Jul 28, 2014

Blood Draws May Require a Warrant in Some Suspected Drunk Driving Cases

By: Brent Scott

If you are of the opinion that our government is already too invasive (think PRISM – the clandestine mass electronic surveillance data mining program launched by the NSA back in 2007), you may not want to read any further.  Did you know that by merely obtaining a driver’s license you are also consenting to a blood test? 

Michigan’s implied consent law provides that a person operating a motor vehicle is considered to imply his consent to have chemical tests of his blood, breath, or urine to determine the amount of alcohol or a controlled substance if the person is suspected of operating while intoxicated.

Now, courtesy of a recent SCOTUS decision, the pendulum may be swinging in the other direction.  In a 5-4 decision, authored by Judge Sonya Sotomayor, the Supreme Court agreed with Tyler McNeely’s defense counsel that an involuntary blood draw is a "search" as that term is used in the Fourth Amendment.  

A technical reading of this decision is that a search warrant is generally now required for a blood sample to be withdrawn from a suspected intoxicated driver’s body.  However, as our SCOTUS likes to do, it opened the door for an "exigent circumstances" exception in some drunk-driving situations where a warrant would not be required.

Specifically, in McNeely, the Defendant was stopped for speeding.  McNeely was asked to submit to an alcohol breath and blood test, both of which he refused.  When the hospital staff took a blood sample without the arrested driver’s consent, the result was that McNeely's blood-alcohol levels were above the legal limit; he was charged with driving while intoxicated. 

McNeely’s defense lawyer moved to suppress the test arguing the blood draw constituted a search and the officer needed to obtain a warrant.  After all, the officer testified at the suppression hearing that he had time to obtain a warrant, but simply chose not to.   

So where does this leave us?  It appears that prosecutors are barred from arguing that implied consent searches are “per se” valid and constitutional because a blood draw is a "search".

Justice Sotomayor’s decision states:
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…. "In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.
However, as the loony Lee Corso likes to say, “not so fast my friend.”  The Court also reiterated that police are not required to get a warrant if there is some true exigency:
 We do not doubt that some circumstances will make obtaining a warrant impractical such that the dissipation of alcohol from the bloodstream will support an exigency justifying a properly conducted warrantless blood test. That, however, is a reason to decide each case on its facts, as we did in Schmerber, not to accept the “considerable overgeneralization” that a per se rule would reflect…” and …"exigent circumstances justifying a warrantless blood sample may arise in the regular course of law enforcement due to delays from the warrant application process.
Well that certainly clears it up for me…   

From a practical standpoint, it is tough to tell how the McNeely ruling will play out on the highways and byways of America.  On one hand, metabolism does not automatically create an exigency thus, a warrant is called for.  On the other hand, since a warrant takes time that creates a delay where alcohol will be metabolized and eliminated from the suspect’s blood stream, minute by minute by minute. 

While time seems to be the key element in the evidence preservation equation, the High Court did not elaborate on what the exigent circumstances might be to trigger an application of the exception.

Perhaps law enforcement will be able to streamline the warrant process in drunk driving cases – I’m sure the district court judges will love being woken up at 2:00 a.m. to make probable cause determinations. 

Bottom line: the explicit recognition that some chemical tests require a warrant is certainly a good thing for defense attorneys and for the rights of the accused.  As always, it takes good lawyering to figure out how to best use the McNeely case. 



Jan 8, 2014

The Plea

This is a post that received recognition as the 2013 "JDog Memorial Blawg Post" for the best post on criminal law, in the opinion of Scott Greenfield, a prolific law blogger over at Simple Justice and a veteran criminal defense lawyer from New York City.

It is Tuesday at 9.30am and I am in the booth.

The booth is a tiny box where I have the honor of talking to my client through an inch of bullet-proof glass. I say “talking”, though it’s really more like yelling, since it’s pretty hard to hear through that glass.

“Booth” is a misnomer too. “Booth” reminds me of the precursor to something fun. You buy tickets to a movie or carnival rides at a booth. No such fun was happening today.

Really, the booth is purgatory, a limbo my clients sit in after they’ve made their way from the prison and to the courthouse basement’s holding cells, but before they enter the courtroom where they await final judgment.

This particular morning, I am wearing a navy flannel Brooks Brothers No. 1 sack suit, a white shirt I freshly pressed at 5.30 that morning, and a somber tie that reflected my mood.

In gross juxtaposition, my client is in an orange prison jumpsuit and has a thermal on underneath to keep warm. I guess this hell follows Dante’s rules.

My client is a good man who’d recently made a series of terrible decisions, all of which led to where he is today. Despite his cock-ups, he was truthful and admitted his mistakes not only to his family, but to members of his community.

Then the police became involved.

And he got arrested.

And his mistakes became a “case.”

And that’s how we ended up on opposite sides of the same sheet of glass on Tuesday at 9.32am.

Today, he is ready to plead guilty to the charges against him. In exchange for giving up his Constitutional right to a jury trial, he is offered a sentence far less than what he would see if he were found guilty at trial.

Though we’ve already done this before back up at prison, I review with him one last time his written guilty plea colloquy, and explain to him word by word the rights he is giving up by pleading guilty. I’m reading it to him like I’d read “Hop on Pop” to a kindergartner.

But he’s not a kindergartner. He’s a grown man. And this isn’t “Hop on Pop.”

It’s 9.34am. I’ve finished reviewing the colloquy with him. He’ll sign it out in the courtroom, since now his hands are shackled behind his back and we’re separated by an inch of bullet-proof glass.

It’s 9.35am, and I can only watch as my client sobs and tears stream down his face.

You see, up until this point he’s been a man of god. An educated guy, he’s worked the same job for the last 25 years, and been married to the woman he loves for the last 30. He’s lost all of that now.
(Did I miss the day in law school they taught you how to handle this?)

According to the arrangement with the District Attorney’s office, he faces up to five years in a state correctional institution for the crimes he’s pleading to. If he’s really good (including credit for time served) he’ll get out in about two years. If he runs into problems in prison, he’s going to miss his son’s high school graduation.

I ask him if he as any more questions for me before we go into the courtroom.

“Lord Jesus, what have I done? Will God forgive me? My wife’s left me. Leo, what am I going to do?”
He spits out this sentence between sobs. A man, broken. But in an instant, he musters up all the dignity he has left. He toughens up his features and tries to wipe his eyes on his elbow—which is difficult seeing as his arms are handcuffed behind his back—and puts on an air of stoicism.

And I tell him. “Bill [not his real name], when the court officer asks you how you plead, you say ‘Guilty’”.
He nods.

According to that fancy framed piece of paper from the Pennsylvania Supreme Court hanging on the wall of my office, I’m an attorney and counselor at law. But the three years of schooling and two years out in practice hadn’t prepared me for this—telling a grown man, through bullet proof glass, who until thirty seconds ago had been crying like a baby, that he was going to be spending the next five-ish years of his life outside of the city he’s lived in his whole life, shipped out to Bumblesuck, Pennsylvania (which alone would be enough of a shock) to take up residence at the taxpayer’s expense in a state correctional institution. And I can tell you that a state correctional institution is no Sandals resort. Hell, it’s not even a Howard Johnson.

“Leo, what am I going to do with the rest of my life?” He asks me. While his expression is still stoic, his bloodshot, watery eyes belie his terror. That look—the feeble attempt to cover fear with toughness—it’s a look that will quickly become familiar to me.

At 9.37am, two knocks on the door interrupt us. The court crier pokes his head in. “The Judge is ready,” he says, then shuts the door behind him.

I stand up. Bill stands up, hands cuffed behind his back, and the sheriff walks in prepared to lead him out to the courtroom.

Through the glass I shout: “Bill, I’ll see you inside. It’s been my honor to represent you. Remember — everyone is better than the worst thing they’ve ever done.”

I turn and walk out of the booth, prepared to meet my client in the courtroom for judgment.


Leo Mulvihill, Jr. is a criminal defense lawyer from Philadelphia, PA.  We here at the electronic criminal lawyer can appreciate his experience and his sentiments; we've been there with some of our clients. Defending the accused can be a rough road at times.  Few cases go to trial; the majority end with some sort of plea.

We cannot help but wonder what crime Mr. Mulvihill's client pled to, and what sentence was meted out by the judge.  From the tone of the post, sounds like the client was headed to prison.

Jan 6, 2014

Governor Cuomo Announces [Limited] Medical Marijuana for New York

By:  Timothy P. Flynn

Later this week, New York Governor Andrew Cuomo is scheduled to announce, in his State-of-the-State address, an executive initiative allowing the limited use of medical marijuana under a set of narrow circumstances.  This is surprising given the Governor's opposition to medical marijuana and given New York's long-standing tough drug laws; some of the toughest in the nation.

The announcement is also surprising given the perennial attempt made by some of the assemblymen in Albany to pass a medical marijuana bill. While the pot bills seem to shoot through the Assembly, they die in the state senate due to the opposition from a staunch caucus of career anti-pot senators.

To get this accomplished, Governor Cuomo, in addition to his change of heart, is utilizing a little known but long-standing provision in his state's public health law.   The proviso, known as the Antonio G. Olivieri Controlled Substance Therapeutic Research Program, allows for the limited use of controlled substances such as marijuana to treat cancer glaucoma, and other diseases "approved by the [New York State Health] Commissioner."  With the Governor's sudden support, as many as 6 hospitals will be selected this year to administer the program and the administrative "red tape" will be dispatched with presumed executive enthusiasm.

For the record, Antonio Olivieri was a New York City councilman and state assemblyman who died at the relatively young age of 39 from a brain tumor.  He was an early proponent of the use of medical marijuana, using it himself to alleviate the effects of his chemotherapy treatments until his death in 1980.

Of course, this comes as big news in New York, with the initiative touted in an above-the-fold article in Sunday's NYT, which is where the simple minds over here at this law blog first heard of the  policy switch.  According to the NYT, Gotham issued nearly half a million pot-related misdemeanor tickets in the decade from 2002 through 2012.

Although this development represents a shift from Governor Cuomo's anti-medical marijuana stance, New York's law is very limited, with tight controls envisioned to prevent abuse.  And let's not forget that Cuomo is up for re-election in November in a state where, at least according to one college poll, 57% of the voters support legalization of medical marijuana.

When they get around to implementing this medical marijuana program, New York becomes the 21st state in addition to the District of Colombia to legalize medical marijuana.


Dec 25, 2013

Convicted Chicago Cocaine Dealer Seeks Executive Clemency for Christmas

Drug lifer Jesse Webster
Last week, reading the Sunday NYT, I came across an article about Jesse Webster's plight in the federal penitentiary in Greenville, IL.  Webster's first and only conviction was handed down in 1996 for trafficking in cocaine.

Unfortunately for Webster, a former drug dealer from Chicago's South-Side, he caught his case back in '96 when the mandatory minimum sentencing guidelines were at their harshest.  Doubly unfortunate for Webster, his was a federal conviction rather than one under Illinois state law.

The thrust of the article was to illustrate the plight of non-violent drug dealers and their arguably "victimless" crimes.  Over the years, I've come across similar media coverage for Michigan's drug lifers [most of whom have been set free by now], and one case from Indiana where a convict was sentenced to life without parole on a marijuana manufacturing and delivery conviction; he was busted with over 100 pounds.

Dan Barry of the NYT profiled Webster, drawing comparisons to his prison buddy, Reynolds Wintersmith, Jr., a former crack cocaine dealer from Rockford, IL.  The two spent 16-years at the Ft. Leavenworth penitentiary in Kansas.

Like Wintersmith, Jesse Webster wrote to President Obama seeking executive clemency and a commutation of sentence.  Unlike Webster, however, Wintersmith's request was granted by Obama along with 8 other petitions for a commutation of sentence along with an additional 13 presidential pardons.

Webster's number has not yet come up.  The ACLU estimates there are about 2800 federal prisoners doing life sentences for "non-violent" drug offenses.  Of these convicts, the NYT suggests that there are dozens, if not hundreds, of first offenders or convicts with only a juvenile record before catching the "bullet".

These days, the federal sentencing guidelines have softened a bit when it comes to mandatory minimums in drug crimes, particularly after the passage in 2010 of the Fair Sentencing Act.  More recently, the DOJ signaled a significant shift away from harsh mandatory minimum sentences and announced an end to the so-called "war on drugs".

This shift, however, has not aided men like Webster who have been caught in the federal drug enforcement machine and are getting the life squeezed out of them one day at a time.


Nov 28, 2013

Federal Judge Establishes Juvenile Lifer Parole Process

In the wake of a pair of SCOTUS decisions, Graham vs Florida, and more recently, Miller vs Alabama, holding that state juvenile lifer statutes violate the 8th Amendment's prohibition of cruel and unusual punishment, U.S. District Judge John Corbett O'Meara ruled on Tuesday that the State of Michigan has to get serious and must take immediate action to comply with those decisions.

This federal judge has rolled-up his sleeves and has got down to some serious, serious business where these individuals are concerned.

Here is a summary of the requirements set out in Judge O'Meara's tersely worded 2-page opinion.  By December 31, 2013, the State of Michigan must:

  • Create an administrative structure for the purpose of processing and determining the appropriateness of paroles for prisoners sentenced to life without parole for crimes committed at juveniles;
  • Give notice to all such persons who have completed more than 10-years imprisonment that their eligibility for parole will be considered in a meaningful and realistic manner; 
  • Schedule, on a fair and reasonable basis, proceedings including a public hearing for each of the eligible prisoners making application for consideration;
  • Put in place a process for preliminary determination of appropriateness of submission of each eligible prisoner's application for parole to the entire Parole Board;
  • The proceedings, from an initial determination of eligibility will be fair, meaningful and realistic;
  • The Parole Board will, in each case, issue its decision and explain its decision determining the appropriateness vel non [Latin for "or not"] of parole.  It will not issue a "no interest" Order or anything like a "no interest" Order;
  • There will be no vetoes by the sentencing judge or anyone else; and 
  • As of the date this process begins, there will be no prisoner sentenced to life imprisonment without parole for a crime committed as a juvenile will be deprived of any educational or training program which is otherwise available to the general prison population.
Wow, those are some serious substantive rights for Michigan's prisoners.  In the event that the State of Michigan fails to establish the above  procedures by the end of the year, Judge O'Meara also has ordered the appointment of a Special Master to carry out the federally mandated procedures.

For its part, the Michigan Attorney General has been focused on the families of the victims in these cases, arguing that the SCOTUS holdings in both Graham and Miller only should be applied prospectively, and not retroactively as argued by the criminal defense bar.

There are approximately 350 juvenile lifers doing time in Michigan prisons, most of whom are indigent and many of whom will be able to immediately take advantage of Judge O'Meara's order.  It is a good bet that the State Appellate Defenders Office is about to get really busy.


Nov 27, 2013

District Judge Sees the Devil's Harvest

In 1936, marijuana was vilified as the harvest of the Devil; the gateway drug to the hard stuff.  Reefer Madness was a propaganda campaign that swept the country in the years following prohibition.

Fast forward to the post-modern era of the second decade in the 21st Century, and we see marijuana legalized in a growing number of states, at least for its, er, medical use; the Justice Department ignores significant manufacturing and distribution operations, as directed by the U.S. Attorney General; and the SCOTUS is considering whether to hear a case this term to remove marijuana from Schedule 1 of the Controlled Substance Act.

While the Michigan Medical Marijuana Act has attracted much attention in the courts and the media all over Michigan, it has had a disturbingly polarizing effect on Dearborn District Judge Mark W. Somers.  The Dearborn judge has petulantly declared the MMA unconstitutional, and has referred to marijuana as: "Devil's weed", "Satan's surge", and "Satan's weed".

Judge Somers has lectured defendants wrongly convicted in his courtroom on the topic of Mexican drug-cartel-related child deaths and how the medical marijuana industry is directly related to this scourge.  In an infamous case, People -v- Brandon, Judge Somers ruled that, "the MMA is rendered unconstitutional in its entirety by operation of the Supremacy Clause of the United States Constitution."

Now he has been disqualified by the Michigan Court of Appeals from deciding any more cases involving the MMA on the basis that he has pre-judged individuals accused of marijuana possession and distribution, despite the availability of valid defenses.

We here at the Law Blogger find it disturbing indeed when a judge takes matters into his own hands, and substitutes his own world view for the law.  In disqualifying Judge Somers, we applaud the Court of Appeals that ruled the probability of actual prejudice at the hands of this rogue judge was too high to pass constitutional muster.

Perhaps it is time for the Judicial Tenure Commission to take a serious look at whether Mark Somers is fit and qualified to be a judge.


Nov 16, 2013

Stop and Frisk in Gotham

Federal Judge Shira Scheindlin
When a police officer has good reason to stop someone on the street to ask a basic question like, "what is your name?" or, "what are you doing?", he has a right not to receive a bullet for an answer.  In some places in our country, here in the 313 or, say, Gotham, police are often viewed as the enemy, especially by the thugs on the streets patrolled by those officers.

Police officers are trained to identify and stop crime.  Their training and experience translates into certain tactics used on the streets in the course of their daily job duties.

One such tactic endorsed by the SCOTUS 45-years ago, in a case called Terry vs Ohio, is the "stop-and-frisk".  A stop-and-frisk is where a police officer with a "particularized suspicion" [something less than probable cause] that a person may be involved in criminal conduct, can stop the person  -briefly detain the individual- in order to ask them some basic questions.

In the process of stopping the individual and asking them basic questions, the officer may pat down the outer clothing of the individual in order to ensure no weapons are present and to facilitate the safety of the officer, the stopped individual, and innocent bystanders.  Think Sheriff Andy Williams strolling through Mayberry.

In theory, this pat down search must be brief and minimally intrusive, limited to the outer clothing of the individual; it cannot be a search for evidence.  How a particular officer conducts a basic pat down search says a lot about his personality; where a pat down search takes place is a huge factor in whether there will be trouble, or not.

On the mean streets of NYC, like here in the "D", officers have their hands full.  Routine stop-and-frisks can become a full-on fleeing, eluding and shooting in a matter of seconds.

In recent years, much grumbling has percolated up from the streets of Gotham due to the manner in which the NYPD handles its stop-and-frisk maneuvers.  The NYPD has been criticized for using racial profiling techniques in the prosecution of this law enforcement tactic.

In turn, this has led to a recent series of strident rulings by a federal judge in Manhattan.  Judge Shira A. Scheindlin has ordered sweeping changes to the NYPD, including a suspension of the stop-and-frisk policy as well as the appointment of a monitor for the department.

These rulings have been appealed to the United States Court of Appeals for the Second Circuit by the legal department of the outgoing Bloomberg administration.  Last month, the Second Circuit stayed Judge Scheindlin's rulings pending resolution of the appeal.

Of course, nothing ever being simple in Gotham, Judge Scheindlin put her thumb print all over these cases through a questionable maneuver to steer all the "stop-and-frisk" cases into her courtroom, and by granting media interviews about the cases while they were still being prosecuted in her Manhattan courtroom.

Now, however, some City bureaucratic leaders, and law-enforcement oriented folk, fear that the new administration of mayor-elect Bill de Blasio will withdraw the City's appeals of Judge Scheindlin's so-called anti-NYPD rulings.  NYC is the only entity with standing to appeal the rulings.

We shall see how these cases turn out in Manhattan.  While there could be some implication for all big-city police departments, here in Detroit, the DPD has a host of other problems distinct from how they conduct their stops and frisks.