The FBI is using facial recognition technology to find criminal suspects. In an initial experiment they are taking booking pictures of suspects and comparing them to the 30 million facial photographs in North Carolina’s driver’s license files.

Facial recognition technology works by comparing approximately 80 landmarks or nodal points such as distance between the eyes, width of the nose, depth of the eye sockets, the shape of the cheekbones, and the length of the jaw line on each face. They are measured creating a numerical code, called a faceprint. This should create a unique numerical description. To verify the results skin biometrics are used which compare the unique skin textures.

The question is whether or not the search of the North Carolina driver’s licenses violates the Fourth Amendment. The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Well the search is certainly without probable cause. Nor is it “supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

But the question is whether it is reasonable. It is certainly only a minor intrusion into a person’s privacy. The vast majority of people will never know that their picture has been scanned. On the other hand Congress and the states have done much in recent years to attempt to maintain the privacy of driver’s license records and as a result people have an expectation of privacy in the records. But does that expectation include the right not to have law enforcement officers use the information found on one’s driver’s license. Probably not. We know that at least with probable cause a law enforcement officer can pull a vehicle over and demand to see the driver’s license. But that is with probable cause. But no expects there to be probable cause before an investigating officer looks at a rap or looks up a driving record.

Another point–this is not DNA or fingerprint testing. It is not nearly as precise. It narrows down the number of suspects but the final weeding must be done by a human being. A test of the technology at Boston’s Logan Airport was only 61.4 per cent accurate. Some factors which prevent a perfect recognition are significant glare on eyeglasses or wearing sunglasses, long hair obscuring the central part of the face, poor lighting that would cause the face to be over- or under-exposed, and lack of resolution (image was taken too far away).

As of now there are no appellate decisions testing the use of facial recognition technology. But we will be looking for test in the relatively near future.

The issue of what is a crime of moral turpitude is one that often comes up. It is raised in different situations. Its affects deportations, bar suspensions, and the ability to cross examine a witness regarding prior bad acts among other situations. In Jesus Lagunas-Salgado v. Holder a crime of moral turpitude is the cause of the plaintiff’s deportation.

Lagunas-Salgado was a lawful permanent resident when he was convicted of fraud involving identification documents in 2000. Three years later upon returning from a trip to his native country of Mexico he was arrested and threatened with deportation. He was found inadmissible due to the conviction and he was denied discretionary relief.

The question of what is a crime of moral turpitude is often difficult to determine. The United States Code does not define “moral turpitude.” The Seventh Circuit gives several definitions. First it quotes the BIA as saying

“conduct that shocks the public conscience as being ‘inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.’ ”

Second, and again quoting the BIA it says “The inquiry is a question ‘of the offender’s evil intent or corruption of the mind.’” The problem here is that the two definitions are contradictory. The first looks at it from the view of the public and the second looks at it from the intent of the perpetrator. It is certainly possible that a crime may shock the public without it being committed with evil intent and likewise a crime can be committed with evil intent without shocking the public. For example the BIA has found petty larceny and writing a bad check to be crimes of moral turpitude. These crimes may be done with evil intent but they hardly shock the public.

Third, the Seventh Circuit has said that crimes of moral turpitude are malum in se This common law concept applies to crimes that are evil in and of themselves as to contrasted to crimes that are malum prohibitum which involve crimes that are illegal only because a legislative body declared them to be illegal. But if this is true why do we need the terms crimes of moral turpitude. Why not just use the term, malum in se. there is no need for two terms meaning exactly the same thing and the law has long assumed that if you have two different terms they must have two different meanings.

Despite the confusion as to the meaning of “moral turpitude” the courts have refused to find the phrase to be vague. And in this case it probably doesn’t matter. If the phrase means anything it means a theft crime or a crime of fraud. and certainly the making of false ID’s to allow illegal immigrants to work is fraudulent and a crime of moral turpitude. The plaintiff’s claim that his actions did not injure the people who used his false ID’s has little merit. The subject of the fraudulent acts is the Federal government and the employers not the recipients of the false ID’s who knew the ID’s were false.

The First Circuit Court of Appeals found the Federal ban on juveniles possessing firearms to be constitutional despite claims that it violates the Second Amendment under Heller and that it is unconstitutional under the Commerce Clause.

The Court found that the prohibition in 18 U.S.C. Section 922(x)(2)(A) which limits possession of handguns by juveniles, with the exception of their use for hunting, self defense, and national guard duty, not to violate the Second Amendment. It points out that the Federal government has prohibited juveniles from possessing handguns since 1994 and that some states limited the sale of guns to juveniles as early as the latter part of the Nineteenth Century. Furthermore the founding generation limited the possession of guns by certain groups, in particular convicted criminals and the insane. From these examples the Court draws the conclusion that the founders would have approved of Section 922(x)(2)(A) and that therefore it does not violate the Second Amendment.

The Court also found that Congress did not violate the Commerce Clause when it passed the Youth Handgun Safety Act. Citing United States v. Lopez, 514 U.S. 549 (1995) the Court found that the Commerce Clause provided Congress with three types of power.

First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come from intrastate activities. Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.

Furthermore in United States v. Cardoza, 129 F.3d 6 (1st Cir. 1997) the First Circuit upheld the Youth Handgun Safety Act on the grounds that sales of firearms to juveniles affected interstate commerce and the power to ban the possession of firearms by juveniles is a correlated power. The First Circuit found that nothing in Heller affected Cardoza which remains good law.

Thus the court found that the limited ban on possession of firearms by juveniles in Section 922(x)(2)(A) to be constitutional.

Two questions that often come up in criminal cases are can a defendant withdraw his/her guilty plea and, if the defendant has an appointed counsel, can he/she fire the attorney and get another appointed attorney. Both questions are discussed in the Second Circuit case, United States v. Carreto, et al.

Josue Flores Carreto, Gerardo Flores Carreto, and Daniel Perez Alonso smuggled Mexican women, some of whom were under eighteen years old, into the United States and forced them into prostitution. They were indicted on November 14, 2004. They turned down all plea offers. On December 20, 2004 Alonso requested that he receive a new appointed attorney, claiming that his attorney had no interest in the case. The court held a hearing in which Alonso’s lawyer testified that he had seen him seven times for approximately one hour each. The court found no basis for the complaint and denied the request.

The appellate court found that the trial judge did not commit any error in denying Alonso’s request for a new attorney. Under Second Circuit law, the court must consider “the timeliness of defendant’s request for new counsel; (2) the adequacy of the trial court’s inquiry into the matter; (3) whether the conflict resulted in a total lack of communication between the defendant and his attorney; and (4) whether the defendant’s own conduct contributed to the communication breakdown.” The Second Circuit found that the trial judge fully considered the matter and that there did not appear to be a complete breakdown in communications. As a result it upheld the trial court’s decision.

On April 4, 2005 a jury was selected. The next day the defendants said they wanted to plead guilty. The judge carefully told them that there was no plea agreement on the table and that if they plead guilty they could receive a greater sentence that if they went to trial and lost. They insisted that they wanted to plead guilty and the court took their pleas to all twenty-seven counts.

Sentencing was continued and they were not sentenced for approximately a year. On the day of sentencing, Alonso had a new retained attorney and he moved to withdraw Alonso, guilty plea. The basis for the motion was that: “(1) defendants were not adequately advised of their right to testify at trial, (2) the court did not verify that the
plea was voluntary, and (3) counsel were ineffective in failing to obtain relevant documents from Mexico.” The court denied the motion on the grounds that nothing in the motion indicated that the defendants were innocent. While the law changes somewhat from jurisdiction to jurisdiction the rule in the Second Circuit requires that the defendants show a “fair and just reason” to withdraw their plea. Specifically the court must consider whether the defendant assert their innocence, the amount of time between the plea and the request to withdraw it and the prejudice to the government of a withdraw. The court found there was no evidence of a claim of innocence, that over a year passed between the plea and the motion to withdraw the plea. Furthermore the lengthy period between the plea and the motion to withdraw it would make it difficult for the government to find witnesses. The court also pointed to the extensive colloquy held at the time of the plea. Furthermore the transcript showed that they had been told about their right to testify. According to the court the Mexican transcript were not relevant to the question of guilt or innocence.

The Carretos were sentenced to 50 years each and Alonso was sentence to 25 years.

This is going too far. James Nichols was arrested for going to church.

Nichols is a convicted sex offender. North Carolina has a law that convicted sex offenders cannot come within 300 feet of any place intended primarily for the use, care or supervision of minors. Nichols was arrested on a Sunday afternoon after attending services at the Moncure Baptist Church. The Moncure Baptist Church has a daycare program for children.

Nichols’ arrest has three problems. The first is a factual issue. Can a church be a place intended primarily for the use, care or supervision of minors? I doubt it. The primary purpose of a church is to propagate religion and serve as a place of prayer. Second, it is vague. What is a place intended primarily for the use, care or supervision of minors? Would that include a residence where a family with children live? Would that include a courthouse which has a daycare center for children while their parents are in court? Would it include a public beach? Due process demands that laws be written in a way that people can know when they violate the law. Here there is no way to know what places the sex offender must avoid. Third and most important is that the law criminalizes First Amendment activity. The First Amendment states, in pertinent part:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .

The Fourteenth Amendment extended the First Amendment to the states and thus legislatures are prohibited from making any law which prohibits the the free exercise of religion. Nichols is challenging the arrest and the interpretation of the law. I hope he wins.

This is not to say that the church cannot forbid Nichols from joining the church or attending services. The minister or the congregation can ban him, although one of the goals of most churches is to bring sinners to religion. But the government cannot under the First Amendment prevent people from practicing their religion. Why don’t we leave the question to the minister and the congregation. They can determine whether they feel threatened by Nichols’ presence.

Last May the Ninth Circuit ruled that it was not a violation of Charles Byrd’s civil rights to be searched by a female sheriff’s deputy during a pretrial detention at Maricopa County (Phoenix) Durango jail. Apparently the Court is now having second thoughts because a majority of the judges on the Ninth Circuit voted to grant an en banc hearing where eleven of the judges will reconsider the issue.

During a search of his housing area in the jail for contraband, Byrd was ordered to strip to his underwear. Then a female cadet was ordered to search him including his groin area through his underwear even though male officers were nearby and could have performed the search. The opinion states:

When it was Byrd’s turn, the officers ordered Byrd to walk
over to the cadets, stand facing away from them, raise his
arms above his head, and spread his legs. O’Connell
approached Byrd from behind and conducted the search as
follows: She ran her hands across the waistband of Byrd’s
boxer shorts and pulled the waistband out a few inches to
check for anything hidden or taped inside; she did not look
into his boxer shorts. She lightly frisked over his boxer shorts
and down the outside of his thigh, stopping at the bottom of
the shorts. Through the boxer shorts, O’Connell moved
Byrd’s scrotum and penis with the back of her hand in order
to frisk his groin, applying light pressure to feel for contraband.
She then placed her hand at the bottom of his buttocks,
ran it upward over his boxers, and separated the cheeks to
search for any contraband taped, placed, or hidden inside

The original Ninth Circuit panel stated:

We are troubled by the overall circumstances
of the search in question. The scope of the search was
invasive in that it involved contact with Byrd’s genital region,
albeit through his boxer shorts. The embarrassment inherent
in such a pat down and partial strip search was amplified by
several factors: the cross-gender aspect; the fact that it took
place in the presence of many officers and cadets, one third
of whom were female; and that it took place in the presence
of a person with a hand-held camera, notwithstanding the fact
that the record does not give rise to the inference that Byrd’s
search was recorded.

But it found that the search did not violate the Fourth or the Fourteenth Amendments to the Constitution. It found that the search was done for a legitimate security need of the jail and it was done pursuant to jail regulations limiting the cross gender physical connection. Therefore it complied with the reasonableness requirement of the Fourth Amendment.

Judge Fernandez dissented from the panel’s finding that the search complied with the Fourth Amendment’s reasonableness requirement. While he admitted that cross gender searches might in some circumstances be necessary, he found no emergency or particular need for a cross gender search in this case and without an emergency he stated the reasonableness requirement was not met.

Now the Ninth Circuit will have a chance to review and reconsider its decision.

We all know that dogs have tremendous power to smell. We’ve heard numerous stories of dogs find lost people or track down criminals. Those of us old enough, remember the TV hero, Lassie who could find anyone or anything.

But recently law enforcement officers have initiated a new way to use dogs. Its called a dog scent line-up. It involves swabbing six individuals, one of whom is a suspect of a crime. Having a dog sniff an item associated with the crime. Then the swabs are places in individual cans. The dog smells the cans and theoretically picks the one taken from the individual associated with the crime. Does it work? Sometimes. But, using current techniques, not often enough to be trustworthy.

Take the example of Michael Buchanek, a twenty five year veteran of the Victoria County, Texas Sheriff’s Department. He was falsely accused of murdering his neighbor based on dog scent evidence. For five months he faced murder charges. He was cleared only when DNA evidence indicated the guilt of another person who was convicted of the murder.

In another case Juan Ramos spent five years on Florida’s death row for raping, beating, strangling, stabbing and killing an acquaintance. before the state’s Supreme Court found that the dog scent evidence was not trustworthy. In that case the dog, “Harass” sniffed Ramos’ cigarette pack and then was put in a room with five knives and five blouses. The dog then picked the blouse and the knife associated with the victim. Of course they were the only items in the room which had blood on them.

In one study in the Journal of Forensic Science by Lisa M. Harvey et al cited in a Hot Cup of Joe it was discovered that where the “suspect’s” scent was known to the dog the dog made the right choice 73% of the time. But where the scent was only known to the dog through training the dog only made the correct hit 67% of the time and where the “suspect” was a complete stranger the dog was only correct 25% of the time.

The Hawaii Supreme Court reversed a conviction for excessive speed because the government could not prove either that the laser device was tested pursuant to the manufacturer’s instructions or that the police officer had been certified according to the manufacturer’s procedures.

On appeal Abiye Assaye was represented by the State Public Defender’s office. Deputy Public Defender Ronette Kawakami said the decision has “far-reaching consequences” due to the large number of cases currently on appeal and it may affect future cases unless the police are able to properly train their officers and test their equipment.

At trial the Honolulu police officer testified that he used four tests to verify the working condition of the laser gun and that he had received a four hour in-house training. But the court found that since the government had been unable to show that the tests and the training were approved by the manufacturer there was insufficient proof that the laser gun was working properly or that the officer was properly trained to operate the device.

Over the past six months their has been a significant increase in the number of raids on marijuana in-door grows in residential neighborhoods, particularly in the Sunset district. There have been 36 raids since March. More than 8,000 plants, $85,000 and twenty guns have been seized. Nothing was seized at four of the residences which complied with California medical marijuana laws and city dispensary regulations. The raids have resulted in 44 arrests.

San Francisco Police Chief George Gascon and Fire Marshal Barbara Schultneis say that poor electrical wiring in residential marijuana grows has resulted in residential fires. There have been three marijuana-related residential five and a fire in a warehouse caused by poor wiring this year. Gascon has admitted that legalization of marijuana cultivation may lead to a decrease in marijuana-related fires.

The Supreme Court yesterday, as expected, granted certiorari to McDonald v. Chicago. In the 2007-2008 session of the Supreme Court, it decided District of Columbia v. Heller. In Heller the Supreme Court decided that the Second Amendment to the Constitution granted individuals a limited right to possess guns. Prior to Heller the general view was that the Second Amendment only grant a collective right to members of militias to possess guns.

Heller involved Federal law since it involved the District of Columbia. Therefore the Supreme Court did not decide whether the Second Amendment limited the ability of the states and local governments to control gun ownership. The Bill of Rights originally only protected citizens from the actions of the United States government. Over time the Supreme Court has gradually decided that the Fourteenth Amendment incorporated the various rights guaranteed by the Bill of Rights into the national law guaranteeing such rights against state and local limitations. However the Second Amendment has not been incorporated by the Supreme Court. This question will be decided in McDonald The Seventh Circuit took the traditional view following Nineteenth Century precedent in ruling that Heller is limited to Federal laws. On appeal the Supreme Court will rule whether it applies to state and local governments.

The traditional way to incorporate rights guaranteed by the bill of Rights is through the Due Process Clause of the Fourteenth Amendment, While Allen Gura, the attorney who argued Hellerr before the Supreme Court and who will argue McDonald will argue that the Supreme Court should use the Due Process Clause to incorporate the Second Amendment, alternatively he will argue that the Court should use the Privileges and Immunities Clause of the Fourteenth Amendment. Many modern scholars believe that the Privileges and Immunities Clause is the appropriate way to incorporate the rights guaranteed by the Bill of Rights. This will give us an opportunity to see whether the Supreme Court will adopt this theory.