Sixth Circuit Rules that Park Ranger Was Right to Detain Man Carrying AK-47

In Embody v. Ward the Sixth Circuit Court of Appeals recently ruled that a park ranger did not violate the rights of a man who wore camouflage and carried an AK-47-style pistol across his chest with a loaded 30-round clip in a Nashville park.

The gun toting man from Brentwood, Leonard Embody, sued park ranger Steve Ward for detaining him at the Radnor Lake State Natural area back in December 2009. Ward held Embody while he investigated whether the gun was legal and whether Embody had a permit to lawfully carry it. The investigation revealed that Tennessee law allows guns with barrels of less than 12 inches in state parks. Luckily for Embody, his gun just squeaked by, with his barrel a half-inch under the limit. The stupidity of the Tennessee legislature to pass such a law allowing a man to bring a AK-47 into a state park was not at issue.

Embody also painted the  tip of his gun orange, an attempt to make the gun look like a toy. The Sixth Circuit said that given this, “An officer could fairly suspect that Embody had used the paint to disguise an illegal weapon.”

The Court also mentioned the concern raised by other park-goers: evidently one person raised his hands in the air when he ran across Embody while two other park visitors came to Ward to say they were “very concerned” about the man. Later an elderly couple reported that a man was wandering through the park with an assault rifle. All of this was further evidence, according to the Court, that Ward behaved reasonably when detaining Embody.

The Sixth Circuit said that Embody’s detention was predictable and that Embody himself suspected it might happen which is why he carried an audio-recording device on his person. The Court clearly felt little sympathy for Embody, saying that having worked hard to appear suspicious, Embody cannot later complain because park rangers took the bait.

Full opinion can be found here.

U.S. Supreme Court to Rule on DUI Forced Blood Draws

By Jay Perry           

            The U.S. Supreme Court has just granted certiorari to hear an appeal to decide whether the police can force a suspected drunken driver to submit to a blood test without a search warrant.  The case is an appeal from a decision by the Missouri Supreme Court, Missouri v.McNeely, which held that in a typical DUI case the police must obtain a search warrant before forcing a suspect to provide a blood sample.  The State argued that the delay in obtaining a warrant would allow for the alcohol in a suspect’s blood to naturally dissipate and thus the “evidence” would be destroyed.  The question before the Supreme Court then is whether the “exigent circumstances” exception to the 4^th Amendment warrant requirement allows for the police to force a blood draw from a DUI suspect.    

            

            The decision by the Supreme Court will be very important because as it stands there is considerable variety in state laws regarding forced blood draws.  Here in Tennessee, there are currently a few situations in which the police can obtain a blood sample without either the suspect’s consent or a search warrant:

            1) the suspect is involved in an accident resulting in the injury or death of another;

2) the suspect has a previously been convicted of DUI, Vehicular Homicide by Intoxication, or Aggravated Vehicular Assault;

3) the suspect has a child passenger in the car under the age of 16.

In each of the three situations above, if police have probable cause to believe that a suspect has committed a DUI, they can force that person to give a blood sample without consent.

Even if one of the above situations isn’t present, a DUI suspect will still have to consider whether to provide a blood sample.  In Tennessee, all persons driving are presumed to have given consent to a test to determine the alcohol content of their blood.  Failure to provide either a blood or breath sample is a violation of Tennessee’s Implied Consent Law.  That provision (TCA 55-10-406), holds that refusal to submit to a blood alcohol sample is a violation of state law.  Importantly, a violation of the Implied Consent Law is not a criminal offense but does carry a loss of driving privileges for one year.    

The Supreme Court’s decision will answer the question of whether a forced blood draw violates the 4^th Amendment’s prohibition against “unreasonable searches”.  The constitutionality of the above Tennessee provisions will likely be affected by how they rule, and so the case merits attention.  Oral arguments will be scheduled sometime in early 2013.  

Recent incident shows that Tennessee bank robbery doesn’t pay

Authorities in Murfreesboro recently released images of an individual they say tried unsuccessfully to rob a local Bank of America branch. The police are investigating an afternoon attempted robbery in the area and believe that the release of the security camera footage will lead to the suspect’s capture. The police report reveals that the bank teller was threatened during the robbery and was asked to hand over $10,000.

The teller told the police officer that a white male wearing a gray hoodie approached her teller station and handed her a folded note. The note said, “Give me $10,000 and NO alarms.” The teller then began looking around to get someone’s attention, but no one noticed. While she was looking the suspect began saying “No. No. No” and, after getting more nervous, grabbed the note and ran from the building.

Turns out before embarking his bank-robbing spree, the man should have stopped to consult with the economists at the Royal Statistical Society and American Statistical Association. The two groups recently published a study on the economics of bank robbery and determined the crime doesn’t pay off in the end.

The researchers looked at the average loot from a bank robbery in the U.K. over a three-year period and found it came to only $31,786. Maybe not terrible, but not much given the risk associated with the crime. The researchers went further; determining that there were on average 1.6 robbers involved in each heist, which meant the total per robber came to only $19,865.

The numbers were even worse for American criminals, with the average robbery netting criminals only $4,330. Going one step further shows just how bad a decision bank robbery actually is. The group says that a full one third of attempted bank robberies failed, often resulting in lengthy prison terms, thus further diminishing any expected payout.

Read: “MPD seeking attempted bank robber,” by, published at DNJ.com.

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When GPS Tracking Violates Privacy Rights

For the right to personal privacy to survive in America in this digital age, courts must be meticulous in applying longstanding privacy protections to new technology. This did not happen in an unfortunate ruling last month by a three-judge panel of the United States Court of Appeals for the Sixth Circuit.

The case concerned a drug conviction based on information about the defendant’s location that the government acquired from a cellphone he carried on a three-day road trip in a motor home. The data, apparently obtained with a phone company’s help, led to a warrantless search of the motor home and the seizure of incriminating evidence.

The majority opinion held that there was no constitutional violation of the defendant’s rights because he “did not have a reasonable expectation of privacy in the data given off by his voluntarily procured pay-as-you-go cellphone.”

The panel drew a distinction between its ruling and a ruling by the Supreme Court last January in United States v. Jones, which held that the placement of a hidden device on a suspect’s car without a valid warrant violated the Fourth Amendment. The three-judge panel said that its case, in contrast, did not involve physical trespass on the suspect’s private property. The judges also asserted that the tracking in the case before them was not sufficiently “comprehensive” to be “unreasonable for Fourth Amendment purposes” and trigger the need for a warrant — even though the police tracked the defendant’s every move for three days, hardly a negligible time period.

The Jones case suggests that the Supreme Court’s future direction may be more protective of privacy in cases involving new and potentially invasive technologies. In two concurring opinions in that case, a majority of justices agreed that “longer-term” GPS monitoring impinged on expectations of privacy.

As Justice Sonia Sotomayor stressed in her concurrence, “GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” If anything, tracking someone using cellphone GPS capabilities is even more invasive than following someone with a GPS device attached to a car since it allows for 24/7 coverage. Most people carry their phones wherever they go, including into their homes.

The circuit court panel majority concluded that because the defendant’s phone emitted information that could be picked up by law enforcement agents, he had no reasonable expectation of privacy and thus no warrant was needed to conduct the surveillance. This was at odds with yet another Supreme Court ruling, in 2001, involving a thermal-imaging device aimed at a private home from a public street.

Carrying a cellphone should not obliterate privacy rights or the Fourth Amendment’s warrant requirement. The full Sixth Circuit should grant a pending request for a rehearing and reverse the panel’s damaging ruling.

Editorial in Sunday, September 23, 2012 New York Times

Study Highlights Harm Done by Felon Disenfranchisement Laws

This election year voting rights laws have turned into a heated issue as civil rights groups and state legislatures fight over photo ID requirements. While that issue has received a lot of attention, the larger problem of felon disenfranchisement laws has attracted less concern despite the potential millions of votes at stake.

According to the nonprofit organization VOTE, individuals in Tennessee who have been convicted of a felony are ineligible to vote while incarcerated, on parole, or on probation. Those people convicted since 1981- except for some felonies such as murder, rape, treason and voter fraud - may apply to the Board of Probation and Parole to have their voting rights restored once their sentence is completed. However, their felony charge remains on their records even if their application is approved. As of July 1 of this year, one-time felons also can restore their rights by expunging the charge from their records.

While the law in Tennessee is relatively straightforward, that is not the case across the country. Instead, a patchwork of restrictions exist which prevent nearly 5.85 million people with felony convictions from voting. A report released by The Sentencing Project, a Washington, D.C., criminal justice reform advocacy group, reveals that the laws also disproportionately affect some races more than others.

Highlighting the varied laws, a felon in Maine is allowed to vote from prison using an absentee ballot, while a felon convicted of the same crime in Florida might never be allowed to vote, even after having been released from prison. Laws vary widely across the country dealing with how felons lose their voting rights and under what circumstances they can be restored. In Mississippi, there are 22 categories of crime that result in disenfranchisement. Timber larceny is included on the list while manslaughter is not. Adding even more hoops to jump through, the state laws say that felons who want their voting rights back must be approved by a two-thirds vote in both houses of the legislature, and the governor can then either sign or veto the measure.

Those people who are eager for legal reform argue that voting is a crucial step in integrating criminals back into their communities. They point out that voting is a critical part of citizenship and disenfranchising millions of people is not a good way to make people productive members of society.

Advocates for legal change point out that minorities are far more likely to be affected by these laws than white criminals. Given that black people make up 12.6 percent of the U.S. population, but 37.9 percent of those in federal and state prisons, an overwhelmingly large number of black people are denied the right to vote when compared to other races.

Disenfranchisement also impacts the national political debate by removing millions of possible constituents from the voter rolls. Things like welfare reform and progressive taxation are all issues that affect this group of citizens, but their voices will not be heard given current laws.

Attempts have been made to rectify the situation, with legislation being proposed in Congress to create a national standard. Just this year Democrats introduced the Voter Empowerment Act which proposed sweeping changes in how federal elections are conducted and would let felons who are out of prison vote in federal elections. The measure went nowhere as politicians eager to seem tough on crime defeated it.

Read: “Should felons vote? In some states, it's easy. In others, impossible,” by Maryann Batlle, published at NBCNews.com.

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Supreme Court Affirms Judgment Against Georgia Crematory Operator For Intentional Infliction of Emotional Distress Resulting from Mishandling of Corpse

09/21/12
Nashville, Tenn. – The Tennessee Supreme Court today upheld the jury verdict against T. Ray Brent Marsh, operator of the Tri-State Crematory in Noble, Georgia, resulting from Marsh’s mishandling of a corpse.

In February of 2002, authorities discovered that Marsh had not been cremating bodies that were sent to Tri-State for cremation, but rather burying or dumping the bodies on Tri-State property. The investigation recovered bodies and body parts of approximately 230 persons in widely varying states of decay. Dr. Rondal D. Akers, Jr. and Lucinda Akers sued Marsh for mishandling their deceased son’s body, which had been sent to Tri-State for cremation, alleging intentional infliction of emotional distress and claims under the Tennessee Consumer Protection Act and bailment. The jury awarded Dr. Akers damages in the amount of $275,000 and Mrs. Akers damages in the amount of $475,000.

In a unanimous opinion authored by Justice Sharon G. Lee, the Tennessee Supreme Court ruled that the evidence supported the jury verdict for intentional infliction of emotional distress. The Court affirmed the dismissal of the Tennessee Consumer Protection Act and bailment claims. The Court found no error in the trial court’s jury instruction that the jury could draw a negative inference from Marsh’s invocation of his Fifth Amendment right against self-incrimination and refusal to answer questions during his pre-trial deposition in this civil case.

To read the Rondal Akers v. Prime Succession of Tennessee opinion authored by Justice Sharon G. Lee, visit http://www.tncourts.gov/sites/default/files/akersrondal

TN Supreme Court Reiterates Definition of “Serious Bodily Injury”

The Tennessee Supreme Court ruled in a recent opinion, State of Tennessee v. Michael Farmer and Anthony Clark, that a gunshot wound is not necessarily the same thing as a serious bodily injury. The state’s high court clarified the legal standards in an opinion published late last month in the case of two men found guilty of especially aggravated robbery for shooting a man in the leg during a 2008 Memphis robbery.

The victim, Terrell Westbrooks, was shot while trying to flee from the two burglars who burst into an apartment where he and a friend were illegally purchasing prescription painkillers. Westbrooks testified that he did not at first realize he had been shot, a through and through injury that left surprisingly little damage. In fact, Westbrooks said that he was treated at a hospital and released in around an hour.

The opinion, written by Justice Sharon G. Lee, said the prosecutors failed to show that Westbrooks was at risk of dying, lost consciousness or suffered extreme pain, disfigurement or substantial impairment. Those are the standards spelled out in the state statutes that define serious bodily injury. Tenn. Code Ann. § 39-11-106(a)(34) states that  “serious bodily injury” is defined as “bodily injury that involves: (A) A substantial risk of death; (B) Protracted unconsciousness; (C) Extreme physical pain; (D) Protracted or obvious disfigurement; [or] (E) Protracted loss or substantial impairment of a function of a bodily member, organ or mental faculty.”

As a result of the failure to demonstrate the statutory definition, the Court threw out the especially aggravated robbery convictions for Anthony Clark and Michael Farmer. It instead ordered the trial court to sentence the two on the much less serious charge of aggravated robbery.

In a concurring opinion, Justice William C. Koch Jr. said the case demonstrated the need for criminal prosecutions going forward to use expert medical testimony when trying to prove serious bodily injury. “We should candidly acknowledge that some injuries which appear bloody and gruesome to laypersons may not have a substantial risk of death, while other injuries that are seemingly benign might, in fact, pose a substantial risk of death.”

To read the full opinion, click here.

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Sixth Circuit says cell phone GPS data can be used to track criminals

by Lee Davis

• United States v. Melvin Skinner

The Sixth Circuit recently ruled that using GPS data to track the owner of a pay-as-you-go cell phone is constitutional and much the same as using dogs to hunt for a fugitive.

In the case of U.S. v. Skinner, the defendant used a pre-paid cell phone obtained by providing false identity information (also known as a “burner“) to communicate with co-conspirators as he brought a motor home filled with marijuana from Arizona from Tennessee.

Agents discovered the cell phone number that the defendant was using and obtained a court order requiring the cell phone company to disclose location information of the phone to the agents. The government used the location information to track the car for three days, eventually catching up to the car at a rest stop in Texas. Local police then brought out a dog to sniff for marijuana which resulted in the dog finding 1,100 pounds of pot.

Skinner was ultimately arrested and charged with various drug-related crimes, including possession with the intent to distribute and conspiracy to commit money laundering. He was convicted on all counts and sentenced to more than 19 years in prison. Skinner appealed, claiming law enforcement’s use of GPS data from his cell phone was a warrantless search in violation of his Fourth Amendment rights.

The Sixth Circuit disagreed, upholding the conviction of Skinner, saying, “The law cannot be that a criminal is entitled to rely on the expected untrackability of his tools.” Judge John Rogers wrote, “Otherwise, dogs could not be used to track a fugitive if the fugitive did not know that the dog hounds had his scent.”

Rogers noted that criminals often use pay-as-you-go phones, presumably because they are more difficult to trace. "When criminals use modern technological devices to carry out criminal acts and to reduce the possibility of detection, they can hardly complain when the police take advantage of the inherent characteristics of those very devices to catch them,” Rogers wrote. The majority opinion concluded by saying that the defendant did not have a reasonable expectation of privacy regarding the location broadcast by his cell phone.  

To read the full opinion, click here.

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The CCA, Tenn. R. Evid. 803(26), and Prior Inconsistent Statements as Substantive Evidence

By Stevie Phillips

In State v. Ackerman, the Tennessee Court of Criminal Appeals addressed Tennessee Rule of Evidence 803(26), a hearsay exception adopted in 2009 that allows admission of some prior inconsistent statements as substantive evidence. 

The Rule states that the following are not excluded by the hearsay rule:

A statement otherwise admissible under Rule 613(b) if all of the following conditions are satisfied:      

(A) The declarant must testify at the trial or hearing and be subject to cross-examination concerning the statement.                                                                                                                                                                    

(B) The statement must be an audio or video recorded statement, a written statement signed by the witness, or a statement given under oath.                                                                                                             

(C) The judge must conduct a hearing outside the presence of the jury to determine by a preponderance of the evidence that the prior statement was made under circumstances indicating trustworthiness.

The CCA emphasized that

[t]o be admissible as substantive evidence via Rule 803(26), a statement must first be admissible as a prior inconsistent statement via Rule 613(b). That rule provides that ‘[e]xtrinsic evidence of a prior inconsistent statement by a witness is not admissible unless and until the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require.

The admissibility of a prior inconsistent statement as substantive evidence will often turn, therefore, on whether the witness testifies in an inconsistent manner.  As the CCA explained, the witness must deny the statement, equivocate about having made the statement, or testify inconsistently and then testify that he or she does not recall making the prior inconsistent statement.  Finally, the court noted that nothing in Rule 803(26) “permits the admission of a witness’s prior statement in its entirety.”

The full opinion can be found here. 

Chattanooga Gang Violence Leads to Cross-Border Partnership

A recent partnership was announced between the Walker County, Georgia and Hamilton County, Tennessee sheriffs departments intended to reduce some of the jurisdictional impediments that stymie efforts by both to fight gang activity in the region. Leaders from both counties gathered to sign a Joint Mutual Aid Agreement meant to ensure cooperation in the pursuit and prosecution of gang members.

Though crime may take place in Chattanooga, that’s not always where the criminals stay. Often times, suspects either live or flee to Northwest Georgia after engaging in crime in Tennessee. The gang members use the county and state lines to their advantage, hampering investigators on both sides.

The two counties are already fairly closely tied, sharing information and resources as part of their membership in the Chattanooga Area Gang Enforcement initiative. Both agencies have taken pains to ensure the public realizes that this agreement does not extend beyond gang activities. Hamilton County officials have been clear that no Georgia sheriffs will be permitted to come to Tennessee to enforce laws other than those relating to gang crime.

The action has been taken because of a recent rise in gang activity throughout the state. Studies indicate that gang activity has tripled in Tennessee communities with populations of 50,000 or less, meaning that smaller communities across the Tennessee Valley Region are feeling the impact of increased gang violence. Law enforcement officials hope that by tackling the issue now they can avoid even more draconian measures years down the road when the gangs would have had the chance to become even more entrenched.

The deal is the latest in a series of moves by Chattanooga to battle a growing problem with gang violence. Earlier this year, the Tennessee General Assembly beefed up the state’s existing laws regarding RICO (Racketeer-Influenced Corrupt Organizations) which are meant to permit more flexibility in defining what is a gang in the state. The new legislation broadens the definition to include participation in any ongoing criminal conspiracy.

Officials have grown tired of geography complicating police investigations and took steps to minimize the impact of state lines. For instance, if a conspiracy is found to exist in Tennessee but members later flee to Georgia, which agency is in charge of the prosecution? The fact is even with the recent pact the answer is not crystal clear. Responsibility could fall to either state; the location of witnesses, criminal evidence, experts, etc., all play a role in deciding where the prosecution occurs. Other factors include where the greater crime occurred and which state offers the most severe penalties.

The two counties started their partnership with the sheriff’s offices because the sheriffs’ jurisdictions cover both counties. However, this is just the first step in a much larger process of cooperation and coordination. As the program gains traction the goal is to expand it to include municipalities and even the prosecutors offices of both counties.

See: “Battling gangs across TN/GA state lines,” by Gordon Boyd, published at WRCBTV.com.

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Study Reveals Tennessee Prisoners Serve Short Sentences

by Lee Davis

A recent study by the Pew Charitable Trusts Public Safety Performance Project revealed that Tennessee criminals serve the fourth lowest amount of time in prison compared to other states. The report, which was meant to measure the average length of stay for people sent to prison in 35 states, found that Tennessee’s short stays were behind only those in South Dakota, Illinois and Kentucky.

Those incarcerated in Tennessee could expect an average prison term of 1.9 years, 6 percent less than what they could have expected in 1990 and much lower than the national average of just under three years. Georgia saw average prison stays of 3.2 years while neighboring Alabama had 2.9.

The reason for the reduced time in Tennessee is a complicated one as prison sentences are affected by multiple factors, including legislators, who write the rules, judges, who have discretion in sentencing offenders to prison, and the state’s parole board, who decides whether an offender can leave prison early.

Tennessee began revising sentencing guidelines in the 1980s to combat prison overcrowding. Those reforms included lowering the minimum time prisoners must serve when convicted, meaning some offenders serve as little as 20 percent of their sentence. Recently, under pressure to appear tough on crime, legislators have increased those percentages for violent crimes. The legislature also enacted an array of alternative punishments and presumptions regarding people who should get probation, something other states have been slow to adopt.

The worry about the attention caused by the study is that legislators will feel the need to spring into action, creating harsh sentences for the sake of being harsh. There are indications the study already has begun a conversation about whether Tennessee should be stricter. State Senator Mae Beaver said that the issue is “certainly something we need to address and find out why it’s happening.” Beavers, the chairwoman of the Senate’s Judiciary Committee said, “I would certainly like to be tougher on crime.”

The fact is, when you look into the numbers and get over the initial shock of thinking the state is going easy on criminals, you realize that isn’t what the study actually demonstrates. What actually happened was that several decades ago legislators realized that lengthy incarceration is not always the best deterrence to crime, something backed up by the study. A key finding of the research is that not all crime is equal, but prison times seldom take that into consideration. Increased prison time and cost were up across the country almost identically for both violent and non-violent offenders. But the study also reveals that releasing non-violent offenders earlier did not result in lowered public safety, even when non-violent offenders committed similar non-violent crimes.

Though some may try to seek an easy solution and rush to have criminals spend more time in jail, it won’t solve the larger problem of crime in the state and will only end up costing us all huge amounts of money to keep them there. Spending large amounts of taxpayer money to keep non-violent offenders in prison shows a poor return on investment and has negligible impact on public safety. A sad anecdote that should give those pushing the state to be tougher on crime comes out of California where it was recently announced that the state spends more money on its prisons than on colleges and universities.

The full Pew report is available online here.

Read: “TN prisoners serve less time than those in most states,” by Brian Haas, published at Tennessean.com.

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