The Delaware Supreme Court upheld drug and driving charges against Brandon Hill.

New Castle County, Delaware Police conducted random vehicle registration searches along Route 273. They stopped Hill and discovered that he had a suspended license, lacked proper registration and proof of insurance. Officer Torres ran Hill’s record. It came back that he may be armed and dangerous. After a back up officer arrived Hill was pat searched. They found $390 in cash ¹ and a number of cell phones. They then requested and received permission to search the vehicle, They ordered a dog to sniff the vehicle. They found two large plastic bags filled with 32 plastic baggies containing crack cocaine and six Oxycodone pills.

On appeal Hill asserted that the police had no reason to detain him after the pat search and that everything seized after the search must be suppressed. But Hill’s counsel failed to raise this issue in the trial court and therefore the appellate court will only reverse the decision if there was plain error. The Supreme Court refused to do so. It found the officers had a reasonable suspicion of criminal activity based upon Hill’s driving without a license, the information that he may be armed and dangerous, ² nervous fidgeting and the finding of the money and the cell phones.

Considering all of these issues the court found that the denial of the search motion was not Hill plain error and it affirmed the conviction.

Charles Dickens started Tale of Two Cities with “It was the best of times. It was the worst of times. . .” Well if you are in San Francisco and you’re charged with a drug crime it may be the best of times and if you work for the police crime lab it may be the worst of times.

Last December the Police Department was notified that one of its supervising chemists, Deborah Madden was stealing cocaine from the laboratory for her own use. But the District Attorney office was not notified until February. By then other allegations had come up regarding the crime lab including problems involving chain of custody issues and contamination of the tested substances. Now we learn that Madden was not only using cocaine but she may also have taken oxycontin from the laboratory,

Furthermore it has been learned that Madden was convicted of domestic violence charges in nearby San Mateo County. The failure to notify defense counsel of the conviction may be a Brady issue. In Brady v. Maryland the Supreme Court ruled that a prosecutor and the police department must turn over evidence that may be helpful to a defendant to his/her attorney. This would include evidence that a prosecutorial witness committed a crime of moral turpitude. But evidence of Madden’s charges and conviction were only partially turned over earlier this month to defense counsel.

The crime lab was closed last month and drugs have been sent out to other communities for testing.

The number of cases affected is unclear. But the District Attorney’s most recent count is that 500 cases have been dismissed and another 1900 will be dismissed. This only includes open cases. Other cases, where convictions have been obtained may be reversed on writs of habeas corpus.

Mexico has removed custodial penalties for possession of personal use quantities of drugs. But many law enforcement agents along the border are upset that the change in Mexican law will make it easier for Americans to go to Mexico, purchase drugs, and bring them back across the border.

Other countries in Central and South America have taken similar steps. Brazil and Uruguay have removed jail penalties for possession of personal use quantities. Columbia has removed jail as a penalty for personal use amounts of marijuana and cocaine. The Argentine Supreme Court has ruled out jail as a penalty for marijuana possession.

Portugal has limited the penalties for possession of up to a ten day supply to treatment, a fine or probation.

If there are four things we know about drug use they are:

1. Drug use leads to addiction.
2. Addiction is a chronic disease with relapse as a common result.
3. Putting people in prison or jail does not cure the disease.
4. The cost of putting addicts in prison is much greater than treating the disease

While legalization may be a while off in the United States bills legalizing the use of marijuana have been introduced in Massachusetts and California.

Damion Townsend was charged with conspiracy to distribute at least 50 grams of cocaine base and an unspecified amount of cocaine, possession with intent to distribute cocaine base, and possession of a firearm during and in furtherance of a drug transaction. He was convicted on the conspiracy charge only.

Townsend drove his close friend, Jones, who unbeknownst to him was a government informant, and Winfree around New York City to complete some errands and to purchase some cocaine from Scrap in a deal arranged by Jones. Then at Jones urging they went to Townsend’s house where Jones converted the cocaine into cocaine base.

He raised two issues on appeal: insufficiency of he evidence, and the admission of prior bad act testimony.

But winning a case on appeal is no easy task. For many issues the appellate court gives great deference to the trial court and the jury verdict. When it comes to sufficiency of the evidence the

Court ‘must review the evidence in the light most favorable
to the government, drawing all reasonable inferences in its favor.Reversal is warranted only if no rational factfinder could have found the crimes charged proved beyond a reasonable doubt. In other words, a court may grant a judgment of acquittal only if the evidence that the defendant committed the crime alleged was nonexistent or . . . meager.”

(citations omitted)

Since the test is if there is any evidence that Townsend conspired to sell base cocaine, the appellate court won’t overrule the trial court. Here Townsend claimed that the informant who he had known since childhood was not credible. Thus it is a question whether or not the jury believed the informant. Since the jury could have believed the informant the appellate court did not reverse the conviction. This is probably a good rule. Our country’s criminal laws are bases on the common law’s faith in the jury system. The jury composed of peers of the defendant is the trier of the facts. The members of the jury, not the appellate judges saw the witnesses and determined which witnesses to believe and which witnesses not to believe. And I for one prefer to put my faith in a jury than in a jaded judge.

The second issue is that the prosecutor introduced two prior incidents in which Townsend sold guns to Jones. This is called prior bad acts evidence (21 USC 402(b). Theoretically it cannot be used to show Townsend’s bad character. It can only be used to prove an issue that is in contention. But as the majority points out The Second Circuit has an “inclusionary approach.” The standard of review is an abuse of discretion. In other words before the appellate court will consider reversing a conviction for an error in admitting the evidence it must find that the trial court’s decision was arbitrary and irrational. Once it finds that the decision is arbitrary and irrational it applies the harmless error test.

“An erroneous ruling on the admissibility of evidence is harmless if the appellate court can conclude with fair assurance that the evidence did not substantially influence the jury.”

In other words it is nearly impossible.

But in this case it is a close call. It is arbitrary and irrational if the alleged prior incident is not relevant to some issue that is before the court.

“To determine whether a district court properly admitted
other act evidence, we consider whether “(1) the prior acts evidence was offered for a proper purpose; (2) the evidence was relevant to a disputed issue; (3) the probative value of the prior act evidence substantially outweighed the danger of its unfair prejudice; and (4) the court administered an appropriate limiting instruction.”

The majority opinion found it relevant on the issues of knowledge and intent both of which it found to be disputed. It also went to show the relationship between Townsend and the informant. But the minority opinion pointed out that the intent and the knowledge necessary for sell firearms is different from what is needed in a drug transaction. Furthermore, the relationship between Townsend and Jones was not in question. All agreed it was close. Therefore it could only be used as illegal character evidence and should have been excluded.

The dissent also claimed that the trial court should have excluded the evidence under the Federal Rules of Evidence section 403 which excludes evidence whose probative value is highly outweighed by the prejudicial value to the defendant. The trial court failed to take into consideration the fact that even if the evidence is relevant it can be excluded if it shows the propensity of the defendant to commit crimes. While neither opinion raises the issued under Section 403 the evidence can be excluded, where although the evidence is relevant it waste too much time to put it in. Here they had a least one witness testify about the guns and put both guns into evidence. For the minimal value if any of using the guns it took up a significant amount of time and should have been excluded on the section 402(b) and 403 issues.

Last week the Seventh Circuit Court of Appeals denied the appeal of Kenneth Kirkland who was convicted of possessing over fifty grams of cocaine and sentenced to twenty years in prison and an additional ten years of supervised release.

In the early morning hours of September 2, 2007, Fairview Heights, Illinois police officers began an investigation of Kirkland for possession of cocaine. The investigation took them to the local Ramada Inn. Using police dogs to sniff Kirkland’s vehicle which was parked at the hotel they believed that there was cocaine in the vehicle. After he came out of the hotel and started to drive the vehicle, the officers pulled him over on the pretext that they were stopping him for a cracked windshield.

While an officer was issuing Kirkland a warning, a sergeant and a DEA agent drove up. Without reading Kirkland his Miranda warnings they asked him some questions and for permission to search the vehicle. Kirkland agreed. Rifle cartridges and cocaine were found. He was arrested and 48 hours later transferred to DEA custody. Once in DEA custody he was read his Miranda rights and he took responsibility for the cocaine. At approximately 3:00 p.m. on September 4 he was taken before a magistrate.

On November 30 he (actually his attorney) filed a motion to suppress evidence. The motion did not mention the statements made to the police or the DEA. He claimed that his detention was without reasonable or probable cause and that the length of the detention was excessive. He filed a brief in support of the motion on February 1, 2008 but again did not discuss the statements. A hearing was held on February 28. At the hearing his counsel said

Regarding the statements that he ultimately makes
at the DEA office several days later, I believe those
warrant suppression as well, Your Honor, based
upon the fact that he had been in custody for over
48 hours at that point, apparently had not even had
a change of clothing. My understanding is that he
was brought to Court later that day, but not before
being interviewed at the DEA office.

The Court refused to suppress the cocaine because the search of the vehicle was supported by probable cause. The Court also refused to suppress the statements made while in Federal custody because he had been given Miranda warnings and it did not suppress the roadside statements because Kirkland (again actually his counsel) did not specify the nature of the statements.

The Fourth Amendment prevents lengthy detentions prior to an appearance before an magistrate during which peace officers can ruthlessly interrogate defendants. The Supreme Court has decided that a defendant must be taken before a magistrate for a probable cause hearing within 48 hours of arrest. Rule 5(a) of the Federal Rules of Criminal Procedure mandate that a defendant be brought immediately before a Federal magistrate and that any statement taken prior to the appearance before the magistrate but more than six hours after the arrest be excluded. Time held in local custody is excluded unless the Federal authorities colluded with the local police.

In refusing to grant the defendant’s appeal the appellate court found that Kirkland waived his right to have appellate consideration by failing to timely move to suppress the statements. Not only did Kirkland’s counsel wait until the hearing on the motion to suppress the cocaine to bring up the statements but his counsel failed to provide any legal reasoning in the motion to support the suppression of the statements. Furthermore counsel failed to meet deadlines set by the trial court for motions to suppress in that the original motion did not ask for the suppression of the statements.

The logical problem with the Seventh Circuit’s denial of the appeal is that Kirkland did not fail to meet any deadlines or to fulfill any duties. He is being punished for his counsel’s failure to meet deadlines and properly move for suppression of the statements. Presumably, although there is no indication in the appellate decision his appellate counsel (let’s hope that his trial counsel is not doing the appeal) is filing a writ of habeas corpus alleging incompetence of his trial counsel for failure to meet the deadline and for failure to move in a timely manner for suppression of the statements.