When an occasional client has to go to Rappahannock Regional Jail for a few days, they sometimes wonder what clothes they can wear. If you wear white undergarments underneath your street clothes when you go to jail, the jail will let you keep those white undergarments. That’s all you can keep. The jail can be [...]
What can I wear to jail?
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Understanding Official Misconduct & Obstructing Governmental Administration with a "Brady" Twist: NY Penal Law Sections 195.00 & 195.05
Being charged with and arrested for any misdemeanor crime in New York is no walk in the park. A New York criminal defense attorney need not advise you of this obvious fact. The reality is, any accusation has significant and collateral consequences. When the crimes involve some alleged form of fraud or dishonesty involving the government, the offense looks even uglier. Two crimes that fit in this mold are Official Misconduct, New York Penal Law 195.00 and Obstructing Governmental Administration in the Second Degree, New York Penal Law 195.05. As ugly as the crimes may be, however, an arrest for either PL 195.00 or PL 195.05 does not equate to guilt beyond a reasonable doubt.
Although I have blogged and drafted materials on both of these crimes, before addressing a recent court decision it is worth briefly explaining the parameters and definitions of these offenses. To be guilty of Official Misconduct pursuant to NY PL 195.00, one first must be a public servant. Further, one must have the intent to obtain a benefit or deprive another person of a benefit. In addition to these elements, as charged in the case discussed below and according to subsection two of this crime, one must knowingly refrain from performing a duty that one is imposed by law or clearly inherent in the nature of one's office.
An obviously different crime, Obstructing Governmental Administration in the Second Degree, in violation of NY PL 195.05, is defined differently than Official Misconduct. Here, one is guilty of this crime if one intentionally obstructs, impairs or perverts the administration of law. This must be done by means of intimidation, physical force or interference, or by means of any independently unlawful act. Now that we have addressed these two offenses, lets review a recent legal decisions that will give us a better understanding of these crimes.
In People v. Nicholas Lemma, 2010NA026090, NYLJ 1202590033334, at *1 (Dist., NA, Decided February 11, 2013), the defendant was arrested for Official Misconduct and Obstructing Governmental Administration in the Second Degree. At the time of his arrest, Lemma was a police officer and detective in Nassau County. One of his investigations involved an alleged robbery by Raheem Crews. Despite having direct knowledge that Mr. Crews was incarcerated at the time of the alleged robbery, and therefore Crews could not have committed the crime, Lemma did not share this information with prosecutors or other law enforcement agents at the time of Crews' arrest. For multiple months, Crews was charged with varying degrees of robbery for the his alleged conduct before the case against him was ultimately dismissed.
It is clear from the nature of Lemma's employment that as a police officer, Lemma was a public servant. Not as obvious was whether by keeping the fact of Crews' incarceration to himself, Lemma violated a duty imposed by law or clearly inherent in the nature of his office as a police officer. According to the court (a review of the actual case goes into much greater detail of when this duty arises in general):
"While the People [prosecution] are correct that police officers have an obligation to disclose exculpatory information in their possession, See: People v. Russo, 109 A.D.2d 855, 486 N.Y.S.2d 769 (2nd Dept. 1985), the People's reliance on this principle is misplaced. The Defendant's failure to disclose the fact that Raheem Crews was incarcerated on March 26, 2005 simply was not a violation of such a duty."
While withholding the above information is certainly concerning and seems ethically corrupt, the court examined the officer's "duty" in the context of the Brady rule which dictates that exculpatory evidence must be provided to the defense, but not necessarily at the point it is discovered. Although one can violate their Brady obligation, doing so is not necessarily criminal.
The court then turned to whether the defendant intend to obtain a benefit or deprived another person of a benefit. Here, the defendant argued he obtained no benefit by withholding the information and his failure to disclose "'was anything other than 'the product of inadvertence, incompetence, blunder, neglect or dereliction of duty [which] no matter how egregious [should] more properly be considered in a disciplinary rather than criminal forum.'" The benefit the defendant did intend to deprive the accused of, according to the People was "to deprive Crews of a benefit, namely to be exonerated, and have is liberty restored...." This intent could be inferred from the defendant's failure to provide the exculpatory information.
Despite the People's assertion, the court disagreed and noted that there is a very real difference between "knowledge" and "intent." "'Intent is the actor's conscious aim or objective in performing certain acts, while knowledge is an awareness that a particular element of a crime is satisfied (citation omitted).'" People v. Cabassa, 79 N.Y.2d 722, 586 N.Y.S.2d 234 (1992); See also: Penal Law 15.05(1) and 15.05(2).
In short, "[i]t may appear upon the record that the defendant[] [was] guilty of stupidity and veniality and [was] unreasonable in what [he] did. But these qualities are not criminal. And we cannot substitute a reasonable man test for the essential requirement of criminal intent. Without criminal intent there is not a crime here." People v. Mackell, 47 A.D.2d 209, 366 N.Y.S.2d 173 (2nd Dept. 1975) [conviction of District Attorney of Official Misconduct for failing to disclose knowledge of scheme to defraud reversed].
Just like the insufficiency of the Official Misconduct arrest charges as contained in the complaint, elements of Obstructing Governmental Administration in the Second Degree elements were missing as well. First, the complaint did not establish the defendant's intent to "obstruct, impair or pervert the administration of law, or prevent or attempt to prevent the performance of that function by failing to advise anyone that [the defendant] was incarcerated....While his silence is demonstrated to have been the result of neglect, carelessness, callousness or indifference, this is not the same thing as a 'conscious objective or purpose' to affect the administration of justice in any way." Further, the criminal court complaint did not establish any intimidation or related actions or interference. In fact, the information establishes the defendant failed to take any action at all. Without an independent unlawful act, the Obstructing charge failed as well.
An interesting case that walks the line between an ethical and criminal violation, Lemma is certainly a "good read." From what the case outlines, "good" and Lemma, however, may not go hand in hand. Whether or not Crews was a jerk, condescending, a punk or a convicted criminal, all members of law enforcement have a moral and ethical obligation.
To read about the crimes is New York Penal Law 195.05 or New York Penal Law 195.00, follow the links above to CrottySaland.Com or search for those terms in the NewYorkCriminalLawyerBlog.Com. There you will find not only the analysis of particular statutes, but a review of legal decisions that further define New York's criminal code.
Representing clients in all criminal arrests, indictments, investigations and trials, the founding New York criminal lawyers at Crotty Saland PC both served as Assistant District Attorneys in the Manhattan District Attorney prior to starting the criminal defense firm.
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Can An Attorney Help Me Avoid Criminal Charges?
Every so often we have clients who make the incredibly smart decision to talk to us before they have been indicted. In these situations we are often able to do what might seem like the impossible – keeping charges from being filed. Now it does not happen all the time. Many accusations are simply going [...]
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Businessman and Attorney Found Guilty of Loan Fraud
Hussein "Sam" Nazzal, 58, Dearborn, Michigan, a businessman, and Edward A. Schneider, 59, Dearborn, an attorney, were found guilty of multiple counts of fraud and commercial bribery after a three-week trial before U.S. District Judge David M. Lawson.
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Seventh Circuit Reiterates the Importance of a Suspect Invoking Right to Counsel
In United States v. Hunter, officers stopped a truck after they witnessed occupants apparently engaging in a drug deal. Hunter fled from the passenger seat with something resembling a gun in his hand. Officers ordered Hunter to stop, but Hunter continued to run. The officers heard a gunshot and fired at Hunter, striking him in the left buttock and in the foot. Hunter fell to the ground and was handcuffed. Police recovered a revolver from the ground close to Hunter, with one spent shell casing in the cylinder. Hunter was transported to a hospital by ambulance.
A Detective Karzin accompanied Hunter to the hospital, and Hunter was handcuffed to the hospital gurney at all times. Doctors administered narcotics, but a treating nurse later testified that he had remained “alert and oriented.” While Hunter was receiving treatment, Karzin sat silently in the room until Hunter initiated interaction. Karzin read Hunter his Miranda rights. At some point, Hunter gave the name of his lawyer and asked if Karzin would call him. Karzin did not do so. Hunter made incriminating statements to officers who arrived after the conversation. The district court suppressed the statements. The Seventh Circuit affirmed, stating that because appellant unambiguously and unequivocally invoked his right to counsel, the officers should have stopped questioning him. As a result, the statements appellant made after asking for his attorney were properly suppressed.
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News Roundup
Since tomorrow’s a holiday for many, including me, this week’s news roundup comes a day early. The lead story is the apparent crumbling of the video sweepstakes industry. Major software vendor International Internet Technologies has announced that it will immediately cease doing business in North Carolina, so that the company’s owner can turn his full [...]
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Sixth Circuit panel grants habeas relief to Tennessee defendant sentenced in violation of Blakely
Sadly, I no longer get ample opportunities to blog about Blakely Sixth Amendment sentencing issue these days -- though I suppose this could change if (and when?) the Supreme Court give these issues a new boost via a big ruling...
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"Buzzkill? Cash-strapped states eye pot tax"
The title of this post is the headline of this lengthy new article in Politico. Here are excerpts: Now that voters in Colorado and Washington have legalized recreational marijuana use, dope smokers there can light up without the usual paranoid...
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March Madness, Sweet Sixteen Open Thread
The investments today:
Syracuse +6 over Indiana, Arizona +4½ over Ohio State, Marquette +6 over Miami Florida, Wichita State -4 over La Salle.
Currently 25-21 ATS, +15 units, for March Madness.
Open Thread.
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Crime Laboratory Delays May Prejudice DWI Defendants
The North Carolina crime laboratory and other local laboratories perform about 10,000 blood toxicology analyses annually. The majority of these tests involve impaired driving cases; and, unlike breath analysis results, many months may pass after one has been arrested for DWI before the state receives a toxicology report analyzing the defendant’s blood. The reasons for [...]
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FITCHBURG ARMED ROBBERY DEFENDANTS NEED EXPERIENCED DEFENSE COUNSEL
It was early morning in Fitchberg. It was a Cumberland Farms store. It was a Massachusetts armed robbery.
And a state trooper was nearby.
Trooper Donald Gray was in the vicinity of 367 River Street, at the intersection of River and Daniel streets when he took the gentlemen (hereinafter, the “Defendants”) into custody. They were nabbed approximately 700 feet from the store, according to Fitchburg Police Captain Paul Bozicas.
Bozicas added that Fitchburg officers were responding at the time when they were notified that Gray already had the men in custody.
Authorities say that the Defendants were still wearing the masks they had allegedly worn during the robbery when the trooper stopped them.
Apparently, it was sheer luck that Gray was patrolling the Central Massachusetts community at the time. and he recovered a knife authorities suspect was used during the robbery of the Cumberland Farms store
“It was good luck he was right in that area,’’ said Bozicas. “Good policing is being in the right spot at the right time.’’
The trooper was even able to recover the knife that the Defendants allegedly used during the robbery. The clerk in the store, by the way, was unharmed.
The Defendants are both from Fitchburg. One is 23 years of age and the other is 40. They face a number of charges, including armed robbery while masked.Attorney Sam’s Take On Seemingly Hopeless Armed Robbery Cases
To be sure, if what authorities tell us is true, this is not going to be an easy case to defend. It is as close to being “caught in the act” as one can get without actually being…well…caught in the act.
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Evan Rodriguez, NFL Player, Arrested in Miami Beach, Florida for Resisting Arrest
Evan Rodriguez, an NFL player for the Chicago Bears, was arrested in Miami Beach, Florida on Wednesday after he allegedly interfered with a police investigation following an accident, news sources report. Rodriguez, 24, was booked into a Miami Beach holding facility on charges of resisting arrest and disorderly intoxication. His bail was set at $1,500. So far, no lawyer has released a statement on behalf of Rodriguez.
According to reports, Rodriguez plays as a tight end for the Chicago Bears football team. To date, Rodriguez has participated in 12 games and has made it to rookie status playing fullback. The Chicago Bears released a statement regarding Rodriguez's recent arrest, saying, "We are aware of the reports regarding [Rodriguez]. We are currently gathering information to learn more about the circumstances surrounding the situation." So far, it is unclear how this arrest will affect Rodriguez's position with the team.
Rodriguez has been in Miami Beach during the off-season to practices with teammate, reports say. The incident began around 9:30 Wednesday evening when the car Rodriguez had been traveling in was involved in a collision. It does not appear as though Rodriguez was driving; the driver's identity was not immediately available following the crash. Police spoke with the driver and Rodriguez following the accident. For unknown reasons, officers asked to see Rodriguez's ID, sources say. He became upset and allegedly told the officer, "For what, I don't need this, I'm an NFL player. I don't need all that media stuff." Rodriguez declined medical attention while officers asked the driver to exit the vehicle and perform a sobriety test.
Despite officers telling him to stay in the vehicle, Rodriguez allegedly left the scene and did not return until officers told the driver to call him back. Rodriguez returned to the scene and approached the officer conducting the sobriety test from behind. A second officer told Rodriguez to stand back and sit on the curb, to which Rodriguez said, "I'm hard-headed like that and I don't have to listen," a police report says. Police say Rodriguez appeared to be intoxicated and smelled strongly of alcohol. "I don't need this, I'm an NFL player," Rodriguez reportedly said again.
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Is it a crime if my orthodontist may have done something to cause me to start losing my teeth?
Free legal answers from attorneys - I'm losing my teeth and the doctors told me this could have only happened in 2 ways, I was born with it or my orthodon
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Mary Suppa LaPeter of Hollywood, Florida Arrested for Driving Under the Influence
Mary Suppa LaPeter of Hollywood, Florida was arrested Sunday after she was accused of performing dangerous stunts using a damaged jeep in a residential intersection, news sources report. LaPeter, 51, later admitted to consuming alcohol prior to the accident, sources say. She was booked into the Broward County Main Jail on charges careless driving and driving under the influence, but was later released on her own recognizance. Reports did not say whether LaPeter has lined up a criminal defense attorney .
According to reports, LaPeter is a manager at a hair salon in Hollywood. The salon has not commented publicly on the incident, but so far it does not appear as though it has terminated LaPeter's employment either. Reports say LaPeter has no criminal history and no infractions on her Florida license.
The incident occurred around 10:00 Sunday evening at an intersection in the 3600 block of South Flamingo Road. An officer near the intersection reportedly saw LaPeter driving her Jeep Liberty, which had no front right tire and damage to its front end. LaPeter was allegedly doing "donuts," or driving in tight circles, in the center of the intersection.
The officer pulled the vehicle over and spoke with LaPeter. A police report says LaPeter slurred her words as she told the officer that she was unaware of where she was and had no idea the jeep was missing a tire. LaPeter also reportedly said she "wasn't injured during the course of performing donuts and did not believe she was at any point involved in a crash."
LaPeter told police that she had consumed two beers prior to the incident. "I had too much to drink, I am drunk, I am sorry," she reportedly told the officer, adding, "I don't go out much, I am sorry." It is not yet known whether the jeep lost the wheel while LaPeter was driving in circles or during a prior accident.
In other news, Kathryn Wright of Palm Bay was arrested Thursday after she allegedly drank two water bottles full of diluted vodka while chaperoning her grandchildren's field trip, news sources report. Wright, 58, was booked into police custody on charges of disorderly conduct and battery. It is unclear whether she qualified for bail or hired legal representation.
According to reports, Wright was one of several family members who volunteered to chaperone a school field trip to Wonder Works on Thursday. However, before embarking on the trip, Wright allegedly filled two water bottles with diluted vodka and marked the lids with her first initial. Wright reportedly consumed both bottles of alcohol during the trip.
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Monmouth County Traffic Wreck Results in Drunken Driving Charges for Eatontown, NJ, Driver
It seems that every time one turns around in this state there is another DWI or DUI-related traffic accident reported on the web, in the papers or on the local news. As New Jersey drunken driving defense lawyers and motorists ourselves, we often advise our friends and colleagues never to get behind the wheel of an automobile with even a sip of liquor, beer or wine in one's system.
Why such a strict statement? Because the laws in this state provide for fairly stiff penalties for those defendants who are convicted of drunken driving, even a first-time offense, and there is nothing that we have seen to suggest that driving while intoxicated is worth risking not only one's hard earned money, but also life and limb. Regardless of where you live, be it Bergen, Passaic, Ocean or Monmouth County, being arrested for drunk driving or DUI associated with prescription drugs, the costs of a conviction are not worth taking a chance.
The other reason, though it isn't even something that drivers should contemplate, is that once a motorist is driving on a public road with some alcohol in his or her bloodstream, being stopped for even the most innocuous or seemingly minor traffic offense, moving violation or vehicle infraction can open one up to close scrutiny by a state trooper or municipal cop.
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Bill to Send Sex Offenders to Prison Fails in Committee
Failing to register as a sex offender is a serious crime in California. Since 2011, violating Megan's Law has been punishable by up to 180 days in county jail. According to a news report in The Los Angeles Times, a bill that would require prison time instead of jail time for failing to comply with Megan's Law has failed to make it out of the public safety committee.
Supporters of the bill believed that it was necessary because a violation of Megan's Law can result in as little as one day in jail because of overcrowding issues. The Republican assemblyman from Rancho Cucamonga who drafted the bill also feels uncomfortable with how county officials group all sex offenders as one.
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MASSACHUSETTS LAW ENFORCEMENT GIVE UP MANHUNT FOR DRUG SELLING SUSPECT IN LEXINGTON
Sometimes, Massachusetts criminal investigations go underground or are put off for another day.
Here is a case about an alleged drug trafficker and his apparent slip through law enforcement’s fingers.
Maybe.
Please keep in mind that we are constantly told that drug dealers are dangerous folks and a threat to our kids, communities and selves. This is why they often face very high bail. It is also why there are extremely steep mandatory prison sentences for them. We lock them away because their crimes allegedly rise to the level of armed assault, rape and other violent conduct.
Well, law enforcement has now suspended the search in Lexington for (allegedly) such a gentleman who is said to have successfully fled from a drug bust in Waltham a couple of days ago. They say that they suspended the search because the gent is known to Waltham police.
Waltham Police Sergeant John Brooks has announced that said gent was observed selling drugs to an undercover officer.
The escape was not treated very lightly when it allegedly happened, mind you. The police say that the suspect fled from police in a white car with New Hampshire plates, before abandoning the car in Lexington in a neighborhood area just off Route 4/225 near the intersection with Route 128.
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What is delayed jail reporting, and how can I get it?
If you’re facing possible jail in Virginia, the judge has the authority to confine you to jail but order you to report directly to the jail some time after you’re actually found guilty of the offense. This is called delayed reporting. Virginia law lets you appeal your case within ten days of being found guilty, [...]
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Miranda and the Consent to Assume Online Presence
--> Some years ago, I did a post in which I analyzed the then-two reported cases I could find that involved law enforcement officers’ using a “consent to assume online presence” to gather evidence in a cybercrime case. In that post, I analyzed the 4thAmendment issues I speculated such a consent could implicate. I have not run across any cases since that addressed that issue in any notable respect, so I have not written about the issue since. This post examines a recent case in which such a consent was used, but instead of raising a 4th Amendment challenge to its propriety, the defendant challenged the use of the evidence obtained as a result of the consent as violating his rights under the Supreme Court’s holding in Miranda v. Arizona, 384 U.S. 436(1966). The recent case is U.S. v. Yong Wang, 2013 WL 452215 (U.S. District Court for the Southern District of New York 2013). After he was charged with advertising child pornography in violation of 18 U.S. Code § 2251(d)(1), receiving and distributing child pornography in violation of 18 U.S. Code§ 2252A(a) (2)(B), and reproducing child pornography for distribution in violation of 18 U.S. Code § 2252A(a)(3)(A), Yong Wang moved to suppress certain evidence. U.S. v. Yong Wang, supra. More precisely, he moved to suppress “(1) his post-arrest statements and (2) evidence obtained as a result of his consent to agents assuming his online identity.” U.S. v. Yong Wang, supra. He argued that “his post-arrest statements were obtained in violation of Miranda v. Arizona,” supra and “that his consent was not voluntary.” U.S. v. Yong Wang, supra. I will deal rather briefly with the first issue, and then explain on what the court did with the second issue. (I do not know why the case is captioned Yong Wang, instead of U.S. v. Wang, so in an effort to avoid error, I am using the court’s caption.) According to the opinion, Count One of the indictment set out the facts on which all of the charges were based: Between 2007 and June 2011, Wang `managed and operated at least 18 websites containing child pornography (‘the Websites').’ (Indictment ¶ 1) Wang `sold “memberships” to the Websites to individuals who paid to view, post, and download graphic images of child pornography.’ . . . The Websites were in Chinese. . . . In order to access child pornography on the Websites, it was necessary `to (i) purchase a “V.I.P. membership,” or (ii) acquire “points” either by making monetary payments or by posting pornography, including child pornography, to the Websites.’ . . . Wang `oversaw memberships for the Websites and collected payments directly or indirectly through associates who established accounts at banks in China, at Wang's behest.’ . . . One of Wang's websites -- http://uudiguo.info -- is entitled ‘”Empire of the Young and Innocent Fragrances,”’ as translated from Chinese. . . . Links on the Websites `advertised and offered access to child pornography collected under descriptive titles, such as “Young Young Empire,” “Young Girl Beauty Photos Military Region,” “Young Boy Movie Zone,” and “Exclusive Quality Young Girl Photos Set.”’ U.S. v. Yong Wang, supra. According to the opinion, Wang “supported” his motion to suppress by submitting an affidavit alleging the following facts: At 6:30 a.m. on June 23, 2011, federal agents entered his home. . . . Because he `did not know who they were,’ he hid in a closet. . . . `[W]ith guns drawn,’ the agents removed Wang from his closet and brought him to the living room. . . . One of the agents told Wang, `we are not here for you, but want you to cooperate and tell us who is making the pictures and posting [them] on [the] web.’ . . . Wang asserts that `[t]he Federal Agents led [him] to believe that if [he] cooperated with the agents and gave them the information they requested[, he] would be released’ and would not be arrested. . . . Accordingly, Wang provided a statement to the agents and consented to the agents assuming his online identity. . . . U.S. v. Yong Wang, supra. Before we get to the legal issues, I need to include a little more of the details the opinion provides as to what happened on June 23, 2011. At some point after the agents took Wang from the closet and into the living room, two of them Agent Thompson and Agent Phung -- took him into his bedroom and “began questioning him.” U.S. v. Yong Wang, supra. Thompson told him a translator was available, but Wang said he did not need one. U.S. v. Yong Wang, supra. The opinion says that his website was in English, that he “spoke English clearly” and that he “never indicated” he was having “any difficulty understanding the agents.” U.S. v. Yong Wang, supra. Before they began the questioning Thompson verbally administered Miranda warnings to Wang. . . . [and] gave Wang a written FBI advice-of-rights form. . . . After Wang read the advice-of-rights form, Thompson asked him if he understood it, and Wang responded that he did. . . . Thompson asked Wang if he was willing to sign the form and speak with agents. Wang stated that he was willing to answer questions, and he signed the waiver form. . . . After [he] signed the advice-of-rights form, Thompson and Phung began to interview Wang. . . . U.S. v. Yong Wang, supra. After Wang signed the form, he told the agents “he could go online and show them the `uudiguo’ website.” U.S. v. Yong Wang, supra. Thompson told [him] the agents wanted to take over his online accounts and asked Wang to sign a form entitled “`Consent to Assume Online Presence.’” U.S. v. Yong Wang, supra. The form read as follows: `I consent to the use of my online presence for any purpose relating to an official investigation by the above law enforcement authority, including (but not limited to) sending and receiving email or conducting any other electronic communications, accessing stored information, and using and disclosing such communications or information. I understand and acknowledge that by signing the consent form, I relinquish all present and future claims to the use of these accounts. I understand that law enforcement authorities will change the password(s) to this account so that I will no longer have access.’ `I give this consent freely and voluntarily, without fear, threats, coercion, or promises of any kind. I have been advised of my right to refuse to allow the assumption of my online presence, and I hereby voluntarily waive this right.’ U.S. v. Yong Wang, supra. Thompson told Wang that if he signed the form, he “would never have access to the accounts again.” U.S. v. Yong Wang, supra. Wang “read the form and then provided his user name and password for his desktop computer, for his Paypal account, for his email accounts, and for the server that hosted the `uudiguo’ website.” U.S. v. Yong Wang, supra. He then “signed the form.” U.S. v. Yong Wang, supra. “He did not ask any questions about the form” before doing so. U.S. v. Yong Wang, supra. In his motion to suppress, Wang argued that his statements to the agents could not be used against him because his waiver of his Miranda rights was “invalid” because of the “false statements” he claimed the agents made to him and the “pressure placed upon” him. U.S. v. Yong Wang, supra. In the Miranda case, the Supreme Court held that suspects who were in “custody” when they were interrogated, which Wang was, are entitled to be informed of certain rights, such as their right to remain silent and their right to have a lawyer, their right to have the lawyer appointed if they cannot afford to hire one and their right to have the lawyer with them during interrogation (which means they cannot be interrogated if their lawyer is not present). But the MirandaCourt also held that suspects can waive, i.e., can give up, these rights IF the waiver is (i) knowing and intelligent (the suspect knew he/she had these rights and understood the consequences of giving them up) and (ii) voluntary (the officers did not torture or otherwise overbear the person’s will so they would give up the rights). For more on this, check out Wikipedia’s entry on waiving Mirandarights. The judge in this case held that Wang’s motion to suppress his statements would be denied because while he claimed the waiver was involuntary, he did not establish facts showing that. U.S. v. Yong Wang, supra. The judge found there was no evidence that the agents threatened Wang or made false promises to coerce him into giving up his rights, and so denied his motion to suppress the statements. U.S. v. Yong Wang, supra. The judge also found that there was no evidence to show that Wang did not understand English and therefore did not understand the rights as administered to him since, among other things, he “maintained a Facebook page on which he wrote comments in English and he attended college in the United States.” U.S. v. Yong Wang, supra. (This, of course, went to whether the waiver was knowing and intelligent.) That brings us to Wang’s motion to suppress “evidence obtained as a result of his consent to agents assuming his online identity.” U.S. v. Yong Wang, supra. I must admit that I was a little disappointed when I read how the judge in this case dealt with this issue, though I think that what the judge did was absolutely correct. I only wishe the judge had addressed the issues in more detail, but I understand why he did not. To understand why the judge did what he did, you need to understand a little more about what actually happened in this case. When the judge held a hearing on Wang’s motions to suppress his statements and the evidence resulting from the consent to assume online identity, Agent Thompson testified that the agents did not use any of the information Wang provided on the `Consent to Assume Online Presence’ form because they had previously obtained search warrants that authorized them to access Wang's desktop computer, his Paypal account, his email accounts, and the `uudiguo’ server. U.S. v. Yong Wang, supra. A little more preface and we will get to the judge’s ruling. Wang argued that any evidence obtained as a result of the agent’s using the Consent to Assume Online Presence should be suppressed because he did not give the consent “voluntarily.” As I have noted in prior posts, consent is an exception to the 4th Amendment’s default requirement that officers obtain a search warrant before searching a place or thing. If I consent to let officers search the place or thing without a warrant, I waive my 4th Amendment right to privacy in that place or thing. I do not HAVE to consent; as Wikipedia notes, an individual “has the right to refuse to give consent.” And since a 4thAmendment consent is a waiver, it, like Mirandawaivers, has to be voluntary. As noted above, in his motion to suppress Wang argued that his consent for the agents to assume his online presence was not voluntary which, if true, would have voided it and warranted suppressing the relevant evidence. He lost . . . for two reasons: One was because the judge found the consent was voluntary; the other was that the issue was basically moot: With regard to the consent form, Agent Thompson testified that Wang provided the information on it and signed it after he signed the Miranda waiver form. . . .The credible evidence demonstrates that Wang read and understood the consent form, and that he executed it freely and knowingly. The Government has thus met its burden of demonstrating that Wang's execution of the consent form was knowing and voluntary. This appears to be a moot point, however. Agent Thompson testified that agents did not obtain any new information as a result of the consent form because they already had search warrants for Wang's residence, email accounts, and servers. . . .The Government has further represented that it does not intend to use against Wang any evidence that was obtained as a result of his execution of the consent form. . . . U.S. v. Yong Wang, supra. For all of these reasons, the judge denied Wang’s motion to suppress his statements and evidence obtained as a result of the consent. U.S. v. Yong Wang, supra.
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CA11: Fourth Amendment protects arrestees against gratuitous uses of force
The district court properly denied summary judgment on qualified immunity that officers were at best negligent in running his head into a door while carrying him into the jail which he was in a hobble restraint. The Fourth Amendment protects against gratuitous uses of force against arrestees. Here, it was all on videotape. Runge v. Snow, 2013 U.S. App. LEXIS 6077 (11th Cir. March 27, 2013):
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