A couple of days ago we reported on People v. McKee in which the California Supreme Court opened up the opportunity to challenge Proposition 83, also known as Jessica’s Law on equal protection grounds. Monday the court in In re E. J. again considered Jessica’s Law. This time it rejected claims that it was being used retroactively against parolees and remanded to the lower courts to consider on an individual basis whether it violates the constitutional rights of those required to register as sex offenders by preventing them from living within 2000 feet of “any public or private school, or park where children regularly gather.”

The law was challenged by four parolees who were released on a new grant of parole after the effective date of the proposition for non-registerable offenses but who due to previous convictions have a lifetime registration requirement. Compliance with the Proposition 83 requirements was made a condition of the new parole grant.

The parolees argued that the law was illegally being enforced retroactively. The majority opinion finds that it is not a violation of either Penal Code Section 3 which prohibits the retroactive enforcement of criminal law unless the law specifically allows retroactive enforcement or the ex post facto sections of the state and Federal constitutions. The court found, as to the four petitioners, it was only being alleged as a condition of parole granted after the effective date of the proposition and it was only governing activity that happens after the effective date. Generally ex post facto laws are prohibited because they punish activity without prior notice of the illegality of the activity. Here the petitioners were given notice when they were placed on parole that they could not live in certain areas. They were not being punished for the original offense which led to the registration requirement. Rather they could be punished for moving into certain areas when they were paroled after the proposition’s effective date.

As to the constitutionality of the stay away requirement, the Supreme Court requested superior courts in the county of parole to hold hearings to determine whether the residential restrictions violate the petitioners constitutional rights. The court indicated that there might be a constitutional violation if there was only a limited area in the county of parole where the petitioner could live. Many sex registrants have become homeless or at least have registered as being homeless because the parole boards have treated the homeless as not being in violation of the residential restrictions as long as they do not stay in an area within 2000 feet of a park or school for an extended period of time.

The California Supreme court ruled in People vs McKee that the Sexually Violent Predator Act (SVP) is subject to an equal protection challenge.

Proposition 83, also known as Jessica’s Law,passed by California voters, changed the SVP from a civil commitment that had to be renewed every two years, only if the government proved by a beyond a reasonable doubt standard that a person met the SVP requirements, to an indefinite commitment where the committed person must prove that he/she does not meet the standards by a preponderance of the evidence standard.

The Supreme Court remanded the case to the trial court with an order to hold a hearing, using a strict scrutiny standard, to determine if the SVP violates equal protection. The Equal Protection Clause of the Fourteenth Amendment requires equal treatment for people equally situated. This does not mean all people must be treated equally. But it does mean that people who are similar circumstances, as to relevant criteria must be treated equally. In this case the California Supreme Court determined that those alleged to be sexually violent predators are similarly situated with those alleged to be mentally disordered offenders (MDO) and those found to be not guilty by reason of insanity (NGI). All three groups involve people who committed violent felonies as a result of mental illness. While the predicate felonies for each of the categories is somewhat different, they all involve violent offenses and they are all determined to be a danger to society.

But unlike the MDO and NGI, the SVP ia given an indeterminate sentence and is not given a jury trial, after the initial determination, where the jury must find that the people have proven their case by a beyond a reasonable doubt standard. The MDO is give a one year commitment. After the initial commitment the SVG has the burden of proof by a preponderance of the evidence standard. The NGI’s term is limited to the maximum for the alleged crime.

On remand the people must attempt to show that there is a reasonable distinction between those who come under the SVP and those who are either MDO or NGI and that as a result of that distinction indefinite commitments and putting the burden of proof on the person committed is reasonable. If they cannot do that, pending any changes the legislature wants to make in the law those alleged to be sexually violent predators will be dealt with in the same manner as mentally disordered offenders.

In 1996 California voters approved Proposition 215 which approved the medical use of marijuana. In 2003 the state legislature passed Senate Bill 420 which attempted to regulate the medical use of marijuana. Among the provisions of SB 420 was a rule limiting the amount of medical marijuana an individual may possess to eight ounces and six plants. A second provision created a voluntary ID card for those who possess no more marijuana than the statute’s limits.

Patrick Kelly was arrested and convicted for possession of seven plants and twelve ounces of marijuana in his house even though he has the required permission from a doctor to use medical marijuana. The Court of appeals reversed his conviction finding that limits on the amount of medical marijuana one may possess is an unconstitutional modification to Proposition 215 and that the ID cards which are only available to those who possess less than eight ounces are also unconstitutional.

The state constitution prohibits the legislature from modifying a proposition enacted by a vote of the people. Both sides admit that any limit on the amount of medical marijuana a person can possess cannot exceed what a person needs and that different individual may need different amounts. Both sides also want to save the medical marijuana cards.

Now it is up to the Supreme Court. It has ninety days to rule.

The California Supreme Court upheld the death penalty for Richard Allen Davis who was convicted of kidnapping and murdering Polly Klaas. Polly Klaas was the twelve year old girl who was kidnapped from her Petaluma house during a October 1, 1993 slumber party while her mother and kid sister were sleeping in a nearby bedroom.

Polly invited two friends to the party. The three girls were in Polly’s room with the door shut. At one point Polly opened the door to her room to get the sleeping bag of one of her guests. She saw Davis with a knife in his hand. He entered the bedroom and tied up the three girls. He took Polly and told the other two girls to count to a thousand before doing anything. They removed the ties and woke up Polly’s mother who called the police.

Shannon Lynch was driving on a road leading from the residence of Dana Jaffe approximately a half hours after the kidnapping. She had been babysitting for Jaffe’s children. As she approached Pythian Road she saw Davis. His car was stuck in a ditch. She got scared and called Jaffe from the nearest pay phone. Jaffe called the Sonoma County Sheriff’s Department. They sent two deputies out who helped get Davis’s vehicle out of the ditch and escorted him off the property. The Sonoma County Sheriff’s Department radio system was not connected to the Petaluma Police Department’s radio system and the deputies did not know about the kidnapping. Later that evening Davis returned to Jaffe’s property and retrieved Polly.

At least four people saw Davis that evening near the Klaas residence.

The kidnapping attracted considerable attention. Seventy-five FBI agents and 50 police officers immediately started searching for Polly and the nationwide press carried major articles. Thousands of leads poured into the police and FBI offices. Nearly two months later on November 28 Jaffe found several items associated with Polly near the spot where Davis had run into the ditch. She called the Sheriff’s Department and Davis was arrested at his sister’s residence on a parole violation on November 30.

Later that day, Petaluma police officer Larry Pelton and FBI agent Larry Taylor Mirandized and interrogated Davis but he denied everything. At one point during the interview Davis requested a lawyer but the Supreme Court found the request to be too ambiguous to terminate the interrogation under Miranda. But before the interview was over Davis clearly asserted his right to have an attorney present. On December 2 criminalists identified a palm print in Polly’s room as belonging to Davis. On the fourth Petaluma Police Sargeant Michael Meese again interrogated Davis at the jail and urged him to call Meese if there was any chance of finding Polly alive. Later, Davis called Meese and confessed. He then led the officers to Polly’s body. The Supreme Court decision in Edwards v. Arizona mandated that once a defendant asserted his Miranda rights police could not further interview the inmate until he/she was provided an attorney.

But the California courts have developed an exception to the Miranda rule called called the Rescue Exception. When a person has been kidnapped and urgency requires immediate knowledge in order to save the person’s life, peace officers can violate the Miranda rule if the following conditions exist: 1) urgency of need with no other course of action promising relief; 2) the possibility of saving a person’s life mandates the action; and 3) objective facts known to the police officers require such action. Even though 64 days passed between the time of the kidnapping and Sargeant Meese’s jailhouse interview, the court found that since it was possible that Polly was still living the Rescue Exception was applicable and the conversation was admissible at trial.

The Supreme Court found no reasons to reverse the convictions and it stated that if any errors were committed they were harmless in that there was enough evidence when excluding the wrongly admitted evidence to convict Davis.

It was the murder of Polly Klaas and the crusading efforts of her father, Marc Klaas that led to the passage of Three Strike laws throughout the country. Prior to Polly’s murder, Davis had been convicted of burglary and forging a ten dollar bill when he was twelve years old. He had convictions for assault, robbery, and kidnapping in addition to the juvenile burglary. He also had a record of committing sex offenses against. Yet despite his record and despite the fact that he had spent much of his life in prison he was paroled at the time of Polly’s murder. California and other states enacted Three Strikes Law in order to prevent other people with similar records from killing other people like Polly. While the laws have numerous flaws they have kept many habitual felons off the streets.

The police report says that Raymond L. Bell after being stopped, allegedly for a DUI, lost his balance and used his arms to steady himself. It says he was driving 85 mph is a 40 mph zone and could not stop when the police officer turned on his siren.

The video on the police car shows Bell walked steadily and stopped the car within 40 second of the officer turning on the siren.

The arresting officer was Chicago police officer, Joe D. Parker, who has won awards for being among those officers who have arrested more people for DUI’s in the Chicago area.

Parker’s report says Bell staggered and that his gait was unsteady. Again the video contradicts Parker. Parker claimed that Bell flunked the “walk and turn test’ but the video show that after some initial confusion, Bell did fine.

Bell asked for a breatyalyzer. Parker refused.

On February 20, seven months after the initial arrest prosecutors dismissed the case. Parker has been put on desk duty pending the results of an internal investigation.

Are Parker’s lies unique–no. Another Chicago officer, John Haleas, who like Parker, has been commended by the Alliance Against Intoxicated Motorists, as a Top Cop for the number of his arrests has been criminally charged for filing false reports and 156 people arrested by Haleas have had their charges dismissed.

One question this raises is why would an officer lie about an arrest when the arrest is on tape? I don’t know the answer to this question. Do they believe that prosecutors will let them get away with anything in order to get the police union’s endorsement when they are up for reelection. Do they believe that defense attorney are so lazy that they will not look at at the tape or listen to their clients? Have they been getting away with it for so long that it doesn’t matter? After all it took seven months from the time of Bell’s arrest until the charges were dismissed and Haleas made hundreds of arrests before charges were brought.

But the more important question is why doesn’t every police car in the country have video machines that video arrests. As TChris says in Talk Left: The Politics of Crime:

When squad car cameras are available, the recordings usually tell the tale: either the driver looks drunk or he doesn’t. When the picture matches the police report, the driver pleads guilty. When it doesn’t, the case is often dismissed

Not only would many innocent people be protected (Remember Rodney King and the arrest of Bay Area Rapid Transit police officer, Johannes Mehserle but many guilty individuals would be more inclined to plead guilty, early in a case, saving the government more money than the cost of the video equipment, when they know the video shows that they cannot win at trial.

The California Supreme Court yesterday decided two cases in which petitioners attempted to void convictions for which they were no longer in custody or on probation in order to prevent deportation. In People v. Villa Avelino Ceja Villa, a Mexican citizen, filed a petition for a writ of error coram nobis while in immigration custody in Alabama based on a 1989 California drug conviction. The Court of Appeal considered the writ to be a writ of habeas corpus since he was in custody based upon the 1989 conviction even though his probation had long since been terminated. But it denied the writ on the grounds that he was not in custody solely on the California conviction. The California Supreme Court denied the writ but on different grounds. It found that he was neither in constructive or actual state custody and therefore it could not issue a writ.

The Supreme Court also denied a writ of coram noblis in People v. Kim Kim was born in South Korea in 1977 and came to this country as a young child with his parents.His criminal record started as a juvenile. He was convicted of first degree burglary for breaking into a tool shed in 1996. Later that year he was convicted of petty theft and second degree burglary. The following year he and two friends stole under $100 of merchandise from a Costco. But with his record he ended up pleading to felony petty theft with a prior and he admitted a strike violation. While the judge struck the strike at sentencing he was sent to prison for three years on the theft and the probation violation.

In 1998 the INS began deportation proceedings. Since his theft sentence was for at least a year it was considered an aggravated felony with mandatory deportation. He completed his sentence and his parole. But the INS amended its petition to include a discretionary deportation based upon two convictions for crimes of moral turpitude.

Kim filed a nonstatutory motion to reduce the sentence on the petty theft with a prior to 364 days. It was granted and now any deportation would be discretionary. A Federal immigration judge granted his motion to remain in the country. But the INS appealed and the BIA ordered Kim deported. He then filed the writ of coram nobis. But the California Supreme Court denied the writ. First it pointed to three procedural errors. In pleading the writ he failed to show due diligence. He did not explain why it took so long after 1996 for him to file the writ. The second procedural error is that Kim did not avail himself of other remedies. If he had filed earlier he would still have been in actual or constructive custody and he could have filed a writ of habeas corpus. Coram nobis is only to be used when there is no other remedy. The final procedural error, according to the Supreme Court was the piecemeal method of fighting the deportation in state court. The Court all motions should have been filed simultaneously.

While the Court found the procedural errors it denied the writ on its merits. To obtain a writ of coram nobis a defendant must show

(1) Petitioner must ‘show that some fact existed which, without any fault or negligence on his part, was not presented to the court at the trial on the merits, and which if presented would have prevented the rendition of the judgment.’
(2) Petitioner must also show that the ‘newly discovered evidence does not go to the merits of issues tried; issues of fact, once adjudicated, even though incorrectly, cannot be reopened except on motion for new trial.’ This second requirement applies even though the evidence in question is not discovered until after the time for moving for a new trial has elapsed or the motion has been denied. (3) Petitioner ‘must show that the facts upon which he relies were not known to him and could not in the exercise of due diligence have been discovered by him at any time substantially earlier than the time of his motion for the writ.

Kim failed to show that there were facts that were not known to him that if he had presented to the trial judge would have result in his exoneration. The facts he argues, that he would be deported, that if deported he would be imprisoned for his refusal to serve in the Korean military on religious grounds, that his trial attorney was ineffective in not investigating the immigration consequences of the plea, and that his trial attorney was ineffective in not negotiating an alternate plea are not issues of fact. They are issues of law which cannot be the basis of a writ of coram nobis.

The end result is that neither habeas corpus or coram nobis is likely to correct errors in pleadings after the period of probation or parole has ended.

Yesterday, we considered a case decided by the California Supreme Court, Sheehan v. San Francisco 49ers, Ltd which involved the pat search of attendees at San Francisco 49ers games. The pat search was performed at the direction of the 49ers in conformance with directions from the NFL.

Today we look at another search. This time performed by bounty hunters in Oklahoma. In this case, the Tenth Circuit upheld the use of evidence found by bounty hunters while making an arrest. Both cases of course involve searches. But the other significant fact is that both cases involve searches by people who are not state actors, ie. not employed by the government or working at the direction of the government. This is important because the Fourth Amendment only applies to searches performed by state actors.

In United States v. Poe, the Tenth Circuit Court of Appeals found that a search by a bounty hunter was not performed by a state actor and therefore it was not subject to exclusion at trial under the Fourth Amendment regardless of whether or not it was supported by probable cause.

Five bounty hunters, hired by a bail bonds company, surveilled the Oklahoma City home of Kim Wilson, the former girl friend of Aaron Dale Poe who skipped bond in an Oklahoma state case. Wilson left home about 10:30 pm. Two of the bounty hunters followed her to AutoZone where she worked. They questioned her and found out that Poe was at her residence. She did not give permission for them to search her house but she said that Poe planned to sell drugs from the house and that there was a gun in the house.

They returned to Wilson’s house. Three of the bounty hunters watched the front door while the other two watched the back of the house. They saw Chris McGill drive up to the house and approach the back door. He attempted to leave shortly thereafter but he was apprehended by the bounty hunters.

The bounty hunters then arrested Poe. He resisted and one of the bounty hunters was attached by a pit bull. The dog was tased and both the dogs and Poe surrendered.

The bounty hunters found methamphetamine and a nine-millimeter pistol in the residence. They called the police.

Poe was charged with possession of methamphetamine for sale (McGill’s attempt buy methamphetamine was interupted by the bounty hunters)and possession of a weapon by a convicted felon. He moved to suppress the evidence found by the bounty hunters claiming that the search was without a search warrant and therefore in violation of the Fourth Amendment. The District Court rejected his claim on the basis that he did not have standing to object to the search of Wilson’s house.

On appeal the Tenth Circuit found that he had standing since he had a reasonable expectation of privacy. He was a social guest with sufficient ties to the residence. He had a “degree of acceptance into the household” and “an ongoing and meaningful connection to the home.”

But it rejected his claim on the basis that the bounty hunters were not state actors. The bounty hunters were neither state agents nor were they working at the direction of state agents. The court considered two factors in determining whether the bounty agents were working at the direction of state agents.

First, we determine whether the government knew of
and acquiesced in the [individual’s] intrusive conduct. . .Second, we consider whether the party performing the search intended to assist law enforcement efforts or to further his own ends.

The court found that there was no evidence that the bounty hunters were working with the knowledge or acquiescence of government agents. Furthermore it found that their goal was not to help the government, but rather to obtain payment for their own use from the bail bonds agency. Since the bounty hunters were not state actors the evidence that they seized was not subject to suppression for violation of the Fourth Amendment.

Sheehan was decided based upon the California Constitutions right to privacy. The Federal right to privacy is not coextensive to the California right and therefore Poe was based on the Fourth Amendment. The California constitutional right to privacy extends to the acts of private citizen and organizations which are nor necessarily state actors. The Fourth Amendment right is limited to state actors. Thus, while. the search of people attending 49ers games may be illegal under state law, the search of Poe by bounty hunters is legal under the Fourth Amendment.

In 2005 the San Francisco 49ers, in compliance with a NFL policy initiated a policy of pat searching patrons as they entered the stadium for football games. Daniel and Kathleen Sheehan challenged the policy in court as a violation of the California Constitutional privacy right.

The 49ers demurred to the complaint and the San Francisco Superior Court dismissed the case. The Court of Appeals confirmed the dismissal but the Supreme Court ruled Monday that the Superior Court had insufficient information to dismiss the case and it reinstated the suit for further proceedings.

In order to succeed in a suit charging a violation of the constitutional privacy right the Sheehans must show that

(1) a legally protected privacy interest, (2) a reasonable expectation of privacy under the circumstances, and (3) a serious invasion of the privacy interest.”

But because the Superior Court decided the matter on a demur it did not have enough information to determine that it is impossible for the Sheehans to prove a privacy invasion. In particular the Supreme Court held that the trial court did not have enough information to decide whether the Sheehans had a reasonable expectation of privacy Among the issues that will have to be decided at trial are whether the Sheehans waived their right by going to the game, whether the 49ers had a reasonable purpose for imposing the pat search requirement, and whether the 49ers could have used a less intrusive method to obtain their goal.

The Eleventh Circuit Court of appeals recently upheld a similar but different search at Tampa Bay Buccaneers games. The Tampa policy, unlike San Francisco’s limited the search to above the waist and more importantly Florida does not have a constitutional right to privacy.