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Old 24 January 2019, 08:50 PM
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Default Arizona Police Arrest Nurse Suspected Of Impregnating Incapacitated Woman

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Police in Phoenix say they have arrested a man suspected of assaulting and impregnating an incapacitated woman who gave birth at a long-term care facility.
Nathan Sutherland, 36, a licensed practical nurse has been charged with one count of sexual assault and one count of vulnerable adult abuse, according to officials who made the announcement at a news conference Wednesday.
https://www.npr.org/2019/01/23/68769...acitated-woman

I have no words for just how sick this is.
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  #2  
Old 24 January 2019, 09:49 PM
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This is a polarizing case for me. On the one hand, I'm very glad that they have a lead on the kind of twisted person that could do this. On the other hand, I'm very concerned that probable cause for a search warrant in this case seems to be "anyone that might have committed the crime".

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Earlier this month, the police obtained a search warrant to collect DNA samples from all the male employees of the facility.
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  #3  
Old 24 January 2019, 10:16 PM
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Alternatively, "everyone who had unfettered access to the victim and was capable of impregnating her."
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Old 24 January 2019, 11:15 PM
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Which is still the same thing, no specific evidence that a specific person committed the crime, simply that a group of people had the means and opportunity. This site says 6.4 nurses and aides per patient is average for a nursing home and the Hacienda facility has 74 beds (pdf), making average staffing there 12 people. Note that that is average staffing at any one point in time, which means around 45 people would be needed to staff the facility 24/7. Assuming that 1/5 are men, that's 11 men that qualify. When at best your can only find evidence for one 1 men out of 11 or so, you don't have "probable cause", you have a fishing expedition.
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Old 24 January 2019, 11:39 PM
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It's an interesting issue. It is not very debateable that a crime was committed. It seems very highly probable that the person responsible will be among the people covered by the warrant. So it's not like collecting random DNA samples to see if they match any open cases. But, depending on how many male nurses there are, it might not be very likely that any one of the people covered did it.

I will note that search warrants are not arrest warrants. There might not be any evidence that the person it covers has committed a crime.

E.g. If someone stashed loot in your house, unbeknownst to you, a warrant could be issued to search your house if there was probable cause to believe the loot (evidence) would be found there. Even if there is no reason at all to believe that you or anyone who lives in your house, committed a crime. It isn't the same thing, but it illustrates the point.

Last edited by erwins; 24 January 2019 at 11:57 PM.
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Old 25 January 2019, 12:01 AM
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For those of us who know about law from our extensive reading of mysteries and watching TV, thanks for the explanation.
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  #7  
Old 25 January 2019, 05:21 AM
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erwins, would there (in your non-binding opinion obviously) be evidence to search 10 residences? For example, someone was fleeing with a shotgun used in a shooting. The suspect is seen on video with the shotgun running into an apartment building with 10 apartments. He was caught before he could leave the building but without the shotgun. Based on that, do you think the police could get warrents to search all 10 apartments?

ETA: My analogy is a bit flawed because there have been rulings that the 4th only applies to a suspect, not an uninvolved third party. So I'll add that the police know he lives in one of the apartments, but not which one so they'd have to search all of them.

Last edited by GenYus234; 25 January 2019 at 05:33 AM.
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  #8  
Old 25 January 2019, 06:23 AM
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Maryland v. Pringle (2003) 540 U.S. 366 seems relevant. Police stopped a car with 3 men inside, found drugs which none of them admitted to owning, and so arrested all 3. Later one of them confessed. He unsuccessfully moved to suppress his confession as the fruit of an illegal arrest. The Supreme Court noted it was uncontested that the officer, upon finding the drugs, had probable cause to believe a felony had been committed; the question was whether the officer had probable cause to believe this particular individual committed the crime, as probable cause requires belief of guilt particularized with respect to the person to be searched or seized. Here, they found it an entirely reasonable inference that all 3 men in the car had knowledge of and exercised dominion over the drugs. Which is unsurprising, and very, very different from dozens of co-workers (who I believe are all mandated reporters?) in a facility where one of them is raping a patient. This will be an interesting case to watch.
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Old 25 January 2019, 01:53 PM
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Esprise Me, I haven't read that case -- in my state the state onstitution is generally more protective, so most cases don't focus on federal law. I'll take a look at it.

Do you think police would be unable to get a warrant for a sample of the baby's DNA if the family had tried to block it? There would be PC to believe a crime had been committed, and PC to believe that evidence of the crime would be found. Do you think the search warrant could not be issued because there would be no evidence that the baby was guilty of a crime? Or does that only come into play when the issue is the legality of an arrest?
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  #10  
Old 25 January 2019, 02:31 PM
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I missed the edit window.

GenYus, I think the touchstone is reasonableness. I would think that the police could narrow it down by the time they were seeking a warrant, or if not, could show what steps they had taken to try to do so. I don't know if it would be reasonable to search 10 apartments under those circumstances. It seems unlikely.

I'm wondering whether the potential need for rule-out samples can play a part with DNA collection. It might depend on what exactly "evidence of a crime" means. Is it any evidence that would tend to prove that a crime occurred and/or that a particular person did it (which would include rule-out samples), or is it more restricted to, I guess, positive evidence of a crime or that a particular person did it. (Or, perhaps most likely, does it just have to be reasonable under the particular circumstances?)

Keep in mind, too, that there is a presumption that a *warrantless* search is unreasonable, but that gets turned around when the police have gotten approval in advance from a neutral magistrate via the warrant process.
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  #11  
Old 25 January 2019, 03:09 PM
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That's a good question. I vaguely remembered Maryland v. Pringle from crim pro and found it in my old textbook; I'll see if I have anything else pertinent. One thing that does come to mind is that, once the warrant was issued and executed over the family's objection, who would have standing to take it up? The family and baby aren't being accused of anything, so the exclusionary rule doesn't apply. There are some cases about a suspect stashing contraband in someone else's property not having a reasonable expectation of privacy, so the perp wouldn't get it either. If there was a violation, what's the remedy?
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  #12  
Old 25 January 2019, 03:51 PM
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For my hypo, let's say that the victim/mother's male relative was appointed as the guardian of both the victim and the baby. He had declined to consent to DNA collection from either of them, so a warrant was issued. The warrant led to discovery of evidence that he was the perpetrator.

I'm still not sure he would have standing, but let's assume he would. Would he be able to establish that the warrant was not authorized, and the evidence should be suppressed, because there was no PC that baby or mother had committed a crime.

Or in a case of a search of a third party's home pursuant to a warrant, based on PC that suspect stashed something there, evidence of the third party's own crime is also discovered.
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  #13  
Old 25 January 2019, 04:24 PM
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Zurcher v. Stanford Daily, 436 US 547, 555 (1978) has this to say:

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Search warrants are not directed at persons; they authorize the search of "place[s]" and the seizure of "things," and as a constitutional matter they need not even name the person from whom the things will be seized. United States v. Kahn, 415 U.S. 143, 155 n. 15 (1974).

Because the State's interest in enforcing the criminal law and recovering evidence is the same whether the third party is culpable or not, the premise of the District Court's holding appears to be that state entitlement to a search warrant depends on the culpability of the owner or possessor of the place to be searched and on the State's right to arrest him. The cases are to the contrary.
Collecting a buccal DNA sample is a search, so a warrant or an exception to the warrant requirement is needed. I think the question will be whether, if the perpetrator is discovered, he can prevail in an argument that the warrant authorized an overly broad search, or if separate warrants were issued, that there could not be PC to issue the warrant to search him because he was only one of N-number of male employees, so there was only a one-in-N chance that there would be evidence of a crime found on any one of them.
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Old 26 January 2019, 12:43 AM
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Quote:
Originally Posted by erwins View Post
Collecting a buccal DNA sample is a search, so a warrant or an exception to the warrant requirement is needed. I think the question will be whether, if the perpetrator is discovered, he can prevail in an argument that the warrant authorized an overly broad search, or if separate warrants were issued, that there could not be PC to issue the warrant to search him because he was only one of N-number of male employees, so there was only a one-in-N chance that there would be evidence of a crime found on any one of them.
This is kind of a tangent, since the article indicated that the search warrant was for collecting DNA samples from all of the male employees, but I presume the police can ask potential suspects if they would voluntarily consent to the DNA testing, right?

If there are N male employees in the facility who would have had access to the patient, and presumably N-1 of those employees know the baby can't be theirs because they didn't rape the patient (at least we hope! ), then hypothetically some fraction of the innocent might be perfectly willing to be tested knowing it will exonerate them, narrowing the suspect pool as the DNA test clears them. Then it would really get interesting--on the one hand, the more employees are voluntarily tested and clear themselves of suspicion, the higher the odds that a search warrant on any of the remaining employees will provide evidence of the crime. On the other hand, taking those increased odds as reason to grant a warrant to test all of the non-consenting employees would be awfully close to treating the non-consent to the search, i.e., exercising their rights, as evidence of a crime in itself*.

I guess the question would be at what point the odds become high enough to be considered justification? If there are N people that appear to be the only ones with the opportunity to commit the crime, and N-1 are cleared through voluntary DNA test, then there certainly seems to be probable cause to believe the last remaining employee is the perpetrator. If only N-100 consent to searches, not so much.

*I assume non-consent to a search can't legally be used as evidence of probable cause to justify said search, or it would hugely erode the protection against unreasonable searches, but I don't actually know where that's codified if it's the case...
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  #15  
Old 26 January 2019, 01:06 AM
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Quote:
Originally Posted by Onyx_TKD View Post
If there are N male employees in the facility who would have had access to the patient, and presumably N-1 of those employees know the baby can't be theirs because they didn't rape the patient (at least we hope! ), then hypothetically some fraction of the innocent might be perfectly willing to be tested knowing it will exonerate them, narrowing the suspect pool as the DNA test clears them. Then it would really get interesting--on the one hand, the more employees are voluntarily tested and clear themselves of suspicion, the higher the odds that a search warrant on any of the remaining employees will provide evidence of the crime. On the other hand, taking those increased odds as reason to grant a warrant to test all of the non-consenting employees would be awfully close to treating the non-consent to the search, i.e., exercising their rights, as evidence of a crime in itself*.

*I assume non-consent to a search can't legally be used as evidence of probable cause to justify said search, or it would hugely erode the protection against unreasonable searches, but I don't actually know where that's codified if it's the case...
At the very least it makes the legal right to refuse to voluntarily allow searches pointless.
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  #16  
Old 26 January 2019, 02:49 PM
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If the other male employees voluntarily gave DNA and were cleared and there were just a few remaining who wouldn't cooperate, wouldn't there be cause to believe that, because they had access to the victim, they could have perpetrated the crime and a warrant could be issued? They are not completely unconnected individuals, they were providing care in the facility at the time of the presumed rape and therefore had opportunity to commit the crime. Is that not sufficient to get a warrant for their DNA?
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Old 26 January 2019, 09:53 PM
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I don't know. But honestly I'd rather hope that stronger probable cause than "these people wouldn't voluntarily cooperate when everyone else did" is required for such a warrant.
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  #18  
Old 26 January 2019, 10:13 PM
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I don't actually see how they could be certain (before the DNA confirmation) that the rapist was a nurse. If they didn't notice that the woman was pregnant, can they guarantee they'd have noticed another client in her room, or a visitor (including a person supposed to be visiting someone else), or some staff member other than a nurse?
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Old 27 January 2019, 04:05 PM
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They couldn't be certain, but wouldn't a nurse be the most likely suspect? Wouldn't it make sense to rule out the most likely suspects first? I guess probable cause is somewhat circular in logic- they had the most opportunity, along with other staff, and they won't cooperate so we need a warrant to rule them in or out? I don't know enough legalese to know if that holds up. What other tools would they have to find the perpetrator besides staffing and visitor logs for the 9 months before the delivery?
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Old 27 January 2019, 05:53 PM
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I don't think the PC for the warrant would have anything to do with whether or not they cooperated, unless it mentioned that fact, which it should not. The information would be, these are the reasons they think it is likely a nurse, here are the nurses who have been eliminated already via DNA rule-out, and this is the list of those that are left. They are seeking a warrant for that list.

There are more ways to eliminate people via DNA than just by voluntary submission of a DNA sample by the suspect, so that information says nothing about who cooperated or didn't. There is no penalty for not cooperating.
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