fourth amendment
Being John Q. Prosecutor
Jul 9th
You, the defense lawyer, get a client. You look at the information (or the indictment for those from other states), or you look at an appellate decision upholding some form of overcharging or prosecutorial misconduct. You are amazed. You go to your colleagues and ask: “What is this prosecutor thinking?”
Well, now we now – sort of. Thanks to Grits (who actually has been linking to this message board for quite some time – I just haven’t gotten around to posting about it) and the fine folks at the Texas District and County Attorneys Association, we get a glimpse into the mind of a prosecutor. Their message board is public. There are lots of threads, some asking for opinions on pending cases, some discussing legal issues, some discussing news stories. There’s even one about the judge that banned the use of the word “rape” at trial. Here’s a recent goodie, titled “Good search?”:
Defendant was pulled over for traffic stop. Officer ran her name and a felony warrant came up from Oklahoma. Officer pulled defendant out of car. He told defendant that she had an outstanding warrant. Defendant says, “that is not me, it must be my sister. She is always using my name.” Defendant was very nervous when asked about narcotics. (She had a previous POM arrest.) She requested that she be allowed to get back in her car and sit down.
Officer was awaiting confirmation of the warrant and agreed to let defendant get back in car. He searched the lunge area of the vehicle (without consent) and found a tin can with some baggies of methamphetamine under the driver’s seat. He arrested defendant for POCS. When he returned to his office he got the pictures from the Oklahoma warrant that was issued in defendant’s name and it turned out that it was actually defendant’s sister.
The officer was acting in good faith and believed that defendant had an outstanding felony warrant when he initiated the search. It must be a good search, right?
Some thought it was a good search and some questioned the validity of it. What do you think? Grits is “annoyed with a bunch of lawyers sit[ting] around jawing after the fact about what legal theory they can use to justify it.”
If you want more, here’s the thread about an arrest for failing to obey a lawful order (refusing to exit the car when asked), when in fact there is no such crime. Here is Grits’ take.
Overall, I think it is fascinating. To see other legal minds at work – especially those that are our adversaries – is a treat. It shows us that there are those who will be bound by the law and those that might be willing to make whatever argument it takes to secure a conviction. Sort of what we do, but the implications are completely different.
PS: For those interested, this is the picture I had originally selected for this post. 
What’s in a word?
Jun 21st
A legal conclusion, perhaps. So thought a judge in Nebraska, who banned the use of the words rape, assailant, sexual assault rape kit, victim and sexual assault from a trial. This has Dahlia Lithwick of Slate unhappy. Corey Yung of Sex Crimes is also unsure of it.
Barring a slippery-slope argument (which may be a strong one), I don’t see what the hubbub is all about [NOT from an emotional point of view; simply a legal one].
Replace:
“Did he rape you?”
with
“Did he attempt to have sex with you?”
“Did you consent to having sex with him?”
Rape becomes non-consensual sex. In some cases, the jury is called upon to decide whether the “victim” was indeed “raped”. To continually refer to the act as “rape” (which is a fact for the jury to decide), might subconsciously “poison” the minds of the jury.
In CT, a 2005 Supreme Court decision left standing an Appellate Court decision [State v. Cortes (pdf)]which held that the use of the word “victim” by the court (76 times) deprived the defendant of a fair trial.
In cases in which the fact that a crime has been committed against the complaining witness is not contested, but only the identity of the perpetrator is in dispute, a court’s use of the term ‘‘victim’’ is not inappropriate. In cases in which the fact that a crime has been committed is contested, and where the court’s use of the term ‘‘victim’’ has been the subject of an objection and has not been the subject of a subsequent curative instruction, a court’s use of the term may constitute reversible error. The danger in the latter type of case is that the court, having used the term without specifically instructing the jury as to its intention in using the term, might convey to the jury, to whatever slight degree, its belief that a crime has been committed against the complainant.
We agree with the defendant that given the particular circumstances of this case, as well as the fact that the complainant’s credibility was a critical issue, the better practice would have been for the court to refer to the complainant by some term other than ‘‘victim.’’ We conclude that the court’s instructions constituted reversible error.
Now, the slippery-slope argument that Dahlia Lithwick makes is a valid one, but perhaps not fatal to this judge’s position. How many times, in a trial, does a prosecutor ask of a witness: “Is the defendant the man that murdered the victim?” Not many. It is more likely that the question posed is: “Did you see the defendant shoot the victim?” “Is the defendant the man that killed the victim”?
Shoot; kill – not legal conclusions. Murder, probably.
However, despite this lengthy post, I could be convinced to change my position. Have at it!
Do passengers have standing to challenge a stop?
Apr 23rd
That is the question in Brendlin v. California, argued today. Here is the transcript [pdf] of the oral argument. It is very, very interesting. I will have more on it later tonight. Here’s a teaser, though:
JUSTICE SOUTER: Don’t you think that a reasonable passenger at that point would assume that the officer is in control and that, in the absence of some affirmative indication that the passenger can go, that he’s supposed to sit there until this thing gets over with? Isn’t that the reasonable response of a passenger?
MR. ZALL: No, Justice Souter, I don’t think so. I think again, because the, the traffic stop is such a common occurrence and in the overwhelming majority of cases involving a routine traffic stop, it’s an investigatory stop of the driver. And I think it’s reasonable for the passenger and the driver to see it that way, I would submit that if I am a passenger in a car and I’m riding with somebody and hey, and one patrol car signals for the driver to pull over, I think the natural reaction is the driver says, what did I do, and the passenger says, what did you do? I mean, I think that’s the natural reaction.
Yeah…I’d love to see the “Cops” video of him getting out of the passenger seat.
Update: Okay, I’m back and here’s more. Justice Kennedy sums up my view of the state’s argument with this beaut:
JUSTICE KENNEDY: You’re representing the State of California and you want to establish the proposition that any time there is a traffic stop in the State of California or I guess anywhere in the United States all the passengers are free to immediately leave, absent some further countermanding officer — order by the officer. I think that’s a quite surprising proposition. Now, we don’t have empirical studies and so forth, but at some point the Court takes judicial notice and I think indications from the bench are we just don’t think passengers, A, are or, B, should feel free to leave when there’s a traffic stop. I just think you have no social or empirical documentation for that position.
I think the Court is in a really tough position here. Either they hold that passengers are not seized, thereby creating public safety issues or they hold that passengers are seized – which they have been reluctant to do. I will await this outcome with glee. Yes, I said glee.
Sex offenders and MySpace: Free speech and due process violations?
Apr 3rd
The Duke Law & Tech Review iBlawg has two very interesting posts on whether MySpace’s decision to block convicted sex offenders from using their services violates either the right to free speech or to due process. As to free speech, the author writes:
The basis for asking if the proposed legislation and MySpace’s actions are a violation of the First Amendment stems from the Supreme Court case John Ashcroft v. Free Speech Coalition. 535 U.S. 234 (2002).In light of Free Speech Coalition, it appears that Congress would have to make a solid argument that all written works from a former sex offender to a teenager are patently offensive in light of community standards and is therefore unprotected speech. The difficulty with this argument is that it depends on what the sexual offender is writing on the social networking website, whether he or she is trying to arrange a meeting with the teenager, and whether the former sex offender is still a danger to the community.
Moreover, the speech that is in question is not harmful in itself; it is the later potentially unlawful actions that are potentially dangerous, indicating the legislation may be overly broad. The only way such speech can be differentiated from the speech in Free Speech Coalition is if a distinction is made between speech produced by non-former sex offenders and speech produced by sex offenders. If made, this distinction raises the question of whether this different treatment violates a sex offender’s right to due process.
On Due Process, she writes:
The Supreme Court has only ruled on two cases regarding sex offender registries and only one of those cases specifically discussed due process.1 In Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1 (2003), a Connecticut statute provided for public disclosure of the state’s sex offender registry.Even in the wake of Doe, there are two arguable reasons for why sex offenders are being denied due process rights when banned from social online communities without any determination of their current dangerousness. First, the scope of Doe is very narrow. The Court ruled that Plaintiff already had a hearing when it was determined that he was a sex offender and that the Connecticut statute required the registration of all convicted sex offenders.
Second, in Doe, the online registry was solely for the purpose of public awareness.15 Here, third parties are using the registry to block certain individuals from Internet sites, and such a distinction may change the analysis.
There is more in-depth analysis in the full posts, so I encourage you to read them. I’ve long maintained that Doe ruled on nothing more than procedural due process and the substantive issue was not touched. SCOTUS has yet to consider whether any of these “requirements” or “restrictions” geared toward sex offenders violate substantive due process.
Technorati Tags: sex offenders, myspace, due process, free speech
Manufacturing reasonable suspicion
Jun 17th
Blonde Justice writes about a proposed law [news report] in NY that would require special license plates for those convicted of drunk driving.
The license numbers or letters _ the specific code hasn’t been
determined _ would allow police to quickly identify motorists convicted
of driving while intoxicated. Police could then stop the cars without
further cause, said the bill’s sponsors, Republican senators Thomas
Libous of Binghamton and Nicholas Spano of Westchester.
So, a prior conviction is now probable cause, or at the very least, reasonable suspicion. This is vaguely analogous to the Megan’s law statutes which require registration (and of which, i’m sure you know, i’m not a fan) for either 10 years or lifetime. In the Megan’s law cases, arguments implicating the ex-post facto clause were raised and rejected.
The case here, I think, I stronger. When dealing with Megan’s law, the argument was that registration imposes a subsequent punishment – i.e. brandishing of an individual. With this current proposal, not only does it brandish an individual, but it also exposes him to continual harassment and perhaps future arrests. The invasiveness factor is higher because of the automobile. Because you know the cops are going to be tailing cars with these special license plates.
Honestly, I don’t think this bill would pass Constitutional muster. One cannot "create" reasonable suspicion, as this bill seems to do. As Blondie suggests, this is a slippery slope, which leads all the way back to the Scarlet Letter.
Written Consent bill moves forward
May 23rd
Via Injustice Anywhere (by way of Grits for Breakfast), comes this report that Texas’ written consent for traffic searches bill is still on track. More about this bill here, here and here.
Written consent for vehicle searches… in Texas?
Apr 28th
Injustice Anywhere (by way of Grits for Breakfast) reports on a new bill in Texas that would require peace officers to get signed consent from motorists before inspecting their vehicles during a routine traffic stop. The bill states [bill text]:
A peace officer who stops a motor vehicle for any alleged violation of a law or ordinance regulating traffic may not search the vehicle unless the peace officer:
(1) has probable cause or another legal basis for the search; or
(2) obtains on a form that complies with Section 411.0207, Government Code, the written consent of the operator of the vehicle.SECTION 2. Subchapter A, Chapter 411, Government Code, is amended by adding Section 411.0207 to read as follows:
Sec. 411.0207. GUIDELINES FOR FORMS INDICATING CONSENT TO VEHICLE SEARCH.
(a) The director by rule shall establish requirements for a form used to obtain the consent of the operator of a motor vehicle under Article 1.06, Code of Criminal Procedure.
(b) At a minimum, the rules must require the form to contain:(1) a statement that the operator of the motor vehicle fully understands that the operator may refuse to give the peace officer consent to search the motor vehicle;
(2) a statement that the operator of the motor vehicle is freely and voluntarily giving the peace officer consent to search the motor vehicle;
(3) the time and date of the stop giving rise to the search;
(4) a description of the motor vehicle to be searched; and
(5) the name of each peace officer conducting the stop or search.
I think the part requiring written consent in the absence of probable cause is great, because as Grits reports, jurisdictions that already require written consent have seen a 63% decline in motorists willing to waive their rights. At the very least, people will be more informed of their right to decline to consent.
consent once removed
Mar 1st
The Sixth Circuit held last week [pdf required] that when one gives consent to a confidential informant to enter one’s home and the confidential informant, establishes probable cause, there is "consent once removed" for police officers to enter the home and conduct a search and arrest.
Crim Prof disagrees but Mike at Crime and Federalism isn’t bothered by this.
I did a little quick research on CT law in this area and found State v. Vargas, 34 Conn. App. 492 (1994). In Vargas, the undercover officer received information from an informant that persons were selling heroin to anyone who came to the door of [defendant's home]. The undercover officer and three other undercover police officers went to the apartment with the intent of conducting a "buy-bust." Upon arrival at the apartment, the officer knocked on the door while the other officers positioned themselves out of view, standing against the outside wall. The defendant opened the door, but left the screen door latched, and asked, "What do you need?" The officer replied, "I need a bag of dope." The defendant then unlatched the screen door and motioned to the officer to follow him. The officer opened the screen door and followed the defendant into the kitchen. The other officers remained outside. One of them positioned himself so that he could see into the apartment in order to keep the undercover officer in view at all times.
One of the things Vargas claimed on appeal was that the trial court improperly applied the doctrine of inevitable discovery. Vargas argued that the entry into the apartment by the three other officers, after the prearranged signal by the undercover officer, was a warrantless entry not provided for by an exception and, therefore, the evidence seized must be suppressed.
The appellate court held
He claims that Battistone’s signaling to the other officers, "inviting them in," exceeded the scope of consent, if any, destroying any legal basis for Battistone’s presence in the apartment, and, therefore, the discovery of the evidence could not have occurred by legal means already in process. It is curious that the defendant claims, in essence, that because the other officers’ actions were either in bad faith or illegal, the doctrine should not apply. It is precisely in this type of situation that the doctrine is intended to apply. The application of the doctrine anticipates a lawful entry, a subsequent constitutional violation, and an inevitable discovery. It then provides for the admission of the evidence obtained, in spite of the constitutional violation.
So CT has not yet (from what I could find) addressed the issue of consent once removed. Maybe I can ask around and see if anyone has ever tried to raise this.
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