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Law is a Ass by Bob Ingersoll
Join us each Tuesday as Bob Ingersoll analyzes how the law
is portrayed in comics then explains how it would really work.

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THE LAW IS A ASS for 01/02/2001
"The Law is a Ass" Installment # 76
Originally written as installment # 65 and published in Comics Buyer's Guide issue # 621, October 11, 1985 issue

The Flash is dead.

Long live The Vigilante.


"The Law is a Ass"
Installment # 76
Bob Ingersoll

So do you want to start the recall vote, or shall I?

Adrian Chase used to be a crusading district attorney who fumed when a criminal was let off on a technicality. Then he became a former costumed vigilante known as The Vigilante and as such was the arch foe of the technicality and criminals released therefrom. Arch foe as in, he'd hunt down criminals released on technicalities and kill them. Now he's a conservative, strict constructionist trial court judge in New York City.

With that background, you'd expect his decisions to be something, right? No technicalities need apply. No obviously guilty criminals released simply because all of the evidence against them was illegally gathered. No convictions thrown out on some namby-pamby, whiney excuse like the evidence didn't prove the defendant's guilt. We're talking a hanging judge so pro-prosecution that the criminal defense bar would prefer reading Atlas Shrugged to facing Judge Adrian Chase.

So what does Adrian do on his first big case, State of New York v. Santiago, 23 Vigilante 15 (1985)? Judge Chase suppresses evidence that even I would have let it in. Remember, in me we're talking about a man whose credentials as a bleeding-heart, knee-jerk, pinko, liberal public defender are writ so large that the Supreme Court can read them without their glasses--coincidentally also how they read the Constitution--and I would have allowed the evidence that Adrian Chase suppressed to go to the jury.

But Adrian suppressed it.

What was the evidence you ask? (Or you should, anyway.) To answer that question, let's go back to that exciting day when the New York police executed a search warrant and seized, according to Vigilante # 22, a Boeing 747 full of cocaine from Trinidad Santiago's private airfield....

Wait! Let's stop right here for a moment and consider another point. Adrian Chase is a trial-level judge in New York City. For him to be hearing the Santiago case, Santiago's smuggling activities must have occurred somewhere in New York City. Do any of you know of anyplace in New York City that is large enough to house a private airfield with a runway of sufficient length for a 747? (What? Mr. Santiago just bought La Guardia? Well, why didn't you say so sooner?)

...Onward. Santiago's private 747 lands at his private airfield, full of coke. And I assume we're talking the drug, you know the short form of cocaine. Somehow I don't think Santiago was hoarding the old soft drink, because he can't stand the new formula. The police have a valid search warrant permitting them to search the plane and the airstrip for the drugs. For some reason the police don't follow normal police procedure and execute the warrant as soon as the plane lands. Instead they wait until sometime after Santiago's henchmen have unloaded the coke from the plane to the airstrip's hanger to execute the warrant. The police search the plane, search the airstrip, search the hanger, find the coke, seize the coke from the hanger, arrest Santiago, Mirandize him, and ultimately bring his case up before Adrian Chase.

It looks bad for Senior Santiago, people. I've seen space ships that are less airtight than this case.

Suddenly, in comes Charles McDade, Trinidad Santiago's high priced defense attorney...

Let's stop again. Why is it that every criminal defense attorney in Vigilante has to be fat, pompous, overbearing, smarmy, unctuous, callous, unappealing, and a general greed-head? Oh yes, and not very nice either. We criminal defense lawyers aren't that bad. Our clients may not always be the pick of the litter, but we aren't so bad. Basically, we're a hard working bunch who perform a vital function mandated by the Constitution, which no one appreciates. "Eew, how could you represent someone accused of doing that?" You tell me, why is it so evil that a criminal defense attorney "gets a murderer off on a technicality," when no one sees anything wrong with a civil defense attorney winning a major wrongful death case for some criminally negligent corporate client on the technicality that the Statute of Limitations has run? But I digress.

...McDade moves to suppress the evidence. Why? Because the search warrant specified only that the plane and airfield were to be searched, and didn't say anything about the hanger where the coke was found and, because Santiago only speaks Spanish but the police read him his Miranda rights in English. And the arguments worked for Judge Adrian. He threw out the evidence and dismissed the case. Maybe that argument worked for Adrian. Me, I had a few problems with it. Provided "a few" is defined as ten to the power of Rosanne's dress size.

First there's the matter of the search warrant. McDade's suppression argument was that the warrant specified only the airstrip not the hanger, so it was improper for the police to search the hanger. This is a compelling argument? I would have been more swayed by, "Your Honor, you must suppress the evidence. If you don't my client will lose."

Yes, search warrants must detail with specificity the area to be searched. But, does anyone really think that the search warrant in the Santiago case didn't specify with particularity the area to be searched? The warrant specifically said the airstrip. Does any thinking man believe that an airstrip doesn't include the hangers on it? If so, then I want to introduce him to a legal term: curtilage.

Curtilage means the area situated within a common enclosure belonging to a dwelling place, or in this case an airstrip. In the case of a house, curtilage is ordinarily construed to include the actual house, the land the house sits on and any and all barns, cribs, or other outbuildings found on the bars. If a house is being searched, the unattached garage or backyard tool shed can also be searched as part of the curtilage. Moving from a house to an airstrip, what would the curtilage include? What are the outbuildings of an airstrip? Well, how about the hangers?

So, let's look at the two reasons why the search warrant issued in this case would have been sufficient to search that old hanger. First of all, by common practice, search warrants generally include the phrase, "and all buildings within the curtilage," or some such, so that when a house is searched, the police don't have to say, "Shucks, the smoking gun is in the tool shed, guess we can't go after it." I find it hard to believe that in the Santiago case DA Bryant stupidly left off the boiler plate curtilage language. It would be like going to trial on an assault charge and forgetting to call the victim as a witness.

But even if Bryant did forget the curtilage language, the evidence would come in. See, by an even more common practice, Courts routinely interpret search warrants to include the buildings within the curtilage, even if stupid prosecutors left those magic words out. In fact, especially if stupid prosecutors left those magic words out. Stupid prosecutors have to be protected, too, you know. By common practice and case law, a search warrant includes the place mentioned and the buildings within the curtilage even if curtilage isn't mentioned.

The search warrant in the Santiago case did include the hanger, which was within the curtilage of the airstrip. If not specifically, then by extension because of the curtilage cases.

Want further proof that the search warrant must have included the hanger? How about the fact that it makes no sense to secure a search warrant for an open field and not for the buildings on it. One doesn't need a search warrant for an open airfield. The Supreme Court has created a "Plain View" exception to the warrant requirement. If a police officer can see something in plain view, then he doesn't need a search warrant to seize it.

Nothing is more open and in plain view than an airfield. If someone tried to seal it off or put high fences around it, they'd have an awful mess, when a plane tried to land. No, an airstrip is in plain view, so the police wouldn't really need a warrant to search the airfield alone. If the police want to search an open airfield, all they have to do is fly over it and look down. No warrant is really required. The only way it makes sense for them to secure a warrant for the airfield, is so that they can search the interiors of hangers on the airfield, which are not open or in plain view. The search was not improper, and Adrian should not have suppressed the evidence.

Finally, even if there was some old case that came down exactly the say that the story in Vigilante # 23 played out, that was an old case and is no longer be the controlling law. Recently Supreme Court released some cases that created a "Good Faith" exception to the Exclusionary Rule. The Exclusionary Rule says illegally seized evidence must be suppressed. The good faith cases say if the police are executing a valid search warrant in a good faith manner, evidence which was seized in violation of some technical flaw on the warrant will not be suppressed. The reason for this exception is that the Exclusionary Rule is supposed to prevent police misconduct. Suppressing evidence which was seized in an honest, good faith belief that the seizure was based on a proper warrant will not further said purpose, so the evidence isn't suppressed.

In the Santiago case the police had a valid warrant which they executed by searching the airstrip and the hangers in its curtilage. If District Attorney Bryant messed up and forgot the curtilage language, that is a technical error in the warrant invalidating the search. But the police would have believed that the warrant covered the hanger in the curtilage of the airstrip, because search warrants always include the curtilage. The police acted in good faith, when they searched the hanger, because they had a good faith belief that the warrant allowed them to search the hanger. After all, it's not their fault that Bryant messed up, and it isn't untoward for them to expect him to do his job properly. Thus, under the good faith exception, the evidence should still have been allowed in.

You're getting all this down, aren't you, Adrian? It's still not too late to bring Santiago back to trial.

McDade's did more than argue that the search warrant was improperly executed. He also argued that the physical evidence seized should be suppressed because, when the police read Santiago his rights, they read them in English, and as Santiago speaks only Spanish, he didn't understand them. It is true that the Miranda rights must be read, so that the criminal can understand them. It is also true that reading Santiago his rights in English was improper, because he didn't understand the rights are read to him.. But what does that have to do with the price of Sugar and Spike in Overstreet? Or even with the Santiago case?

The case of Miranda v. Arizona, which is where the term Mirandized comes from, says that before the police can obtain a custodial confession--i.e. a confession taken while the defendant was under arrest--the defendant must be advised of his constitutional right against self-incrimination. If he wasn't advised, then the confession cannot be introduced.

Did you catch the important word there? The confession cannot be introduced. Miranda talks only about confessions. It has nothing to do with physical evidence, such as cocaine found in a hanger. It doesn't matter if Santiago was read his rights in English, Swahili, Pig-Latin, or if the police tried to give them to him by thought exchange. It doesn't even matter if Santiago never got his rights at all. Miranda rights only go to confessions. Santiago's confession, if he happened to make one, would be suppressed. But the physical evidence, that is the coke found while the police were executing a lawful search warrant, would still come in.

And don't tell me that the evidence suppressed, because Santiago didn't get his Miranda rights, was a confession. I don't buy it. First of all, McDade kept talking about the coke, not about a confession. Second of all, Santiago couldn't have confessed without being given his Miranda rights. Think about it: Santiago doesn't speak English, so when he started to confess, he would have done so in Spanish. No one would have understood his confession, unless they spoke Spanish. And once they realized that Santiago only spoke Spanish, they would have then given him his Miranda rights in Spanish.

So there you have it. All sorts of evidence that any second-year law student would have realized was completely admissible and Adrian Chase suppressed it. I'm really disappointed in Adrian. I mean judges still have to go to law school, don't they?

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