THE CONSERVATIVE SUPREME COURT CONTINUES TO WEAKEN CONSTITUTION PROTECTIONS

The Supreme Court, specifically Justice Alito, in an 8-1 decision, weakened the fourth amendment in the case of Kentucky v. King, 131 S. Ct. 1849, 179 L. Ed. 2d 865 (2011).  Police officers in an undercover operation chased a suspect into an apartment building.  The suspect made it to an apartment and the police heard a door slam but they did not see which door it was.  The suspect, as the police learned later, entered the apartment on the right but the police knocked on the door on the left.  The police claimed that the smelled marijuana smoke coming from the apartment on the left.  They banged on the door as loudly as possible and yelled police.  They heard things being moved around in the apartment.  The officers testified that they thought evidence was being destroyed.  They kicked the door in and found marijuana, powder cocaine, crack, and drug paraphernalia.  The police later found the suspect they originally chased in the apartment on the right.

The trial court denied the motion to suppress based upon the alleged unlawful entry into the home.  The Kentucky Supreme Court reversed on the trial court, finding that the exigent circumstance had been created by the police.  The United States Supreme Court found that banging on the door and announcing that they were the police did not create the exigent circumstance and the police announced that they were entering the apartment only after hearing noises which they described as what they thought evidence being destroyed. 

Here is my problem with the court’s decision.  The key to allowing entry into the home in Kentucky v. King case was the officer’s testimony that he heard what he thought was evidence being destroyed.  There is no way to verify this evidence.  The majority of police officers are honest.  There are other officers, however, that are not honest at all.  They will lie without hesitation.  This decision makes it possible for any of those dishonest officers to kick in anyone’s door and then justify that warrantless entry by saying that they thought they heard evidence being destroyed.  With that one sentence, the police officers now have nearly unrestrained ability to enter someone’s home without a warrant. 

One could argue that police who are willing to lie have always possessed this ability.  That is true but this makes it so much easier for them.  Instead of concocting some elaborate story, there is just one simple sentence that has to be put forth which will justify a warrantless entry.  It seems like this case was specifically written to cater to the dishonest officer who lacks the ability to create an elaborate story to justify and cover-up his unconstitutional activities.

This is just another in a line of cases that continues to erode our rights.  Specifically, this case erodes our fourth amendment right to be free from unreasonable search and seizure.

If you have a question about legal representation, check out my website to see if it is an area of law that I could possibly help you.  Here is a link to my website:  http://www.ellislawfirm.pro/

SHOULD YOU GIVE A STATEMENT TO THE POLICE IF ARRESTED?

In my opinion, there are two responses, and only two responses (or slight variations on these responses), that a person under arrest should give when questioned by the police.  First, a suspect could say “I am not going to say anything,” or “I respectfully decline to say anything.”  There is no reason to be impolite or to curse.  A person does not have to drop the “F bomb” to the police before they realize they are wasting their time. 

Second, a suspect could say “I want to talk to my lawyer before I say or do anything.”  The U.S. Supreme Court has ruled that a suspect’s demand for an attorney must be unambiguous and that right to an attorney can be waived without clearly demanding an attorney.  Berghuis v. Thompkins, 130 S. Ct. 2250 (2010).  So the suspect must be clear that they will not give a statement without first speaking to their attorney.  If the suspect does not have an attorney, then he can say he wants to speak with his public defender or whoever is hired for him first.

I am always amazed when people confess to crimes, particularly when it is previously convicted felons confessing to crimes.  In some cases, the person confesses within minutes of being arrested.  This makes the defense attorney’s job much harder and sometimes can make a valid defense worthless.  For example, suppose a person is arrested for murder but adamantly denies ever touching a gun on the night the person died.  Then, after speaking with a defense attorney it appears that the case is custom made for a self defense strategy.  To claim self defense, though, the defendant will have to change his story.  He will have to admit to using the gun.  In other words, he will have to admit that he lied in his statement to the police.  Put yourself in the jury’s shoes.  They don’t know what happened.  They were not there.  They can’t tell if the defendant is telling the truth or not.  They only thing that they can know for sure is that the defendant is willing to lie when it serves his purposes. 

There are several reasons, only some of which are listed in this blog post, to not give a statement.  First, giving a statement is giving evidence against oneself.  Even if the defendant denies any wrongdoing, a prosecutor can still use the statement.  Anything the defendant says can be used against him if it conflicts with what he says at trial.  It can also be used if it conflicts with other people’s accounts of what happened.  So even if the defendant keeps his story consistent, his credibility can still be questioned when his story conflicts with other witnesses’ testimony. 

Second, the defendant will get nothing in return for giving the statement.  He will not be released from jail for cooperating.  He will not get more favorable treatment from either the police or the prosecutor for giving a statement.  The judge will not give him a more lenient sentence for confessing.  (In federal court there is an advantage to accepting responsibility for an offense but that is long after being questioned by the police.)  So, there is no benefit to confessing.  If the defendant wants to clear their conscious, then they should do so with their attorney. 

Third, giving a statement locks in the defense theory.  As pointed out in the hypothetical, the denial of touching a gun used in a murder case may make a self defense theory impossible.  Perhaps the defendant acted in self defense.  Maybe the defendant went overboard and used excessive force.  This could make the lesser charge of second degree murder charge a possibility.  The statement about not touching the gun, however, can lock in the defense and make a self defense strategy difficult and in some cases impossible. 

Fourth, a defendant may unintentionally confess.  Some detectives are very skilled interrogators.  They really know what they doing.  I have seen a suspect initially denying any wrong doing.  By the end of the interview, he was saying that he would apologize to the victim if she were present.  He did not mean to confess.  He just felt sorry for her and what she had been through but not because he caused any of her problems.  Once he said that, though, it did not matter.  He was caught and later he was forced to plead guilty. 

Fifth, if the police and the prosecutor believe that the defendant lied in his statement to prevent his prosecution, then the prosecutor could charge him with obstructing justice.  The elements of this charge are that a person provides false information to prevent their prosecution or the prosecution of another person.  The most common example of this is when a person lies to the police about who they are by giving a false name because they fear that there is an outstanding bench warrant for their arrest.  Any false information given to prevent a person’s prosecution, however, could lead to this charge.  A defendant may compound his problem by trying to talk his way out of being arrested.  Instead of talking his way out of a charge, he may talk himself into an additional felony charge of obstructing justice.

I have a friend who has contacted me several times over the years about his family members or friends who have been arrested.  His question is always the same:  what should I tell the person under arrest to do?  My answer is always the same:  Tell them, “DO NOT GIVE A STATEMENT.”

If you have a question about legal representation, check out my website to see if it is an area of law that I could possibly help you.  Here is a link to my website:  http://www.ellislawfirm.pro/