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

[bessie]

Verification Process for Professionals and Insiders

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[PoirotryInMotion]

Verification Process for Professionals and Insiders

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If you would like to add youself as an expert in a certain field or as an insider to a case, please send an email to [email protected].

If you do not wish to be identified as an expert in a certain area, we ask that you refrain from answering questions that are specifically directed to those that have been verified as specialist in their area and that you do not claim to be a professional in any area.

If a member posts with "expertise" please check to make sure they are on this list. If not, please do not take their post as professional information, but rather just as another opinion; much as you would with any member of the general posting membership.

[...]

If a member wants to post as a professional (a lawyer, shrink, and so on) or as a local/knows the people involved then they must email us at the following email.

[email protected]

Please include:

The case
Your Websleuths name
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In the subject line please put your user name and which case you are asking to be verified on

All info will be kept strictly confidential.

Thank you!

Just for clarity in this case (because it's come up in earlier threads), isn't it allowable to post that one is a _____ but prefers not to be verified on here due to privacy issues?

 

[bessie]

Just for clarity in this case (because it's come up in earlier threads), isn't it allowable to post that one is a _____ but prefers not to be verified on here due to privacy issues?

One can claim to be a butcher, baker, or candlestick maker, but unless one is verified as such, one is expected to back up their "facts" with MSM or other acceptable links, just like every other non-verified member. (Actually, there are a variety of good reasons why one would choose not to be verified.) But to be perfectly clear, the rule says a member should not claim to be an expert or professional unless one is verified.


If you do not wish to be identified as an expert in a certain area, we ask that you refrain from answering questions that are specifically directed to those that have been verified as specialist in their area and that you do not claim to be a professional in any area.


List of verified experts and insiders

 

[liljim]

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.

the 12k number specifically referred to just fencing the site.

 

[lawstudent]

Just to clarify, we can't post case law if we are not qualified as experts? I have a JD but am not an attorney - does that mean I can't comment on the law? Or just that we post links to substantiate it and avoid opinions? For example, with the fourth amendment automobile exception.

ETA: I think the answer is it is ok if we quote MSM and don't base it on our alleged expertise? Is case law MSM?

 

[LookingHoping]

Questions: Is a mobile home considered a "vehicle"?

TIA

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.

A mobile/manufactured home is considered personal property, not real property (real estate) unless it has a foundation. Mobile park mobile homes are typically required to have a hitch, axle and skirt to cover it, as well as clear serial numbers and manufacturer plate (not a license plate), but all listed ON a plate attached to the home itself.

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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.

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[ 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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To me, seeing a car on a tow truck… that's NEK's personal property. The structure he lived in, his home (which by the way a home or residence can be a tent, car, camper, log home, high-rise hotel room) This is about whether it is real property or personal property that is being moved. A mobile/manufactured home is considered personal property, just as a car or computer is.

http://dictionary.reference.com/browse/home

http://www.merriam-webster.com/dictionary/residence

https://www.lincolninst.edu/subcenters/significant-features-property-tax/CustomReport.aspx?id=273

http://www.uniformlaws.org/ActSummary.aspx?title=Manufactured Housing Act

 

[PoirotryInMotion]

Mike Corthell ‏@mikecorthell 30m

CONWAY – The Conway Daily Sun has obtained footage of the man accused of kidnapping Abby Hernandez in the police lobby... http://fb.me/7g46NW0di

 

[bessie]

Just to clarify, we can't post case law if we are not qualified as experts? I have a JD but am not an attorney - does that mean I can't comment on the law? Or just that we post links to substantiate it and avoid opinions? For example, with the fourth amendment automobile exception.

ETA: I think the answer is it is ok if we quote MSM and don't base it on our alleged expertise? Is case law MSM?

You can absolutely cite case law if you include a link. You can offer an opinion, as well, as long as it's understood you are not posting as a professional.

MSM is "mainstream media", but it is not the only acceptable source. Scholarly works, legal transcripts and published opinions, court docs, government and LE documents are excellent sources.

 

[Not Without Peril]

"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?"

"One exception to the search warrant requirement of the Fourth Amendment is the 'automobile exception.' The automobile exception, obviously, applies only to automobiles."

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

Just to clarify, do you challenge the proposition that the "automobile exception" concerns automobiles? If so, I can provide a link. However, I think that you have missed my central point. My point is this: the automobile exception to the warrant requirement of the Fourth Amendment has nothing to do with the present issue because Kibby relies, not on the Fourth Amendment, but on the Fourteenth Amendment. Further, I cannot see why Kibby's position would differ if he lived in a car or a house; he would still want the crime scene, whatever form it took, to be preserved.

 

[tlcya]

I see the arguments for both the state and the defense. I find them both very good arguments and am very interested to see how the judge rules on this one.

I agree that what is most troubling about the idea of moving or altering the scene of an alleged crime lies in the fact that the defense is literally flying blind at the moment. So how do you, as a defense attorney, effectively counsel your client without even the most basic of ideas what the state is fixing to charge your client with in future or what they are basing their current charges on?

And if the judge allows the trailer and container to be removed to another location could that later be grounds for an appeal? I guess it depends on how this plays out, what evidence is found and the case the prosecution presents. Will much of it hinge on evidence that has been shuffled around to a new location?

When is this getting decided again? With so little known at this time about the case the state is building it feels like this could be a very important decision.

 

[PoirotryInMotion]

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.

True...but the question remains, did he not grab her arm at any point during her 9 months of captivity? Or threaten her, or cause bodily harm? Seems that would be known at the time of the first charges if she has identified him as her captor.

 

[PoirotryInMotion]

I see the arguments for both the state and the defense. I find them both very good arguments and am very interested to see how the judge rules on this one.

I agree that what is most troubling about the idea of moving or altering the scene of an alleged crime lies in the fact that the defense is literally flying blind at the moment. So how do you, as a defense attorney, effectively counsel your client without even the most basic of ideas what the state is fixing to charge your client with in future or what they are basing their current charges on?

And if the judge allows the trailer and container to be removed to another location could that later be grounds for an appeal? I guess it depends on how this plays out, what evidence is found and the case the prosecution presents. Will much of it hinge on evidence that has been shuffled around to a new location?

When is this getting decided again? With so little known at this time about the case the state is building it feels like this could be a very important decision.

Good question. JMO, but it seems it could well be grounds for an appeal, being as how other NH "legal experts" have already offered up the opinion that this seems irregular:

Prosecutor Jane E. Young said authorities don’t want the public destroying the property.
Granite State legal experts are unconvinced.

“No matter how difficult it is, the government has a responsibility to maintain the evidence until the defense has had an opportunity to get all the information they need from it,” said Timothy Goulden, an attorney who is not part of the case. “They’re trying to move it without giving the defense the same opportunity that they’ve had to look and check and analyze the scene as it is.”
In criminal cases, the government can take evidence that will be relevant and then give defense counsel a chance to investigate. But with Kibby’s mobile home and shipping container — which have the odd characteristics of being both crime scene and evidence — part of the analysis has to be the surroundings. Could the nearby river drown out noises? Could neighbors see in? Those questions can’t be answered when the crime scene has been towed away.

“It’s highly unusual for the state to completely remove evidence of this nature from the scene,” said Richard Samdperil, an attorney not involved in the case. “He has an absolute constitutional right to know what evidence is being used against him.”

http://bostonherald.com/news_opinio...ving_target_in_abby_hernandez_kidnapping_case

 

[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?"



Just to clarify, do you challenge the proposition that the "automobile exception" concerns automobiles? If so, I can provide a link. However, I think that you have missed my central point. My point is this: the automobile exception to the warrant requirement of the Fourth Amendment has nothing to do with the present issue because Kibby relies, not on the Fourth Amendment, but on the Fourteenth Amendment. Further, I cannot see why Kibby's position would differ if he lived in a car or a house; he would still want the crime scene, whatever form it took, to be preserved.

I challenge the proposition that the vehicle exception applies only to "automobiles". Substitute "motor vehicle" for "automobile", and we're in general agreement.

(The question I originally responded to asked whether a mobile home is a "motor vehicle".)

 

[inthedark14]

I challenge the proposition that the vehicle exception applies only to "automobiles". Substitute "motor vehicle" for "automobile", and we're in general agreement.

(The question I originally responded to asked whether a mobile home is a "motor vehicle".)

Just throwing this out there and it's from my experience only. I used to work for a company that owned and managed manufactured communities across the country. I worked in their finance department. While working with the loan processors part of the work was to get the title changed via the DMV. It was very similar to when you finance a car, actually it was an identical process. Our lending model was set up the same as car loans because none of the states they had communities in would recognize the loans, although they were for homes as mortgages. They were set up the same as an automobile loan. As far as I recall, none of the communities were in NH, I could be wrong but I honestly cannot remember.

ALWAYS MOO

 

[pinkandgreenmom]

I know Jane Young said it would cost about $12000 for a fence. Did she happen to mention how much it would cost to disassemble, move, and potentially reassemble the shed, mobile home and Conex container? Or what storage fees would be? Packing and moving the contents of a home is not cheap.

 

[SStarr33]

I see the arguments for both the state and the defense. I find them both very good arguments and am very interested to see how the judge rules on this one.

I agree that what is most troubling about the idea of moving or altering the scene of an alleged crime lies in the fact that the defense is literally flying blind at the moment. So how do you, as a defense attorney, effectively counsel your client without even the most basic of ideas what the state is fixing to charge your client with in future or what they are basing their current charges on?

And if the judge allows the trailer and container to be removed to another location could that later be grounds for an appeal? I guess it depends on how this plays out, what evidence is found and the case the prosecution presents. Will much of it hinge on evidence that has been shuffled around to a new location?

When is this getting decided again? With so little known at this time about the case the state is building it feels like this could be a very important decision.

Next hearing is this coming Tuesday, August 12.

 

[Curiosum]

The gene studies I have recently read show that individuals with childhood abuse histories experience changes in their gene activity patterns, not that those born with specific genes are more predisposed to developing PTSD symptoms.

Although much of this research is still ongoing and evolving, you are correct that there has been some evidence that trauma and abuse can result in changes in the brain. This can certainly overlap, influence prognosis, and confound the diagnosis where PTSD is concerned. When I was referring to the US marine study I was actually referring to this study: http://www.ncbi.nlm.nih.gov/pubmed/23650250
Again, the research is still evolving and a true consensus hasn't been reached but it is possible that we may get to a point where we can risk stratify individuals for PTSD based on their gene sequences. If this becomes the case then it very well may become part of the screening process for military recruits in the future.

 

[LookingHoping]

Just throwing this out there and it's from my experience only. I used to work for a company that owned and managed manufactured communities across the country. I worked in their finance department. While working with the loan processors part of the work was to get the title changed via the DMV. It was very similar to when you finance a car, actually it was an identical process. Our lending model was set up the same as car loans because none of the states they had communities in would recognize the loans, although they were for homes as mortgages. They were set up the same as an automobile loan. As far as I recall, none of the communities were in NH, I could be wrong but I honestly cannot remember.

ALWAYS MOO

Interesting, just found this. I know ME law on this stuff, but not NH… and things have been changing rapidly over the past 10 years with manufactured homes it is crazy. Even 5 years ago a mobile was about impossible to finance except for via a personal loan (of course, those are about impossible to get these days since the market crashed), there have been many many changes to make it workable for people to finance manufactured homes even if not attached to real property.

This shows it state-by-state from AAA… not sure how valid it all is…. but if true could change it all up. I find it hard to believe it is this generalized especially with the other links where they are bulked in as exceptions to automobiles and not requiring title (bessie posted the link I think)

Anyway, here's this: http://drivinglaws.aaa.com/laws/titles-for-mobile-homes/

 

[lawstudent]

I challenge the proposition that the vehicle exception applies only to "automobiles". Substitute "motor vehicle" for "automobile", and we're in general agreement.

(The question I originally responded to asked whether a mobile home is a "motor vehicle".)

Because I just studied for the bar and had to review all of this, I know that it is commonly referred to as the automobile exception, probably because it usually comes up regarding cars. But it has been held to apply to other vehicles, so Wikipedia refers to it as the motor vehicle exception. Here is some case law on the motor home issue:

http://supreme.justia.com/cases/federal/us/471/386/case.html

They refer to it as the automobile exception throughout, even though the mobile home counts.

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.

The legal standard for warrantless searches is its own standard, so it would be entirely possible for something to be considered a vehicle for finance purposes but a home for Fourth Amendment purposes. There's no clear answer. The dissent is interesting for the other side of the issue. Definitely not a unanimous decision.

 

[Not Without Peril]

Because I just studied for the bar and had to review all of this, I know that it is commonly referred to as the automobile exception, probably because it usually comes up regarding cars. But it has been held to apply to other vehicles, so Wikipedia refers to it as the motor vehicle exception. Here is some case law on the motor home issue:

http://supreme.justia.com/cases/federal/us/471/386/case.html

They refer to it as the automobile exception throughout, even though the mobile home counts.



The legal standard for warrantless searches is its own standard, so it would be entirely possible for something to be considered a vehicle for finance purposes but a home for Fourth Amendment purposes. There's no clear answer. The dissent is interesting for the other side of the issue. Definitely not a unanimous decision.

Thanks for the information. Do you (or anyone else for that matter) have any idea why an exception to the warrant requirement of the Fourth Amendment is being discussed in connection with this case? That's not a rhetorical question; I am genuinely confused. For starters: Was there a warrantless search of Kibby's trailer?