SCOTUS Imposes Warrant Requirement for GPS Vehicle Tracking

Last Monday, the SCOTUS issued a 5-4 decision in what could turn into a seminal 4th Amendment case; United States vs Jones.  The High Court strongly embraced privacy here in the electronic age.

In 2004, Antoine Jones owned and operated a hopping night club in downtown Washington D.C.  His joint was so jumpin, it caught the attention of a joint drug task force consisting of the FBI and the Washington PD.

The task force staked out the club by filming all the action at the front door.  Also, Jones' cell phones were tapped and data dumped.  With this evidence in hand, the task force applied for and was granted a warrant to place a GPS tracking device on Jones' wife's Jeep Cherokee within 10-days and within the District of Colombia.

Problem: the GPS device was placed on Jones' vehicle on the 11th day, and in Maryland.  The vehicle was tracked for 28-days and a case for cocaine distribution was submitted for prosecution based, in part, on the evidence collected through the GPS tracker.

Prior to his first trial, Jones moved to suppress the GPS data; his motion was only granted in part.  The trial resulted in a hung jury.  Jones was tried again, and ultimately he was convicted and sentenced to life imprisonment.

The federal appellate court, the D.C. Circuit Court of Appeals, reversed Jones' conviction and SCOTUS granted the U.S. Solicitor's petition for certerorari.  On appeal, the government conceded to the botched execution of the warrant, arguing no warrant was needed in the first place.

Last November, when the case was orally argued before the United States Supreme Court, the Justices were clearly troubled by the government's argument.  An appellate lawyer can glean a lot about the likely outcome of a case from the questions justices and judges pose, or don't pose, during oral argument.

In Jones, Justice Steven Breyer likened the government's position to George Orwell's 1984, commenting to the Solicitor General, "If you win this case, there is nothing to prevent police or government from monitoring 24-hours a day, every citizen of the United States."

Chief Justice John Roberts wanted to know whether the Solicitor General's argument meant that the government could place tracking devices on the vehicles of the 9 Justices.

The opinions themselves, contain Justices' musings [dicta] on what the founders would have ruled back in 1791, regarding these confounded GPS devices.

Justice Sonia Sotomayor wrote a concurrence taking a broad view of our privacy protections guaranteed by the Fourth Amendment, against the many highly sophisticated new electronic tracking devices deployed by the government.  Justice Anthony Scalia, writing for the majority, tailored a more narrow view of privacy; couching his conclusion on the basic definition of a "search", and clearly demarcating our "expectation of privacy" to include satellite tracking device-free vehicles.  

Flatly rejecting the government's argument that the temporary installation of the GPS tracking device was not a search, the Scalia majority affirmed the DC Circuit's reversal of Jones' conviction, warning authorities they needed a probable cause warrant in order to attach tracking devices.

Other than Sotomayor's concurrence, which does not bind future courts, SCOTUS  did not provide a sweeping enhancement of privacy rights in the electronic age.

Dodging a serious sentencing bullet, life, Mr. Jones is now free to go; his conviction for distributing cocaine stays reversed.

http://www.clarkstonlegal.com/

info@clarkstonlegal.com

The United States' Crime Clock

I would not trade living in an open Democratic society for anything.  Ours is a government of laws where personal liberties are ingrained into the societal fabric as rights.

Freedom comes at a price, however.  One component of our Democratic society is the constant tension and interplay between our freedoms and the enforcement of our laws.

One of the costs we all pay at the national, state and local levels is the cost of enforcing our criminal laws.  Some of us pay directly as crime victims; the rest of us pay indirectly in maintaining the much-needed law enforcement apparatus and court system.

Still others among us jack-up the costs of freedom by committing crimes.  On a national level, the modern crime rate is truly shocking.

Here is a  look at the crime rate in the United States according to U. S. Department of Justice:

Homicide.  One person is murdered in the US every 31 minutes.

Rape.  One person is raped or sexually assaulted every 2.7 minutes.

Assault.  An assault occurs every 7.2 seconds.

Theft.  A person is a victim of theft in the US every 2.3 seconds.

Burglary.  A home is burglarized somewhere in the US every 9.1 seconds.

Domestic Violence.  One woman is victimized by an intimate partner every 1.3 minutes; One man is similarly victimized by an intimate partner every 6.7 minutes.

Child Abuse and Neglect.  One child is reported abused or neglected every 35 seconds.

Elder Abuse.  An elderly person is victimized every 2.7 minutes.

Hate Crimes.  Someone reports a hate crime to the police every 73 minutes.

Drunk Driving.  A driver is killed in an alcohol-related highway accident every 29 minutes.

Identity Theft.  Someone's identity is stolen in the US every 8.7 seconds.

Policing for these crimes; charging the crimes; hiring law enforcement and prosecutors; appointing lawyers; and allocating judicial resources for the prosecution, supervision and, in some cases, incarceration is a gigantic portion of our public budget.

Here in Michigan, the Department of Corrections is among the largest bureaucracies in the state government. We routinely keep legions of our citizens behind bars.

Somehow, we need to figure out, as a free society, how to reduce this population and cut these costs.

www.waterfordlegal.com

info@waterfordlegal.com

Medical Marijuana Get Huge Boost in Oakland County

Here is a post from renowned criminal defense attorney Neil Rockind. Apparently, Neil's big marijuana case resulted in all charges being dismissed yesterday by Oakland Circuit Judge Daniel O'Brien. Along with some other local "heavy hitters" from the criminal defense bar, this group of defense attorneys challenged prosecutions of dispensary owners.

Here is Neil's take on this significant development in the medical marijuana jurisprudence:

Twenty-four hours ago, I was sitting at my desk ruminating over the Hon. Daniel O’Brien’s ruling: the ruling that gave the seven (7) Clinical Relief Medical Marijuana defendants their freedom back. I am still thinking about the ruling today. How did we get here? What happened? It is much easier to contemplate these things knowing that we prevailed and that justice was done. When the case was dismissed, I knew that it was a big deal but a day, an overwhelming number of media requests and hundreds upon hundreds of supportive comments later, I now know that this was a REALLY, REALLY BIG DEAL!

On August 25, 2010, employees and operators were subjected to a narcotics team – Special Response Team Raid. The feeling of terror was only intensified by the employees feelings of betrayal and humiliation when they discovered that some of their patients were actually undercover police officers. Here the employees thought that they were helping these patients and instead learned that the police officers had duped them. They later learned even more: the officers had forged medical marijuana patient cards with the knowledge of at least one prosecutor, gained access to the facility by pretending to be patients and signed attestations claiming to be patients who suffered from a debilitating illness. Our clients tried to help these people just as they tried to help and assist thousands of others. As it turns out, the only time our clients provided marijuana to people who were not patients was when they provided it to undercover officers pretending to be patients. The irony is still not lost on me.

The Clinical Relief employees should never have been charged. Period. There are no ifs, ands or buts about it and while they are free today, it took nearly 2 years of litigation to do it. Unfortunately, the fight for justice was not without casualties.

I never had the pleasure of meeting Sal Agro. Sal Agro was Nick Agro and Anthony Agro’s father. He was Barb Agro’s husband of many years. By all accounts, the Agro family was a strong, traditional story. Sal worked for a local school. Barb Agro worked for a local police department. Shortly after the raids, arrests and detentions of his family, Sal Agro was hospitalized. He died a few days later …. his final days no doubt spent worrying about his family.

There were other casualties and other painful moments. One I’ll never forget…the face of a scared wife. Anthony Agro, another defendant in the case, is married to a beautiful woman. In better times, I imagine them out with friends on a Saturday night…an attractive couple with few worries. I didn’t meet them in that environment. My first contact with Agro’s wife was in a courtroom — her husband facing prison. The look on her face said it all: stress, fear and worry. I imagine it is the look of someone waiting in a waiting room as a loved one is in a risky surgery.

I learned a great deal about myself during this case. But I learned a lot about others too.
I discovered that my fellow lawyers, eg, Jerry Sabbota, Steve Fishman, Cheryl Carpenter, Tom Loeb and others, are powerful and committed advocates. Being a part of this team was an incredible experience. Scary is the fact that it took all of us, and our appellate expert, Stuart Friedman, to prevail. It should not take so much firepower to overcome the government but it does. Our fight in which we have maintained the same mantra — our clients relied on the statute — only to he heard 2 years later is a testament to how the government will not listen to reason.
In the end, as is the case so often in life, it came down to our audience. The Hon Daniel Obrien revealed his courage. He patiently listened to us. He patiently listened to the prosecutors. He gave them every opportunity to make their case. In the end, they could not and when there was nothing else to say, he said it all: “case dismissed”.

Way to go guys.

Neil is passionate about this subject and a master of his craft.  An effective advocate and criminal defense lawyer, Neil does not care about the issue that this blog has seized upon in our critique of the MMMA: that many card holders -patients- are inflating their condition and simply using marijuana for recreational purposes.

Neil's take is that when people comply with the law, and receive a legitimate certification from the state, they should not be prosecuted based on the political views of the local prosecutor.  He makes a very good point folks.

www.waterfordlegal.com

info@waterfordlegal.com

Burney's Illustrated Guide to Criminal Intent

This post is a reprint from the excellent criminal law blog of New York City criminal defense attorney Nathan Burney.  This post has picked up a lot of attention, perhaps due to the artwork that accompanies the written text.  The post is from Burney's "Illustrated Guide to Criminal Law."

Rather than just linking to the post, we took the pains to reproduce it here.  Warning, the post and the art are somewhat dark, but then so is the criminal law.

Well, there you have it; a lesson in criminal law, intent and mens rea on the order of what a law student would  attempt to glean from a criminal law course in her first or second year of law school.

www.waterfordlegal.com

info@waterfordlegal.com

SCOTUS to Hear Cheney Secret Service Agents' Appeal in First Amendment Lawsuit

Does a brief political "exchange" between a citizen and a sitting member of the executive branch of government constitute protected speech under the First Amendment?  Is the calculus changed when the citizen, in urging his words upon the public official, actually reaches out and touches the official?

SCOTUS has granted certiorari to consider such questions and to determine whether an arrest is invalidated when made in retaliation for the exercise of free speech.  The case is Reichle and Doyle vs Howards.

Back in 2006, a Colorado man took his son to a piano recital in the Beaver Creek resort area when he saw the former Vice President, Dick Cheney, emerge from a shopping center and begin speaking to bystanders.  This man, Steven Howards, drew the attention of Cheney's nearby secret service detail when he said into his cell phone he was going to ask Cheney how many kids he killed today.

When it was his turn to greet the VP, Howards told Cheney that his Iraq policy was "disgusting".  As Cheney was turning away from the man, Howards allegedly reached out and touched Cheney on the shoulder, thereby engaging the secret service detail, who detained him for questioning and eventually arrested him for assault.

In a civil rights lawsuit subsequently filed in federal court, Howards claimed that his arrest violated his right to free speech under the First Amendment to the U.S. Constitution.  The secret service agents asserted governmental immunity but the Denver-based Tenth Circuit Court of Appeals disagreed, holding that Howards' case should proceed on the basis that law enforcement officers cannot make an arrest based on the exercise of an individual's right to free speech.

For their part, the government asserted that the simple assault on Cheney was sufficient to make the arrest.  Also, the government asserts a public policy interest in supporting secret service officers' need to make split-second decisions without having to second guess the liability implications of their actions.

The case will be scheduled for oral argument sometime in March or April 2012.  Justice Kagan will not take part, presumably due to her involvement in the case when she served as the U.S. Solicitor General.

www.clarkstonlegal.com

info@clarkstonlegal.com

Disparate Sentences for Local NBA Stars

A well-respected blog on sentencing picked-up on the infamous NBA drunk driving cases coming out of the 48th District Court in Bloomfield Hills, MI. The blog noted the difference between Jalen Rose's straight-forward OWI conviction [he did 14-days in the OCJ]; and the weapons charge component to Big Ben Wallace's OWI charge, recently resolved in the Oakland County Circuit Court before Judge Shalina Kumar.

Here is what the blog had to say about the two cases:

On the surface, it would appear that Wallace committed a (much?) worse offense but ultimately got a (much?) lighter sentence than Rose.  Of course, maybe there are some specific differences in the cases not obvious on the surface that justify this seeming disparity.  And, perhaps more importantly, the mere fact that can be (and often is) a lot of "low-level" sentencing disparity in this arena does not, in an of itself, necessarily establish that the applicable sentencing law is either unjust or ineffective.

Reading this blog post and being a local criminal defense attorney, I could not resist posting the following comment:

Great blog, DAB. This comment is from a criminal defense attorney in Oakland County, MI, where this Ben Wallace and Jalen Rose stuff went down. First, it is a suburb of Detroit; not in the "D", as we say. Also, Bloomfield Hills, where the district court is seated for that area, is a posh tony burb. (i.e. there are NBA stars driving around partying).

This comment seeks to shed some light on the "disparity" in the sentencing for the two NBA stars. Rose had the misfortune of driving drunk within the jurisdiction of the 48th District Court and to have his case randomly assigned to Judge Kim Small. Judge Small has made national headlines over the years for her drunk driving sentences; they often involve some jail time, even for first offenders with no criminal history. Currently, a group of high-end defense lawyers have challenged Judge Small, seeking to have her disqualified from all drunk driving cases on the basis that she is not fair or impartial, and that her "one-size-fits-all" sentencing policy (i.e. jail for all offenders), violates the "individualized sentencing" mandated by Michigan statute.
This is why Jalen Rose went to jail last summer. 

In the case of Ben Wallace, the big fella was OWI while packing some loaded cold steel in his Cadillac, upping his game to the felony level, and thereby "just passing through" the 48th District Court. Fortunately for him, although he too was randomly assigned to Judge Small, his attorneys executed a "fast break", waiving the preliminary exam, and binding Wallace over to the trial court. Once there, probation was available all day long. Good bye Judge Small; hello Judge Shalina Kumar. 

Unlike Rose, however, Wallace will have a felony weapons conviction on his record. Last year, Wallace spoke of going to law school. This probably puts the kabosh on that notion.
Here is a link to our local blawg coverage of Big Ben.

Sometimes an accused's notoriety helps his cause; sometimes it hurts the case.

www.waterfordlegal.com

info@waterfordlegal.com

Michigan's Parole Process Explained

From time to time, my appellate clients write to me asking questions about the parole process.  Incarceration and parole affects all of us to the extent that it dampens our societal freedoms and add costs to those freedoms.

The purpose of this post is to explain Michigan's parole process to our readers.  While we recognize that most readers of this blog do not have friends or family behind bars, the process is nevertheless significant to all Michigan taxpayers. 

The Parole Board.
The Parole Board in Michigan was recently reduced in 2011 from 15 members to the current 10 members. The parole board members are appointed by the Director of the Michigan Department of Corrections (MDOC). The Board is the sole paroling authority for felony offenders committed to the MDOC. Members serve 4, 3, and two year terms. Regular meetings are convened by the board to assess and decide parole applications.

The Parole Eligibility Report.
A felony offender must serve the minimum sentence with the MDOC prior to becoming eligible for parole. A Parole Eligibility Report (PER) is prepared on behalf of the applicant by a staff member of the MDOC. This report informs the parole board of the background of an inmate-applicant, and makes sure the applicant's parole file is complete.

The PER also makes recommendations to the parole board for each applicant, taking "misconduct" tickets and the prior criminal record into account. The generation of this report is a critical step in the parole process.

If an applicant has not completed all of the requirements set forth in the judgment of sentence, or if his file is otherwise incomplete, this is noted in the report and parole will be denied.

The Parole Board's staffers use the PER to score a prisoner's parole guidelines. These statutorily-mandated parole guidelines form the backbone of the parole process.

The Parole Interview.
Upon submissions of a prisoner's PER, the prisoner is eligible to participate in an informal and non-adversarial interview with one or more Parole Board members assigned to the prisoner's parole panel. After this interview, a Case Summary Report is generated for the Parole Board's review.
This interview is an excellent opportunity for the prisoner to address members of the board, face-to-face, in order to make a positive impression on his candidacy for parole. The prisoner can address major misconduct tickets, and explain how and when he plans to complete any missing training requirements in order to enhance his eligibility for parole.

Of course, in a perfect world, the prisoner will have completed all required components set forth in his judgment of sentence. This is why good lawyering is so important at the trial phase of the accused's case. Corrections to the presentence investigation report must be made in the lower court as this is the “bible” relative to the prisoner as far as the MDOC is concerned. An inmate will be forced to live within the confines of any errors unless they are corrected on appeal within the timelines set out in the Michigan Court Rules.

Transition Accountability Plan.
Under the Michigan Prisoner Reentry Initiative, the Parole Board and the MDOC are required to formulate a Transition Accountability Plan (TAP) for each prisoner facing parole eligibility.
The TAP serves the dual goals of assisting the prisoner with re-entry into our society, as well as assisting the Board with its parole decision. The TAP identifies specific risk factors for a particular inmate, sets goals relative to minimizing the identified risks, and sets forth a specific plan to help the inmate meet the established goals.

The Parole Board’s Broad Discretion.
In making decisions on parole, the Parole Board has very broad authority to decide the inmate's fate. Nevertheless, the legislature has imposed some restriction on the Board's parole decisions.
For example, the Board must follow the regulatory framework summarized in this post. Also, in no case will a prisoner be granted parole unless and until the Board is satisfied the prisoner will not become, "a menace to society or to the public safety."

In exercising its discretion, the Board takes into account a prisoner's remorse for having committed the offense for which he is incarcerated, his overall mental health, and his "social attitude". A healthy positive attitude is what it takes to achieve parole status; but that is a difficult attitude to acquire and portray from within the grim walls of a prison. The inmate seeking parole must toughen his resolve to acquire and maintain the proper attitude, shutting out all competing negative factors.

Returning to Society.
A prisoner's fate lies squarely within the hands of the Parole Board. At a minimum, the process described above must be followed to the "T". The most important factor beyond having all of one's required sentence components completed, including the payment of restitution, is the adoption and maintenance of a strong positive attitude.

Recidivism is a plague to our society and costs all of us dearly. The Parole Board's job is to identify likely re-offenders and keep them locked-up for the duration of their sentence. This is the cost to society for safety and the enjoyment of our freedom. If the parole process works, prisoners can attain parole, complete parole, and re-join the ranks of law abiding citizens.

Resources.
The Michigan Court of Appeals published an opinion last month, People vs Haegler, explaining the nuts and bolts of the parole board in the context of the appellant-prisoner's CSC conviction and failed attempts at parole.

Some attorneys specialize in parole and probation consultations, assisting clients with the preparation and correction of their initial presentence reports, as well as with the parloe process.  Professional Parole Consulting is such an outfit located in Detroit, MI.

http://www.clarkstonlegal.com/

info@clarkstonlegal.com