Saturday, August 17, 2013

Supreme Court Upholds Trial Court’s Dismissal of DUI Charges After Video of Arrest Lost

This was posted today on the TN Courts website.

The Tennessee Supreme Court, in a unanimous opinion, today upheld a trial court’s dismissal of DUI and other charges against a McMinnville woman because a video recording of the woman’s stop and arrest was lost.

In November 2010, a McMinnville police officer pulled over Angela M. Merriman because she veered into his lane of traffic from a center turn lane. After attempting to conduct several field sobriety tests, the officer placed Ms. Merriman under arrest. She told the officer she had taken a Valium and hydrocodone earlier that day. A camera in the police officer’s vehicle captured video of the traffic stop, the attempted field sobriety tests, and the arrest.

The officer referred to the video during his testimony at Ms. Merriman’s preliminary hearing. When defense lawyers sought access to the recording, however, they were told that the video was missing. Subsequently, Ms. Merriman filed a motion to dismiss the indictment on the grounds that the State failed to preserve evidence that potentially could exonerate her.

The trial court granted the dismissal at a pre-trial hearing, applying a 1999 Tennessee case that sets forth the procedure for determining whether a trial conducted without the lost evidence would be fundamentally fair to the defendant. In this case, the trial court first determined that the State had an obligation to preserve the video of Ms. Merriman’s stop and arrest, applied the three remaining factors from the 1999 case, and concluded that it would not be fair to continue to trial without the video.

The Court of Criminal Appeals agreed, concluding that the trial court did not abuse its discretion in dismissing the charges.

In its Opinion released today, the Supreme Court upheld the dismissal, concluding that the State had a duty to preserve the video recording and failed in that duty when the video recording was lost. Because of the obligation to preserve evidence that could possibly clear Ms. Merriman of wrongdoing or assist in her defense, the Court then looked at the other three factors outlined in the 1999 case. It determined that the loss of the video recording resulted from simple negligence; the lost evidence had significance when considered in light of all the other evidence, and its loss prevented viewing the event as it had occurred; and the sufficiency of the other evidence was inconclusive. The Court determined that the loss of the evidence deprived Ms. Merriman of her right to a fair trial.

To read the majority opinion in State of Tennessee v. Angela Merriman, authored by Justice Janice M. Holder, visit the Opinionssection of

Friday, June 21, 2013

Supreme Court Orders Judges To Stay Away From Fact Finding Regarding Mandatory Minimums

The Supreme Court issued an important criminal decision this week, Alleyne v. United States, when it said that a jury should have the final say on what triggers mandatory minimum sentences in criminal cases.

The Court voted in a 5-4 decision to overturn the sentencing decision in defendant Allen Alleyne’s case. Alleyne was convicted of robbery and firearm possession in Richmond, Virginia. The issue came down to whether or not Alleyne’s accomplice ever brandished a weapon during the commission of the robbery. If so, then Alleyne would be subject to mandatory minimum sentencing. The jury believed that Alleyne’s accomplice did not brandish a weapon, but the judge disagreed, saying that he believed he had flashed a gun. This decision meant that Alleyne’s mandatory minimum sentence was raised from five to seven years.

Alleyne’s attorneys appealed the lower court’s decision, claiming that the judge overstepped his bounds. Specifically, Alleyne’s lawyers argued that the brandishing decision should have been left up to the jury. Instead, the judge made his determination using a lower standard of proof.

The Justice Department, for its part, stepped in to argue that the current system of allowing judges to occasionally intervene and apply mandatory minimum sentences has worked well for years and ought not be changed.
The Supreme Court disagreed and said that district court judges cannot issue findings that raise mandatory minimum sentences. That decision should be left exclusively to the jury. As a result, the Court decided to send the case back to the lower court for resentencing.

Some experts say the case is noteworthy not only for its holding, but for the makeup of the majority. In a rare and possibly even historic alliance, the majority was made up of the Court’s four more progressive members with the addition of Justice Clarence Thomas. Court watchers say they could not think of another time where Thomas sided with progressive justices against the conservative wing of the Court.

To read the full opinion, click here.

Monday, June 17, 2013

Silence speaks volumes: Supreme Court issues ruling in Salinas v. Texas

The Supreme Court issued a ruling today, in Salinas v. Texas, a case discussed earlier here. The decision, a 5-4 ruling held that a suspect must expressly invoke their 5th Amendment privilege in order to be protected by that privilege.  In Salinas, this means that the defendant had to speak in order to claim his “right to remain silent.”  The opinion, authored by Justice Alito notes that although there is a popular perception of the “right to remain silent” the 5th Amendment does not establish such an unqualified right.  An interesting fact in the case which may (or may not have) had importance was that the suspect at the time of questioning was there voluntarily and had not been give “Miranda warnings.”

                The dissent questions whether the ruling will give rise to further litigation about what it means to claim the 5th Amendment right.  Must one state specifically that they are invoking their 5th Amendment right?  The better question in the dissent’s view is to see whether under the circumstances the defendant’s silence can be understood to be an invocation of the 5th Amendment right.  It also notes the inherent difficulty with a defendant facing a question that could lead to an incriminating answer.  They have two choices: answer or remain silent.  Under the Salinas holding, either option could be used against them.  If later at trial they take the stand to explain what happened, they would be in essence forced to act “as a witness against himself”. There is of course, a third choice:th Amendment right.  However, under this ruling to invoke their 5th Amendment right, a suspect would have to specifically state that they are invoking that right.  This does not appear to take into account the reality for most suspects in a criminal proceeding.  While they are probably aware of the “right to remain silent”, they most likely don’t know that remaining silent is not how that claim that right.
to invoke your 5

             The full text of the opinion (including the dissent and a concurrence by Justice Thomas can be read here.

Tuesday, June 11, 2013

Supreme Court Says It’s Unconstitutional To Use New And Harsher Sentencing Guidelines For Old Cases

On Monday a closely divided Supreme Court issued another important criminal law decision on 5-4 lines. This time the Court held that the Constitution is violated when courts rely on current federal sentencing guidelines if those current guidelines call for harsher punishment than the ones in place at the time the offense was committed.

The issue before the Court was whether the current federal sentencing guidelines, which are technically discretionary, carry enough weight--regardless of not being mandatory--to subject defendants to the risk of additional punishment. If so, this would violate the ex post facto clause in the Constitution which prohibits enhanced retroactive punishment.

The case before the Court, Peugh v. U.S., concerned a man who was convicted of bank fraud. By the time he was sentenced in 2010, the trial judge noted that the guidelines that were currently in place suggested a sentencing range of between 70 and 87 months, the judge chose 70. The problem is that at the time the crimes were committed, the sentencing range under the guidelines was only 30 to 37 months. The change exposed the defendant to a potentially increased punishment.

Justice Sotomayor noted that the low end of the 2009 sentencing guidelines was still 33 months higher than the highest number contained in the 1998 guidelines. Sotomayor said that the guidelines are still seen as influential despite no longer being mandatory. The guidelines act as a starting point and judges often have to go to extreme lengths to justify any departure from the guidelines, something that acts to dissuade such sentencing departures. Four fifths of all sentences given in federal court are within the guideline range.

Given this, Sotomayor said that the ex post facto clause of the Constitution was violated in Peugh’s case because the new sentencing laws created a risk of additional retroactive punishment. 

The dissent in the case disagreed and Justice Thomas wrote that because the new guidelines have been called advisory and not mandatory, they cannot possible constrain the discretion of a district court. Thomas said that, as a result, there could be no violation of the ex post facto clause.

To read the full opinion, click here.

Friday, June 7, 2013

New Law Requires Ignition Interlock Devices After Tennessee DUI Convictions

A new law signed by Governor Haslam will require first-time DUI offenders to install an Ignition Interlock Device in order to drive on a restricted license during the year their license is revoked.

An Ignition Interlock Device requires the driver to self-administer a breathalyzer in order to start their car. The car will not start if the driver's blood-alcohol concentration is .02 or higher. The Ignition Device also takes a picture of the driver at the time the breathalyzer is taken.  This is to prevent drivers from allowing another sober person to take a breathalyzer in order to start the car, then proceeding to drive after drinking. The Ignition Device will remain on the offender's car for 6 months.

Lawmakers and law enforcement met Tuesday to celebrate the Governor's passage of the new law. They called the new law "another tool in our toolbox to prevent tragedy."

Tennessee is the 18th state in the nation to enact a law requiring an Ignition Interlock Device. According to Flint Clouse, Mother's Against Drunk Driver's (MADD) Tennessee Executive Director, states with similar legislation have seen a reduction in DUI fatalities by 30% or more.

The new law will take effect in Tennessee July 1, 2013.

Wednesday, June 5, 2013

Supreme Court Supports Defendants Seeking To Raise Ineffective Assistance Of Counsel Claims

In a recent 5-4 decision, the Supreme Court decided Trevina v. Thaler to extend a ruling it made last year which allowed prisoners to challenge their state convictions in federal court based on the claim that their attorneys were ineffective.

Last year, the Court considered a case out of Arizona which challenged the state’s law saying that claims of ineffective assistance of counsel had to be raised in a separate post-conviction motion and not in a direct appeal of the original conviction. The problem with this approach is that there is no right to an attorney in the post-conviction motion phase, though there is in the direct appeal phase. The Supreme Court ruled that federal courts are allowed to hear challenged to Arizona convictions based on ineffective assistance if the defendant had no lawyer in the separate post-conviction challenge.

The Supreme Court said in the Arizona case that by insisting that ineffective assistance of counsel be claimed outside the appeals process where counsel is constitutionally guaranteed, Arizona significantly diminished defendants’ ability to file such a claim.

The new case concerned the Texas criminal justice system which also encourages, though does not require, that such ineffective assistance of counsel claims be raised in separate proceedings and not as a part of a direct appeal. The Supreme Court decided the distinction between Texas and Arizona was unimportant and that the tradition was enough to deprive some defendants of the chance to raise ineffective assistance claims. The Court said that as a matter of practice, the Texas system does not offer most defendants a meaningful chance to present a claim of ineffective assistance of counsel on direct appeal.

Given the recent decision, it seems clear the Court is willing to go great lengths to ensure that defendants have the opportunity to raise ineffective assistance of counsel claims as part of the direct appeals process where they are constitutionally ensured legal representation. 

To read the full opinion, click here.

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Monday, June 3, 2013

Supreme Court Issues Important Decision Regarding DNA Collection

A divided Supreme Court issued an important opinion today, Maryland v. King, saying that police are allowed to routinely take DNA from those suspects they arrest without first securing a warrant. The important criminal law decision equated a DNA cheek swab with the commonly accepted practice of fingerprinting.

The case involved a woman who was raped and robbed but police never were able to identify a suspect. Years later, Alonzo King was arrested and charged with second-degree assault. Police took advantage of the Maryland law which allowed warrantless DNA tests following some arrests, and took a swab of King’s cheek. After putting the DNA into a database, the police got a hit for the earlier rape and King was ultimately convicted and sentenced to life in prison.

Justice Kennedy, who wrote for the five-justice majority, said that taking a DNA swab is like fingerprinting and photographing which is already part of a legitimate police booking procedure and is acceptable under the Fourth Amendment.

The case was seen as important not only because of the increasing importance of DNA evidence, but also because of how prevalent the practice already is among the states. As of today, at least 28 states and the federal case engage in warrantless DNA collection. A Maryland court that heard the case said the practice was illegal and said that the state first needed approval from a judge before taking a suspect’s DNA. The Maryland court said that a reasonable expectation of privacy prevented such warrantless searches.

The Supreme Court disagreed with the Maryland court and reinstated King’s rape conviction. Kennedy wrote that in the way it was used in this case, DNA for the purpose of identification is no different than matching someone’s face to a wanted poster or matching tattoos to known gang symbols. According to the justice, the procedure of taking a swab from a cheek is not substantially different than taking a fingerprint from a suspect and matching it to those recovered from a crime scene.

The dissent was harshly critical and led by outspoken Justice Antonin Scalia. Scalia warned the public that because of today’s decision anyone’s DNA could be taken and entered into a national database if they are ever arrested for any reason. Scalia’s trouble with the case was not about the taking of the DNA itself, which is seen as a common step in many criminal investigations. Instead, the issue is one of timing. Taking the DNA before a conviction and without judicial approval is what Scalia had a problem with given that suspects are forced to divulge incredibly valuable and personal information to law enforcement without any judicial oversight.  

Read:Supreme Court Upholds Warrantless Collection Of DNA,” by Mark Memmott, published at

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Saturday, June 1, 2013

Problems Raised By NTSB Blood Alcohol Recommendation

The National Transportation Safety Board recently issued a new recommendation that asks all states to agree to lower the legal threshold for impairment for driving from 0.08 percent to 0.05 percent. The move was greeted with cheers from some alcohol awareness groups, but others have raised concerns about the impact of such a move, raising doubts about whether such a proposal could ever succeed.

The first issue that arose to challenge the new regulation was a surprisingly cool embrace from one of the organizations that many believed would be the biggest champion of the proposal. Rather than issue a press release trumpeting the news, Mothers Against Drunk Driving said only that the organization was “neutral” when it came to the BAC proposal. Many were surprised at the shrug from MADD, which has for years advocated for stronger DUI enforcement efforts. The group says the reason for its lack of interest in the new regulation is that it targets the wrong group of drivers, which leads to yet another problem of the new NTSB proposal.

The way the new recommendation is structured it is designed to target social drinkers, not abusive users of alcohol. MADD and others have suggested that such legislation amounts to a waste of energy given that this group of drivers is responsible for a very small percentage of all alcohol-related traffic accidents.

Opponents to the measure have pointed to research which clearly shows that the average BAC for a person involved in a fatal accident is 0.17 percent, triple the level that the new proposal would target. MADD says that to expend so much police time chasing down drivers who pose very little threat to other motorists is a misallocation of precious resources. Instead of spending time arresting those who have had two or three drinks, law enforcement agencies should devote energy to keeping repeat drunk drivers off the road. MADD says money should go into ignition interlock systems, not in incarcerating social drinkers.

Another problem with the proposed BAC change is that, practically speaking, it will be very difficult to achieve. The most recent shift in the BAC levels took 21 years to push through, lowering the levels from 0.10 to 0.08. That only happened after the federal government signed a law threatening to withhold lucrative highway construction money to states. Many experts say there is not enough political will to engage in another decades-long fight to lower levels yet again, especially when the value is debatable.

For decades now the percentage of all highway fatalities that involve alcohol has hovered at around 30 percent. That level was seen when the BAC limit was 0.10 and has stayed the same as the limit fell to 0.08. While the total numbers of alcohol-related fatalities have fallen since the legal limit was lowered, there is no proof that this change occurred because of the new legal limit. After all, the total number of highway fatalities also fell and the percentage of those deaths related to alcohol has stayed stubbornly stuck at a little less than a third.

Experts say that for the new proposal to truly be effective other changes would have to happen as well. The NTSB touts the number of lives saved in Europe after BAC limits were lowered to 0.05, but what it fails to mention is that many of those countries also began implementing random breathalyzer screenings of drivers, something that would be met with a huge outcry in this country.

There have so far been few signs that the majority of this country is eager to follow the lead of Western Europe on this issue. Many Americans would be shocked to learn that Sweden, which recently grew tired of its 0.05 BAC limit, decided to drop it even further, to 0.02 percent. Under such a law many drivers would technically be considered too drunk to driver after consuming less than one drink.

Read: “Room for Debate: Too Drunk To Drive,” by Opinion Editors, published at

Thursday, May 30, 2013

Sixth Circuit Discusses Requirements For Probable Cause

An anonymous informant notified police about the presence of cocaine in Sidney Brown’s house and a search warrant was subsequently issued. When the police arrived, warrant in hand, they found the cocaine mentioned by the tipster along with a pistol and several thousands of dollars in cash. Brown was eventually convicted on several drug-related crimes and appealed the case. The Sixth Circuit used the case, U.S. v. Brown, as an opportunity to clarify exactly what amount of information is sufficient to create probable cause for a search warrant application.

When Brown appealed, he argued that the police did not have probable cause to search his home based only on an informant’s information. Brown tried to suppress the incriminating evidence that the police had discovered relating to the drugs. Browns’ attorney argued that the confidential informant was not reliable enough and the information had never been corroborated before the warrant was signed by the judge.

The Sixth Circuit used the common sense and totality of the circumstances approach to determining whether there was sufficient probable cause to conduct a search. In this case, the Court found that the informant had a track record of reliability, having given accurate information to the police that had previously led to two convictions. Given this track record, the Court found that the police officer’s reliance on the tip was sufficient to apply for a search warrant.

Beyond agreeing that the information in this case came from a reliable source, the Court held that the police are not required to corroborate the information they receive from such an informant before seeking a search warrant. The Court said that the practical reason for this is that officers seldom have the time or resources to fully investigate each tip before requesting a search warrant.

Because of the court’s approval of the anonymous tip, the Sixth Circuit affirmed the lower court’s denial of a Motion to Suppress evidence gathered as a result of the police search. The takeaway lesson from the case is that the Sixth Circuit made clear anonymous tips do not have to be overly detailed to be a valid basis for a search warrant. The Court reiterated that affidavits are judged on the adequacy of what they contain, not on the information that they lack.

To read the full opinion, click here.

Sunday, May 26, 2013

Sixth Circuit Allows Crack Cocaine Defendants To Be Resentenced In Light Of Fair Sentencing Act

In an important recent decision, U.S. v. Blewett, the Sixth Circuit Court of Appeals found that the Fair Sentencing Act should apply retroactively. The Court decided that to continue to uphold the prior racially discriminatory laws would violate the Equal Protection Clause. In making its decision, the Court reversed lower court decisions regarding two defendants who were charged with crack cocaine possession: Cornelius Blewett and his cousin, Jarreous Blewett.

The Fair Sentencing Act at issue was implemented in 2010 and designed to create fairness in federal cocaine sentencing which notoriously handed down far harsher sentences to those convicted of possessing crack cocaine than to those found to possess powder cocaine. The sentencing laws were viewed as racially biased, given that crack cocaine users were more likely to be black while powder cocaine users were typically white. The Act helped lower the disparity in sentences from 100:1 to 18:1. For many inmates who were imprisoned before the Act was passed, their sentences remained the same.

The Blewett cousins were sentenced back in 2005, years before the Fair Sentencing Act was a reality. They both faced a mandatory minimum sentence of ten years based on the amount of crack cocaine they were found to possess. However, if they were arrested today with the same amount of drugs their sentence would not even be subject to the mandatory five-year minimum contained in the Act, highlighting just how much of a change the new law has led to.

The Sixth Circuit ultimately tossed out the ruling of the lower courts with regard to the Blewetts and remanded the cases back to the lower courts to resentence while applying the new Fair Sentencing Act. The opinion from the Sixth Circuit will likely lead to many inmates seeking a resentencing in accordance with the Fair Sentencing Act.

To read the full opinion, click here.

Monday, May 20, 2013

Sixth Circuit Tackles Electronic Filing Typos

Everyone who does enough paperwork has surely made a mistake at some point. The wrong key was entered or the wrong box was checked. Thankfully, most typos are harmless and can either be quickly remedied or ignored. Unfortunately, when you work as a criminal defense attorney and you make a typo on an electronic filing system, it’s possible that the consequences could be much more grave.

In the case Shuler v. Garrett, the Sixth Circuit dealt with a case where an attorney made a very small mistake on an electronic court filing. The question that the Sixth Circuit was left to grapple with was whether or not the technical error could cause the attorney’s client to lose his right to appeal.

In the case, the defendant moved to dismiss the plaintiff’s appeal as untimely after the plaintiff’s attorney made a technical mistake while electronically filing a Rule 59 motion to appeal or amend the judgment. The standard rule says that a notice of appeal must be filed within 30 days of the entry of a judgment, but that this period can be extended if a party files a Rule 59 motion in time.

In the case, the attorney accidently entered the wrong docket information into the system when electronically filing the motion for her client. As a result of the mistake, the motion was listed under the docket of a different case. By the time the lawyer realized her mistake, the time had run out and the filing was now late.

The attorney in the case waited until the last day to file the motion, perhaps unnecessarily stretching the deadline to its breaking point. However, as the attorney argued, using the electronic case filing system can be a time consuming process which explained some of the delay in getting the motion filed.

The Sixth Circuit examined how other circuits have handled similar issues and noted that the Seventh Circuit found that a complaint filed under the wrong docket number was timely. The Court also mentioned that had the forms been filed on paper, the incorrect docket number would likely have been detected and the motion would not have been deemed untimely.

The Court said that the Federal Rules of Civil Procedure plainly state that clerks shall not refuse to accept filings solely because they are not presented in proper form. Given this, the Court found that the motion should be considered timely and that the client should not be punished for an electronic filing error on the part of their attorneys. The Sixth Circuit said that electronic filing typos should not hold your client back so long as the motion itself was filed within the proper time limits.

To read the full opinion, click here.

Friday, May 17, 2013

NTSB Pushes States To Lower Legal Alcohol Limit

The National Transportation Safety Board took a surprising step earlier this week when it recommended that the all states, including Tennessee, lower the threshold for what constitutes impaired driving.

Currently, Tennessee state law says that drivers who are operating a motor vehicle with a blood alcohol concentration greater than 0.08 percent are impaired. This number is supposed to indicate the level at which the majority of drivers are intoxicated enough that they cannot safely operate a vehicle. Every state in the country follows this rule, as do many other countries around the world, including neighboring Canada, which also deems those with a BAC above 0.08 legally impaired.

The NTSB has now said that, as part of its larger push to completely eliminate incidents of drunk driving in the U.S., all states should lower the legal limit to 0.05 percent. Though some groups, such as Mothers Against Drunk Driving, have come out in support of the recommendation, there are significant concerns that should be taken into consideration by lawmakers facing a possible change. First, lowering the number will likely lead to many hundreds or thousands more drunk driving arrests each year. Already huge numbers of Tennesseans have DUI convictions on their records, expensive and embarrassing mistakes that surface even years later in school applications and job interviews. Whether it would do anyone any good to flood the criminal justice system with more impaired drivers is a question worth considering.

Another concern is whether there would truly be a substantial benefit to making the change. The NTSB claims that by lowering the BAC from 0.08 to 0.05, between 500 and 800 lives would be saved each year by getting those who have had a few drinks off the roadways. The problem is that alcohol is a relative thing and by lowering the legal limit even further, the NTSB is ignoring that fact that some drivers may be convicted of a crime who are actually perfectly safe to operate a vehicle. Factors such as age, weight, height and gender can dramatically influence how alcohol affects a person and the truth is that even at 0.05 percent, some drivers might demonstrate some signs of impairment. However, that does not mean that the number must be lowered across the board for all other drivers.

In terms of real life behaviors, the decrease recommend by the NTSB will lead to big changes. Currently, a 180-pound man can have three drinks in an hour and be under the existing 0.08 BAC limit. Under the new rules, that same man would only be able to have one to two drinks in an hour to avoid being found legally impaired. If such a change were implemented in Tennessee it would likely mean radical shifts in people’s behavior and take some time to learn what kind of social drinking is legally acceptable.

Read: “NTSB recommends lowering blood alcohol level that constitutes drunken driving,” by Tom Costello, published at

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Sixth Circuit Permits Warrantless Search In Tennessee Case
Sixth Circuit Vacates Sentencing Enhancement Based On Defendant False Identification

Saturday, May 4, 2013

Sixth Circuit Discusses Validity Of Search Warrant That Lacked An Address

This case began in 2008 when the Cincinnati Police were tipped off that a man named Kenneth Rose had sexually abused three minors. The police met with all three children who told authorities about being raped and then viewing pornography in Rose’s bedroom on a laptop computer. Based on the information gathered in the interviews, the police were able to obtain a warrant for Rose’s computers located in his home.

The police executed the search warrant and seized Rose’s computer which revealed many images of child pornography including several that depicted Rose engaged in sexual contact with male minors. Rose was subsequently indicted on one count of possession of child pornography and five counts of production of child pornography. Rose ended up pleading guilty to three counts of production of child porn and was sentenced to fifty-one years in prison.

Rose then appealed his sentence, claiming that the district court made a mistake in not suppressing the evidence collected in the search, saying that the affidavit filed by the officer never listed the address of Rose’s home and thus failed to establish a link between the location of the search and the evidence sought.

The Sixth Circuit stated that for there to be probable cause justifying a search warrant, the judge must believe there is a substantial basis for thinking that evidence of a crime will be found on the premises. In this case, the affidavit explained that the name “Rose” was written over the doorbell, but did not provide a definitive link between the property and Rose. The affidavits from the victims explained that criminal activity took place in Rose’s bedroom, but never provided a specific address. The Court said that given this, there was no way to read the affidavit to conclude that the judge had the requisite basis for thinking evidence of a crime would be found at the address that was searched. The Sixth Circuit found that the affidavit did not provide probable cause to search the house.

The Sixth Circuit wrote that while the affidavits show a link between criminal activity and Rose’s bedroom, no thread was ever drawn by the victims or the police to link Rose to the house that was ultimately searched. Had the police included an address in the warrant, showing that an investigation had discovered that Rose resided at the location, that alone would have been sufficient.

Despite this flaw in the affidavit, the Sixth Circuit determined that the evidence collected should be admitted at court because of the good faith exception which provides for an exception to the exclusionary rule in cases where an officer conducts a search in good faith, relying on what he or she believes is a valid warrant. The Court described the error about the address as being akin to a clerical mistake and that such a small omission did not qualify the warrant as bare bones, and thus a bad faith search. Finally, because there was no indication of police misconduct, only police sloppiness, the good faith exception should apply to he search, allowing the child pornography to be admitted into evidence.

To read the full opinion, click here.

Thursday, May 2, 2013

Interesting Sixth Circuit Opinion regarding Miranda Rights And Public Safety Exception

An interesting opinion, especially in light of the recent Boston Marathon bombing and subsequent arrest, is the Sixth Circuit case of U.S. v. Hodge. In Hodge, a suspect’s home was raided by police and a bomb was discovered after the suspect divulged its existence during questioning by police that took place without reading the suspect his Miranda rights. The issue before the court was whether evidence of the bomb gleaned from his statements to police should be suppressed. The Sixth Circuit held: no, it should not, that the questioning was valid due to the public safety exception to Miranda.

The case began when an informant approached police in Calhoun County, Michigan to say that an acquaintance, Lonnie Hodge, was using a one pot meth making method known as “shake and bake.” The method requires combining the ingredients of methamphetamine into a single bottle and shaking it until the drug is properly formed. The informant further said that Hodge had a pipe bomb and a black rifle that he suspected was an AK-47.

The police investigated Hodge by going through the list of pseudoephedrine purchasers and coordinating with neighboring police departments who were also investigating the man. After gathering sufficient evidence, the police were able to obtain a search warrant for Hodge’s home.

When police arrived things did not begin well. They knocked down the door to be greeted by a 6-foot 6, 320-pound Hodge waiving a screwdriver and screaming incoherently. Eventually Hodge was subdued and removed from the premises for questioning. A few minutes later, once Hodge calmed down, an officer asked whether Hodge he had anything in his house such as a meth lab or a pipe bomb that could hurt officers. Hodge said no. A few minutes later Hodge said that there was a bomb in the house. The police then pressed him for more information and he admitted that there was a pipe bomb, giving the location of the device that was eventually disarmed by the bomb expert. A subsequent search of the house uncovered drugs, though not meth, and a black rifle.

Hodge asked the trial court to suppress evidence of the pipe bomb, saying that the officer’s failure to read him his Miranda rights meant that the fruits of the interrogation should be inadmissible in court. The Sixth Circuit disagreed, ruling that the bomb should be admitted given the pubic safety exception established by the Supreme Court in New York v. Quarles as well as the inevitable discovery doctrine.

The Sixth Circuit said that in some cases “overriding considerations of public safety” can permit officers to omit reading a suspect his or her Miranda rights before questioning. The Court held that because bombs, especially pipe bombs, are by their very nature unstable and could explode at any time, they posed a real and present danger to all the officers at Hodge’s house.

Additionally, the Sixth Circuit wrote that even if a Miranda violation had occurred, the pipe bomb would still not be suppressed due to the inevitable discovery doctrine. This is because the police had a valid warrant to search the home and, given the bomb’s location, would have eventually discovered it even without Hodge warning them in advance.

To read the full opinion, click here.

Monday, April 22, 2013

What does it take to prove a defendant's possession of drugs in his co-defendant's house?

In State v. Robinson, police had staked out the co-defendant's house after receiving a tip from a confidential informant. The defendant was seen leaving the co-defendant's house on the way to a drug deal in a Backyard Burger parking lot.  Police took down the defendant and co-defendant at the Backyard Burger.  

The co-defendant subsequently consented to a search of his car as well as his house.  The cops found large amounts of cocaine in both.  Police also found some paraphernalia in plain view at the co-defendant's house.  On basically this proof alone, a jury convicted the defendant of possession of the cocaine in both the car and the house.  

It's one thing to find that the defendant constructively possessed the cocaine in the co-defendant's car. But the co-defendant's house? The TN Supreme Court held this week that that requires substantially more compelling circumstantial evidence and reversed the jury verdict.  It's simply not enough for the State to prove that a defendant had knowledge that drugs were present; the State must prove that the defendant had the power to exercise control over the drugs.

Our Supreme Court rarely grants appeal to assess sufficiency of the evidence.  Nor will it grant appeal for mere error correction.  The Court will however grant appeal if there is an absence of case law on a particular issue. It appears that's why the Court granted appeal here.  Before now, few TN courts have addressed whether a defendant's contact with another residence is sufficient to establish constructive possession. 

The Supreme Court therefore looked at cases from a number of other states.   The following is a list of factors that, based on the Court's analysis, should be considered in the "totality of the circumstances" when determining whether a defendant's contact with another residence is sufficient to establish constructive possession:  

- the defendant's access to the residence, i.e. whether he resides in, leases, or has the right to enter without the     co-defendant present
- whether the defendant was present when the drugs were discovered by police
- the frequency of the defendant's visits to the residence 
- the location of the drugs in the residence, i.e. whether the drugs are in plain view
- whether the defendant's personal belongings are in the residence 
- whether the defendant receives mail at the residence 
- whether the defendant's fingerprints are present on paraphernalia in the residence 

Read the unanimous opinion in State v. Robinson.  

Thursday, April 18, 2013

Supreme Court agrees that warrantless DUI blood draw illegal, but still unanswered questions.

The Supreme Court has released its opinion in Missouri v. McNeely. This is a case about a Missouri officer's decision to conduct a warrantless blood draw in a DUI arrest. Unfortunately, the four separate opinions issued by the justices raise more questions than they answer. The warrantless blood draw here was found to be a violation by the Missouri's highest court and this finding was upheld by the U.S. Supreme Court.

The biggest takeaway from the Court’s majority and two supporting opinions is that in the future every case will be judged on its own merits. While this provides substantial flexibility to both law enforcement officials and judges, it fails to create a bright line rule that officers might rely on when out making traffic stops. The only thing clear from the Court’s Wednesday ruling is that none of the justices were willing to go so far as to say that officers investigating drunk driving cases must always obtain a warrant before conducting a blood draw. Officers are instead left to conclude that getting a warrant is the best outcome and the only way to ensure that a drunk driving arrest is not later tossed out of court beacuse of a constitutional concerns.

The majority opinion, written by Justice Sonia Sotomayor, found that the natural dissipation of alcohol in a defendant’s system does not serve as sufficient justification to ignore constitutional warrant requirements. Justice Sotomayor wrote that officers should generally get a warrant before conducting such a test. Emergencies that permit a deviation from this general rule can only be decided on a case-by-case basis, though officers should be careful and understand that these circumstances are rare and that most cases allow for plenty of time to obtain a warrant.

In this case, the majority sided with Missouri’s Supreme Court, which threw out a warrantless blood test obtained after an officer puled over Tyler McNeely on suspicion of drunk driving. Justice Sotomayor wrote that though there would be some cases that could arise where delays may justify a blood test without judicial authorization, she did not believe that this was often the case and that a small delay would not seriously hamper the ability of the government to prosecute drunk drivers in the future.

In a curious alliance, Justice Sotomayor had the backing of Justices Scalia, Kennedy, Ginsburg and Kagan. Justice Thomas was the only justice to completely dissent, saying that he believed the dissipation of alcohol in the bloodstream created an emergency that did not require a warrant.

Chief Justice Roberts agreed with the outcome of the case, but criticized the vagueness of the majority’s opinion. Robert’s wrote that a police officer reading the opinion would have no idea what the Fourth Amendment requires of him. Though his critique was stinging, Roberts failed to come up with a better solution. Roberts’ rule stated that if there is time to secure a warrant then the arresting officer must secure one. If, however, an officer can reasonably conclude there is not enough time to secure a warrant without compromising the results of the test, then a warrantless blood draw can proceed. Clear as mud.

To read the full opinion, click

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Wednesday, April 17, 2013

Sixth Circuit Permits Warrantless Search In Tennessee Case

The case, U.S. v. Kevin Patrick Daws, involves sheriff’s deputies in Henderson County, Tennessee who conducted a warrantless search of Kevin Daws’ home based on a public safety issue. The question was whether the threat posed by Daws justified the search of the house, something the Sixth Circuit Court of Appeals ultimately decided it did.

The incident began after a home invasion in 2010. Daws had smashed through a window of an acquaintance’s house, shoving a shotgun in the man’s face while demanding cash. Before leaving, Daws told the victim that if he ever called the police Daws would kill him. Later that same night Daws invaded the home of yet another acquaintance and demanded that the man store his shotgun and money, yet again insisting that if the victim informed police of Daws’ actions that Daws would return and kill the man.

Unsurprisingly, both men called the police that night and reported the incidents. One of the responding officers had previously worked as a correctional officer at a prison where Daws served time for aggravated burglary and remembered hearing how Daws had fired a weapon in his front yard and held up a gas station attendant at gunpoint. Based on the two incidents that had occurred earlier that evening and the background knowledge of the officer, the deputies decided it was best to arrest Daws as soon as possible and to do so carefully, calling for backup and to put on body armor.

After arriving at the house, the officers noticed an accomplice on the front porch crying, talking on the phone about how he and Daws had done something bad and would be going to jail as a result. The officers arrested the man who informed them that Daws was inside and asleep. The officers then took this as an opportunity to move in without possible armed resistance, and entered through an open back door and found Daws asleep in the living room. After detaining Daws, a sweep of the house turned up the shotgun used in the earlier home invasions.

Daws was charged with possession of a firearm by a convicted felon, ultimately pleading guilty and being sentenced to 210 months in prison. Daws decided to appeal the district court’ decision, arguing the evidence found in the house should have been suppressed due to the lack of a warrant.

The Sixth Circuit, however, was not convinced. Instead, the Court walked through all the reasons why the officers were justified in entering Daws’ home immediately, without the delay of seeking a warrant. Given Daws’ behavior that evening, his prior instances of violence, threats to others and his ability to escape into the wilderness around his house, the Sixth Circuit decided that the situation presented a case where there was potential for injury to the officers and thus there was a need for swift action. The Court agreed that waiting to get a warrant would have heightened the risk that Daws would act on the threats or, at the very least, escape.

The Sixth Circuit found that the Fourth Amendment does not require that police ignore real risks of a shootout or of a suspect’s escape and can instead take action if there is a reason to do so. In this case, Daws’ own behavior justified quick action on the part of the officers and thus no warrant was necessary before entering Daws’ home.

To read the full opinion, click here.

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Tuesday, April 9, 2013

NY Times Publishes Interesting Article on Death Penalty Statistics

The NY Times, on April 5th, published an article focusing on the death penalty and its enforcement in the 32 states that still observe it. It is no secret that the death penalty is enforced in an odd way, sometimes appearing sporadic and random. The article, focusing particularly on Arizona and its enforcement of the death penality, outlines a common situation courts face.

In our area, with the prevalence of gang activity, it is not hard to imagine a crime involving multiple defendants with different levels of responsibility.  In a murder case, the court might be faced with 5 or 6 defendants who were involved in various ways. Without going into many scenarios, one defendant would likely act as the instigator, while another may serve as a lookout. All are likely to be charged with murder. Which ones, if not all, are then chosen to face the death penalty? Should all 5 or 6 face the death penality? Should the instigator? Should the lookout?

The article highlights a case such as this in Arizona involving multiple defendants accused of murder. Three of the four defendants, as a result of plea bargaining, entered guilty pleas receiving sentences of various terms of imprisonment. Those three defendants included the instigator, and two others who helped with the beating. The fourth defendant, who "by all accounts was not directly involved in the killing," received the death penalty.

It is not uncommon for the defendant with the least amount of culpability to receive the harshest sentence. The most reasonable explanation for this would be the effects of plea bargaining. According to Richard Dieter, the executive director of the Death Penalty Information Center in Washington, D.C., "In an ideal world, the prosecution would have ironclad proof against all the co-defendants to be able to pick the worst for the death penalty, but we have an inequitable system, a bargaining system. If you give the prosecution some help, you'll get something out of it."

Another factor leading to inconsistency in death penalty enforcement is the cost. A capital case can cost at least $1 million to to try, from start to finish. A lot of times, this does not include the cost of the post-conviction appeals. Capital cases are extremely expensive, and oftentimes, that is a deterrent to its enforcement.

Lastly, the article points out that the laws by which prosecutors refer to when deciding whether to seek the death penalty in a certain case are extremely broad. For instance, Tennessee has statutory authority listing 15 aggravating factors for seeking the death penalty. If the jury finds, beyond a reasonable doubt that one of these aggravating factors occurred, the death penalty is appropriate. Some of the factors include;
  • If the victim was a government worker;
  • If the defendant has been previously convicted of a violent felony;
  • If the victim was under the age of 12 and the defendant was over the age of 18;
  • Plus many more. 
The full list of aggravating factors can be found here.  The reoccurring problem with lists such as this is that not every murder case which is found to include one of these factors is pursued as a capital case. It would be hard to find a murder that didn't involve one of these factors, and the death penalty is certainly not pursued on every murder case. The article discusses a group of public defenders in Arizona who examined more than 200 first-degree murder cases between 2010 and 2011 in Arizona, using the state's aggravating factors (Arizona has 14 factors), to see if the most egregious murder cases could be separated. Not surprisingly, the result was that nearly all 200 cases possessed at least one of the aggravating factors, and could be pursued as a capital murder case.

The article sought to shine some light on the broad statutory authority used to enforce the death penalty in 32 states, the inconsistencies of the death penalty in multiple-defendant cases, and the budget concerns that have prosecutors hesitating to enforce capital punishment. Mission accomplished!

Friday, April 5, 2013

Sixth Circuit Says Girlfriend’s Spotty Information Reliable Enough To Support Search Warrant

The Sixth Circuit recently released a ruling in a case, U.S. v. Charles Arthur Kinison, involved a man, Mr. Kinison, who began to affiliate with a group of pedophiles in Georgia that sought to adopt children for the sole purpose of molesting them. Curiously, Kinison had a girlfriend at the time and decided to share his interest in the group with the woman. Going even further, Kinison texted back and forth with his girlfriend, who admitted participated in the exchange, explaining his interest in the plan and his love of child pornography. Kinison detailed his favorite online sites and described some of the child pornography he had viewed on the Internet.

Disturbed by Kinison’s behavior, the girlfriend went to police who then downloaded thousands of pages of text messages between the two from the girlfriend’s cell phone. She cooperated with the ongoing police investigation, agreeing to meet with them on three different occasions. The police asked her where Kinison had been viewing the child pornography and she told them it was in his house. However, there was no real evidence obtained by the police to prove that the girlfriend knew this as a fact and was not simply guessing.

Based on the information from the girlfriend and the text messages the police had downloaded, they were able to get a warrant to search the man’s home. When the police arrived, Kinison had just pulled into the driveway with a cell phone clearly out in the center console of his vehicle. The police were able to secure another warrant for the car, based on the phone being in plain view, and ultimately found child pornography on Kinison’s home computer.

Kinison moved to suppress the evidence seized during the search, arguing that the warrant failed to establish probable cause to search his home and car based on the girlfriend’s incomplete knowledge of where the pornography was being viewed. The district court granted Kinison’s motion to suppress.

The case eventually made its way to the Sixth Circuit which found that the girlfriend could be relied on as a police informant because she was not anonymous and the text messages confirmed there was a personal relationship between her and Kinison that gave her some degree of knowledge on the subject. Moreover, the Sixth Circuit said her statements were leant credibility because she was putting herself at risk of criminal prosecution for having engaged in similar conversations with Kinison about kidnapping or adopting a young child for the purpose of molestation.

The Court further found that though the girlfriend’s statement about the location of the pornography may have been a guess, it was an educated guess. The Court said that it’s widely assumed when someone is engaged in such private behavior it would likely occur in in the privacy of his or her own home. Furthermore, the Court found that the police acted in good faith when seeking their warrant which should allow the search even if it was based on a less than complete information.

The Sixth Circuit thus reversed the lower court’s decision to grant Kinison’s motion to suppress and remanded the case for reconsideration.

To read the full opinion, click

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Wednesday, April 3, 2013

Tennessee Supreme Court Says Community Caretaking Not An Excuse For Police Searches Lacking Probable Cause

The Tennessee Supreme Court recently issued an important opinion, State of Tennessee v. James David Moats, which upheld a ruling out of the Court of Criminal Appeals. The opinion threw out the conviction of James David Moats who was found guilty for driving under the influence after an officer found Moats sitting in a grocery store parking lot.

The incident occured in Etowah, TN when an officer was on a routine patrol at 2 in the morning. The officer saw Moats sitting in the driver’s seat of his pick-up truck in an area that the officer described as being known for drug activity. The officer continued on her patrol route and returned several minutes later to find Moats in the same position. That’s when the officer pulled up behind the pick-up truck and flashed the blue lights on her car. The officer then recorded Moats’ license plate number and called it in to dispatch to be checked out.

When the officer approached Moats’ window, she noticed an open beer car in a cup holder and also observed a set of keys in the ignition to the truck. This prompted the officer to administer a field sobriety test and resulted in Moats being taken into custody.

The case progressed to a trial where the arresting officer admitted on the stand that she never witnessed Moats engage in any illegal activity. Moreover, she acknowledged that once she flashed her blue lights, Moats was no longer free to leave the scene. The trial court judge found that it was acceptable for the officer to approach the vehicle and ask to see identification and proof of registration despite a lack of reasonable suspicion of criminal activity because the officer was acting under a doctrine known as community caretaking.

Community caretaking refers to a kind of behavior that takes place between officers and citizens that is consensual and unrelated to the investigation of any specific criminal activity. Essentially, community caretaking occurs when officers are merely informally talking to citizens, not investigating a crime.

The case was appealed and the Court of Criminal Appeals found that the trial court was incorrect in supporting the officer’s actions. The Court found that the encounter with Moats was not voluntary and therefore the encounter should be seen as investigative rather than consensual given that Moats was not free to leave. That means the community caretaking doctrine could not be used to justify the officer’s actions that night.

The case finally made its way to the Tennessee Supreme Court, which agreed with the Court of Criminal Appeals. The Supreme Court held that though there is no categorical rule that once an officer turns on their lights constitutional protections then go into effect, a reasonable view of the circumstances that night show that the officer used her blue lights as a demonstration of her authority. This show of authority was done without any probable cause or reasonable belief that a crime had occurred.

The Supreme Court went on to say that while the community caretaking role of an officer is an important one, it must be exercised in a strictly consensual way. An officer cannot claim to be engaged in an informal conversation with a citizen if they have simultaneously made a show of authority which would lead that person to believe they were required to stay.

The dissenting justices believed the majority was wrong in overturning the trial court’s decision. They instead believed that there should be a special community caretaking exception to the Fourth Amendment’s requirement that officers have probable cause before engaging in a search and seizure.

To read the full opinion, click here.

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Friday, March 29, 2013

Sixth Circuit Vacates Sentencing Enhancement Based On Defendant False Identification

This recent Sixth Circuit case has it roots in a 1999 conviction of Kwame Williams, a Trinidadian who was arrested in New York on a gun charge and deported. Williams eventually reentered the country illegally and, in 2002, was arrested for kidnapping, robbery and assault but failed to appear for any court proceedings.

At that point, Williams moved to Nashville and changed his name to Arnold Fordham. The DEA began investigating Williams for distributing oxycodone, but believed he was Fordham. Eventually they searched Williams’ house and found 1,000 oxycodone pills along with other illegal drugs. Williams told the agents that his name was Fordham and admitted to dealing drugs and to possessing a weapon.

It took two moths after his initial court appearance for Williams to reveal his real name. At that point he pleaded guilty to possession with intent to distribute oxycodone and prosecutors argued that he should be sentenced with a two-level enhancement for obstructing justice by lying about his identity. The court applied the sentencing enhancement and ordered Williams to 87 months in prison.

The Sixth Circuit heard the case and pointed out that the law says that a defendant’s offense level must be increased by two points if the defendant “willfully obstructed or impeded… the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction.” An example contained in the rule included providing materially false information to a judge, the basis used to enhance the sentence in this case.

The lower court argued that a defendant’s identity is always material to a criminal proceeding and thus an enhancement was appropriate. The Sixth Circuit had to decide whether it was actually material to any of the issues decided by the judge. There were two issues decided on by the judge: whether to appoint counsel for Williams based on his financial affidavit and whether to decide the DEA agents had probable cause to arrest Williams for possessing oxycodone.

The Sixth Circuit said that with regard to the first issue, the government never proved that any of Williams’ financial information was false and that for all purposes, Fordham was just as indigent as Williams. The lie about identity cannot then be shown to have affected the judge’s decision with regard to appointing counsel for Williams. The same thing with regard to the second issue which was based on testimony by DEA agents and had nothing to do with Williams’ identification as Fordham.

As result, the Sixth Circuit reversed the district court’s sentencing enhancement, vacated Williams’ sentence and remanded the case for resentencing.

To read the full opinion, click here.

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Sixth Circuit Hears TN Case About 13-Year-Old Child Labeled Child Abuser by DCS

Sunday, March 24, 2013

Tennessee Supreme Court Excuses Prisoner's Failure to Meet Post-Conviction Deadline

By Stevie Phillips

In 2003, prisoner Artis Whitehead tried to rob BB King's Blues Club on Beale Street in downtown Memphis.  He was convicted of a variety of offenses surrounding the incident.  The TN appellate courts affirmed his convictions, and the US Supreme Court declined to hear his case.  Up to that point, he had an attorney.

Afterwards and without a lawyer, Mr. Whitehead filed a petition for post-conviction relief in the trial court.  That court dismissed the petition because it was filed late.  The Court of Criminal Appeals remanded the case for a hearing, but the trial court again declined to excuse Mr. Whitehead's late filing.  This time on appeal, the TN Supreme Court issued a divided opinion.

Both the majority and dissent analyzed this case under Holland v. Florida, 130 S. Ct. 2549 (2010) and Maples v. Thomas, 132 S. Ct. 912 (2012), two US Supreme Court cases holding, essentially, that a prisoner's late filing should be excused if 1) he was diligently pursing his rights and some extraordinary circumstance prevented him from filing his petition on time and 2) the prisoner’s attorney abandoned the prisoner or acted against the prisoner’s interests.

J. Koch, writing for the majority, held that Mr. Whitehead's attorney effectively abandoned him, which created an exceptional circumstance that prevented him from filing his petition on time. Specifically, Mr. Whitehead's lawyer delayed in informing him that the US Supreme Court had declined to hear his case and in forwarding his case files and also gave Mr. Whitehead an incorrect filing deadline.

J. Holder authored a dissent in which she distinguished these facts from Holland and Maples:
"The petitioners in Holland and Maples were not only the victims of attorney mistakes and communication failures, but each petitioner also erroneously believed his attorney was pursuing his legal matter on his behalf."  In J. Holder's view, the evidence did not preponderate against the trial court's finding that "Mr. Whitehead never operated under the misconception that the pursuit of post-conviction relief was not his responsibility or that his former appellate attorney was pursuing his post-conviction claim." 

Read J. Koch's majority opinion and J. Holder's dissent.