Basically Law

El-Shifa Pharmaceuticals v. United States – Do you remember when the United States during the Clinton Administration missile attacked that “baby-milk” factory in Sudan?  Well, the owner of the plant is trying to sue the United States in our courts for damages.  The Court of Appeals for the District Court agreed with other courts that the political question doctrine bars the courts from hearing the case.

Gonzalez-Fuentes v. Molina – The First Circuit finds that Puerto Rico did not violated the Ex Post Facto clause or the Plaintiff’s Due Process rights when Puerto Rico revoked electronic surveillance of the individuals and reimprisoned them for no reason other than they were mistakenly approved of the electronic surveillance program.

In re City of New York – The Second Circuit agrees with the City of New York that petitioners are not entitled to the “Field Reports” prepared by underground officers before the 2004 Republican Convention.  The Court believed the reports, which contained information regarding “threats” to security, would disclose police work and the information contained in them were already available to petitioners from other sources.

ACLU v. McCreary County – The Sixth Circuit will not allow the county to continue its display of the Ten Commandments with other legal documents.  Based on the nature of the controversy and history of the display, it is clear the purpose, even with the secular documents, is to promote religion.

Pollard v. The GEO Group – The Ninth Circuit finds that a prisoner has the right to sue employees of a privately run penitentiary for damages under federal law and in federal courts.

Comite de Jornaleros v. Redondo Beach – The Ninth Circuit finds that Redondo’s municipal code that prohibits the act of standing on a street or highway and soliciting employment, business, or contributions from occupants of automobiles in permissible under the First Amendment as a valid time, place, or manner restriction.

Childers v. Floyd – The Eleventh Circuit instructs the district court to grant the petitioner’s habeas petition because the trial court violated the petitioner’s Sixth Amendment right to confront witnesses when that court prevented the petitioner from questioning the State’s star witness on issues that would have challenged that witness’s credibility.

Danner Construction Co v. Hillsborough County Florida – The Eleventh Circuit finds the District Court erred in allowing an antitrust suit to go forward because the State actor was entitled to immunity since it was acting pursuant to purposeful anticompetitive state policy.

Cokes v. Virginia – The Virginia Supreme Court finds that the petitioner should have been allowed to withdraw his waiver of jury trial even though he asked for the withdrawal on the day his trial was scheduled to begin.

The Court’s analysis in this case may surprise many.  Despite the Prosecution’s broken promise, the Court is rather convinced of the Defendant’s guilt.  Still, the Court demands a new trial.  Why would the Court do such a thing?  Basically, the Court argues that the Defendant would have come up with another lie had it not been the Prosecution’s broken promise.  Is that really a ground for a new trial?  Or, more likely, is the Court punishing the Prosecution for such a blatant breach of its promise?

Read the opinion United States v. Liburd

Lorenzo Liburd was traveling from the Virgin Islands to Atlanta.  Liburd passed through Customs without incident.  When Liburd came to the Transportation Safety Administration’s checkpoint, the X-Ray machine detected two large organic bricksize masses in his bag.  Liburd claimed that the masses were cheese.  The agents seemingly accepted the response.  They also found a couple of bottles of shampoo and discarded them because they were not allowed on the flight.  Liburd was allowed to go.

But, while waiting in line for his flight, a TSA Agent approached Liburd for a random inspection.  As TSA agents began to search Liburd’s bag, Liburd muttered “there is something in my bag.”  And there was as TSA agents found two bricks of cocaine, each brick weighing a kilo.  Liburd was arrested and charged with possession with intent to distribute and with importation of a controlled substance.

During pre-trial discovery, the Prosecution noted that it might introduce Liburd’s comment about something being in his bag, but never noted the earlier claim that he had cheese in his bag.  Before trial, Liburd moved to suppress any statement he may have made before his arrest.  The Prosecution assured the Court that it would not enter into evidence any statement that Liburd made before being read his Miranda rights.

At trial, Liburd argued that someone had slipped the cocaine into his bag from the time that his bags went through the X-ray machine to when he was later stopped while in line.  The Prosecution sought to dispute this claim by noting and introducing evidence that Liburd had told the individual who X-rayed his bag that he had cheese in his bag.  Liburd objected and claimed that the masses that the agent saw was actually the shampoo he had trashed.  The first time the Prosecution mentioned the cheese comment, the Prosecution promised the judge that he would not make the same mistake, but he did.

The judge refused to grant a mistrial but told the jury, as a curative measure, to disregard any evidence with respect to Liburd telling agents that he had cheese in his bag.  Liburd was convicted and he appealed.

On appeal, Liburd argued that the Prosecution’s misconduct, of introducing evidence even though promising not to, violated Liburd’s Due Process right to a fair trial.  The Third Circuit Court of Appeals agreed.

Not all instances of prosecutorial misconduct (as occurred here) will rise to the level of a Due Process violation.  In some instances, a curative instruction will rectify the Prosecution’s conduct.  In others, the evidence may be so overwhelming that the conduct was harmless.

Such was not the case here.  The Prosecution claimed that it was not aware of the cheese remark before promising not to use any statement before the reading of Miranda.  The Court did not care.  Prosecutors often make promises not to introduce certain pieces of evidence, even evidence of which it was not aware.  Liburd created his entire defense based on the Prosecution’s promise of what evidence he would introduce.  Here, had Liburd known that the Prosecution still would introduce the cheese comment, he would not have claimed that someone slipped the drugs into the bag and that the masses were the shampoo because the jury would wonder then what the cheese was.  The Court writes:

But for [the Prosecution’s] promise, Liburd almost certainly would have chosen a trial strategy with a better chance of success, or might well have opted for a negotiated plea of guilty. Indeed, Liburd’s trial strategy must have been crafted with Potter’s promise in mind. . .

The Cheese Statement obliterated this theory. Evidence that Liburd had acknowledged having bricks of something in his bag all but disproved his claim that his bag contained only shampoo. Few juries, we imagine, would accept that a TSA inspector would mistake bottles of shampoo for bricks of cheese. If there was any room for doubt on this point, however, Grouby buried it when he testified that the bottles of shampoo in Liburd’s bag were not the same objects as the bricks of “cheese.” . . .

If Liburd appears guilty from this record, that may only be because he was lulled into pursuing a defense that was dead on arrival once Potter broke his promise. Potter’s broken promise literally “infected” everything that unfolded at trial with unfairness.

The Court found the Prosecution’s misconduct entitled Liburd to a new trial and ordered so accordingly.

The crazy Attorney General in Virginia, Ken Cuccinelli, has decided to make invalidating the individual mandate in the federal health care reform package his main goal as Attorney General (don't ask me what that has to do with crime in Virginia).

Well, we got a taste of Cuccinelli's argument why the individual mandate is unconstitutional, and his point makes almost no sense.  You can read his brief here.

Cuccinelli responded to several arguments, but the one that fascinates me the most, because it is the most difficult hurdle to overcome, is how the mandate is not regulating interstate commerce.  I mean, if the federal government has the power to prevent one from buying an item in interstate commerce (child pornography and drugs), why can they not force you to buy one?  Especially an item that causes others to pay more when you do not buy insurance.  Contrary to what Cuccinelli may claim, when one does not purchase insurance, it does not mean they are not affecting the market.

Anyway, here are some of Cuccinelli's points with respect to the Commerce Clause argument, and why they are a failure:

• Cuccinelli argues about the Boston Tea Party and how our founders revolted against a tax imposed by the British Crown.  Cuccinelli conviently ignores the fact that the founders were opposed to the taxation because they lacked representation.  The Health Care Reform Bill was passed by elected officials.  Also, the Constitution was written many years after the Boston Tea Party, so what does that have to do with what the Constitution means.  Anyone with any basic understanding of history knows that the Constitution was a departure from how the founders had initially envision the federal government (remember the Articles of Conferation).
• Cuccinelli defines what "commerce" meant with respect to our founders and never once said that "commerce" meant voluntary activity until the end when Cuccinelli summarized that commerce requires voluntary action. 
• Cuccinelli goes onto this history of the Lochner Era with no point other than to claim at the end that the commerce clause was never meant to apply to the mandate.  That was just conclusory.
• Cuccinelli, once again in a conclusory manner, claims that the mandate is not a way to regulate interstate commerce but part of the federal government's general police power.  I'd try to explain better but I do not get it.

Seriously, Cuccinelli is grasping at straws here, and the brief itself is really a shoddy piece of legal writing.  Virginia's should not be proud of the man they elected who is making a mockery of the office and using to pursue his political agenda.

Even though the concurrence was only a couple of pages in this case, I am inclined to buy into that argument.   In order for an officer to stop and frisk an individual, that officer must have reasonable suspicion that an individual is committing a crime (the frisk is for safety purposes).  How can an officer ever have reasonable suspicion that one is illegally concealing a firearm when one can carry a concealed firearm with a permit?  How can an officer know that an individual does not have the permit?  In any event, the per curium opinion still found that the officer did not have reasonable suspicion to frisk the individual.

Read the opinion United States v. Jones

Officer Paul Hasiak was patrolling a high crime area in Omaha, Nebraska.  While patrolling, the officer noticed an individual in a long sleeve hoodie clutching at something in the front pockets.  The officer, based on his specialized experience and training, believed that the individual, later identified as Fonta Jones, was carrying a gun in his pocket.  Officer Hasiak believed so because Jones was wearing a hoodie while the temperature was in the upper 60s and Jones was eyeing the officer as he drove in his cruiser.

Officer Hasiak stopped Jones and frisked him, and he found a gun in the front pocket of the hoodie and some ammunition in Jones’s backpocket.  The police later learned that Jones was a felon and the feds charged him with being a felon in possession of a firearm.  Before trial, Jones moved to suppress the weapon because it was seized during an illegal frisk.  [Jones also moved to suppress statements he made following the seizure of his gun and his arrest.  That issue is not argued because if Hasiak’s frisk of Jones was illegal, any statements made thereafter would also have been illegally obtained.]

The trial court actually granted Jones’s motion to suppress and the Government appealed.  The Court of Appeals for the Eighth Circuit upheld the trial court’s decision. 

In order for an officer to stop and frisk an individual (a Terry stop), a police officer must have reasonable suspicion.  Reasonable suspicion is, when examining the totality of circumstances, a police officer has a particularized and objective basis for suspecting legal wrongdoing based upon the officers own experience and specialized training to make inferences from and deductions about the cumulative information available.  While the suspicion need not rise to the level of probable cause, it must be more than a mere hunch.

Initially, the Government did not even argue what law Officer Hasiak suspected Jones of violating.  The Government, however, did eventually cite to Nebraska’s concealed weapon law.  That law criminalizes the carrying of a firearm in public without a permit.  Officer Hasiak suspected Jones of violating that law because he was clutching at an object the front pocket of his hoodie, he was wearing a long sleeve hoodie despite the warm and sunny weather, and Jones kept eyeing the police cruiser.

The Court found that those three pieces of information does not rise to the level of reasonable suspicion to stop and frisk Jones.  While Hasiak had claimed that he had found firearms on ten other individuals under similar circumstances, there were other tell-tale signs of carrying a firearm that were not present in this case, including running away, adjusting the grip in his pocket, walking with an unusual gait or turning the part of the body with the gun away from the eyes of the officer.

There was just not enough there for the officer to stop and frisk Jones.  Officer Hasiak would have been better served had he approached Jones and tried to engage him in conversation and then obtain the reasonable suspicion necessary to frisk Jones.  Officer Hasiak did not act as such, and, thus, the trial court was correct in suppression the firearm.

As noted above, one judge concurring in the decision, questioned whether an officer can ever have reasonable suspicion that one is illegally carrying a concealed firearm.  That justice writes:

But the question here is whether anyone reasonably suspected of having a firearm in his or her pocket or purse may be forcibly stopped and searched when the police have no particularized reason to suspect that the person is unlawfully carrying a weapon. No Eighth Circuit opinion has addressed that issue. In the one case upholding a stop based upon the criminal activity of carrying a concealed weapon, we emphasized that the officer also had reasonable suspicion the defendant “was too young to obtain a permit to carry a concealed weapon.” . . .

But giving police officers unfettered discretion to stop and frisk anyone suspected of carrying a concealed weapon without some particularized suspicion of unlawful carrying conflicts with the spirit of the amendment. It is also contrary to a basic purpose of the Fourth Amendment’s reasonableness standard -- to protect citizens from “the unconstrained exercise of discretion.”

In law school, I took a class involving issues of federalism and separation of powers.  On my exam, the professor asked about constitutional ways one branch can infringe on the other branches even though it breaks the spirit of the Constitution.  For example, what is to stop the President of the United States, as commander in chief, from marching the army on Congress?  In any event, the judicial branch has little at its disposal to check the other branches.  Granted, the judiciary can declare a law unconstitutional, but what if the other branches ignore the judiciary.  What if the judiciary claims that the separation of powers prevents the other branches from infringing on the judiciary’s domain?  That is what happened in the following case.  Should the judiciary dictate to other branches that it is infringing on its area of power?

Read the opinion Ohio v. Bodyke

Like every state, Ohio passed a sex offender registration law in the wake of the death of Megan Kanka in New Jersey.  Under that law, Ohio classified sex offenders into three different categories, and the offender’s requirements with respect to registration and related issue depends on the classification.  Later, the Federal government, in order to unify sex offender registration law, required states, in order to receive federal funds to fight crime, to pass a uniform registration and classification law.

Ohio complied and passed its own Adam Walsh law.  The law also had three different classifications of sex offenders.  The requirements with respect to each classification differed from what the previous law required.  Additionally, the law designated the Ohio Attorney General to reclassify sex offenders who had been classified after the adjudication under the previous law.  Reclassified individuals, who are now subject to more stringent laws, sued and claimed that the reclassification violated the ex post facto clause of the Ohio Constitution.  Instead of addressing the ex post facto argument (since courts have continuously upheld sex offender registration laws against ex post facto challenges), the Ohio Supreme Court invalidated those sections of the law reclassifying sex offenders because it violated principles of separation of powers.

Even though the Ohio Constitution does not specifically address the separation of powers, the doctrine is implicitly embedded in the framework of the Constitution.  The essential principle underlying the policy of the division of powers of government into three departments is that powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments, and further that none of them ought to possess directly or indirectly an overruling influence over the others.

When the judiciary is going to assert that another branch is infringing on its power, it must do so sparingly.   Still, the courts must guard against the other branches from reviewing judicial decisions or reopening final judgments.  The Ohio law infringes this basic tenet of the separation of powers.

Individuals had already been classified as sex offenders through court actions.  These classifications result in different registration requirements for these individuals.  It also allows for how long one must register as a sex offender.  The reclassification puts a greater burden on these individuals, and all contrary to a court order.  As the Court notes:

The legislative attempt to reopen journalized final judgments imposing registration and community notification requirements on offenders so that new requirements may be imposed suffers the same constitutional infirmity. It does not matter that the legislature has the authority to enact or amend laws requiring sex offenders to register or that the current Sex Offender Act does not order the courts to reopen final judgments.  The fact remains that the General Assembly cannot annul, reverse, or modify a judgment of a court already rendered.

Instead of declaring the entire Adam Walsh law unconstitutional, the Court just severed those provisions giving the Attorney General the power to reclassify sex offenders from the bill and invalidate them as unconstitutional.  Thus, sex offenders classified under the old law will be classified as such. 

The reason so many people accused of child molestation seem to serve so little time is that the cases are hard to prosecute.  Child victims do not make the best witnesses, and when there is no physical evidence of abuse, the case becomes more difficult to win.  The following case demonstrates the difficulty.  The only evidence of abuse was the accusations from the children.  But, were the children coached?  Those examining the children testified at trial that they believe the children.  That vouching for the veracity of the children was too much for the Oregon Supreme Court.

Read the opinion Oregon v. Lupoli

Tyler James Lupoli worked as a salesman at a gym.  Lupoli was not the best employee.  He did not make many sales and he would roam the gym.  There was a child care center at the gym for parents to drop off children while they worked out.  Occasionally, Lupoli would hang out in the child care center.  The center had continuous video surveillance and there were always gym employees, other than Lupoli, there to watch the children.

One day, a child who was dropped off the center complained to her mother that she did not want to go back to the center.  When pressed by her mother, the child claimed that Lupoli had asked her what kind of underwear she wore.  Further questioned, the child claimed that Lupoli asked to see her underwear and vagina. 

Officers began to investigate whether Lupoli had attempted to or actually abused other children at the gym.  The officers found two additional children who claimed to have been sexually assaulted (though they never named Lupoli) at the child care center.  A fourth child was found.  That child never claimed to have been sexually abused, but video tape from the gym showed Lupoli near the child, and nothing more.

Lupoli was charged on two counts of first degree sexual assault, and two charges of attempted first degree sexual assault.  At Lupoli’s trial, none of the children testified to the assault.  Physicians and others who examined the children following the allegations did testify.  These individuals testified, over Lupoli’s continual objections, that these children did not show signs of being coached, used age appropriate terminology, and appeared to be truthful.  Lupoli was convicted on all four charges.

Lupoli appealed and claimed that the trial court erred when it did not sustain Lupoli’s objections to the improper vouching done by those who examined the children.  The Oregon Court of Appeals upheld the trial court’s decision without an opinion.  The Oregon Supreme Court, however, reversed the decision.

[With respect to the fourth child, who never claimed to have been abused, the Court found that there was not sufficient evidence to sustain the attempt charge.  All the video showed was that Lupoli played ball with the child and was close enough to possibly have tried to assault the child.  But, attempt of a crime actually requires a “substantial step” toward committing the crime, and the evidence, even when construed in light most favorable to the State, failed to demonstrate any substantial step.]

As for the convictions relating to the other three children, the Oregon Supreme Court found that the trial court erred in allowing for these experts who examined the children to vouch for the veracity of the children.  In other contexts, it may be appropriate for experts to explain how they reached their conclusions, which may include that the children did not exhibit signs of coaching, or that their answers were age appropriate.  But, it was not appropriate in this case.  There was no physical evidence of abuse.  Despite the taping of everything that occurred in the child care room, there was no evidence of abuse.  All the evidence was the claims of the children (who did not testify) and the testimony of child care workers who claimed that they believed the children were telling the truth.  Witnesses cannot testify to the veracity of other witnesses.  Since the trial court erred in allowing such veracity, the Court had no choice but to vacate Lupoli’s convictions.

United States v. White - The Fourth Circuit finds that Virginia's common law approach to battery, which may include mere touching other than "physical force", prevents the feds from using such a conviction to prosecute one for possessing a firearm after being "convicted in any court of a misdemeanor crime of domestic violence."

Harrington v. County of Suffolk - The Second Circuit finds that individuals do not have a property interest in an inadequate police investigation.  Thus, plaintiffs did not have a claim for relief against the police who did not property investigate their son's fatal traffic accident.

Indiana v. Richardson - The Indiana Supreme Court agrees with the trial court that Indiana's Seatbelt Enforcement Act precluded police officers from questioning the bulge in the driver's pocket after pulling him over for not wearing his seatbelt.

Miller v. Sanilac County - The Sixth Circuit is going to let a jury determine whether the defendant, a county police force, can be held liable for malicious prosecution after an officer arrested an individual for driving while intoxicated even though he blew a 0.00% BAC.  The Court was not entirely convinced that the officer was truthful when he claimed that he smelled alcohol in the driver's breath (the fact that the driver blew a stop sign on an icy road does not mean he was drunk), but that will be for the jury to decide.

City of Barberton v. Jenney - The Ohio Supreme Court finds that, as long as the officer is properly trained, an individual can be convicted of speeding based on that officer's unaided visual estimation of the driver's speed.

West Virginia v. Dellinger - West Virginia's highest court finds that the defendant is entitled to a new trial because one of the jurors failed to inform the court that the juror knew the defendant and several of the witnesses in the case.  The failure to disclose deprived the defendant of a fair trial by an impartial jury.

When a minor is adjudicated delinquent, the primary goal is rehabilitation.  All parties involved, including the State and the parents, need to be a part of this rehabilitation.  But, how much of a burden should be placed on parents for having delinquent children.  In this case, there was evidence that the parents used or had used drugs in the home.  Thus, as part of the child’s probation, the parents were required to undergo urinalysis or face contempt charges.  Such a condition was too much for the Idaho Supreme Court.

Read the opinion Idaho v. Jane Doe and John Doe

The minor daughter of Jane and John Doe had admitted to petit theft.  The daughter was place under informal probation pursuant to the Juvenile Corrections Act.  As part of the probation, an investigation uncovered that the Does had a long history of drug use and abuse, and the mother was on probation for a drug charge.  Therefore, the magistrate required the parents to undergo urinalysis as part of the daughter’s rehabilitation process.

Both Does later signed written admissions that they had use marijuana following the terms of their daughter’s probation.  The magistrate was prepared to find the parents in contempt but changed his mind because the parents had fulfilled the terms of the probation (being subject to the test – there was no punishment for testing positive).  In addition, the daughter had violated the terms of her informal probation.  So, the magistrate had decided to put the daughter under formal probation and require the parents to undergo urinalysis and to promise not to do illegal drugs.

The Does refused to agree to the terms of their daughter’s formal probation.  Instead, they claimed that the magistrate lacked the statutory authority to impose such conditions on them and that, if the magistrate had such authority, requiring them to undergo urinalysis is unconstitutional under the Fourth Amendment.  The Idaho Supreme Court found that although the magistrate had statutory authority to require the Does to undergo urinalysis, such a condition violated the Fourth Amendment.

For Fourth Amendment purposes, a urinalysis test is a search.  Therefore, the search must be reasonable.  A reasonable search requires a warrant supported by probable cause unless a recognized exception applies.  In this case, there was no neutral judge issuing a warrant, so a recognized exception must apply for there not to be a Fourth Amendment violation.  The Court analyzed whether the “special needs” exception applies.  The “special need” exception is that the search is done because it is beyond the normal need for law enforcement which makes the warrant requirement impracticable. 

In order to determine whether a special need exempts the search from the warrant requirement is determined by balancing the intrusion into the individual’s Fourth Amendment interest against the State’s interest.  With respect to the individual’s Fourth Amendment interest, the Court examines the weight and nature of the privacy interest.  The intrusion itself was not that extraordinarily invasive, especially since there was no evidence that the Does were required to provide the urine sample in front of government officials.  At the same time, the Does did not have a diminished expectation of privacy because their daughter happened to be on probation.  There are several situations in which one may have a diminished expectation of privacy - such as children in schools, prisoners, and people on probation – but this is not one.

All acknowledged that the State had a great interest in the rehabilitation of the minor.  Such rehabilitation does require the parents to provide a stable home environment without the presence of illegal drugs.  Still, a State’s overriding interest will not trump the individual’s privacy right when the State’s primary purpose in requiring the urinalysis is indistinguishable from the general interest in crime control.  Simply, is the purpose of forcing the parents to refrain from drug use and taking urine tests crime control?  The Court found that it was.  Since the Does could be found in contempt for testing positive or refusing the drug test, and contempt carried with it a possible $5000 fine and 5 days in jail, there is a crime control component to the terms imposed on the Does.  This is not allowed under the Fourth Amendment.

In summary, the Court found that the special needs exception to the warrant requirement did not apply to the magistrate’s requirement that the Does undergo urinalysis because the Does do not have a diminished expectation of privacy in providing urine and the search primarily furthers the State’s interest in law enforcement.  Unless there is a warrant, the Does need not submit a urine sample.

Okay, it totally did not go down like that.When you read the facts of the case, you may get the impression that something does not seem right.  I got that impression – although it does help that I live in the District.  Maybe, the officer was trying to shake the kid down, or the officer just went too far in trying to trick the juvenile into admitting to another crime.  It is tough to patrol high crime areas where there are drugs and guns (why do the two always go hand in hand and why are we continuing this war on drugs?) .  In any event, the officer’s actions led to this juvenile, who was probably dealing drug, getting off. 

Read the opinion In re T.L.

T.L. is a juvenile who was adjudicated delinquent for disturbing the peace and possession of drugs with intent to distribute.  T.L. was hanging out on a corner in a high-crime area in the District of Columbia around 11:30 at night.  A police officer, Robert Elliott, came upon the individuals hanging out on the corner, but everyone left but T.L.  Elliott asked T.L. what he was doing and whether he had any drugs.  T.L. responded that Officer Elliott knew him, that he had no drugs and that he could search T.L. if he chose.

Elliott felt a wad in T.L.’s pocket and pulled it out.  The wad was over $900 in cash.   Elliott asked T.L. from where he got the money and T.L. claimed he earned it from his job at McDonald’s.  Still, Elliott told T.L. that he is taking the money and that T.L. would have to produce a paystub and he might get it back.  T.L. began to scream for Elliott to give his money back and called out to his mother to help him.  Elliott told T.L. to quiet down.  Individuals who lived nearby came out to see what was going on.  Fearing for his safety, Elliott arrested T.L. for disturbing the peace.

A search of T.L. was conducted pursuant to the arrest, where a decent amount of crack cocaine was discovered.  T.L. was tried, as a juvenile, for both disturbing the peace and the possession of drugs with intent to distribute.  As noted above, T.L. was adjudicated delinquent on both charges.  On appeal, T.L. argued that the drugs were discovered pursuant to an illegal search.  Since Officer Elliott had no grounds to arrest T.L., the subsequent search was illegal and the evidence seized as a result should be suppressed.  The D.C. Court of Appeals (not to be confused with the federal D.C. Circuit Court of Appeals) agreed with T.L.

In deciding this case, the Court had to examine D.C.’s disturbing the peace statute.  The statute reads:

Whoever, with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned thereby: (1) acts in such a manner as to annoy, disturb, interfere with, obstruct, or be offensive to others; (2) congregates with others on a public street and refuses to move on when ordered by the police; (3) shouts or makes a noise either outside or inside a building during the nighttime to the annoyance or disturbance of any considerable number of persons; (4) interferes with any person in any place by jostling against such person or unnecessarily crowding such person or by placing a hand in the proximity of such person’s pocketbook, or handbag; or (5) causes a disturbance in any streetcar, railroad car, omnibus, or other public conveyance, by running through it, climbing through windows or upon the seats, or otherwise annoying passengers or employees, shall be fined not more than $ 250 or imprisoned not more than 90 days, or both.   

This case involved the third circumstance (shouting and/or making noise).  Anytime there is a disturbing the peace statute based on noise, the First Amendment is implicated.  Further, this statute also requires the intent to breach the peace.  T.L. argued that this intent to breach the peace meant that T.L. was yelling in order to incite individuals to criminal or violent activity.  The Court rejected T.L.’s argument and held that the statute does not require an individual to incite individuals.

What about the noise?  The First Amendment allows for the government to impose reasonable time, place and manner restrictions.  For example, it would be appropriate for the government to punish those yelling political views at 3 a.m. in the morning in a neighborhood as people are trying to enjoy the privacy of their homes.  At the same time, all loud noises in the middle of the night cannot be punished.  It would be reasonable for an individual to scream “fire” or to yell at as a result of a crime, even if it is 3 a.m. 

Ultimately, the standard the Court applied is whether T.L. was reasonably loud under the circumstances.  The Court found that T.L. was behaving reasonably.  Even though Elliott had T.L.’s permission to search T.L., Elliott did not have permission to seize T.L.’s money without a warrant.  Further, Elliott did not have probable cause to seize the money.  It is not unreasonable for T.L. to believe that Elliott was just taking his money and for him to call out for his mother to help him.  The Court writes:

T.L.’s aggrieved and vehement response to the officer’s provocation was entirely foreseeable. From his perspective, T.L. was confronted with “an unexpected development urgently requiring a prompt response” – or in other words, an emergency – when Officer Elliott unlawfully confiscated his money and led him to believe he would have a hard time recovering it. Because it was a police officer whose wrongful action created the emergency in the first place, it is understandable that T.L. did not appeal to the other officers in the vicinity to assist him. The futility of such an appeal is indicated by the fact that Officer Johnson, who heard T.L.’s protests and came running, supported his fellow officer. We cannot fault a sixteen-year-old in these circumstances for loudly objecting and calling for his mother to come and stand up for his rights before the police departed with his money.

Since T.L. did not breach the peace, that charge must be dismissed.  Still, there was the issue of the drug charge.  Even though T.L. should not have been arrested for breaching the peace, the government argued that Elliott was reasonable in his arrest and that suppressing the drugs was not required.  (Good faith exception to the exclusionary rule)  The Court did not agree.  While an officer’s reasonable mistake of fact may serve as reasonable suspicion or probable cause to conduct a search, a reasonable mistake of law cannot.  In this case, Elliott’s error was of law.  The exclusionary rule is well tailored to hold officers for mistakes of law and that is what the Court ordered in this case.  The search of T.L. that discovered the drugs was illegal and exclusion would prevent similar situations in the future.  Thus, the drugs must be suppressed, and without the drugs, the adjudication against T.L. on the drug charges cannot stand.  That charge was also dismissed.

Many would wonder why or how someone could confess to a crime that he did not commit.  Can the interrogation process be so stressful that some suspects will just tell the police what they want to hear?  And, once the police get a confession, the investigation is over.  It is difficult to be found not guilty of a crime to which you had previously confessed without compelling evidence to the contrary.  It is no wonder that defense attorneys attempt to prevent these confessions from being entered into evidence.  And, you cannot blame these attorneys, especially with the police who will trick suspects and bend the constitutional rules.  Here the police went too far.

Read the opinion Ross v. Florida

Blaine Ross was convicted of first degree robbery and the murder of his parents, Richard and Kathleen Ross.  Richard and Kathleen Ross were murdered in their bedroom on January 7, 2004.  It was their son, Blaine, who called 911 to report the murder. 

Police investigating the case began to put the story together.  On the night of January 6, Blaine’s girlfriend, Erin, claimed that she went to bed alone around 10:30 to 11:00 at night, but awoke the following morning to find Blaine there.  The two of them intended to travel some distance to purchase some drugs.  But, Blaine was not able to access funds from his mother’s ATM card.  Blaine tried to claim that he was on the account, but the bank would not comply with his request for funds.  As a result, Blaine returned home where he found his parents dead.  The police investigating the case questioned Blaine who did not recall many details.  Police became suspicious of Blaine after they learned of his attempts to obtain funds, an I.O.U. that Blaine had signed that was prepared by his mother, and the fact that the pants that Blaine was wearing on the night of the murder contained blood stains.  Further, there were no signs of forced entry, it appeared that the bat used to bludgeon the Ross’s came from Blaine’s bag and that Blaine’s fingerprints were on the door and near the baseball bag. 

The police believed that Blaine had a financial motive to kill his parents.  On January 9, Blaine went down to the police station in order to get a pair of shoes from the victim’s advocate office (Blaine had no shoes and could not get into his home since it was a crime scene.)  Officers, who had questioned Blaine several times since the murder realized that this might be the last opportunity they would have to question Blaine before he got a lawyer.  Officers asked Blaine if he minded being questioned.  Blaine complied and was brought into a small room where officers questioned Blaine for hours before advising him of his Miranda rights.

The interrogation before the Miranda warnings were more adversarial as officers asked Blaine about the discrepancies in his story.  They furthered pressed Blaine about the blood stains on his pants and how they could not get there except if Blaine had been the murdered.  Blaine started to believe that he must have killed his parents although he could not remember it.  Then, officers advised Blaine of his Miranda rights and Blaine waived such rights.  Blaine recalled more of the murder and even admitted to things he did not do, such as steal his mother’s jewelry.

Blaine was arrested for murder and tried.  Blaine moved to suppress his confession because it was the product of unconstitutional questioning.  The trial court denied his motion and Blaine was convicted.  Following a sentencing hearing, Blaine was sentenced to death and he appealed his case on several issues.  On appeal to the Florida Supreme Court, that Court agreed with Blaine that his confession was illegally obtained, that its use was not harmless error and that Blaine was entitled to another trial.

The Court examined the jurisprudence involving interrogations in similar situations.  The Court recognized that there are situations where a suspect may confess to the police without the reading of Miranda rights and the confession is admissible.  This is true in cases where the suspect was not in custody or where the suspect offered the information.  The confession can be admitted even if police later read the suspect his Miranda rights and obtain the same information.  At the same time, the Courts disapprove of situations where the police specifically structure an interrogation in order to get a confession before the reading of the Miranda warnings and then read them for some curative effect.

Examining the totality of circumstance in this case, the Court found that the police’s action was more closely related to the latter than the former.  First, the Court had to determine whether Blaine was in custody at the time of his questioning.  For Miranda purposes, an individual is in custody if, given the circumstances surrounding an interrogation, a reasonable person would have felt that he was not free to terminate the interrogation and leave.  Factors to consider include:

1. The manner in which the police summon the suspect for questioning
2. The purpose, place and manner of the interrogation
3. The extent to which the suspect is confronted with evidence of his guilt
4. Whether the suspect is informed that he is free to leave the place of questioning

Weighing these factors, the Court found that Blaine was in custody.  While Blaine had willingly gone to the police station and to be questioned, the other factors weighed heavily that Blaine was in custody.  Blaine was interrogated in a small room that was witnessed by several officers.  The interrogators confronted Blaine with evidence of his guilt, specifically the blood stains on his pants.  Further, the officers intended to get a confession from Blaine before he lawyered up and never told him that he was free to go and did not allow him access to family members.  Under such circumstances, and the fact that Blaine was young and had no experience with the police, a reasonable person would believe that he is not free to end the interrogation and leave.  Thus, Blaine was in custody at the time he confessed.

Since Blaine was in custody, any statements made before his Miranda warnings were read were inadmissible.  What about those statements made after Blaine waived his Miranda rights?  The Court had to examine whether Blaine effectively waived his Miranda rights.  Did Blaine knowingly, intelligently and independently waive his rights?  Under the circumstances of the case, the Court found that Blaine had not effectively waived his rights.  When the police delay the reading of Miranda rights, the courts, looking at the totality of circumstances examine the following in order to determine whether a suspect waived his Miranda rights:

1. Did the police use improper and deliberate tactics in the administration of the Miranda warnings in order to obtain an initial statement
2. Did the police minimize and downplay the significance of the Miranda rights once they were given, and
3. The  circumstances surrounding both the warned and unwarned statements including the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and second [interrogations], the continuity of police personnel, and the degree to which the interrogator‘s questions treated the second round as continuous with the first.

Examining the totality of circumstances, the Court concluded that Blaine did not waive his Miranda rights.  The police admitted that they wanted to get a confession from Blaine before they questioned him without reading his Miranda rights.  In fact, the police violated their own internal procedures regarding the administering of Miranda.  Additionally, when the police finally did inform Blaine of his Miranda rights, they downplayed their importance by claiming it was nothing more than a matter of procedure and that he was not going to be arrested at the time.  Further, the police did not stop the interrogation when Blaine hesitated in speaking and the police reminded Blaine of his previous, pre-Mirandized statements so as to give the impression that remaining silent would be futile.  Finally, there was no break in the interrogation before and after Miranda.  The setting was the same, the same officers were involved, and the post Miranda questioning fed off information obtained before Miranda.  In sum, Blaine did not effectively waive his Miranda rights and any confession from the post-Miranda interrogation could not be used at trial.

The trial court erred in allowing Blaine’s admissions into evidence since they were illegally obtained.  Considering the nature and number of the admissions, the Court concluded that it was not harmless error to admit these statements and Blaine was entitled to a new trial.