Los Angeles Police Department Detective Todd Hankel was surveilling a suspected stash house in Pacoima, California. ¹ He observed a man later identified as Jesus Antonio Ramos Cervantes approach in a truck. Cervantes got out of the truck, went into the residence and came out carrying a large white box. LAPD officers followed him to a house on Polk Street using a indirect route. He left the residence with another man in a BMW. They returned and Cervantes left the house in the truck. Hankel asked two officers to find a legal way to stop and arrest Cervantes. Cervantes did not have a driver’s license so the officers searched his vehicle and arrested him.

After Cervantes was arrested his attorney made a motion to suppress the evidence found in the vehicle. The prosecution argued that under the automobile exception to the Fourth Amendment’s warrant requirement there was probable cause to believe that evidence of criminal activity would be found in the automobile and that under the community caretaker exception the search was a valid inventory search.

The District Court accepted the prosecution’s arguement but the Ninth Circuit Court of Appeals rejected it and reversed the conviction. Under the automobile exception to the Warrant requirement police officers may search the interior of a vehicle if they have probable cause to believe that evidence of a criminal act will be found therein. The Circuit Count found that the only evidence of criminal activity involving the vehicle is that a box was removed from the residence and that Cervantes did not take a straight route to the Polk Street residence. The court held that probable cause did not exist. While Hankel assumed that the box removed from the alleged stash house contained contrabrand, he provided no facts supporting his allegation that the residence was a stash house or that the box contained contraband. The failure to take a straight route to the Polk Street residence could be caused by many thing. In fact Cervantes stopped at a liquor store and made a purchase. Considering all of the evidence the appellate court could not say that there was probable cause to search the vehicle.

As to the community caretaker exception there was no evidence that the car was impeding traafic or that it was threatening public safety or convenience. Therefore the inventory search was improper and evidence found in the vehicle must be suppressed.

A complicated area of the law is whether to run sentences on different counts or different cases concurrently or consecutively. The issue becomes much more difficult when different judges of different courts are sentencing an individual on different charges. The Supreme Court addressed one aspect of the issue last week in Setser v. United States.

Monroe Ace Setser was charged in both Federal and state courts with methamphetamine related charges. The District Attorney also move to revoke a state probation in another case. While the Federal sentencing occurred prior to the state sentencing the Federal judge order that his 151 month Federal sentence run run concurrent with his state methamphetamine sentence but consecutive to the time he would get on his probation violation. The Texas state court threw a curve into the process by ordering the sentence on the five year probation violation to run concurrent with the ten year state methamphetamine case.

Since the state methamphetamine case runs concurrent to the probation violation it is obviously impossible to carry out the Federal sentence mandating that it run concurrent with the state methamphetamine crime but consecutive to the probation violation. The question before the Supreme Court was who gets to decide whether the Federal sentence will run concurrent to the state sentence or consecutive to it. Both Setser and the government argued that the Bureau of Prisons (BOP) should make the decision. The Bureau through its power to decide whether the the Federal sentence should be spent in the Federal Prison or the state prison can make that decision. If the Bureau credits Setser’s time in the state prison against his Federal sentence he will have a de facto concurrent sentence. Otherwise he will have a consecutive sentence.

But the Supreme Court said “no.” It held that the decision of whether a sentence should run concurrently or consecutively is traditionally a judicial decision and it upheld the lower court decision running the cases consecutive to each other.

It should be noted that Selser can challenge the BOP’s refusal to credit his time in state custody administratively and if need be through a writ of habeas corpus.

On the evening of September 22, 2009 Jamie Shetler called the Pomona, California police department to report that her father, Scott, was using and manufacturing methamphetamine in his house. The police immediately went to the house. The garage attached to the residence was open and according to the officers a chemical odor emanated from the garage. The rear portion of the garage was partitioned off. In order to determine if anyone was behind the partition or whether methamphetamine was in the process of being manufactured the officers entered the garage. While they saw a few items associated with methamphetamine they did not see anyone and nothing was being manufactured.

The officers left the garage and knocked on the front door. Scott Shetler came out a side door. He was handcuffed and detained outside the house. Officers entered the house and began searching it. Guns and items associated with the manufacture of methamphetamine were found.

Half way through the search they obtained a waiver from Shetler’s girl friend. At no time did the officers obtain a search warrant.

In the early hours of the 23rd Scott Shettler gave a statement in which he confessed and he was arrested. The next day the DEA took him to the house, found another gun and took a statement about the gun. The trial court suppressed all of the physical evidence except that which was found in the original search of the garage but it allowed the various statements to come into evidence. On appeal admission of the statements was contested.

The Ninth Circuit Court of Appeal held that the government failed to carry its burden to show that Shetler’s statements were not the product of the illegal searches. A statement is considered the fruit of an illegal search if the officers confront the defendant with evidence illegally taken or if the defendant’s statement is a result of his knowledge of the government’s possession of items illegally taken. There was no evidence at the hearing that Shetler was not confronted with illegally seized items and as he was detained he watched the government seize numerous items which the court later decided to be seized illegally.

Not only were the statements the result of the illegally seizure, they were not sufficiently attenuated from the illegal acts. “Three factors are relevant in determining whether Shetler’s statements were sufficiently attenuated from the underlying illegality to be admissible: (1) the temporal proximity of the search to the confession; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct.” The Ninth Circuit found that the searches were sufficiently close to the statements as to not be overly attenuated. The initial confession occurred outside Shetler’s house during the search. While the second statement was made a couple days later there were no intervening circumstances that would have influenced Shetler to confess as “to dissipate the taint.” The officers were clearly looking for evidence without a search warrant. They waited until the search was half over before getting consent. There lack of good faith is apparent.

The evidence at the trial that Shetler maintained the residence for a primary or principle use was the manufacture, distribution, or use of methamphetamine was weak and the statements were a major part of the government’s case. Therefore the conviction was reversed and the case remanded to the District Court.

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.

Last spring we wrote about police scandals in Contra Costa County California and Antioch. The head of the Central Contra Costa Narcotics Enforcement Team (CNET), and the owner of a private detective agency, both former Antioch police officers were accused of stealing drugs from the CNET safe and selling them to the clients of Chistopher Butler’s private detective agency. Butler was further accused of setting up the husbands of his clients who were seeking divorces for DUI arrests by having the men lured into a bar by an attractive women and then by having Tanabe arrest the men for driving under the influence.

Now it turns out in a new Federal indictment that Butler apparently bribed Tanabe with a gun and cocaine in exchange for making the arrests. This is the same police department that allowed Phillip and Nancy Garrido to live in their midst with kidnap victim Jaycee Dugard and her daughters put away in a back yard shack

In Tapia v. United States the Supreme Court held that under Federal statutory law judges can not consider rehabilitation in determining how to sentence a defendant or the length of the sentence. The Ninth Circuit last week in United States v, Grant held that Tapia applied not only to the original sentence but also to violations of supervised release conditions.

Leon W, Grant was convicted of two counts of bank fraud. He was sentenced to two days in jail and five years supervised release. Among the conditions of the supervised release was that he abstain from alcohol and drugs. But it became apparent that he was unable to do so. Eventually the court sentenced him to two years in prison, a sentence significantly above the guidelines, in order that he could be rehabilitated. The Ninth Circuit revoked the sentence and remanded the case for resentencing.

Generally when we incarcerate a person we do it because they intentionally committed an act that violates societal rules. Leon Grant is an addict. The court found that he had no control over his behavior. While he certainly needed rehabilitation, we do not generally deprive an individual of his/her personal liberty for for long periods ¹ for acts for which were not committed intentionally.

While most prisons have rehabilitative programs,they generally do a poor job of rehabilitation. Often they do not have the resources to provide rehabilitation to everyone who needs it. There is a long wait to get into a program and rehabilitation has only a limited effect when people are in a location where they do not have access to drugs or alcohol. The real test occurs when they leave the prison. But by then they no longer have access to the rehabilitative facilities and they often relapse.

Jason Cornell was charged with two rapes in New York. One occurred in Monroe County. The other in Ontario County. He was tried and convicted on both of them in Ontario County.

Both incidents occurred, with different women on narcotics buying trips from Watkins Glen in Schuyler County, New York, to Rochester in Monroe County, New York.

His trial counsel failed to object to venue in Ontario County for the incident that occurred in Monroe County. The question before the Second Circuit Court of Appeals was whether his counsel was incompetent and whether counsel’s incompetence prejudiced Cornell. Furthermore the court had to determine whether the state court decision was an unreasonable interpretation of established Supreme Court decisions under the Anti-Terrorism and Effective Death Penalty Act (AEDPA).

The Second Circuit found that counsel was incompetent. Counsel did not research New York’s venue rules. While there is a statute that allows an individual to be charged in any county through which he/she travels committing an offence it has been modified by a court ruling such that it only applies where the actual county where the crime occurs is unknown. Here it is undisputed that one incident occurred in Monroe County and the other in Ontario County. Furthermore there was no strategic reason for not raising the issue. Counsel requested a severance on other grounds which was denied. But he could have gotten a severance if he had raised the venue question.

But a finding of incompetence is insufficient. Under the Supreme Court decision in Strickland not only must there be incompetence but it must also prejudice the defendant. Here if his counsel had raised the issue it would have gone before the jury where there was overwhelming evidence that one offense happened in Monroe County.

Since the issue was raised on habeas corpus the AEDPA requires that the state court’s decision not only be wrong but it must also be unreasonable. The Second Circuit found that the state court’s denial of Cornell’s claim unreasonable misinterpreted Strickland in that it found that despite trial counsel’s prejudicial error he/she was not incompetent. Therefore the court reversed the conviction for the Monroe County case and ordered the case dismissed unless the Monroe County prosecutor decides to retry the matter.

Paulette Martin, Derrek Lewis Bynum, and Learley Reed Goodwin were convicted of committing a number of drug related charges. The District Court also forfeited various items including “over $400,000 in currency from accounts held by Appellants, a Mercedes automobile owned by Martin, and several million dollars” that the court found to be the proceeds of the drug trade.

By January of 2005 the government was pursuing both civil and criminal forfeiture of the items. Martin challenged the civil forfeiture during February of 2005. Under the Civil Asset Forfeiture Reform Act, 18 U.S.C. § 983 (“CAFRA”) the government has 90 days from the date Martin filed her complaint to do one of the following:

(1) ‘file a [civil] complaint for forfeiture,’ (2) ‘obtain a criminal indictment containing an allegation that the property is subject to forfeiture[ ] and take the steps necessary to preserve its right to maintain custody of the property as provided in the applicable criminal forfeiture statute,’ or (3) ‘return the property.’ 18 U.S.C. § 983(a)(3)(B)

The government did none of these. Failure to comply requires release of the property. However, the court found the claim untimely. ¹ The government obtained a criminal seizure warrant.

After the criminal trial the court held two hearings on the forfeiture announcing that it planned to declare a forfeiture but the subject of the forfeiture was somewhat unclear. Then it sentenced the defendants on December 19, 2006, without mentioning the forfeiture. No one objected at the sentencing. It wasn’t until June 14, 2007 that the court entered its final judgement on the forfeiture and it did not amend the judgement.

The law requires that the forfeiture which is a type of punishment be entered at the time of the sentencing and be part of the judgement.

On appeal the defendants either individually or jointly argued that the civil forfeiture was illegal and that invalidated the criminal forfeiture. They also argued that the criminal forfeiture was invalid in that it was untimely. The Fourth Circuit Court of Appeals ruled that even if the civil forfeiture was illegal the government can forfeit the property on independent grounds in the criminal forfeiture action. Although the requirements are found in Federal Rule of Criminal Procedure 32.2 it does not state what the remedy is for the court’s failure to comply. The defendants argued that the court lost jurisdiction to order the forfeiture but the Fourth Circuit held that the court did not lose jurisdiction as long as prior to sentencing it made it clear that that it planned to order forfeiture. The dissent argued that at best the court must make it clear exactly what was going to be forfeited and without doing so it lost jurisdiction. But the majority thought that the court made it sufficiently clear and upheld the forfeiture.

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.