In Salinas v. Texas, 570 U.S. __ (June 17, 2013), the U.S. Supreme Court ruled that the state may use a person’s silence in the face of police questioning against him if: (1) the questioning takes place while the person is not in police custody and (2) the person does not expressly invoke his or her fifth amendment privilege against self-incrimination. Salinas, himself, was questioned about a shotgun murder. He voluntarily surrendered his shotgun to police and went to the police station to answer questions. He was not in custody when he was questioned and no Miranda warnings were read to him. Although he answered most of the questions police asked, when they asked him if his shotgun would match the shell casings left behind at the scene of the murder he did not answer, and he showed signs of stress and nervousness. Ultimately, Salinas was charged and tried for the murder. At his trial, the prosecutor specifically referred to his refusal to answer the question about the shotgun and argued that his silence in the face of that question, along with his physical reaction to it, was evidence of his guilt. Salinas objected, claiming that his silence reflected his exercise of his Fifth Amendment privilege and that his Fifth Amendment privilege was violated when the prosecutor argued that his silence was a sign of guilt.
The U.S. Supreme Court chose to examine the case to answer a question that had split the lower courts: whether the prosecution may use, in its case in chief, a defendant’s assertion of his privilege against self-incrimination made during non-custodial police questioning. In the end, the Supreme Court failed to resolve this question. Instead, three Justices decided that Salinas’ Fifth Amendment claim failed because he had not expressly asserted his privilege against self-incrimination. These three justices pointed out that the Fifth Amendment does not provide an unqualified right to remain silent, but instead provides that “[n]o person shall be… compelled in any criminal case to be a witness against himself.” Because there are a number of reasons why a person might choose to be silent in the face of police questioning, in order to invoke the Fifth Amendment privilege against self-incrimination, it is necessary for a person to specifically assert the privilege. Two concurring Justices decided that the privilege against self-incrimination was not even implicated by Salinas’ questioning, because the prosecutor’s comments on his silence had not compelled him to give self-incriminating testimony at trial.
The rule that emerges from the Salinas opinion is that a person who is questioned by police in a non-custodial setting does not assert his or her Fifth Amendment privilege against self-incrimination simply by falling silent as to some or all of the questions. For a person to have any chance of preventing the State from confronting him at trial with his silence in the face of non-custodial questioning, he must in some way expressly state his intention to invoke his Fifth Amendment privilege. In light of Salinas, police can be expected to hone tactics designed to confront suspects questioned in non-custodial settings with provocative, accusatory questions, to set the stage for prosecutors to argue that no innocent person would possibly have failed to utter a denial. And as soon as the person does utter a denial (unless the interview is recorded) he or she will instantly place himself at the mercy of the interviewing officer’s version of what exactly was stated. The Salinas three-judge plurality has at least left open the possibility that a person who expressly invokes his Fifth Amendment privilege during non-custodial questioning will be shielded from the use against him at trial of his silence during questioning. On the other hand, it is entirely possible that when the Court reaches that precise question it will find that the Fifth Amendment privilege provides no protection in this setting. In the meantime, anyone who intends not to respond to police questioning in a non-custodial setting had better be prepared to expressly state that he is invoking his Fifth Amendment privilege. Otherwise, he can fully expect his silence in the face of police questioning to be used against him at trial as self-damning evidence of guilt.
SALINAS V. TEXAS AND THE FIFTH AMENDMENT.
Sun, June 23 2013 » Criminal Law » Comments Off
OAS for OUI, or operating after suspension for an OUI offense, is a particularly bad form of OAS. For conviction of a first offense, the crime carries a mandatory minimum jail sentence of 7 days, a mandatory minimum fine of $600.00 and a 1-year license suspension consecutive to (after) the original OUI suspension is finished. In other words, if a person is suspended for 90 days for a first offense OUI and is caught driving while still under that suspension, a conviction of the OAS charge will result in a 1- year suspension consecutive to the 90-day OUI suspension. Yes, once the person is restored from the OUI suspension, he or she will remain suspended for an additional year for the OAS. If the person can persuade a D.A. to strike the language from the OAS complaint alleging that the offense occurred during the suspension period for OUI or an OUI offense, this frees the court from having to impose a minimum of 7 days in jail and a 1-year consecutive license suspension, but the Secretary of State will impose a 1-year consecutive suspension anyway, anytime a person is convicted of OAS that in fact occurred during the original suspension period for an OUI or OUI offense.
The terms OUI and OUI offense cover a lot of ground and include suspensions imposed for OUI convictions and juvenile adjudications, suspensions imposed for test refusals, and administrative suspensions for operating under the influence of drugs, operating with an excessive alcohol level or operating with alcohol or drugs in one’s system in violation of a license condition or restriction. The point is that anyone who is under suspension for an alcohol-related driving offense is taking a big risk to drive while that suspension remains in effect. The extra penalties, above and beyond those for an ordinary OAS conviction, do however only apply during the original period of suspension. When a person fails to pay a reinstatement fee or fails to complete DEEP requirements by the end of a suspension term, the suspension remains in effect until those requirements have been met. If the person drives during this continuing period of suspension, he or she commits only an ordinary OAS.
If a person is under suspension for a first offense OUI and receives a work-restricted license, the OUI suspension is stayed at that point and the person is given a new restricted license with driving permission confined to operating to, from and during work. A person who drives outside the scope of the work restriction does not commit OAS for OUI, and is therefore not subject to the mandatory minimum jail sentence and license suspension for that offense, but instead commits the crime of operating beyond license restriction. I recently had a client barely dodge imposition of mandatory minimum OAS for OUI penalties because, when he first went to court for driving on a work restricted license (issued on a suspension for operating under age 21 with alcohol in his blood), even the D.A. was unaware that this conduct constituted operating beyond license restriction as opposed to OAS for OUI. As a corollary, a person whose license has been revoked as an habitual offender is not guilty of operating after habitual offender revocation if the person has been granted a work license and operates outside the scope of that restriction.
The easiest lesson to take from this is that it’s a very bad idea to drive while under suspension for any alcohol related event. But this stuff gets complicated, and sometimes people get jammed up for penalties even greater than the law requires, which is why it’s a great idea to hire counsel who understands this area of the law if you ever run afoul of it.
What is OAS for OUI in Maine? This post is for informational purposes only. It does not constitute legal advice and reading this post creates no attorney-client relationship with the author.
Wed, June 5 2013 » Criminal Law, Maine Law » Comments Off
One issue that comes up frequently in criminal defense practice is what, if any, grounds a passenger has to complain either about a police officer’s stop or search of a vehicle he or she is riding in or about the search of items within that vehicle. What follows is a brief rundown of some of the controlling cases, although I do not pretend that it comes close to addressing all of the issues that might be raised in these circumstances. The Fourth Amendment to the United States Constitution protects against “unreasonable searches and seizures.” In a typical traffic stop case, an officer stops a vehicle on suspicion that the driver is in some way violating the traffic laws. When a traffic stop is based on reasonable articulable suspicion of a violation of law, it is deemed to be “reasonable” under the Fourth Amendment. Once the vehicle is stopped, in order to remain reasonable, the seizure or any ensuing search must be “reasonably related in scope to the circumstances which justified the interference in the first place.” Terry v. Ohio, 392 U.S. 1, 20 (1968). If the officer’s encounter with the driver results in continued reasonable suspicion, either of the original suspected offense or of a new suspected offense (say, drunk driving suspicion emerges from a speeding stop), the continuing seizure or search related to confirming or dispelling the suspicion remains reasonable. Once all reasonable articulable suspicions have either been confirmed or dispelled, however, it is unreasonable for the officer to prolong the detention further.
When a vehicle is stopped, the passengers are stopped or “seized” along with the driver. Because of this, passengers have “standing,” or grounds to complain, that the traffic stop was not justified in the first place or was unreasonably prolonged so as to have become unreasonable. Brendlin v. California, 551 U.S. 249 (2007). The U.S. Supreme Court has decided that items found during an unreasonable search or seizure are to be suppressed (kept out of evidence) as to those who have “standing,” if the items that are found are the “tainted fruits” of the unreasonable search and seizure. Wong Sun v. United States, 371 U.S. 471 (1963), Mapp v. Ohio, 367 U.S. 643 (1961). Therefore, if the officer has written a speeding ticket and has no reasonable suspicion of any additional violation of law, but wants to keep poking around to see what he or she might find, a passenger in the vehicle has the same grounds as the driver to complain about whatever evidence the officer finds during this unreasonably prolonged detention.
Once an officer has legitimately stopped a vehicle, the officer may reasonably order the passengers to get out. Maryland v. Wilson, 519 U.S. 408 (1997). An officer may pat a passenger down for weapons if the officer has reason to believe the passenger might be armed and dangerous. Arizona v. Johnson, 555 U.S. 323 (2009). The officer may also ask the passengers any questions he or she chooses to ask during this time, as long as the questioning does not unreasonably extend the duration of the stop. Id. The officer is allowed to ask the driver for identification and to take the time required to determine the driver’s license status. See State v. Huether, 2000 ME 59, 748 A.2d 993. The officer may also ask passengers to identify themselves, but if the officer does not have reasonable articulable suspicion as to the passengers, the officer may not prolong the detention to determine their identities. United States v. Henderson, 463 F.3d 27, (1st. Cir. 2006). The Supreme Court has decided that the seizure involved in a traffic stop is not rendered unreasonable if the police run a drug-sniffing dog around the outside of a vehicle, as long as doing so does not prolong the stop. See Illinois v. Caballes, 543 U.S. 405 (2005). And if the dog alerts that it has located drugs in the vehicle, that alert gives rise to probable cause that justifies a further detention of the vehicle and its occupants. Id.
If the officer develops probable cause to believe there is contraband or other evidence of a crime in the vehicle, the officer may search the entire vehicle and the contents, including any containers that are capable of containing the target of the search. United States v. Ross, 456 US. 798 (1982). If the officer’s continuing detention of the vehicle’s occupants is reasonable but the officer searches the vehicle without probable cause or the consent of the owner (for instance, while waiting for information on a driver’s license status, or while a second officer puts the driver through OUI field sobriety tests) the passengers will have no standing to complain about any items that are seized from the vehicle unless they have an ownership interest in the vehicle itself or any items such as a purse, backpack, jacket, etc., within which the contraband items are located. Rakas v. Illinois, 439 U.S. 128 (1978). If, for instance, drugs are found scattered openly throughout a vehicle, the passengers will have no standing to complain that the search of the vehicle was without probable cause and without the consent of the vehicle’s owner. Again, however, passengers do have standing to complain if the officer unreasonably detained them so he or she could conduct a fishing expedition. If a passenger has an ownership interest in the vehicle or in an item within which contraband is found, the passenger may assert his or her ownership interest during a motion to suppress, without having to worry that the claim of ownership will be used against him or her as direct evidence at trial. The assertion of such an interest during a hearing on a motion to suppress, based on a Fourth Amendment violation, is not admissible as direct evidence against the person. Simmons v. United States, 390 U.S. 377 (1968). It is, however, admissible as impeachment evidence if the person later testifies at trial that he or she had no ownership interest in the item.
Vehicle Passengers, Stops and Searches. This post does not constitute legal advice. It is for informational purposes only. Reading this material does not create an attorney client-relationship between the reader and the author.
Wed, May 22 2013 » Criminal Law, Maine Law » 3 Comments
Proportionate Sentencing in Maine and State v. Stanislaw
In State v. Stanislaw, 2013 ME 43 (Stanislaw II), Maine’s Law Court fleshed out the details of a “proportionality” requirement for sentences imposed in this State. The requirement stems from Maine’s sentencing statutes and the proportionality clause, article I, section 9, of the Maine Constitution. In reviewing the appropriateness of a sentence, the Law Court is instructed, by 15 M.R.S. §2155(2), to consider “[t]he manner in which the sentence is imposed.” The Stanislaw II Court pointed out that this involves examining whether the sentencing court “permitted a manifest and unwarranted inequality among sentences of comparable offenders.” According to article I, §9, of the Maine Constitution, “all penalties and punishments shall be proportioned to the offense.” This protection under the Maine Constitution is greater than the protection provided by the U.S. Constitution’s “cruel and unusual punishment” clause. Guided by these statutory and constitutional provisions, the Stanislaw II Court fashioned a 2-step analysis that must be applied to determine sentence proportionality.
Theodore Stanislaw pled open to 3 counts of unlawful sexual contact, Class B, and 1 count of unlawful sexual contact, Class C (plus a number of misdemeanor counts), involving conduct that occurred between 2004 and 2008 with five victims between the ages of 10 and 14. His underlying conduct involved exposing himself, kissing and touching his victims, and hugging the victims when he and the victims were either partly clothed or naked. No penetration occurred. Stanislaw had one prior NY felony conviction, in 1982, for fondling the vagina of an 11 year-old girl. In Stanislaw’s original Maine sentence for the combined conduct, he was ordered to serve 28 years in prison, followed by 4 years of probation during which he was exposed to a 2-year suspended sentence. In Stanislaw I, the Law Court reviewed that sentence, vacated it and remanded the case for re-sentencing based on a lack of thoroughness in the sentencing court’s articulation of its sentencing analysis. On remand, after Stanislaw I, the sentencing court conducted a thorough statutory/Hewey sentencing analysis and ordered Stanislaw to serve 27 years in prison, followed by 4 years of probation during which Stanislaw was exposed to a 1 year suspended sentence.
Stanislaw again appealed his sentence. In Stanislaw II, The Law Court did not fault the sentencing court’s Hewey analysis, but it did vacate the re-sentence, this time on grounds that the sentence was unconstitutionally disproportionate. The first step in the Law Court’s proportionality analysis was to examine whether the overall sentence appeared “grossly disproportionate” to the offenses Stanislaw committed. The Law Court described this process as comparing “the gravity of the offense [with] the severity of the sentence.” The Court explained that if this comparison produces an “inference of gross disproportionality,” the Court is to next compare the defendant’s sentence to sentences received by other Maine offenders. The Stanislaw II Court found gross disproportionality at the threshold level, pointing out that the overall sentence of 27 years of unsuspended incarceration exceeded sentences imposed for far more serious crimes, while it failed to serve legislatively established sentencing goals of rehabilitating offenders and minimizing correctional experiences that might serve to promote further criminality.
After finding an “inference” of gross disproportionality at the threshold level, the Court next compared Stanislaw’s sentence to the sentences of other offenders in 4 groups of cases: (1) a group of cases that the State presented to the sentencing court, in which the longest unsuspended term was 8 years; (2) a group of violent cases involving the death or near death of victims, in which the longest unsuspended term was 30 years; (3) a group of cases involving gross sexual assault convictions, in which the longest unsuspended term was 20 years; and (4) a group of cases involving unlawful sexual contact, in which the longest unsuspended term was 6 years. At this stage of analysis, the Court rejected the State’s argument that Stanislaw’s overall sentence should be compared to the overall sentences in these other cases without accounting for the fact that large portions of the sentences in the comparison cases were suspended. The Court pointed out the very real difference between suspended incarceration and actual, unsuspended incarceration and held that proportionality must be measured by comparing the unsuspended portions of sentences. The Court concluded that Stanislaw’s sentence was grossly disproportionate to the sentences it used for comparison, and that the sentencing court erred when it failed to consider whether the overall unsuspended portion of Stanislaw’s sentence should have been subject to an additional period of suspension—imposed post-Hewey analysis– to ensure that it was proportional to the unsuspended sentences of other offenders. The Law Court remanded the case a second time for resentencing, this time advising the sentencing court that an appropriate sentence would likely be 1/3 to 1/2 as long as the total unsuspended sentence previously imposed.
Stanislaw II is an important case in that it breaks new ground. The Law Court has not previously vacated a sentence on proportionality grounds that was imposed entirely in conformity with a 17-A M.R.S. §1252-C/Hewey analysis and with the consecutive sentence provisions of 17-A M.R.S. §1256. Stanislaw II creates a new and final step in the sentencing process, in which a sentencing court must view the overall sentence derived under a Hewey analysis and decide whether that sentence is proportional. This final step actually involves two steps. The court must first decide whether the severity of the sentence is proportional to the gravity of the offense. If this comparison creates an inference of disproportionality, the sentencing court must compare the sentence to sentences received by other offenders, focusing on the unsuspended portions of those sentences, to determine whether the Hewey-derived sentence would be grossly disproportional. If the sentence would be grossly disproportional, the court must suspend an additional portion to bring it into proportion with other offenses imposed on other Maine offenders.
And so is the story of proportionate sentencing in Maine and State v. Stanislaw.
Fri, May 17 2013 » Criminal Law, Maine Law » Comments Off
NTSB recommends per se blood alcohol level of .05% or less.
On May 14, 2013, the National Transportation Safety Board issued a report titled “Reaching Zero: Actions to Eliminate Alcohol-Impaired Driving.”
The NTSB intends for that title to be taken literally, as in: zero incidents of alcohol impaired driving– alcohol impaired driving to be entirely eliminated. On page 1, the report states that the NTSB began, in 2012, to evaluate the effectiveness of “alcohol-impaired driving countermeasures” and “determined that the ultimate goal of the effort was to find a way to reach zero fatalities, injuries, and accidents involving alcohol-impaired driving.” The report then states: “This is an ambitious goal. But the NTSB believes that over time it can be achieved.” Seriously, the only way to ensure that not a single alcohol impaired accident occurs in a nation of 310 million people is to make it technologically impossible for any person to command the operation of any motor vehicle while in an impaired condition. But it is clear that the authors believe they can cause the laws of all 50 states to conform to a zero-tolerance policy for drinking and driving, and I bet it occurred to them that, along the way, by championing their new “reaching zero” mandate, they will guarantee that the NTSB continues to command a nice fat slice of the federal revenue pie for a long time to come.
“Reaching Zero” cites data gathered by the National Highway Traffic Safety Administration showing that annual impaired driving fatalities already dropped from 21,113 in 1982 to 9,878 in 2011– a 53% reduction during that period. It is quite possible that even the reported 2011 figure of 9,878 impaired driving fatalities is overstated. The report considers a fatality to be alcohol-related if it involved a driver with blood alcohol level of .08% or more. However, 39% of all drivers involved in fatal crashes were not tested at all for alcohol (perhaps for lack of any reason to suspect they were impaired or had even consumed alcohol) and there was no data available to the NHTSA for another 10% of those accidents, so the feds engaged in a statistical process called “imputation” to fill in the blanks and arrive at their numbers.
During the period from 1982 to 2011, the U.S. population grew from just under 232 million to just over 310 million– a 33% increase. One might think that a 53% reduction in the number of alcohol-related highway fatalities during a period in which the U.S. population increased by a third would indicate that things are going quite well. But the NTSB tells us we must now pursue the goal of zero accidents or injuries involving alcohol-impaired driving—not one, not two or three in a population of 310 million, but zero. And they tell us that the way to do it is by lowering the per se alcohol level to .05% (for now) and having lots of police roadblocks around to frighten the populace into compliance. They also tell us we should deploy lots of passive alcohol sensors to aim at people when they enter these ubiquitous police roadblocks. In fact, the “Reaching Zero” authors admire the effectiveness of subjecting all drivers stopped by police to mandatory breath testing without suspicion. The authors point out that this tactic is already employed in Australia, New Zealand and “several European countries,” but they are concerned that the pesky Fourth Amendment to the U.S. Constitution might stand in the way of such measures here, so they recommend widespread use of the passive-sensor approach instead.
“Reaching Zero” does allow that “[a]though lowering the per se BAC threshold may seem counterintuitive when the majority of alcohol-impaired drivers in fatal crashes have BAC levels well over 0.08…reducing the per se BAC limit could reasonably be expected to have a broad deterrent effect, thereby reducing the risk of injuries and fatalities from crashes associated with impaired driving [emphasis added].” This observation raises an important issue: What is the correlation between BAC levels at or near .08% and alcohol-related accidents, injuries or fatalities, versus the correlation between such incidents and BAC levels well over .08%? Before we buy into the ratcheting-up of a law-enforcement-generated fear industry designed to scare us from consuming a beer or a glass of wine with a restaurant meal, we ought to be solidly convinced there is a scourge worth surrendering our liberty to eliminate, in the form of accidents, injuries and fatalities caused by drivers with alcohol levels between .05% and .07%. My bet is there are damned few.
I have previously pointed out here
that Maine has seen a marked drop in OUI arrests in the past decade or so. According to figures provided by the Secretary of State, Bureau of Motor Vehicles, in 2000 there were 9,878 statewide OUI arrests. In 2012, there were 7,014. That represents a decline of 29% in overall OUI arrests. During that same period the percentage of those over age 21 who took an alcohol test with a result under .08% increased from 4 percent of those tested in 2000 to 19 percent of those tested in 2010. In other words, people are already being arrested on thinner evidence of impairment and are increasingly producing test results below the legal per se level. If the NTSB has its way, those who test between .05% and .07% will be turned into criminals. The idea behind the NTSB’s recommendations is to make people so afraid of hitting a roadblock and being arrested on the way home from dinner that they won’t dare to drink even a single light beer.
At this point, the NTSB proposes to encourage states to adopt a per se standard of .05% or lower with “incentive grants.” But history teaches that this federal carrot will soon be replaced by a stick, when the feds cut off highway funds to those states that refuse to comply. Eventually, we will become Sweden, because the bureaucrats and regulators are increasingly running this asylum and bureaucrats and regulators all love Sweden, where those of their station are exalted.
Thu, May 16 2013 » Criminal Law, Maine Law, OUI/DUI » Comments Off
The crime of assault, in Maine, is defined as intentionally, knowingly or recklessly causing offensive physical contact or bodily injury to another person. Simple assault is a Class D crime, punishable by up to 364 days in jail and up to a $2,000.00 fine. It carries a minimum mandatory fine of $300.00, which may not be suspended. The crime is not considered a felony, because the maximum period of incarceration is less than 1 year. Although assault might involve bodily injury brought about intentionally, it might merely involve some type of physical contact that is offensive, brought about recklessly. Even “bodily injury” isn’t quite what it seems at first blush, because the term is defined to include not only actual injury (as the term “injury” is commonly understood) but also “physical pain,” which might be entirely momentary or transient. The crime, which probably sounds to an ordinary person as if it involves setting out to intentionally harm someone, might in fact be committed by recklessly causing a person some type of physical contact that is objectively offensive.
This is typical of criminal statutes. To illustrate, let’s create the definition of a crime that we will label “battery.” “Battery” sounds bad, as if it must involve battering something, which in turn sounds as if it involves smashing. We will begin defining our crime by choosing our required culpable states of mind– the crime may be committed intentionally, knowingly, recklessly or with criminal negligence. Under Maine law, an act is committed intentionally if it is the person’s conscious object both to commit the act and to achieve the prohibited result. An act is committed knowingly if the person knows it is practically certain that he or she is committing it and he or she is also practically certain the act will bring about the prohibited result. A person acts recklessly if the person consciously disregards the risk that he or she is committing the act and consciously disregards the risk that the act will bring about the prohibited result. A person acts with criminal negligence when the person fails to be aware of the risk that he or she is committing the act, and fails to be aware of the risk that the act will bring about the prohibited result, and the failure to be aware is a gross deviation from what a reasonable, prudent person would realize.
Now that we have our culpable mental states, we will define the prohibited act and prohibited result. To commit our crime labeled “battery,” a person must intentionally, knowingly, recklessly or with criminal negligence, kill, maim, mutilate or touch another person or an article of clothing worn by another person without the other person’s express permission. To understand how our crime of “battery” will be prosecuted, go straight to the least serious required state of mind and the least serious required conduct/result. The crime will be proven if the State can establish beyond a reasonable doubt that: (1) a defendant failed to be aware that his or her conduct would result in the touching of another person or an article of clothing worn by another person; (2) the conduct resulted in the touching of another person or the clothing worn by another person, without that person’s express permission; and (3) the defendant’s failure to be aware of the risk that his or her conduct would cause this result was a gross deviation from what a reasonable and prudent person would have realized. All the rest is window dressing. Because it is impossible to intentionally, knowingly or recklessly kill, maim or mutilate another person without at least bringing about a criminally negligent touching of that other person or an article of his or her clothing, nobody who prosecutes the charge will ever be saddled with a burden greater than proof of criminally negligent touching.
And so it is with assault. While a person might commit assault by intentionally setting out to injure another person, a person might just as well commit the crime of assault by consciously disregarding the risk that he or she is doing something that will result in offensive physical contact to another person. Depending on circumstances, the crime of assault might be committed by bumping, pushing or a shoving another person. The law essentially says: “Hands off… No contact.” No intent to cause harm is required and no actual harm is required, beyond the bringing about of offensive physical contact. The crime can be committed in ways more benign than its title suggests. The lesson is, when push comes to shove, don’t do it. But if you do, and if you find yourself charged with assault because of it, don’t try to undo the damage by yourself. You need counsel.
This post does not deal with forms of assault that involve special circumstances, such as assaults of a domestic violence nature, assaults that cause bodily injury to those under age 6 (a Class C crime), aggravated assault (Class B) or elevated aggravated assault (Class A). This post does not contain legal advice and the reader does not have an attorney-client relationship with the author by virtue of having read it. The content is for informational purposes only.
Tue, May 14 2013 » Criminal Law, Maine Law » Comments Off
A few words about Dzhokhar Tsarnaev and Miranda. Last night, literally within minutes of the announcement that Boston Marathon bombing suspect Dzhokhar Tsarneav had been arrested, certain news outlets (I noticed MSNBC) began reporting that police hadn’t read Tsarnaev his Miranda warnings. To some, this might have seemed an odd focus of media attention at that particular moment, raising suspicions that the point wouldn’t have merited mention from these news sources if the arrestee had been a skinhead who espoused a white supremacist ideology. But that’s a political matter. Whether and when Miranda warnings must be given is a legal matter, and I find that the public generally tends to misunderstand what the Miranda ruling requires. On T.V., as soon as the cuffs go onto the “perp,” the cop whips out a Miranda card and starts reading. But that’s not how it always works in the real world, nor is it how things are always supposed to work in the real world. Life is not a T.V. script, circumstances matter.
The Miranda ruling requires that, when a person is in custody (meaning for practical purposes that he’s been arrested), if police intend to interrogate that person they must either: (1) prior to questioning, read Miranda warnings to him and obtain from him a knowing and intelligent waiver of his right to remain silent and to have counsel present during questioning; or (2) forfeit their ability to use against him any of his responses to the questions they ask him. In a case in which police arrest a suspected terrorist bomber who has been shot and needs immediate medical attention, it wouldn’t be ridiculous for police to postpone the interrogation until the person is rendered fully conscious and/or lucid by medical treatment. In that case, the appropriate time to read Miranda warnings would be later-on, just before the interrogation takes place, as opposed to while the suspect is being whisked into an ambulance.
In Dzokhar Tsarnaev’s case, spokespeople for the U.S. Justice Department announced that police didn’t read Miranda to him because they intended to invoke the public safety exception to Miranda. This exception was announced in the 1984 U.S. Supreme Court case New York v. Quarles. The exception allows police to ask questions of an arrested person, directed toward identifying/eliminating a public safety threat. Quarles involved a rape suspect who had evidently ditched a handgun in the immediate vicinity, evidenced by his wearing of an empty shoulder holster. The arresting officer asked Quarles where the gun was, before reading him Miranda warnings. Quarles told the officer where the gun was and the officer secured it. The U.S. Supreme Court said that Quarles’ statement identifying the location of the gun could be used against him, because there is a public safety exception to Miranda that allowed the officer ask the question, so he could find and secure loose the weapon before it became a source of harm.
Dzokhar Tsarnaev is suspected of making bombs, using bombs against a civilian population, and perhaps of subscribing to a concept known as jihad that, in the understanding of significant numbers of sometimes loosely affiliated “jihadists,” calls for the use of bombs and other means of mayhem against the civilian population of the infidel Great Satan (a.k.a the United States of America). If the police or FBI intend to ask Tsarnaev about the possible location of additional bombs, or the identities of other would-be infidel-slayers with whom Tsarnaev is perhaps affiliated, many of those questions might well fall within Miranda’s public safety exception. But suppose police ask him questions, without securing a waiver of Miranda rights, beyond those that fit within the public safety exception. Suppose they seek to gather intelligence information that exceeds the scope of an immediate public safety concern. If they do interrogate him on such topics, they will forfeit the ability to use Tsarnaev’s responses against him in their case-in-chief at trial. There is a prescribed remedy for the Miranda violation, and that’s the prescribed remedy.
Typically, when police question a suspect their primary focus is to gather evidence about distinct crimes that have already been committed. If police fail to comply with the Miranda ruling, they will not be allowed to use against the suspect the statements he makes in response to custodial interrogation. If the suspect’s statements are crucial to the case against him, for the already-committed crime or crimes, this can be a very costly mistake. But in this case, if the FBI’s focus is to find out as much as they can about any broader threat of future harm from others, frankly so-what if Tsarnaev implicates himself and the Government doesn’t get to use his words against him. Again, Tsarnaev can be happy to be protected from the use against him of his un-Mirandaed statements; the Government’s ability to use against him all other evidence they’ve gathered, regarding the already- committed bombings, remains unaffected; and the Government might learn information that allows them to prevent more mass death and dismemberment in the streets of this country. For anyone who cocks a brow and posits that the Government might coerce Tsarnaev into a false confession without the benefit of Miranda warnings and then claim he was provided Miranda warnings, or some such thing, if that’s how it goes, there’s nothing that the reading of Miranda warnings on the way to the ambulance could have done to prevent that… just so you know.
Sat, April 20 2013 » Maine Law » Comments Off
Exigent Circumstances for Warrantless OUI Blood Draws Not Automatic.
In Missouri v. McNeely, 569 U.S. __ (April 17, 2013), the United States Supreme Court rejected the State of Missouri’s argument that blood samples may always be drawn, in routine drunk driving cases, over a suspects objection and without the need for a search warrant, as long as probable cause exists to believe the person has driven under the influence. The Court’s precise holding was as follows: “We hold that in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.” Missouri v. McNeely, Slip opinion at 23.
As a general proposition, Supreme Court case law holds that a search warrant is required for the search of a person to be reasonable” under the 4th Amendment to the U.S. Constitution. In Schmerber v. California, 384 U.S. 757 (1966), the Supreme Court declared specifically that a search warrant is ordinarily required for the non-consensual taking of a person’s blood sample, given the level of intrusion involved in piercing a person’s veins to obtain evidence against him. But like any search or seizure that ordinarily requires a search warrant, the taking of a blood sample in a given circumstance might be justified by one of the recognized exceptions to the search warrant requirement. One such exception is the “exigent circumstances” exception. The idea is that a warrantless search might be reasonable if the time it would take to obtain a search warrant would likely result in the disappearance or destruction of evidence. In Schmerber, the Supreme Court found that a warrantless blood draw from an OUI suspect was reasonable because the defendant had been injured in a car crash and had been taken to a hospital before the officer caught up to him. In these circumstances, the Court found that the officer (who had hospital personnel perform the blood draw for him) might reasonably have believed he was confronted with an emergency, in the sense that valuable blood alcohol evidence would have been destroyed in the additional time it would have taken to obtain a search warrant. The Schmerber Court pointed out that the percentage of alcohol in a person’s blood always starts dropping shortly after the person stops drinking.
In Missouri v. McNeely, police and prosecutors in Missouri, leaping from Schmerber, took the position that the natural bodily process of metabolizing alcohol creates an exigent circumstance, built into all drunk driving cases, that justifies a warrantless search anytime there is probable cause to believe the crime has been committed. The Supreme Court rejected this argument, instead holding that the question whether exigent circumstances justify a warrantless search in a given OUI case requires an examination of the particular circumstances of that particular case. In some cases, it may be true that exigencies justify a warrantless blood draw, but in other cases a warrant might be obtained relatively quickly and it would then be unreasonable to conduct a warrantless search to obtain a blood sample. What I find interesting in McNeely is the emphasis placed on the conditions under which McNeely’s blood sample was taken. As with the sample take from Schmerber, McNeeley’s blood sample was taken at a hospital, by medical personnel. Where and how a blood sample is obtained is important, because of the overriding 4th Amendment requirement that a search be “reasonable.” The way in which a search is carried out is a factor in the reasonableness analysis. In Schmerber, the Supreme Court pointed out the importance that it placed on the circumstances under which Schmerber’s blood was taken, in the following passage:
“Petitioner’s blood was taken by a physician in a hospital environment according to accepted medical practices. We are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment—for example, if it were administered by police in the privacy of the stationhouse.” Schmerber v. California, 384 U.S. 757, 771-772 (1966).
In his concurrence in Missouri v. McNeely, Chief Justice Roberts argued that the Court’s majority opinion should have provided guidance for police as to circumstances that were likely to justify a warrantless blood draw based on exigent circumstances. At the risk that I might be leaving out some of the nuance, he essentially suggested that police must seek a search warrant anytime doing so would not appreciably delay the acquisition of a blood sample, and he suggested that there is always some delay involved in securing a blood sample because such samples are ordinarily taken at a hospital or other medical facility. In this connection, Justice Roberts quoted the passage from Schmerber quoted above, and had this to say about it:
“A plurality of the Court suggests that my approach could make roadside blood draws a more attractive option for police, but such a procedure would pose practical difficulties and, as the Court noted in Schmerber, would raise additional and serious Fourth Amendment concerns [emphasis added].” Missouri v. McNeely, Slip opinion (concurrence) p. 7, n. 2.
On this point, the majority in McNeeley answered Roberts, suggesting that roadside blood draws by police officers are in fact problematic and should not be encouraged, while pointing out that Roberts’ suggested approach would make roadside blood draws more attractive to police, given that this process will almost always result in a blood sample being acquired much sooner than a process that involves applying for a search warrant. McNeely, 596 U.S. __, Slip opinion at p.p. 15-16. Why do I find these discussions of blood draws performed by medical personnel at a hospital vs. those performed by police officers at the roadside or police station interesting? Because more and more these days, OUI blood draws in Maine are performed by police officers at police stations. In fact, in other states it has become quite common for blood draws to be done by police officers at the roadside. Maine law states that a person is qualified to draw a blood sample to determine a defendant’s alcohol level or drug concentration if that person’s “training allows that person to draw blood samples.” 29-A M.R.S. §2524(1). You might ask the question: A person whose training allows that person to draw blood samples according to whom? Without an answer to that question, this is a pretty empty qualification. And yet, although the DHHS, Health and Environmental Testing Laboratory used to certify people as qualified to draw a blood sample for alcohol and drug analyses, they stopped doing so under the theory that all they were doing was certifying those who were already qualified by occupational license or training anyway. So now we have a circular, empty qualification standard that is void of any substance or meaning, but I digress, because my main point is that police officers often become licensed as EMT’s at a level of training that qualifies them, under EMT rules, to draw blood samples. And when someone comes into the police station in an OUI case in which a blood sample is to be taken, quite often these days it’s one of those EMT-trained police officers who takes the person’s blood sample. That’s exactly the sort of thing the Schmerber and McNeeley Courts suggested might raise serious 4th Amendment concerns—police officers taking blood samples at the station house. So maybe this practice isn’t so legitimate after all, because it appears there are people in black robes (at the national level anyway) who perceive that the creepiness index is markedly increased when a cop sticks a needle in your arm at the police station, instead of a phlebotomist, nurse or doctor in a more medically-themed environment.
Thu, April 18 2013 » Maine Law » Comments Off
In Florida v. Jardines, 569 U.S. __ (March 26, 2013), the U.S. Supreme Court decided it was unconstitutional for police officers, who did not have a search warrant, to approach the front door of a person’s home with a drug-detection dog, to allow the dog to sniff for drugs. Drug agents had received a tip, about a month before the search, that marijuana was being grown in the house. On the day of the search, a police detective first watched the house for about 15 minutes and noted that the blinds were drawn and nobody came or went. A second officer arrived on scene with a drug-sniffing dog and the two officers and the dog approached the front porch of the house, where the dog was allowed to sniff until it “alerted” on the front door. Police then left the area and used the fact that the dog had alerted on the front door to acquire a search warrant. Armed with the warrant, they returned, conducted a search of the interior and found marijuana growing there. In a 5-4 decision, the U.S. Supreme Court ruled that the initial approach to the house with the drug-sniffing dog was an unreasonable search under the Fourth Amendment to the United States Constitution. Absent the evidence gathered in that unreasonable search, there would not have been probable cause for the search warrant, so the decision of the Florida Supreme Court to suppress the results of the search inside the house was upheld.
The majority opinion was written by Justice Scalia, joined by Justice Thomas. There was a concurrence, written by Justice Kagan, joined by Justices Ginsberg and Sotomayor. The Scalia opinion was grounded in a property rights theory. As a general rule, a search warrant is required for the search of a home. This rule extends to the home’s “curtilage,” which is the area immediately surrounding the home, intimately connected to it and deserving of the same level of privacy as the home itself. A search warrant is not required if a person consents to a search of the home or its curtilage, and it has long been recognized that, through social convention, people impliedly consent to allow members of the public (mail and newspaper carriers, door-to -door sales people, trick-or-treaters, etc.) to approach the front door of their houses, to knock, and even to ask to enter. The law recognizes that a police officer who approaches a house along the same path used by members of the general public enjoys the same license to enter the curtilage, and even to knock and ask permission to enter and search the home. The law also recognizes that if an officer, acting within the scope of this implied license or consent, sees evidence of illegal activity in plain view, there is nothing unreasonable about the officer using this observation against the homeowner or occupants. For instance, if the homeowner opens the door and the officer sees a meth lab over the homeowner’s shoulder, the officer is allowed to use that observation to obtain a warrant to search the home. The dissent, in Jardines, argued that there was nothing in the case that allowed a principled distinction to be drawn between this circumstance and what occurred in Jardines.
In Justice Scalia’s opinion, however, there was an important distinction to be drawn. The way Scalia viewed it, the officers exceeded the scope of the customary license to approach a home along the path ordinarily used by members of the public. Custom may dictate that a homeowner gives license for people to approach along this path, but the scope of that customary consent is exceeded when someone enters the curtilage for the purpose of conducting a search of the home from within the curtilage. This is what the police in Jardines did when they entered Jardines’ front porch and used a trained drug dog to sniff within the curtilage, to detect what was inside the home. Scalia observed that nobody can be held by custom to consent to such activity.
The Kagan concurrence applied an “expectation of privacy” analysis, as opposed to Scalia’s property rights analysis. The concurrence opined that a homeowner has a reasonable expectation of privacy that nobody will enter onto their premises and use a device (here, a drug dog) that allows them to detect things inside the house that one could not detect from outside with ordinary senses. For instance, it would be just as problematic for officers to approach the front door of a house and then peer through the window with binoculars, to observe activities inside in great detail. But in the view of the concurrence, these principles are grounded in expectation of privacy concerns, not property rights, per se.
Again the dissent thought that precedent dictated that the police activity in Jardines was all well and good. Officers approached a house along the path to the front door and used a dog to detect an odor that was plainly detectable to the dog from that vantage point, outside the house, indicating there were drugs inside. The dissent pointed out that dogs have been used by police forever and are nothing like a special high-tech device, not generally available to the public that allows an officer to detect activities inside a home.
In any event, between Scalia’s opinion and the concurrence, five justices decided that the search in Jardines was constitutionally unreasonable and that suppression of its fruits was the appropriate result. Actually, I suspect that the part about the opinion reaching the right result is exactly what explains the rest. Two quite conservative members of the Court and three quite liberal members could agree on one thing: it’s just too creepy to allow police officers to approach people’s houses without a warrant and without probable cause and start snooping around the front door with drug-sniffing dogs, or binoculars, or whatever other implements they might use to detect what’s inside. But while the five justices agreed that the practice is too creepy to be allowed, they couldn’t agree on the appropriate legal rationale to carry them to the desired result. As for the dissent, thankfully they didn’t have another vote, but I have to say they made some valid points. In my view, the majority and the concurrence were not entirely convincing in trying to make the case that their opinions square with the Court’s own precedent, which brings me to another point– this is how things really work much of the time.
It all starts with the fact that judges and lawyers all go to law school. In law school, everyone is trained for a profession in which their role is to advocate for clients. Clients don’t particularly care to pay their lawyers to engage in a search for truth. Clients want lawyers to carry the banner, to advance their cause, to win their case. Law schools train lawyers who will serve clients. In other words, legal training, and the practice of law itself, teach that the first order of business is to determine the result to be achieved; that all else flows from there. The lawyer sets about constructing the most convincing possible argument to reach the desired result within the constraints of existing precedent. As time goes on after law school, some lawyers become judges, and some of those become appellate judges. Those who become appellate judges receive no more training than the lawyers whose ranks they leave behind in sifting precedent to reach absolute truth. There is one clear difference, though, between the appellate judge and the practicing lawyer. The practicing lawyer is in no position to decide for himself or herself the desired end to be achieved in a particular case– the client makes that decision. On the other hand, appellate judges are in a position to decide for themselves what result should be achieved and then to revert to their training as lawyers to structure the strongest possible argument in favor of that end. But for a judge to do this is to enter the realm of the political, while armed with the power to impose ones’ will by fiat. The best we can ordinarily hope for is that our appellate judges will strain against their inclinations to first decide the desired result; that they will struggle against the temptation to enter the political realm. And yet, most of us will cheer the appellate judge who dons the political mantle to impose our will. It’s only when things go the other way that we work up indignation. So, I like Jardines, because the police conduct there is frankly something that should be spurned in the America I care to live in, but I’m not entirely convinced by the arguments that got us to the desired result.
As it stands, per Illinois v. Caballes, 543 U.S. 405 (2005), if police pull you over while you are driving, they can run a drug dog around the exterior of your car to sniff for drugs, as long as that doesn’t unreasonably extend the duration of the initial traffic stop but, per Jardines, they can’t come to the front door of your home with a drug-detection dog, seeking to detect drugs inside. I guess when police officers shave their heads, wear black gloves and run drug-sniffing dogs around cars at motor vehicle stops, I should feel a heightened sense of security, but it’s alright that I should be creeped- out at the prospect of their coming up the street with drug dogs, for a house-to-house sniff of everyone’s front door. My thanks to the Supreme Court for that much affirmation, anyway.
Sun, March 31 2013 » Criminal Law » 1 Comment
A couple of weeks ago, I returned a call from Patty Wight, a reporter from Maine Public Radio, seeking comment for a story she was doing on the Kennebunk Zumba prostitution prosecutions. Late last week, Ms. Wight called again and recorded some of my comments regarding whether the prosecutions of Mark Strong, Alexis Wright and numerous of Ms. Wright’s alleged patrons represent a misuse of prosecutorial resources. The story aired on Monday and can be heard here: http://www.mpbn.net/Home/tabid/36/ctl/ViewItem/mid/5347/ItemId/27050/Default.aspx
Wed, March 27 2013 » Criminal Law, Maine Law » Comments Off