Sniffing Out Crime: Supreme Court Considers Case Regarding Limits on Drug Dogs

• JOELIS JARDINE v. FLORIDA

A case from Florida asks the question if a police dog’s behavior outside a house gives the officers the right to get a search warrant for illegal drugs inside the home, or does a dog’s sniff amount to a constitutional search?

The Florida Supreme court said that the dog’s ability to detect marijuana inside a home from the outside of a closed front door breaches a constitutional line. The Florida state attorney, Pam Bondi, is hoping that the Supreme Court of the United States will overturn that ruling. Legal experts agree that the Court will, in fact, hear this very important case and make a ruling. The Supreme Court could decide this month whether to take the case, the latest in a long line of disputes about whether the use of dogs to find drugs, explosives and other illegal or dangerous substances violates the Fourth Amendment protection against illegal search and seizure.

The case is being monitored by law enforcement agencies across the country that make use of dogs in the search for illegal substances. The dog in question, Franky, is now retired but is responsible for the seizure of more than 2.5 tons of marijuana – and $4.9 million dollars of drug-contaminated money. The chocolate lab spent most of his career sniffing around the nation’s airports.

The U.S. Supreme Court has heard four dog sniffing cases before – two of the previous cases involved the use of drug dogs after a traffic stop, one involved airport luggage, and the other one involved a package in transit. If they agree to hear this case, it will be the first one that deals with a dog and a private residence. 

Time and again, the U.S. Supreme court has ruled that the home is entitled to greater privacy than roads or public places. The justices ruled in 2001 that police could not use thermal imaging technology to detect marijuana growers from outside the home since the equipment could also detect lawful activity, such as intimate details about when the occupants were bathing. And it is already well established, that officers can knock on your front door, but if you refuse to open up and talk, the officers need to get a warrant to come inside.

The case is Florida v. Jadines, and in it, Joelis Jardines was arrested in 2006 for trafficking after police found 179 marijuana plants in his home when a drug dog detected smells from outside his door. His attorney challenged the search saying it was an unconstitutional intrusion into his home by law enforcement. The evidence was thrown out in a lower court, then reversed by an appeals court, but the Florida Supreme Court ultimately sided with the original judge. The recent decision has created a conflict within Florida as earlier rulings decided that a dog’s sniff does not amount to a search. 

Read: 

• “Decided by a nose? Court ponders drug dog’s sniff,” by Curt Anderson, published at AJC.com.
• JOELIS JARDINE v. FLORIDA

Earlier:

• Supreme Court to Hear Arizona Immigration Law Case 
• U.S. Supreme Court to Revisit the Confrontation Clause... Again 

TN Supreme Court adopts new ethics rules for Judges

• TENNESSEE SUPREME COURT ADOPTS NEW ETHICS RULES FOR JUDGES; OUTLINES PROCEDURE FOR RECUSALS

The Tennessee Supreme Court has adopted a comprehensive revision to the Code of Judicial Conduct, which sets forth the ethics rules for Tennessee judges. The new Code of Judicial Conduct, which is Tennessee Supreme Court Rule 10, will take effect on July 1, 2012.

Among the principal changes to the Code of Judicial Conduct is the addition of a new procedure for pursuing the recusal of a judge, along with a new process for seeking an expedited appeal if a motion for recusal is denied.

Under the new recusal procedure, judges will be required to provide, in writing, grounds for denying any motion for recusal. And, in cases where the recusal is granted, the rule outlines the process for designating a new judge in the case.

In the new rule, the Court also establishes the process for seeking an expedited appeal should a motion for recusal be denied. Should a judge deny a motion for recusal, an accelerated appeal may be filed with the appropriate appellate court within 15 days of the judge’s ruling. The appellate court will then make a decision on an expedited basis.

The Supreme Court also eliminated the ability for judges to make contributions to political campaigns or political organizations. However, the rule allows judges to purchase tickets to attend campaign events.

In following the American Bar Association’s model rules of judicial conduct, the Court adopted a new provision regarding the disability and impairment of a judge or attorney. The new rule instructs judges to take “appropriate action”, such as referral to a lawyer or judicial assistance program, should a judge have reasonable belief that another judge or attorney is impaired by drugs, alcohol or other physical, mental or emotional condition.

“Maintaining a high standard of judicial ethics is paramount to the public’s trust and confidence in the courts and the judges who preside over them,” said Chief Justice Cornelia A. Clark. “We believe these changes to the Code of Judicial Conduct will provide Tennessee judges with greater guidance for conducting the business of the courts in a fair, impartial and ethical manner.”

The new Code of Judicial Conduct was adopted as a result of a petition filed by the Tennessee Bar Association (TBA) to make changes to the current ethics rules. The TBA’s proposed rule changes were developed by a 13-member task force of attorneys and judges.

The Supreme Court filed the TBA’s proposed rules for public comment in March. Following the public comment period, the Supreme Court held oral arguments in December to discuss some of the issues in the TBA’s proposed rule.

Tennessee's Voter ID Law Could Face Potential Legal Action

The Times Free Press reported recently that the controversial Voter ID law enacted by Governor Bill Haslam may face a challenge in court. While those who disagree with the law are not saying much, it has been confirmed that a "law suit is being contemplated." Attorney Gerard Stranch of Nashville and general counsel for the Tennessee Democratic Party confirmed the potential for a law suit, but said that he hoped the legislature would change the law this month.

The controversial law, which went into effect on January 1, requires voters to present a government-issued photo ID in order to vote. Those supporting the law state it is necessary for preventing voter fraud. Interestingly enough, those in opposition to the law can only recognize one documented occurrence of voter fraud in the state of Tennessee. What many believe is the real reason for the law is an alleged national GOP effort to "disenfranchise millions of minority, elderly, young, and low-income voters across the U.S. before the upcoming 2012 election." Often times, these laws have a disparate impact on the socio-economic groups mentioned above who are more likely to lack the resources necessary to obtain a government-issued photo ID whether it be a lack of funds or a lack of proper documentation.

Many believe the recent rejection by the U.S. Department of Justice of a South Carolina law similar to Tennessee's will provoke the Tennessee Legislature to re-evaluate the law and eventually overturn it. The basis for this rejection is that the South Carolina law discriminated against minorities. According to proponents of the Tennessee law, South Carolina is under a different scrutiny than Tennessee when it comes to enacting Election laws. While South Carolina must seek approval by the U.S. Department of Justice before enacting any Election laws, Tennessee is not required to seek such approval. Because of this, supporters of the law believe legal action would be pointless.

Supporters of the law point to many efforts the Tennessee government has made to make this requirement easier on its citizens. For instance, driver services centers will be open the first Saturday of every month to help those in need of an ID obtain one. An ID issued for non driving purposes is also available for no charge unlike a driver's license. These efforts, supporters claim, prove that this law was not enacted with the purpose of creating a disparate impact on minorities and the elderly.

The citizens of the State of Tennessee will most likely have to wait this one out to see what happens. From the looks of it, either the TN Legislature will revisit the law later this month or those against the law will likely bring legal action. We'll keep you updated on its progress throughout the coming months.

New DUI law in effect

A new practice in DUI enforcement is now law.


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

The exact language of the statue says: 


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

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


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

Convicted sex offenders may be required to register as condition of release for later unrelated crimes

In United States v. W.B.H. the Eleventh Circuit held that defendants convicted of non-sexual offenses who have past sex offense convictions may be required to register as sex offenders as a condition of supervised release—even if the prior sex offense conviction occurred before the registration requirement passed by Congress in 2006.

In 2006, Congress passed the Sex Offender Registration and Notification Act (SORNA), which requires criminals convicted of a sex offense to register as sex offenders.

In this case, the defendant was convicted of first degree rape in 1987 when he was 18 years old, before SORNA was passed. In 2009, post-SORNA, the defendant was convicted of conspiracy to distribute drugs. As a condition of supervised release, the district court held that the defendant was required to register as a sex offender for the 1987 conviction. The defendant appealed arguing that this requirement violated the Ex Post Facto Clause. The Eleventh Circuit rejected this argument on grounds that Ex Post Facto relief applies only to criminal laws, not civil regulatory schemes and that SORNA was a civil regulatory scheme.

The Eleventh Circuit applied the two-part test set forth by the Supreme Court in Smith v. Doe, concluding that (1) Congress intended the sex offense registry to be a civil regulatory scheme rather than a criminal law and (2) the civil regulatory scheme is not so punitive in its effect to negate Congress’ intent.

The court reasoned that the registry’s predominant purpose is public safety, rather than the punishment of offenders. The court also reasoned, less persuasively, that the sex offense registry is not viewed as punishment or shaming by the public because it does not stage a direct confrontation between the offender and the public. Further, the court reasoned that the registry is not predominantly punitive in effect because it does not impose affirmative disabilities or restraints on the registrants—that the punitive effects of the registry are only indirect.

Social Drinking at Home by College Students Under 21, Legal?

Jay Perry, Attorney at Law

By Jay Perry

I was recently asked by the parent of a college student whether it was legal for their child (under 21) to drink alcohol in their home.  In Tennessee, the answer is no.  The statute (T.C.A. § 1-3-113) forbids anyone under 21 to “purchase, possess, transport or consume alcoholic beverages, wine, or beer”.  The only listed exceptions are for religious ceremonies and for those over 18 to “transport, possess, sell, or dispense alcoholic beverages, wine, or beer in the course of such person's employment.”

This contrasts with the law in Georgia which contains a specific exception (O.C.G.A. § 3-3-23(c)) allowing for minors to consume alcohol in their parents’ home, if the parents are present and the alcohol was provided by the parents.

Furthermore, the law in Tennessee provides for rather stringent penalties for underage drinking.  The offense is considered a Class A misdemeanor which carries as a maximum sentence up to 11 months and 29 days in the workhouse.  Furthermore, the law holds that upon a conviction for unlawful possession of alcohol the court “shall” send to the DMV an order denying driving privileges.  This loss of driving privileges can be for up to one year. 

Additionally, it is a separate offense if a fake ID is used to purchase alcohol.  If someone between the ages of 18-21 uses a false statement or ID to purchase (or attempt to purchase) alcohol, the proscribed punishment is a fine between $50-$200 and “imprisonment in the county jail or workhouse for not less than five (5) days nor more than thirty (30) days.”  The words of the statute seem to require mandatory jail time for this offense.  A second offense of this law also carries a loss of driving privileges.

With many college students home for the holidays and returning to school soon, it is important that they understand the possible consequences for behavior so common that it has become a rite of passage.  Unfortunately, it can have severe legal consequences and result in students caught in the criminal justice system. 

(Jay Perry is a Chattanooga lawyer who writes on legal issues concerning college students and young adults for Tennessee Criminal Law Review.  This is Jay's first post and we look forward to his contributions. You may contact Mr. Perry directly through the links above.)

Parents Responsible for Underage Drinking

With New Year's Eve upon us and a plethora of parties soon to begin, a reminder to parents that they are liable in Tennessee for underage drinking--drinking by their children and underage guests that happens in the home.  As a lawyer and a parent of two high school age young adults, I am always a little surprised when I hear parents say that they did not realize they are responsible for underage drinking at their homes.

Many parents think that they can provide a safe haven for young adults to experience alcohol responsibly.  As one parent told me, "I don't want my son driving after drinking a beer. And, it's not like they are getting drunk." That parents have turned a blind eye to the potential consequences concerning what could happen where beer and liquor are consumed is a problem.  With every holiday season we have parties and arrests for drinking under age. When tragedy strikes in the form of an alcohol-related accident or fatality, parents need to know that they might bear significant responsibility.  In Tennessee there are two kinds of potential consequences:  criminal and civil. Criminally, parents can be held liable for the crime of contributing the delinquency of a minor where alcohol is served to minors with their consent or tacit approval (Class A misdemeanor).  Perhaps less well known are the civil consequences.  In a civil context, when you open your home up to the teenage beer-blast, you have exposed yourself to monetary damages for any foreseeable consequences that might follow.  A parent is a social host, and he/she owes guests a duty of reasonable care under the circumstances.   If the harm that follows (arrest, DUI, injury or fatality) is reasonably foreseeable, then the parent is liable.

Today's Wall Street Journal reports about the reality of parents being held liable for underage drinking:

Eight states have specific "social host" laws that say parents can get in trouble if underage guests are drinking, even if no one gets hurt, according to the National Institutes of Health. (Some of those states allow parents to serve alcohol to their own children in some situations.)Sixteen other states have laws that hold Mom and Dad legally responsible for underage drinking under certain circumstances — for example, if a teen who drank at their home got into a car accident, NIH said. In other states, parents can get in trouble under more general liability laws. 

Stephen Wallace, a senior adviser at Students Against Destructive Decisions, or SADD, which used to be called Students Against Drunk Driving, said that with an increased awareness of the dangers of underage drinking, law enforcement authorities are increasingly relying on social host liability laws to go after parents. 

While he acknowledged that teens are adept at finding ways to drink on the sly, he said he is all for anything that gets at the problem of underage drinking. He said he finds it troubling that the Burnetts said they saw no alcohol consumed at their party. 

"Parents need to say to kids, 'You shouldn't be drinking at all and you certainly can't do it here because we can be put in jail,'" Wallace said.

In Tennessee, laws are on the books that hold parents responsible for teen parties and drinking in their midst.  Criminal and civil penalties may follow parents who willfully ignore the obvious:   you are in charge.

Maker’s Mark’s Trademark Case After Oral Aruments

With the New Year festivities to begin tomorrow night, a liquor trade mark case caught my attention. The Sixth Circuit Court of Appeals recently heard oral arguments involving Marker’s Mark and whether it can keep a trademark on its signature red wax seal. The company is seeking to enforce an injunction preventing any other liquor company from using a similar bottle top.

In 2010, Maker’s Mark won an order granting exclusive rights to the dripping red wax seal. At that time U.S. District Judge John G. Heyburn II in Louisville granted Maker’s Mark an injunction prohibiting any other company from using a similar seal and look. Heyburn justified the decision by saying the company had a valid trademark that ought to be enforced.

Brett Barrouquere reports that the 2010 decisions put an end to a nearly seven-year long ordeal between the owner of Marker’s Mark, Deerfield, Illinois-based Fortune Brands and London-based Diageo North America and Casa Cuervo of Mexico which use red wax seals on special bottles of Reserva tequila. Fortune’s former liquor business has since been spun off to a new company, Beam, Inc.

Maker’s Mark lead counsel Edward T. Colbert said the seal serves no purpose other than to make the bourbon bottles distinctive and that it isn’t required for the production or packaging of Cuervo liquor. Colbert, brother of Comedy Central comedian Stephen Colbert, says others may want to use the wax seal but have no need for it. 

Attorneys for Diageo and Cuervo are instead arguing that use of a red wax seal in no way causes customer confusion. Buyers of tequila and bourbon are after different things and no one is confused about whether the two companies are affiliated with one another. 

Judge Karen Nelson Moore took a different view, asking “Wouldn’t it be a logical assumption that the same company made the two products because of the red wax seal?” Cuervo attorney Michael Aschen responded that customers won’t be confused about Cuervo’s origins, saying “They’re not going to get confused and think it comes from Kentucky.”

Aschen noted that Maker's Mark uses a square bottle with large, black letters on it and costs around $25, while Cuervo’s bottle is tall, cylindrical, bears the tequila's logo and cost about $100. The only commonality is the red wax seal, Aschen said.

Cuervo began using the dripping wax seal on bottles in 1997 as part of an effort to brand Reserva tequila as a specialty product. The wax-dipped bottles entered in the U.S. market in 2001 in a limited production run of 3,000-to-4,000 bottles. The bottles remained on sale in the U.S. market for approximately three years.

Maker’s Mark sued over use of the seal in 2003, claiming it violated their long-standing trademark. Cuervo dropped the dripping wax seal six years ago.

Maker’s Mark spends about $22 million annually to market its bourbon, and sells about 800,000 cases annually. The ad campaigns focus heavily on the wax seal, occasionally mixing things up with a different color. Recently a blue seal was used as a promotion for a University of Kentucky charity drive. 

Heyburn declined to award damages when deciding that the injunction would be put in place, saying Cuervo violated the trademark, but did not focus its marketing efforts on the red wax seal to the point of damaging Maker’s Mark’s brand.

Eleventh Circuit: magistrate judge disqualified for participating in plea negotiations

In United States v. Davila, the defendant pled guilty to conspiracy to defraud the United States by obtaining false tax refunds. Prior to his plea, the defendant requested that the magistrate judge discharge his court-appointed attorney for failing to discuss any strategies aside from pleading guilty. At this hearing, the magistrate judge instructed the defendant as follows:

"The only thing at your disposal that is entirely up to you is the two or three level reduction for acceptance of responsibility. That means that you’ve got to go to the cross. You’ve got to tell the probation officer everything you did in this case regardless of how bad it makes you appear to be because that is the way you get that three-level reduction for acceptance, and . . . someone with your criminal history needs a three-level reduction for acceptance."

On appeal, the Eleventh Circuit held that the magistrate judge’s comments violated Federal Rule of Criminal Procedure 11(c)(1), which prohibits “the participation of the judge in plea negotiations under any circumstances.” Even though the defendant failed to raise a Rule 11 violation on appeal, the Eleventh Circuit held that a violation of this rule is plain error and the defendant was not required to show actual prejudice. Although other circuits recognize harmless error in this context, the Eleventh Circuit made clear that it does not, explaining that even if judicial participation is well-intentioned it will result in convictions being vacated, remanded, and reassigned to another judge.

Eleventh Circuit: value of interstate transport of forged securities determined by face value not actual worth

In United States v. James Brown, the defendant was convicted of mail fraud and transporting forged securities in violation of 18 U.S.C. § 2314, which makes it illegal to knowingly transport in interstate commerce stolen/fraudulent securities or money “of the value of $5,000 or more.”

As a matter of first impression, the Eleventh Circuit addressed whether the “value” element of 18 U.S.C. § 2314 is satisfied by the amount payable as written on the face of the instrument even if the instrument itself was cancelled and, therefore, worthless before it was transported. The court of appeals rejected Brown’s argument that value should be interpreted to mean “actual worth,” holding that the meaning of value under the statute was the value listed on the face of the instrument, whether or not the instrument itself had any actual value or worth.

In its reasoning, the Eleventh Circuit turned to 18 U.S.C. § 2311, which defines value as “face, par, or market value, whichever is greatest.” Although “face” is not expressly defined in the statute, the court turned to its plain meaning: the value listed on the face of the instrument. The court relied on the Fifth Circuit’s interpretation of this statute in United States v. Onyiego (holding that forged airplane tickets with a face value of over $5000 satisfied the value element of 18 U.S.C. § 2314 even though the tickets themselves were “made up” and actually worth nothing).