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Wednesday
Dec062017

Crim Pro Stuff

Example of an Effective Analysis

This is an effective analysis of a sub-issue in the “destruction of evidence” exigency. The issue is clearly stated, as is the standard to be applied by both parties.

 

The issue is:  Did the Detectives have probable cause as to the existence of contraband to walk down the hallway (search) after being invited into the foyer?

The prosecution would want the answer to this question to be “yes,” while the defense would want the answer to this question to be “no.”

In this situation, probable cause to search a place is the reasonable probability that contraband is present at the time of the search and in the place to be searched.  The detectives based their determination of probable cause on an anonymous tip and the smell of rotten eggs.  To determine whether probable cause did exist, both sources must be evaluated.

The tip stated that Dorinda Dennison was selling methamphetamine out of her home, and provided the address of her home.  Tips are judged on the factors of basis of knowledge and the reliability of the tipster, while also taking into account the totality of the circumstances.  Here, the tip was anonymous, and the tipster did not state how the tipster knew that Dorinda was selling drugs.  After receiving the tip, the detectives verified that the listed address for Dorinda Dennison matched the address the tipster provided.  The prosecution would argue that this suggests that the tipster might personally know Dorinda, which could be the basis of knowledge of the tipster.

The defense would argue that simply knowing where a person lives does not mean that the tipster had a basis of knowledge of what the defendant does in her home.  Precedent has established that simply reporting illegal activity, without providing information regarding specifically how the tipster had the knowledge is not enough to establish probable cause.  Florida v. J.L.

The defense would further argue that even if verification of the address provided the basis of knowledge of the tip, the detectives still did not have any information that confirmed the reliability of the tip.  The tip did not provide for any predictive events that could be corroborated by an independent police investigation, which is what precedent has required.  Illinois v Gates.

The prosecution would then argue that evaluating tips is a factor analysis, rather than an element analysis.  A deficiency in one factor, which in this case is reliability of the tip, can be outweighed by the basis of knowledge factor.  In addition, these factors must be considered within the totality of the circumstances, and not just independently.

The prosecution would further state that even if the basis of knowledge factor did not outweigh the reliability of the tipster factor, the detectives were on their way to gather more information regarding the reliability of the tipster.  When detectives approached Dorinda’s home, they were conducting a “knock and talk” in order to investigate the reliability of the tip.  It was during this activity that they encountered the smell of the rotten eggs.  Detective Abel was specially trained to identify the smell of many different types of drugs, and knew that the smell of rotten eggs was an indicator of methamphetamine production. 

The prosecution would argue that the tip, along with the smell of rotten eggs, created a totality of the circumstances that lent reliability to the tipster.  The prosecution would argue that this evidence of reliability of the tipster constituted probable cause to further search the home when considered in combination with the basis of knowledge of the tipster.

The defense would counter this argument by saying that the smell of rotten eggs is common in homes, and absent any other unusual smells that indicate drug use or production, does not create a totality of the circumstances that would lend to the reliability of the tip.  Therefore, there could be no probable cause because the detectives did not have a valid tip, and did not gain any additional evidence when conducting the “knock and talk.”

 

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