Raymond Kelly has a tough job. He’s the New York City police commissioner and he has to keep explaining why his officers keep showing up in court and I don’t mean as witnesses. Last week eight of them were charged with gun smuggling and Friday sixteen were charged with fixing traffic tickets.

There is no evidence that any of the sixteen received any money for any of their actions. Primarily they were getting tickets removed from court files for friends and relatives. The general pattern was that an officer would be approached by a friend. Then the officer would call an officer who had access to the court files or to an officer who knew someone who had access to the files and would ask that the ticket be removed.

The investigation uncovered 800 fixed tickets. The DA charged 300. Many cases included a number of officers. Officer Eugene P. O’Reilly was charged in 250 cases and other officers were charges in over 100 cases.

Robert Simmons was convicted of being a felon in possession of a firearm and ammunition. He appealed on Fourth and Fifth Amendment grounds.,

His housemate called the police and complained that a couple of days beforehand Simmons threatened him with a gun. The police arrived at 1:00 a.m. His housemate was waiting for them. Simmons was in his bed.

Simmons got up and the police asked him questions in the hallway about whether he had a gun, where the gun was located and disputes he had with his housemate. Simmons was cooperative and told the police that he had a gun in his room.

The police then searched the room.

The questions raised on appeal was the admissibility of Simmons answers to the police questions since they were asked without the giving of Miranda warnings and the admissibility of the items found in the room including the gun.

The Second Circuit found the statements admissible under the Fifth Amendment exception to the MIranda rule for the answers to questions asked for public safety reasons. The public safety exception does not require that Miranda warnings “precede questions reasonably prompted by a concern for the public safety or for the safety of the arresting officers for a suspect’s answers to be admitted as evidence of his guilt.” The court found that the officers had sufficient concern about possible injury to themselves, Simmons ant the housemate to avoid giving the Miranda warnings, even though the scope of the questioning exceeding that necessary to find out whether there was a gun and where it was located. Considering the pressure of the moment the officers could be excused for the additional questioning.

But the Circuit Court reversed the District Court’s upholding the search of the room and remanded the case to the District Court. The government claimed that the search of the room was justified by the exigent circumstances exception to the warrant rule. The exception allows a warrantless search “when the needs of law enforcement [are] so compelling that a warrantless search is objectively reasonable.” But the court did not find the existence of exigent circumstances. Simmons was in the hallway. The apartment was full of police. One of the officers was blocking the door to the bedroom so he could not get the gun. There was no reasons that the search could not be delayed until a search warrant was obtained. A person’s house is particularly protected from warrantless seaches and therefore the court reversed the conviction pending further action of the trial court.

This has not been a good week for police officers. Yesterday we discussed the denial of an appeal of an officer in Memphis who was sentenced to life plus 255 years for setting up drug deals. He then pretended to arrest the seller while he stole the drugs and money. Today we learn of the arrest of twelve people including eight active duty and retired New York City police officers who bought illegal weapons in New Jersey and transported them to New York.

They are accused of smuggling 20 firearms including three M-16 rifles, a shotgun and 16 handguns across state lines from New Jersey to New York. Most of the weapons had obliterated or altered serial numbers.

In addition the officers are charged with interstate transportation of stolen cigarettes and slot machines. The street value of the smuggled goods exceeded one million dollars.

The officers got the merchandise from an undercover officer in New Jersey. Prior to giving the guns to the officers the FBI made them inoperable but the officers did not know that.

New York mayor, Michael Bloomberg is leading a nationwide movement to remove illegal guns from the streets. It is called Mayors Against Illegal Guns and 600 mayors have joined the effort.

Former Memphis police officer Arthur Sease had a scam going. He would arrange for a third party to make a drug deal with a dealer. In the middle of the deal Sease or a cohort would arrest the dealer, steal the drugs and take any money they found.

He was fired and convicted on 44 counts in Federal Court. Among the charges were violations of conspiracy to deprive another of their civil rights under the color of law, deprivation of civil rights under the color of law, and robbery and extortion under the color of official right interfering with interstate commerce. He was sentence to life plus 255 years ¹.

Well established constitutional law states that when considering the constitutionality of a search or an arrest under the Fourth Amendment you do not consider the intent of the police officers. (See Whren v. United States) Sease had the chutzpa to argue that because the drug deal which he set up was illegal, it made no difference whether his taking of the drugs and the money was for legal reasons or for illegal reasons. If there was no constitutional violation he could not be convicted of depriving the drug dealers of their civil rights.

The Sixth Circuit held that “[u]nlike the officers in Whren, Sease and his co-conspirators were not engaging in bona fide law enforcement activities. Instead, they were using the appearance of law enforcement activities as an element of their conspiracy.”

The issue in Whren involved the exclusionary rule where officers have to make snap decisions in difficult situations. Here there were no snap decisions, Sease had everything planned out. Furthermore the deprivation of rights statutes require that the court consider the intent of the officer. To obtain a conviction the government must show that the defendant “acted with a corrupt, personal, and pecuniary purpose.” As a result the court upheld the conviction and Sease is going to spend the rest of his life in prison. ²

Today we have a special treat. William Leonard Pickard, the plaintiff in Pickard v. Department of Justice, the Ninth Circuit case allowing criminal defendants to sue the Department of Justice to get documentation about informants after the government admits in court that a certain person is an informant has written specially for takingthefifth-acriminallawblog.com his comments on the Ninth Circuit decision.

INFORMANT RECORDS NOW AVAILABLE THROUGH FOIA

In a significant published decision affecting thousands of cases, the 9th Circuit ruled on July 27, 2011 that defense attorneys and the public may now obtain federal informants’ agency records through FOIA, once the informant is officially confirmed by testimony at trial. In Pickard v. DOJ, 2011 U.S. App. LEXIS 15397, the 9th Circuit determined that “as a matter of first impression and great importance” (Judge Wallace, concurring), federal informant Gordon Todd Skinner’s DEA files must be provided to Plaintiff William Leonard Pickard.

The decision has broad implications for the defense bar, describing for the first time a FOIA method to obtain informant records after their testimony in any case. The decision in Pickard v. DOJ provides a check on prosecutors’ compliance with their obligations at trial to disclose impeachment evidence on government witnesses.

In interpreting FOIA Sec. 5 USC 552(c)(2) whereby informant records are subject to FOIA if the individual were “officially confirmed” as an informant by a federal agency, the 9th Circuit declined to adopt DOJ’s proposed standard that would require a “press release” by a “head of an agency,” instead concluding that Pickard’s explanation — that agents’ testimony should suffice — “makes more sense” in a FOIA context and in view of the legislative history of 5 USC 552(c)(2).

The 9th Circuit observed that since the 1976 enactment of FOIA, DOJ had never issued any regulation or advisory interpreting “official confirmation” under FOIA, nor had any court ruled on the issue. Observing “the cat is out of the bag” regarding informant Skinner’s records, the 9th Circuit determined that agency records of Skinner must be made public, thus opening the door for similar requests by defendants, attorneys and public interest groups for informant records. Although the 9th Circuit noted the decision “may cause trouble for prosecutors and confidential informants,” the availability of informant records through FOIA will assist prosecutors, defense attorneys and the courts in assessing what records are material to the defense, bypassing prosecutors’ prior unilateral determinations in selecting specific records for release (see http://caselaw.findlaw.com/us-9th-circuit/1575518.html).

William Leonard Pickard

http://www.freeleonardpickard.org

crucible27@gmail.com

Tucson, Arizona

Another Pennsylvania judge has been charged with bribery. ¹ Judge Ross Cioppa of Bradford Hills has been charged with bribery for attempting to exchange favorable decision in landlord tenant matters to two women in exchange for sex. In addition to bribery the 70 year old judges is also charged with indecent assault and official oppression.

In one matter he is alleged to have asked a female litigant, facing eviction to massage his genitals. When she refused he obtained her approval to take pictures of her in exchange for a favorable decision. In the second case, he is alleged to have made sexual advances towards a tenant in litigation with her landlord. When she refused he asked her out on a date and gave her his phone number. When she did not call him he ruled against her.

Cioppa has been placed on paid leave pending the resolution of the criminal case. ²

Allegheny County District Attorney Stephen A. Zappala Jr. said “This is dealing with the integrity of the justice system, The victims are some of the most vulnerable people in the community.”
Zappala will not have to look far for witnesses. At least two members of his staff made complaints about Cioppa. Former Assistant District Attorney Laurel Brandstetter claims that Cioppa once blocked the door to his office as she was leaving and said that she was not leaving the office until she agreed to go out to dinner with him. He eventually relented and allowed her to leave. While such conduct might not be criminal it certainly violates the judge’s code of ethics. Canon 1 Of the Pennsylvania Code of Judicial Ethics states judges should uphold the integrity and independence of the judiciary. Canon 2 states judges should avoid impropriety and the appearance of impropriety in all their activities. These canons either taken individually or in combination certainly prohibit a judge from dating an attorney who appears before the judge.

While Cioppa is not to be prejudged certainly either attempting to get sexual favors from litigants or dating attorneys appearing before him brings the judiciary into disrepute and undermines the American system of justice.

Robert Finn, the Roman Catholic Bishop of Kansas City Missouri, was indicted Friday on misdemeanor charges of failure to report child abuse by one of his priests. The priest, Rev. Shawn Ratigan was indicted in May. This is the first time an American bishop has been criminally charged with failure to comply with mandatory reporting requirements.

Most states have mandatory reporting requirements. While the laws vary from state to state they generally requires specific professionals to report suspected incidents of child abuse to the authorities. The Missouri law includes ministers in the list of professionals required to report suspected child abuse.

As a general rule citizens do not have a duty to report the occurrence of a crime. However states tend to require individuals who have a special relationship with particularly vulnerable groups such as children, the disabled or senior citizens. Thus teachers, medical personnel, social workers and others with knowledge of the physical abuse are required to report the abuse of their juvenile clients, patients, students, etc.

Finn and the Diocese of Kansas City-St. Joseph are accused of not reporting knowledge of a priest taking pornographic pictures of young girls. Finn has admitted knowing about Ratigan’s photographs as early as December 2010 but he did not report the information to the authorities until May. In that time Ratigan continued to attend church events and photographed at least one young girl.

Three years ago as part of a $10 million dollar settlement of child abuse claims by Kansas City Diocese, Flinn promised to report cases of suspected child abuse.

Jeremy T. Greene a Wisconsin state inmate was fired from his job working in the prison library by John Doruff, the education director at the prison. The firing happened the day after Greene filed a complaint against Doruff. The alleged reason was that he stole a case from the library and that he highlighted a photocopy in the library. Furthermore he was confined to his cell for fourteen days and the photocopies were destroyed as punishment. After he showed that he checked out the case out from the library and that it was common for inmates to highlight library photocopies all charges were dismissed.

Greene sued Doruff and others. The Seventh Circuit reinstated his suit after the district court dismissed it. Greene alleged that he was fired for exercising his First Amendment freedom of speech. The District Court granted a motion for summary judgement for Doruff since Greene failed to show that “the challenged action would not have occurred but for the constitutionally protected conduct.”

But the Seventh Circuit held that the correct test in First Amendment tort cases is that the plaintiff only has to show that there was a “sufficient condition,” not “a but for” condition of the plaintiff’s injury. A sufficient condition is one that can cause something to happen but is not necessary for it to happen. For example, according to Seventh Circuit Judge Richard A. Posner who wrote the opinion dropping a match into a bucket of gasoline is a sufficient reason to start a fire but it is not a necessary reason since a fire can be started in any number of ways. A “but for” condition is necessary to create a particular condition that cannot be created any other way.

Thus the Seventh Circuit remanded the case to the District Court for reconsideration using a “sufficient cause” test.

Last January the California Supreme Court found in People v. Diaz that the search of a cell phone on the person of an arrestee was legal under the Fourth Amendment exception to the warrant requirement for searches made pursuant to a lawful arrest even if the search did not occur until 90 minutes after the arrest. The California Legislature passed SB 914 making cell phone searches illegal without a search warrant. But Governor Jerry Brown vetoed the legislation yesterday.

Brown, the former state attorney general, sided with law enforcement officers who argued that cell phones contain information about crimes that can be deleted before a search warrant can be obtained.

But as an attempt to override Diaz the legislation would probably have failed anyway. It does not take into consideration the concurring opinion of Justice Kennard in Diaz. She pointed out that Article One, Section 24 of the California Constitution limits the exclusionary rule to the exclusion of items which are seized in violation of the Fourth Amendment. Thus the California statute vetoed by Governor Brown could not have required the exclusion of text messages on a cell phone in light of the state Supreme Court’s finding in Diaz that the seizure of the cell phone did not violate the Fourth Amendment.

Brian Rogers, a non-commissioned Naval officer at the Brunswick Naval Air Station, sold a computer he no longer needed. But he failed to remove the child porn from it. The buyer reported the pornography to the local police who initiated an investigation. To assist they brought in the state computer crimes unit and the Naval Criminal Investigative Service (NCIS).

A search warrant was obtained for Roger’s house and plans were made to serve it while he was on the base. His commanding officer agreed to order him to go home at the scheduled time for the search.

Once he got home, he was interviewed by the local police and the state computer crimes unit. They told him that he was not going to be arrested that day and they did not read him his Miranda rights. After some time he agreed to go the police station with them where they continued the interrogation. Eventually an officer from NCIS joined the interrogation, first giving him the military version of the Miranda rights.

Under Miranda a statement generally cannot be used against a defendant unless it is the result of interrogation occurring while the defendant is in custody. Here there were basically three statements. The first occurring at the house. The second at the station by the police officers and the third by the NCIS officer after giving Rogers his Miranda rights.

The primary question here was which, if any of the three statements were made while Rogers was in custody.The First Circuit in an oppinion written by retired Supreme Court Justice David Souter ruled that the first statement was made while he was in custody since he had been ordered by his commanding officer to go home and presumably to cooperate with the police when he got there. The second statement was basically a continuation of the first and was also done without the benefit of Miranda warnings. While the NCIS officer gave the equivalent of Miranda warnings it was not sufficiently distinguished from the first two statements. Rogers had already given two statements and it is doubtful that anything said in the third had not already been said. Furthermore the NCIS officer told him that she was not in the command structure and therefore she could not countermand his officer’s order,

The Circuit Court remanded the case to the District Court to determine if sufficient curative action occurred to distinguish the statements. If not the conviction must be reversed.