Last May the Ninth Circuit ruled that it was not a violation of Charles Byrd’s civil rights to be searched by a female sheriff’s deputy during a pretrial detention at Maricopa County (Phoenix) Durango jail. Apparently the Court is now having second thoughts because a majority of the judges on the Ninth Circuit voted to grant an en banc hearing where eleven of the judges will reconsider the issue.

During a search of his housing area in the jail for contraband, Byrd was ordered to strip to his underwear. Then a female cadet was ordered to search him including his groin area through his underwear even though male officers were nearby and could have performed the search. The opinion states:

When it was Byrd’s turn, the officers ordered Byrd to walk
over to the cadets, stand facing away from them, raise his
arms above his head, and spread his legs. O’Connell
approached Byrd from behind and conducted the search as
follows: She ran her hands across the waistband of Byrd’s
boxer shorts and pulled the waistband out a few inches to
check for anything hidden or taped inside; she did not look
into his boxer shorts. She lightly frisked over his boxer shorts
and down the outside of his thigh, stopping at the bottom of
the shorts. Through the boxer shorts, O’Connell moved
Byrd’s scrotum and penis with the back of her hand in order
to frisk his groin, applying light pressure to feel for contraband.
She then placed her hand at the bottom of his buttocks,
ran it upward over his boxers, and separated the cheeks to
search for any contraband taped, placed, or hidden inside

The original Ninth Circuit panel stated:

We are troubled by the overall circumstances
of the search in question. The scope of the search was
invasive in that it involved contact with Byrd’s genital region,
albeit through his boxer shorts. The embarrassment inherent
in such a pat down and partial strip search was amplified by
several factors: the cross-gender aspect; the fact that it took
place in the presence of many officers and cadets, one third
of whom were female; and that it took place in the presence
of a person with a hand-held camera, notwithstanding the fact
that the record does not give rise to the inference that Byrd’s
search was recorded.

But it found that the search did not violate the Fourth or the Fourteenth Amendments to the Constitution. It found that the search was done for a legitimate security need of the jail and it was done pursuant to jail regulations limiting the cross gender physical connection. Therefore it complied with the reasonableness requirement of the Fourth Amendment.

Judge Fernandez dissented from the panel’s finding that the search complied with the Fourth Amendment’s reasonableness requirement. While he admitted that cross gender searches might in some circumstances be necessary, he found no emergency or particular need for a cross gender search in this case and without an emergency he stated the reasonableness requirement was not met.

Now the Ninth Circuit will have a chance to review and reconsider its decision.

The Supreme Court yesterday, as expected, granted certiorari to McDonald v. Chicago. In the 2007-2008 session of the Supreme Court, it decided District of Columbia v. Heller. In Heller the Supreme Court decided that the Second Amendment to the Constitution granted individuals a limited right to possess guns. Prior to Heller the general view was that the Second Amendment only grant a collective right to members of militias to possess guns.

Heller involved Federal law since it involved the District of Columbia. Therefore the Supreme Court did not decide whether the Second Amendment limited the ability of the states and local governments to control gun ownership. The Bill of Rights originally only protected citizens from the actions of the United States government. Over time the Supreme Court has gradually decided that the Fourteenth Amendment incorporated the various rights guaranteed by the Bill of Rights into the national law guaranteeing such rights against state and local limitations. However the Second Amendment has not been incorporated by the Supreme Court. This question will be decided in McDonald The Seventh Circuit took the traditional view following Nineteenth Century precedent in ruling that Heller is limited to Federal laws. On appeal the Supreme Court will rule whether it applies to state and local governments.

The traditional way to incorporate rights guaranteed by the bill of Rights is through the Due Process Clause of the Fourteenth Amendment, While Allen Gura, the attorney who argued Hellerr before the Supreme Court and who will argue McDonald will argue that the Supreme Court should use the Due Process Clause to incorporate the Second Amendment, alternatively he will argue that the Court should use the Privileges and Immunities Clause of the Fourteenth Amendment. Many modern scholars believe that the Privileges and Immunities Clause is the appropriate way to incorporate the rights guaranteed by the Bill of Rights. This will give us an opportunity to see whether the Supreme Court will adopt this theory.

The Sixth Circuit found that probable cause supported the search warrant in United States v. Dyer and affirmed the conviction.

A Tennessee police officer swore out an affidavit for a search warrant for a cabin rented by Stacy Lee Glance and used by Glance and Kenneth J. Dyer. The bulk of the information in the affidavit came from an unnamed confidential informant who was facing drug charges and hoping to get the charges dismissed in exchange for his/her assistance in convicting Glance and Dyer. Glance went to trial and was found not guilty. Dyer entered a conditional plea allowing him to challenge the search warrant on appeal.

The informant claimed to have seen a drug deal involving methamphetamine in the cabin. The authorities corroborated some minor details of the informant’s statement. The informant took the officer to the cabin. Cars owned by Glance and Dyer were outside the cabin. Furthermore Dyer and Glance were seen at the cabin. Dyer and Glance have criminal records for methamphetamine related crimes and Dyer had an outstanding warrant for methamphetamine from North Carolina.

On this information the Sixth Circuit found that probable cause supported the warrant. The issue here is the reliability of the information received from the informant. The problem with this is that all of the corroborating evidence involves innocent behavior. All we really know is that the informant knows Glance and Dyer. We also know that the informant has reason to provide false information since any information that he/she provides will be used to dismiss the charges against him/her or to ameliorate the sentence for his/her criminal behavior.

Joseph Thomas was pulled over by an officer for a traffic violation. The officer then properly checked to see if Thomas had any warrants. The officer found no warrants in the name of Joseph Thomas but he did find a warrant in the name of Joshua Thomas for having six outstanding parking tickets. For some unknown reason Joshua Thomas’ warrant had Joseph Thomas’ drivers license number on it, although it had different addresses.

Thomas sued in Federal court on various state and Federal grounds, including violation of his Fourth Amendment and Due Process rights. He argued that under Illinois law officers had no right to prosecute individuals for failure to pay parking tickets.

The Seventh Circuit ruled that Thomas did not have standing to sue under the grounds that there was no right to arrest someone for failure to pay parking tickets since it was Joshua Tomas, not Joseph Thomas who failed to pay his parking tickets.

Thomas’ Due Process claim was that he did not receive notice that he could be arrested for not paying traffic tickets. But the Court easily denied this claim since Joseph Thomas did not have any outstanding parking tickets he would not have received notice even if the city gave such notices.

As to the Fourth Amendment claim the court citing Supreme Court decision in Atwater found that if there is probable cause for the arrest there is no Fourth Amendment violation even if there is no right to arrest the defendant under the statute.

But the problem here is that Thomas suffered a grievous wrong. He was arrested and forced to put up bail for a crime he did not commit. But there appears to be no remedy for the wrong. Usually in these cases you argue the lack of probable cause. But that’s a tough standard to meet. Without really discussing it the Seventh Circuit seems to accept that the officer had probable cause to arrest Thomas based on the fact that the warrant for Joshua Thomas had Joseph Thomas’ license number on it.

The Maricopa County (Arizona) Probation Department and the Superior Court of the County initiated a program for individuals convicted of aggravated driving under the influence called the DUI Court. Actually the program consists of three different DUI courts–one a “regular” DUI Court, the second, for Spanish speaking probationers, and the final for Native American probationers. The Spanish speaking DUI Court and the Native Native American DUI Court try to use ethnically appropriate techniques to reach the particular communities. Among the tools used by all three courts are monthly check-ins, intensive probation supervision, substance abuse programs, peer support and counseling.

The County Attorney for Maricopa County together with several victims of drunk driving accidents sued in Federal Court for declaratory judgment on the the basis that the programs are ethnically discriminatory. They allege that the programs violate civil rights laws and the Fourteenth Amendment.

The District Court and the Ninth Circuit Court of Appeals dismissed the suit on the grounds that the plaintiffs did not have standing to bring the suit.

“To have standing to sue in federal court, a plaintiff must
allege ‘such a personal stake in the outcome of the controversy
as to warrant his invocation of federal-court jurisdiction
and to justify exercise of the court’s remedial powers on
his behalf.”

The Court ruled that neither the county attorney, acting on behalf of the state nor the victims have a sufficient personal interest in the DUI courts to sue in Federal Court. The County attorney’s interest is too general and since the courts are punitive the victims have no personal interest.

Since the plaintiffs do not have standing the court did not consider the merits of the suit. I would presume that the next step is for a probationer assigned to either the Spanish speaking DUI Court or the Native American DUI court to sue claiming racial bias.

The Ninth Circuit Court of Appeals upheld the suppression of evidence seized from Michael Young’s hotel room at the Hilton Hotel in San Francisco. Young was a guest in room 13575 at the Hilton. Hilton staff accidentally gave him the key to room 13572. The guest in room 13572 claimed that his room was burglarized. The staff of the hotel assumed that Young was the thief even though there was some question as to whether the theft occurred prior to Young getting the wrong key.

Hotel security searched Young’s room while he was out. None of the items allegedly stolen from Room 13572 were found. But they did find a gun. It was against hotel rules to have guns on the property but Young had not been told the rule. They temporarily locked the room and when Young returned late that night they called the police. Officer Koniaris was outside the building and he responded. He spent 20 to 30 minutes talking to Young. Young told Koniaris that Young had a state prison record. Koniaris handcuffed Young to a bench in the security office. He called his sergeant who told him that he could not search Young’s room without a search warrant. Instead of getting a search warrant he watched while hotel security searched the room and showed him the gun. He then seized the gun and arrested Young.

The search of the room and the seizure of the gun was clearly illegal. Like a house, a search warrant is absolutely necessary to search a hotel room. There was some question about the Hilton’s policy in evicting guests. But it was not the policy to evict people found with guns. The guns were to be kept in a secure place. While it may have been the policy to evict people who committed crimes at the hotel, there is no evidence that he was evicted and while he had been temporarily locked out of the room his property was still in the room. There seems to be little question that at the time of the search Young still had a legitimate expection of privacy in the room.

The remaining question is whether the gun would been seized despite Koniaris’ illegal seizure of the weapon. The dissent by Judge Ikuta argues that the inevitable discovery exception to the exclusionary rule applies. However the inevitable discovery exception does not apply when the evidence could only have been seized legally if a search warrant had been obtained and the police did not get the search warrant. The purpose of the exclusionary rule is to act as a disincentive to police overreaching and the police should not be able to benefit from the failure to comply with the Fourth Amendment’s search warrant requirement. Therefore the majority upheld the District Court’s suppression of the gun found in Young’s room.

In People. Nguyen the California Supreme Court answers the question of whether a juvenile conviction, in which California does not grant a jury trial can serve as a prior conviction under Apprendi In Apprendi the United States Supreme Court ruled that in order to sentence someone to an aggravated sentence all facts must be determined by a jury or by admission. The Supreme Court left one exception to the rule and that is prior convictions. It said:

Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.

But, under California law, a finding that a crime was committed in juvenile court is an adjudication, not a conviction and as Justice Kennard points out in dissent one reason for this is that a juvenile is not permitted to have a jury trial.

Nguyen, as part of a plea bargain, plead to possession of a weapon by a convicted felon and submitted the question of whether a prior juvenile adjudication for assault with a deadly weapon was a strike under the Three Strikes Law to a Court trial. The court found that it was a strike and therefore doubled his sentence from 16 months to 32 months. If he had two strikes he would have been sentenced to a minimum of 25 years to life.

The majority gives two reasons for finding that an adjudication in a juvenile matter can be used a prior conviction in a three strikes case despite not being found to be true by a jury.

First in the adult matter all findings of fact are made by a jury. The jury is allowed to determine whether or not there is a prior conviction and whether the conviction is for a matter that comes within the purview of the Three Strikes Law. Since the failure to submit the juvenile case to a jury is not in the case for which the person is going to be sentenced the matter is not strictly one that comes under Apprendi.

Second, under Apprendi the issue which triggers the additional punishment is not the felonious conduct which lead to the juvenile adjudication, but rather the fact of the prior adjudication. As the Supreme Court stated in Apprendi it is the fact of the conviction, not the felonious conduct which increases the sentence.

If the issue is not the felonious conduct, but rather the fact of a prior conviction and if we assume that for purposes of the three strikes law a conviction and an adjudication are the same thing as the Court does then the defendant gets a trial on all matters which increase the sentence since he/she is entitled to a trial on whether or not there was a prior conviction.

But as Kennard points out the purpose for doubling the sentence for a prior strike is not the fact of the conviction but rather the fact that the individual continues to perform felonious conduct. Furthermore Appprendi justifies the prior conviction exception to the requirement that any fact used to increase a sentence must be approved by a jury by arguing that

unlike virtually any other consideration used to enlarge the possible penalty for an offense . . . a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees.

Thus if a prior conviction is only exempt from the need for being found by a jury if it is based on fair notice, reasonable doubt and a jury trial the facts of a juvenile conviction, found without a jury trial cannot be used to increase a sentence.

Five years ago in Crawford v. Washington the Supreme Court held, in a decision written by Justice Scalia, that a defendant has the right to confront and to cross examine any prosecution witness who provides testimonial evidence. The only exception, and it is not really an exception is that statements made prior to trial, but under oath and subject to cross examination may be used at trial.

Yesterday, the Supreme Court reinforced Crawford. In Melendez-Diaz v. Massachusetts Scalia, writing for the majority, made it clear that Courts would be unable to try to weasel out of Crawford by finding evidence to be non-testimonial.

The case involved a Massachusetts statute which allowed a chemist’s certificate to be used at trial to make a prima facie showing, in a drug case that the seized substance is a particular drug. The Court ruled that the certificate, which it compared to an affidavit, was inadmissible testimonial evidence under the Sixth Amendment’s Confrontation Clause. Not only is it crucial evidence against the client but it was prepared in preparation for litigation.
Furthermore with the huge number of errors and the lack of scientific credibility for many forensic tests it is necessary to subject the chemist’s conclusions to cross examination.

The dissent claims that the chemist is not an accusatory witness and therefore the defendant need not confront him. But the Court’s opinion points out that the Sixth Amendment allows the defendant to confront all witnesses against him or her. Furthermore the dissent argues that the chemist is not a “conventional” witness. Scalia replies that it is immaterial that the witness is a scientist. He points to the large number of errors in forensic evidence. Nor is the Court concerned about any extra work that DA’s must perform to have live witnesses. When it comes to carrying out the will of the Constitution we are not concerned with extra work.

The Supreme Court on a writ of habeas corpus reversed a sentence of death in a Tennessee case based upon the failure of the prosecutor to comply with the requirements of Brady v. Maryland Brady required prosecutors to provide discovery of all ameliorating evidence in their possession or the possession of investigating police departments.

In Cone v. Bell, Warden the question was not whether the prosecutor had complied with Brady. All agreed it had not. But the question was whether the matter had gotten a fair hearing in the state courts and whether the failure to provide Brady discovery affected Cone’s right to a fair trial and sentencing under the Fourteenth Amendment. The Supreme Court found that the Tennessee court had not given Cone a fair hearing on the Brady issue. In fact the Tennessee courts had never considered the issue on its merits. At various times the Tennessee courts had ruled that Cone was not entitled to a hearing on the merits since he had already had a hearing and conversely that he had waived a hearing on the issue.

On August 10, 1980 Cone robbed a jewelry store in Memphis. He then led the police on a high speed chase. Eventually he abandoned the car and shot a police officer. Next he shot a bystander that attempted to aid in his arrest. He then tried to hijack another vehicle but he failed since he was out of ammunition. The next morning he tried to use his gun to get into the house of an elderly woman but she slammed the door and called the police. That afternoon he beat to death an elderly couple and ransacked their house. He was arrested several days later in Pompano Beach, Florida after robbing a drug store.

At trial he did not deny any of the incidents. Instead his counsel argued that he committed the crime while insane as a result of extreme amphetamine use. The state easily refuted the evidence and the jury found him guilty on all counts.

On direct appeal Cone raised a number of issues including the state’s failure to disclose a tape and some police reports. The Tennessee Supreme Court denied each of his claims. He filed a habeas with the primary grounds being incompetence of counsel. Again the court denied it. He filed a second habeas in pro per. While his petition was pending the Tennessee courts ruled that criminal defendants had the right to review their prosecutorial files. The trial court denied his petition but the appellate court appointed counsel and allowed him to file an amended petition. For the first time he was allowed to see his file and discover that their were a number of documents in it that had not been disclosed and that would have helped prove his drug use and his insanity. But the amended second petition was also denied by the Tennessee courts. They found that even if the discovery had been provided it would not have prevented his conviction. But they did not consider the effect that the discovery might have had on the jury’s finding of death.

The Supreme Court agreed that the discovery would not have affected the conviction but it found that if the discovery had been provided it might have affected the finding of death and it sent the case back to the Tennessee courts for a determination of whether the missing discovery would have affected the finding of death.

The U. S. Supreme Court ruled in Rivera v. Illinois that a trial court’s erroneous denial of a peremptory challenge to a juror is not a violation of Fourteenth Amendment’s Due Process Clause.

In both state and Federal courts the parties are entitled to voir dire jurors. Each side can excuse jurors either for cause or as a peremptory challenge. A challenge for cause occurs when the party believes that the prospective juror is unfit to serve on the jury. This generally occurs when the juror due to preexisting conditions is unable to fairly deliberate and decide the case, For example, in a domestic violence case, some jurors will state during voir dire that they will always side with the woman. Therefore since they are unable to listen to the testimony and impartially decide the defendant’s guilt or innocence a challenge for cause is appropriate.

Generally, each side is also entitled to a limited number of peremptory challenges. In Illinois each side is allowed seven peremptory challenges. Historically peremptory challenges can be made for any reason and the party does not have to explain why it is challenging the individual. However in the 1980′s the Courts limited peremptory challenges by requiring that they not be made for a discriminatory purpose based on race, sex, or ethnicity. The lead Supreme Court case is Batson v. Kentucky

At trial Rivera’s attorney peremptorily challenged Deloris Gomez. The judge erroneously denied the challenge on Batson grounds without saying whether the alleged discrimination was based on sex, race, or ethnicity.

Rivera appealed claiming that he was denied due process because of the erroneous denial of his peremptory challenge. The Supreme Court ruled that the failure to grant a peremptory challenge is not a constitutional error and affirmed the conviction. Since Rivera had a chance to challenge for cause any proposed juror and he did not he received a fair and impartial jury. The Sixth Amendment to the Constitution only guarantees a fair and impartial jury Therefore peremptory challenges are not subject to reversal on Federal appeal.