Criminal Law

A Confounding Victory


This week's Daily Record column is entitled "A Confounding Victory."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.


A Confounding Victory

A rule that gives police the power to conduct such a search whenever an individual is caught committing a traffic offense, when there is no basis for believing evidence of the offense might be found in the vehicle, creates a serious and recurring threat to the privacy of countless individuals. Indeed, the character of that threat implicates the central concern underlying the Fourth Amendment —the concern about giving police officers unbridled discretion to rummage at will among a person’s private effects.

—ARIZONA V. GANT, NO. 07-542

Last week, on April 21, the U.S. Supreme Court decided Arizona v. Gant, a decision being touted as a constitutional victory by privacy rights advocates.

The court held that arresting officers may search a vehicle incident to arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search, or if the officers have a reasonable belief that the vehicle contains evidence of the crime for which the person is being arrested.

The decision is both fascinating and a profound example of why Fourth Amendment jurisprudence is worth little more than the paper on which it’s written.

What is most fascinating about the decision is the unlikely judicial alliances found in the 5-4 decision. The majority opinion was authored by Justice Stevens, who was joined by the rather motley crew of Justices Scalia, Thomas, Souter and Ginsberg. Chief Justice Roberts and Justices Kennedy, Alito and Breyer dissented.

That Justice Scalia joined the majority in limiting the scope of a search incident to arrest is, in and of itself, unusual. For so-called “liberal” Fourth Amendment champions such as myself, however, Justice Scalia’s concurring opinion is all the
more surreal.

First, Justice Scalia indicated that he would go further than the majority and hold that a search of a vehicle incident to arrest is reasonable only when the police have probable cause to believe the vehicle contains evidence of a crime. Justice Scalia
explained that officer safety procedures dictate that the arrestee should be removed from the car prior to the arrest, therefore the arrestee should virtually never be within reaching distance of the passenger compartment, rendering that exception unnecessary.

Even more confounding is that, when discounting that exception, Justice Scalia acknowledged that police actions do not occur in a vacuum. He explained that the exception allowing officers to search for weapons within reach of the passenger compartment “leaves much room for manipulation, inviting officers to leave the scene unsecured (at least where dangerous suspects are not involved) in order to conduct a vehicle search.”

And, with that simple statement, Justice Scalia broke the golden rule of Fourth Amendment jurisprudence, forever changing the course of Constitutional Law classes across this great land. Hypothetical factual scenarios will necessarily have to be rooted in reality from now on.

No longer will robot-like police officers, devoid of emotion or ulterior motives star in hypothetical arrests. Rather, the factual scenarios will take into account that law enforcement officers are just as human as the rest of us and enter the field carrying
their own set of psychological baggage: ripe with prejudices and under pressure, both professional and personal.

Hypothetical examples will be grounded in reality, with the full knowledge that police officers not only are tempted to, but actually do, alter the sequence of events occurring before an arrest to conform to current Fourth Amendment jurisprudence. Evidence obtained illegally ultimately is rendered admissible after creative narration in police reports.

That is the reality, rarely acknowledged, when carefully scripted, fictional scenarios reach the hallowed halls of the U.S. Supreme Court.

That Justice Scalia, of all people, acknowledged that fact, makes this particular victory all the more confounding.

Does technology have to trump privacy rights?


This week's Daily Record column is entitled "Does technology have to trump privacy rights?"

A pdf of the article can be found here and my past Daily Record articles can be accessed here.


Privacy advocates in recent years have expressed the concern that privacy is disappearing as people voluntarily disclose all kinds of information —including their every waking move — on the Facebook, Twitter and other Internet platforms.

They fear that companies, such as Internet giant Google, are collecting extensive amounts of data about users’ spending habits and preferences in ways never before possible.

The issue of the loss of privacy is all the more disturbing when the government, as opposed to private entities, uses the newfound technologies to collect information about the movement, actions and habits of its private citizens.

Last week, the New York State Court of Appeals heard oral arguments regarding that very issue. At issue in People v. Weaver was the admissibility of evidence obtained without a warrant by law enforcement through the use of a GPS tracking device.

The courts below concluded that the evidence was admissible. In People v. Weaver, 52 A.D.3d 138 (Third Dept. 2008), the majority held that the defendant had no
expectation of privacy regarding public movements that would have been visible via the naked eye:

Inasmuch as constant visual surveillance by police officers of [the] defendant’svehicle in plain view would have revealed the same information and been just as intrusive, and no warrant would have been necessary to do so, the use of the GPS device did not infringe on any reasonable expectation of privacy and did not violate defendant’s Fourth Amendment protections. See People v. Wemette, 285 AD2d 729, 729- 730 (2001), leave denied 97 NY2d 689; People v. Edney, 201 AD2d at 499.

Judge Leslie E. Stein, issued a lengthy dissent, opining that a warrant should have been required since technology increased the intrusiveness and duration of the monitoring, necessarily altering the analysis:

[W]hile the citizens of this state may not have a reasonable expectation of privacy in a public place at any particular moment, they do have a reasonable expectation that their every move will not be continuously and indefinitely monitored by a technical device without their knowledge, except where a warrant has been issued based on probable cause. … At some point, the enhancement of our ability to observe by the use of technological advances compels us to view differently the circumstances in which an expectation of privacy is reasonable. In my opinion, that point has been reached in the facts before us.

During oral arguments at the Court of Appeals, judges came down on both sides of the issue.

Judge Eugene Pigott seemed to agree that a warrant was not required prior to placing a GPS device on a car parked in a public place: “They have a device here that they at some point decided they wanted to use. … And there’s nothing that says they cannot.”

Chief Judge Jonathan Lippman, on the other hand, expressed concern regarding privacy rights if limitations are not placed on the ability of law enforcement
to indefinitely monitor a person’s each and every move: “We have to also consider the opportunity for abuse.”

Chief Judge Lippman’s point is of the utmost impor- tance. Technological advances are changing our lives in ways we never before imagined. New devices are being invented that enhance the ability of law enforcement officers to observe and follow our movements in ways not envisioned just 10 years ago. Who knows what capabilities law enforcement will have 20 years from now?

It is for that very reason that reasonable limits must be set regarding the warrantless use of technologies that enhance the senses of law enforcement officers.

Certainly law enforcement should be able to use the most up-to-date technologies available to them, but not indiscriminately.

Judicial oversight of the use of advanced technologies is necessary to prevent baseless, invasive and limitless intrusions into the lives of law-abiding Americans.

As technology transforms our lives, the interpretation of our laws must adapt to realities not envisioned when the laws were first established. The failure to do so will render our laws and constitutional protections obsolete, irrelevant and ineffective.

Carelessness Trumps the Exclusionary Rule


This week's Daily Record column is entitled "Carelessness Trumps the Exclusionary Rule."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.


Carelessness Trumps the Exclusionary Rule

In February 2008, I wrote an column about the U.S. Supreme Court’s decision to grant certiorari in Herring v. U.S.

I predicted the court would conclude that the exclusionary rule did not apply to the facts of the case. At issue in Herring was whether the exclusionary rule should apply to evidence discovered during an unlawful arrest, when a suspect’s arrest is based on erroneous information from another law enforcement officer. Herring was arrested based on an arrest warrant that was recalled, but not purged, from the
computer database, as it should have been.

Earlier this month, the court issued its decision in Herring v. U.S., No. 07-513, and confirmed my suspicion that it would, once again, chip away at the exclusionary rule:

In light of our repeated holdings that the deterrent effect of suppression must be substantial and outweigh any harm to the justice system, e.g., Leon, 468 U. S., at 909–910, we conclude that when police mistakes are the result of negligence such as that described here, rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not ‘pay its way.’ Id., at 907–908, n. 6 (internal quotation marks omitted). In such a case, the criminal should not ‘go free because the constable has blundered.’”People v. Defore, 242 N. Y. 13, 21, 150 N. E. 585, 587 (1926) (opinion by Cardozo, J.).

The holding is problematic for any number of reasons, but two of the court’s underlying assumptions are particularly disturbing: One being that any deterrent effect of the exclusionary rule in the case would be “marginal”; the second, that all arrestees are necessarily criminals.

Justice Ginsberg wrote the dissent in the 5-4 decision, noting that the most troublesome outcome likely will be an increase in the wrongful arrests of innocent citizens:

[T]he ‘most serious impact’ of the Court’s holding will be on innocent persons ‘wrongfully arrested based on erroneous information [carelessly maintained] in a computer data base.'

She also addressed the concern I previously raised —that a decision holding the exclusionary rule inapplicable in such a situation would remove any incentive to promptly remove recalled arrest warrants from government databases:

The Court assures that ‘exclusion would certainly be justified’ if ‘the police have been shown to be reckless in maintaining a warrant system, or to have knowingly made false entries to lay the groundwork for future false arrests.’ … This concession threaten individual liberty, are susceptible to deterrence by the exclusionary rule, and cannot be remedied effectively through other means. … In keeping with the rule’s ‘core concerns,’ … suppression should have attended the unconstitutional search in this case.

As Justice Ginsberg notes, widespread use of computer databases is now the norm in America and massive amounts of data are collected, stored and shared among various governmental agencies.

Undoubtedly, such sharing of information has the potential to increase law enforcement’s ability to protect U.S. citizens from harm. The Herring decision, however, essentially guarantees just the opposite will occur. As the economy falters
and budgets tighten, governmental entities most certainly will fail to allocate sufficient resources toward the periodic regulation and review of law enforcement databases, since there is now little, if any, incentive to do so.

As a result, ordinary, law-abiding citizens —especially those with common names or names resembling those on terror watch lists —will bear the brunt of the decision.
Such an outcome is unfortunate, unacceptable and un-American.

Live Blogging at NY Court of Appeals Criminal Justice CLE-Pt. V

Checkmark Next up, questions from the audience and corresponding answers:

  • Unknown re: whether NY Court of Appeals will permit electronic filing
  • Per Judge Jones--inescapable fact of life that entire legal community moving towards electronic filing, technological advancements--but how quickly we'll get there is unknown
  • Per John Speranza--make a story out of your briefs--use creativity--make it interesting
  • Judge Pigott referenced a case out of Oneida County-People v. Pepe as an example of a great prosecution brief that told a great story
  • Per Judge Jones-avoid sequential date story telling--tell a story in the Statement of Facts and try to phrase it in away that more closely reflects the main issues in the case
  • Per John Speranza-flamboyant language/descriptions can liven up a brief
  • Question re: depraved indifference standards/decisions.  Per Judge Pigott, hard to predict where it's going. Difficult and evolving area of law-new cases with new factual scenarios come down and are increasingly difficult interpret. Per Judge Jones-part of the problem with the analysis is the inability to determine whether "depraved indifference" describes a mens rea or a set of circumstances.
  • How to make leave applications compelling. Put main issue up front and be concise and persuasive per Judge Jones. Don't clutter up strongest argument.  PerJudge Pigot-use a rifle not a shotgun and request phone conference in letter accompanying leave application if feel like it would help.

Live Blogging at NY Court of Appeals Criminal Justice CLE-Pt. IV

Jones Next up, Hon. Theodore T. Jones:

  • It is an unfortunate fact of life that you must practice law defensively in the current day.
  • Judge Jones personally looks at all leave applications.
  • Places them in piles--meritless and potentially meritorious.
  • Disagrees with assertion that if application sits around with the court for too long, it's bad news. In his chambers-some meritorious cases actually take a while to process once flagged as possibly meritorious.
  • Judge Jones likes to speak with attorneys on phone, so may want to suggest a phone conference in your letter accompanying the leave application.
  • Most preservation issues are confronted and resolved in the Appellate Division, and if you lose on that basis at AD, it's an uphill battle.  Make best, persuasive argument regarding preservation at intermediate appellate court.

Live Blogging at NY Court of Appeals Criminal Justice CLE-Pt. III

Pigott Next up, the Hon. Eugene Pigott, such a great speaker/presenter--main points:

  • Best advice to defense counsel-win early, so need to appeal;)
  • Begin all arguments with "Judge you're out of order, this whole court's out of order!" ;)
  • Timely preservation--important, but does it assist your opponent in making the case?
  • Preservation important to allow the trial judge chance to consider issue, but it's also important for the appellate courts.
  • Find way to get trial judge to allow you to get argument on the record, even where judge insists s/he "understands the argument."
  • Can be difficult to younger attorneys, no matter how knowledgeable, to convince a judge, so you have to assert yourself.
  • Judge Pigott reviews applications himself.
  • Jokingly claims he grants all 4th Department applications;)
  • A mistake ADA's tend to make is to fail to respond to leave applications--generally in other departments, of course, not the 4th Dept.
  • Lawyers work too hard and get too myopic--need to look at the big picture/statewide implications
  • Attach exhibits to leave applications if relevant
  • Attach stuff to appellate briefs as well, rather than requiring judges to thumb through record
  • Get out of "your lawyer suit"--be imaginative.
  • Follow rules-don't violate them-but don't be confined by them.

Live Blogging at NY Court of Appeals Criminal Justice CLE

Checkmark I'm at a Monroe County Bar Association seminar "The Court of Appeals Comes to the 3rd Annual Criminal Justice Forum". 

The Guest Speakers are Hon. Theodore T. Jones and Hon. Eugene F. Pigott, Jr., Associate Judges of the NYS Court of Appeals.

The moderator is acclaimed local criminal defense attorney John F. Speranza.

Panelists are Wendy E. Lehman, Special Assistant District Attorney and the illustrious Brian Shiffrin, First Assistant Public Defender, and New York criminal defense appellate attorney extraordinaire.

Co-chairs are Hon. Thomas M. Van Strydonck, Supreme Court, Adminstrative Judge, 7th Judicial District and Hon. Joseph D. Valentino, Supreme Court Justice.

More to follow...

Criminalizing the Victims


This week's Daily Record column is entitled "Criminalizing the Victims."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.


Criminalizing the Victims

The Appellate Division, Fourth Department on Oct. 10 declared that the City of Rochester’s youth curfew was unenforceable in Anonymous v. City of Rochester, 2008 N.Y. Slip Op.

At issue in the case was the legality of the youth curfew, which became effective Sept. 2006. The ordinance made it unlawful for those younger than 17 to be in a public place Sundays through Thursdays from 11 p.m. and 5 a.m., and between midnight and 5 a.m. on Fridays and Saturdays.

A minor accused of violating curfew could immediately be taken into custody and a conviction of the
ordinance constituted a “violation,” as defined in the Penal Law and was punishable by a sentence of up to 15 days in jail.

The “findings and purpose” of the youth curfew are found in section 45-1 of the ordinance, which provides that:

A. A significant number of minors are victims of crime and are suspects in crimes committed during the nighttime hours, hours during which minors should generally be off the streets
and getting the sleep necessary for their overall health and quality of life. Many of these victimizations and criminal acts have occurred on the streets at night and have involved violent crimes, including the murders of teens and preteens.

B. While parents have the primary responsibility to provide for the safety and welfare of minors, the City also has a substantial interest in the safety and welfare of minors. Moreover, the City has an interest in preventing crime by minors, promoting parental supervision through the establishment of reasonable standards, and in providing for the well-being of the general public.

C. A curfew will help reduce youth victimization and crime and will advance the public safety, health and general welfare of the citizens of the City.

The court balanced the government’s interests in enacting the statute with the constitutional rights of the plaintiffs and concluded the ordinance was inconsistent with state law as it applied to minors
younger than 16 and imposed unconstitutional restrictions on both the parents and minors affected by the curfew.

In reaching its decision, the court noted that the city failed to establish that the imposition of the curfew actually achieved the stated objectives behind its implementation:

The Mayor and the Chief of Police expressed their opinions and beliefs concerning the particular vulnerability of juveniles during nighttime hours, but those opinions and beliefs are insufficient to demonstrate a substantial relationship between the ordinance and its goals. …[T]he information concerning the results of the implementation of juvenile curfews in other municipalities is equivocal at best and does not establish the necessary relationship between the ordinance and the goals of reducing juvenile crime and victimization.

I find it particularly ironic that one of the primary goals of the youth curfew was to reduce the victimiza-
tion of our city’s youth since, for some, it may have had the exact opposite effect.

During the four years that I was a Monroe County assistant public defender, I was entrenched in the lives
of a certain segment of the city’s population. Many of the people I represented were involved in the criminal justice system as a result of horrible drug addictions. And, many of these people, most of whom were barely able to take care of themselves, had children.

I can only imagine the state of the home lives of their children. Physical and sexual abuse is commonplace in such households, as the addicts perpetuate the cycles of abuse to which they were
subjected as children.

When your caregiver is addicted to drugs, the streets may seem a far safer alternative than being trapped in a small apartment with an addict, subject to their unpredictable, erratic and abusive behavior. 

Where the objectives of a youth curfew are unproven and unrealized, it is unforgivable to jail children for taking to the streets as a form of escape and self-preservation.  Criminalizing attempts to avoid victimization simply is not the answer.

Is justice obtained if not consistently applied?

Drlogo11 This week's Daily Record column is entitled "Is justice obtained if not consistently applied?"

A pdf of the article can be found here and my past Daily Record articles can be accessed here.


Is justice obtained if not consistently applied?

The death penalty is one of the few issues with which I have difficulty reconciling my rather liberal criminal defense tendencies.

While the concept of the state executing another human being is repugnant to me, I find that on rare occasions the sordid facts of a highly disturbing case cause a little voice inside
my head to whisper convincingly, “if ever a case merited such a severe penalty, it’s this one.”

The recently decided U.S. Supreme Court opinion, Kennedy v. Louisiana, No. 07-343, is just such a case.

As a mother of two children, I am particularly repulsed by allegations of a rape committed against a defenseless and helpless child. The underlying facts of this case are heart wrenching. The victim was just eight years old when she was brutally raped by her stepfather, resulting in injuries so severe that she required emergency reparative surgery.

Of all the non-fatal cases that might warrant the death penalty, this reprehensible crime most certainly fits the bill. This poor child’s life will never be the same.

Not surprisingly, my feelings were mixed when I learned the court held that imposing the death penalty in child rape cases violated the Constitution. Specifically, the majority of the court concluded that the Eighth Amendment prevented Louisiana from imposing the death penalty for the rape of a child in cases where the crime did not result, nor was intended to result, in the death of the victim.

However, I began to experience an overwhelming sense of relief as I read the majority opinion. The decision was well grounded, both in policy and legal precedent. Despite the horrendous facts of the
case, the court made the correct determination and spared us, as a society, of the burden of attempting to navigate an untraversable slippery slope.

The crux of the issue was not of retribution, but rather, one of practical application. The court focused on the severity and finality of the death penalty and the likelihood that its application would prove to be anything but consistent in child rape cases:

“We find it difficult to identify standards that would guide the decision maker so the penalty is reserved for the most severe cases of child rape and yet not imposed in an arbitrary way… In this context, which involves a crime that in many cases will overwhelm a decent person’s judgment, we have no confidence that the imposition of the death penalty would not be so arbitrary as to be ‘freakis[h].’ … We cannot sanction this result when the harm to the victim, though grave, cannot be quantified in the same way as death of the victim. … Evolving standards of decency are difficult to reconcile with a regime that seeks to expand the death penalty to an area where standards to confine its use are indefinite and obscure.”

The potential for the arbitrary application of the death penalty in child rape cases is extraordinary. The lack of uniform implementation of such an irrevocable and final sentence would be anything but just. And justice simply cannot be assured in the absence of consistency.

Unlikely Inferences Do Not a Felony Make

Drlogo11 This week's Daily Record column is entitled "Unlikely Inferences Do Not a Felony Make."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.


Unlikely Inferences Do Not a Felony Make

Last week the New York State Court of Appeals handed down its decision in People v. Finley,2008 WL 2338613.

At issue was whether small amounts of marijuana smuggled into New York correctional facilities by inmates constituted “dangerous contraband” pursuant to Penal Law §§ 205.00(4) and 205.25(2), thus rising to the level of a felony.

The court considered appeals from decisions of the Third and Fourth Departments, both of which concluded the possession of marijuana did, in fact, amount to felonious conduct, even though the amounts possessed were relatively small.

The Court of Appeals framed the issue as follows: “[W]hether the imposition of felony consequences, based upon possession of small amounts of marihuana, which would constitute a violation outside of prison (see Penal Law §§ 221.05, 221.10 [2] [absent aggravating circumstances, not present here, possession of 25 grams or less of marihuana is a non-criminal violation]), comports with the Legislature’s intent as codified in Penal Law §§ 205.00 (4) and 205.25 (2).”

In reaching its determination, the court first noted the Penal Law created a distinction between “contraband” and “dangerous contraband.”

The possession of ordinary contraband, simply a misdemeanor, is defined as “any article or thing which a person confined in a detention facility is prohibited from obtaining or possessing by statute, rule, regulation or order.” Possession of “dangerous contraband,” on the other hand, is defined as that “which is capable of endanger[ing] the safety or security of a detention facility or any person therein.”

In the underlying cases, the Appellate Divisions concluded the inmates’ possession of a small amount of marijuana created a potentially dangerous condition, which could feasibly result in disobedience and altercations among inmates and with correctional officers.

The Court of Appeals disagreed, based in part on the legislative intent behind the passage of the Penal Law provisions at issue. 

The court noted that, by enacting legislation creating levels of penalies for the possession of “contraband” as opposed to “dangerous contraband,” the Legislature obviously intended to differentiate between the two.

The court stated that: “Under the people’s view, the Legislature intended a definition of dangerous contraband so broad that it would capture any item that, when present in a detention facility, could lead to altercations and inmate disobedience. But the fatal flaw in the people’s argument is that their proposed construction would effectively nullify the misdemeanor crime of promoting contraband in the second degree. ... If, as the Appellate Divisions here held, testimony as to these possibly pernicious secondary effects were sufficient to establish the felony promoting contraband offense then every item of contraband could be classified as dangerous.”

Finally, the court concluded contraband is dangerous only if there is a substantial probability the item will be used in a manner likely to cause death or serious injury; facilitate an escape or pose a threat to institutional safety or security.

This is the only conclusion that makes sense.

I reviewed the Appellate Division decisions last year when preparing the supplement to “Criminal Law in New York, Fourth Edition,” a Thomson-West treatise that I co-author with Judge Karen Morris and Gary Muldoon.

I recall thinking the Appellate Divisions’ conclusions were somewhat attenuated from reality, given the possibility of institutional chaos resulting from possession of such a small amount of marijuana is remote, at best.

This latest decision, therefore, is a pleasant and unexpected surprise. After all, it’s not every day the highest court in New York agrees with the conclusions of a criminal defense attorney such as myself.