Thursday, January 31, 2013

Sixth Circuit Says 911 Call Justifies Police Entry Into House

In Stricker v. Township of Cambridge the Sixth Circuit issued a ruling concerning police and their ability to enter a private residence. The case began when members of the Stricker family placed an emergency call to 911 to ask for help for their son who appeared to be overdosing. The 911 operator asked what substance the son had consumed but the mother, Susan Stricker, said she did not know.

Paramedics arrived soon after the call was placed but followed their stated policy of not entering a house until the police had arrived to secure the scene. A police office who heard the house involved in the call radioed the police dispatcher to let the department know he had previously been to the same address and made several arrests for occupants of the home who were heroin addicts.

When the police finally arrived, the Stricker family told them to leave their property. EMS and the police at the scene pressed the family to allow them inside to treat the ill son, the family insisted that the police had to go but the EMS were allowed to stay.

The brief appearance of the ill son in the front window, unsteady and obviously in distress, as well as a consultation with an assistant district attorney, was all the officers on the scene needed to force their way inside the house. The parents were handcuffed and the son was treated by EMS. The son was later found to have taken Xanax and heroin and required hospitalization.

While the police were securing the home they did a standard security sweep and uncovered some illegal substances. The parents were ultimately charged with resisting an officer and the son was arrested for substance abuse. The family then filed a suit against the police department, claiming that the officers who pushed their way into the house broke the law by engaging in an unreasonable search and seizure. They further claimed the officers used excessive force and that the district attorney’s office was working in conjunction with the police in a conspiracy to violate the Fourth Amendment.

The Sixth Circuit appeared not to hold much concern for the arguments of the Stricker family. The panel found that 911 calls represent a textbook example of an exigent circumstance. Such emergency situations are prime examples of when it can be necessary for police officers to enter a home without a warrant. The Sixth Circuit said even hang-up calls to 911 could be justification for such police entries. The 911 call, the previous police interaction with residents of the house and the brief encounter with the ill son in the window all served as sufficient justification for police action given that it was reasonable to assume the man needed immediately medical attention.

The Court went on to call the search of the house justifiable, though a close issue. The panel wrote that because the mother was unable to explain what substance her son had ingested the police were justified in searching for more information to help treat the son.

To read the full opinion, click here.

Tuesday, January 29, 2013

Supreme Court Agrees to Hear Case of Woman Who Poisoned Her Best Friend

On Friday the U.S. Supreme Court agreed to hear an appeal by a woman convicted under a federal law that was meant to curb the existence of chemical weapons. The case is a convoluted one and involves the woman admitting she attempted to poison a former friend who she found out had an affair with her husband.

The law at issue in the case was enacted in 1998 and banned the use of chemical weapons for anything other than a “peaceful purpose.” The law developed from an international chemical weapons convention that was signed in 1993. The goal of the convention was to prevent terrorists from obtaining dangerous weapons of mass destruction.

The woman at the center of this sordid tale, Carol Anne Bond, was a microbiologist who previously worked with a major chemical company, Rohm and Haas. After the police launched an investigation, she admitted to trying to poison her former best friend after learning that the woman had become pregnant by Bond’s husband.

Bond took chemicals from Rohm and Haas and spread them on the friend’s mailbox, car doors and house doorknobs over the span of nearly six months. Though cases like this are normally handled by local prosecutors as traditional criminal cases, Bond was prosecuted under the federal chemical weapons law.

The case presents an unusual opportunity for the justices to consider what to do when Congress’ power to implement international treaties into American law conflicts with the 10th Amendment limits on federal power. Bond, a Pennsylvanian, was sentenced to six years in prison after pleading guilty. She’s since appealed saying that use of the federal law invaded the powers given to Pennsylvania and other states under the 10th Amendment.

Earlier last year Bond’s case was heard by the 3rd Circuit Court of Appeals which found that her conviction was constitutional. Though the court upheld her previous conviction, it did go out of its way to point out that the federal chemical weapons law turned each kitchen cupboard and cleaning cabinet into a potential chemical weapons cache.

Bond, who’s being represented by former Solicitor General Paul Clement, says that the federal government exceeded its authority by criminalizing what was local conduct when it implemented the chemical weapons treaty. The government disagrees, saying that Congress has authority under the Commerce Clause and the Necessary and Proper Clause to enact the law as it did.

Read: “U.S. Supreme Court Will Reconsider Case Of Woman Who Tried To Poison Romantic Rival,” by Robert Barnes, published at

Saturday, January 26, 2013

Defendant Charged with Animal Cruelty Denied Pretrial Diversion

On January 23, Justice Lee authored a unanimous Tennessee Supreme Court opinion in Stanton v. State of Tennessee.

In sum, Stanton, a farmer in Warren County, was indicted under T.C.A. 39-14-202(a)(2) on 16 counts of animal cruelty for the intentional or knowing failure to provide necessary food, care, and shelter to horses.  Stanton pled not guilty and applied for pretrial diversion pursuant to T.C.A. 40-15-105(a)(1)(A). The Assistant District Attorney denied Stanton’s application. Stanton filed a petition for writ of cert in the trial court, which found that the ADA had not abused his discretion. The TSC affirmed. 

The Court’s analysis centers on a prosecuting attorney’s “exclusive” discretion to grant or deny pretrial diversion.  Prosecutors will find this opinion helpful because it clearly states what they need to do to ensure that a denial of pretrial diversion withstands scrutiny on appeal.  

Specifically, the prosecuting attorney must consider all factors, including “the circumstances of the offense; the defendant’s amenability to correction; any factors that tend to accurately reflect whether the defendant will become a repeat offender; the defendant’s criminal record, social history, and physical and mental condition; the need for general deterrence; and ‘the likelihood that pretrial diversion will serve the ends of justice and the best interest of both the public and the defendant.’”

In addition, a prosecutor's denial must be in writing.  The written denial must enumerate the factors considered, provide a factual basis for each factor, enumerate the weight accorded to each factor, and identify any disputes between the evidence relied upon by the ADA and the evidence in the application filed by the defendant. 

Finally, the Court noted that it had not previously addressed whether a defendant’s failure to take responsibility might serve as a basis for denying pretrial diversion.  The Court concluded that “a defendant’s unwillingness to admit wrongdoing and assume responsibility for his or her actions is relevant in assessing a defendant’s amenability to correction and whether pretrial diversion will satisfy the need for deterrence and serve the ends of justice.”  

Friday, January 25, 2013

TN Supreme Court addresses death penalty and mental capacity on appeal

This appeal, Reid v. State, raises the question of whether a prisoner facing the death penalty has the mental capacity to abandon the pursuit of post-conviction relief in his three murder cases.

After the prisoner decided not to seek a new trial in any of these cases, one of his sisters, in cooperation with the Office of the Post-Conviction Defender, filed a “next friend” petition in each of the prisoner’s three murder cases, requesting the courts to declare the prisoner incompetent, thereby enabling her to pursue post-conviction relief on his behalf.

The Criminal Court for Davidson County and the Circuit Court for Montgomery County conducted separate hearings in 2008. Each court denied the petitions after determining that the prisoner’s sister and the Office of the Post-Conviction Defender had failed to establish by clear and convincing evidence that the prisoner lacked the capacity to make rational decisions regarding the pursuit of post-conviction relief. The Court of Criminal Appeals affirmed both of these judgments.

TN Supreme Court granted the prisoner’s Tenn. R. App. P. 11 application. The Supreme Court determined that both trial courts employed the correct legal standard for determining whether the prisoner possessed the mental capacity to rationally forego seeking post-conviction relief and also that the prisoner’s sister and the Office of the Post-Conviction Defender failed to prove by clear and convincing evidence that the prisoner lacked the capacity to make rational decisions regarding the pursuit of post-conviction relief.

The court further held that, in all future cases, Tennessee’s courts should employ the mental competency standard of Tenn. Sup. Ct. R. 28, § 11(B) whenever the issue of a prisoner’s competency to pursue post-conviction relief is properly raised.

Wednesday, January 23, 2013

Court Rules Against Sex Offender Facebook Ban

A federal appeals court ruled today that an Indiana law that bans registered sex offenders from accessing Facebook and other social networking sites that can be accessed by children is unconstitutional, the Memphis Commercial Appeals reports. The 7th U.S. Circuit of Appeals in Chicago overturned U.S. District Judge Tanya Walton Pratt’s June decision, saying the “blanket ban” was too broad and didn’t protect children.” Federal judges have barred similar laws in other states.

Wednesday, January 16, 2013

Is Silence Golden? U.S. Supreme Court to Review Use of Pre-arrest Silence at Trial

By Jay Perry

Recently the Supreme Court decided to hear the appeal of Salinas v. Texas, a case involving the murder of two men in 1992.  The question for the Supreme Court is whether a defendant’s pre-arrest silence can be used against him at trial.   The police interviewed Mr. Salinas at the police station regarding the murders and asked him whether the shotgun shells recovered at the scene would match his shotgun.  He did not answer the question, and at trial the prosecutor argued that an “innocent person is going to say: What are you talking about? I didn’t do that. I wasn’t there.”  Interestingly, Mr. Salinas was actually convicted at his second trial, his first trial ending in a hung jury.  The prosecutor placed much more emphasis on Mr. Salinas’s silence at the second trial.
           The law is relatively clear in this area where the accused is in formal police custody following arrest.  At that point, the defendant’s decision to remain silent cannot be used against him.  Supreme Court precedent first announced in Malloy v. Hogan has consistently held that one who chooses to remain silent should “suffer no penalty. . . for such silence.”  However, the law is not certain regarding the use of pre-arrest silence as evidence at trial.  The Supreme Court ruled in Jenkins v. Anderson that a defendant’s pre-arrest silence can be used to impeach his credibility if he testifies at trial.  In the present case, Mr. Salinas did not testify.

In Salinas v. Texas, Mr. Salinas was asked to voluntarily come to the police station and was not under arrest.  In fact, he was released at some time after the interview and was not arrested on the murder charges until 2007.  The question then presented to the Court is whether use as substantive evidence of his pre-arrest silence violated Mr. Salinas’s right against self-incrimination under the 5th Amendment to the U.S. Constitution.

            That the 5th Amendment right not to be “compelled to testify against oneself” should depend on pre-arrest or post-arrest silence seems to be a distinction without a difference. If a person is confronted with police questioning they can choose to either answer or not.  If their choice to remain silent is potentially used against them later, then they don’t really have a meaningful choice.  They are in essence potentially paying a penalty for refusing to answer police questions.  There are many reasons why an individual would choose to not talk with the police.  Many communities have longstanding distrust of the police, an unfortunate situation that makes such communities less safe. Furthermore, anyone who has watched television knows that "You have the right to remain silent".  What many do not know is that such silence could speak loudly years later at trial.  For the 5th Amendment to retaining meaning, it must include a right to remain silent whether under arrest or not. 

For more information on the case, various filings including the cert petition can be read here.

Saturday, January 12, 2013

Varlan Sworn in as Eastern District's Chief Federal Judge

U.S. District Judge Tom Varlan yesterday accepted the gavel as chief judge for the Eastern District of Tennessee in a ceremony packed with fellow judges, politicians, lawyers and prosecutors, reports Varlan is the first Greek-American to be appointed to a federal judgeship in the district and, now, as chief judge of that same district. Former Knoxville Mayor Victor Ashe served as master of ceremonies. Varlan was Knoxville's law director from 1988 to 1998 during Ashe's tenure and served as a legislative intern for Ashe. U.S. Rep. John J. Duncan Jr., R-Knoxville, spoke and said he played a "small role" in pushing for Varlan's appointment to the federal bench in 2003. He called Varlan "a man of integrity" with "the heart of a servant."

Tuesday, January 8, 2013

Tiny Typo Leads to Flawed Warrant and Excluded Evidence

What may have seemed like a small typo on a warrant amounted to enough reason for a judge to prevent prosecutors from using evidence collected as a result of the raid. The case involves a search of a Knox County driving school, a company operated by a retired homicide investigator.

The former murder detective, Don Wiser, has been accused of taking money in exchange for handing over certificates for having completed his driving school. The Sherriff’s Office says it raided Wiser’s office after two undercover officers went to the school and walked out with paperwork claiming they’d attended a 16-hour course when they really only spent two hours at the facility. Wiser vehemently denies the charges and says he is being targeted by the Sheriff’s department because he’s operating a competing driving school that has taken money away from the county.

So far Wiser appears to have clearly won the first round of the legal battle. His defense attorney pointed out that there was an error in the search warrant used by Knox County sheriff’s officers when they raided his business. What was the trouble exactly? The wrong date appeared on the paperwork.

The raid was carried out at his business on April 14, 2012, but the search warrant incorrectly listed the year as 2011. The Assistant District Attorney in charge of the case pointed out that there were several other places on the warrant that clearly indicated the year was 2012 and that the typo only occurred once. However, this was not enough for Knox County Criminal Court Judge Steve Sword.

Judge Sword said that while he might have agreed with prosecutors that the error was simply a typo, it did not matter because state law on the subject is clear. He said Tennessee rules left him no choice but to throw out the warrant as legally flawed. Given the flaw in the warrant, all evidence collected as a result of the warrant was also excluded as fruit of the poisonous tree.

Tennessee is one state that does not recognize the concept known as “good faith exception”. Other states and the federal system rely on the principle which says that so long as an officer has good faith in believing that the warrant he or she is exercising is valid, the evidence obtained as a result of such a good faith search can still be used.

In this case, the warrant says that the information used a basis for the search was obtained a year before the warrant was actually executed. That long of a gap makes the information too old to act on and thus an improper basis for the search.

Read:“Judge: Typo on search warrant of business means it's no good,” by Jamie Satterfield, published at

Saturday, January 5, 2013

31 DUI arrests reported for New Year's Eve in 16 counties around Chattanooga

The Times Free Press reports today that 31 DUI arrests occurred over New Years as part of the "No Refusal" enhanced enforcement.

The Tennessee Highway Patrol arrested 96 people on suspicion of impaired driving in the 16 counties that participated in "No Refusal" enforcement efforts over the New Year's holiday.

In Hamilton County, 31 were arrested for DUI suspicion and one individual was compelled to take a blood test, according to a THP news release. A total of 48 seat belt citations were issued in Hamilton County.

Twenty-five bar checks were conducted where troopers visited bars in Hamilton County to remind patrons to be careful on the roadway.

"It's awareness and promoting safety," THP Lt. John Harmon of the Chattanooga district said, when asked about the goal of sobriety checkpoints.

The use of the THP hotline, *847, skyrocketed over the holiday period. For the entire Chattanooga 12-county district, 310 calls were received. During the same time period over an extended weekend in December, only 58 calls were received, Harmon said.

The "No Refusal" law allows officers to seek search warrants for blood samples in cases where impaired driving is suspected but suspects refuse to take a Breathalyzer test.

This year's enforcement period ran from 6 p.m. Dec. 28 through New Year's Day. In Hamilton County, there were two sobriety checkpoints and two driver's license checkpoints.

"The locations are picked for safety, traffic conditions -- traffic flow and points where DUIs have been received in the past," Harmon said.

Preliminary reports from the THP indicate that five people were killed in three separate crashes in participating "No Refusal" areas, specifically Hamilton, Knox and Wilson counties. None was alcohol-related.

Statewide, seven people were killed in five crashes during the New Year's Eve period, compared to five vehicular fatalities during last year's period. Two of the vehicle occupants were not wearing seat belts and two were pedestrians.
By Lee Davis


The Administrative Office of the Courts has received 24 applications for the seat on Judicial Nominating Commission created by the retirement of commission member Theresa Lee.

The comment period is now open and the Administrative Office of the Courts invites public comment regarding the applicants. Comments will be open until 4:30 p.m. CST Friday, January 18. The public may submit comments via email to or via mail to:

AOC/Judicial Nominating Commission
Attn: Debbie Hayes
511 Union St Suite 600
Nashville, TN 37219

After the comment period, the Lieutenant Governor will have 14 days to fill the vacancy on the commission. The newly appointed commissioner will serve out the remainder of commission member Lee’s term, which expires June 30, 2015

The applicants are:

William J. Carver, Attorney, Blount County
Carl E. Colloms, Retired, Bradley County
Duncan V. Crawford, Attorney, Blount County
John P. Dreiser, Attorney, Knox County
John E. Eldridge, Attorney, Knox County
David A. Golden, Senior Vice President, Chief Legal Officer and Corporate Secretary, Hawkins County
Ray H. Jenkins, Attorney, Knox County
Roger E. Jenne, Attorney, Bradley County
Edward L. Kershaw, Attorney, Greene County*
John K. King, Attorney, Knox County
McKinley S. Lundy, Jr., Associate Attorney at Patrick, Beard, Schulman & Jacoway, P.C., Hamilton County
Sean W. Martin, Attorney, Hamilton County
William E. Mason, Attorney, Knox County
Dale J. Montpelier, Sr., Attorney, Knox County
Carrie O'Rear, Partner at Norton, Spangler & Cramer, P. C., Knox County
Martin L. Pierce, Attorney, Hamilton County
Rick L. Powers, Senior Attorney, Arnett, Draper and Hagood, Loudon County
Robert E. Pryor, Sr. Attorney, Pryor, Flynn, Priest & Harber, Knox County
John T. Rice, Attorney, Hamilton County
Charles Riggs, UTC Police Department/Private Process Server, Rhea County
J. Randall Shelton, Attorney, Hamblen County
William Arthur Simms, Civil Trial Lawyer, Knox County
Wanda G. Sobieski, Attorney, Knox County
Douglas C. Weinstein, Attorney, Knox County
*Application received after deadline