Jimmy Brown was placed in a squad car on a firearms charge. He was then given his Miranda rights. When asked if he understood them. his response was “pshh.” He then answered several questions and asked for a “deal.” ¹ He was later given the Miranda warnings again as the station house. This time he responded, “Yeah.”

Prior to his trial Brown moved to suppress his answers to the questions. The District Court denied the motion and the Seventh Circuit Court of Appeals affirmed the conviction. It held that his request for a “deal” and his selective answering of questions was sufficient evidence that he voluntarily waived his Miranda rights.

To me, it sounds as if it is, at most, a conditional waiver. He may be saying, if you give me a “deal,” I will talk. For that matter is the continued questioning of Brown after he asks for a deal an agreement by the officer to give Brown a deal?

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.

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

Robert Simmons was convicted of being a felon in possession of a firearm and ammunition. He appealed on Fourth and Fifth Amendment grounds.,

His housemate called the police and complained that a couple of days beforehand Simmons threatened him with a gun. The police arrived at 1:00 a.m. His housemate was waiting for them. Simmons was in his bed.

Simmons got up and the police asked him questions in the hallway about whether he had a gun, where the gun was located and disputes he had with his housemate. Simmons was cooperative and told the police that he had a gun in his room.

The police then searched the room.

The questions raised on appeal was the admissibility of Simmons answers to the police questions since they were asked without the giving of Miranda warnings and the admissibility of the items found in the room including the gun.

The Second Circuit found the statements admissible under the Fifth Amendment exception to the MIranda rule for the answers to questions asked for public safety reasons. The public safety exception does not require that Miranda warnings “precede questions reasonably prompted by a concern for the public safety or for the safety of the arresting officers for a suspect’s answers to be admitted as evidence of his guilt.” The court found that the officers had sufficient concern about possible injury to themselves, Simmons ant the housemate to avoid giving the Miranda warnings, even though the scope of the questioning exceeding that necessary to find out whether there was a gun and where it was located. Considering the pressure of the moment the officers could be excused for the additional questioning.

But the Circuit Court reversed the District Court’s upholding the search of the room and remanded the case to the District Court. The government claimed that the search of the room was justified by the exigent circumstances exception to the warrant rule. The exception allows a warrantless search “when the needs of law enforcement [are] so compelling that a warrantless search is objectively reasonable.” But the court did not find the existence of exigent circumstances. Simmons was in the hallway. The apartment was full of police. One of the officers was blocking the door to the bedroom so he could not get the gun. There was no reasons that the search could not be delayed until a search warrant was obtained. A person’s house is particularly protected from warrantless seaches and therefore the court reversed the conviction pending further action of the trial court.

This has not been a good week for police officers. Yesterday we discussed the denial of an appeal of an officer in Memphis who was sentenced to life plus 255 years for setting up drug deals. He then pretended to arrest the seller while he stole the drugs and money. Today we learn of the arrest of twelve people including eight active duty and retired New York City police officers who bought illegal weapons in New Jersey and transported them to New York.

They are accused of smuggling 20 firearms including three M-16 rifles, a shotgun and 16 handguns across state lines from New Jersey to New York. Most of the weapons had obliterated or altered serial numbers.

In addition the officers are charged with interstate transportation of stolen cigarettes and slot machines. The street value of the smuggled goods exceeded one million dollars.

The officers got the merchandise from an undercover officer in New Jersey. Prior to giving the guns to the officers the FBI made them inoperable but the officers did not know that.

New York mayor, Michael Bloomberg is leading a nationwide movement to remove illegal guns from the streets. It is called Mayors Against Illegal Guns and 600 mayors have joined the effort.

Richard Christy was convicted of possession of an unlawful firearm and sentenced to 204 months in the Federal prison. At trial Richard Babcock testified for the government that Christie and James Wulff attempted to sell him firearms. He refused the offer and called the police. On the other side two roommates of Christy testified that he was at a bar with them at the time of the alleged offer.

Christy’s lawyer asked the trial judge to give the standard Eighth Circuit alibi instruction. The Circuit’s instruction are not mandatory and the trial judge refused to give the instruction.

Christy appealed the conviction on the basis that the court denied him the right to have an instruction on the theory of his defense. A defendant has the right to an instruction regarding his/her defense theory if it ” is timely requested, correctly states the law, and is
supported by the evidence.” But in this case the appellate court agreed with the trial court that the general instructions on the need for proof beyond reasonable doubt and the burden of proof sufficiently covered the subject and counsel had sufficient opportunity to argue the alibi evidence. As a result the Eighth Circuit upheld the conviction.

The Fifth Circuit, in United States v. Portillo-Muniz faced the question, this week, as to whether undocumented aliens are covered by the Second Amendment.

Armando Portillo-Muniz was charged with possession of a firearm by an undocumented individual in violation of 18 U.S.C. § 922(g)(5). He had a .22 caliber handgun in the center console of his vehicle.

The Court found that undocumented aliens are not covered by the Second Amendment. The Second Amendment, like the First Amendment and the Fourth Amendment refers to the rights of the people. The court held that the “people” does not include undocumented aliens. The Court pointed out that the Supreme Court in District of Columbia v. Heller which upheld the Second Amendment right to possess a gun referred to “law-abiding, responsible citizens to use arms in defense of hearth and home.” The majority opinion held that this does not applied to undocumented aliens who committed the misdemeanor of entering the country without papers.

Judge Dennis dissented from the majority’s holding. He pointed out that the Supreme Court in United States v. Verdugo-Urquidez interpreted the word “people” in the Fourth Amendment context as protecting aliens who “have come within the territory of the United States and developed substantial connections with this country.” Portillo-Muniz entered the country voluntarily. He worked steadily and with the exception of entering the country illegally he complied with the country’s laws. He would remand the case with instructions to the trial court to determine if 18 U.S.C. § 922(g)(5) violates the Second Amendment.

The Armed Career Criminal Act (ACCA) provides for a minimum sentence of fifteen years for anyone who has three prior serious drug offenses or violent felonies. It defines a serious drug offense as any drug offense for which the maximum punishment is ten years or more in prison, according to state law.

The question in McNeill v. United States, decided yesterday, was whether a drug conviction is an ACCA prior based based upon the penalty at the time of conviction in state court or based upon the penalty at the time of the Federal Court trial.

Clifton Terelle McNeill had two two violent felonies on his record at the time he was convicted of possession of a gun and possession of cocaine for sale in Federal Court. He also had six drug offenses. At the time of his conviction on the drug offenses the maximum penalty in North Carolina was ten years. But in 1994, the North Carolina law changed providing a maximum sentence of 38 months. The trial judge ruled that he had three or more serious felonies under the ACCA and sentenced him to 300 months.

The Supreme Court reviewed the language of the ACCA and agreed with the trial court that the determination of whether a crime is a prior under the ACCA is made at time of the original sentencing, not at the time of the conviction of a subsequent crime. As a result the Supreme Court found that the fifteen year minimum applied to McNeill.

Section 18 USC 924(e)(1) states in pertinent part:

In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years

Justice Thomas, for a unanimous Court, held that despite the present tense language of the section the statute should be interpreted as it was written at the time of the original state conviction, not at the time of the subsequent Federal conviction. Since the statute talks about a prior conviction it is necessary to look at the conviction at the time of the original sentencing. Otherwise it is possible that the statute applicable to the prior conviction may have been revoked. Furthermore under North Carolina law the maximum punishment for drug crimes committed prior to 1994 remains ten years.

While this is all good and well certain incongruities appear. If a crime happened the day before the revised North Carolina statute was passed the defendant is facing an ACCA prior while the defendant who was convicted one day later is not. Furthermore by basing the statute on state law a defendant who committed the same offense but lives across the border in South Carolina may not be facing an ACCA mandatory minimum.

In any case, I’m not sure why the Supreme Court granted certiorari in this case. In sentencing McNeill the judge pointed to McNeill’s “long and unrelenting history of serious criminal conduct” in upwardly departing from the Sentencing Guidelines to sentence him to 300 months. Thus it is unlikely that even if the Supreme Court had decided that the mandatory minimum did not apply and remanded the case for resentencing that the trial court would have sentenced McNeill to less than 300 months.

Russell E. Booker and Michael Wyman plead guilty in separate domestic violence cases to assault in Maine. Both cases occurred some years ago. More recently Booker accidentally shot a hunting partner and Wyman shot a bullet into the air during a domestic dispute. Both were indicted and convicted in Federal court for possessing a weapon after a misdemeanor domestic violence conviction.

Booker and Wyman appealed to the First Circuit Court of Appeals alleging that since Maine’s assault law does not require a specific intent to commit a crime the convictions cannot serve as a basis for the Federal convictions. The state statute allows a conviction for recklessly assaulting someone. They also alleged violations of their Second Amendment right to possess a gun.

The Federal statute banning possession of guns (18 USC 922(g)(9) by those convicted of misdemeanor domestic violence reads:

That it shall be unlawful for any person . . . (9) who has been convicted in any court of a misdemeanor crime of domestic violence, to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

The First Circuit rejected the defendants argument that the state statute had to be an intentional crime. Nowhere in the Federal statute does it require that the domestic violence statute have a particular mens rea or intent. Therefore the court ruled that Congress in passing Section 922(g)(9) did not mandate a mens rea and therefore the convictions are valid.

Pointing to Heller in which the Supreme Court recognized the Second Amendment right to possess a gun the court pointed out that the Supreme Court recognized that certain categories of people could be banned from possessing guns. The First Circuit held that due to the significant number of people killed with guns in domestic violence disputes that Congress can prohibit misdemeanants convicted of domestic violence from possessing guns.

The irony here is that while looking at the intent of Congress in ruling that a particular mens rea is not necessary for a conviction under Section 922(g)(9), the Court did not look at the intention of the First Congress which passed the Bill of Rights. Certainly the first Congress did not intend to limit the ability of misdemeanants from possessing weapons. It is unlikely that domestic violence was even a crime in 1789.

Joemon D. Higden was charged with possession of a firearm by a convicted felon. In order to convict him the government had to prove three elements:

(1) the defendant has been convicted of a crime punishable by imprisonment for a term exceeding one year;
(2) the defendant knowingly possessed the firearm; and
(3) the firearm had travelled in interstate commerce.

The prosecution and the defense stipulated to the first and the third elements. Instead of instructing the jury on all three elements and telling them that the parties stipulated to the existence of two of the elements, the judge told the jury that their sole job was to determine whether the prosecution had proved the second element by beyond a reasonable doubt.

The jury hung and a second trial was scheduled. when the judge indicated he planned to follow the same regime in the second trial the U. S. attorney objected and appealed to the Third Circuit Court of Appeals. The Third Circuit ruled that the procedure was wrong since the jury must find the existence of all of the elements. The Court, citing the Sixth Amendment. The Court said that every defendant is entitled to a jury determination of each element. But here the defendant stipulated to two elements and agreed that the jury would only be asked to find that he knowingly possessed the gun. The advantage to the defendant is that the jury would not find out that he is a convicted felon. Protecting Higden’s right to have a jury determine every element of the offense actually hurts him. The trial judge realized that but sadly the appellate court did not.