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A Whole New Rule For Search – The Old Rule

Ken Lammers — Thu, 26 Jan 2012 20:16:00 +0000

The BIG FUSS this week has been about United States v. Jones, JAN12, USSC 10-1259. I read about it first on my phone during a break in a jury trial I was prosecuting on Monday. The headline said pretty much what I've seen others say: The Supreme Court Requires Search Warrant for GPS Tracking of Vehicles.

Of course, this headline isn't exactly right (they never are). After my week slowed down a little, I finally got to read the Scalia opinion and I must say that I don't have a lot of heartburn with it.

Facts: A search warrant was gotten in the District of Columbia in order to put a GPS tracker on a car. The warrant ran out without the GPS tracker being placed on the car. Government agents, after the search warrant had lapsed went into Maryland and placed the GPS tracker on the car. The evidence gained from the tracker was used in the Defendant's trial. Government's Argument: There was no search because the defendant had no reasonable expectation of privacy as he drove his car on the street.

New Rule: There is now a two part test to determine whether an act by the government is a search (either makes it a search):

1: Is the act a trespass on the property of the suspect?

1a: Exception: If the act (i.e. attachment of a gps tracker) is done before the item becomes the property of the suspect then it is not a search even after it has become the property of the suspect.

Note: Property in this case does not just mean land; it also means personal property such as cars, purses, briefcases, etc.

2. Does the act violate the suspect's reasonable expectation of privacy?

Note: With the trespass rationale coming back to the fore, the role of the reasonable expectation of privacy might become narrower. In most cases the opening of a car trunk or entry into a building is a trespass. Therefore, the reasonable expectation of privacy would apply to something else. The thing which pops into my mind is "emanations." Emanations are those things which escape from a persons property through the air (energy, heat, smell, sound) and do not require the police to actually touch the suspect's property. Reasonable expectation of privacy requiring a search warrant for emanations tracks with the cases such as Katz (sound that emanated out of a phone booth required a search warrant) and Kyllo (energy emanating from a house required a search warrant).

Exceptions: 2a: Those emanations which are readily noticeable by a person may not require a search warrant. For instance an officer that smells marijuana, or sees stolen property in a car or hears someone in a house yelling "Rape!" would not have to go get a search warrant.

2b: Emanations (scents) which are alerted to by a dog do not require a search warrant per Cabelles.

Note: Any information which can be retrieved about a person without trespass on his real or personal property should go through a reasonable expectation of privacy analysis. Emanations are just the most obvious. Others might be mail or billing or . . .

WHAT THIS CASE DID NOT DO: The Court specifically declined to address whether it was reasonable for government agents to place the gps tracker without a search warrant because the government did not argue this below. Thus there is no actual mandate for a search warrant to attach a gps tracker. However, common sense tells us that reality on the ground is that in the majority of cases a warrant should be obtained. If we ever get to the point that every officer is carrying trackers on his belt and can throw one on the back of a car escaping a bank robbery then it wouldn't be required, but short of that it is hard to picture a scenario in which officers don't preplan the use of a gps tracker so that a search warrant should be obtained.

Posted Originally at CrimLaw - http://crimlaw.blogspot.com

Waterfall Instruction

Ken Lammers — Mon, 23 Jan 2012 08:31:00 +0000

In Virginia there's a charge of Grand Larceny with intent to Sell or Distribute (we ain't having any of that Robin Hood stuff here). It's the first part of § 18.2-108.01:A. Any person who commits larceny of property with a value of $200 or more w...

Revisiting the Big 4

Ken Lammers — Wed, 11 Jan 2012 05:58:00 +0000

As you'll all recall, a couple years back I staked my claim to the Big 4 reasons that people can't possibly go to jail. By the way, several of you defense attorneys are behind on your payments for the use of my copyrighted/trademarked reasons. I'm sure it's just an oversight.

Anyway, I was talking to another attorney a few days back and he had, independently, developed a chart in which he measured the the probability that a defendant would develop a relationship with God or find a well paying job against the probability that he was going to jail.

Centre: The Best Among Us

Ken Lammers — Thu, 05 Jan 2012 22:09:00 +0000

Forbes ranks colleges and has become enamored with Kentucky. Furthermore, it has spotted the gems of Kentucky Education: Berea & Centre. Berea because it gives those who have little other opportunity the tools to better themselves. Centre because . . . well, because it's Centre.
"Centre is one of the finest schools in the U.S.

Another State’s Fix of the Law of Stealing

Ken Lammers — Wed, 04 Jan 2012 09:06:00 +0000

Here in Virginia we have larceny, larceny by trick, embezzlement, fraud, concealment (shoplifting), larceny of farm animals, larceny of milk crates, bad checks, &cetera. It's a pain. That's why I love this section of Texas' statute:
Sec. 31.02. CONSOLIDATION OF THEFT OFFENSES. Theft as defined in Section 31.03 constitutes a single offense superseding the separate offenses previously known as theft, theft by false pretext, conversion by a bailee, theft from the person, shoplifting, acquisition of property by threat, swindling, swindling by worthless check, embezzlement, extortion, receiving or concealing embezzled property, and receiving or concealing stolen property.I get choked up just looking at it.

How do I get the Virginia General Assembly to adopt that statute? Please?

Posted Originally at CrimLaw - http://crimlaw.blogspot.com

Model Penal Code: Error in the Intent

Ken Lammers — Tue, 03 Jan 2012 08:36:00 +0000

Having said yesterday that I wish we would cherry pick the intent section from the Model Penal Code (MPC), let me not leave you with the impression that it is perfect. Specifically, there is a difficulty in that jurors have been shown to have trouble distinguishing between knowing acts and reckless acts. This is not terribly hard to understand.
(b) Knowingly.
A person acts knowingly with respect to a material element of an offense when:
(i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and
(ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.

(c) Recklessly.
A person acts recklessly with respect to a material element of an offense when he consciously disregards 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, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation.Under "knowingly", (b)(i) is pretty straight forward; if it is illegal for a felon to knowingly possess a firearm and a felon knows he is possessing a firearm he satisfies that portion of the "knowingly" intent.

However, "knowingly" under (b)(ii) is the big brother of "recklessly." In other words, they are variants of the same thing. In both, the defendant has committed an act which results in a forbidden result. However, in "knowingly" doing the act it results in a "practical certainty" of an illegal result while "recklessly" doing the act only results "a substantial and unjustifiable risk" that the illegal result will occur. These are different degrees of the same thing, but with the modern aversion to actually assigning differential meanings it's doubtful that anyone will say something like "knowingly means the defendant knew to a 99% certainty that the illegal result would occur while recklessly meant he knew there was a 75% probability that the illegal result would occur."

I can understand why this could be confusing to jurors. It's the same reason that all sorts of things are confusing to jurors: because we lawyers over complicate things. I'm not sure why we need the "knowingly" intent. It seems to me that one cannot do, or omit the doing of, something purposefully without knowledge of it. The "knowingly" intent is redundant.

But, you say, what if the defendant knows he is doing something, but does not have the purpose of doing the crime? After all, someone could take Felon's wife hostage and require him to take a pistol and hide it. As well, Suspect going to jail could have been arrested with drugs secreted on her body and have it found after she is in jail and strip searched. In the first case, I would argue that Felon does purposefully possess, but that he has a powerful duress defense. In the second case, Suspect is faced with two possibilities and makes a choice: admit possession and get another charge before arriving at the jail or taking a chance that the drugs won't be found when she gets to jail. Either option is a purposeful act or omission. I am hard pressed to think of any crime where mere knowledge without a purposeful act or omission constitutes a convictable crime.

Thus, I would alter the MPC's intent section so that only Purposeful, Reckless and Negligent intents would constitute crimes. I would also add some language to the "Purposefully" section which would make it clear that both acts and omissions constitute purposeful acts and that doing or failing to do something with a knowledge that it will cause an illegal result is a purposeful act.

Posted Originally at CrimLaw - http://crimlaw.blogspot.com

Model Penal Code: One Nugget

Ken Lammers — Mon, 02 Jan 2012 09:14:00 +0000

Back in the day, the good folks over at the American Legal Institute (ALI) decided that nobody was getting criminal law right. Although in other areas of the law the ALI had issued "Restatements", it wrote its own brand spanking new Model Penal Code (MPC). From the late 60's to the early 80's various States abandoned the common law and adopted large portions of the MPC.

Let ‘em Go: Early Release from Prison

Ken Lammers — Mon, 26 Dec 2011 15:24:00 +0000

Sentencing is where philosophy meets fiscality. The fiscal part is that which is impossible to get around. At least for the States, which cannot just print more money, there will always be scarce resources beyond which they cannot afford to lock more people up and throw away the key or to provide programs to reform those who have broken the law.

Two Schools of Thought
The philosophical realm is where the fighting takes place. There are basically two sects. The first views the criminal as someone who should be punished. This view tends to conceptualize the criminal as an individual actor who makes moral choices for which he must be made to suffer consequences. The second views the criminal as someone who should be fixed. This view tends to see criminals as members of a community which has let the criminal down (and thus led him to develop anti-social behavioral characteristics) and which will be damaged by the individual's punishment.

Of course, neither side is entirely correct, but the punishment view has had the most influence over the last thirty years or so. This is in large part because the citizenry understands and approves of the punishment model. Citizens tend to believe in punishment for criminal acts. They understand that a criminal is incapacitated and cannot commit crimes while in prison. They believe that when someone is significantly punished and his buddies/family/neighbors hear about it that it will lesson the probability that the buddies/family/neighbors will commit crime. They are dubious that coddling wrongdoers will cause them to see the error of their ways and seek a life beneficial to society. Politicians, beholden to their constituents, have voted in laws which reflect these views.

Nevertheless, the reform the troubled criminals theme has never gone away completely. This is because, at core, it is the more hopeful way of seeing the world. If only we did X and Y we would fix these men so that they would never break the law again. The problem is that, while it may reflect the better parts of our nature, it doesn't reflect reality. Still, for at least the last decade we have allowed our better natures to allow things like drug courts and DUI courts to come into being. Usually, these reform programs come about as a push for a criminal reform program cloaked under the claims of fiscal responsibility. If it costs $A to put Criminal in jail for a year, a year in drug court costs $B, and $A > $B, then it makes sense to put worthwhile cases in drug court.

However, the push for fiscal responsibility can only carry the rehabilitation movement so far. How far can be seen in the cases Professor Klingele discusses in "The Early Demise of Early Release." States have attempted, mostly for fiscal reasons, to adopt early release programs for inmates who are deemed at low risk to break the law if released. These have been rebuffed as "illegitimate changes in the underlying sentence." In other words, changing the sentence of a convict is a lie to the citizenry.

Nevertheless, Professor Klingele pushes forward with suggestions as to how early release programs can be brought into existence and strengthened. It is a difficult argument to make and Ms. Klingele's valiant attempts swim upstream against a strong current springing from the failure of indeterminate sentencing.

What Professor Klingele is Arguing Against
Indeterminate sentencing is the procedure of setting a maximum possible sentence, but not setting a specific sentence. The indeterminate sentencing system with which most people are familiar with is the parole system which held sway in the United States until late in the 20th century. The idea behind parole was a medical treatment model for inmates: with proper treatment they could be returned to society rehabilitated into proper members of society. Eventually, this model came to be seen as a failure and it was swept away in most States by "truth in sentencing" laws. TIS laws were put in place in the majority of States in the latter part of the 20th century. They changed the laws so that a defendant would serve the time he was sentenced to serve instead of whatever fraction of that time he would have done under the parole system. So, instead of getting a sentence of 5 years with the Department of Corrections deciding when to release the inmate at any time after he served 33% of his sentence, the defendant sentenced to 5 years would serve 5 years.

This came about because of a perception that rehabilitation efforts had been failures and that convicts were receiving appropriate punishments, but not being required to actually serve them. Parole embodies the hope that exemplary prisoners can be "fixed" and released to go forth and lead productive lives. However, the public viewed it more as a revolving door on the prison. In reality, the public's view was probably closer to reality. Departments of Correction were not going to be able distinguish between the thousands of offenders they dealt with and offenders got dumped back out on the street as soon as possible, unless they were particularly bad while in prison. This ended with TIS.

TIS was followed by Victims' Rights legislation. This was meant to counter the perception that courts were overly worried about the criminals at the expense of the victims. Victims were to be allowed access to courts and have their experience be taken into account. This type of legislation is clearly an indicator that the citizenry wanted an appropriate punishment model - not a rehabilitative model.

Interspersed with this has been a tendency of legislators to pass mandatory, non-suspendable punishments for certain offenses or multiple convictions of certain offenses. These have been applied to felons possessing firearms, the possession of firearms and drugs at the same time, driving under the influence of alcohol, and three strikes laws. Here is found the trifecta of purposes for incarceration: punishment, incapacitation, and a warning to others who might offend.

Why Early Release Has Not Worked
Professor Klingele cites three reasons for the failures of early release. The first is financial constraints which limit the money which can be spent reintegrating prisoners into society. The second is political impediments to early release. The third is the fact that the moral values of the citizenry are such that they believe a person sentenced to 5 years should serve 5 years. Personally, I agree with her on the second and third points. As to the first point, I think this is a failure of the criminal justice system generally and not particular to early release prisoners.

What to Look for in Future Early Release Programs
Professor Klingele next looks to what should be considered in future programs. First she wants honesty in assessing whether an inmate will re-offend. She wants violent and sexual offenders to be considered on the same plain as lesser offenders because it is clear that in some cases the inmate who has committed the worse crime is less likely to re-offend. Next she calls for clarity, reasoning that if participants in the legal system act tough on crime up front and then try to sneak inmates out the back door of the prison that people will get upset. Finally, she urges those who want to reduce sentences because they view them as overlong and therefore unjust to stop arguing through strawmen (like saving money or reducing recidivism) and instead argue that the sentences are overlong and unjust.
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More in the next few days . . .

Merry Christmas

Ken Lammers — Sat, 24 Dec 2011 21:29:00 +0000

everyone!

Posted Originally at CrimLaw - http://crimlaw.blogspot.com

Defending Kentucky’s Persistent Felon Laws

Ken Lammers — Fri, 23 Dec 2011 16:00:00 +0000

Ray Larson, the Commonwealth Attorney in Lexington Kentucky, explains the need for for Kentucky's persistent felon laws:

Posted Originally at CrimLaw - http://crimlaw.blogspot.com