GUILTY NH - AH, 14, North Conway, 9 October 2013 - #14

[lawstudent]

This is why I do not want to be verified as an attorney. I enjoy talking about various legal aspects of this case (and it really is interesting), but unless an attorney has experience actually working as a criminal law attorney, then his or her knowledge is going to be limited to what we learned in law school. Let me tell you this too, you learn a lot in law school, but you do not learn hardly anything practical there. So no one here who is an attorney is going to know how many days each side has in New Hampshire to reply to certain motions, unless that person actually worked in some capacity in New Hampshire (yes other states have different procedural rules) as a criminal defense attorney or prosecutor.

I am not saying that attorneys will not have some unique knowledge, and we certainly are trained to examine things from unique angles, but unless someone here is a New Hampshire criminal defense attorney (or prosecutor), then none of us is an expert at this at all.

Cool. Now I have a treatise on EU public law to translate.

That's a good point, but I think it's a bit more complicated than that. I worked at a lot of places during law school as an intern or legal assistant. I may not be an expert, but I got some pretty in-depth knowledge of a lot of subjects not covered in law school. By working on one unique case, you can learn more about a certain issue than someone practicing in that area for decades who has paralegals do the detailed research. And just knowing how to read, research, and interpret the law goes a long way in making sense of new topics. And, criminal law in every jurisdiction is governed by Supreme Court rulings to some extent, although the interpretations can vary a bit.

And Fireweed gave a very good explanation, but generally constitutional standards are all about protecting freedoms and liberty and balancing those factors (those are the ones that tend to apply everywhere). State civil statutes are usually about making things economically efficient and dealing with tax classification and all that. The latter requires more certainty involving very specific definitions. So there are just different concerns. But in this case, does that distinction have any relevance under any standard? It seems to be a broader argument about his right to have evidence preserved, and the "home" stuff is being used more to make the larger points about justice and the philosophical value placed on a person's home than any cut and dry classification.

 

[SStarr33]

Another well-written article by the Law Columnist/Reporter for the Boston Herald re the hearing yesterday:

http://bostonherald.com/news_opinio...per_fights_to_keep_his_mobile_home_from_being

There is a comment on that article that says this:

"They can't move this and there is a precedent for this with the State of Mass. vs Splitstream case when they tried to roll his "house" away."

Thought our legal experts might want to look at it.

 

[pinkandgreenmom]

And Fireweed gave a very good explanation, but generally constitutional standards are all about protecting freedoms and liberty and balancing those factors (those are the ones that tend to apply everywhere). State civil statutes are usually about making things economically efficient and dealing with tax classification and all that. The latter requires more certainty involving very specific definitions. So there are just different concerns. But in this case, does that distinction have any relevance under any standard? It seems to be a broader argument about his right to have evidence preserved, and the "home" stuff is being used more to make the larger points about justice and the philosophical value placed on a person's home than any cut and dry classification.

I agree. I don't think the defense was trying to make a legal distinction between real and personal property. He was not looking for a ruling on how a mobile home is classified in NH. I think he was trying to say to the court look, we aren't talking about a set of steak knives or a pair of pants that can be carried off in a box, analyzed and then returned, the way we typically think of evidence. We are talking about something bigger than that - a home. Since it isn't portable, it should be left in place.

My 2 cents. I practiced corporate law for ten years. I am completely useless when it comes to anything remotely practical, much to the dismay of friends and family.

 

[tlcya]

The 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[FONT=Lucida Sans Unicode, Lucida Grande, Verdana, Arial, Helvetica, sans serif].[/FONT]

[FONT=Lucida Sans Unicode, Lucida Grande, Verdana, Arial, Helvetica, sans serif]Is not a part of that 4th amendment argument that places are searched and persons or things seized? I thought the defense was fighting the trailer and container being moved (seized). I thought it was arguing that the search warrants gave the right to search and not seize because it is a place, not a tangible "thing"[/FONT]

 

[bessie]

Per AAA, in NH, manufactured homes are real estate, not personal property.
http://drivinglaws.aaa.com/laws/titles-for-mobile-homes/

Thanks for re-posting the link I posted yesterday. Unfortunately, it was rather conveniently overlooked before the discussion derailed.

 

[tlcya]

thanks for letting me pick all the brains here BTW.

 

[Fireweed]

I agree. I don't think the defense was trying to make a legal distinction between real and personal property. He was not looking for a ruling on how a mobile home is classified in NH. I think he was trying to say to the court look, we aren't talking about a set of steak knives or a pair of pants that can be carried off in a box, analyzed and then returned, the way we typically think of evidence. We are talking about something bigger than that - a home. Since it isn't portable, it should be left in place.

My 2 cents. I practiced corporate law for ten years. I am completely useless when it comes to anything remotely practical, much to the dismay of friends and family.

That is why I did not go into criminal law :drumroll:

Yes I agree with lawstudent et al. Removing a person's home is a much bigger issue than taking bags of evidence from his trailer. A person's home has the greatest constitutional protection of any property a person could own, and for very good reason.

I see a lot of back and forth argument about whether evidence will be better preserved if they move it, or how much it costs to fence vs. move, but to me that is really not the point. The point is that messing with someone's home goes to a much higher standard than mere economic arguments about fencing, or whether evidence can be better preserved at a hangar or warehouse. There a thousands of things that the State could do during a criminal investigation that would cheaper and easier, but those arguments (IMO) pale in comparison to a person who is still presumed innocent, to keep his home.

 

[PoirotryInMotion]

Plus the point that Friedman made...you can't recreate the scene of the crime if you cart off the mobile home--the sounds of the river, what could be heard by nearest neighbors, etc.

 

[AnaTeresa]

I agree. I don't think the defense was trying to make a legal distinction between real and personal property. He was not looking for a ruling on how a mobile home is classified in NH. I think he was trying to say to the court look, we aren't talking about a set of steak knives or a pair of pants that can be carried off in a box, analyzed and then returned, the way we typically think of evidence. We are talking about something bigger than that - a home. Since it isn't portable, it should be left in place.

My 2 cents. I practiced corporate law for ten years. I am completely useless when it comes to anything remotely practical, much to the dismay of friends and family.

I agree. It's a smart argument by the defense. Though I see why the State does want to move it - it isn't completely fixed like a brick and mortar house. They're viewing it more like an RV that's been hooked up at a campground. To them, it's cheaper to haul it away.

 

[AnaTeresa]

There is a comment on that article that says this:

"They can't move this and there is a precedent for this with the State of Mass. vs Splitstream case when they tried to roll his "house" away."

Thought our legal experts might want to look at it.

I Googled, and can't find a case with this name, or even changing it to Slipstream, in case they misspelled.

 

[tlcya]

I shot craps too looking for such a case.

 

[SStarr33]

Plus the point that Friedman made...you can't recreate the scene of the crime if you cart off the mobile home--the sounds of the river, what could be heard by nearest neighbors, etc.

He might argue that he needs to see it during the actual months she was there.

 

[SStarr33]

I Googled, and can't find a case with this name, or even changing it to Slipstream, in case they misspelled.

Did you try separating the words? I would do it, but have no idea where to look it up.

 

[Fireweed]

I agree. It's a smart argument by the defense. Though I see why the State does want to move it - it isn't completely fixed like a brick and mortar house. They're viewing it more like an RV that's been hooked up at a campground. To them, it's cheaper to haul it away.

I have always had such a big issue with this. I understand why an RV, that you take out on the road, has a much lower expectation of privacy than a home, but I do not get why a mobile home is viewed any differently under the law than a regular home. Yes, they are technically portable. But how many times are they moved? My guess is that most people who own a mobile home either never moved it (it was already there when they bought it), or they moved it once to where it currently rests (for an indefinite period of time). It is not like people who live in mobile homes have a nicer, primary "real" home. This is their home. It is where they raise their children and make love to their spouse. IMO, it should not be treated any differently than any other private home. People live in mobile homes because they cannot afford a "real" home. It is not because they wanted a lower expectation of privacy in their homes than someone who has a home on a foundation.

Rant off. I have just always found the legal wrangling over this to be a bit ridiculous. A person's home is a person's home, whether it can theoretically be moved to another piece of land or not.

 

[AnaTeresa]

Did you try separating the words? I would do it, but have no idea where to look it up.

I just used Google. Zip, zero, zilch.

 

[AnaTeresa]

I have always had such a big issue with this. I understand why an RV, that you take out on the road, has a much lower expectation of privacy than a home, but I do not get why a mobile home is viewed any differently under the law than a regular home. Yes, they are technically portable. But how many times are they moved? My guess is that most people who own a mobile home either never moved it (it was already there when they bought it), or they moved it once to where it currently rests (for an indefinite period of time). It is not like people who live in mobile homes have a nicer, primary "real" home. This is their home. It is where they raise their children and make love to their spouse. IMO, it should not be treated any differently than any other private home. People live in mobile homes because they cannot afford a "real" home. It is not because they wanted a lower expectation of privacy in their homes than someone who has a home on a foundation.

Rant off. I have just always found the legal wrangling over this to be a bit ridiculous. A person's home is a person's home, whether it can theoretically be moved to another piece of land or not.

My opinion only, but it's my understanding that if it's being used as a home, then that legal expectation of privacy as a residence stands. It's only downgraded to a motor vehicle if it's licensed with the DMV/being moved/etc.

But I think all this discussion of privacy expectations and whatnot is muddying the waters here. We're talking about the State moving evidence it's already searched; we're not looking at a where LE conducted a possibly impermissible search and trying to decide if it is a motor vehicle or residence, and thus, what expectation of privacy there is for it. The court is basically facing a decision on what avenue, offsite storage or fencing, best preserves the evidence in this case for trial. It's not really a privacy issue, IMO.

 

[Fireweed]

My opinion only, but it's my understanding that if it's being used as a home, then that legal expectation of privacy as a residence stands. It's only downgraded to a motor vehicle if it's licensed with the DMV/being moved/etc.

But I think all this discussion of privacy expectations and whatnot is muddying the waters here. We're talking about the State moving evidence it's already searched; we're not looking at a where LE conducted a possibly impermissible search and trying to decide if it is a motor vehicle or residence, and thus, what expectation of privacy there is for it. The court is basically facing a decision on what avenue, offsite storage or fencing, best preserves the evidence in this case for trial. It's not really a privacy issue, IMO.

My issue is that if this were a regular brick home, then the state would not even consider the possibility of moving it to "preserve evidence". They would have to find another way. All I am saying is that it is reasonable to treat a mobile home like a brick home - they serve the same function to the owner. The state obviously has ways to preserve evidence in every other type of dwelling that cannot be removed. Let the state then apply those procedures in the case of a mobile home as well.

 

[PoirotryInMotion]

I Googled, and can't find a case with this name, or even changing it to Slipstream, in case they misspelled.

I'll tweet McGovern and see if he is aware of the case. But just to clarify...this was posted by a commenter to the article or in the article itself? (on phone, can't pull it up right now)

 

[AnaTeresa]

My issue is that if this were a regular brick home, then the state would not even consider the possibility of moving it to "preserve evidence". They would have to find another way. All I am saying is that it is reasonable to treat a mobile home like a brick home - they serve the same function to the owner. The state obviously has ways to preserve evidence in every other type of dwelling that cannot be removed. Let the state then apply those procedures in the case of a mobile home as well.

But a brick and mortar home is more impervious to weather and interference by animals and/or persons. For example, a person may live on a houseboat, which would serve the same function, but it would be understandable if the State wanted to move it out of the water to keep it from being damaged in storms.

I think the defense is making a good argument; there are some pretty significant reasons to keep it in place. But I see why the State feels it's important to move it, lest it be damaged while under their control, thus giving the defense an opportunity to claim they can't effectively defend the case because of the damage. They're trying to make sure this case doesn't get thrown out on a technicality. ::twocents::

 

[SStarr33]

But a brick and mortar home is more impervious to weather and interference by animals and/or persons. For example, a person may live on a houseboat, which would serve the same function, but it would be understandable if the State wanted to move it out of the water to keep it from being damaged in storms.

I think the defense is making a good argument; there are some pretty significant reasons to keep it in place. But I see why the State feels it's important to move it, lest it be damaged while under their control, thus giving the defense an opportunity to claim they can't effectively defend the case because of the damage. They're trying to make sure this case doesn't get thrown out on a technicality. ::twocents::

The state can make sure nothing happens to it on the property. They are choosing not to.