THE GOOD FIGHT

The 3rd DCA reversed Judge Milt Hirsch this week in a case in which Judge Hirsch suppressed DNA obtained via consent for one case, but in which the DNA was matched to another crime in the database. 

We don't have Judge Hirsch's order granting the defense's motion to suppress but what we can glean from the decision  is that the privacy concerns and the issues of governmental intrusion into our genetic code fueled the order- along with Judge Alex Kozinsky's powerful dissent in U.S. v. Kincade, 379 F.3d 813, 870  (9th Cir. 2014). 

Here is the link to the 3rd's opinion. State v. Gibson.  (If this was in Broward you might have to pay to read it, but no one has ever mistaken this venue for Broward). 

If we didn't have intelligent and thoughtful and courageous Judges who are willing to look at cases and issues from outside the box and from different angles, then we would just have a rubber-stamp judiciary (11th Cir anyone?) in which cases and defendants are transported into the maw of the criminal justice system and come out the backend broken and incarcerated with their convictions routinely affirmed (11th Cir anyone?).  

Thankfully we have some judges who don't run in that hamster wheel that the government tries to force them into. 

BTW: It's National Peanut Butter Fudge Day. The resolution approving the day cleared the senate last year 51-49 and President Obama signed the bill into law. 

See you in court. 

OPEN YOUR MOUTH WIDE AND SAY Ahhhhh

THE CAPTAIN REPORTS:

OPEN YOUR MOUTH WIDE AND SAY AHHHH ......

Because our humble lead scribe Horace Rumpole is in parts unknown and cannot manage to garner broadband service, we post today the latest in the erosion of our beloved Fourth Amendment from SCOTUS.

To be fair, our fellow blogger, DOM, has the post up on the new case and you can go read his post at http://sdfla.blogspot.com/.  It includes a link to the case, but if you're lazy then go here: http://www.supremecourt.gov/opinions/12pdf/12-207_d18e.pdf

The case is Maryland v. King, and it was decided by a decidedly split 5-4 vote.  But, the five and the four are not whom you thought they might be.  Justice Kennedy wrote the opinion and Justice Scalia wrote the Dissent, and boy what a Dissent it was.  Certainly one worth reading.  Of note, Justice Thomas and Justice Scalia did not vote on the same side here. 

From NACDL:

Washington, DC (June 3, 2013) – Today, the U.S. Supreme Court ruled in Maryland v. King (12-207) that “When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.” (at 28) The 5-4 majority opinion of the Court was delivered by Justice Kennedy and joined by Chief Justice Roberts and Justices Thomas, Alito and Breyer. Justice Scalia filed a dissenting opinion joined by Justices Ginsburg, Sotomayor and Kagan.

In his dissent, Scalia wrote:

"The most regrettable aspect of the suspicionless search that occurred here is that it proved to be quite unnecessary. All parties concede that it would have been entirely permissible, as far as the Fourth Amendment is concerned, for Maryland to take a sample of King’s DNA as a consequence of his conviction for second-degree assault. So the ironic result of the Court’s error is this: The only arrestees to whom the outcome here will ever make a difference are those who have been acquitted of the crime of arrest (so that their DNA could not have been taken upon conviction). In other words, this Act manages to burden uniquely the sole group for whom the Fourth Amendment’s protections ought to be most jealously guarded: people who are innocent of the State’s accusations."

And he concluded:

 “ ... I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection. I therefore dissent, and hope that today’s incursion upon the Fourth Amendment, like an earlier one, will some day be repudiated.”

And in other news:

Big Game Seven at the AAA tonight between the Miami Heat and the Indiana Pacers.  Nothing like a Game Seven and we wish we could be there but we'll have a front row seat watching on our 60" Samsung.  I'm sure Rumpole will have something to say about the results of this game if the Pacers should manage to pull off the game seven upset.  I'm picking the Heat to win and return to a third straight Finals appearance.

UPDATE:

We received an email after the game tonight.  Here is what it said:

Summer is here so enjoy the Heat and the rain.  Look at the bright side; at least the traffic should disappear for about the next ten weeks.

CAPTAIN OUT .....
captain4justice@gmail.com