Basically Law

When Congress passes a general law under its power to regulate interstate commerce, must courts examine a specific incident under that law to see if it conforms with the commerce clause (“as applied analysis”).  In this case, the Defendant argued that he could not be subject to federal law involving the production and possession of child pornography because it was done within one state and was not intended for sale. 

Read the opinion U.S. v. Bowers

Issue.  Could the Defendant be prosecuted, under federal law, for the production and possession of child pornography, when the production and possession occurred within one state and was never intended for distribution and sale?

Background.   Stephen Lee Bowers shared a home with another individual.  One day, the other individual’s boyfriend was snooping in Bowers room when he came upon a book containing photographs which the individual believed to be child pornography.  The FBI was contacted and they examined the book and the photographs.

Bowers waived his Miranda rights and acknowledged that the book contained photographs of him with his daughter and her friends in sexual poses.  But, Bowers claimed that he took the photos for his own use and had no intention of distributing them or selling them to others.  Further, Bowers claimed that he had no interest in any other “child pornography” than that involving his daughter and her friends.  (I know, it is kind of a sick argument).

Bowers was convicted of production and possession of child pornography (18 U.S.C. §2251(a) and 18 U.S.C. §2252(a)(4)(B)).  Bowers challenged the validity of the laws to his case because there was no proof that Bowers’s actions had a substantial effect on interstate commerce, since the laws were passed under Congress’s powers to regulate interstate trade.  The Court of Appeals for the Sixth Circuit rejected Bowers argument.

Court’s Analysis.  Before considering the Commerce Clause claim, the Court rejected Bowers argument that the photographs should have been suppressed because they were “discovered” by a snooping individual who then showed the photograph to authorities.  Unless Bowers could demonstrate that the person snooped in his room and found the photographs at the request of authorities, there is no state action or Fourth Amendment violation.

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United States v. Turner - The Seventh Circuit found that the District Court violated a defendant's Sixth Amendment right to counsel of choice when the court disqualified the defendant's counsel because he was representing a co-conspirator in a separate sentencing proceeding.

King v. McMillan - The Fourth Circuit ruled that a sheriff who took over the job could be substituted for the previous sheriff who was the one who actually accused of sexual harassment.  The Court found substitution appropriate because a State could get around federal law and being held accountable by just replacing a sheriff who violated the law.

Laylock v. Hermitage School District - The Third Circuit found that a student could not be punished for expressive conduct outside of the classroom that did not disturb the school environment and was not related to any school project.   In this case, the student made a fake profile for his principal.  The school's punishment of the student could violate his First Amendment rights, but it did not violate the parents' Due Process rights to raise their children as they see fit.

J.S. v. Blue Mountain School District - In a related case to Laylock the Third Circuit found that the First Amendment rights of another student were not violated when she posted a fake profile of her principal. This profile included the principal's picture and claims of being a sex addict and pedophile.  It could be argued that such a profile could disrupt the school environment.

United States v. Miller - The Third Circuit found that a lifetime ban on the internet and associating with children under 18 without permission from the Parole Officer as terms of a supervised release were too great of a restraint on liberty and not permissible. 

Divorce is only interesting when the couple actually owns property since there will be a dispute as to what constitutes the marital property that is subject to distribution.  Some property is easy to define, like a house, car, etc.  But, what about deferred payments, such as pensions and the like?  That has been determined to be marital property subject to distribution.  What about accrued sick and vacation time that the one spouse has not taken but was earned during the marriage?  Should that be regarded as marital property?  While some courts believe that it is subject to distribution, the Illinois Supreme Court disagreed.  Who is right?

Read the decision, In re Marriage of Mary Jacqueline Abrell

Issue.  Was vacation and sick time that a husband had accrued during a marriage, but did not take, subject to equitable distribution on the dissolution of the marriage?

Background.  John Abrell and Mary Jacqueline Abrell dissolved their marriage after twenty years.  As part of the dissolution, the trial judge determined that the sick and vacation days that Mr. Abrell had earned at his job was marital property and considered it when distributing the property between the two parties.  Mr. Abrell appealed that decision, among others (not important here), on the ground that the unused sick and vacation time was not marital property.  Further, if such time was marital property, the trial judge did not properly consider taxes when distributing it between the parties.

The appellate court ruled that the unused sick and vacation time was not marital property and remanded the case to the trial court judge to redistribute the property.  Mrs. Abrell appealed, and the Illinois Supreme Court upheld the appellate court’s decision.

Court’s Analysis.  Whether accumulate sick and vacation days are marital property was a question of first impression for the Illinois Supreme Court.  Other courts have ruled on the issue.  Some have found that it is marital property, others had not, and others considered it marital property only because it was used before the final dissolution of marriage (even if it was after the separation).

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I should try more to comment on legal cases going on in the news.  In any event, I find the case of the 10 American missionaries in Haiti charged with kidnapping very interesting.  For the life of me, I cannot think what these people were doing.  Now, I am not questioning the motives of these individuals, but it is not uncommon for child survivors of catastrophes to be kidnapped and/or taken for the purposes of child trafficking.  That is probably not the case here, but these missionaries should have known that their actions were not right.  I am also not entirely sold on the Christian charity thing either.  If these missionaries took the earthquake in Haiti as an opportunity to apostolize, that is very problematic. 

We will see how this whole case turns out.  Is this just a shakedown for money, or something very very serious.

While federal judges have broad discretion on imposing conditions of supervised release, there are limits.  Those conditions must somehow be related to the crime the individual had committed and to prevent that individual from returning to a life of crime.  In any event, should an individual on supervised release be prevented from seeing his or her partner?  What if that partner is a bad influence?

Read the opinion United States v. Napulou

Issue.  Did the trial court judge abuse her discretion when she prevented an individual on supervised release from associating with any person convicted of a felony or misdemeanor without first getting permission from her parole officer, and from associating with her “life partner”?

Background.  Cherlyn Napulou pled guilty to two counts of distribution of methamphetamine.  Napulou was sentenced to 10 years in prison to be followed by 6 years on supervised release.  While on supervised release, Napulou violated the terms and was sent back to prison.  Napulou was release again and among the many conditions of her supervised release, Napulou challenged two.  1.)  Napulou was prohibited from having regular contact with anyone having a misdemeanor or felony conviction without prior permission from her Parole Officer.  2.)  Napulou was prohibited from “any contact telephonic, written or personal with Karla Kahau.”  Karla Kahau is Napulou’s “life partner”.

Since Kahau was also a former convict, the judge believed that she would be a bad influence on Napulou.  The judge ruled as such, although Kahau was aiding Napulou in getting a job and attending counseling.  As noted, Napulou challenged those two terms of her condition and the Ninth Circuit Court of Appeals agreed that the trial court judge abused her discretion when making such conditions.

Court’s Analysis.  While a district court judge “enjoys significant discretion in crafting the terms of supervised release,” the judge still must consider “the nature and circumstances of the offense and the history and character of the defendant.”  Any condition of supervised release must be:  1.) reasonably related to the goals of deterrence, protection of the public, and/or defendant rehabilitation; 2.) involve no greater deprivation of liberty than is reasonably necessary to achieve those goals; and 3.) be consistent with any pertinent policy statements issued by the Sentencing Commission.

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Some may find that it was over the top for prosecutors to charge a 12 year old boy with child molestation as a result of a game which involved the touching of privates.  At worst, get the child some help.  Still, in this case, the 12 year old pled guilty to the charges without appreciating the consequences or even understanding the charges against him.  Why would the judge accept the plea when the child never admitted guilt and the charges against him did not fit the facts?  That may be even more disturbing that his inadequate counsel and the zealous prosecution.

Read the opinion Washington v. A.N.J.

Issue.  Did the trial court err when it refused to allow the Defendant, a juvenile, to withdraw his guilty plea and was the juvenile’s counsel ineffective for not fully explaining the consequences of the guilty plea?

Background.  A.N. J. was charged with first degree child molestation after two neighbor children, ages 5 and 4, claimed that A.N.J. put his hands down their pants during a child’s game.  A.N.J. was appointed defense counsel.  The public defender was over-worked, had a small budget and spent very little time investigating the case even though A.N.J. claimed that he did not engage in the activities and the child’s father believed the victims had initiated the game. 

Prosecutors offered a deal to A.N.J.  A.N.J. would plead guilty to one count of second degree child molestation and attend a sex offenders program.  The public defender believed it was a good deal even though A.N.J. would have to register as a sex offender, would not be able to attend the same school as the victims and would have an adult tail him while in school.  A.N.J., who had spoke to his counsel for less than an hour during the entire case, accepted the plea. 

The trial court judge never asked A.N.J. if the charges against him were true and what had happened.  (There was no allocution.)  Instead, A.N.J. said he understood the terms of the plea.  Shortly after taking the plea, A.N.J. hired another attorney and sought to withdraw his guilty plea.  A.N.J. presented evidence that officers did not question him properly about the incident, and that he was unaware of the consequences of the guilty plea.  The trial court judge was not impressed and would not allow A.N.J. to withdraw his guilty plea.

A.N.J. appealed on several grounds.  A.N.J. claimed that his public defender provided ineffective assistance because counsel never fully explained the consequences of the guilty plea.  Further, the trial court judge erred in accepting the plea because A.N.J. did not admit to the actions in the charges and did not knowingly and intelligently accept the plea bargain.  The Washington Supreme Court, for various reasons, allowed A.N.J. to withdraw his guilty plea.

Court’s Analysis.  The Washington Supreme Court found that A.N.J.’s public defender did not provide effective assistance of counsel.  The public defender conducted little to no investigation regarding A.N.J.’s claim that he never touched the children and that those children were molested by others.  Further, the public defender never entered into a confidential relationship with A.N.J. since A.N.J.’s parents were there the entire time.  Most importantly, the public defender misinformed A.N.J. and his parents about the consequences of the guilty plea.  A.N.J. believed that the charges would eventually be expunged and that he would not have to register as a sex offender, which was not correct.  Thus, A.N.J. could not have knowingly and intelligently entered into a guilty plea. 

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There is actually an episode of Law and Order: SVU, where the D.A. sought an arrest warrant of a unique DNA profile in order to get an arrest warrant before expiration of the statute of limitations.  Other courts have allowed an arrest warrant based solely on that information, and California has joined those other states.  Is it correct?  Is DNA characteristics particular enough to describe the John Doe named in the indictment?  Most likely.  More interesting in this case is the fact that officers got the Defendant’s DNA in violation of state law.  Should that matter?  It did not here.

Read the opinion California v. Robinson

Issue.  Did an arrest warrant that only identified the suspect by his unique DNA profile, describe the individual with enough particularity so that the warrant did not violate the Fourth Amendment?

Background.  Deborah L. was brutally raped and sexually assaulted.  [The Court details the crime.  When the Court usually details the horrors of the crime, the reader should be well aware who is going to lose this case.]  The victim could not describe her assailant other than he was either black or Latino.  Officers, however, were able to get a DNA sample of the assailant.  But the profile did not match that of anyone in the database.  The crime went unsolved for years.

Four days before the statute of limitations for the crimes was set to expire, the District Attorney for Sacramento County filed a felony complaint against “John Doe, unknown male.”  The application only detailed the John Doe by his unique 13-loci DNA profile.  The arrest warrant was issued incorporating the reference to the DNA profile.  [For statute of limitations purposes, all that needs to be done within the statute of limitations is the issue of the arrest warrant/indictment, not the actual apprehension of the individual.] 

A month later, Paul Eugene Robinson was arrested for the crime when authorities were able to link his DNA profile to that of Deborah L.’s assailant.  The problem is that Robinson’s DNA was collected in violation of state law.  California had passed a law that allowed for the collection and cataloguing of the DNA of individuals convicted of certain crimes.  Robinson’s DNA had been collected and catalogued after authorities believed he had committed a qualifying offense.  Robinson, however, did not commit a qualifying offense.

Robinson was convicted on several charges related to the assault on Deborah L. and he appealed his conviction.  Robinson claimed that the arrest warrant was not particular enough to be permissible under the Fourth Amendment.  Further, Robinson claimed that the illegal collection of his DNA violated his Fourth Amendment rights and that it should be suppressed.  The California Supreme Court rejected both of Robinson’s claims.

Court’s Analysis.  The California Supreme Court first examined whether the illegal collection of Robinson’s DNA violated his Fourth Amendment rights and whether such a  violation required suppression of the evidence.  The Court found that Robinson’s Fourth Amendment rights were not violated.  And, even if there was such a violation, it did not warrant suppression of his DNA’s profile.

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Weiss v. Casper - The Tenth Circuit found that individuals do not have a First Amendment right to attend political events held on private property.  Thus, it was appropriate for individuals to "kick-out" anti-Bush people at a Bush speaking event.

U.S. v. Romo-Corrales - How far can police go when searching for a fugitive and for indicia that the fugitive was in the residence of a third party?  Even though officers had probable cause and a warrant to search for indicia of a fugitive (officers had an arrest warrant also) in a third party's residence, should courts be issuing warrants that will allow officers to an extensive search of a third-party's home just to show that the fugitive had been there?  Is it necessary?  The Eighth Circuit explores.

Siesta Village Market LLC v. Steen - The Fifth Circuit found that a Texas law that allowed Texas retailers of alcohol to ship alcohol directly to the doors of Texas residents, but did not allow so for out-of-state retailers did not violate the dormant Commerce Clause.

Bolarinwa v. Williams - The Second Circuit held that mental illness can serve as a ground for equitable tolling of the one year statute of limitations for filing a habeas petition under the Antiterrorism and Effective Death Penalty Act.

McClanahan v. Arkansas - The Arkansas Supreme Court found that once an individual disposes of the body parts of a victim, the statute of limitations for abuse of a corpse begins tolling.  The Court rejected the State's argument that the statute of limitations began once the body parts were found.

If officers smell marijuana coming from an apartment, after following another individual, can they enter that apartment without a warrant?  The officers claimed that they entered because they heard movement in the apartment (fear of destruction of evidence) after knocking on the door and identifying themselves.  Ask yourself – if the police were following an individual who they purchased crack cocaine from, why would they think that the person may have entered the apartment from where marijuana smoke was coming?  Personally, I do not believe the officer who claimed that he never received the radio call of what apartment the drug dealer entered.  Do you?  Regardless, did the officers create the exigent circumstances which they claim justifies their entry into the apartment without a warrant?

Read the opinion King v. Kentucky

Issue.  Did exigent circumstance exist so that a warrant was not required when officers entered an apartment from where they smelled marijuana smoke?

Background.  Officers conducted a “buy bust” whereby a confidential informant purchased crack cocaine from a street dealer.  After the transaction was completed, officers tailed the dealer and had hoped to get him before he entered his apartment.  The dealer made it into the last apartment on the right before officers caught up with him.  The officers claimed that they had not received the radio communication that the dealer had entered that apartment.

When officers made it to the end of the hall, they smelled marijuana coming from the apartment on the left.  They knocked on the door and identified themselves as police.  At the point, the officers heard movement in the apartment.  Believing that the individuals inside the apartment were getting rid of the evidence, the officers entered the apartment where they found King, and two others, smoking marijuana.  They also saw cocaine and drug paraphernalia. 

The State charged King with various drug crimes.  King moved to suppress the evidence seized in the apartment because the officers entered without a warrant.  The trial court denied King’s motion because it agreed with the State that exigent circumstances existed that allowed for the search without a warrant.  The trial court also found that the smell of marijuana gave officers probable cause that justified the warrantless search.  King pled guilty but reserved the right to appeal the decision on his suppression motion.  On appeal, the court of appeals disagreed with the trial court that the smell of marijuana justified the warrantless search.  The court, however, did find that exigent circumstances did exist to justify the search and that the officers did not create the exigency.  King appealed again, and the Kentucky Supreme Court reversed the lower courts’ decisions and suppressed the evidence because of the illegal entry.

Court’s Analysis.  Police may not conduct a warrantless search of a residence unless there is both probable cause and exigent circumstances.  Both sides actually agreed there was probable cause in this case (officers would have got a warrant had they sought one) so the question for the Kentucky Supreme Court was whether exigent circumstances existed that justified the warrantless search.   Further, the exigent circumstances could not have been created by the officers.

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Are individuals expected to obey every order from law enforcement?   Further, do we obey orders because we are “consenting” or because we feel obligated to do so?   Those issues are difficult to work out since most people in society feel compelled to obey an order from an officer.  And, we as a society, expect such compliance.  Therefore, if a police officer directs an individual to go somewhere, whether it is in a vehicle or on foot, is that person not seized?  The Alaska Supreme Court believes so, under its Constitution

Read the opinion Majaev v. Alaska

Issue.  Is an individual seized when an officer directs him to back up his vehicle and the driver of the vehicle complies?

Background.  Alaska State Trooper Travis Bordner arrived at a site some underage drinking was going on.  When Bordner arrived on the scene, the partiers scattered into the woods.  While at the site, Bordner parked his car next to the Defendant, Anton Majaev.  Majaev drove away from Bordner who then went into the street to jot down Majaev’s license plate.  Majaev noticed the officer and stopped his vehicle.  Bordner waived Majaev back and Majaev complied.  Bordner smelled alcohol on Majaev’s breath and, after a series of field sobriety tests, arrested Majaev for driving while intoxicated.

Before trial, Majaev moved to suppress evidence of his intoxication since it was discovered during an illegal seizure.  The district court denied the motion because “[a] mere wave of the arm in not a means of physical force nor can it be considered a sufficient show of authority to make the reasonable person believe that he is not free to continue on his way.”  Majaev pled guilty but preserved the right to appeal the district court’s ruling on the motion to suppress.  The court of appeals affirmed the decision that no seizure occurred because “a reasonable person would not interpret Trooper Bordner’s actions as intent to restrain or confine.”  Majaev appealed and the Alaska Supreme Court overruled the lower courts’ decisions.

Court’s Analysis.  Both the United States and Alaska Constitution’s prohibit unreasonable searches and seizures.  Since Alaska’s Constitution provides broader protection than the U.S. Constitution, the Alaska Supreme Court analyzed the case under its own Constitution.

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