The New York State Police Community Narcotics Enforcement Team (“CNET”) executed a search warrant on the residence of Richard Szuba. When the officers found cocaine, Szuba decided to snitch. Szuba told the officers that he received his drugs from Dean A. Steppello. He told the officers that when he wanted some cocaine he called Steppellos and said, “[a]re you good?” Then he would leave his garage door open and Steppello would deliver four ounces. At the request of the officers Szuba called Steppelo. The officers only heard Szuba’s side of the conversation. But he said, “you good, this afternoon, 20 minutes.” Officers surveilling Steppello’s residence saw him drive up to the house, enter it, leave again and drive to the area of Szuba’s residence. But since the garage was closed ¹ he parked in the driveway and called Szuba eleven times. ² Steppello was then arrested.

In a search incident to his arrest cocaine was found on him and a search of his residence pursuant to a search warrant found more cocaine.

He was charged in the United States District Court with possession with the intent to distribute cocaine and possession with the intent to distribute over 500 grams of cocaine. ³ He moved to suppress both the cocaine that was found on him and that which was found in his residence as well as certain statements that he made after he was arrested. He claimed that there was not probable cause to arrest him. If there was not probable cause to arrest him the cocaine found on him could not have been used to get the search warrant for his house, The District Court granted his motion and the government appealed.

The Second Circuit Court of Appeals granted the appeal. It held, contrary to the District Court’s decision that the mere lack of a history of reliability does not mean that the informant’s information must be discounted. As evidence of reliability it pointed out that the information was given in order to prevent him from being arrested, that it was given face to face to the officer, that Szuba was a participant in the crime, and that it was corroborated by physical evidence. As corroborating evidence it pointed to Szuba’s correct prediction of what would happen after the phone call, his correct description of Steppello’s vehicle and residence, as well as the telephone records verifying the calls from Steppello to Szuba.

While I do not accept the court’s finding that lack of a history of giving reliable information is unnecessary, I do believe that there is enough corroborating information for a finding of probable cause. I have represented many drug dealers who have attempted to pull one over on officers by giving incorrect information about the source of the drugs or about the offense. To find reliability without a history of cooperation is foolish without corroboration. But here there is plenty of corroboration.

Since there is probable cause for the arrest there is also probable cause for the search warrant for the residence and to use the statements made pursuant to the arrest.

The procedural rules regarding writs of habeas corpus found in the Anti-Terrorism and Effective Death Penalty Act (AEDPA) are complicated and complying with them are often difficult. Many appellate decisions have been written regarding the rules. Yesterday, the Seventh Circuit Court of Appeals issued a decision interpreting several issues.

Reginald D. Purvis was convicted in the United States District Court for the Northern District of Illinois of conspiracy to sell crack cocaine. Since he had two prior state court convictions for drug offenses he was sentenced as a career offender.

After his appeals were denied he filed a Federal writ of habeas corpus challenging the conviction on incompetence of counsel grounds. He also filed a motion in state court to vacate one of the convictions used to make the Federal court action a career offender action. In his petition for a writ of habeas corpus he noted that he had the motion to vacate the prior conviction pending in the Illinois state courts.

While the petition was pending he moved to stay the action to allow him to amend it after the motion to vacate the prior was decided. The District court denied his motion to stay the petition and denied the petition itself. Shortly thereafter the motion to vacate the prior conviction was granted in state court. Purvis then filed a motion requesting permission to file a “second or successive” petition for habeas corpus on the grounds that he was no longer a career offender. The motion was also denied.

Purvis appealed the denial of the stay. The Seventh Circuit remanded the matter to the District Court with instructions to determine whether vacating the prior conviction was a “new fact” allowing the one year statute of limitations under the AEDPA to restart and to determine what effect Purvis’ informing the court that he had filed a motion to vacate the sentence had on the motion for a stay. The District Court again denied his petition.

Purvis again appealed to the Seventh Circuit. This time the Court granted his appeal. It held that his career offender claim was timely. He was under no obligation to move to vacate the prior until he was sentenced in the Federal case and he could allocate his time in such a way that he first dealt with the appeals and then filed his motion in state court to vacate the prior sentence.

The Court remarked that Purvis was faced with a Catch 22 situation. If he waited to file his habeas until his career offender issue was ripe (after the prior was vacated) his incompetence of counsel issue would no longer be timely. On the other hand if he filed his habeas prior to the granting of the motion to vacate the prior was granted he’d be in the position where he would be filing two petitions for habeas corpus and that would violate AEDPA. As a result the court held that the proper tactic was the “stay and abeyance” procedure As a result the court found that the District Court erred when it denied Purvis’ motion for a stay and it remanded the matter for resentencing.

Purvis won . . . right? Well maybe. He’s going to be retried on the state matter. It will not be a “prior” for career offender status since the conviction will be after the Federal crime occurred. However, Chief Judge Easterbrook pointed out in a concurring opinion that the trial judge can wait until after the state trial is over and then resentence Purvis above the guidelines to a sentence similar to what he received as a career offender to effectively show his criminal history.

The Fourth Circuit Court of Appeals reversed the conviction of Obie Lee Powell for possession of crack cocaine due to an illegal pat search of Powell. Powell was a back seat passenger in a car driven by Jermaine Mitchell. The car was pulled over by the police due to a burned out headlight.

The officers did a license check on Powell, it came up suspended and the officer learned that Powell had a prior conviction for armed robbery. Based on this information the officers ordered Powell to get out of the car and pat searched him. ¹ A gun was found in a backpack near Powell’s seat in the car. He was arrested after the gun was found but he was not convicted of possessing the gun. During a search incident to the arrest crack cocaine was found on Powell and this was the basis for the conviction.

The issue on appeal was whether the officers’ pat search was justified by officer safety. During the pat search the gun was found. This justified his arrest which lead to the cocaine being found.

The government argued that the pat search was legitimate based upon Powell’s past record and the fact that he lied about the status of his license. But the court applying Terry found that ” that a reasonably prudent officer in these circumstances would not be warranted in the suspicion that Powell was armed and dangerous on the
night of the traffic stop.” Without evidence that Powell was armed and dangerous the officers had no right to pat search Powell and the the arrest as well as the search incident to the arrest were fruits of the illegal pat search. The cocaine had to be suppressed and the conviction vacated.

A California court had the opportunity last week to explore some of the questions left open by the Supreme Court in Arizona v. Gant..

Vernon Evan was driving his car in Los Angeles. An officer pulled him over for weaving and ordered him to get out of his car. He refused. After several attempts to get Evans to leave the vehicle an officer broke his window and maced the inside of the vehicle. After getting Evan out of the car police searched the vehicle finding $65.00 and several clean baggies. ¹ After arresting him for interfering with an officer and impounding the vehicle, the officers discovered that during a prior arrest of Evans a gun was found in the air vent. The officers went to the impound yard and found cocaine in the air vent.

In Gant the Supreme Court ruled that a search of an automobile incident to an arrest can only occur if the arrestee is “within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” The court held that under Gant neither the roadside search which occurred while the defendant was out of the car and under arrest nor the impound yard search was permissible and it reversed the cocaine related convictions. Obviously during neither of the searches was Evans within reaching distance of the passenger compartment of the vehicle. The second Gant prong is a little more difficult since the Supreme Court did not did not define what it meant by the phrase “reasonable to believe” that the vehicle contained evidence of the offense. But the court found that there was nothing innate in the charge of interfering with an officer or in the facts of the case that would read an officer to have a “reasonable suspicion” that physical evidence of the crime would be found. Therefore it reversed the trial court’s denial of Evans’ search motion and remanded the case to the trial court.

Jerome Bass was convicted of cocaine related charges in the Federal District Court for the State of Nebraska. He appealed and lost. He then filed a writ of habeas corpus alleging incompetence of counsel. He claimed that his trial counsel failed to make an in limine motion objecting the testimony of one witness, failed to object to the testimony of a second witness, and failed to object to the U. S. attorney’s vouching for a witness during closing.

A defendant in a criminal trial not only has the Sixth Amendment right to counsel but the right to competent counsel. To win a grant of habeas corpus, alleging incompetence of counsel, a defendant carries the burden to prove that “(1) that counsel’s representation was deficient and (2) that he suffered prejudice as a result.”

The writ was granted and the government appealed to the Eighth Circuit Court of Appeals. The Eighth Circuit ruled that the in limine motion even if counsel was deficient in failing to make the motion ¹would not have had any effect on the trial since there was “overwhelming” evidence of the defendant’s guilt. Likewise the court found that Bass was not prejudiced by the failure of counsel to object to the testimony of a second witness due to the evidence against him.

“Vouching” for a witness occurs when an attorney claims to have knowledge, outside the evidence, that a witness is truthful. For example, an attorney cannot say in closing that I’ve known witness X for twenty years and he has never lied to me.” The alleged vouching occurred when the prosecutor said:

Most of them [the government's witnesses] have testified before this trial, but not all. And they know what the truth is, and they understand it’s important, and they came before you and told you the truth about Jerome Bass. Sergeant Langam explained it best when he testified about his personal barometer, how he gauges the truthfulness in proffer interviews. He corroborates the interviews against each other . . . .

But the appellate court found that the prosecutor was merely explaining why the jury could find the witnesses credible and she was not giving her personal opinion.

William Freeman entered a “C” plea in Federal Court to possession of crack cocaine. A “C” plea is a guilty plea pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure. Under Rule 11(c)(1)(C) the defendant and the government agree on a particular sentence and once the judge agrees to the plea the judge is required to go along with the stipulated sentence.

The agreement between the parties stated that Freeman would get 106 months and that the figure was based on the Guidelines. When the judge sentenced him to 106 months he stated that it was a Guidelines sentence.

Three years after the sentencing the Sentencing Commission retroactively reduced the Guidelines for crack cocaine in an attempt to reduce the disparity between crack and powder cocaine sentences. Freeman applied for a reduced sentence. The government objected on the grounds that he had stipulated to his sentence.

The Supreme Court ruled that the reduction applied to Freeman because while he stipulated to the sentence the stipulation and the sentence was based on the Guidelines so the retroactive change in the Guidelines apply to him.

Many appellate cases involve defining words in a law. One would think that is a simple task. Look them up in a dictionary. ¹ But many words can be written to define relatively simple terms. In DePierre v United States the question is how does should “cocaine base” be defined. DePierre wants to define it synonymously with “crack cocaine.” But the clear meaning of “cocaine base” is any form of cocaine that is capable of reacting with an acid to form a salt. This includes not only crack, but also coca paste and freebase. Cocaine base can be contrasted with cocaine hydrochloride (cocaine powder), a salt.

Functionally the main difference between base and cocaine hydrochloride is that cocaine base when heated can be smoked and it works faster than the powder form.

The problem arises as a result of poor drafting in the Anti-Drug Abuse Act of 1986 (ADAA) which set a mandatory minimum of 10 years for fifty grams or more of cocaine base and a mandatory minimum of 10 years for five kilograms or more of cocaine base. (Thus it took 100 times as much cocaine salt to get the same sentence as cocaine base.) ² Furthermore, the statute refers to both cocaine base and cocaine even though they are the same thing. There is a rule of statutory construction that if Congress uses two different term it is referring to two different items. But the court found that in this case they were both referring to cocaine base and they sided with the government against De Pierre.

If “the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment ” police may enter a residence without getting a search warrant. This is called the exigent circumstances exception to the Fourth Amendment. For example police may enter a residence if they have reason to believe that evidence is being destroyed.

Some courts have ruled that the exigent circumstances rule does not apply when the police create the exigent circumstances. In Kentucky v, King police observed a crack cocaine sale outside of an apartment house. The culprits ran into the building. They were chased by officers. The officers knew that they went into one of two apartments. Out of one of the apartments the officers could smell a strong odor of marijuana, ¹ The officer knocked loudly at the door that they smelled the marijuana coming from. No one answered the door. ² The officers heard people moving around in the apartment and they thought that the residents were attempting to destroy the marijuana. ³ The officers yelled “police” and when no one answered the door knocked it down. ⁴

The defense argued, and the Kentucky Supreme Court agreed that by knocking loudly on the door the officers created the exigency and then used it to enter the apartment. According to the United States Supreme Court the essence of the Fourth Amendment is reasonableness and any search that is reasonable is acceptable. ⁵

While there are a number of justifications for the “police-created exigency” doctrine my favorite is that it allows any officer to create an exigency at any time. As Justice Ginsburg said in dissent:

The Court today arms the police with a way routinely to dishonor the Fourth Amendment ’s warrant requirement in drug cases. In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, never mind that they had ample time to obtain a warrant. I dissent from the Court’s reduction of the Fourth Amendment ’s force.

All the officer has to do is say that he/she hears people moving around in the residence or hears a toilet flushing in the residence and they can claim that they thought that evidence was being destroyed. Then they kick the door down or walk in if its not locked. ⁶

The Department of Justice is urging the Supreme Court to take up the Fourth Amendment issue of Global Positioning Systems (GPS). Various courts have ruled on the constitutionality of the use of GPS without getting a warrant and rulings have come down on both sides of the issue,

The Ninth and the Seventh Circuits have ruled it constitutional while the D. C. Circuit found it unconstitutional. Courts in New York, Massachusetts, Washington and Delaware have found it unconstitutional while courts in Ohio and Virginia have approved of the practice.

The Justice Department is challenging a D. C. Circuit opinion that overturned the conviction of Antoine Jones on cocaine trafficking charges after GPS evidence played a mayor role in his conviction. The DOJ argues that since law enforcement officers could have followed Jones as he traveled on the public roads he could not have had a legitimate expectation of privacy. The Fourth Amendment only applies to individuals who have an expectation of privacy that is recognized by society.

However his attorneys argue that using a GPS device on Jones’ Jeep Cherokee for over a month and reporting his whereabouts every seven seconds was a tremendous invasion of his privacy and is prohibited by the Fourth Amendment.

The Courts that have upheld warrantless GPS searches have cited the 1983 Supreme Court decision, United States v. Knotts in which the Supreme Court upheld the conviction of a man in a methamphetamine case after the wholesaler of necessary chemicals placed a beeper in a barrel of chemicals. The barrel was placed in a codefendant’s vehicle and followed by agents to the suspect’s residence.

Knotts has been cited by the courts in upholding warrantless GPS decisions. Most of the Courts have said that if it was constitutional to follow a car with a beeper, it is constitutional to keep track of a vehicle with a GPS deviced placed under the car’s carriage while it is either parked on the street or in the defendant’s driveway.

But while the lower courts do not have the power to reconsider Knotts the Supreme Court does. It is a decision that may have had some validity 30 years ago but with the technological advances in the last 30 years allowing greater and greater invasions into citizen’s privacy it is time for the Supreme Court to reconsider the decision.

Criminal defense attorneys, and I suspect district attorneys and judges, have long doubted consent searches. In a consent search the police avoid getting a search warrant by obtaining consent of the person being searched or of the person in possession of the house or car. But these searches are easy to fabricate. There are often no witnesses and its the officer’s word against the defendant’s.

But there is little we can do. The question at trial is not the truth but who can prove their case. We know that the jury is generally more likely to believe a police officer (or five police officers) who testify that our poor 19 year old African American or Latino consented to the search than to believe our client when he or she says they did not consent to the search. This is true even in the senseless situation where the officers find rock cocaine or heroin viewable on the bed or dresser.

Certainly not all consent searches are phoney. People don’t always do wise things.There is no requirement that the police tell a person that they need not consent and people, particularly those from abroad who are not used to the Bill of Rights often consent. Whether the consent is real or not it is often followed by a plea bargain because the police office, who is a professional witness can convince the court and a jury that the defendant consented to the search.

But with the advent of videos things may change. The San Francisco Public Defender’s office has four video tapes taken at the Henry Hotel of police officers entering rooms without consent and later filing police reports in which they state under oath that they received consent to the search. The officers involved are members of the Southern Station plainclothes unit. The District Attorney has already dropped 57 cases as a result of the allegations. An investigation of the unit and its sergeant is occurring. These are serious allegations. Filing a false police report is a misdemeanor and perjury is a felony. If true, these charges are significant violations of people’s Fourth Amendment rights and justly call into question the trustworthiness of numerous other investigations conduct by the unit and by other officers.