Thursday, May 29, 2014
Good morning:
Today we are going to review the plain-view rule and demonstrate that,
(1) The arresting officer in Crane-Station’s case committed perjury at her suppression hearing and again at trial;
(2) Her lawyer, Chris McNeill knew it and refused to expose his perjury at the trial.
The Plain View Rule
Pursuant to the plain-view rule, a police officer may seize any item without consent or a search warrant, if she:
(1) has a right to be where she is;
(2) sees it in plain view; and
(3) recognizes it to be evidence of a crime.
For example, if a police officer were to pull someone over and notice an ounce of cocaine in plain view on the console of the vehicle, she could seize it and arrest the driver for suspected possession of a controlled substance, provided, she had a right to be where she was.
In other words, if she had a reasonable suspicion to believe that the person she stopped was committing, had committed, or was about to commit a crime, the stop was lawful and she had a right to be where she was when she saw the suspected controlled substance in plain view. But if she did not have a reasonable suspicion, the stop would be unlawful and both her seizure of the suspected controlled substance and arrest of the driver would be unlawful.
The plain view rule is an exception to the search warrant requirement and every police officer knows it. During my 30-year-career as a criminal defense lawyer, I cannot even estimate the number of times that a client told me that an incriminating item seized by police was concealed and definitely not in plain view even though the arresting officer claimed that it was.
Police know that they are going to win swearing contests when it’s their word against the defendant’s and they are right.
The plain view rule is such a well known exception to the search warrant requirement that I cannot imagine any officer would testify under oath that he seized an item that was not in plain view and months later testify under oath in another hearing that the item was in plain view.
Yet, that is exactly what happened in Crane-Station’s case.
No competent criminal defense attorney would fail to confront a police officer who did that, yet that is exactly what her attorney, Chris McNeill, did.
His failure to do that was a violation of his duty to vigorously defend his client and he should be suspended or disbarred for doing that.
Deputy McGuire’s testimony at the preliminary hearing
At the preliminary hearing one week after the arrest, Deputy Eddie McGuire testified:
A. So you couldn’t just–the seat comes in and out, obviously, easily because it’s detached for the purposes of searching. And I just moved the seat back, and it was sitting right there.
Q. You couldn’t see it if you were standing outside the car looking in?
A. Right. I don’t believe you could.
Deputy McGuire’s testimony at the suppression hearing
Q: And what—At that point, what did you see?
A: I just seen the watch and then the small baggy sitting–it was in plain view right there in the crack where the seat belt comes up.
Q: So you could see both?
A: I could see both, yes sir.
Crane-Station here, with supporting documents. Official court reporter transcripts.
Click on the document for an enlarged view.
Preliminary hearing title page:
Preliminary hearing, page 11:
Suppression hearing title page:
Suppression Hearing page 24:
-now, the substance has moved, and it is in plain view.
Suppression hearing page 25:
If you think this is bad, tune in again tomorrow. It gets worse. Much worse.
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