Jimmy Brown was placed in a squad car on a firearms charge. He was then given his Miranda rights. When asked if he understood them. his response was “pshh.” He then answered several questions and asked for a “deal.” ¹ He was later given the Miranda warnings again as the station house. This time he responded, “Yeah.”

Prior to his trial Brown moved to suppress his answers to the questions. The District Court denied the motion and the Seventh Circuit Court of Appeals affirmed the conviction. It held that his request for a “deal” and his selective answering of questions was sufficient evidence that he voluntarily waived his Miranda rights.

To me, it sounds as if it is, at most, a conditional waiver. He may be saying, if you give me a “deal,” I will talk. For that matter is the continued questioning of Brown after he asks for a deal an agreement by the officer to give Brown a deal?

Last spring we wrote about police scandals in Contra Costa County California and Antioch. The head of the Central Contra Costa Narcotics Enforcement Team (CNET), and the owner of a private detective agency, both former Antioch police officers were accused of stealing drugs from the CNET safe and selling them to the clients of Chistopher Butler’s private detective agency. Butler was further accused of setting up the husbands of his clients who were seeking divorces for DUI arrests by having the men lured into a bar by an attractive women and then by having Tanabe arrest the men for driving under the influence.

Now it turns out in a new Federal indictment that Butler apparently bribed Tanabe with a gun and cocaine in exchange for making the arrests. This is the same police department that allowed Phillip and Nancy Garrido to live in their midst with kidnap victim Jaycee Dugard and her daughters put away in a back yard shack

There was an arrest warrant for Torrance Hill. His address was unknown but the authorities knew the address of his girl friend. However they felt that it was unlikely that he would be at her home, knowing that the police were looking for him and knowing that they would be looking for him at his girl friend’s townhouse. They went to the house, anyway, to question the girl friend. They knocked on the door. No one answered. They could here voices inside but they were unsure whether people were inside or it was the television. They called his girl friend, Ms Alvarez ¹ She was at work and she said the only person who could be in the residence was her sister.

The police opened the door anyway and found Hill in the house. They searched the residence and found marijuana and a grinder. An hour later Alvarez came home and consented to a full surch of the residence. They found a two-shot revolver, an empty holster, a bulletproof vest, scales, ammunition, marijuana, and crack cocaine. Hill was indicted and moved to suppress the evidence on Fourth Amendment grounds.

The strongest case for Fourth Amendment protection occurs when authorities search a residence. One’s house is one’s castle and an unconsented entry intp the house violates the Fourth Amendment. Officers can enter with a arrest warrant but only if the wanted person lives in the residence and the police have reason to believe that the person is present. Once they arrest a person in a residence they may search the area near the person as a search incident to arrest. They can also search the residence if the resident consents to the search. In this case the entry into the residence was illegal. The officers did not have consent at the time of the entry and they did not have reason to believe that Hill was in the residence. In fact an officer testified that there was an eighty per cent chance that Hill was not in the residence.

The Fourth Circuit Court of Appeals remanded the case to the trial court with instructions to determine whether or not the consent given by Alvarez was sufficiently attenuated from the illegal entry or whether it was tainted by the entry. The court instructed the lower court to look at three factors: (1) the time between the Fourth Amendment violation and the consent, (2) the presence of intervening circumstances, and (3) the flagrancy of the official misconduct. After reviewing these factors the court can determine whether Alvarez’s consent was voluntary or whether it was forced on her by the illegal entry into her house.

The Armed Career Criminal Act (ACCA) provides for a minimum sentence of fifteen years for anyone who has three prior serious drug offenses or violent felonies. It defines a serious drug offense as any drug offense for which the maximum punishment is ten years or more in prison, according to state law.

The question in McNeill v. United States, decided yesterday, was whether a drug conviction is an ACCA prior based based upon the penalty at the time of conviction in state court or based upon the penalty at the time of the Federal Court trial.

Clifton Terelle McNeill had two two violent felonies on his record at the time he was convicted of possession of a gun and possession of cocaine for sale in Federal Court. He also had six drug offenses. At the time of his conviction on the drug offenses the maximum penalty in North Carolina was ten years. But in 1994, the North Carolina law changed providing a maximum sentence of 38 months. The trial judge ruled that he had three or more serious felonies under the ACCA and sentenced him to 300 months.

The Supreme Court reviewed the language of the ACCA and agreed with the trial court that the determination of whether a crime is a prior under the ACCA is made at time of the original sentencing, not at the time of the conviction of a subsequent crime. As a result the Supreme Court found that the fifteen year minimum applied to McNeill.

Section 18 USC 924(e)(1) states in pertinent part:

In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years

Justice Thomas, for a unanimous Court, held that despite the present tense language of the section the statute should be interpreted as it was written at the time of the original state conviction, not at the time of the subsequent Federal conviction. Since the statute talks about a prior conviction it is necessary to look at the conviction at the time of the original sentencing. Otherwise it is possible that the statute applicable to the prior conviction may have been revoked. Furthermore under North Carolina law the maximum punishment for drug crimes committed prior to 1994 remains ten years.

While this is all good and well certain incongruities appear. If a crime happened the day before the revised North Carolina statute was passed the defendant is facing an ACCA prior while the defendant who was convicted one day later is not. Furthermore by basing the statute on state law a defendant who committed the same offense but lives across the border in South Carolina may not be facing an ACCA mandatory minimum.

In any case, I’m not sure why the Supreme Court granted certiorari in this case. In sentencing McNeill the judge pointed to McNeill’s “long and unrelenting history of serious criminal conduct” in upwardly departing from the Sentencing Guidelines to sentence him to 300 months. Thus it is unlikely that even if the Supreme Court had decided that the mandatory minimum did not apply and remanded the case for resentencing that the trial court would have sentenced McNeill to less than 300 months.

Russell E. Booker and Michael Wyman plead guilty in separate domestic violence cases to assault in Maine. Both cases occurred some years ago. More recently Booker accidentally shot a hunting partner and Wyman shot a bullet into the air during a domestic dispute. Both were indicted and convicted in Federal court for possessing a weapon after a misdemeanor domestic violence conviction.

Booker and Wyman appealed to the First Circuit Court of Appeals alleging that since Maine’s assault law does not require a specific intent to commit a crime the convictions cannot serve as a basis for the Federal convictions. The state statute allows a conviction for recklessly assaulting someone. They also alleged violations of their Second Amendment right to possess a gun.

The Federal statute banning possession of guns (18 USC 922(g)(9) by those convicted of misdemeanor domestic violence reads:

That it shall be unlawful for any person . . . (9) who has been convicted in any court of a misdemeanor crime of domestic violence, to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

The First Circuit rejected the defendants argument that the state statute had to be an intentional crime. Nowhere in the Federal statute does it require that the domestic violence statute have a particular mens rea or intent. Therefore the court ruled that Congress in passing Section 922(g)(9) did not mandate a mens rea and therefore the convictions are valid.

Pointing to Heller in which the Supreme Court recognized the Second Amendment right to possess a gun the court pointed out that the Supreme Court recognized that certain categories of people could be banned from possessing guns. The First Circuit held that due to the significant number of people killed with guns in domestic violence disputes that Congress can prohibit misdemeanants convicted of domestic violence from possessing guns.

The irony here is that while looking at the intent of Congress in ruling that a particular mens rea is not necessary for a conviction under Section 922(g)(9), the Court did not look at the intention of the First Congress which passed the Bill of Rights. Certainly the first Congress did not intend to limit the ability of misdemeanants from possessing weapons. It is unlikely that domestic violence was even a crime in 1789.

Joemon D. Higden was charged with possession of a firearm by a convicted felon. In order to convict him the government had to prove three elements:

(1) the defendant has been convicted of a crime punishable by imprisonment for a term exceeding one year;
(2) the defendant knowingly possessed the firearm; and
(3) the firearm had travelled in interstate commerce.

The prosecution and the defense stipulated to the first and the third elements. Instead of instructing the jury on all three elements and telling them that the parties stipulated to the existence of two of the elements, the judge told the jury that their sole job was to determine whether the prosecution had proved the second element by beyond a reasonable doubt.

The jury hung and a second trial was scheduled. when the judge indicated he planned to follow the same regime in the second trial the U. S. attorney objected and appealed to the Third Circuit Court of Appeals. The Third Circuit ruled that the procedure was wrong since the jury must find the existence of all of the elements. The Court, citing the Sixth Amendment. The Court said that every defendant is entitled to a jury determination of each element. But here the defendant stipulated to two elements and agreed that the jury would only be asked to find that he knowingly possessed the gun. The advantage to the defendant is that the jury would not find out that he is a convicted felon. Protecting Higden’s right to have a jury determine every element of the offense actually hurts him. The trial judge realized that but sadly the appellate court did not.

In its first criminal justice decision of the 2010-1011 session, Abbott v. United States the Supreme Court tackled a split in the circuits over 18 U. S. C. Section 924(c). Section 924(c) criminalizes possession of a weapon while being involved in a violent or drug-related offense. It states in pertinent part:

(c)(1)(A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime -
(i) be sentenced to a term of imprisonment of not less than 5 years;
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years. . .

The question deals with the first phrase. Kevin Abbott and Carlos Rashad Gould in separate cases were convicted inter alia with violations of Section 924(c) Each argued in the trial courts and on appeal that the first phrase prevented them from being punished for violating the section. They claimed that since they were convicted of other offenses that mandated a minimum sentence of over five years they could not be punished for a violation of Section 924(c). After all the statute says, ” Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law.” Gould argued that the ten year mandatory sentence he received for possession of narcotics with the intent to distribute it prevented the court from imposing Section 924(c)’s five year mandatory minimum sentence and Gould argued that his fifteen year mandatory minimum sentence for possession of a weapon by a convicted felon also prevented imposition of the 924(c) sentence.

But the Supreme Court unanimoulsly ¹ruled that the “other provision of law” clause referred only to statutes that outlawed conduct identical to Section 924(c). It pointed out that the questioned language was added to the section in 1998 as part of an effort to strenghthen the law and accepting the defendant’s argument would weaken the law. Accepting the defendant’s interpretation would allow some defendants not to be punished at all for possessing a gun where they have a higher mandatory minimum under other provisions of law. Also because those convicted only of lesser crimes would get the additional five years and those convicted of greater crimes would not in some case those who are guilty of only lesser crimes might do more time than those guilty of greater crimes.

Considering these factors the Supreme Court decided that Congress could not have wanted the five year mandatory minimum to apply only to those not convicted of any other offense with a mandatory minimum of five years or less.

A cab driver saw a four year old girl wandering along a street without any apparent supervision. He called the police and Officer Anthony Ratliff arrived. After taking custody of the child, he asked her where she lived. She pointed to a nearby house. The door was open. He knocked on the door. No one answered. He followed the child in the house, calling out to see if anyone was home. In a bedroom in the back of the house the officer found a man who appeared to waking up. The man said he was the child’s father but he did not have any ID.

He gave a false name and a birthdate. After backup officers arrived Ratliff went out to his car and checked the name on a computer and found nothing.

Ratliff noticed a bag of bullets in the room. He searched the room and found a gun under the mattress. A computer search, conducted after Ratliff got Taylor’s name in a telephone conversation with the child’s mother indicated that Taylor was a convicted felon and Ratliff arrested Taylor for being a felon in possession of a gun.

Taylor’s motion to suppress the evidence was denied and he appealed.

He claimed the search was illegal in that it was performed without probable cause that a crime was committed and without a search warrant. It is true that for most searches of a residence a warrant is necessary. But Ratliff was not investigating a crime. He was trying to return a child to her parents. The Fourth Amendment does not require a warrant in all cases. But it requires that searches be reasonable and it was certainly reasonable for Ratliff to go into the house to look for the child’s parents. Likewise the search of the house looking for a parent was reasonable. Both the entrance into the house and the search for a parent are permitted under the exigent circumstances exception to the warrant clause.

The appeal was denied. The court justified the entry into the building, the search for Taylor and the search of his room under the exigent circumstances exception.

But where I part from the Court is in the search under the mattress for the gun. There is no law requiring an individual to have identification and any law that so requires identification, other than while driving, violates the Constitution. Thus he had not committed any crime allowing the officers to search the room. Without knowing more there is no law against the possession of bullets. So finding the bag of bullets did not give the officers probable cause that a crime occurred. If the gun was under the mattress and Taylor was on top of the mattress, he could not get the gun and the officers were not endangered. There was no reason to search under the mattress and the search did not further the goal of finding the child’s parents. Even knowing Taylor’s name did not prove or disprove that he was the father. If the police had any doubt and there was no reason for them to have doubts they could ask for pictures, to see the child’s bedroom, or to talk to the child’s mother. But knowing his name was immaterial and searching the room violated Taylor’s Fourth Amendment rights.

Rodney Bynard Johnson was convicted of possession of a firearm by a convicted felon in the District Court for the Western District of Oklahoma and sentenced to fifteen years in prison. He appealed to the Tenth Circuit Court of Appeals claiming that his motion to suppress evidence should have been granted and that his sentence was unreasonable.

Johnson was driving a car late at night with two passengers. He was pulled over by an Oklahoma State Highway Patrol trooper after the officer observed him swerving. He was ordered out of the rental car he was driving and into the police car. According to the officer he immediately smelled marijuana on Johnson’s breath. But according to a video it was nine minutes later before he asked Johnson about the marijuana. The officer left Johnson in the patrol car and got the rental contract out of the car Johnson had been driving. He again smelled marijuana in the car.

The trooper decided to search the vehicle. Along with the marijuana he based the search on the vehicle being from out of state; the lessee or owner of the car was not present; the defendant did not know the actual name of one of his companions ; it was very late at night; the passengers had made unusual movements while the officer had been following the car; and the occupants’ plans were vague. A gun was found on the driver’s seat below a blanket. The Tenth Circuit said that the mere fact that there was an odor of marijuana was enough to search the vehicle.

Johnson challenged the search on appeal by showing incongruities between the officer’s testimony and the video tape as well as between the trial court’s findings and the testimony. But the trial court found the officer’s testimony to be credible and barring a major showing to the contrary the appellate court was bound to accept the trial court’s finding of facts and the facts as being most favorable to the winning side (the government) in the trial court. The important thing to remember from this case is that appellate courts have limited powers. Unless the facts, as found by the trier of fact, are unreasonable the appellate court must accept them as true. A few incongruities or challenges to the witness’ credibility cannot change the duty of the appellate court to accept the facts as found by the trier of the facts ¹.

As far as the sentence, Johnson had three prior convictions for either drug offenses or crimes of violence and the trial court had no choice but to sentence him a minimum of fifteen years under the Armed Career Criminal Act.

There has been considerable talk lately about Congress attempting to widen the public safety exception to the Miranda Rule. Attorney General Eric Holder supported such a move in a interview on Meet the Press last week.

The public safety exception was first enunciated by the Supreme Court in New York v. Quarles. In Quarles a woman approached a police officer and told him that she had been raped at gunpoint. Furthermore, she told him that the rapist was in a particular grocery store. The officer went to the store and together with other officers found the suspect, searched him and handcuffed him. They found an empty holster on him. They asked him where the gun was. He said “over there.” then the officers Mirandized him. The lower courts excluded the statement ‘over there” from the trial saying that it was obtained in violation of Miranda.. But the Supreme Court found that the overwhelming need to protect the public safety and to find the gun before someone else got hurt was an except to the Miranda rule.

Now the administration is considering asking Congress to change the public safety exception to allow questioning of suspected terrorist prior to giving the Miranda warnings. Let’s be clear. No law requires the Miranda warnings to be given. The law only prohibits non-Mirandized statements given while a suspect is in custody in response to police interrogation from being used in court. Police have every right to interrogate a suspected terrorist to obtain information about other terrorists or terrorist acts without giving Miranda warnings as long as the statements and and evidence obtained as a result of getting the statement is not used to convict the alleged terrorist.

Furthermore under the public safety exception, there is little doubt that law enforcement officers, if they find a person with a bomb in Time Square can question the man about the existence of other bombs in Time Square or elsewhere without worrying whether or not the statement will be admissible. The statement would come in under the public safety exception.

Also any attempt by Congress to expand the public safety exception would be subject to Supreme Court review. As Chief Justice Rehnquist wrote for the court in Dickerson v. United States: “We hold that Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress, and we decline to overrule Miranda ourselves.”

It is not clear how Holder wants to amend the Miranda rule. But constitutional rights are guaranteed to all citizens regardless of what crime they may be charged with. It is unlikely, therefore, that the Supreme Court would agree to an exception the Miranda rule for those charged with terrorist offenses.