Edith Hernandez-Mendez and seven young Hispanic men were hanging out across the street from Montgomery Blair High School (BHS) shortly before the end of the school day. The previous day a member of a Hispanic gang was stabbed a couple of miles from the school and the police gang unit decided to surveil the area around the school.

Members of the Hispanic gangs attended the school though apparently the police knew of no connection between students at the school and the stabbing.

The police saw four young Hispanic men across from the school. The four were joined by three other men and Hernandez-Mendez but Hernandez-Mendez stood some distance from the men. At one point however one of the men spoke with her. One of the men, wearing a red shirt ¹appeared to be leading a discussion.

Hernandez-Mendez walked away from the group. One of the police officers who were not in uniform followed her. The police officers decided to make contact with the young people. As the officers approached the men three walked in one direction and three in another. The one in the red shirt started running and got away.

Officer Doherty who was following Hernandez-Mendez was ordered to make contact. He detained her and eventually brought her back to where the men were detained. She was carrying a purse and a wallet. Officer Webster who was in charge the surveillance asked her for ID. She took a credit card out of the wallet. He asked her if she knew the man in the red shirt. She said she did not know anyone. Webster asked to look in her wallet. She let him. He found more credit cards, all in her name. He asked for picture ID. She said she did not have any. He asked for her purse. She refused it. He attempted to grab it and felt a hard object that could have been a gun.

She was arrested and convicted of possession of a gun by an alien and possession of a gun near a school.

At trial she moved to suppress the gun as the fruit of an illegal search. Her motion was denied and the conviction was upheld by the Fourth Circuit Court of Appeals.

A person can be detained if an officer “observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot. . . . [T]he officer must be able to articulate an objectively reasonable suspicion of criminal activity. However the officer may “draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.”

The Court found that Officer Webster properly relying “on his knowledge of Hispanic gangs in the area, his experience responding to gang-related incidents at BHS, and his observations during the surveillance” had “reasonable suspicion to stop the group of eight young Hispanic people gathered across from the school that afternoon” and frisk them.

Let’s be frank. The Supreme Court in Terry required specific and articulable facts that an individual had committed or was about to commit a crime prior to their being detained. The only specific and articulable facts available to Officer Webster and his crew upon which he could use his experience and training to stop and frisk the young people were their age and their ethnicity. This is profiling at its worst. Detention and frisking cannot be based solely upon ethnicity or age. There is no evidence that any of the young people outside the school were members of any gang ² or that they resembled any of the people associated with the stabbing. They had not committed any crime and there was no evidence against them. The search was illegal and the conviction should have been reversed.

Mohamed Osman Mohamud was arrested in a sting operation for Attempted Use of a Weapon of Mass Destruction. Mohamud, a 19 year old United States citizen, born in Somalia, is accused of attempting to detonate a bomb during the Christmas tree lighting in Portland, Oregon’s Pioneer Courthouse Square last Friday.

In December 2009, according to an FBI declaration supporting the arrest warrant for Mohamud, he sent an email to a friend in Pakistan involved in terrorist activities stating that he wanted to join his friend. The FBI intercepted the email and initiated a sting aimed at arresting Mohamud.

Mohamud’s friend gave him the email address for Abdulhadi, an associate that would help him. But Mohamud misunderstood the email address and was unable to contact Abdulhadi. An undercover FBI employee contacted Mohamud claiming to have received information that Mohamud wanted to become involved in terrorist activities. They agreed to meet in Portland, near Mohamud’s home town or Corvallis.

Prior to the meeting Mohamud wanted to travel to Asia but he was unable to travel since he was on the no-fly list. There was no evidence that he planned to explode a bomb in the United States until after he met with the undercover employee.

The undercover employee gave Mohamud five choices of things he could do to help the cause: 1)he could pray, 2)he could study and become a professional, ¹ 3) he could raise money for overseas actions, 4) he could become operational, and 5) he could become a martyr. Mohamud chose to become operational.To become operational meant to participate in terrorist activities. After several conversations Mohamud suggested bombing Pioneer Courthouse Square during the annual Christmas tree lighting.

But Mohamud did not know how to make a bomb or carry out the act. He was introduced to a second FBI undercover employee who would “make” the bomb and direct Mohamud on how to pull off the feat. The undercover employees provided the money, drove the vehicles and provided instructions. In the end they provided an inert device which did nothing when Mohamud tried to explode it. Immediately after he tried he was arrested.

Mohamud will be arraigned today in Portland. The question at trial will be whether the FBI undercover employees entrapped him. To disprove entrapment the government will have to show that Mohamud was predisposed to commit the crime prior to meeting the FBI undercover employees.

It is a close call and neither the declaration in support of the arrest warrant, the press releases, nor the information in the media gives all of the evidence so we will probably have to wait to trial. What we do know is that Mohamud did not consider bombing Pioneer Courthouse Square until after he met the undercover agents but that he chose the the target. We know that prior to meeting the undercover employees he was willing to join the cause in support of Fundamentalism in Central Asia but that he was on the no-fly list and had no way to get to Pakistan. We also know that he voluntarily agreed to the bombing and that he was anxious to participate. But we also know that the government provided the money, vehicles, drivers, know-how, and direction. When he saw the bomb, he said “beautiful,” having no idea that it was inoperable.

Lawrence Ray was going through a difficult divorce. He had custody of his daughter. His wife arrived at his house to pick up their daughter for visitation. She could see a man inside the house but no one answered the door when she knocked on the door. She called the police. They arrived but the man still did not answer the door. The officers called the local judge who wrongly issued an arrest warrant and told the officers that they could enter the house. They forced the door open. Mr. Ray’s father was the only one in the house. He said his son and granddaughter would be home soon. Lawrence Ray made contact with the cops and promised to deliver his daughter to the police station for the visitation.

Ray sued the police and the township for violation of his Fourth Amendment rights. The defendants were granted summary judgment on qualified immunity grounds. The Third Circuit Court of Appeals upheld the District Court’s decision. Qualified Immunity is granted when a plaintiff’s constitutional rights are violated by law enforcement officers and it was clear at the time of the violation that the rights were violated.

The defendants argued that their entry into the residence and search of the house was justified by an exception to the warrant requirement. They claimed that the community caretaking exception justified their actions. The community caretaking exception was developed by the Supreme Court in Cady v. Dombrowski. In Cady, a 1972 case, the Supreme Court allowed the search of a vehicle for weapons after police officers left the vehicle on the street following the arresting its driver. The search was not carried out as part of a criminal investigation but rather to prevent someone from finding the gun and injuring someone else. But the Supreme Court only applied the community caretaking exception to automobiles. It pointed out that automobiles are highly regulated. To the contrary residences are at the very core of Fourth Amendment protection and the the Third Circuit like most other circuits refused to apply the community caretaking exception to residences.

But the Third Circuit upheld the grant of qualified immunity to the defendants since their is a split among the circuits over whether to apply the community caretaking exception to residences and at the time of the search of Ray’s home the Third Circuit had not ruled on whether the community caretaking exception applied to residences. Therefore a reasonable police officer, at the time of the search could have believed that the search was legal.

Conservation Officer Jeremy King cited Dale Thurman for illegally baiting deer on property that his father owns. The property had a two story house on it with the address 1025 Zeller Avenue and a mobile home with the address 1035 Zeller Avenue. Thurman told King that he lived in the mobile home. After being cited Thurman asked King if he could use pistols to hunt deer. King told him he could. Thurman said he had pistols and pointed towards the two story house. King later learned that Thurman was a convicted felon and could not legally possess the pistols. He got a warrant for “1035″ Zeller, which the affidavit wrongly claimed was the two story house. In the affidavit it said that Thurman possessed “1035″ Zeller without giving any basis for the statement.

At trial and on appeal to the Eighth Circuit Court of Appeals Thurman argued that the magistrate did not have probable cause to issue a warrant for 1025 Zeller.

Of course the question is not whether Thurman lived at 1025 Zeller ¹ Rather the question is whether the affidavit exhibited probable cause to search 1025 Zeller. The Eighth Circuit said it did. Thurman’s pointing to 1025 Zeller when he told King that he had pistols apparently was sufficient cause to search the residence.

Thurman also argued that the affidavit did not particularly describe the place to be searched, a basic requirement under the Fourth Amendment. It described the residence as “the two story framed residential dwelling and outbuildings of 1035 Zeller Ave. located approximately one & two thirds mile north of Hwy. 96 on Zeller Avenue”. The Court found that even though the actual address was 1025 Zeller, the description provided sufficient guidance to the searching officers that they knew which residence to search and therefore it met the Constitutional requirements.

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In an editorial last week, The New York Times urged Congress to pass a law limiting border searches of computers to cases where agents have a reasonable suspicion of illegal activity and requiring probable cause and a judicially signed warrant to hold a computer more than 24 hours. Under current law any agent checking luggage or carry-on baggage at a border can indiscriminately search and detain a computer. A supervisor’s permission is only needed if it a laptop, smart phone, or similar device is held for over five days.

The New York Times points out that laptops are depositories of our most private information. But the issue goes much deeper. There are two primary reasons for border searches: 1) to enforce customs laws and 2) to prevent terrorist acts. Historically the purpose of border searches was to enforce tariffs and customs laws. But recently it has become necessary to prevent the importation of bombs and other weapons of terrorism. Certainly it is reasonable, under the Fourth Amendment. to perform searches to prevent acts, such as the attempt to import a bomb into Detroit. as was attempted by a Nigerian terrorist last year on Christmas. But searches of computer hard drives and memory sticks cannot produce either bombs or items for which tariffs are due. There is a significant difference between a search of a physical item such as an automobile or a suitcase and the search of an electronic memory. Physical items can be used as terrorist weapons or may have tariffs due on them but electronic items such as the memory on a computer cannot be used as a weapon and are not taxed. Few would object to the opening of a CPU to determine if a bomb or other contraband is hidden inside but this does not necessitate the search of the hard drive.

There is no need to detain hard drives or to search them. To detain them and search them, without cause, not only invades an individual’s privacy but may have a significant detrimental effect on the person’s business, schooling, or personal life.

Ahmed Khalfan Ghailani, the first Guantanamo detainee tried in a civilian court, was convicted of conspiracy to damage or destroy U.S. property but was acquitted of the remaining 281 ¹counts in the indictment related to the bombing of the United States embassies in Tanzania and Kenya in 1998. He was accused of procuring the truck and the gasoline tanks used in the attacks. He has said that he did not know what they were going to be use to attack the embassies. He is facing a minimum of twenty years in prison and a maximum of life without parole at his January sentencing.

The trial showed that the Guantanamo detainees charged with terrorist offenses can receive fair trials in civilian courts in New York. The jury was capable of looking at the evidence and picking which offense Ghailani was guilty of and finding him not guilty of the other offenses. The trial, unlike a military tribunal, met minimum due process requirements. The judge excluded a major witness whose testimony had been coerced by torture. In a military trial the coerced testimony would have been admissible and while not reliable would have been used. It would have raised doubts about the validity of the trial and may have resulted in further terrorist attacks against this country in response to what would have been a questionable conviction. But at the same time the judge made a number of decisions favorable to the prosecution which will probably be tested during an appeal. For example he refused to dismiss the charges even though Ghailani was tortured while in government custody. He ruled that even though the bombings occurred in 1998 and Mr. Ghailani was arrested in 2004 in Pakistan the trial met speedy trial standards.

We must remember that the test of the court system is not whether the defendant is convicted or of how many counts he/she is found guilty of but rather whether a fair trial under the Constitution is received. While the ideal is never reached the court showed that a reasonable trial could be conducted. The trial was the first and more tests will come. Certainly the appellate courts will have their say but the court certainly showed that the civilian court can do at least as good of a job as the military tribunals.

Jimmy Walden was convicted of drug-related offenses in Federal Court in Tennessee. He raised two issues on appeal. First he objected to the failure of the trial court to grant his counsel additional time to file motions. Counsel failed to timely file a motion to suppress evidence and the Sixth Circuit Court of Appeals agreed with the trial court that he did not have good cause to get an extension of time.

The second issue is whether there was sufficient evidence to support the conviction? But the appellate court ruled that Walden waived the issue when his attorney failed to move for a judgment of acquittal at trial.

Well the appeal appears to be just step one. Walden has plenty of issues to bring up in a writ of habeas corpus. No doubt he will claim incompetence of counsel for missing the deadline on the motion to suppress evidence, failure to show good cause for an extension of time, and the failure to make a motion for judgment of acquittal.

A Texas mother is accused of sexting a sixteen year old son of a friend. It is alleged that Lori Darling David texted two nude pictures of herself to the young man. For this she is facing twenty years in prison.

Find Law makes light of what I and I suspect most people would consider an outrageous sentence by pointing out that most people in the woman’s situation enter into a plea bargain under which they do not spend any time in prison. Well of course, if we consider the woman to be innocent until proven guilty as we must under our system of law, she is put into an impossible situation. She can either plead guilty, knowing that she is innocent and not be sent to prison or she can throw the dice and go to trial knowing that if she is found guilty she might get twenty years. If convicted at trial and perhaps even if she enters into a plea bargain she might be facing a lifetime registration requirement which may come with residential limitations preventing her from living anywhere near a school or a park where children play.

The Texas legislature is considering legislation that will make sexting a misdemeanor with a maximum sentence of one year in jail. But this law may not help David since it will be aimed only at minors. While it may be more offensive when adult sext minors it is still not worth twenty years in prison and the law should be changed for all.

In its first criminal justice decision of the 2010-1011 session, Abbott v. United States the Supreme Court tackled a split in the circuits over 18 U. S. C. Section 924(c). Section 924(c) criminalizes possession of a weapon while being involved in a violent or drug-related offense. It states in pertinent part:

(c)(1)(A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime -
(i) be sentenced to a term of imprisonment of not less than 5 years;
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years. . .

The question deals with the first phrase. Kevin Abbott and Carlos Rashad Gould in separate cases were convicted inter alia with violations of Section 924(c) Each argued in the trial courts and on appeal that the first phrase prevented them from being punished for violating the section. They claimed that since they were convicted of other offenses that mandated a minimum sentence of over five years they could not be punished for a violation of Section 924(c). After all the statute says, ” Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law.” Gould argued that the ten year mandatory sentence he received for possession of narcotics with the intent to distribute it prevented the court from imposing Section 924(c)’s five year mandatory minimum sentence and Gould argued that his fifteen year mandatory minimum sentence for possession of a weapon by a convicted felon also prevented imposition of the 924(c) sentence.

But the Supreme Court unanimoulsly ¹ruled that the “other provision of law” clause referred only to statutes that outlawed conduct identical to Section 924(c). It pointed out that the questioned language was added to the section in 1998 as part of an effort to strenghthen the law and accepting the defendant’s argument would weaken the law. Accepting the defendant’s interpretation would allow some defendants not to be punished at all for possessing a gun where they have a higher mandatory minimum under other provisions of law. Also because those convicted only of lesser crimes would get the additional five years and those convicted of greater crimes would not in some case those who are guilty of only lesser crimes might do more time than those guilty of greater crimes.

Considering these factors the Supreme Court decided that Congress could not have wanted the five year mandatory minimum to apply only to those not convicted of any other offense with a mandatory minimum of five years or less.

ICE claims to have definitively decided not to allow individual counties to opt out of its Secure Communities Program. A number of counties including California’s San Francisco and Santa Clara counties as well as Virginia’s Arlington County and Washington D. C. have requested to opt out of the program following the decision of the state Attorneys General to enroll the state in the program.

A community that signs up for Secure Communities electronically provides all fingerprints of those arrested and booked to Homeland Security’s Immigration and Customs Enforcement unit (ICE).

Theoretically, according to ICE, it only uses the information to deport the most serious violators of our laws. But, the truth of the matter is that the program has been used to deport numerous individuals who have no record or who have only infraction or misdemeanor records.

Furthermore, according to San Francisco Sheriff Michael Hennessy the program scares people into not reporting crimes. For example a mother may not report her husband for domestic violence if she is afraid that the father of her children and her only means of support will be deported. The same reasoning may prevent an elder person from reporting a child who is abusing her or a neighborhood kid who is writing graffiti on the walls.