Blog Jay Leiderman Law

THE FRUITS OF AN ILLEGAL SEARCH OR SEIZURE ARE TAINTED AND MAY NOT BE USED AS EVIDENCE

Evidence seized as the result of a search or seizure (or an arrest) which has exceeded permissible bounds is the “fruit of the poisonous tree” and must be excluded. Wong Sun v. United States, (1973) 371 U.S. 471. Thus confessions, admissions and physical evidence are barred, Lockridge v. Superior Court, 3 Cal.3d 166 (1970); as well as testimony as to the identity of stolen goods, People v. Dowdy, 50 Cal.App.3d 180 (1975); and tape recordings, People v. Coyle, 2 Cal.App.3d 60 (1969). See also Ruiz v. Craven, 425 F2d 235 (9th Cir 1970) (confession after confrontation with illegally seized heroin).

“fruit of the poisonous tree”

Also, tangible evidence obtained as a fruit of a Miranda violation is inadmissible and may be suppressed under Penal Code section 1538.5. People v. Abbott, 3 Cal.App.3d 966 (1970); U.S. v. Casell, 452 F2d 533 (7th Cir 1971); People v. Superior Court (Keithley), 13 Cal.3d 406 (1975). An admission or confession or other intangible fruit which is the result of an illegal arrest can be challenged under Penal Code section 1538.5. Wong Sun, supra; People v. DeVaughn, 18 Cal.3d 889 (1977).

jay leiderman defense attorney defending clients accused of committing crimes medical marijuana jury instructions fruit of an illegal search

Jay Leiderman on his way into Federal Court to present a vigorous and hard-hitting defense; his duty under the constitution and his privilege as a lawyer.

Once it is shown that a statement was the fruit of a violation of the constitutional proscriptions against unreasonable searches and seizures, it is the People’s burden to purge the evidence of its taint. A mere giving of the Miranda admonition is not enough. Brown v. Illinois, 422 U.S. 590 (1975). Here, there is a substantial amount of taint upon the seized items. The taint was not purged from the evidence, and thus, it should all be suppressed.

 

 

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Cats are juxtaposed to drug sniffing dogs.  It’s an unfair juxtaposition.  The cat is the internet’s favorite animal.  The internet has it all wrong about cats.  Caturday has given way to Sundog.

How did cats and drug sniffing dogs come out of a conversation about encrypted chat messaging? Sometimes one conversation morphs into another.  On one of the legal listserves I post to, there was a discussion of the messaging app known as What’s App.  What’s App has end-to-end encryption.  It used to be secure – somewhat, as it had sever major security breaches since its launch – but it was mostly secure.  But it will now be sharing data with FaceBook and that is the end of that app.  It is useless.  There are some great encrypted apps out there: Wickr, Confide, Telegram and so forth.  There are also good email services that are free and secure.

Then the conversation turned around.  We pick up with the last line of my statement on What’s App (I’m dog lover):

Drug sniffing dog

Cats. TehInterwebz favorite animal.

 

Dog lover (after a long What’s App thread): Avoid What’s App unless you want to send pictures of your cat to your friend in Indonesia for free.

Cat Lover 1: Thanks for the warning. I killed my cat as a result.

Dog lover: As a result or as a precaution?  Cats are total snitches.

Cat lover 1: Both

Cat lover 2: So, it appears we may have a catophobe amongst us!  I vehemently take umbrage with this unprovoked, uncalled for, and unenlightened attack on our feline friends.  It is dogs we need to worry about.  A dog will sell you out for a milkbone.  And did you ever have to follow a cat around picking up its poop in a bag?  Ggggrrrrrrrrrrr!

Cat lover 1: Not Catophobe. Cataract.

Truth is I do like cats except for one little Siamese. During my first year of law school (shortly after the Civil War) I lived in Berkeley with my then wife. We had a nice house trained cat who used a cat box or went outside. Then a friend, going away for a month, asked us to take his Siamese. Turns out that it was either not housebroken or like most Siamese didn’t give a damn about courtesy. It taught our cat to ignore the smelly cat box and feel free to poop or pee in our apartment. I could never catch them mid-stream, so to speak.

One day I returned home from law school, depressed, angry and tired as on most days.

There was a pile of cat pee and nearby sat the Siamese preening itself. I picked it up, kicked open the screen door, and put it in the yard – suffering a badly scratched up hand for my trouble.  Before the door swung shut the cat flew through the door back into the house. I stood there in amazement before I went looking for the cat who, in the interim, jumped on our bed and was just finished peeing on my pillow and flew out the door past me.  I never bothered the cat again and as soon as its owner returned and took the evil Siamese away, we re-taught our cat the joy of the cat box.

Drug sniffing dog

Cats can be so cruel

 

Cat lover 2: And I never had a client get busted because of a cat sniff!

Cat lover 1: That’s right. A dog will do worse than snitch you out for drugs. He’ll do much worse. He’ll pretend he smells drugs so his friend and master can search and give him a doggie treat. Can you imagine selling someone out for a doggie treat and they get 20 years. Sit. Good dog. Stay. Sniff and point. Good boy.  OK my apologies to the cats of the world. Here kitty. Owwww you scratched me.

catlolcatexample
***

From Wikipedia:

A detection dog or sniffer dog is a dog that is trained to and works at using its senses (almost always the sense of smell) to detect substances such as explosives, illegal drugs, wildlife scat, currency, or blood. Hunting dogs that search for game and search dogs that search for missing humans are generally not considered detection dogs. There is some overlap, as in the case of cadaver dogs, trained to search for human remains. Some police dogs that are used in drug raids are trained not only to locate narcotics, but also persons who may be hiding from the police, as well as stashed currency. Some detector dogs can locate contraband electronics, such as illicit mobile phones in prisons.

Their use has been criticized as allowing the police to conduct searches without cause, in a manner that is unregulated. They have been criticized as a form of show-policing, motivated more by the state’s desire to be seen to be doing something than any serious attempt to respond to the dangers of drug use.

Drug sniffing dog

Bad doggie!

In the United States, Narcotic Detection dogs had to become court qualified prior to their talents becoming admissible in a court of law.

In 2011, the Chicago Tribune reviewed the traffic stop data from Chicago-area police departments, and found that “false alerts” were strongly biased against Hispanic suspects.[17] For example, in Naperville, Illinois, an average of 47% of all positive detection dog alerts resulted in subsequent discovery of narcotic drugs or drug paraphernalia. Looking specifically at Hispanic suspects, however, only 8% of the dogs’ positive alerts resulted in similarly fruitful searches. The report concedes that some – but not all – of this disparity can be attributed to “residual odors”, which linger even after contraband is removed from the vehicle. But given that the dogs themselves harbor no racial bias, the Tribune concludes that the dogs’ response is influenced by the biases and behaviors of their handlers. Further still, the report points to the fact that very few states have mandatory training, testing or certification standards.[17]

In June 2012, three Nevada Highway Patrol officers filed suit against Nevada’s Director of Public Safety, alleging that he destroyed the police dog program by intentionally training canines to be “trick ponies” – to falsely alert based on cues from their handlers – so as to enable officers to conduct illegal searches of vehicles. The lawsuit claims that in so doing, he and other top Highway Patrol officers had violated the federal Racketeer Influenced and Corrupt Organizations (RICO) Act.

Drug sniffing dog

 

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I’ve defended a lot of cases where police found drugs in a home and parents get charged with 273a(a) — felony child abuse.  Some involve cocaine.  The only times I’ve ever seen a positive test in a child is when they get into pot brownies or marijuana-infused candy. Though police “experts” testify this is dangerous for the child, the science does not support that conclusion.  Not only have long-standing tests and anecdotal evidence proved this, but consider this: it is common these days for parents to give children with cancer a strain of marijuana called Charlotte’s Web.  It has proved effective in both alleviating pain and stopping the spread of some cancers.  Marijuana is “neuroprotective.”

Such is NOT the case with coke.  These drug-dealing parents are going to need a real good lawyer.  We don’t know the parent’s side of the story and everyone is presumed innocent.  Still, they’ll need a good lawyer to help with this case.  The news report does not make them sound very good.

http://mynewsla.com/crime/2014/09/29/suspected-drug-dealers-son-5-tested-positive-cocaine-couple-arrested/

Suspected Drug Dealers Son, 5, Tested Positive for Cocaine; Couple Arrested

Cocaine

Marco and Sanday Cuevas were arrested and booked for possession for sale of cocaine, conspiracy to sell cocaine and child endangerment. Photo courtesy of Ventura Sheriff’s Department

A Sylmar couple’s 5-year-old son tested positive for cocaine after detectives in Ventura County stopped his parents’ vehicle and found the boy in the back seat area along with a half pound of the drug, authorities said Sunday.

Marco and Sandy Cuevas were arrested Friday in Moorpark by detectives investigating cocaine use and sales in the eastern portion of Ventura County, according to the Ventura County Sheriff’s Office.

“The cocaine was being used and sold by teenagers and young adults,” according to a sheriff’s department statement.

My guess is that with this quantity, the parents may have had significant addiction issues and were selling to both support themselves and their habit.  A parent who is an addict leaves coke around where a 5 year old can access it in that they are careless and have greater service to the drug than they do to their obligations as a parent.  I firmly believe in a model of treatment over incarceration in drug cases.

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Sentenced to community service for flatulence … but what is the crime?

THE FLATULENCE WAS TOO GREAT TO WITHSTAND: WOMAN BANNED FOR LIFE ON BRADFORD BUSES

A flatulent woman has received a lifetime ban from a Bradford bus company after repeatedly breaking wind in their vehicles. On one occasion a driver was physically sick.

Some bastard has squashed a Frog

Bradford Magistrates Court heard how Yolande Pogba, aged 48 from Lumb Lane, Bradford reveled in what she was doing and on most occasions would bend over to create the maximum impact.

flatulence

Now infamous defendant Yolande Pogba

On 18th June 2016, Mrs Pogba (pictured) boarded a packed bus at Bradford Interchange and crouched next to an elderly gentleman. As the bus set off, she let off an excruciating sound from her bottom. Mrs Pogba, clearly impressed with her actions then shouted “Some bastard has squashed a Frog”

The bus company recorded 148 separate incidents. On the 22nd June, she boarded a bus in Holmewood and forced her way into the drivers cab, repeatedly breaking wind, cupping her hands and rubbing the atrocious smell into the drivers face until he was sick.

cupping her hands and rubbing the atrocious smell into the drivers face

Solicitor Rick Head, representing Mrs Pogba asked for the court to be sympathetic “My client is addicted to Jamaican Rum and kidney beans and unfortunately this brings out the worst in her personality and makes her bottom talk”

The court fined Mrs Pogba £375 and ordered her to pay £20 compensation to the bus driver – Mr Bob Aloo Bhuna. She was also sentenced to 120 hours community service.

Known as Yolande Pogba, aged 48, she bent over whilst breaking wind to create “maximum impact” and even managed to make the driver sick- due to the foul stench.

BUT WHAT IS THE CRIME FOR BEING AGGRESSIVELY FLATULENT IN ENGLAND?

affects the comfort and convenience of life of Her Majesty’s subjects

It appears to be public nuisance:  At common law public nuisance is a crime for which the remedy is criminal proceedings. It is defined as an unlawful act or omission which endangers or interferes with the lives, comfort, property or common rights of the public.

From Wikipedia: “Public nuisance concerns protecting the public, unlike private nuisance, which protects an individual. As such it is not only a tort but also a crime. In Attorney-General v PYA Quarries Ltd, it was defined by Romer LJ as any act or omission “which materially affects the reasonable comfort and convenience of life of a class of Her Majesty’s subjects”

flatulence

Her majesty’s subject were apparently subjected to the smell of processed rum and kidney beans on over 150 occasions.

California law may have a more specific statute.  May.  It’s a stretch, but check out the “gassing” statute, 243.9(b): For purposes of this section, “gassing” means intentionally placing or throwing, or causing to be placed or thrown, upon the person of another, any human excrement or other bodily fluids or bodily substances or any mixture containing human excrement or other bodily fluids or bodily substances that results in actual contact with the person’s skin or membranes.

Probably not.

 

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Know Your Rights by the Clash

You have the rights not to be killed, to food money and to free speech. But don’t try to exercise these rights lest you be crushed by the government.

 

The Clash – Know Your Rights – YouTube
https://www.youtube.com/watch?v=5lfInFVPkQs

Know Your rights

You have the right not to be killed; unless it is by a policeman #BlackLivesMatter

 

Lyrics

This is a public service announcement

With guitar
Know your rights
All three of them

Number one
You have the right not to be killed
Murder is a crime
Unless it was done
By a policeman
Or an aristocrat
Oh, know your rights

And number two
You have the right to food money
Providing of course
You don’t mind a little
Investigation, humiliation
And if you cross your fingers
Rehabilitation

know your rights

Human rights and civil rights are often trampled upon by governments

Know your rights
These are your rights
Hey, say, Wang

Oh, know these rights

Number three
You have the right to free speech
As long as
You’re not dumb enough to actually try it

Know your rights
These are your rights
Oh, know your rights
These are your rights
All three of ’em
Ha!
It has been suggested in some quarters
That this is not enough
Well

Get off the streets
Run
Get off the streets

know your rights

Combat Rock, the 1982 Clash album, laid bare the fallacy that the people really have rights beyond what the government, the aristocracy and the corporatocracy feel like giving you.

“Know Your Rights” is a song by The Clash. It was released as the first single from the album Combat Rock, three weeks prior to the release of the album.

The song begins with the words “This is a public service announcement…with guitars!” The structure of the song revolves around the rights held by the poor and disenfranchised, in which the speaker of the song, presumably a villainous civil servant (whose identity is assumed in the song by vocalist Joe Strummer), names the three actual rights. At the end, the notion that more rights should be granted is rebuffed by the speaker

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