Sunday, October 30, 2011

Pain pills subject to abuse: Tennessee ranks second in the nation in the number of prescription medications dispensed.

Knoxnews.com reports today what is increasingly obvious, that there is an alarming abuse of pain pill prescriptions in Tennessee.
Doctors in Tennessee alone prescribed more than 113 million oxycodone pills last year — Oxys, Roxies and others — according to the state Department of Health. That's equal to nearly 19 pills for every man, woman and child from Bristol to Memphis — and that doesn't count other oft-abused drugs such as hydrocodone, Xanax, methadone, Valium and Opana.
How much of a problem is this?  Well, as usual, look at the money.  An ordinary prescription from a pill mill (a doctor writing prescriptions that he shouldn't) averages about 250 pills per month. Street prices are about $20 per pill.  An office visit to a doctor that operates a pill mill is typically $250. That one visit can generate $5000 in gross sales on the street.  Profit is $4,750 form that single visit.  A dealer has other expenses: car, gas, travel and related needs.  Still the net profit runs more than $4000 for that one stop to the doctor and pharmacy.  In these circles people don't operate alone.  These are loosely organized conspiracies that typically involve 10 or more individuals.  The sources get the pills from pharmacies.  The pharmacies are supplied prescriptions by criminal dealers who source their prescriptions from rouge doctors (pill mills). In a very short period of time--days--these pills end up in the hands of hundreds of addicts on the street.


The Tennessean reports on this issue today:
The National Office of Drug Control recently named prescription drug abuse as the nation’s fastest-growing drug problem. Tennessee ranks second in the nation in the number of prescription medications dispensedThe law enforcement community supported the new regulations, which require pain clinics to be certified through the Health Department, outlaw cash transactions and subject medical professionals who work at illegal pain clinics to stiff civil penalties.But despite the new regulations, pain clinics continue to pop up in the Nashville area, and questions remain as to whether the state has the necessary resources to enforce the new rules.

Saturday, October 29, 2011

DUI forced blood draw expands in Tennessee

A new practice in DUI enforcement is now law.


After January 1, 2012 a forced blood draw will be the law for every DUI stop in three situations in Tennessee:  1. If the driver has ever been convicted for a previous DUI (this is new); 2. If there is a passenger in the car under 16 years old (this is new); and, 3. If there has been an accident causing injury (this has been the law for some time). In short, no consent is needed in any of the three situations listed above for law enforcement to take blood or a breath sample (officer's choice as to method) from a motorist suspected of DUI.
photo credit/yakkhapadma

The exact language of the statue says: 



(1) If a law enforcement officer has probable cause to believe that the driver of a motor vehicle involved in an accident resulting in the injury or death of another has committed a violation of § 39-13-213(a)(2), § 39-13-218, or § 55-10-401, the officer shall cause the driver to be tested for the purpose of determining the alcohol or drug content of the driver's blood. The test shall be performed in accordance with the procedure set forth in this section and shall be performed regardless of whether the driver does or does not consent to the test; or

(2) If a law enforcement officer has probable cause to believe that the driver of a motor vehicle has committed a violation of § 39-13-213(a)(2), § 39-13-218 or § 55-10-401 and has been previously convicted of § 39-13-213(a)(2), § 39-13-218 or § 55-10-401 the officer shall cause the driver to be tested for the purpose of determining the alcohol or drug content of the driver's blood. The test shall be performed in accordance with the procedure set forth in this section and shall be performed regardless of whether the driver does or does not consent to the test.

(3) If a law enforcement officer has probable cause to believe that the driver of a motor vehicle has committed a violation of § 39-13-213(a)(2), § 39-13-218 or § 5-10-401 and a passenger in the motor vehicle is a child under sixteen (16) years of age, the officer shall cause the driver to be tested for the purpose of determining the alcohol or drug content of the driver's blood. The test shall be performed in accordance with the procedure set forth in this section and shall be performed regardless of whether the driver does or does not consent to the test.

Wednesday, October 26, 2011

Sixth Circuit Reverses District Court's Refusal to Suppress Evidence Resulting From an Unreasonable Search and Seizure

The Sixth Circuit decided U.S. v. Gevoyl Beauchamp, yesterday. Beauchamp pleaded guilty to possession with intent to distribute crack cocaine but later appealed arguing that the District Court was wrong when it refused to suppress evidence of drugs found pursuant to a search of Beauchamp. Specifically, he argued that the search of his person was unlawfully conducted.  It was without reasonable suspicion.

At 2:30 am on February 15, 2008 law enforcement was patrolling near the Jacob Price housing project in Covington, Kentucky due to an increase in drug activity. Officer Dees saw Beauchamp talking with another individual. When Beauchamp saw the officer, he hurriedly walked away without making eye contact. Officer Dees told his partner, Officer Fain to stop the "suspicious subject." Officer Fain followed Beauchamp in his patrol car, parking next to an iron fence where Beauchamp stood. He told Beauchamp to stop and walk back towards his patrol car. The officer testified that he looked "very nervous, visibly shaking." Officer Fain asked Beauchamp where he had been and where he was going. Beauchamp gave vague answers but complied with the officer's requests. Officer Fain then frisked Beauchamp for weapons. While conducting the frisk, he asked Beauchamp if he had anything the officer should be aware of. Beauchamp replied that he did not. The Officer didn't find any weapons, but then asked Beauchamp if he could conduct a further search. Beauchamp said yes. Officer Fain noticed plastic hidden in Beauchamp's underwear.

Officer Dees then arrived and recognized Beauchamp from previous encounters. Officer Fain gave Officer Dees a look indicating he found something while conducting the search. Once Officer Dees began to search his pants, Beauchamp tried to run. He was stopped and Officer Fain found the plastic which contained rocks of crack cocaine.

Beauchamp filed a motion to suppress the evidence found from the search at trial, but the district court refused. He appealed to the Sixth Circuit Court of Appeals.

The Court began its analysis by stating that there are three different types of permissible encounters between civilians and police officers: 1) consensual encounters which may be initiated without any form of suspicion; 2) the investigative detention, which if non-consensual, must be supported by a reasonable, articulable suspicion of criminal activity; and 3) the arrest, valid only if supported by probable cause. Since the Fourth Amendment applies to all searches and seizures, the Court first analyzed whether the stop of Beauchamp was a seizure, warranting Fourth Amendment protection. A seizure occurs when, after looking at all circumstances surrounding the event, a reasonable person would have believed that he was not free to leave. The Court held that a reasonable person in Beauchamp's position would not believe that he was free to leave. He had been pursued by both officers and instructed to stop and walk back towards Officer Fain. After being pursued by both officers, Beauchamp would have been reasonable in believing that the two officers were targeting him, thus believing that he was not free to leave. The Court held that this was a seizure and that the seizure occurred once Beauchamp and Officer Fain spoke at the fence.

The Court then analyzed whether the officers had reasonable and articulable suspicion to stop and search Beauchamp. In order to do so, the Court had to examine the totality of the circumstances as they existed at the time of the stop. There were five facts the district court alluded to: that Beauchamp was 1) recognized by an officer from previous encounters, 2) at 2:30 in the morning, 3) in a housing project that was the source of many drug complaints, 4) with another individual, and 5) he hurriedly walked away from the police while avoiding eye contact.

The court stated that the first fact is not applicable to this analysis because Officer Dees only recognized Beauchamp after the search had already begun. The second and third facts, the court said, should be applied carefully. The Court explained that just because Beauchamp was in a drug-prone housing project at 2:30 in the morning, was not enough to establish reasonable suspicion of criminal activity. Officer Dees did not see Beauchamp engage in anything resembling drug activity; all he saw was Beauchamp with another person before he walked away. The fourth fact - that Beauchamp was seen with another person - is not indicative of criminal activity. The fifth fact - hurriedly walking away from the officer without making eye contact - is also not enough to establish reasonable suspicion. The Sixth Circuit has regularly held that merely walking away from the police, without any other suspicious conduct, does not establish reasonable suspicion.

Without reasonable suspicion, the search of Beauchamp was unlawful. The Court further held that although Beauchamp consented to a search of his person, consent that is obtained after an illegal seizure is tainted and does not justify a search. This rule was articulated by the United States Supreme Court and has been regularly applied in the Sixth Circuit.

Because the initial seizure was unlawful, the subsequent search of Beauchamp was unlawful regardless of his consent. Given this conclusion, the Court held that the evidence should have been suppressed. The Court reversed the District Court and remanded for further proceedings.


Tuesday, October 25, 2011

Three Candidates Recommended for Court of Criminal Appeals


The Judicial Nominating Commission met in Jackson today to interview eight applicants for the vacancy on the Court of Criminal Appeals created by the death of Judge J.C. McLin.


The Judicial Nominating Commission recommended the following candidates to Governor Bill Haslam:

1. Judge Bobby Carter, Jr.--Criminal Court Judge, Memphis
2. J. Ross Dyer--Senior Counsel Tennessee Attorney General
3. Judge Roger Page--Circuit Court Judge Medina, Tenn.

Federal Judge Bars Florida's welfare drug-test law

CNN reports that:
 
A federal judge has temporarily blocked a controversial Florida law requiring all welfare applicants to be drug-tested. U.S. District Court Judge Mary Scriven issued a temporary injunction Monday evening against enforcement of the law's "suspicion-less drug testing" of adults seeking federal welfare. The law went into effect July 1, but a single father and the American Civil Liberties Union contend in a lawsuit that the new law is unconstitutional and violates Fourth Amendment protection against unreasonable search and seizure. "Perhaps no greater public interest exists than protecting a citizen's rights under the constitution," the judge wrote, quoting a 1997 Hawaii case. Under the law, the Florida Department of Children and Family Services requires the drug tests of adults applying to the federal Temporary Assistance for Needy Families program. The aid recipients are responsible for the cost of the screening, which they recoup in their assistance if they qualify.

Monday, October 17, 2011

TN Supreme Court Affirms Defendant's Four Violent Felony Convictions


The TN Supreme Court decided today to affirm the conviction of Christopher Lee Davis for aggravated robbery, carjacking, attempt to commit especially aggravated kidnapping, and attempt to commit first degree murder. The Defendant was one of two men who pulled up to a car wash in Trousdale County planning to rob a man washing his car. The victim, Glen McDaniel, was approached by the two men wearing bandanas over their faces. Both men were African American, and both men were tall. The Defendant was wearing a red hat that had a depiction of a $100 bill embroidered on it. The two men forced Mr. McDaniel into his car, pointing a gun at him the entire time. He drove to an ATM where he was forced to empty his bank account. Mr. McDaniel was told to drive back to the car wash where he pleaded with the two men to take his car and leave him there. They refused. The Defendant first stated that Mr. McDaniel was going with them. At that point, the other man got a roll of black duct tape and began to bind Mr. McDaniel's arms behind his back. Mr. McDaniel then put up a fight. Because of the struggle, the Defendant exclaimed that he was going to kill Mr. McDaniel "right here!" Mr. McDaniel was able to get away on foot while the two men drove off in his Monte Carlo.

The next day, after obtaining a description from Mr. McDaniel of the two men and the Monte Carlo, officers found the car parked at a boat dock. They began the process of investigating the car when a white Crown Victoria slowly pulled into the parking lot where the Monte Carlo sat. According to officers the two men in the car were African American, and when they saw the officers, "they're eyes got as wide as saucers." They jerked the car in the opposite direction, back onto the road and turned around to head back the opposite way. One of the officers, Detective Tarlecky, suspected the people in the Crown Victoria to be the suspects because, in his experience, carjackers often leave cars in remote places only to come back and continue to strip the car of its parts. Detective Tarlecky felt he had enough reasonable suspicion to pull the Crown Victoria over. The driver of the car consented to a search of the car. Pursuant to that search, Detective Tarlecky found the key to the Monte Carlo. At that point, the officer arrested both men. A subsequent search of the Defendant's home also yielded various instruments of the crime including the hat, the bandanas, and the missing cd player from the Monte Carlo.

At trial, the Defendant was convicted on all counts. He was sentence to a total of 49 years in prison. These convictions were affirmed by the Court of Appeals. The Defendant argues, however, that the officer did not have reasonable suspicion to pull the car over. Thus, all the evidence recovered from the warrantless search should have been suppressed.

The Supreme Court stated that in order to determine whether the trial court was correct in concluding that the officer had reasonable suspicion to search the car, it must examine all the fact surrounding the situation. It stated that reasonable suspicion is a lesser standard than probable cause, and that it is "a particularized and objective basis for suspecting the subject of a stop of criminal activity." The Court agreed that the officer had reasonable suspicion. The facts that led to a reasonable suspicion included the general description of the suspects, the fact that the car had not been completely stripped of valuable items, the abrupt and evasive behavior of the Crown Victoria's driver, and the startled and suspicious demeanor of both occupants in the Crown Victoria. Given the totality of the circumstances, the Court explained, a rational trier of fact could have found that the officer had reasonable suspicion to search the car.

The other issue on appeal was whether the evidence presented at trial was sufficient enough to warrant a conviction for attempt to commit first degree murder. In order to satisfy the elements of attempt to commit first degree murder, the state must prove that there exists premeditation and that the Defendant had the intent to commit the crime. The Court again relied heavily on the specific facts to determine whether the intent to kill was present, including the fact that the Defendant pointed his gun at the victim the entire time, and also the fact that he stated he was going to kill the victim "right here." The Court also held that the Defendant's conduct was premeditated since he arrived at the scene with a gun and duct tape, expecting to use both items. A reasonable jury could infer from these facts that the Defendant had the intent to kill and that his actions were premeditated. This was enough to satisfy the TN Statute for attempt to commit first degree murder.

While the Court ultimately affirmed all four convictions, it remanded the case back to the trial court to determine if his sentence (a combination of periods of years of incarceration, some to be served consecutively and others to be served concurrently) was calculated correctly.

Thursday, October 6, 2011

TN Court of Criminal Appeals Upholds Suppression of Evidence Based on an Invalid Search Warrant

The TN Court of Criminal Appeals recently upheld the dismissal of all charges against Bob Spivey and Misty Buckner based on the suppression of all evidence that resulted from a search warrant executed on Misty Buckner's home. Both Spivey and Buckner were indicted with possession with intent to sell or deliver more than .5 grams of a Schedule II controlled substance, a class B felony. Both defendants moved to suppress all evidence obtained from a search of Buckner's home because the search warrant was unconstitutionally inadequate. The trial court agreed with the defendants and dismissed all charges, and the State subsequently appealed.

The search warrant described the target location as "506 Christie Street, a single story, single family dwelling with tan siding... it sits on the northeast corner of Christie Street and Brigance Avenue." The warrant was based on the information of an informant who saw a controlled substance inside the Buckner home. The 506 Christie Street property actually contains two buildings: one is tan and one is blue. Misty Buckner's home is blue. The tan building, having first been described as a detached garage, was actually occupied by another renter at the time of the search. The officer who sought to enforce the warrant, Officer McDowell, conceded that he misread the satellite pictures by labeling the house "tan", but that no one ever had any interest in searching the tan building in the first place. None of the officers entered or searched the tan building. Officer McDowell claims the only thing wrong with the warrant is it mistakes the color of the house.

The defendants argue, however, that the warrant is unconstitutionally invalid because it failed to distinguish the target building from the only tan building on the property. Because of this, the warrant authorized a search on the tan building, which was occupied by a person unrelated to this investigation.

The Court of Appeals started first by examining the rule used in the State of Tennessee regarding whether a warrant is unconstitutionally invalid. According to the Court, both federal and state laws require a warrant to "particularly" describe the place to be searched. The Supreme Court of TN has stated that the use of the word "particularly" shows that the legislature "intended the search warrant to be clear of ambiguity as to the place to be searched." This test ensures that the subject of the search does not endure an unreasonable search, and prevents the officer from searching the premises of a person unrelated to the matter by mistake.

The Court elaborated on a particular test that must be met to determine if the warrant is particular enough:

The requirement of a particular description of the place to be searched is met by a description which particularly points to a definitely ascertainable place so as to exclude all others, and enables the officer to locate the place to be searched with reasonable certainty without leaving it to his discretion.

Based on this test, the warrant is invalid because while it included an adequate description of the subject property, that same description authorized law enforcement to search the home of another. This is not particular enough under state and federal statutes.

The State further argued, using previous case law, that the defect in the warrant is "cured" by Officer McDowell's personal knowledge that the defendants lived in the blue building rather than the tan building. Previous cases have allowed this defense only when the officer personally knew or could prove that he was highly familiar with the area to be searched. While Officer McDowell may have known a little information about the property, the Court held that the record does not prove he had any personal knowledge of the property or the defendants.

After reviewing all the evidence and binding law, the Court affirmed the trial court's dismissal.

Sunday, October 2, 2011

Judge from Court of Criminal Appeals Points Out a Discrepancy in Various Statutes in the TN Criminal Code


JOSEPH M. TIPTON

In a concurring opinion to the Court of Criminal Appeals decision in  State v. Deandre Blake, Judge Joseph Tipton agreed with the Court's opinion, but elected to point out a possible discrepancy in various statutes in the criminal code. We think that these are important issues and ones likely to be revisited by the Court.

This case involved convictions by Blake for two counts of first degree murder committed in the perpetration of child abuse and child neglect. Blake argued on appeal that the evidence was not sufficient to uphold the convictions. The Court held that the evidence was sufficient to uphold both convictions.

Justice Tipton agreed but questioned the language of the provisions of the TN Criminal Code including: first degree murder, aggravated child abuse and aggravated child neglect. He emphasized the history of the Tennessee Legislature with regards to amendments to the felony murder statute. Specifically, in 1998, the legislature added aggravated child neglect to the list of predicate felonies in the felony murder statute. During that same year, the legislature amended the child abuse statute to include as a felony, "Aggravated Child Neglect." The intent of the legislature at this point was to "distinguish criminal conduct that caused injury to a child from criminal conduct that adversely affected a child's health and welfare by creating two different offenses, child abuse and child neglect."

However, in 2005, Justice Tipton explains, the legislature enacted a statute that penalized 1) treating a child in a way as to inflict injury or 2) abusing or neglecting a child so as to adversely affect the child's health and welfare." According to Tipton,
"to the present date, the felony murder statute retains the predicate felonies of 'aggravated child abuse' and 'aggravated child neglect' even though the offense of 'aggravated child neglect' contains the alternative that it may be committed through 'abuse."
Therefore, while the legislature seemed to include child abuse as a type of aggravated child neglect, the felony murder statute continues to separate both offenses.

Justice Tipton explained that while this is a blatant discrepancy, the standard of review requires the Court to presume that the legislature did not intend an absurd result and to avoid such result by reasonable construction, to the extent possible. In judging the evidence in the light most favorable to the state, the evidence was sufficient to prove that the Defendant abused the victim and that his beatings had an adverse effect on her health and welfare, and that she clearly suffered serious bodily injury. Therefore, as the statute for felony murder requires, the victim was killed in the perpetration of these acts.

It will be interesting to see when or if the legislature responds to this discrepancy.  Here it may not have made a difference in the end result, but clearly it could be problematic in future cases.
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