A drug dog’s alert on defendant’s car justified a search of any containers in it, including her purse. United States v. Carter, 2013 U.S. App. LEXIS 4908 (5th Cir. March 11, 2013).*
Officers’ entry into defendant’s curtilage was justified by seeing a gun in his waistband. United States v. Meidel, 2013 U.S. Dist. LEXIS 35227 (W.D. Mo. March 14, 2013).*
Police executed a search warrant at defendant’s house finding drugs. She was seen approaching in her car, and she was stopped. Because of the search, officers had probable cause to arrest her. When she was stopped, she admitted some drugs in her car. [Apparently she did not contest the lack of a Miranda warning.] State v. Dickey, 2013 Minn. App. LEXIS 15 (March 11, 2013).*
CA5: Dog alert on car justifies search of any containers in it
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D.Neb. & Guam: Paperwork complications justify extending stop
The stop continued for 10 minutes, but it was complicated by defendant’s paperwork, and it was only as long as required. After that, he was validly asked for consent. United States v. Aponte, 2013 U.S. Dist. LEXIS 34017 (D. Neb. March 12, 2013).*
Defendant was driving a truck of a friend with a loud muffler, and the noise attracted the officers’ attention, and they saw him speeding. When pulled over, defendant had no paperwork for the truck, and his story was changing. Extending the stop was reasonable under the circumstances. United States v. Bernal, 2013 U.S. Dist. LEXIS 34822 (D. Guam March 11, 2013).*
On the totality, with information from other officers, officers had probable cause that defendant was involved in a hit and run, and that justified his stop. United States v. Perkins, 2013 U.S. Dist. LEXIS 34861 (D. Minn. January 11, 2013).*
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THE IDES OF MARCH
The jury in the re-trial of Dennis Escobar, accused of killing City of Miami Police Officer Victor Estefan in 1989 resumes a fourth day of deliberations Monday. What a lawyer says: THE RACE CARD?To recap the controversy in yesterday's blog post and comments, readers are on both sides of the Assistant Public Defender's opening statement, and description of two men who shot the defendant after he tried to run them over with his pick-up truck:“two young hip hop punks.”The race card? We think not. To us, that describes, as a good trial strives to do, an attitude, perhaps a sense of lawlessness or dangerous associated with unruly teenagers or young men. To us, race has little to do with that. Is it a stereotype? Sure. Just like in the 1960's or 1970's one could have described someone as a "drugged out, long haired hippy" (notwithstanding the fact that many of those hippies are now hedge fund managers with mansions in Connecticut). In the 1950's one could have used the description "leather jacketed greaser". The point is that the PD was trying to convey to the jury that his client had a sense of fear based on what he was seeing and the attitude the complaining witnesses were conveying. Should people act on how others look? Of course not. The essence of any "ism" (sexism, racism, etc) is making judgments on appearances. But the fact is that not only are we humans with eyes, but the self defense jury instruction ALLOWS for the lawful decisions to use force based on appearances (and not actual danger). Florida criminal trial lawyers know that in Florida, the danger must not have been real, but must only have appeared to have been real to the individual who claims to have acted in self defense. Thus, Florida law allows for a defense based on evidence of how someone felt about another based on how they looked and acted. And in that regard the phrase "young hip hop punks" is lawful and proper in an opening statement. Race inevitably rears its head when the witnesses and defendant are of different races. But that doesn't mean the lawyer "played the race card". Enjoy a beautiful South Florida spring weekend. Site Feed
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CO: References before jury to defendant refusing consent were plain error
Prosecutor’s repeated, yet unobjected to, references to defendant refusing consent to show consciousness of guilt was plan error. People v. Pollard, 2013 COA 31, 2013 Colo. App. LEXIS 349 (March 14, 2013):
[...] Read more!
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Thoughtful response to Judge Rakoff's call to scrap fraud guidelines
Wes Porter, who is now a law professor but was before a senior trial attorney for the fraud section of DOJ's Criminal Division, has this lengthy new commentary headlined "Sentencing Guidelines Needn't Be Scrapped." The piece provides a point-by-point response...
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MS: Defendant's stop walking pit bulls was unreasonable; no possible violation of law
Police received a call about a man walking pit bulls, so they went looking for him and found him. The officer rolled down his window, and defendant kept walking talking to him. The officer told him to stop and produce his ID, and defendant refused. Things escalated from there to defendant being arrested for disorderly and refusing to obey an order of the officer. The entire stop should have been suppressed because the stop was unreasonable. There was no legal basis for stopping defendant. He was in violation of no law. Harrell v. State, 2013 Miss. App. LEXIS 77 (February 26, 2013).
The consenter ultimately had no actual authority to consent, but there was clear apparent authority: “The lack of ambiguity from Orphan's statements to Barahona, and from his conduct at the scene and during questioning, underscores the reasonableness of the officers' belief that Orphan lived in the home at 1301 Pear Grove Lane. Specifically, it shows that it was objectively reasonable for the officers to believe his statements that he lived in the back room with his girlfriend, and that he had been living there for three or four months, and it was objectively reasonable for the officers to thus believe that Orphan had mutual use of the property and control over it for most purposes.” United States v. Chavez, 2013 U.S. Dist. LEXIS 35628 (D. N.M. March 6, 2013).
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GA: Officer's entering front door unasked was unreasonable
Defendant’s garage was part of the home. She parked there and entered the house through its door. Therefore, the officer’s entry there violated the curtilage. Even if the officer had probable cause defendant was had been driving recklessly, he lacked exigent circumstances to enter the apartment when the defendant answered the door. He stepped in only two feet, but that’s still an entry. Corey v. State, 2013 Ga. App. LEXIS 185 (March 13, 2013).
Defendant’s reliance on United States v. Smith, 263 F.3d 571 (6th Cir. 2001), to have standing to challenge the search of the rental car he was driving, defendant had no standing here because he had no DL and his relation to the renter was tenuous and not a family relationship. United States v. Akinola, 2013 U.S. Dist. LEXIS 35952 (D. N.J. March 15, 2013).
Defendant’s consent is voluntary. While he speaks Spanish, the recording of his interview shows he understands English. United States v. Monarrez-Mendoza, 2013 U.S. Dist. LEXIS 35584 (N.D. Tex. March 6, 2013).*
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Lege shouldn't needlessly expand wiretapping authority
Legislation expanding the authority of local law enforcement in Texas cities with more than 500,000 people to perform wiretaps passed out of the Senate Criminal Justice Committee this week. The bill is SB 188 by state Sen. Joan Huffman; its companion, HB 530 by Fletcher, has been referred to the House Criminal Jurisprudence Committee. Sen. Huffman suggested the legislation would allow for "more efficient" investigations but the bill amounts to a solution in search of a problem and should be roundly rejected. As Grits reported last summer, local prosecutors in Texas rarely seek wiretaps, which right now under state law must be conducted by the Department of Public Safety, so there's no pressing need to expand the number of agencies who perform them.According to The Crime Report, nationally "Wiretap applications were far more likely to go through state courts than federal courts in 2011." In Texas, though, the opposite is true: State judges approved just two wiretaps in Texas in 2011, according to the most recent data reported in the United States Courts 2011 Wiretapping Report: Both were in Travis County involving drug cases. (See here, p. 298, large pdf.) One of the two wiretaps in Travis cost $104,934 and resulted in 14 arrests. Costs for the other, which lasted 30 days, were not reported and no arrests attributed to it.You can watch the brief public hearing here (beginning at the 3:06:53 mark), though the discussion barely scratched the surface of the issue since nobody testified against it. This legislation is a repeater: It's something the Texas Legislature has rejected session after session but which local police departments and prosecutors inexplicably continue to push, despite the fact that local agencies have never employed the tactic often. None of the senators asked at the hearing how often wiretaps are used and law enforcement didn't offer up the information, but Texas must report to the feds how often wiretap orders are approved by state district judges. Here's how often Texas judges issued such orders in recent years:Wiretap orders issued by Texas Judges: 1997-20112011: 22010: 12009: 02008: 22007: 42006: 22005: 42004: 02003: 42002: 22001: 12000: 01999: 41998: 51997: 0SourceSo somebody please explain why there's a pressing need to take Texas wiretapping out of the hands of DPS, which has successfully performed this function for years, if prosecutors seek wiretapping authority so infrequently? Certainly that question wasn't answered, or even broached, at the hearing.Detective Jimmy Taylor from Houston PD argued that law enforcement technology lagged behind that used by criminals, but that's an absurd statement given the rise of Stingrays and other invasive surveillance devices. It would be foolhardy to approve wider wiretapping authority before the Legislature finds ways to regulate such new, invasive technologies.Taylor's main concern appeared to be that, when the feds engage in wiretapping (which happens much more frequently), they don't always share the information. That implied to me that Houston PD wants to engage in duplicative, redundant wiretapping because of turf battles with the feds. For my part, though, Grits doesn't care who gets credit for a bust as long as the crimes are being investigated. If the full Senate doesn't vote against SB 188, hopefully the House will find itself less disposed to needlessly expand the scope of police surveillance.
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American Red Cross Apps: Really nice and useful
3-16-2013 National:
Really good Apps, just tried the Tornado one and it will wake you up, GUARANTEED!
TORNADO App: Get your family and home ready for a tornado with the official Tornado App...
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In Defense of Compassion
Elie Mystal put up something yesterday at Above the Law about the lawyer on leave from her job as an associate court attorney at the Manhattan Supreme Court who jumped to her death from her apartment with her 10-month-old son strapped to her in a baby carrier. Her son survived, thankfully. She did not.
Elie said he didn’t want to use the restraint or show the sympathy for suicide “victims” (his quotation marks) that he apparently feels society requires and expects of him. What he wrote was certainly consistent with that:
Screw this woman….
After noting her likely unsupported feelings that something was medically wrong with her child and the fact she wrote in her suicide note that what she was about to do was “evil,” Elie continued:
Damn straight she was “evil.” Look at how her concerns are all about her: she felt shame, she noticed changes, she couldn’t bear ...
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N.D.Cal.: National Security Letters unconstitutional
The non-disclosure provision of National Security Letters violates the First Amendment as a prior restraint, and it is nonseverable from the rest of the statute. Therefore, the statute is unconstitutional and NSL’s may not be issued. The order is stayed for 90 days to give the Court of Appeals the opportunity to address it. In re National Security Letter, No. C 11-02173 SI (N.D. Cal. March 15, 2013):
For the reasons discussed below, the Court finds that the NSL nondisclosure and judicial review provisions suffer from significant constitutional infirmities. Further, these infirmities cannot be avoided by “conforming” the language of the statute to satisfy the Constitution’s demands, because the existing statutory language and the legislative history of the statutes block that result. As such, the Court finds section 2709(c) and 3511(b) unconstitutional, but stays the judgment in order for the Ninth Circuit to consider the weighty questions of national security and First Amendment rights presented in this case.
See eff.org: National Security Letters Are Unconstitutional, Federal Judge Rules; Wired.com.
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Sixth Circuit Rules On Case About Calculating Child Pornography Restitution
At the end of last month, the Sixth Circuit Court of Appeals ruled on two unrelated child pornography cases, U.S. v. Gamble and U.S. v. Crawford. In both cases the lower courts ordered the defendants to pay $1,000,000 in restitution to “Vicky,” the pseudonym of one of the individuals depicted in the images they possessed. The issue here was whether the defendants were personally responsible for causing that much in damages to Vicky.Previously the Sixth Circuit dealt with the issue of restitution in child pornography cases and said that the government was required to demonstrate that losses to a victim had been proximately caused by the actions of the defendant.The district courts said that this rule is different in extreme cases where defendants viewed images because of the humiliation suffered by the victim, knowing that her mistreatment was being viewed by others. The district courts said that in such cases each defendant is jointly and severally liable for the entire amount of restitution owed to the victim. The district courts based this on 18 U.S.C. Section 2259 which says that restitution is required in child exploitation cases for “the full amount of the victim’s losses.”The Sixth Circuit disagreed with this assessment and instead decided that the harm should be divided among the perpetrators. One solution that the Sixth Circuit came up with was to determine a victim’s total losses and then divided those losses by the number of defendants convicted of possessing the victim’s image. The Court noted that in such cases it’s possible that defendants could argue about the existence of a larger pool of responsible parties. If that happens, the Sixth Circuit said that different divisors may be reasonable. This means that defendants might estimate the number of un-convicted possessors of the victim’s image, thus lowering their individual restitution amount. The Sixth Circuit said that rather than Gamble and Crawford each being responsible for paying the victim $1,000,000, if it was found that 1,000 people possessed Vicky’s image then each would be responsible for paying $1,000 in restitution.The Sixth Circuit ultimately remanded the cases because the district courts did not require any showing of a link between the losses suffered by the victim and the defendants’ offenses. The Sixth Circuit ordered that the district courts reconsider their decisions and decide damages based on how much responsibility for Vicky’s injuries they share with hundreds of other child pornography viewers.To read the full opinion, click here.See Our Related Blog Posts:Sixth Circuit Says Information Must Be Exculpatory For Brady Violation To Have OccurredSentencing Friday For Amish Beard Cutting Case Then To Sixth Circuit
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"Sentencing Policy Adjudication and Empiricism" with a focus on federal child porn sentencing
The title of this post is drawn from the basic title of this notable new and timely article by Melissa Hamilton now on SSRN and just titled "Sentencing Policy Adjudication and Empiricism." Here is the abstract, which highlights why this...
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MD Lawmakers Approve Bill To Ban Death Penalty
Lawmakers approved a measure Friday that would end the death penalty in Maryland and sent the bill to Gov. Martin O’Malley, a long-time supporter of abolishing capital punishment in the state. The House measure, which had passed the Senate earlier this month, passed with a 82-56 vote Friday. The governor has tried to repeal the [...]
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IID required for ORL in Washington State? DOL says yes
As many of you know one of the consequences of getting arrested for a DUI in Seattle is the possibility of having an ignition interlock device required in any vehicle you drive. Thus giving you one more reason to hire an experienced DUI lawyer to try and prevent this from happening.
One of the ways of doing this is to try and get the DUI charged reduced to a lesser offense. Like a reckless
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Law Enforcement Ramping Up St. Patty's DUI Patrols
Although not an official public holiday in America as it is in Ireland, each year on St. Patrick's Day millions of Americans flock to the bars and pubs to join in the festivities. It is one of our country's favorite holidays, where it's not just acceptable, but encouraged to dress up in green and drink beer of the same color. Everyone is Irish on March 17th. But St. Patrick's Day is also a busy day for law enforcement, and even busier when the holiday happens to fall on a weekend as it has for the past two years. This year, dozens of Maryland law enforcement agencies are ramping up their DUI patrols to combat the yearly spike in alcohol related car accidents on this festive day. Starting at 9 p.m. tonight, and lasting through Monday morning, the state police as well as local cops will be out in full force to zero in on anyone who attempts to get behind the wheel after one too many Guinness pints. The patrols will focus on areas that have a past history of larger volumes of injury accidents and other incidents involving alcohol. DUI patrols will not exclusively patrol these areas though, and are sure to be out in greater numbers on all heavily traveled roads.
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Droning on: US Senate, Texas House struggle with regulating unmanned aircraft
This Wednesday at 9:30 a.m. CDT, the US Senate Judiciary Committee will hold a hearing on "The Future of Drones in America: Law Enforcement and Privacy Considerations." See here for details.Increasingly, as discussed in this post, Grits is convinced that Texas' pending drone privacy bill, HB 912, has First Amendment problems that would get it thrown out in federal court (the filed version bans private-sector photography by drones flying in FAA-approved airspace). However, I'm also convinced those problems can be fixed. On Friday, I went to visit with the bill author's staff and shared with them language that would require a warrant for law enforcement's use of drones for surveillance - as well as placing limits on other government actors - while retaining the rights of private citizens and companies to operate FAA-approved drones including ones that take photographs.As Ryan Calo, who will testify at the US Senate hearing on Wednesday, recently wrote, we should seek "an end to bad privacy law [rather] than an end to drones." Just as the Fourth Amendment bans unreasonable searches by government, state legislation can legitimately limit government surveillance for enforcement purposes. But it's probably not realistic to ban private photography without running afoul of First Amendment rights to free expression. There has to be a way to distinguish good drones from bad drones. Luckily, there is a potential middle path.
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Guantanamo Hunger Strike: Pentagon Disputes Numbers
There has been a mass hunger strike going on since February at Guantanamo, mostly by detainees in Camp Six, the least restrictive unit. According to a letter from more than 50 defense lawyers to...
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False Sex Crime Allegations Leads To Case Dismissed - What Now?
By Colorado Sex Crimes Defense Lawyer - Attorney - H. Michael Steinberg
A recent case in New York City - clearly points out what can go wrong in a felony sex crime prosecution.
Darrell Dula - 26 - was one of four men - charged in a NY sexual assault case. His case was dismissed after an over zealous prosecutor was found to have violated New York's criminal procedural laws involving basic fairness.
The man filed suit against New York City and the Brooklyn district attorney's office for:
1. Malicious prosecution
2. Defamation
and
3. False imprisonment.
Recanting Alleged Victim - Evidence Was Withheld - Hidden From The Defense
Darrell Dula, unable to post bond, - was continuously jailed for 10 months on a rape charge that never went to trial and was dropped, is now suing prosecutors.
Why? - because the alleged victim said she lied about Dula's involvement and that information was withheld from the criminal defense attorney in violation of the defendant's rights... among those rights - the right to disclosure of ALL of the evidence - not just evidence the DA decided to release.
The victim told the investigating officer, "Can't a ho change her ways?" - Dula's lawyer, said, that "We believe that the victim's account against our client was incredible from Day 1. The whole thing just stinks."
Huge Headlines At Indictment - But A Quiet Dismissal
The case was highly publicized in June of 2011 at a news conference which announced the indictments of Dula and three co-defendants on charges of rape, sex trafficking and compelling prostitution over the course of a decade.
The case was dismissed when the assistant district attorney, Abbie Greenberger, quit her job rebelling against the kind of pressure every prosecutor is under every day... the pressure to prosecute - especially high profile cases.
In this case the defendants were initially indicted with much fanfare by grand jury. Later - the testimony before the grand jury was contradicted by the an ongoing DA based "re-investigation." -
It is alleged that the Brooklyn DA's office sat on a "rape recantation" for nearly a year.
The allegations in the civil lawsuit state that "A day after accusing Jawara Brockett and Dula, however, the girl, then 22-years-old, went back to the police, and told detectives she was simply a prostitute for 5 years and made up the allegations against Brockett and Dula."
Failure To Turn Over Police Reports - Exculpatory Statements - Brady Material
Failure to turn over exculpatory evidence - so called Brady evidence - or evidence pointing to innocence is not only an ethical violation - it is a violation that cuts to the foundations of our criminal justice system. Here, the Brooklyn DA's Office from the start, failed to turn over police records - critical medical records - both of which demonstrated a history of "mental illness and amnesia."
It was not until April 2012 - almost a year later - that the alleged victim's recantation was turned over to the criminal defense lawyer.
"The girl indicated the night of the alleged rape that she had made up the story," said Dula's lawyer. "She indicated that she was in a consensual relationship, as opposed to being the victim of sex trafficking."
False Rape Allegations - The Destruction of A Man's Life
Consistent with a prosecutors duty to reinvestigate a serious felony case where credibility questions have been raised - the DA ultimately recognized their duty - determined that the case demands dismissal - and dismissed the case "in the interests of justice," but NOT BEFORE destroying at least one man's life.
A version of this article appeared in print on October 10, 2012, on page A20 of the New York edition with the headline: Ex-Defendant Sues Prosecutor After Rape Charge Is Dropped.
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New law proposed to allow police to tow and impound vehicle for driving without insurance
Lawmakers in the House of Representatives will vote soon on a bill that allows police officers to tow and impound vehicles for driving without proof of insurance. Proposed by Representative Joe Sosnowski, R-Rockford, the bill would amend 625 ILCS 5/4-203. This is the statute that authorizes law enforcement to tow and impound vehicles abandoned on [...]
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