The New York State Police Community Narcotics Enforcement Team (“CNET”) executed a search warrant on the residence of Richard Szuba. When the officers found cocaine, Szuba decided to snitch. Szuba told the officers that he received his drugs from Dean A. Steppello. He told the officers that when he wanted some cocaine he called Steppellos and said, “[a]re you good?” Then he would leave his garage door open and Steppello would deliver four ounces. At the request of the officers Szuba called Steppelo. The officers only heard Szuba’s side of the conversation. But he said, “you good, this afternoon, 20 minutes.” Officers surveilling Steppello’s residence saw him drive up to the house, enter it, leave again and drive to the area of Szuba’s residence. But since the garage was closed ¹ he parked in the driveway and called Szuba eleven times. ² Steppello was then arrested.

In a search incident to his arrest cocaine was found on him and a search of his residence pursuant to a search warrant found more cocaine.

He was charged in the United States District Court with possession with the intent to distribute cocaine and possession with the intent to distribute over 500 grams of cocaine. ³ He moved to suppress both the cocaine that was found on him and that which was found in his residence as well as certain statements that he made after he was arrested. He claimed that there was not probable cause to arrest him. If there was not probable cause to arrest him the cocaine found on him could not have been used to get the search warrant for his house, The District Court granted his motion and the government appealed.

The Second Circuit Court of Appeals granted the appeal. It held, contrary to the District Court’s decision that the mere lack of a history of reliability does not mean that the informant’s information must be discounted. As evidence of reliability it pointed out that the information was given in order to prevent him from being arrested, that it was given face to face to the officer, that Szuba was a participant in the crime, and that it was corroborated by physical evidence. As corroborating evidence it pointed to Szuba’s correct prediction of what would happen after the phone call, his correct description of Steppello’s vehicle and residence, as well as the telephone records verifying the calls from Steppello to Szuba.

While I do not accept the court’s finding that lack of a history of giving reliable information is unnecessary, I do believe that there is enough corroborating information for a finding of probable cause. I have represented many drug dealers who have attempted to pull one over on officers by giving incorrect information about the source of the drugs or about the offense. To find reliability without a history of cooperation is foolish without corroboration. But here there is plenty of corroboration.

Since there is probable cause for the arrest there is also probable cause for the search warrant for the residence and to use the statements made pursuant to the arrest.

The procedural rules regarding writs of habeas corpus found in the Anti-Terrorism and Effective Death Penalty Act (AEDPA) are complicated and complying with them are often difficult. Many appellate decisions have been written regarding the rules. Yesterday, the Seventh Circuit Court of Appeals issued a decision interpreting several issues.

Reginald D. Purvis was convicted in the United States District Court for the Northern District of Illinois of conspiracy to sell crack cocaine. Since he had two prior state court convictions for drug offenses he was sentenced as a career offender.

After his appeals were denied he filed a Federal writ of habeas corpus challenging the conviction on incompetence of counsel grounds. He also filed a motion in state court to vacate one of the convictions used to make the Federal court action a career offender action. In his petition for a writ of habeas corpus he noted that he had the motion to vacate the prior conviction pending in the Illinois state courts.

While the petition was pending he moved to stay the action to allow him to amend it after the motion to vacate the prior was decided. The District court denied his motion to stay the petition and denied the petition itself. Shortly thereafter the motion to vacate the prior conviction was granted in state court. Purvis then filed a motion requesting permission to file a “second or successive” petition for habeas corpus on the grounds that he was no longer a career offender. The motion was also denied.

Purvis appealed the denial of the stay. The Seventh Circuit remanded the matter to the District Court with instructions to determine whether vacating the prior conviction was a “new fact” allowing the one year statute of limitations under the AEDPA to restart and to determine what effect Purvis’ informing the court that he had filed a motion to vacate the sentence had on the motion for a stay. The District Court again denied his petition.

Purvis again appealed to the Seventh Circuit. This time the Court granted his appeal. It held that his career offender claim was timely. He was under no obligation to move to vacate the prior until he was sentenced in the Federal case and he could allocate his time in such a way that he first dealt with the appeals and then filed his motion in state court to vacate the prior sentence.

The Court remarked that Purvis was faced with a Catch 22 situation. If he waited to file his habeas until his career offender issue was ripe (after the prior was vacated) his incompetence of counsel issue would no longer be timely. On the other hand if he filed his habeas prior to the granting of the motion to vacate the prior was granted he’d be in the position where he would be filing two petitions for habeas corpus and that would violate AEDPA. As a result the court held that the proper tactic was the “stay and abeyance” procedure As a result the court found that the District Court erred when it denied Purvis’ motion for a stay and it remanded the matter for resentencing.

Purvis won . . . right? Well maybe. He’s going to be retried on the state matter. It will not be a “prior” for career offender status since the conviction will be after the Federal crime occurred. However, Chief Judge Easterbrook pointed out in a concurring opinion that the trial judge can wait until after the state trial is over and then resentence Purvis above the guidelines to a sentence similar to what he received as a career offender to effectively show his criminal history.

A California court had the opportunity last week to explore some of the questions left open by the Supreme Court in Arizona v. Gant..

Vernon Evan was driving his car in Los Angeles. An officer pulled him over for weaving and ordered him to get out of his car. He refused. After several attempts to get Evans to leave the vehicle an officer broke his window and maced the inside of the vehicle. After getting Evan out of the car police searched the vehicle finding $65.00 and several clean baggies. ¹ After arresting him for interfering with an officer and impounding the vehicle, the officers discovered that during a prior arrest of Evans a gun was found in the air vent. The officers went to the impound yard and found cocaine in the air vent.

In Gant the Supreme Court ruled that a search of an automobile incident to an arrest can only occur if the arrestee is “within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” The court held that under Gant neither the roadside search which occurred while the defendant was out of the car and under arrest nor the impound yard search was permissible and it reversed the cocaine related convictions. Obviously during neither of the searches was Evans within reaching distance of the passenger compartment of the vehicle. The second Gant prong is a little more difficult since the Supreme Court did not did not define what it meant by the phrase “reasonable to believe” that the vehicle contained evidence of the offense. But the court found that there was nothing innate in the charge of interfering with an officer or in the facts of the case that would read an officer to have a “reasonable suspicion” that physical evidence of the crime would be found. Therefore it reversed the trial court’s denial of Evans’ search motion and remanded the case to the trial court.

The Supreme Court, Tuesday, heard the case of Antoine Jones, the Washington D. C. nightclub owner who was sentenced to life in prison for cocaine related charges after police placed a GPS device on his vehicle, without a search warrant and tracked him for a month.

There is something basically wrong with the government being able to track citizens wherever they go and whatever they do. As Justice Breyer said, it “sounds like ‘1984.’ ” Breyer and Sotomeyer pointed out that if the government is right, they can put a tracking device on every car in country and track everyone.

While the majority of the court seemed to agree that the United State government violated the Fourth Amendment, the problem is U.S. v. Knotts. In Knotts, a 1983 case, the Supreme Court ruled that the Fourth Amendment was not violated when the police used a beeper to track a vehicle carrying chemicals from the retailer to the residence where a methamphetamine lab was located.

As a general rule the Supreme Court is reluctant to reverse prior decisions. It prefers to differentiate the prior decision by a difference in the facts between the two cases. But that will be difficult here. The difference between a beeper and the more modern GPS is probably immaterial. It has been suggested that the court will find that it was okay to track the vehicle in Knotts since that was for only one day while it is not okay in Jones because it was for a month. But where do you draw the line. Is two days okay? Is 29 days not okay? Is 15 days permissible but not 16 days? It may just be time to admit they made a mistake and reverse the finding in Knotts.

Gregory Sitzmann was indicted in 2007 for the international distribution of cocaine. In the four years since 2007 he has been represented by six different attorneys and for a period of time he represented himself.

Yesterday his current court appointed attorney, Thomas Abbenante, told Us. District Judge Paul Friedman of the U. S. District Court for the District of Columbia that Sitzmann wanted to represent himself again. Friedman interrupted Abbenante, saying, “No, he’s not going to proceed pro se. We’re done with that,” He refused to listen to the reasons that Sitzmann wanted to represent himself.

But under Faretta the Supreme Court has ruled that almost anyone has a constitutional right to represent themselves. And the California Supreme Court ruled in >Marsden that the right to appointment of counsel guaranteed in Gideon v. Wainwright is only meaningful if competent counsel is appointed and that a judge must give a defendant a right to be heard before denying his/her motion for substitution of counsel.

While a district court judge in Washington D. C, is not required to follow the California precedent in Marsden it is clear that Friedman followed neither Marsden or Faretta

However the question is raised what happens when a defendant uses Marsden or Faretta for sole reason of delaying a trial. Any judge and any honest attorney will admit that Marsden and Faretta are used for delay. It is not clear that Sitzmann used the Faretta motions and the substitutions of attorneys for delay purposes. At least one of the substitutions occurred when his attorney was appointed to a judgeship. John Bergendahl and Richard Klugh were excused from the case when it became clear that they had a conflict of interest.

But when a simple one count drug case lasts nearly four years the question of intentional delay is raised. There is very little law on the issue and Judge Friedman invited Sitzmann to take the issue up on appeal. Since it is not clear that the changes in counsel are for delay purposes this may not be the best case to take up on appeal but we will see.

Many appellate cases involve defining words in a law. One would think that is a simple task. Look them up in a dictionary. ¹ But many words can be written to define relatively simple terms. In DePierre v United States the question is how does should “cocaine base” be defined. DePierre wants to define it synonymously with “crack cocaine.” But the clear meaning of “cocaine base” is any form of cocaine that is capable of reacting with an acid to form a salt. This includes not only crack, but also coca paste and freebase. Cocaine base can be contrasted with cocaine hydrochloride (cocaine powder), a salt.

Functionally the main difference between base and cocaine hydrochloride is that cocaine base when heated can be smoked and it works faster than the powder form.

The problem arises as a result of poor drafting in the Anti-Drug Abuse Act of 1986 (ADAA) which set a mandatory minimum of 10 years for fifty grams or more of cocaine base and a mandatory minimum of 10 years for five kilograms or more of cocaine base. (Thus it took 100 times as much cocaine salt to get the same sentence as cocaine base.) ² Furthermore, the statute refers to both cocaine base and cocaine even though they are the same thing. There is a rule of statutory construction that if Congress uses two different term it is referring to two different items. But the court found that in this case they were both referring to cocaine base and they sided with the government against De Pierre.

If “the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment ” police may enter a residence without getting a search warrant. This is called the exigent circumstances exception to the Fourth Amendment. For example police may enter a residence if they have reason to believe that evidence is being destroyed.

Some courts have ruled that the exigent circumstances rule does not apply when the police create the exigent circumstances. In Kentucky v, King police observed a crack cocaine sale outside of an apartment house. The culprits ran into the building. They were chased by officers. The officers knew that they went into one of two apartments. Out of one of the apartments the officers could smell a strong odor of marijuana, ¹ The officer knocked loudly at the door that they smelled the marijuana coming from. No one answered the door. ² The officers heard people moving around in the apartment and they thought that the residents were attempting to destroy the marijuana. ³ The officers yelled “police” and when no one answered the door knocked it down. ⁴

The defense argued, and the Kentucky Supreme Court agreed that by knocking loudly on the door the officers created the exigency and then used it to enter the apartment. According to the United States Supreme Court the essence of the Fourth Amendment is reasonableness and any search that is reasonable is acceptable. ⁵

While there are a number of justifications for the “police-created exigency” doctrine my favorite is that it allows any officer to create an exigency at any time. As Justice Ginsburg said in dissent:

The Court today arms the police with a way routinely to dishonor the Fourth Amendment ’s warrant requirement in drug cases. In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, never mind that they had ample time to obtain a warrant. I dissent from the Court’s reduction of the Fourth Amendment ’s force.

All the officer has to do is say that he/she hears people moving around in the residence or hears a toilet flushing in the residence and they can claim that they thought that evidence was being destroyed. Then they kick the door down or walk in if its not locked. ⁶

Henderson North Carolina Police Detective J. Ragland ¹ saw an SUV with a young man sitting in the driver’s seat, apparently talking to himself. A second young man then sat up in the front passenger seat. Ragland recognized the second young man as David Foster. Ragland had dated Foster’s cousin and had previously arrested him for driving without a license. He knew that Foster had a marijuana related arrest.

He saw Foster’s arms “shifting” and “going haywire.”

Ragland drove across the street and observed the two men. Fifteen minutes passed and nothing happened. During that period Ragland called the head of narcotics and found out that Foster was the subject of an investigation. He also called for a back-up car.

The two cars blocked the SUV. The officers got out and approached the vehicle with guns drawn. Ragland asked the driver for his license. The driver told him it was in his backpack. Ragland performed a pat search and let the driver get his license. Ragland then asked for the registration. Foster opened the glove compartment to get it. Ragland saw a baggie of cocaine in the glove compartment. The gentlemen were arrested.

In case you haven’t figured it out, I will tell you that both the driver and Foster are African American. Studies have shown that African Americans are more likely to be detained, and more likely to be searched than any other racial or ethnic group. While in this case the officers found cocaine, African Americans are less likely to be found in possession of contraband or criminal evidence in Terry searches.

In order to detain someone the stop must be supported “by a reasonable and articulable suspicion that the person seized is engaged in criminal activity.” As the Court in Terry v. Ohio said “in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”

The U. S Attorney pointed to three factors in support of the search. First he/she pointed to the officer’s knowledge of Foster’s record. Second, the U. S. Attorney pointed to Foster’s sitting up from a crouched position and finally the shifting of Foster’s arms. The Fourth Circuit Court of Appeals found that these items, neither individually or collectively provided a reasonable suspicion of criminal activity. The crouching and the shifting could be the result of many legitimate activities. The record by itself or with the current investigation do not provide a reasonable suspicion. The reasonable suspicion has to be that the men were involved in criminal activity at the time of the search. Mere knowledge that at sometime in the past they committed a crime will not do.

Therefore the Court reversed the conviction.

Colin Spotted Elk and Flint Thomas Red Feather, along with fourteen others,were convicted of participating in a conspiracy to sell drugs on the Pine Ridge Oglala Sioux reservation in South Dakota.

Spotted Elk was originally convicted on a number of charges including using a firearm in a drug trafficking crime. While his appeal was pending the Supreme Court held that the statute did not apply to people such as Spotted Elk who traded drugs for guns. The case was remanded and he was resentenced. When he was resentenced the court enhanced his sentence for using a dangerous weapon and in the current appeal he challenged the use of the enhancement.

As a result of the enhancement he was sentenced to 352 months. Sometimes it seems like it’s not worth appealing but the appellate court ruled that the trial court was within its discretion to add the enhancement on resentencing even though it had not been originally used.

As to Flint Thomas Red Feather the trial court, in applying the guidelines, used a guideline for one who conspires to sell between five and fifteen kilograms of cocaines and sentenced him to 151 months. Red Feather argued that he only sold 3 kilograms 14 ounces before he moved off the reservation and withdrew from the conspiracy. But the appellate court ruled that the question was not how much cocaine Red Feather sold but rather how much it was foreseeable that he would sell during the pendency of the conspiracy. Looking at it this way the appellate court agreed with the trial court that he should be sentenced as if he had sold five kilograms.

A study conducted by the Drug Policy Alliance and the California State Conference of the NAACP found that minorities were significantly more likely to be arrested for marijuana possession in twenty-five cities in California than Whites. ¹

The study found that African Americans are arrested four to twelve times as often as Whites.This happens despite the fact that Whites way outnumber African Americans in each of the cities and Federal government statistics show that more Whites use marijuana than African Americans. For example in Los Angeles seven times as many African Americans as Whites are arrested for possession of marijuana. While African Americans are 9.6 per cent of the population in Los Angeles nearly 35 per cent of those arrested for marijuana possession are African American. Likewise in San Diego, 6.5 per cent of the population is African American, but they comprise 29.5 per cent of the possession arrests. In the City of Torrence African Americans are only two per cent of the population but they account for 24 per cent of the marijuana possession arrests. In Sacramento 13.7 per cent of the population is African American and they are the subjects of over half of the possession arrests. In none of the cities examined did the African American percentage of the population begin to reach the percentage of marijuana possession arrests.

As Michelle Alexander stated in The New Jim Crow, the authors of the Drug Policy Alliance study argue that the extraordinary number of arrests of African Americans is not caused by the racism of individual officers. ² Rather it is a systematic result of police being assigned primarily to high crime areas where indigent people, often minorities, live.

In a postnote the authors point out that possession of marijuana is scheduled to become an infraction next year in California and that legalization is on next month’s ballot. But the authors point out that making marijuana possession an infraction is unlikely to change the racial composition of the arrests and that only legalization can change that. However marijuana legalization will not change the racial nature of arrests for other drug crimes. The penalties for crack cocaine, under Federal law, remain much higher than the penalties for powder cocaine despite the fact that African American arrests for crack cocaine are significantly greater than the percentage of African Americans who use crack and White arrests for crack are much lower than the percentage of Whites who use crack. ³