An independent arbiter ruled that Ryan Braun’s 50-game suspension should be overturned, making Braun the first baseball player to ever win this type of an appeal. Major League Baseball had suspended Braun after one of his random urine samples contained an elevated level of synthetic testosterone, a banned substance. Braun, like most, loudly proclaimed his innocence and vowed to appeal.

Only this time it looks like Braun really is innocent. According to MLB protocols, the person who collected the sample from Braun was supposed to take it directly to Fed Ex where they would ship it to the testing lab. Once the sample is submitted to Fed Ex, the samples cease to have a name attached to them and instead have a number. While the numbers match up to certain players, the lab doesn’t know which number corresponds to which player. This anonymity is important so that no one has an incentive to falsify or tamper with a sample. The only time that the sample can be linked to a particular player is the time between when the collector receives it from the player and when the collector takes it to Fed Ex. This is time time when the potential for abuse is high.

Which is why MLB mandates that the collector take the sample to Fed Ex as soon as possible. Only this collector didn’t do that. Instead, he drove by a number of Fed Ex locations on his way home and then put the sample in his refrigerator. There it sat for roughly forty hours, until the collector finally took it to Fed Ex so they could ship it to the lab. What happened to the sample in that 40 hours? Did the collector put the synthetic testosterone in Braun’s sample? If so, why?

This is called a chain of custody problem. Before evidence can be admitted, you must be able to prove that the evidence is in the same or similar condition as it once was. For this, you typically need three witnesses – the collector, the preserver, and the presenter. The collector is the one who first discovers the evidence at the scene. The collector then gives the evidence to the preserver – typically an evidence storage person – who puts it somewhere until the presenter comes along. The presenter is the person who takes the evidence from the preserver and brings it to court. Sometimes the collector and the presenter are the same person. Each of these witnesses must be able to identify the evidence in court as the same piece of evidence they handled. For some pieces of evidence, such as the Hope diamond, this would be easy – there’s only one of them in the world. For others, such as a piece of clothing, the item is typically placed in a bag that has each witnesses’ initials on it. The key is that these witnesses can account for the location of the evidence for every second since it was first recovered so that there’s no chance someone tampered with it. It’s called the chain of custody.

MLB couldn’t prove its chain of custody. It couldn’t account for Braun’s sample during the time in which the collector apparently disregarded league rules and kept the sample at his home. Because they couldn’t do that, Braun won. In criminal cases, it’s rare that a chain of custody objection results in victory. Police officers are drilled in chain of custody protocols at the academy and follow those protocols religiously. Because when they’re not followed, evidence gets tossed. In this case, the arbiter was right to exclude the sample from evidence. Without a proper chain of custody, the evidence simply isn’t reliable.

In Jones v. United States, 565 U.S. _______ (2012), the United States Supreme Court ruled that the police performed a “search” when they attached a GPS tracker to Jones’ car. While all the justices reached the same conclusion, they traveled different paths to get there. Writing for the majority, Justice Scalia revived the Fourth Amendment’s trespass theory. Simply put, it holds that the government performs a search when it trespasses on a person’s property to collect evidence. Courts had used the trespass theory until the Supreme Court’s decision in Katz v. United States, 389 U.S. 347 (1967). In Katz, the Court formulated a new theory: the reasonable expectation of privacy theory. Under this theory, the government performs a search whenever it invades an area in which a person has a reasonable expectation of privacy. After Katz, almost every search or seizure question was analyzed with the reasonable expectation of privacy theory while the trespass theory was largely relegated to the dustbin of constitutional history.

Until Scalia’s opinion in Jones. Scalia explained how Katz did not replace the trespass theory with something else; Katz actually added a whole new theory. These two theories are now mutually exclusive. They exist as independent but parallel barriers to the introduction of evidence seized through warrantless searches. Scalia’s revival of the trespass theory gives constitutional practitioners another front to litigate the merits of state action.

But how narrow will that front be? Justice Alito’s concurring opinion goes further than Scalia’s. It says that putting the GPS on Jones’ vehicle and tracking his movements for two weeks was an invasion of his reasonable expectation of privacy. Alito’s opinion does offer some qualifications which essentially say that his result is determined by the facts of this particular case. A shorter or less extensive monitoring might not implicate the Fourth Amendment. Justice Sotomayor wrote separately to articulate the heart of the case: technological advancement is beginning to outpace the law’s ability to adapt to it. The authors of the Fourth Amendment cannot have envisioned the world we now live in. Sotomayor’s opinion suggests she thinks it’s time for the Supreme Court to reevaluate the ideas that undergird its Fourth Amendment analyses.

Pay attention to what the Court did not decide. The Court did not hold that affixing the GPS unit to Jones’ car was an unreasonable search. Only that it was a search. The Fourth Amendment doesn’t prohibit all warrantless searches, just unreasonable ones. Scalia specifically pointed out that the government waived this argument and so the Court wasn’t going to decide it. The Court could later hold that placing a GPS unit on a vehicle is a reasonable search and doesn’t require a warrant. Until it does, the government will need a warrant to trespass to any person’s property.

I recently finished presenting evidence in a three day trial against the State of Kansas. Specifically, we alleged that my client received ineffective assistance of counsel. During the trial, one of the prosecution’s witnesses deliberately disregarded a court order and failed to preserve evidence. That evidence would have helped my client show he wasn’t guilty of the charges. Appellate counsel framed this is as a discovery order issue when it should have been framed as a Arizona v. Youngblood issue.

Arizona v. Youngblood and subsequent cases say that the prosecution’s failure to preserve evidence it knows will be potentially useful to the defense is a constitutional due process violation. The remedy for the violation depends on how much the evidence would have helped the defense. That’s the wrong remedy.

The right remedy is one that will deter the prosecution from destroying evidence. That’s why the exclusionary rule exists. It is a synthetic deterrent – a judicially-created rule – that excludes illegally-obtained evidence. The rule exists to deter police from violating the constitutional rights of citizens. The thinking is that if the police know that the evidence won’t be admitted at trial then they won’t violate a person’s rights to get that evidence.

Shouldn’t we apply that same rationale to destruction of evidence? Let’s compare the two situations. Take a police officer in the field who makes a quick decision to search a suspect without considering whether he’s entitled to do it. Compare that to someone who knows that evidence could help the defendant at trial and destroys it anyway. If we could only deter one of those activities, wouldn’t it be the latter?

But we don’t. Instead, we look and see how much the destroyed evidence would have helped the defendant at trial. This is a process witnesses aren’t allowed to do (it’s called speculation) but apparently judges who were were not in courtroom to hear the live evidence are perfectly free to do (they’re called appellate judges).. The courts regularly decide that the destroyed evidence wouldn’t have mattered at trial and uphold the conviction. The police know they can get away with it and have no incentive to stop.

We should apply the exclusionary rule to these situations. The intentional destruction of exculpatory evidence mocks the idea of a just society. We shouldn’t just deter it, we should punish it.

The evidence against her was suppressed, and the case will most likely be dismissed. If you’ve been the victim of an illegal search, contact Bell Folsom today so we can start fighting for you.

In State v. Ottinger, the defendant was ordered – for probation – to complete the Sedgwick County Community Corrections Program at the Adult Residential Center (“the Center”).  He was also ordered to have no contact with his wife – codefendant in the same case.  On August 28, 2010, Ottinger was granted permission to leave the center from 8 – 11 AM.  He never returned.  He was later arrested and claimed the defense of “compulsion” because he had needed to care for his son and his suicidal wife.  The district court granted the State’s motion in limine to prevent Ottinger from testifying about his need to escape.

The Court of Appeals affirmed the State’s motion, holding that – though the compulsion defense can be asserted by a defendant to protect his family – Ottinger did not qualify because he failed to establish that his wife was in imminent danger when he “escaped” from the Center. Specifically, the court held that Ottinger had failed to produce evidence that he reasonably believed her life was in imminent danger. But the Court of Appeals overruled State v. Kelly, 21 Kan. App. 2d 114, rev. denied 258 Kan. 861 (1995), which held that a prison escapee could not assert the compulsion defense to protect third parties. The Ottinger panel held that Kelly was wrongly decided and that escaped prisoners could claim compulsion as a defense of their crime. In other words, if a prisoner reasonably believed that he or she had to escape in order to save someone’s life, that would not be a crime.

If you or a loved one is facing criminal charges, contact an experienced criminal attorney at Bell Folsom, P.A. today.

Recently, the Kansas Court of Appeals was faced with the case of Mr. Anthony Barnes.  State v. Barnes, No. 100,710 (Kan. Ct. App. Sept. 23, 2011).  Mr. Barnes suffers from various mental illness including chronic paranoid schizophrenia.    In Sedgwick County, he was charged with one charge of first-degree premeditated murder and one charge of aggravated assault.  During his jury trial, he decided to waive his right to a jury trial and continue with a bench trial to be decided by the judge.  At the trial court, the court spend a significant amount of time trying to explain the significance of waiving a right to jury trial.  However, even at the end of their discussion, the court had a difficult time getting the defendant to confirm he understood what was happening to him.  Eventually, the court did decide that Mr. Barnes was competent to waive his right to jury trial.  The defense went on to put on evidence of Mr. Barnes’ schizophrenia disorder. A psychatric evaluation concluded Mr. Barnes’ mental illness prevented him from having the requisite intent to commit premidated murder and aggravated assault.owever, he was found guilty and sentenced to life in prison with a consecutive 14 months for the aggravated assault.