The Lawletter Vol 38 No 2
John Stone, Senior Attorney, National Legal Research Group
In New Hampshire, text messaging while driving a vehicle is illegal, but simply talking on a cell phone while driving is not. In the right set of circumstances, however, the otherwise legal act of talking on a cell phone while driving can support a criminal conviction for negligent homicide when that conduct leads to a fatal accident. Such was the outcome in State v. Dion, No. 2011-786, 2013 WL 474884 (N.H. Feb. 8, 2013) (not yet released for publication).
At about dusk, the vehicle driven by Lynn Dion, traveling at about 30 miles per hour, struck and killed a pedestrian, who had nearly finished crossing a street and who was using a well-lit, brightly painted crosswalk marked with a yellow and black pedestrian crossing sign. Dion denied ever seeing that pedestrian, or her companion, who was also struck by the vehicle but with less serious effects. Dion admitted that intermittently during her fateful trip she had made and received some cell phone calls as she drove, but she denied that she had been on the phone at the time of the collision.
Reconstruction analysis of the collision by the police showed that the defendant had had fully 13.5 seconds in which to see the pair of pedestrians in the crosswalk as she drove across a bridge, that her view had been unobstructed, and that it would have taken her, at most, 1.5 seconds to react upon seeing the women. Nevertheless, at no time before striking the pedestrian who died did Dion slow down, apply her brakes, or turn to avoid the pedestrians, indicating that Dion, as she herself stated, had completely failed to see them. These facts further led the police to conclude that rather than experiencing a momentary distraction, such as could be caused by a sneeze or changing a station on her car radio, Dion had been inattentive for a longer period. But how could this conclusion be reconciled with the defendant's insistence that she had not been on the phone during the moments immediately leading up to the accident? The clinching evidence was Dion's cell phone records, which undercut that part of her story. The records showed that Dion had placed a call to a friend, hung up a few seconds later, and only about 90 seconds after that placed her call to police from the scene of the accident.
Dion sought to no avail to keep her cell phone records from being used as evidence against her at her trial. In upholding the use of such evidence, the court that rejected her appeal ruled that under New Hampshire Rule of Evidence 403, the probative value of the cell phone records was not outweighed by their prejudicial effect. Dion had admitted to a law enforcement officer that she "had made phone calls throughout her trip," and the records of her calls bore directly on the issue of her attentiveness in the minutes leading up to the collision. Such records were "inextricably intertwined" with evidence of the crime of negligent homicide. Id. at *4-5.
As for the conviction itself, which led to a prison sentence, Dion argued to no avail that the evidence against her was insufficient to support her conviction for negligent homicide, because merely using a cell phone while driving does not constitute the required wrongful or blameworthy conduct to establish the culpable mental state for criminal negligence. New Hampshire Revised Statutes section 630:3(I) makes it a felony to cause another person's death negligently.
Section 626:2 states as follows:
A person acts negligently with respect to a material element of an offense when he fails to become aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that his failure to become aware of it constitutes a gross deviation from the conduct that a reasonable person would observe in the situation.
N.H. Rev. Stat. Ann. § 626:2(II)(d) (Westlaw current through Ch. 4 of the 2013 Reg. Sess., not incl. changes by H.H. Office of Legis. Servs.).
In Dion's case, her inattention to the road in front of her, caused by cell phone use and resulting in the failure to avoid pedestrians in a crosswalk, demonstrated that she had failed to exercise that degree of care, diligence, and safety that an ordinarily prudent person would exercise under similar circumstances. Thus, the evidence was sufficient to support her conviction for negligent homicide.
April 10, 2013
Doug Plank, Senior Attorney, National Legal Research Group
Since the U.S. Supreme Court's ruling in Strickland v. Washington, 466 U.S. 668 (1984), it has been well settled that the Sixth Amendment guarantees to criminal defendants not simply the right to counsel but also the right to effective assistance of counsel. Under Strickland, a violation of the right to counsel may be shown if the defendant demonstrates that (1) counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment, and (2) the deficient performance prejudiced the defense.
In Hill v. Lockhart, 474 U.S. 52 (1985), the Court concluded that the Sixth Amendment right to effective assistance of counsel extends to the plea-bargaining process and that the test established in Strickland should be applied to the situation in which a defendant enters a guilty plea following plea negotiations. Until recently, the Court had not found that Strickland should apply when plea negotiations resulted in a defendant's refusal to plead guilty. However, in early 2012, in Lafler v. Cooper, 132 S. Ct. 1376 (2012), the Court squarely held for the first time that the test from Strickland should be used to judge defense counsel's advice during the plea negotiations, whatever the outcome, and stated that in the context of a plea offer that was rejected on advice of counsel, a defendant could establish prejudice with evidence that
but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed.
Id. at 1385.
Such a multipart test obviously provides challenges with regard to the determination of prejudice, and the Court has recently indicated that it will revisit the issue of ineffective assistance of counsel in plea negotiations by agreeing to review the Sixth Circuit decision in Titlow v. Burt, 680 F.3d 577 (6th Cir. 2012). In Titlow, the Sixth Circuit granted the defendant's petition for a writ of habeas corpus under 28 U.S.C. § 2254 and thus reversed the rulings of both the U.S. District Court for the Eastern District of Michigan and the Michigan Court of Appeals, which each had found no constitutional violation of the defendant's right to counsel.
The facts in Titlow showed that the defendant, Vonlee Titlow, a transgender woman who had formerly been a man, was charged with the murder of her uncle, Donald Rogers. The evidence regarding the cause of death was unclear, as Rogers was found dead on the floor with a drinking glass in his hand. No autopsy was performed, and the medical examiner initially concluded that the cause of death was a heart attack. After Rogers's body had been cremated, however, the cause of death was amended on the basis of photographs of the body, which appeared to show that Rogers had been asphyxiated, based on the fact that there were small scrapes around his nose that were consistent with impressions made by a decorative woven pillow that was found in the house. Subsequently, police were informed by Titlow's paramour that Titlow had told him that Rogers's wife had asked Titlow to help kill Rogers and that when Titlow and Rogers's wife had found Rogers passed out on the floor, they poured vodka down his throat in hopes of bringing about his death. At some point, Titlow stopped and left the room, and Rogers's wife apparently then smothered Rogers. Later, through the use of a concealed recorder, police managed to obtain a recording of Titlow describing what had transpired.
Titlow and Rogers's wife were each charged with first-degree murder and were tried separately. Titlow's attorney immediately negotiated a plea agreement on her behalf, under which the State offered to reduce the charges to manslaughter, with a 7- to 15-year sentence, on the conditions that Titlow plead guilty, submit to a lie‑detector test, testify against Rogers's wife at trial, and not challenge the prosecutor's recommended sentencing range on appeal. At the following plea hearing, Titlow admitted the allegations against her, acknowledged her understanding of the penalty she faced, and entered her plea of guilt. The court accepted her plea and scheduled sentencing for a few months later.
While Titlow was in prison awaiting sentencing, she was told by a deputy sheriff that she should not plead guilty if she believed that she was innocent, and he referred her to an attorney who agreed to represent her in exchange for some jewelry and the media rights to her story. Based on the advice of the new attorney, Titlow filed a motion to withdraw her guilty plea, which was subsequently granted by the court in a plea‑withdrawal hearing. The conversations between Titlow and the deputy sheriff did not appear in the record of the hearing.
The record showed that Titlow's new attorney did not obtain Titlow's file, inspect the State's discovery materials, or speak with her former attorney about the case until approximately one and one-half months after the plea‑withdrawal hearing. Soon after viewing the file, the attorney moved to withdraw, citing a breakdown in communications and a lack of funds. The court granted that motion and appointed a new attorney for Titlow.
Because Titlow did not agree to testify against Rogers's wife, the State's prosecution against Rogers's wife was unsuccessful, and she was acquitted of the charges against her. Titlow was then tried, and the jury convicted her of second-degree murder, after which the court imposed a sentence of 20 to 40 years in prison. Titlow appealed, arguing that her counsel for the plea-withdrawal hearing had been ineffective by allowing her to withdraw her guilty plea, but the Michigan Court of Appeals rejected her appeal. People v. Titlow, No. 241285, 2003 WL 22928815 (Mich. Ct. App. Dec. 11, 2003) (unpublished). After the Michigan Supreme Court denied leave to appeal, Titlow filed a habeas corpus action in federal court. The district court denied Titlow's petition, No. 07-CV-13614, 2010 WL 4115410 (E.D. Mich. Oct. 19, 2010), but issued a certificate of appealability.
In ruling that Titlow had indeed been prejudiced by ineffective assistance of counsel during withdrawal of her guilty plea, the Sixth Circuit found that the evidence did not support the state court's conclusion that Titlow had been advised to withdraw her plea based on a claim of innocence but, rather, demonstrated that the decision to withdraw her plea was based on the fact that the State's plea offer was substantially higher than the Michigan guidelines for second‑degree murder. The court further concluded that the record contained no evidence that Titlow's attorney explained the elements necessary for the State to secure a conviction, discussed the evidence as it bore on those elements, or explained the sentencing exposure she would face as a consequence of exercising each of the options available. In fact, the court found, the evidence showed that the attorney had not even bothered to familiarize himself with the details of the case before counseling Titlow to withdraw her plea. The court therefore concluded that the attorney had failed to fulfill his clear obligation to provide sufficient advice to Titlow during the plea‑negotiation stage.
With regard to prejudice, the court found that the test in Lafler had been satisfied because (1) the plea offer was presented to, and accepted by, the state trial court at Titlow's initial plea hearing; (2) the sentence that Titlow ultimately received was nearly three times the punishment that she had been offered under the plea agreement; and (3) Titlow's position that she would have accepted the plea offer but for her attorney's intervening advice is bolstered by the fact that she had actually accepted the plea on the record at her initial plea hearing.
The court noted that the remedy to which Titlow was entitled was complicated by the fact that under the plea bargain, she entered a guilty plea to manslaughter, whereas she was found guilty at trial of second-degree murder. In such circumstances, the court found, Titlow did not simply suffer the injury of a higher sentence. Moreover, because Titlow did not plead guilty pursuant to the agreement, she did not testify against Rogers's wife, and thus the State lost its main benefit of the bargain. The court ultimately determined that because the initial plea offer to Titlow was to a lesser‑included offense instead of the offense of conviction, it would conditionally grant the petition for a writ of habeas corpus and give the State 90 days to reoffer Titlow the original plea agreement or, failing that, to release her. The court further directed that if the State in fact were to reoffer the plea agreement and Titlow were to accept, the state court could then exercise its discretion to fashion a sentence for Titlow that both remedied the violation of her constitutional right to the effective assistance of counsel and took into account any concerns that the State might have regarding the loss of Titlow's testimony against her aunt.
As noted above, the State sought review of the Sixth Circuit's decision, and the Supreme Court has agreed to consider three questions arising from the case: (1) whether the Sixth Circuit failed to give appropriate deference to the Michigan state court in holding that defense counsel was constitutionally ineffective for allowing Titlow to maintain a claim of innocence; (2) whether a convicted defendant's subjective testimony that he or she would have accepted a plea but for ineffective assistance is, standing alone, sufficient to demonstrate a reasonable probability that the defendant would have accepted the plea; and (3) whether Lafler always requires a state trial court to resentence a defendant who shows a reasonable probability that he or she would have accepted a plea offer but for ineffective assistance, and to do so in such a way as to "remedy" the violation of the defendant's constitutional right. The resolution of these issues by the Court should provide lower courts with more guidance as to how to remedy the prejudice suffered by a defendant who withdraws from a plea offer because of bad advice from counsel.
The Lawletter Vol 38 No 1
Suzanne Bailey, Senior Attorney, National Legal Research Group
A voluminous body of scientific knowledge on the subject of eyewitness identification has developed over the last 30 years, as well as extensive commentary and research by psychologists and jurists on the dangers of misidentification and the unreliability of eyewitness identification. Acknowledging and compiling this corpus, the Supreme Court of Oregon, in State v. Lawson, 291 P.3d 673 (Or. 2012), recently revised the methodology for determining the admissibility of eyewitness testimony in Oregon courts.
Until Lawson, challenges to eyewitness testimony involved the two-step analysis articulated in State v. Classen, 590 P.2d 1198 (Or. 1979). Under Classen, the defendant bore the burden of showing, under the first prong of the analysis, that "the process leading to the offered identification was suggestive or needlessly departed from procedures prescribed to avoid such suggestiveness." Lawson, 291 P.3d at 683 (quoting Classen, 590 P.2d at 1203). If the defendant showed that the process of identification was suggestive, the second prong required the prosecution to demonstrate to the court that "the proffered identification ha[d] a source independent of the suggestive confrontation . . . or that other aspects of the identification at the time it was made substantially exclude the risk that it resulted from the suggestive procedure." Id. at 683-84 (quoting Classen, 590 P.2d at 1203).
In determining whether an identification had been made independent of suggestive procedures, courts were directed to consider a nonexclusive list of factors, including
the opportunity that the witness had at the time to get a clear view of the persons involved in the crime and the attention he or she gave to their identifying features, the timing and completeness of the description given by the witness after the event, the certainty expressed by the witness in that description and in making the subsequent identification, and, of course, the lapse of time between the original observation and the subsequent identification.
Id. at 684 (quoting Classen, 590 P.2d at 1203).
The Oregon court in Lawson observed that although the intent in Classen had been to come up with an evidentiary standard, placing the burden on the defendant to prove that the eyewitness identification was suggestive was more appropriate to a due process analysis, in which the defendant bears the initial burden of proving a constitutional violation. Id. at 689; see, e.g., Perry v. New Hampshire, 132 S. Ct. 716, 730 (2012) ("[T]he Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement."). In contrast, in evidentiary matters, it is the proponent of the evidence—in this case, the State—who bears the initial burden of establishing admissibility. Id. The problem with the second step of the Classen inquiry was that it allowed "trial courts applying the Classen factors to rely heavily on the eyewitnesses' self‑reports to establish the existence or nonexistence of suggestibility factors." Lawson, 291 P.3d at 689.
Finding that the rule in Classen was inadequate to ensure that unreliable eyewitness evidence will be excluded, the Oregon Supreme Court devised a process that closely mirrors the Rules of Evidence. Under the revised rule, "when a criminal defendant files a pretrial motion to exclude eyewitness identification evidence, the state as the proponent of the eyewitness identification must establish all preliminary facts necessary to establish admissibility of the eyewitness evidence." Id. at 696-97. If the testimony is challenged on the basis of lack of personal knowledge or that it is impermissible lay opinion, "those preliminary facts must include, at minimum, proof . . . that the proffered eyewitness has personal knowledge of the matters to which the witness will testify, and proof . . . that any identification is both rationally based on the witness's first‑hand perceptions and helpful to the trier of fact." Id. at 697.
If the State satisfies its burden of proving that the eyewitness testimony is relevant and, thus, generally admissible, "the burden shifts to the defendant to establish . . . that, although the eyewitness evidence is otherwise admissible, the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence." Id. In the event that the defendant successfully makes such a showing, "the trial court can either exclude the identification, or fashion an appropriate intermediate remedy short of exclusion to cure the unfair prejudice or other dangers attending the use of that evidence. . . . [within] the sound exercise of the trial court's discretion." Id.
While Lawson obviously applies only in Oregon, practitioners in all jurisdictions will want to review it for its compilation of the scientific research in the body of the opinion, as well as in an appendix. Moreover, at least one court has identified the Supreme Court of Oregon decision in Lawson, as well as a recent decision by the Supreme Court of New Jersey, State v. Henderson, 27 A.3d 872 (N.J. 2011), as signals of a growing awareness that the current standard for evaluating eyewitness testimony set forth in Manson v. Brathwaite, 432 U.S. 98 (1977), is inconsistent with scientific knowledge. See United States v. Greene, No. 11-4683, 2013 WL 28556, at *12 n.3 (4th Cir. Jan. 3, 2013); see also State v. Avery, 2013 WI 13, ¶ 114 n.4, 826 N.W.2d 60, 86 n.4 (Bradley, J., dissenting).
The Lawletter Vol 27 No 11
Doug Plank, Senior Attorney, National Legal Research Group
The U.S. Supreme Court will once again look at the U.S. Sentencing Guidelines, this time to determine whether a sentence established in a Guidelines provision created after the commission of a crime may be applied to that crime without violating the Ex Post Facto Clause found in Article I, Section 9, Clause 3 of the Constitution. The case, Peugh v. United States
, 675 F.3d 736 (7th Cir. 2012), petition for cert. filed
, 133 S. Ct. 594 (U.S. Nov. 9, 2012) (No. 12-62), set for argument
(Feb. 26, 2013),
arises from the conviction of a defendant on charges of bank fraud in the U.S. District Court for the Northern District of Illinois. In sentencing the defendant to 70 months in prison, the court relied upon the 2009 version of the Guidelines that was in effect at the time of the conviction. The defendant argued that he should have been sentenced under the 1998 Guidelines, which were in effect at the time of the commission of the crime, and that the application of those Guidelines would have resulted in a sentence range of between 37 and 46 months. Although acknowledging that several other circuits have found that application of a postcrime version of a Guideline to impose a more severe sentence would violate the Ex Post Facto Clause, the Seventh Circuit affirmed the defendant’s conviction, finding that any possible ex post facto issue was vitiated because the Guidelines have been determined by the Supreme Court to be merely advisory.
The Lawletter Vol 37 No 10
John Stone, Senior Attorney, National Legal Research Group
A drug enforcement officer got a tip that a particular van owned by a glass company might be used to transport illegal drugs from one Arizona town to another. When the van was found parked in a public parking lot, the officer, without a warrant, placed a global positioning ("GPS") device on it so that the police could monitor the van's movements. The van did not move for several days, but then the GPS device showed that it had been driven to the second town, where physical surveillance confirmed the move and found the van. There the driver of the van, who was an employee of the van's owner, was stopped for speeding and having excessive window tint, at which time he was also arrested on an outstanding warrant. The arresting officer who made the stop also was aware of the GPS device and that the van was suspected of carrying marijuana. A search of the van uncovered bundles of the drug, and the driver was charged with, and ultimately convicted of, drug offenses.
In appealing his conviction on the drug charges, the defendant, Estrella, unsuccessfully argued that the placement and use of the GPS device on the vehicle he had been using constituted an unreasonable search under the Fourth Amendment. State v. Estrella, 286 P.3d 150 (Ariz. Ct. App. 2012). One contention—that the use of the GPS device had been a search under the trespass theory advanced in United States v. Jones, 132 S. Ct. 945 (2012)—was waived because it had not been raised in the trial court. The Jones Court had said that a trespass or an invasion of privacy, in combination with an attempt to find something or to obtain information, is a search within the meaning of the Fourth Amendment. In that case, attaching a GPS device to a vehicle owned by the suspect's wife but used exclusively by the suspect, and then using the device to monitor the vehicle's movements, was found to constitute a Fourth Amendment search.
Even in the absence of a trespass, a Fourth Amendment "search" occurs when the Government violates a subjective expectation of privacy that society recognizes as reasonable. A search does not occur unless an individual exhibits an expectation of privacy and society is willing to recognize that expectation as reasonable. Here, the court held that Estrella did not have a reasonable expectation of privacy in his employer's van or its movements on public roads; thus, placement of the GPS device and data collection was not a "search," since Estrella had no interest in the van when the GPS device was attached in the public parking lot and subsequently monitored by law enforcement. Estrella provided no evidence that he had had permission to drive the van at the time the GPS device was attached to it.
The court in Estrella also noted that generally, for Fourth Amendment purposes, a person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his or her movements from one place to another and that this is especially true where the Government's monitoring of the person is only for a short period of time. See United States v. Knotts, 460 U.S. 276, 281 (1983) ("A person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another."; monitoring the signal of a beeper placed in a container of chemicals that was being transported to the owner's cabin did not invade any legitimate expectation of privacy on the cabin owner's part, and, therefore, there was neither a "search" nor a "seizure" within the contemplation of the Fourth Amendment). Thus, Estrella's argument based on an asserted expectation of privacy in his personal movements was to no avail.
Estrella also contended, as did a dissenting opinion in his favor, Estrella, 286 P.3d 150, ¶ 26 (Eckerstrom, J., dissenting), that even short‑term GPS monitoring may violate a person's expectation of privacy. For this contention, Estrella drew upon Justice Sotomayor's concurrence in Jones, which had noted that GPS monitoring may provide a "comprehensive record of a person's public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations." 132 S. Ct. at 955 (Sotomayor, J., concurring). The use of the GPS device in Estrella was much more limited. Agents, upon reasonable suspicion that the van was to be used to transport drugs, installed and used the device to monitor the van's location and to initiate physical surveillance once it had arrived at its destination. Estrella provided no evidence disputing the trial court's finding that the length of time the van had been tracked was "not excessive or unreasonable." Estrella, 286 P.3d 150, ¶ 14.
Because it concluded that the use of the GPS device did not constitute a search as to Estrella, the court did not need to determine whether the warrantless but minimally intrusive use of GPS tracking for the period of time involved was reasonable and permissible when based on reasonable suspicion. And because the argument was not presented in the case before it, the court did not address the hypothetical situation Justice Sotomayor's observation had suggested, in which GPS tracking is used to aggregate large amounts of personal data for a much longer period of time or on a purely arbitrary basis. The determination of whether that type of surveillance may intrude on a person's reasonable expectations of privacy and, accordingly, run afoul of constitutional standards was reserved until the issue was properly presented in another case.
November 20, 2012
Doug Plank, Senior Attorney, National Legal Research Group
The use of narcotics-detecting dogs is a well-established practice in American law enforcement operations. Trained dogs are routinely used in an attempt to discover the presence of drugs in a variety of settings, including motor vehicle stops, investigative detentions of individuals in public places, and scans of luggage at airports, train stations, or bus terminals. For the most part, the courts have sanctioned the use of trained dogs in the belief that their ability to detect drugs is so well developed and reliable that when they alert on a location, drugs will be discovered there. However, some recent studies have placed that confidence in the performance of trained dogs into question. Now, in a case that will be sure to have widespread repercussions for law enforcement, the U.S. Supreme Court has agreed to revisit the issue of the use of trained narcotics dogs in law enforcement.
In its first decision addressing searches by dogs, United States v. Place, 462 U.S. 696, 707 (1983), the Supreme Court held that the use of a "well-trained narcotics detection dog" to detect the odor of narcotics in luggage at an airport was not a search for purposes of the Fourth Amendment, and the Court strongly implied that the subsequent alert by the dog on the luggage—indicating that the dog did indeed smell narcotics—was by itself a sufficient basis to determine that there was probable cause to justify a search warrant to search the luggage. In reaching that conclusion, the Court determined that the dog sniff was "sui generis" in investigative procedures, meaning that the sniff was "much less intrusive than a typical search," while at the same time reliably informative regarding the contents of the luggage. Id. The Court ultimately held in Place, however, that despite being supported by reasonable suspicion, the detention of the luggage for 90 minutes while awaiting the arrival of the detection dog was too unreasonable to be justified as an investigative detention under Terry v. Ohio, 392 U.S 1 (1968), and therefore invalidated all that followed. The Court thus found that the evidence discovered in the luggage had to be suppressed.
Subsequently, in Illinois v. Caballes, 543 U.S. 405 (2005), the Court held that the use of a narcotics-detection dog to sniff around the exterior of a motorist's vehicle during an investigative stop was not a search, again because of the lack of a cognizable infringement on the motorist's Fourth Amendment rights. After the dog had alerted on the trunk of the vehicle, the police searched the trunk and discovered narcotics. In reinstating the ruling of the trial court that the search of the trunk was supported by probable cause, the Supreme Court necessarily concluded that the alert by the dog was itself enough to provide probable cause to search.
Justice Souter wrote a dissenting opinion in Caballes that questioned the reliability of narcotics dogs and thus questioned the underlying justification for the Place rule. Souter argued that there was little reason to believe that a special rule should be applied to dog sniffs, as the unique reliability of trained dogs was simply not shown by empirical findings:
At the heart both of Place and the Court's opinion today is the proposition that sniffs by a trained dog are sui generis because a reaction by the dog in going alert is a response to nothing but the presence of contraband. . . .
The infallible dog, however, is a creature of legal fiction. Although the Supreme Court of Illinois did not get into the sniffing averages of drug dogs, their supposed infallibility is belied by judicial opinions describing well‑trained animals sniffing and alerting with less than perfect accuracy, whether owing to errors by their handlers, the limitations of the dogs themselves, or even the pervasive contamination of currency by cocaine.
Id. at 411-12 (Souter, J., dissenting) (footnote omitted).
The concerns expressed by Justice Souter have not seemed to trouble many lower courts, as the prevailing view in both federal and state courts has long been simply to view an alert by a trained narcotics dog as proof that narcotics are present. This view is represented by the court in United States v. Sundby, 186 F.3d 873 (8th Cir. 1999), which stated that "[a] dog's positive indication alone is enough to establish probable cause for the presence of a controlled substance if the dog is reliable. To establish the dog's reliability, the affidavit need only state the dog has been trained and certified to detect drugs." Id. at 876. Some courts have even refused to permit discovery by the defendant into the handler's training and experience with the particular dog or the dog's training and track record in the field. See, e.g., State v. Nguyen, 157 Ohio App. 3d 482, 2004-Ohio-2879, 811 N.E.2d 1180 (collecting similar cases).
There have been a few lower courts that have taken a more cautious view, however. Recently, the court in Harris v. State, 71 So. 3d 756 (Fla. 2011), noting a conflict in its state courts of appeal on the issue of alerts by trained narcotics dogs, squarely held that the fact that a drug‑detection dog has been trained and certified to detect narcotics, standing alone, is not sufficient to demonstrate the reliability of the dog for purposes of determining probable cause for a search. The facts before the court in Harris showed that law enforcement officers had stopped the defendant's truck because it had an expired license tag. Based on their belief that the defendant appeared to be extremely nervous, had an open beer in the truck, and refused consent to search the truck, the officers deployed a narcotics-sniffing dog to walk around the truck. After the dog alerted on the driver's door, the officers opened the door and searched the interior of the passenger compartment, locating a quantity of chemicals that were precursors of methamphetamine.
The defendant moved to suppress the evidence, arguing that it was the product of an illegal search. The court granted the defendant's discovery motion to obtain the training and certification records pertaining to the dog, and those records showed that while the dog's handler rated the dog's performance in training sessions with vehicles as "satisfactory" 100% of the time, the handler did not explain whether a satisfactory performance included any alerts to vehicles where drugs were not placed. With regard to the dog's performance in the field, the officer testified that he deployed the dog to sniff vehicles about five times each month but that he kept records of the field performance only when he made an arrest. The officer acknowledged that he did not keep records of the dog's alerts in the field when no contraband was found. Thus, the court found, it was impossible to determine what percentage of the time the dog alerted and no contraband was found following a warrantless search of a vehicle. Significantly, the defendant himself testified that his vehicle had been the subject of a sniff by the same dog the month before and that the dog had alerted in the same way but that the police had found no contraband in the truck and had allowed the defendant to go on his way. The officer responded to this testimony by giving his opinion that the dog was alerting to a residual odor of methamphetamine on the door handle, but he could not offer an opinion with regard to how long ago someone who had handled the drug would have had to touch the handle in order to trigger an alert.
On the basis of these facts, the court held that the State did not provide a sufficient basis to find that there had been probable cause to search the defendant's vehicle. Noting first that the determination of probable cause was subject to a totality-of-the-circumstances test, the court found that
Because the dog cannot be cross‑examined like a police officer whose observations at the scene may provide the basis for probable cause, the trial court must be able to assess the dog's reliability by evaluating the dog's training, certification, and performance, as well as the training and experience of the dog's handler. Similar to situations where probable cause to search is based on the information provided by informants, the trial court must be able to evaluate the reliability of the dog based on a totality of circumstances. . . .
Like the informant whose information forms the basis for probable cause, where the dog's alert is the linchpin of the probable cause analysis, such as in this case, the reliability of the dog to alert to illegal substances within the vehicle is crucial to determining whether probable cause exists. If a dog is not a reliable detector of drugs, the dog's alert in a particular case, by itself, does not indicate that drugs are probably present in the vehicle. In fact, if the dog's ability to alert to the presence of illegal substances in the vehicle is questionable, the danger is that individuals will be subjected to searches of their vehicles and their persons without probable cause. Conversely, if a dog is a reliable detector of drugs, the dog's alert in a particular case can indicate that drugs are probably present in the vehicle. In those circumstances, the drug‑detection dog's alert will indicate to the officer that there is a "fair probability that contraband" will be found. Gates, 462 U.S. at 238, 103 S.Ct. 2317. Thus, to determine whether the officer has a reasonable basis for concluding that the dog's alert indicates a fair probability that contraband will be found, the trial court must be able to adequately make an objective evaluation of the reliability of the dog.
Id. at 767.
The court thus concluded that "when a dog alerts, the fact that the dog has been trained and certified is simply not enough to establish probable cause to search the interior of the vehicle and the person." Id. Noting that there was no state or national uniform standard with regard to training or certification for drug-detection dogs, the court decided that in the absence of such a standard, the reliability of a dog could not be established by demonstrating only that the canine is trained and certified. Therefore, the court found that whether a dog has been sufficiently trained and certified must be evaluated on a case‑by‑case basis. The court further recognized a potential problem in assessing reliability related to handler cuing, as even well-trained dogs could respond to subconscious cues from their handlers. For this reason, the court determined that a critical factor in determining reliability is the record of false positive alerts made by the dog.
The State of Florida sought review of the Harris
decision in the U.S. Supreme Court, which has granted certiorari in the case, Florida v. Harris
, 132 S. Ct. 1796 (2012). It thus appears that the Court will directly address the nature of the use of narcotics dogs under the Fourth Amendment and will provide a uniform rule for the lower courts in determining when and whether to allow the admission of evidence discovered as a result of an alert by a particular dog.
The Lawletter Vol 37 No 7
Doug Plank, Senior Attorney, National Legal Research Group
The courts continue to struggle with the difficulties in reconciling the 18th century principles concerning unreasonable searches and seizures contained in the Fourth Amendment with police surveillance using such modern technological advances as wiretaps of telephones, tracking devices attached to automobiles, heat sensors, or Internet monitoring. The latest source of controversy with regard to the use of technology to infringe upon the privacy of individuals comes from the GPS capability of cell phones.
Last month, the Sixth Circuit Court of Appeals squarely addressed the right of police to use an individual's cell phone signals to locate him and then follow his movements over a several-day period. In United States v. Skinner, No. 09-6497, 2012 WL 3289801 (6th Cir. Aug. 14, 2012), the court ruled that an individual has no reasonable expectation of privacy in the data given off by his cell phone. Analogizing the situation to one in which police locate a defendant by more traditional means, the court found that there was no inherent constitutional difference between trailing a defendant and tracking him via cell phone technology:
The law cannot be that a criminal is entitled to rely on the expected untrackability of his tools. Otherwise, dogs could not be used to track a fugitive if the fugitive did not know that the dog hounds had his scent. A getaway car could not be identified and followed based on the license plate number if the driver reasonably thought he had gotten away unseen. The recent nature of cell phone location technology does not change this.
Id. at *4. The court concluded that law enforcement tactics must be allowed to advance with technological changes in order to prevent criminals from circumventing the justice system.
[For discussions of another case, heard in the District of Columbia Circuit and affirmed in the U.S. Supreme Court, that dealt with the issues surrounding the Government's use of GPS, see Mark Rieber, Search and Seizure—Warrantless Use of GPS Device on Defendant's Vehicle Found to Be a "Search"
, 35 Lawletter No. 12, and Mark Rieber, Search and Seizure—Attachment by Police of GPS Device to Vehicle Constitutes a Search
, 36 Lawletter No. 8.
The Lawletter Vol 37 No 5
Suzanne Bailey, Senior Attorney, National Legal Research Group
A recent decision from the Fourth Circuit Court of Appeals illustrates both the reach of our immigration laws over even long-term lawful immigrants to this country and the need for criminal defense counsel to familiarize themselves with the impact a criminal conviction may have on one's immigrant status. The case also provides guidance on the correct standard for addressing a petition for writ of error coram nobis pursuant to 28 U.S.C. § 1651. See United States v. Akinsade, 686 F.3d 248 (4th Cir. 2012). The case came to the Fourth Circuit on appeal of the district court's denial of Temitope Akinsade's petition.
Akinsade was a 30-year-old Nigerian citizen who legally came to the United States in July 1988 at the age of seven and became a lawful permanent resident in May 2000. When he was employed as a bank teller in 1999, at the age of 19, Akinsade cashed checks for several neighborhood acquaintances, who were not listed as payees on the checks, and deposited a portion of the proceeds from those checks into his own account. He eventually reported the transactions to his supervisor, who then contacted the FBI. He cooperated with the FBI and was neither arrested nor taken into custody at that time. In March 2000, Akinsade was charged by a bank employee with embezzlement in the amount of $16,400, and he subsequently agreed to plead guilty after twice asking his attorney about the immigration consequences of a guilty plea and twice being advised that he could be deported only if he had two felony convictions. The attorney's advice was erroneous. See 8 U.S.C. § 1101(a)(43)(M)(i) (aggravated felony includes offense involving fraud or deceit and loss to victim in excess of $10,000); id. § 1227(a)(2)(A)(iii) (any alien convicted of an aggravated felony after admission is deportable). Finding that the charged behavior was out of character for Akinsade, the court gave him the minimum sentence under the Sentencing Guidelines.
Nine years later, after Akinsade had served his sentence, after he had earned both a bachelor's degree in computer science and a master's degree from the University of Maryland, graduating with a 3.9 GPA, after he had received a fellowship from the National Science Foundation, and after he had entered into a leadership program at General Electric Company and moved to upstate New York, he was arrested by immigration authorities and threatened with deportation based on his embezzlement conviction. He then filed a petition for writ of coram nobis, alleging a violation of his Sixth Amendment right to counsel due to his attorney's misadvice. The district court denied the petition, concluding that although counsel's representation was constitutionally deficient under the first prong of Strickland v. Washington, 466 U.S. 668, 687 (1984), Akinsade did not meet the second prong of establishing prejudice.
Noting that it reviews the denial of a petition for writ of coram nobis for abuse of discretion, the appellate court determined that Akinsade met all four requirements for issuance of the writ: (1) a more usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III; and (4) the error is of the most fundamental character. Because Akinsade was no longer in custody, he had no other remedy for direct or collateral attack on the judgment of conviction. Since he had not been arrested by immigration authorities for nine years, he had no reason for disbelieving his attorney's advice and for attacking the conviction before he brought the petition. The risk of deportation was an adverse consequence of conviction sufficient to create a case or controversy. Finally, the error was of the most fundamental character.
In addressing the fourth element of the coram nobis inquiry, the Fourth Circuit rejected the district court's finding that Akinsade had not been prejudiced in that the sentencing court's admonishment that he could face deportation as a consequence of the plea was sufficient to correct the consequences of counsel's misrepresentations. The sentencing court had merely warned that a conviction could lead to deportation but did not carefully explain the consequences of a plea in that particular case, i.e., mandatory deportation. Moreover, the Fourth Circuit found that Akinsade had established that he would have gone to trial if he had known that a conviction would lead to mandatory deportation, since there was evidence (including a requirement to pay restitution of $8,000) that the loss to the victims did not exceed $10,000. Having found that Akinsade satisfied the two prongs of Strickland, the court, with one judge dissenting, granted the petition and vacated the conviction.
Of note, the court commented in a footnote that the Second Circuit Court of Appeals' determination in a related case, Akinsade v. Holder
, 678 F.3d 138, 143 (2d Cir. 2012), reversing the Board of Immigration Appeals' decision to affirm a deportation order against Akinsade, did not change its conclusion, because the Second Circuit decision did not guarantee that Akinsade would never face deportation on account of his embezzlement conviction. The dissenting judge disagreed and concluded that the Second Circuit decision precluded the Fourth Circuit from finding that criminal counsel gave erroneous advice and that Akinsade was prejudiced by that advice.
The Lawletter Vol 37 No 4
Mark Rieber, Senior Attorney, National Legal Research Group
The Supreme Court has extended the rule in Apprendi v. New Jersey, 530 U.S. 466 (2000). Apprendi held that the Sixth Amendment reserves to juries the determination of any fact, other than the fact of a prior conviction, that increases a criminal defendant's maximum potential sentence. In Southern Union Co. v. United States, 132 S. Ct. 2344 (2012), the question presented was whether the same rule applied to sentences of criminal fines. Southern Union, a natural gas company, was convicted of violating a federal statute, 42 U.S.C. § 6928(d)(2)(A), by knowingly storing liquid mercury without a permit. The jury verdict form stated that Southern Union was guilty of unlawfully storing liquid mercury "on or about September 19, 2002 to October 19, 2004." 132 S. Ct. at 2349. Violations of the statute are punishable, inter alia, by "a fine of not more than $50,000 for each day of violation." 42 U.S.C. § 6928(d)(2)(A). At sentencing, the probation office set a maximum fine of $38.1 million, on the basis that Southern Union had violated the statute for each of the 762 days from September 19, 2002 through October 19, 2004. Southern Union objected that the calculation violated Apprendi because the jury had not been asked to determine the precise duration of the violation. Further arguing that the verdict form and the court's instructions permitted conviction if the jury found even a one-day violation, Southern Union maintained that the only violation the jury necessarily found was for one day and that imposing any fine greater than the single-day penalty of $50,000 would require factfinding by the court, in contravention of Apprendi. While acknowledging that the jury had not been asked to specify the duration of the violation, the Government argued that Apprendi did not apply to criminal fines.
The district court held that Apprendi applied, but it concluded from the verdict that the jury had found a 762-day violation. The court therefore set a maximum potential fine of $38.1 million and imposed a fine of $6 million and a community service obligation of $12 million. On appeal, the First Circuit rejected the district court's conclusion that the jury had necessarily found a violation of 762 days, but it affirmed the sentence, holding, in conflict with other circuits, that Apprendi did not apply to criminal fines.
The Supreme Court reversed the First Circuit and held that Apprendi did apply to criminal fines. The Court stated that it had applied Apprendi to a variety of sentencing schemes involving imprisonment or a death sentence and could see no principled basis under Apprendi for treating criminal fines differently. The Court also rejected the Government's argument that fines are less onerous than incarceration and the death sentence and thus do not implicate the primary concerns motivating Apprendi. Not all fines are insubstantial, however. Moreover, the relevant question is the significance of the fine from the perspective of the Sixth Amendment's jury trial guarantee. "Where a fine is substantial enough to trigger that right, Apprendi applies in full." 132 S. Ct. at 2352. The Court remanded the case for further proceedings.
August 14, 2012
Doug Plank, Senior Attorney, National Legal Research Group
It is well established that the Sixth Amendment to the U.S. Constitution provides to a criminal defendant the constitutional right to counsel and that this right encompasses the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668 (1984). Because a determination of whether a defendant's trial counsel has provided effective assistance at trial can rarely be made prior to the end of the trial or prior to the issuance of the judgment of the court, a defendant's first opportunity to raise the issue of ineffective assistance of counsel is on appeal. However, most States prohibit the litigation of ineffective-assistance-of-counsel claims on direct appeal and, instead, require defendants to bring such claims in a collateral habeas corpus proceeding, usually following the termination of the appeal process. Such collateral proceedings have their own limiting rules, as most States require all issues that can be raised in postconviction proceedings to be brought in one proceeding and hold that issues not raised in the initial proceeding will be forever barred unless the defendant can show both good cause for the failure to have raised them and actual prejudice from that failure. Moreover, the U.S. Supreme Court squarely held in Coleman v. Thompson, 501 U.S. 722, 753-54 (1991), that an attorney's errors in a postconviction proceeding do not qualify as cause for a default, and the Court refused to find that a defendant has a constitutional right to counsel in postconviction relief actions, thus barring ineffective-assistance-of-counsel claims for attorney errors in those proceedings. Under 28 U.S.C. § 2254, the federal statute governing the procedures for bringing a federal habeas corpus action to contest a judgment in a state court criminal proceeding, a defendant is entitled to bring only one proceeding and can only raise issues in that proceeding that were previously raised either in the state trial or in state postconviction relief proceedings.
These limitations have created a situation in which a defendant has no remedy when he has plainly been denied his constitutional right to effective assistance of counsel at trial and yet his attorney has also failed to raise that issue in his initial state postconviction relief action. Under the principles discussed above, the defendant would simply be unable to get relief for his deprivation of the right to counsel, because he would be foreclosed from bringing up the issue in a successive habeas corpus action and could not raise the issue in a federal proceeding under § 2254 because it had not been raised at the state level.
The Supreme Court recently addressed this problem and decided in Martinez v. Ryan, 132 S. Ct. 1309 (2012), a fiercely contested 7-2 decision, that a federal habeas corpus action was indeed available to remedy ineffective assistance of counsel at a state court trial, even where that issue had not been properly raised in the defendant's state postconviction actions. The reasoning of the Court in Martinez would appear to open the door to many more successful federal habeas corpus proceedings for criminal defendants alleging ineffective assistance of counsel.
In Martinez, defendant Luis Martinez had been convicted by a jury in Arizona of two counts of sexual conduct with a minor under the age of 15. At trial, the jury was presented with physical evidence placing traces of DNA on the alleged victim's nightgown, as well as two conflicting videotaped statements from the alleged victim. In the first statement, the alleged victim incriminated the defendant, and, in the second, she denied any sexual contact with the defendant. To explain the inconsistencies, a prosecution expert testified that recantations of child abuse accusations are often caused by reluctance on the part of the victim's mother to lend support to the child's claims.
Following Martinez's conviction, a new attorney appointed for him filed an appeal and then a collateral habeas corpus proceeding, but the attorney failed to allege ineffective assistance of counsel. Both the appeal and the habeas action were denied. Subsequently, after a new attorney took a look at the case, Martinez filed a second postconviction relief action in the Arizona trial court, claiming for the first time that his trial counsel had been ineffective for failing to have challenged the prosecution's evidence. Martinez pointed out in his new petition that his trial counsel should have objected to the expert testimony that purported to explain the victim's recantations or should have called an expert witness in rebuttal, and should have provided an exculpatory explanation for the DNA that was found on the nightgown. However, citing the rule prohibiting successive petitions, the trial court denied the petition because Martinez had failed to raise the issue of ineffective assistance in the first postconviction proceeding.
Martinez then filed a federal habeas petition under 28 U.S.C. § 2254, and, as in the state action, the district court denied the action because the issue of ineffective assistance of counsel had not been raised in the first state collateral proceeding. According to the district court, Martinez could not show cause to excuse the procedural default because under Coleman, the Supreme Court had squarely found that an attorney's errors in a postconviction proceeding do not qualify as cause for a default. The Ninth Circuit affirmed.
The Supreme Court reversed, finding that even though the Coleman Court had found that an attorney's errors in a collateral proceeding do not establish cause for a procedural default because the defendant has no right to counsel in such a proceeding, Coleman had involved a different situation because the error at issue there was not one that had the effect of prohibiting the trial court from considering an issue but, instead, involved the failure of the defendant's attorney to raise an issue on appeal from the initial postconviction relief action, thus barring consideration of the issue in a federal habeas corpus action. As the Court stated, there is a
key difference between initial‑review collateral proceedings and other kinds of collateral proceedings. When an attorney errs in initial‑review collateral proceedings, it is likely that no state court at any level will hear the prisoner's claim. This Court on direct review of the state proceeding could not consider or adjudicate the claim. See, e.g., Fox Film Corp. v. Muller, 296 U.S. 207, 56 S. Ct. 183, 80 L. Ed. 158 (1935); Murdock v. Memphis, 20 Wall. 590, 22 L.Ed. 429 (1875); cf. Coleman, supra, at 730-731, 111 S. Ct. 2546. And if counsel's errors in an initial‑review collateral proceeding do not establish cause to excuse the procedural default in a federal habeas proceeding, no court will review the prisoner's claims.
The same is not true when counsel errs in other kinds of postconviction proceedings. While counsel's errors in these proceedings preclude any further review of the prisoner's claim, the claim will have been addressed by one court, whether it be the trial court, the appellate court on direct review, or the trial court in an initial‑review collateral proceeding. See, e.g., Coleman, supra, at 756, 111 S. Ct. 2546.
Where, as here, the initial‑review collateral proceeding is the first designated proceeding for a prisoner to raise a claim of ineffective assistance at trial, the collateral proceeding is in many ways the equivalent of a prisoner's direct appeal as to the ineffective‑assistance claim. This is because the state habeas court "looks to the merits of the clai[m]" of ineffective assistance, no other court has addressed the claim, and "defendants pursuing first‑tier review . . . are generally ill equipped to represent themselves" because they do not have a brief from counsel or an opinion of the court addressing their claim of error. Halbert v. Michigan, 545 U.S. 605, 617, 125 S.Ct. 2582, 162 L.Ed.2d 552 (2005); see Douglas, 372 U.S., at 357-358, 83 S.Ct. 814.
As Coleman recognized, an attorney's errors during an appeal on direct review may provide cause to excuse a procedural default; for if the attorney appointed by the State to pursue the direct appeal is ineffective, the prisoner has been denied fair process and the opportunity to comply with the State's procedures and obtain an adjudication on the merits of his claims. See 501 U.S., at 754, 111 S.Ct. 2546; Evitts v. Lucey, 469 U.S. 387, 396, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985); Douglas, supra, at 357-358, 83 S.Ct. 814.
132 S. Ct. at 1316-17.
The Court's ruling thus expanded the circumstances under which a federal court may consider an ineffective-assistance-of-counsel claim under § 2254, as the Court held for the first time that when a State requires a defendant to raise an ineffective‑assistance‑of‑trial‑counsel claim in a collateral proceeding, the defendant may establish cause for a default of that claim, both when the state court did not appoint counsel in the initial‑review collateral proceeding, and when counsel in the initial‑review collateral proceeding, where the claim should have been raised, was ineffective under the standards of Strickland.
In a scalding and sarcastic dissent joined by Justice Thomas, Justice Scalia argued that what the majority did in its opinion was to disregard long-standing precedent holding that criminal defendants were not entitled under the Constitution to counsel in collateral postconviction relief actions by finding, in essence, that there is a constitutional right to counsel in initial‑review state habeas corpus actions. Justice Scalia ridiculed the majority's distinguishing of Coleman, noting that
[t]he Court essentially disclaims any need to give full consideration to the principle of stare decisis because Coleman did not involve an initial‑review collateral proceeding for a claim of ineffective assistance of trial counsel. See ante, at 1319. That is rather like saying that Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803), does not establish our authority to review the constitutionality of a new federal statute because it involved a different enactment.
Id. at 1325 (Scalia, J., dissenting). Justice Scalia further pointed out that the logic of the majority applied equally to a great number of issues that could not be raised on direct appeal but could only be raised in a postconviction relief action:
[N]o one really believes that the newly announced "equitable" rule will remain limited to ineffective‑assistance‑of‑trial‑counsel cases. There is not a dime's worth of difference in principle between those cases and many other cases in which initial state habeas will be the first opportunity for a particular claim to be raised: claims of "newly discovered" prosecutorial misconduct, for example, see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), claims based on "newly discovered" exculpatory evidence or "newly discovered" impeachment of prosecutorial witnesses, and claims asserting ineffective assistance of appellate counsel. The Court's soothing assertion, ante, at 1320, that its holding "addresses only the constitutional claims presented in this case," insults the reader's intelligence.
Id. at 1321.
If Justice Scalia's fears are justified, the decision in Martinez opens the door to a variety of exceptions to the procedural default rule for federal habeas corpus actions under § 2254. In any event, the decision offers a new remedy to criminal defendants who have suffered from ineffective assistance of counsel both at trial and in their initial action for postconviction relief.