U.S. Supreme Court

Generic Form Warrant Lacks Specificity

Desarie Overton v. Ohio, No 00-8195, 2001 U.S. LEXIS 9937 (2001). Petitioner was convicted of a drug charge after her motion to suppress was denied. Claims to both the Court of Appeals and Supreme Court of Ohio were rejected. On a petition for a writ of cert., petitioner argued the warrant under which she was arrested was merely a generic form document containing only a general description of the crime, her name, address and the date of the crime. Petitioner claimed the warrant failed to meet minimal constitutional standards required to establish probable cause because the warrant failed to include an affirmative reference as to how law enforcement knew or believed petitioner committed the crime. Upon review, the Supreme Court concluded the City of Toledo clearly violated the Fourth Amendment warrant requirement that the document contain sufficient information to support an independent judgment that probable cause existed for the warrant. Reversed.

Following recent events in Washington, the Supreme Court has resumed its consideration of a number of cases of interest to prosecutors. Several cases which are scheduled to be heard this term are:

• First Amendment. Attorney General Reno v. Free Speech Coalition, 00-795 (Found at 198 F.3d 1083, 9th Cir. 2000). Is the First Amendment violated by prohibitions found in the Child Pornography Preventions Act of 1996 which prohibits shipment, distribution, receipt, reproductions, sale or possession of any visual depiction that appears to be a minor engaging in sexually explicit conduct. Prohibitions extend to visual material that advertise, promote, present, describe or convey the impression the material is or contains such explicit conduct.
• Fourth Amendment. U. S. v. Drayton, 01-631 (Found at 231 F3d 787, 11th Cir. 2000). Post 9/11, this case will determine to what extent and under what circumstances the Constitution permits passengers on a public bus to be searched by law enforcement for contraband.
• Fifth Amendment. Remon Lee v. Keman, Superintendent, 00-6933 (Found at 213 F.3d 1037, 8th Cir. 2000). To determine if Fifth Amendment rights were violated when trial court refused to grant a 19-hour continuance to locate Lee’s alibi witnesses who failed to return to court after lunch break. Should a hearing have been held regardless of whether court personnel instructed the witnesses to not leave the court.
• Fifth Amendment. McKune v. Lile, 00-1187 (Found at 224 F.3d 1175, 10th Cir. 2000). Does the Fifth Amendment prevent encouraging incarcerated sex offenders’ participation in clinical rehabilitative programs designed to require them to admit responsibility for their actions by conditioning the availability of privileges on participation in the program.
• Sixth Amendment. Mickens v. Taylor, 00-0285 (Found at 240 F.3d 348, 4th Cir. 2001). Is it error to require a defendant to show actual conflict of interest and an adverse effect to establish a Sixth Amendment violation where the court failed to inquire into a potential conflict of interest arising from trial counsel’s prior representation of a homicide victim in an unrelated juvenile offense.

Federal Cases

Looped Driver Falls Through Idaho’s DUI Loophole

U.S. v. Matthew Arnold Panzer, 2002 U.S. App. LEXIS 550. Defendant was pulled over after officer observed a broken taillight on his vehicle. Officer observed, in plain view, two .22 caliber rifles in the back seat of the vehicle and observed that the defendant appeared to have bloodshot and glassy eyes. Upon questioning, the defendant indicated he attended a party in which marijuana had been smoked but he had not inhaled. After administering several sobriety tests that the defendant passed, the officer noticed the defendant’s eyelid movement was consistent with possible marijuana usage and after asking the defendant to “be straight up with him,” the defendant confessed to smoking marijuana. Defendant was arrested for driving under the influence and put in the back of a squad car without being read his Miranda rights. After some ambiguity, the defendant consented to the officer’s search of his vehicle. Subsequently, defendant’s motion to suppress was denied and he was convicted.

Defendant appealed arguing successfully that Idaho’s DUI statute does not enumerate marijuana as a narcotic drug and therefore the officer was required to show his driving was impaired. The state argued that marijuana is a narcotic and therefore there was no need for a showing of impairment to validate the arrest after defendant’s confession of use. The court agreed with the defendant and ruled that the government must show not only that the defendant was under the influence but that the level of that influence was such as to impair the defendant’s ability to safely operate his vehicle in order to validate the arrest. Failing to show that the officer had probable cause to believe the defendant’s ability to drive was impaired and despite his confession of recent marijuana use, the court reversed and remanded.

“Fifteen-Minute Detention Window” Broken

U.S. of America vs. Jesus Valadez, 2001 U.S. App. LEXIS 20727. Defendant was stopped by a Texas Department of Public Safety Trooper for a possible expired vehicle registration sticker and illegal window tinting. Upon inspection, the registration was found to be valid but before retrieving a window-tinting meter from his patrol car, the officer asked for Valadez’s driver’s license and insurance card. Both documents appeared to be valid, but the trooper kept the license to check suspect’s warrant status and criminal history. While the computer check was being run, the trooper returned to Valadez’s vehicle and determined that the window tint was within legal limits. The trooper then asked whether Valadez had any weapons or drugs in the vehicle to which Valadez responded he had a loaded pistol on the front seat of the car and a rifle in the trunk. The weapons were removed to determine whether either had been reported stolen. In returning to his patrol car, the officer received the results of the computer check that indicated Valadez had a criminal history, but it was unclear as to whether the convictions were felonies or misdemeanors. The trooper asked Valadez regarding the status of the convictions and when Valadez responded he was unsure, the trooper requested Valadez follow him to the county jail. Valadez followed without incident. Suspect’s conviction was determined to be a felony and Valadez was arrested for being a convicted felon in possession of a firearm.

Valadez sought to suppress the firearms and his statements to officers. The trial court determined that the computer check was essentially pretextual to provide time for the trooper to detain the defendant for unrelated questioning. The trooper testified he was not in the habit of running criminal history checks. Additionally, the court noted Valadez was fully compliant with the trooper who testified he did not fear for his personal safety and that he trusted the defendant to follow him to the jail. The court denied Valadez’s motion under the reasoning that the officer was guaranteed a five to 15-minute window to detain suspects during routine traffic stops to subject them to “wholly unrelated, and potentially quite invasive, questioning.” Valadez entered a conditional guilty plea and was sentenced to three years probation.

On appeal to the 5th Circuit, the court, through a Fourth Amendment analysis, determined that once the officer’s suspicions were dispelled as to the illegality of his registration and window tinting, the officer failed to provide an articulable, reasonable suspicion or probable cause to justify the continued detention. In contrast to the lower court’s “15-minute window” principle, the appellate court held that the expiration of the lawful detention period contravened Valadez’s Fourth Amendment rights and all evidence that followed. Reversed and remanded.

Duty to Evaluate Pending Defense Counsel Charge

Anthony Alexander Campbell v. Bert Rice, Warden, 265 F. 3d 878 (9th Cir. 2001); 2001 U.S. App. LEXIS 20321. Campbell was found guilty of 18 counts of first-degree burglary and one count of attempted burglary. On appeal Campbell challenged his convictions on an effective assistance of counsel argument stating that his counsel suffered a conflict of interest arising from her own pending criminal prosecution on unrelated drug charges in the same district attorney’s office. The district court for the Northern District of California found that while the trial court was aware both parties were facing contemporaneous criminal prosecution, the court had no duty to inquire further since the alleged conflict was merely theoretical and, based on the state’s representations, unlikely to develop further.

In contrast, the 9th Circuit court found that since counsel’s pending charges were filed by the same office, the trial court was on notice regarding the conflict and therefore should have made a thorough inquiry into the potential conflict. Additionally, the court held the potential for conflict was not measured by the representations of the prosecutor but by the “unique perspective and subjective beliefs” of defense counsel. The criminal charge against counsel created an interest in maintaining a cordial and cooperative relationship with the prosecution to yield a favorable disposition in her own case. In contrast, the role of criminal defense attorney necessitated an adversarial relationship with the state in order to vigorously represent Campbell. These two conflicting obligations created “inherent psychological barriers” making effective representation impossible and placed counsel between the rock of her legal obligation and the hard place of an instinctive desire to save herself. Where the court was on notice as to these conflicts, the court must make a “searching” inquiry with thoroughness and specificity into counsel’s ability to engage in personal plea negotiations and the ability to represent a suspect effectively. Failure on the trial court’s part to involve the defendant in this inquiry process and allow him the possibility to knowingly and intelligently waive the potential conflict or obtain new counsel resulted in structural error necessitating reversal.

Three Strikes - You’re In

U.S. of America v. Rudolph Weaver, 2001 U.S. App. LEXIS 20723. Defendant was convicted of bank robbery and use of a dangerous weapon and sentenced to life in prison. On appeal to the 3rd Circuit, he challenged his conviction on several grounds including a violation of the “Three Strikes” statute or 18 U.S.C. @ 3559§(A)(i) which states “a person who is convicted in a court of the United States of a serious violent felony shall be sentenced to life imprisonment if the person had been convicted…on separate prior occasions in a court of the United States or of a state of two or more serious violent felonies.” In defendant’s case, he received pre-trial notice of the state’s intent to seek a sentence of life imprisonment and the prior convictions upon which it was relying. Defendant contended the notice was defective because it failed to properly inform him of the nature of the prior convictions relied upon and failed to give him adequate notice. On appeal, the court reviewed the issue of sufficiency of notice de novo.

The notice given to defendant indicated the state intended to rely on three prior convictions: a 1975 conviction for “involuntary manslaughter,” a 1977 conviction for armed robbery and a 1989 conviction for armed robbery. The defendant contended the notice was flawed by: misstating the charge for which defendant was convicted in 1975 which should have been listed as “voluntary manslaughter;” the 1977 conviction for “armed robbery” was in error as there was no crime of “armed robbery” in Pennsylvania on that date and he had been found guilty of two different robberies which were consolidated for trial, one of which included a conviction for using a prohibited offensive weapon; and the 1989 conviction for “armed robbery” was in error as defendant was convicted on two separate charges of robbing two banks on the same day and of criminal conspiracy relating to the robberies. Both of these final convictions were vacated and re-entered in 1997.

In lieu of focusing on what information the state is required to provide in a notice to a defendant, the court stated the defendant had sufficient notice to comply with due process requirements and an opportunity to be heard. Thus, the court’s analysis focused on whether the state’s errors rendered the notice constitutionally unsound.

As to the involuntary/voluntary manslaughter conviction, the court determined the error merely a clerical mistake that could be amended by the plain language of the statute. Regarding the 1977 “armed robbery” conviction which was in reality two convictions—only one of which involved a prohibited weapon, the court determined the state amended the notice from a single conviction of armed robbery to one conviction for robbery and a second conviction for armed robbery. This too was determined to be merely a clerical error and the defendant had sufficient notice of the state’s intent to rely on two robbery convictions. Defendant responded that he could not determine which of the robbery convictions the state was going to rely upon and thus was unable to establish by clear and convincing evidence that one of the convictions was weaponless. Rejecting this argument, the court held the state had provided sufficient notice that it was relying on both 1977 convictions. As to the 1989 convictions, defendant stated these convictions were vacated on June 2, 1997, and therefore the state notified him of nullified convictions. Since these same convictions were later reentered on July 2, 1997, after a guilty plea under the same docket number, the only error was in listing the wrong date. The court determined this too was a clerical error and thus the state’s notice and amended notice were sufficient to alert the defendant regarding those convictions on which it relied. Affirmed.

State Cases

Three Strikes - You’re Out

Leandro Andrade v. Attorney General of the State of California, 2001 U.S. App. Lexis 23720. Andrade was convicted of two counts of petty theft involving shoplifting of nine videotapes from two K-Mart stores for a total of $153.54. Each conviction was punishable by six months in the county jail and a fine up to $1,000. Upon conviction under the state’s recidivist statutes, defendant was sentenced to life imprisonment with no possibility of parole for 50 years. His request for habeas relief was denied. On appeal to the 9th Circuit, Andrade claimed his sentence violated the Eighth Amendment’s prohibition against cruel and unusual punishment.

Defendant’s criminal record indicated a prior history of non-violent offenses. His petty thefts were enhanced to felonies under California Penal Code @666 and then enhanced to third and fourth felonies under California’s “Three Strikes and You’re Out” law.

While not invalidating the state’s Three Strikes law, the court held that after considering the unusual circumstances of defendant’s case, the Eighth Amendment did not permit the application of this law in this specific instance since its application resulted in a sentence grossly disproportionate to the crimes for which defendant was convicted. Reversed and remanded.

DNA and Expert Testimony Standards Examined

Supreme Court of Utah v. Raymond Butterfield, No. 990654, 2001 UT 59, 2001. Defendant was convicted of aggravated burglary, rape of a child, sodomy of a child and three counts of aggravated sexual abuse of a child. He was convicted of all counts with the recommendation no parole be granted. On appeal, he asserted DNA evidence was improperly admitted against him, the court improperly excluded proposed expert testimony and the court failed to declare a mistrial following an improper remark by a state witness.

The state admitted evidence identifying defendant’s blood on one of the victim’s undershirts. The defendant argued this was error as the state failed to lay a proper foundation by failing to show that the principles and techniques underlying the testing of the evidence were inherently reliable. Further, challenges were made regarding the qualifications of the state’s expert witness on the premise she only had a B.S. degree in medical technology and thus limited knowledge of the methodology and instrumentation used in the PCR STR testing. The court observed that other jurisdictions had previously held lab personnel trained in the subject to which they testified were qualified to lay a foundation for the admissibility despite their lack of advanced degrees. The court concluded that the witness was a qualified expert witness in the areas of DNA and serology. The court then applied a three-part standard to evaluate the admissibility of the testing method and instrumentation used at trial as articulated in State v. Rimmasch, 775 P.2d 388 (Utah 1989) which requires either judicial notice or a foundational showing that the scientific principles and techniques used are inherently reliable; a determination that there is an adequate foundation for the proposed testimony and, finally, that the scientific evidence is more probative than prejudicial.

Second, the appellate court considered defendant’s argument regarding exclusion of his proposed expert testimony on the inherent deficiencies of eyewitness identification. In affirming the trial court’s ruling, the court stated the intended testimony would merely have been a jury lecture to outline general principles of psychological knowledge relating to the problems of eyewitness performance rather than relating specifically to the defendant’s case. At best the testimony would have caused undue delay in the process and, at worst, been a waste of time. Further, the defendant made no showing that the anticipated testimony would have had a substantial impact in bringing a different verdict.

During the trial and in front of the jury, a detective indicated he obtained a photograph of the defendant from the Salt Lake County Jail. Prior to trial, the defendant had been successful in suppressing evidence regarding his prior criminal record. Following this trial statement, the court denied defendant’s request for a mistrial. Arguing this matter on appeal as error, the court held that defendant failed to make a requisite showing of abuse of discretion by the trial court and therefore denied defendant’s motion. Affirmed.