Update and Sonderstand Comment
I'm afraid I have fallen behind in my case reviews. I will be giving a seminar here in Albuquerque in early December on police liability issues. Last year, that seminar was a good occasion for me to catch up on new cases. So, I anticipate I will be doing the same this year in October and November. I love this area of the law and I want this site to become a resource for the bar and public to keep up to date on the fourth amendment.
As we blogged previously, Ms. Oliver and I received a nice result from a jury for our client in July. We also tried a wrongful arrest case in late August that resulted in a plaintiff's verdict. The issue was one of first amendment retaliation. The trial judge in the Sanchez case recently denied the defendant's post-trial motions, including a request for remittitur. That opinion is available on the court's website.
Ms. Doris Al-Harake and her sister gave me a spirited response to my blog on the Sonderstand case. You can read Ms. Al-Harake's comment on the July 6, 2005 blog. When I read Ms. Al-Harake's e-mail, my initial reaction was relief that I am not the only person who has read a Tenth Circuit opinion, in which I was personally involved, and thought - "huh, Where did they get these facts?" Ms. Al-Harake was the "clerical employee" I referred to in the blog. The Tenth Circuit refers to her by name in the opinion.
Let me first say to Ms. Al-Harake that I find your actions and curiosity on the whole safe issue perfectly understandable. I am a bit of a snoop myself. My objection was to the court's conclusion on the fourth amendment issue. My objection was the court's finding that you were a "private citizen". I believed that your status as a public employee should have resulted in a different analysis of your activities.
As to your specific corrections, I can only say that I was relying on the facts as the Tenth Circuit recited the facts. The Court states you viewed the CD on your office computer. I am sorry the Court got that fact wrong. No doubt your family and your peers should be proud that you exposed the storage of child pornography at a public university. I don't doubt that you operated in good faith as a concerned employee and citizen, but I differ with the Court as to whether the evidence you discovered should have been used in a criminal prosecution.
In Albin v. Bakas, First Judicial District Court Judge James Hall granted summary judgment to the State of New Mexico finding that the federal forfeiture act pre-empted our state law. We have appealed and have filed a docketing statement.
Again, I hope to resume case reviews shortly. I also look forward to more feedback on specific cases as well as the blog site.
Hi and thanks for your reply. Since I am not law literate it is difficult for me to understand the errors in the appeal! You make mention of factual errors that have taken place in previous tenth circuit situations. I can now assume that miscontrued facts have no merit in the outcome of an appeal?
As for the issue of me being a government employee during the search, maybe a clarification of my right to privacy should be admitted. I was a staff employee for the university M-F, 8am-5pm. The actual finding of the safe was during my free time and during a government holiday, July 4th. I was not receiving any monetary compensation. However, Faculty and Administrative staff are considered full-time, anytime. They are not required to inform their bosses of their whereabouts or location during the working day, as is the OSU Staff employees. My question is to you again, Do you believe that a government employee Administrative, Faculty, Staff or Part-time is always under the control of their Employee? I would think if I am a staff member with hardly any rights available to me on Campus, that to be owned by the University full-time would be against my civil rights?