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

[Miss_Diana]

OT: Janise Wright's boy found ... check her thread.

 

[bessie]

1) It can be. There's been case law that covers the issue - whether it's a home or a vehicle, at least with regard to probable cause/searches/warrants/etc. I think it's a matter of titling. If it's registered with the DMV, it's a vehicle; if it's en route somewhere, it a vehicle. If it's attached to land, it's considered a residence. I think once you convert it from a mobile property to a real estate property, it can't go back - but that might vary by state, I'm not sure.

2) No.

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Thanks, AnaTeresa. That's a good summary. Here's information on NH motor vehicle laws. Mobile homes are exempt "special" vehicles in that state, which is more the exception than the rule. (see second link)

Title > Apply for a Title > Exempt Vehicles

Certain vehicles are considered "exempt" and are not required to be titled. New Hampshire does not title motor vehicles with a model year older than 15 years (see below for exceptions) or on any of the vehicles listed below:

Vehicles Not Required to be Titled in New Hampshire

Boats.
Mopeds.
Mobile homes.
Self-propelled wheelchair or invalid tricycle.
Snowmobiles.
Trailers with a gross weight of less than 3,001 pounds.
Vehicles moved solely by animal power.
A complete list of vehicles that are exempt from title requirements in New Hampshire can be found at RSA 261:3.

http://www.nh.gov/safety/divisions/dmv/title/apply/exempt.htm

http://drivinglaws.aaa.com/laws/titles-for-mobile-homes/

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In 1985, the United States Supreme Court addressed the "vehicle exception" and mobile homes in California v. Carney .

When a vehicle is being used on the highways, or if it is readily capable of such use and is found stationary in a place not regularly used for residential purposes - temporary or otherwise - the two justifications for the vehicle exception [SIZE=-1] [471 U.S. 386, 393] [/SIZE] come into play. 2 First, the vehicle is obviously readily mobile by the turn of an ignition key, if not actually moving. Second, there is a reduced expectation of privacy stemming from its use as a licensed motor vehicle subject to a range of police regulation inapplicable to a fixed dwelling. At least in these circumstances, the overriding societal interests in effective law enforcement justify an immediate search before the vehicle and its occupants become unavailable.

[...]

[ Footnote 3 ] We need not pass on the application of the vehicle exception to a motor home that is situated in a way or place that objectively indicates that it is being used as a residence. Among the factors that might be relevant in determining whether a warrant would be required in such a circumstance is its location, whether the vehicle is readily mobile or instead, for instance, elevated on blocks, whether the vehicle is licensed, whether it is connected to utilities, and whether it has convenient access to a public road.

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[AnaTeresa]

thanks anatheresa. u smart too.



without entering a plea, WHEN is it the state's burden to turn over said evidence...I know it's within 30 days of a not guilty plea, but without a plea, what's their time frame?

TIA.

I have no idea. I would think thirty days, but Google has failed me!

 

[bessie]

Bessie,

Do you happen to remember if the issue was ever adjudicated (or even raised) in that case, or was it just something that LE did and no one complained about it?

Thanks in advance. And I promise I'm not trying to be snarky I'm just thinking since he ended up pleading guilty the murder case never went to trial. I'm not sure about motions that came before the guilty plea, though.

From what I recall, the issue prompted discussion, but was not an issue raised in the legal proceedings.

 

[msfortunate]

I thought so, too. If I had to guess, I’d guess addressed to a family member (based on zipcode).

Just a thought...someone mentioned upthread that the letter was addressed to someone in Laconia. Can we tell if the letter was postmarked? Where is NEK being held? Neighboring county Belknap's house of corrections just happens to be in Laconia. If he's there, maybe the letter was something he received from any number of sources: law enforcement, family, etc.

 

[Stolat]

im hesistant to post this because it is such a silly issue but, the idea that it would cost 12k to fence that site is utterly ridiculous. they probably got that quote from somebody's brothers fencing company...

not that it matters, lets say it was legit 15k, 20k, the state should still be required to spend it if that is in the best interest of justice.

whether or not that is the case is certainly open for debate.

If it helps the analysis, I just got a quote for a 60 foot 5'ft tall wood fence for $5,000. Chain link is less, however I was told that building a "temporary" fence is almost double. Because its easier to build a permanent support structure. Not to mention the cost of the labor to dissemble and remove the structure when it's over. 60 feet is about the length of the back of his property. So add 3 more lengths (or similar) and you have a rough estimate.

 

[Fireweed]

I put up, and take down, fences on my property all the time. Putting up fencing in very cheap if you just need to keep animals out of your garden. There is nothing inherently expensive about fencing. I assume that really good fencing costs a lot extra, but I know that there are lots of companies out there that erect temporary fences (think outdoor concert). A fence is not a permanent structure and is something that can be leased if need be.

 

[liljim]

If it helps the analysis, I just got a quote for a 60 foot 5'ft tall wood fence for $5,000. Chain link is less, however I was told that building a "temporary" fence is almost double. Because its easier to build a permanent support structure. Not to mention the cost of the labor to dissemble and remove the structure when it's over. 60 feet is about the length of the back of his property. So add 3 more lengths (or similar) and you have a rough estimate.

yeah, i do about 7-8 fencing quotes a month just outside boston.

you cant secure the site with chain link anyway, if someone wants to get thru it they are going to, so its not like there is some "super secure" option that raises the price, additionally unless you are just looking to waste money there is no reason (legal or otherwise) to secure the entire perimeter of the property. you just need to secure any structures that are being deemed vital, i think it is the house and the container, it may be the shed also.

 

[Stolat]

I put up, and take down, fences on my property all the time. Putting up fencing in very cheap if you just need to keep animals out of your garden. There is nothing inherently expensive about fencing. I assume that really good fencing costs a lot extra, but I know that there are lots of companies out there that erect temporary fences (think outdoor concert). A fence is not a permanent structure and is something that can be leased if need be.

Would you agree that keeping out animals and keeping out humans requires different levels of support/reinforcement? I've built several of my own fences - pain in the royal ^<{, which is why I got the quote. Temporary structures are more costly than permanent if they are to truly keep out trespasses because you have to build more into the reinforcement/support. Not to mention you gotta pays the guys to come back and tear it down and haul it away. My dad used to have to do that with his building sites sometimes. He complained about how much the guys would charge in labor.

And if they're in a union- geesh! Fogettaboutit!!!

 

[Fireweed]

I wanted to add something I was thinking about before I forget. There are a lot of technical questions about how a rape case goes. I think the best answer for most of the questions would be "it depends". It depends on all the surrounding circumstances as to whether or not physical evidence would be needed to prove the case. It depends upon the relationship of the parties as to whether or not lack of consent would be the hardest element to prove. There is no clear-cut, step-by-step process used in proving rape, because the circumstances may warrant otherwise.

Generally, rape is difficult to prove because most rape cases involve two people who already know each other, and generally one or both parties is drunk or on drugs. Most states now follow the newer rape laws and consider sexual intercourse itself to be force, thus leaving the element of consent to be the deciding factor in a rape case. This is why rape is so hard to convict. Juries very often do have a reasonable doubt as to that part of the case, and so they are hesitant to convict.

Now in case of kidnapping and imprisonment, I think we can all see why the problems associated with a "normal" rape case do not really apply here.

Edited to add the NH law on rape applicable to this case:

A person is guilty of the felony of aggravated felonious sexual assault if such person engages in sexual penetration with another person under any of the following circumstances:

(e) When the victim submits under circumstances involving false imprisonment, kidnapping or extortion.

 

[lillygator]

do we know if AH knew him prior to this?

 

[PoirotryInMotion]

Just a thought...someone mentioned upthread that the letter was addressed to someone in Laconia. Can we tell if the letter was postmarked? Where is NEK being held? Neighboring county Belknap's house of corrections just happens to be in Laconia. If he's there, maybe the letter was something he received from any number of sources: law enforcement, family, etc.

It appeared to be a letter he was going to have his atty mail for him (I'm inferring he wrote it, then). Saw no postmark on it yet.

Tip: if you take a screenshot, then open it up, click on Tools at the top of your computer, then click on Show Magnifier, you can see a part of a photo via magnification. (Or, you probably already knew that...)

 

[Fireweed]

do we know if AH knew him prior to this?

No, but they will not confirm or deny it either way.

 

[AnaTeresa]

do we know if AH knew him prior to this?

Nope. Right now, we know nothing!

 

[Ghostwheel]

im hesistant to post this because it is such a silly issue but, the idea that it would cost 12k to fence that site is utterly ridiculous. they probably got that quote from somebody's brothers fencing company...

not that it matters, lets say it was legit 15k, 20k, the state should still be required to spend it if that is in the best interest of justice.

whether or not that is the case is certainly open for debate.

Jumping off your post, but I don't think it is just the cost of the fence. While those items are there (the mobile home, shed, etc), the neighbors are going to be subject to media and looky loos. They have rights, too. In addition, the owners of the property are entitled to rent for that space, which they cannot get while those items are on the property. The yard and structures will not be taken care of, which lowers the value of the property. Unless there is are 24/7 guards(several, because one cannot do it all), someone will break in, then how is any evidence retained? IMO, it's not just a "slap a fence up and everything is hunky dory" kind of situation.

So I have to wonder what NK is afraid will be found when that stuff gets moved.

 

[Ghostwheel]

Excellent point. Though I do suppose that, under the law, if he had that intent at the moment he had Abby get into the car, then he could still be charged with the class b kidnapping felony even if he dropped that intent only a short time later.

My other issue is that surely any way of forcing someone into a car would be either an assault or a battery. If that is how he got her, then that should be part of the charges.

People keep saying that there are surely more charges to come, but to me, all these things would just be basics and totally corollary to the main kidnapping charge.

BBM: In my experience watching these cases, I find that LE charges the suspect with the minimum they need to keep him/her in jail. If there is a danger they could get out on bail, more charges are added. Then, as evidence comes in, they add the maximum charges they can get. So if he told her to get in the car or he would kill her, that can be assault, but not battery. But if there is evidence that he grabbed her arm, and threw her in the car while saying "Get in or I will kill you.", battery gets added to the charges. Neither of those two charges alone would keep him in jail, so they don't need to be added now. They aren't going to charge assault if there is something they are still working on that will bring the charge up to a more severe charge. (Aggravated Assault, Assault and Battery, Assault with a Deadly Weapon, Felony Assault, etc). That is why I am never surprised when three months later more charges are added. JMO.

 

[Not Without Peril]

There's been case law that covers the issue [of] whether [a mobile home is] a home or a vehicle, at least with regard to probable cause/searches/warrants/etc.

I really don't think seizing the mobile home is unprecedented.

One exception to the search warrant requirement of the Fourth Amendment is the "automobile exception." The automobile exception, obviously, applies only to automobiles. Accordingly, if the state searches a mobile home, without a warrant, and relies on the "automobile exception" to contend that the search was proper, the state must demonstrate that the mobile home is, in fact, an automobile.

How does the "automobile exception" relate to the present issue? The present issue, I think, is whether a criminal defendant has a due process right to conduct an independent examination of an alleged crime scene before the state relocates the crime scene, and, if so, whether the state must put the defendant on notice of its theory before the defendant must assert this right.

Imagine that Kibby was a bus driver who had been evicted from his apartment and, out of necessity, slept on his bus for a year (including the period that Hernandez was missing). The bus is clearly an "automobile" -- I fail to see how that is material in terms of the present analysis. Instead of a bus, imagine that Kibby lived in a tree house. The tree house, clearly, is not an automobile; again, I fail to see the significance of this determination.

Or do I simply misunderstand your position?

 

[bessie]

One exception to the search warrant requirement of the Fourth Amendment is the "automobile exception." The automobile exception, obviously, applies only to automobiles. Accordingly, if the state searches a mobile home, without a warrant, and relies on the "automobile exception" to contend that the search was proper, the state must demonstrate that the mobile home is, in fact, an automobile.

How does the "automobile exception" relate to the present issue? The present issue, I think, is whether a criminal defendant has a due process right to conduct an independent examination of an alleged crime scene before the state relocates the crime scene, and, if so, whether the state must put the defendant on notice of its theory before the defendant must assert this right.

Imagine that Kibby was a bus driver who had been evicted from his apartment and, out of necessity, slept on his bus for a year (including the period that Hernandez was missing). The bus is clearly an "automobile" -- I fail to see how that is material in terms of the present analysis. Instead of a bus, imagine that Kibby lived in a tree house. The tree house, clearly, is not an automobile; again, I fail to see the significance of this determination.

Or do I simply misunderstand your position?

Link, please.

Please see my previous post, and add to it Footnote 7 at this link http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=471&invol=386.

http://www.websleuths.com/forums/sh...er-2013-14-**ARREST**&p=10832377#post10832377

 

[tlcya]

I put up, and take down, fences on my property all the time. Putting up fencing in very cheap if you just need to keep animals out of your garden. There is nothing inherently expensive about fencing. I assume that really good fencing costs a lot extra, but I know that there are lots of companies out there that erect temporary fences (think outdoor concert). A fence is not a permanent structure and is something that can be leased if need be.

But perhaps not so cheap if it must keep out more than animals and pass muster as actual security for a crime scene where an officer will not be stationed in conjunction. JMO

 

[bessie]

I wanted to add something I was thinking about before I forget. There are a lot of technical questions about how a rape case goes. I think the best answer for most of the questions would be "it depends". It depends on all the surrounding circumstances as to whether or not physical evidence would be needed to prove the case. It depends upon the relationship of the parties as to whether or not lack of consent would be the hardest element to prove. There is no clear-cut, step-by-step process used in proving rape, because the circumstances may warrant otherwise.

Generally, rape is difficult to prove because most rape cases involve two people who already know each other, and generally one or both parties is drunk or on drugs. Most states now follow the newer rape laws and consider sexual intercourse itself to be force, thus leaving the element of consent to be the deciding factor in a rape case. This is why rape is so hard to convict. Juries very often do have a reasonable doubt as to that part of the case, and so they are hesitant to convict.

Now in case of kidnapping and imprisonment, I think we can all see why the problems associated with a "normal" rape case do not really apply here.

Edited to add the NH law on rape applicable to this case:

A person is guilty of the felony of aggravated felonious sexual assault if such person engages in sexual penetration with another person under any of the following circumstances:

(e) When the victim submits under circumstances involving false imprisonment, kidnapping or extortion.

Link(s), please.