Yell loudly if you want to remain silent

Today, the United States Supreme Court, by a 5-4 vote, placed the burden on the defendant to speak up and "unambiguously" assert his or her right to remain silent. According to the Court, simply remaining silent (for nearly three-hours) does not make it clear to the police that a defendant might really wish to remain silent. The case is Berghuis v. Thompkins.

Justice Sotamayor, in a powerful dissent, observes that this ruling turns Miranda precedent upside down—where in the past the prosecution had to meet a “heavy burden…to demonstrate the defendant knowingly and voluntarily waived his privilege against self-incrimination and his right to counsel”—now the burden is shifted entirely to the defendant. All that the prosecution must show is that the warnings were provided to the defendant—if that is done, then waiver will be presumed absent an explicit and unambiguous assertion.

This is a great result for obtaining confessions. But, it is also a terrible green light to abusive and unfair police practices. It also bodes ill for all other forms of constitutional waivers—where once the burden was on the government to prove a citizen waived a right, now it would appear the burden will be on all of us to clearly, loudly, unambiguously and explicitly assert our rights, or forever lose them…

Padilla v. Kentucky – Advice to Non-U.S. Citizen Client

Last week in Padilla v. Kentucky, No. 08-651 (March 31, 2010), the United States Supreme Court held that the Sixth Amendment right to counsel contemplates that effective representation of the non-citizen defendant includes advising that defendant of potential immigration consequences stemming from a criminal conviction. Mr. Padilla was a lawful, permanent, resident alien who had resided in the United States for forty years and had served in the U.S. Armed Forces during the Vietnam War; he faced deportation following his guilty plea to the offense of transporting a large amount of marijuana. Mr. Padilla’s defense attorney not only failed to advise him of deportation consequences, but inaccurately told Mr. Padilla that he “did not have to worry about immigration status since he had been in the country so long.” The U.S. Supreme Court held that Mr. Padilla’s attorney gave deficient advice to his client. The gist of the U.S. Supreme Court opinion is:

Immigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward (as it is in many of the scenarios posited by JUSTICE ALITO), a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.

So my dear colleagues, be sure to determine your client’s immigration status and whether a conviction could or will result in deportation. A good place to start is Title 8 U.S.C. section 1227, entitled “Deportable Aliens.” It should be noted that immigration law can be confusing and ambiguous (the U.S. Supreme Court says as much in Padilla), so you might refer your client to an immigration lawyer or seek advice from one on your client’s behalf.

Court Does Not Assume Resale from Vague Allegation of “Marijuana Plants”

In another search warrant case from the Court of Criminal Appeals, State of Tennessee v. Jody D. Bearden, 2010 WL 481199 (Tenn. Crim. App. Feb. 11, 2010), where a police officer claimed in his search warrant application (an application requesting a search of the defendant’s computer for evidence of drug trafficking) that the officer “recognized the odor of marijuana” and “observed marijuana plants growing in a closet“, the Court found these facts insufficient to support a finding that the defendant was selling, as opposed to merely using marijuana. The Court reasoned:

The State argues that the trial court overlooked the fact that Agent Mann saw marijuana plants, rather than “a couple of joints or baggies of marijuana that could more likely be associated with the [D]efendant's personal use.” We disagree; the trial court specifically mentioned that Agent Mann saw “plants” but that he failed to note how many. The State also asserts that “Agent Mann specifically noted in the affidavit that he suspected the [D]efendant may be involved in drug trafficking.” Again, we disagree; although Agent Mann stated that he was aware of certain facts about drug traffickers' tendency to keep business records and cash on hand, he did not state that his observations and law enforcement experience led him to believe that drug trafficking was taking place at the Defendant's residence.

Even if he had, however, we agree with the trial court that the facts included in Agent Mann's affidavit were insufficient to establish probable cause to search the Defendant's computer. Agent Mann's affidavit merely states that he “recognized the odor of marijuana” and “observed marijuana plants growing in a closet.” He did not specify how many plants he observed, nor did he specify their size. He also did not include any other facts supporting a belief that the Defendant was engaged in drug trafficking. In our view, Agent Mann's affidavit does not provide a substantial basis for the belief that the Defendant was trafficking in marijuana, as opposed to growing it in small quantities for his personal use. The trial court did not err in holding that the issuing judge lacked a substantial basis for finding a fair probability of drug trafficking evidence being present on the Defendant's computer.

State of Tennessee v. Jody D. Bearden, 2010 WL 481199, *2 (Tenn.Crim.App. Feb. 11, 2010) (emphasis added).

This case is interesting for several reasons: If you are a challenging a search warrant, this case indicates that a few plants (coupled with an odor of marijuana) does not support the inference of resale typically alleged by law enforcement in their boilerplate search warrant applications. This search warrant case, along with Archibald, decided about the same time, suggests that the assumptions alleged by law enforcement in their search warrant applications must be backed up with meaningful factual allegations. Additionally, the Court’s language acknowledging that just a few plants does not amount to resale could also be used to support an argument against a probable cause finding at a preliminary hearing, a motion for judgment of acquittal at trial or a sufficiency of evidence argument on appeal.

Justice Scalia rules for the defense

Justice Scalia rules for the defense and finds that a simple battery is not a violent felony, and is not a predicate for finding a defendant an “armed career criminal.”

Today in Johnson v. United States, Justice Scalia further restrained the government’s use of the armed career criminal enhancement found in 18 U.S.C. 924(e). In Johnson the government had attempted to have the defendant sentenced as an “armed career criminal” based on three prior violent felonies, two were not in dispute, but the last was a felony battery. Under Florida law, felony battery could be proven in one of three ways (two of which would arguably be violent offenses). However, the final statutory definition of battery was the “actual and intentional touching of another…against their will.” Justice Scalia held that “[s]ince nothing in the record of Johnson’s 2003 battery conviction permitted the District Court to conclude that it rested upon anything more than the least of these acts…his conviction was a predicate conviction…only if ‘[a]ctually and intentionally touch[ing]’ another person constitutes the use of ‘physical force’ within the meaning of §924(e)(2)(B)(i).” Justice Scalia then deferred to the Florida Supreme Court’s definition of battery, which included “any intentional physical contact, ‘no matter how slight’" and "The most ‘nominal contact,’ such as a ‘ta[p] . . . on the shoulder without consent.’” Justice Scalia found that this simply did not rise to the level of force required for a “violent felony” under 18 U.S.C. 924(e)(2)(B)(i). Rather, Justice Scalia held that “in the context of a statutory definition of ‘violent felony,’ the phrase ‘physical force’ means violent force—that is, force capable of causing physical pain or injury to another person.”

This opinion leads to at least three important points:

(1) So long as the record fails to identify which ‘form’ of an offense a defendant has been convicted of, the federal courts must presume he was convicted of the least serious ‘form.’

(2) Federal courts must defer to state court definitions of offenses.

(3) “Physical force” under 18 U.S.C. 924(e) means “violent force” which is capable of causing physical pain or injury.

Praise should go out to the Federal Public Defenders who won this victory: Donna Elm, Jim Skuthan, Rosemary
Cakmis, Lisa Call and Robert Godfrey. They have given us some very useful precedent.

Crime Rate Dropping??

According to the Tennessean, Nashville crime has fallen to its lowest level in thirty-one years.  Though I hate to be a naysayer, I wonder about the reliability of the statistics as reported.  Some of you may already be familiar with COMPSTAT, a statistics based approach to crime fighting employed famously in the fictional Baltimore Police of HBO’s The Wire.  Although I was generally a big fan of that show, I initially laughed at the two-dimensional plot-line involving the police:  A bully police chief fools the city into believing that crime is dropping by manipulating his computer program to spit out the stats he wants, all the while slashing the police budget by focusing resources on arresting street-level dealers (also called users) rather than engaging in real police work, i.e., fully funded, long ranging investigations which would  target high-level traffickers.  I thought the plot was absurd, because I thought no self-respecting city, which I know Baltimore to be, would (a) fall for such a buffoon of a police chief, or (b) give up its real police work to inflate statistics for short-term political gain.

Then I found out that the Metro Nashville Police Department had engaged the COMPSTAT program in its war on crime, which left me wondering where the similarities ended.  If you believe the Nashville Police Chief, and his press release repeated in the Tennessean, Nashville crime is low.  However, this recent New York Times article, in which retired police officers admitted that police officers, and even detectives, manipulated statistics under enormous departmental pressure, makes me question:  is crime really down?  Doesn't feel like it to me.  For a more thorough discussion of the reasons behind a more precipitous crime-rate drop, see Understanding Why Crime Fell in the 1990s: Four Factors that Explain the Decline and Six that Do Not by Steven D. Levitt

United States Supreme Court issues “Miranda” decision.

As the New York Times reported the U.S. Supreme Court has just issued an opinion approving a “watered-down” Miranda warning. In Florida v. Powell a 7-2 majority accepted this warning:

“You have the right to remain silent. If you give up the right to remain silent, anything you say can be used against you in court. You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview.”

The Florida Supreme Court believed that this warning did not meet the standard set by Miranda v. Arizona as it failed to inform the defendant that he had the right to an attorney present during questioning. Justice Ginsburg disagreed, and writing for the majority found that “A reasonable suspect in a custodial setting who has just been read his rights…would not come to the counterintuitive conclusion that he is obligated, or allowed, to hop in and out of the holding area to seek his attorney’s advice. Instead, the suspect would likely assume that he must stay put in the interrogation room and that his lawyer would be there with him the entire time.” Further, reiterating prior precedent: “The four warnings Miranda requires are invariable, but this Court has not dictated the words in which the essential information must be conveyed.”

The danger of this decision is not the slightly different language it accepts—it would appear highly unlikely that the modified warning would lead to large numbers of confessions. However, this opinion opens up a gray area between what a “reasonable suspect” may “assume,” and what a reasonable police officer is required to advise. The danger lies in how far future courts may stretch this gray area, and how reasonable they may expect defendants to be in their assumptions.

Great Search Warrant Case: Single Sale Alone is Not Enough for Nexus

With regularity, search warrants allowing police to search a home after someone engages in a single sale at the home, and nothing more, have been upheld despite arguments to the contrary. The problem, of course, is that that single sale does not indicate whether drugs would be located at the home in the future. Thus, previously, if a houseguest engaged in drug activity at your home, police believed that they had the right to search your home without having any reason to believe drugs were located there. After consistently raising this issue for years, I am thrilled that the Court of Criminal Appeals has spoken on this issue in a case from Division V of the Davidson County Criminal Court. Finally, we have a Tennessee case that supports the proposition that a single sale, with no other facts indicative of drug activity at the location, does not provide the requisite nexus to justify the issuance of a search warrant.

In State of Tennessee v. Robert Lee Archibald, Jr.,2010 WL 521030 (February 12, 2010), the Court of Criminal Appeals affirmed the trial court ruling granting Mr. Archibald’s motion to suppress and stated:

Although the affidavit in this case contained information establishing a nexus between the Defendant's apartment and criminal activity, it contained no information tending to establish how long that nexus would persist. It did not, for instance, contain any facts supporting an inference that the person who sold drugs to the CI was more than a one-time visitor to the apartment. Likewise, it did not establish that the CI observed any drugs other than the drugs he bought. Under these circumstances, we must conclude that the information in the affidavit became stale as soon as enough time had passed for such a one-time seller to leave the apartment.

State v. Archibald, supra, *2.

I am willing to bet that there are cases pending based upon evidence seized as a result of unconstitutional search warrants similar to Mr. Archibald’s. Check your search warrants my friends and file those motions to suppress.

Woo, hoo!!!!