The Maricopa County (Arizona) Probation Department and the Superior Court of the County initiated a program for individuals convicted of aggravated driving under the influence called the DUI Court. Actually the program consists of three different DUI courts–one a “regular” DUI Court, the second, for Spanish speaking probationers, and the final for Native American probationers. The Spanish speaking DUI Court and the Native Native American DUI Court try to use ethnically appropriate techniques to reach the particular communities. Among the tools used by all three courts are monthly check-ins, intensive probation supervision, substance abuse programs, peer support and counseling.

The County Attorney for Maricopa County together with several victims of drunk driving accidents sued in Federal Court for declaratory judgment on the the basis that the programs are ethnically discriminatory. They allege that the programs violate civil rights laws and the Fourteenth Amendment.

The District Court and the Ninth Circuit Court of Appeals dismissed the suit on the grounds that the plaintiffs did not have standing to bring the suit.

“To have standing to sue in federal court, a plaintiff must
allege ‘such a personal stake in the outcome of the controversy
as to warrant his invocation of federal-court jurisdiction
and to justify exercise of the court’s remedial powers on
his behalf.”

The Court ruled that neither the county attorney, acting on behalf of the state nor the victims have a sufficient personal interest in the DUI courts to sue in Federal Court. The County attorney’s interest is too general and since the courts are punitive the victims have no personal interest.

Since the plaintiffs do not have standing the court did not consider the merits of the suit. I would presume that the next step is for a probationer assigned to either the Spanish speaking DUI Court or the Native American DUI court to sue claiming racial bias.

The Ninth Circuit Court of Appeals upheld the suppression of evidence seized from Michael Young’s hotel room at the Hilton Hotel in San Francisco. Young was a guest in room 13575 at the Hilton. Hilton staff accidentally gave him the key to room 13572. The guest in room 13572 claimed that his room was burglarized. The staff of the hotel assumed that Young was the thief even though there was some question as to whether the theft occurred prior to Young getting the wrong key.

Hotel security searched Young’s room while he was out. None of the items allegedly stolen from Room 13572 were found. But they did find a gun. It was against hotel rules to have guns on the property but Young had not been told the rule. They temporarily locked the room and when Young returned late that night they called the police. Officer Koniaris was outside the building and he responded. He spent 20 to 30 minutes talking to Young. Young told Koniaris that Young had a state prison record. Koniaris handcuffed Young to a bench in the security office. He called his sergeant who told him that he could not search Young’s room without a search warrant. Instead of getting a search warrant he watched while hotel security searched the room and showed him the gun. He then seized the gun and arrested Young.

The search of the room and the seizure of the gun was clearly illegal. Like a house, a search warrant is absolutely necessary to search a hotel room. There was some question about the Hilton’s policy in evicting guests. But it was not the policy to evict people found with guns. The guns were to be kept in a secure place. While it may have been the policy to evict people who committed crimes at the hotel, there is no evidence that he was evicted and while he had been temporarily locked out of the room his property was still in the room. There seems to be little question that at the time of the search Young still had a legitimate expection of privacy in the room.

The remaining question is whether the gun would been seized despite Koniaris’ illegal seizure of the weapon. The dissent by Judge Ikuta argues that the inevitable discovery exception to the exclusionary rule applies. However the inevitable discovery exception does not apply when the evidence could only have been seized legally if a search warrant had been obtained and the police did not get the search warrant. The purpose of the exclusionary rule is to act as a disincentive to police overreaching and the police should not be able to benefit from the failure to comply with the Fourth Amendment’s search warrant requirement. Therefore the majority upheld the District Court’s suppression of the gun found in Young’s room.

The city of Amsterdam has a problem. Most banks refuse to give credit to prostitutes even though prostitution is legal. The prostitutes are an important part of Amsterdam’s economy and the prostitution segment of the economy is hurting due to its inability to get credit.

The city has rejected the idea of a “sex bank.” But it recognizes prostitution as a bona fide industry and the need of its proprietors to obtain reasonable credit.

May I suggest two examples for Amsterdam. San Francisco has developed a Bank on San Francisco. While the Bank on San Francisco does not provide loans it allows individuals who do not qualify for most banking accounts, including presumably prostitutes (although prostitution is illegal), to open accounts and use those accounts to cash checks and maintain savings accounts. The Bank on San Francisco, uses 170 branches of volunteering banks which agree to relax some of their rules, such as ID requirements, prior credit requirements, minimum account balances and some fees. As a result low income people can keep their money in a bank and not risk having to carry the money in their pockets. Also by cashing checks in the bank they do not have to go to high price check cashing firms.

A second model is micro-banks. Micro-banks, generally found in third world countries allow small entrepreneurs to borrow small amounts of money to open or expands small businesses. Amsterdam officials might like to know that the micro-banks have a repayment rate of over 95 percent.

By opening the bank up to all who are in need of banking sevices, such as the Bank on San Francisco and by using existing banks it won’t be a sex bank. By making loans like the micro-banks it will serve the needs of the sex workers. Of course, while it need not make million dollar loans,the cost of services in Amsterdam is a lot greater than in the Third World, where many of the loans are for as little as $125.

A Woodbine, Maryland woman was arrested twice in a five hour period for driving under the influence of alcohol according to the Baltimore Sun. Police stopped the twenty year old woman for swerving across lane markers at 2:15 am on the third in Ocean City.She was charged with being under the influence. Maryland law prohibits a driver who has been arrested for a DUI from driving within twelve hours of her arrest. So when less than five hours after her first arrest police saw her driving they stopped. They discovered that she was again under the influence and they arrested her again.She was again charged with a DUI but this time she was held on a $25,000 bond.

The California Supreme Court joined courts in Vermont and Arizona in finding that partition ratio evidence is admissible in defending against a generic DUI allegation. All states have separate charges for driving under the influence of intoxicating substances (generic DUI law) and driving with a blood alcohol level over .08 (per se DUI law). Often people are charged with both generic and per se violations.

Anyone driving with a blood alcohol level of .08 or above is guilty of violating the per se law. In other words one cannot legally drive if eight hundredths of one per cent of one’s blood is alcohol. The most common test for being under the influence determines the amount of alcohol in one’s breath. To determine if one is in violation of the law it is necessary to convert the amount of alcohol in one’s breath to the amount in the blood. By statute, in the per se law the conversion factor, known as the partition ratio is 2100:1 which means that the amount of alcohol in 2100 liters of breath is the same as in one liter of blood. But the partition ratio is different for different individuals and at different times for the same individual. Just the same, as far as the per se law is concerned, evidence that the defendant has a different partition ration or that 30 per cent of people, in general have a different partition ratio, is immaterial since by law you are in violation if you have a blood alcohol level of .08 or greater using a 2100:1 ratio.

But under the generic driving under the influence law:

To be ‘under the influence’ within the meaning of the Vehicle Code, the liquor or liquor and drug(s) must have so far affected the nervous system, the brain, or muscles as to impair to an appreciable degree the ability to operate a vehicle in a manner like that of an ordinarily prudent and cautious person in full possession of his faculties.

Some years ago the California Supreme Court and other courts determined that evidence of an individual’s partition ratio is immaterial in a per se case because the law sets the ratio at 2100:1. But now in People v. McNeal the court decided that since the presumption that you are under the influence uses a 2100:1 ratio, a defendant may use evidence of his/her unique ratio or of the inaccuracy of partition ratios in general to rebut the presumption that he/she is under the influence in generic DUI cases.

Timmie Lance McNeal was arrested and charged with generic driving under the influence law and violating the per se law. At trial the evidence showed that he ran two stop lights. At the time of his arrest his eyes were watery and bloodshot. His speech was slurred and he smelled of alcohol. His blood alcohol ratio was measured at .10 using a breath test. The arresting officer testified that he failed all of the field sobriety tests. After the evidence was in his lawyer requested permission to reopen the defense case with evidence regarding the partition ratio. There was no showing of whether he/she wanted to provide evidence in general or more specifically related to McNeal. The jury acquited him on the per se violation and found him guilty on the generic allegation. The court denied permission. He motion for a new trial was denied and the appeal followed.

The California Supreme Court ruled that evidence regarding the partition ratio both as it specifically applied to McNeal and in general where 30 per cent of all people have a partition ratio other than 2100:1 is admissible to counter evidence obtained by a breath test using a partition ratio of 2100:1. But the court refused to reverse McNeal’s conviction because there was overwhelming evidence of his guilt and evidence of the partition ratio was unlikely to sway the jury.

Wednesday we looked at Texas v. Nguyen where a Texas statute requires confessions to be taped. In Massachusetts the state Supreme Court, using its supervisory powers over the courts mandated, that upon the request of a defendant a court must give a cautionary instruction to warn the jury of the danger of using an unrecorded confession. However that does not apply in Federal Courts.

Today we will look at United States v. Meadows, a case which was decided by the First Circuit Court of Appeals, Wednesday. It involves a charge of possession of a gun by a convicted felon. Timothy J. Meadows was arrested in Brockton, Massachusetts for possession of a gun by a convicted felon and sentenced to 15 years in prison.

Timothy Meadows and John DePina were passengers in a car driven by Timothy’s brother, Shawn. Brockton Police Officer, Richard Gaucher stopped the vehicle at the entrance to the Battles Farm housing complex for minor traffic violations. As soon as the car stopped, Timothy got out of the vehicle and began to run. Gaucher called for back-up officers. They questioned Shawn who told them that their sister, Tia, lived in the complex and that Meadows was the person who got out of the car and ran. Gaucher radioed in the information and he learned that a domestic incident had been reported earlier in the day at the residence. Gaucher noted that Meadows ran in a direction that would take him away from Tia’s residence. They searched Shawn and DePina. They found two bullets on DePina but they did not find a gun in the car. At this point the officers radioed that Meadow might have a gun. They went to Tia’s residence. She told them that Meadows was upstairs. They called upstairs and asked Timothy to come downstairs. They handcuffed him and took him outside to search him.

A mother and her daughter who lived in the complex told the officers that they saw Meadows get out of the car, run towards a particular area and fall. The officers went to the place where Meadows fell and found the gun.

At trial and on appeal Meadows challenged the admission of statements he made at the time of the arrest. He claimed that he was effectively under arrest at the time he was handcuffed. The handcuffing occurred prior to the finding of the gun and therefore at the time he was handcuffed probable cause did not exist to arrest him. If this is true, statements he made to the police, after his arrest but before he was read his Miranda rights should be excluded at trial as the fruit of an illegal arrest.

The court admitted that handcuffing is evidence, though not conclusive evidence that an individual is arrested. The government argued, and the court found, that an arrest did not occur. A limited Terry stop may be made for investigative purposes when the police have a reasonable suspicion that a crime occurred and that the detainee committed the crime. Such a stop is only valid as long as the police actions are within the scope of the reasons that led to the stop. However, it may be reasonable to restrain an individual during a Terry stop for officer safety reasons if the officers have specific reasons for believing that they may be endangered. In this case bullets were found and there had been a domestic incident at the house earlier in the day. The court found that the officers had a reasonable suspicion that a gun might be nearby and therefore handcuffing was reasonable. Furthermore the fact that Meadow ran when the car was pulled over was evidence that he might try to escape and therefore it was justified to restrain him.

Meadows also claimed that the statement should have been taped. But the court found that it is not bound by Massachusetts state law and that as an intermediary appellate court it does not have the authority to make such supervisory orders without directions from the Supreme Court or Congress.

Meadow objected to the jury being told that he is a convicted felon. Of course he was charged with possessing a gun by a convicted felon. He wanted the jury to be told that he was of a class of people that cannot possess a gun. However based upon precedent the court found that the District Court made the right decision in telling the jury that he was a convicted felon but not telling them the nature of the prior conviction.

The Nashville police have determined that Sahel Kazemi murdered Steve McNair as he slept on a couch in his condominium and then she committed suicide by shooting herself in the head.

Tuesday we discussed the scientific tests that would be performed in trying to prove whether or not Kazemi killed McNair. The tests showed that the five bullets shot (two into McNair’s head, two into his chest and one into Kazemi’s head) came from the gun that Kazemi bought a couple of days before the shooting. Gun residue was found on her hands, but not enough to be conclusive. No gun residue was found on McNair’s hands.

While its not an element of the offense the police often look at motive. Did Kazemi have a motive for killing McNair. Initially they looked like a happy couple. But further reseach determined that Kazemi thought that McNair had a new girl friend. She followed the suspected girl friend home but did not confront her.

Kazemi had major financial problems. Her roommate was about to move out, which would in effect double her rent. Together with McNair she had bought a Cadillac Escalade for which she was making payments. She was still making payment on a Kia which she was unable to sell.

At least twice in the week before she committed suicide she told friends that she was considering suicide. Her life seemed to be out of control.

According to the police she shot McNair while he was dozing on the couch. Then she positioned herself so that she would fall on top of him when she shot herself but she fell onto the floor on top of the gun.

C

The Bill of Rights, various other provisions of the Constitution, Congressional legislation and Court interpretations of these documents set certain rights that people in the United States enjoy. While a state cannot take away a right guaranteed by the Constitution or the Supreme Court it can grant people who live in the state greater rights than are guaranteed by the Federal government.

For example, in Miranda the Supreme Court ruled that Courts can only use statements made in response to interrogation by a person who was in custody at the time the statement was given if the person was warned that they have a right to remain silent, that anything they say may be used against them, that they have a right to an attorney and that if they cannot afford an attorney an attorney would be appointed for them. There are exceptions to the rule but the generally the rule remains in effect. But states can give greater rights.

For example, under Article 38.22, Section 2(a) of the law of the State of Texas the accused must be warned that:

(1) he has the right to remain silent and not to make any statement at all and that any statement he makes may be used against him at his trial;

(2) any statement he makes may be used as evidence against him in court;

(3) he has the right to have a lawyer present to advise him prior to and during any questioning;

(4) if he is unable to employ a lawyer, he has the right to have a lawyer appointed to advise him prior to and during any questioning; and

(5) he has the right to terminate the interview at any time.

Furthermore, and maybe more importantly, Section 3(a) of the law requires:

First, “an electronic recording” of the statement must be made. (12) Second, “prior to the statement but during the recording the accused [was] given the warning in Subsection (a) of Section 2 . . . and the accused knowingly, intelligently, and voluntarily waive[d] any rights set out in the warning.”

The requirement that the statement be taped is crucial for all. It prevents unnecessary trials when a defendant realizes what the jury is going to hear and encourages guilty verdicts. At the same time it keeps the police honest.

In Nguyen v. Texas The Texas Court of Criminal Appeals ruled on an appeal from the State of Texas in a matter interpreting Article 38.22.

At 4:00 am Dallas Police Officer Vance Johnson stopped a car driven by Nguyen for traffic violations. Michael Sanchez, the owner of the car, was a passenger in the vehicle. Johnson asked for permission to search the vehicle and Sanchez gave him permission. After finding methamphetamine in the car Johnson arrested Sanchez.

Sanchez waived his Miranda rights and told the officer that the methamphetamine belonged to Nguyen. Johnson arrested Nguyen for the traffic violations. Johnson gave Nguyen partial Miranda rights which did not comply with Article 3822 Johnson attempted to interrogate Nguyen but he asserted his right to an attorney. Not surprisingly, Johnson decided not to interrogate Nguyen.

The officers put both men in the back seat of Johnson’s vehicle. Without telling Sanchez and Nguyen their conversation was taped. Sanchez begged Nguyen to take responsibility for the drugs and Nguyen eventually agreed. He called Johnson, but Johnson was too busy searching Sanchez’s vehicle to pay attention.

Johnson returned to the police car. Sanchez told him that the drugs belonged to Nguyen. But Johnson, rightly remembered that Nguyen invoked his Miranda rights and refused to question him. Sanchez said he would not go down for “Nguyen’s shit.” Nguyen stated that he was charged with the same thing as Sanchez. Johnson corrected him and said he was only charged with traffic violations. Nguyen said that the drugs did not belong to either of them. Sanchez started yelling at Nguyen urging him to take responsibility. Johnson went back to searching Sanchez’s vehicle.

Sanchez continued to beg. Nguyen gave in again. Sanchez called Johnson and Nguyen reluctantly told the officer the methamphetamine was his. Sanchez was allowed to get out of the police vehicle. Nguyen was crying. Johnson found an ecstacy tablet in Sanchez’s vehicle. Sanchez was arrest for the ecstacy.

Nguyen was convicted of hindering apprehension. The Fifth Court of Appeals reversed and the state appealed to the Court of Criminal Appeals.

The state argued that since the officer’s violation of section three came prior to Nguyen alleged illegal acts (hindering) the statements should not be excluded. The Court disagreed. Section 3822 is a procedural evidentiary and rule and there is no exception in it for crimes committed after the officer’s violation.

Second the state argued that the statement should be admissible because at the time the statement was given Nguyen was in custody for vehicle violations, not for hindering. The Court found that a person is in custody when either they are arrested or their movement is restricted. Thus even if Nguyen had not been arrested for hindering his movement was restrained and therefore he was in custody.

Finally the state argued that Nguyen’s statements were not offered for the truth of the matter asserted but the plain language of the statute is to the contrary. It says:

“No oral or sign language statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless” the five statutory conditions are met.

The Court of Criminal Appeals confirmed the Court of Appeals decision reversing the conviction.

Saturday Nashville police found the bodies of former Tennessee Titan star quarterback, Steve McNair and his girlfriend, Sahel Kazemi, dead in her condo. McNair was found on a couch. He was shot four times. Kazemi was shot once in the head. A semiautomatic pistol was found underneath her body.

McNair’s death has been ruled a homicide. A homicide is any killing of a human being by another human being. With four bullets in his body, two of which were in his head and the other two in his chest it is unlikely that he killed himself and homicide is a pretty good bet.

As to Kazemi the issue is a little more complicated. At first blush it looks like she killed him and then shot herself. And this is probably what happened. But the Nashville police are being somewhat cautious and rightly so by looking at other possibilities. For example it is certainly within the realm of possibility that a third party killed both of them and left the gun there in order to make it look like Kazemi killed McNair and committed suicide. After all, his wife, if she knew about Kazemi, might have a pretty good motive.

Last night Nashville police announced that Kazemi purchased the gun from a private individual Thursday evening. But prior to making any conclusions the Police Department asked the Bureau of Alcohol, Tobacco Firearms, and Explosives to run ballistics tests.

The Nashville police will now use their crime scene investigation unit to either confirm or deny the murder/suicide thesis. They will do a gunshot residue test on Kazemi’s hands to find out if she held the gun when it went off. It will be relatively easy since she is dead. If she was living she could have washed her hands or wiped them off.

Then they will do various ballistics tests. As a bullet travels through the gun’s barrel it obtains markings from the “lands and grooves” which are spiral lines inside the barrel created during manufacture to improve accuracy. As the bullet travels down the barrel it becomes heated and the “lands and grooves” become implanted on the bullet. Once on the bullet they are known as rifling marks. In addition, inside the barrel there are microscopic imperfections known as striations which create unique markings on the bullets and casings. Using special microscopes police experts can not only compare the bullets to the barrel but they can shoot bullets from the gun and determine whether they have identical markings to the bullets used to kill McNair and Kazemi.

Furthermore the gun can be examined for DNA. DNA on the gun will then be compared to Kazemi’s DNA and the police will be able to determine whether or not she held the gun.

By the time these tests are done the police will have pretty good evidence whether it was a murder/suicide or whether a third party killed one or both of the people.

In People. Nguyen the California Supreme Court answers the question of whether a juvenile conviction, in which California does not grant a jury trial can serve as a prior conviction under Apprendi In Apprendi the United States Supreme Court ruled that in order to sentence someone to an aggravated sentence all facts must be determined by a jury or by admission. The Supreme Court left one exception to the rule and that is prior convictions. It said:

Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.

But, under California law, a finding that a crime was committed in juvenile court is an adjudication, not a conviction and as Justice Kennard points out in dissent one reason for this is that a juvenile is not permitted to have a jury trial.

Nguyen, as part of a plea bargain, plead to possession of a weapon by a convicted felon and submitted the question of whether a prior juvenile adjudication for assault with a deadly weapon was a strike under the Three Strikes Law to a Court trial. The court found that it was a strike and therefore doubled his sentence from 16 months to 32 months. If he had two strikes he would have been sentenced to a minimum of 25 years to life.

The majority gives two reasons for finding that an adjudication in a juvenile matter can be used a prior conviction in a three strikes case despite not being found to be true by a jury.

First in the adult matter all findings of fact are made by a jury. The jury is allowed to determine whether or not there is a prior conviction and whether the conviction is for a matter that comes within the purview of the Three Strikes Law. Since the failure to submit the juvenile case to a jury is not in the case for which the person is going to be sentenced the matter is not strictly one that comes under Apprendi.

Second, under Apprendi the issue which triggers the additional punishment is not the felonious conduct which lead to the juvenile adjudication, but rather the fact of the prior adjudication. As the Supreme Court stated in Apprendi it is the fact of the conviction, not the felonious conduct which increases the sentence.

If the issue is not the felonious conduct, but rather the fact of a prior conviction and if we assume that for purposes of the three strikes law a conviction and an adjudication are the same thing as the Court does then the defendant gets a trial on all matters which increase the sentence since he/she is entitled to a trial on whether or not there was a prior conviction.

But as Kennard points out the purpose for doubling the sentence for a prior strike is not the fact of the conviction but rather the fact that the individual continues to perform felonious conduct. Furthermore Appprendi justifies the prior conviction exception to the requirement that any fact used to increase a sentence must be approved by a jury by arguing that

unlike virtually any other consideration used to enlarge the possible penalty for an offense . . . a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees.

Thus if a prior conviction is only exempt from the need for being found by a jury if it is based on fair notice, reasonable doubt and a jury trial the facts of a juvenile conviction, found without a jury trial cannot be used to increase a sentence.