In 1986 in a decision written by Justice Stevens, Michigan v. Jackson the Supreme Court ruled that after a defendant requests the appointment of counsel at arraignment any contact between him and the government must be initiated by the defendant. The police cannot contact the defendant and attempt to get a confession. Without such a rule the police can go behind counsel’s back in an attempt to get a confession or a defendant can be coerced into confessing.

The Obama administration filed an amicus brief in Montejo v. Louisiana asking the Supreme Court to overrule Jackson. The solicitor general argues that the purpose of the Sixth Amendment is to protect the adversarial process but as she admits and as the Supreme Court has often stated much of what is important in the defense of a defendant occurs outside the courtroom. For example plea bargaining may occur in a telephone conversation.

She further argues that it would be sufficient to use a Miranda type warning to waive the right to counsel. While Miranda has limited efficiency prior to the appointment of counsel, a waiver of the right to counsel is certainly better if the defendant has the advice of counsel. With counsel available why not use him or her. Certainly their may be times when a confession is appropriate. Even if counsel does not feel it is appropriate, counsel’s duty to represent the client includes the duty to help the client confess even if counsel does not feel it is appropriate but the defendant so desires.

The government argues that the Jackson rule has limited but significant costs. It points out that most prosecutors are prevented from conversing with defendants due to state ethical rules preventing lawyers from conversing with represented individuals. The very presence of these ethical rules points to the possibility of coercion and the undermining of counsel inherent in the situation if Johnson is overruled. But still if Jackson is overruled police will be able to initiate and coerce defendants into waiving their Fifth Amendment right to remain silent and their Sixth Amendment right to counsel. The injury to the integrity of our courts is not insignificant. Even a few coerced or forced confessions result in the degradation of the United States justice system.

Finally the solicitor general argues that Jackson has been undermined by subsequent decisions. While the decision has been limited in several cases that is no reason to abolish the basic rule which remains strong.


California First District Court of Appeal, in People v. Smith, ruled that a search by police officers inside the underwear of a parolee in a hotel parking lot, not exposed to the street, is reasonable under the Fourth Amendment.

Craig Smith was sentenced to ten years in state prison on drug charges after he was arrested in the parking lot of the Vallejo Inn in Vallejo, California. Two police officers saw a man attempting to gain entrance to a hotel room through a window leading out into the parking lot. At the same time they saw another man, Smith, sitting in a car outside the room. They decided to investigate. They asked Smith if he was on parole and he answered in the affirmative. The hotel being in a high crime neighborhood and Smith being on parole for a drug related offense, led the officers to search him. Initially they did a pat search but found nothing. Then they searched his vehicle and again found nothing. Then with Smith standing in the crock of the police car, that is the area between the open door and the body of the vehicle, they removed his belt, opened buttons, unzipped his zipper, lowered his pants and searched inside his underwear where they found a bag containing twelve baggies containing crack cocaine, heroin, and methamphetamine.

An officer may search a parolee, even without reasonable or probable cause as long as the officer knows the person is on parole. But such a search cannot be arbitrary, capricious and/or harassing. Here the court balanced the defendant’s limited privacy rights as a parolee against the state”s “overwhelming” interest in preventing recidivism on part of the parolee. The court pointed out that searches of parolees are a means of carrying out the officer’s duty to closely supervise a parolee.

A search, according to the judge, is only arbitrary, capricious or harassing if the officer carries out the search for an improper purpose. Generally the means or place used to perform the search is immaterial. Therefore since the officers had a legitimate law enforcement reason to perform the search the search and since it was carried out in relatively unintrusive manner it was reasonable under the Fourth Amendment

Interestingly while the court found the location and the nature of the search reasonable, it did not discuss whether the defendant’s privacy rights under the Fourth Amendment and California’s constitutional guarantee of privacy were violated when the officer put his hand inside the defendant’s underwear and retrieved the bag which was sitting on the defendant’s penis.


With the pirate attack on the Maersk-Alabama off the coast of Somalia and the rescue of the captain, Richard Phillips, piracy has been in the news. Its an ancient crime. Often when we think of piracy we think of Sir Francis Drake or Jean Lafitte who aided Andrew Jackson at the Battle of New Orleans. But piracy is a serious crime punished under U.S. law by life in prison.

Piracy is defined by the United Nations Convention on the Law of the Sea as

(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:

(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;
(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;

(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;
(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).

The International Maritime Bureau defines piracy as:

the act of boarding any vessel with an intent to commit theft or any other crime, and with an intent or capacity to use force in furtherance of that act

Piracy is a rather unique crime. Unlike most crimes, under both international law and US law their is no need for a showing of jurisdiction. For most crimes, chargeable in the United States their must be a showing that the government has a right to charge the offense. Generally, although there are exceptions, it is done by showing that the crime occurred either in the United States, its territorial waters or on land controlled by the United States For example jurisdiction was found in order to allow the prisoners at Guantanamo and Bagram to file a writ of habeas corpus in the United States Courts. Article I, Section 8 of the Constitution gives Congress the power to “To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.” Recently crimes against humanity, war crimes and genocide

Of course it makes sense that jurisdiction in piracy cases is not governed by physical boundaries. After all, international waters are not within the national boundaries of any county. It certainly and necessary that jurisdiction be extended to remaining pirate who took Captain Phillips. After all he was on an American flag ship. But under the law we can charge any pirate who takes any ship, regardless of which flag it flies.


Last month Attorney General Eric Holder announced that government resources will not be used to raid medical marijuana distributors in those states where medical marijuana is legal in compliance with President Obama’s desire not to spend money busting dispensaries. Yet last week the DEA raided Emmalyn’s, a medical cannabis dispensary in San Francisco.

One question that must be asked is who is in charge. Does Holder control the DEA or does the DEA control Holder. President Obama has yet to appoint a director for the DEA. Bush appointee Michele Leonhard is the acting director.


California courts have again, in In re Lazor, reminded the California Board of Parole Hearings (Board) of the requirement that it must either set a date for the release of an inmate sentenced to an indeterminate period or it must find that one of the statutory factors related to suitability provides some evidence that the inmate remains a danger to society.

In re Lazor, like many of the cases coming before the courts in recent months relates to a case that was heard before the Board prior to the California Supreme Court decisions in In re Shaputis and In re Lawrence In Lawrence and Shaputis the Court explained the “some evidence rule.” Prior to Lawrence and Shaputis all the Board had to do was show that there was some evidence that one of the factors related to release of a prisoner existed. But as Lawrence and Shaputis made clear the Board must show that some evidence of the factor exists and that it indicates that the prisoner if released will be a danger to society.

Thus the Superior Courts and the Courts of Appeal are reviewing many of the Board’s decisions made prior to Lawrence and Shaputis on writs of habeas corpus and sending them back for rehearings in cases where the Board did not relate the suitability factors to a claim of current dangerousness to society.

In In re Lazor, decided by the Board on February 23, 2006, it merely pointed out several suitability factors related to release without stated whether it was relying upon the factors to determine that Lazor remained a danger to society. Perhaps, chief among these was the nature of the crime. The Superior Court in deciding the original writ of habeas corpus reviewed the trial transcript and found that as murders go, Lazor’s may have had an imperfect self defense claim that was not sufficient to justify his acts but which was not particularly horrendous. The appellate court rejected the Superior Court’s claim since the courts must give deference to the findings of the Board. But nevertheless the Appellate Court returned the case to the Board, ordering a new hearing, on the ground that the Board did not make a finding that Lazor is currently a danger to society.


Another example of Minor Actions Lead to Mayor Arrest occurred in Kansas. The Tenth Circuit Court of Appeals upheld the conviction of Antonio Orduna-Martinez, for possession of approximately 25 kilograms of cocaine. He was pulled over, while driving, when an officer noted that his Ohio State Buckeyes license plate frame partially blocked his registration decal on his license plate. The decision is not clear on exactly what happened after Antonio Orduna-Martinez was pulled over but officers search the vehicle and found the cocaine in a secret compartment. Mr. Orduna-Martinez will now do 46 months in the Federal pen.


The Supreme Court in Chorley v. United States settled the ongoing dispute over the McNabb/Mallory rule. The McNabb/Mallory rule states that any confession given by a arrestee more than six hours after his/her arrest is inadmissible at trial if the arresting officers have not taken the arrestee before a magistrate within six hours of his/her arrest. This presumes that the presentment may be longer than six hours if the delay is necessary for a non-investigative purpose. For example if the arrest occurs above the Arctic Circle in Alaska and a blizzard prevents the arresting officer from bringing the arrestee before the nearest magistrate within six hours.

As Justice Souter said, speaking for the majority:

In a world without McNabb-Mallory, federal agents
would be free to question suspects for extended periods before bringing them out in the open, and we have always known what custodial secrecy leads to. . . . No one with any smattering of the history of 20th-century dictatorships needs a lecture on the subject, and we understand the need even within our own system to take care against going too far. “[C]ustodial police interrogation, by its very nature, isolates and pressures the individual,” . . . and there is mounting empirical evidence that these pressures can induce a frighteningly high percentage of people to confess to crimes they never committed,

In 1943 the Supreme Court in McNabb v. United States used it’s supervisory power over the Federal Court system to exclude confessions obtained in violation of the presentment rule which required that Federal agents bring an arrestee, without unnecessary delay, before the nearest magistrate. The McNabb rule and statutes on the presentment rule were collected in Rule 5(a) of the Federal Rules of Criminal Procedure in 1946. In Mallory v. United States the Supreme Court held, in 1957, that a confession made seven hours after the arrest was excessive and had to be excluded at trial when the interrogation leading to the confession was held in the same Philadelphia courthouse where the magistrate sat.

However, in 1968, Congress enacted 18 U. S. C. 3501 in response to the Miranda decision. Subdivisions (a) and (b) of Section 3501 attempted to abrogate Miranda by admitting all voluntary statements into evidence. (In 2000 the Supreme Court ruled in Dickerson v, United States that Miranda was mandated by the Constitution and therefore could not be abrogated by an act of Congress.) Subdivision (c) was basically a restatement of the McNabb/Mallory rule. It stated:

“a confession made . . . by . . . a defendant therein, while such person was under arrest . . . , shall not be inadmissible
solely because of delay in bringing such person before a
magistrate judge . . . if such confession is found by the trial judge to have been made voluntarily . . . and if such confession was made . . . within six hours [of arrest]”;

However, some courts, including the Third Circuit Court of Appeals, which heard Chorley applied subdivision (a)’s requirement that all voluntary confessions be admitted without the modifying requirements of subdivision (c) that the confession only be admitted if the arrestee was brought before the magistrate within six hours of his/her arrest.

In Chorley the Supreme Court reaffirmed the McNabb/Mallory settled the dispute between the circuits and reaffirmed the McNabb/Mallory rule allowing voluntary confessions to be admitted if they are made prior to presentment of the arrestee before the magistrate within six hours of the arrest.


Often small errors end up in people being arrested and convicted of major crimes. I have seen this many times over the years. But the point was brought home by two cases listed on

First a little bit about the Fourth Amendment. It states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

But the courts, particularly under Chief Justices, Burger, Reinquist, and Roberts have found many “reasonable” exception to the search warrant rule. The two cases that I will discuss today come under the “search pursuant to a legal arrest” and “consent” exceptions.

In a Washington state case, State v. Kirwin a passenger in a car driven by Kirwin at 2:00 a.m. in Olympia threw a beer can out the car window. A police officer saw the can being thrown out the window and arrested the passenger for littering. After the passenger was in the police car the officer search that area of the car that had been in the reach of the passenger. Finding methamphetamine, the officer arrested Kirwin for possession of methamphetamine and he was convicted.

A Georgia case also found in is based upon the search pursuant to a legal arrest and consent exceptions to the search warrant rule. In Sapp v. State In Sapp an informant gave a detailed description of the vehicle and the route Sapp was going to take to deliver methamphetamine. Police officers set up surveillance and followed him. As he followed the expected route he crossed the road’s center line twice. The police stopped him for the traffic violations. He admitted that there was an illegal substance in the truck and he consented to the officers searching the vehicle. Prior to the search, an officer saw a drug pipe on the front seat. Based upon his consent to the search and upon the officer’s seeing the pipe on the front seat the court found the search to be legal on both consent and pursuant to a legal arrest grounds.

In the Washington case the search was based on a passenger’s throwing a beer can out the window and in the Georgia case on a driver crossing the center line. Both cases resulted in methamphetamine convictions.


U. S. District Judge John Bates of the United States District Court for the District of Columbia ruled that three prisoners who were arrested outside of Afghanistan and who are not Afghani citizens can have their writs of habeas corpus heard in Federal Court. The decision further challenges the Bush/Obama policy of indefinitely holding enemy combatants without court scrutiny. It involve interpretation of the suspension clause of the Constitution which prohibits suspension of the writ of habeas corpus except in cases of rebellion or invasion and it has generally been assumed to be limited to acts of Congress. The case involved writs of habeas corpus filed by Fadi al Maqaleh, Haji Wazir, Amil al Bakri and Redha Al-Najar. The Judge found little difference between the petitioners, with the exception of Wazir who is an Afghani citizen, and the Guantanamo petitioners in Boumediene who were granted the right of habeas corpus by the Supreme Court. Both the Bagram petitioners and the Guantanamo petitioners were seized in different countries and renditioned to either Guantanamo or Bagram. Both were labeled enemy combatants, though the government has now changed the label for the Guantanamo prisoners. Both groups are in prisons over which the United States has complete control. Finally both groups are in locations chosen by the United States.

As in Bourmediene the Court considered six factors:

(1) the citizenship of the detainee; (2) the status of the detainee; (3) the adequacy of the process through which the status determination was made; (4) the nature of the site of apprehension; (5) the nature of the site of detention; and (6) the practical obstacles inherent in resolving the petitioner’s entitlement to the writ.

With the exception of Wazir who is an Afghani citizen the court found that the petitioners were no different than the Guantanamo petitioners and must be granted the right of habeas corpus. The court ruled that

Under Boumediene, Bagram detainees who are not Afghan citizens, who were not captured in Afghanistan, and who have been held for an unreasonable amount of time — here, over six years — without adequate process may invoke the protections of the Suspension Clause, and hence the privilege of habeas corpus.

Of course, Judge Bates’ decision is subject to appeal to the D.C. Circuit Court of Appeal and the Supreme Court.


The California Supreme Court in In re Nolan W. ruled that Juvenile Courts do not have the power to incarcerate parents in dependency matters for failure to comply with reunification plans.

In In re Nolan W. the San Diego County Juvenile Court found Nolan’s mother to be in contempt for her failure to comply with the drug treatment conditions of its SARMS (Substance Abuse Recovery Management System) Under the SARMS program parents in dependency actions who are suspected of having substance abuse problems are referred to a private organization that contracts with the Juvenile Court for assessment. If the programs finds that the parent needs substance abuse treatment, the parent can either voluntarily agree to enter into a contract with SARMS or the Court will order it as part of the reunification program. Failure to comply (dirty tests, missed sessions, etc) with the conditions of the program can result in a order finding the parent in contempt of court. The court may then order up to five days in jail for each violation. In the case of Nolan W.’s mother the court found 60 violations of the SARMS conditions and after the mother failed to appear in court sentenced her to 300 days in jail, later commuted to 32 days.

The Supreme Court found the use of incarceration to force compliance with a reunification policy is unauthorized under state law. Entry into a reunification program is voluntary and while the penalty is severe (removal of the child from the parent’s custody) the parent does not have to enter into or comply with a reunification program. Furthermore the Legislature has set the penalty as the loss of parental rights and at no place does it authorize incarceration for the failure to comply with reunification orders.

The use of incarceration to force compliance with with reunification programs is similar to criminal contempt even thought dependency matters are civil in nature. Civil contempt requires that the order be indeterminative in length and the incarceration be terminated upon compliance with the court order. Unlike civil contempt criminal contempt is punitive and the sentence is for a specific period of time. Since reunification is voluntary and since it is the child, not the parent, that is the ward of the court, the Court found that punitive actions are inappropriate.

As a common sense point of view, if the threat of permanent removal of the child from the household does not result in compliance jail is unlikely to succeed either. Certainly while one is in jail one is probably unable to take significant steps towards reunification and the state policy behind dependency courts requires that reunification be the goal in most cases. As a general rule reunification is in the best interest of the child and the parent’s incarceration is counter productive. In the case of Nolan W. it was particularly unhelpful since it was ordered after reunification efforts had been terminated and when it was apparent that parental rights would probably be terminated.