Showing posts with label Constitutional Law. Show all posts
Showing posts with label Constitutional Law. Show all posts

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

Monday, October 29, 2012

Looking Through Your Smartphone: Electronic Pocket Litter and Police Searches

A recent article discussed a seemingly boring but ultimately important issue that may be raised before the Supreme Court in the coming session: pocket litter. “Pocket litter” is a phrase used in law enforcement circles to refer to items of miscellaneous information carried on a person. This comes into play when a person is arrested or otherwise detained by an officer and they are subject to a search.

When law enforcement officers arrest someone, they conduct a thorough search of the suspect and his or her immediate possessions. This is what is known as a “search incident to arrest.” Any and all items found during this search are deemed admissible in Court. During a typical search officers are trained to look for items that might provide useful evidence for the case or that might cause harm to themselves or others. Another use of such searches is to gather information that might provide a clue about other individuals involved in the alleged criminal activity.

Seemingly mundane items found in people’s pockets or purses can provide a significant amount of information. Slips of paper with quickly written messages, phone numbers, names, addresses business cards, etc. all make for great leads. Beyond these obvious examples, scraps of paper including receipts, bus passes or airplane tickets also provide valuable information to those seeking to identify a suspected criminal and any possible criminal associates.

One thing that has happened on this front given the technological changes seen recently is that the items that often make up such pocket litter have changed. Originally the term referred only to small scraps of paper generally containing only a relatively small amount of information. Today, the term has grown to include electronic devices such as smartphones, tablets, iPods, and even laptops from which huge amounts of information can be collected. These devices carry voicemails, call and text logs, photos, Internet browser history and even GPS information.

The question facing many appellate courts today is just how far such a search can go when high value electronic pocket litter is involved. Cellphones in particular present a puzzling gray area, as there have been conflicting rulings between various U.S. Circuit Courts. This conflict makes it more likely that the issue will end up before the Supreme Court at some point to help clarify the issue. Judges confronted with such facts often find themselves lost, comparing cellphones to diaries while trying to analogize to prior cases from decades ago that have little if any relevance to the challenges they face today. The Supreme Court should step in and shed light on the issue, hopefully catching the legal system up to changes in technology.

Read: “Pocket Litter: The Evidence That Criminals Carry,” by Scott Stewart, published at

See Our Related Blog Posts:
U.S. Supreme Court to Rule on DUI Forced Blood Draws
Sixth Circuit says cell phone GPS data can be used to track criminals

Friday, June 15, 2012

State v. Anderson – The Tennessee Court of Criminal Appeals Reverses a Finding of Exigent Circumstances

By Stevie Phillips

Deputies were dispatched to Stoney Anderson’s neighborhood at about 1 a.m. in response to an unknown disturbance involving shots fired.  They encountered a car leaving Anderson’s home.  The occupants told them that they were coming from a small get together and had not heard any shots.  Nonetheless, the deputies proceeded to Anderson’s home and walked around to the back of the house.

As the deputies were walking onto the back deck, Anderson exited the house holding a duffle bag.  When asked, he told them that he had not heard any shots.  At this point, however, the deputies could smell marijuana and saw several people sitting at the kitchen table.  They then entered Anderson’s home and eventually searched the duffle bag where they found marijuana and paraphernalia. 

Before trial, Anderson moved to suppress the evidence found in the bag.  The trial court denied his motion on the basis that exigent circumstances existed to justify the warrantless search, namely that the deputies were responding to an immediate risk of serious harm to themselves and others based on their concern that the bag contained a weapon. 

On appeal, Anderson argued that, even if there were exigent circumstances, those circumstances could not support the search of his bag because the deputies created the exigency when they unconstitutionally intruded into the curtilage of his home.  The Court of Criminal Appeals agreed.

In the Court’s analysis, Anderson’s back deck was “an area to which the activity of home life extends” and therefore plainly within the curtilage of his home.  The Court also determined that the deputies’ intrusion onto the deck without a warrant was unreasonable because they had no information connecting Anderson’s house to the disturbance.  Because any risk to the deputies’ safety resulted from their violation of Anderson’s constitutional rights, even a reasonable fear for their safety could not support the search of Anderson’s bag.

In sum, the exigent circumstances exception to the warrant requirement does not apply if the police themselves create the exigency.  Kentucky v. King, 131 S. Ct. 1849, 1857-58 (2011).  Case dismissed. 
The full opinion can be found here. 

Tuesday, April 3, 2012

U.S. Supreme Court Permits Strip Searches of Any Inmate No Matter the Crime

Imagine, if you will, that you were arrested for a "minor" crime such as failing to pay child support. Imagine you were taken to jail, and before you were placed in the general population, you were strip searched. Not only have you never touched drugs in your life, but you aren't a violent person. So, what are they searching for? Sounds like an unreasonable search under the 4th Amendment of the U.S. Constitution, right? Wrong. According to the U.S. Supreme Court, corrections officers are now permitted to perform a strip search on any inmate, at any time, regardless of the type of criminal charges that inmate is facing.

In a sharply divided decision, the Court decided the case of Florence v. County of Burlington centering around the arrest and subsequent strip search of Mr. Albert Florence. Mr. Florence was riding in the car with his wife when she was pulled over for speeding. The officer realized that there was a warrant out for Mr. Florence's arrest based on an unpaid fine. Mr. Florence spent a week in jail and was strip searched at least twice. Mr. Florence argued that since his alleged crime involved neither drugs nor violence, the corrections officers did not have reasonable suspicion to search and, thus, the search was unreasonable under the 4th Amendment. The Court disagreed. Focusing on safety, Justice Kennedy (author of the opinion), stated that "people detained for minor offenses can turn out to be the most devious and dangerous criminals." He used two examples of this: Timothy McVeigh, the man who carried out the Oklahoma City bombing, who was arrested for driving without a license; also, one of the September 11th high jackers was pulled over for speeding two days before he allegedly high jacked flight 93. He also cited to prior case law and reasoned that the corrections officers' interest in maintaing safety in jails outweighs the potential for unreasonable and unnecessary searches of certain inmates. Further, he stated that by establishing strict regulations regarding strip searches, more inmates would be deterred from trying to smuggle contraband into the jail in the first place.

The 5-4 opinion was issued with the majority of the Court leaning on the conservative side. The dissenters argued in favor of the standard that requires corrections officers to have reasonable suspicion of contraband in order to execute a strip search. To execute a strip search on a person accused of committing a minor crime that deals neither with drugs nor violence, seems, to some, to be equivalent to an unreasonable search of a person without a warrant. The question now seems to be: Why warrantless searches or searches without probable cause are violations of the 4th Amendment and a strip search of a person who is highly unlikely to ever attempt to smuggle contraband into a jail is not a violation of the 4th Amendment? The answer may never be revealed.

Monday, March 12, 2012


March 9, 2012

Nashville – In three unanimous decisions, the Tennessee Supreme Court significantly changed the tests and procedures for determining when multiple convictions are permissible under the state and federal constitutions.

In State v. Watkins and State v. Cross, the state confronted the issue of whether multiple convictions under different statutes violate the state constitutional prohibition against double jeopardy. After reviewing historical developments, the Court concluded that the time has come to abandon the test previously announced by the Court in State v. Denton and adopt the same elements test announced by the U.S. Supreme Court in Blockburger v. United States. The Blockburger test is already used by federal courts and many state courts. It requires courts to focus on the elements of the crimes and the legislative intent when determining whether multiple convictions violate double jeopardy. Adopting the Blockburger test will allow Tennessee courts to decide double jeopardy claims in a more straightforward manner.

The Court emphasized that there cannot be a double jeopardy violation unless the convictions arise from the same act or transaction. Similarly, the Court pointed out that if the Legislature expressly states that multiple convictions are permissible or if each offense includes a different element, courts will presume the Legislature intended to permit multiple punishments.

In State v. White, the Supreme Court announced changes in cases involving charges of kidnapping and an accompanying felony. The Court concluded that a separate due process test is no longer necessary for determining whether convictions for kidnapping and an accompanying felony may be upheld. Instead, a properly instructed jury must decide whether a defendant who detains a victim during a crime, such as rape or robbery, can be convicted of kidnapping in addition to the other crime. When the charges result in a kidnapping conviction, the trial and appellate courts must uphold the conviction if the evidence is legally sufficient. The opinion overrules the approach taken in State v. Anthony and refined in State v. Dixon by requiring a jury to determine if the evidence is sufficient to support a conviction for kidnapping and another offense. The opinion also overrules State v. Cozart, in which the Court concluded that judges, as opposed to juries, were required to determine whether a separate kidnapping conviction violated constitutional standards.

In today’s decision, the Court set out temporary jury instructions and invited the Tennessee Pattern Jury Instruction Committee to develop permanent guidelines for future cases. The Court also pointed out that its decision does not create a new rule of constitutional law and, therefore, does not require retroactive application.

  1. State v. Watkinsopinion authored by Chief Justice Cornelia A. Clark
  2. State v. Crossopinion authored by Justice William C. Koch, Jr.
  3. State v. White, opinion authored by Justice Gary R. Wade
The above was  released by the Tennessee Supreme Court and the content of this post is a verbatim statement from the court.  I believe it is fair to quote from each case and this release as authority from the Court.

Tuesday, February 7, 2012

Georgia Supreme Court Holds Assisted Suicide Legislation Unconstitutional

The Georgia Supreme Court held yesterday that a law banning advertisements for assisted suicide services violates the constitutionally protected right to freedom of speech. The case stemmed from the arrest of members of the Final Exit Network in 2009. Four members of the group were charged with assisting in the suicide of a cancer patient. The members were arrested after they were approached by an undercover GBI investigator posing as someone in need of assisted suicide. According to the testimony of the investigator, as his suicide date was approaching, Ted Goodwin (former President of the group), "walked the agent through the steps and demonstrated how he would hold the agent's hands to stop him from removing the 'exit bag'." The exit bag is a devise used by the group to aid in the suicide.

Once the group members were arrested, they immediately challenged the law's constitutionality arguing that it violated their rights of freedom of speech. Specifically, they argued that the law prescribed punishment for those people involved in assisted suicide only if they spoke publicly about it. The GA Supreme Court agreed. They reasoned that the law does not prohibit the act of assisting in suicide, rather it only prohibits advertising or promoting assisted suicide. This is an obvious ban on a particular type of speech; the very thing the First Amendment is supposed to prevent. The Court stated in part,
"The State has failed to provide any explanation or evidence as to why a public advertisement or offer to assist in an otherwise legal activity is sufficiently problematic to justify an intrusion on protected speech rights."
The Court further suggested that if the State has an interest in the preservation of human life, they would propose legislation which prohibited the act of assisted suicide rather than prohibiting the public speech. Sources believe that the General Assembly is preparing to consider legislation that prohibits assisted suicide within the next term.

Thursday, December 22, 2011

TN Supreme Court Examines the Constitutionality of Two Murder Convictions and the Subsequent Death Sentence

The TN Supreme Court recently decided the case of Leonard Smith, convicted murderer on death row. The long case with a complicated procedural history began in 1985. He was convicted of murdering John Pierce in 1985 and of murdering Novella Webb in 1989, both occurring in the process of an armed robbery.

There were four issues on appeal. The first, and arguably the most interesting, is whether Smith was denied his Constitutional right to a fair trial at his 1995 re-sentencing hearing when his counsel failed to investigate and present evidence in support of his motion to recuse the presiding judge. Judge Brown, presiding judge over Smith's case, also served as a Prosecutor in Carter County. In May of 1984, Smith was indicted in Carter County for simple robbery and DUI. Prosecutor Brown (now Judge Brown) was assigned to prosecute him. Therefore, Smith was being prosecuted at the same time in two different counties for four crimes: the two murders and the robbery and DUI in Carter County. Smith appealed his convictions for the simple robbery and DUI but was denied relief. Meanwhile, Prosecutor Brown later became Judge Brown and presided over Smith's 1995 re-sentencing hearing.

When presented with these facts, Smith's attorneys neglected to investigate further into Judge Brown's involvement in the prior convictions to determine whether he had an obligation to recuse himself.

In determining whether Smith's counsel was ineffective, the Court looked to the United State Supreme Court's holding in Strickland v. Washington. Specifically, the Court in Strickland stated that the ultimate focus on the effectiveness of an attorney is "whether counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Judicial impartiality is a fundamental requirement in the guarantee for due process. Therefore, the test is an objective one: the Court examines whether the Judge is likely to be "neutral" or whether there is an unconstitutional "potential for bias."

The Court held that Smith's counsel were ineffective when they neglected to investigate or further pursue the motion to recuse. This ineffective counsel resulted in prejudice to Smith in that he was denied his right to a fair trial before an impartial tribunal. Particularly damaging to Smith's case was Judge Brown's involvement in the re-sentencing. As part of justification for a sentence of death, a judge should consider any aggravating factors such as prior violent felony convictions. Not only did Judge Brown know of the prior conviction for robbery, but he was the attorney that prosecuted Smith for that crime. This is clearly a situation that would point to a "potential for bias" by the Judge.

The Court examined three other issues: 1) whether Smith met the definition for "intellectual disability" and would thus be precluded from receiving a death sentence; 2) whether Smith's counsel were ineffective in their voir dire of potential jurors when they neglected to ask the jurors if they or someone close to them had been victims of a crime; and 3) whether the post-conviction claims Smith brought for the Pierce murder were barred by the statute of limitations.

The Court decided the lower courts should be given the opportunity to further examine whether Smith met the definition of "intellectual disability." The case was remanded back to sentencing. If found to have an "intellectual disability," Smith cannot be sentenced to death. Next, the Court decided that his attorneys were ineffective when they neglected to ask the potential jurors if they or anyone close to them had been a victim of a crime. The boyfriend of the daughter of one of the jurors was murdered in the recent years before Smith's trial. When asked if that would impair his ability to be impartial, the juror responded that he could remain impartial throughout his decision. Although counsel was ineffective, since Smith could not prove actual bias, he could not be afforded a remedy. Lastly, the court held that Smith's post-conviction claims were barred by the statute of limitations. The statute of limitations for bringing post-conviction claims is three years from the final action of the highest appellate court. Smith waited twelve years to bring post-conviction claims for the Pierce murder. The Court held this was obviously in violation of the statute of limitations and the claims were barred.

After all of that it might be difficult to tell where exactly Smith stands. Here is the rundown:
  • Smith's conviction for the Pierce murder are affirmed.
  • Smith's conviction for the Webb murder is affirmed.
  • Smith's death sentence was vacated, and the case is remanded to the trial court for hearings on Smith's mental capacity. These hearings are to be conducted by a judge other than Judge Brown.

Wednesday, December 14, 2011

President Obama Fails to Veto the National Defense Authorization Act

In a surprising move today by President Obama, the White House issued a statement supporting the controversial National Defense Authorization Act. In an earlier blog post, we highlighted some of the more controversial provisions of the Act. In short, critics fear this law oversteps the bounds separating government power and civil liberties. One of the main provisions authorizes the U.S. military to arrest and indefinitely detain alleged Al Qaeda members or other terrorist operatives captured on U.S. soil.

The news comes as quite a shock to many people due to President Obama's recent assurance that he would veto the NDAA when it fell on his desk. The reasoning behind the "change of heart," according to CBS News, was because the military mandate in the final version of the act had been "softened." The statement issued by the White House said in part,
"We have concluded that the language does not challenge or constrain the President's ability to collect intelligence, incapacitate dangerous terrorists, and protect the American people, and the President's senior advisors will not recommend a veto."

Kenneth Roth, executive director of Human Rights Watch states, "By signing this defense spending bill, President Obama will go down in history as the president who enshrined indefinite detention without trial in U.S. law. In the past, Obama has lauded the importance of being on the right side of history, but today he is definitely on the wrong side."

Even FBI Director Robert Mueller opposes the Act because of the restraints it puts on the federal government's ability to investigate and prevent terrorism. He said this when he expressed his concern, "My concern is that you don't want FBI agents and the military showing up at the same time, with some uncertainty as to who is in control."

This news will no doubt cause controversy for President Obama in his upcoming bid for reelection. What is more important, however, is the effect it will have on the civil liberties of U.S. citizens in the future. Unfortunately, only time will tell.

Saturday, December 3, 2011

U.S. Senate Passes The National Defense Authorization Act

The Huffington Post reports today that the U.S. Senate voted 93 to 7 to pass the National Defense Authorization Act (NDAA). In an interesting article featured on the American Constitution Society Blog, Stephen Vladeck, a law professor and Associate Dean at American University Washington College of Law, highlights some of the more controversial portions of the NDAA.

The NDAA, passed just over a decade after the Authorization for the Use of Military Force (AUMF), seems to greatly increase governmental power to detain persons suspected of participating in and aiding terrorist activities against the U.S. While terrorism awareness and prevention have obviously been priorities in the government since September 11, 2001, many believe this Act crosses lines that should have never been drawn. The AUMF left many questions unanswered and over the last decade, courts have attempted to answer some of these questions. For instance, they have reached conflicting views on whether AUMF authorizes the detention of U.S. citizens or non-citizens lawfully present within the United States. Most importantly though, the courts have consistently held that the purpose of the AUMF was to authorize the government to use military force on those reasonably believed to be tied to the September 11, 2001 terrorist attacks. A main concern of the NDAA, according to Vladeck, is that it severs the requirement that detention be tied to involvement with the September 11, 2001 attacks.

Many say that the NDAA expands the authority to detain to dangerous measures, disintegrating the boundaries used to protect the liberties of U.S. citizens. The NDAA authorizes, in addition to the AUMF,
"any detention of a person who was a part of or substantially supported Al Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces."

According to Vladeck, "the NDAA effectively authorizes the military detention of any individual who provides assistance anywhere in the world to any group engaged in hostilities against any of our coalition partners, whether or not the United States is in any way involved in (or even affected by) that particular conflict."
An obvious question is what the government would define as "direct support" of these enemy forces: money, outward praise, logical assistance, full-fledge involvement, etc. This particular language is undoubtedly vague and could include many different actions.

Another question with the language is what groups are included in the term "associated forces" because many may believe human rights activists, political protestors and even the infamous "occupiers" are "associated forces." Would that then permit the government to detain members of these "associated forces?"

Former FBI agent and author of the article in the Huffington Post, Coleen Rowley, expresses concern over another part of the NDAA; one that would be particularly damaging to the application of certain provisions of the Bill of Rights. According to Rowley, the NDAA would authorize the government to "decide who gets an old-fashioned trial (along with a right to an attorney and right against self-incrimination) and who gets detained without due process and put into a modern legal limbo." Some, including Rowley, believe the NDAA allows the government to treat U.S. citizens suspected of aiding terrorist groups as if they were "enemy combatants", and therefore, not to be afforded the same due process rights as other U.S. citizens accused of various crimes.

The biggest fear among the critics of the Act is that the already powerful U.S. Government would be given far more power than was originally intended and drafted into the Constitution. That U.S. citizens could be detained without due process for potential "support" or "aid" of enemy forces goes against the entire purpose of the Constitution.

For the vocal critics against the NDAA and all of those who may be quietly doubting its constitutionality, it seems President Obama has every intention of vetoing the Act once it reaches his desk. While that may provide some comfort, many fear this is only the first step to an eventual decline in the everyday liberties of U.S. citizens.

Wednesday, October 26, 2011

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

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

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

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

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

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

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

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

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

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

Monday, October 17, 2011

TN Supreme Court Affirms Defendant's Four Violent Felony Convictions

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

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

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

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

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

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

Tuesday, September 13, 2011

Suit Against City of Chattanooga and the Chattanooga Police Dept. Begins in Federal Court

Plaintiff, Mickel Hoback, a former Chattanooga Police Department Officer is suing the City of Chattanooga for $1.5 Million claiming the City violated his rights under the Americans with Disabilities Act when he was wrongfully terminated from the department for having Post Traumatic Stress Disorder (PTSD). Hoback served one year in Iraq, returning to work with the CPD in 2006. According to the federal complaint, former Chief of Police Freeman Cooper fired Hoback in 2009 upon learning of his PTSD.

During his cross-examination on Tuesday, Hoback admitted that he spoke to a counselor in 2009. During these sessions he admitted that his counselor suggested Mr. Hoback pursue a less stressful profession. He also admitted that he is on regular medication for his PTSD.

Once Chief Cooper learned of Hoback's condition, he ordered Hoback to undergo a mental evaluation with a city-contracted psychiatrist. Hoback was deemed unfit for duty after this evaluation. However, according to Hoback, he saw two other psychiatrists after this evaluation and was told he was fit for duty.

Hoback is asking for his job back with backpay and benefits, as well as $1.5 million for "humiliation and embarrassment, invasion of privacy, emotional pain and suffering, and mental anguish."

The trial will continue on Wednesday morning.

Sunday, September 11, 2011

U.S. Supreme Court to Examine the Constitutionality of Unreliable Eyewitness Identifications

As we continue to preview the upcoming season of the U.S. Supreme Court, we will take a look at the case of Perry v. New Hampshire. This case presents the question of whether police misconduct is required to successfully exclude unduly suggestive eyewitness identification evidence as a violation of due process. Perry was identified by a witness to a burglary during an interview at her apartment by an officer. When asked the first time for a description of the perpetrator, the witness stated it was a "tall black man." When the officer asked for a more detailed description, the witness looked out her door, pointed to Perry and stated the perpetrator was the man standing with another officer in the parking lot.

Normally, when eyewitness identification is excluded for due process violations, it involves police misconduct. For example, police sometimes make picking the suspect out of a line-up unnecessarily easy. If the suspect is a tall and skinny black male, the line-up may consist of white males and heavy-weight black males; picking out the suspect becomes extremely easy for the witness regardless of whether they actually recognize the suspect.

Both parties in Perry's case agree that there was no police misconduct in this situation. However, the witness' identification was highly suggestive since her only option was a tall black man standing next to a police officer. Perry argues that the purpose of excluding highly unreliable evidence at trial is to preserve evidentiary integrity, not to deter police conduct. Based on this argument, whether there is police misconduct should be immaterial.

Given that argument, the future ruling of the Supreme Court may seem pretty clear. The problem, however, is that a favorable ruling for Perry would call into question tons of evidence that has previously been introduced in many trials. If the government violates the defendant's due process rights just by admitting unreliable evidence, then an increased number government witnesses will be barred from testifying.

Many witnesses for the government are not just innocent bystanders to a crime. It is not uncommon for a co-defendant to testify against the defendant at hopes for receiving a lenient plea agreement. Does the fact that the co-defendant may have an incentive to testify for the government make this testimony unreliable? Maybe. Should the fact that it may be unreliable warrant its exclusion? I'm not sure it should go that far. It is the job of the jury to weigh the evidence in order to determine the correct verdict. Instead of taking that job away from the jury entirely, a possible solution might be to educate the jury to the general unreliability of eyewitness testimony. With more knowledge of the potential for unreliable eyewitness identification, the jury may be able to make a more informed decision when deciding whether to give credit to the testimony.

This will no doubt be an important issue before the Supreme Court, and we will continue to watch its progress.

Thursday, August 18, 2011

Five Tobacco Companies Sue the FDA

On Tuesday, five tobacco companies filed suit against the FDA in response to a new law which places graphic warning labels on cigarette packaging. Some of the pictures include graphic images of unhealthy lungs, unhealthy mouths and teeth, and other displays of the potential physical harm caused by smoking. They will also include the phone number for the stop-smoking hotline. The five tobacco companies include R.J. Reynolds Tobacco Co., Lorillard Tobacco Co., Commonwealth Brands, Inc., Ligget Group, LLC., and Santa Fe Natural Tobacco Co. Inc.

Specifically, the complaint stated,

"Never before in the United States have producers of a lawful product been required to use their own packaging and advertising to convey an emotionally charged government message urging adult consumers to shun their products."

The five companies also argue that this is exactly the type of compelled speech the First Amendment is supposed to prevent. While it is important that people are educated on the effects of smoking, they argue, this regulation "completely disregards core constitutional principles."

In defense of the law, Health and Human Services Secretary Kathleen Sebelius stated, "These labels are frank, honest and powerful depictions of the health risks of smoking and they will help encourage smokers to quit."

If the FDA gets its way, the new law will require the warnings to appear on cigarette packaging beginning October 22, 2012. We will keep you updated on any and all progression from this suit.

Wednesday, August 10, 2011

The Use of GPS Tracking Devices Without a Warrant is an Upcoming Issue Before the U.S. Supreme Court

Looking ahead at the next U.S. Supreme Court season, one important issue the Court will have to deliberate is whether law enforcement officers need a warrant for the use of a GPS tracking device on a suspect. This is the case of Antoine Jones, a suspected drug trafficker in Washington, D.C. In order to try to tie Jones to a drug house in Maryland, FBI Agents and local law enforcement installed a GPS tracking device on the car registered to Jones' wife. Officers obtained a warrant that permitted a 10-day period of surveillance, but they installed the tracker after the 10 days had expired. Nevertheless, over the next month, law enforcement kept track of every movement of the Jeep, including times when Jones' wife and kids were traveling. Once they tied Jones to the drug house in Maryland, law enforcement was able to execute search warrants for the house and other property. They found large amounts of powder and crack cocaine, and Jones was convicted of conspiring to sell drugs and sentenced to life in prison.

Jones later appealed arguing that the prolonged use of the GPS tracking device without a warrant constituted an illegal search. The D.C. Circuit Court of Appeals ruled in Jones' favor, stating that he had a reasonable expectation of privacy and thus was entitled to Fourth Amendment protection. The Court's reasoning was that Jones had a reasonable expectation of privacy in his movements as a whole over that month, and that his actions were not "exposed" to the public (which would negate the need for a warrant). The Court stated this,
"First, unlike one's movements during a single journey, the whole of one's movements over the course of a month is not actually exposed to the public because the likelihood anyone will observe all those movements is effectively nil. Second, the whole of one's movements is not constructively even though each movement is exposed, because that whole reveals more -- sometimes a great deal more -- than does the sum of its parts."

The government argues that based on U.S. v. Knotts, the installation of the GPS tracker did not require a warrant. Knotts held that officers did not need a warrant to install a beeper tracking device to a barrel of chloroform being transported in order to manufacture illegal drugs. The government argues that the use of a beeper and the use of a more technologically advanced GPS tracking device is one in the same.

Jones' attorney, Stephen Leckar argues, however, that Knotts is different from this case because law enforcement in Knotts had to remain close to the beeper in order for it to work. Therefore, they were already tracking the chloroform barrel themselves; the beeper just "augmented their senses." The GPS tracking device, he says, completely supplants the officers' senses, making the two cases different.

What both sides agree on is that this case may prove to be monumental to the status of the Fourth Amendment. Critics worry that a favorable ruling for Jones would open up many avenues of warrantless surveillance, stomping on the privacy rights of citizens. Many, including John Wesley Hall (a criminal defense attorney in Arkansas), do not believe the government is merely chipping away at the Fourth Amendment; rather, it is being "blasted away."

Continue to check back for updates on this and other upcoming issues in the Supreme Court.

Monday, August 8, 2011

What's Next for the U.S. Supreme Court?

An interesting article in the New York Times last week focuses on what lies ahead for the U.S. Supreme Court. Specifically, it focuses on the future of the four left-wing justices individually and as a whole. After a relatively quiet season, these justices may face some tough times over the next few seasons.

The article first discusses the roles of the two newest members of the Court, Justices Sonya Sotomayor and Elena Kagan. The two female justices have voted the same way in 96% of the cases they have heard. With three female justices on the bench, the question becomes whether we will see more gender discrimination cases. If so, the three justices will need to persuade one of the male right-wing justices to strengthen the standard needed to restrict gender discrimination from its current position at the bottom of the spectrum. This task may prove difficult and will likely require heavy debate.

Next, the article discusses the role of the swing-vote, Justice Anthony Kennedy. The author takes language from some recent opinions written by Kennedy, and speculates as to which way he may vote on some of the upcoming issues. For instance, in Kennedy's opinion for the case involving the release of thousands of inmates from California prisons due to inadequate medical care, he states that the health care system in prisons was "incompatible with the concept of human dignity." This may be a hint on how he might rule on President Obama's Health Care Reform Act. To quote the author of the article, "So if prisoners are entitled to adequate care, you'd think the rest of us would be too."

There is also speculation as to whether Justice Kennedy might one day support same-sex marriage because of his opinion in the 2003 case which threw out the sodomy prosecution of two homosexual males.

The last topic of the article deals with President Obama and his ability to appoint federal appellate judges. Since he took office, Obama has yet to appoint any democratic federal appellate judges. This is odd to some liberals because of Obama's strong stance on constitutional rights. Many thought he would load the federal appellate bench with left-wing liberals. Instead, he has left the federal bench with at least 80 vacancies for more than two years.

It will be interesting to see how the Court will progress with the next season. It is sure to be an interesting one with hot-button topics such as the Health Care Reform Act, same-sex marriage, and abortion rights.

*Photo courtesy of Alex Wong/Getty Images North America.*