If you find any other examples, please let me know.
The topic of this chapter is Hearsay Exceptions 1. The book and the powerpoint
mention hearsay exceptions that include "excited utterances" and "statements
for purposes of medical diagnosis or treatment." You can probably imagine
how excited utterances could have occurred in the raid. Sometimes guns are
accidentally fired, and sometimes guns are fired deliberately but by mistake
or without justification. If that had happened and a student was injured,
then there might be hearsay exceptions for "statements for purposes of medical
diagnosis or treatment." A video that a student posted of a sniffer dog also
showed a sniffer dog used for attack purposes. I don't know how common it
is for a drug dog to also be trained as an attack dog (and I am very curious
to know) but if that occurs then it rasies my fear that a drug dog might attack
someone. That could also lead to hearsay exceptions for "statements for purposes
of medical diagnosis or treatment." All of those things could lead to students
using their cell phones to dial 911, parents or anyone and making even more
statements that would be hearsay exceptions.
In civil litigation or in a motion to suppress in a criminal case, an expert
witness might be utilized on those police procedures, and on what should
be proper police procedures.
That fear that drug dogs don't perform correctly around spectators or that
drug dogs might attack spectators might help to explain a news story that
claimed the police department’s procedure on "illegal narcotics detection"
stated "Only after the on-scene supervisor has cleared the area of all personnel
will the canine enter and conduct an illegal narcotics detection." Also,
keeping spectators away prevents witnesses from seeing what the dog actually
does. It might explain why that same news story claimed that at one point,
the dog grabbed a backpack with its mouth and shook it, and that at another
time, the dog jumps briefly on its hind legs onto his handler as they check
students huddling in an alcove. One person said that "barking during a drug
search isn’t a threat," but that depends, and especially so if the dog is
also trainded to attack. Besides, the people don't know that the bark and
behavior is not a threat, so it really doesn't matter what the officer says
about that. Another person claimed that "Students could stare, make catcalls
or provoke a dog in other ways." Well, who isn't going to stare? And what
if screaming hysterically provokes the dog? There are some people who would
be terrified in that raid. Another authoritative comment was "it’s not how
my unit would have done it." So that person might end up as an expert witness
in the case. In a lawsuit filed Friday, students say they felt frightened
as the dog passed by, and they say the dog was unruly and appeared to be
unresponsive to commands. A motion to suppress evidence from a drug dog search
would raise all of the issues above, and the issue of a drug dog not alerting
for drugs, but for purposes of attack, or a confusion by the dog of its task
/ purpose. It is arguable that having a drug dog that also has other
tasks is a bad idea for those reasons. As you can imagine, civil litigation
resulted from the raid. So, these hearsay exceptions also apply in civil
cases.
Here are excerpts from the powerpoint show:
EXCITED UTTERANCE IS “A STATEMENT RELATING TO A STARTLING EVENT OR CONDITION
MADE WHILE THE DECLARANT WAS UNDER THE STRESS OF EXCITEMENT CAUSED BY THE
EVENT OR CONDITION” (803 [2])
Rationale: THE REASON FOR THE EXCEPTION IS THAT IF SUCH STATEMENTS ARE IN
RESPONSE TO THE STARTLING EVENT, THE TRUSTWORTHINESS OF SUCH STATEMENTS COMES
FROM THE FACT THAT THE VICTIM OR WITNESS HAD NO TIME TO REFLECT AND POSSIBLY
FABRICATE THE STATEMENTS
Examples: STATEMENTS DURING OR IMMEDIATELY AFTER SHOOTINGS, STABBINGS OR
ROBBERIES
STATEMENTS OF RAPE VICTIMS IMMEDIATELY AFTER THE CRIME
Rationale: THESE STATEMENTS ARE ALMOST ALWAYS MADE “UNDER THE STRESS OF
EXCITEMENT” CAUSED BY THE STARTLING EVENT OF THE CRIME OF VIOLENCE
Another example: RECORDED 911 CALLS AND OTHER TELEPHONE CALLS WHERE COURTS
HELD THE CALLER WAS SPEAKING UNDER THE STRESS OF EXCITEMENT AND PERMITTED
THE RECORDING TO BE USED AS EVIDENCE
***********************
Raid might have broken drug-dog rules
Video shows Goose Creek police using canines in school sweep, apparently
violating procedure
The Associated Press http://www.thestate.com/mld/thestate/news/local/7440066.htm
from approx Dec. 08, 2003
CHARLESTON — The Goose Creek Police Department appears not to have followed
its own rules on using drug dogs in its guns-drawn raid at Stratford High
School last month.
A videotape the Police Department released shows a police dog passing close
by students who had been forced to kneel on the floor during the Nov. 5 raid.
It also captures an officer lecturing students as that part of the raid ends.
“If you’re an innocent bystander to what has transpired here today, you
can thank those people that are bringing dope into this school. Every time
we think there’s dope in this school, we’re going to be coming up here to
deal with it, and this is one of the ways we can deal with it,” the unidentified
officer says.
More than 100 students were in the hallway that morning as a police dog
passed close by, barking and excitedly sniffing their backpacks. At one point,
the dog grabs a backpack with its mouth and shakes it. At another time, the
dog jumps briefly on its hind legs onto his handler as they check students
huddling in an alcove.
The department’s procedure on “illegal narcotics detection” states, “Only
after the on-scene supervisor has cleared the area of all personnel will the
canine enter and conduct an illegal narcotics detection.”
The tape shows Goose Creek police officer Jeff Parrish and Major, a Czechoslovakian
shepherd, entering the hallway.
Jim Watson, secretary of the North American Police Work Dog Association,
says Goose Creek’s K-9 unit is certified. Watson won’t comment on the Stratford
search, which found no drugs, but says he knows Parrish and Major.
“Jeff is nationally certified, and he has a helluva good dog. He has excellent
control of the dog,” Watson said.
Major is an extremely sociable dog that “loves to search for narcotics,”
Watson said.
Barking during a drug search isn’t a threat, Watson said. Dogs are taught
to treat finding drugs as a game of hide and seek.
“Why is a dog barking?” Watson said. “It’s not because it wants to bite
someone. He just wants to play that game.”
Some dogs are trained as passive alert dogs and will sit when drugs are
found. Others are aggressive alert canines and bark or take other actions.
“The Supreme Court has ruled you can search a person with a passive alert
dog,” said Cpl. Louis Reed of the Charleston Police Department. “We have a
passive alert dog, but we still don’t search people because of the possibility
of someone saying something happened to them or that they felt threatened.”
Other agencies, including Reed’s, wouldn’t allow police dogs to go near
children during drug sweeps.
“We don’t want people to say they were threatened by the dog,” Reed said.
Students could stare, make catcalls or provoke a dog in other ways, he said.
While Reed won’t comment on the specifics of the Stratford High sweep, “it’s
not how my unit would have done it,” he said.
In a lawsuit filed Friday, students say they felt frightened as the dog
passed by, and they say the dog was unruly and appeared to be unresponsive
to commands.
Charleston’s prosecutor last week turned an investigation into the raid
over to state Attorney General Henry McMaster.
Apart from a surveillance camera that triggered the national reaction to
the raid, a police officer videotaped the incident. The Post and Courier of
Charleston obtained a copy of that tape under the state’s Freedom of Information
Act.
That recording begins seconds after a team of Goose Creek officers sealed
one of Stratford’s hallways. Two officers can be seen with their guns drawn
“Get on the ground! Get on the ground!” an officer yells as students fall
to the floor. “Hands on your head, hands on your head, do you understand?”
A few minutes later, a voice on a loudspeaker says, “All right, bring the
dogs down.”
Goose Creek principal George C. McCrackin is heard saying: “All right, the
dogs are coming through. Just stay still.”
**********************
In other schools, classes have been interrupted and the children were marched
out and lined up to be harassed by a dog.
**********************
In 2005, the United States Supreme Court held in the case of Illinois v.
Caballes that when a trained drug dog sniffs a persons automobile, there is
no search. As a result, no constitutional violation occurs. This is the case
even if the police have absolutely no reason to suspect you may be carrying
illegal contraband whatsoever.
The Caballes case foreshadows more police-state possibilities: Uniformed
law enforcement marching through neighborhoods with German shepherds on leashes
sniffing anything and everything -every car parked on or near the street,
the air emanating from homes, neighbors walking outside. Imagine the same
thing at any place of business or employment, and police marching German shepherds
through parking lots, car to car, for no reason other than fishing expeditions.
Imagine the same nightmare in any shopping area or a downtown street area,
a festival, a bar's parking lot, with uniformed agents with German shepherds
sniffing pedestrians and their bags and cars and anything, and stopping anyone
on an alleged alert and going through their purses, persons, cars, etc, right
there on the street.
The Supreme Court's majority reasoned that a dog’s sniffing is not really
a “search” because it detects only contraband, and therefore does not compromise
the privacy of someone who has nothing to hide. Justices David H. Souter and
Ruth Bader Ginsburg both dissented strongly, warning that this decision could
lead to “suspicionless and indiscriminate sweeps of cars in parking garages
and pedestrians on sidewalks.”
The decision was an extension of an earlier case decided by the Supreme
Court in 1982 which held that the use of drug sniffing dogs to search luggage
in an airport was in fact not a search either. (United States v. Place).
Justice Ginsberg said in her dissent in Illinois v. Caballes case:
"A drug-detection dog is an intimidating animal... Injecting
such an animal into a routine traffic stop changes the character of the encounter
between the police and the motorist. The stop becomes broader, more adversarial,
and (in at least some cases) longer. Caballes –- who, as far as Troopers Gillette
and Graham knew, was guilty solely of driving six miles per hour over the
speed limit -– was exposed to the embarrassment and intimidation of being
investigated, on a public thoroughfare, for drugs..."
Another problem with drug dog searches is the actual accuracy of the dogs
in question. As Justice Souter stated in his dissent in the aforementioned
Illionois v. Caballes case:
"The infallible dog, however, is a creature of legal
fiction... [T]heir supposed infallibility is belied by judicial opinions
describing well-trained animals sniffing and alerting with less than perfect
accuracy, whether owing to errors by their handlers, the limitations of the
dogs themselves, or even the pervasive contamination of currency by cocaine...
In practical terms, the evidence is clear that the dog
that alerts hundreds of times will be wrong dozens of times.
Once the dog’s fallibility is recognized, however...
the sniff alert does not necessarily signal hidden contraband, and opening
the container or enclosed space whose emanations the dog has sensed will
not necessarily reveal contraband or any other evidence of crime."
DO NOT
CITE WIKIPEDIA - DON'T CITE WIKIPEDIA
Colleges, schools and news media
warn writers not to cite wikipedia as a source. A
google search for "DO NOT CITE WIKIPEDIA" and "DON'T CITE
WIKIPEDIA" provides many examples. Rather than a scholarly
source, wikipedia is an anonymous bulletin board where
anyone can delete truthful information, where anyone can post
lies, and people who want to re-post the truth can be blocked
to prevent future corrections.
