Get Tested? Get Gone.

The Seattle Post Intelligencer has an item of interest today on the subject of National HIV testing day. This occasion, it is said, is necessary for the health of the world, the nation, the community and the neighborhood, and it may also be good for dogs and small children as well as global warming for all we know.

"B-b-but Sparky!" you say, "I thought this was a law enforcement blog!" Well, it is, but this is important.

Mr. Rasmussen and Mr. Counts, authors of this article, both opine that everyone between the ages of 13 and 64 ought to get tested on a routine basis.

I don't know about you, but I've got no more reason to get myself tested for HIV than I have to get tested for Ebola or smallpox or schizophrenia. Quite simply, I'm not at risk. I don't do that stuff.

And you know what else? It's nobody's damn business and I consider the entire notion to be intrusive, offensive and a bigger threat to privacy than any lawsuit over a damned banner that says "Bong Hits For Jesus". I didn't bring this mess onto the nation's plate. So there.

I don't want anyone to even get the idea that I'm the least little bit thinking about the possibility, especially the insurance companies who have ways of figuring this stuff out, and once there's a permanent record on a government or industry server somewhere you can say goodbye to insurance and privacy for ever and ever, amen.

It's only one stolen laptop away if some CDC moron brings home from work against orders, folks

Get tested? Not hardly.

Chemical Ali Strikes Out

It was announced late last week by the Los Angeles Times that Ali Hassan Majid, a/k/a Chemical Ali, was convicted of genocide and sentenced to death by a court of law in Iraq.

The most infamous incident of that campaign was when 5,000 or more civilians were gassed in the town of Halabja in northern Iraq. Those murders are supposed to be the subject of a separate trial but it is likely that the defendants will have attended a necktie party by that time. Iraqi justice is stern and swift without all the interminable appeals and pettifoggery we seem to be addicted to here.

Judge Isaac Parker probably would have approved, because he knew that justice can be served only when it is swift severe and uncompromising.

Ali Hassan Majid earned his monicker as the chief architect of Saddam Hussein's Anfal campaign of the 1980s, in which as many as 180,000 Kurds were slaughtered with poison gas, died in prison camps or were slaughtered and buried in common graves.

We here in the states are sometimes accused of setting up a puppet state in Iraq, and it is often said that victors write the history of wars. But in this case, the justice is there and the air will breathe a little cleaner for Chemical Ali's passing.

Let institutions like the International Court of Justice (which never seems to be able to bring war criminals to the bar of justice) mark, learn and observe what they see here.

One is reminded of Langston Hughes' meditation on things deferred, and the lesson is clear if we add justice to the rubric of dreams that are deferred.

Upstairs Search Not Incident To Downstairs Arrest; After Acquired Warrant Fails

State v. McGrane, no. 06-0431 (Iowa June 15, 2007)

A deputy was informed that McGrane, with a warrant outstanding, was in a house in Mason City. Another deputy went to the address and it was determined that McGrane was upstairs. A deputy ordered McGrane downstairs, and observed McGrane concealing something behind a curtain as he emerged from a curtained off area.

The first deputy arrived at the scene, and was informed that McGrane was under arrest and that he'd been observed concealing something upstairs. Thereupon two deputies went back upstairs and there discovered marijuana, cash, and methamphetamine. On that basis a warrant was obtained and served and more contraband was seized in the house.

The district court granted McGrane's motion to suppress and discretionary review followed.

The court found that the initial search of the upstairs of the home could not be a search incident to arrest, because it must be confined to the suspect's 'grab area'. Because the justification of a search incident to arrest is to prevent spoliation of evidence or gaining a weapon and because the suspect immediately left the upstairs area, a search of the upstairs when the suspect was downstairs could not be justified. A protective sweep could not be justified as well, because there was no evidence that McGrane had firearms or otherwise was dangerous or that anyone else in the home was.

Finally, because police were not rightfully in the area that they were entitled to be, plain view could not be invoked to justify a warrantless search. The later obtained search warrant was not proved to be a genuinely independent source of the evidence obtained in the home.

This case presents problems for officers involved in drug suppression. It also points out that what is good police work sometimes fails in translation when considered in hindsight.

However, the officer's good observation of the suspect concealing something and the initially evasive responses of other occupants of the house should have triggered the correct response which would have been to secure the premises and obtain a warrant to search the area that the suspect had been in, based on that information. That would have led to the discovery of the contraband in plain sight.

The takehome's simple. Secure the area and get the warrant as soon as there's a reasonable and artuiculable suspicion that criminal activity is afoot. Remember the maxims of W. Edwards Deming: It's better to build quality into your work than to go around afterwards trying to fix it.

Ownership of Purse Must Be Established For Search

State v. Smith, no. 06-1117, (Iowa Ct. App. June 13, 2007)

A vehicle traveling without taillights was stopped by a Waterloo officer. The officer asked the driver for consent to search the car which was granted, although the officer had no reason such as a suspicion of criminal activity to ask for permission in the first place.

Smith, a passenger, was asked out of the car and a purse was found on the front seat. The officer searched the purse and found Smith's identification and a meth pipe. Smith moved to suppress the evidence seized and the district court granted the motion. Discretionary review followed.

The court determined that the consent of the driver in this particular case did not authorize a search of the purse.

A thumbs up to the Court of Appeals-four days before Brendlin v. California, too.

Are we good in Iowa or or what?

Eye In The Sky Finds Pot Plantation

State v. Blow, No. 06-1096 (Iowa Ct. App. June 13, 2007)

Blow's property was overflown by a National Guard chopper with a Henry County deputy on board in what is known as a drug interdiction flyover. A marijuana patch was identified.

Although later determined not to be on Blow's property a search warrant was issued based on the deputy's affidavit, and a search of Blow's home revealed abundant evidence of marijuana manufacturing. Blow argued the evidence must be suppressed for lack of probable cause because the warrant was invalid for his property, but the trial court denied the motion.

On appeal Blow argued that there was no nexus between the plants and his property and that the deputy made false statements and acted with reckless disregard for the truth. Blow also argued that no proof had been adduced that the home was his residence. Blow in fact owned the property, and he received mail there.

The Court of Appeals disagreed, holding that Blow had not established that the deputy acted with reckless disregard for the truth in an effort to mislead the issuing magistrate. The magistrate was told that the plants were 75 to 100 yards from a shed on Blow's property with a trail leading from the patch to an area between the shed and the house.

There were other pathways around the patch that the officer did not inform the magistrate of in the affidavit, but a path to a field and a wooded area did not cast doubt on the conclusion that there was a nexus between the plants and the house.

Blow's prior convictions didn't help either.

Terry Patdown Upheld By Court of Appeals

State v. Shine, No. 06-1078 (Iowa Ct. App. June 13, 2007)

Shine was identified as a person who had drugs in his possession. Shine refused to be searched but consented to a patdown, which revealed the presence of an object in Shine's shirt pocket. Shine informed the officer that it was a pocket knife, and when retrieved it turned out to be a marijuana pipe. Shine was arrested for possession of paraphernalia, searched, and was found to be in possession of marijuana.

Shine moved to suppress alleging an illegal search without probable cause, and the district court upheld his motion. The state sought further review.

The Court of Appeals found that there was reasonable cause to detain Shine based on the identification made by the witness. The court further held that a Terry patdown was permissible in this case. Shine's own identification of the foreign object as a knife supplied ample justification for the officer to reach in and seize what later turned out to be a pipe.

Passengers Have Standing To Challenge Vehicle Seizures

Brendlin v. California, No. 06-8120 (June 18, 2007)

In a decision that is sure to increase the number of occasions that officers will be testifying at suppression hearings, the United States Supreme Court held that a passenger in a vehicle is 'seized' for Fourth Amendment purposes when a vehicle is stopped.

Brendlin was a passenger in a car that was stopped, although the reasons for the stop were legally insufficient. Recognized by the officer, it was determined that there was an outstanding warrant for Brendlin, an arrest followed, and drugs and contraband were found.

The Supremes overturned California's highest court, stating that once a vehicle is stopped, everyone in it is seized.

The takehome for law enforcement officers is clear.

There are going to be more challenges to vehicle stops, and there needs to be reasonable and articulable suspicion concerning every person in the vehicle.

Lance Deal Suppression: Update

It is reported in ICIS that the motion to suppress evidence in the case of Lance Deal's blood test described below has been denied by the court in Webster County.

That makes it nearly a done deal that he's going to get convicted of something.

Apparently, the progress of the vehicular homicide case against Deal hasn't stopped him from pursuing his other career as a stock car driver.

Tramaine Gibson: You Will Be Missed

Some of you folks may not know this, but I count being a teacher as one of my part time jobs. This young man was a student at one of the online colleges that I work for, and he was murdered in a senseless and futile bank robbery on May 22 in Chicago, where he was a teller.

Tramaine Gibson was the father of two children, and he was but 23 years old. If he was like any of the young folk it has been my distinct honor to mentor for Westwood College, Tramaine was the very best of the very best. It seems a shame that a young man with as much promise as Tramaine's was taken from us. We are all the poorer here because of it.

I'm in mind of the last verse of Bob Dylan's "Only a Pawn In Their Game". It seems apropos to the life of this young man I did not know, who was truly lowered down like a king.

Today, Medgar Evers was buried from the bullet he caught.
They lowered him down as a king.
But when the shadowy sun
sets on the one
That fired the gun
He'll see by his grave
On the stone that remains
Carved next to his name
His epitaph plain:
Only a pawn in their game.

Thieves and High Voltage Meet in Keokuk

The Quad Cities Online reports this day that a Keokuk man was electrocuted while in the process of liberating copper wire from an abandoned building. It seems that the power had not been turned off. Matt Ackley of Keokuk was taken to a hospital where he died. His companion was charged with burglary and is in the Lee County jail as we speak.

A High Stakes Vehicular Homicide Case in Webster County

The Messenger reports that there was a hearing in Webster County last week in the case of Lance Deal, who was involved in a fatal accident.

Deal had a BAC of 0.289 and his friend Clinton Pringle was ejected from his truck and killed last summer when Deal crashed it. Deal is a professional driver which makes one wonder what he was thinking. 0.289 is tanked up pretty well, as my old man used to say.

The question centers on whether Deal was or was not alert enough to have given his consent to a blood test that determined his alcohol level. Officer Dave Beshey of the Fort Dodge P.D. filled out a consent form that is used when the subject is incapable of consent. However, a nurse at the hospital noted that Deal was "alert and oriented" before blood was drawn. Beshey testified that Deal was unconscious at the scene and was incoherent when being treated. A doctor at the hospital where Deal was treated said that he was awake but stuporous and it was his opinion that Deal was incapable of making a decision to consent or not.

A hearing on Deal's motion to suppress evidence was held on June 8. We'll be watching this one.

If you were to ask me to take a guess, I'd say it's in. but we'll have to wait on this one.

A tip of the hat to Deputy Jason Barnes of the MCSO for bringing this to my desk.

Of Drunks, Sidearms, and Second Guessing Officers Up North: Reg. v. Ferguson.

It is reported by the Globe and Mail that Michael Ferguson, a former RCMP policeman from Pincher Creek, Alberta, is facing a mandatory four year sentence for manslaughter that is the subject of some interesting litigation that will determine whether there are any exemptions from Canada's mandatory sentencing scheme.

So I decided to do some looking because officer involved shootings are rarely prosecuted here in the lower 48, largely because we figure if you want to mix it up with an armed police officer you more or less own the consequences. Acting stupid can get you hurt.

According to the opinion in Reg. v. Ferguson, Varley, the decedent, was in a drunken and agitated condition, and had been taken into custody following a fight with Officer Ferguson while in the police cruiser and at the barracks. Varley tried to get past Officer Ferguson, and grabbed Ferguson's service sidearm and got it out of the holster. Ferguson fired two shots, killing the decedent.

Charged with murder, Ferguson was convicted of manslaughter after a third trial because the jury figured that the second shot was not fired in self defense.

Alberta's prosecutors seem to subscribe to the "try, try again" until you get the result you want theory of prosecution.

Words fail me. What this decision has in store for our colleagues in Canada is unclear, but there seems to be a tendency there to second guess the man in the thick of things.

One thing's clear-had Varley gotten Ferguson's weapon, the consequences would have been grave indeed. I cannot imagine anything more dangerous to public safety than drunken, agitated criminals armed with pistols.

Drag Queen Beatdown in Sin City

It is reported that Matthew Tandy, the 6 foot tall, 240 pound person to the left was in the process of stealing merch from the Walgreen's on East Euclid and pulled a knife when an employee tried to intervene. So far, so good.

But the person was dressed in panty hose, a sweater anda wig. Police Officer Natalie Chiodo responded and attempted to get the robber to drop the knife, whereupon the robber lunged but could not advance because he'd caught his panty hose in a chicken wire fence.

His excuse? "My boyfriend told me to steal this stuff."

Photo courtesy of the fine folks at the Polk County Sherriff's Department.