1. Parental Rights: Protectiong Children and Empowering Parents
2. Legal Parents Rights Foundation
https://parentalrightsfoundation.org/legal/
3. National Parents Rights Association
4. National Association Of Parents
5. Father’s Rights Group and Shared Parenting Resources
https://www.verywellfamily.com › Parenting › Single Parenting
6. American Civil Rights Association Parents Rights Legislation
www.parentsinaction.net/english/Advocacy/ACLU%20against%20Parents.htm
By Jatara McGee |
Posted: Mon 7:18 PM, Jul 16, 2018 |
Updated: Tue 7:39 AM, Jul 17, 2018
KANAWHA COUNTY, W.Va. (WSAZ) -- UPDATE 7/16/18 @ 10:40 p.m.
A suspended West Virginia Child Protective Services worker was re-arrested late Monday night, state police say.
Dustin Kinser was arrested on a warrant stemming from a domestic incident Sunday night, troopers say. Kanawha County Sheriff's Deputies say they arrested him during a traffic stop Monday.
Kinser had posted bond in connection with the case of a 17-year-old girl who went missing from Lincoln County early this month and was found later in Kanawha County.
He was charged with contributing to the delinquency of a minor in that case.
Keep checking WSAZ Mobile and WSAZ.com for the latest information.
The teen was reported missing Saturday, July 7, after her family filed a police report with West Virginia State Police in Lincoln County. Family members say the teen is mentally unstable and feared she had run away from home.
Days later, South Charleston Police officers found the missing girl sitting in a vehicle with Dustin Kinser at McDonald's on Corridor G. Investigators believe the teenager had been with Kinser for several days before reaching out to a friend for help and giving the friend her exact location.
Police responded to the fast food restaurant shortly after.
According to a criminal complaint, Kinser traveled to the teenage girl's home in Lincoln County and picked her up after meeting her on a social media app and making the plans to meet up. Investigators say Kinser knew how old the girl was prior to meeting her.
"This person does hold a position of trust," says Senior Trooper M.R. Shaffer with the West Virginia State Police Crimes Against Children Unit. "Sometimes you do get a bad seed. You can't let one person determine your opinion of this organization as a whole."
Troopers tell WSAZ that Kinser is employed as a CPS worker in Kanawha County with the West Virginia Department of Health and Human Resources. He told investigators he found the teenager in Charleston and "felt sorry for her" so he took her to his house in the Campbell's Creek area of Kanawha County.
The teen's family had been searching for her for several days, concerned about her mental status.
"You have all the emotions going on of not knowing where this child is and not knowing if they're OK or in danger, if they're dead or alive," Senior Trooper Shaffer says.
During the investigation, troopers obtained a search warrant for Kinser's cell phone. He was then arrested and charged with contributing to the delinquency of a minor. The victim also told investigators Kinser has at least two inappropriate pictures of her.
In court records, investigators say Kinser took the 17-year-old to his home and also rented a hotel room in Kanawha City. During the time the teen was in his care, troopers say the girl was photographed with alcohol.
According to West Virginia State Police, Kinser has been suspended by the West Virginia Department of Health and Human Resources.
In an incident connected with the ongoing investigation, Kinser is facing felony charges for terroristic threats. The day after he was found in a car with the missing teenager and his phone was seized, court records allege Kinser threatened police officers.
According to a criminal complaint, Kinser called his mother several times on the phone, swearing at her and angry that police would not return his phone.
During the phone call, an officer heard Kinser say "let another pig pull up in here, and I'll pop all of them," a reference to shooting police officers.
Court records also allege that earlier that day, Kanawha County Sheriff's deputies were at Kinser's home while his wife got some of her things from the home. Deputies say while they were there, Kinser made a threat toward police officers.
Monday, he is out of jail on bond.
WSAZ has reached out to the West Virginia Department of Health and Human Resources for comment but has not heard back yet. We will update this story when we do.
Effective April 5th 2018, Wisconsin has passed 2017 Wisconsin Act 203 (Act). This Act repealed, amended, and created new law relating to relocating with a child who is subject of a legal custody or physical placement order. This new Act does make noticeable changes to the child removal statute.
Under Wis. Stat. 767.481, removal laws applied when one parent intended to establish a residence with a minor child outside of the state of Wisconsin or more than 150 miles within the state from the residence of the other party. The new Act applies the removal statutes when a parent intends to relocate and establish a residence with a minor child more than 100 miles away from the residence of the other party.
The legal process of moving with a minor child 100 miles away has also dramatically changed. Gone are the days of mailing notice of the intent to move and allowing for an objection period as stated under the previous removal statutes. Now if a parent intends to move, the parent shall file a formal motion with the court seeking permission for the child’s relocation. This motion shall include several things: a relocation plan stating the date of the proposed relocation, the municipality and state of the proposed new residence, the reason for the relocation, a proposed new placement schedule if applicable, and the proposed responsibility for the costs for each parent for transportation of the minor child. The motion shall also include a request for a change in legal custody if applicable.
If the non-moving parent objects to the move, he/she must file and serve, no later than five days before the initial hearing, an objection to the relocation and any alternate proposal, including a modification of physical placement or legal custody.
There are also new legal standards for deciding relocation motions. The court will still consider each of the custody and placement factors under Wis. Stat. 767.41(5); however, now the court shall approve the proposed relocation if the proposed relocation only minimally changes or affects the current placement schedule or does not affect or change the current placement schedule. There is also now a presumption that the court should approve the plan of the parent proposing the relocation if the court determines that the objecting parent has not significantly exercised placement. The movant bears the burden of proof in a contested relocation motion. If the presumption to approve the plan exists, then the parent objecting to the relocation shall have the burden of proof in demonstrating the proposed relocation is not in the child’s best interest.
Matters relating to children can be very emotional. A skilled and experienced attorney, such as the lawyers at Anderson & Anderson Law Office, S.C., can help you through the difficulties of such matters. If you have questions regarding how the new child removal act affects your case, please contact our office and schedule an appointment with one of our skilled family law attorneys.
To see the entire 2017 Wisconsin Act 203, please follow this link:
https://docs.legis.wisconsin.gov/2017/related/acts/203
https://www.andersonlawkenosha.com/news/law-update-wisconsin-child-removal-statute
It is coming up to the anniversary of the day Baby Brianna Lopez died back in 2002. July 19, to be exact. She would have been 16 years old in a few days. But now she will forever be an infant, and infant that suffered the most unspeakable, horrific, abuse, by the hands of the people who were supposed to love her and protect her, her mother, Stephanie Lopez, her father, Andrew Walters and her uncle Steven Lopez. Here is what Find Law says about the case:
Supreme Court of New Mexico.
STATE of New Mexico, Plaintiff-Petitioner, v. Stephanie LOPEZ, Defendant-Respondent.
OPINION
{1} Defendant Stephanie Lopez was convicted by a jury of negligently permitting child abuse resulting in death or great bodily harm, and negligently permitting child abuse not resulting in death or great bodily harm, contrary to NMSA 1978, Section 30-6-1 (2001). Defendant was tried with four codefendants facing various charges as a result of the death of Defendant's five-month-old daughter, Baby Briana. Prior to trial, Defendant made a motion to sever her trial from that of her codefendants. She asserted that her right to confrontation would be violated in a joint trial if the custodial statements of her codefendants were admitted as evidence. Defendant's motion was denied. At Defendant's trial, the district court admitted into evidence the statements made by her codefendants while they were in custody. On appeal, the Court of Appeals held that the admission of the codefendants' statements resulted in a violation of Defendant's Sixth Amendment right to confrontation and that this constitutional error was not harmless. The Court of Appeals reversed Defendant's conviction and remanded her case with the instruction that Defendant be tried separately. The State petitioned this Court to review the Court of Appeals' Opinion. We granted certiorari on the State's petition and reverse the Court of Appeals' Opinion as it applies to Defendant, Stephanie Lopez.
FACTS AND PROCEDURE BELOW
{2} Baby Briana died on July 19, 2002. At the time, Defendant lived with Baby Briana's father, Andrew Walters (Father), in the mobile home of Father's mother, Patricia Walters (Grandmother). Defendant and Father shared one bedroom of the mobile home with Baby Briana, the couple's eighteen-month-old son, Andy Jr., and Defendant's twin brother, Steven Lopez (Uncle).
{3} On the morning of July 19, 2002, Defendant made a 911 call to report that Baby Briana had stopped breathing. Defendant and Father administered C.P.R. on Baby Briana until paramedics arrived and transported her to the hospital. When Baby Briana arrived in the emergency room she had bruises and bite marks on her body and head, and she appeared lifeless. After unsuccessful attempts to resuscitate her, Baby Briana was pronounced dead.
{4} Defendant's statement to the attending physician and nurse in the emergency room indicated that Baby Briana's injuries were the result of Baby Briana falling out of bed. However, the forensic pathologist who testified at Defendant's trial stated that Baby Briana's injuries were not the result of Baby Briana falling out of bed. The autopsy of Baby Briana revealed that she died from cranial cerebral injuries. She had bruising and scraping injuries throughout her head, as well as on her upper forehead. She had numerous human bite marks all over her body and head, fifteen in total. There were extensive injuries to Baby Briana's head and fatal injuries to her brain. She had bleeding within the membranes around the brain as well as around the nerves of her eyes. The autopsy revealed that Baby Briana's skull was fractured in two places, on two different bones, and that the fractures were 5-7 days old. An examination of the membranes around the brain showed the presence of both old and new blood, indicating that Baby Briana had received a separate brain injury in the past. Baby Briana's optical nerves were filled with both fresh and old blood which meant that she had been violently shaken on at least two occasions. Baby Briana suffered two rib fractures on the right side of her chest several weeks before her death. She also had bucket handle fractures on both her right and left thigh bones as well as a fracture through the top of her left arm. These injuries were the result of her limbs being forced, twisted, or yanked. Baby Briana's anus and vagina were also injured. Baby Briana's death was characterized as a homicide.
Statements of Defendant and her Codefendants
{5} In the course of the investigation of Baby Briana's death, police interviewed Defendant, Father, Uncle, and Father's Brother, Robert Walters. Defendant was interviewed on July 19, 2002. In her statement to police, Defendant said that a couple of days prior to Baby Briana's death, Defendant had observed Father throwing Baby Briana up in the air and saw her “come down.” Defendant said that she told Father not to do that because he was going to hurt the child. Defendant attributed the bruising on Baby Briana's head to the fact that Baby Briana rolled off the bed a few days prior to July 19, 2002. Defendant stated that on the night of July 18, 2002, she was in her bedroom of the mobile home with Father, Uncle, Andy Jr., and Father's brother Robert Walters. Defendant said that she had two to three beers prior to falling asleep at approximately 10:00 p.m. Father and the two uncles remained awake. When Defendant woke up at 9:45 a.m., Baby Briana was bruised, pale, and not breathing. Defendant said that she and Father were worried about Baby Briana's condition so they called Grandmother and then called 911. The 911 call was made at 10:20 a.m. Defendant stated that the bruising and other markings on Baby Briana's body were not there when she went to bed the night before. Defendant's explanation as to the bruising documented by medical personnel was that Father had said maybe Uncle threw Baby Briana up in the air. Defendant stated that she had seen Father throw Baby Briana up into the air but she said she had not seen it occur on the night of July 18, 2002. Defendant stated that she had seen Father throw Baby Briana into the air and saw her head hit the ceiling in the bedroom approximately three times. Defendant also said that maybe Uncle threw Baby Briana up into the air as well. In explaining the bite marks, Defendant said that she had seen her son bite Baby Briana.
{6} Father was also interviewed by police on July 19, 2002. In his statement to police, Father admitted to throwing Baby Briana in the air. He stated that he had done it four days prior to her death and that on the night of July 18, 2002, he said that he threw her up into the air two or three times and that her head hit the ceiling. Father also stated that Uncle threw Baby Briana in the air.
{7} During the police interview, Father recounted his activities from the night of July 18, 2002. He said he got off work at 5:00 p.m. and arrived home around 6:00 p.m. Sometime around 8:00 p.m., he picked up Uncle at work and they purchased a case of beer. They returned to their house and spent the rest of the night in their room with Mother, Baby Briana, and Andy Jr. He said he went to sleep between 12:30 and 1:00 a.m. and checked Baby Briana around 3:00 a.m. He then got up around 7:00 a.m., played with Baby Briana, and gave her a blanket, and changed her diaper. Father said he awoke again at around 10:00 a.m. and he and Defendant discovered Baby Briana was not breathing so they called 911. In this portion of the interview, Father admitted only that Baby Briana had fallen off her bed during the night and that he caused two bite marks on her ribs, after initially claiming that his 18-month-old son made the bite marks.
{8} After a break, the police continued interrogating Father and informed him that Baby Briana was dead. Father then admitted to throwing Baby Briana into the air and said that Baby Briana hit her head on the ceiling four days before she died. Father admitted to bruising Baby Briana, stating, “I didn't mean for it to leave a bruise like that. Like I left her a bruise like that before, just from messing with her. [Mother] gets mad.” Father admitted that on the night of July 18, 2002, he and Uncle were “playing a little rough” with Baby Briana and throwing her into the air, with Baby Briana hitting the ceiling, and being dropped onto the floor when he “missed” her. Father identified a particular bruise on a photo as being caused when Baby Briana hit the ceiling and another when she landed on the floor. Father also identified various bite marks that he acknowledged he made. Father said Baby Briana cried when she was dropped onto the floor, and when he was asked what he did to calm her down, he answered, “I just kept throwing her in the air.”
{9} Father was also shown a photo of Baby Briana's anus, and Father became very upset and profane, saying to police that they were “not going to find any semen.” Father said he cleaned Baby Briana's butt with a baby wipe, wrapped the baby wipe around his left index finger, and put the wrapped finger into Baby Briana's anus up to the second knuckle at the middle of his finger. When he took his finger out, “[t]here was a little bit of blood on there.”
{10} Father stated that Mother would sometimes get mad at Baby Briana and would pinch Baby Briana's ears and throw Baby Briana into her bouncy seat from a distance of about two feet. Father also stated that Mother questioned him about the bruises on Baby Briana and he informed her that he had been playing rough with her.
{11} Uncle was also interviewed at the police station on July 19, 2002. Uncle gave an initial statement to police after being informed of his Miranda rights. Uncle stated that on the night of July 18, 2002, he was in the bedroom playing video games with Father and Mother. He said that Robert Walters came home with a friend and they stayed in the room together drinking beer. Uncle said that Defendant had four or five beers. Uncle stated that nothing unusual happened that night and he went to bed at 2:00 a.m. In a subsequent statement to police, Uncle admitted to throwing Baby Briana in the air and said that one time she hit her head on the ceiling. Police then confronted Uncle with admissions made by Father regarding the events of July 18, 2002. Uncle stated that Father was throwing Baby Briana up into the air and that she hit her head twice. After further questioning, Uncle admitted that he also threw Baby Briana into the air so that she would hit her head on the ceiling and allowed her to fall onto the floor. Uncle was then shown photographs of Baby Briana's anus. Initially Uncle denied touching Baby Briana's anus, saying, “Oh, no. I didn't do that. I didn't do nothing like that.” When questioned further, his response changed to, “I can't remember. I don't remember.” Uncle then proceeded to talk about the number of beers he had consumed and he then said he could not remember starting a sex act with Baby Briana, but he remembered stopping because he realized what he was doing was wrong.
Defendant's Trial
{12} As a result of these events, Defendant was charged with negligently permitting child abuse resulting in death or great bodily harm, negligently permitting child abuse not resulting in death or great bodily harm, and intentional child abuse not resulting in great bodily harm, contrary to Section 30-6-1. Father, Uncle, Grandmother, and Robert Walters also faced various charges as a result of Baby Briana's death. The State filed a Statement of Joinder, requesting that Defendant be tried together with Father, Uncle, Grandmother, and Robert Walters. In response, Defendant filed a motion to sever her trial from that of her codefendants. In support of her motion, Defendant argued that a joint trial would result in unfair and incurable prejudice because the statements her codefendants gave to law enforcement would be inadmissible against Defendant in a separate trial. The trial court denied Defendant's motion and proceeded with the joint trial of the five codefendants. The custodial statements of Defendant, Father, Uncle, and Robert Walters were admitted at the joint trial, over Defendant's objection that the admission of her codefendants' testimony would violate her right to confrontation.
{13} Defendant was convicted of negligently permitting child abuse resulting in death or great bodily harm, negligently permitting child abuse not resulting in death or great bodily harm, and acquitted of intentional child abuse not resulting in great bodily harm. Defendant, Father, and Uncle appealed their convictions to the Court of Appeals. Grandmother and Robert Walters did not appeal. The Court consolidated the appeals of Defendant, Father, and Uncle and reversed the convictions of each of the defendants and remanded their cases with instructions that the defendants be tried separately. The Court held that the admission of the statements of the codefendants violated the defendants' Sixth Amendment right to confrontation and that this constitutional error was not harmless beyond a reasonable doubt. State v. Walters, 2006-NMCA-071, ¶ 1, 139 N.M. 705, 137 P.3d 645. The State appealed to this Court arguing that the Court of Appeals erred in determining that (1) Defendant preserved her argument at trial, (2) her confrontation rights were violated, (3) this error was not harmless, and (4) Defendant is entitled to a separate trial.
DISCUSSION
Preservation
{14} We first address the State's claim that Defendant failed to preserve her claim for severance. The State argues that Defendant failed to properly preserve the issue of whether her right to confrontation was violated when she was denied a separate trial and the statements of her codefendants were admitted at her joint trial. The State asserts that Defendant did not preserve this argument for appeal because she failed to identify with specificity the portions of the statements that were the subject of her objection.
{15} In order to preserve an issue for appeal, a defendant must make a timely objection that specifically apprises the trial court of the nature of the claimed error and invokes an intelligent ruling thereon. Rule 12-216 NMRA; State v. Varela, 1999-NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d 1280. In the present case, Defendant made numerous objections, both prior to trial and during her joint trial. Defendant filed a Motion in Limine to sever her trial from that of her codefendants, arguing that she would be prejudiced if the court admitted the statements of Father and Uncle. The trial court denied Defendant's motion. Defendant renewed her motion to sever after opening statements were made. The court again denied Defendant's motion, stating:
Counsel, all of you have made a renewed motion on the record. I don't know that you need to do it over and over again, but you certainly all have a motion for severance. I ruled on it and I intend that be preserved for all of you. I certainly want you to be able to appeal any matter that you feel you should appeal.
After her renewed motion to sever was denied, Defendant requested that, as an alternative to severance, the court redact the accusatory portions of Father's statement that refer to Defendant. This request was also denied by the court. Throughout trial, Defendant's codefendants raised objections based on “hearsay, [the] fifth amendment, and Bruton ” to the testimony of the police officers who introduced the statements of Father, Uncle, and Defendant. Defendant joined in these objections.
{16} We find that Defendant's motion to sever and her objections at trial properly preserved her argument that the inclusion of her codefendants' statements resulted in a violation of her Sixth Amendment right to confront witnesses against her. By including the terms, “Bruton ” and “Confrontation Clause” in her objections, Defendant effectively put the court on notice of the specific nature of her objection and the impropriety of allowing a joint trial where the statements of codefendants would be offered as evidence.
Severance
{17} At trial and on appeal, Defendant's severance arguments were based on her assertion that the custodial statements made by Father and Uncle would not have been admissible against her in a separate trial. Severance may be necessary if evidence that is inadmissible at defendant's separate trial is admitted in a joint trial. See State v. Montoya, 114 N.M. 221, 225, 836 P.2d 667, 671 (Ct.App.1992). The conclusion that inadmissible evidence was introduced at a joint trial does not necessitate reversal of a denial of severance in all cases. “A trial court has discretion in deciding whether or not to sever a case. On review of such a decision we must decide whether, due to the joint trial, there is an appreciable risk that the jury convicted for illegitimate reasons.” Id. at 224, 836 P.2d at 671 (citation omitted). Therefore, we begin our inquiry by examining the statements of Father and Uncle to determine if they were erroneously admitted. Then we examine the impact of those statements.
Statements
{18} Whether the admission of a codefendant's custodial statements constitutes a violation of the Confrontation Clause of the Sixth Amendment of the United States Constitution presents a question of law which we review de novo. See Lilly v. Virginia, 527 U.S. 116, 136-37, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999); State v. Dedman, 2004-NMSC-037, ¶ 23, 136 N.M. 561, 102 P.3d 628.
{19} The Confrontation Clause of the Sixth Amendment provides that “[I]n all criminal prosecutions, the accused shall enjoy the right ․ to be confronted with the witnesses against him.” U.S. Const. amend. VI. The Confrontation Clause bars the “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); accord State v. Alvarez-Lopez, 2004-NMSC-030, ¶ 21, 136 N.M. 309, 98 P.3d 699 (quoting Crawford ). While declining to offer a “comprehensive definition of testimonial,” the Crawford Court stated that at a minimum, the term applies to “prior testimony at a preliminary hearing, before a grand jury, or at a formal trial; and to police interrogations.” Crawford, 541 U.S. at 68, 124 S.Ct. 1354; accord State v. Johnson, 2004-NMSC-029, ¶ 2, 136 N.M. 348, 98 P.3d 998 (quoting Crawford ).
{20} The State argues that the custodial statements of Father and Uncle fall outside of Crawford and do not implicate Defendant's right to confrontation. The State is correct in the assertion that not all police interrogations produce testimony. Since Crawford, the Supreme Court has clarified that police interrogations produce testimony when “the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” Davis v. Washington, 547U.S. 813, ----, 126 S.Ct. 2266, 2269, 165 L.Ed.2d 224 (2006). In this case, the statements of Father and Uncle were elicited during a police interrogation that took place at the police station, hours after Baby Briana's death. Through their interrogation, police attempted to reconstruct the events that led to Baby Briana's death and obtain inculpatory statements from the codefendants. Because the questioning of the codefendants constituted an attempt to “prove past events potentially relevant to later criminal prosecution,” id., we conclude that the statements of Father and Uncle are testimonial.
{21} The testimonial statements of Father and Uncle were admitted at trial through the testimony of the interrogating officers. Father and Uncle did not testify at Defendant's joint trial and it is undisputed that Defendant did not have a prior opportunity to cross-examine Father or Uncle. Thus, the admission of these statements was clearly contrary to the Supreme Court's holding in Crawford. Therefore, the admission of Father's and Uncle's statements in this case is a “per se” violation of Defendant's Sixth Amendment right to confront the witnesses against her. See Johnson, 2004-NMSC-029, ¶ 7, 136 N.M. 348, 98 P.3d 998 (“[U]under Crawford, because Defendant did not have an opportunity to cross-examine [the witness], the admission of [his] statement constituted a per se violation of Defendant's Sixth Amendment right of confrontation.”).
Harmless Error
{22} Having decided that the admission of Father's and Uncle's statements constituted a violation of the Confrontation Clause, we must now determine whether this violation of Defendant's constitutional rights warrants reversal of her conviction. The State asserts that the Court of Appeals' reversal of Defendant's conviction was erroneous because any error regarding the admission of Father's and Uncle's statements was harmless. A violation of a defendant's constitutional right to confrontation may be deemed harmless if the State can establish that the constitutional error was “ ‘harmless beyond a reasonable doubt.’ ” Alvarez-Lopez, 2004-NMSC-030, ¶ 25, 136 N.M. 309, 98 P.3d 699 (quoting Brecht v. Abrahamson, 507 U.S. 619, 630, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)). In the case of constitutional error, the error may be deemed harmless if there is no “ ‘reasonable possibility that the evidence complained of might have contributed to [the defendant's] conviction.’ ” Johnson, 2004-NMSC-029, ¶ 9, 136 N.M. 348, 98 P.3d 998 (quoting Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)).
{23} We stated in Johnson that the reviewing court must examine several factors to determine whether a constitutional error may be considered harmless:
These factors include the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.
Id. ¶ 11 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986)). “We emphasize[d] that constitutional error must not be deemed harmless solely based on overwhelming evidence of the defendant's guilt; the overall strength of the prosecution's case is but one factor in our harmless-error analysis.” Id.
{24} In light of the above principles, we turn to the record in this case to determine whether the erroneous admission of codefendant's testimony was harmless beyond a reasonable doubt with respect to each of Defendant's convictions. See id. ¶ 31. “Because our harmless-error analysis instructs that error may be prejudicial with respect to one conviction, but harmless with respect to another, we review the effect of [codefendant's] statement with respect to each conviction separately.” Id. (quoting Clark v. State, 112 N.M. 485, 487, 816 P.2d 1107, 1109 (1991)).
I. Negligently Permitting Child Abuse Resulting in Death or Great Bodily Harm
{25} The charge of negligently permitting child abuse resulting in death or great bodily harm pertains to the injuries inflicted on Baby Briana in the last two days of her life. “Abuse of a child consists of a person knowingly, intentionally or negligently, and without justifiable cause, causing or permitting a child to be ․ placed in a situation that may endanger the child's life or health [or] tortured, cruelly confined or cruelly punished,” resulting in the death of, or great bodily harm to, the child. Section 30-6-1(D); see also § 30-6-1(E)-(F). Under this theory, the State was required to prove in relevant part that: (1) Defendant permitted Baby Briana to be placed in a situation which endangered the life or health of Baby Briana or permitted Baby Briana to be tortured or cruelly punished; (2) Defendant acted intentionally or with reckless disregard; (3) Defendant was a parent, guardian or custodian of the child, or had accepted responsibility for the child's welfare; (4) Defendant's actions or failure to act resulted in the death of or great bodily harm to Baby Briana; and (5) this happened in New Mexico on or between July 18, 2002, and July 19, 2002. See UJI 14-603 NMRA (defining the elements of negligently permitting child abuse with bodily harm).
{26} A review of Father's and Uncle's statements reveals that they are largely silent with regard to Defendant's actions or knowledge during the last two days of Baby Briana's life. Father and Uncle both stated that Defendant was in the room on the night of July 18, 2002, and Uncle stated that Defendant consumed five to six beers that night. In Defendant's statement to police she did not contradict Father's or Uncle's statements in any significant respect. Defendant told police that she was in the room with Father, Uncle, and Baby Briana, and that she fell asleep around 10:00 p.m. after drinking two to three beers. The statements given by Father and Uncle referred almost exclusively to their own conduct of throwing Baby Briana in the air and allowing her to fall to the floor and to sexually assaulting Baby Briana. In his interview with police, Father explicitly stated that Defendant was “passed out” while Baby Briana was being thrown in the air:
Q. When [Baby Briana] hit her head on the ceiling? Did she cry?
A. Yeah.
Q. What did Stephanie say?
A. I don't even know, I don't even know if she was awake or no.
Q. Did she pass out?
A. She just passed out.
Later in his interview with police, Father was questioned about Defendant's whereabouts on the night of July 18, 2002:
Q. And where's your wife this whole time?
A. She was there too.
Q. Did she see it happen?
A. She passed out.
Q. She saw some of it happen because she told part of it, correct?
A. She was passed out.
Q. She was passed out? So the only ones awake were you, Briana and Steven? Yes or no?
A. Yes, sir.
Father and Uncle did not indicate in any way that Defendant participated in the abuse of Baby Briana in any way.
{27} Considering the first of the Johnson harmless-error factors, the importance of the witness' testimony, Father's and Uncle's testimonial statements were not significantly damaging to Defendant. Father and Uncle merely placed Defendant in the room with Baby Briana on the night of her death, a fact Defendant admitted in her own statement to police. As to the second Johnson factor, the statements were essentially cumulative to Defendant's own admissible testimony. See Johnson, 2004-NMSC-029, ¶ 38, 136 N.M. 348, 98 P.3d 998 (describing that “[c]cumulative evidence is additional evidence of the same kind tending to prove the same points as other evidence already given”). The only distinction between Defendant's version of events, and Father's and Uncle's description of Defendant's behavior, was the number of beers Defendant consumed. Defendant claimed she consumed two or three beers, while Uncle told police she drank five or six. As to the third factor articulated in Johnson, “the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points,” Defendant's own statement to police corroborated the statements of Father and Uncle. Regarding the fourth factor listed in Johnson, the extent of Defendant's opportunity to cross-examine Father or Uncle, Defendant did not have an occasion to cross-examine her codefendants, as neither testified at the joint trial.
{28} Finally, as to the overall strength of the prosecution's case, a jury would have found support for each of the elements of negligently permitting child abuse merely by examining the physical evidence in this case. The physical evidence admitted at trial established that Baby Briana suffered from three limb fractures, the subdural hematoma that killed her, fresh retinal bleeding, and dozens of bruises and bite marks all over her body. This evidence, coupled with Defendant's own statement placing her in the room with Baby Briana on the night the abuse occurred, provides overwhelming proof that Defendant negligently permitted child abuse, resulting in the death or great bodily harm of Baby Briana.
{29} After examining each of the Johnson factors, the admission of Father's and Uncle's statements was harmless beyond a reasonable doubt as to Defendant's conviction for negligently permitting child abuse resulting in death or great bodily harm. Father and Uncle did not inculpate Defendant in any way with regard to their abuse of Baby Briana. The statements of Father and Uncle were merely additional evidence tending to prove what had already been demonstrated by physical evidence and Defendant's own testimony. Because the statements of Father and Uncle “did not serve to strengthen or corroborate the other evidence of guilt, we conclude [their] erroneous admission was harmless beyond a reasonable doubt with respect to [Defendant's] conviction” for negligently permitting child abuse resulting in death or great bodily harm. Johnson, 2004-NMSC-029, ¶ 53, 136 N.M. 348, 98 P.3d 998.
II. Negligently Permitting Child Abuse Not Resulting in Death or Great Bodily Harm
{30} The charge of negligently permitting child abuse not resulting in death or great bodily harm pertains to the injuries inflicted on Baby Briana prior to the injuries that caused her death. “Abuse of a child consists of a person knowingly, intentionally or negligently, and without justifiable cause, causing or permitting a child to be ․ placed in a situation that may endanger the child's life or health [or] tortured, cruelly confined or cruelly punished,” not resulting in the child's death or great bodily harm. Section 30-6-1(D); see also § 30-6-1(E). Under this theory, the State was required to prove in relevant part that: (1) Defendant permitted Baby Briana to be placed in a situation which endangered the life or health of Baby Briana or permitted Baby Briana to be tortured or cruelly punished; (2) Defendant acted intentionally or with reckless disregard; (3) Defendant was a parent, guardian or custodian of the child, or Defendant had accepted responsibility for the child's welfare; and (4) this happened in New Mexico on or between February 27, 2002, and July 19, 2002.
{31} When we review the statements of Uncle and Father that might be relevant to the charge of negligently permitting child abuse not resulting in death or great bodily harm, we conclude that they are limited with regard to Defendant's actions or knowledge during the period of time between February 27, 2002, and July 19, 2002. Uncle makes no reference to Defendant's behavior prior to July 19, 2002, and Father's statement merely reiterates Defendant's own testimony to police. In his statement to police, Father admitted to throwing Baby Briana into the air with Baby Briana hitting her head on the ceiling four days before she died. He also admitted bruising Baby Briana, saying “I didn't mean for it to leave a bruise like that. Like I left her a bruise like that before, just from messing with her. [Mother] gets mad.” Defendant's statement to police echoed what Father said. Defendant told police that, a couple of days prior to Baby Briana's death, she saw Father throwing Baby Briana up in the air and allowing her to come down. Defendant said that she told Father to stop because he was going to hurt the child.
{32} When we apply the Johnson factors to Father's testimony, we determine that the admission of Father's statement was harmless beyond a reasonable doubt as to Defendant's conviction for negligently permitting child abuse not resulting in death or great bodily harm. Father's statements were not particularly important to the prosecution's case because they conveyed very little information that was not provided in Defendant's own statement. Father's statement that he threw Baby Briana in the air and that Defendant knew he had bruised Baby Briana was cumulative in light of Defendant's own corroborative testimony that she had told Father to stop throwing Baby Briana because he was going to hurt her.
{33} While Defendant did not have the opportunity to cross-examine Father, this factor is substantially outweighed by the physical evidence in this case. The physical evidence showed that Baby Briana suffered from two skull fractures that occurred 5-7 days before her death. These injuries would have manifested themselves in striking behavioral changes. Baby Briana also suffered from two fractured ribs that occurred during her fourth and fifth months of life, which would have made it very painful for Baby Briana to be picked up, and she suffered a brain hemorrhage weeks before her death, as shown by the traces of iron left by the blood as her body reabsorbed it. She was violently shaken weeks before her death, causing an old retinal hemorrhage. The physical injuries to Baby Briana provide overwhelming evidence to support the charge of negligently permitting child abuse. When this physical evidence, coupled with Defendant's statement, is weighed against Father's statement, we conclude that the erroneous admission of Father's statement was harmless beyond a reasonable doubt with respect to Defendant's conviction for negligently permitting child abuse not resulting in death or great bodily harm.
{34} Finally, Defendant complains that Father's statement that Defendant would get mad at Baby Briana and pinch Baby Briana's ears and throw Baby Briana into her bouncy seat from a distance of about two feet was erroneously admitted at trial and contributed to her conviction. While we do find that the trial court erred in admitting this testimonial evidence without Defendant having the opportunity for cross-examination, we find this error was harmless. This statement supports the charge of intentional child abuse not resulting in great bodily harm. However, as to the charge of intentional child abuse, the jury found Defendant not guilty. Thus, this error was clearly harmless. See State v. Paul, 83 N.M. 619, 621, 495 P.2d 797, 799 (Ct.App.1972) (concluding that because the testimony of a witness who was not sequestered related only to charge of which defendant was acquitted, not charge of which defendant was convicted, any error in allowing witness to remain was harmless).
CONCLUSION
{35} We therefore reverse the Court of Appeals' decision to overturn Defendant's conviction and remand for a separate trial. We affirm Defendant's conviction and sentence.
{36} IT IS SO ORDERED.
{37} I concur in the majority's holding that Mother's Sixth Amendment right to confrontation was violated when, despite the fact that Mother had no opportunity to cross-examine her co-defendants, the trial court admitted her co-defendants' out of court statements made during police interrogations. Additionally, although I believe the trial court's failure to sever the trials of the defendants makes this an extremely close case as to whether the jury may have convicted Mother for illegitimate reasons, I join the majority in upholding Mother's conviction for negligently permitting child abuse not resulting in death or great bodily harm. Even if the statements from her co-defendants are not considered, Mother's own out-of-court statements, which were introduced to the jury, support the conclusion that the error in admitting the statements in violation of Mother's right of confrontation was harmless beyond a reasonable doubt. Mother's statements included an admission that on more than one occasion she observed both Father and Uncle toss the baby in the air, striking her head on the ceiling. She admitted having become angry with them for having done so and asking them to stop. These admissions, together with the medical evidence of abuse occurring days before the child's death, support a conclusion that the admission of the Father's and Uncle's statement was harmless error beyond a reasonable doubt.
{38} However, I am not persuaded that the statements from Mother's co-defendants relating to the events of the night of the child's death did not contribute to Mother's conviction for negligently permitting child abuse resulting in death or great bodily harm. As such, I respectfully dissent and would remand to the trial court for a new trial on the count relating to child abuse resulting in death or great bodily harm.
{39} Given the varying and somewhat confusing statements from the co-defendants, a jury might have drawn the reasonable inference that Mother was aware of the abuse on the night of the baby's death. For example, at one point, Father, in a statement denying any wrongdoing, said that he spent the night with Mother, the baby, and Uncle. When Father finally confessed to what he had done, he recounted that he threw the baby up in the air, striking her head on the ceiling, as did Uncle. When asked what Mother said when the baby was thrown up against the ceiling he replied “I don't even know, I don't even remember if she was awake or not.” Several minutes later, when he acknowledged that he continued throwing the baby in the air, he was asked, “And where's your wife this whole time?” His reply, “She was there, too.” He later claimed Mother passed out and was asleep at the time of the abuse.
{40} Uncle stated that on the night of the baby's death he was in the bedroom playing video games with Father and Mother. Although Mother consistently stated that she was asleep, not knowing the baby was being abused by Father and Uncle, the statements of the co-defendants are equivocal on this subject. Had Mother been afforded the opportunity to cross-examine her co-defendants, she may have been able to clarify whether everyone was in agreement that she was asleep and unaware of any abuse of the baby during the night preceding the child's death. Whether a jury would have convicted Mother based on uncontroverted evidence that she was asleep and unaware of the abuse taking place is not the issue. The issue is whether there is a reasonable possibility that the statements admitted in violation of the Sixth Amendment might have contributed to Mother's conviction.
{41} The majority has interpreted the statements of Father and Uncle as “largely silent with regard to [Mother's] actions or knowledge during the last two days of [the baby's] life,” and as not making “any reference to [Mother's] awareness of [their] activities.” Maj. Op. ¶ 26. While this is certainly a reasonable interpretation of their statements, the jury also heard Father, at one point, say he did not know whether Mother was asleep, and, at another point, state that she was there while he was tossing the child against the ceiling. The Court of Appeals in describing Father's statement wrote, “Father's statement not only corroborates Mother's, [Father] specifically adds that he and Uncle made Baby hit the ceiling and dropped her onto the floor while they were throwing her and that Mother knew it.” State v. Walters, 2006-NMCA-071, ¶ 41, 139 N.M. 705, 137 P.3d 645. The State contends that this description by the Court of Appeals is misleading because the implication that “mother knew” father was throwing the baby at the time he was doing so, is false. Indeed, argues the State, Father's statement was an attempt to establish an alibi for Mother, seemingly conceding the exculpatory value of Mother not being aware of Father's actions because she was asleep or passed out. By contrast, an interpretation of Father's statement, without the benefit of cross-examination, which leads to a finding that Mother was aware of the abuse taking place, is inculpatory evidence.
{42} Although I might interpret the statement more in line with the State's interpretation, the equivocal nature of the statement is for the jury to interpret and weigh. A reasonable jury may have accepted the portion of Father's statement where he said he did not know whether Mother was awake and that Mother was there while he tossed the baby in the air, and have rejected any statement that she was passed out or asleep. Certainly such a reasonable inference or interpretation of the statement would contribute to a guilty verdict.
{43} The focus of harmless error analysis is “whether there is a reasonable possibility the erroneous evidence might have affected the jury's verdict.” State v. Johnson, 2004-NMSC-029, ¶ 11, 136 N.M. 348, 98 P.3d 998. We must be able to determine, beyond a reasonable doubt, that the jury verdict would have been the same had the constitutional error not occurred. Id. ¶ 9.
[A] reviewing court [must] be guided not by its own assessment of the guilt or innocence of the defendant-a matter which is irrelevant to the question whether the constitutional error might have contributed to the jury's verdict-but rather by an objective reconstruction of the record of evidence the jury either heard or should have heard absent the error and a careful examination of the error's possible impact on that evidence.
Id. ¶ 10. In my judgment, the statements of the co-defendants allow a reasonable inference that Mother was aware of the abuse the night of the child's death. Therefore, I conclude that there is a reasonable possibility that the evidence complained of might have contributed to Mother's conviction.
{44} The prosecution vigorously resisted severance in this case. I conclude my analysis of this issue by reiterating what we wrote in State v. Gutierrez:
The zeal ․ of some prosecuting attorneys, tempts them to an insistence upon the admission of incompetent evidence, or getting before the jury some extraneous fact supposed to be helpful in securing a verdict of guilty․ When the error is exposed on appeal, it is met by the stereotyped argument that it is not apparent it in any wise influenced the minds of the jury. The reply the law makes to such suggestion is: that, after injecting it into the case to influence the jury, the prosecutor ought not to be heard to say, after he has secured a conviction, it was harmless․ [T]he presumption is to be indulged, in favor of the liberty of the citizen, that whatever the prosecutor, against the protest of the defendant, has laid before the jury, helped to make up the weight of the prosecution which resulted in the verdict of guilty.
2007-NMSC-033, ¶ 24, 142 N.M. 1, 162 P.3d 156 (2007) (quoting State v. Frank, 92 N.M. 456, 460, 589 P.2d 1047, 1051 (1979)).
{45} I would reverse Mother's conviction for negligent child abuse resulting in death or great bodily harm and grant her a new trial. The majority concluding otherwise, I respectfully dissent.
MAES, Justice.
WE CONCUR: PAMELA B. MINZNER and PATRICIO M. SERNA, Justices. EDWARD L. CHÁVEZ, Chief Justice, and RICHARD C. BOSSON, Justice (concurring in part and dissenting in part)."
https://caselaw.findlaw.com/nm-supreme-court/1311084.html
Never in history has there been a worse case of child Abuse ever. What the mother, father, and her uncle did to that sweet child from the time she was born until the day she died, on June 19, 2002. is Unspeakable, unforgiveable, unjustifiable. And the worse part of it all is the mother, Stephanie Lopez is already out of prison. She was released after serving nearly 13-years of her 27-year prison sentence. Lopez was convicted in 2003. What in the hell is that about. So many people tried to stop the woman from being released early, petitions were signed, all to no avail. Is this what we call justice? I call that bullshit more than anything.
Stephanie Lopez gets to pick up her life and keep on living where she left off. She is free to marry and God forbid have another child. She is free to breathe and dream, and laugh and experience all that life had to offer. What about Baby Brianna? She doesn't get to experience anything, no dreams, no loving family, no future husband or even children over her own. My heart breaks. And I wish there was something I could do, but there isn’t. The only thing that I can do is to make announcement and remind everyone of this date, June 19, it is the day we need not ever forget, the day Baby Brianna took her last breath.
So all I am asking for on this day soon to be here, is everyone remember Baby Briana Lopez, and remember what that sweet child went through and remember who did it. And please realize it is for this reason alone that there is such a need for Child Protection Services. They are not supposed to be our enemies, they are supposed to keep children safe, and try and prevent this from happening. But in order for them to do this, they have to know what is going on. If you suspect that a child is being abused, like you have witnessed it, please for the love of God do something about it. Be a voice for that child that cannot speak for themselves. Don’t call if your pissed off at your neighbor for what ever reason and you decide you are going to get payback by making up some bogus story and calling up the child abuse hotline. The Cps workers have enough to do with the legitimate cases that come across their desk, they should not have to worry about whether a case is the truth or a revenge call. No call should be made unless it is necessary. As a final thought I will add some pictures as reminders of what Baby Briana suffered, and yes they are brutal and a warning should be given, because they are not suitable for children to see and heck most adults. But I believe pictures can say a thousand words, and if anything they will haunt you and remind you of the worse child abuse case in history. One we will never forget…
Stephanie Lopez Brianna’s Mother
Andrew Walters Brianna’s Father
Steven Lopez Brianna’s Uncle
And here is what they did to Brianna
And here is what Stephanie Lopez looked like as she got to leave prison early
God Rest Your Soul Baby Brianna. Even though you never knew what it was like to be wanted and loved, the whole world wants you and loves you baby girl. There isn’t a day that goes by we don’t all think about you, and we promise you this Dear Brianna, We Will Never Forget.
Miranda rights and search-and-seizure rules are just a few of the legal protections given to criminal suspects and defendants. This section spotlights your constitutional rights during encounters with police officers and in the courtroom.
Who Can Let the Police Search Your Home?
Police officers may usually search the home of an owner who consents. But what if someone other than the owner offers to let the cops have a look around?
Invoking Your Right to Remain Silent
You’ve seen it time after time on primetime television police shows—cops slapping the cuffs on a “perp” and reading him his rights: “You have the right to remain silent. Anything you say can and
Questioning Suspects in Custody: The Miranda Rule
Police must advise you of your 'Miranda rights' before initiating in-custody questioning.
Understanding Search-and-Seizure Law
Learn when the government can invade your privacy to hunt for evidence of a crime.
Fruit of the Poisonous Tree: Illegally Obtained Evidence
You might know that evidence the cops find during an illegal search of you or your belongings is probably inadmissible in criminal court.
Arrest Warrants: What's in Them, How Police Get Them
Police must convince a neutral judge that, more likely than not, a crime has been committed and the subject of the warrant was involved.
When the Police Can Make an Arrest: Probable Cause
"Probable cause" requires more than a mere suspicion that a suspect committed a crime, but not as much information as would be required to prove a suspect guilty beyond a reasonable doubt.
Warrant Execution and Unreasonable Police Behavior
When the police knock on your door, you typically don’t have to let them in unless they have a search warrant signed by a judge.
Resisting Arrest When Police Use Excessive Force
In most states, arrestees can resist arrest only in limited circumstances.
Suing the Police for Excessive Force
Excessive force by the police during an arrest violates the Fourth Amendment to the U.S. Constitution.
Do you have the right to record a police officer doing his job?
By Micah Schwartzbach, Attorney
This article addresses the following question: Can the police search a home when someone who's not the owner agrees to a search?
Courts generally start with the presumption that any search of a home without a warrant is unreasonable. And evidence from unreasonable searches is generally inadmissible in court. But, as with almost all legal rules, there are exceptions to the home-warrant requirement. One exception involves consent: The police normally don’t need a warrant in order to inspect a home when someone who appears to have authority to allow them to search lets them search.
When the owner of a home agrees to the police searching the premises, the search will, in all likelihood, be legal. The question of whether a home search is legitimate gets a little trickier when someone other than an owner consents to the exploration.
What About Landlords?
For related information, see our article on whether the police may search a renter's home if the landlord consents.
Even occupants who have less than full rights over the premises can, through consent, give police the legal justification they need to search parts of a residence. For example, a roommate can give consent that allows the police to search her room, the living room, and the kitchen. But if she doesn’t have access to or control over her roommate’s separate bedroom, she can’t provide proper authorization for the police to search it.
Residents and Their Guests’ Belongings
In general, the primary resident of a home can give valid consent to a search that might implicate a guest who is temporarily staying there. But if the resident doesn’t have access to or use of the place or item to be searched, the consent is probably invalid.
Suppose, for example, that Badger asks for permission to stay in Jesse’s home. Jesse agrees, and Badger moves some belongings in temporarily. When Drug Enforcement Administration agents come knocking, Jesse consents to their searching the house. During the search, they find an open bag in the living room with “Badger” stitched into it and baggies of methamphetamine exposed. The drugs are likely admissible in court against Badger because, as a mere guest, he didn’t have a legitimate expectation of privacy in the living room. (Turner v. State, 573 So. 2d 657 (Miss. 1990).)
On the other hand, if the officers had found the bag in a room that Jesse had set aside specifically for Badger, and only Badger had used and had access to that room during the visit, then the evidence might be inadmissible. (State v. Cover, 450 So. 2d 741 (La. Ct. App. 1984).)
Importantly, regardless of its location, if the bag had been zipped shut and the officers had discovered the meth only after opening it, a court would probably suppress the evidence. That’s because hosts generally don’t have the authority to consent to a search of their guests’ “personal effects” when there’s no reason to believe they have access to or control over them. (State v. Edwards, 214 Conn. 57 (1990), People v. Gonzalez, 88 N.Y.2d 289 (1996), People v. Loomis, 794 N.Y.S.2d 220 (2005).)
A person who doesn’t live in a home but who uses and has joint access to or control over parts of it can authorize the police to search those parts. But someone who is a mere guest generally doesn’t have authority to let the police snoop around. The question is whether police officers reasonably believe that someone who provides consent has normal access to and use of the parts of the house to be searched.
Children
Whether the police are allowed to search a home after receiving permission from a child who lives in the house depends on the circumstances. To determine whether a child's consent is valid, a court might consider factors like the kid’s age and how much use of the premises the youngster appears to have.
In one case, a court determined that the police were reasonable in assuming that a 15-year-old had enough control over an apartment she lived in in order to let them search it. The court pointed out that:
(Rajappa v. State, 200 Ga. App. 372 (1991).)
But even when a child has authority to agree to a home search, the police probably can’t use consent to search everything. For instance, officers would likely be going too far by searching a locked trunk that the child doesn’t have a key to. (People v. Cooney, 235 Cal. App. 3d Supp. 1 (1991).)
Usually, consent to search a home that a housekeeper gives is invalid. For example, an Illinois court upheld a ruling suppressing evidence police found in a home after the housekeeper gave them the green light. The court agreed that the search was unlawful because the officers knew that:
(People v. Keith M., 255 Ill. App. 3d 1071 (1993).)
Of course, if the housekeeper lives in the home and authorizes the police to search only those parts of it that he or she has access to, then the search might be legitimate. In general, the more authority over the home someone like a housekeeper (a live-in babysitter, for example) has, the more likely it is that the person's consent will be valid.
https://www.nolo.com/legal-encyclopedia/who-can-let-the-police-search-your-home.html
I. INTERESTS PROTECTED
The Fourth Amendment of the U.S. Constitution provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
The ultimate goal of this provision is to protect people’s right to privacy and freedom from unreasonable intrusions by the government. However, the Fourth Amendment does not guarantee protection from all searches and seizures, but only those done by the government and deemed unreasonable under the law.
To claim violation of Fourth Amendment as the basis for suppressing a relevant evidence, the court had long required that the claimant must prove that he himself was the victim of an invasion of privacy to have a valid standing to claim protection under the Fourth Amendment. However, the Supreme Court has departed from such requirement, issue of exclusion is to be determined solely upon a resolution of the substantive question whether the claimant's Fourth Amendment rights have been violated, which in turn requires that the claimant demonstrates a justifiable expectation of privacy, which was arbitrarily violated by the government.
In general, most warrantless searches of private premises are prohibited under the Fourth Amendment, unless specific exception applies. For instance, a warrantless search may be lawful, if an officer has asked and is given consent to search; if the search is incident to a lawful arrest; if there is probable cause to search and there is exigent circumstance calling for the warrantless search. Exigent circumstances exist in situations where a situation where people are in imminent danger, where evidence faces imminent destruction, or prior to a suspect's imminent escape.
On the other hand, warrantless search and seizure of properties are not illegal, if the objects being searched are in plain view. Further, warrantless seizure of abandoned property, or of properties on an open field do not violate Fourth Amendment, because it is considered that having expectation of privacy right to an abandoned property or to properties on an open field is not reasonable.
However, in some states, there are some exception to this limitation, where some state authorities have granted protection to open fields. States can always establish higher standards for searches and seizures protection than what is required by the Fourth Amendment, but states cannot allow conducts that violate the Fourth Amendment.
Where there was a violation of one’s fourth amendment rights by federal officials, A bivens action can be filed against federal law enforcement officials for damages, resulting from an unlawful search and seizure. Under the Bivens action, the claimant needs to prove that there has been a constitutional violation of the fourth amendment rights by federal officials acting under the color of law.
However, the protection under the Fourth Amendment can be waived if one voluntarily consents to or does not object to evidence collected during a warrantless search or seizure.
II. SEARCHES AND SEIZURES UNDER FOURTH AMENDMENT
The courts must determine what constitutes a search or seizure under the Fourth Amendment. If the conduct challenged does not fall within the Fourth Amendment, the individual will not enjoy protection under Fourth Amendment.
A. Search
A search under Fourth Amendment occurs when a governmental employee or agent of the government violates an individual's reasonable expectation of privacy.
Strip searches and visual body cavity searches, including anal or genital inspections, constitute reasonable searches under the Fourth Amendment when supported by probable cause and conducted in a reasonable manner.
A dog-sniff inspection is invalid under the Fourth Amendment if the the inspection violates a reasonable expectation of privacy. Electronic surveillance is also considered a search under the Fourth Amendment.
B. Seizure of a Person
A seizure of a person, within the meaning of the Fourth Amendment, occurs when the police's conduct would communicate to a reasonable person, taking into account the circumstances surrounding the encounter, that the person is not free to ignore the police presence and leave at his will.
Two elements must be present to constitute a seizure of a person. First, there must be a show of authority by the police officer. Presence of handcuffs or weapons, the use of forceful language, and physical contact are each strong indicators of authority. Second, the person being seized must submit to the authority. An individual who ignores the officer’s request and walks away has not been seized for Fourth Amendment purposes.
An arrest warrant is preferred but not required to make a lawful arrest under the Fourth Amendment. A warrantless arrest may be justified where probable cause and urgent need are present prior to the arrest. Probable cause is present when the police officer has a reasonable belief in the guilt of the suspect based on the facts and information prior to the arrest. For instance, a warrantless arrest may be legitimate in situations where a police officer has a probable belief that a suspect has either committed a crime or is a threat to the public security. Also, a police officer might arrest a suspect to prevent the suspect’s escape or to preserve evidence. A warrantless arrest may be invalidated if the police officer fails to demonstrate exigent circumstances.
The ability to make warrantless arrests are commonly limited by statutes subject to the due process guaranty of the U.S. Constitution. A suspect arrested without a warrant is entitled to prompt judicial determination, usually within 48 hours.
There are investigatory stops that fall short of arrests, but nonetheless, they fall within Fourth Amendment protection. For instance, police officers can perform a terry stop or a traffic stop. Usually, these stops provide officers with less dominion and controlling power and impose less of an infringement of personal liberty for individual stopped. Investigatory stops must be temporary questioning for limited purposes and conducted in a manner necessary to fulfill the purpose.
An officer’s reasonable suspicion is sufficient to justify brief stops and detentions. To determine if the officer has met the standard to justify the seizure, the court takes into account the totality of the circumstances and examines whether the officer has a particularized and reasonable belief for suspecting the wrongdoing. Probable cause gained during stops or detentions might effectuate a subsequent warrantless arrest.
C. Seizure of Property
A seizure of property, within the meaning of the Fourth Amendment, occurs when there is some meaningful interference with an individual’s possessory interests in the property.
In some circumstances, warrantless seizures of objects in plain view do not constitute seizures within the meaning of Fourth Amendment. When executing a search warrant, an officer might be able to seize an item observed in plain view even if it is not specified in the warrant.
III. WARRANT REQUIREMENT
A search or seizure is generally unreasonable and illegal without a warrant, subject to only a few exceptions.
To obtain a search warrant or arrest warrant, the law enforcement officer must demonstrate probable cause that a search or seizure is justified. A court-authority, usually a magistrate, will consider the totality of circumstances to determine whether to issue the warrant.
The warrant requirement may be excused in exigent circumstances if an officer has probable cause and obtaining a warrant is impractical in the particular situation. For instance, in State v. Helmbright, 990 N.E.2d 154, Ohio court held that a warrantless search of probationer's person or his place of residence is not violation of the Fourth Amendment, if the officer who conducts the search possesses “reasonable grounds” to believe that the probationer has failed to comply with the terms of his probation.
Other well-established exceptions to the warrant requirement include consensual searches, certain brief investigatory stops, searches incident to a valid arrest, and seizures of items in plain view.
There is no general exception to the Fourth Amendment warrant requirement in national security cases. Warrantless searches are generally not permitted in exclusively domestic security cases. In foreign security cases, court opinions might differ on whether to accept the foreign security exception to the warrant requirement generally and, if accepted, whether the exception should extend to both physical searches and to electronic surveillances.
IV. REASONABLENESS REQUIREMENT
All searches and seizures under Fourth Amendment must be reasonable. No excessive force shall be used. Reasonableness is the ultimate measure of the constitutionality of a search or seizure. Searches and seizures with the warrant must also satisfy the reasonableness requirement.
On the other hand, warrantless searches and seizures are presumed to be unreasonable, unless they fall within the few exceptions.
In cases of warrantless searches and seizures, the court will try to balance the degree of intrusion on the individual’s right to privacy and the need to promote government interests and special needs in exigent circumstances. The court will examine the totality of the circumstances to determine if the search or seizure was justified. When analyzing the reasonableness standard, the court uses an objective assessment and considers factors including the degree of intrusion by the search or seizure and the manner in which the search or seizure is conducted.
V. EXCLUSIONARY RULE
Under the exclusionary rule, any evidence obtained in violation of the Fourth Amendment will be excluded from criminal proceedings. There are a few exceptions to this rule.
VI. ELECTRONIC SURVEILLANCE
In recent years, the Fourth Amendment's applicability in electronic searches and seizures has received much attention from the courts. With the advent of the internet and increased popularity of computers, there has been an increasing amount of crime occurring electronically. Consequently, evidence of such crime can often be found on computers, hard drives, or other electronic devices. The Fourth Amendment applies to the search and seizure of electronic devices.
Many electronic search cases involve whether law enforcement can search a company-owned computer that an employee uses to conduct business. Although the case law is split, the majority holds that employees do not have a legitimate expectation of privacy with regard to information stored on a company-owned computer. In the 2010 case of City of Ontario v. Quon (08-1332), the Supreme Court extended this lack of an expectation of privacy to text messages sent and received on an employer-owned pager.
Lately, electronic surveillance and wiretapping has also caused a significant amount of Fourth Amendment litigation.
VII. THE USA PATRIOT ACT
Following the September 11, 2001 attacks on the World Trade Center and the Pentagon, Congress and the President enacted legislation to strengthen the intelligence gathering community’s ability to combat domestic terrorism. Entitled the USA Patriot Act, the legislation’s provisions aimed to increase the ability of law enforcement to search email and telephonic communications in addition to medical, financial, and library records.
One provision permits law enforcement to obtain access to stored voicemails by obtaining a basic search warrant rather than a surveillance warrant. Obtaining a basic search warrant requires a much lower evidentiary showing. A highly controversial provision of the Act includes permission for law enforcement to use sneak-and-peak warrants. A sneak-and-peak warrant is a warrant in which law enforcement can delay notifying the property owner about the warrant’s issuance. In an Oregon federal district court case that drew national attention, Judge Ann Aiken struck down the use of sneak-and-peak warrants as unconstitutional and in violation of the Fourth Amendment. See 504 F.Supp.2d 1023 (D. Or. 2007).
The Patriot Act also expanded the practice of using National Security Letters (NSL). An NSL is an administrative subpoena that requires certain persons, groups, organizations, or companies to provide documents about certain persons. These documents typically involve telephone, email, and financial records. NSLs also carry a gag order, meaning the person or persons responsible for complying cannot mention the existence of the NSL. Under the Patriot Act provisions, law enforcement can use NSLs when investigating U.S. citizens, even when law enforcement does not think the individual under investigation has committed a crime. The Department of Homeland Security has used NSLs frequently since its inception. By using an NSL, an agency has no responsibility to first obtain a warrant or court order before conducting its search of records.
Another aspect of the Patriot Act, which has been highly confidential was the Telephone Metadata program, which under § 215 of the Patriot Act, had allowed the NSA to collect data about Americans’ telephone calls in bulk, was reviewed by the Second Circuit in ACLU v. Clapper, in which the court held the Telephone Metadata program illegal under the Congress’ original intent under the §215.
The Patriot Act has expired in mid-2015, and since June 2nd, 2015 has been repackaged under the USA Freedom Act. Although it remains to be seen how the Freedom Act will be interpreted, with respect to the Fourth Amendment protections, the new Act selectively re-authorized the Patriot Act, while banning the bulk collection of data of American’s telephone records and internet metadata and limited the government’s data collection to the “greatest extent reasonably practical” meaning the government now cannot collect all data pertaining to a particular service provider or broad geographic region.
VIII. FORTH AMENDMENT AND SUPERVISED RELEASE/PAROLE
Probationers—convicted criminal offender who is released into the community under supervision of a probation officer in lieu of incarceration; or parolees—convicts who have served a portion of his judicially imposed sentence in penal institutions, and is released for the remainder of the sentence under supervision of a parole officer for good behavior—can also assert fourth amendment rights, creating a potential confrontation between fundamental constitutional guarantee and the society’s legitimate interest in correctional programs to prevent the convicts from lapsing back into a crime.
Traditionally, courts have struggled with various theories of parole and probation to justify the complete denial of fourth amendment rights to the convicts on supervised release or probation. The most prevalent of the theories was the “Custody Theory,” under which an offender was said to be entitled to no more liberty than he would have enjoyed had he been incarcerated. Recently, however, this rationale was rejected by Morrissey v. Brewer, which emphasized that the parolee’s status more closely resembles that of an ordinary citizen than a prisoner. While the Court noted that since parole revocation only changed the type of penalty imposed on an already-convicted criminal, the Court need not afford the parolees “the full panoply of rights” available under the fourteenth amendment to a free man facing criminal prosecution, the Court held that certain procedural protections must be guaranteed to the parolees facing revocation of the parole. In general, the released offenders now have been afforded full Fourth Amendment protection with respect to searches performed by the law enforcement officials, and warrantless searches conducted by correctional officers at the request of the police have also been declared unlawful.
However, in reviewing the searches undertaken by the correctional officers on their own initiative, some courts have modified the traditional Fourth Amendment protections to accommodate the correctional officers’ informational needs, developing a modified “Reasonable Belief” standard, under which the correctional officer is permitted to make a showing of less than probable cause in order to justify the intrusion of privacy into the released offender.
Last Edited by Jonathan Kim, June 2017
