Watching TV tonight: Shameless, the Good Wife and the finale of Downton Abbey.
There are new details in the Pistorius murder case.
Adam Lanza is back in the news, PBS's Frontline will...
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Sunday Night Open Thread
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Top-Ten Recent SSRN Downloads
in criminal law and procedure ejournals are here. The usual disclaimers apply. RankDownloadsPaper Title 1 12708 Ham Sandwich Nation: Due Process When Everything is a Crime Glenn Harlan Reynolds, University of Tennessee College of Law, Date posted to database: January...
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Crash on Bogus Basin Road Claims One
IDAHO STATE POLICE NEWS RELEASE - generated by our News Release ListServer
DO NOT REPLY
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IDAHO STATE POLICE NEWS RELEASE
District 3 Patrol 700 S. Stratford Dr., Meridian 83642
(208) 846-7550
Fax (208) 846-7520
For Immediate Release: 02/17/2013 at 9:15 p.m.
Please direct questions to the District Office
On February 17, 2013, at approximately 2:20 p.m., the Idaho State Police investigated a single vehicle fatality crash on Bogus Basin Road at about milepost 11, in Boise County. Roger L. Brown, age 50, of Boise, was traveling south in a 1979 Porsche 930. Brown's vehicle went off the roadway and down an embankment. Brown was pronounced deceased at the scene of the crash. Brown was wearing his seatbelt.
Traffic was reduced to one lane while crews worked to clear the scene of the crash. This crash is under investigation by the Idaho State Police.
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"DNA Collection After Arrest: A Few Thoughts on Maryland v. King"
Orin Kerr has this post at The Volokh Conspiracy. In part: I think it may be analytically helpful to the Court to break down the “search” question into two stages. First, there’s the buccal swab. But second, there’s the analysis...
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Our office is open today, Presidents' Day
Jon Katz, a criminal defense lawyer and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients. http://katzjustice.com Our office is open today, Presidents' Day, February 18. I give my staff leave on all federal holidays other than Columbus day and Veterans' Day. I will be working today, and my part-time assistant Nick opted to work today, in the afternoon. I have meeting times available every day this week around my court calendar.
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IA: People in apartment talking loud about drugs and what to do the cops outside was exigency
People inside the apartment “discuss[ing] their concern about police presence in the building” including one saying he had drugs on him was exigency for entry. State v. Floyd, 2013 Iowa App. LEXIS 229 (February 13, 2013):
Here, in contrast, the information relayed to police officers indicated a large amount of foot traffic and drugs, an officer heard several individuals inside the apartment discuss their concern about police presence in the building, and one individual stated he had drugs on him and needed to leave the apartment. Given the specific, articulable facts known to Officer Nice regarding the scenario unfolding behind the apartment door, along with the rational inferences that could be made therefrom, a reasonable officer in his position could have feared either the escape of a subject or the destruction of evidence.
A vehicle parked at the owner’s house is immobile for the purposes of Oregon’s automobile exception. State v. Pirtle, 2013 Ore. App. LEXIS 152 (February 13, 2013).*
Landlord’s standing in the premises that burned in a fire was limited, and here gave him no standing to challenge the fire scene search. United States v. Cromer, 2013 U.S. Dist. LEXIS 20738 (E.D. Mo. February 15, 2013).*
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Schwedischer „Serienmörder“ war vermutlich jahrelang unschuldig im Gefängnis
Ein Schwede soll zwischen 1976 und 1988 mehr als 30 Menschen getötet haben. Für rund acht Morde wurde der Mann verurteilt und sitzt seit fast 20 Jahren in schwedischen Gefängnissen. Nun stellte sich heraus, dass wichtige Beweise im Fall manipuliert waren. Die Verurteilungen stützten sich zusätzlich auf die Geständnisse des Mannes. Diese erfolgten jedoch . . . → Read More: Schwedischer „Serienmörder“ war vermutlich jahrelang unschuldig im GefängnisÄhnliche Beiträge:Justizskandal: Schwedischer „achtfach Mörder“…NSU-Fall: Wurden Akten vernichtet?Strafrecht: War es Selbstmord?Mord: Mann zerstückelt Leiche seiner Frau und erhält 11…Tötungsdelikt: 15-Jähriger gesteht Tötungsdelikt an…
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OUI drug charge in Massachusetts, how is the offense proven in court?
OUI drug charges in Massachusetts are on the rise. What does the Commonwealth have to prove to secure a conviction? In prosecuting an OUI drugs case, the police report will typically look very similar to an arrest for OUI...
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Rutgers Law Dean Farmer Plays The Apprentice
<font style="FONT-SIZE: 12px" face="Arial">Quietly, some joker in the editorial department of the New York Times is snickering, having snared another law dean or professor in the trap of
offering a soapbox upon which the dean can conclusively prove to the legal community that he's got no clue about the real world of lawyering. And given the chance to get on the box, they just
can't resist.<br>
<br>
This week's contestant was Rutgers Law Dean John Farmer, ...</font>
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But The Cop Didn't Show
<font style="FONT-SIZE: 12px" face="Arial">Few sounds are better to a defendant's ear than the dulcet tones of a judge saying "case dismissed" because the arresting officer failed to appear for
trial. Well, "not guilty" is better, but that puts the defendant through the cost and misery of trial. How wonderful to avoid it all. Except when the defendant is a Florida Highway Patrol
trooper who's conduct killed a woman, injured another and sent as 12-year-old hurtling through a windshield.<br>
...</font>
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Family Matters: The Sexual Revolution in American Politics
Robert O. Self, All in the Family: The Realignment of American Democracy Since the 1960s (Farrar, Straus and Giroux, 2012).Serena MayeriAfter reading Robert Self’s ambitious new book, it is almost impossible to imagine a satisfying history of the last half-century of American politics that does not place gender, sexuality, and the family at the center of analysis. Self’s story begins at the dawn of the Kennedy Administration and ends with John Kerry’s 2004 presidential defeat but focuses primarily on [...]
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LimeWire, the Wyoming Tool Kit and the 4th Amendment
After Levi Dunham “was charged by bill of information with seventeen counts of pornography involving juveniles” in violation of Louisiana Revised Statutes § 14:81.1(a)(3), he entered a plea of not guilty and then filed a motion to suppress evidence. State v. Dunham, __ So.3d __, 2012 WL 6643838 (Louisiana Court of Appeals – 1st Circuit 2013). At the time Dunham was charged, § 14:81.1(a)(3) criminalized the “The intentional possession, sale, distribution, or possession with intent to sell or distribute of any photographs, films, videotapes, or other visual reproductions of any sexual performance involving a child under the age of seventeen.” The statute was revised by legislation adopted in 2010. State v. Dunham, supra. The judge denied the motion to suppress and the case went to trial. State v. Dunham, supra. The jury convicted Dunham of “eight counts of pornography involving juveniles” and the judge sentenced him to “thirty months at hard labor without the benefit of probation, parole, or suspension of sentence for each count, to be served concurrently.” State v. Dunham, supra. (I don't know what constitutes “hard labor” in Louisiana; I did some research, but could not find anything specific.) Dunham appealed, arguing that “the use of technology unavailable to the public to search his computer constituted an illegal, warrantless search” which produced evidence that was used against him at trial. State v. Dunham, supra. As Wikipedia explains, and as I have noted in earlier posts, the 4th Amendment to the U.S. Constitution creates a right to be free from “unreasonable” searches and seizures, and to be “reasonable” a “search” or “seizure” must either be conducted pursuant to a valid search (and/or seizure) warrant or pursuant to an applicable exception to the warrant requirement that the officers can rely upon. We will come back to Dunham’s argument. To understand his argument, it is necessary to understand how the charges against him came about: Trooper Jared Sandifer with the Louisiana State Police became involved in an investigation of [Dunham] on July 19, 2009, while using peer-to-peer file sharing software called `GNU Watch.’ . . . [At the hearing on the motion to suppress,] Sandifer testified that GNU Watch searches for internet protocol (`IP’) addresses that are sharing files with a known secure hash algorithm (`SHA’) value, which he described as being `like a thumbprint’ for a video or image. He used GNU Watch to search LimeWire, a peer-to-peer file sharing software system, for files with SHA values indicative of child pornography. According to Sandifer, if such files were not in LimeWire or another peer-to-peer file sharing software system, GNU Watch would not detect them. He also opined that if the files were not in the LimeWire user's `shared’ folder, GNU Watch would not detect them. Through the information obtained by GNU Watch, Sandifer saw that IP address 68.11.192.222 had files with SHA values that were consistent with child pornography. Based on this information, Sandifer had a court ordered subpoena issued to Cox Communications, Inc., and determined that the IP address belonged to [Dunham’s] wife. He obtained a search warrant, and he and a group of other officers . . . executed the warrant at [Dunham’s] residence. Sandifer found a laptop computer in the residence and seized it after [Dunham] stated that it belonged to him. Sandifer conducted an examination of the files on the computer and discovered that it contained images of child pornography. State v. Dunham, supra. After Sandifer found child pornography on the laptop, it was taken to the Louisiana State Police headquarters and a forensic examination was conducted by Trooper Dwight Herson, an expert in the field of forensic computer examination. Herson testified [at the hearing on the motion to suppress] that he was provided with a list of files that Sandifer saw on [Dunham’s] computer and was able to locate all of those files. When asked whether a LimeWire user would have access to the SHA value of a file on the program without the use of special police software, he responded that programs are available to obtain the SHA value of a file once the file has been transferred from LimeWire. According to Herson, although it is not normal practice, a user could access the SHA value of a file once the user has the file. State v. Dunham, supra. On appeal, Dunham argued that “the Louisiana State Police's use of the `Wyoming Tool Kit’ or GNU Watch software to search his personal computer was an illegal, warrantless search because the software is not readily available for public use.” State v. Dunham, supra. More precisely, he argued that SHA values are not available to the general public and special software was required to obtain the value and compare it to other known files. He also argues that LimeWire shares parts of files, rather than whole files, and that SHA values cannot be obtained from the fragments available on LimeWire through publicly available software. State v. Dunham, supra. (The opinion does not say this, but it appears that in making this argument, Dunham was relying on the Supreme Court's decision in Kyllo v. U.S., 533 U.S. 27 (2001). As I explained in an earlier post, the Kyllo Court held that it is a 4th Amendment "search" for law enforcement officers to use "technology not in public usage" to obtain information from inside a home. It seems, then, that the Wyoming Tool Kit was technology "not in general public usage.") The Court of Appeals began its analysis of Dunham’s argument (and, by implication, the prosecution’s argument to the contrary) by noting that when a district court denies a motion to suppress, factual and credibility determinations should not be reversed in the absence of a clear abuse of the district court's discretion, i.e., unless such ruling is not supported by the evidence. . . . However, a district court's legal findings are subject to a de novo standard of review. . . . State v. Dunham, supra. The court also explained that when someone files a motion to suppress, the burden of proof is on the defendant to prove the ground of his motion. Louisiana Code of Criminal Procedure article 703. The defendant has the obligation of designating the transcript of the hearing of the motion to suppress for the record on appeal. See Louisiana Code of Criminal Procedure article 914.1. The transcript of that hearing is not in the record before us. However, in determining whether the ruling on defendant's motion to suppress was correct, we are not limited to the evidence adduced at the hearing on the motion. We may consider all pertinent evidence given at the trial of the case. . . . State v. Dunham, supra. The court then explained that, as noted above, the 4thAmendment protects U.S. citizens from “unreasonable” searches and seizures. State v. Dunham, supra. It also noted that “[o]nly individuals who actually enjoy the reasonable expectation of privacy have standing to challenge the validity of a government search.” State v. Dunham, supra. As Wikipedia explains, and as I have noted in earlier posts, to constitute a “search” under the 4th Amendment, the conduct of law enforcement officers must violate a person’s “reasonable expectation of privacy” in a place or thing. As Wikipedia also explains, and as I have noted in earlier posts, to have a “reasonable expectation of privacy” under Katz v. U.S., 389 U.S. 347 (1967), I must subjectively believe the place or thing is “private” and society must accept my belief as objectively reasonable. So it would not, for example, be a “search” for a law enforcement officer to listen to my part of a conversation I am conducting via my cell phone in a public place. A court would say that I may have thought it was private, but society would reject my belief as unreasonable . . . since anyone in the vicinity could have done what the officer did. The Court of Appeals noted that the issues Dunham raised in this case were recently addressed by another panel of Louisiana Court of Appeals judges in State v. Daigle, 93 So.3d 657 (Louisiana Court of Appeals – 3d Circuit 2012). State v. Dunham, supra. In Daigle, Louisiana State Police detectives conducted an investigation using the Wyoming Tool Kit and discovered [Daigle’s] IP address was seen with SHA values consistent with child pornography. At trial, the detectives explained that the Wyoming Tool Kit was designed by the Wyoming Department of Justice and ran on the Gnutella network. According to the detectives, software such as LimeWire and BearShare also ran on the Gnutella network. The Wyoming Tool Kit identified IP addresses that had SHA values matching images previously identified as child pornography. . . . The detectives used GNU Watch in addition to the Wyoming Tool Kit, and testified that both programs only ran on the Gnutella network. . . . Citing several recent federal court decisions, the court found that in applying for a search warrant, the detective did not violate any reasonable expectation of privacy on [Daigle’s] part by using software available only to law enforcement to identify [his] IP address as having SHA values that might be associated with images of child pornography. State v. Dunham, supra. This 1st Circuit panel of the Court of Appeals agreed with the Daigle court and found Sandifer did not violate [Dunham’s] right to privacy by using GNU Watch to examine the SHA values for files [he] had already elected to freely share with other LimeWire users. Moreover, [Dunham] offered no evidence at trial in support of his assertion that publicly available programs are unable to obtain the SHA values of files on LimeWire, and the record does not support that argument. Therefore, [his] arguments related to the alleged violation of his right of privacy are without merit. State v. Dunham, supra. It also declined to address Dunham’s claim there were “misrepresentations in the search warrant regarding the technology used in obtaining evidence in support of the warrant and whether that technology was publicly available, such that the evidence used against him should have been suppressed.” State v. Dunham, supra. Since Dunham had the burden to prove that the warrant was invalid but did not include the search warrant application and transcript of the trial court’s hearing on the motion to suppress included in the record submitted to the Court of Appeals, the court found that he failed to prove there were any defects in the warrant application that caused the warrant to issue without probable cause. State v. Dunham, supra. (It also noted that in Sandifer’s testimony at trial, which was included in the record before the Court of Appeals, he “asserts that there are programs available to the public that can be downloaded to view the information that he was able to view using the special software.” State v. Dunham, supra.) The court therefore affirmed Dunham’s conviction and sentence. State v. Dunham, supra. If you are interested, you can read a little more about the case and find a photo of Dunham in the news story you can find here.
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Presidents' Day
Today is a court holiday, President's Day. Although I will be available by telephone, I am taking advantage of the holiday by Chairing the Illinois State Bar Association's Standing Committee on Continuing Legal Education, attending an Illinois Association of Criminal Defense Lawyers continuing legal education program and the Women's Bar Association of Illinois' Past Presidents' tea.Lori G. Levin [...]
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Death and Taxes: Links Between the Colfax Massacre and Al Capone
In February, one hundred years ago, the United States ratified the 16th Amendment establishing a federal income tax on individuals regardless of apportionment and census results. Like the 13th, 14th, and 15th Amendments, the 16th Amendment radically changed the relationship between the federal government and the states. Given the source of the current outcry against federal taxation and what the federal government does with money from individuals as an imposition on those individuals and presumably the states in which they live, this history of this Amendment - and some of its corresponding historical intrigue - bear mention on this hundredth anniversary of its birth.William Howard Taft - perhaps the President best known for the buyer's remorse of his most ardent backer - acquiesced to a progressive agenda as Vice President but adopted a conservative "stand pat" platform once in office. In 1909, he proposed a 2% income tax on corporations for reasons that would make our current president proud: for the privilege of doing business in these United States. Shortly thereafter, Congress moved forward on a general income tax Amendment. The income tax was heavily favored by the Western and Southern states; Alabama was the first to ratify in August, 1909 while the great Commonwealth of Massachusetts and our northern neighbor New Hampshire only acquiesced after the required 3/4 of the remaining states had already agreed. Nearby Connecticut and Rhode Island rejected it outright. Places now called "red states" signed on enthusiastically while "blue states" were lukewarm at best. All three candidates for the 1912 election supported it: the unpopular incumbent, Mr. Taft, his former supporter turned Bull Moose Progressive Party opponent Theodore Roosevelt and the beneficiary of the party split, Woodrow Wilson.Delaware's ratification officially added the 16th Amendment to the Constitution on February 3, 1913. Wilson had been elected on an uncertain Democratic-somewhat-Progressive platform and it was his Secretary of State who announced the tally that the Amendment would become part of the framework of the federal government. The Revenue Act of 1913 passed shortly thereafter. And, the federal tax code has been growing, changing and modifying itself ever since. Just over a decade after the Amendment became the law of the land, government sought to end the tyranny of the federal income tax by passing the Revenue Act of 1926 which modified provisions and provided certain criminal penalties for scofflaws.It was under this law, authorized by that 1913 ratification that the federal government charged one Alfonse Capone with certain federal crimes. The other offenses, acts made criminal by the famed Volstead Act authorized by the now defunct 18th Amendment, were dismissed. Evasion from income taxes and failure to file and pay income taxes resulted in the imprisonment of the Chicago gangster who eventually would die of a heart attack after years of suffering from the effects of neurosyphilis, a stroke and pneumonia. While his case never made it to the Supreme Court on appeal, the arguments Capone raised to the Court of Appeals for the Seventh Circuit strike into the heart of the popularity of the income tax and "black letter law" notions about criminal jurisprudence. He relied on "the principles laid down in United States v. Cruikshank" in that the indictment charging him with crimes failed to contain sufficient specificity to allege a criminal offense. The facts of the Capone case involved an individual who earned monies and chose not to pay his fair share to the government, a duty encumbered to all citizens, regardless, apparently of the source of that income. His argument failed and, as noted, he spent the next several years bouncing from one prison to another, allegedly bribing officials for privileges and perks until Congress and the citizenry again foiled his fortune by ending prohibition and thus the source of Capone's income and clout. He died shortly after serving his entire term.A little background on the facts of Cruikshank and the legal reasoning, the thoughts of the Supreme Court of the United States in 1875 bear mention. In that case, the Court found indictments defective when certain citizens of Louisiana were accused and convicted by a jury of infringing upon the federal Constitutional rights of other citizens of Louisiana - possibly, but only possibly, according to the Court, due to their race. Charges included interfering with the right to bear arms for lawful purposes (a right, interestingly, the Court says is not actually bestowed upon the citizens by the Constitution, but rather one that merely cannot be infringed upon by Congress) and interfering with the right of peaceful assembly (again, a right not bestowed upon citizens by the Constitution but one so inherent in free government that it predated the Union of States and the protection of the right was a state, not federal power).According to Chief Justice Waite of the Supreme Court, citizens "voluntarily" submit themselves to two sovereigns, the state and the federal government, owing allegiance to both and demanding protection from both in their individual spheres...which both give in abundance. This must have come as news to the victims of the abominations by certain citizens of Louisiana who, by virtue of their race and former condition of servitude (calling that whole voluntary concept into extreme question) were, hmm, how to put this...murdered for being African American citizens in good standing in the state of Louisiana during Reconstruction.It seems that, for several elections in a row, some folks were a bit disturbed at unresolved close results in Louisiana. The gubernatorial race in Louisiana 1872 was, perhaps, one of the most tense moments of the Reconstructionist period. The sitting Republican governor did not care for the elected Republican governor and called the disputed race for the Democrat even though he lost. Both the Democrat and the Republican claimed victory. In short, William Pitt Kellogg won the election, but results were disputed in certain locales including Colfax, LA.White and black Republicans, civilians and state militia, sought to secure the Colfax courthouse when a marauding band of white, heavily armed men descended, killing many of the African American Republicans, including many who surrendered to superior firepower. Almost 200 African American men and 3 white men were killed seeking to allow for the full electoral count to continue. When members of the murderous group were indicted and tried, a jury of their peers convicted them for various federal offenses (which, apparently, were not crimes suitable for prosecution under Louisiana law throwing yet another wrench into Justice Waite's idyllic view of the harmony between state and federal roles and the great enjoyment of liberty each provides). The Supreme Court tossed all of the indictments either as vague or not stating offenses or - incomprehensibly - because the Fourteenth Amendment applied only to "state action" (which predates but also remains as the continuing mantra from Cruikshank).To understand in part why this is incomprehensible, Section One of the 14th Amendment prohibits states from depriving life, liberty and property without due process and from denying equal protection of the laws to anyone. By failing to ensure the protection of those defending the courthouse - either in advance or after the fact by prosecution - the state of Louisiana, at a minimum, denied its African American citizens murdered by a band of killers protection by law...not to be killed by racist thugs...which seems like it should be something we should all be equally protected from experiencing. The "state action" aspect now seems set in stone but the Cruikshank interpretation appears to run afoul of the purpose of the Amendment.Aside from the "state action" issue, the Court essentially disregarded Section 5, the enforcement paragraph of the Fourteenth Amendment that says, "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." Because, as it turns out, The Congress had, in fact, established appropriate legislation called, remarkably enough, The Enforcement Act, under which the defendants in Cruikshank were indicted, tried and convicted. Until they weren't anymore, party because the Act itself was so broad and the language of the indictments mirrored it.In the 3 years between the horrendous violence and the reversal of the convictions, President Grant had affirmed the election of Republican William Pitt Kellogg and his African American Lieutenant Governor, Caesar Carpetier Antione. And, the former sitting governor who staged the Democratic win was impeached. The Democrat who claimed victory despite his loss took up arms with essentially his own private army which successfully battled the state militia again until President Grant sent in federal troops to bestow the rule of law and support the elected officials of Louisiana at which point he, and his guns, backed down.The portion of the Cruikshank ruling relied upon by Al Capone rested on the flawed and faulty indictments that gave inadequate notice of the actual offense due to their breadth mirrorring the expanse of the Act. In Capone's case, the Seventh Circuit explained that the indictments satisfied the language of the statute, even if just barely (a point not even really touched upon in Cruikshank) but that if Capone had been unsure about the offense, he should have asked for a Bill of Particulars which he failed to do (as did the defendants in Cruikshank). Essentially the defense that worked for racist, gun-toting vigilantes who clearly infringed upon individual liberties of fellow citizens would not succeed for a jazz-loving, gun-toting anti-prohibitionist who stiffed the feds on taxes. That whole stare decisis thing can get tricky. The only portion of Cruikshank worth saving is the portion relied upon by Capone - that people need adequate notice in order for the government to have any authority to restrict liberty...and that's the part that has been shunted aside. The remainder of the case is ludicrous. Authored by Chief Justice Waite (an insignificant and intellectually vapid 20th round draft pick for the job and one of Grant's truly horrible appointments to any position of authority), it is internally inconsistent, devoid of thought, logic, insight and, notably, law. And, yet, much of it really forms the backbone of some of today's arguments on the conflicting powers of the states and the federal government.Perhaps the only human beings alive in 1875 who believed that states which had taken up arms against the Union in defense of slavery had every intention of protecting the rights, privileges and immunities of all of their citizens were on the Court. Because there sure were a lot of citizens and federal troops still occupying the states formerly in rebellion who had their doubts. The entire point of the 14th Amendment was to ensure the safety and protection of folks the states proved they would not keep safe and protect. Indeed, the fact that the state had fought to maintain an institution designed to deny to a distinct portion of the population any rights, privileges or immunities granted to citizens proved a very big hint that these states were not really, truly committed to the ideas of the 14th Amendment or Chief Justice Waite's Utopian vision. Even a jury so found ...in Louisiana ...in 1875.Just over 50 years later, a jury convicted Capone, too. But that conviction stuck. The 16th Amendment confers upon Congress the power to levy income taxes. It does not confer upon Congress any limitation or boundary for enabling the Amendment. It is an unusual Amendment in that it grants, rather than restricts, federal power. And yet it has been quite popular; enabling acts seeking to enforce the ability of Congress not only to levy taxes but also to enforce penalties against those who fail to pay enjoy great judicial support.Yet, the 14th Amendment, which radically altered the relationship between the states and the federal government by design, specifically included language empowering Congress to enforce it as needs be. The intentional breadth of the Amendment's scope and Congressional enforcement was intentional, driven in large part by the ghosts of 700,000 Americans who died in one of the bloodiest Civil Wars ever known and the hundreds of thousands of men, women and children enslaved for centuries due the color of their skin. Shockingly, the Court ultimately struck down the Enforcement Act - legislation which had direct authority from the Constitution itself. Curiously, it is more often the Court than other elected federal officials who ignore the intent, purpose and grandeur of the 14th Amendment. Its purpose was to hold federalism in check: to promote the states when they extend and enlarge individual liberties and ideals of freedom but to stop them when they seek to curtail those very same foundational principles of free government.One of the greatest pieces of legislation ever to grace this nation has become - and continues to be - a source of extraordinary conflict, undergoing nearly constant review under the guise of federalism. Federalism, especially in the modern era, only makes sense when states ensure greater rights, privileges and immunities upon all citizens regardless of race, creed, religion, ethnicity, place of birth, gender, gender identification, or sexual orientation. It is remarkable that its protections saved the defendants in Cruikshank from prosecution when hey interfered with an election and killed people due to their race and political affiliation when it should have protected the victims- and at the same time could not save Capone whose hard to trace and sketchy earnings from years before the enabling statutes under which he was prosecuted were enacted. Granted, Capone's argument under Cruikshank had nothing to do with its facts or the 14th Amendment at all, merely with the idea that indictments must be specific enough to hale one into court. His big beef was with the 16th Amendment afterall. But, he did invoke the case and the juxtaposition of the factual history is striking.Perhaps one lesson is this: despite the musings of one Supreme Court Justice, the Constitution that binds us together is not dead. It is alive in we, the people - so long as we pay our taxes.
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OH2: Precedent permitting hot pursuit entry into home for fleeing mere traffic stop should be overruled
Hot pursuit into a home of somebody fleeing a mere traffic offense is permitted by City of Middletown v. Flinchum, 95 Ohio St.3d 43, 2002 Ohio 1625, 765 N.E.2d 330, but this court sure doesn’t like it. State v. Lam, 2013 Ohio 505, 2013 Ohio App. LEXIS 442 (2d Dist. February 15, 2013):
[*P20] The supreme court's opinion in Flinchum contains a strongly-worded dissent in which Justice Pfeifer distinguishes Santana from Flinchum, based on the seriousness of the offense and the "realistic expectation" in Santana that delay in executing a search would result in the destruction of evidence (heroin and marked money), a concern which was not present in Flinchum. It also emphasizes that "the circumstances of a particular situation must be grave * * * to merit a lifting of [Fourth Amendment] protections." Flinchum, 95 Ohio St.3d at 47 (Pfeifer, J., dissenting), citing Welsh, 466 U.S. 740, 748, 104 S.Ct. 2091, 80 L.Ed.2d 732 (involving exigent circumstances). Justice Pfeifer observed that, when warrantless arrests in the home are at issue, hesitation in finding a basis for acting without a warrant "is particularly appropriate when the underlying offense for which there is probable cause to arrest is relatively minor. * * * When the government's interest is only to arrest for a minor offense, th[e] presumption of unreasonableness is difficult to rebut, and the government usually should be allowed to make such arrests only with a warrant issued upon probable cause by a neutral and detached magistrate." Id., citing Welsh at 750. The dissent concluded that the government had not successfully rebutted the presumption of unreasonableness in Flinchum, because only a minor traffic offense was at issue, and that the arrest of "a mere tire spinner" did not justify the chipping away of a well-established Fourth Amendment right.
[*P21] We share the concerns expressed in the Flinchum dissent. Although we are bound by supreme court precedent, we have reservations about permitting police officers to chase a suspect who is known to have committed only a minor traffic violation and to forcibly enter into his house, in the absence of exigent circumstances. This is a circumstance where a potential traffic violation developed into a chase of the driver, which led to the forcible entry of that person's home, which turned into a protective sweep of the home, which resulted in the plain view of contraband, which generated a search warrant, which resulted in the arrest of a second person, which resulted in the discovery of drugs. This may be the unusual situation where legal reasoning has plunged off the slippery slope or where the exceptions have swallowed the rule.
[*P22] We see no reason why, in Jeffrey Lam's case, the officers could not have waited outside the house while they obtained a search warrant or checked for outstanding warrants for Jeffrey. In Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), the U.S. Supreme Court held that the Fourth Amendment prohibits police from making a warrantless and nonconsensual entry into a suspect's house in order to make a routine felony arrest. As discussed above, Payton and other decisions have recognized an exception for "exigent circumstances." Id. at 1386. Similarly, R.C. 2935.12 only permits entry by force to make a warrantless arrest if exigent circumstances exist. State v. Boyd, 2d Dist. Montgomery No. 13425, 1993 WL 169104 (May 21, 1993).
[*P23] However, the principle from which any exceptions to the warrant requirement emanate is reflected in the oft-quoted remarks of William Pitt in 1763: "The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it, the storm may enter; the rain may enter; but the King of England cannot enter — all his force dares not cross the threshold of the ruined tenement!" Payton at 1388, fn. 54, citing Miller v. United States, 357 U.S. 301, 307, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958). Indeed, President John Adams traced the origins of our independence from England to James Otis's 1791 argument against British writs of assistance, where he declared that a "man's house is his castle." United States v. Verdugo-Urquidez, 494 U.S. 259, 110 S.Ct. 1056, 1072, 108 L.Ed.2d 222, fn. 8 (1990) (Brennan, J., dissenting). It may be that Jeffrey would have temporarily "defeated" his citation for the traffic offense by "escaping to a private place," but weighing the immediate serving of a citation for a non-jailable minor misdemeanor against the Fourth Amendment's protection of the home, we would make what should be the obvious choice.
[*P24] However, the facts surrounding the chase of Jeffrey Lam are not legally distinguishable from the facts in Flinchum. Thus, we are obligated to follow our understanding of the majority's opinion in Flinchum, as the trial court did, and to conclude that the police officers lawfully entered into the house. We hope that the Ohio Supreme Court will reconsider or clarify its position.
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Public Officials Target of Criminal Investigations
Two public officials are the subject of criminal investigations in Warren County. The Cincinnati Enquirer reported that Republican State Representative Peter A. Beck is the subject of three separate state investigations. Beck is also involved in a ;lawsuit in Hamilton County Common Pleas Court alleging that he participated in a fraud that cheated investors out [...]
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OH8: USMs did not show reasonable basis to believe fleeing fugitive in defendant's home
The USMs were looking for a fleeing violent fugitive who cut off an ankle monitor, and they ended up at defendant’s house. There was no showing at all of a reasonable belief that the fugitive was even in defendant’s residence (Steagald). There was allegedly “a tip,” but no factual basis at all was given for it. The state also argued exigency because the USMs claimed to hear a window open and cocaine be thrown, but no facts support that because, admittedly, it was speculation, and not based on an observation. State v. Rodriguez, 2013 Ohio 491, 2013 Ohio App. LEXIS 435 (8th Dist. February 14, 2013).
Where defendant was unlawfully still on “post-release control,” he could not be lawfully subject to a search condition. The good faith exception does not permit that. State v. Fleming, 2013 Ohio 503, 2013 Ohio App. LEXIS 445 (2d Dist. February 15, 2013).*
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The Virtues of the English
<font style="FONT-SIZE: 12px" face="arial">An email arrives this morning soliciting my willingness to promote a book of war stories by a British Queen's Counsel. With a link to his Amazon page
and the vanity blurb about his glory, he suggested that you, readers of SJ, might be interested in purchasing his book.<br>
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My response was:<br>
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<blockquote><font style="FONT-SIZE: 12px" face="arial">While I occasionally do book reviews, under no circumstances would I ever blindly promote a book. People who want to ...</font></blockquote>
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FL5: Defendant not entitled to be Mirandized before consent to search his person was sought during a traffic stop
Defendant was not entitled to be Mirandized before consent to search his person was sought during a traffic stop. State v. Thomas, 2013 Fla. App. LEXIS 2415 (Fla. 5th DCA February 15, 2013).*
Defendant was detained for consuming alcohol in public. His admission he was armed justified a patfrisk for the gun because the officers were unfamiliar with him and whether he would do something unpredictable. Commonwealth v. Jones, 2013 Mass. App. LEXIS 26 (February 15, 2013)
The government’s affidavit that they had information defendant was a felon in possession on supervision justified the search of his house for the gun. Defendant doesn’t even get a hearing; motion to suppress denied. United States v. Patterson, 2013 U.S. Dist. LEXIS 21203 (S.D. N.Y. February 14, 2013).*
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Keith Evans on the “Newton Rule”
Rule 41 of Keith Evans’ Common Sense Rules of Advocacy is called “Newton’s Rule.” Isaac Newton’s third law of motion, of course, was that for every action there is an equal and opposite reaction. Evans applies this rule to trial advocacy to suggest that you never want to get into a confrontation with your finder-of-fact, whether that’s [...]
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