In United States v. Jones, Defendant was under investigation for suspicion of trafficking narcotics.  Federal agents, acting without a warrant, attached a GPS tracking device to Jones’ vehicle for 28 days.  Investigators were led to Jones’ stash house where they discovered $850,000 in cash and just under 100 kilograms of cocaine.  He was indicted, tried and convicted on conspiracy to distribute and possession with intent to distribute charges.  Following a conviction he was sentenced to life imprisonment.

Ultimately, the Supreme Court affirmed the D.C. appeals court which held that admission during trial of the evidence obtained by warrantless use of the GPS device violated the Fourth Amendment.   In reaching its decision, the Court noted that while the test for whether a search is unreasonable embodies ‘reasonable expectation of privacy’, this test “has been added to, and not substituted for, the common-law trespassory test.”   In finding the attachment of the device a trespass, the Court concluded a Fourth Amendment violation occurred.  While attaching such a device amounted to a trespass in violation of some of the longest standing Fourth Amendment precedent, the question remains whether the warrantless tracking constitutes an unreasonable search under the ‘reasonable expectation of privacy’ test.

Opinion here:

United States v. Jones (January 23, 2012)

North Las Vegas Municipal Court – Fine Reduction Program

The Court found that this testimony constituted inadmissible hearsay, in addition to a best evidence rule issue.  The Court found no reason for the State’s failure to admit a register receipt, price tag, or photograph of the same to establish the price of the stolen goods.  

Read the opinion here: Stephans v. State (October 2011)

Attached is a recent (12/5/2011) order by the federal magistrate following plaintiff’s motion for sactions filed after the failed attempt to depose larger than life casino-mogul Sheldon Adelson.  This order should be titled Civil Depositions 101.  It is a thorough read on the Do’s and Don’ts during this critical phase of litigation, and its reading worthy of at least one Ethics CLE credit.

Adelson order

Changes the maximum punishment a court may impose for a crime by a person who was under 18 years old when the crime was committed.  For a crime otherwise punishable by death, the maximum punishment is life imprisonment without the possibility of parole.  For non-homicide crime, the maximum punishment is life imprisonment with the possibility of parole.  Effective March 30, 2011 and applies retroactively. 

S.B 277 (Chapter 245) Electronic Transmission of Sexual Image of a Minor

Prohibits a minor from knowlingly or willfully using an electronic device to possess, transmit or distribute a sexual image of himself, herself or another minor.  If the images are of himself or herself, the minor is considered in need of supervision for the first offense and a delinquent for the second offense.  If the images are of another minor, the minor in willful possession of the images is a child in need of supervision, but if the image is transmitted or distributed, the minor commits a delinquent act.

A.B. 83 (Chapter 31) Identity Theft

This measure became effective October 1, 2011, and applies retroactively to a person who committed an identity theft crime before that date, if the applicable statute of limitations has commenced but not yet expired on that date.  This bill expands the statute of limitations for an identity theft felony against a victim who was under 18 years of age at the time the offense was committed to four years after the victim discovers, or reasonably should have discovered, the offense. 

A.B.  107 (Chapter 80) Identification Procedures

This law requires each law enforcement agency to adopt policies and procedures applicable to identification procedures, including live lineups, photo lineups and show-ups. 

A.B. 57 (Chapter 51) Sex Offenders

Among other things, this law specified the items that must be included in a record of registration of a sex offender or an offender convicted of a crime against a child.  The record must identify the offender and include information on the offender’s criminal history, employment or occupation, enrollment as a student, level of registration, residence, vehicles, volunteer service and other information required by federal law.

A.B. 142 (Chapter 41) Property Crimes

This bill changes the threshold amount of money or value misappropriatedm stolen or taken.  It changes the threshold between a misdemeanor and a gross misdemeanor, or between a misdemeanor and a category C or D felony, from $250 to $650.  It also changes the thresholds between a category B felony and a lesser felony from $2,500 to $3,500.

A.B. 321 (Chapter 59) Justifiable Homicide

This bill modifies the definition of “justifiable homicide” by providing that a person is not required to retreat before using deadly force if he or she is not the original aggressor, has a right to be at the location where deadly force is used, and is not actively engaged in conduct in furtherance of criminal activity at the time.

S.B. 257 (Chapter 282) Grafitti

Among other things, reduces from $5,000 to $500 the aggregate value of damage used to determine the penalty imposed for committing multiple grafitti offenses.   Persons who place grafitti on protected sites are guilty of a category C felony and must serve at least 10 days in jail as a condition of probation.  If the offender is under the age of 18, the court has authority to order the offender’s parents to participate in counseling.  The actual property owner may now institute a civil claim and recover triple damages, plus attorney’s fees and costs from the offender, or from the offender’s parents is the offender is under the age of 18. 

The court properly framed the issue as ”whether an officer has a reasonable suspicion that the driver and any passengers may be armed and dangerous.”  This “is a fact-specific inquiry that looks at the totality of the circumstances in light of common sense and practicality.”  United States v. Tinnie, 629 F.3d 749, 751 (7th Cir. 2011) (discussing Johnson) (internal quotation omitted).  Reasonable suspicion is measured by an objective standard.  See Ashcroft v. al-Kidd, 563 U.S. ___, ___, 131 S. Ct. 2074, 2080 (2011).

In reaching their holding, the Cortes court reasoned,

When Wadsworth arrived, Cortes had a knife in his lap; the presence of a knife in plain view in a lawfully stopped car contributes to reasonable suspicion that other weapons may be present, making the person armed and dangerous even if the knife is moved out of reach.  United States v. Vinton, 594 F.3d 14, 20-21 (D.C. Cir.), cert. denied, 562 U.S. ___, 131 S. Ct. 93 (2010).[3]  Despite being repeatedly asked, Cortes refused to keep his hands in plain view.  See United States v. Soares, 521 F.3d 117, 121 (1st Cir. 2008) (passenger’s refusal to obey “repeated orders to remain still and keep his hands in [officer’s] view” cited as part of the totality of circumstances justifying a patdown search).  After stating he had identification, Cortes contradicted himself and said he didn’t; “evasive responses to police questions can help support reasonable suspicion,” as can “contradictory answers to simple questions.”  Tinnie, 629 F.3d at 752.  Cortes and the driver appeared unusually nervous and agitated to Arrendale and Wadsworth, both experienced patrol officers.  Id. (“Tinnie acted suspiciously by moving around nervously as the officers approached the car”).  Finally, when Cortes got out of the car, he did so strangely, trying to conceal his hands and back from Arrendale.  See United States v. Burkett, 612 F.3d 1103, 1107 (9th Cir. 2010) (upholding passenger frisk under Johnson based partly on furtive movements and the guarded way the passenger got out of the car).  Given all this, common sense tells us that a reasonable officer confronting Cortes at night during a traffic stop could reasonably suspect that Cortes was armed and that a frisk was necessary to protect himself and his partner.

Depositions- when can you speak to your own client?

I’m guessing most attorneys have never stopped to consider this issue.  Most attorneys have the decency not to do so while a question is pending, but most would never think twice about confering with their own client during a break.

For anyone practicing in the area of DUI and drunk driving, the United States Supreme Court in Bullcoming v. New Mexico, (Slip opinion, June 2011), addressed the issue of “whether the Confrontation Clause permits the prosecution to introduce a forensic laboratory report containing a testimonial certification- made for the purposes of proving a particular fact- through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification.” But the reasoning of Bullcoming has application well beyond DUI and drunk driving cases- and is relevant to any case where the state seeks to admit the certified findings of an expert or scientist through the surrogate testimony of another scientist who did not actually perform the test, and did not observe the test.

The Bullcoming court held that “surrogate testimony of that order does not meet the constitutional requirement.” “The accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.”

In Bullcoming, defendant’s blood was drawn following a drunk driving arrest and was tested to have a blood alcohol concentration of .21 by lab scientist Curtis Caylor, who also signed the lab report stating as much. On the day of trial the state announced that it would not be calling Curtic Caylor who was recently put on unpaid leave for unspecified reasons. Instead the state sought to admit Caylor’s certification report as a business record exception to hearsay through the testimony of a colleague (another scientist who worked with Caylor) but who had neither observed nor reviewed Caylor’s analysis.

The court reiterated, “The Sixth Amendment’s Confrontation Clause confers upon the accused ‘in all criminal prosecutions, …the right…to be confronted with the witnesses against him.’” An analyst’s certification prepared in connection with a criminal investigation or prosecution, the Court held, is “testimonial,” and therefore within the compass of the Confrontation Clause. Citing United States v. Gonzalez-Lopez, 548 U.S. 140, 145 (2006), the Bullcoming court stated, “if a particular guarantee of the Sixth Amendment is violated, no substitute procedure can cure the violation, and no additional showing of prejudice is required to make the violation complete. “If (as in U.S. v. Gonzalez-Lopez) representation by substitute counsel does not satisfy the Sixth Amendment, neither does the opportunity to confront a substitute witness.

Defendant was arrested at the scene and given a full Miranda warning and chose (wisely) to remain silent. At trial, Defendant testified in his own defense and was asked repeatedly by the district attorney to explain why he had remained silent at the time of arrest instead of revealing his alibi to police.

The Vipperman court noted, “No less than six times did the prosecution press Defendant to explain his post-arrest silence, knowing full well that under the Miranda rule he had been told by the police officers that he had a right to remain silent.” Although Nevada case law states that, “[M]ere passing reference to silence…does not mandate automatic reversal” (See Shepp v. State, 87 Nev. 179, 181 (1971), in Vipperman there was more that “mere passing reference.”

The court held, “due process prohibits any inference to be drawn from the exercise of one’s constitutional right to remain silent after arrest.”