by
Mark D. Hosken, Supervisory Assistant Federal Public Defender
The United States Sentencing Guidelines (USSG) include enhanced punishment for those individuals convicted of a child pornography offense involving distribution. The greatest enhancement (an increase of five levels) is applied if the offense involved distribution for receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain. [USSG § 2G2.2(b)(3)(B).]
What is distribution? Any act, including possession with intent to distribute...., related to the transfer of material involving the sexual exploitation of a minor. Accordingly, distribution includes posting material involving the sexual exploitation of a minor on a website for pubic viewing. [USSG § 2G2.2 comment, note 1.]
What is receipt for a thing of value? Any transaction, including bartering or other in-kind transaction, that is conducted for a thing of value, but not for profit. Thing of value means anything of valuable consideration. [USSG § 2G2.2 comment, note 1.]
Frequently, sentencing courts apply the five level enhancement to those individuals utilizing peer-to-peer file sharing programs such as LimeWire, FrostWire, Kazaa, or Shareaza to download contraband images. Those courts reason once an individual installs a file sharing program it is configured to allow others to download the defendant’s collection of child pornography stored in a shared folder. The shared folder is a repository for the illegal images which others access and download. The conclusion being the defendant distributed child pornography with the expectation he would receive a thing of value – additional child pornography – from other peers.
This enhancement is applied in those situations when the defendant admits use of a file sharing program. Rarely is the government required to prove the defendant was proficient or knowledgeable in the settings found in the installation of the peer to peer program. Nor, is the government required to establish transfer of something of value other than the mere existence of the file sharing application. The discovery of the program with a shared folder is usually sufficient for the five level enhancement.
Recently, a panel of the Eleventh Circuit struck down the application of the five level enhancement finding the record did not support the conclusion that the defendant distributed child pornography for receipt, or expectation of receipt of a thing of value.
In United States v. Spriggs, ____ F.3d ____, 2012 WL 48016 (11th Cir., January 10, 2012), the defendant was convicted of receiving child pornography. Spriggs downloaded the images through a file sharing program, Shareaza. This peer to peer program provided for reciprocal sharing. Others could access and download files from Spriggs’ shared folder. The majority of Spriggs’ collection of contraband images was located in this shared folder. The record supported a finding that Spriggs knew Shareaza enabled others to access files on his computer. Similarly, Spriggs admitted he used the program to download and upload files.
The panel determined the expectation of receiving a thing of value must be contextual. The use of a file sharing program enables free access to files. The files are free. There is no sharing for valuable consideration as required under the Guidelines. Without proof that Spriggs and another user specifically agreed to share their files on a return promise to share files, there was no transaction conducted for valuable consideration.
Notwithstanding Spriggs’ plea to receiving child pornography and his use of a peer to peer file sharing program, the majority of the contraband images found in the shared folder, and his use of the program to download and upload files, there was insufficient evidence to support the five level enhancement for receipt, or expectation of receipt, of a thing of value.
The significance of this decision is the rejection of the enhancement for simply using a peer to peer file sharing program. Some sentencing courts previously considered the use of a file sharing program constituted bartering for something of value-more contraband images. Here, the panel in Spriggs specifically rejected that application. Moreover, the additional facts present in Spriggs (admissions of the use of shared folders and the distribution and receipt of contraband images) were not indicia of proof of sharing for valuable consideration. Simply put, the Guidelines’ enhancement requires something more.
Wednesday, January 25, 2012
The Use of a Peer-to-Peer File Sharing Program and Enhancement Under the Federal Sentence Guidelines
by
Mark D. Hosken, Supervisory Assistant Federal Public Defender
The United States Sentencing Guidelines (USSG) include enhanced punishment for those individuals convicted of a child pornography offense involving distribution. The greatest enhancement (an increase of five levels) is applied if the offense involved distribution for receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain. [USSG § 2G2.2(b)(3)(B).]
What is distribution? Any act, including possession with intent to distribute...., related to the transfer of material involving the sexual exploitation of a minor. Accordingly, distribution includes posting material involving the sexual exploitation of a minor on a website for pubic viewing. [USSG § 2G2.2 comment, note 1.]
What is receipt for a thing of value? Any transaction, including bartering or other in-kind transaction, that is conducted for a thing of value, but not for profit. Thing of value means anything of valuable consideration. [USSG § 2G2.2 comment, note 1.]
Frequently, sentencing courts apply the five level enhancement to those individuals utilizing peer-to-peer file sharing programs such as LimeWire, FrostWire, Kazaa, or Shareaza to download contraband images. Those courts reason once an individual installs a file sharing program it is configured to allow others to download the defendant’s collection of child pornography stored in a shared folder. The shared folder is a repository for the illegal images which others access and download. The conclusion being the defendant distributed child pornography with the expectation he would receive a thing of value – additional child pornography – from other peers.
This enhancement is applied in those situations when the defendant admits use of a file sharing program. Rarely is the government required to prove the defendant was proficient or knowledgeable in the settings found in the installation of the peer to peer program. Nor, is the government required to establish transfer of something of value other than the mere existence of the file sharing application. The discovery of the program with a shared folder is usually sufficient for the five level enhancement.
Recently, a panel of the Eleventh Circuit struck down the application of the five level enhancement finding the record did not support the conclusion that the defendant distributed child pornography for receipt, or expectation of receipt of a thing of value.
In United States v. Spriggs, ____ F.3d ____, 2012 WL 48016 (11th Cir., January 10, 2012), the defendant was convicted of receiving child pornography. Spriggs downloaded the images through a file sharing program, Shareaza. This peer to peer program provided for reciprocal sharing. Others could access and download files from Spriggs’ shared folder. The majority of Spriggs’ collection of contraband images was located in this shared folder. The record supported a finding that Spriggs knew Shareaza enabled others to access files on his computer. Similarly, Spriggs admitted he used the program to download and upload files.
The panel determined the expectation of receiving a thing of value must be contextual. The use of a file sharing program enables free access to files. The files are free. There is no sharing for valuable consideration as required under the Guidelines. Without proof that Spriggs and another user specifically agreed to share their files on a return promise to share files, there was no transaction conducted for valuable consideration.
Notwithstanding Spriggs’ plea to receiving child pornography and his use of a peer to peer file sharing program, the majority of the contraband images found in the shared folder, and his use of the program to download and upload files, there was insufficient evidence to support the five level enhancement for receipt, or expectation of receipt, of a thing of value.
The significance of this decision is the rejection of the enhancement for simply using a peer to peer file sharing program. Some sentencing courts previously considered the use of a file sharing program constituted bartering for something of value-more contraband images. Here, the panel in Spriggs specifically rejected that application. Moreover, the additional facts present in Spriggs (admissions of the use of shared folders and the distribution and receipt of contraband images) were not indicia of proof of sharing for valuable consideration. Simply put, the Guidelines’ enhancement requires something more.
Mark D. Hosken, Supervisory Assistant Federal Public Defender
The United States Sentencing Guidelines (USSG) include enhanced punishment for those individuals convicted of a child pornography offense involving distribution. The greatest enhancement (an increase of five levels) is applied if the offense involved distribution for receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain. [USSG § 2G2.2(b)(3)(B).]
What is distribution? Any act, including possession with intent to distribute...., related to the transfer of material involving the sexual exploitation of a minor. Accordingly, distribution includes posting material involving the sexual exploitation of a minor on a website for pubic viewing. [USSG § 2G2.2 comment, note 1.]
What is receipt for a thing of value? Any transaction, including bartering or other in-kind transaction, that is conducted for a thing of value, but not for profit. Thing of value means anything of valuable consideration. [USSG § 2G2.2 comment, note 1.]
Frequently, sentencing courts apply the five level enhancement to those individuals utilizing peer-to-peer file sharing programs such as LimeWire, FrostWire, Kazaa, or Shareaza to download contraband images. Those courts reason once an individual installs a file sharing program it is configured to allow others to download the defendant’s collection of child pornography stored in a shared folder. The shared folder is a repository for the illegal images which others access and download. The conclusion being the defendant distributed child pornography with the expectation he would receive a thing of value – additional child pornography – from other peers.
This enhancement is applied in those situations when the defendant admits use of a file sharing program. Rarely is the government required to prove the defendant was proficient or knowledgeable in the settings found in the installation of the peer to peer program. Nor, is the government required to establish transfer of something of value other than the mere existence of the file sharing application. The discovery of the program with a shared folder is usually sufficient for the five level enhancement.
Recently, a panel of the Eleventh Circuit struck down the application of the five level enhancement finding the record did not support the conclusion that the defendant distributed child pornography for receipt, or expectation of receipt of a thing of value.
In United States v. Spriggs, ____ F.3d ____, 2012 WL 48016 (11th Cir., January 10, 2012), the defendant was convicted of receiving child pornography. Spriggs downloaded the images through a file sharing program, Shareaza. This peer to peer program provided for reciprocal sharing. Others could access and download files from Spriggs’ shared folder. The majority of Spriggs’ collection of contraband images was located in this shared folder. The record supported a finding that Spriggs knew Shareaza enabled others to access files on his computer. Similarly, Spriggs admitted he used the program to download and upload files.
The panel determined the expectation of receiving a thing of value must be contextual. The use of a file sharing program enables free access to files. The files are free. There is no sharing for valuable consideration as required under the Guidelines. Without proof that Spriggs and another user specifically agreed to share their files on a return promise to share files, there was no transaction conducted for valuable consideration.
Notwithstanding Spriggs’ plea to receiving child pornography and his use of a peer to peer file sharing program, the majority of the contraband images found in the shared folder, and his use of the program to download and upload files, there was insufficient evidence to support the five level enhancement for receipt, or expectation of receipt, of a thing of value.
The significance of this decision is the rejection of the enhancement for simply using a peer to peer file sharing program. Some sentencing courts previously considered the use of a file sharing program constituted bartering for something of value-more contraband images. Here, the panel in Spriggs specifically rejected that application. Moreover, the additional facts present in Spriggs (admissions of the use of shared folders and the distribution and receipt of contraband images) were not indicia of proof of sharing for valuable consideration. Simply put, the Guidelines’ enhancement requires something more.
Tuesday, January 3, 2012
Do you think it might be wrong to have on the jury someone who has heard of the defendant and 'knows' he's a bad guy? Turns out, you're probably right.
The rule on whether a person can be fair and impartial is different if the prejudice we are worried about is about the defendant rather than the crime. There are different forms of pre-judgement which are attractive to potential jurors. If someone thinks a defendant must testify on his own behalf, for example, they might be able to be fair and impartial if we tell them they are wrong. In any event, we're going to have to take their word for it if they say they can set that view aside. Likewise, if the juror has heard specific claims regarding the proof of the crime in question, well, the whole trial is about the proof being brought before the jury, and if a juror says they can ignore other rumored evidence, we're probably going to have to take their word for it, at least in terms of challenges for cause, if they say that can forget about what they heard. However, what if a potential juror has heard about the defendant's general character or reputation? This is not something which will be countered at trial. For the most part it probably won't come up.
In other words, a prospective juror who has heard negative things about the defendant which are outside of the normal proof which we can expect to see at trial presents a special problem. It's not a matter of informing the juror that they are wrong about the law, and asking whether they can accept the law as explained by the court. It's not a matter of the juror expecting certain proof at trial, which we can ask them to set aside. It's a question of negative facts about the defendant which in all likelihood will not be answered or even talked about at trial. These concerns require a more exacting expurgatory oath than is typically required. In a case won by Mary Davison at the Third Department, that court said:
"Moreover, when the prospective juror's bias is based not upon a preexisting opinion as to the defendant's guilt of the crimes charged, but upon the defendant's over-all reputation or prior bad acts, "the evidence at trial might not address the basis of the juror's impression and thus may not alter this impression" (People v Torpey, 63 NY2d 361, 368 [1984]; accord People v Johnson, 94 NY2d 600, 614 [2000]). Under such circumstances, "'the test for whether [the juror's] bias has been overcome by declarations is even stricter than where the juror has expressed an opinion as to the defendant's guilt . . . [T]he prospective juror should be dismissed if there appears to be any possibility that his [or her] impressions . . . might influence [the] verdict'" (People vJohnson, 94 NY2d at 614, quoting People v Torpey, 63 NY2d at 368)."
(People v Wlasiuk,#102275 decided December 29, 2011).
Now, such issues might seem fairly uncommon, but when a potential juror indicates that he has heard of the crime through media coverage, it is worth the time to inquire whether that potential juror has also heard of related background information on the defendant. It is not uncommon for news coverage to review previous crimes the defendant got away with while building up the presumption of guilt as to the current one. If the relevant press coverage of a crime includes, say A) the defendant confessed; B) the defendant's DNA was found at the scene; C) the defendant is known for beating up his ex-girlfriends, it might well be C which presents the most promising avenue for voir dire.
You don't have to be a famous mobster to qualify.
NOTE - The court also noted that a for-cause challenge is possible even after a juror has been sworn: "Once a juror has been sworn, peremptory challenges are no longer available; a challenge for cause is permissible, but only before the first witness is sworn at trial and only "upon a ground not known to the challenging party" before the juror was sworn (CPL 270.15 [4]; see People v Harris, 57 NY2d 335, 349-350 [1982], cert denied 460 US 1047 [1983])."
The rule on whether a person can be fair and impartial is different if the prejudice we are worried about is about the defendant rather than the crime. There are different forms of pre-judgement which are attractive to potential jurors. If someone thinks a defendant must testify on his own behalf, for example, they might be able to be fair and impartial if we tell them they are wrong. In any event, we're going to have to take their word for it if they say they can set that view aside. Likewise, if the juror has heard specific claims regarding the proof of the crime in question, well, the whole trial is about the proof being brought before the jury, and if a juror says they can ignore other rumored evidence, we're probably going to have to take their word for it, at least in terms of challenges for cause, if they say that can forget about what they heard. However, what if a potential juror has heard about the defendant's general character or reputation? This is not something which will be countered at trial. For the most part it probably won't come up.
In other words, a prospective juror who has heard negative things about the defendant which are outside of the normal proof which we can expect to see at trial presents a special problem. It's not a matter of informing the juror that they are wrong about the law, and asking whether they can accept the law as explained by the court. It's not a matter of the juror expecting certain proof at trial, which we can ask them to set aside. It's a question of negative facts about the defendant which in all likelihood will not be answered or even talked about at trial. These concerns require a more exacting expurgatory oath than is typically required. In a case won by Mary Davison at the Third Department, that court said:
"Moreover, when the prospective juror's bias is based not upon a preexisting opinion as to the defendant's guilt of the crimes charged, but upon the defendant's over-all reputation or prior bad acts, "the evidence at trial might not address the basis of the juror's impression and thus may not alter this impression" (People v Torpey, 63 NY2d 361, 368 [1984]; accord People v Johnson, 94 NY2d 600, 614 [2000]). Under such circumstances, "'the test for whether [the juror's] bias has been overcome by declarations is even stricter than where the juror has expressed an opinion as to the defendant's guilt . . . [T]he prospective juror should be dismissed if there appears to be any possibility that his [or her] impressions . . . might influence [the] verdict'" (People vJohnson, 94 NY2d at 614, quoting People v Torpey, 63 NY2d at 368)."
(People v Wlasiuk,#102275 decided December 29, 2011).
Now, such issues might seem fairly uncommon, but when a potential juror indicates that he has heard of the crime through media coverage, it is worth the time to inquire whether that potential juror has also heard of related background information on the defendant. It is not uncommon for news coverage to review previous crimes the defendant got away with while building up the presumption of guilt as to the current one. If the relevant press coverage of a crime includes, say A) the defendant confessed; B) the defendant's DNA was found at the scene; C) the defendant is known for beating up his ex-girlfriends, it might well be C which presents the most promising avenue for voir dire.
You don't have to be a famous mobster to qualify.
NOTE - The court also noted that a for-cause challenge is possible even after a juror has been sworn: "Once a juror has been sworn, peremptory challenges are no longer available; a challenge for cause is permissible, but only before the first witness is sworn at trial and only "upon a ground not known to the challenging party" before the juror was sworn (CPL 270.15 [4]; see People v Harris, 57 NY2d 335, 349-350 [1982], cert denied 460 US 1047 [1983])."
Do you think it might be wrong to have on the jury someone who has heard of the defendant and 'knows' he's a bad guy? Turns out, you're probably right.
The rule on whether a person can be fair and impartial is different if the prejudice we are worried about is about the defendant rather than the crime. There are different forms of pre-judgement which are attractive to potential jurors. If someone thinks a defendant must testify on his own behalf, for example, they might be able to be fair and impartial if we tell them they are wrong. In any event, we're going to have to take their word for it if they say they can set that view aside. Likewise, if the juror has heard specific claims regarding the proof of the crime in question, well, the whole trial is about the proof being brought before the jury, and if a juror says they can ignore other rumored evidence, we're probably going to have to take their word for it, at least in terms of challenges for cause, if they say that can forget about what they heard. However, what if a potential juror has heard about the defendant's general character or reputation? This is not something which will be countered at trial. For the most part it probably won't come up.
In other words, a prospective juror who has heard negative things about the defendant which are outside of the normal proof which we can expect to see at trial presents a special problem. It's not a matter of informing the juror that they are wrong about the law, and asking whether they can accept the law as explained by the court. It's not a matter of the juror expecting certain proof at trial, which we can ask them to set aside. It's a question of negative facts about the defendant which in all likelihood will not be answered or even talked about at trial. These concerns require a more exacting expurgatory oath than is typically required. In a case won by Mary Davison at the Third Department, that court said:
"Moreover, when the prospective juror's bias is based not upon a preexisting opinion as to the defendant's guilt of the crimes charged, but upon the defendant's over-all reputation or prior bad acts, "the evidence at trial might not address the basis of the juror's impression and thus may not alter this impression" (People v Torpey, 63 NY2d 361, 368 [1984]; accord People v Johnson, 94 NY2d 600, 614 [2000]). Under such circumstances, "'the test for whether [the juror's] bias has been overcome by declarations is even stricter than where the juror has expressed an opinion as to the defendant's guilt . . . [T]he prospective juror should be dismissed if there appears to be any possibility that his [or her] impressions . . . might influence [the] verdict'" (People vJohnson, 94 NY2d at 614, quoting People v Torpey, 63 NY2d at 368)."
(People v Wlasiuk,#102275 decided December 29, 2011).
Now, such issues might seem fairly uncommon, but when a potential juror indicates that he has heard of the crime through media coverage, it is worth the time to inquire whether that potential juror has also heard of related background information on the defendant. It is not uncommon for news coverage to review previous crimes the defendant got away with while building up the presumption of guilt as to the current one. If the relevant press coverage of a crime includes, say A) the defendant confessed; B) the defendant's DNA was found at the scene; C) the defendant is known for beating up his ex-girlfriends, it might well be C which presents the most promising avenue for voir dire.
You don't have to be a famous mobster to qualify.
NOTE - The court also noted that a for-cause challenge is possible even after a juror has been sworn: "Once a juror has been sworn, peremptory challenges are no longer available; a challenge for cause is permissible, but only before the first witness is sworn at trial and only "upon a ground not known to the challenging party" before the juror was sworn (CPL 270.15 [4]; see People v Harris, 57 NY2d 335, 349-350 [1982], cert denied 460 US 1047 [1983])."
The rule on whether a person can be fair and impartial is different if the prejudice we are worried about is about the defendant rather than the crime. There are different forms of pre-judgement which are attractive to potential jurors. If someone thinks a defendant must testify on his own behalf, for example, they might be able to be fair and impartial if we tell them they are wrong. In any event, we're going to have to take their word for it if they say they can set that view aside. Likewise, if the juror has heard specific claims regarding the proof of the crime in question, well, the whole trial is about the proof being brought before the jury, and if a juror says they can ignore other rumored evidence, we're probably going to have to take their word for it, at least in terms of challenges for cause, if they say that can forget about what they heard. However, what if a potential juror has heard about the defendant's general character or reputation? This is not something which will be countered at trial. For the most part it probably won't come up.
In other words, a prospective juror who has heard negative things about the defendant which are outside of the normal proof which we can expect to see at trial presents a special problem. It's not a matter of informing the juror that they are wrong about the law, and asking whether they can accept the law as explained by the court. It's not a matter of the juror expecting certain proof at trial, which we can ask them to set aside. It's a question of negative facts about the defendant which in all likelihood will not be answered or even talked about at trial. These concerns require a more exacting expurgatory oath than is typically required. In a case won by Mary Davison at the Third Department, that court said:
"Moreover, when the prospective juror's bias is based not upon a preexisting opinion as to the defendant's guilt of the crimes charged, but upon the defendant's over-all reputation or prior bad acts, "the evidence at trial might not address the basis of the juror's impression and thus may not alter this impression" (People v Torpey, 63 NY2d 361, 368 [1984]; accord People v Johnson, 94 NY2d 600, 614 [2000]). Under such circumstances, "'the test for whether [the juror's] bias has been overcome by declarations is even stricter than where the juror has expressed an opinion as to the defendant's guilt . . . [T]he prospective juror should be dismissed if there appears to be any possibility that his [or her] impressions . . . might influence [the] verdict'" (People vJohnson, 94 NY2d at 614, quoting People v Torpey, 63 NY2d at 368)."
(People v Wlasiuk,#102275 decided December 29, 2011).
Now, such issues might seem fairly uncommon, but when a potential juror indicates that he has heard of the crime through media coverage, it is worth the time to inquire whether that potential juror has also heard of related background information on the defendant. It is not uncommon for news coverage to review previous crimes the defendant got away with while building up the presumption of guilt as to the current one. If the relevant press coverage of a crime includes, say A) the defendant confessed; B) the defendant's DNA was found at the scene; C) the defendant is known for beating up his ex-girlfriends, it might well be C which presents the most promising avenue for voir dire.
You don't have to be a famous mobster to qualify.
NOTE - The court also noted that a for-cause challenge is possible even after a juror has been sworn: "Once a juror has been sworn, peremptory challenges are no longer available; a challenge for cause is permissible, but only before the first witness is sworn at trial and only "upon a ground not known to the challenging party" before the juror was sworn (CPL 270.15 [4]; see People v Harris, 57 NY2d 335, 349-350 [1982], cert denied 460 US 1047 [1983])."
Monday, January 2, 2012
In People v Anderson ( 2011 NY Slip Op 09364 [4th Dept 12/23/11]), after holding the that there was a valid waiver of appeal, the Appellate Division, Fourth Department held that
The Court then rejected the defendant's contention that the court abused its discretion in denying his request for youthful offender status and declined to exercise our interest of justice jurisdiction to adjudicate him a youthful offender.
We agree with defendant, however, that the waiver does not encompass his further contention concerning the denial of his request for youthful offender status. No mention of youthful offender status was made before defendant waived his right to appeal during the plea colloquy. Under those circumstances, we conclude that defendant did not knowingly waive his right to appeal with respect to Supreme Court's denial of the request by defendant for youthful offender status at sentencing (see generally People v McCarthy, 83 AD3d 1533, lv denied 17 NY3d 819; People v Fehr, 303 AD2d 1039, lv denied 100 NY2d 538; People v Hendricks, 270 AD2d 944).
The Court then rejected the defendant's contention that the court abused its discretion in denying his request for youthful offender status and declined to exercise our interest of justice jurisdiction to adjudicate him a youthful offender.
In People v Anderson ( 2011 NY Slip Op 09364 [4th Dept 12/23/11]), after holding the that there was a valid waiver of appeal, the Appellate Division, Fourth Department held that
The Court then rejected the defendant's contention that the court abused its discretion in denying his request for youthful offender status and declined to exercise our interest of justice jurisdiction to adjudicate him a youthful offender.
We agree with defendant, however, that the waiver does not encompass his further contention concerning the denial of his request for youthful offender status. No mention of youthful offender status was made before defendant waived his right to appeal during the plea colloquy. Under those circumstances, we conclude that defendant did not knowingly waive his right to appeal with respect to Supreme Court's denial of the request by defendant for youthful offender status at sentencing (see generally People v McCarthy, 83 AD3d 1533, lv denied 17 NY3d 819; People v Fehr, 303 AD2d 1039, lv denied 100 NY2d 538; People v Hendricks, 270 AD2d 944).
The Court then rejected the defendant's contention that the court abused its discretion in denying his request for youthful offender status and declined to exercise our interest of justice jurisdiction to adjudicate him a youthful offender.
A pre-requisite of a valid search incident to arrest, is an arrest. "If there is no arrest, however, there can be no search incident thereto (see People v Evans, 43 NY2d 160, 165-166; People v Erwin, 42 NY2d 1064, 1065)." People v Kalikow (2011 NY Slip Op 09452[4th Dept 12/23/11]). In, Kalikow, the Fourth Department held that where a police officer merely issued an appearance ticket to defendant for violating a municipal open container ordinance and had no intention of performing a custodial arrest, but defendant nevertheless was searched, the search cannot be justified as a search incident to a lawful arrest.
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