C. Zadik Shapiro

In 1981 the Supreme Court in New York v. Belton upheld searches incident to arrest. The Eleventh Circuit like many other courts developed a rule in automobile searches allowing the search of the entire passenger compartment incident to the arrest of a passenger or driver of a vehicle.

Willie Gene Davis was a passenger in a vehicle in 2007. The car was pulled over and Davis was asked by a police officer to get out of the car. As he was getting out of the car he took off his jacket and left it in the car. The officers asked Davis his name and he gave a false name. After discovering his correct name the officers arrested him, handcuffed him and put him in the police car for giving false information to a police officer. Then they searched the vehicle and found a gun in his jacket. He was charged and convicted for possession of an illegal weapon.

While his case was on appeal the Supreme Court decided Arizona v. Gant in which it corrected the interpretation of Belton. The Court made it very clear that the police could only search, absent a danger to the police officers or others, those areas accessible to the arrestee. Since Davis was handcuffed and in the police car at the time of the search he did not have access to the interior of the car he had been a passenger in and the search of the vehicle was illegal.

But the Eleventh Circuit ruled that while the search was illegal the evidence found in the vehicle was still admissible. While the general rule is that evidence illegally seized is inadmissible at trial this exclusionary rule has many exceptions. In most cases evidence seized in good faith is admissible at trial whether or not it was illegally seized. The Eleventh Circuit ruled in United States v. Davis that at the time of Willie Gene Davis’ arrest the law was clear that the officers could search the passenger compartment. The officers acted in good faith in searching the vehicle and therefore the exclusionary rule should not be applied. The Supreme Court has said on numerous occasions that the exclusionary rule is not constitutionally mandated and that its purpose is to deter police misconduct and since the search of the vehicle was done pursuant to then current Eleventh Circuit decisions misconduct was not involved and excluding the evidence would not effectively deter future misconduct.

But let me give an alternative reason to exclude the evidence. I do not believe that the founders of this nation would have approved of the introduction of illegally seized evidence. After all many of the members of the first Congress and the state legislatures who enacted the Bill of Rights participated in or at least approved mob actions which closed or threatened to close the court in many jurisdictions when the courts tried to enforce English rules expanding the right of the government to search individuals

The rule of law requires that illegally seized evidence be excluded. Why should the government be able to benefit from illegally seized evidence. To allow the use of illegally seized evidence to convict a citizen or an alien for that matter only encourages illegal action and discredits the rule of law.

The Lower Merion School District (Pennsylvania) provided Apple computers for 2300 students to use at home. This allowed students to have the same computers with the same software at home that they used at school.

Each of the computers had a camcorder. The District claims that the camcorders were attached in order to help the District find the computers if they were stolen. The camcorders could be activated by the District’s IT Department, allowing them to see the user of the computer and what is on the monitor.

But the computers could not only see who stole a computer but it allowed the District to spy on students and their families inside their homes. This is a flagrant violation of the Fourth Amendment. The Fourth Amendment prevents government (and the public school are part of the government) from committing searches and seizures without probable cause of criminal activity. Placing a camera in a residence in certainly a search. The Fourth Amendment protects people from illegal searches and seizures in many places but it gives its highest level of protection to personal residences.

While the investigation is ongoing and the facts are still not clear apparently either someone in the IT Department or the vice principal at Harriton High School spied on a student in his house. The vice principal called the student in and accused him of dealing in drugs, although apparently it was candy that was seen on the camcorder and not pills. To make the accusation the vice principal had to tell the kid about the cameras. Many of the students and their families did not even know the cameras existed. In any case the student and his family are suing the school district. Two members of the IT Department have been put on leave and the Federal Court has order the school district to disconnect the camcorders.

If the school district really wanted to track down stolen computers it could have installed GPS instead of camcorders. But I’m not sure I want the school district to know every place I go with the lap top.

Guam is a United States territory and it comes under the jurisdiction of the Ninth Circuit Court of Appeals. The Court, sitting in Hawaii, heard United States v. Cha. It held that a 26.5 hour seizure of a residence pending the obtaining of a search warrant unconstitutional and as a result it upheld the suppression of evidence found in the house.

On Saturday evening, January 12, 2008 police officers arrived at the Blue House Lounge in Tamuning, Guam to investigate a complaint made by Sonina Suwain, a resident of Chuuk that the owners had seized her passport and were holding two of her female cousins against their will. The officers found one cousin waiting tables and the other in a hospitality room with a male patron. After interviewing the cousins Song Jaw Cha (Ms Cha) was detained on prostitution related charges. The officers did a walk through of the lounge and Ms Cha’s attached home, finding her husband in bed. They interviewed customers and ordered that the place be closed. The Chas were taken to the precinct at 1:00 Sunday morning and Ms Cha was arrested at 6:00 am. At 8:00 am Mr. Cha returned to his house but he was not allowed to enter. At 12:45 pm his lawyer arrived The lawyer returned at 2:45 and asked that Mr. Cha be allowed to retrieve his diabetes medication. The police did not allow him to get the medication until 7:00 that night. The lawyer left at 1:00 Monday morning.

At 9:20 Sunday morning Officer Perez was asked to come into work at noon for a briefing. During the briefing he was asked to prepare a search warrant affidavit. He waited for reports and started working on the affidavit at 6:30 Sunday evening. He worked until 4:00 am. He went home and returned at 7:50 Monday morning. At the request of the chief prosecutor he ran the warrant by him and presented it to a magistrate at 10:25 Monday morning. The search was not begun until 2:00 Monday afternoon and it was not completed until 1:00 Tuesday morning, when Mr. Cha was allowed to enter his house.

The court found that the officers violated the law by taking too much time to process the warrant request. In Illinois v. McArthur the Supreme Court listed four factors that must be considered in determining the constitutionality of a detention of a home prior to a search. First, they must consider the existence of probable cause. This is not disputed. Second, whether the police had good cause to fear that evidence would be destroyed. There was no reason to believe that evidence would be destroyed. Third, whether the police made reasonable efforts to meet the privacy needs of the residents. Evidence to the contrary is the refusal for four hours to provide Mr. Cha with his medication. Finally whether the police acted reasonably and with diligence in obtaining the warrant. The court found numerous unnecessary delays including Perez’s late appearance on the scene, the time that passed between his appearance and his beginning to work on the affidavit, and the time he took off in the early morning.

The Court found that the failure to suppress the evidence would allow law enforcement officers to spend an indefinite amount of time prior to the preparation of a search warrant without any repercussions and that suppression would accommodate the goal of suppressing illegally seized evidence in that it would deter future “deliberate, reckless or grossly negligent conduct.” The Court pointed out that it was a violation of the law and not a violation of fact and that the police should be aware of the law.

The Supreme Court, yesterday in Bloate v. United States ruled that time used to prepare motions in Federal cases is not automatically excluded from the 70 day period under the Speedy Trial Act in which a case must be brought to trial. Rather under 18 USC 3161 (h)(1) the time may be excluded only if the District Court Judge makes a finding pursuant to 18 USC 3161 (h)(8A) “that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial.”

James Bloate was indicted on August 24, 2006 for being a felon in possession of a firearm initiating the 70 day speedy trial period. The Judge ordered that pretrial motions be filed by September 13. On September 7, the defendant moved to continue the due date for motions until September 21 and the Court granted the motion. On September 25 the defendant filed a waiver of pretrial motions and the Court held a hearing on October 4 where it found the waiver “voluntary and intelligent.”

The question in this appeal is whether the period during which the defendant considered whether or not to file motions is excluded from the 70 day speedy trial period.

18 USC 3161(h)(1)(F) automatically excludes “delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion.” The court found that this language automatically excludes the time from the filing of the motion to the time that that the hearing on the motion is completed. It reasons that if Congress wanted to also include time during which motions were prepared if would have so stated. Of course this does not prevent the District Court from making finding pursuant to 3161 (h)(8A) excluding preparatory time from the 70 day period.

The dissent argues that it is unfair to allow the defendant to benefit from a judge’s decision granting him more time to file motions when the defendant requested the time. However, as the majority points out the specific language of 18 USC 3161(h)(1)(F) takes priority over the more general language found in 18 USC 3161(h)(1)(A) which excludes “delay resulting from any proceeding, including any examinations, to determine the mental competency or physical capacity of the defendant.”

A better solution, in order to prevent the defendant receiving a windfall as a result of his or her own motion to continue the proceedings would be to amend the statute to exclude any time that proceedings are continued as a result of a defendant’s motion.

Mike Scarcella and David Ingram have a post Friday’s BLT:The Blog of Legal Times about the efforts of certain right wing group to force out Department of Justice attorneys who prior to being hired by the Department of Justice represented detainees at Guantanamo.

Liz Cheney’s group called Keep America Safe has gone on You Tube with a video asking the Justice Department to identify their attorneys who previously represented detainees. Cheney and her colleagues are usin McCarthy guilt by association methods to connect Justice Department lawyers with the their clients who were charged with terrorist activities. In fact many of the lawyers who have represented detainees are prominent Republicans active in party politics and who were appointees in the Bush and Reagan administrations.

But that’s what lawyers are supposed to do. Defendants have a Six Amendment right to representation regardless of their politics and regardless of the charged crime. They not only have a right to representation but they have a right to zealous representation. Bush Solicitor General Ted Olson stated that those who represent Guantanamo detainees represent the best in the American values.

What would Cheney have said about John Adams who represented British soldiers accused of killing demonstrators in the Boston Massacre or Atticus Finch who represented an African American accused of raping a white woman in Alabama during the 1930’s in Harper Lee’s novel, “To Kill a Mockingbird.”

The Eleventh Circuit Court of Appeals in United States v, Rozier upheld laws charging possession of a weapon by a convicted felon against Second Amendment claims.

Eenie Austin, the mother of Christopher Rozier’s child arrived at his house in time to see his current girl friend holding a butcher knife to Rozier’s neck. Austin joined the fray and threw a concrete statute, hitting him in the face. At this point he pulled out a gun to protect himself. The decision does not say who called the police but they arrived later in the day with a search warrant. They searched the residence and found crack cocaine, marijuana, and ammunition. A gun was found buried in the yard.

Rozier was charged with possession of a gun and ammunition by a convicted felon in violation of 18 United States Code Section 922(g)(1) and since he had three major prior drug convictions he was sentenced under the Armed Career Criminal Act to 210 months in prison.

In District of Columbia v. Heller the Supreme Court held that “the Second Amendment conferred an individual right to keep and bear arms.” But Heller also said, “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons . . . .” Based on this language the Eleventh Circuit found that certain classifications of people, include convicted felons may be denied Second Amendment rights.

Curtis Johnson plead guilty in Federal Court to possession of ammunition by a convicted felon.The United State attorney argued that he should be sentenced as an armed career criminal with a possible sentence of fifteen years to life. The U. S. attorney claimed and the District Court accepted the claim Johnson had convictions for three violent felonies.

A “violent felony” is defined as “any crime punishable by imprisonment for a term exceeding one year” that:

“(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

“(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” §924(e)(2)(B).

Johnson had convictions for aggravated battery, burglary, and battery. On appeal he challenged the designation of the battery as a violent felony. Battery is generally a misdemeanor but in Florida a conviction for battery with a prior conviction for battery can be a felony. Battery is defined under Florida law as either:

1. [a]ctually and intentionally touches or strikes another person against the will of the other,” or “2. [i]ntentionally causes bodily harm to another person.

There is no evidence that Johnson caused bodily harm to anyone. Therefore for Johnson to be an armed career criminal, one guilty of intentionally touching or striking another person against his or her will must be guilty of a violent felony. The use of physical force must mean something more than touching another person against his/her will.

The Supreme Court held that “in the context of a statutory definition of ‘violent felony,’ the phrase ‘physical force’ means violent force–that is, force capable of causing physical pain or injury to another person.” Battery under Florida law which involved an unwanted touching does not necessarily involve a violent force resulting in injury and therefore Johnson cannot be sentenced as an armed career criminal.

Monday, Bob Herbert had some scary statistics in his New York Times column. He pointed out that that between 2004 and 2009 New York City police detained nearly three million people, frisking many of them and inputting their names into a massive computer file.

Less than fifteen percent of those searched had committed any crime or were in possession on of contraband. To compound the problem the vast majority of those searched were members of minorities. African Americans were stopped 1,444,559 times. Hispanics were stopped 843,817 times and whites were stopped only 287,218 times.

Were the stops legal? If the people stopped gave consent to the search they were legal. Why anyone would give consent I don’t know. I always tell clients to tell any police officer that attempts to search them that they are not giving consent. I doubt this stops many searches but maybe it makes an officer think twice before committing an illegal search. The Constitution is clear that people do not have to give consent. But many people, particularly aliens and minorities believe that if a police officer asks them for permission to search they have to give it.

Also those on parole or probation often have a search clause requiring them to permit peace officers to search them.

But in many other cases they are not legal unless the police have a reasonable suspicion that the person is involved in criminal behavior. This only permits a detention. To frisk the person the police must additionally have a reasonable suspicion that weapons will be found.

Individuals illegally searched have the right to sue but generally there is not enough money involved to find an attorney who will take the case.

The best solution would be to have all detentions and searches recorded on video tape. But this is rarely done. This could lead to disciplinary acts against police officers who illegally stop and frisk citizens. It would also make it easier to sue the officers and the police departments for illegal searches and detentions. It would, of course, also make it easier to convict those who are guilty and to justify legal searches. But police departments either don’t have the money for cameras or they are afraid of the outcome.

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The question in Thaler v. Haynes is not whether a judge can deny a Batson motion based upon a juror’s demeanor, not viewed by the judge, but rather whether a Federal Court can grant a writ of habeas corpus when a state court judge denied a Batson motion, based upon demeanor, when the judge had not been present to view the prospective juror’s demeanor.

A Batson motion claims that the opposing party is making peremptory challenges based upon race. Each party at a trial is allowed to make a certain number of challenges to perspective jurors without giving a reason. The challenged can be for almost any reason except race. When a party thinks that the opposing party is making a peremptory challenge base on race it make a motion to have the opposing party justify its challenge but the party making the motion must make a prima facie showing first. Then the judge asks the party challenging the juror to justify its challenge.

But when the matter comes up in a Federal habeas as all matters that come up when state court convictions are challenged in a Federal court by a writ of habeas corpus the defendant has not only got to prove that he/she is right, but more importantly he/she must prove that the state court violated a Federal law that is “clearly established.” Under Supreme Court precedent a Federal law is only “clearly established” if the Supreme Court has previously unequivocally ruled on the matter. Thus the state court could be wrong but the Federal courts will uphold the state court decision if the there is not a Supreme Court decision unequivocally opposed to the state court ruling.

Anthony Cardell Haynes was convicted in Texas state court for the murder of a police officer. Two different judges presided over different parts of his trial. One presided over the selection o the jury and another presided over the Batson motion. The defense counsel made the necessary prima facie showing that the prosecution’s peremptory challenge was base on race. The prosecutor justified the challenge by claiming that the juror’s demeanor showed that she was not serious about being a juror. The judge denied the motion even though the judge had not been present when the peremptory challenge was not made and the judge had not seen the juror’s demeanor.

The question before the Federal Courts on habeas was not whether the trial court was right in denying the defense Batson motion, but rather whether when the court denied the motion it was violating a clearly established Supreme Court ruling. The Supreme Court found no clear prior ruling was violated and therefore it reversed the lower court grant of habeas corpus.

Friday, we looked at Florida v. Powell in which the Supreme Court looked at a version of the Miranda warnings that did not clearly state that an arrestee had the right to have an attorney in the room with him/her while being interrogated while in custody.

Today we look at whether the Supreme Court should have considered Powell in the first place. Powell is an appeal from the Florida Supreme Court which ruled the version of the Miranda warnings used by the Tampa police is unconstitutional. The version used by Tampa police states:

You have the right to remain silent. If you give up the right to remain silent, anything you say can be used against you in court. You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview

The Florida Supreme Court held: “[b]oth Miranda and article I, section 9 of the Florida Constitution require that a suspect be clearly informed of the right to have a lawyer present during questioning,” and that the warnings given to Kevin Dewayne Powell did not satisfy either the State or the Federal Constitution.

The question is whether the Florida Supreme Court found “independent state grounds” to reverse Powell’s conviction. The Bill of Rights guarantees certain rights. For the most part these rights, under the Fourteenth Amendment, are binding upon the states. But nothing in the Constitution or the Bill of Rights limits the states from granting its citizens greater rights than are guaranteed in the Constitution. For example while the Supreme Court may have found the Tampa version of the Miranda warnings sufficient to protect Fifth Amendment rights against self incrimination, the Florida Supreme Court has every right to hold the Tampa version of the Miranda Rights insufficient to protect rights granted in the Florida Constitution.

On remand the Florida Supreme Court has every right to say that confessions made after being read the Tampa version of the Miranda inadmissible as a violation of the Florida Constitution. Therefore the Supreme Court as a rule refuses to consider cases where the state court has ruled on the issue and found that it violates the state Constitution. The Florida Supreme Court like any other state court may find that a particular act violates both the state constitution and the Federal Constitution as the Florida Supreme Court did in this case, according to Justice Stevens in his dissent. But since the Supreme Court decision will not have any effect upon Powell if the Florida Supreme Court finds that Powell is protected under the Florida state constitution, the Supreme Court does not take cases where

[t]he state court ‘make[s] clear by a plain statement in its judgment or opinion that the federal cases are being used only for the purpose of guidance, and do not themselves compel the result that the court has reached.’ . . . [T]he real question is whether ‘the adequacy and independence of any possible state law ground is … clear from the face of the opinion.”

The U. S. Supreme Court’s majority opinion written by Justice Ginsburg, and joined by every justice except Stevens, states that

the Florida Supreme Court treated state and federal law as interchangeable and interwoven; the court at no point expressly asserted that state-law sources gave Powell rights distinct from, or broader than, those delineated in Miranda

But as Justice Stevens points out that the Florida Supreme Court said that the Tampa version of the Miranda rights under neither the United States Constitution or the Florida Constitution provided the arrestee with sufficient notice that he/she could have an attorney present during any interrogation it implicitly stated that there are independent state grounds for excluding the confession under the State Constitution. Therefore the Supreme Court’s decision is no more than an advisory opinion and the Court should not have accepted the case.

This is the type of activism that members of the majority would reject under other circumstances. The Supreme Court, they would argue, should only accept cases where their opinion would mean something and where they were not interfering with the State Courts rulings on state law.