A California appellate court denied an appeal based upon a claim that sheriff’s deputies illegally entered the curtilage of a residence to search the property. The curtilage of a property is a somewhat vague property law term referring to “the land immediately surrounding and associated with the home.” That area beyond the curtilage is considered “open fields.”

Like the house itself the curtilage is protected by the Fourth Amendment from unreasonable warrantless searches. The area considered open fields is not protected. Richard Lieng lived in a rural area of Mendocino County, California. On two occasions, without search warrants, Mendocino County sheriff’s deputies drove onto a long private driveway used by Lieng and at least three of his neighbors. Richard and Tony Lieng were convicted of marijuana related offenses as a result of marijuana found as a result of a search warrant of the property. At some point the deputies got out of their vehicle and walked the rest of the way up the driveway. While they could not see into the residence they could smell the odor of growing marijuana, coming from a metal workshop along the driveway.

The appellate court considered four factors in determining whether the deputies violated Lieng’s Fourth Amendment rights by entering the curtilage of the residence. The first factor is “the proximity of the area claimed to be curtilage to the home.” Generally the curtilage is no more than 100 yards from the house. While the evidence showed that at one point the deputies walked up to the shed that was 150 yards from the house, there was no evidence showing how close to the house the deputies.Therefore the court sided with the state on the proximity factor. The second factor is whether the area is enclosed. While there was a gate it was open and there was no fence shutting the area off. The third factor is the use of the land. In this case it was a driveway available to the public. The final factor is efforts taken to protect the area. While on cross examination the deputy was asked about the presence of a no trespassing sign, he did not remember it and there does not appear to have been any direct evidence that it existed. Considering the factors the court found that the deputies did not violate the curtilage.

Several other factors were raised. The deputies used night vision goggles. The court ruled that the goggles were permissible. Unlike a thermal imaging device the goggles do not allow the officers to determine conditions inside the residence which are the heart of Fourth Amendment privacy rights.

Furthermore while the deputies may have been wrong when they stated in the affidavit supporting the search warrant they type of lights they saw in the metal shop and in the garage the error was not material. the defendants argued that there was not probable cause for the search warrant. But the court ruled that the evidence discovered when the deputies were on the driveway provided sufficient evidence to justify the warrant.

What this case shows is a failure of the burden of proof. In a motion to quash a search warrant the defendant has the burden of proof. Here there is no mention of defense witnesses. Such witnesses, for example, could have testified about the presence of a no trespassing sign. If there was a fence around the yards, witnesses could have proved that and the functionality of the gate. On cross examination defense counsel could have pushed the deputies into testifying how close he got to the residence and a defense witness could have testified about the distance.

Of course there could have been strategic reasons for not using defense witnesses. For example they may have been forced to testify about the constant odor of marijuana. But if you are not going to take your best shot at winning the motion, why do it?

A Los Angeles judge issued a temporary restraining order prohibiting the enforcement of the residential ban in Jessica’s Law in the county.

Earlier this year the California Supreme Court upheld most of Proposition 83 which included the California version of Jessica’s Law. Jessica’s Law is a Florida law prohibiting convicted sex offenders from living within 2000 feet of a public school, park, or other places that children hang out. But the California Supreme Court held that the residential ban would have to be decided on a case-by-case basis in the local superior courts.

Since the Supreme Court’s decision the lower courts have been inundated with suits claiming that Jessica’s Law unconstitutionally prohibits the plaintiffs from residing in the county. In Los Angeles County, California’s largest 650 suits have been filed. In heavily populated counties there are few if any places that convicted sex offenders can live. In San Francisco the only place sex offenders can legally live is in a parking lot belonging to A T & T Park. The effect of the law is that many sex offenders have been forced to become homeless. Ironically homeless sex offenders are more difficult to keep track of and provide greater problems for police and parole officers. Furthermore there is no evidence that Jessica’s Law prevents children from being molested. Most cases of child molestation are committed by family members. The law makes it more difficult for convicted sex offenders to obtain jobs, maintain family relationships, and get therapy. As a result it increases the likelihood that sex offenders will reoffend and commit other crimes.

Governor Schwarzenegger signed legislation making possession of an ounce of marijuana an infraction, much like a traffic ticket.

The legislation will not change the penalty for possession. It will remain $100. But it will save the state a lot of money. Possessors of marijuana will no longer be entitled to a jury trial or a public defender. Trials in traffic court are much cheaper and are often conducted by a commissioner instead of a judge.

While the legislation will only affect simple possession of marijuana I could not help but think about the tremendous waste of resources used in the prosecution of marijuana cases, yesterday as I sat in court watching a Superior Court judge spend fifteen minutes of his time, the DA’s time and the Public Defender’s time denying bail to a man charged with a ten dollar sale of marijuana. Of course the cost of the court and the attorneys is minimal compared to the amount it is going to cost the county to keep the man in jail until his preliminary examination. This doesn’t even include the cost of caring for the man and his family since he is going to lose his job with a construction company while he is in jail.

Of course the law may be in effect for only a short period of time. California is voting on legalization next month. But neither decriminalization or legalization will take care of the problems of the man I saw in court today.

California voters will vote on legalization of marijuana in November. California’s Secretary of State, Debra Bowen, certified the Tax Cannabis Initiative after nearly 700,000 people signed the petition. The petition only needed 434,000 signatures.

California would be the first state in the Union to legalize marijuana and it would still be illegal under Federal law.

A poll last year showed that 56 per cent of Californians supported the legalization of marijuana.

The initiative if passed will allow everyone over 21 years old to possess up to an ounce of marijuana. Individuals would be allowed to cultivate and transport marijuana for personal use. They will be allowed to have a 25 square foot marijuana garden.

Cities would be authorized to regulate and tax the sale of marijuana. If they do not pass ordinances regulating the sale of marijuana possession will be legal in the community but selling it would be illegal. In all cases it will be illegal to sell to minors or to involve minors in the sale of marijuana. It will be illegal to have marijuana on school grounds and smoking it in public will be illegal.

The major arguments in favor of the initiative will be the failure of prohibition and financial. Despite marijuana being illegal and millions of dollars being spent to enforce prohibition a large number of citizens use it. Medical marijuana, which is legal in California, is available primarily to the middle class who can afford going to doctors and getting certified. The truth of the matter is that almost anyone with the money can get medical marijuana but the poor cannot afford going to the doctors who charge significant fees for the certification required under the medical marijuana laws. The poor end up buying it on the street and getting arrested. One problem with the initiative is that it will still outlaw street sales. As a result many of the sellers, who are often poor immigrants or youth will continue to be arrested.

California cities continue to suffer from the recession. The Federal government has cut back on many programs that provide money to the states and California has solved many of its budget problems by cutting back on support to local communities. As a result many communities are looking forward to being able to tax marijuana sales in order to provide services to the public. Legalization of marijuana will allow communities and the state to either cut back or make better use of money currently used to arrest, convict and incarcerate users, sellers and cultivators of marijuana.

But on the other hand many police officers and parents’ groups will continue to oppose legalization. They fear that despite the laws prohibiting possession of marijuana by those under 21 that legalization will make it easier for teenagers to obtain marijuana. Furthermore they are afraid that legalization will lead to more people driving under the influence of marijuana resulting in injuries and accidents.

The California Assembly on the last day of its 2009 session passed a statute cutting prison expenditures by 300,000,000 dollars and calling for the early release of 17,000 inmates. The state budget called for a reduction in the prison budget of 1.2 billion dollars. Approximately $700,000,000 can be saved by administrative actions controlled by Governor Schwarzenegger. This leaves the budget $230,000,000 dollars in the red.

Last August Governor Schwarzenegger and Democratic leaders came up with a plan to reduce the prison budget by 1.2 billion dollars. Specifically the plan would have required that:

— Inmates with less than 12 months to serve, who are over age 60 or who are medically incapacitated could be released from prison and given home detention with electronic monitoring.

— Sentences for certain property crimes will be lowered to misdemeanors, meaning convicts won’t have to spend time in prison. Those include vehicle theft, petty theft with a prior conviction, receiving stolen property and check-kiting, a scam that primarily targets banks with fraudulent deposits.

— Allow more inmates to gain early release by completing educational, vocational or substance abuse rehabilitation programs.

— Ease supervision for thousands of parolees, making it more difficult to send them back to prison for violations.

This plan was approved by the State Senate last month. But the Senate caved in and accepted the State Assemblys plan which will leave a $230,000,000 hole in the budget and will release less prisoners. The Assembly plan would allow the reduction of parole supervision of some low level offenders thus preventing them from being sent back to prison and it would allow some offender to earn reductions in their prison sentence by completing rehabilitation programs. But it would not provide an early release program for elderly or medically incapacitated inmate and it would not redesignate some crimes currently chargeable as either felonies or misdemeanors as misdemeanors.

But more importantly it does not solve the problem of the two ton elephant in the middle of the room. A panel of Federal judges has found that state prisons are unable to provide medical and psychiatric care to all of the inmates in the vastly overcrowded prison facilitities. They ordered the state to reduce the prison population by 40,000 within the next two years and to provide a plan on how this will be done before the end of the month. The state is appealing the order to the U. S. Supreme Court. The Supreme Court denied a request by the state to delay the formation of a plan to reduce the prison population.

Oakland, California voters, last week, overwhelmingly imposed a 1.8 percent gross receipts tax on medical marijuana dispensaries according to an article in the Huffington Post. Eighty per cent of those voting approved the tax. Oakland is the first city in the county to pass a local tax on marijuana. The tax is in addition to the state sales sale paid by marijuana purchasers. There are four medical marijuana dispensaries in Oakland selling marijuana to people who qualify under the state’s medical marijuana statute. The measure which was proposed by the dispensaries as a way to give back to the community and help fill the gap in the city’s budget is expected to raise $294,000 for the city in its first year. The measure takes effect on January 1.

The medical marijuana community hopes to use the tax to promote further legalization of marijuana. One study showed that a statewide tax on marijuana currently pending in the state legislature could raise 1.3 billion dollars.

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.

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.

Legislators in California and Massachusetts introduced bills legalizing the cultivation, use, possession and sale of marijuana. In California Assemblyman Tom Ammiano’s bill, which would place a fifty dollar per ounce tax on marijuana would provide 1.3 billion dollars for the state according to a study conducted by the State Board of Equalization.

Likewise the Massachusetts law would regulate and tax marijuana. The Massachusetts law, if passed would raise $100 million for the state coffers. Not only would the legalization of marijuana allow the states to collect significant taxes on it sale but it would also save the states significant money now used to enforce the marijuana laws. Both states would allow those over 21 to use marijuana. Marijuana would remain illegal, at least for the time being, under Federal law.

California has been a leader in the medical marijuana movement since the 1996 passage of Proposition 215 and currently collects 20 million dollars in sales tax on medical marijuana sales.

Prior to 1937 marijuana was legal in the United States. But shortly after the end of prohibition 1n 1933, Congress passed an act making it illegal. But despite hundreds of thousands of arrests the government has not been able to prohibit the use of marijuana and its use continues to grow.

Just as no one in the 21st century would advocate the prohibition of alcohol, the prohibition of marijuana should be abolished. Both drugs if used in excess can result in considerable harm but criminalizing the use, possession and sale of these drugs does not result in any benefit to society. In fact criminalization has only resulted in increased use. Hopefully some of the money saved from the decreased cost of prisons, lawyers, judges, police, and other related criminal justice expenses as well as some of the money collected in taxes on marijuana can be used to treat those who use it excessively.

The Supreme Court reversed a finding of incompetence of counsel (IOC) made by the Ninth Circuit in Knowles, Warden v. Mirzayance. Mirzayance was convicted of first degree murder of his 19 year old cousin. Under California law the trial was bifurcated. During the first part of the trial the jury found Mirzayance guilty of murder. At the beginning of the second phase Mirzayance, on the advice of counsel, waived his right to a trial on whether he was not guilty by reason of insanity (NGI). The issue on habeas was whether his trial attorney was incompetent when he advised Mirzayance to waive the NGI defense.

Counsel’s plan at trial was to convince the jury that due to his mental condition, Mirzayance could not form the intent to murder his cousin and therefore he was guilty of only second degree murder. When the jury rejected the mental health evidence and found Mirzayance guilty of first degree murder, his lawyer felt that any NGI defense was futile and urged him to waive his right to a trial on the NGI defense.

The lead Supreme Court decision on incompetence of counsel is Strickland. Under Strickland, in order to reverse a conviction the court must find on habeas that the attorney did not perform as reasonably competent counsel would act and that the defendant was prejudiced as a result. The Ninth Circuit instead of applying Strickland found that counsel was incompetent in that there was no strategic reason for surrendering the only possible defense which could help Mirzayance. After all, he had already been convicted of first degree murder and there was no downside to going ahead with the NGI phase of the trial. The chances of winning might not have been great but there was nothing to lose.

On habeas the Federal courts will not intervene unless the state court decision was contrary to or involved an unreasonable interpretation of Supreme Court precedent. Here it was not the state court but rather the Ninth Circuit that misinterpreted Supreme Court precedent.

Assuming that the Supreme Court is correct and that the trial counsel’s performance failed to meet the Strickland standard in that it did not show that counsel either failed to perform as a reasonably competent attorney would perform or that Mirzayance was prejudiced since the jury rejected the mental health evidence the first time around.

Regardless of whether or not counsel met the Strickland
standard, counsel acted poorly. When you have only one defense and you have nothing to lose, particularly in a first degree murder case, you must go with it. Besides surrendering the only chance your client has to prevent a life sentence, the failure to use the defense, can only result in a habeas, a civil trial for IOC and considerable bad will. Any reasonable attorney would use the Ninth Circuit’s “nothing to lose” standard. But the Supreme Court, at least in this case is not willing to accept it.