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Baggy Pants--a Fashion Statement not Probable Cause

In In re Enrique S., California's Fifth District Court of appeal found an insufficient basis to conduct a patdown for weapons. A .pdf copy of the Court of Appeal's opinion can be downloaded by clicking here. The arresting officer asserted that the juvenile subject's baggy clothing made it possible for him to hide a weapon, but could not articulate any reason why they believed the minor actually possessed a weapon. A search of the minor yielded an illegal knife. While the juvenile court correctly noted that "90 percent of teenagers wear baggy clothing," the denial of the suppression motion was found to be error by the Court of Appeal. I was pleased that the Court of Appeal agreed with my reasoning. This is another example of why suppression motions should be brought at the trial level.

My Office Has Moved

My office will now be located at 813 6th Street, Suite 450, Sacramento, California, 95814. The telephone number is the same. The fax number is (916) 441-0970. The office is in the same suite as Clyde Blackmon's firm, Blackon & Associates. It is located in the Hall of Justice Building, which is across the street from the Federal Courthouse, and adjacent to the Superior Court and jail. This is a convenient location for my clients, and I look forward to working alongside my colleagues in the defense field.

Book Review: The Innocent Man

John Grisham's The Innocent Man is not only a great read but will help educate the public about the death penalty and the causes of wrongful convictions. This is Grisham's first non-fiction book. It is an engaging account of the wrongful conviction and death sentence of Ron Williamson--the innocent man. Grisham forces you to confront the suffering and injustice experienced by Mr. Williamson. His account of the terrible conditions on Oklahoma's death row is remarkable. The story is told through the point of view of Ron Williamson, which forces the reader to live through the awful experience. Grisham's books are, of course, widely read. I'm sure many of who will have read the book will become jurors, or at least informed citizens who will demand safeguards for the accused, and who will question the propriety of capital punishment.

Victory in Brendlin

In a 9-0 decision, the Supreme Court in Brendlin v. California upheld the right of an automobile passenger to assert the violation of his/her fourth amendment rights. I represented Mr. Brendlin at the trial level where I litigated the search and seizure motion. Attorney Beth Campbell represented Mr. Brendlin before the Supreme Court. She did an excellent job fielding the mind bending questions of the justices at oral argument.

Hoping for a Good Result in Brendlin

In People v. Brendlin, now pending before the United States Supreme Court, at issue is whether automobile passengers have standing to contest an illegal automobile stop. I represented Mr. Brendlin at the trial level before the Sutter County Superior Court. Attorney Beth Campbell from the Central California Appellate Project argued the case before the Supreme Court. The oral argument transcript can be viewed online at the Supreme Court website, www.supremecourtus.gov. The questioning was very interesting. Most people I have talked to agree that no passenger would ever feel free to walk away from a car after a law enforcement stop.

Leon Has its Limits: United States v. Thai Luong (9th Cir.2006)

At issue in Luong was the search of Luong’s residence pursuant to a search warrant. The search warrant stated that the Hong Kong office of the DEA had informed the Los Angeles office that “a suspected suspect (Chun-Ying Jao) known as a chemist” was arriving at LAX to “set up and manufacture methamphetamine.” The affidavit set forth the surveillance of Jao. Luong was seen going to Jao’s hotel room. The two left the hotel and went to a restaurant where they ate lunch. After lunch, they went to a residence, then drove to a Home Depot store. They entered Home Depot carrying a red high pressure hose and questioned a store employee about “how to insert a new adapter fitting into (the) hose.” Luong purchased an adapter fitting, and he and Jao drove back to the residence. The affiant stated that she recognized the hose as a common tool used with a vacuum pump during the production of methamphetamine. Upon execution of the search warrant, agents found evidence of methamphetamine manufacturing in Luong’s home.

Luong’s case was originally brought in the state court. After the state court suppressed the evidence, Luong was indicted in federal court. Luong’s motion to suppress was granted by the District Court, the court finding that the affidavit was so lacking in indicia of probable cause that it was not objectively reasonable for an officer to rely on the warrant.

On appeal, the government conceded that the warrant was not supported by probable cause. However, the government maintained that suppression was unnecessary under United States v. Leon, 468 U.S. 897 (1984), due to the officers’ good faith reliance upon the warrant. The court stressed that the Leon good faith test was an objective one, the inquiry being “whether a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization.” The court discussed the situations in which reliance on a warrant cannot be considered objectively reasonable. One of those situations is when the affidavit is so lacking in indicia of probable cause that official belief in its existence is objectively unreasonable. The court concluded that the Luong affidavit was so deficient that the officer’s reliance thereon was unreasonable. Totally missing from the affidavit was any factual basis to believe the anonymous tip was true. “The tip must include a ‘range of details,’ and it must predict future actions by the suspect that are subsequently corroborated by the police.” United States v. Morales, 252 F.3d 1070, 1075 (9th Cir.2001).

The court rejected the government’s claim that exigent circumstances made it objectively reasonable for the officers to rely on the warrant. Also rejected was an attempt to justify reliance on the affidavit by facts orally conveyed to the magistrate but not contained in the affidavit. The court stressed that “all data necessary to show probable cause for the issuance of a search warrant must be contained within the four corners of a written affidavit given under oath.” United States v. Gourde, 440 F.3d 1065, 1067 (9th Cir.2006).

Latest Victory! Appeals Court Finds Improper Exclusion from Drug Treatment

It's nice when the Court of Appeal agrees with you and publishes their decision. This is especially true when your client will get out of prison and be permitted to participate in a drug treatment program. In People v. Muldrow (5th DCA, No. 048923) Mr. Muldrow was convicted of possession of methamphetamine, and admitted four prior prison terms. He was sentenced to state prison for seven years. On appeal, we contended that the trial court erred in finding that a parole hold and the expectation that he would return to prison for a parole violation made him ineligible for Prop 36 drug treatment (Penal Code section 1210.1). The appellate court agreed and vacated the sentence. A defendant is unamenable for drug treatment if he is unavailable to participate due to incarceration. Here, it was not certain that Mr. Muldrow would be unavailable because the parole violation was not even proved at the time of sentencing, and parole could have been reinstated.

United States v. Zavala—Booker revived!

On April 11, 2006, the Ninth Circuit filed its opinion in United States v. Zavala. The case is significant in that it shuts-down the practice of treating the Guideline calculated sentence as the presumptive sentence. The “presumptive sentence” rule has been followed by many district courts and effectively undermined the Booker decision.

In Zavala, application of the sentencing guidelines yielded a life sentence “range.” During the sentencing hearing, the district court characterized the guideline sentence as the “presumptive sentence.” Defense counsel argued that the starting point of analysis was the statutory minimum sentence. The court explained its view of post-Booker sentencing, stating, “I think it is clear . . . that we start with the Guideline range and then work from that to determine whether there are facts in this case unique to this case which justify the Court in disregarding the Guideline range, or at least deviating from the Guideline range in some fashion.” The court considered the relevant sentencing factors set forth in 18 U.S.C. 3553(a), ultimately concluding that the appropriate sentence was 30-years’ imprisonment rather than imprisonment for life.

The court in Zavala concluded that “[i]f a district court presumed that the sentence should be a Guideline range sentence, it would thereby make it much more than something to be consulted and would give it much heavier weight than section 3553(a) now does. That leaves it as a factor in the sentencing alchemy.” The court stated that “a presumption at the district court would give undue weight to the Guidelines. The dangers averted by declaring them to be merely advisory would become recrudescent.”

After Zavala it is clearly error for the district court to apply greater significance to the guidelines. The court stated, “[i]f a district court does show a kind of resistence and, instead, makes the Guideline calculation the presumptive sentence, it will commit legal error by misapplying section 3553(a), which now makes the Guideline a, but only a, factor to be considered.” The foregoing passage is important language in the Zavala opinion. Appellate counsel should consider whether a district court, by virtue of the language it uses or its sentencing practice, has shown “resistence” to the principle announced in Zavala.

The Zavala opinion is notable not only for its holding, but for its entertaining use of language. In one passage, the court writes that “Booker has resuscitated the much-lamented discretion that the sentencing statute seemed to take away from district courts, and has at least partially restored that halcyon condition that district judges have longed for these many years. District courts neither should, nor can, ignore that by placing undue weight on the Guideline portion of the sentencing chemistry.”

Zavala is a good read. Its rich passages should be quoted in every sentencing memorandum filed in the district court.

My Thoughts on Georgia v. Randolph

In Georgia v. Randolph, a case decided this week, the Supreme Court held that when one co-occupant of a residence consents to police entry into the home, and the other co-occupant, who is present on scene, objects, the police may not enter the home.

My first thought is that it will be unusual for circumstances analogous to those in Georgia v. Randolph to occurr. How often is the co-occupant present when the police arrive? The dissent is concerned about the impact upon victims of domestic violence. Putting asside the issue of whether Roberts and Scalia are not being true to their conservative judicial philosophy by permitting their fourth amendment analysis to be bent by concerns over a popular, albiet important, social issue, the dissent just has no idea how domestic violence cases are investigated. When a purported domestic abuse victim calls 911 reporting that the alleged abuser is in the house, responding officers know what to do to ensure their entry into the home is justified by the "exigent circumstance" of preventing further domestic abuse or by preserving evidence of domestic abuse. In practice, it is fairly easy for officers responding to a domestic violence call to either obtain the needed consent, or to adequatly justify their entry into the home. Right or wrong, the courts seem very willing to listen to an officer's justification for the entry.

Case of the Month: People v. Hofsheier

Does Penal Code section 290 violate the equal protection clause of the state or federal Constitution by requiring a defendant convicted of oral copulation with a minor to register as a sex offender but not requiring such regsitration by a defendant convicted of unlawful sexual intercourse with a minor?

Held: To subject defendant to the mandatory registration requirement of section 290, subdivision (a)(1)(A) would deny defendant the equal protection of the laws because there is no similar registration requirement for statutory rape. The Court of Appeal was directed to remand the case to the trial court, however, to exercise its discretion to determine whether the defendant should be required to register as a sex offender under section 290, subdivision (a)(2)(E). (People v. Hofsheier (2006) __ Cal.4th __ (S124636/H026217).) This case was decided on 3/6/06.

I would anticipate legislation to require sex offender reigstration for unlawful sex with a minor. (Pen. Code, section 261.5.) Such change would render Hofsheier void.

New "Three Strikes" Initiative: a Step in the Right Direction

Los Angeles County District Attorney Steve Cooley is proposing a ballot initiative that would modify the existing "three strikes" law to better implement the intent of the voters. The new initiative would eliminate life terms unless the third conviction was a "serious" or "violent" offense. The proposed initiative is now under review by the California Attorney General's Office. The co-author of the initiative is attorney Brian T. Dunn, a member of the firm formerly headed by the late Johnnie Cochran. The issue of whether to include burglary convictions as triggering "third strike" felonies is still under consideration. Assemblyman Mark Leno, D-San Francisco, is involved in this effort. At present, the California District Attorney's Office has not taken a position on the proposed initiative.

Needless to say, those seeking change to the "three strikes" law should contact their representatives.

Readers should also visit the Families to Amend California's Three Strikes ("FACTS") website (here). Donations to this effort will be important is it will surely be opposed by the California Correctional Peace Officer's Association ("CCPOA"). If only the Governor could break away from the grip of the CCPOA on this . . . .

Case of the Month: Batson post Miller-El & Johnson-- Williams v. Runnels

In Williams v. Runnels (9th Cir. Jan. 5, 2006), the appellant argued that during his state trial for second-degree robbery, he made a prima facie showing of discrimination under Batson v. Kentucky when he objected to the prosecutor's use of three of four peremptory challenges to excuse African-Americans. During appellant's trial, when the court indicated that counsel could make peremptory challenges, the prosecutor stated that he would accept the jury. Defense counsel excused jurors, and in response, the prosecutor exercised four peremptory challenges. Only four of the first forty-nine potential jurors were African-American. A Wheeler objection was made after the fourth challenge. The trial judge ruled that a prima facie case of racial discrimination had not been shown and refused to put on the record the prosecutor's justifications for the challenges. The Ninth Circuit found that the proseucutor's challenges presented a prima facie Batson violation.

The court in Williams applied Johnson v. California, 125 S. Ct. 2410 (2005) and Miller-El v. Dretke, 125 S. Ct. 2317 (2005). It cited a passage in Johnson stating that the Supreme Court "did not intend the first step to be so onerous that a defendant would have to persuade the judge--on the basis of all the facts, some of which are impossible for the defendant to know with certainty--that the challenge was more likely than not the product of purposeful discrimination." The court noted that a defendant satisfies the requirements of Batson's first step "by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred." Johnson, supra, at 2417.

The court's use of the term "statistical disparity" when referring to the prosecutor's use of peremptory challenges against three out of four African-American jurors, and the fact that only four of the potential jurors were African-American, is interesting. Trial counsel must make extra effort to keep track of the numbers of prospective minority jurors, as well as how many are struck by the prosecution. Williams stands for the proposition that a "statistical disparity" ought to get you past the first step of the Batson analysis.

The court in Williams was critical of the method by which the district court and California Court of Appeal affirmed the conviction. The court noted that all the prior reviewing courts did was review the evidence in the record concerning the challenged jurors and determine that the record contained evidence for each juror that would support peremptory challenges on non-objectionable grounds. "This, however, does not measure up to the Supreme Court's pronouncement that the question is not whether the prosecutor might have had good reasons, but what were the prosecutor's real reasons for the challenges. Johnson, 125 S. Ct. at 2418; see also Miller-El, 125 S. Ct. at 2332 ("A Batson Challenge does not call for a mere exercise in thinking up any rational basis.")." (Emphasis added.)

Johnson and Miller-El have breathed new life into Batson claims. Williams is one example of the reach of these decisions.

Case of the Month: The 9th Circuit Unchained! US v. Howard

In United States v. Howard (Nov. 15, 2005), the 9th Circuit prohibited the practice of the Central District of California of shackling all defendants during arraignment in front of a magistrate judge. The court held the district-wide policy "effects a diminution of the liberty of pretrial detainees and distracts from the dignity and the decorum of a critical stage of a criminal prosecution." However, the court suggested that a properly justified policy of shackling may be upheld with "adequate justification of its necessity."

The court does an interesting analysis of shackling cases. While the typical concern in these cases is the prejudice that inheres when a defendant is shackled in front of the jury, Howard discusses the other concerns implicated when a defendant is shackled. The court cited Supreme Court precedent describing shackling as an "affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold." The court expressed concern that shackling interfered with communication between attorney and client, embarassed defendants, thereby impairing "mental faculties," and may cause a defendant physical and emotional pain.

The court relied on Supreme Court precedent holding that if a restriction is not reasonably related to a legitimate goal "a court permissibly may infer that the purpose of the governmental action is punishment that may not constitionally be inflicted upon detainees qua detainees." Bell v. Wolfish, 441 U.S. 520, 539 (1979). The Howard court concluded that "a pretrial detainee has a substantive due process right against restrictions that amount to punishment."

The court was unable to uphond the shackling policy on the record before it. While it invited the Central District to adopt a policy that adequately justified shackling, it seemed to caution that fiscal or budgetary concerns will not justify the polcy, noting that "the Supreme Court has already held that financial concerns should not be a justification for cutting back on the constitutional rights of criminal defendants."

Shackling is a hot area of law right now. Trial counsel must be sure to adequately preserve objections to shackling for appellate review.

More Comments About Raich

Finally . . . an accurate, and humorous, media analysis of the Raich opinion. Check out the June 27, 2005 edition of The New Yorker ("The Talk Of The Town," p. 33.). I do not know if writer Hendrik Hertzberg is an attorney. However, it is clear that he actually read the opinion. I enjoyed his comment that "the ruling had nothing to do with marijuana's wickedness (which none of the four written opinions, two on each side, took seriously) and little to do with its efficacy in relieving suffering (which all four took for granted). To make sense of Gonzales v. Raich, a Supreme Court Decoder Ring, available with three box tops from Original Intent Ceral, would be a valuable accessory. The ruling, you see, was all about the Constitution's commerce clause . . . ." As for Justice Thomas's dissent, the author observed that "certain passages . . . could have been written by Justice Cheech or Justice Chong."

A Correction to Make....
In my April 29, 2005 discussion of Moreno v. Baca, I erroneously stated that the plaintiff was stopped by the LAPD. Correction--he was stopped by Sheriff's deputies. The defendant named in the civil rights suit was the Los Angeles County Sheriff.