Supreme Court OKs warrantless searches

The Supreme Court on Monday gave police more leeway to break into homes or apartments in search of illegal drugs when they suspect the evidence might be destroyed.

By Tribune Washington bureau and The New York Times

WASHINGTON — The Supreme Court on Monday gave police more leeway to break into homes or apartments in search of illegal drugs when they suspect the evidence might be destroyed.

The justices said officers who smell marijuana and loudly knock on the door may break in if they hear sounds that suggest the residents are scurrying to hide the drugs.

Residents who "attempt to destroy evidence have only themselves to blame" when police burst in, Justice Samuel Alito said for an 8-1 majority.

In dissent, Justice Ruth Bader Ginsburg wrote that she feared the ruling in a Kentucky case had handed the police an important new tool.

"The court today arms the police with a way routinely to dishonor the Fourth Amendment's warrant requirement in drug cases," Ginsburg wrote. "In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, never mind that they had ample time to obtain a warrant."

She said the Fourth Amendment's "core requirement" is that officers have probable cause and a search warrant before they break into a house.

"How 'secure' do our homes remain if police, armed with no warrant, can pound on doors at will and ... forcibly enter?" Ginsburg asked.

An expert on criminal searches agreed, saying the decision would encourage police to undertake "knock and talk" raids.

"I'm surprised the Supreme Court would condone this, that if the police hear suspicious noises inside, they can break in," said John Wesley Hall, a criminal-defense lawyer in Little Rock, Ark. "I'm even more surprised that nearly all of them went along."

The court in the past has insisted that homes are special preserves. As Alito said, the Fourth Amendment "has drawn a firm line at the entrance to the house." One exception to the search-warrant rule involves an emergency, such as screams coming from a house. Police also may pursue a fleeing suspect who enters a residence.

The Kentucky case arose from a mistake. After seeing a drug deal in a parking lot, Lexington police officers rushed into an apartment complex looking for a suspect who had sold cocaine to an informant.

But the smell of burning marijuana led them to the wrong apartment. After knocking and announcing themselves, they heard sounds that they said made them fear that evidence was being destroyed. They kicked the door in and found marijuana and cocaine but not the original suspect.

The Kentucky Supreme Court suppressed the evidence, saying any risk of drugs being destroyed was the result of the decision by police to knock and announce themselves rather than obtain a warrant.

The U.S. Supreme Court reversed that decision Monday, saying police had acted lawfully and that was all that mattered. The defendant, Hollis D. King, had choices other than destroying evidence, Alito wrote.

King could have chosen not to respond to the knocking in any fashion, Alito wrote. Or he could have come to the door and declined to let the officers enter without a warrant.

Alito took pains to say the majority was not deciding whether an emergency justifying an exception to the warrant requirement — an "exigent circumstance," in legal jargon — existed. He said the Kentucky Supreme Court "expressed doubt on this issue" and that "any question about whether an exigency actually existed is better addressed" by the state court.

All the U.S. Supreme Court decided, Alito wrote, was when evidence must be suppressed because police had created the exigency. Lower courts had approached that question in five ways.

The standard announced Monday, Alito wrote, had the virtue of simplicity.

"Where, as here, the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment," he wrote, "warrantless entry to prevent the destruction of evidence is reasonable and thus allowed."

But "there is a strong argument," Alito added, that evidence would have to be suppressed when police did more than knock and announce themselves. In general, he wrote, "the exigent circumstances rule should not apply where the police, without a warrant or any legally sound basis for a warrantless entry, threaten that they will enter without permission unless admitted."

Ginsburg, dissenting, said the majority had taken a wrong turn.

"The urgency must exist, I would rule," she wrote, "when the police come on the scene, not subsequent to their arrival, prompted by their own conduct."

The ruling was not a final loss for King. The justices said the Kentucky state court should consider again whether police faced an emergency situation in this case.

The 5 Worst States to Get Busted With Pot

1. Oklahoma — Lawmakers in the Sooner State made headlines this spring when legislators voted 119 to 20 in favor of House Bill 1798, which enhances the state sentencing guidelines for hash manufacturing to a minimum of two years in jail and a maximum penalty of life in prison. (Mary Fallin, the state’s first-ever female governor, signed the measure into law in April; it takes effect on November 1, 2011.) But longtime Oklahoma observers were hardly surprised at lawmakers’ latest “life for pot” plan. After all, state law already allows judges to hand out life sentences for those convicted of cannabis cultivation or for the sale of a single dime-bag.

2. Texas — On an annual basis, no state arrests and criminally prosecutes more of its citizens for pot than does Texas. Marijuana arrests comprise over half of all annual arrests in the Lone Star State. It is easy to see why. In 2009, more than 97 percent of all Texas marijuana arrests — over 77,000 people — were for possession only. Those convicted face up to 180 days in jail and a $2,000 fine, even upon a first conviction.

3. Florida — According to a 2009 state-by-state analysis by researcher and former NORML Director Jon Gettman, no other state routinely punishes minor marijuana more severely than does the Sunshine State. Under Florida law, marijuana possession of 20 grams or less (about two-thirds of an ounce) is a criminal misdemeanor punishable by up to one-year imprisonment and a $1,000 fine. Marijuana possession over 20 grams, as well as the cultivation of even a single pot plant, are defined by law as felony offenses – punishable by up to five years in prison and a $5,000 fine. In recent years, state lawmakers have revisited the state’s marijuana penalties – in each case electing to enhance Florida’s already toughest-in-the-nation criminal punishments.

4. Louisiana — In Louisiana, multi-decade (or even life) sentences for repeat pot offenders are hardly a rare occurrence. Under Louisiana law, a second pot possession conviction is classified as a felony offense, punishable by up to five years in prison. Three-time offenders face up to 20 years in prison. According to a 2008 expose published in New Orleans City Business online, district attorneys are not hesitant to “target small-time marijuana users, sometimes caught with less than a gram of pot, and threaten them with lengthy prison sentences.”

5. Arizona — Forty years ago virtually every state in the nation defined marijuana possession as a felony offense. Today, only one state, Arizona, treats first-time pot possession in such an archaic and punitive manner. Under Arizona law, even minor marijuana possession offenses may be prosecuted as felony crimes, punishable by up to 18 months in jail and a $150,000 fine. According to Jon Gettman’s 2009 analysis only Florida consistently treats minor marijuana possession cases more severely.

Case Law Update, Week Ending 4-28-11

Washington State Law

Washington State Supreme Court:

Personal Restraint of Martinez: The Court found that Mr. Martinez’ second PRP was properly before the Court as it did not seek similar relief to his first PRP. The court further found that the State failed to prove beyond a reasonable doubt that he was armed with a deadly weapon at the time of the robbery he committed, when the evidence showed that Mr. Martinez was found wearing an empty knife sheath and the knife itself was found in the mud yards away from Mr. Martinez, and there was further no evidence in the record that Mr. Martinez had ever reached for the knife, unbuttoned the sheath or removed the knife from the sheath. Likewise, there was no evidence that Mr. Martinez would have used the knife as a deadly weapon. http://www.courts.wa.gov/opinions/pdf/832196.opn.pdf

Personal Restraint of Nichols: In a decision that greatly narrowed its 2007 holding in State v. Jorden, the Court held that in cases where police have an individualized and particularized suspicion leading to a search, a search of motel registry information is permissible and constitutional. The Court differentiated Jorden, a case in which City of Lakewood police practices of trolling local hotels to paw through their registries to see if any wanted criminals were on the premises went a step too far and violated the State constitution. Here, Seattle Police obtained registry information from a local Travel Lodge regarding Mr. Nichols after observing a confidential informant enter the room where Mr. Nichols was later found to be staying and complete a controlled drug buy. Officers learned that Mr. Nichols’ license was suspended and, upon observing him behind the wheel, arrested him. A search incident to arrest revealed drugs and cash. http://www.courts.wa.gov/opinions/pdf/837422.opn.pdf

In a dissent, Justice Fairhurst argued that the lead opinion contravenes the structure of article I, section 7 of the Washington Constitution, undermines its protections, and attempts to circumvent the warrant requirement. The dissent argued that the lead opinion effectively creates an exception to the warrant requirement, that of individualized and particularized suspicion which grants officers “authority of law to search an individual's private affairs for purely investigatory purposes despite a complete lack of need for immediate action.” The exception, the dissent urged, undermines the warrant requirement’s purpose of reducing the risk of erroneous searches by involving a neutral magistrate. Justice Fairhurst concluded that Jorden’s holding that motel registry information is a private affair, combined with the structure of article I, section 7, “compels the conclusion that obtaining Nichols' motel registry information without a warrant violated his constitutional right to hold that information free from unjustified government intrusion.” http://www.courts.wa.gov/opinions/pdf/837422.no1.pdf

In a concurrence, Justice Madsen wrote separately to agree with the conclusion of the lead opinion, for the reasons stated by the Justice in State v. Jorden. http://www.courts.wa.gov/opinions/?fa=opinions.disp&filename=837422Co1


Division Two Court of Appeals:

State v. Carter: The Court reversed the trial court’s dismissal of Mr. Carter’s charges for possession of a machine gun. The Court held that the exemption under RCW 9.41.190(2)(b), allowing possession of a machine gun for those exempt from the prohibition against such weapons or licensed to possess such weapons under federal law if such persons are engaged in the production, manufacture, repair, or testing of machine guns, is not an element of the offense but, rather, a defense that Mr. Carter had the burden of establishing. Further, the Court found that the RCW 9.41.190(2)(b)exemption does not allow for private possession of a machine gun unless the defendant shows that such possession is authorized under federal law and that Mr. Carter failed to establish that the RCW 9.41.190(2)(b) exemption applied. http://www.courts.wa.gov/opinions/pdf/39392-1.11.doc.pdf


Division Two Court of Appeals:

State v. Martinez: The Court reversed Mr. Martinez’ conviction and remanded to allow Mr. Martinez to withdraw his guilty plea to the crime of possession of a controlled substance with intent to deliver. The Court found that the crime is an aggravated felony that, when committed by Mr. Martinez, an alien, is a deportable offense. The court further found that Mr. Martinez was not notified of the certain deportation consequences of his plea and was deficient under Strickland and Sandoval for this failure. The fact that deportation was a material factor and Mr. Martinez would not have pleaded guilty had he known of the deportation consequences was sufficient to establish prejudice under Sandoval, despite the fact that Mr. Martinez’ plea was entered prior to the entry of the Sandoval decision. http://www.courts.wa.gov/opinions/pdf/290182.opn.doc.pdf


Federal Law

Ninth Circuit Court of Appeals:

United States v. Sandoval-Gonzalez: The Court found error when the jury at Mr. Sandoval-Gonzalez’ trial on charges of being an alien who reentered the United States after previously being deported was not required to find beyond a reasonable doubt that Mr. Sandoval-Gonzalez was an alien. Instead, the jury was told that “there is a presumption” of his alienage, and the burden of proof was shifted to Mr. Sandoval-Gonzalez to establish that he had obtained American citizenship by having been born to a U.S. citizen father. The Court held that this was prejudicial error, vacated Mr. Sandoval-Gonzalez’ conviction and remanded. http://www.ca9.uscourts.gov/datastore/opinions/2011/04/25/09-50446.pdf

Miller v. Oregon Board of Parole: The Court extended its decision in Hayward v. Marshall, that only state law can give rise to a liberty interest in parole that is entitled to the protections of the Due Process Clause of the Constitution, to a similar liberty interest in early parole created by an Oregon statute. The Court also held that, following Swarthout v. Cooke, the Oregon Board of Parole and Post-Prison Supervision did not violate Mr. Miller’s due process rights when it denied him that eligibility. The court observed that, as in Cooke, Mr. Miller was afforded access to his records in advance of the hearings, and he was given the opportunity to submit information to the Board and to make a statement during the hearing. And, although the Board’s initial decision was not explained, Mr. Miller was eventually provided with a written statement of the reasons why he was denied early eligibility for parole. After Cooke, the court ruled that that is the beginning and the end of the inquiry into whether he received due process, so we need look no further to affirm the district court’s denial of Miller’s petition.
http://www.ca9.uscourts.gov/datastore/opinions/2011/04/25/07-36086.pdf

United States v. Maier: The Court affirmed Mr. Maier’s sentence of 210 months and a lifetime term of supervised release for receipt/distribution of child pornography. The Court held that the district court correctly relied upon statutory factors to guide its discretion in choosing which of two counts to dismiss when required to do so by the Double Jeopardy Clause; and that the district court’s sentence was procedurally and substantively reasonable. The Court reasoned that the district court carefully considered the totality of the circumstances in determining Mr. Maier’s sentence. http://www.ca9.uscourts.gov/datastore/opinions/2011/04/27/09-10397.pdf

United States v. Whitlock: The Court found that Rule 32.1 of the Federal Rules of Criminal Procedure, which primarily governs sentencing procedures for probation and supervised release violations, did not speak to the particular question at issue – whether probation officers’ sentencing recommendations following the revocation of supervised release must be disclosed. The Court concluded that Rule 32(e)(3) logically fills in the gap, and therefore post-revocation sentencing recommendations, like their post-conviction brethren, must be disclosed unless the district court directs otherwise. The Court held that the district court complied with the requirements of United States v. Baldrich that it disclose any factual information in the confidential recommendation on which it relied in sentencing, and that Rule 32(e)(3) comports with the Equal Protection Clause, so there was no violation of Mr. Whitlock’s constitutional rights. http://www.ca9.uscourts.gov/datastore/opinions/2011/04/28/10-30124.pdf

Kemp v. Ryan: The Court affirmed the district court’s denial of Mr. Kemp’s habeas corpus petition seeking relief from his state conviction for felony first-degree murder, armed robbery and kidnapping and from his capital sentence. The Court found that Mr. Kemp did not carry his burden of showing that he is entitled to relief on his appeal from the district court’s denial of his habeas petition. Because the petition was filed after the effective date of the AEDPA, the Court noted, relief can only be granted if the state court unreasonably applied clearly established federal law or unreasonably determined the facts. The Court held that Mr. Kemp failed to show that the Arizona Supreme Court acted unreasonably under either of these criteria in rejecting his arguments that admission of his incriminating statements to correctional officers violated his rights under Miranda and Massiah. The Court further held that Mr. Kemp did not show that the district court abused its discretion in denying his request for discovery and an evidentiary hearing because he did not establish “specific facts which, if true, would entitle him to relief.” The Court declined to reach Mr. Kemp’s claim that if his incriminating statements are excluded there is insufficient evidence to support the imposition of the death penalty under Enmund/Tison, because it held that the statements are admissible and that the evidence presented, including the statements, provides a sufficient basis for the imposition of a capital sentence. Finally, the Court found that Mr. Kemp did not show that the trial court’s alleged failure to re-voir dire the jury as to homosexual bias was contrary to, or an unreasonable application of, clearly established Supreme Court precedent. http://www.ca9.uscourts.gov/datastore/opinions/2011/04/28/08-99030.pdf

United States v. Nosal: The Court reversed the district court’s dismissal of several counts of an indictment charging Mr. Nosal with numerous violations of the Computer Fraud and Abuse Act (“CFAA”). Specifically, Mr. Nosal and his co-conspirators were charged with exceeding their authorized access to their employer’s computer system by obtaining information from the computer system for the purpose of defrauding their employer and helping Mr. Nosal set up a competing business. The Court held that under the applicable statute, an employee accesses a computer in excess of his or her authorization when that access violates the employer’s access restrictions, which may include restrictions on the employee’s use of the computer or of the information contained in that computer. The court found that a previous opinion, LVRC Holdings LLC v. Brekka, did not mandate the conclusion reached by the district court, that an employee does not exceed authorized access to a computer by accessing information unless the employee has no authority to access the information under any circumstances.

In a dissent, Judge Campbell argued that construing “exceeds authorized access” to include “violating an employer’s computer access restrictions — including use restrictions” does not further Congress’s stated purpose in enacting the Computer Fraud and Abuse Act, and in fact renders one of the statute’s provisions unconstitutionally vague. http://www.ca9.uscourts.gov/datastore/opinions/2011/04/28/10-10038.pdf

United States v. Henderson: Mr. Henderson appealed based on the district court’s failure to exercise the discretion accorded it in Kimbrough v. United States to vary from the Sentencing Guidelines when sentencing him on charges of possession of child pornography based on policy disagreements with them and not simply based on an individualized determination that they yield an excessive sentence in a particular case. The court found that it was unclear whether the district judge recognized and exercised his Kimbrough discretion, and reversed and remanded for resentencing. The Court found that the district court judge suggested that Mr. Henderson raise on appeal the argument of whether Kimbrough applied to this case, but also indicated that he was not accepting the argument that he must exercise Kimbrough discretion. For this reason, the Court held it was unable to ascertain whether the district court committed procedural error by failing to appreciate its Kimbrough discretion to vary from the sentencing guidelines on policy grounds, or whether it recognized, but declined to exercise that discretion. The court remanded for resentencing.

In a concurrence, Judge Berzon wrote separately “to emphasize that unjust and sometimes bizarre results will follow if [the sentencing guidelines for possession of child pornography are] applied by district courts without a special awareness of the Guideline’s anomalous history.”

Concurring in the result, Judge Callahan agreed that because the district judge’s ruling on the extent to which he could exercise his discretion in departing from the Guidelines for child pornography was not clear, a remand is appropriate. However, Judge Callahan wrote separately to express disagreement with the majority’s suggestion that the district court is free to disagree with the Guidelines for child pornography on policy grounds without explaining its disagreement. Judge Callahan argued that the Guidelines for child pornography are not similar to the crack cocaine Guideline considered by the Supreme Court in Kimbrough, and therefore disagreed that the Guidelines for possession of child pornography inherently come within the “Kimbrough discretion.” http://www.ca9.uscourts.gov/datastore/opinions/2011/04/29/09-50544.pdf


United States Supreme Court:

Sossamon v. Texas: Mr. Sossamon sued the State of Texas and prison officials, seeking injunctive and monetary relief under the Religious Land Use and Institutionalized Persons Act of 2000 due to prison policies that prevented inmates from attending religious services while on cell restriction for disciplinary infractions and that barred use of the prison chapel for religious worship. In a decision authored by Justice Thomas and joined by Justices Roberts, Scalia, Kennedy, Ginsburg, and Alito, the Court held that States, in accepting federal funding, do not consent to waive their sovereign immunity to private suits for money damages under RLUIPA.

Justice Sotomayor dissented, joined by Justice Breyer, arguing that it is “self-evident” that monetary damages are appropriate relief under the RLUIPA for violations of that act’s substantive provisions, and that the States consent to suit for such violations in accepting federal funds.

Justice Kagan took no part in the consideration or decision of this case. http://www.supremecourt.gov/opinions/10pdf/08-1438.pdf

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Criminal Case Law Update, Week Ending 3-11-11

Washington State Law

Washington State Supreme Court:

State v. Hager: The Court reversed a Court of Appeals ruling which concluded that a detective’s statement during trial on Mr. Hager’s first degree child rape charge that Mr. Hager was “evasive” infringed upon Mr. Hager’s right to self-incrimination. The Court found that the statement did not violate that right. The Court agreed that the statement was improper but found that, to the extent that the comment invaded the province of the jury, it was rectified by the trial court’s prompt curative instruction. Therefore, contrary to the decision of the Court of Appeals, the trial court’s denial of Mr. Hager’s motion for a mistrial was not in error. http://www.courts.wa.gov/opinions/pdf/837171.opn.pdf

In his dissent, Justice Sanders noted that precedent dictates that opinion testimony regarding a defendant’s veracity is unfairly prejudicial to the defendant because it invades the exclusive province of the jury. While the majority had conceded the impropriety of the testimony, the dissent disagreed that the testimony did not violate Mr. Hager’s right to a fair trial. The dissent found the majority holding that the curative instruction was sufficient to preserve Mr. Hager’s right to a fair trial problematic on two fronts. First, contrary to the majority holding, the comment should have been presumed prejudicial because the majority did not conclude that it could not have rationally affected the verdict, as required under pertinent case law. Second, the dissent pointed out that the curative instruction may not have been truly curative, as the jury may have interpreted the comment as a description of behavior rather than an opinion of credibility, and thus may have taken it into account in their final verdict. http://www.courts.wa.gov/opinions/pdf/837171.no1.pdf


Division One Court of Appeals:

Detention of Berry: In this partially published opinion, the Court rejected Mr. Berry’s challenge to his commitment as a sexually violent predator on the grounds that an expert’s testimony was admitted into trial without a prior Frye hearing. The Court found that the evidence implicated no novel scientific procedure or principle, and therefore no Frye hearing was required. In the unpublished part of the opinion, the Court rejected Mr. Berry’s argument that he had an irreconcilable conflict with his assigned counsel, and substitute counsel should have been assigned. http://www.courts.wa.gov/opinions/pdf/64226-0.pub.doc.pdf


Division Two Court of Appeals:

Personal Restraint Petition of Monschke: Mr. Monschke asked the Court to order a new trial or a reference hearing regarding his conviction for aggravated first degree murder. In support of his petition, Mr. Monschke argued that 1) his trial counsel were ineffective when they did not do a proper investigation or pretrial preparation of his defense expert witness who, in testifying, undermined key elements of Mr. Monschke's defense and (2) it was prosecutorial misconduct for the State to reach a plea agreement with Mr. Monschke's codefendant Tristan Frye based on a personal friendship between the elected prosecutor and Mr. Frye's defense attorney and to allow Mr. Frye to testify against him, knowing that she would commit perjury. The court found that Mr. Monschke failed to establish prejudice arising from constitutional error, a fundamental defect which inherently results in a complete miscarriage of justice or the existence of material disputed issues of fact, and denied his personal restraint petition. http://www.courts.wa.gov/opinions/pdf/38365-9.11.cor.doc.pdf

Detention of Durbin: The Court affirmed Mr. Durbin’s commitment as a sexually violent predator, disagreeing with his contentions that (1) the State had no authority under former RCW 71.09.030 (2008) to file an SVP petition against him in Clark County because he had no Washington convictions for sexually violent crimes; (2) the current version of RCW 71.09.030, Laws of 2009, ch. 409, § 3, cannot be applied retroactively to justify filing the State's petition in Clark County; (3) the trial court erred when it determined that the acts underlying his Clark County conviction, for which he was incarcerated when the State filed the SVP petition, would have qualified as a recent overt act because the acts were over five years old by the time the State filed its petition in Clark County; and (4) the State did not have jurisdiction to file an SVP petition in Clark County because he had been unlawfully confined under an incorrectly filed petition in Thurston County. http://www.courts.wa.gov/opinions/pdf/39454-5.11.doc.pdf

State v. Davis: The Court reversed the trial court’s order denying him credit for time served while serving part of a Drug Offender Sentencing Alternative (DOSA) sentence. The Court held that the trial court erred in modifying his judgment and sentence to strike the DOSA language after he was administratively terminated from DOSA by the Washington State Department of Corrections, finding that the modification was not a clerical change, as the intention of the parties and the trial court had originally been to provide for a DOSA sentence. The Court reasoned that the revocation of the DOSA sentence court not have been a factor in the trial court’s initial sentencing decision, and therefore striking the DOSA language four years later could not be found to be a correction of a clerical error. As the change likely misled the DOC as to the amount of time Mr. Davis should have remained in custody, the language should not have been removed, and Mr. Davis should have been given credit for the time he already served on the DOSA sentence. http://www.courts.wa.gov/opinions/pdf/40240-8.11.doc.pdf


Division Three Court of Appeals:

State v. Veliz: Mr. Veliz appealed his conviction for custodial interference in the first degree after taking his four-year-old daughter out of the country for four months in violation of his wife’s rights under a protection order. Mr. Veliz argued that the protection order did not constitute a court-ordered parenting plan within the meaning of the felony custodial interference statute, that even if such an order did in fact constitute a court-ordered parenting plan, the order was improperly completed and could not support the conviction, and that the evidence was insufficient to convict him of the offense during the period identified in the information. Mr. Veliz also argued that the trial court committed reversible error in admitting irrelevant and unduly prejudicial evidence. The Court held that the felony custodial interference statute encompasses any valid court order that establishes a minor child’s parents’ rights to residential placement and/or visitation, including the protection order issued in this case. Therefore, the Court found the evidence, based on that order, was sufficient to establish that Mr. Veliz committed the offense during the charging period, and found that the trial court did not abuse its discretion in admitting the challenged evidence of Mr. Veliz’ use of an alias while he was in flight with this child. http://www.courts.wa.gov/opinions/pdf/284956.opn.doc.pdf

State v. Yallup: The Court affirmed Mr. Yallup’s conviction for felony DUI, finding that the State is allowed to enforce implied consent laws against an enrolled member of the Yakama Nation driving on state highways on the reservation. The Court reasoned that the implied consent statute is a primarily criminal statute rather than a civil regulatory statute, and noted that the right to travel guaranteed by the treaty with the Yakama Nation did not exempt Mr. Yallup from the criminal statutes governing use of the roadways, or from the licensing and non-impaired driving requirements under state law. Therefore, the Court concluded, the treaty did not bar the instant prosecution. http://www.courts.wa.gov/opinions/pdf/280403.opn.doc.pdf

State v. Michael: The Court reversed one count of unlawful firearm possession and affirmed a second count of unlawful firearm possession, and two misdemeanor counts. The first charge was reversed on the agreement of the parties that the count was mischarged. The Court affirmed the remaining counts, disagreeing with Mr. Michael’s claim that his trial attorney provided ineffective assistance, finding that the claim was based on counsel’s failure to seek a jury instruction that had never before been applied in the context of an unwitting possession defense, and was a trial tactic and not ineffective assistance. http://www.courts.wa.gov/opinions/pdf/288773.opn.doc.pdf


Federal Law

Ninth Circuit Court of Appeals:

United States v. Kohring: The Court vacated and remanded for a new trial three public corruption charges against Mr. Kohring. The Court concluded that the government had breached its disclosure obligations under Brady v. Maryland and Giglio v. United States in failing to disclose favorable and material evidence to Mr. Kohring. Mr. Kohring, a former member of the Alaska State House of Representatives, was convicted on three counts of public corruption felonies based on allegations that had taken money from Bill Allen of VECO Corporation in exchange for legislative acts benefitting VECO. After conviction and on remand to the district court, the government disclosed, for the first time, several thousand pages of documents, including “FBI 302 reports,” undated and dated handwritten notes from interviews with Mr. Allen and Rick Smith, another VECO executive, e-mails, various memoranda, and police reports. Specifically, the newly-disclosed information included: (1) evidence that Mr. Allen had been or was still being investigated for sexual misconduct with minors, (2) evidence that cast doubt on Mr. Allen’s memory and the amount of money paid to Mr. Kohring, (3) evidence that the payments were made out of friendship and pity rather than a corrupt quid-pro-quo relationship, (4) evidence of inconsistent statements made by Smith, as well as a questionable relationship he had with an investigating FBI agent, and (6) evidence that a government witness thought Mr. Kohring was not corrupt. The Court disagreed with the district court assessment that the evidence was not material, but did not find sufficient evidence to conclude the prosecution “acted flagrantly, willfully, and in bad faith,” and so remanded for a new trial rather than dismissing the charges.

In a partial concurrence and partial dissent, Judge Fletcher agreed with the reasoning in the majority’s opinion that established that the prosecution withheld and suppressed material which was favorable to the defense, and that these suppressions undeniably prejudiced Mr. Kohring. However, Judge Fletcher argued that this case exemplifies “flagrant prosecutorial misconduct,” and that this case should have been dismissed with prejudice. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/11/08-30170.pdf

United States v. Eriksen: The Court affirmed convictions of Defendants-Appellants Sigmund Eriksen and Raymond Eriksen of two counts of Embezzlement or Conversion of the Funds of an Employment Benefit Plan, and one count of Making False or Misleading Statements in an Employee Retirement Income Security Act of 1974 (ERISA) Benefit Plan Document that Federal Law Requires to be Kept. The Court found that there was sufficient evidence to support the convictions, specifically holding that the government had established that the plans in question contained 401(k) components, and therefore the employer could not modify the plan by withholding contributions. The Court further held that the fact that from 2002 until their detection, the Ericksens never contributed to the plan, instead using employee contributions and withholding to pay business expenses, constituted a willful withholding of employee funds. Finally, the Court held that the fact that the defendants repaid the plan was immaterial to the proof of the charges in this case, as it was the initial withholding of money that constituted the crime. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/09/10-30056.pdf

United States v. Bonilla: The Court vacated and remanded Mr. Bonilla’s conviction upon a plea of guilty to possession of an unregistered firearm and to being a felon in possession of a firearm. The Court found that counsel’s failure to advise Mr. Bonilla that his plea was grounds for deportation, due to her mistaken belief that Mr. Bonilla is a United States citizen, was reasonable grounds for him to have declined to enter such a plea. Thus, the Court concluded, the district court’s refusal to allow him to withdraw the plea when he was informed for the first time at the plea hearing that he would be deported on the basis of the plea was an abuse of discretion. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/11/09-10307.pdf

United States v. Regalado: The Court held that the government in this case had 90 days to file a forfeiture complaint under the pertinent statute. In so holding, the Court disagreed with Mr. Regalado’s argument that the government should have filed the complaint within sixty days, finding that Mr. Regalado was not entitled to this time limit because he did not file a cost bond. The Court also noted that the regulation imposing the sixty day time limit was arguably no longer in effect because the effectuating statute had been repealed.

In a concurrence, Judge Thomas agreed that the government had ninety days to file a claim in this case, and that the subsequently filed claim was in fact timely filed. However, the concurrence argued that the filing of a cost bond was not an issue in this case. Rather, the concurrence argued, the regulation’s 60-day time limit plainly conflicts with the statute; thus, the regulation is ultra vires. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/11/09-15821.pdf

United States v. Williams: The Court held that a sentence of a life term of supervised release does not constitute “cruel and unusual” punishment under the Eighth Amendment. The Court pointed out that Mr. Williams had been convicted of sexual assault of a minor in the past, and combined with the current child porn conviction, showed a significant likelihood of re-offense. The Court likewise reasoned that child sex offenders in general have a high recidivism rate. For those reasons, the district court did not err in sentencing Williams to a fifteen-year sentence, followed by a life term of supervised release. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/07/10-30084.pdf

Huston v. Schomig: Mr. Huston appealed from an evidentiary hearing on remand of this case, the purpose of which was “to determine whether a conflict of interest adversely affected [Houston’s] counsel’s performance and, if so, whether there is a reasonable probability that the result of the trial would have been different in the absence of that effect.” The Court on remand found that Mr. Huston’s representation was not adversely affected by the fact that his attorney was part of the same public defender’s office that had represented a key witness against Mr. Huston in a previous case. On appeal, the Court found no clear error in the district court’s findings, concluding that they were well supported by the record and the law, we affirm. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/08/10-15048.pdf


United States Supreme Court:

Skinner v. Switzer: In an opinion authored by Justice Ginsberg and joined by Justices Roberts, Scalia, Breyer, Sotomayor, and Kagan, the court held that a convicted state prisoner seeking DNA testing of crime scene evidence may assert that claim in a civil rights action under 42 U. S. C. §1983. Mr. Skinner was sentenced to death in Texas for murdering his girlfriend and her sons. His defense was that he had been physically incapable of the murders due to extreme intoxication, and requested that evidence that had been left untested at the trial now be tested under a new Texas law, stating his belief that the evidence would hold the DNA of his girlfriend’s uncle, whom he had identified as the likely perpetrator. The requests were twice denied, first on the ground that Mr. Skinner had not shown that he “would not have been convicted if exculpatory results had been obtained through DNA testing,” and the second on the ground that Mr. Skinner had not shown that the evidence was not previously tested “through no fault” on his part. Mr. Skinner next filed the instant federal action for injunctive relief under §1983, alleging that Texas violated his Fourteenth Amendment right to due process by refusing to provide for the DNA testing he requested. The Supreme Court reversed the Fifth Circuit denial of the complaint for failure to state a claim, which had reasoned that post conviction requests for DNA evidence are cognizable only in habeas corpus, not under §1983, finding that there is federal-court subject-matter jurisdiction over Mr. Skinner’s complaint, and the claim he presses is cognizable under §1983.

Justice Thomas, joined by Justices Kennedy and Alito, dissented, disagreeing that Mr. Skinner’s claim was cognizable under §1983. While Justice Thomas accepted that the issue had been left open by prior case law, he argued that the Court has in the past struggled to limit §1983 and prevent it from intruding into the boundaries of habeas corpus, and this case calls for another such limit: “due process challenges to state procedures used to review the validity of a conviction or sentence.” http://www.supremecourt.gov/opinions/10pdf/09-9000.pdf

Wall v. Kholi: In an opinion written by Justice Alito, and joined by Justices Roberts, Kennedy, Ginsberg, Thomas, Breyer, Sotomayor, Kagan, and joined by Justice Scalia except as to footnote three, the Court held that the phrase “collateral review” in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) means judicial review of a judgment in a proceeding that is not part of direct review. In this case, Mr. Kholi was convicted of ten counts of first-degree sexual assault and sentenced to consecutive life terms. Mr. Kohli filed a direct appeal as well as a motion to reduce his sentence and a post-conviction relief motion, both of which were denied. He did not file the instant federal habeas petition under 11 years after finalization of his conviction, ten years after such petition should be filed in the normal course. The District Court dismissed the petition as untimely, and the Fifth Circuit reversed, finding the intervening period was tolled by Mr. Kohli’s sentencing motions. Under the Court’s holding, which gave the undefined term its ordinary meaning, both Mr. Kohli’s motion to reduce his sentence and his post-conviction relief motion qualified as collateral review motions, as both sought collateral remedies and both called for review of the sentence.

In his partial concurrence, Justice Scalia agreed with the Court’s conclusions but stated his opposition to footnote three of the Court’s opinion, which declines to decide whether Mr. Kohli’s motion to reduce his sentence sought direct review. http://www.supremecourt.gov/opinions/10pdf/09-868.pdf

Criminal Case Law Update, Week Ending 3-4-11

Washington State Law

Washington State Supreme Court:

State v. Russell: The court held that a trial court is not required to sua sponte give a limiting instruction for ER 404(b) evidence, absent a request for such a limiting instruction. In this case, the Court of Appeals had reversed Mr. Russell’s conviction for first degree rape of a child because evidence of Mr. Russell’s abuse of the alleged victim in other states both before and after the alleged incidents in this case was admitted without a limiting instruction. The supreme court reversed and affirmed the conviction. http://www.courts.wa.gov/opinions/pdf/843074.opn.pdf

Division One Court of Appeals:

State v. Rowland: The court held that under the facts of this case, Blakely v. Washington did not apply to require that facts supporting an exceptional sentence be tried to a jury and proved beyond a reasonable doubt on remand for resentencing from a collateral attack on a miscalculated offender score. The Court reasoned that the remand directed the trial court only to consider the second prong of the sentencing process, wherein a judge exercises his or her discretion to determine, given the aggravating facts, whether an exceptional sentence is warranted and, if so, its length. The remand did not touch upon the factual determination made by a jury, which must find in the initial sentencing hearing that facts exist beyond a reasonable doubt to support an exceptional sentence. However, the Court found that Mr. Rowland was entitled to dispute a new offender score error at his resentencing hearing, and remanded the case to correct the offender score and standard sentencing range. http://www.courts.wa.gov/opinions/pdf/64262-6.pub.doc.pdf

Division Two Court of Appeals:

Personal Restraint of Stockwell: The Court found no unlawful restraint in this partially published opinion, and denied Mr. Stockwell’s petition. In so doing, the Court found meritless Mr. Stockwell’s arguments that (1) his prior 1986 conviction for first degree statutory rape is not comparable to the current crime of first degree child rape; (2) the trial court erred by sealing jury questionnaires without weighing the five Bone-Club factors; (3) the trial court erred when ruling on challenges to certain jurors for cause; (4) the trial court erred by sending certain exhibits to the jury room; and (5) his appellate counsel on direct appeal ineffectively represented him by failing to request voir dire transcripts and inadequately briefing the comparability analysis. http://www.courts.wa.gov/opinions/pdf/37238-0.11.cor.doc.pdf

Federal Law

Ninth Circuit Court of Appeals:

United States v. Sepulveda-Barraza: The Court affirmed Mr. Sepulveda-Barraza’s conviction for importation of cocaine and possession with the intent to distribute. The court found that the district court did not err in admitting expert testimony regarding the structure and operations of drug-trafficking organizations and drug couriers, including testimony that drugs are rarely smuggled by unknowing couriers. The Court reasoned that admission of such testimony was not an abuse of the district court’s discretion, because it was relevant, probative, and not unduly prejudicial in light of Mr. Sepulveda-Barraza’s defense theory that he did not know that he was
transporting drugs. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/03/09-10362.pdf

Reeb v. Thomas: The Court held that the district court does not have subject matter jurisdiction to review the Bureau of Prisons’ (“BOP”) individualized residential drug abuse program (“RDAP”) determinations. The Court reasoned that a habeas claim cannot be sustained based solely upon the BOP’s purported violation of its own program statement because noncompliance with a BOP program statement is not a violation of federal law. Program statements are “internal
agency guidelines [that] may be altered by the [BOP] at will” and that are not “subject to the rigors of the Administrative Procedure Act, including public notice and comment.” The Court stressed that judicial review remains available for allegations that BOP action is contrary to established federal law, violates the United States Constitution, or exceeds its statutory authority. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/03/09-35815.pdf

Alaimalo v. United States: The court found that it had jurisdiction to consider this opinion, brought without a certificate of appealability, and that the prior panel’s denial on the merits of Mr. Alaimalo’s earlier petitions should not be given preclusive effect. The Court reasoned that Mr. Alaimalo was actually innocent and failing to consider his habeas petition would result in manifest injustice. The Court recognized the probability that vacating Mr. Alaimalo’s convictions for importation of methamphetamine would not reduce the length of his confinement, however, the Court noted that the action would remove “the possibility that he will be subject to their adverse collateral consequences.

In his dissent, Judge Korman argued that this appeal, no matter how decided, would have no practical consequence, as Mr. Alaimalo is sentenced to life imprisonment on other convictions and would not be released even if the convictions at issue here were to be reversed. The dissent thus objected to the meaninglessness of the writ ordered. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/28/08-56349.pdf

United States v. Salazar-Mojica: The Court upheld Mr. Salazar-Mojica’s conviction for being a deported alien found in the United States. The Court found that despite the fact that Mr. Salazar-Mojica’s prior conviction for a felony crime of violence had been reduced to a misdemeanor after his deportation and the arrest for the current offense, the felony conviction was nevertheless the appropriate standard for calculation for the sentencing range in this case, as the relevant time for determining whether a prior conviction was a felony for purposes of the enhancement is the time of the defendant’s deportation. Because Mr. Salazar-Mojica’s conviction for a crime of violence was a felony conviction at the time of his deportation, the court reasoned, the application of the 16-level enhancement was appropriate, despite the subsequent reduction to a misdemeanor. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/24/09-50632.pdf

United States v. Lynn: The Court found that Mr. Lynn’s convictions for receiving or distributing visual depictions of a minor engaging in sexually explicit conduct and for possessing visual depictions of a minor engaging in sexually explicit conduct violated double jeopardy. The Court reasoned that the convictions were based on the same underlying conduct and remanded with instructions to vacate one of the convictions, with the caveat that it could be reinstated without prejudice if his other conviction should be overturned on direct or collateral review. The Court further denied Mr. Lynn’s motion for reversal of both convictions based on insufficiency of the evidence, and found that the sentence imposed was appropriate. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/23/09-10242.pdf

United States v. Watson: The Court upheld the district court’s decision revoking Mr. Watson’s supervised release and sentencing him to three years in prison. The Court found that Mr. Watson’s eleven arrests by state authorities in Minnesota between 1996 and 2007, while he was a fugitive from federal justice based on a failure to notify his probation officer of his change in residence, were insufficient to notify federal authorities of his whereabouts. Therefore, the Court held, contrary to Mr. Watson’s arguments, his term of supervision was tolled under federal authorities could resume supervision, that is, upon his arrest by federal authorities in 2009. The district court thus had jurisdiction to revoke Mr. Watson’s period of supervised release, and to impose a three-year prison sentence. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/23/09-50666.pdf

United States v. Hernandez-Guerrero: The Court upheld Mr. Hernandez-Guerrero’s 27-month sentence imposed upon his plea of guilty to being an alien found in the United States following deportation. The Court found that the district court did not err in using the date he reentered the country instead of the date he was actually found in the country in the computation of Mr. Hernandez-Guerrero’s criminal history score. The district court had included in that score a 1992 controlled substance conviction as having been imposed within fifteen years of the commencement of the current offense, a date based upon Mr. Hernandez-Guerrero’s re-entry date. The crime would not have been part of Mr. Hernandez-Guerrero’s offender score had the district court used the date he was actually found in the country for computation of this score. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/23/10-50096.pdf


United States Supreme Court:

Michigan v. Bryant: In an opinion authored by Justice Sotomayor, and joined by Justices Roberts, Breyer, Kennedy, and Alito, the Court held that a deceased victim’s identification and description of his shooter and the location of the shooting were not testimonial statements because their primary purpose was “to enable police assistance to meet an ongoing emergency,” as sanctioned under Davis. Therefore, their admission at Mr. Bryant’s trial in this case did not violate the Confrontation Clause. The Court stressed that the Davis decision had found that statements made “in the course of police interrogation under circumstances objectively indicating that the [interrogation’s] primary purpose . . . is to enable police assistance to meet an ongoing emergency,” are not testimonial. Rather, such statements are only testimonial when made in the absence of such emergency to “establish or prove past events potentially relevant to later criminal prosecution.” However, though this case, the Court added a new dimension to the “primary purpose inquiry,” ruling that the objective intent of both the declarant and the interrogator was to be considered in determining whether a statement was testimonial. The Court stressed that the existence of an ongoing emergency at the time of the encounter is among the most important circumstances informing the purpose of the interrogation. The Court reasoned that his inquiry is highly context-dependent and relies not just upon whether the threat to the first victim has been neutralized, because the threat to police and public may continue, as the Court found it did here when an armed assailant remained at large. The Court further reasoned that a victim’s medical condition is similarly important to the primary purpose inquiry, as it sheds light on the victim’s ability to have a purpose and provides a context for first responders to judge the existence and magnitude of any continuing threat. However, the Court specifically found that this “does not mean that an emergency lasts the entire time that a perpetrator is on the loose…” and stressed that whether an ongoing emergency exists is but one factor informing the ultimate inquiry regarding the primary purpose of an interrogation. Among others are the formality of the encounter, the statements and actions of both the declarant and interrogators, including the content of both the questions and answers.

In an opinion concurring in the judgment, Justice Thomas agreed that the admission of the victim’s out-of-court statements did not violate the Confrontation Clause, but reached this conclusion because he believed the victim’s questioning by police “lacked sufficient formality and solemnity for his statements to be considered ‘testimonial.’” Justice Thomas disagreed with the use of the “primary purpose test,” calling it an “exercise in fiction that is disconnected from history and yields no predictable results.” Instead, Justice Thomas argued that the Court should consider the extent resembles those “historical practices that the Confrontation Clause addressed.”

In a dissent, Justice Scalia called the Court’s conclusion “patently incorrect on the facts,” and lambasted the precedent set by this case as one that “distorts our Confrontation Clause jurisprudence and leaves it in a shambles.” Justice Scalia argued for a continued adherence to the “Confrontation Clause that the People adopted, as described in Crawford v. Washington.” Under that jurisprudence, the dissent maintained that the intent of the declarant was the primary consideration, particularly whether the declarant intended the statement to be a solemn declaration rather than an unconsidered or offhand remark and whether he made the statement with the understanding that it may be used to “invoke the coercive machinery of the State against the accused.” The dissent argued that the “hidden purpose of an interrogator cannot substitute for the declarant’s intentional solemnity or his understanding of how his words may be used.” The dissent posited that the declarant-focused inquiry would work in every fact pattern, and to impose a different standard is senseless, particularly in cases of spontaneous statements made without interrogation that are nonetheless testimonial in nature. The dissent noted that, “[s]orting out the primary purpose of a declarant with mixed motives is sometimes difficult. But adding in the mixed motives of the police only compounds the problem. Now courts will have to sort through two sets of mixed motives to determine the primary purpose of an interrogation.” In this case, the dissent posited, the victim had little intent in making his statement save to ensure the arrest and prosecution of his assailant. The victim doubtless had little fear of being shot again once he was surrounded by five armed police officers, the dissent pointed out, and, even considering the test set forth by the Court, the dissent observed that the police likewise likely had little fear that the alleged assailant would come after them or other members of the public, as they were aware that this was a drug-related shooting, not a crime spree, and that in the majority of murder cases, there is but one victim. Further, the dissent noted, the questions regarding identity and address were not necessary to provide medical treatment to the victim, only to ensure capture of the killer. The dissent further criticized as a throwback to the pre-Crawford law the Court’s announcement that future cases should look to “standard rules of hearsay, designed to identify some statements as reliable,” when deciding whether a statement is testimonial, noting that “[w]e tried that approach to the Confrontation Clause for nearly 25 years before Crawford rejected it as an unworkable standard unmoored from the text and the historical roots of the Confrontation Clause.” The dissent further disagreed with the context-driven inquiry set forth by the Court in this decision, noting that it would pave the way for results-based decisions, and opened up arenas of debate over factors considered in the balancing tests set forth by the Court that need not be considered.

In her dissent, Justice Ginsburg agreed with Justice Scalia’s conclusions that the victim’s statements in this case were testimonial and that “[t]he declarant’s intent is what counts.” Justice Ginsburg further agreed that even if the interrogator’s intent factored in, in this case the statements would nevertheless be testimonial. However, Justice Ginsburg wrote separately to add the observation that a dying declaration is a well-established exception to the confrontation requirement, and that such issue should have been properly tendered in this case, to allow the court to consider whether the exception for dying declarations survives the Court’s recent Confrontation Clause decisions.

Justice Kagan took no part in the consideration or decision of the case. http://www.supremecourt.gov/opinions/10pdf/09-150.pdf

Pepper v. United States: In an opinion authored by Justice Sotomayor and joined in full by Justices Roberts, Scalia, Kennedy, and Ginsburg and joined in part by Justices Breyer and Alito, the Court ruled that when a defendant’s sentence has been set aside on appeal, a district court at resentencing may consider evidence of the defendant’s post-sentencing rehabilitation, and such evidence may, in appropriate cases, support a downward variance from the Guidelines range. The Court reasoned that this was such a case, as Mr. Pepper had, since sentencing, overcome an addiction, attended college, found a steady job, reconciled with his father, gotten married, and was supporting his family. The Court held that this information was validly before the sentencing court, citing Williams v. New York, which held that a sentencing court should have wide discretion as to the evidence considered, thus allowing it to tailor a punishment to fit the offender and not merely the crime. The Court noted that this principle had been codified under 18 U.S.C. §3661, which provides that“[n]o limitation shall be placed on the information” a sentencing court may consider “concerning the [defendant’s] background, character, and conduct,” and at §3553(a), which specifies that sentencing courts must consider, among other things, a defendant’s “history and characteristics,” §3553(a)(1). Though the Court recognized that the sentencing guidelines were a good starting point, it found other factors should be considered in both the initial sentencing and any subsequent resentencing after appeal. The Court specifically found that post-sentencing rehabilitation evidence could support a downward variance from the Guidelines range, and that Mr. Pepper’s rehabilitation was clearly relevant to the selection of an appropriate sentence in this case. The Court further found that §3742(g)(2)—which prohibits a district court at resentencing from imposing a sentence outside the Guidelines range except upon a ground it relied upon at the prior sentencing—is invalid after Booker, and that this section does not reflect a Congressional intent to bar consideration of post-sentencing rehabilitation evidence.

In a partial concurrence, Justice Breyer agreed that 18 U. S. C. §3742(g)(2) is invalid under Booker. He also agreed that the law does not require a sentencing court to follow a Guideline policy statement that forbids taking account of post-sentencing rehabilitation. However, Justice Breyer emphasized that “this conclusion does not leave a sentencing court free to disregard the Guidelines at will,” but “permits the court to disregard the Guidelines only where it is “reasonable” for a court to do so.”

In a partial concurrence and partial dissent, Justice Alito agreed that the decision could not be affirmed on the basis of 18 U. S. C. §3742(g), as this provision has been rendered invalid under Booker. Justice Alito also concurred in the judgment “to the extent that it holds that the decision below regarding evidence of post-sentencing rehabilitation must be reversed.” However, Justice Alito stressed that judges should still be required in almost all cases to give significant weight to the police decisions embodied in the Guidelines. However, the justice recognized that the policy statement in the instant matter is distinguishable from almost all of the other rules that the Commission has adopted, and thus concurred in the end result for this case.

In a dissent, Justice Thomas argued that the Court of Appeals decision should have been affirmed, and Mr. Pepper’s 65 month sentence upheld. The dissent argued that the Federal Sentencing Guidelines, as written, “do not permit district courts to impose a sentence below the Guidelines range based on the defendant’s post-sentencing rehabilitation.” In so arguing, the dissent appeared to once again take issue with the holdings in Booker and Kimbrough which rendered the Guidelines advisory rather than mandatory, and argued that there is “no principled way to apply the Booker remedy,” and therefore the Guidelines should be applied as written unless so doing would be a Sixth Amendment violation.

Justice Kagan took no part in the consideration or decision of the case. http://www.supremecourt.gov/opinions/10pdf/09-6822.pdf

Walker v. Martin: In a unanimous decision authored by Justice Ginsberg, the Court held that the “reasonableness standard” used by California courts in lieu of a determinate time limit to judge the timeliness of a habeas petition qualifies as an independent state ground adequate to bar habeas corpus relief in federal court. Federal relief is therefore unavailable for an untimely petition absent a showing of cause and prejudice. The Court found that the California rule was firmly established and regularly followed and therefore adequate under settled case law even though the exercise of discretion permits consideration of a federal claim in some cases but not others. In so holding, the Court reasoned that the requirement was framed through a trilogy of cases, and that the courts have supplied clarity through application of the rule. The Court dismissed Mr. Martin’s arguments that the terms “reasonable time” period and “substantial delay” make California’s rule too vague to be regarded as “firmly established.” The Court further found that the rule was regularly followed, lending strength to its application. The Court also decided that the California time bar was not infirm merely because it allows for differing outcomes or a bypass of the rule entirely depending on the case. The Court concluded that there was no showing that the California rule was discriminatory, and affirmed the denial of habeas relief. http://www.supremecourt.gov/opinions/10pdf/09-996.pdf

Police Officer steals Marijuana.

Washington State Law

Washington State Supreme Court:

In Re Discipline of Ferguson: The Court upheld a 90 suspension of Sandra Ferguson’s law license, finding that the disciplinary board’s imposition of that suspension in lieu of the 30 days recommended by the hearing officer was reasonable in light of the hearing officer’s findings that Ms. Ferguson appeared ex parte before a superior court judge in a contested matter without notice to opposing counsel, failed to disclose all relevant facts at an ex parte hearing, and obtained relief through misrepresentation and deceit in violation of the Rules of Professional Conduct. The Court reasoned that the enhanced suspension time was warranted in light of aggravating factors in this case. http://www.courts.wa.gov/opinions/pdf/2007198.opn.pdf

In his concurrence/dissent, Justice Alexander agreed with the suspension, but dissented with regard to the length, arguing that there was no justification for the Court’s downward departure from the ABA recommended suspension of 180 days. http://www.courts.wa.gov/opinions/pdf/2007198.ip1.pdf

Division One Court of Appeals:

State v. Mohamoud: The Court held that the deferred disposition statute, RCW 13.40.127, does not authorize the juvenile court to order a post-conviction deferred disposition on its own initiative. The Court concluded that the legislature did not intend to grant a juvenile court this type of authority, and the court in this case therefore lacked authority to order the deferred disposition in this case. In any case, the Court found that the deferred disposition would have been void because the trial court failed to follow all statutory requirements. The Court reversed and remanded for resentencing. http://www.courts.wa.gov/opinions/pdf/64958-2.pub.doc.pdf

Division Two Court of Appeals:

State v. Johnson: The Court found that a locomotive meets the definition of a “railway car” for the purposes of the burglary statute, and meets the statutory definition of a “building” for purposes of second degree burglary. Specifically, the Court found that the statutory definition of “building” includes “any…railway car,” a locomotive is therefore a railway car and a building. The Court also found that the trial court did not err in admitting a sales receipt found on Mr. Johnson at the time of his arrest showing that the prior day he had sold 105 pounds of copper wire to Valley Recycling. The court presumed that the trial court admitted the receipt as circumstantial evidence of Mr. Johnson’s motive or intent and instructed the jury on the limits of its use. As such, the Court concluded, the evidence was both relevant and admissible.

In her dissent, Judge Van Deren argued that the definition of “railway car” was ambiguous, as dicta in prior cases suggest that a locomotive is a “railway car,” however the ordinary dictionary definition of “railway car” does not encompass locomotive. Accordingly, the dissent would hold that whether a locomotive falls under the phrase “railway car” is subject to more than one reasonable interpretation and the rule of lenity should apply, with a holding that a locomotive is not a railway car under the burglary statute. Given this definition, there was insufficient evidence to find Mr. Johnson guilty of second degree burglary, and the case should have been dismissed. http://www.courts.wa.gov/opinions/pdf/39607-6.11.doc.pdf

Division Three Court of Appeals:

State v. Weber: The Court agreed with the superior court’s determination that the stop for speeding in this case did not support the district court’s legal conclusion that the stop was pretextual. The Court affirmed the superior court’s action in remanding the case for trial. The Court concluded that under Ladson, both a subjective intent of the officer and the reasonableness of the stop must be considered before finding a pretext and, in this case there was a reasonable stop with no improper motive, and therefore no basis for finding that the traffic stop was pretextual. http://www.courts.wa.gov/opinions/pdf/281922.opn.doc.pdf

In his dissent, Judge Sweeney argued that the superior court applied the wrong standard of review in this case, and improperly weighed the evidence, substituting its own judgment for that of the district court. The dissent argued that the test is not whether the appellate or superior courts would have found a different motive for the stop, but whether there is sufficient evidence, which if believed, would support the district court’s finding on the factual question of motive. The dissent posited that the standard was met in this case and the superior court’s decision should be reversed and the district court’s suppression order affirmed. http://www.courts.wa.gov/opinions/pdf/281922.dis.doc.pdf


Federal Law

Ninth Circuit Court of Appeals:

Stanley v. Cullen: Mr. Stanley filed an amended habeas petition in federal court asserting claims arising out of both the guilty and penalty phases of his arson and murder trial, including competency claims. The district court held that a biased juror rendered invalid the verdict of the competency jury and remanded to the state court to allow that court to determine whether it was feasible to conduct a retrial to decide whether Mr. Stanley was competent during his penalty phase trial. The district court denied all of Mr. Stanley’s guilt phase claims and held the remaining penalty phase claims in abeyance. Mr. Stanley appealed, contending that the state trial court’s failure to institute competency proceedings sua sponte during the guilt phase violated his right to procedural due process. Second, he contended that his trial counsel were ineffective for failing to investigate or raise the issue of his competency to stand trial during the guilt phase. Third, he contended that the district court improperly denied an evidentiary hearing on a claim that counsel were ineffective in failing to raise a diminished capacity defense during the guilt phase. Fourth, he contends that the district court acted improperly in remanding to the state court for a determination whether a retrial to decide Stanley’s competency during the penalty phase is feasible. Fifth, he contends that the district court acted improperly in holding in abeyance his remaining penalty phase claims pending the state court’s decision concerning the feasibility of a retrial, and possibly pending the retrial itself, on remand. Finally, he asks us to consider an uncertified claim that he was denied a full and fair hearing by the state courts on his motions to suppress evidence. The Court found that the district court’s decisions were reasonable, and declined to certify Mr. Stanley’s uncertified claim that he was denied a “full and fair” opportunity to litigate his Fourth Amendment search and seizure claims during the pretrial phase of his trial. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/31/08-99026.pdf

United States v. Morris: The Court found that the government’s single plea offer in this case, in which it agreed not to file an amended information with an enhancement that would increase Mr. Morris’ sentence by ten years in exchange for a guilty plea and cooperation in an upcoming murder and drug dealing trial of a gang leader with whom Mr. Morris was associated, did not offend due process. The Court reversed the district court’s finding to the contrary, in which that court reasoned that the government’s tactics “short-circuited the truth-finding process” by requiring Mr. Morris to forfeit most of his rights from the start of the proceedings. The Court recognized that a give and take is required in the plea bargaining process, but found that this does not mean that the government “must engage in an extensive series of back-and-forth negotiations
for a plea offer to be valid.” The court concluded that “[t]here is nothing fundamentally wrong with the prosecution’s decision to present its best offer up front,” and that the government did not offend due process by extending a take it or leave it plea offer to Mr. Morris. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/02/10-10009.pdf

United States v. Smith: The Court upheld Mr. Smith’s conviction for being a felon in possession of a firearm, upholding the district court’s decision to deny Mr. Smith’s motion to suppress the gun found on his person by a police officer. The Court found that Mr. Smith was not seized by the arresting officer after he crossed the street in front of the officer’s patrol car and the officer activated his siren, pulled to the curb, and ordered Mr. Smith to stand in front of the patrol car. Instead, Mr. Smith turned and ran, and was tackled and handcuffed by the officer. This is the point at which the Court found the seizure occurred, and the Court held that there was probable cause for the seizure at this juncture. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/03/10-10036.pdf