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  1. #1
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    Sep 2009
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    Default The 'Inevitable Discovery' Warrant Exception

    In Urbana, Illinois

    I was pulled over leaving a bar one night, Officer asked me to perform some pre-exit tests- I did. Officer then asks me to step out for field sobriety testing- again I did.

    As soon as I exit the vehicle the officer says he will first "pat me down for weapons". Officer then felt "what appeared to be a film cannister" in my front pocket and retrieved it. Inside that cannister was about two tenths of a gram of marijuana. I say "Your'e not going to arrest me for that are you". He responds " No, i'm more concerned with your ability to drive". He then continues with field sobriety tests. Which I'm sure I passed( I'm a non drinker, and I wasn't "high").

    After field sobriety I was arrested for D.U.I. Because I am non drinker, I gladly submitted to chemical testing (ignorant, ignorant, ignorant). Low and behold my blood and urine tested positive for T.H.C. (did I mention ignorant)

    Here's where it gets kind of crazy. Filed motion to supress the cannabis seized in violation of Terry v. Ohio. During the supression hearing, when asked why he searched the defendant the officer stated, "Because I search everyone I come in contact with". The Judge interjects at that point and say's " You mean when your'e on a dark lonely street and the defendant is making furtive gesture's and you genuinely have a concern for your safety or the safety of others". That is when you "pat them down".

    The officer responds " No, I search everyone I come into contact with". (Cha Ching--Wrong answer, I'm outta here-- Um not so fast). The Judge then admonishes the officer about his policy, then informs the State's attorney what a valid Terry frisk is (I'm so outta here). Then the Judge with no prompting from the State's Attorney say's " So that brings us to the business of inevitable discovery".

    Wihout another word from the State's attorney the Judge argues that the Marijuana would have been dicovered inevitably when the police arrested me. I argued that it was not the discovery of the marijuana that was inevitable upon a lawful arrest. It was the arrest upon the unlawful discovery of the marijuana that was inevitable.

    To make a long story as short as I can, (I could literally write a book about this). The marijuana stayed, The fruit of that poisonous tree(the blood test) was in. Then a jury of my peers rather quickly convicted me. And oh yeah, I saw it coming.

    Is it just me, or did I get shafted here?

    p.s. Forgot to mention that even though there were motions to supress on file, and a motion to dismiss on file weeks before the trial date we never had a hearing on those motions untill after we impanelled a jury. Since the motions would have been case dispositive if I prevailed I took that as a very bad sign.

    Inevitable Discovery, Are you kidding me?

    sorrry for the long post, feedback appreciated

  2. #2
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    Default Re: The 'Inevitable Discovery' Warrant Exception

    Why are you sure you passed the sobriety tests? What does the police report say about your performance on those tests? Because that's where things presently hang.

    Did you elicit any testimony in relation to inevitable discovery or the sobriety tests during your hearing?

  3. #3
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    Default Re: The 'Inevitable Discovery' Warrant Exception

    Three tests performed.

    1. (HGN) Horizontal gaze nystagmus? Officer testified I failed this one- He also stated on the citation that my eyes are brown. I assure you my eyes are the absolute brightest blue there is. With a flashlight in my eyes you'd think this would be pretty easy to ascertain.

    2. Stand on one foot, other foot 6 inches off the ground and count 1001, 1002, 1003. Performed this test from 1001 to 1010, then put my foot down. Officer asked me to perform this test again. Again I counted to 1010 and put my foot down. Officer failed me on this test because he said he never told me to put my foot down. I wasn't going to count to 1999.

    3. Take nine steps heel to toe turn 180 degrees and take the same nine heel to toe steps back. He asks if I can perform this test, I say no! He asks why not ? I say " because about step five I'm going to walk right into your car"
    He then backs his car up 10 feet. I perform the test and he fails me for turning 180 degrees the wrong direction.

    I probably did not mention in first post I moved to discover the videotape of the stop. His police report clearly states that there is a videotape. Was never provided a copy. In fact, The morning of my trial my public defender asked for a continuance in order to review the video.

    At that time the States Attorney informs the Court there is no video. My P.D. then asks for a continuance because she has been prejudiced by not having the video, or being informed of it's non-existence. She states "your Honor I am unprepared for Trial and I need a continuance". Motion denied , Judge then say's that there was nothing on the video that could have helped me anyway.

    To answer your Questions. Yes testimony was received about the field sobriety. And Yes there was an argument made for inevitable discovery. It was made by the Judge himself. No argument from the States Attorney though.

    Certainly no argument was made to suggest there was "an ongoing independent investigation that would have produced the same evidence". Once the Defense has made a prima facie case the search was illegal the burden is on the prosecution to prove inevitable discovery, Not the Judge.

    Thanks again, feedback appreciated

  4. #4
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    Default Re: The 'Inevitable Discovery' Warrant Exception

    Mr. Knowitall, After thinking about this a little more, I have a couple questions for you.

    1. Why do you even ask about the police report?
    At the point he searched me illegally he no longer had any credibility as a competent witness, and he obviously searched me illegally or the inevitable discovery exception would not even be in this discussion.

    2. Once the defense makes a prima facie case that the search was illegal, Isn't the burden of the prosecution to prove inevitable discovery,- In a seperate hearing so as to allow the defense time to prepare to argue against that exception being applied?

    3. Is it not clearly stated in "Nix v. Williams" that in order to use the illegally obtained evidence the prosecution must: Prove the evidence would have been discovered inevitably through an ongoing independent investigation so as to remove the taint of the original illegality that first produced the evidence?

    4. does "Wong Sun v. U.S." clearly set out that evidence derived from unlawfully obtained evidence (i.e. bloodtest) also be excluded? If so, exclude marijuana, exclude blood test = No evidence left to support a conviction.

    5. Am I missing something here?
    Other than my Constitional protection against unreasonable Government intrusion guaranteed by the fourth amendment to the U.S. Constitution, and my right to a fair trial as guaranteed by the fourteenth amendment to the U.S. Constitution.

    Please respond your feedback is appreciated.

    Thanks, Roger

  5. #5
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    Default Re: The 'Inevitable Discovery' Warrant Exception

    You've had your hearing and you've had your trial. That's the evidence you have to work with for your appeal, assuming you haven't delayed past the deadline for filing an appeal. No, they do not have to offer a separate hearing on inevitable discovery - that can be raised at the same hearing. And by all appearances the officer has insisted from the start that you were publicly intoxicated and unable to perform sobriety tests, and that testimony was accepted by the judge. What evidence did you offer to contradict the officer, other than "Well, I think I passed" (if even that)?

    That your lawyer didn't follow through in a more timely manner about the video? That's unfortunate, assuming one ever existed. But he knew the trial date, and he shouldn't have built his trial strategy around a video that he had neither obtained or seen, let alone one that may not have ever existed. Nor would it seem particularly difficult to shift to a standard trial strategy. If you wish, you can add "ineffective assistance of counsel" to the issues you raise on appeal.

  6. #6
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    Central Florida
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    Default Re: The 'Inevitable Discovery' Warrant Exception

    A few things.

    The field sobriety exercises are not pass or fail, so I can not see why the officer would have used those words it in his report.

    His search of you was not illegal. You were legally detained and he legally checked you for weapons. While doing this he felt a container, which through his training and experience he knew often times is used to hold illegal drugs. Or at least that’s how he should have articulated it.

    Your blood test will not be thrown out because you were legally arrested for DUI and consented to the test.

    The drugs would have been found anyway after you were arrested for DUI.

  7. #7
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    Default Re: The 'Inevitable Discovery' Warrant Exception

    Quote Quoting Florida Deputy
    View Post
    You were legally detained and he legally checked you for weapons. While doing this he felt a container, which through his training and experience he knew often times is used to hold illegal drugs. Or at least that’s how he should have articulated it.
    Seriously, even had the police officer stated that instead of the truth, how do you propose that would help? A pat down for weapons is exactly that. Finding something that theoretically could hold drugs (which would mean anything, right?) doesn't justify the officer's removing and inspecting the item, as the person's (presumed) possession of drugs does not pose any risk of harm to the officer.

  8. #8
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    Washington comma the Great State of.
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    Default Re: The 'Inevitable Discovery' Warrant Exception

    Quote Quoting JOSHUAACE2
    View Post
    Three tests performed.

    1. (HGN) Horizontal gaze nystagmus? Officer testified I failed this one- He also stated on the citation that my eyes are brown. I assure you my eyes are the absolute brightest blue there is. With a flashlight in my eyes you'd think this would be pretty easy to ascertain.
    While the eye color issue is interesting in terms of disputing his attention to detail, it's not important to the outcome of the test. There is no such thing as a failing or passing on this type of observation; one merely notes whether certain peculiarities of the eyes' movement are present or not.
    2. Stand on one foot, other foot 6 inches off the ground and count 1001, 1002, 1003. Performed this test from 1001 to 1010, then put my foot down. Officer asked me to perform this test again. Again I counted to 1010 and put my foot down. Officer failed me on this test because he said he never told me to put my foot down. I wasn't going to count to 1999.
    Right. So your argument that you're pretty sure you "passed" the tests despite having chosen to stop before it was completed seems a little odd to me. Part of the instructions for this test are to continue counting until the officer tells you to stop. If you stop before that, then you haven't done the test like most sober people would. The reason the test has to go on for a while is because alcohol is a central nervous system depressant, which affects how well you can mark time. By having a baseline time in mind, the officer can look at how long you actually stood there versus how long you think you stood there to help determine whether you're likely having a depressant or a stimulant in your system. I digress.
    3. Take nine steps heel to toe turn 180 degrees and take the same nine heel to toe steps back. He asks if I can perform this test, I say no! He asks why not ? I say " because about step five I'm going to walk right into your car"
    He then backs his car up 10 feet. I perform the test and he fails me for turning 180 degrees the wrong direction.
    The instructions are actually a little more in detail than you'd like us to believe. You start on a given a foot and take an odd number of steps, which puts you on the other foot. At the ninth step, you're supposed to take small choppy steps around the ball of the foot, the power of the pivot coming from the other foot. There's only one direction you can turn. So, you either ended on an even step, thus turning the wrong direction, or you didn't take the small choppy steps around the leading foot with the trailing foot providing the torque. So, yeah, sounds about right: you didn't follow directions, and thus met enough of the criteria to start leaning towards probable cause.

  9. #9
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    Sep 2009
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    337

    Default Re: The 'Inevitable Discovery' Warrant Exception

    Deputy, You my friend are missing the point, as are others here. The inevitable discovery exception would not even be an issue unless the search was deemed illegal by the judge. At that point, the evidence is inadmissable unless the prosecution can prove the evidence would have been discovered through an ongoing, idependant investigation, so as to remove the taint of the illegally seized evidence. Not likely since this was a traffic stop.

    Now as to the Officers testimony about field sobriety-- it is moot. What kind of credibility can you give the testimony of someone who has been found to have illegally searched the suspect? Answer, NONE

    aaron, insighful post. Even if the justification for the "Terry" search had been present (it obviously was not), Then the scope of that search would still have exceeded it's boundaries when the officer retrieved any item he thought was not a weapon. There is a plain feel exception, but that was not the case either. It very likely could have been film in the film cannister. BTW, the officer testified "through my experience, people have been known to hide small knives in film cannisters". Be funny if I hadn't lived it.

    MR. Knowitall, I was appointed a Public Defender. Have you ever heard of the Sixth Amendment? Where it states that you have the right to counsel, that has been interpreted to mean "effective assistance" by the U.S. Supreme Court. See "Gideon v. Wainwright, 372 U.S.335, 83 S.Ct. 792, 9 L.Ed.2d 799" or "Geders v. U.S., 425 U.S. 80, 96 S.Ct. 1330, 47 L. Ed.2d 592"

    And yes that issue was raised on appeal.

    Thanks for the feedback.

  10. #10
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    Default Re: The 'Inevitable Discovery' Warrant Exception

    Ashman, in regards to the heel to toe test. If he failed to inform me which foot to start on, I really only had a 50-50 chance to get this right. He didn't say I took too many,or too few steps. He said I turned the wrong direction. Meaning I started with the wrong foot forward. Would have liked to have seen the video he said he recorded, that the state never produced. Maybe, just maybe, he didn't clearly (key word - clearly) give the directions for this test. Might also point out that at no point did he say I was swaying, swerving, or leaning.

    I was convicted of driving with any amount of cannabis in my system. Had just finished a 12 hour shift at work so I wasn't even under the influence of marijuana at that time. Having mj present in your urine, and being under the influence are two different things.

    On another note, this forum reminds me of the courtroom-- I am cloaked in the presumption of guilt until proven innocent. Also I received two tickets that night. 1) posession of mj. 2) D.U.I. Ticket 1 say's I was N/B on Lierman, and have blue eyes. ticket 2 Say's I was S/B on Lierman and have brown eyes. Traveling 2 different directions at the same time with different colored eyes. Who was high?

    Thanks for the feedback,

    Roger

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