Archive for the 'Criminal Law' CategoryPage 9 of 58

Supreme Court to Decide Whether DNA Collection Requires a Warrant

In 2009, Alonzo King was arrested and charged with second degree felony assault in Maryland. As part of the arrest, the police took a sample of his DNA through a cheek swab. The DNA sample was compared to a federal database of DNA samples from unsolved crimes. There was a match. The DNA sample linked King to a 2003 robbery and rape of a woman. Based on the DNA link, King was sentenced to life in prison for rape. The original assault charge was reduced to a misdemeanor.

A state Court of Appeals overturned King’s sentence, finding that King’s 4th Amendment right against unreasonable searches had been violated by the DNA sample taken. Furthermore, according to Maryland law, police can only take DNA samples for felonies, not misdemeanors. The US Supreme Court is now hearing the case in 2013.

It is important to clarify the central issue of this case: whether the police can take DNA samples from persons arrested for a felony. Convicted felons are rightfully subjected to such cheek swabs, but persons who are arrested are still considered innocent until proven guilty. Those who are arrested, but not yet tried, enjoy the same rights as other citizens.

dna Q-tip swabThese rights include the right against unreasonable search and seizures. Most people know that the police cannot search their house without a warrant, but the 4th includes not only homes, but also our actual “persons.” A person’s DNA is their genetic make-up and is what gives that person their physical characteristics. DNA is intrinsically tied to a person’s personal body.  Given that the intent of the 4th Amendment is to protect against excess state intrusion into a citizen’s private life, allowing the police to take a DNA sample of an arrestee without a warrant would undermine a fundamental constitutional right.

The state of Maryland and the Obama administration would counter that this expansion of government power is reasonable under the 4th Amendment. Persons who are arrested are already required to turn out their pockets and give their fingerprints to the police. In addition, DNA samples help shut previously unsolved crimes. Victims will gain closure when DNA puts a criminal in prison. Innocent persons wrongfully accused will be exonerated. DNA samples are a powerful tool for the criminal justice system.

First, taking cheek swabs is significantly different from taking fingerprints or demanding that a person turn out their pockets. Fingerprints are commonly used to identify people and can sometimes link present criminals to past crimes, so prosecutors can be forgiven for believing that an external imprint on one’s skin is somehow the same as the fluids inside one’s body.

DNA, however, can reveal information which a fingerprint does not, information such as genetic diseases or disorders a person might have or will eventually have, certain biochemical personality traits such as their level of thrill-seeking, and even their life expectancy. Essentially, DNA is a massive compilation of personal background information, which in contrast to turning out one’s pockets, is not relevant to a case.

More importantly, cheek swabs and the extraction process are more invasive than taking a fingerprint. Cheek swabs involve sticking a Q-tip inside a person’s mouth. It is not harmful and prosecutors would insist that the process is not actually intrusive. Persons who are arrested and then forced by the police to have an instrument stuck up their mouth would disagree. If the state is required to acquire a warrant to search an area outside of a person’s body (i.e. their house), the state should be required to obtain a warrant to search inside a person’s body as well.

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New York Police Officer Allegedly Engages in Cannibalism Conspiracy

Surveys often find that lawyers are pessimistic people. This is not a surprise given that the law often regulates the lowest of society’s instincts, so each case will often seem morally worse than the previous one.  At the same time, American society places a high value on freedom. The price of freedom though is allowing morally questionable actions to pass without judgment, even if morally questionable actions come very close to crossing the line from morally questionable to legally outrageous.

Gilberto Valle puts these principles to the test in a shocking story from New York. Gilberto Valle was a member of the New York Police Department until his wife reported him to the FBI. There are many possibly embarrassing things that a wife does not want to find on her husband’s computer. Dating websites and pornographic websites can break a marriage, but conspiring to kidnap, rape, kill and eat women is certainly grounds for more than a divorce. After Valle was arrested and suspended from his duties as a police officer, the FBI searched his apartment and found a list of women Valle planned to eat. Investigators also found a list of items the conspirators needed to perform the acts, as well as plans for meal preparation. The FBI also found internet chat logs about rape and cannibalism, including discussions to sell another conspirator’s young stepdaughter as a sex slave.

court sketch gilberto valleDistrict Court Judge Gardephe found sufficient evidence to allow the case to proceed to a jury trial. The FBI, upon further investigation, discovered that Valle had become acquainted with several of the women on his list. He had lunch with one of them, and a few claimed that Valle had stalked them using his patrol car. Prospective jurors were shown shocking images of some of the websites Valle frequented, including a picture of a young woman nude, bound, and gagged on a serving plate (Warning: graphic image attached to that link). Jurors who were too disgusted by the images were excused from jury service.

As bizarre as this case is, Valle is a textbook example of an incomplete or inchoate crime. Inchoate crimes are crimes which are planned out by the suspect but are not actually performed yet. Inchoate crimes are the law’s recognition that law enforcement should not have to wait for the suspect to actually harm someone before law enforcement can arrest the suspect. The prosecution must argue that the defendant intended to carry out and would have carried out the crime but for outside intervention.

The defense attorney has to counter that the defendant was not even close to carrying out the crime or that the defendant had no intention of carrying out the crime. According to defense attorneys, inchoate crimes lead to the worst kind of criminal cases: prosecution of otherwise innocent people who have not committed any crimes.

The most significant aspect of inchoate crimes though is the law’s ability to regulate the thoughts and impulses of individuals. In this case of course, Valle’s thoughts and impulses are grotesque. The purpose of the law though is not to regulate every thought the population may have. The law should only ensure that people do not hurt each other. In a case like this, it is easy to lose perspective that Valle’s sexual fantasies are not on trial. The real issue of this case is whether Valle and his co-conspirators online actually intended to carry out their plans. The latter is about protecting society while the former would represent a significant change in the minimum standards set out by the law.

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Crime Victim’s Privacy Rights Tested in Cop Killer Lawsuit

The worst experience an individual can have is to answer the door and have a police officer inform you that your loved one will never come home. Unfortunately, every homicide committed involves a person receiving that terrible message at the door. The criminal justice system has done its best to ensure that the dreaded message comes as rarely as possible, but it is only in recent decades that the concept of victim’s rights has arisen. The story of Sheriff Deputy Tony Diaz presents the cause of victim’s rights in all its tragic details.

In June of 2008, Deputy Diaz was pursuing Marco Topete on Interstate Highway Five for driving under the influence. Topete’s drunk driving was aggravated by the fact that his infant daughter was in the back seat of the vehicle. During the pursuit, Topete abandoned his car and his daughter on the side of the road. When Deputy Diaz checked Topete’s car to ensure that Topete’s daughter was unharmed, Topete sneaked up on Diaz and used an assault rifle to shoot Diaz in the back. Although Deputy Diaz managed to return fire, Diaz was hit seventeen times.

officer tony diazSheriff Deputy Tony Diaz died a few hours after the shooting. Since Marco Topete had a prior criminal record, Superior Court Judge Paul Richardson approved the jury’s recommendation for a death sentence.

Sadly, this was not the end of the story for Tony Diaz’s sister, parents, wife and three children. The entire shooting had been recorded by the dashboard police camera in Diaz’s patrol car. The video tape had been shown at trial as evidence, although parts of the tape had been edited out. In February 2012, Sacramento KCRA-TV played the video tape on local television, including parts of the video that had not been presented at trial. The tape was shown on television without the knowledge or consent of the Diaz family. In 2013, the Diaz family sued Sacramento KCRA-TV for privacy violations, but Judge Richardson held that the tape had been part of the trial and was thus public information.

The Diaz family’s lawsuit was built on Marsy’s law, a 2008 California proposition which established a crime victim’s bill of rights. The purpose of Marsy’s law was to expand crime victim’s rights; Marsy’s law thus gives crime victims legal representation in the defendant’s trial process and the right to prevent release of confidential information.

It is these rights which prompted the Diaz family to request restriction of the police dash camera video. The video depicts the shooting which caused Officer Diaz’s death. Although privacy is currently a vague legal concept, privacy should include the right not to allow certain information to be broadcasted. Society recognizes that financial information and personal identity information should be restricted from public view. Intimate moments such as childbirth should also be shielded from the public eye. It is natural, then, that a crime victim’s death should also be kept from the mass media.

However, there are a couple of issues that swayed Judge Richardson in the other direction. First, court trials are public in order to preserve government transparency. If the government wishes to strip criminal defendants of their liberties, the public has the right to know the exact reason for their imprisonment.  Second, the media has not only the right, but the duty to report on government action. Given that criminal trials are government functions, the state has no right to restrict the freedom of the press.

The Diaz family would counter that Sacramento KCRA-TV had released portions of the video now shown in court. Government transparency should not apply to information that the government did not use in its decision-making. If the Yolo Superior Court finds for the Diaz family, they would not be restricting free press, as they would only be protecting the Diaz family from unwanted exposure of Tony Diaz.

Although the Sacramento KCRA-TV portrayed Tony Diaz in the best manner possible, other crime victim’s families might not be so lucky. Rape victims especially would not want the crime aired on television, no matter what spin the media puts on the story.

I think the best way of settling this issue is to consider the wishes of the departed. Obviously Tony Diaz cannot tell the court what he wants, but the court should consider whether Tony Diaz himself would have wanted the video to be public knowledge. Diaz’s story is an inspiring one which would bring more confidence to the police force. On the other hand, Tony Diaz seems to have suffered great pain and a person’s last moments on earth are quite personal. Respecting the wishes of Deputy Tony Diaz would be a difficult standard to meet, but I think focusing on the desires of the victim would bring the most justice.

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Anything You Do NOT Say Can Be Used Against You

Picture this: A suspect is brought into a police station for questioning. The suspect is not under arrest, but the police spend a couple of hours asking the suspect questions. When the police ask if the bullets found at the murder scene came from one of the suspect’s firearms though, the suspect, who had previously answered all questions, becomes mute. Is this a confession of guilt, or an exercise of the right to remain silent?

The United States Supreme Court will be determining the answer this spring. In 1993, Genovevo Salinas was brought into a police station for questioning regarding the murders of Juan Manuel Garza and Hector Garza, two siblings living in Houston, Texas. Salinas was not under arrest and spoke freely until the police asked whether the ammunition cases found at victim’s apartments would be matched to Salinas’s shotgun. Salinas went silent.

After the questioning, police obtained a warrant for the shotgun and examination revealed that the ammunition cases likely came from Salinas’s shotgun. The police charged Salinas with murder in February 1993, but Salinas fled to Mexico before the police could locate him. Fourteen years later, in October 2007, Salinas was apprehended.

At Salinas’s second trial (first one was a mistrial), the Court allowed the prosecution to use the defendant’s silence as a confession. The judge held that the defendant’s answers and subsequent refusal to answer were all voluntary and thus the police had no duty to inform Salinas of his rights. The Court of Appeals affirmed the decision and the case has now moved to the Supreme Court.

Although “pleading the fifth,” or invoking the right to remain silent, may seem straight forward, the decades following the famous Miranda decision has proven that suspects have a much harder time using the right than the average person might suspect. The primary problem is that it is often ambiguous whether the suspect wants to use the right or not.

Scientific research on the matter has shown there are a number of ways that suspects can respond to an interrogation. Some suspects ask about their rights: “Do I have to answer these questions?” Other suspects make a request: “Can I go?” Still others add qualifiers, attempts to invoke the right in one part of questioning but not in others, to their statements: “I don’t want to talk about this today” or “I don’t want to talk about my driving.” And of course, some suspects simply engage in a (very long) staring contest with the police officer in front of them.

Although there are other attempts to invoke the right to remain silent, these four are the most popular. Each of these attempted uses of the right is problematic though. Asking about your right is not the same as invoking your right. A request to do something else could be viewed as just a short break between questions.  And although it does not seem possible, actual silence is considered too vague to be an invocation of the right to remain silent. Courts have held that a suspect who is mute could be forming an answer to a question rather than refusing to answer a question.

So where does this leave Salinas? Salinas’ first problem is that he was not under arrest when he was questioned. Miranda rights are usually applicable when the suspect is held by the police against the suspect’s will. The second challenge is that the circumstances make Salinas look guilty. Sitting in silence after hours of questioning gives the jury the impression that the defendant realizes he is caught. The prosecution built on this impression and called it a confession.

There are two holes in the prosecution’s argument. One, there are alternatives to the view that the defendant was confessing. Salinas could have stopped talking because he realized that the police were trying to trap him. Or Salinas could have been implicitly qualifying his right to the fifth, responding to all questions except those regarding his firearms.

The second, and more important flaw, is that reading silence as evidence of guilt destroys the purpose of the right to remain silent. Under the prosecution’s vision, if a suspect talks, the suspect may be building his own prison cell around himself. If the suspect does not talk, the suspect is still putting laying down the bricks of his incarceration. In other words criminal defendants could be incriminating themselves during police questioning regardless of their decision to speak.

Salinas may not be the most sympathetic man, but his case could determine the future of an important Constitutional right.

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How Hot is Your Pursuit? Courts Revisit Reasonable Searches

At the end of each year, it’s a good idea to look back and reflect on one’s decisions. For the United States Supreme Court though, it just means more petitions to look over. One petition, however, might give the justices a chance to reevaluate one of their previous decisions.

In 2011, police in Kentucky pursued a drug dealer into an apartment complex. Although the police lost sight of the fugitive, they did smell marijuana from one of the apartments. The police knocked on the door and called out “police!” No one answered the door, but the officers did hear sounds coming from inside the apartment. Fearing that evidence was being destroyed, the police entered the apartment and saw Hollis King, as well as his girlfriend, smoking marijuana in plain sight of the door. King was arrested. The drug dealer the police had been pursuing earlier was found in another area of the building.

The quescome back with a warranttion of whether the police could make a search and arrest without a warrant has been a highly contested one. Although the 4th Amendment requires the police have a warrant before a search and seizure is made, there is an exception if the police are in “hot pursuit” of a suspect. The Kentucky Supreme Court had originally ruled that the police could not use the evidence against King because the police had created the situation which caused the police to believe evidence was being destroyed. The Federal Supreme Court, however, overruled the Kentucky Supreme Court.

In an 8-1 decision, with Justice Ginsburg being the odd judge out, the Supreme Court held that the Kentucky high court had to consider the total circumstances surrounding the case, not just the fact the police had created the circumstances. The following year, in 2012, the Kentucky Supreme Court reheard the case and once again found for the defendant. This time, the state Court ruled that the police could not rely on “possible” destruction of evidence, since the officer’s interpretation of the situation was too subjective. The state of Kentucky is re-petitioning the United States Supreme Court to challenge this latest argument.

Although the police should be able to prevent a crime from occurring if they believe a crime is in progress, police being in “hot pursuit” should not be an exception to the warrant requirement if the police are conducting a search outside the pursuit. First, and most obviously, King was not the person the police were pursuing. A criminal should not be able to evade the law by hiding in an apartment, but in this case the police were not even aware of King’s presence until they entered his home. There is a very weak connection between the pursuit and the defendant, so weak that the police should not be allowed to rely on the pursuit for the warrantless search.

The police would reply that the connection is strong enough. Both the suspect and the defendant were committing a similar crime, possession of marijuana, and the suspect had fled into the building King was residing in. The police had to search the building if they wanted to capture the drug dealer, and it is probable that the suspect would be where the marijuana was. I find it unlikely though, that the drug dealer would stop in his escape attempt to smoke a joint. The search of King’s apartment was a pit stop to apprehending the criminal the police were pursuing. Given that drug crimes are typically non-violent crimes, the police could have obtained a warrant if they wanted to search the King residence.

Second, I would not leave it to police discretion to determine when the warrant requirement should kick in. The purpose of the Bill of Rights is to limit state power. Allowing the police to make their own judgments regarding enforcement of a rule designed to inhibit the police is contradictory to the right of citizens to be secured in their own homes absent a warrant. The state of Kentucky might say that procedure should not be a barrier to the fact that King was actually committing a crime. Kentucky would say that the proper course of action is to punish the police officers for breaking the law, rather than allow the defendant to walk free on a technicality.

That recommendation, however, is absurd. Punishing the police officers instead of allowing the defendants to go free is no guarantee that the police will not continue to violate other citizen’s rights in the future. Many officers may decide that the risk of suspension or even termination is worth putting more criminals in jail. More importantly though, individual rights, which the warrant requirement is one of, should focus on protecting individuals rather than punishing the police. Hopefully the United States Supreme Court will remember that the judiciary is the branch of government tasked with protecting individual rights and the Justices will make liberty a New Year’s Resolution for 2013.

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