President Obama has authorized the capture or killing of Anwar al-Awlaki. Al-Awlaki is an American citizen, born in new Mexico of Yemeni parents. Allegedly he is a recruiter for al-Qaeda.

He may be the first American citizen placed on the targeted killing list. Although I’m not sure what difference it makes whether he is an American citizen or not. We are supposed to be a nation of law. The proper thing to do is to indict him, perhaps on treason charges, and ask the Yemeni government to arrest him and extradite him. This is the legal thing to do.

At this point he is in hiding in Yemen and neither the Yemeni government or the American government know exactly where he is. Though there are all sorts of rumors about his conduct and participation in al-Qaeda, I suspect the government wants to kill him because it does not have enough solid evidence to indict him.

The government will probably justify the killing of al-Awlaki by asserting that international law permits the killing of individuals who pose an imminent threat to a country and also it will point out that we are at war with al-Qaeda. But even if he poses an imminent threat and even if his killing would be permissible under international law it does not mean that we should kill him. We like to think of ourselves as a humane example to the rest of the world–as a nation that believes in the rule of law. Even if it is permissible under international law, it may not be permissible under out Constitution. Both the Sixth and Fourteenth Amendments require due process of law. The Fifth Amendment states in pertinent part:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger . . .

His killing may be justified under the Fifth Amendment as being in time of war. It would appear to me, however, that the Fifth Amendment allows for the killing of members of the military by court marshal without an indictment during war but not of US citizens who are not members of the military. But the sad fact is that the Courts will never get a chance to decide whether the killing is legal or not because he will not be indicted and charged.

The Eighth Circuit Court of Appeals upheld the search of three residences in a Kansas City methamphetamine case in United States v. Cisneros-Gutierrez.

Immigration and Customs Enforcement (ICE) Special Agent Mark King set up surveillance at 323 South Brighton Avenue. Along with other agents he decided to conduct a “knock and talk.” A “knock and talk” is used by narcotics agents when they want to search a residence but they do not have probable cause to get a search warrant. They knock on the front door and when someone answers it they try to talk their way into the house and get consent from the residents to search the house. Of course the residents do not have to answer the door. Nor do they have to talk to the officers or give them permission to enter the house.

But King was either good or lucky. Justino Ruiz-Ramos answered the door. He said he did not live at the residence but Salvador Jesus Velasco-Saldana came to the door. Velasco-Saldana said he resided there and gave the officers permission to enter. He consented to the officers searching the residence. They found methamphetamine and related items. They interviewed Velasco-Saldana and he told them that Gerardo sold him three pounds of methamphetamine and that Gerardo’s brother delivered it. He drew the officers a map explaining how to get to Gerardo’s house.

Several officers including King and Luis Ortiz of the Kansas City Police Department Gang Unit went to 430 Donnelly Avenue and conducted another “knock and talk.” Miguel Angel Garcia-Bobadilla answered the door and again the officers were let in. They asked Garcia-Bobadilla if he was alone. When he answered yes they asked asked if they could perform a protective sweep in order to confirm that no one else was in the house. He gave permission. A protective sweep is done to make sure the officers are safe while in the house. But they also know that any illegal substances they see in “plain view” can be seized. They found a significant amount of methamphetamine in the house.

During the sweep they ran into Alfredo and Dehli Hernando-Pena. Alfredo and Garcia-Bobadilla said they lived in the house. Both gave verbal and written consent to the search. Dehli agreed to cooperate. She told them that Alfredo’s brothers lived at 3907 East 12th Terrace. After the officers search the Donnelly Avenue house they went to the 12th Terrace house. They knocked on the door and Gerardo answered. While talking to Gerardo they noticed Alphonso entering the kitchen with large baggies of powder and they heard what they thought to be Alphonso flushing something down the sink. The officers thinking that evidence was being destroyed entered the residence without a warrant.

After they were indicted the defendants brought motions to suppress the evidence. The court upheld all of the searches. As to the South Brighton Avenue search, it found that Velasco-Saldana gave consent to the entry and search. As a result it was not in violation of the Fourth Amendment.While there was some question about the facts of the Donnelly Avenue search. The police claim that the residents gave their consent and the residents say the police forced their way in, the court found the officers to be credible and the residents not to be. As a result it found that the entry and search was also the result of consent. As to the 12th Terrace search there is an exception to the Fourth Amendment when exigent circumstances exist. The courts have found that the eminent destruction of evidence is an exigent circumstance allowing the authorities to enter a residence without a warrant.

The question that constantly comes up in my mind is why would anyone allow the police to enter their house and search it knowing that there is a significant amount of methamphetamine in the house. If any of the defendants had just said “no” I will not talk with you or “no” you cannot come in, or “no” you cannot search none of this would have happened and they would not have be serving decades in prison. The Fifth and Fourteenth Amendments give people the absolute right not to talk to the police. The Fourth and Fourteenth Amendments Amendments give people the right to refuse entry to any officer who does not have a search warrant into their residence and to deny the officers the right to search the residence.

Even assuming that the police do not always tell the truth it is obvious that the defendants talked themselves into being arrested. Did they think that when talking with experienced officer they could talk themselves out of being arrested–unlikely. And I do not know about this case but by talking they endanger themselves because others get arrested and they may be killed. It makes no sense.

The question before the Seventh Circuit Court of Appeals in Tully v. Rush County Prosecutor Paul Barada et al was whether one who had been issued a citation and had not been incarcerated could sue for false arrest on the grounds that the prosecutor had violated their Fourth and Fourteenth Amendment rights when probable cause did not exist to charge them.

The Seventh Circuit ruled that a Section 1983 claim cannot be based purely on a citation without an actual arrest. A citation, unlike an arrest does not involve a seizure under the Fourth Amendment.

Michael Tully and Brock Carfield were convicted of shooting across a highway in Indiana after a citizen reported hearing gun shots and they were found with a gun and a dead raccoon in their vehicle. The conviction was reversed on appeal and they sued.

The Court found that they did not have a cause of action since they were cited and were not arrested. They had not been seized under the Fourth and Fourteenth Amendments and therefore could not sue. Probable cause, without an arrest, according to the Seventh Circuit is not cause for a 1983 cause of action.

Friday, we looked at Florida v. Powell in which the Supreme Court looked at a version of the Miranda warnings that did not clearly state that an arrestee had the right to have an attorney in the room with him/her while being interrogated while in custody.

Today we look at whether the Supreme Court should have considered Powell in the first place. Powell is an appeal from the Florida Supreme Court which ruled the version of the Miranda warnings used by the Tampa police is unconstitutional. The version used by Tampa police states:

You have the right to remain silent. If you give up the right to remain silent, anything you say can be used against you in court. You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview

The Florida Supreme Court held: “[b]oth Miranda and article I, section 9 of the Florida Constitution require that a suspect be clearly informed of the right to have a lawyer present during questioning,” and that the warnings given to Kevin Dewayne Powell did not satisfy either the State or the Federal Constitution.

The question is whether the Florida Supreme Court found “independent state grounds” to reverse Powell’s conviction. The Bill of Rights guarantees certain rights. For the most part these rights, under the Fourteenth Amendment, are binding upon the states. But nothing in the Constitution or the Bill of Rights limits the states from granting its citizens greater rights than are guaranteed in the Constitution. For example while the Supreme Court may have found the Tampa version of the Miranda warnings sufficient to protect Fifth Amendment rights against self incrimination, the Florida Supreme Court has every right to hold the Tampa version of the Miranda Rights insufficient to protect rights granted in the Florida Constitution.

On remand the Florida Supreme Court has every right to say that confessions made after being read the Tampa version of the Miranda inadmissible as a violation of the Florida Constitution. Therefore the Supreme Court as a rule refuses to consider cases where the state court has ruled on the issue and found that it violates the state Constitution. The Florida Supreme Court like any other state court may find that a particular act violates both the state constitution and the Federal Constitution as the Florida Supreme Court did in this case, according to Justice Stevens in his dissent. But since the Supreme Court decision will not have any effect upon Powell if the Florida Supreme Court finds that Powell is protected under the Florida state constitution, the Supreme Court does not take cases where

[t]he state court ‘make[s] clear by a plain statement in its judgment or opinion that the federal cases are being used only for the purpose of guidance, and do not themselves compel the result that the court has reached.’ . . . [T]he real question is whether ‘the adequacy and independence of any possible state law ground is … clear from the face of the opinion.”

The U. S. Supreme Court’s majority opinion written by Justice Ginsburg, and joined by every justice except Stevens, states that

the Florida Supreme Court treated state and federal law as interchangeable and interwoven; the court at no point expressly asserted that state-law sources gave Powell rights distinct from, or broader than, those delineated in Miranda

But as Justice Stevens points out that the Florida Supreme Court said that the Tampa version of the Miranda rights under neither the United States Constitution or the Florida Constitution provided the arrestee with sufficient notice that he/she could have an attorney present during any interrogation it implicitly stated that there are independent state grounds for excluding the confession under the State Constitution. Therefore the Supreme Court’s decision is no more than an advisory opinion and the Court should not have accepted the case.

This is the type of activism that members of the majority would reject under other circumstances. The Supreme Court, they would argue, should only accept cases where their opinion would mean something and where they were not interfering with the State Courts rulings on state law.

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 United States v. Johnson the Third Circuit Court of Appeals upheld the Terry search of Anthony Johnson and affirmed his conviction for possession of a weapon by a convicted felon.

Tammy Anderson a resident of Harrisburg, Pennsylvania called 911. She told them that she saw a white taxicab pull up next to a van across the street from her residence. She said she saw two men get out of the taxicab and she heard a shot. It was too dark to get a decent description of the men but she saw the cab and it had a green light on top. She told the operator her name and telephone number. She described the lot across the street. She told the operator when the the taxicab left and the direction it was going.

Officer John Doll arrived at the lot across the street from Anderson’s house before Anderson got off the phone with the 911 operator but after the taxicab left. He quickly found the taxicab and developed eye contact. However he waited until other officers arrived to stop the vehicle.

For the safety of the officers they took out their guns and ordered Anthony Johnson and the driver of the taxicab, Kenneth Cobb, out of the taxicab and handcuffed them. A revolver with two spent shells was found in the back seat near where Johnson had been sitting.

In analyzing a Terry stop the courts follow a two step process, First they look at the initial stop and then they look at whether steps following the stop were limited to discovering a weapon.

The court found that Anderson provided sufficient information to allow Officer Doll to stop the taxicab and that the searches were appropriate since Anderson’s claim that she heard a gun shot was credible and the safety of the officers demanded the search.

However, I would like to concentrate for a moment on Kenneth Cobb. Apparently he was not arrested. But he was ordered out of the vehicle, handcuffed and searched. When Officer Doll and his colleagues pulled over the taxicab they had a reasonable suspicion that someone in the vehicle had shot a gun. Both Johnson and Cobb had prison records so it was presumably illegal for either one to be in possession of a gun. But Terry says:

At the time he seized petitioner and searched him for weapons, Officer McFadden had reasonable grounds to believe that petitioner was armed and dangerous, and it was necessary for the protection of himself and others to take swift measures to discover the true facts and neutralize the threat of harm if it materialized.

Anderson only heard one gun. Officer Doll only had a reasonable suspicion that one of the men was “armed and dangerous.” So it is equally possible that either Johnson or Cobb had the gun. Thus does that give Officer Doll the right to search both men or neither man?

Nashville police went to the residence of Derrick Archibald to serve an arrest warrant. It took approximate ten minutes from the time they knocked on the door for Archibald to open the door. During that time the officer nearest the door only heard one person inside.

When Archibald opened the door an officer momentarily stepped inside the residence, grabbed him, pulled him outside, handcuffed him and arrested him. Then officers conducted a protective sweep of the unit. During the sweep the officers found cocaine on a table. They used the cocaine to show probable cause for a search warrant. Whille searching the residence pursuant to the search warrant they found a gun. He was charged with being a convicted felon in possession of a gun.

In Maryland v. Buie

the Supreme Court . . . identified two types of warrantless protective sweeps of a residence that are constitutionally permissible immediately following an arrest. The first type allows officers to ‘look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.’ . . . The second type of sweep goes “beyond” immediately adjoining areas but is confined to “such a protective sweep, aimed at protecting the arresting officers. ‘. . . The first type of sweep requires no probable cause or reasonable suspicion, while the second requires “articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.’

Before the Sixth Circuit Court of Appeals the government argued both Buie prongs. But the court found that the government had not argued that the search was permissible under the first prong which does not require probable cause but which does require the search to be in an area adjacent to the arrest before the District Court and therefore it waived the argument.

But in any case the court found that the search of the residence did not meet either Buie prong and therefore the search warrant was not based upon probable cause and the gun must be suppressed. It did not meet the first prong because the arrest occurred in the doorway and therefore the`search of the entire unit was not in the`area immediately adjacent to the arrest. Nor did it meet the second prong. The officers did not have articulable facts to base a reasonable belief upon that there was another person in the residence. The government’s argument that Archibald was a dangerous criminal is not relevant since it is not related to the requirement that there be facts showing that the officers were in danger from other people in the unit.

The California Supreme Court ruled that having a deputy escort an in-custody defendant to the witness seat and sit next to him/her while he/she testifies is not a violation of the defendant’ due process rights under the Fifth and Fourteenth Amendments to the U. S. Constitution.

Lorenzo Stevens was charged with attempting to molest his daughter and giving her crack. His daughter lived with her grandmother. According to her testimony at trial, he called her up and asked her to meet him at Taco Bell. They walked to a truck he used as a residence. He gave her a piece of rock cocaine and attempted to get her to copulate him. She escaped and reported the incident to her grandmother and her mother. The police were called. Stevens led the police on a wild escapade by jumping from roof to roof.

According to his testimony his daughter made up the story. He claimed that she made up the story after he asked her if she was sexually active and if she used drugs.

Prior to testifying he was escorted to the witness seat by a sheriff’s deputy who sat beside him during his testimony. No other witness was escorted by a deputy and deputies did not sit beside any other witness.

While certain courtroom security techniques such as shackling the defendant or requiring him/her to wear jail garb while before the jury are “inherently prejudicial” and require a “manifest need” before they can be imposed having a deputy sit next to the defendant while he/she testifies is not an “inherently prejudicial” act requiring a “manifest need” for such a technique. The Court points out that American citizens are accustomed to having security offices in official places and the jury may not pay any attention to it. But as the dissent, by Justice Moreno points out having a uniformed guard sitting next to the defendant when he testifies, like shackling the defendant or having him/her dressed in jail clothes indicates that the defendant must be separated from the community at large.As Justice Moreno pointed out the use of a uniformed deputy sitting next to the defendant as he testifies violates the presumption of innocence.

The First Circuit Court of Appeals upheld a finding of summary judgment in favor of the City of Sandown, New Hampshire, its former police chief and a police officer. Ralph Holder and his estranged wife attended their son’s soccer game. During the game it started to rain and Mr. Holder asked his wife if she had brought a long sleeve shirt for their son. She said she hadn’t. A verbal confrontation commenced. Eventually Ms Holder bumped her husband and he instinctively pushed her away.

Ms Holder called the police. When the officers arrived Ms Holder told them that her husband had pushed her. Mr. Holder then told the officers that his wife had initiated the verbal confrontation and that she made the initial contact. He urged them to talk to nearby witnesses. He was then arrested and charged with simple assault. After the arrest the officers spoke to a couple of witnesses. None of the witnesses saw the confrontation but one said he heard that Ms Holder initiated the dispute.

The trial court granted summary judgment and Mr. Holder appealed on Fourth Amendment grounds as applied to the states by the Fourteenth Amendment.

An arrest violates the Fourth Amendment if is not based on probable cause. Probable cause exists when

at the time of the arrest, the “facts and circumstances within the officer’s knowledge . . . are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.

Probable cause requires only a probability that the arrestee committee the crime. Certainty is not necessary.The officer’s decision needs only to be reasonable.

According to the court the officers have no duty to check out the suspect’s defenses. Once they decide that probable cause exists and they can do that solely on the allegation of the alleged victim, they do not have to talk to witnesses or otherwise investigate whether or not the suspect committed the offense.

Mr. Holder further argued that New Hampshire law requires the officer to determine who was the primary physical aggressor. The law states

an arrest for abuse may be made without a warrant upon probable cause, whether or not the abuse is committed in the presence of the peace officer. When the peace officer has probable cause to believe that the persons are committing or have committed abuse against each other, the officer need not arrest both persons, but should arrest the person the officer believes to be the primary physical aggressor. In determining who is the primary physical aggressor, an officer shall consider the intent of this chapter to protect the victims of domestic violence, the relative degree of injury or fear inflicted on the persons involved, and any history of domestic abuse between these persons if that history can reasonably be obtained by the officer.

N.H. Rev. Stat. Ann. § 173-B:10, II.

But according to the First Circuit a state may impose restrictions on arrest greater than what is demanded by the Fourth Amendment. But the Federal court need not consider state law. It is limited to the requirements of the Fourth Amendment, Since the Fourth Amendment only requires that the officer determine whether probable cause exists and since based upon Ms Holder’s statement probable cause existed summary judgment was properly granted.

The charges against Mr. Holder were eventually dismissed. But he had to suffer the consequences of being arrested. Perhaps he spent some time in jail. He may have had to hire a lawyer. If he had money he may have had to pay for a bail bond. He could have had consequences on his job due to time missed either while in jail or attending court appearances. His wife may have gotten a restraining order preventing hem from seeing his son. His child support may have been raised if as a result of the arrest he was not able to share custody or have visitation with his son.

All of this could have been prevented if the police had done a thorough investigation before arresting Holder. As a result of the grant of summary judgment Holder is not entitled to any compensation for the poor investigation prior to his arrest.

This is going too far. James Nichols was arrested for going to church.

Nichols is a convicted sex offender. North Carolina has a law that convicted sex offenders cannot come within 300 feet of any place intended primarily for the use, care or supervision of minors. Nichols was arrested on a Sunday afternoon after attending services at the Moncure Baptist Church. The Moncure Baptist Church has a daycare program for children.

Nichols’ arrest has three problems. The first is a factual issue. Can a church be a place intended primarily for the use, care or supervision of minors? I doubt it. The primary purpose of a church is to propagate religion and serve as a place of prayer. Second, it is vague. What is a place intended primarily for the use, care or supervision of minors? Would that include a residence where a family with children live? Would that include a courthouse which has a daycare center for children while their parents are in court? Would it include a public beach? Due process demands that laws be written in a way that people can know when they violate the law. Here there is no way to know what places the sex offender must avoid. Third and most important is that the law criminalizes First Amendment activity. The First Amendment states, in pertinent part:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .

The Fourteenth Amendment extended the First Amendment to the states and thus legislatures are prohibited from making any law which prohibits the the free exercise of religion. Nichols is challenging the arrest and the interpretation of the law. I hope he wins.

This is not to say that the church cannot forbid Nichols from joining the church or attending services. The minister or the congregation can ban him, although one of the goals of most churches is to bring sinners to religion. But the government cannot under the First Amendment prevent people from practicing their religion. Why don’t we leave the question to the minister and the congregation. They can determine whether they feel threatened by Nichols’ presence.