The Delaware Supreme Court upheld drug and driving charges against Brandon Hill.

New Castle County, Delaware Police conducted random vehicle registration searches along Route 273. They stopped Hill and discovered that he had a suspended license, lacked proper registration and proof of insurance. Officer Torres ran Hill’s record. It came back that he may be armed and dangerous. After a back up officer arrived Hill was pat searched. They found $390 in cash ¹ and a number of cell phones. They then requested and received permission to search the vehicle, They ordered a dog to sniff the vehicle. They found two large plastic bags filled with 32 plastic baggies containing crack cocaine and six Oxycodone pills.

On appeal Hill asserted that the police had no reason to detain him after the pat search and that everything seized after the search must be suppressed. But Hill’s counsel failed to raise this issue in the trial court and therefore the appellate court will only reverse the decision if there was plain error. The Supreme Court refused to do so. It found the officers had a reasonable suspicion of criminal activity based upon Hill’s driving without a license, the information that he may be armed and dangerous, ² nervous fidgeting and the finding of the money and the cell phones.

Considering all of these issues the court found that the denial of the search motion was not Hill plain error and it affirmed the conviction.

One exception to the warrant requirement that we have not discussed in this blog permits inventory searches of seized vehicles. When seizing a vehicle police are allowed to inventory the contents of the vehicle in order

“[1] to protect an owner’s property while it is in the custody of the police, [2] to insure against claims of lost, stolen, or vandalized property, and [3] to guard the police from danger.”

The Supreme Court requires that prior to an inventory search the police department must have a policy limiting the discretion of officers performing the search. The policy must take into consideration the underlying purposes of inventory searches and they can not be solely for investigative purposes. They must provide standardized criteria for performing the search in the first place and for determining the scope of the search.

Eric Wayne Mundy was stopped by two Philadelphia police officers for making an illegal turn and for having excessively tinted windows. During the stop the officers discovered that the car was not registered and under Pennsylvania law an unregistered vehicle may be impounded. It must be inventoried prior to towing.

Prior to the inventory search of Mundy’s vehicle the police obtained the keys to the trunk. They searched both the interior of the car and the trunk. In the trunk they found a gray plastic bag containing a closed shoe box. They opened the box and found a brown paper bag containing two baggies with cocaine.

Mundy was charged with possession of over 500 grams of cocaine. He moved to suppress the evidence. The motion was denied. He was convicted and appealed the denial of the motion. He claimed that the Philadelphia Police Department’s inventory search policy gave too much discretion to the police officers in that it did not specifically allow or prohibit the search of closed containers.

The Police Department’s policy stated in part:

[T]he investigating officer[] shall . . . :
1. Have the operator and occupants exit the vehicle and remain on
location . . . .
2. Complete the Towing Report by conducting a vehicle inventory
describing any damage and/or missing equipment, personal
property of value left in the vehicle by the operator/occupants[,]
including the trunk area if accessible.
NOTE: No locked areas, including the trunk area, will be
forced open while conducting an inventory.

The Third Circuit Court of Appeals found that the ban on forced opening of locked areas allows the police to search unlocked containers or those for which they obtain a key. Here the police had a key to the trunk and the items in the trunk were not locked. Therefore the search was legal and the conviction was upheld.

Being a judge does not mean that you are very bright. United States District Court for the Eastern District of Wisconsin Rudolph T. Randa sentenced Jose Figueroa after a drug trial in which he was found guilty of distribution of cocaine and conspiracy to sell cocaine to 235 months in prison. However it was not the sentence that causes Randa to have his IQ questioned. After all, believe it or not, 235 months was the bottom of Figueroa’s guidelines. But it is some of the things Randa said at sentencing that got him criticized by the Seventh Circuit Court of Appeals.

Not only did the judge question Figueroa’s Mexican heritage but he questioned Figueroa’s immigration status, as well as that of his wife and three sisters. He brought up unnecessary references to Hugo Chávez, Iranian terrorists, and Adolf Hitler’s dog. He told Figueroa that he ought to be happy that he is doing time in an American jail instead of in Mexico or Turkey. He should also be glad, according to Randa, that he is not in Thailand or Malaysia where he could be sentenced to death. He claimed that American have a greater respect for the rule of law than in some other countries including Mexico.

You guessed it. The Seventh Circuit remanded the case for resentencing with a different judge.

The Court of Appeals of Virginia has joined a number of other courts in finding that attaching a GPS device to a car while it is parked on public property and maintaining contact with the car while a suspect is driving it is not a violation of the Fourth Amendment.

David L. Foltz is a convicted sex offender. He was employed and used a company truck in the course of his employment. He had permission to use the truck to drive to and from work and to stop to go to treatment meetings on his way home. The police knew that there was a series of sexual assaults in the area around his work and his meetings. They further knew that the modus operandi was similar to that used by Foltz in the past.

They attached a GPS unit under the bumper while the car was parked on the street near Foltz’s residence. The unit had the power to keep track of his travel and and to allow the police to track the vehicle in real time.

Five days later a sexual assault occurred. The police checked the GPS log and discovered that the truck was in the area of the crime. The following day they followed the van without using the GPS. They saw Foltz attempt to assault a woman and arrested him.

He was charged with abduction with intent to defile. He moved to suppress the evidence on Fourth Amendment grounds. The motion was denied. He went to trial and was sentenced to life in prison. On appeal the court upheld the denial of the suppression motion. The United State Supreme Court in United States v. Karo held in 1984 that it was not a violation of the Fourth Amendment for a supplier to put a beeper in an ether container and for the police to follow the vehicle by using the beeper.

The Virgina court and several other courts have found Karo to be precedent. They ruled that if it was not a violation of the Fourth Amendment to place a beeper in an ether container and follow the vehicle using the beeper, it is not a violation to attach a beeper to the bumper and electronically follow the vehicle. In both cases electronic devices are being use to accomplish a task that could be done with human eyes. If Foltz drove the truck where he could have been followed by the police in an unmarked vehicle then tracking the vehicle with an electronic device is not a violation of Foltz’s Fourth Amendment privacy rights.

The test for a Fourth Amendment violation is whether the government violates a subjective expectation of privacy that society recognizes as reasonable. While Foltz parked his car on the street, I suspect that if he knew that a GPS device was being attached to the vehicle he would have believed that his privacy was being violated. In fact, if I looked out my window and saw someone putting something under my bumper I would not only think that my privacy was being violated but I may think that it was a bomb and call the police. Certainly, if Foltz parked his car in his garage and officers entered the garage to place the GPS device on the vehicle we would all agree that Foltz had a legitimate expectation of privacy and that the government violated it. But because Foltz is not wealthy enough to have a garage the court finds that he does not have a legimate expectation of privacy. A Fourth Amendment right should not be based upon the wealth or poverty of the defendant.

But what I don’t understand is in many states, including Virginia, a defendant can be required to surrender his/her Fourth Amendment rights in order to be put on probation. If Foltz had been required to surrender his Fourth Amendment rights when he was put on probation prior to his current arrest he would not have been able to move to suppress the evidence and the GPS issue would not have been raised. In many states new laws mandate that sex offenders must wear a electronic monitor at all times allowing the authorities to keep track of them. Apparently this was not the law in Virginia at the time of Foltz’s arrest but it is certainly becoming more common. We will no doubt be seeing cases challenging these laws on Fourth Amendment grounds in the future.

The Ninth Circuit en banc upheld the decision to dismiss Mohamed v. Jeppesen Dataplan.

In Jeppesen, Binyam Mohamed and four other plaintiffs sued Jeppesen, a CIA contractor for their seizure in foreign countries and transportation to other countries where they were tortured and interrogated as part of the government’s extraordinary rendition program. In this manner the government avoided the protections provided defendants and detainees accused of terrorist related crimes.

After the plaintiffs filed their complaint the government received permission to intervene in the matter and moved to dismiss the case on the grounds that the charges involved matters of national security and state secrets.

The decision points out that there are two ways to dismiss a case where state secrets may be disclosed at trial. One involves where the subject matter of a suit is a state secret. This is called a Toten Bar after the 1876 case in which spies for the government sued to enforce a secret agreement to pay them for their work against the Confederacy in the Civil War. While all of the plaintiff’s claims in Mohamed involve government secrets Toten has never been invoked in cases not involving the government as a party. While some of the Circuit judges wanted to base the decision on Toten the majority instead based the decision on United States v. Reynolds, 345 U.S. 1, 11 (1953)

Reynolds created a rule of evidentiary exclusion. It permits the exclusion of evidence involving national secrets. But in rare cases where there is insufficient admissible evidence without using state secrets for the plaintiff to make a prima facie case or to allow the defendants to put forth defenses it allows for the dismissal of a case. Basing its decision on Reynolds the Ninth Circuit ruled that without the use of sate secrets there is insufficient evidence for Jeppesen to defend itself.

The problem with this, as the dissent points out, is that since Jeppesen has not answered the complaint yet we do not know what evidence they will need to defend themselves. According to the five dissenting judges the government’s motion was untimely and it should only be considered when and if Jeppesen requests discovery of documents or the deposition of individuals which would reveal state secrets. But the majority say the motion can be brought at any time and it is clear that the case cannot be defended without exposing state secrets which would affect the nation’s security.

As all of the judges admit dismissing a case and denying the plaintiffs justice and compensation for what appears to be serious injuries is an extreme measure and should not be taken lightly. The majority expresses a number of alternatives most of which require Congress to award compensation to the plaintiffs for their injuries. The dissent points that this is an abrogation of judicial responsibilities. It is hard to see how Congressional action would be more protective of national secrets than judicial action.

I would suggest that in exchange for the courts hearing the matter that the plaintiffs be asked to waive a jury trial and a public hearing. The trial could be conducted by declarations filed under seal. In other cases attorneys have been required to get security clearances and the Courts have limited which legal personnel can review secret documents. For example this has been done with national security documents used in the Guantanamo habeas proceedings. At least 28 judges on the Ninth Circuit have already seen the secret documents and no harm has been accomplished. The trial court can fashion procedures maintaining the secrecy of state secrets. In this way the plaintiffs can be compensated for their injuries and the state secrets can be maintained.

The Third Circuit Court of Appeals ruled that probable cause was not necessary to support an order for historical cellular tower data,, also known as cell site location information (CSLI) which among other things provides the location a cell phone call is made from.

The Stored Communications Act which allows for the issuance of orders for CSLI based on a showing of specific and articulable facts establishing reasonable grounds specifically excluding tracking devices. ¹Of course most searches require a search warrant and probable cause. But comparing the use of cell phone information to tracking devices that do not follow the caller into their home the Court found that a search warrant is not necessary to obtain the telephone information. Under 18 U.S.C. § 2703(d) only order following an ex parte hearing is necessary.

However a magistrate has the discretion to require probable cause if there is a proper showing. Section 2703(d) states that a court order for disclosure under . . . may be issued by any court that is a court of competent jurisdiction and shall issue only if an intermediate standard that falls between a strong standard which requires probable cause for a search warrant and a weaker standard necessary for a subpoena exists. The combination of the use of the language “may be issued” and “only if” makes the requirement that there be a showing of specific and articulable facts establishing reasonable grounds a minimum standard but not a necessary standard, allowing a magistrate upon a proper, but unstated, showing to require a stronger showing such as probable cause in a proper case. The Court remanded the case to the trial court to determine whether the government has made a proper standing.

Despite Warren Jeff’s victory reversing his conviction for aiding and abetting the rape of Elissa Wall for his role in the compelled marriage of the fourteen-year-old girl to her nineteen-year-old first cousin, Allen Steed, he still has plenty of problems. The leader and “prophet” of the Fundamentalist Church of Jesus Christ of Latter-day Saints not only faces a possible retrial of the Utah case but he also faces a Federal trial for being a fugitive from justice and a trial in Texas for bigamy, aggravated sexual assault and assault charges over alleged incidents with underage girls at a church ranch. Charges in Arizona, however have been dropped.

In Texas Jeffs is facing a maximum of 99 years in prison. The Arizona prosecutor did not want to waste state resources trying someone who may end up spending the rest of his live in a Texas prison. Likewise the Utah prosecutor may decide not to retry Jeffs if he is convicted in Texas.

Yesterday, Jeffs, in a Utah courtroom, refused to waive extradition, setting up a extradition hearing. Such hearing are generally very simple matters since the only real issue is whether Jeffs is the person wanted in Texas. Generally it involves a fingerprint expert testifying that a set of fingerprints from Texas belong to the same person as a set of fingerprints taken from Jeffs when he was booked in Utah. If Texas does not have a set of his fingerprints it is not difficult to find another means of proving his identity.

Thus the only reason to refuse to waive extradition is to buy time. Considering that he is facing 99 years in Texas this may not be a bad idea. His attorney, Walter Bugden, says that he wants the retrial of the Utah case to occur prior to the extradition to Texas, since extradition to Texas may delay the Utah retrial for several years. But Utah’s Attorney General Mark Shurtleff wants the Texas trial to go first. After all if Jeffs gets 99 years in Texas there is little reason to retry him in Utah.

While an extradition hearing is fairly simple, bureaucratic delay in communications between Utah and Texas may take some time and the next hearing is two months off. Jeff’s attorney may then try to appeal the extradition order and in some states that could take years. But at the same time there are post-decision motions that need to be heard in the Utah Supreme Court and a new trial may take a while. So don’t expect a decision any time soon.

On April 9, 2009 at least three people invaded the Beulah, Florida residence of Melanie and Byrd Billings, murdering them and stealing a safe. Ten of their children, eight of whom were special needs children the couple had adopted were home at the time but none of them were injured.

Escambia County authorities charged eight people in the case. Leonard Patrick Gonzalez Jr., Leonard Gonzalez, Sr., Donnie Ray Stallworth, Wayne Thomas Coldiron, Frederick Lee Thornton Jr., Gary Lamont Sumner, and Rakeem Florence. were charged with murder. Florence, a juvenile was charged as an adult and plead guilty to second degree murder. The eighth person, wealthy realtor, Pamela Long Wiggins was charged with being an accessory to the the crime. Her car was used as the get away car and a safe ¹stolen from the property was buried in her back yard.

Friday, Wiggins, her husband Hugh, and a friend, Eddie Denson were indicted in Mississippi as accessories after the fact. The Wigginses brought a number of guns ² used in the invasion of the Billings residence to Denson who lived in Mississippi to keep after the murder.

Hugh Wiggins had been given immunity in Florida in exchange for giving a statement. But the immunity did not prevent him from being indicted in Mississippi. Accepting a grant of immunity has a number of problems, not the least of which is that immunity is limited to the jurisdiction that grants it. In other words immunity granted in one states does not prevent an indictment in another state. Likewise immunity granted in Federal Court does not prevent an indictment in state court and immunity granted in state court does not prevent an indictment in Federal Court.

One may question the judgment of Hugh Wiggins’ attorney for letting him get immunity in Florida when he is facing charges in Mississippi but the decision may have been a wise choice. In Mississippi he is only facing five years while his wife ³ is not only facing five years in Mississippi but she is also facing thirty years in Florida.

Thanks to television and the movies the myths about the Miranda rights are infinite. If I had a dollar for every time a client told me that their case must be dismissed because they were not given their Miranda rights I’d be a very rich man.

Of course that is not true. The Miranda rights mean what they say “Everything you say may be used against you . . . But if they don’t plan to use any statement you make they don’t have to give you the Miranda rights.

Furthermore the Miranda rights only apply to statements made while you are in custody as a result of interrogation. Thus if your not in custody, i.e. if you are free to leave, or if you make the statement freely without being asked the statement can be used against you even if you are not given the Miranda rights. Statements made despite the lack of being given the Miranda rights can also be used in cross examination.

And I can assure you that any police officer with half of a brain can find some way to make it look like a statement is given either while the person is not in custody of not as a result of interrogation.

An example occurred in the prosecution of Michael Slaight for receiving pornography on his computer. But the Seventh Circuit, in a decision written by Judge Richard Posner, saw through it and reversed the conviction.

Through viewing internet cites used by viewers of child pornography state and federal agents found out that Slaight received child pornography in interstate commerce, a violation of Federal law. they had enough information to obtain a search warrant for his house and his computer. In fact they had enough information to arrest him but they didn’t because they wanted him to give a statement while he was out of custody.

They went to his house. When he didn’t answer the door, nine officers knocked it down. They ordered him to get dressed. They asked him to voluntarily come to the police station. Knowing that he didn’t have a car they offered to let him drive himself to the station. Once at the station, two officers interrogated him in a small room. Repeatedly, they told him he could leave at any time. but he would have had to trip over an officer to get out of the interrogation room and since they already had enough information to arrest him he did not believe they would let him go. At the end of the interrogation they read him his Miranda rights and arrested him.

In the end Judge Posner’s decision found that an average person in Slaight’s position would not feel free to leave due to the show of force at his home, the protracted questioning of him in the claustrophobic setting of the police station’s Lilliputian interview room, and the more than likelihood that he would be formally placed under arrest if he tried to leave because the government already had so much evidence against him.

San Francisco Sheriff Michael Hennessy requested that San Francisco opt out of U.S. Immigration and Customs Enforcement’s (ICE) Secure Communities Program.

Secure Communities is a program under which the fingerprints of everyone arrested in a community are provided to ICE. However under San Francisco’s Sanctuary City ordinance only those immigrants who are charged with felonies, found to have a previous felony or ICE contact in their criminal history are reported. Initially ICE promised that only those charged with felonies would be subject to deportation.

As a study quoted in the New York Times shows nationwide twenty-six per cent of those deported under the program do not have criminal records. In some places the percentage is higher. In Maricopa County, Arizona the percentage is fifty-four per cent and in Travis County Texas it is eighty-two percent. By ICE’s own records seventy-nine percent of those deported either had no criminal record or convictions for minor offenses.

Prior to the June 8th implementation of Secure Communities in San Francisco, ICE and California Attorney General Jerry Brown told Hennessy that there was no way to opt out of the program. But in response to statistics showing that many of the people deported are innocent or are guilty of only minor offenses and ICE has agreed to make the plan voluntary. They have agreed to meet with Hennessy to discuss the city’s objections to the program. As Hennessy has pointed out in the past many immigrants are intimidated by the program and refuse to report criminal activity due to fear of deportation. A wife may not report domestic violence, for example if she knows that her husband may be deported. She want medical help for herself and treatment for her husband but she does not want him to be deported where he will not be able to support her and have contact with their children.