Crime & Federalism

Miranda, In Custody, At Home

I just pulled up this opinion, which I'm now reading.  Seems exciting: 

The home occupies a special place in the pantheon of constitutional rights. Under the First Amendment, the “State has no business telling a man, sitting alone in his house, what books he may read or what films he may watch.” Stanley v. Georgia, 394 U.S. 557, 565 (1969). The Second Amendment prohibits a federal “ban on handgun possession in the home.” District of Columbia v. Heller, 554 U.S. ___, ___ (2008), slip op. 64. The Third Amendment forbids quartering soldiers “in any house” in time of peace “without the consent of the Owner.” U.S. CONST. amend. III. The Fourth Amendment protects us against unreasonable searches or seizures in our “persons, houses, papers, and effects.” Id. amend. IV.

The question presented in this case is one of first impression in our court: under what circumstances under the Fifth Amendment does an interrogation by law enforcement officers in the suspect’s own home turn the home into such a police-dominated atmosphere that the interrogation becomes custodial in nature and requires Miranda warnings?

United States v. Craighead (opinion).  UPDATE: This is a very thoughtful opinion: 

Applying this standard to an interrogation conducted within the home presents some analytical challenges, however, and presents an issue on which our court thus far has said little. The usual inquiry into whether the suspect reasonably believed he could “leave” the interrogation does not quite capture the uniqueness of an interrogation conducted within the suspect’s home. “Home,” said Robert Frost, “is the place where, when you go there, they have to take you in.” Robert Frost, The Death of the Hired Man, in THE POETRY OF ROBERT FROST 38 (Edward C. Latham ed., 1967).

If a reasonable person is interrogated inside his own home and is told he is “free to leave,” where will he go? The library? The police station? He is already in the most constitutionally protected place on earth. To be “free” to leave is a hollow right if the one place the suspect cannot go is his own home. Cf. Crawford, 372 F.3d at 1060 (holding that an interrogation at an FBI office was not custodial because, inter alia, the defendant was told he was free to leave and “was, in fact, returned home at the end of the interview”).

Similarly, a reasonable person interrogated inside his own home may have a different understanding of whether he is truly free “to terminate the interrogation” if his home is crawling with law enforcement agents conducting a warrant-approved search. He may not feel that he can successfully terminate the interrogation if he knows that he cannot empty his home of his interrogators until they have completed their search. We must, therefore, consider how to apply the traditional Miranda inquiry to an in-home interrogation.

Jose Padilla Prosecution and Pre-Indictment Delay

Donald Caster beat me to the punch with this excellent post on whether the indictment against Jose Padilla should be dismissed because of the government's pre-indictment delay.  I don't think it will be,* but I think it should be.  After all, the government did the following:

• lied to the courts and American public when it said it did not have - and could not obtain - the evidence it needed to indict Padilla;
• held Padilla for years without giving him meaningful access to counsel or the evidence against him, thereby preventing him from discovering evidence needed for his potential defense;
• forum shopped by having Padilla held in the Fourth Circuit, knowing that the Fourth Circuit would be the only forum activist enough to uphold his detention;
• held press conference after press conference where prosecutors asserted that Padilla was the "dirty bomber," thus making it impossible for Padilla to have a fair trial;
• indicted Padilla only after the Supreme Court agreed to review the Fourth Circuit's activist ruling, and after it became apparent that the Fourth Circuit's ruling would not stand.

In other words, the only reason for the pre-indictment delay was this: The government had to wait and see whether it would get an unfavorable court ruling on Padilla's detention.  That's it.  They had the evidence, they had the resources, they had the man.  There was no good reason not to charge him.  See Caster's post for more.

*The trial court will likely say, "While the government's litigation strategy was perhaps less than wholly admirable, the statute of limitations for the underlying offense had not expired.  Therefore, dismissal under a pre-indictment delay theory is unwarranted."  (Yes, it makes no sense that the modern approach is to tie a pre-indictment-analysis with the statute of limitations, since a stutute of limitations is a creation of postive law; where as pre-indictment delay is grounded in the Due Process Clause.  But them's the breaks.)

Crawford v. Washington in the Eleventh Circuit

Today the Eleventh Circuit handed down an interesting opinion that addressed two Crawford v. Washington issues.  Namely:

(1) whether, under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), a warrant of deportation is testimonial evidence subject to confrontation at trial;
(2) whether, under Crawford, a defendant has a right to confrontation at sentencing.

U.S. v. Cantellano (here).  The panel held that a warrant of deportation is not testimonial:

We are persuaded that a warrant of deportation does not implicate adversarial concerns in the same way or to the same degree as testimonial evidence. A warrant of deportation is recorded routinely and not in preparation for criminal trial. It records facts about where, when, and how a deportee left the country. Because a warrant of deportation does not raise the concerns regarding testimonial evidence stated in Crawford, we conclude that a warrant of deportation non-testimonial and therefore is not subject to confrontation.

Slip op. at 7.  I know nothing about warrants of deportation.  Immigration guys and gals: Does the panel's opinion here make sense? 

Next, the panel holds that a defendant does not have a right to confront his accusers at sentencing, even though the accusations made at sentencing can literally cause the defendant to serve years more in prison.  The panel noted that "the right to confrontation is a trial right," id. at 9, and thus (tautologically), "The right to confrontation is not a sentencing right."  Id. at 10.

Reading the panel's "analysis" reminds me of one of the late Judge Richard S. Arnold's guidelines for opinion writing (paraphrased): "The opinion must be based on reason, not authority.  Strings cites are therefore not preferred."  [UPDATE: I have more on Judge Arnold's methods in this post.]  Read pages 9 and 10 of the slip op., and you'll see why Judge Arnold's death still saddens me.  The panel glosses over what is a very interesting and complicated issue, and opts for string cites rather than persuasive reasoning.

Important Rape Shield Case

Today the Ninth Circuit issued an important rape shield case:

Defendant-Appellant Jeff Fowler was convicted of annoying or molesting Charla Lara in violation of California Penal Code § 647.6 following a jury trial in which he was precluded from cross-examining Lara regarding two prior incidents in which she alleged that other men had molested her. We conclude that the proffered cross-examination sufficiently bore upon Lara’s reliability or credibility such that the jury might reasonably have questioned it and, thus, that the crossexamination implicated Fowler’s Sixth Amendment right to confrontation.

Fowler v. Sacramento County (CA9 8.31.05)

Is Batson Gay?

Does Batson v. Kentucky prohibit discrimination against homosexuals?

Although the California Supreme Court has held sexual orientation should be a protected class for jury selection purposes, see People v. Garcia, 92 Cal. Rptr. 2d 339, 347-48 (2000), and the Ninth Circuit has assumed, without deciding, sexual orientation qualifies as a Batson classification, Johnson v. Campbell, 92 F.3d 951, 953 (9th Cir. 1996), neither the United States Supreme Court nor this circuit has so held.

While we seriously doubt Batson and its progeny extend federal constitutional protection to a venire panel member’s sexual orientation, our review of the trial record persuades us that even if Ehrmann made a prima facie case of purposeful discrimination, his Batson objection fails because the government offered legitimate, nondiscriminatory reasons for striking the panel member. The prosecutor told the district court he questioned the suitability of this panel member even before learning of the panel member’s sexual orientation. The prosecutor was concerned about the panel member’s liberal education and background, his livelihood as a musician, and his being a potential loner. Ehrmann offered no evidence to show the government’s proffered reasons were pretextual. Accordingly, we find no clear error in the district court’s denial of Ehrmann’s Batson challenge.

U.S. v. Ehrmann (CA8 8.32.05)

Big Batson Case

My quick reading reveals: 1) statistical evidence of discrimination can be shown even when a small number of preemptory challenges are involved; 2) evidence of hostility to all protected classes should be aggregated for Batson analysis; 3) it's not relevant whether defense counsel violated Batson when determing whether prosecution violated Batson (re: the prosecutor cannot make a good for the gander argument).  U.S. v. Stephens (CA7 8.29.05) (the good stuff starts on page 16).

Dual Sovereignty Decision (Potential Blockbuster)

This just in from the Connecticut Law Tribune:

On June 21, the government lost its interlocutory appeal of Squatrito's ruling. "We hold that the statements obtained in violation of Mills's right to counsel as to the state proceedings must also be suppressed in the federal proceedings because the two proceedings were for the 'same offense,' each requiring proof of identical essential elements," Judge Barrington D. Parker wrote for a unanimous three-judge panel.

Rejecting the government's position that the gun charges were not the same offense for purposes of the Sixth Amendment, because they were prosecuted by separate sovereigns, the 2nd Circuit weighed in on an issue that has split the circuits and may be headed to the U.S. Supreme Court.

In the 1991 U.S. Supreme Court case of Texas v. Cobb, the high court ruled that that the Sixth Amendment right to counsel extends to all uncharged crimes that are the "same offense" as the charged crime. Cobb looked to case law on double jeopardy to define what constitutes identity of offenses. But the decision didn't address whether an uncharged crime by a separate sovereign is nevertheless the "same offense" as the charged crime.

Here's the full article (free registration required).  When I get some time, I'm going to see if the case is the blockbuster the author characterizes it to be.  Here's the case: U.S. v. Mills (CA2).

UPDATE: Yes, the case is indeed as represented in the article.  My quick thought is this: Given the extensive collusion between state and federal prosecutors, e.g., Project Safe Neighborhoods and Project Exhile, the government will petition for cert. (it's a no-brainer that they'll ask for rehearing en banc, so they'd have to be denied that first).  Assuming the government does file a cert. petition, it's likely cert. will be granted - given that there's a circuit split, and given that the government lost.

Rather than summarizing the opinion, let me refer you to the article.

Blakely Not Retroactive

So a unanimous three-judge panel of the Ninth Circuit held:

We must decide in this matter the novel question whether a Washington state prisoner may challenge the validity of his sentence retroactively on the ground that the trial court based its sentencing decision on facts that were not found to be true by a jury in violation of the constitutional principle subsequently announced by the United States Supreme Court in Blakely v. Washington, 124 S.Ct. 2531 (2004). We conclude that Blakely does not apply retroactively to convictions that became final prior to its publication. We also hold that the petitioner has failed to demonstrate that he was ineffectively represented by his trial counsel.

Schart v. Payne, No. 02-36164 (9th Cir. July 8, 2005).

Crawford Applies Retroactively

Despite the appeal of Judge Noonan’s reasoning, application of the Supreme Court’s guidance in Teague leads to the conclusion that Crawford announces a “new rule.” Because the Crawford rule is both a “watershed rule” and one “without which the likelihood of an accurate conviction is seriously diminished,” Summerlin, 124 S. Ct. at 2523, the rule is retroactive.

Bockting v. Bayer, No. 02-15866, slip op. at 5883 (9th Cir. Jun 1, 2005).

UPDATE: I looked through my archives and couldn't find a mention of this opinion, which was originally issued on Feb. 22, 2005.  "How could I have missed this one," I asked myself.  "Oh, I was taking the Bar."  Heh.

Amusing Fourth Amendment Case

Darrell Quaempts’ trailer home was so small that he could open the front door while lying in his bed. His doing so on one unfortunate occasion, in response to the knock of Yakima Nation police officers, resulted in his warrantless arrest for sexual assault.
***
The government contends on appeal that when Quaempts opened the door to the officers, he waived any expectation of privacy in his home. It relies on our majority opinion in United States v. Vaneaton, 49 F.3d 1423 (9th Cir. 1995), holding that an individual who opens the door to police officers, and stands on the threshold of his home, may be arrested without a warrant to enter the home, because the threshold of the home is a public place. Quaempts was not standing in the doorway of his home, however, he was in his bed. By reaching over and opening the door he did not waive the expectation of privacy expressly guaranteed by the Fourth Amendment to all persons to be secure in their houses. We therefore affirm the district court’s [suppression] order.

United States v. Quaempts, No. 03-30471, slip op. at 3, (9th Cir. May 31, 2005).