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Part 5
pages 24-31
This page continues from www.lawyerdude.s5.com/6416pt4.html
This page is www.lawyerdude.s5.com/6416pt5.html
This fat brief of 86 pages is broken into 9 pieces on the internet.
www.lawyerdude.s5.com/6416.html Contains the list of approximately 90 issues.
www.lawyerdude.s5.com/6416pt2.html Contains the tables of cases and other authorities cited herein. Cases are in alphabetical order
www.lawyerdude.s5.com/6416pt3.html Contains the factual history of the case with verbal (not electronic) link to the transcript. Contains the chronology of the case.
www.lawyerdude.s5.com/6416pt4.html Begins the argument in my case. Goes to page 23 of the brief.
www.lawyerdude.s5.com/6416pt5.html Contains pages 24-31 of the argument.
www.lawyerdude.s5.com/6416pt6.html Pages 31 through 54 of the argument.
www.lawyerdude.s5.com/6416pt7.html Pages 55 through beginning of 76 of the argument
www.lawyerdude.s5.com/6416pt8.html Pages 76 through 84, the end of the argument
www.lawyerdude.s5.com/6416indx.html This last web page is a Topical Index of the brief.
WONG SUN
At L Ed page 454 "The government argues that
Toy's statements to the officers in his bedroom,
although closely consequent upon the invasion
which we hold unlawful, were nevertheless
admissible because they resulted from 'an
intervening act of free will."
PALASCHAK
The prosecution argues and Judge McNally
mistakenly agrees that the LSD surrendered by
Jessica Jobin although closely consequent upon the
invasion of Palaschak's privacy is nevertheless
admissible because (Nov 4, 31:26 - 32:3) 1) "[the
surrender] was done with consent"; 2)"right to be
free from unreasonable seizure was not violated at
that point"; and 3) "it was her expectation of
privacy in the purse and not Palaschak's right of
expectation of privacy."
At L Ed 455: "We now consider whether the
exclusion of Toy's declarations requires also the
exclusion of the narcotics taken from Yee, to which
those declarations led the police. . . [this is not] a
case in which the connection between the lawless
conduct of the police and the discovery of the
challenged evidence has 'become so attenuated as
to dissipate the taint.' Nardone v US 308 US 338,
341, 84 L Ed 307, 312, 60 S Ct 266. We need not
hold that all evidence is fruit of the poisonous tree
simply because it would not have come to light but
for the illegal actions of the police.
Of course, Judge McNally did not find that there
was any violation of constitutional rights in 1)
entering the outer door; 2) coming through the inner
door; or 3) staying at Palaschak's office after the
exigency of Jessica Jobin's peril was extinguished.
Therefore it is not surprising that he did not
suppress the LSD.
Rather, the more apt question in such a case is
'whether, granting establishment of the primary
illegality, the evidence to which instant
objection is made has been come at the
exploitation of that illegality or instead by
means sufficiently distinguished to be purged of
the primary taint.' . . . We think it clear that the
narcotics were 'come at by the exploitation of that
illegality' and hence that they may not be used
against [Blackie] Toy."
The testimony of Jessica Jobin is not purged of
the primary illegality - and it must be
suppressed. This court of appeal should
reverse Judge McNally's denial of Palaschak's
motion to suppress all the evidence stemming
from this unlawful violation of Palaschak's right
to privacy.
At 9 L Ed 2d 455: "It remains only to consider Toy's
unsigned statement. We need not decide [this].
By corollary, the court need not decide the issue of
the admission of the statements of the news
reporters.
9 L Ed 2d at 455 column 2: "[W]e have concluded
that [Blackie Toys] declarations in the bedroom and
the narcotics surrendered by Yee should not have
been admitted in evidence against [Blackie Toy]."
The court did not question that Blackie Toy had
standing to contest the admission of the
narcotics surrendered by another person -
Johnny Yee.
Palaschak's statements made at the scene and
the LSD surrendered by Jessica Jobin (who
corresponds to Johnny Yee in this analogy)
should not be admitted against Palaschak (who
corresponds to Blackie Toy). This is an answer to
the question of Palaschak's standing posed by the
court at (Nov 4, 7:17) and answered in this brief in
Issue #5 - the issue of standing.
At 9 L Ed 2d 458 the court gives its reason regarding standing of Blackie Toy to object to the narcotics
2Gilliland v Commonwealth (1928) 224 Ky 453, 6 SW 467 holds that a mental incompetent cannot
validly consent to a search and therefore Jessica Jobin, by virtue of her chemical hypersuggestibility could
not issue a valid consent to admit the police to the inner office - and neither could Palaschak.
Page 24
surrendered by Johnny Yee:
"We must then consider the admissibility of the narcotics surrendered by Yee. Our holding,
supra, that this ounce of heroin wa inadmissible against Toy [Blackie Toy - Palaschak's corollary
in this analogy] does not compel a like result with respect to Wong Sun. The exclusion of the
narcotics as to [Blackie] Toy was required solely by their tainted relationship to information
unlawfully obtained from [blackie] Toy, and not by any official impropriety connected
with their surrender by Yee. The seizure of this heroin invaded no right of privacy of
person or premises which would entitle Wong Sun to object to its use at his trial. Cf.
Goldstein v US 316 US 114, 86 L Ed 1312, 62 S Ct 1000 .
Goldstein explains the simple logic - if your rights are violated in obtaining the evidence, then you have standing.
Issue #4.0: CONSENT AT THE INNER OFFICE DOOR - Nueslein analogy . Consent to enter at the inner
office door:
1) does not vitiate the need for a warrant (Nueslein below);
2) was itself the product of an illegal intrusion through the outer door (as in Wong Sun);
3) could not voluntarily have been given due to the chemically enhanced suggestibility2 of Jessica Jobin;
4) was not given by Palaschak - who "may have" said "We have no idea why you are here" (Oct 31
55:22-24); and
5) is irrelevant anyway due to the holding in Watson (discussed at page 22) that even voluntarily
products of any illegal search are inadmissible.
The situation in Nueslein v District of Columbia (1940) 115 F2d 690 is strikingly similar as illustrated in the
following side-by-side comparison:
NUESLEIN PALASCHAK
1:15 a.m. Taxicab hits a car. Police arrive, look in
taxi, find Nueslein's registration card with his
address and drive to his house. Police knock at
outer door, hear no reply. No warrant. "They either
opened the door or passed through the door already
opened, and entered the home."
5 pm Palaschak and his secretary are reported to
have used LSD - which is not a crime.
5:30-5:45 Police arrive, discuss situation for several
minutes, try the door to Palaschak's office, and
finding it unlocked, Officers Dawson and Matz enter
Palaschak's office. (Oct 31, 31:7 - 32:1). It appears
from the testimony that the officers presumed that
no knock was needed at the outer door - although
the statutes say otherwise.
"They called out the name revealed by the
registration card."
Officer Matz testified "I probably knocked 3 times.
Not 3 separate times, just 3 knocks." (Oct 31, 33:22
- 33:24) Nobody called out any name or said
anything through the door.
"They went up, knocked on, and spoke through, the
bathroom door."
Jessica Jobin asked through the door "Who's there"
whereupon Officer Matz answered "Ventura Police"
and Jessica opened the door to them. (Oct 31, 34:9
- 34:21)
3The 4th amendment in its entirety: "The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place
to be searched and the persons or things to be seized."
25
[Nueslein] said that he would be right down. After
about 15 minutes he did come down and stated that
he was driving the cab at the time of the accident.
Jessica Jobin objected saying "What's going on
here? Is there something wrong?" (Testimony of
Officer Matz, Oct 31, 1991, 35:5 - 35:8)
Defendant moved to suppress the defendant's
voluntary admission in view of the 4th amendment
violation. Denied at trial, the motion was granted on
appeal.
Palaschak moved to suppress all evidence. The
motion must be granted.
The court in Nueslein struggled with the same issue as the court in Wong Sun:
"the crossfire between the legal significant of voluntary declarations, and a completely unlawful entry
into a home."
The court concluded nonetheless:
"that the officers testimony regarding the defendant's declaration is inadmissible. Although the
4th amendment was written against the background of the general warrants in England and the
writs of assistance in the American colonies, 'The right of the people to be secure in their3 * * *
houses * * * shall not be violated, * * *' gives a protection wider than these abuses."
and adds the following footnote:
See the Brandeis and Butler dissenting opinions in Olmstead v US ... 72 L Ed 944, 66 ALR 376; Ex Parte
Jackson... 24 L Ed 877. In England, general warrants were used in proceedings for seditious libel. In the
colonies, writs of assistance were used to discover smugglers. James Otis resigned as Attorney General
of the Colony of Massachusetts in order to attack these writs. Subsequently, Virginia, on June 12, 1776,
in her Declaration of Rights stated: "X. That general warrants, whereby any officer or messenger may be
commanded to search suspected places without evidence of a fact committed, or to seize any person or
persons not named, or whose offense is not particularly described and supported by evidence, are
grievous and oppressive, and ought not to be granted." I Va. Compiled Laws, 1776-1803 (2d Ed. 1814)
page 2.
Massachusetts, where the writs of assistance had definite focus, made a broader provision in her
Constitution of 1780: " XIV. Every subject has a right to be secure from all unreasonable searches and
seizures of his person, his houses, his papers, and all his possessions. All warrants, therefore, are
contrary to this right, if the cause of foundation of them be not previously supported by oath or
affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or to
arrest one or more suspected persons, or to seize their property be not accompanied with a special
designation of the persons or objects or search, arrest, or seizure: And no warrant out to be issued but in
cases, and with the formalities, prescribed by the laws." Perpetual Laws of Mass., 1780-1789 (1789)
page 11.
The state of North Carolina in its convention called for the purpose of ratifying the Constitution,
passed a resolution recommending that the first Congress propose an amendment "That every freeman
has a right to be secure from all unreasonable searches and seizures * * *; all warrants, therefore, * *
*[general in nature] are dangerous, and ought not to be granted." IV Elliot's Debates on the Federal
Constitution (2d Ed. 1854).
See Virginia's recommendation (III Elliot 658) and New York's (I Elliot 328). In the
Massachusetts Constitution after the declaration of the right of security comes the language, "All
warrants, therefore,". The North Carolina recommendation reads in part, ";all warrants, therefore,". The
IVth Amendment provides:"The right of the people to be secure in their person, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, AND no Warrants shall issue,
but upon probably cause, supported by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized." (Emphasis supplied by Nueslein Court - or its source.)
26
The IVth amendment connects the right of security with the provision against general warrants by
[the word] "and" rather the by [the word] "therefore". This argues against the possible contention that the
right of security was declared only for the purpose of condemning general warrants. This choice of words
plus the fact that the three state resolutions and the IVth amendment as written followed the
Massachusetts Constitution, which established a right of security, rather than the Virginia Declaration of
Rights, which merely condemned general warrants, point to the conclusion that a principle was being
developed instead of a particular abuse being remedied.
Issue #5.0: PALASCHAK HAS WONG SUN STANDING REGARDING JESSICA'S LSD. Judge McNally erred
in finding (Oct 31, 32:1 - 32:12) that Palaschak did not have standing to contest the surrender of the LSD in
Jessica Jobin's purse. Judge McNally first introduced the standing question at 7:17 of the November 4, 1991
transcript as follows:
Judge McNally:
"Are you suggesting [,Prosecutor Gibbons,] then it's because the defendant [Palaschak] doesn't
have a correct standing to assert her [Jessica Jobin's] 4th amendment rights?"
Prosecutor Gibbons then says that Palaschak can contest the entry into the office but that the search of Jessica
Jobin's purse is not a violation of Palaschak's rights. Judge McNally mistakenly agrees with Prosecutor Gibbons
and Defense Counsel Pell had not been briefed on Wong Sun at that time. The court strayed from the issue of
standing for several pages and then resumed at (Nov 4 24:10) where Prosecutor Gibbons misstates the evidence
and nobody notices - and, as will be seen later - Judge McNally adopts Gibbon's misstatement as follows:
Nov 4, 1991. 24:10:
Prosecutor Gibbons:" . . . Miss Jobin's testimony [By "testimony" Gibbons is referring to Jobin's testimony
earlier that day (Nov 4, 5:23) that Jobin was coerced into surrendering the LSD by Officer Dawson who
threatened "We're going to tear this place apart if you do not give us the LSD." (Nov 4 5:23) and again
at (RT 150:15). Officer Dawson admitted threatening to "Find it anyway" (Oct 31, 56:11) which can only
mean "tear[ing] this place apart" in an illegal search - and therefore Jessica Jobin's testimony is
consistent with Dawson's admission that Dawson threatened Jobin.] does contradict that of Officers
Matz and Dawson, and so I think the court may have to make a choice there as to who it
believes."
Gibbons was wrong. Only Matz was contradicted; Dawson's testimony is not contradicted by Jobin's accusation;
Dawson's admits threatening Jobin with a search (Oct 31, 56:11). Gibbons repeated this misstatement 2 more
times, at (Nov 4 24:23-24:24) and at (Nov 4 27:18-27:20) and then presented an impertinent analogy (27:2) to
an attorney wallet left in a judge's chambers, forgetting the critical element of a search of the wallet resulting
from an illegal entry into the premises. Unfortunately, Judge McNally followed the lead and repeated
misstatements of Gibbons and (at 30:25) states:
Judge McNally (adopting the misstatement of evidence repeated by Prosecutor Gibbons): ". . . and I believe that
the officers' testimony was more reliable on the question of what was actually said between Miss Jobin
and the officer about where is the LSD."
Again at 31:4 Judge McNally refers to the testimony of the officers (plural). Judge McNally's statements are
patent proof that he did not remember Dawson's testimony because he cannot believe both officers
because the testimony of Officer Matz contradicted the admission of Officer Dawson. Officer Dawson
admitted threatening a search (Oct 31, 56:11: We'll find it anyway") and Matz did not mention a threat.
Furthermore Dawson's testimony is consistent with that of the person to whom she was talking, Jessica
4The term "expectation of privacy" was coined in Katz v US (1967) 19 L Ed 2d and is not a term
limiting the purview of the 4th amendment - as McNally mistakenly implies. Furthermore our privacy rights
are inalienable - regardless of whether we "expected" privacy. The expectation is a legal fiction - as if one
loses his privacy right by not "expecting" it. The right to privacy is real and inalienable (which means that
it exists regardless of the existence of a constitution. Therefore, an analysis of the constitution can not
impair the right.
27
Jobin who testified that Dawson threatened "We're going to tear this place apart if you do not give us
the LSD." (Nov 4 5:23) and again at (RT 150:15).
And now we return from our digression and reach Judge McNally's decision regarding standing at (Nov 4
32:1) where Judge McNally issues his decision.
JUDGE MCNALLY COMMENTS
Judge McNally: (Nov 4, 31:24 - 32:17:
"I find that the officer merely said "Okay,: words to
the effect, "where's the LSD?" Miss Jobin went and
got the LSD and handed it to the officer. I find that
that was done with consent . . ."
Of Course, Judge McNally obviously forgot or did
not hear Officer Dawson admit that she did indeed
threaten Jobin - and furthermore Judge McNally
used the wrong standard, as we shall see later, the
nightstick standard. Correction of these 2 errors
requires reversal.
". . . and that Miss Jobin's right to be free of
unreasonable seizures was not violated at that
point."
This was unlawful coercion even if it is deemed
subtle. Schneckloth v Bustamonte supra.
"If it were violated, and I do not find that it was, I
feel that it was her expectation of privacy in the
purse and not Mr. Palaschak's right of
expectation of privacy."
We know from Wong Sun and Goldstein cited
elsewhere that the test is not whose property it is,
but whether the defendant's 4th amendment (or
other) rights were violated in the effort to secure the
evidence - that evidence being the LSD secured in
violation of Palaschak's rights.
Judge McNally (Nov 4 32): "Certainly, he had a general right of privacy in the office, but if Miss Jobin
had been a client instead of a secretary, let's say, or a guest or any other type, his expectation of privacy
would not extend to the personal effects of the person in the room, and I find the same to be true of a
secretary after hours celebrating the passage of another year of life. I find that his expectation of privacy
did not extend to her purse and that he is not in a legal standing position to vicariously claim her
expectation of privacy as a ground for suppressing the LSD."
Judge McNally mistakenly focuses on the "expectation of privacy4" rather than the correct focus as enunciated in
Wong Sun at 9 L Ed 2d at 455:
"the more apt question is whether, granting establishment of the primary illegality, [which McNally did not
grant - a mistake] the evidence to which instant objection is made has been come at by exploitation of
that illegality or instead by means sufficiently distinguishable to be purged of the primary taint."
Judge McNally is wrong; Palaschak relies neither on vicarious standing nor automatic standing. The logical
fallacy of Judge McNally's analysis is that he is viewing the surrender of the LSD from Jessica's purse as though
it happened at Jessica's home or in a vacuum - unrelated to Palaschak. In reality, the surrender of the LSD by
Jessica Jobin was part and parcel of the raid at Palaschak's office. The surrender of the LSD by Jessica Jobin
was the foreseeable result and the goal of the police visit to Palaschak's office. The surrender of the LSD from
Jessica Jobin's purse was a direct result of the violation of Palaschak's right to privacy: 1st) at the front door to
5Palaschak's ownership interest in the premises is what distinguishes Palaschak's case from the
deceptively similar case of Rawlings v Kentucky (1980) 448 US 98, 65 L ED 2d 633, 100 S Ct 2556
wherein a man was denied standing to challenge the seizure of 1800 doses of LSD from the purse of a
woman who sat next to him on a sofa. 2nd distinction: There was a search warrant in Rawlings; no warrant
in Palaschak's case. 3rd distinction: police smelled marijuana which constituted probable cause for
detention for investigation of the crime of possession; police had no PC in Palaschak's case since they
perceived no LSD (nor did their informant report seeing any LSD) and use of LSD is not a crime. 4th
distinction: the detention of Palaschak was more clearly the cause of the seizure than in Rawlings because
Palaschak's performance on the field sobriety tests (grand jury transcript _) prompted the Officer Dawson
to demand "We'll tear the place apart if you do not give us the LSD"(_) or "We'll find it anyway". 5th
distinction: Rawlings was Mirandized; Palaschak and Jobin were not. It is ludicrous to hold that Palaschak
must assert an expectation of privacy in the LSD in Jessica's purse to challenge the invasion of his office
and the resulting coerced surrender of the LSD. There was MULTIPLE CAUSATION in Palaschak's case;
several 4th amendment and privacy violations each resulted in the seizure. For this court to say that the
seizure was legal because one of the several privacy violations did not directly violate Palaschak it must
completely and unequivocally overrule Wong Sun - and the 4th amendment. Rawlings is fundamentally
distinguishable from Palaschak's case.
6But let's play the game. W. Blackstone, Commentaries, Book 2, Chapter 1 holds that one of the
main rights to property is the right to exclude others. Palaschak had the right to exclude others from Jessica
Jobin's purse because Palaschak excluded others from the office (by virtue of the generally locked front
door) and particularly from the inner office by virtue of the door being closed. Palaschak did indeed have
a property interest in Jessica's purse! In US v Robinson (1980) 504 F Supp 425 the court found that a
smuggler had a right to assert standing in a suitcase that was not his because he had the key and the right
to exclude others - except for the true owner - a situation identical to Palaschak's standing with regard to
Jessica's purse. Palaschak attempted to exclude others by virtue of enclosing the purse in his own property -
behind not one but 2 sets of doors.
28
his office; 2nd) at the inner door to his office5, and 3rd) when the police determined that Jessica Jobin was not in
peril and the police no longer had any pretext for remaining in Palaschak's office. The attempt to divorce this
surrender from the invasion of Palaschak's privacy is to engage in gamesmanship6. In reality, the police were
interested in Palaschak. Proof: 1) Desk Officer Cindy Turner volunteered Palaschak's name to Melissa
Schwentner; 2) The prosecution went down the LSD supply chain (instead of up) to pursue end-user Palaschak
(by virtue of a deal with Jessica Jobin) - instead of pursuing the supplier as they usually do; 3) Officer Dawson
referred to Palaschak as the "subject" before the grand jury (_) while referring to Jobin as a "female".
The Wong Sun side-by-side analogy clearly shows, if you follow it far enough, that Palaschak has
standing to contest the LSD surrendered by Jessica Jobin - just as Blackie Toy had standing to contest the heroin
surrendered by Johnny Yee. If there is any question, a meticulous mathematical approach works. One must
carefully note that Palaschak corresponds to Blackie Toy, Jessica Jobin corresponds to Johnny Yee, and Melissa
Schwentner corresponds to Hom Way. At 9 L Ed 455, section IV of the Supreme Court decision, the court said:
"It remains only to consider Toy's unsigned statement [the corollary to Palaschak's statements to the
press]. We need not decide whether, in light of the fact that Toy was free on his own recognizance when
he made the statement, that statement was a fruit of the illegal arrest. [Citation] Since we have
concluded that his [Blackie Toy's] declarations in the bedroom [obviously, Blackie Toy's bedroom - the
corollary of Palaschak's office] and the narcotics surrendered by Yee should have been admitted in
evidence against him, [him being Blackie Toy obviously - Palaschak's corollary] the only proofs
29
remaining to sustain his conviction are his [Blackie Toy's - because Johnny Yee made no unsigned
statement] and Wong Sun's unsigned statements.
At 9 L Ed 2d 458 the court gives its reason regarding standing of Blackie Toy (Palaschak's corollary) to object
to the narcotics (analogous to the LSD) surrendered by Johnny Yee (Jessica Jobin's corollary):
"We must then consider the admissibility of the narcotics surrendered by Yee. Our holding, supra, that
this ounce of heroin [analogous to the LSD] was inadmissible against Toy [Blackie Toy - Palaschak's
corollary in this analogy] does not compel a like result with respect to Wong Sun. The exclusion of the
narcotics as to [Blackie] Toy was required solely by their tainted relationship to information
unlawfully obtained from [Blackie] Toy, and not by any official impropriety connected with their
surrender by Yee. The seizure of this heroin invaded no right of privacy of person or premises
which would entitle Wong Sun to object to its use at his trial. Cf. Goldstein v US 316 US 114, 86 L
Ed 1312, 62 S Ct 1000 .
Goldstein explains the simple logic - if your rights are violated in obtaining the evidence, then you have standing.
Issue #6.0: Consent. __ cannot give consent. Palaschak and Jessica were under the influence of LSD -
both a truth serum and a empathogen - a drug that makes you friendly and cooperative. Authority:
Gilliland v Commonwealth (1928) 224 Ky 453, 6 SW 467 holds that a mentally incompetent person cannot
validly consent to a search. Jessica could not validly consent because by virtue of her chemically-induced
hypersuggestibility she was temporarily mentally incompetent to give consent as a matter of law - and so was
Palaschak. Palaschak was unable to render and knowing and willing consent to permit the officers to enter the
private office. See ALR4th 25:419 Validity of confessions and admissions made under the influence of
drugs or alcohol - sections 7b, 9b, and 9e cite LSD cases. In State v Gordon (1978 Maine) 387 A2 611 the
defendant consumed LSD 8 hours before arrest but the confession was deemed unimpaired because he
displayed no problems. By comparison the testimony before the grand jury was that:
(CT 252:24) Officer Matz: "Well, we had entered the office and Mr. Palaschak was sitting on the
couch and, ah, really made no recognition of us being there, sitting on the couch kind of staring
at the wall. He really didn't know of our presence and I asked him who he was and he didn't
respond at all." (CT 252:24)
A person who "didn't know of our presence" does not have the mental capacity to make an informed consent,
admission, or confession - and the fruits of that confession must be suppressed. The fruits in this case are the
confrontation with Jessica by Officer Dawson and the resulting surrendered LSD. Furthermore, Jessica's
judgment was impaired and therefore the LSD must be suppressed on independent grounds.
Issue #6.1: Accomplice Jessica's LSD ingestion precludes her ability to waive another’s 4th amendment
right. Jessica Jobin had neither the authority nor mental capacity to waive Palaschak's 4th amendment rights by
permitting the officers to enter the private office. See ALR Fed 49:511 Admissibility of Evidence discovered
in a Warrantless Search of Premises with Consent of Someone other that the accused. See also Proof of
Facts 2d 18:681 Third Party Lack of Authority to Consent to Search.
Evidence must be suppressed because police abused the hypersuggestibility, the voluntary legal chemically
enhanced vulnerability, of Palaschak and Jobin to induce a purported consent to enter and to induce Jessica
Jobin to surrender the LSD.
"Persons who take [LSD] may become hypersuggestible, emotionally labile (unstable) and
30
unusually aware of their own reactions, and those of others [i.e. more empathetic]." Encyclopedia
Brittanica, 1974 9:247.
By intruding into a time and space where defendants had an expectation of privacy for the purpose of
experiencing a voluntariness enhancer, the police unconstitutionally violated the vulnerability of defendants and
therefore the product of this violation of their chemically-induced vulnerability must be suppressed despite the
voluntariness of the vulnerability because the chemical enhancement was not a crime and was done with the
expectation of privacy and could not be proven absent the abuse of this vulnerability in conjunction with the
intrusion beyond the bounds justified by the minimal exigency of the pretextual concern for Jessica Jobin's
protection from sexual assault.
See ALR4th 25:419 Sufficiency of showing that voluntariness of confession or admission was impaired
by alcohol or other drugs. See also Proof of Facts 2d 22:539 Involuntariness of Confession Induced by
Psychological Coercion - discussing the totality of the voluntariness.
Issue #6.2: Presumed Legal Inalidity to consent to search by one in custody. Jessica Jobin was, by virtue of
being in custody, legally unable to validly consent to revealing the location of her LSD. See the cases cited in
ALR3D 9:858 Validity of consent to search given by one in custody of officers. See especially section 15 dealing
with searches of purses and desks. In the following cases (in the pocket update) the consent to search was
deemed invalid because the consenter was in custody:
There is a wealth of supporting case law:
Commonwealth v Harmond (1979) 376 Mass 557, 382 NE2d 203 (drinks),
Ivins v State 129 GA App, 201 SE2d 683 (no alternative but to comply),
Kelly v State 305 A2d 195 (conflicting testimony),
US v Tillman 963 F2d 137 (not free to leave),
Commonwealth v Daniels 599 A2d 988,
State v Hageman (1982) 650 P2d 175,
People v Somas 327 NYEd 779.
Several of these cases have factual situations very similar to Palaschak's situation. In Harmon the consent was
deemed fatally impaired by the alcohol that the consenter had consumed. In particular, because the
consenter was in custody and because his ability to effectively determine whether or not to consent was
impaired by alcohol, the consent was deemed invalid - and this is consistent with the holding in Bumper
above which holds that the prosecution has the burden of proving that the consent was in fact freely
and voluntarily given - as compared to being given in exchange for not tearing up the office with a
search - which was the coercion exerted by Officer Dawson upon Jessica Jobin. ("We're going to tear this
place apart if you do not give us the LSD" (Nov 4 5:23) and (RT 150:15).)In Ivins...In Kelly ...In Tillman... We
could go on here.
Issue #7.0: INTRUSION OF POLICE THROUGH THE OUTER OFFICE DOOR. Intrusion by the police through
the outer office door was not legally justifiable under Nueslein (discussed at page 24) or even by Terry standards
31
- despite the majoritarian appeal of rescuing a victim in peril.
"Simple good faith on the part of the arresting officer is not enough . . .[I]n justifying the particular
intrusion [here at the front door to Palaschak's office] the police officer must be able to point to
specific and articulable facts which, taken together with rational inferences from those facts,
reasonably warrant his suspicion." - Terry v Ohio 392 US at 21-22, 20 L Ed 2d 889 at 905, 88 S
Ct 1868.
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