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The police violated a juvenile rape suspect’s Fourth Amendment rights by getting his mother’s consent to a penile swab for DNA. The state’s showing of exigency was insufficient. This was harmless error here, however, where the victim ID’d him and his DNA was left on her and on a ski mask. Lee v. State, 2012 Ind. App. LEXIS 229 (May 17, 2012):

The absence of evidence that officers actually believed DNA was about to be destroyed might be due to a lack of evidence that would sufficiently support the State's appellate claim that the officers did so believe, or it might be due to Lee's failure to object and thereby press the State to present evidence thereof. In any event, our narrowly tailored holding is that sufficient evidence of exigent circumstances was not presented at trial. Because it is the State's burden to present such evidence to overcome a presumption of unreasonableness, its failure to overcome that burden renders the admission of such evidence erroneous without another valid justification.

On appeal, the State compares this case to two cases from other jurisdictions in which officers apprehended suspects of sexual assaults soon after the crimes occurred and obtained penile swabs of the suspects in a manner such that appellate courts later held the swabs justified by exigent circumstances. See Kaliku v. U.S., 994 A.2d 765 (D.C. Cir. 2010); Ontiveros v. Texas, 240 S.W.3d 369 (Tex. App. 2007), petition stricken. We agree that the offenses under investigation in Kaliku and Ontiveros are similar to this case, and that the officers faced a similar situation in those cases as the officers did here. We conclude differently from Kaliku and Ontiveros because the evidence presented at Lee's trial regarding officers' thoughts and actions do not demonstrate they actually believed Lee might destroy any DNA evidence on his penis.

. . .

Detective Cress's short statement that he would not allow Lee to wash his hands, without further elaboration, pales in comparison to the evidence presented in Kaliku and Ontiveros, and is insufficient to overcome the State's burden to demonstrate officers actually held an objective, reasonable belief that evidence was about to be destroyed.9

9 Further, it should be noted that if officers wanted Lee's DNA, exigent circumstances certainly did not exist because Lee's DNA would not change and officers could have obtained a warrant and obtained his DNA later.

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Five search warrants were executed after wiretaps. Defendant had standing as to his business and home, but not three others. There is no co-conspirator exception to standing for them (Padilla). There was “strong evidence” of probable cause supporting the search warrants, so the motion is denied as to all five. United States v. Kazarian, 2012 U.S. Dist. LEXIS 70050 (S.D. N.Y. May 18, 2012).*

Defendant had a “full and fair opportunity to litigate” his search claim which he waived by his guilty plea. The after the fact discovery by defendant that a witness on the search issue was not completely believable wasn’t good enough to undermine the plea. Balleza v. United States, 2012 U.S. Dist. LEXIS 69537 (N.D. Tex. May 17, 2012).*

Defendant’s 2255 claim that defense counsel failed to challenge warrantless searches fails without an allegation as to what those searches were and how he was prejudiced by it. Fuller v. United States, 2012 U.S. Dist. LEXIS 70813 (N.D. Ill. May 22, 2012).*

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Yosemite National Park officers came to a campsite to investigate disorderly conduct and a traffic offense and ordered everybody to sit at a table and show their hands. One lady refused to be patted down and then was threatened with being Tasered, and that was unreasonable under the circumstances. She was targeted only because she was with others who might be suspects. United States v. Mazzetti, 2012 U.S. Dist. LEXIS 69922 (E.D. Cal. May 17, 2012)*:

Based on the record before the Court, including the primary concern for the personal freedom of individuals who are suspected of having done nothing more than to have committed, and completed, a misdemeanor, the rangers had the right and duty to approach the group and question its individual members regarding possible criminal activity. However, they lacked the right to conduct an investigatory stop, i.e, restrain the liberty, of Defendant. They did restrain her. The restraints violated protections afforded her under the Fourth Amendment to the United States Constitution.

The Court does not discount nor denigrate the reasonableness and sincerity of Ranger Bellino's belief that the restraints on Defendant's freedom were necessary to ensure safety of himself and his fellow rangers dealing with members of a group which outnumbered the Rangers. The Court respects such concerns. History has shown that law enforcement personnel are regularly exposed to wholly unexpected, and all too often deadly, threats. However, our Constitution demands that such concerns be balanced against citizens' rights to be free of unreasonable seizure of their persons. Thus, law enforcement may not take action to restrain the personal liberties of individuals based on purely theoretical safety concerns. Here, when Ranger Bellino arrived, nothing suggested to him that any member of the group had engaged in any serious crime or threat to public safety or posed an ongoing threat to Ranger Bellino or anyone else. There was no justification for using the threat of force to compel Defendant's continued presence.

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Ethan A. Huff | Fukushima is essentially a grounded nuclear weapon that every second of every day is waging war against Planet Earth.