Arnold & Wadsworth has the criminal defense lawyers needed to help you win your drug related case. As you approach these serious charges you need to make sure you partner with a criminal defense firm that will protect your constitutional rights. We have a team of criminal defense lawyers that can aggressively help you with [...]
Drug Charges in Utah | Salt Lake City Criminal Defense Lawyer
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Slobogin on a Comparative Perspective on the Exclusionary Rule
Christopher Slobogin (Vanderbilt University - Law School) has posted A Comparative Perspective on the Exclusionary Rule in Search and Seizure Cases on SSRN. Here is the abstract: The modern United States Supreme Court views the exclusionary rule as a means...
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How long will the Court have jurisdiction if my deferred prosecution is revoked?
Typically, it will be 5 years from the date of revocation. Jurisdiction refers to how long the case will stay open and you will be subject to the Court's DUI conditions. If you violate those conditions - the Court may...
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Jefferson-Jones on Exchanging Inmate Organs for Liberty
Jamila Jefferson-Jones (Barry University School of Law) has posted The Exchange of Inmate Organs for Liberty: Diminishing the 'Yuck Factor' in the Bioethics Repugnance Debate on SSRN. Here is the abstract: Mississippi Governor Haley Barbour granted clemency to Jamie and...
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Gallant on the Presumption Against Extraterritorial Effect of Statutes
Kenneth S. Gallant (University of Arkansas at Little Rock - William H. Bowen School of Law) has posted The Indeterminate International Law of Jurisdiction, the Presumption Against Extraterritorial Effect of Statutes, and Certainty in U.S. Criminal Law on SSRN. Here...
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Obama at the White House Correspondents Dinner
President Obama is about to take the stage at the White House Correspondents Dinner. Michelle looks great as usual.
Big Media blew a lot of stories this year, especially in the early reporting days of major events -- like Adam Lanza and the...
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The Next Step in Drug Treatment
NY TIMES
By
THE EDITORIAL BOARD
The mandatory-sentencing craze that drove up the prison population
tenfold, pushing state corrections costs to bankrupting levels, was
rooted in New York’s infamous Rockefeller drug laws. These laws, which
mandated lengthy sentences for nonviolent, first-time offenders, were
approved 40 years ago next month. They did little to curtail drug use in
New
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Freispruch nach Betrugsvorwurf gegen Obdachlosenhilfe
Vor dem Amtsgericht Oberhausen wurde in einem Strafverfahren gegen eine Frau wegen Betrugs verhandelt. Die Angeklagte ist Vorsitzende einer Obdachlosenhilfe. In einem Internetinserat soll der Verein behauptet haben, dass er eine Spendenbescheinigung ausstellen könnte. Aus diesem Grund will ein Unternehmen Geld an den Verein gespendet haben. Nachdem die Firma jedoch das Geld überwiesen hatte, . . . → Read More: Freispruch nach Betrugsvorwurf gegen Obdachlosenhilfe
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Bottoms Up?
<font style="FONT-SIZE: 12px" face="Arial">Lawprof Bill Henderson was part of the ABA Task Force on the Future of Legal Education, charged with coming up with tough measures to deal with what
anyone more thoughtful than a dirt pile now concedes is a royal disaster. He writes about it at <a href=
"http://lawprofessors.typepad.com/legalwhiteboard/2013/04/is-law-school-reform-going-to-come-top-down-or-bottom-up.html" target="">The Legal Whiteboard</a>.<br>
<br>
The issues are well known, too many warm bodies, too expensive, too impractical an education to allow students to put it to use ...</font>
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The Easiest Practice of Law
<font style="FONT-SIZE: 12px" face="arial">A few days ago, a reader sent me a link to a JD Underground thread and suggested that it would enlighten me as to how young lawyers were thinking. The
thread began with a question, <a href="http://www.jdunderground.com/all/thread.php?threadId=45042">Might start non-profit--what services to provide?</a></font>
<blockquote><font style="FONT-SIZE: 12px" face="arial">I'm thinking about opening a non profit and providing free/hugely discounted legal services so I can get the PSLF* and also gain some
experience...What are some basic, easy to learn services that I can readily offer clients to ...</font></blockquote>
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WA: Random LPN check justified stop
A random license plate check justified the stop of defendant’s car for failure to transfer tag. Defendant was a passenger. When the officer ran his name, a felony no-contact violation warrant came back. The arrest was justified. State v. Bonds, 2013 Wash. App. LEXIS 939 (April 23, 2013).*
There is no requirement for a warning for a second test for blood after the warned first test. Defendant consented. Commonwealth v. Gorbea-Lespier, 2013 PA Super 96, 2013 Pa. Super. LEXIS 261 (April 23, 2013).*
Officers came to do a knock-and-talk and countered people outside. Before knocking, there was a stong odor of marijuana around the trailer. Based on this, they could detain the people outside so they couldn’t warn the people inside. Commonwealth v. Johnson, 2013 PA Super 95, 2013 Pa. Super. LEXIS 260 (April 23, 2013).*
Odor of marijuana coming from defendant’s car was probable cause, even if defendant denied smoking it. United States v. Richmond, 2013 U.S. Dist. LEXIS 59021 (S.D. Ind. April 25, 2013).*
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CCJRC Weekly Legislative Update
CCJRC Weekly Legislative Update
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We are in the last days of the legislative session which ends on May 8th.
This is the phase where things get more tense, intense, and just
plain-old chaotic. Here’s a quick update of what happened last week and
what’s on deck for next week. We also include a
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Texas praised for response to DPS Houston crime lab scandal, compared to Yankees
If you've been following the DPS crime lab misconduct scandal out of Houston, first reported on this blog, that may endanger thousands of southeast Texas drug convictions, then you're probably aware, or should be, of the similar but even more profound scandal in Massachusetts involving a woman named Annie Dookhan and possibly others. Unlike the Texas Court of Criminal Appeals, Massachusetts courts have resisted a "global solution" to Dookhan's old cases, which number in the tens of thousands. (Jonathan Salvador worked on just fewer than 5,000 cases and unlike Dookhan did not allegedly seek to actively frame people.) In an article comparing Texas' response to the Salvador situation to the Massachusetts debacle, the Lone Star State earned praise in the Massachusetts Lawyers Weekly for the rapid and decisive responses by the Department of Public Safety, some local District Attorneys and the courts to the Jonathan Salvador episode at the DPS crime lab in Houston. The column opened:Two states with little else in common — Massachusetts and Texas — now face similar criminal justice scandals. In each state, misconduct at state labs has tainted thousands of drug convictions. One state, a leader in progressive criminal justice reform, is handling its lab scandal with efficiency, integrity and justice.The other state is Massachusetts.Since the editors generously removed the paywall at your correspondent's request, I'll refer you to the MLW for the full story instead of quoting more fully. But it's a good reminder that, however imperfect Texas' response - and believe me, it's got flaws! - both DPS and, to me surprisingly, the Court of Criminal Appeals have dealt with the issue decisively and without nearly the amount of flailing and malaise that's going on in the Bay State. And the Forensic Science Commission investigation gave the issue a public face as well as some independent oversight and a venue for solutions-oriented networking across the system. Not perfect, but not bad. The author concluded, "The Texas example proves that the Massachusetts debacle cannot be blamed on Annie Dookhan alone. Her misconduct has created such a huge mess only because it occurred at a dysfunctional lab and within a justice system that, to this point, has delivered neither clear procedures nor just outcomes."The author, who is one of the attorneys petitioning Massachusetts courts for relief in Dookhan's old cases, is definitely idealizing Texas' system: If we look good on this, the credit mainly goes to DPS for self-reporting the episode (if it didn't it would lose its accreditation) while in Massachusetts there was a coverup. And the Court of Criminal Appeals' choice to issue a global solution was likely borne as much of judicial economy as anything else, though it should result in a much cleaner, clearer outcome than the mess they've got going in Boston. The Massachusetts scandal is numerically a much bigger deal; Ms. Dookhan worked on 7-8 times as many cases as Jonathan Salvador. For that reason, Dookhan appears to have left that much smaller state's justice system in complete disarray while our episode was more localized to one region. Further, because Houston PD has its own crime lab, Salvador's cases were mostly from the surrounding counties, not the main urban area in the region. Dookhan worked on tens of thousands of cases - nobody knows exactly how many - in the heart of the state. So to the extent Texas has handled this mess better than Massachusetts, a big reason is that we have a much smaller problem.Even so, this is far from over. Because of our lack of a public defender system and the tedious, case-by-case mechanisms of the habeas corpus process, Texas' Achilles' heel may be processing all the old claims. There's really not an obvious mechanism for doing so without cooperation from local prosecutors, even now that the Court of Criminal Appeals has said defendants are entitled to relief if Mr. Salvador were ever in sole custody of the evidence. If Texas looks "good" by comparison to our Yankee cousins in our response to this mess then at best it's a back-handed compliment. Anybody'd look good compared to the catastrophe they're working through in Massachusetts.See the Texas Forensic Science Commission's recently released report (pdf) for more background on the Salvador case. Related Grits coverage:On Defining Drylabbing: More from forensic commission meeting on DPS crime lab debacle 17 and counting: Texas Tribune on DPS crime lab scandal CCA habeas roundup: Four more free from DPS crime lab debacle, an actual innocence writ on pot possession, and death sentence overturnedFort Bend DA failed to notify defendants of misconduct by DPS lab worker The Weakest Link: TDCAA agrees nearly 5,000 cases 'may be jeopardized' by DPS lab worker misconduct Thousands of drug cases may be overturned because DPS lab worker allegedly faked results DPS crime lab SNAFU may overturn thousands of years worth of drug sentences Convictions overturned based on DPS lab worker misconduct, hundreds more likely to be challengedBad apple at DPS crime lab could spoil barrel of convictionsDPS analyst who faked results worked on 4,944 drug cases Drug analyst at DPS crime lab issued erroneous reports
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Alabama Meth Lab Bust Leads to School Worker Arrest
A woman who worked as a special education aide in southern Alabama was one of two people arrested recently when authorities raided her home following a long investigation by the county sheriff's drug task force. ![]()
Our Birmingham criminal defense lawyers understand the defendant is charged with first-degree manufacturing of a controlled substance and possession of drug paraphernalia.
This is a very serious situation.
Alabama Code Section 13A-12-218 holds that manufacture of a controlled substance in the first-degree is a Class A felony. That means the maximum potential punishment is life in prison.
What separates the first-degree charge from other lesser designations is the presence of one of the following:
A firearm;
A booby trap;
The illegal disposal, transportation or possession of any dangerous or hazardous material in furtherance of a clandestine laboratory operation, which posed a serious risk to either the environment or human health and safety;
A clandestine laboratory operation that was within 500 feet of a home, business, school or church;
A clandestine laboratory that was found to have produced a specified amount of a controlled substance;
A clandestine laboratory that produced either Schedule I or Schedule II narcotics;
There was a person under the age of 17 who was there during the process of the manufacturing.
In this case, the teacher's aide reportedly was producing the methamphetamine, which is a Schedule 1 or Class A narcotic, per the Misuse of Drugs Act of 1975. Her co-defendant was charged with the same, and he has a prior conviction for second-degree manufacture of a controlled substance. He had recently completed a three-year prison term and was still completing his five years' worth of probation when this arrest occurred.
Additional charges could be filed against other individuals as well, as the investigation is ongoing.
Authorities say they had been investigating activities at the home, where the woman's 26-year-old special needs daughter also lives, for some time. Investigators said there was evidence of a red phosphorus methamphetamine-producing laboratory in both the attic and the main living room area.
While any kind of methamphetamine lab has the potential to be dangerous, red phosphorus is particularly risky because it emits toxic gases during the cooking process. This kind of operation is sometimes referred to a "shake-n-bake" laboratory - something officials say is not as common in Alabama as other kinds of clandestine meth labs.
This incident happened in Baldwin County, where methamphetamine continues to be the No. 1 drug issue right now, according to investigators.
A law passed by state legislators last year focused on making it more difficult to get the products necessary to produce methamphetamine - specifically, pseudoephedrine, an over-the-counter cold medication that is considered a critical ingredient. Individuals who try to bypass the state's minimum limit law by recruiting dozens of people to hit up one store to the next - a practice called "smurfing" - now face a felony charge.
Alabama is a member of the National Precursor Log Exchange, which allows pharmacies to track purchases of the drugs.
So far, two states in the country, including Mississippi, have made pseudoephedrine prescription only.Contact Birmingham Criminal Defense Attorney Steven Eversole at (866) 831-5292.
Additional Resources:
Baldwin County school employee faces charges after meth lab bust at her Loxley home, April 22, 2013, By Marc D. Anderson, Al.com
Blog Entries:
Alabama Marijuana Arrests As Yet Unaffected By Pending Legislation, April 16, 2013, Birmingham Criminal Defense Lawyer Blog![]()
Our Birmingham criminal defense lawyers understand the defendant is charged with first-degree manufacturing of a controlled substance and possession of drug paraphernalia.
This is a very serious situation.
Alabama Code Section 13A-12-218 holds that manufacture of a controlled substance in the first-degree is a Class A felony. That means the maximum potential punishment is life in prison.
What separates the first-degree charge from other lesser designations is the presence of one of the following:
A firearm;
A booby trap;
The illegal disposal, transportation or possession of any dangerous or hazardous material in furtherance of a clandestine laboratory operation, which posed a serious risk to either the environment or human health and safety;
A clandestine laboratory operation that was within 500 feet of a home, business, school or church;
A clandestine laboratory that was found to have produced a specified amount of a controlled substance;
A clandestine laboratory that produced either Schedule I or Schedule II narcotics;
There was a person under the age of 17 who was there during the process of the manufacturing.
In this case, the teacher's aide reportedly was producing the methamphetamine, which is a Schedule 1 or Class A narcotic, per the Misuse of Drugs Act of 1975. Her co-defendant was charged with the same, and he has a prior conviction for second-degree manufacture of a controlled substance. He had recently completed a three-year prison term and was still completing his five years' worth of probation when this arrest occurred.
Additional charges could be filed against other individuals as well, as the investigation is ongoing.
Authorities say they had been investigating activities at the home, where the woman's 26-year-old special needs daughter also lives, for some time. Investigators said there was evidence of a red phosphorus methamphetamine-producing laboratory in both the attic and the main living room area.
While any kind of methamphetamine lab has the potential to be dangerous, red phosphorus is particularly risky because it emits toxic gases during the cooking process. This kind of operation is sometimes referred to a "shake-n-bake" laboratory - something officials say is not as common in Alabama as other kinds of clandestine meth labs.
This incident happened in Baldwin County, where methamphetamine continues to be the No. 1 drug issue right now, according to investigators.
A law passed by state legislators last year focused on making it more difficult to get the products necessary to produce methamphetamine - specifically, pseudoephedrine, an over-the-counter cold medication that is considered a critical ingredient. Individuals who try to bypass the state's minimum limit law by recruiting dozens of people to hit up one store to the next - a practice called "smurfing" - now face a felony charge.
Alabama is a member of the National Precursor Log Exchange, which allows pharmacies to track purchases of the drugs.
So far, two states in the country, including Mississippi, have made pseudoephedrine prescription only.Contact Birmingham Criminal Defense Attorney Steven Eversole at (866) 831-5292.
Additional Resources:
Baldwin County school employee faces charges after meth lab bust at her Loxley home, April 22, 2013, By Marc D. Anderson, Al.com
Blog Entries:
Alabama Marijuana Arrests As Yet Unaffected By Pending Legislation, April 16, 2013, Birmingham Criminal Defense Lawyer Blog↧
Budget conferees gather with opposing mandates on prison closures, purchases
Earlier this month, Grits had reported, the Texas House approved a budget that rebuffed the Senate's decision to close two private prison units, deciding to keep them and purchase another, empty unit in Jones County that the state doesn't need. On Friday they made it official as representatives of the two chambers head into the conference committee, reported the Statesman's Mike Ward:The Texas House on Friday voted to buy an unused West Texas prison for $19.5 million, brushing aside growing criticism that the state has 12,000 empty prison beds and is wasting taxpayers’ money.The decision to leave intact funding for the 1,100-bed Jones County lockup is expected to set up a showdown with Senate leaders, who have openly criticized the House as engaging in pork barrel politics. The House approved the purchase in House Bill 1025, a supplemental appropriations measure, by a 129-9 vote.“We’ll look forward to a discussion with the Senate,” said House Appropriations Committee Chairman Jim Pitts, R-Waxahachie. “This is just putting it out there for discussion. This is not the final version of the bill.”From the story, it sounds like Rep. Sylvester Turner, who's on the conference committee, isn't a fan of the Jones County unit, and Chairman Pitts is open to omitting excess capacity from the "final version." If Senate conferees stick to their guns - and with John Whitmire among conferees, you'd expect them to - there's a decent, bettor's chance Texas may end up closing units this time instead of pointlessly expanding capacity, as the House has suggested. Here are the lists of House and Senate budget conferees, respectively:House: Pitts, Crownover, Otto, S. Turner, ZerwasSenate: Williams, Duncan, Hinojosa, Nelson, WhitmireSurprising opposition has arisen in the House to closing the Dawson State Jail and the pre-parole facility in Mineral Wells, as the Senate has suggested. Besides the obvious, pork-barrel reasons (Corrections Corporation of America runs both facilities and its champions don't want them shuttered), it's been suggested that the Dawson State Jail in particular services women from the Dallas area disproportionately. That's true to a small extent, but the Hutchins State Jail takes even more inmates from Dallas, presently operates under capacity and could take the extra Dallas inmates and gender-specific programming, if so-directed. The relatively minor, bureaucratic adjustments that would be required to manage the inmate population if Dawson were closed pales in comparison to the extra expense of keeping it open. The Senate essentially paid for a 5% prison guard pay hike by eliminating two private-prison contracts the state doesn't need. If those units stay open, as the House envisions, and the state buys another empty unit, the question for conferees becomes, "How does the state pay for wage increases for corrections staff, or do those just go away?" Root for the senate conferees to stand firm on this one and hope for the House side to give into the imperatives of reason and math.
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Dzhokhar Tsarnaev in Solitary at Devens' Segregated Housing Unit
John Collauti, the public relations spokesman for the Federal Medical Center at Devens, says Dzhokhar Tsarnaev is in segregation in a small cell with a steel door that allows food to be passed through and prison officials to watch him.
Collauti...
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The School, Suicide and the Cell-phone
--> From 2005 to 2008, “G.C.” was enrolled as an out-of-district student in the Owensboro [Kentucky] Public School District. G.C. v. Owensboro Public Schools, 711 F.3d 623 (U.S. Court of Appeals for the 6th Circuit 2013). The Owensboro district “has a reciprocal agreement with Daviess County Public School District, the district where G.C.'s parents reside, that allows a limited number of students to enroll in" the Owensboro schools. G.C. v. Owensboro Public Schools, supra. The “`enrollment of non-resident students in the District's schools is subject to the recommendation of the school Principal and approval of the Superintendent.’” G.C. v. Owensboro Public Schools, supra. Non-resident students are “`defined as those whose parent or guardian resides outside the District.’” G.C. v. Owensboro Public Schools, supra During his freshman year at Owensboro High School, G.C. began having disciplinary problems and told “school officials he used drugs and was disposed to anger and depression.” G.C. v. Owensboro Public Schools, supra. These incidents then occurred: On September 12, 2007, . . . G.C. was given a warning for using profanity in class. . . . In February 2008, G.C. visited [Assistant Principal Christina] Smith's office and expressed to Smith `that he was very upset about an argument he had with his girlfriend, he didn't want to live anymore, and he had a plan to take his life.’ . . . G.C. told Smith `he felt a lot of pressure because of football and school and smoked marijuana to ease the pressure.’ . . . Smith met with G.C.'s parents and suggested he be evaluated for mental health issues. . . .. G.C.'s parents took him to a treatment facility that day. . . . . G.C. v. Owensboro Public Schools, supra. Apparently nothing happened until the next fall, when, on November 12, 2008, G.C. was given a warning for excessive tardies, and on November 17, G.C. was disciplined for fighting and arguing in the boy’s locker room. . . . On March 5, 2009, G.C. walked out of a meeting with Summer Bell, the prevention coordinator at the high school, and left the building without permission. . . . G.C. made a phone call to his father and was in the parking lot at his car, where there were tobacco products in plain view. . . . G.C. went to Smith's office, and Smith avers G.C. `indicated he was worried about the same things we had discussed before when he had told me he was suicidal.’ . . . She . . . `was very concerned about [his] well-being because he indicated he was thinking about suicide again. I, therefore, checked [G.C.'s] cell phone to see if there was any indication he was thinking about suicide.’ . . . G.C. visited a treatment center that day, and the counselor recommended he be admitted for one to two weeks. . . . G.C. v. Owensboro Public Schools, supra. On March 9, 2009, school officials met with G.C. and his parents “regarding the March 5 incident” and he “was placed on probation and assigned four days of in-school suspension.” G.C. v. Owensboro Public Schools, supra. On April 8, he was suspended “after yelling and hitting a locker” and at the end of the academic year, Principal Anita Burnette recommended that Superintendent Larry Vick revoke G.C.'s authorization to attend Owensboro High School. G.C. v. Owensboro Public Schools, supra. Vick did not follow her recommendation; instead, he met with G.C.’s parents on June 15 to discuss what was expected of him. if he continued to attend Owensboro. G.C. v. Owensboro Public Schools, supra.Among other things, Vick told them that if G.C. had “`any further disciplinary infraction, this privilege would be immediately revoked and he would be required to return to his home school district.” G.C. v. Owensboro Public Schools, supra. On September 2, 2009, G.C. violated Owensboro’s cell-phone policy when he was seen texting in class. . . . G.C.'s teacher confiscated the phone, which was brought to [Assistant Principal Melissa] Brown, who read four text messages on the phone. . . . Brown said she looked at the messages `to see if there was an issue with which I could help him so that he would not do something harmful to himself or someone else.’ . . . Brown explained that she had these worries because she `was aware of previous angry outbursts from [G.C.] and that [he] had admitted to drug use in the past. I also knew [he] drove a fast car and had once talked about suicide to [Smith]. . . . I was concerned how [he] would react to his phone being taken away and that he might hurt himself or someone else.’ G.C. v. Owensboro Public Schools, supra. “After this incident, Burnette recommended to Vick that G.C.'s out-of-district privilege be revoked,” and Vick agreed. G.C. v. Owensboro Public Schools, supra. On October 15, 2009, he and other school officials met with G.C.'s parents and their attorney. G.C. v. Owensboro Public Schools, supra. Vick told them G.C. "had violated the condition of his out-of-district privilege to attend Owensboro High School by texting in class”, which seems to have meant he was dismissed. G.C. v. Owensboro Public Schools, supra. On October 21, G.C. filed suit in federal district courtagainst Vick, Burnette, Brown and Smith, in which he alleged various violations of his constitutional rights. G.C. v. Owensboro Public Schools, supra.One of his claims, the only one examined in this post, was that his 4thAmendment rights were violated by school officials “when they read text messages on his phone without the requisite reasonable suspicion”. G.C. v. Owensboro Public Schools, supra. --> (The opinion does not say this, but I assume his 4th Amendment claim, at least, was brought under the federal civil rights statute.) The defendants responded by filing a motion for summary judgment on all his claims which, as Wikipedia explains, lets a judge enter a judgment “before trial, effectively holding that no trial will be necessary.” As Wikipedia notes,summary judgment can only be entered when the judge finds that there are no disputes of "material" fact requiring a trial to resolve, andin applying the law to the undisputed facts, one party is clearly entitled to judgment. In other words, summary judgment cannot resolve factual issues. It is proper only when a claim is legally defective, so the opposing party wins on the law. G.C. appealed the district court judge’s grant of summary judgment on his 4thAmendment claim, so the U.S. Court of Appeals for the Sixth Circuit is, in this opinion, deciding whether the judge erred in making that decision. G.C. v. Owensboro Public Schools, supra. The Court of Appeals began its analysis of G.C.’s appealing the grant of summary judgment on his 4th Amendment claim by noting that the Supreme Court “has implemented a relaxed standard for searches in the school setting”. G.C. v. Owensboro Public Schools, supra. It explained that in New Jersey v. T.L.O., 469 U.S. 325 (1985), the Court held that the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search. Determining the reasonableness of any search involves a twofold inquiry: first, one must consider whether the action was justified at its inception; second, one must determine whether the search as actually conducted was reasonably related in scope to the circumstances which justified the interference in the first place. New Jersey v. T.L.O, supra. The Court of Appeals then elaborated on precisely what this means in practice: `[a] student search is justified in its inception when there are reasonable grounds for suspecting that the search will garner evidence that a student has violated or is violating the law or the rules of the school, or is in imminent danger of injury on school premises. Brannum v. Overton County Sch. Bd., 516 F.3d 489 (U.S. Court of Appeals for the 6th Circuit 2008). `Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.’ New Jersey v. T.L.O., supra. `In determining whether a search is excessive in its scope, the nature and immediacy of the governmental concern that prompted the search is considered. Brannum v. Overton County, supra. `In order to satisfy the constitutional requirements, the means employed must be congruent to the end sought.’ Brannum v. Overton County, supra G.C. v. Owensboro Public Schools, supra. Since this Court of Appeals had not addressed “how the T.L.O. inquiry applies to the search of a student’s cell phone”, the plaintiff and defendants cited two federal district court cases that had addressed this issue. G.C. v. Owensboro Public Schools, supra. The defendants relied on J.W. v. Desoto County School District, 2010 WL 4394059 (U.S. District Court forthe Northern District of Mississippi 2010), in which a teacher, who saw a student using his cell phone in class, took the cell phone and opened it to view “the personal pictures on it” that were taken by the student while at his come. The federal district court judge who had the case held that in deciding the reasonableness of the teacher’s actions, a “crucial factor” was that the student was caught using the phone at school. J.W. v. Desoto County School District, supra. This judge found that “[u]pon witnessing a student improperly using a cell phone at school, it strikes this court as being reasonable for a school official to seek to determine to what end the student was improperly using that phone.” J.W. v. Desoto County School District, supra. The Court of Appeals did not agree with this reasoning, noting that a search is justified at its inception if there is reasonable suspicion that a search will uncover evidence of further wrongdoing or of injury to the student or another. Not all infractions involving cell phones will present such indications. Moreover, even assuming a search of the phone were justified, the scope of the search must be tailored to the nature of the infraction and must be related to the objectives of the search. Under our two-part test, using a cell phone on school grounds does not automatically trigger an essentially unlimited right enabling a school official to search any content stored on the phone that is not related either substantively or temporally to the infraction. G.C. v. Owensboro Public Schools, supra. G.C. relied on Klump v. Nazareth Area School District, 425 F.Supp.2d 622 (U.S. District Court for the Eastern District of Pennsylvania 2006), in which “a student was seen using his cell phone, followed by two school officials accessing [his] text messages and voice mail; searching [his] contacts list; using the phone to call other students; and having an online conversation with [his] brother.” G.C. v. Owensboro Public Schools, supra. The Klumpcourt found that the school officials were “justified in seizing the cell phone, as [the student] had violated the school's policy prohibiting use or display of cell phones during school hours.” Klump v. Nazareth Area School District, supra. The Klump judge also, though, found the school officials were not “ justified in calling other students, as `[t]hey had no reason to suspect at the outset that such a search would reveal that [the student] was violating another school policy.’’ Klump v. Nazareth Area School District, supra. The judge discussed the text messages read by the school officials, concluding that although they ultimately found evidence of drug activity on the phone, for the purposes of a 4th Amendment claim, the court must consider only that which the officials knew at the inception of the search: `the school officials did not see the allegedly drug-related text message until after they initiated the search of [the] cell phone. Accordingly, . . . there was no justification for the school officials to search [the] phone for evidence of drug activity. Klump v. Nazareth Area School District, supra. The Court of Appeals noted that the Klump court’s “fact-based approach” more accurately represented its standard “than the blanket rule set forth in DeSoto.” G.C. v. Owensboro Public Schools, supra. It then explained that G.C.’s objection to the September 2009 search centers on the first step of the T.L.O. inquiry -- whether the search was justified at its inception. G.C. argues that the school officials had no reasonable grounds to suspect that a search of his phone would result in evidence of any improper activity. The defendants counter that the search was justified because of G.C.'s documented drug abuse and suicidal thoughts. . . . Therefore, they argue, the school officials had reason to believe they would find evidence of unlawful activity on G.C.'s cell phone or an indication that he was intending to harm himself or others. . . . G.C. v. Owensboro Public Schools, supra. The Court of Appeals was not convinced: We disagree . . . that general background knowledge of drug abuse or depressive tendencies, without more, enables a school official to search a student's cell phone when a search would otherwise be unwarranted. The defendants do not argue, and there is no evidence in the record to support the conclusion, that the school officials had any specific reason at the inception of the September 2009 search to believe that G.C. then was engaging in any unlawful activity or that he was contemplating injuring himself or another student. Rather, the evidence in the record demonstrates that G.C. was sitting in class when his teacher caught him sending two text messages on his phone. . . . When his phone was confiscated by his teacher pursuant to school policy, G.C. became upset. . . . The defendants have failed to demonstrate how anything in this sequence of events indicated to them that a search of the phone would reveal evidence of criminal activity, impending contravention of additional school rules, or potential harm to anyone in the school. On these facts, the defendants did not have a reasonable suspicion to justify the search at its inception. G.C. v. Owensboro Public Schools, supra. In a footnote, the court also pointed out that the “ordinary nature” of the September 2009 infraction is highlighted further when contrasted with the March 2009 search, which G.C. has conceded was justified at its inception. Immediately prior to the March 2009 search, G.C. admitted to making a call on his cell phone in the school parking lot after having walked out of a meeting with the school prevention coordinator. . . . Upon his return, G.C. told Bell he was having suicidal thoughts, and the security officer reported to Bell that there were tobacco products in plain view in G.C.'s car. There was thus reason to believe -- based on that day's sequence of events -- that G.C. was contemplating injuring himself or breaking additional school rules. The defendants, however, can point to no such indications in the hours, weeks, or months leading up to the September 2009 search. G.C. v. Owensboro Public Schools, supra. The Court of Appeals therefore reversed the district court judge’s grant of summary judgment to the defendants on G.C.’s 4thAmendment claim and remanded the case to the district court for further proceedings. G.C. v. Owensboro Public Schools, supra. That does not, as I have noted before, mean that G.C. prevailed and will prevail on the claim. It means that the case goes forward, at least as to this cause of action. G.C. v. Owensboro Public Schools, supra.
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S.D.N.Y.: Rule 41(g) return denied in lieu of suppression motion which is proper
Ancillary jurisdiction for return of property under Rule 41(g) is exercised with great restraint. Here, there is a remedy in the criminal case. United States v. Huggins, 2013 U.S. Dist. LEXIS 59773 (S.D. N.Y. March 22, 2013):
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FL5: When not detained, "you got any weapons or drugs on you" doesn't require Miranda
A man near a food truck was “uttering threats,” and police were called. They found defendant sitting on the curb and they asked if he “had any weapons or drugs on him.” Defendant said he had “some blow.” He was not in custody until he made the admission, which is admissible. State v. Janusheske, 2013 Fla. App. LEXIS 6741 (Fla. App. 5th DCA April 26, 2013).
Defendant was arrested and placed in a police car. They went in the house to get a rifle, and the entry was without consent or exigent circumstances. It was, however, harmless error with multiple witnesses seeing the shooting. State v. White, 2013 Tenn. Crim. App. LEXIS 351 (April 25, 2013).*
14 day old information in an ongoing drug trafficking operation was not stale. United States v. Vernon, 2013 U.S. Dist. LEXIS 59539 (M.D. Fla. April 25, 2013).*
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KY: Detention by school resource officer required Miranda
A school resource officer sheriff's deputy taking a student out of class to the principal's office to question him about drugs was enough to invoke Miranda. N.C. v. Commonwealth, 2013 Ky. LEXIS 95 (April 25, 2013):
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