Last year the Supreme Court held in Arizona v. Gant that law enforcement officials cannot search a vehicle, pursuant to a legal arrest when the suspect is out of the vehicle and is not within hand’s reach of the passenger compartment of the automobile.

Prior to the decision in Gant,Indianapolis police detained Dewayne Cartwright for driving a vehicle without a light illuminating the automobile license. He stopped his car in a grocery store parking lot but not in a legal spot. Cartwright was unable to produce a driver’s license and the police were unable to confirm the name he provided. They arrested him for driving without a license and providing a false name. After the arrest and following, then current, Seventh Circuit procedure, prior to Gant, the officers searched the car pursuant to a legal arrest. ¹ A gun was found in the back seat and Cartwright was charged with possession of a firearm by a convicted felon. He plead guilty, preserving his right to appeal the search of the vehicle, and he was sentenced to 84 months in prison.

Of course under Gant the search would be illegal. But the Seventh Circuit Court of Appeals upheld the search on inevitable discovery grounds. The Fourth Amendment does not ban all searches occurring without a search warrant. It states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, . . . ” Thus it only prohibits “unreasonable” searches and seizures. As a result the courts have developed a number of exceptions to the warrant requirement. One of those exceptions allows for inventory searches of vehicles prior to their seizure. In order to protect the police from claims of theft of the contents of a vehicle, a city may develop procedures to permit the search and inventory of a vehicle prior to storing a towed vehicle. Indianapolis had a well developed written policy providing for inventory searches. It allowed a vehicle to be searched if the driver was driving without a license and no passenger in the car had a license and is capable of driving the car. Cartwright’s passenger, Ciera Golliday, did not have a license even though she owned the car.

Another approved exception to the warrant requirement is the eventual discovery rule. It provides that evidence is admissible at trial even if it was seized illegally.if law enforcement officers, using their normal procedures, would eventually discover the evidence legally. The Seventh Circuit upheld the search since even though the search was illegal as a search pursuant to an arrest under Gant the gun would have eventually been discovered when the car was inventoried.

The issue of criminal contempt was raised in a case before the Circuit Court for the District of Columbia.

The defendant ¹ was convicted of second degree murder and sentenced to twenty-six years imprisonment followed by five years of supervised release. Following the sentencing the court held a hearing and sentenced him to an additional three years since the murder was a violation of a supervised release in a prior drug case. At the end of the hearing the defendant said “Fuck y’all” so that the judge and everyone else in the courtroom could hear him/her. The judge immediately sentenced the defendant to one year for criminal contempt, consecutive to the murder and drug sentences. A judge can summarily punish contempt if it is done in the judge’s presence and the judge witnesses or hears the contempt.

“Criminal contempt includes misbehavior of any person in [the court's] presence or so near
thereto as to obstruct the administration of justice.” The defendant appealed. He/she claimed that, while, he/she misbehaved, he/she did not obstruct justice and if he/she obstructed justice he/she did not do it with the required intent to do so. The defendant claims that he/she did not obstruct justice because the profanity was issued after the hearing was over. The court found that it is immaterial when the statement was said.
Whether it was during the hearing or after the hearing it showed disrespect for the court and therefore the judge was correct in finding contempt.

In support of the court’s finding the Circuit Court quoted the First Circuit Court of Appeals’ statement that:

One must appreciate that courtrooms, especially in criminal cases, are theaters of extreme emotion—stoked by the facts of the alleged crimes, the tensions of striving lawyers and hostile cross examination, and the fearsome stakes.Every trial judge knows how easy it is for matters to get out of hand. Indeed, the black robe, the call “all rise,” and the deference exacted by judges have their main warrant in the need for order. By its tendency to undermine order, a party’s deliberate cursing of a judge in open court can depending on the circumstances readily be viewed as obstructive.

But it is exactly because the extremely emotional and tense situation in a courtroom that some leeway must be granted, particularly when a jury is not present. People, at least those who, unlike lawyers, judges and judicial staff, do not spend their lives in courtrooms tend at times to say things they might regret later. These statements are often spontaneous ² and said without thinking.

The Circuit Court reduced the sentence to six months since six months is the maximum that a defendant can be sentenced without waiving his/her right to a jury trial.

The Ninth Circuit upheld a District Court grant of habeas corpus after California Governor Arnold Schwarzenegger overrode a California Board of Prison Terms recommendation that Fred McCullough be released on parole.

McCullough was convicted for the 1982 murder of John Kukis. Kukis was asleep in his car when Kukis hit him in the head, killing him, in order to steal money to buy drugs. He was sentenced to fifteen years to life. During his early years in prison McCullough had a number of disciplinary actions but eventually he became a model prisoner, earning a GED and a college degree in social work. He learned how to finish furniture and drive a forklift. He went to AA meetings and he volunteered for the juvenile offender deterrent program.

The District Court released him on his own recognizance when it granted his habeas. He immediately got a job for a furniture manufacturing company and has since been promoted to supervisor.

In denying him parole the governor found that “McCullough committed an especially heinous second-degree murder because he preyed upon and bludgeoned a sleeping, unsuspecting, and unthreatening man — ultimately killing him — for the remarkably trivial motive of stealing his money.”

But the Ninth Circuit found that the denial of parole can not be based solely on the convicting offense. It must be based on current dangerousness to the community. Finding that California law grants McCullough a due process right to be released on parole unless there is “some evidence” of current dangerousness the Court denied the State’s appeal. It cited the prison psychologist’s finding that McCullough was less dangerous than the average citizen. It found that a murder 28 years ago did not meet the “some evidence” rule for current dangerousness and it upheld the district Court’s decision.

California state courts have been flooded with claims by people required to register as sex offenders challenging the residency restrictions of Jessica’s Law. Jessica’s Law mandated that registered sex offenders live at least 2000 feet from any school, playground or place where children congregate. While this may sound good in theory it has caused a lot of problems. For one thing, there are whole counties in the state which have no residences or very few places that meet this qualification. At the same time many registrants are under conditions of parole that they live within a certain county.

Last February, the Supreme Court in In Re E. J held that the constitutionality of the residency restriction must be decided on a case by case basis. Since then numerous suits have been filed by those required to register. While these suits can crawl along at a very slow pace many judges have restrained the state from enforcing the residency restrictions against the individuals who have sued and some judges have gone so far as to order countywide bans on enforcement. In Los Angeles County the Superior Court has prohibited enforcement of the registration requirement countywide until the individual suits have been decided.

California State Senator Mark Leno is attempting to terminate the residency ban in order to improve public safety. The ban forces many sex offenders to live on the street. As a result of the ban over 2100 sex offenders, statewide, are homeless. Approximately one third of the states paroled sex offenders are homeless. This makes it more difficult for law enforcement officials to keep track of the parolees. California’s version of Jessxica’s Law was passed as an initiative in 2006. Since that time the number of homeless sex offender parolees has increased by 24-fold. In San Francisco 80 per cent of sex offenders on parole are homeless. But Leno has an uphill battle. Since it was enacted as a statewide proposition it either requires another statewide vote or a two thirds majority in the legislature. Jessica’s Law still has strong support in the legislature where Democrats do not want to appear to be soft on crime and Republicans want to support law and order. In order to be successful Leno will have to show his fellow legislators that amending Jessica’s Law will improve public safety by getting sex offenders off the street and improving the ability of parole officers and police to keep track of sex offenders whereabouts.

Poor Dr. Rafik M. Hanna. He can’t pay his child support. He has no problem renting cars. He has rented a Lexus, a Porche, a Jaguar, and a Audi. He has taken his girl friend on expensive shopping trips. He has vacationed on Catalina Island, Victoria Island and the Sun River in Oregon. He goes to the symphony and professional basketball games. He plays golf at championship courses.

But he can’t pay his child support. He moved his bank account to Canada in order to try to put it beyond the power of the United States courts. It is true that his license to practice medicine has been withdrawn due to his failure to pay child support but his family gives him gifts including $500,000 in a four year period.

After he moved from Illinois to Vancouver, Washington he was charged with violating the Federal Deadbeat Parents Punishment Act of 1998 ¹and sentenced to two years in prison. On appeal he claimed that he had insufficient income and that gifts were not included as his income. He also claimed that the gifts came with strings preventing him from using them for child support. ² You’ve got to give it to him he has a creative lawyer who probably knows nothing about family law. It is true that the Federal tax laws treat gifts different from earned income but ability to pay child support is based upon the parent’s ability to pay the child support using any money or assets possessed by the parent. Furthermore any strings placed upon the gifts apparently allowed Hanna to rent expensive cars and buy expensive gifts, he can use the money to pay child support. ³

So while no one likes to see anyone go to prison, we will not shed many tears over Dr. Hanna. After all when he was questioned by Special Agent Robin Bonn of the U.S. Department of Health and Human Services why he did not pay his child support he said: “I am not going to use my life lines to pay child support. I’m using them to pay myself.”

According to a study by the Death Penalty Information Center (DPIC) the number of people executed in this country continues to decline. The number of people executed this year will be less than half the number executed in 1999 and 12 per cent less than last year. In 1999 there were 98 executions this year there have been 46. This year 114 people were sentenced to death as compared to 234 people in 2000. Even major death penalty states like Texas and Virginia have seen major declines in the use of the death penalty. California which has more people on death row than any other state has not had an execution in over four years.

Time Magazine lists four reason for the decline. First there has been a change in public opinion. A DPIC study shows that only one third of the people prefer the death penalty when compared to death without parole for murderers. Second, growing state deficits and the considerable cost of death penalty appeals and executions. Third, the growing public awareness that the justice system is not perfect and that innocent people can be executed. The use of DNA testing has brought into question a number of death penalty sentences. In one Texas case scientists have found that there was no basis for the conviction and execution of a man convicted of killing his children through the use of arson. Fourth,the regional disparities in the use of the death penalty. The majority of people executed are in the South. the attorney general of Ohio says that small counties, unlike larger counties can no longer afford to use the death penalty.

Colorado officials arrested the author of “The Pedophile’s Guide to Love and Pleasure: a Child-lover’s Code of Conduct” on a warrant out of Polk County, Florida. Grady Judd, the Sheriff of Polk County set up a sting to catch Philip Ray Greaves II. His deputies purchased a copy from Greaves. When he sent the copy Judd had Colorado deputies arrest Greaves in his hometown of Pueblo. He is charged with obscenity.

The book includes first person observations of pedophilia allegedly written by children. Florida laws prohibit the “distribution of obscene material depicting minors engaged in conduct harmful to minors.” But presumably Greaves will challenge the law on First Amendment grounds. It is one thing to commit pedophiliac acts. It is another to write about pedophilia. As Kristen Wyatt and Tamara Lush point out in the Huffington Post would Polk County officials arrest Vladimir Nabokov for selling “Lolita”.

I have seen no allegations that the book contains obscene pictures and the alleged statements by children who have been the subject of pedophiles are clearly fiction. Greaves denies personally having sex with children. Thus the only allegations can be that he wrote a book advocating pedophilia and that that he sent the book from Colorado to Florida. Both of these activities are protected by the First Amendment.

Andrew B. Sallenger lived with his mother, sister, and her four children in Springfield, Illinois. He was schizophrenic and suffered from bipolar disorder.

Shortly after midnight on April 30, 2002 he had a major psychotic break. His sister, Kim Nolan, called the police. They arrived shortly after 2:00 am. Sallenger, a large man was running around the house nude, and out of control. The police eventually subdued him, placed him in handcuffs and hobbled him. A hobble is a cord that is looped around the lower legs and connected to the handcuffs. If the hobble is not properly applied it can result in death. ¹ Shortly after the hobble was applied Salenger stopped breathing. The question before the court is whether the officers acted reasonably, as is required by the Fourth Amendment, after discovering that Salenger stopped breathing. The officers testified that they immediately applied CPR and summoned an ambulance. However both the officers and Sallenger’s estate, which was suing the officers and the town of Springfield for violating his Fourth Amendment rights, agreed that police Lieutenant Mark Bridges arrived at the residence shortly before the officers initiated CPR and called the ambulance. But there was a seven minute gap between the original radio transmission saying that Sallenger was not breathing and Bridges’ transmission saying he was on the scene. The implication is that the police waited seven minutes before they removed the hobble, initiated CPR and called the ambulance. But Bridges testified that with the chaos at the residence he may not have radioed in his location until seven minutes after he arrived. During that period he helped to provide emergency care to Sallenger. Therefore the Seventh Circuit upheld the trial court’s finding of summary judgement on the Estate’s claim that the officers failed to provide proper medical care to Sallenger after applying the hobble.

A second claim before the Seventh Circuit was the Estate’s claim that the trial court wrongly granted summary judgement on the count alleging that the City of Springfield failed to train its officers on the proper use of the hobble. But since the jury found in two trials that the officers did not improperly use the hobble, the city could not be held liable for failing to train the officers in the proper use of the hobble.

Andre Johnson was convicted of possession of a gun by a convicted felon, possession of cocaine and possession of a weapon in connection with a drug offense.

An undercover officer, Jason Bolte, parked his car in a high crime area on the west side of Cincinnati. A car with three people in it pulled up and parked behind him. A passenger wearing a gray hooded sweatshirt got out of the car and made a transaction, trading money for a couple of small piece of a white substance. Bolte called for uniformed officers to make the arrest. Johnson, no longer wearing the sweatshirt, attempted to flee when the officers tried to perform a pat shirt on him. An officer used a taser on him. He fell to the ground revealing a gun in his waistband. He was arrested. The car was searched. The sweatshirt was found. Crack and powder cocaine were found in its pockets.

After he was indicted he moved to suppress the evidence found in the vehicle. The Court ruled that the original detention was a valid Terry stop. In Terry v. Ohio the Supreme Court ruled that an officer could temporarily detain an individual if he/she had “a reasonable suspicion, supported by articulable facts, that criminal activity has occurred or is about to occur.” Based upon Bolte’s observation of the crack purchase the officers easily had a reasonable suspicion. Finding the gun gave the officers probable cause to arrest him. ¹ An arrest would provide probable cause to search Johnson. To search the vehicle they would need probable cause to believe that they would find evidence in the car. Since Johnson was in custody and could not obtain a weapon from the car. But they had probable cause to believe that the gray sweatshirt was in the car and the court felt that they had probable cause to look for ammunition.

During the trial Johnson complained to the judge that his lawyer had not properly told him about the possible consequences of a conviction and that if he had known he would have accepted the proffered plea bargain. The judge said “Mr. Johnson, you’re the person in this room with felony convictions and that makes your credibility suspect. I know [your attorney] to be a capable, talented, honest attorney whose intentions are always to represent his client to the best of his ability.” The Sixth Circuit while admitting that the statement might not be appropriate did not find it to violate the Constitution or to mandate a reversal of the conviction. The Court refused to hold a hearing on whether the lawyer was providing incompetent counsel. To provide incompetent counsel the lawyer must not only act in a way that competent counsel would not act but the lawyer’s actions must result in injury to the defendant. Since at the time of the request, the trial was in progress the judge refused to hold a hearing since she did not know the effect of counsel’s actions on the conclusion of the trial. Therefore the appellate court found no error on the part of the trial judge and it pointed out that Johnson could file a writ of habeas corpus challenging the lawyer’s representation.

A defendant has an absolute right to testify or not to testify at his/her trial. When the judge found out that Johnson planned to testify she asked Johnson’s attorney if he had gone over the possible consequences of Johnson testifying with Johnson. (If the lawyer was so great–see above, the judge should have assumed that the lawyer as any decent lawyer would have done had gone over the possible consequences with Johnson.) She then told Johnson that if he testified the U. S. Attorney would be allowed to cross examine him about the details of his prior conviction. She then called a recess so Johnson could talk the matter over with his lawyer. On appeal Johnson claimed that the judge’s lecture scared him into giving up his right to testify. The appellate panel disagreed saying that the judge was merely explaining his rights to him so that he could make an intelligent choice and upheld his conviction.

A California appellate court denied an appeal based upon a claim that sheriff’s deputies illegally entered the curtilage of a residence to search the property. The curtilage of a property is a somewhat vague property law term referring to “the land immediately surrounding and associated with the home.” That area beyond the curtilage is considered “open fields.”

Like the house itself the curtilage is protected by the Fourth Amendment from unreasonable warrantless searches. The area considered open fields is not protected. Richard Lieng lived in a rural area of Mendocino County, California. On two occasions, without search warrants, Mendocino County sheriff’s deputies drove onto a long private driveway used by Lieng and at least three of his neighbors. Richard and Tony Lieng were convicted of marijuana related offenses as a result of marijuana found as a result of a search warrant of the property. At some point the deputies got out of their vehicle and walked the rest of the way up the driveway. While they could not see into the residence they could smell the odor of growing marijuana, coming from a metal workshop along the driveway.

The appellate court considered four factors in determining whether the deputies violated Lieng’s Fourth Amendment rights by entering the curtilage of the residence. The first factor is “the proximity of the area claimed to be curtilage to the home.” Generally the curtilage is no more than 100 yards from the house. While the evidence showed that at one point the deputies walked up to the shed that was 150 yards from the house, there was no evidence showing how close to the house the deputies.Therefore the court sided with the state on the proximity factor. The second factor is whether the area is enclosed. While there was a gate it was open and there was no fence shutting the area off. The third factor is the use of the land. In this case it was a driveway available to the public. The final factor is efforts taken to protect the area. While on cross examination the deputy was asked about the presence of a no trespassing sign, he did not remember it and there does not appear to have been any direct evidence that it existed. Considering the factors the court found that the deputies did not violate the curtilage.

Several other factors were raised. The deputies used night vision goggles. The court ruled that the goggles were permissible. Unlike a thermal imaging device the goggles do not allow the officers to determine conditions inside the residence which are the heart of Fourth Amendment privacy rights.

Furthermore while the deputies may have been wrong when they stated in the affidavit supporting the search warrant they type of lights they saw in the metal shop and in the garage the error was not material. the defendants argued that there was not probable cause for the search warrant. But the court ruled that the evidence discovered when the deputies were on the driveway provided sufficient evidence to justify the warrant.

What this case shows is a failure of the burden of proof. In a motion to quash a search warrant the defendant has the burden of proof. Here there is no mention of defense witnesses. Such witnesses, for example, could have testified about the presence of a no trespassing sign. If there was a fence around the yards, witnesses could have proved that and the functionality of the gate. On cross examination defense counsel could have pushed the deputies into testifying how close he got to the residence and a defense witness could have testified about the distance.

Of course there could have been strategic reasons for not using defense witnesses. For example they may have been forced to testify about the constant odor of marijuana. But if you are not going to take your best shot at winning the motion, why do it?