SUPREME COURT LIMITS THE DETENTION OF RESIDENTS OF A BUILDING SUBJECT TO A SEARCH WARRANT TO THOSE IN THE IMMEDIATE VICINITY OF THE BUILDING

As I predicted The Supreme Court reviewed and reversed the Second Circuit Court of Appeals decision in Bailey v. United States.

The police obtained a search warrant for 103 Lake Drive, Wyandanch, New York. While they were outside the apartment house and before anyone knew of their presence two officers saw Chunon Bailey and Bryant Middleton leave the building, get in a car, and drive away. The officers followed them. They stopped the vehicle approximately a mile away and transferred the occupants to a police car. Bailey and Middleton were driven back to Lake Drive and detained. An officer took Bailey’s keys and drove his car back to the Lake Drive residence.

By the time they got back to the residence a gun and narcotics had been found in the apartment and Bailey was arrested.

In Michigan v. Summers the Supreme Court held that law enforcement agents could detain people found in or near a house that is being searched pursuant to a search warrant. In Bailey the court refused to extend Summers to allow detentions some distance away from the house. It pointed out that the detentions in Summers were based on three legitimate needs of law enforcement. First, detentions of those in or near the house are permitted to prevent harm to the peace officers. If someone, like Bailey is not at the residence and does not even know that officers are searching the house the likelihood of injury to the peace officers is minimal. Yes, someone could come home during the search and injure an officer but this would allow numerous people present in numerous places to be arrested and this would clearly violate the Fourth Amendment. Second, Summers permits detentions in order to facilitate the orderly completion of the search. But again if someone is not at the residence they cannot interrupt the orderly completion of the search. Finally, a detention of someone at the house creates a minimal intrusion in their life and it prevents their escape in light of a possible arrest depending upon what is found in the residence. Again detaining people away from the residence not only creates a significant intrusion in people’s lives but it leads to the detention of many people who may be some distance from the residence. The effect is a violation of the Fourth Amendment.

U. S. SUPREME COURT UPHOLDS NARCOTICS DOG SEARCH

The United States Supreme Court today ruled today in Florida v. Harris that training records of a police narcotics dog are sufficient for a finding of probable cause to search an automobile.

Liberty County Sheriff K–9 Officer William Wheetley stopped a vehicle driven by Clayton Harris because of an expired license tag. He noticed signs consistent with methamphetamine use. Harris refused to give consent to a search of the vehicle. Wheetley brought out Aldo, a trained narcotics dog. Aldo, who was trained to signal on cocaine, marijuana, heroin, methamphetamine and ecstasy signaled on the driver’s side front door. Wheetley felt that this gave him probable cause to search the vehicle. He found 200 pseudoephedrine pills, a methamphetamine precursor chemical. There was no evidence that Aldo could identify pseudoephedrine. Harris was arrested, bailed out and charged with manufacturing methamphetamine. He admitted to using and manufacturing methamphetamine. After he bailed out, Harris was again stopped by Wheetley and Aldo. Aldo again signaled the presence of drug but nothing was found when Wheetlely searched the vehicle this time.

Harris’ motion to suppress the pseudoephedrine was denied. The prosecution argued that Aldo was properly trained and while Florida did not require certification the dog had an expired certification by a private organization. Harris argued that the dog’s false signals were sufficient to prove the lack of probable cause. Harris plead guilty reserving the right to appeal the denial of his search motion.

On appeal the Florida Supreme Court reversed the conviction. It held that probable cause could not be found without proof of Aldo’s actual performance in the field and the prosecutor had the burden of offering the evidence of the dog’s field performance. The U.S. Supreme Court held that using a “totality of the circumstances” test the Florida trial court made the right decision in denying the motion to suppress. Considering the evidence before it the court could have found that probable cause existed. This does not mean that Harris could not have offered evidence showing that Aldo’s signals were untrustworthy but considering the evidence before the court the trial court made the right decision.

It is noteworthy that the evidence before the court showed that Aldo signaled 100 percent of the time when there was a known drug present 1 in its training and in weekly training sessions with Wheetley but there was no evidence presented indicating how many times Aldo signaled the presence of drugs when there was no drugs present. Aldo, signals on the car door may have meant that at sometime in the past Harris opened the door with methamphetamine on his hands. The Florida Supreme Court pointed out that probable cause should exist at the time of the search but this seemed to mean little to the U. S. Supreme Court.

Notes:

  1. This could have been because it was not a blind test and Wheetley could have unknowingly signaled Aldo where the drugs were located. ↩

CAREER OFFENDER DENIED RIGHT TO WITHDRAW PLEA

The Eighth Circuit Court of Appeals denied the appeal of Isaiah Earl Thomas, challenging the trial court’s denial of his motion to withdraw his guilty plea to distributing less than fifty kilograms of marijuana, possessing a firearm in furtherance of a drug trafficking offense, and possessing a firearm following a conviction for domestic violence.

At the time of his plea the court told him that he faced a maximum sentence of life in prison. Both his attorney and the Assistant United States Attorney (AUSA)stated as the plea hearing that the advisory sentencing guidelines were between 84 and 90 months. The AUSA stated that with Thomas’ record he may well get over 90 months.

The Pre-sentence report recommended that he be treated as a career offender with advisory sentencing guidelines of 262 months to 327 months. Prior to sentencing, Thomas moved to withdraw his plea arguing inter alia that he had not been informed of the likely guidelines. The court denied his motion and sentenced him to 327 months.

In upholding the 327 month sentence the appellate court pointed to precedents allowing above guidelines sentences and allowing sentences where the defendant had not been informed of the possibility of a a career offender sentence where the defendant was informed of the maximum sentence. The court pointed out that the AUSA informed Thomas he was likely to get an above guidelines sentence and that the plea hearing had been quite extensive.

Yet it hardly seems fair to sentence someone to a sentence in excess of three times what he is told the guidelines indicate. While Thomas may have expected a sentence above the advisory guidelines (90+ months) sentence he apparently had no idea He was going to get a 327 month sentence. It’s a big difference!

FIFTH CIRCUIT RULES: NO RIGHT TO COUNSEL IN HABEAS CORPUS MATTER

Sunday we looked at the tremendous hurdle that petitioners have to jump to meet the burden of proof in habeas corpus cases. Today we shall look at some additional hurdles set by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). In In re: Christopher Sepulvado, Sepulvado who is scheduled to be put to death Wednesday for the 1992 murder of his step child challenges the Federal District Court’s transfer of his petition for a writ of habeas corpus, claiming inter alia, incompetence of the counsel who represented him on his initial petition for a writ of habeas corpus to the Fifth Circuit Court of Appeals.

Sepulvado was convicted in 1993. He filed a direct appeal and lost. Then he filed a writ of habeas corpus in the United States District Court which was turned down in 2002. The question before the court is whether Sepulvado’s current petition is a “second or successive petition.” If it is a “second or successive” petition, Sepulvado the District Court had no jurisdiction to consider it since Sepulvado failed to get a Certificate of Appealability (COA) from the Circuit Court prior to filing the petition in the District Court pursuant to 28 USC 2844(b)(3)(A) which reads: “Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.”

The rule regarding the legality of second or successive petitions is found in 28 USC 2844(b)(3)(2) which states:

A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless—

(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(B)
(i)the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and

(ii)the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

Sepulvado argues that his petition is not a second or successive petition because it only became viable after the Supreme Court decision in Martinez v. Ryan. The general rule is that since there is no right to counsel in pursuing a writ of habeas corpus, there is no right to obtain a writ for incompetence of counsel in matters involving writs of habeas corpus. However in Martinez the Supreme Court ruled that in situation where state law prohibits certain matters from being raised on direct appeal and permits the matters to be raised only with a writ of habeas corpus, defendants have a right to counsel in the initial-review collateral proceedings. But in Louisiana, Sepulvado could raise incompetence of counsel in direct appeal therefore he did not have a right to counsel or to claim incompetence of counsel in the habeas matter.

P.S. Judge James Brady of the Middle District of Louisiana has issued a temporary stay of Sepulvado’s execution unrelated to the issues raise in the writ of habeas corpus

NINTH CIRCUIT UPHOLDS DENIAL OF HABEAS CORPUS DESPITE MIRANDA VIOLATION

The Ninth Circuit Court of Appeals case, Dyer v. Hornbeck, decided last week demonstrates the importance of attempting to win a criminal case in the trial court or on direct appeal instead of relying on a writ of habeas corpus in Federal Court. The rules on habeas are set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Where an issue has been decided by a state court, on its merits, a Federal Court cannot grant a writ of habeas corpus unless the state court decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or unless the state court decision was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” This creates an extremely high hurdle that a defendent must surmount in order to obtain relief in a Federal habeas appeal.

The issue before the Ninth Circuit was whether the trial court wrongly denied Stacy Dyer’s motion to suppress a statement given to the police on the grounds that she was not read her Miranda rights. Miranda warnings must be given whenever a person is interrogated while the person is in custody. In this case the question was whether or not Stacy Dyer was in custody at the time that she was interrogated by Detective Chapman. As part of a murder investigation, a search warrant was served at Dyer’s residence. While she was not home, when the officers initiated the search, she arrived shortly thereafter. The officers locked her in the back of a sheriff’s car while they continued the search. Approximately a half hour later, Detective Chapman asked her if she would voluntarily come to the Sheriff’s station and answer some questions. She agreed. At the beginning of the questioning she was told that she was not under arrest and she was free to leave. Twice during the early morning questioning she was allowed to get up, unguarded and allowed to use the restroom. After the 3 hour and 45 minute interview she was arrested.

Judge Milan D. Smith in a concurring opinion wrote, ” [W]ere I sitting on direct appeal in the place of one those justices, I would have decided the custody issue differently. Because the habeas appeal before us is governed by the Antiterrorism and Effective Death Penalty Act of 1996, however, I am bound by controlling law to concur in the judgment denying Dyer’s petition for relief.” He pointed out that the state court found three reasons to hold that Dyer was not in custody at the time that she answered Inspector Chapman’s questions at the sheriff’s station. She agreed to go to the sheriff’s station to answer question. She was allowed to take unaccompanied bathroom breaks and she was told that she was not under arrest at the beginning of the conversation. But Smith questions the quality of her consent. At the time of the consent she was locked in the back of a police car and could well have thought she was in custody. Her only choice was to continue sitting in the back of the car waiting to be arrested or accompany Chapman to the Sheriff’s station. It was not much of a choice.While she was allowed to go to the bathroom unaccompanied and theoretically could have walked out the nearby door, there is no evidence that she new where the door was located and she had no place to go.It was the middle of the night and she was a half hour away from home with no transportation to get home. As to being told that she was not under arrest, several times during the early morning questioning she was told that the officers had evidence that she committed the murder and she could easily have expected to be arrested.

Even though Judge Smith personally felt that Dyer was entitled to Miranda warnings and without such her answers to Chapman’s questions should be excluded he agreed with the majority that her appeal should be denied because the court must use a “highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.” Thus if any trial court judge could have ruled against Dyer the Court of Appeals must rule against her.

ELEVENTH CIRCUIT DENIES GRANT OF SUMMARY JUDGMENT AGAINST CLAIM OF QUALIFIED IMMUNITY

Miami Beach police received an anonymous tip that drugs were being sold from Janet Feliciano’s apartment. They knocked on her door and entered the apartment, despite her refusal to give consent. They claimed that they could smell marijuana and that they saw her significant other holding a marijuana cigarette. She denied that there was marijuana in the residence and that her significant other was holding a marijuana cigarette. They searched the entire apartment including her lingerie drawer and the pantry. The officers claim that exigent circumstances existed that allowed them to enter and search the apartment despite not having a search warrant since the marijuana may have been destroyed in the time it would have taken them to get a warrant. Furthermore they claimed that Feliciano’s children may have been injured by the presence of the marijuana.

Her significant other was arrested but the charges were later dismissed.

Feliciano sued the city and four officers for violation of her Fourth Amendment rights. The officers moved for summary judgment on qualified immunity grounds. The trial court denied the summary judgment motion on the grounds that the search exceeded the scope of the probable cause. It held that the officers had no reason to search the lingerie drawer or the pantry. The Eleventh Circuit Court of Appeals upheld the denial of the summary judgment motion but it did so on the grounds that a triable fact exists as to whether or not the officers had the right to enter and search the apartment.

In ruling on an appeal of a summary judgment motion the appellate court is “required to view the evidence and all factual inferences therefrom in the light most favorable to the non-moving party, and resolve all reasonable doubts about the facts in favor of the non-movant.” Summary judgment can only be granted if ““there is no genuine dispute as to any material fact.”

The trial court wrongly refused to consider Feliciano’s declaration that there was no odor of marijuana in the apartment and that her significant other was not holding a marijuana cigarette. If she was right exigent circumstances did not exist allowing the officers to enter and search the apartment without probable cause. The question of the existence of exigent circumstances is a factual question for the jury to decide. Therefore the court rejected the appeal and remanded the case to the trial court for further actions.

OKLAHOMA PAROLE BOARD THREATENED WITH PROSECUTION FOR VIOLATING OPEN MEETING ACT

Oklahoma County District Attorney David Prater has alleged violations of Oklahoma’s Open Meeting Act by members of the state parole board. Specifically he claims that the board considered early release requests without adequate public notice and that that members changed their votes outside of the public view. A violation of the Open Meeting Act is a misdemeanor and each member of the parole board could be sentenced to a year in jail and a five hundred dollar fine for each violation of the Act. The Act requires that 48 hours notice be given of any meeting held by a public body and that the agenda be posted 24 hours prior to the meeting. The meeting is limited to the posted agenda items.

The original allegation was that they did not give prior public notice of the agenda items granting prisoners early release. While the investigation has been on-going for some time recently Prater gave the board members until last Friday to either resign to avoid being charged. 1 All five members turned down the offer, According to Board Member Currie Ballard they feel that they have done nothing wrong.

Notes:

  1. Can you imagine a district attorney making this type of offer to a criminal defense related organization. ↩

COURT FINDS BAN ON SEX OFFENDERS USING SOCIAL MEDIA UNCONSTITUTIONAL

The Seventh Circuit Court of Appeal found that a law limiting computer use by sex offenders violates the First Amendment. The Indiana law prohibited those required to register as sex offenders from “‘knowingly or intentionally us[ing]: a social networking web site’ or ‘an instant messaging or chat room program’ that ‘the offender knows allows a person who is less than eighteen (18) years of age to access or use the web site or program.’”

Government may not prescribe the form or content of individual expression” … or limit the right of a citizen “to receive information and ideas.” When evaluating a constitutional claim under the First Amendment courts require not only that any restriction on speech be content neutral but also that they be “narrowly tailored to serve a significant governmental interest” and “leave open ample alternative channels for communication of the information.” In other words a statute limiting a person right to speak or to receive information must only restrict communication where that restriction serves an important government interest and it must allow other means for the person to communicate his/her ideas. Any law which unnecessarily restricts legitimate communication as well as illegitimate communication is unconstitutional.

The Court held that since the vast majority of social media contacts do not involve inappropriate sexual communications with minors the Indiana statute “burdens substantially more speech than necessary” to protect children from “improper sexual communication.” It held that the state had alternate means to protect children from unwanted solicitations and therefore the statute was not sufficiently tailored to comply with constitutional mandates. The state has numerous criminal statutes which should restrain and deter inappropriate sexual conversations, making unnecessary overly broad restrictions on internet use.

The court left open the possibility of a statute that would limit social media use when there is sufficient evidence that the particular person would use social media to endanger children. But it rejected the unparticularized general ban on all who are required to register.

AARON SWARTZ COMMITS SUICIDE WHILE AWAITING TRIAL ON COMPUTER HACKING CHARGES

Aaron Swartz, co-founder of Reddit, a social news and entertainment bulletin board committed suicide, Friday. He was 26 years old.

At the time of his death Swartz, an advocate for a free and open internet, was facing thirteen felony charges in Boston’s Federal Court for allegedly stealing close to five million academic articles from the Massachusetts Institute Technology’s computer network. The government alleged that he stole the articles from “JSTOR, a subscription service used by MIT that offers digitized copies of articles from more than 1,000 academic journals.” It was alleged that he hid a computer in a MIT basement utility closet to steal the articles. After retrieving the articles, JSTOR did not press charges but U.S. Attorney Carmen Ortiz in Boston said “stealing is stealing, whether you use a computer command or a crowbar, and whether you take documents, data or dollars.” If convicted he faced decades in prison and enormous fines. As a fellow at Harvard’s Safra Center for Ethics, Swartz had permission to use the MIT files. 1 But the government claimed that he planned to distribute the articles on file-sharing websites. Many experts thought that the government’s prosecution was an unnecessary attempt to deal with a minor problem. Chris Hayes, Swartz’s friend and colleague at Harvard described the government’s prosecution of Swartz as pursuing him for “downloading too many free articles from the online database of scholarly work JSTOR.”

His death seems particularly tragic since recently released government documents indicate that he had a reasonable chance of winning a pending motion to suppress evidence in the criminal case.

Notes:

  1. Permission to use the files was revoked by MIT when it was discovered that Swartz was downloading massive number of files. ↩

SUPREME COURT HOLDS WITHDRAWAL FROM A CONSPIRACY REQUIRES AN AFFIRMATIVE ACT

Calvin Smith was charged along with 16 others in a 156 count indictment alleging drug and RICO conspiracies in Washington D. C. He was charged in the conspiracy counts and with committing four murders. He appealed the conspiracy counts claiming that he left the conspiracy over five years prior to the indictment and therefore the statute of limitations had run and the convictions must be reversed.

It is clear that he did not participate in the conspiracy during the six year period prior to the indictment. He was in prison.

But the Supreme Court in Smith v. United States ruled today that lack of participation is insufficient to prove withdrawal from a conspiracy. Withdrawal requires “affirmative acts inconsistent with the goals of the conspiracy.” Furthermore, one can only withdraw from a conspiracy by giving notice to his/her co-conspirators of his/her unequivocal withdrawal. A person remains responsible for acts committed by the conspiracy prior to withdrawal as long as those acts occurred within the statute of limitations, i.e. within a five year period ending with the indictment.

Withdrawal is an affirmative defense and unlike evidence of a crime in which the burden is on the prosecution to prove beyond a reasonable doubt, the burden is on the defendant to prove the existence of an affirmative defense but it must only be proven by a preponderance of the evidence standard. That means that there is more evidence of the existence of the affirmative defense than there is evidence against the existence of the affirmative defense. Still it is a heavy burden to switch the burden of proof from the prosecution to the defendant.

The jury, after being correctly instructed on the law, found Smith guilty of the two conspiracy counts. Since the jury instruction properly defined the requirements for withdrawal from a conspiracy and the burden of proof, the Supreme Court upheld the conviction.