James L. Green was convicted in Georgia State Courts of rape and related offenses involving two sexual assault on different victims. He appealed and eventually filed an in pro per petition for habeas corpus in the Eleventh Circuit Court of Appeals.

One of the issues was the incompetence of counsel. Green argued that his counsel was incompetent for failing to move to suppress DNA evidence. The Court ruled that even though counsel should have moved to suppress the evidence due to misstatements in the affidavit supporting the search warrant, Green was not prejudiced by counsel’s failure since there was more than enough evidence to convict him even if the DNA evidence had been excluded. The victim testified that she knew Green prior to the attack and she recognized him when he raped her. Therefore counsel’s incompetence did not prejudice Green and the conviction was upheld with the exception of the aggravated sodomy conviction.

Under Georgia law aggravated sodomy is “any sexual act involving the sex
organs of one person and the mouth or anus of another that is committed with
force and against the will of the other person.” The only evidence to support the charge was one of the victim’s testimony that

while threatening her with a knife, Green forced her to perform oral sex on him and to lick his anus. She further testified: “He pushed me down on the bed and
raped me.

The court found this to be insufficient, as a matter of law, to convict Green on the charge. The jury could not assume based upon this testimony that Green’s penis touched the victim’s anus. Therefore the conviction on this count was reversed.

Often small errors end up in people being arrested and convicted of major crimes. I have seen this many times over the years. But the point was brought home by two cases listed on FourthAmendment.com.

First a little bit about the Fourth Amendment. It states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

But the courts, particularly under Chief Justices, Burger, Reinquist, and Roberts have found many “reasonable” exception to the search warrant rule. The two cases that I will discuss today come under the “search pursuant to a legal arrest” and “consent” exceptions.

In a Washington state case, State v. Kirwin a passenger in a car driven by Kirwin at 2:00 a.m. in Olympia threw a beer can out the car window. A police officer saw the can being thrown out the window and arrested the passenger for littering. After the passenger was in the police car the officer search that area of the car that had been in the reach of the passenger. Finding methamphetamine, the officer arrested Kirwin for possession of methamphetamine and he was convicted.

A Georgia case also found in FourthAmendment.com is based upon the search pursuant to a legal arrest and consent exceptions to the search warrant rule. In Sapp v. State In Sapp an informant gave a detailed description of the vehicle and the route Sapp was going to take to deliver methamphetamine. Police officers set up surveillance and followed him. As he followed the expected route he crossed the road’s center line twice. The police stopped him for the traffic violations. He admitted that there was an illegal substance in the truck and he consented to the officers searching the vehicle. Prior to the search, an officer saw a drug pipe on the front seat. Based upon his consent to the search and upon the officer’s seeing the pipe on the front seat the court found the search to be legal on both consent and pursuant to a legal arrest grounds.

In the Washington case the search was based on a passenger’s throwing a beer can out the window and in the Georgia case on a driver crossing the center line. Both cases resulted in methamphetamine convictions.