The Ohio Supreme Court reversed a drug conviction where the trial court admitted into evidence call logs from a cell phone seized as part of a search incident to arrest. At the same time the United State Supreme Court granted cert on a case of a post office employee who’s text messages on a government supplied pager were searched by the local police department.

The Ohio Supreme Court in State v. Smith rejected the position of the Fifth Circuit Court of Appeals that a cell phone was similar to a container seized during a search incident to arrest which can be searched without a warrant. Instead the Ohio court found that a cell phone is more like a lap top computer in that it carries considerable personal and private data. As a result a search warrant is necessary to search data found therein after it is seized during a search incident to arrest.

The Ohio case involved a police informant who made a telephone call to her supplier to set up his arrest for the police. When he was arrested the police seized his telephone. It has long been the law that one of the exceptions to the Fourth Amendment’s warrant requirement allows police officers to search the area around a person at the time of his/her arrest. The purpose for the exception is to protect the officers from possible harm while making an arrest. The Ohio court found that unless seizing the data on the phone was necessary for officer safety a search warrant is necessary to search the data in the phone.

To me data transferred on a telephone whether if be oral data or electronic data mandates a strong level of protection. We have all sorts of private data on our phones and we do not expect the government to be tapping into the data except in the most urgent of situations. Government surveillance of the data should only happen with the protection of a search warrant signed by a judge. In Katz v, United States and its prodigy the Supreme Court set tight restrictions on tapping into telephone conversations. The same restrictions ought to be invoked prior to the search on data on a cell phone or any other phone.

The black letter law is that “a federal habeas court will not review a claim rejected by a state court if the decision of the state court rests on a state law ground that is independent of the federal question and adequate to support the judgment.” A state procedural ruling is adequate if it is “firmly established and regularly followed.” In Beard, Secretary, Pennsylvania Department Of Corrections, et al. v. Kindler the Supreme Court decided whether a rule giving the courts discretion could be “regularly followed.”

Joseph Kindler, Scott Shaw and David Bernstein, burglarized a music store. Shaw and Bernstein were arrested while attempting a get away. Kindler escape but was found and arrested. Bernstein turned state evidence. Kindler and Shaw killed him. They were tried and sentenced to death for the murder.

While post trial motions were pending, Kindler escaped to Canada. He was arrested in Canada and the United Stated moved to extradite him. He escaped for a third time and it took two years to find him but he was arrested after committing another burglary. This time he was extradited.

While he was on the lam Pennsylvania courts threw out his post trial motions since he was not legally before the court. After he was returned to the United States he moved to reinstate his motions. The court refused and he filed writs of habeas corpus first in the state courts and then in the Federal Courts.

The Third Circuit Court of Appeals granted his habeas finding that since Pennsylvania law gave the judge discretion on whether or not to dismiss the motions when he fled the jurisdiction the law was not “regularly followed.”

The Supreme Court reversed. It pointed out that laws that give judges discretion are often valuable and provide beneficial rights to defendants. The court felt that the Third Circuit position would would discourage states from discretionary laws and the system would be harmed as a result.

Justice Kennedy in a concurring decision pointed out that the purpose of the “the adequate state grounds” requirement is not to aid escapees and that if for no other reasons this requires the reversal of the Third Circuit ruling.

I’m in trial. There will be no post today and they will be sporadic for the next several days.

Zadik Shapiro

In a per curiam opinion the Supreme Court upheld the search of a Michigan residence, using what it called the emergency aid exception to the Fourth Amendment’s warrant requirement.

Brownstown Michigan Police Officer Christopher Goolsby went to a residence to investigate a man acting out. He found a pickup in front of the house with the fender messed up. He found a man yelling and screaming inside. The man, Jeremy Fisher refused to let Goolsby and his partner into the house without a search warrant. Goolsby saw drops of blood on the hood of the pickup and on some clothes in the truck. When he refused to open the door, Goolsby broke in. At this point, Fisher pointed a gun at him. Fisher was charged with assault and with using a gun in a felony.

Fisher’s attorney brought a motion to suppress on Fourth Amendment grounds. He won the motion and the Michigan Court of Appeals upheld the dismissal. The Michigan Supreme Court agreed to hear the case but changed its mind after hearing argument.

The United States Supreme Court granted cert. the Court found that the facts came under the Emergency Aid Exception to the fourth Amendment’s Warrant requirement. The Supreme Court defined the emergency aid exception as to allow “law enforcement officers [to] enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.” While Fisher was obviously not seriously hurt someone else in the house may have been. Therefore, according to the court the search was reasonable and a proper application of the Emergency Aid Exception.

Justice Stevens (joined by Justice Sotomayor) dissented. They believe that if the trial court heard the case and the testimony of the officer and still felt that their was insufficient evidence to say that an emergency existed the Supreme Court should not get involved and leave it to the local courts.

Last week Texas executed Bobby Wayne Woods for the rape and murder of his girlfriend’s eleven year old daughter, Sarah Patterson.. He also abducted Sarah’s brother Cody and left him for dead in a cemetery. But Cody survived and testified at Woods’ trial.

In 2002 the Supreme Court ruled in Atkins v. Virginia that execution of the mentally retarded violated the Eighth Amendment’s ban on cruel and unusual punishment. The American Psychiatric Association defines a mildly retarded individual as one who has an intelligence level significantly below average, has a significant limitations in adaptive functioning in at least two basic area, and the onset of the problem accrued prior to the age of 18. Generally a person is considered to be mildly retarded if the IQ level is between 55 and 70. But the court did not set a hard line at an IQ of 70. It left the exact definition of retardation to be decided by the states. The Supreme Court held that to execute the retarded violates the “evolving standards of decency,” and therefore is cruel and unusual punishment.

Bobby Wayne Woods dropped out of school in seventh grades. He has been described as barely literate. His IQ has been tested many times, the first while he was in grade school. The results have varied considerably. The last two tests occurred while he was in prison and were commissioned by his defense team. They found him to have an IQ of 68 and 70 which considering the other factors indicate that he is mildly retarded under the Atkins criteria. However, earlier tests showed him to have a higher IQ. The highest reading being 80, well below average but not retarded. His attorneys argued that the earlier results should be disregarded due to the use of less modern techniques. Texas’ attorney general argued to the contrary the more recent results were done by his defense team and therefore must be suspicious. The Texas Courts and the United States Supreme Court which refuse to grant an emergency stay Thursday sided sided with the State of Texas.

Myron Sawyer was convicted for a Little Rock bank robbery. He appealed his conviction on various grounds including denial of his motion to suppress evidence found in his car and denial of his Miranda motion.

A masked robber wearing a green jumpsuit entered the bank and waved a gun demanding that everyone lie down. Then he produced a bag and ordered the teller to fill it up. He jumped up on the counter to make sure the bag was full. While filling the bag the teller put an electronic tracking device in the bag. As he left a man saw him running across the street and followed him in his car. The man saw two men driving a gold Saturn and followed the vehicle. He saw a third man sit up in the back seat. Eventually the onlooker returned to the site of the crime and provided the information to the police. The police following the electronic tracking device found Sawyer shortly after he parked at a convenience store. A green jump suit and a gun were found in plain view in the vehicle.

Sawyer was arrested and taken to the police station. He was read his Miranda rights and he asserted the right to remain silent. He was left in the interviewing room. An officer went to the bank and found a shoe print on the counter. The officer returned to the station and asked Sawyer to show him his shoe. Sawyer complied with the request. The shoe matched the imprint. The officer made some comments about the evidence that had been found. Sawyer began to ask questions. The officer read Sawyer his Miranda rights. This time Sawyer waived his Miranda rights and gave a full confession.

Initially, to detain Sawyer at the convenience store the police must have had a reasonable articulable suspicion that a crime was committed and that Sawyer was involved in the crime. Sawyer argued that the initial detention was illegal and that the evidence found in the Saturn was a fruit of the illegal detention and should be suppressed. The Eighth Circuit found that the police needed a minimal level of objective justification for the search. The court found that this was met by the witness seeing the car leaving the site of the crime, the reckless driving of the vehicle and the electronic tracking device leading to the area where the car was found.

The court found that the police rigorously complied with the initial assertion of Sawyer’s Miranda rights and that a sufficient period of time lapsed between the two times the Miranda rights were given to prevent harassment and therefore the waiver of the second reading of the Miranda rights was valid allowing for the admission of the confession. Furthermore prior to the reading of the Miranda rights the second time Sawyer initiated the conversation.

Of course, I have a bridge to sell to any anyone who believes that the police officer who told Sawyer about the shoe imprint and the other evidence did not hope that Sawyer would start talking about the incident and confess. This happens all of the time. The most famous incident is known as the Christian Burial Speech. In Brewer v. Williams, the defendant was arrested in Davenport, Iowa for the murder of a ten year old girl in Des Moines. His lawyer told him and the officers not to discuss the case on the trip to Des Mones.While being driven to Des Moines by offices one of the officers began talking about how the body had not been found, that it was about to snow and if the body was not found the girl would not get a Christian burial. He then directed the officers to the body. In that case the Supreme Court set aside the conviction. But the basis was the Sixth Amendment right to counsel since the officer by intentionally eliciting Williams’ statement violated their promise to his lawyer not to ask him about the incident.

While the officer did not admit to be eliciting Sawyer’s, confession there is no doubt in my mind that is why the officer discussed the evidence in front of him. But the court found the confession to be admissible.

Shortly before Cecil Johnson was executed by Tennesee authorities yesterday, the Supreme Court voted seven to two not to hear a last minute request for a stay. Justices Stevens and Breyer dissented. Stevens writing for himself and Breyer continued a theme started in his 1995 dissent to Lackey v. Texas. In both dissents he argues that the extensive period between a defendant’s conviction and his execution violates the cruel and unusual punishment ban of the Eighth Amendment.

Cecil Johnson spent nearly 29 years on death row after being convicted for the murder of three people in a convenience store robbery.

Justice Clarence Thomas wrote an opinion concurring in the denial of certiorari in opposition to Stevens. He claims that defendants should not be allowed to make Lackey claims after taking advantage of the various time-consuming tools our system gives them to appeal a conviction. Furthermore, he argued that there is no precedent in this country for a Lackey claim and that foreign precedents should not be considered.

Justice Stevens argues that this is a particularly strong case for finding an Eighth Amendment violation since much of the delay can be attributed to the state. It was not until 1992 that the Tennessee legislature granted defendants the right to obtain significant evidence impeaching eyewitness testimony against them. The state caused delay and the extreme length of the delay gave Johnson a particularly strong to an Eighth Amendment Lackey claim. But an hour after the Supreme Court rendered its decision Johnson was put to death by lethal injection.

An informant told Detective Josh Davis of the North County Metropolitan
Enforcement Group in Chesterfield, Missouri that David Wise and Brian Sievers were growing marijuana in Sievers’s basement.

Detectives Davis, Jeffrey Seerey, and John Cochran went to Sievers’ house for a “knock and talk.” They knocked on the door. Sievers answered it. The officers identified themselves and told Sievers the purpose of the visit. Sievers said, “Who ratted me out? That’s all I want to know.” [Brilliant, an admission.] The officers then read Sievers his Miranda rights. Sievers then gave a full confession including telling them that there were over a hundred plants in the basement (actually there were 312) and that his friend David Wise was in charge of caring for the plants. [Now who is ratting who out]

After the officers searched the house, with Sievers consent, [Brilliant] he took them to Wise’s St. Louis residence.

This time Seerey and Cochran did the “knock and talk” while Davis stayed in the car with Sievers. They knocked on the door, as Wise is leaving. They ask him if he would prefer to talk outside or inside. Wise says inside. [Just what the officers wanted--a chance to get inside.] Then Wise invites them into his bedroom away from his family. He looked nervous so the officers did a pat search and found a packet of marijuana in his pocket. Seerey tells Wise about the visit to Sievers’. residence. Wise says he doesn’t believe the officers. They bring Davis and Siever inside. Siever tells Wise, “They’re onto us, they got the whole grow.” [Another admission] Wise is read his Miranda rights and he gives a complete statement incriminating himself and Sievers.

Prior to trial Wise moves to suppress his confession, statements, marijuana packet and marijuana seeds found on his dresser. Motion denied.

On appeal the Eighth Circuit in United States v. Wise confirmed the conviction holding that there was sufficient evidence to convict Wise, that the statements were properly admitted and that the seizure of the marijuana packet and the seeds were legal.

Surprise, surprise, you voluntarily talk so much both before and after the Miranda warnings and then the evidence is used against you. On top of that you invite the officers into your bedroom where marijuana is in plain view and then they dare to seize it.

If Sievers and Wise had not opened up their big mouths they would not have been arrested. Apparently the informant had not provided enough information for a search of the residence. Otherwise the officers would have gotten a search warrant. But by talking the defendants gave the officers enough information to search their residences and to arrest them. They also gave them the information used to prove the case at trial. I do not know how many times I have told defendants that “Anything you say can and will be used against you.” Police don’t ask question unless they need the information to hurt you and they are smart enough to use whatever you say against you.

The United States Supreme Court granted the writ of habeas corpus of George Porter, Jr. in so far as it reversed a finding of the Florida Supreme Court that he be sentenced to death.

Porter was convicted of the murder of his ex-girlfriend and her boyfriend. In the penalty phase of the trial the only evidence admitted on his behalf was the testimony of his ex-wife and the reading of sections of a disposition regarding his relationship with his son and evidence about his behavior when intoxicated. After the trial he filed a writ of habeas corpus charging incompetence of counsel during the penalty phase of the trial.

At the hearing on the writ considerable evidence came out that could have been used at the penalty phase. He was a decorated Korean War hero. He had fought valiantly during some of the most horrendous battles. As a result he probably suffered from post traumatic stress syndrome. His childhood was extremely abusive. His father attacked him frequently. His father often attacked his mother in his presence. He was considered a slow learner and he had to go to special classes.He quit school at age 12 or 13. A psychiatrist testified that he suffered from brain damage.

Yet the trial attorney did no investigation and none of this evidence was admitted at the penalty phase. The trial court and the Florida Supreme Court did not make findings on whether the trial attorney was incompetent. But they ruled that even if the evidence had been admitted it would not have made a difference. They pointed out that he had gone AWOL while in the military and in their opinion this would have discounted the military evidence. They pointed to the government psychiatrist who without seeing Porter testified that he did not have post traumatic stress syndrome.

Based on this evidence the Supreme Court found that there is “a probability sufficient to undermine confidence in [that] outcome” and granted the writ in so far that it reversed the death penalty.