37. Provided he follows a department’s standard inventory procedures and doesn’t make up rules as he goes along or use the inventory as a pretext for an investigation. Colorado v. Bertine, 479 U.S. 367 (1987).
38. Colorado v. Bertine, 479 U.S. 367 (1987). See also South Dakota v. Opperman, 428 U.S. 364 (1976), which authorized the use of evidence seized from the glove compartment, as opposed to containers, during an inventory search, and New York v. Belton, 453 U.S. 454 (1981), which authorized a warrantless search of a zipped jacket pocket on a seat of a car whose occupants were being arrested for marijuana possession. “[W]e hold that, when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile. It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment.”
39. Florida v. Wells, 495 U.S. 1 (1990).
40. Knowles v. Iowa, 525 U.S. 113 (1998), with the opinion by Rehnquist.
41. Atwater v. Lago Vista, 121 S. Ct. 1536 (2001). The decision was 5–4, with Souter, Rehnquist, Scalia, Kennedy, and Thomas in an unusual majority coalition, and Sandra Day O’Connor, Stevens, Ginsburg, and Stephen G. Breyer in dissent. Details of the circumstances of the arrest come from the majority and minority opinions, and from ABA Journal, June 2001, 87 A.B.A.J. 38. See also National Review, May 3, 2001, where Robert A. George wrote, “Can an America whose citizens have to fear arbitrary incarceration ever truly be ‘safe’? In short, how safe can we be when our liberty most assuredly isn’t?”
42. Virginia v. Moore, 06-1082 (2008). The ruling overturned the opinion by the Virginia Supreme Court, excluding the evidence.
43. Arizona v. Gant, 07-542 (2009). The lineup of the justices was unusual, mixing the typical conservative-liberal divide. Citing Chimel, which permitted such searches in an area “within the arrestee’s immediate control,” the majority opinion was written by Stevens and joined by Scalia, Thomas, Souter, and Ginsberg. Breyer, Alito, Roberts, and Kennedy dissented, arguing that the Court had overruled a simple guideline permitting police to search a vehicle incident to a driver’s arrest, as set forth in New York v. Belton, 453 U.S. 454 (1981). In that case, a policeman who had pulled over a car for speeding smelled marijuana, saw a marijuana wrapping, and searched the passenger compartment, where he found the drug in a jacket. Four men in the car were arrested. The Court held that the interior of the car met Chimel’s test of being in the arrestees’ immediate area, and, striving to establish an unequivocal rule, declared, “We hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” In Gant, each group of justices charged the other with misinterpreting precedent, a testimony to the confused state of the law on automobile searches; the majority said that Belton had not addressed the authority to search once a scene was secure; the minority said that the Court was now overturning the Belton rule.
44. Schneckloth v. Bustamonte, 412 U.S. 218 (1973). In dissent, Justice Thurgood Marshall cited a letter from FBI Director J. Edgar Hoover requiring his agents to inform people of their right to refuse to be searched. The policy remains in force, according to the FBI’s legal counsel. E-mail from Angela D. Bell, Nov. 30, 2005. In practice, however, it is not always observed, according to subjects of searches. In subsequent cases, the Court has considered whether or not such advice was given in determining if a person’s consent was voluntary. See Florida v. Royer, 460 U.S. 491 (1983).
45. Florida v. Bostick, 501 U.S. 429 (1991). The Court divided 6–3 with Marshall, Blackmun, and Stevens in the minority.
46. Florida v. Royer, 460 U.S. 491 (1983), decided 5–4 with White writing the majority opinion. Detectives who thought the passenger fit the profile of a drug courier asked for his ticket and license, discovered that the names didn’t match, kept the documents, and led him to a police room. Without either placing him under arrest (which would have required a Miranda warning) or telling him that he was free to leave, the officers informed him that he was suspected of transporting drugs. They retrieved his checked bags from the airline and asked for permission to search. He did not respond but opened one suitcase lock with a key. He said he did not know the combination to the other’s lock but did not object to their forcing it open. The Court found the confinement unlawful (because, as one of the officers testified, there was no probable cause for an arrest until after the marijuana was discovered in the bags), and that the detention exeeded the bounds of a Terry investigative stop. The illegal confinement meant that the subsequent consent—in the absence of a search warrant—was not voluntary, and so tainted the search. See also United States v. Mendenhall, 446 U.S. 544, 555 (1980), which upheld such a stop, 5–4, because the defendant’s ticket and identification were not held, so she was free to leave, and she was told she could decline a search.
47. Dina Temple-Raston, “Lies as Plain as the Nose on Your Face?” Morning Edition, NPR, Oct. 31, 2007. The Homeland Security project Future Attribute Screening Technology (FAST) aims at sensing heart rate, respiration, eye movement, skin temperature, voice quality, and body language. Dept. of Homeland Security, “Privacy Impact Assessment for the Future Attribute Screening Technology,” Dec. 15, 2008, at http://www.dhs.gov/xlibrary/assets/privacy/privacy_pia_st_fast
.pdf.
48. United States v. (Robin) Nurse, 286 U.S. App. D.C. 303, 916 F.2d 20 (D.C. Cir. 1990).
CHAPTER 3: DEFENDING THE SYSTEM
1. United States v. Tyshaun Bullock, CR. 02-010 (D. D.C. 2002). Conflicting accounts from the transcript of the hearing on a motion to suppress physical evidence, July 9–10, 2001, before U.S. District Court Judge Thomas Penfield Jackson. Judge’s ruling on the suppression motion, Aug. 20, 2002.
2. The concept was applied to the Fourth Amendment in Wong Sun v. United States, 371 U.S. 471 (1963). The Court found that if the unlawful police action is exploited to produce evidence, the evidence must be suppressed. If the relationship between the unconstitutional action and the evidence is attenuated, however, the evidence is admissible.
3. Whren v. United States, 517 U.S. 806 (1996). Narcotics officers passed a truck stopped for an unusually long time at a stop sign in a high-drug-use area of Washington, D.C. When they did a U-turn to drive back toward the truck, it turned suddenly without signaling and took off at an “unreasonable” speed. The officers, suspecting drug activity, pulled the vehicle over for the minor traffic infraction and observed bags of crack inside. The Court ruled the stop legitimate, even for an ulterior purpose, and the narcotics evidence admissible.
4. Lewis v. United States, 408 A.2d 303, 306 (D.C. Cir. 1979).
5. Michael Janofsky, New York Times, Apr. 10, 1997, p. A14; Stephen Braun, Chicago Sun-Times, Oct. 23, 1995, p. 18; Shielded from Justice: Police Brutality and Accountability in the United States (New York: Human Rights Watch, 1998), http://hrw.org/english/docs/1998/07/07/usdom1224.htm.
6. Lou Cannon, “One Bad Cop,” New York Times Magazine, Oct. 1, 2000, Section 6, p. 32.
7. Patrick McGreevy, Los Angeles Times, July 12, 2006, p. A1. In addition, the City Council approved a payment of $20.5 million to settle a jury award to four police officers who sued for false arrest and malicious prosecution after a drug-dealing cop accused them of framing a gang member on a gun charge. Maeve Reston, Los Angeles Times, Jan. 29, 2009, p. B3.
8. Rampart Reconsidered: The Search for Real Reform Seven Years Later (Los Angeles: Blue Ribbon Rampart Review Panel, 2006), Executive Summary, p. 9.
9. Ibid.
10. David Simon, “In Baltimore, No One Left to Press the Police,” Washington Post, Outlook, March 1, 2009, p. B1. Simon dug out the name: Traci McKissick, who shot Joseph Alfonso Forrest in a struggle for her gun during a domestic dispute. She had lost her gun previously, in 2005; when she pulled it, a suspect grabbed it and threw it out a car window.
/> 11. Defenders refused to take new cases in various jurisdictions in Rhode Island, Connecticut, Maryland, Florida, Tennessee, Kentucky, Ohio, Minnesota, Arizona, Montana, and Washington State. David J. Carroll, research director, National Legal Aid & Defender Association, interview with author, Jan. 27, 2009.
12. Robbie Brown, “Long Held in Capital Case, Man Sues to Get a Lawyer,” New York Times, Jan. 2, 2009, p. A13.
13. Erik Eckholm, “Citing Workload, Public Lawyers Reject New Cases,” New York Times, Nov. 8, 2008. The states where public defenders refused to take more cases were Florida, Missouri, Kentucky, Tennessee, Minnesota, Maryland, and Arizona. See also “Resolution on Caseloads and Workloads,” American Council of Chief Defenders, Aug. 24, 2007.
14. Pascal F. Calogero, Jr., chief justice, Supreme Court of Louisiana, State of the Judiciary Address to legislature, May 3, 2005.
15. Ken Armstrong, “Grant County Settles Defense Lawsuit,” Seattle Times, Nov. 8, 2005. Settlement Agreement in Best v. Grant County, 04-2-00189-0, in Superior Court, State of Washington for Kittitas County, Oct. 31, 2005, at http://www.defender.org/files/archive/GrantCountyLitigation
SettlementAgreement.pdf. The caseload is calculated as 150 “case equivalents,” with more serious prosecutions, such as murder, counting as two cases, and less serious, such as probation violation, as one-third of a case.
16. Indigent defendants in D.C. Superior Court are represented by the Public Defenders Service, a team of lawyers separate from the Federal Public Defenders, who work only in federal courts. The U.S. Attorney’s office in D.C. is the only one in the country to handle “arrest-generated” cases—the products of street arrests by local police rather than investigations and grand jury indictments. In general, the office refers drug cases to federal court if they involve at least one hundred grams of heroin or five hundred grams of powder cocaine, which carry a five-year mandatory minimum sentence, or fifty grams of crack, which has a ten-year minimum. If the drugs don’t “make weight,” in the prosecutors’ parlance, the defendant may still be charged in federal court if he’s a major narcotics or gang figure, or if the police want to press him to cooperate in a wider investigation.
17. Giglio v. United States, 405 U.S. 150 (1972).
18. Upon this finding, Cushenberry stopped the jury trial and granted the defendant’s motion for a judgment of acquittal. United States v. Tyrone Phillips, F-3210-97, transcript, pp. 166, 172, 173.
19. United States v. Gerald F. Whitmore, 03-3022 (2004). From the appellant’s brief and reply brief, and the opinion of the D.C. Court of Appeals, March 5, 2004. After the Cushenberry ruling, the U.S. Attorney’s office investigated and declined to charge Soto with perjury.
20. United States v. Vernon Wilson, CR-04-28, before U.S. district judge Emmet G. Sullivan. The stop was based on a dubious claim by another officer, looking from an observation post through five chain-link fences, that he could see Wilson, after dark, hand something to a man and take something green from him before getting into his car. The judge found this insufficient to establish probable cause.
21. “Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.” Rules of Federal Evidence, 2006, ed., Article IV, Rule 406.
22. “Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’ character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.” Rules of Federal Evidence, 2006, ed., Article VI, Rule 608 (b). To avoid mini-trials of earlier cases, this provision would prevent the defense from introducing as evidence of falsehood a judge’s previous finding that an officer’s account was not credible, but would allow the officer to be cross-examined about that prior case. “A cross-examiner may inquire into specific incidents of conduct, but does so at the peril of not being able to rebut the witness’s denials.” United States v. Bynum, 3F.3d 769 (4th Cir. 1993).
23. The conviction or the release from confinement, whichever is later, must be within the last ten years unless the judge finds an older crime more probative than prejudicial. Rules of Federal Evidence, 2006, ed., Article VI, Rule 609.
24. Character evidence, however, can be presented by the accused about himself and an alleged victim, and can be rebutted by the prosecution. Rules of Federal Evidence, 2006, ed., Article IV, Rule 404 (a). Otherwise, “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident …” Article 404(b).
25. Hatch Act, 5 U.S.C. § 7323 (a) (1).
26. Each jurisdiction permits a number of peremptory challenges. In federal courts, the defense gets ten and the prosecution six in cases carrying more than a year in prison, and each side is given twenty in capital cases and three for crimes punishable by one year or less, plus additional challenges if alternate jurors are seated. Federal Rules of Criminal Procedure, Rule 24: Trial Jurors, (b) Peremptory Challenges.
27. Batson v. Kentucky, 476 U.S. 79 (1986).
28. New York Times, Apr. 4, 1997, p. A24.
29. From the Anglo-Norman, “to speak the truth.” The American Heritage Dictionary of the English Language, Third Ed. (Boston: Houghton Mifflin, 1992), p. 2001.
30. Crimes and Criminal Procedure, 18 U.S.C. § 922 (g) (1). In addition, the federal ban on gun possession applies to nine categories of people, including drug addicts, fugitives, those dishonorably discharged from the military, anyone under a domestic restraining order or with a misdemeanor domestic-violence conviction, and people in the United States unlawfully or on nonimmigrant visas. The prohibition concerns firearms transported in interstate commerce, which applies to every gun in the District of Columbia, since none is manufactured there.
31. Defendant’s motion in limine to compel discovery and permit cross-examination, United States v. Franklin A. Dorn, Crim. No. 05-13, Feb. 2006, pp. 7–8.
32. Government’s omnibus opposition to defendant’s motion in limine to compel discovery and to permit cross-examination, United States v. Franklin A. Dorn, Crim. No. 05-13, Feb. 2006, p. 11.
33. Memorandum opinion, United States v. Franklin A. Dorn, Crim. No. 05-13 (D. D.C. 2006).
34. United States v. Santana, 427 U.S. 38 (1976).
35. Brigham City, Utah v. Stuart, 05-502 (2006).
CHAPTER 4: WITH WARRANTS AND WITHOUT
1. Michigan v. Summers, 452 U.S. 692 (1981). Whether someone so detained is in custody for Miranda purposes is another question. When not physically restrained, some courts have held, the person may not be in custody and therefore may not need to be warned before questioned. See appellants’ brief in United States v. James Isaac Gaston, 02-3062 and 02-3063 (D.C. Cir. 2003).
2. Under federal and state laws, assets may be forfeited even before a court has adjudicated the case if there is probable cause to believe either that they are the fruits of a crime, such as drug money, or have facilitated a crime, such as a car to transport narcotics or a house where drugs are manufactured or sold. If criminal charges are brought and the defendant is acquitted, the assets are returned. If no criminal case is filed, the owner must go through a civil action in court to get them back.
3. 18 U.S.C. § 922(g). Other categories include fugitives, drug users, those dishonorably discharged from the military, people
convicted of misdemeanors involving domestic violence, those deemed dangerous under court restraining order for stalking or domestic violence, and anyone who has renounced his U.S. citizenship.
4. James Otis, in oral argument representing Boston merchants against British writs of assistance, Boston, 1761, http://www.u-s-history.com/pages/h1204.html. Paxton’s Case, Quincy’s Mass. Rpts. 51 (1761). The statement “A man’s house is his castle” is first attributed to Sir Edward Coke in the seventeenth century. John Bartlett, Bartlett’s Familiar Quotations (New York: Little, Brown, 1980), p. 172.
5. United States v. James Isaac Gaston, 02-3062 and 02-3063, (D.C. Cir. 2003), appellants’ brief to U.S. Court of Appeals for the District of Columbia, p. 13. The officer was an Alcohol, Tobacco, and Firearms agent of the Treasury Department, Frank Oliver, Jr.
6. The presence of evidence must be “so closely related to the time of the issuance of the warrant as to justify a finding of probable cause at that time.” Sgro v. United States, 287 U.S. 206 (1932).
7. Illinois v. Gates, 462 U.S. 213 (1983). The dissenters were Brennan, Marshall, and Stevens.
8. Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States, 393 U.S. 410 (1969).
9. Joe Hallinan, “Misfires in War on Drugs,” Plain Dealer, Sept. 26, 1993, p. 17A.
10. Sara Rimer, “Minister Who Sought Peace Dies in a Botched Drug Raid,” New York Times, March 28, 1994, p. A1. James Bovard, “No-Knock Entries by Police Take Their Toll on Innocent,” Christian Science Monitor, May 24, 1994, p. 18.
11. John Dillin, “It Was the Perfect Drug Raid … but the Wrong House,” Christian Science Monitor, Oct. 1, 1993, p. 6. See also Hallinan, Plain Dealer, and Bob Ross, “War on Drugs Takes Toll on Innocent,” USA Today, Jan. 11, 1993, p. 1A.
12. Michael D. Bradbury, “Report on the Death of Donald Scott,” Office of the District Attorney, County of Ventura, March 30, 1993; Kevin G. De Noce, Deputy District Attorney, “Motive Involved in the Trail’s End Ranch Search Warrant,” Office of the District Attorney, County of Ventura, March 31, 1993; John Dillin, “Citizens Caught in the Cross-Fire,” Christian Science Monitor, Oct. 1, 1993, p. 6; Dillin, “When Federal Drug Laws Create Havoc for Citizens,” Christian Science Monitor, Sept. 28, 1993, p. 10; Debra J. Saunders, “Big Brother Gets Grabby,” San Francisco Chronicle, June 25, 1993, p. A24; Haya El Nasser and Jonathan T. Lovitt, “Raid, Slain Recluse: Stuff of Mystery,” USA Today, Oct. 19, 1992, p. 3A.
The Rights of the People Page 45