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

[lawstudent]

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?

Looking back, I think the issue is about state seizure of real v. personal property. Somebody was asking for that purpose, but it probably got googled and led to Fourth Amendment search and seizure issues. So the automobile exception is totally irrelevant, after all that!

 

[bessie]

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

At the risk of:deadhorse: that's the same case I cited earlier, and the term "vehicle exception" is used as frequently as "automobile exception". Since the object in question is a mobile home, I find the former preferable for the sake of clarity. But of course, that's JMO.

:whiteflag:

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.

There's the answer in a nutshell. Thanks for summing it up so nicely.

 

[bakerlady]

Fence around Ariel Castro's house.

Cleveland police put up a tall fence around the perimeter of the home. Its windows have been boarded up, and a police officer stands guard outside.

“It’s still a crime scene,” Sgt. Sam Morris told the New York Daily News. “We’re protecting the integrity of it.”
But that hasn’t stopped curious visitors and the media from peering in.

Read more at http://www.nydailynews.com/news/nat...e-1.1345083?cid=radiumOne#awvSflHHbopFyuSO.99

I would imagine that this is the fence that is being discussed and I can certainly see it costing $12K for labor and parts (assemble/disassemble) and I can certainly see people going to the property to gawk and take pictures b/c people are strange/curious/nosy.

 

[PoirotryInMotion]

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?

I feel a lot less stupid for your asking this. Thank you. I have been skimming past these posts as I just couldn't connect what it was all about.

 

[Fireweed]

http://www.conwaydailysun.com/newsx/local-news/115694-footage-of-kibby-in-the-police-station-lobby

Footage of Kibby looking relaxed as he talks with two men at the police station on July 24th, 4 days before his arrest, and the same day that etch-a-sketch man was released.

 

[Linda7NJ]

http://www.conwaydailysun.com/newsx/local-news/115694-footage-of-kibby-in-the-police-station-lobby

Footage of Kibby looking relaxed as he talks with two men at the police station on July 24th, 4 days before his arrest, and the same day that etch-a-sketch man was released.

Weird...he looks like a kid there.
People can have unleashed dogs in the lobby? What would possess one guy to show another a bullet in the lobby?
The whole thing is bizarre.

 

[Fireweed]

I think that dog belongs to the chief of police. Kibby is just casually chatting with those two guys. His body language looks very relaxed to me. He is also dressed quite youthfully.

 

[PoirotryInMotion]

Yes, I think this is the same video posted back a page, post 908. They are chatting like old friends. This is a small town, remember. From the article:

<snipped>
In the video, Kibby is in the upper left hand corner near the soda machine. Conway Daily Sun reporter Daymond Steer is in the upper right near the lobby window and police chief Ed Wagner is near the door. Norman, Wagner's dog, also makes a cameo.
In this clip, Kibby shows Steer a bullet.

 

[Fireweed]

Yes, I think this is the same video posted back a page, post 908. They are chatting like old friends. This is a small town, remember. From the article:

Sorry did not see it. Well, here it is again!

 

[Fireweed]

I grew up in a small Alaskan town, and so I see nothing strange about three guys shooting the sheet at the police station and talking about bullets :shame:

 

[Ghostwheel]

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.

If you read my post, then you know that it would not make sense to charge assault, unless LE charges with the most severe assault charges they have evidence for. I seriously doubt that all evidence has been processed. The same is true of battery charges. Why would LE charge simple battery if they can charge aggravated assault, which carries a greater sentence? It looks bad when LE keeps changing charges. (Oops, we meant assault and battery, no we meant aggravated assault, no we meant first degree aggravated assault....). Once the suspect is in jail and not likely to get out, there is not much sense to adding every minor charge they can think up at the moment. They go for the most severe charges they can get and that comes after processing all the evidence they have for whatever charge. That is just what I have seen with every case I have followed.

 

[Not Without Peril]

It struck me, watching the video of Kibby's hearing (the "Hearing"), that, perhaps, Kibby could rely on the Sixth Amendment to frame his preservation argument.

The Sixth Amendment requires a criminal defense attorney to either conduct a "reasonable investigation" or make a "reasonable decision" to refrain from investigating. [link] Strickland v. Washington, 466 U.S. 668, 691 (1984). [link II] See Commonwealth v. Baker, 440 Mass. 519, 529 (2003), citing Strickland, supra at 690 ("[The Sixth Amendment requires an attorney] to conduct an independent investigation of the facts, including an investigation of the forensic, medical, or scientific evidence on which the [state] intend to rely to prove the defendant's guilt."). The court, when assessing the "reasonableness" of an attorney's decision, must "apply[] a heavy measure of deference to [the attorney's] judgments." Strickland, supra at 691.

In this case, Kibby's lawyer has determined that he must conduct an independent examination of the alleged scene of the crime. See Hearing. If the state prevents him from conducting this investigation, has the state deprived Kibby of the effective assistance of counsel? (Note: this a question, and not a conclusion).

Does anyone know of any decision where, due to the acts or omissions of the prosecutor, a defendant has been denied his right to the effective assistance of counsel?

 

[Dr. Know?]

Abbie showed her anger/hate/rage on the way in court and out. She has been harmed. Let it all come out. This guy is going down after a lot of baloney & ever so quickly over radical objections. He's radical. He made the biggest mistake taking Abbie.

Like her mom said, the look in her eyes, tells me something too.

 

[Fireweed]

It struck me, watching the video of Kibby's hearing (the "Hearing"), that, perhaps, Kibby could rely on the Sixth Amendment to frame his preservation argument.

The Sixth Amendment requires a criminal defense attorney to either conduct a "reasonable investigation" or make a "reasonable decision" to refrain from investigating. [link] Strickland v. Washington, 466 U.S. 668, 691 (1984). [link II] See Commonwealth v. Baker, 440 Mass. 519, 529 (2003), citing Strickland, supra at 690 ("[The Sixth Amendment requires an attorney] to conduct an independent investigation of the facts, including an investigation of the forensic, medical, or scientific evidence on which the [state] intend to rely to prove the defendant's guilt."). The court, when assessing the "reasonableness" of an attorney's decision, must "apply[] a heavy measure of deference to [the attorney's] judgments." Strickland, supra at 691.

In this case, Kibby's lawyer has determined that he must conduct an independent examination of the alleged scene of the crime. See Hearing. If the state prevents him from conducting this investigation, has the state deprived Kibby of the effective assistance of counsel? (Note: this a question, and not a conclusion).

Does anyone know of any decision where, due to the acts or omissions of the prosecutor, a defendant has been denied his right to the effective assistance of counsel?

What I recall from my Ethical Lawyering class (no one laugh ok?) was that we only read cases having to do with acts or omissions on the part of the defense attorney himself, and that the bar was really, really low.

But perhaps there is no case law on a prosecutor's actions in regards to the 6th amendment because no one has bothered to litigate it.

 

[Not Without Peril]

What I recall from my Ethical Lawyering class (no one laugh ok?) was that we only read cases having to do with acts or omissions on the part of the defense attorney himself, and that the bar was really, really low.

But perhaps there is no case law on a prosecutor's actions in regards to the 6th amendment because no one has bothered to litigate it.

To be fair, there are cases of that nature in Massachusetts. (disclaimer: Although I am a lawyer in good standing in Massachusetts, I am neither an "expert" nor a "professional" on this forum).

 

[Fireweed]

To be fair, there are cases of that nature in Massachusetts. (disclaimer: Although I am a lawyer in good standing in Massachusetts, I am neither an "expert" nor a "professional" on this forum).

I should disclaim that I am also a lawyer in good standing, but that I work as a legal translator, and what we discuss here is criminal law, which is something I have not studied in many, many years.

I did not read any cases like that in California, but now I am rather interested. Actually, come to think of it, maybe we did. Oh man is my memory bad.

 

[AnaTeresa]

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?

You linked two different statements I made. One was answering a question someone asked about whether a mobile home is a residence or a vehicle, and whether that would have bearing on the State's movement of the mobile home from the lot into their evidence storage. I wasn't introducing the automobile exception into the conversation - it doesn't apply in this case.

My second statement was that I don't think this is the first time something like that has happened, where the State would collect a mobile home into evidence. Via google, I found other cases where mobile homes were removed from the property and taken into evidence, so in my opinion this isn't uncharted territory that some other posters think it is.

Also a lawyer in good standing, choose not to be verified on the site to maintain my privacy. Will from now on provide links to prove I know what I'm talking about.

 

[CarolinaMoon]

That is the problem. No one knows what they are looking for. The defense attorney cannot properly represent and advise his client right now because he does not know the purpose of the searches that are being conducted.

I do not think that the defense has been given any of the state's evidence. Jane Young is simply telling him not to worry, that the state will like totally preserve it for him to look at later.

The big constitutional problem here is that the state knows what evidence it is looking for and why, whereas the defense has no clue what it is supposed to be looking for when they visit the "crime scene".

BBM

This is so very true. LE is looking for ANYTHING they can find to make the case for the prosecution. They don't know what they will find at this point. Forensic examinations don't happen quickly. In a forensic sense, the mobile home and the container are one huge crime scene.

I also have to add that we don't really know Abigail H's psychological state at this point. It could take months and months of counseling and careful questioning for her to be able to totally open up about her experiences. She will have to re-live 9 months of her life.

This case won't develop as fast as the defense would like.

As with so many cases, including Holly Bobo, Heather Elvis, and Erica Parsons at the moment, there is the hullaballoo upon the original arrest, then the case goes dormant as we wait for hearings, additional charges where we get dribbles of information.

The only time we will have all the facts will be at the trial, a year or three down the road.

In the meantime, we set our Google alerts, watch the threads here, and debate with each and every new disclosure.

 

[pinkandgreenmom]

I hope this is ok to post. There were some posts on Jenise Wright's thread #2 yesterday from someone who said she used to work setting up and taking down mobile homes. She said it was quite expensive to set them up and take them down (it was more than $12k), and she said older mobile homes were quite susceptible to damage if you tried to move them. She listed some things that had to be done in order to disassemble and move them, but I cannot recall exactly what needed to be done. The mobile home in question was they type we are talking about here - hooked up to utilities and stationary.

She made these posts yesterday afternoon.

ETA: I am checking for links. I found the info I posted above (high cost, susceptible to damage) but not that she used to work in the industry. :blushing:
ETA #2: I need more coffee. Posts 594 and 735 in that thread are from someone who has worked in the industry and listed all the things that have to be done to a mobile home to move it. Post 661 is from someone else who gave a dollar figure and said susceptible to damage. Sorry for the confusion...

 

[PoirotryInMotion]

Sorry did not see it. Well, here it is again!

No problem; if you didn't see it, there were probably others who didn't as well.