Georgia Criminal Law Blog

I have recently run across a new device that is being employed in the war on drugs.  The ION SCANNER.  This device has grown popular in the prison systems to screen visitors at the prison gates.  Many false positives are being reported.

One study confirms that false “positives can occur with baker’s poppy seeds, herbal products, natural body enzymes (i.e., melanin, the natural skin pigment which causes the skin to turn dark can cause false positive for marijuana), and from common medications.” In other words, Afro-Americans and some Hispanics and American natives may test positive simply because they are dark!

Ion scanners detect chemicals that are derived from the building blocks of many substances other than controlled substances.  In particular, the Department of Justice reported that the technology cannot distinguish between two different substances that are composed of ions with similar size and mass.  This means that even an innocuous substance can be identified as illegal contraband.

Additionally, I have seen studies that suggest that as much as 75% to 95% of U.S. currency has drug residue on it.

Today the United States Supreme Court decided Hudson v. Michigan (Slip opinion 04-1360).  The opinion was authored by Justice Scalia in four parts.  Thomas, Alito, Roberts concurred with all four parts, while Kennedy concurred with only parts One, two and three and concurred in Judgment.  Breyer filed a dissent which Stevens, Souter and Ginsburg joined.

It is a 51 page opinion, so it doesn’t exactly qualify as “light reading.”  Here is my extremely “boiled down” summary.

The majority has taken a combination historical and societal interest approach in deciding this case.  They weigh the societal interest in not letting off criminals against the deterrent effect of the exclusionary rule on law enforcement.  Scalia says,

“the grave adverse consequence that excluding relevant incriminating evidence always entails the risk of releasing dangerous criminals. Imposing such a massive remedy would generate a constant flood of alleged failures to observe the rule, and claims that any asserted justification for a no-knock entry had inadequate support. Another consequence would be police officers refraining from timely entry after knocking and announcing, producing preventable violence against the officers in some cases, and the destruction of evidence in others.”

The majority opines that there is not much need for deterrence in this arena because where an officer has a reasonable suspicion to believe that destruction of evidence will take place or that life-threatening resistance will result, the knock-and-announce requirement is not required anyway.  They say that deterrence can be achieved through civil rights suits, internal police investigation and increasing police professionalism.

The dissent authored by Justice Breyer is very lengthy and can be summed up better by Breyer himself, rather than me:

“In Wilson v. Arkansas, 514 U. S. 927 (1995), a unanimous Court held that the Fourth Amendment normally requires law enforcement officers to knock and announce their presence before entering a dwelling. Today’s opinion holds that evidence seized from a home following a violation of this requirement need not be suppressed As a result, the Court destroys the strongest legal incentive to comply with the Constitution’s knock-and-announce requirement. And the Court does so without significant support in precedent. At least I can find no such support in the many Fourth Amendment cases the Court has decided in the near century since it first set forth the exclusionary principle in Weeks v. United States, 232 U. S. 383 (1914). See Appendix, infra. Today’s opinion is thus doubly troubling. It represents a significant departure from the Court’s precedents. And it weakens, perhaps destroys, much of the practical value of the Constitution’s knock-and-announce protection. “

For more analysis, go see SCOTUS Blog.

On May 8, 2006, the Georgia Court of Appeals held that where a police officer was engaged in a first tier encounter with a defendant and the defendant fled the scene, the flight is not PC to arrest the defendant for obstruction of an officer. The court notes that the flight could be enough to give the officers a reasonable suspicion to justify a brief investigatory stop, but it is not PC to arrest.

“What made that initial encounter lawful was that the officers did not detain Dukes. Because the officers lacked reasonable articulable suspicion, not only did they have no authority to detain Dukes, but he had the concomitant right to leave the first-tier encounter. During such an encounter, the officer may not detain the citizen or create the impression that the citizen may not leave.”

Opinion here.

Listen to the torture here. Caution, it’s pretty graphic. Read the transcript here. Read about the officers from the local news station here.

Three and half hours north of here, Lester Eugene Siler was a small time drug dealer in Jacksboro, Tennessee. The police showed up and wanted him to sign a consent to search and he wouldn’t. These cops threaten to kill him. The stick a loaded gun down his pants. They beat him repeatedly with a slap jack. They hook his testicles up with battery cables and shock him. Threaten to burn him with a lighter. They threaten to break his fingers. They even threaten to beat his wife.

During what is the most disturbing 40 minutes of audio you are likely to ever hear, you can hear the deputies laughing. They explain to him how they will explain the marks on him by saying he fought them. And that if they had to kill him, how they would plant a gun.

When a suspect alleges abuse, it is normally a credibility determination with no other proof. His word against the word of the officers. However, his wife had placed a recorder in the room that the beating occured in.

It has been reported that after the tape stops, they stick his head in a bathtub and fishtank while threatening him with drowning.

I don’t normally like to comment on this type of stuff, but I just had to after listening. I found it here and here.

The Supreme Court ruled 5-3 on Wednesday that it is unconstitutional for police without a warrant to search a home, if two occupants are present at the time and one consents but the other objects. The search may not go forward in the face of that objection, but the occupant must be present to have the objection count, the Court said in a decision written by Justice David H. Souter. The case was Georgia v. Randolph (04-1067).

Click here to listen to the podcast.

United States v. Grubbs was decided by a unamious Supreme Court today.  The opinion can be read here.  Mike at Crime and Federalism is up in arms about the opinion. 

   

This officer has just “seized” the citizen.  In Johnson v. State, 231 Ga. App. 273, (1998), an officer aproached the defendant and asked for identificaiton.  The defendant responded, “Do I have to?”  By answering in the affirmative, the officer seized the defendant.  This officer must now have an articulable suspicion to support his conduct.  An officer does not need any articulable suspicion to ask general questions of someone as long as they don’t convey a message that compliance with their request is required.  See McGaughey v. State, 222 Ga. App. 477 (1996).

Battle v. State, 275 Ga.App. 301, 620 S.E.2d 506 (August 31, 2005).     Everyone knows that the police must leave a copy of the search warrant at a house where the warrant is being executed.  Well, sometimes there is not enough information in the warrant itself to satisfy the particularity requirements, rendering it void on its face.  In those cases where the warrant makes reference to the affidavit from the officer and the warrant itself does not meet the particularity requirements, then the police must also leave a copy of the affidavit.  Failure to do so will invalidate the warrant and lead to suppression of the evidence.