A couple of days ago we reported on People v. McKee in which the California Supreme Court opened up the opportunity to challenge Proposition 83, also known as Jessica’s Law on equal protection grounds. Monday the court in In re E. J. again considered Jessica’s Law. This time it rejected claims that it was being used retroactively against parolees and remanded to the lower courts to consider on an individual basis whether it violates the constitutional rights of those required to register as sex offenders by preventing them from living within 2000 feet of “any public or private school, or park where children regularly gather.”

The law was challenged by four parolees who were released on a new grant of parole after the effective date of the proposition for non-registerable offenses but who due to previous convictions have a lifetime registration requirement. Compliance with the Proposition 83 requirements was made a condition of the new parole grant.

The parolees argued that the law was illegally being enforced retroactively. The majority opinion finds that it is not a violation of either Penal Code Section 3 which prohibits the retroactive enforcement of criminal law unless the law specifically allows retroactive enforcement or the ex post facto sections of the state and Federal constitutions. The court found, as to the four petitioners, it was only being alleged as a condition of parole granted after the effective date of the proposition and it was only governing activity that happens after the effective date. Generally ex post facto laws are prohibited because they punish activity without prior notice of the illegality of the activity. Here the petitioners were given notice when they were placed on parole that they could not live in certain areas. They were not being punished for the original offense which led to the registration requirement. Rather they could be punished for moving into certain areas when they were paroled after the proposition’s effective date.

As to the constitutionality of the stay away requirement, the Supreme Court requested superior courts in the county of parole to hold hearings to determine whether the residential restrictions violate the petitioners constitutional rights. The court indicated that there might be a constitutional violation if there was only a limited area in the county of parole where the petitioner could live. Many sex registrants have become homeless or at least have registered as being homeless because the parole boards have treated the homeless as not being in violation of the residential restrictions as long as they do not stay in an area within 2000 feet of a park or school for an extended period of time.

The California Supreme Court in People v. Taylor held that any person who is competent to stand trial and who is competent to waive his/her right to an attorney is abhle to represent him/herself. A waiver of counsel must be “knowingly, intelligently, and voluntarily.”

When a defendant makes a Faretta motion to represent him/herself the court must voir dire the defendant to determine if he/she understands the consequences of self representation. If the defendant understands the consequences the court must allow the defendant to waive the right to counsel and grant the motion.

Keith Desmond Taylor was convicted and sentenced to death for a murder that occured during a residential burglary. Prior to trial he had problems getting along with his court appointed attorney. He made several motions to represent himself and on his final motion it was granted. His appointed attorney was then appointed to act in an advisory capacity. (Later it was changed to standby counsel meaning that he would take over representation during the trial if Taylor’s right to represent himself was terminated.)

On appeal his appointed counsel argued, inter alia that he was not competent to represent himself, despite the court’s finding that he was competent to stand trial.

As in California law, Federal courts allow any defendant who makes a knowing intelligent and voluntary waiver of the right to counsel to represent themself as long as they are competent to stand trial. The United States Supreme Court in Godinez v. Moran held that while the Federal standard for competencey to stand trial and competency to represent oneself is the sames states are free to insist upon a higher standard of competency in order to represent oneself that the competency level necessary to stand trial. But in Taylor the California Supreme Court reviewed the history of self representation in California and found that the state, like the Federal government uses the same competency standard for both standing trial and representing oneself.

The California Supreme Court ruled that having a deputy escort an in-custody defendant to the witness seat and sit next to him/her while he/she testifies is not a violation of the defendant’ due process rights under the Fifth and Fourteenth Amendments to the U. S. Constitution.

Lorenzo Stevens was charged with attempting to molest his daughter and giving her crack. His daughter lived with her grandmother. According to her testimony at trial, he called her up and asked her to meet him at Taco Bell. They walked to a truck he used as a residence. He gave her a piece of rock cocaine and attempted to get her to copulate him. She escaped and reported the incident to her grandmother and her mother. The police were called. Stevens led the police on a wild escapade by jumping from roof to roof.

According to his testimony his daughter made up the story. He claimed that she made up the story after he asked her if she was sexually active and if she used drugs.

Prior to testifying he was escorted to the witness seat by a sheriff’s deputy who sat beside him during his testimony. No other witness was escorted by a deputy and deputies did not sit beside any other witness.

While certain courtroom security techniques such as shackling the defendant or requiring him/her to wear jail garb while before the jury are “inherently prejudicial” and require a “manifest need” before they can be imposed having a deputy sit next to the defendant while he/she testifies is not an “inherently prejudicial” act requiring a “manifest need” for such a technique. The Court points out that American citizens are accustomed to having security offices in official places and the jury may not pay any attention to it. But as the dissent, by Justice Moreno points out having a uniformed guard sitting next to the defendant when he testifies, like shackling the defendant or having him/her dressed in jail clothes indicates that the defendant must be separated from the community at large.As Justice Moreno pointed out the use of a uniformed deputy sitting next to the defendant as he testifies violates the presumption of innocence.

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.

Yesterday, we considered a case decided by the California Supreme Court, Sheehan v. San Francisco 49ers, Ltd which involved the pat search of attendees at San Francisco 49ers games. The pat search was performed at the direction of the 49ers in conformance with directions from the NFL.

Today we look at another search. This time performed by bounty hunters in Oklahoma. In this case, the Tenth Circuit upheld the use of evidence found by bounty hunters while making an arrest. Both cases of course involve searches. But the other significant fact is that both cases involve searches by people who are not state actors, ie. not employed by the government or working at the direction of the government. This is important because the Fourth Amendment only applies to searches performed by state actors.

In United States v. Poe, the Tenth Circuit Court of Appeals found that a search by a bounty hunter was not performed by a state actor and therefore it was not subject to exclusion at trial under the Fourth Amendment regardless of whether or not it was supported by probable cause.

Five bounty hunters, hired by a bail bonds company, surveilled the Oklahoma City home of Kim Wilson, the former girl friend of Aaron Dale Poe who skipped bond in an Oklahoma state case. Wilson left home about 10:30 pm. Two of the bounty hunters followed her to AutoZone where she worked. They questioned her and found out that Poe was at her residence. She did not give permission for them to search her house but she said that Poe planned to sell drugs from the house and that there was a gun in the house.

They returned to Wilson’s house. Three of the bounty hunters watched the front door while the other two watched the back of the house. They saw Chris McGill drive up to the house and approach the back door. He attempted to leave shortly thereafter but he was apprehended by the bounty hunters.

The bounty hunters then arrested Poe. He resisted and one of the bounty hunters was attached by a pit bull. The dog was tased and both the dogs and Poe surrendered.

The bounty hunters found methamphetamine and a nine-millimeter pistol in the residence. They called the police.

Poe was charged with possession of methamphetamine for sale (McGill’s attempt buy methamphetamine was interupted by the bounty hunters)and possession of a weapon by a convicted felon. He moved to suppress the evidence found by the bounty hunters claiming that the search was without a search warrant and therefore in violation of the Fourth Amendment. The District Court rejected his claim on the basis that he did not have standing to object to the search of Wilson’s house.

On appeal the Tenth Circuit found that he had standing since he had a reasonable expectation of privacy. He was a social guest with sufficient ties to the residence. He had a “degree of acceptance into the household” and “an ongoing and meaningful connection to the home.”

But it rejected his claim on the basis that the bounty hunters were not state actors. The bounty hunters were neither state agents nor were they working at the direction of state agents. The court considered two factors in determining whether the bounty agents were working at the direction of state agents.

First, we determine whether the government knew of
and acquiesced in the [individual’s] intrusive conduct. . .Second, we consider whether the party performing the search intended to assist law enforcement efforts or to further his own ends.

The court found that there was no evidence that the bounty hunters were working with the knowledge or acquiescence of government agents. Furthermore it found that their goal was not to help the government, but rather to obtain payment for their own use from the bail bonds agency. Since the bounty hunters were not state actors the evidence that they seized was not subject to suppression for violation of the Fourth Amendment.

Sheehan was decided based upon the California Constitutions right to privacy. The Federal right to privacy is not coextensive to the California right and therefore Poe was based on the Fourth Amendment. The California constitutional right to privacy extends to the acts of private citizen and organizations which are nor necessarily state actors. The Fourth Amendment right is limited to state actors. Thus, while. the search of people attending 49ers games may be illegal under state law, the search of Poe by bounty hunters is legal under the Fourth Amendment.

In 2005 the San Francisco 49ers, in compliance with a NFL policy initiated a policy of pat searching patrons as they entered the stadium for football games. Daniel and Kathleen Sheehan challenged the policy in court as a violation of the California Constitutional privacy right.

The 49ers demurred to the complaint and the San Francisco Superior Court dismissed the case. The Court of Appeals confirmed the dismissal but the Supreme Court ruled Monday that the Superior Court had insufficient information to dismiss the case and it reinstated the suit for further proceedings.

In order to succeed in a suit charging a violation of the constitutional privacy right the Sheehans must show that

(1) a legally protected privacy interest, (2) a reasonable expectation of privacy under the circumstances, and (3) a serious invasion of the privacy interest.”

But because the Superior Court decided the matter on a demur it did not have enough information to determine that it is impossible for the Sheehans to prove a privacy invasion. In particular the Supreme Court held that the trial court did not have enough information to decide whether the Sheehans had a reasonable expectation of privacy Among the issues that will have to be decided at trial are whether the Sheehans waived their right by going to the game, whether the 49ers had a reasonable purpose for imposing the pat search requirement, and whether the 49ers could have used a less intrusive method to obtain their goal.

The Eleventh Circuit Court of appeals recently upheld a similar but different search at Tampa Bay Buccaneers games. The Tampa policy, unlike San Francisco’s limited the search to above the waist and more importantly Florida does not have a constitutional right to privacy.