be imputed to the rest of the police department. So, if Judge Howell ruled that the good faith exception didn’t apply, he would have been correct.

But Judge Howell was still incorrect in suppressing the evidence.

Remember how I said that Detective Rangel was shot in the line of duty? Well, like Rangel himself, I was guilty of leaving out an important detail or two. What I didn’t tell you was that Rangel was shot by one of Tombstone’s men, when Tombstone and his men opened fire on the police officers who were executing the warrant. (Important safety tip, when the police are executing a search warrant, you don’t get to execute the police.) As soon as Tombstone and his men started shooting police officers, they broke several New York state laws. Not the least of which was NY Penal L § 120.11, aggravated assault upon a police officer.

The police had probable cause to arrest Tombstone and his men for their crimes. The police didn’t need an arrest warrant because they saw the offenders committing the crimes. When the police see people committing crimes, they have probable cause to arrest the offenders immediately and don’t need to obtain an arrest warrant first.

The police had the right to arrest Tombstone and his men for shooting the police. Tombstone and his men were in their hideout when they were arrested. That means the police were entitled to search the hideout as part of a search incident to arrest.

Search incident to an arrest, that’s another one of those numerous exceptions to the exclusionary rule I talked about earlier. When the police make an arrest, they are allowed to search the surrounding area for their own protection. So when the police arrested Tombstone, they were allowed to search the hideout incident to that arrest to make sure that there were neither more people nor more weapons in it. Judge Howell erred when he granted Tombstone’s motion to suppress. It didn’t matter that the search warrant was defective, the search didn’t violate the Fourth Amendment because it was as a lawful search incident to arrest.

So why did I say that the judge had a reason for getting the law completely wrong, if he suppressed evidence that should never have been suppressed? Because Judge Howell was corrupt. Tombstone was bribing him. And that was his reason for getting the law completely wrong.

Hey, I never said the judge had a good reason.

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