New York joined Oregon and Washington in finding that their state constitutional bans on illegal search and seizure prevents the warrantless use of GPS, by law enforcement to track a vehicle.

State Police investigators placed a GPS device under the bumper of Scott Weaver’s van and left it there for 65 days, creeping under the van once to change the battery. Evidence taken from the GPS device was used to convict Weaver of the burglary of a K-Mart.

The New York Court of Appeals found that having a GPS device secretly placed under your vehicle for 65 days was so invasive as to violate the state constitution’s requirement that a search warrant is necessary for the search of the vehicle’s route. The court recognized that while the United States Supreme Court has never considered the validity of a GPS search it had found legal the use of a beeper in United States v. Knotts placed in a barrel of chloroform on the back of a truck as a means to aid agents keep track of the vehicle.

But the court found that the beeper in Knotts was a lot less sophisticated than GPS. The Supreme Court in Knotts found that the beeper was permissible since it was only an aid to human vision. Current devices are a lot more accurate than the beeper and human participation in tracking vehicles is no longer needed. The invasiveness of current devices is way beyond what the Supreme Court could have dreamed of twenty-six years ago in Knotts. As the court stated:

Disclosed in the data retrieved from the
transmitting unit, nearly instantaneously with the press of a
button on the highly portable receiving unit, will be trips the
indisputably private nature of which takes little imagination to
conjure: trips to the psychiatrist, the plastic surgeon, the
abortion clinic, the AIDS treatment center, the strip club, the
criminal defense attorney, the by-the-hour motel, the union
meeting, the mosque, synagogue or church, the gay bar and on and
on.

The court noted that there may be cases where exigent circumstances do not permit the luxury of getting a search warrant but in this case where the GPS device was on the vehicle for 65 days that is hardly the case.

The court also recognized that the expectation of privacy in a vehicle which is open to the public is a lot less than in a residence but it pointed out many circumstances, most recently in Gant, where the Supreme Court found an expectation of privacy in a vehicle.

Unlike the Oregon and Washington constitutions the New York search and seizure clause tracks the Fourth Amendment. Therefore there is some hope that someday when the United States Supreme Court decides a GPS case that it will follow the New York example.

While he was facing twenty years in prison, U. S. District Judge for the Southern District of Texas Samuel Kent was sentenced to 33 months in prison for obstruction of justice according to an article in TalkLeft: The Politics of Crime.

He lied to a judicial investigating committee and to the FBI investigating complaints that he sexually abused female staff members. In exchange for his guilty plea to one count of obstruction of justice five counts of sexual misconduct were dismissed.

The plea bargain and the sentence sure seem mighty light for one who has admitted to sexual misconduct with two employees. I wonder what his sentence would be if he was not a judge. I’m sure, at a minimum one of the plea conditions would have forced him to resign his judgeship, thus forfeiting his pension. I also suspect that he would have been forced to plead guilty to at least one offense involving sexual misconduct and that he would have gotten more time.

His conduct is pretty horrendous. The primary complainant, Cathy McBroom said in a sentencing statement:

“After forcing himself upon me and asking me to do unspeakable things, he told me that pleasuring him was something I owed him. That was it for me.”

She said he was often drunk and he would grope her. Though she is in therapy she says there are still parts of her dealing with Kent that she is unable to talk about and that it caused severe problems in her marriage. Some of his early statements claimed that the conduct was consensual. I’m sure that made the victims and their husbands real happy.

Kent continues to draw his salary as a judge. He will continue to get paid unless he either resigns or is impeached. He has applied for early retirement claiming a disability. Thus it becomes a race whether he is impeached first or whether his disability request is granted first. Members of the House Judiciary Committee are immediately beginning to work on his impeachment. Committee Chair John Conyers of Michigan and Lamar Smith the ranking Republican on the committee are expected to file a resolution beginning the impeachment process today.

Here’s another example of how people get arrested when they overlook minor details. Timmie Jordan died in Sebastian, Florida in 2003 from natural causes but instead of burying her mother, Penelope Sharon, kept her in a spare bedroom. This may be a little weird but not a major problem. Sharon continued to collect her mother’s Social Security and military pension. In fact over the last six years she collected $61,415 in Social Security benefits and $176,461 in her mother’s military retirement. She might have gotten away with it but a neighbor called the authorities to report an excessive number of cats on the property. When the police came out to check on the cats they found the dead body. When questioned Sharon told the police that her mother had died in 2003.

And on the other coast there is another woman found dead in her house. In Piedmont California 86 year old Patricia Bostrom was found dead in her house. According to the Alameda County coroner she died at least two years ago. The district attorney decided not to file charges against her daughter, Nancy. There is insufficient evidence to charge Nancy with theft related charges concerning the monthly Social Security that were cashed. At least from a criminal defense point of view, Bostrom at least had the brains not to tell the police how long her mother had been dead.

Probably as long as there has been a Fourth Amendment there has been a debate over whether to exclude evidence illegally seized in violation of the Fourth Amendment. The Supreme Court ruled in 1914 in Weeks v. United States that illegally seized evidence should be excluded at trial. But to this day conservatives claim that the evidence should be admissible. After all it may have been seized illegally but its still credible evidence. The problem with this theory is, if you don’t exclude the evidence what is to stop government agents from consistently violating the Fourth Amendment to get evidence against individuals and organizations.

The right responds to this by suggesting that people can sue those who violate their rights in what is called a Bivens suit. But there are two problems with Bivens suits. First, if you are convicted of a crime and sent to prison as a result of illegally seized evidence no amount of money can pay you back for the time lost. Second, even if you are not charged and convicted a Bivens suit as shown in the recent Fourth Circuit Court of Appeals case, Unus v. Kane et al is very difficult to win.

Unus v Kane et al involves a Muslim family living in the Eastern District of Virginia shortly after 9/11. Iqbal Unus, a U.S, citizen worked for the Islamic Institute of Islamic Thought and he had ties to several other Islamic organizations. David Kane, a special agent for ICE, working with Rita Katz, an expert on Islamic affairs wrote a 99 page affidavit as part of Operation Green Quest, which was a Federal effort to investigate domestic support of international terrorism, and presented it to a U. S. magistrate to search a number of places, one of which was the Unus residence to find evidence regarding support for terrorist organizations. The affidavit was based on the moving around of funds which may have gone to terrorist organizations. According to Kane’s affidavit a number of charities headquartered at 555 Grove Street in Herndon, Virginia moved large sums of money around but the government was unable to prove that any of it went to terrorist organizations. The most they could prove is that some of it ended up on the Isle of Man but they could not trace it beyond there. On this evidence the magistrate found probable cause to search twenty places including the Unus residence.

When the agents arrived at his home with the search warrant, Dr. Unus was not home but his wife and daughter were present. When the agents banged on the door his wife was afraid, seeing ununiformed individuals outside her house, at least one of whom had a gun. Thinking it was a home invasion robbery she went to get their daughter who called 911. The agents, seeing the mother run to the back of the house, broke the door down. They entered the house with guns drawn and they handcuffed both the mother and the daughter. They remained handcuffed for nearly four hours during most of the search of the residence. The Unuses are Muslim and they were allowed to say their afternoon prayers. But they were not allowed to do it outside the presence of men nor were they allowed to wear a head cover for the prayers and the agents insisted on taking their picture without the head cover.

Using the Federal Tort Claims Act (FTCA) they sued the agents and the government for assault and false imprisonment as well as on Bivens counts for violation of their First and Fourth amendment rights. Despite the plaintiffs filing several amended complaints the trial court dismissed or granted the agents and the government summary judgment dismissing the complaint.

Despite the fact that on appeal of a grant of summary judgment the appellate court reviews the evidence as it is most favorable to the plaintiffs, the Fourth Circuit Court of Appeals upheld the trial court actions. Under the FTCA the Federal Courts look to the state law to define the various torts. The Court found that the agent’s knocking down the door, the exhibition of the weapon, and the use of the handcuffs in response to the door not being opened by the Unuses. Aysha Unus running to the back of the house and Hanaa Unus being on the telephone was reasonable. Therefore the charges of assault and false imprisonment were without support. After all it was a “terrorism-related warrant.”

The court upheld the dismissal of the Bivens claims since under the FTCA one cannot claim a violation of the FTCA and another law simultaneously. In any case the Court found Agent Kane’s behavior appropriate in the drafting of the affidavit.

Perhaps one could justify the court’s failure to find any support for the claims on the grounds of the mass hysteria that followed 9/11 but here it is eight years later and an appellate court with plenty of time to contemplate the briefs and the argument still finds that the trial court properly granted summary judgment.

The Supreme Court ruled in Flores-Figueroa v. United States that to convict someone under the aggravated identity theft statute the government must prove that the defendant knew that they were using the ID of another individual.

The aggravated identify theft statute mandates that defendants be given an additional two year sentence on top of the sentence they would normally receive when they use a false ID in connection with the violation of a specified list of crimes.

Specifically it ruled that “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.” means that the defendant not only must knowingly possess or use identification but that the defendant, in order to be convicted, must know that the identification is that of another person. In practice it means that an individual who makes up a nine digit Social Security number that just so happens to be that of another person cannot be convicted unless they know that the Social Security number belongs to another person.

This does not mean that people using false ID’s won’t be punished. There are plenty of laws on the books to do that. But it does mean that the additional two years for an aggravated identity theft will generally be saved for those who steal the ID of another and not those who are unlucky enough when inventing an ID to invent an ID that is legitimately in use. Also, it will prevent prosecutors from coercing a plea from an illegal immigrant, such as Flores-Figueroa who invented a nine digit Social Security number to give to an employer to get a job, by threatening them with an amended indictment charging an aggravated identity theft violation.

The Supreme Court ruled that an accidental discharge of a gun during a drug trafficking or violent crime results in a mandatory ten year sentence in addition to the punishment for the underlying offense pursuant to Title 18 U. S C. Section 924(c)91)(A).

Under Title 18 U. S C. Section 924(c)91)(A) the possession of a gun during certain crimes results in an additional sentence of five years, the brandishing of a weapon during the commission of the same crimes results in an additional seven years and the discharge of a weapon during the commission of the crimes results in an additional sentence of ten years. The question before the Supreme Court in Dean v. United States was whether the government had to prove that the discharge occurred with a particular intent or whether the accidental discharge of the weapon was sufficient.

Reading the statute, it is not surprising that the court found that the government did not have to prove any intent. The statute states:

“[A]ny person who, during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime–

“(i) be sentenced to a term of imprisonment of not less than 5 years;

“(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and

“(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.”

But as Justice Stevens points out in dissent:

Accidents happen, but they seldom give rise to criminal liability. Indeed, if they cause no harm they seldom give rise to any liability. The Court today nevertheless holds that petitioner is subject to a mandatory additional sentence–a species of criminal liability–for an accident that caused no harm. For two reasons, 18 U. S. C. §924(c)(1)(A)(iii) should not be so construed. First, the structure of §924(c)(1)(A) suggests that Congress intended to provide escalating sentences for increasingly culpable conduct and that the discharge provision therefore applies only to intentional discharges. Second, even if the statute did not affirmatively support that inference, the common-law presumption that provisions imposing criminal penalties require proof of mens rea would lead to the same conclusion.

As any first year law student learns each crimes must have a mens rea or in English an intent. With exception of minor crimes such as traffic violations we do imprison individuals unless they commit an act which society finds to be a crime and that the act is committed with a particular intent to do the act. In some cases it may suffice that the act was knowingly done. In others it may be with the intent to injure someone. But rarely, except in minor crimes, is no intent or mens rea needed. Again quoting Justice Stevens:

[T]he presumption that criminal provisions include an intent requirement would lead me to the same conclusion. Consistent with the common-law tradition, the requirement of mens rea has long been the rule of our criminal jurisprudence. . . . The concept of crime as a “concurrence of an evil-meaning mind with an evil-doing hand … took deep and early root in American soil.” . . . Legislating against that backdrop, States often omitted intent elements when codifying the criminal law, and “courts assumed that the omission did not signify disapproval of the principle but merely recognized that intent was so inherent in the idea of the offense that it required no statutory affirmation.” . . . Similarly, absent a clear statement by Congress that it intended to create a strict-liability offense, a mens rea requirement has generally been presumed in federal statutes. . . . With only a few narrowly delineated exceptions for such crimes as statutory rape and public welfare offenses, the presumption remains the rule today. . . .

The Supreme Court, last week, in Kansas v. Ventris ruled that statements given to jailhouse informants in violation of the Sixth Amendment can be used to impeach a defendant at trial.

In 1964 the Supreme Court ruled in Massiah v. United States that it was a violation of the Sixth Amendment right to counsel to allow a police informant to elicit incriminating evidence from a defendant after the defendant has been indicted and in the absence of the defendant’s attorney.

But now the Supreme Court has ruled that while a prosecutor cannot use the illegally gained evidence in its case in chief it can use it to impeach the defendant. Donnie Ray Ventris and Rhonda Theel were charged with various crime including the murder of Ernest Hicks. Theel plead guilty to robbery and her murder charge was dismissed. The prosecutor placed an informant in Ventris’ cell who elicited comments from Ventris incriminating himself on the murder charge. After Ventris testified at trial that Theel committed the murder, the informant testified as to what he had been told by Ventris in the cell.

Justice Scalia, speaking for a seven member majority of the Supreme Court compared the Sixth Amendment violation to a Fourth Amendment violation. He said that since exclusion of the illegally seized evidence in both cases was not directly mandated by the Constitution, a defendant should not be allowed to take advantage of the fact that the government illegally obtained evidence to lie at trial and therefore the illegally obtained evidence should be usable for impeachment.

But the problem with Scalia’s analogy to the Fourth Amendment, is that evidence illegally seized under the Fourth Amendment it is excluded solely because of the government’s wrong doing. There is no question about its validity. In the Case of Massiah error not only is the evidence seized illegally but there is considerable question about its credibility. An informant who is being rewarded in one way or another by the government for providing incriminating evidence against someone such as Ventis has considerable reason to lie. The government is not going to dismiss his case or give him favors if he does not provide them with incriminating evidence.

Also, a defendant, such as Ventris has reason to lie when talking to a cellmate who he does not know to be working for the police. A person in jail has considerable reason to want to appear to be tough in jail. Jails are not nice places and your cell mates may not be nice people. By telling them that you killed someone, they are less likely to attack you. After all would you want to attack someone who killed a man in cold blood. Thus Ventris may have lied to the agent/cellmate just to protect himself.

Supreme Court Justice David Souter is likely to retire at the end of the current session next month.

Over his nineteen years on the Court he has evolved from being a conservative vote on criminal justice issues to being a moderate vote on such issues. In particular as a moral leader of the Court he has been a strong voice for fair trials under the Sixth and Eighth Amendments.

He was appointed by George H. W. Bush with the hope that he would join the conservative wing of the court. The hope was not totally unrealistic. As Joseph D. Grano, Distinguished Professor of Law at Wayne State University has pointed out his record on New Hampshire state courts was generally fairly conservative and he rarely voted in favor of criminal defendants.

While never an ideologue and always a pragmatist over the years his votes have evolved to the point where he often votes with the more moderate wing of the Court of criminal justice issues. This is brought out in a comprehensive law review article by Scott P. Johnson, a political scientist at Frostburg State University in the Pierce Law Review. Between Souter’s appointment to the bench in 1991 and 1997 he voted against criminal defendants in the majority of the Fourth, Fifth, and Sixth Amendment cases and in 45 per cent of the Eight Amendment cases. But after 1997 he voted with defendants in over 60 per cent of the Fourth Amendment cases and over 70 per cent of the Fifth, Sixth, and Eighth Amendment cases.

But in any case he is not an ideologue voting either for or against criminal defendants. He is a strong believer in precedent and his votes and he puts considerable time into research and writing his decisions. His decisions are well reasoned and he is rarely open to much criticism from either the left or the right. His voice of reason will be missed on the court.