Entries categorized "Constitutional Criminal Procedure"

Post-Arrest, Pre-Miranda Silence

In United States v. Frazier, No. 04-1005 (8th Cir., May 31, 2005), a unanimous three-judge panel held that that the prosecution may use a defendant's post-arrest, pre-Miranda silence as part of its case-in-chief.

The following is an example of the line of questioning at issue:

Q [Prosecutor]: Did you talk with Mr. Frazier . . . or tell [him] why [he was] being arrested?
A [Officer]: I just told [him] that [he was] under arrest for suspicion of narcotics.
Q: What was Mr. Frazier's reaction when you . . . placed him into custody?
A: There really wasn't a reaction.
Q: Was he angry?
A: No, sir.
Q: Was he surprised?
A: No, sir.
Q: Did he become combative?
A: No, sir.
Q: Did he say anything to you?
A: No, sir.
Q: Did he do anything when you put the handcuffs on him?
A: No, sir.

At closing, the government noted Frazier's conduct after arrest as one factor that could be indicative of guilt. "If a person has a friend who betrays them, what's the innocent person going to do when they discover they're going to jail. Everybody else is back in Chicago. Are they going to become combative, angry, emotional, demanding? There was none of them from . . . Mr. Frazier."

I originally blogged about this same case, which was originally issued on Jan. 7th, here.

UPDATE: Of course, if the defendant had become, "combative, angry, emotional, demanding" he would have been charged with resisting arrest.

California Appellate Court Hangs Up on Leon

We do not agree with the People’s contention wiretap evidence gathered in violation of Title III or California’s wiretap law can be admitted under Leon’s “good faith” exception to the exclusionary rule applicable to constitutional violations in search warrant procedures.

The first and most obvious reason why Leon does not apply to unlawful wiretap procedures is because Leon “is a judicially crafted exception to an exclusionary rule that is a judicial creation.” In contrast suppression under Title III “is required by a statutory mandate.” The United States Supreme Court recognized this distinction in United States v. Giordano. There the court held a wiretap not pre-approved by the proper Justice Department official violated Title III and the resulting evidence was properly excluded. The court rejected the Government’s contention that even if the approval requirement was not satisfied the evidence gathered should not have been suppressed. The court explained the suppression issue “does not turn on the judicially fashioned exclusionary rule aimed at deterring violations of Fourth Amendment rights, but upon the provisions of Title III; and in our view the Court of Appeals correctly suppressed the challenged wiretap evidence.” If suppression of wiretap evidence “does not turn on the judicially fashioned exclusionary rule” we fail to see how it can turn on a judicially fashioned exception to the judicially fashioned exclusionary rule.

Even if we were writing on a clean slate there are other persuasive reasons for not applying Leon to wiretap procedures.

People v. Jackson no. B125364 (Cal.Ct.App. (2d Dist.) May 9, 2005).

Single-Purpose Container Doctrine Applied

People report gun shots.  Cops investigate.  They see three people walking with gun cases.  Cops search the cases.  Applying the single purpose container doctrine, a unanimous three-judge panel holds that the search was unconstitutional.  United States v. Guest, No. 04-30208 (9th Cir. Apr. 26, 2005).  The case is here; a photograph of the gun case is here.  Here's the money quote:

Applying these principles underlying the single-purpose container exception here, we hold that the district court erred in denying Gust’s motion to suppress. The government argues that Huffhines, our most recent opinion addressing the single-purpose container exception, stands for the proposition that a person cannot have a legitimate expectation of privacy in containers that experienced officers can identify as gun cases. However, as explained above, we rejected that argument in [another case] where we made clear that courts should assess the nature of a container primarily with reference to general social norms rather than solely . . . by the experience and expertise of law enforcement officers.


Thus, the government cannot rely on the fact that Officer Hulsizer and Deputy Johnson were familiar with Gust’s gun case because they had used similar cases during their work as police officers to justify the warrantless search that occurred here.

Slip op. at 12-13 (citations and footnotes omitted).

Federal Wiretap Statute and Suppression Motions

Judge Kozinski offers an interesting opinion today.  It ledes:

The federal wiretapping statute requires court orders approving wiretaps to “specify . . . the identity . . . of the [Department of Justice official] authorizing the [wiretap] application.” We decide whether suppression is required when wiretap orders and corresponding applications say nothing about who authorized them.

United States v. Callum, No. 02-10210, Slip op. at 3 (9th Cir. Apr. 20, 2005).  The answer is, no.

Double Jeopardy When the Feds and States Act-in-Concert

I've always thought that the dual sovereignty exception to the double jeopardy rule should not apply when federal and state prosecutors cherry pick the most pro-prosecution friendly jurisdiction.  Because, in acting-in-concert, they show that the "separate" governments are not trying to vindicate separate interests, but instead, have the singular interest of obtaining a conviction qua a conviction against a particular defendant. Just like a co-conspirator's acts apply to all other conspirators, so too should one prosecutor's loss be imputer to the other "sovereign's" prosecutors.

Thus, this opinion (United States v. Zone) was of immediate interest. Here is its lede:

Cortrayer Zone appeals from the district court’s order denying his motion to dismiss his federal criminal indictment. He argues that the instant federal prosecution violates his rights under the Double Jeopardy Clause because federal prosecutors orchestrated a previous state plea agreement in order to obtain a sworn admission for use in the federal proceedings. Because Zone has produced no evidence that “the state in bringing its prosecution was merely a tool of the federal authorities,” United States v. Figueroa-Soto, 938 F.2d 1015, 1019 (9th Cir. 1991) (quoting Bartkus v. Illinois, 359 U.S. 121, 123 (1959)) (internal quotation marks omitted), we affirm the district court’s denial of his motion to dismiss and deny his request to remand for an evidentiary hearing and further discovery.

Even if federal and state prosecutors act-in-concert when filing and prosecuting criminal charges, there is no double jeopardy violation.

Zone speculates that federal officials might have cajoled or prodded state prosecutors into concluding a plea bargain with Zone in order to facilitate a conviction in his subsequent federal trial. Even if Zone could prove this hypothesis true through testimonial or documentary evidence [there wouldn't be a double jeopardy violation]. The Double Jeopardy Clause does not prevent federal prosecutors from encouraging their state counterparts to pursue plea bargains, nor does it prevent them from taking advantage of the evidentiary record developed in connection with a defendant’s previous state conviction....Instead, the Double Jeopardy Clause limits consecutive state and federal criminal proceedings only when federal prosecutors “so throughly dominate[ ] or manipulate[ ] the [state’s] prosecutorial machinery . . . that the latter retains little or no volition in its own proceedings.” United States v. Guzman, 85 F.3d 823, 827 (1st Cir. 1996);

Slip op. at *6.

Fifth Amendment and Erroneous 106 Rulings

In Paladino, the trial court properly allowed the government to admit Paladino's prior deposition testimony.  However, the government cropped the testimony so that it appeared that Paladino admitted to committing a crime.  The Seventh Circuit held that the trial court erred in admitting this misrepresented deposition testimony.  See post below

Paladino testified, though, because the misrepresented and misquoted deposition testimony sunk him.  Thus, Paladino had a classic Hobson's choice -- Let the misrepresented testimony go unchallenged, or take the stand. 

Was his Fifth Amendment protection against being compelled to testify violated?  No.  Wrote Judge Posner:

[T]he Supreme Court has held that there is no compulsion in such a case, since the defendant has the option of refusing to testify and instead, if he is convicted, of obtaining appellate correction of the erroneous evidentiary ruling and with it a new trial.  The specific evidentiary error in Luce was improper impeachment with a prior conviction, but the principle is the same: [In Luce the Court wrote] “to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify, for “claim of improper impeachment with a prior conviction” read “claim of violation of Rule 106.”

Paladino at *8 (citations omitted).  Ouch.  Judge Posner recognized

This rule puts the defendant to a hard tactical choice.  But  the alternative would be to give him two bites at the apple: testify, and try to win an acquittal; if that fails, appeal and get a new trial on the basis of the judge’s ruling.  The Supreme Court prefers the first of these unsatisfactory resolutions to the second, and we are bound.


UPDATE [3/28/2005]:  More Luce madness.  Today the Eighth Circuit wrote in United States v. Mooney:

Mooney also argues that the district court abused its discretion by denying his
motion in limine. Before trial he asked the court to rule that his 1986 state tax
conviction could not be used to impeach him if he were to testify. The court's denial
of the motion caused him not to testify he says, because he feared he would be
prejudiced by mention of his conviction in front of the jury. A trial court's
evidentiary rulings are generally reviewed for abuse of discretion, see, e.g., United
States v. King, 351 F.3d 859, 864 (8th Cir. 2003), but Mooney's issue is unreviewable
because he did not testify. See Luce v. United States, 469 U.S. 38, 43 (1984).

Sixth Amendment and Pro Hac Vice

In United States v. Gonzalez-Lopez, No. 03-3478, (8th Cir., Mar. 8, 2005) a unanimous two-judge panel* held, in an issue of first impression for the Eighth Circuit, that "the denial of a criminal defendant's Sixth Amendment right to be represented by the attorney he selected results in automatic reversal of the conviction."  Id. at *13.   In Gonzalez-Lopez, the court found that the trial court errored in denying California lawyer Joseph Low's motion to appear pro hac vice.  The court did not apply Wheat's abuse of discretion standard of review because "the district court's decision to deny Low admission pro hac vice was based on conduct occurring outside the presence of the judge," and "the record reflects the district court's decision to deny Low's applications for admission pro hac vice turned on the district court's interpretation of the law."  Id. at *6-7.

*It was a two-judge panel.  Judge Richard S. Arnold was assigned to the case, but tragically died before hearing it.