After Cervantes was arrested his attorney made a motion to suppress the evidence found in the vehicle. The prosecution argued that under the automobile exception to the Fourth Amendment’s warrant requirement there was probable cause to believe that evidence of criminal activity would be found in the automobile and that under the community caretaker exception the search was a valid inventory search.

The District Court accepted the prosecution’s arguement but the Ninth Circuit Court of Appeals rejected it and reversed the conviction. Under the automobile exception to the Warrant requirement police officers may search the interior of a vehicle if they have probable cause to believe that evidence of a criminal act will be found therein. The Circuit Count found that the only evidence of criminal activity involving the vehicle is that a box was removed from the residence and that Cervantes did not take a straight route to the Polk Street residence. The court held that probable cause did not exist. While Hankel assumed that the box removed from the alleged stash house contained contrabrand, he provided no facts supporting his allegation that the residence was a stash house or that the box contained contraband. The failure to take a straight route to the Polk Street residence could be caused by many thing. In fact Cervantes stopped at a liquor store and made a purchase. Considering all of the evidence the appellate court could not say that there was probable cause to search the vehicle.

As to the community caretaker exception there was no evidence that the car was impeding traafic or that it was threatening public safety or convenience. Therefore the inventory search was improper and evidence found in the vehicle must be suppressed.

One of the problems with the program is that it targets minorities. Of those stopped this year 54 percent of the people stopped were black, 33 percent were Hispanic, 9 percent were white and 3 percent were Asian. While 4.7 percent of the population are African American men between the ages of 14 and 24 they account for 41.6 percent of the stops last year.

Another problem with the program is its questionable legality. While a police officer can have a casual conversation with anyone who consents to have a conversation with the officer, in order to stop a person the officer must have a reasonable belief that a crime was committed and that the person was involved in the crime. To frisk an individual the officer must also have a reasonable belief that the person has a weapon. Without a reasonable belief of involvement in a crime or possession of a weapon any weapons found can be suppressed and inadmissable in court. But there is no punishment for officers who commit illegal searches and seizures. Considering that only ten percent of those stopped are arrested or cited it can be presumed that the vast majority of the stops and frisks are illegal. The result of these stops and risks are not only that the personal liberty of individuals are severely infringed upon but that the citizenry, particularly racial minorities lose faith in our police and our criminal justice system.

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The Illinois eavesdropping statute makes it a felony to record any voice without the permission of everyone being recorded, If the person being recorded is a police officer performing his/her duty it becomes a first degree felony punishable with imprisonment up to fifteen years.

The ACLU challenged the Eavesdropping Act. As part of its “police accountability project” it wants to make audiovisual tapes of on duty police officers. The audiovisual tapes will include police officers who speak in public places in a manner audible to bystanders.

The First Amendment guarantees not only the right to express oneself by the use of audio or visual recordings but also the right to make such recordings. While people generally have a right to have private conversation, conversations held in public places in a manner that bystanders can hear them are not private.

The right of freedom of speech is not absolute. The Supreme Court has developed different criteria for legislative impingements on the right. To prevent the audiotaping of police officers in a public place by bystanders who can hear them it is necessary that the legislation be content neutral, be justified by an important public interest and be no more restricting than necessary to further that public interest. Privacy is an important public interest but when the conversation is held in public, with no effort to prevent them from being heard by bystanders, efforts to audiotape the conversations do not further any interest in privacy and when the legislation prohibits taping of all unconsented conversations any interest in privacy is not protected.

Therefore the Seventh Circuit overruled the trial court’s dismissal of the case and issued a temporary restraining order prohibiting the state attorney from enforcing the act against the ACLU. This should also prevent prosecution of citizens participating in activities similar to those of the ACLU.

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James D. Kent was convicted on two counts of procurement of child pornography and 134 counts of possession. The Court of Appeals reversed the convictions as to two counts. These two counts refer to a web site, entitled “School Backyard” found in the cache on his computer. While the presence of the site in the computer’s cache indicates that Kent viewed the site there is no evidence that he “downloaded, saved, printed or otherwise manipulated or controlled the image while it was on his screen.”

New York law requires that both procurement and possession require possession and control of the pornography. But in relation to the “School Backyard” website, where there was no evidence that Kent knew the site was being kept in his cache and where, unlike in the other 134 counts he did not save the photographs it cannot be said that he possessed or controlled the photographs.

The court pointed out that unlike New York law Federal law makes it illegal to “knowingly possesses, or knowingly accesses with intent to view” child pornography. It does not require possession or control of the photographs or the website. It merely requires accessing photographs or web pages with the intent to view them. As a result if Kent had been tried in Federal court Kent could have been convicted on the two counts and the court suggested that New York could amend its laws to adopt the Federal language.

While the court remanded Kent’s case for resentencing it is doubtful that he will benefit from the the reversal on the two counts. The trial court sentenced him to concurrent indeterminate prison terms of one to three years. Thus, unless the trial court has a change of heart he is likely to get the same one to three year sentence.

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Some, including Champion’s family question whether more serious charges should be alleged. Felony hazing is a third degree felony under Florida law. If convicted the students face a maximum sentence of six years in prison. To convict the defendants of first degree murder it would be necessary to show that that the killing was premeditated. There is certainly no evidence of premeditation. Under Florida law second degree murder is “the unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual.” But the death was the result of the combined action of at least thirteen people. Besides bruises on his body there were no signs that Champion was subject to an “act imminently dangerous to another and evincing a depraved mind regardless of human life.” He died from internal hemorrhaging which would not have been visible to those on the bus. To prove manslaughter, under Florida law it is necessary to prove culpable negligence.

“In order for negligence to be culpable, it must be gross and flagrant. Culpable negligence is a course of conduct showing reckless disregard for human life, or for the safety of persons exposed to its dangerous effects, or such an entire want of care as to raise a presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard for the safety and welfare of the public, or shows such an indifference to the rights of others as is equivalent to an intentional violation of such rights.”

Its possible the state could prove manslaughter against at least some of the defendants. But it would not be easy. Its probable that some if not all of the defendants had participated in prior similar incidents of hazing. Hazing occurred on a regular basis at FAMU and in the Marching 100. Never before had it resulted in death and there was really no reason for the participants to fear that Champion would die. As a result it would be hard to “show a reckless disregard for life.” The difficulty of proving manslaughter increases in light of the fact that there were over twenty people on the bus and it would be necessary to show facts indicating that each individual had the state of mind necessary for a finding of guilty to a manslaughter charge. Possible but unlikely. Proving felony hazing is much easier, but not a foregone conclusion. The state will have to show that Champion died as a result of hazing and that the individual defendants participated in the hazing.

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After arresting him several of the police went into the residence to perform a “protective sweep.” Under Fourth Circuit precedent a “protective sweep” is a permissible exception to the Fourth Amendment warrant requirement. A “protective sweep” is “limited to a cursory inspection of those spaces where a person may be found.” The purpose of the “protective sweep” is to find people who they reasonably expect to find and who may be dangerous to the officers. As the officers entered the residence Laundermilt told them that his fourteen year old autistic brother was in the house. But the officers did not know if anyone else was in the residence.

After briefly searching the residence they found Laudermilt’s brother. He was the only one in the residence. They asked him if he knew where the gun was. He showed them the gun. After his indictment Laudermilt moved to suppress the gun. The motion was granted and the government appealed the decision to the Fourth Circuit Court of Appeals. The appellate court ruled in the government’s favor. It held that even after finding Laudermilt’s brother they could continue looking for additional people. Furthermore, the court ruled that they could look for the gun in order to protect the special needs child.

As a result the court upheld the search and remanded the case.

But even if we agree that a protective sweep was necessary and I think this is a close case, a “protective sweep” is limited to looking for people in the residence. Officers can only look in those areas where people may be found. In this case by asking Laudermilt’s autistic brother where the gun was the officers went beyond a “protective search and instituted a search of the residence. A “protective sweep” is done to insure that there is no one in the house who may hurt the officers or others. If the officers want to go beyond the elements of a “protective sweep” and search the residence they need to get a search warrant signed by a judge. After they discover any people in the house they can freeze the residence while they get the search warrant. But they cannot search the house before they get the warrant.

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Colorado does not have a death penalty. All people convicted of first degree murder are automatically sentenced to life in prison without parole. If the state had a death penalty Dewey may have been executed before modern advances in DNA exonerated him.

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In Madison’s third trial the court denied his Batson objection after the defense made its initial prima facie case and without the prosecutor giving any race neutral explanation, saying that the defense had not proved “bias on the part of the State.” But at that stage the defense is not required to prove bias. It is only required to make a prima facie case. Among the factors that a court must look to in determining whether a prima facie case has been made are the prosecutor’s pattern of strikes against black jurors, the prosecutor’s questions and statements during voir dire examination, the failure of a prosecutor to ask meaningful questions to the struck jurors, and whether or not the case is racially or ethnically sensitive,” and evidence of past discrimination in jury selection. Here the appellate court found sufficient evidence that the defense presented a prima facie case. The venire consisted of 60 potential jurors. Fifteen of them were African American. Two of the African Americans were excused for cause. The prosecutor used six of his eighteen peremptory challenges to challenge African Americans. He did not ask any of them significant questions and he failed to voir dire three of them. It was a racially sensitive case since Madison is African American and he is accused of killing a White police officer.

For these reasons the appellate court found that a prima facie case had been made and remanded the case to the state courts to complete the Batson process.

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He started an investigation for impersonation of an officer. During the investigation he verified the information Merchant gave him during the meeting. He also verified that certain citizen employees of the n Prince George’s County Department of Corrections, including Merchant, were entitled to carry a badge. However, he continued the investigation. He discussed his findings with a deputy Commonwealth’s Attorney who told him he had a good case and he reviewed case law on the matter. Then he went to a magistrate and got a warrant. Merchant was arrested. But at trial the court threw the case out finding that there was no evidence to support the charges.

Merchant sued. Bauer claimed qualified immunity. The District Court denied the claim. In order to find that the officer had qualified immunity the court must find that there was no violation of a constitutional right or the right was not clearly established at the time of the incident. . The constitutional right to be free from unreasonable searches and seizures is guaranteed by the Fourth Amendment. The need for probable cause to arrest a person was well known at the time of Merchant’s arrest and no reasonable person would have thought that probable cause existed based upon the information known to Bauer. As a result the Fourth Circuit Court of Appeal upheld the denial of qualified immunity.

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