As part of a robbery investigation Tampa police searched Kevin Dewayne Powell’s girlfriend’s residence. The found Powell and a gun. They read a warning to Powell prior to taking a statement. The warning said:

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.

This deviates from the normal Miranda warning in its lack of clarity about the defendant’s ability to have a lawyer present during the interrogation. While the warning read to defendants varies from jurisdiction to jurisdiction, most jurisdictions including all Federal peace officers use the wording found in Miranda v. Arizona:

[H]e has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.

The majority opinion holds that the Tampa warning does not deny the arrestee the right to know that he/she may have counsel present at the time of the interrogation. It states that the combination of the section tells the arrestee that he/she may consult an attorney prior to questioning and the section that says that the rights are available to the arrestee at any time should be sufficient to tell the arrestee that he/she may have counsel available during the interrogation.

But some future court may cite Powell for the proposition that an arrestee does not have the right to have an attorney in the room with him/her. They may claim that an arrestee, like a grand jury witness can only consult an attorney upon request who is waiting outside the room. This denies the arrestee of the right to receive suggestions from his/her attorney on what questions to answer and what questions not to answer.

But as Justice Stevens says in dissent

[T]he catchall clause does not meaningfully clarify Powell’s rights. It communicated that Powell could exercise the previously listed rights at any time. Yet the only previously listed right was the “right to talk to a lawyer before answering any of [the officers’] questions.

In our next post we shall consider whether or not the Supreme Court should have considered Powell in the first place.

In Arizona v. Edwards the Supreme Court ruled that once an individual asserted his/her Miranda rights during a custodial interrogation the interrogation could not resume until an attorney was appointed unless the suspect initiated the renewed interrogation. Yesterday in Shatzer v. Maryland, the court ruled that the interrogation could resume, even though the suspect did not initiate the renewed interrogation if a break in custody of at least two weeks occurred between the initial interrogation and the resumption.

In 2003 Hagertown, Maryland police officer Shane Blankenship interrogated Michael Blaine Shatzner regarding an allegation that he sexually abused his young child. At the time Shatzner was in prison on separate charges. Shatzner claimed his rights under Miranda to have an attorney present. The interrogation was terminated. Two and a half years later a different Hagertown officer renewed the interrogation. Shatzner told the officer that he thought the investigation had ended but he agreed to talk and in writing he waived his Miranda rights and gave an incriminating statement. His statement was admitted at trial and he was convicted.

On appeal he challenged the admission of the statement. The Supreme Court ruled that since the second interrogation was more than two weeks after the first, “there is little reason to think that his change of heart regarding interrogation without counsel has been coerced.” But by setting a two week “rule” the Court allows overly zealous police officers to arrest someone every two weeks, interrogate him or her and then release the suspect if a Miranda claim is made, only to repeat the scenario every two weeks until the suspect gives in. This is the very type of badgering Miranda was written to prevent.

The Supreme Court, yesterday, in Wilkins v. Gaddy reversed a Fourth Circuit Court of Appeal decision upholding a District Court denial of a habeas claim against a prison guard because the injury was only de minimus. The Supreme Court ruled, citing Hudson v. McMillian that while the amount of the injury might indicate the nature of the force used, it is the latter that determines whether the force was excessive, not the amount of the injury.

In a pro per complaint James L. Wilkins alleged that he was assaulted by an officer. Willkins alledged that Gaddy punched, kicked, kneed and choked him. Furthermore he alleged that Gaddy threw him into the concere floor. As a result of Gaddy’s actions Wilkins suffered ” multiple physical injuries including a bruised heel, lower back pain, increased blood pressure, as well as migraine headaches and dizziness” and “psychological trauma and mental anguish including depression, panic attacks and nightmares of the assault.” But he did not allege that his injuries required hospitalization or treatment. Therefore the District Court and the Fourth Circuit found the injuries to be de minimus and dismissed the complaint.. In reality, Wilking receieved medical treatment for the injuries.

In any case the Supreme Court, citing Hudson, ruled that the issue is not whether the injuries are de minimus or not but rather the nature of theforce used is excessive and reversed the lower court’s denial of the claim. It remanded for further consideration.

Well I thought I had heard everything. Then I read about Mehran Baranriz who, with his wife, owned an automobile repair shop in Redwood City, California. He was convicted of insurance fraud. He placed dead rat in customers’ cars. Then he told the customers that the rats had done damage to the vehicle and repairs were necessary. He would bill the insurance company for work that was not needed. If he couldn’t find a dead rat he’d use mice and paint them black so that they would look like rats. Over all according to San Mateo County District Attorney’s Office Baranriz billed 25 insurance companies for 236 false claims.

Over the past seven years Baranriz and his wife billed 1,2 million dollars for work that was never done.

Baranriz’s fraud was discovered by a State Farm Insurance audit. The audit found that while the average cost in California for vehicular rodent damage was $1900, Baranriz ’s average claim was more than $10,000.

Baranriz will spend the next four years in prison where he may see some live rats or some informants who are also known at rats.

The Fourth Amendment to the Constitution 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.

Generally the exclusionary rule prevents the admission of seized evidence, the seizure of which does not comply with the Fourth Amendment. But the Supreme Court decided in Leon that evidence seized pursuant to a search warrant that failed to comply with the Fourth Amendment was admissible as long as the officers seizing the evidence acted in good faith.

In United States v. Henderson the Tenth Circuit upheld the admission of child pornography, though the search warrant for the computer failed to comply with the Fourth Amendment. The affidavit supporting the search warrant stated that Special Agent Robert Leazenby received information that a computer with a particular Internet Protocol located at the residence of Harold G. Henderson downloaded and shared two videos each of which had a secure hash algorithm (a digital fingerprint) value associated with child pornography. But the affidavit failed to mention how Leazenby found out this information. Therefore the information was not sufficiently valid to meet Fourth Amendment requirements. But in any case since Leazenby acted in good faith in serving the seach warrant in that the search warrant was not devoid of factual support for the finding of probable cause, the evidence was admissible.

Jermario Taylor was driving his GMC Yukon when he was pulled over by Special Agents Dustin Brown and Jeff Martin for driving without a seatbelt. Now Brown and Martin were not any two cops. Rather they were with the Kankakee Area Metropolitan Enforcement Group, a drug task force located in Kankakee County, Illinois. When they stopped Taylor, do they give him a ticket and leave. No they ask to search his vehicle. when Taylor asks if he must give consent, Brown and Martin say no but we just so happen to have drug sniffing dogs in our vehicle and we will have them take a sniff around your car. We would not be talking about it if the dogs didn’t find drugs. They did and Taylor was eventually sentenced to 120 months in prison and eight years of supervised release for possession of crack cocaine with the intent to distribute it.

Of course Brown and Martin say that they ask everyone they stop for traffic violations if they can search their vehicle and use the dog if they find resistance. They were just lucky. Well if you believe this . . . I have a bridge to sell you. My bet is that they recognized Taylor and used the lack of seat belts as a pretext to stop him. Also while I do not know Taylor’s race I’d be willing to bet that he is African American and that he would not have been stopped and searched if he was White.

But the Seventh Circuit says, never mind, it doesn’t make any difference. As long as Brown and Martin had probable cause to believe that Taylor was driving without seatbelts in place, the vehicle can be stopped and the dogs can sniff for drugs. The intent of the officers is irrelevant.

The obvious question is why have a Fourth Amendment? Any time anyone drives police officers, if they follow you for long enough, will find probable cause to stop you. If its not the seatbelts, you cross the white line, or go one mile over the speed limit. I can’t believe that James Madison and George Mason would have approved of such a pretextual search when they wrote the Bill of Rights. I suspect they would have been quite upset if the British had used such a pretext to search a wagon load of guns covered with hay heading towards Lexington for use by the revolutionaries. But this is the twenty-first century where we are fighting a war against drugs and the ends justify the means.

The Eighth Circuit Court of Appeals upheld the conviction and 180 month sentence for possession of a firearm by a convicted felon in United States v, Kelley

Kelley was convicted after a bench trial in the District Court for the Western District of Missouri of possession of a firearm by a convicted felon. Two burglars were interviewed by the Greene County Sheriff’s Department. They admitted being involved in a string of burglaries and said that stolen guns could be found at the residence of Karlin Kelley. They called the residence and spoke to Kelley’s sister Tanya. Tanya told the burglars and Sergeant Stanley that the weapons were indeed at the house and she invited the officer to come over and get them. When Stanley and a number of other officers arrived Tanya invited them into the house and Kelley gave them written permission to search the house.

Kelley told the officers that the weapons were in a shed behind the house and he showed them the way to the shed.They seized the weapons. He was interviewed on at least two occasions and read his Miranda rights. He told the officers that the weapons were brought to his house and he agreed to keep them until sometime when they could go hunting without the kids there. Since he was a convicted felon and not allowed to possess guns in his house he put the guns in the shed.

On appeal, two issues were raised, the legality of the search and the denial of Kelley’s motion for judgment of acquittal at trial.

As to the motion to suppress, the court found that Kelley gave valid consent to the search. Kelley argued that his consent was a fruit of Tanya’s permission to enter the house and that she was coerced into doing so by the officer’s statements that he did not want another Waco, that he did not want anyone to get hurt, and that he did not want anyone else to raise her children. But the court found that there was sufficient evidence that the consent was given voluntarily. Tanya testified at the suppression hearing that she would have let the officers in without the threats. Therefore the court found that the permission was voluntary.

Furthermore the court found that there was sufficient evidence that Kelley knowing possesed the firearm. Possession can be either constructive or actual. “[C]onstructive possession requires knowledge of an object, the ability to control it, and the intent to do so.” The court found that there was sufficient evidence of constructive possession. Kelly admitted that he knew the guns were in the shed. In fact he moved them from the house to the shed. Furthermore he planned to go hunting with them.

The lesson for Karlin Kelley, and everyone else, particularly if you are suspected of a crime is not to talk to the police and not to give consent to any search. Anything you say MAY and WILL be used against you.

But, 180 months seem like a long time to spend in prison for holding on to the guns. The court said it reviewed the records and found the sentence to be legal.

Prosecutors released portions of Jaycee Lee Dugard’s diary. Dugard was kidnapped when she was eleven years old as she waited for a school bus outside her family’s South Lake Tahoe home. Last year after spending eighteen years in captivity she was found and released. Phillip and Nancy Garrido have been charged with kidnapping and raping Dugard, She had two children by Phillip Garrido who are now 12 and 15 years old.

Dugard’s diary shows mixed feelings towards the Garridos. At the same time that she wants to be ‘free” she says that she would never do anything to hurt them. Such feelings are consistent with the Stockholm Syndrome. The Stockholm Syndrome affects people who have been kidnapped and who spend long periods in captivity. Initially, after they are kidnapped they feel angry and shocked. But later they feel helpless and lack of control. It is not unusual for victims suffering from the Stockholm Syndrome to develop close feeling of attachment to their captors.

Experts in the field attribute these feelings to the total control that the captors have over their victims. The diary seems to support this thesis. Thirteen years into her captivity Dugard wrote, “It feels like I’m sinking. … this is supposed to be my life to do with what I like … but once again he has taken it away,” But she also wrote, “I don’t want to hurt him … sometimes I think my very presence hurts him. So how can I ever tell him how I want to be free. Free to come and go as I please … Free to say I have a family. I will never cause him pain if it’s in my power to prevent it. FREE.” This shows the mixed feelings of those kidnapped. When she received a kitten from the Garridos for her birthday two years after she was kidnapped, Dugard wrote in her diary, “I got (a cat) for my birthday from Phil and Nancy … they did something for me that no one else would do for me, they paid 200 dollars just so I could have my own kitten.” This certainly show the total control the Garridos exhibited over her.

The Ninth Circuit Court of Appeals ruled that California’s law against indecent exposure is not necessarily a crime of moral turpitude.

Victor Ocegueda Nunez entered the country illegally when he was fifteen years old. He is now 31, married to a United States citizen and they have three children all of whom are citizens. Homeland Security moved to deport him. An illegal alien who has been in the country for over ten years can apply for cancellation of removal unless he he/she has been convicted of a felony or more than two misdemeanors involving moral turpitude. Cancellation of removal is not available to anyone who spent more than six months in jail on a misdemeanor.

Nunez has two misdemeanor convictions one for petty theft, a crime of moral turpitude, and one for indecent exposure. Crimes of moral turpitude are nigh impossible to distinguish from other crimes. But generally they are are crimes that involve either fraud or “base, vile, and depraved” conduct that “shock[s] the public conscience.” For example theft crimes are crimes of fraud and therefore involve moral turpitude. It the intent is to seriously injure someone, such as murder, rape or kidnapping the crime has been found to be a crime of moral turpitude. Sex crimes are only crimes of moral turpitude if someone is injured as in the case of rape or “lewd and lascivious conduct toward a child.

Crimes of moral turpitude have been divided up into two group. Categorical crimes are those in which all violations of the law are crimes of moral turpitude. This involves crimes such as theft and rape. The second group, the modified categorical includes crimes where a conviction is possible for behavior that is not necessarily a crime of moral turpitude. In these cases the Immigration Court must decide whether whether the particular behavior is “base, vile, and depraved” and whether it shocks the public conscience.

Under California law crimes of indecent exposures involve three different types of behavior; 1) those meant to sexually excite the person exposing himself, 2) those meant to sexually excite someone else, and 3) those meant to insult someone. Not all crimes in all of the categories are crime of moral turpitude. For example the statute has been used to convict nude dancers. But nude dancing is not “base, vile, and depraved.” Likewise one may be convicted of indecent exposure for by showing your behind to someone who cuts in front of you while you are driving but again that is not “base, vile, and depraved.” Therefore, since the trial court did not specify the behavior resulting in Nunez’s conviction the Ninth Circuit remanded the case to the Immigration Court for a determination of whether or not Nunez’s conduct involved moral turpitude. If it did not he will be entitled to request a cancellation of removal.

The Ninth Circuit Court of Appeals upheld the blanket search of all inmates entering general population at the San Francisco County jails. In Bull v. San Francisco the court reversed a twenty-five year policy and allowed the Sheriff’s Department to strip search all inmates entering general population without an individualized suspicion or probable cause.

The District Court denied the sheriff’s request for partial immunity finding that the searches violated the Fourth Amendment and that the law was clear at the time of the searches. While stating that inmates do not give up all of their Fourth Amendment rights when they are incarcerated, the court found that inmate’s rights must be subject to the administrative and security needs of the institution.

However, the Ninth Circuit reversed alleging that Supreme Court precedent allowed the searches and required the courts to give deference to law enforcement officers in the area of inmate and deputy safety. Considering the problems that the San Francisco jails had with contraband entering the jail the court determined that the search policy was not unreasonable and therefore it did not violate the Fourth Amendment.

The dissent points out that the searches are not reasonable. Among the defendants challenging the searches is one who is charged with pour fake blood during a demonstration and another who is charged with writing bad checks. Furthermore only a small percentage of those who enter the jail bring contraband with them. The long history of litigation in the Ninth Circuits and most of the other circuits has upheld the need fior an individualized evaluation and not the blanket acceptance of strip searches accepted by the majority opinion.