The Supreme Court Friday granted cert in Brendlin v. California, 06-8120, per SCOTUSBlog: “if police stop a car along the highway, does that result in detention of the passengers in the vehicle, for Fourth Amendment purposes, thus allowing them to contest the legality of the original stop. A divided California Supreme Court ruled that a Fourth Amendment violation resulting from an illegal traffic stop may be challenged only by the driver, not any passenger, since the passenger has not been ‘seized.'”

The California Supreme Court decision is People v. Brendlin, 38 Cal. 4th 1107, 45 Cal. Rptr. 3d 50, 136 P.3d 845 (June 29, 2006). Lexis Overview: “Because a deputy effected a traffic stop without any indication that defendant, the passenger, was the subject of his investigation or show of authority, defendant was not seized for Fourth Amendment purposes when the driver submitted to the deputy’s authority and stopped the vehicle; thus, defendant was not entitled to suppress evidence of drugs.” [The free link to the California Supreme Court opinion is now dead.]

Prediction and comment: Unless the Supreme Court parts with 90% of the existing state and federal authorities, this case will be reversed. A stop of a car is a seizure of the occupants. They may not having standing to challenge a search of the car they were riding in, but what happens when they are searched themselves as a result of an unlawful stop?

Officers responded to three calls about teenagers drinking in the backyard of a house. They responded and pulled up in front. As one approached, two teenagers drinking beer from clear bottles yelled “Cops!” and ran to where the others were to warn them, and the people in the backyard scattered. The curtilage is implied consent to approach on the curtilage, but the officers could pursue the fleeing drinkers into the backyard. Robinson v. Commonwealth, 2007 Va. LEXIS 14 (January 12, 2007):

IMPLIED CONSENT

The Robinsons argue that the Court of Appeals erred in holding that Officer Cox did not exceed the scope of implied consent to enter the curtilage of their home. The Robinsons do not challenge the doctrine of implied consent but, instead, challenge the standards for its application articulated by the Court of Appeals.

Elisa maintains that a police officer’s subjective intent at the moment of entry onto the curtilage of a dwelling is relevant in determining whether the officer acted within the scope of the officer’s implied consent. Elisa contends that “[o]ne impliedly consents only to the approach to the front door to knock and make inquiry.” Thus, she asserts, an officer has implied consent “to go to the entrance of the home only by the most direct route and only if he is acting in good faith to contact the owners of the property for a purpose such as asking questions of the occupants.”

George concedes that Officer Cox had implied consent to enter the driveway. George argues, however, that once Officer Cox was on the property and “actively searching for evidence of a crime within a constitutionally protected area,” Cox’s “legitimate reason” for entering the property, to contact the Robinsons, was “revoked,” thereby rendering Cox’s presence unlawful. George further argues that implied consent could not extend beyond the point where the path to the front door intersected the driveway absent the development of “a new legitimate reason.”

Both Elisa and George urge us to adopt a bright line rule that the scope of implied consent is limited to the most direct path to the front door of a dwelling to “knock and talk” with one of its residents. Elisa asserts that Officer Cox’s failure to comply with this rule rendered his initial entry onto the curtilage unconstitutional. George argues that Officer Cox’s actions became illegal when, after lawfully entering the property, he failed to proceed directly to the front door.

In resolving these issues, we first consider whether an officer’s subjective intent is relevant to a determination of whether the officer’s entry onto the curtilage of a dwelling was constitutional under the implied consent doctrine. Neither the United States Supreme Court nor this Court has addressed this question. We observe, however, that established jurisprudence concerning the constitutionality of police searches provides little, if any, support for application of a subjective standard in determining the constitutionality of an entry conducted pursuant to the doctrine of implied consent.

The United States Supreme Court has repeatedly rejected any consideration of the subjective motivation of a law enforcement officer in determining whether police searches were constitutionally infirm and, instead, has relied on an objective view of the facts and circumstances of each particular case. See, e.g., Arkansas v. Sullivan, 532 U.S. 769, 771-72 (2001) (reversing granting of motion to suppress based on officer’s alleged “improper subjective motivation”); United States v. Villamonte-Marquez, 462 U.S. 579, 584 n.3 (1983) (rejecting argument that search was unlawful because officers’ intent in boarding vessel was other than that contemplated by statute which authorized officers to board to examine vessel’s documentation); Scott v. United States, 436 U.S. 128, 138 (1978) (“[T]he fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action”).

We conclude that the holdings in the above cases, when considered collectively, counsel against consideration of a police officer’s subjective intent in determining the legality of the officer’s actions. Because a contrary interpretation of these holdings would directly conflict with the Supreme Court’s recent guidance in Stuart, we hold that the Court of Appeals did not err in concluding that Officer Cox’s subjective intent was irrelevant to a determination of whether he exceeded the scope of the implied consent in conducting the challenged search and seizures.

Comment: The issue was presented as first exceeding implied consent, but exigent circumstances was all the court really needed to talk about. This likely was the defense choice because the exigent circumstances issue was a sure loser, and the first argument at least gave a glimmer of hope. The court, however, could have just skipped the first issue and gone to the second.

Plaintiff’s decedent was shot 22 times fleeing police in Pomona, California. An excessive force action was filed in federal court under § 1983, and defendants prevailed. (Supplemental state claims were bifurcated.) Plaintiff then filed a state action based on negligence. “Based on the procedural circumstances of the case before us we conclude neither res judicata nor collateral estoppel preclude plaintiffs’ negligence action against the defendants on the theory defendants’ negligent conduct and violation of proper police procedures in effecting Hernandez’s arrest was the proximate cause of their use of deadly force against Hernandez.” Hernandez v. City of Pomona, 145 Cal. App. 4th 701, 51 Cal. Rptr. 3d 846 (2d Dist. December 6, 2006), noting conflicting authorities in note 6:

Mattson v. City of Costa Mesa (1980) 106 Cal.App.3d 441, 445-448, 164 Cal. Rptr. 913 (state court action barred by res judicata but not by collateral estoppel); Harris v. Grimes (2002) 104 Cal.App.4th 180, 186-187 (state court action not precluded by res judicata or collateral estoppel); City of Simi Valley v. Superior Court (2003) 111 Cal.App.4th 1077, 1082-1083 (state court action barred by res judicata).

The Second Circuit affirmed on Thursday the conviction of former law enforcement officers convicted of civil rights violations under 18 U.S.C. §§ 241 & 242 for falsifying information to get search warrants, fictitious informant payments, and stealing property from targets of search warrants. They were also convicted of using a firearm during a “crime of violence,” that is, the drawing of their weapons during the execution of a search warrant which is inherently violent. United States v. Acosta, 2006 U.S. App. LEXIS 29607 (2d Cir. November 30, 2006) (unpublished). This is an unpublished opinion, and the facts are abbreviated, but it is interesting still sheerly because of the fact a police officer was convicted for something that many narcs do without a second thought:

Both Skinner and Acosta claim that there was insufficient evidence to support their convictions for conspiracy to violate civil rights under color of law in violation of § 241. We disagree. At trial the government proved the substantive charges against Skinner and Acosta of violating civil rights under color of law, and aiding and abetting others in the commission of this crime in violation of § 242 and 18 U.S.C. § 2. The proof of these substantive charges constituted some of the proof of the § 241 conspiracy charges. This proof included, inter alia, evidence that (1) Skinner falsified information for at least five search warrants and submitted false informant payment forms; (2) Skinner and Acosta participated in obtaining and executing at least three search warrants based on false information; and (3) Acosta received stolen money from these searches and stole property during two of these searches. The government also presented evidence of additional conduct by Skinner and Acosta in furtherance of the conspiracy that was not a part of the § 242 offenses, including Skinner’s and Acosta’s participation in a warrantless raid of a hotel room and the execution a search warrant on a home, during both of which money was stolen, and Acosta’s stealing from a suspect during a traffic stop. Furthermore, the government presented evidence that Skinner, Acosta and their co-conspirators attempted to cover up the conspiracy, and agreed among themselves not to cooperate with the FBI. Viewing this evidence in a light most favorable to the government, a rational jury could have found beyond a reasonable doubt that Skinner and Acosta knew of the conspiracy to deprive persons of their civil rights, and knowingly and intentionally joined, and participated in, the conspiracy. See United States v. Morgan, 385 F.3d 196, 206 (2d Cir. 2004).

Skinner also claims that there was insufficient evidence to support his misdemeanor conviction under § 242 and § 2. This conviction was based on the discovery of a laptop computer in Skinner’s home that had been taken during the search of a suspect’s home. Skinner argues that there was no evidence that he acted willfully, because there was no proof that he removed the laptop from the suspect’s home. We disagree. The government presented evidence that (1) the laptop was found in Skinner’s home, (2) officers were overheard arguing over who would get the laptop, (3) Skinner had purchased personal accessories for this laptop, (4) Skinner was the officer in charge of securing evidence during this raid, and (5) Skinner’s superiors directly refuted his explanation that he had the laptop because he was analyzing it as part of an international drug investigation. A rational jury could have found beyond a reasonable doubt either that Skinner stole the laptop, or that he aided and abetted the theft of the laptop. See United States v. Labat, 905 F.2d 18, 23 (2d Cir. 1990).

Finally, Skinner argues that there was insufficient evidence to support his felony conviction for using or carrying a firearm during the commission of a crime of violence in violation of § 924(c), which was based on his underlying § 241 conspiracy conviction. Skinner essentially argues that, even though he was a police officer participating in the execution of search warrants and raids, the government presented insufficient evidence that he carried a firearm during these activities. We disagree. The government presented evidence that it was standard police procedure was for all members of a search team to have their weapons drawn and to keep them drawn while entering a location in connection with drug activity. This fact alone was sufficient for a rational jury to conclude beyond a reasonable doubt that Skinner used or carried a firearm in furtherance of the conspiracy.

Admitting that “this case stretches Leon‘s good faith exception to its elastic limit,” the Tenth Circuit finds the good faith exception saves a search without probable cause of a FedEx package, in part because the officer candidly included information that did not support probable cause showing the efforts to investigate. The District Court found no probable cause but good faith, and the Tenth Circuit, to its credit, fully analyzed the probable cause question first, agreeing with the District Court that probable cause was lacking. United States v. Reed, 195 Fed. Appx. 815 (10th Cir. November 30, 2006) (unpublished):

Our sequential analysis of the factors relied upon to establish probable cause should not be taken as a “divide-and-conquer” approach. United States v. Arvizu, 534 U.S. 266, 274 (2002) (rejecting “divide-and-conquer” approach to determining whether reasonable suspicion existed). We fully appreciate the synergy of disparate elements considered collectively and recognize our obligation to be guided by the totality of the circumstances. Whether considered individually or as an integrated whole, the facts presented do not amount to probable cause. Nevertheless, as we explain next, the evidence seized pursuant to the warrant need not be suppressed because the good-faith exception to the exclusionary rule applies.

The good faith exception was thoroughly analyzed and found to apply, apparently with some misgivings:

The affidavit in this case linked Reed to the envelope as Reed was its intended recipient. It also contained information linking the suspected criminal activity (transfer of contraband) to the envelope. The envelope contained characteristics which in Dunlap’s training and experience were associated with criminal courier activity. A previous package containing those same characteristics was found to contain counterfeit credit cards. And Reed’s criminal history was consistent with and supported the suspected criminal activity. Admittedly, this case stretches Leon’s good faith exception to its elastic limit, but a minimal (barely) nexus existed between the place to be searched, Reed and the suspected criminal activity.

This case also cited new F.R.A.P. 32.1 on the precedental value of unpublished opinions, even though new 32.1 applies to cases decided after January 1, 2007.

In a health care fraud investigation, the E.D. Pa., following Third Circuit precedent, evaluates the good faith exception first and finds that it applies. As to a particularity challenge, just because “agents conducting the search stripped her medical offices bare and took all of her patients’ files, including those from the spa and cosmetic business, financial paperwork, procedural manuals, and other documents” did not mean that the search was overbroad; it depends upon what is being investigated. United States v. Comite, 2006 U.S. Dist. LEXIS 84121 (E.D. Pa. November 17, 2006):

Initially, concerning particularity, Defendant asserts that while Yusuf notes “the government is to be given more flexibility regarding the items to be searched” in complex financial investigations such as money laundering, Yusuf, 461 F.3d at 395, the same is not true for a fraudulent claim case against a physician. The Court rejects this distinction and finds that an investigation into a physician making false claims to an insurance company can be just as, if not even more, complex than other financial-based investigations into federal crimes. See United States v. Christine, 687 F.2d 749, 760 (3d Cir. 1982) (“flexibility is especially appropriate in cases involving complex schemes spanning many years”). It is obvious from both the pretrial papers and the arguments made at the hearings before this Court that the government went through painstaking detail to gather the evidence that led to the search and grand jury indictment in this case. This is also reflected in the evidence submitted to the Court at the hearings, including the summary charts referenced above. Proving beyond a reasonable doubt that a physician committed fraud is not an easy undertaking, and investigators with probable cause must have the flexibility noted in Yusuf to complete their task.

Defendant is correct that Attachment B to the search warrant, which lists the types of documents to be seized, is very broad and includes, without limitation, all patient records. Defendant asserts that the agents should have selected specific patient files since the investigation by the agents had given them reason to know the names of the patients for whom Defendant made reimbursement requests when she was out of the office and for whom she upcoded the requests for reimbursement. Instead of making selective seizures of these records, the agents apparently took all of Defendant’s files and computers. The government does not dispute this fact, and the photographs taken of the Defendant’s office after the agents left corroborate Defendant’s account.

While this may seem overly broad in the abstract, the nature of the investigation allowed the government to secure and review data on all of Defendant’s patients. It was not required to limit its seizure to the specific patient records which a preliminary investigation had shown might show fraud. As in United States v. Christine, the warrant in this case does not “vest the executing officers with unbridled discretion to conduct an exploratory rummaging through appellees’ papers in search of criminal evidence.” 687 F.2d at 753. Instead, the warrant describes “in both specific and inclusive generic terms what is to be seized” as determined by the magistrate. Id. The Affidavit suggests Defendant had a pattern and practice of overcharging third-party payors on a regular basis. The extent of Defendant’s practice, even the total universe of her patients, may be probative as to Defendant’s intent or motive before a jury, even if there is no specific charge in the indictment with respect to every patient. Otherwise, the jury might not get a full picture of the Defendant’s intent, an element the government must prove at trial. Because of this, a more precisely enumerated list of items was not feasible. Even though the government had evidence that certain patient records were likely to show fraud, it could not know precisely what other documents and information would assist it in proving Defendant’s intent or motive. See United States v. Rankin, 442 F. Supp. 2d 225, 230 (E.D. Pa. 2006).

Plaintiff, identified in the press as a possible serial killer because he refused to provide a DNA sample when he had an alibi which led to a search warrant for his DNA which was publicly filed, stated a claim for relief based on the affidavit for the DNA search warrant which failed to show probable cause. The plaintiff was cleared two months later when the DNA did not match. Also, his shoe size did not match the suspect’s footprint. The police had a tip line, and plaintiff’s name was provided by two anonymous sources. The officer threatened plaintiff with disclosing that he was uncooperative with the press if plaintiff did not consent, and he still did not. Kohler v. Englade, 470 F.3d 1104 (5th Cir. November 21, 2006).

“Plaintiff alleges that the confiscation of his religious materials [in prison] constitutes a ‘cruel and unusual seizure.'” This fails to state a claim for relief. Kitchen-Bey v. Hoskins, 2006 U.S. Dist. LEXIS 84090 (W.D. Mich. November 20, 2006).*

Motion to suppress denied in child porn case based on the affidavit. Probable cause was shown and the allegations of a Franks violation were not material enough to warrant suppression. United States v. Gaynor, 2006 U.S. Dist. LEXIS 83929 (D. Conn. November 9, 2006):

There is . . . a presumption of validity with respect to the affidavit supporting [a] search warrant.” Franks v. Delaware, 438 U.S. 154, 171, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). “In certain circumstances, however, a defendant may challenge the truthfulness of factual statements made in the affidavit, and thereby undermine the validity of the warrant and the resulting search or seizure.” United States v. Awadallah, 349 F.3d 42, 64 (2d Cir. 2003). “However, every statement in a warrant affidavit does not have to be true.” United States v. Canfield, 212 F.3d 713, 718 (2d Cir. 2000) (internal quotation marks omitted).

The Bush Administration has agreed today to allow the Foreign Intelligence Surveillance Court to do its job and monitor surveillence, according to the NYTimes.com, and posted within the last hour: White House Says Judiciary Will Monitor Spy Program:

The Bush administration, in what appears to be a concession to its critics, said today it will allow an independent court to monitor its warrantless electronic-eavesdropping program.

Attorney General Alberto Gonzales told the leaders of the Senate Judiciary Committee that the Foreign Intelligence Surveillance Court, created by the Foreign Intelligence Surveillance Act of 1978 to supervise anti-terrorism wiretapping within the United States, will supervise the eavesdropping operations from now on.

The attorney general sought to portray the administration’s change of posture as anything but grudging. “In the spring of 2005 — well before the first press account disclosing the existence of the Terrorist Surveillance Program — the administration began exploring options” for seeking such approval, he said.

As the Devlin kidnapping case unfolds, one cannot yet tell from the news stories (see NYTimes.com and CNN.com) whether a search warrant was used for the entry into the apartment where the boys were found. The Times article talks about a “hunch,” but the hunch was what led the officers to keep Devlin under surveillance. When they decided to confront Devlin as he was taking out the trash, his demeanor was at first friendly and cooperative and then turned “180 degrees.” That would potentially be reasonable suspicion at the least. Devlin’s vehicle matched the description of the kidnapper’s vehicle. But, according to the news articles, they did not enter: they called the FBI which came out. Apparently the FBI made the entry.

Did they need a warrant to enter? Cases generally hold that officers may enter with probable cause but without a warrant where they are seeking to rescue a kidnapping victim. Wedgeworth v. State, 610 So. 2d 1244 (Ala. Crim. App. 1992); State v. Hatter, 342 N.W.2d 851 (Iowa 1983); Oliver v. United States, 656 A.2d 1159, 1167-68 (D.C. App. 1995):

Other jurisdictions have reflected these unique qualities of kidnapping in holding that kidnapping may create exigent or emergency circumstances, even without direct evidence of a threat of bodily harm to the victim. See People v. Thiret, 685 P.2d 193, 200 (Colo. 1984) (en banc) (finding exigent circumstance when a “three-year-old child had recently been abducted, her life could well have been in danger, and the Sheridan police were engaged in efforts to determine her whereabouts”); Benefiel v. State, 578 N.E.2d 338, 345 (Ind. 1991) (finding emergency situation when a 17 year-old kidnapping and rape victim’s life is in danger), cert. denied, 504 U.S. 987, 112 S.Ct. 2971, 119 L. Ed. 2d 591 (1992); Johnson v. State, 554 P.2d 51, 54 (Okla. Crim. App.) (finding exigent circumstances in kidnapping case in “hopes of saving a human life” when police suspected that elderly man being held in a trunk of an automobile during cold days), cert. denied, 429 U.S. 943, 97 S. Ct. 364, 50 L. Ed. 2d 314 (1976); People v. Diaz, 170 A.D.2d 618, 566 N.Y.S.2d 391, 392 (N.Y. App. Div. 1991) (finding emergency situation when father allegedly kidnapped four-year-old son because the “safety of the child was potentially in jeopardy”), appeal denied, 588 N.E.2d 762 (1992).

A recent case in our neighboring jurisdiction involved a report that a man and woman had been missing for eighteen hours. Burks v. State, 96 Md. App. 173, 624 A.2d 1257 (Ct. Spec. App.), cert. denied, 332 Md. 381, 631 A.2d 451 (Md. 1993). An officer spotted the man’s car outside a motel room and through a gap in the curtains saw a fully clothed man and woman lying on top of one bed and a third person lying face down on the other bed; all three appeared to be asleep. 624 A.2d at 1267. The trial judge acknowledged that “there was no blood on the scene. There were no signs of injury or struggle. The room was not ransacked from anything that [the officer] could tell, nor did he have any information as to the identity of the perpetrator, or as to whether this person was armed.” 624 A.2d at 1270. Nevertheless the trial court ruled, and the appellate court affirmed, that for the officer “to have waited to get a warrant or to have called the room to say ‘are you all right in there’ would have been ill-advised, and may well have resulted in serious injury or escape.” Id. Thus, the officer’s warrantless entry was permissible under the exigent circumstances exception. Id.

When dealing with something as significant as a kidnapping victim inside, the quantum of probable cause for an entry effectively becomes a sliding scale: the greater the exigency, the easier it will be for any court to conclude there was probable cause. See Brinegar v. United States, 338 U.S. 160, 175 (1949) (“The standard of proof for [probable cause] is … correlative to what must be proved.”) which suggests this, and which Justice Jackson dissenting in Brinegar, at 183, admitted:

But if we are to make judicial exceptions to the Fourth Amendment for these reasons, it seems to me they should depend somewhat upon the gravity of the offense. If we assume, for example, that a child is kidnaped and the officers throw a roadblock about the neighborhood and search every outgoing car, it would be a drastic and undiscriminating use of the search. The officers might be unable to show probable cause for searching any particular car. However, I should candidly strive hard to sustain such an action, executed fairly and in good faith, because it might be reasonable to subject travelers to that indignity if it was the only way to save a threatened life and detect a vicious crime. But I should not strain to sustain such a roadblock and universal search to salvage a few bottles of bourbon and catch a bootlegger.

Also, remember that, under Illinois v. Gates, 462 U.S. 213, 238 (1983), probable cause is a “fair probability” on the totality of the circumstances. It is not “more probable than not.” Indeed, what would normally be “reasonable suspicion” might effectively become “probable cause” in a case like this; no matter that the question of probable cause for a warrantless entry is reviewed de novo on appeal. Orneleas v. United States, 517 U.S. 690 (1996).

The bottom line: Once this case is in court, all doubts will be resolved in favor of sustaining the entry.

Tuesday Update: The St. Louis Post-Dispatch reports today that Devlin refused consent to search.

Devlin refused to let officers check his apartment, which triggered surveillance that resulted in Devlin’s arrest Friday and the subsequent rescue of the boys.

An article yesterday reports that the police found child porn on his computer.

Presumably they had a warrant for the computer. The emergency exception only allows them to enter to look for a missing child, not conduct a wholesale search.

Defendant was suspended from his job for thirty days and then resigned. He made no effort to recover all his personal property from the City’s premises. Having resigned and not seeking recovery of his property, he had a reduced expectation of privacy in this workplace search. United States v. Venkataram, 2007 U.S. Dist. LEXIS 852 (S.D. N.Y. January 5, 2007):

Mr. Venkataram argues that he maintained a reasonable expectation of privacy in his offices at the time of the search on September 13, 2005, despite having already been suspended for thirty days and having resigned his position because, unlike the teacher in Shaul, he was not provided with an adequate opportunity to recover his personal property. (Def. Mem 15.) Specifically, Mr. Venkataram reads Shaul to require an affirmative invitation to recover personal property by a former employer before reasonable expectation of privacy is lost. (Def. Post-Hr’g Mem. 3, quoting Shaul, 363 F.3d at 183 (“‘Taken together the demand [for his school keys] and the invitation [to remove personal belongings from his classroom] served as constructive notice that Shaul could have no reasonable expectation of privacy in anything that he did not remove from his former classroom after that date.'”).) While undoubtedly a persuasive factor in Shaul for determining whether there was still a reasonable expectation of privacy, the case does not go so far as to require an employer to always provide an affirmative invitation in order for there to be sufficient notice that a privacy interest is being lost. The search in Shaul took place fifteen days after the teacher had been only suspended, while the search of Mr. Venkataram’s Bellevue office took place more than thirty days after he had been suspended, as well as after he had officially resigned.

While a reasonable expectation of privacy may continue to exist following resignation if there is no opportunity at all to retrieve personal items, see Shaul, 363 F.3d at 183 (holding that the suspended schoolteacher forfeited his privacy interest in items left in his classroom by failing to retrieve them on the opportunities afforded), those facts are not present here. Mr. Venkataram had ample opportunity to inform DOI or OCME by himself or through his counsel that he needed to recover personal property from his former offices. He could have done so the night he was suspended; instead, Mr. Venkataram only requested permission to take two items, and that request was granted. He also could have made a request at any time during the thirty days of his suspension, in his resignation letter, or following his resignation. In the absence of a request for an opportunity to retrieve his other belongings until this motion was made, the Defendant Venkataram’s motion to suppress physical evidence seized from his former OCME offices at Bellevue Hospital and 520 First Avenue is denied.

Habeas court in a § 2254 claim interestingly considers a Fourth Amendment claim under AEDPA’s “reasonable application” of federal law rather than under Stone v. Powell, and the court finds the state court determination reasonable. Washington v. Rowley, 2007 U.S. Dist. LEXIS 855 (E.D. Mo. January 8, 2007):

As such, the court finds that the State appellate court’s decision in regard to the issues raised in Petitioner’s Ground 1 is not contrary to federal law and that it is a reasonable application of federal law. See Arvizu, 534 U.S. at 273; Terry, 392 U.S. at 9-10; Wipf, 397 F.3d at 683-84; Lewis, 183 F.3d at 794. For the reasons fully set forth above, the court further finds that the State appellate court reasonably applied federal law to the facts of Petitioner’s case. As such, the court finds that Petitioner’s Ground 1 is without merit and that it should be dismissed.

Two alleged Hell’s Angels were stopped for speeding, and the officer photographed them as a part of the stop. The District Court found a triable issue on taking the photograph under a threat of arrest but granted the officer qualified immunity because no court has explained the scope of Atwater v. City of Lago Vista on a stop like this. Yezek v. Mitchell, 2007 U.S. Dist. LEXIS 778 (N.D. Cal. January 8, 2007).*

A criminal defense lawyer has a “different mission”FN1 in the justice system than lawyers in other legal proceedings.FN2 Sometimes prosecutors, police, and the public do not understand this different role. This is an effort to explain the defense lawyer’s duty as a whole in the context of suppression motions and hearings which are likely losing motions. As in determinations of guilt or innocence, that is not the lawyer’s call. If the motion is remotely colorable, defense counsel has the option of filing and pursuing it if there is a benefit to be derived for the client.

Justice White concurring and dissenting in United States v. Wade, 388 U.S. 218, 256-58, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), four decades ago brought into sharp focus the different role of defense counsel:

Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.

Most criminal defense lawyers subscribe to the philosophy of criminal defense that the Sixth Amendment duty of defense counsel imposes on defense counsel the obligation to zealously assert any ground or course of action that defense counsel believes is in the client’s interest, even if it means litigating a suppression motion that will surely lose and even would be arguably frivolous on the merits. This is a duty that extends to the client and the system of criminal justice as a whole. Moreover, the constitutional duty to the client can, in some situations, actually subordinate the ethical rules under the Supremacy Clause.FN4

Most also adhere to the philosophy of client centered, rather than system centered, representation.FN5 The system has a right to expect certain things from the criminal defense lawyer, but the client’s best interest is paramount, consistent with the criminal defense lawyer not committing a crime or fraud on the court.FN6

The Ethical Rule

The ethics rules recognize the tension between the duty to not file frivolous motions and the duty to the client under the Sixth Amendment. Consider Rule 3.1 of the Model Rules of Professional Conduct:

Rule 3.1. Meritorious Claims and Contentions.

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

Comment ¶ 3 to Rule 3.1 addresses this specific problem:

The lawyer’s obligations under this Rule are subordinate to federal or state constitutional law that entitles a defendant in a criminal matter to the assistance of counsel in presenting a claim or contention that otherwise would be prohibited by this Rule.

Therefore, just as the criminal defense lawyer may put the state to its burden of proving guilt of the accused, the ethical rule recognizes that a criminal defense lawyer may file motions that put the government to its burden of proof on suppression motions. That includes, I submit, challenging searches and seizures or statements of the accused, particularly where the government has the burden of going forward and to sustain the search (as in all warrantless searches) or statement. Both warrantless searches and statements of the accused carry a presumption of invalidity. This is no different than the presumption of innocence. So, why should the rule as to motions be different than guilt?

The Duty to Investigate Defenses

Defense counsel has a duty to investigate potential defenses and interview witnesses.FN7 The Supreme Court has made this clear several times. See, e.g., Wiggins v. Smith, 539 U.S. 510, 522-23, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003):

In highlighting counsel’s duty to investigate, and in referring to the ABA Standards for Criminal Justice as guides, we applied the same “clearly established” precedent of Strickland we apply today. Cf. 466 U.S., at 690-691 (establishing that “thorough investigation[s]” are “virtually unchallengeable” and underscoring that “counsel has a duty to make reasonable investigations”); see also id., at 688-689 (“Prevailing norms of practice as reflected in American Bar Association standards and the like ··· are guides to determining what is reasonable”).

In light of these standards, our principal concern in deciding whether Schlaich and Nethercott exercised “reasonable professional judgmen[t],” id., at 691, is not whether counsel should have presented a mitigation case. Rather, we focus on whether the investigation supporting counsel’s decision not to introduce mitigating evidence of Wiggins’ background was itself reasonable. Ibid. Cf. Williams v. Taylor, supra, at 415 (O’Connor, J., concurring) (noting counsel’s duty to conduct the “requisite, diligent” investigation into his client’s background). In assessing counsel’s investigation, we must conduct an objective review of their performance, measured for “reasonableness under prevailing professional norms,” Strickland, 466 U.S., at 688, which includes a context-dependent consideration of the challenged conduct as seen “from counsel’s perspective at the time,” id., at 689, (“[E]very effort [must] be made to eliminate the distorting effects of hindsight”).FN8

This duty can sometimes be fulfilled through filing motions that deal with the admissibility of evidence against the accused to commit the officers under oath as to what they know about the defendant and his alleged participation in the crime. The fact the police reports or even the defendant’s version suggest that the motion will lose should not even be determinative, but they both carry weight in defense counsel’s determination to go forward on a suppression motion.

The Constitutional Right and Duty to Present a Defense

Separate from the Sixth Amendment right to counsel is the due process right of the accused to be able to put on a complete defense. “The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State’s accusations.” Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973). Thus, “[f]ew rights are more fundamental than that of an accused to present witnesses in his own defense.” Id., 410 U.S. at 302.

The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.

Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). Accordingly, it is held that “the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’” Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984)); Holmes v. South Carolina, 126 S.Ct. 1727, 1729, 164 L.Ed.2d 503 (2006).

Thus, the duty to investigate plus the “meaningful opportunity to present a complete defense” means that defense counsel may choose to pursue motions that counsel believes will not win, just to test or better examine the prosecution’s evidence.

Pursuing the “Questionable” Suppression Motion

A criminal defense lawyer reads a case file, and, based on the police reports of a warrantless search, it appears that the search was justified. The client, however, provides a different factual scenario which, if true, casts doubt on the legality of the search. Moreover, consider that the search was warrantless which puts the burden of proof on the government to sustain it. Just because the police say it does not make it so. Some of us have been around long enough, and on the other side, to have had police officers caught in shading the truth. It happened to me as a prosecutor and I have caught police officers in “truth shading” in suppression motions. This hardly makes a motion “questionable,” just because defense counsel thinks that he or she will lose the motion.

Similarly, consider a statement taken of the accused. As a lawyer, you know that the police will most certainly find a way to make the statement sound voluntary, even when the client says that it is not. The burden is always on the government to prove that a defendant’s statement is voluntary on the totality of the circumstances.

Consider also the likelihood of a defense ulterior motive: The defense wants the opportunity to examine the police officers about the circumstances of finding contraband when the issue of the defendant’s actual or constructive possession may be present.FN9

It is submitted that it is ethical in all these situations, and constitutionally required, for criminal defense lawyers to file a suppression motion and go to a hearing, even when defense counsel thinks that he or she will lose on the motion, and even when the motion is ulteriorly a discovery device. As long as the action is justified by avoiding an ineffectiveness claim, it is permissible.FN10 Any sanctions against criminal defense lawyers would chill zealous and creative advocacy. If, after the suppression hearing, it is obvious that the defendant should plead guilty, then so be it. If that is the outcome, then the prosecutor and court should be pleased that the suppression motion brought about a guilty plea rather than an uninformed trial that produces a worse result for the defendant. If the suppression motion reveals that the officer knows far more or less than the reports of the search or the affidavit for the search warrant, then the defense may have something to work with at trial. As always, the client’s best interest is the ultimate determiner of whether to go forward at all. PRCDP § 9:6.

Ultimately, either way, that purportedly frivolous or “questionable” motion served to do justice. When a criminal conviction and loss of liberty is the ultimate stake in the outcome, the threshold of purported “frivolousness” should be considerably lower for all in the criminal justice system.

Footnotes:

FN1 See, e.g., Harry I. Subin, The Criminal Lawyer’s “Different Mission; Reflections on the “Right” to Present a False Case, 1 Geo. J. Legal Ethics 125 (1987); John B. Mitchell, Reasonable Doubts are Where You Find Them: A Response to Professor Subin’s Position on the Criminal Defense Lawyer’s Different Mission, 1 Geo. J. Legal Ethics 339 (1987).

FN2 See John Wesley Hall, Jr., Professional Responsibility in Criminal Defense Practice § 9:3 (3d ed. 2005) (PRCDP). See also www.LawofCriminalDefense.com.

FN3. The Sixth Amendment provides: “[i]n all criminal prosecutions, the accused shall … have the Assistance of Counsel for his defence.”

FN4. U.S. Const., Art. VI, cl. 2. My analysis of the criminal defense lawyer’s hierarchy of duties puts the Sixth Amendment first, other law (such as the criminal law) second, moral considerations third, and ethical rules fourth. PRCDP § 1:21.

FN5. PRCDP §§ 1:20-1:21 & 9:3.

FN6. PRCDP Chs. 3 & 9.

FN7. PRCDP § 9:19.

FN8 As to the duty to investigate potential defenses, see Alvord v. Wainwright, 469 U.S. 956, 959, 105 S.Ct. 355, 83 L.Ed.2d 291 (1984) (“The question is whether counsel had a duty to investigate his client’s case and make a minimal effort to persuade him to follow the only plausible defense. The question is not whether counsel has a duty to override his client’s wishes, or pursue fruitless investigations, thereafter.”); Strickland v. Washington, 466 U.S. 668, 682, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (“Having outlined the standards for judging whether defense counsel fulfilled the duty to investigate, the Court of Appeals turned its attention to the question of the prejudice to the defense that must be shown before counsel’s errors justify reversal of the judgment,” relying on Washington v. Strickland, 693 F.2d 1247, 1256-57 n. 23 (5th Cir. 1982) (on reasonable defense investigation) which it reversed). See also Rompilla v. Beard, 545 U.S. 374, 382-83, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005).

FN9. I have tried several losing suppression motions, knowing I would lose, solely for the purpose of learning exactly where the contraband was in relation to my client just because the police report was not clear on that point. At an NACDL meeting, I told a friend of mine that he had a case on Lexis that morning, and I told him the case name (it was the first he’d learned he’d lost). He allowed as how he filed the motion to smoke out a defense because the police reports were obtuse, and the suppression hearing, while a loser, gave him something to work with on the case.

Perhaps if law enforcement officers were more clear in their reports, they could prevent such a motion, but police officers and prosecutors think more alike than defense lawyers vís-a-vís prosecutors. I confess that, as a baby prosecutor, I did not fully understand defense counsel’s role. I had to be a defense lawyer for a while before I fully appreciated the weight of obligation that we carry. Prosecutors’ mistakes are remedied by the fact that the defendant, if a true criminal, will be arrested again and get his due (hopefully not committing a violent crime). Defense counsel’s mistakes end up in prison and filing IAC claims against the lawyer.

FN10. Restatement (Third) of the Law Governing Lawyers § 110 (2000), Comment f. See also Monroe H. Freedman & Abbe Smith, Understanding Lawyers’ Ethics 101-02 (3d ed. 2004) (also noting the absense of caselaw sanctioning criminal defense counsel for allegedly frivolous litigation, quoting In Re Becraft, 885 F.2d 547, 550 (9th Cir. 1989), noting absence of sanctions against criminal defense lawyers).

Note: This will be new § 3:11A in PRCDP.

Officers handcuffing of child during execution of a search warrant was potentially unreasonable because he was compliant and vastly outnumbered by police officers. The law was settled in this Circuit, and qualified immunity did not apply. Schafer v. El Dorado County, 2007 U.S. Dist. LEXIS 1336 (E.D. Cal. January 9, 2007).

The trucking industry is a closely regulated industry under Burger, and the stop of this truck was supported by the administrative scheme. Once stopped, the defendants were found to be in violation of the log book rules and driving without a license. That made the detention reasonable. After a safety inspection, during which the defendants acted a little suspicious, one defendant validly consented to a search that turn up 92 lbs. of cocaine. United States v. Delgado, 2007 U.S. Dist. LEXIS 1313 (S.D. Cal. January 5, 2007)* (Note: The stop was near Springfield, Missouri, so Missouri law was examined.).

Defendant consented to entry of dwelling for the purposes of children being gathered up and turned over to their mother. Drugs were found in plain view. Seizure was valid. United States v. White, 2007 U.S. Dist. LEXIS 1476 (W.D. Tex. January 8, 2007).*

Defendant waived search issues by his guilty plea, but he would have lost on the merits anyway. United States v. Sanchez-Polanco, 2007 U.S. Dist. LEXIS 1485 (S.D. Tex. January 8, 2007).*

In a habeas case, the petitioner claimed Stone v. Powell did not apply to harmless error analysis, but it was defaulted because it was not raised in the state PCR petition. Walker v. Miller-Stout, 2007 U.S. Dist. LEXIS 1351 (E.D. Wash. January 8, 2007).*

Qualified immunity defeated § 1983 action of alleged unreasonable search where plaintiffs did not show how it was unreasonable. Housley v. City of Edina, 2007 U.S. Dist. LEXIS 1502 (D. Minn. January 5, 2007).*

The SWAT team was ordered to enter at 5:50 a.m., and the entry occurred before 6:00 a.m. “Thus, the execution must have occurred sometime after 5:50 a.m.–close enough to the 6:00 a.m. hour to make any deviation from the warrant de minimis. See United States v. Twenty-Two Thousand, Two Hundred Eighty Seven Dollars, 709 F.2d 442, 448-49 (6th Cir. 1983).” The court also notes that it was not nighttime since sunrise at that locality, according to the United States Naval Observatory’s Sunrise Calculator, was at 5:49 a.m. Rodriguez v. Beninato, 469 F.3d 1 (1st Cir. November 14, 2006).

Ten seconds was a reasonable time between announcing and entry of a small motel room. State v. Johnson, 2006 NMSC 49, 146 P.3d 298 (October 17, 2006):

In the present case, the trial court found the following: (1) the size of the motel room was no larger than twelve feet by twelve feet; (2) the bed was within three or four feet of the door; (3) the officers knocked while announcing notice of presence, identification of authority, and statement of lawful purpose for at least ten seconds before using the battering ram; (4) Defendant must have been within twelve feet of the door at the time of the attempted entry; and (5) there was no response from inside the room during the entire time the officers were knocking and announcing. Based on these facts, the court found that there was constructive refusal to answer the door.

Note: 29 cases received today, 26 were updated citations.