Jose Angel Carachuri-Rosendo, a lawful permanent resident, was convicted of two drug related misdemeanors in Texas, First he was convicted of possession of less than two ounces of marijuana and then he plead guilty to possession of one anti-anxiety pill without a prescription.

Normally conviction of a misdemeanor does not result in deportation. But under Federal law and under Texas law a second possessory conviction can be charged as a felony. Narcotics related felonies are considered aggravated felonies and are subject to deportation. Furthermore those convicted of aggravated felonies cannot request discretionary cancellation of removal which allows a judge to determine whether an individual should stay in this country despite he/she being deportable.

The district attorney in Texas had the option of charging Carachuri-Rosendo as a recidivist with a felony. But they did not. None the less, the Federal government moved for deportation because under Federal law he could have been charged as a felon and be deported.

In 2006 the Supreme Court ruled in Lopez v. Gonzales that only those narcotics related crimes that are chargeable under Federal law as felonies subject a person to deportation. In other words, if a person is convicted of a felony in state court but under Federal law it is a misdemeanor the person cannot be deported. For example, if possession of a drug is a felony in some states but can only be charged as a misdemeanor in Federal Court the person cannot be deported.

The Court of Appeal therefore decided that since it could have been a felony if if it had been charged in Federal Court, it should be treated as an aggravated felony. But the Supreme Court found that since he had not been convicted of a felony it was not an aggravated felony. While Carachuri-Rosendo is deportable he is subject to cancellation of removal and the District Court must use its discretion on whether or not he should be deported.

Congress passed a bill authorizing the Federal government to petition the courts to institutionalize an offender beyond the time of his/her maximum sentence if that person either committed or attempted to commit an act of sexual violence or child molestation and the offender is a danger to society.

Four Florida inmates challenged their commitments under 18 U. S. C. §4248 in United States v, Comstock on the basis that the Constitution does not grant the Federal government authority to institutionalize them beyond their maximum prison commitment. Article I of the Constitution grants Congress specific limited powers. The Tenth Amendment states that all powers not granted to the Federal government are reserved for the states.

Despite the defendants arguing that Congress was without authority to commit individuals after their sentence was completed, the Court ruled that the legislation was authorized by the Necessary and Proper Clause, under which Congress can pass any law necessary and proper to the carrying out the duties enumerated in Article I. For example, one of the enumerated duties authorizes a postal service. The building of post offices is a necessary and proper tool to establishing a postal service.

The court evaluated five factors in determining that the post-prison commitment of sexually violent inmates is necessary and proper means to carry out its duty to provide mental health care for Federal prisoners. The factors are “(1) the breadth of the Necessary and Proper Clause, (2) the long history of federal involvement in this arena, (3) the sound reasons for the statute’s enactment in light of the Government’s custodial interest in safeguarding the public from dangers posed by those in federal custody, (4) the statute’s accommodation of state interests, and (5) the statute’s narrow scope.” The Court ruled that the Necessary and Proper Clause allows Congress to pass legislation that is convenient, useful or conducive to carrying out one of its assigned duties. The Court found that while it is not independently proof of constitutionality the government has a long history of legislating prison mental health issues. Congress reasonably enacted the legislation to protect people who lived near Federal prisons from sexual violence by released inmates. The statute allows the Federal government to institutionalize those who would otherwise be released only after the states in which they were arrested and in which they live refuse to take custody of a dangerous inmate. Finally the court found that the post-prison institutionalization of sexually dangerous inmates was not too attenuated from Article I duties of Congress.

Justice Clarence Thomas dissented. He points to the pivotal 1819 case, McCulloch v. Maryland, Chief Justice Marshall wrote:

“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”

Thus to be constitutional it must

satisfies a two-part test: First, the law must be directed toward a “legitimate” end, which McCulloch defines as one “within the scope of the [C]onstitution”–that is, the powers expressly delegated to the Federal Government by some provision in the Constitution. Second, there must be a necessary and proper fit between the “means” (the federal law) and the “end” (the enumerated power or powers) it is designed to serve.

The only crimes the constitution specifically authorizes the Federal government to prosecute are counterfeiting, treason, piracy, crimes committed on the high seas and those against the Law of Nations. No one today would limit the Federal government to prosecuting those crimes. Certainly any number of crimes can be prosecuted under the Necessary and Proper Clause. But it is time to reconsider some of the crimes prosecuted by the Federal government. For example, is it really necessary to have the federal government prosecute drug, sex, and internet crimes. The basic police duties of government should be left to the state governments.

Louisiana lawmakers are considering legislation that would require all people who have been convicted of two felony drug offenses to have the words “Drug Offender” printed in orange on their driver’s license. The bill which is sponsored by Rep. Rickey Hardy, D-Lafayette has been unanimously approved by the House Committee on Transportation, Highways and Public Works. Now it will go before the full House.

Louisiana already requires certain people convicted of sex offenses to have the words “Sex Offender’ printed on their license.

According to its supporters the legislation will help law enforcement officers. But the effect of the legislation would be to destroy the lives of ex-felons who may no longer be involved with narcotics. Driver’s licenses are used for many things. You cannot cash a check, rent an apartment, or get governmental services without showing your driver’s license. Thus the effect of the legislation may be to force ex cons to go homeless. steal merchandise, or go without vital services.

Furthermore any assistance to peace officers is minimal at best. Arrests can only be made upon a showing of probable cause. And probable cause cannot be based upon past convictions. It can only be based upon current information. It may result in police officers making arrest and performing searches without probable cause and these cases would have to be thrown out by the courts.

Thus while providing little benefit it would make it more difficult for ex offenders to get jobs, housing, and benefits. I guess the only way they will be able to survive is by selling drugs. Good job legislators!

The Eighth Circuit Court of Appeals upheld the search of three residences in a Kansas City methamphetamine case in United States v. Cisneros-Gutierrez.

Immigration and Customs Enforcement (ICE) Special Agent Mark King set up surveillance at 323 South Brighton Avenue. Along with other agents he decided to conduct a “knock and talk.” A “knock and talk” is used by narcotics agents when they want to search a residence but they do not have probable cause to get a search warrant. They knock on the front door and when someone answers it they try to talk their way into the house and get consent from the residents to search the house. Of course the residents do not have to answer the door. Nor do they have to talk to the officers or give them permission to enter the house.

But King was either good or lucky. Justino Ruiz-Ramos answered the door. He said he did not live at the residence but Salvador Jesus Velasco-Saldana came to the door. Velasco-Saldana said he resided there and gave the officers permission to enter. He consented to the officers searching the residence. They found methamphetamine and related items. They interviewed Velasco-Saldana and he told them that Gerardo sold him three pounds of methamphetamine and that Gerardo’s brother delivered it. He drew the officers a map explaining how to get to Gerardo’s house.

Several officers including King and Luis Ortiz of the Kansas City Police Department Gang Unit went to 430 Donnelly Avenue and conducted another “knock and talk.” Miguel Angel Garcia-Bobadilla answered the door and again the officers were let in. They asked Garcia-Bobadilla if he was alone. When he answered yes they asked asked if they could perform a protective sweep in order to confirm that no one else was in the house. He gave permission. A protective sweep is done to make sure the officers are safe while in the house. But they also know that any illegal substances they see in “plain view” can be seized. They found a significant amount of methamphetamine in the house.

During the sweep they ran into Alfredo and Dehli Hernando-Pena. Alfredo and Garcia-Bobadilla said they lived in the house. Both gave verbal and written consent to the search. Dehli agreed to cooperate. She told them that Alfredo’s brothers lived at 3907 East 12th Terrace. After the officers search the Donnelly Avenue house they went to the 12th Terrace house. They knocked on the door and Gerardo answered. While talking to Gerardo they noticed Alphonso entering the kitchen with large baggies of powder and they heard what they thought to be Alphonso flushing something down the sink. The officers thinking that evidence was being destroyed entered the residence without a warrant.

After they were indicted the defendants brought motions to suppress the evidence. The court upheld all of the searches. As to the South Brighton Avenue search, it found that Velasco-Saldana gave consent to the entry and search. As a result it was not in violation of the Fourth Amendment.While there was some question about the facts of the Donnelly Avenue search. The police claim that the residents gave their consent and the residents say the police forced their way in, the court found the officers to be credible and the residents not to be. As a result it found that the entry and search was also the result of consent. As to the 12th Terrace search there is an exception to the Fourth Amendment when exigent circumstances exist. The courts have found that the eminent destruction of evidence is an exigent circumstance allowing the authorities to enter a residence without a warrant.

The question that constantly comes up in my mind is why would anyone allow the police to enter their house and search it knowing that there is a significant amount of methamphetamine in the house. If any of the defendants had just said “no” I will not talk with you or “no” you cannot come in, or “no” you cannot search none of this would have happened and they would not have be serving decades in prison. The Fifth and Fourteenth Amendments give people the absolute right not to talk to the police. The Fourth and Fourteenth Amendments Amendments give people the right to refuse entry to any officer who does not have a search warrant into their residence and to deny the officers the right to search the residence.

Even assuming that the police do not always tell the truth it is obvious that the defendants talked themselves into being arrested. Did they think that when talking with experienced officer they could talk themselves out of being arrested–unlikely. And I do not know about this case but by talking they endanger themselves because others get arrested and they may be killed. It makes no sense.

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.

The Tenth Circuit Court of Appeals upheld a search of a vehicle in United States v. Parada where the defendant provided no evidence that he had standing to challenge the search of a cooler full of PCP in the vehicle. Norman A. Parada was a passenger in a rented vehicle traveling from Los Angeles to Virginia. He was one of four people in the vehicle. The ability to challenge an illegal search is a personal right and only those who have a possessory or ownership interest in an item can challenge its search. The burden to prove standing is on the defendant challenging the search. Since the defendant provided no evidence of possession of the cooler at the suppression hearing in the trial court the appellate court found, as did the trial, court that he did not have standing to challenge the search of the cooler.

Five people including Parada drove to Los Angeles. Four of them drove back with a cooler in the car which was full of PCP. They were stopped for a traffic violation in Kansas. After the police officer became suspicious he had his dog, Rico sniff the vehicle. The dog alerted on the left side of the vehicle. A search of the vehicle found some marijuana on the left side of the vehicle and the PCP in back. Parada challenged the existence of probable cause for the search. The appellate panel found that the dog sniffing is sufficient to show that “there is a fair probability that contraband or evidence of a crime will be found in a particular place” and therefore probable cause existed to search the vehicle.

When prosecutors have no other way to justify a warrantless search they claim that exigent circumstances require immediate action and that peace officers did not have time to obtain a search warrant. In United States v. Washington they not only claimed exigent circumstances but they claimed that Mr. Washington did not have standing to object to the search.

George Young rented an apartment in Cincinnati, Ohio. While he was serving a term in the local jail, his nephew, Tracy Washington was house sitting. At the time of Young’s arrest he told Washington to secure the apartment and to keep people out of the apartment. Nevertheless the apartment manager told the officers that no one, including Washington, was to be in the apartment while Young was in jail.

Early on Christmas morning the local police came to the residence without a search warrant and accused Washington of trespassing. Over Washington’s objection they patted him down and searched the apartment. Drugs, paraphernalia and a gun was found.

Washington was charged with gun and drug charges. He moved to suppress the evidence. The court granted his motion and the government appealed.

A defendant has standing to move to suppress evidence if objectively and subjectively he has a right to privacy in the area searched. If you are living in the area searched, as Washington was, you have a privacy right in the apartment. The government attempted to claim that because Young was behind in paying the rent, Washington was subject to to eviction and therefore could not have a privacy right in the apartment. But under Ohio law while he was subject to eviction no action had been taken and he continued to have a right to privacy in the apartment.

The government also argued that since he was committing criminal acts in the apartment he lost his right to privacy in the apartment. The court pointed out that this was absurd in that if this was true the Fourth Amendment would be meaningless.

Therefore the court found that Washington had standing to bring the motion to suppress the evidence.

The next issue is whether the warrantless search violated the Fourth Amendment. The prosecutor argued that exigent circumstances justified the search. The Supreme Court has found four instances in which exigent circumstances are applicable:

(1) to engage in hot pursuit of a fleeing felon; (2) to prevent the imminent destruction of evidence; (3) to prevent a suspect from escaping; and (4) to prevent imminent harm to police or third parties.

The government did not claim that any of these factors were relevant. While the Sixth Circuit has found a couple more instances where exigent circumstances exist it should only be used

As [the court has] repeatedly and consistently observed, the critical issue is whether there is a “true immediacy” that absolves an officer from the need to apply for a warrant and receive approval from an impartial magistrate

In this case the court found no great immediacy. It is true that several days before Christmas people were seen going into the apartment with a gun. But there was no evidence that the gun was being used. Drug use is a serious problem but if drug use was necessarily an exigent circumstance the warrant requirement would be meaningless.

The court particularly did not want to get around the warrant requirement since the alleged harm, trespassing is relatively trivial. As a result the Court found that the search was unreasonable and it upheld the suppression of the evidence.

The FBI tapped Mohammed Said’s cell phone thinking he was a major drug dealer. They heard six conversations between Said and Salman Khade Abuelhawa in which they arranged two cocaine sales to Abuelhawa, each for one gram. A sale of cocaine is a felony and a purchase for personal use is a misdemeanor. But the use of a telephone to facilitate a felonious drug transaction is a felony under 21 USC 843(b). Poor Abuelhawa was charged with six felonies, one for each telephone call. He faced 24 years for the felonies as contrasted to two years for two misdemeanors. His attorney objected that he was only committing a misdemeanor. But both the District Court and the Fourth Circuit Court of Appeals disagreed. (It should be noted that the Seventh Circuit in a similar case agreed with the Fourth Circuit and the Tenth Circuit disagreed finding it not to be facilitation.) They said the plain meaning of “facilitate” is to assist and Abuelhawa was using the phone to assist Said commit a felony. Luckily the Supreme Court in an unanimous decision in United States v. Abuelhawa ruled that a buyer is a buyer and a seller is a seller and the buyer is not facilitating the seller.

So Abuelhawa’s six felony convictions are reversed.