August
28, 1998 the Elevent Circuit issued its decision in Washington, reversing
Mr. Washington's conviction, in a two to one decision for publication.
In Federal District Court for the Middle District of Florida, Jacksonville Division, Magistrate Judge John E. Steele heard testimony in the suppression hearing of United States v. Alfred Emanuel Jones, et al., which has cast doubt on the validity of all drug dog alert based searches.
It has long been established that an "alert" from a trained drug-sniffing dog constitutes probable cause for a search. In the context of an alert on an automobile, because of the mobility of automobiles, the law has developed that the ordinary requirement that a search warrant first be obtained (from a neutral and detached magistrate judge based upon the judge's independent finding of probable cause), may be dispensed with. However, there still must be a determination of probable cause even on an automobile search. It is just that a magistrate judge does not first have to issue a search warrant. Many such searches are based upon an "alert" from a trained drug sniffing dog, from a police canine unit.
Some courts have been willing to consider the reliability of the dog that alerted. If it can be established that the dog in question was known by the police officer to not be reliable, then the dog's "alert" cannot be the basis for a finding of probable cause. Typically the police dog handler testifies that his dog is 90% or more reliable, that is, that his dog correctly alerts to drugs in 90% or more of the occasions that he alerts. Certainly anyone would agree that a dog that can accurately smell and alert to the presence of drugs 90% or more of the time is reliable enough to be the basis of a probable cause determination.
However, in this case after prolonged cross-examination by A. Russell Smith, who was court-appointed counsel for a co-defendant in the case, the Florida Highway Patrol dog handler admitted that in fact the dog's alerts were only followed up by actual discovery of controlled substances in about 10% of the cases in which the dog alerted.
Furthermore, the officer, a 26 year veteran with the Florida Highway Patrol, testified that in his experience this was typical or standard for such dogs. When asked to explain apparently contradictory testimony concerning the alleged reliability of the dog, the officer explained that he and other handlers were taught in their training that the dog is never wrong - even when no drugs are found - it is only that the drugs were so well hidden they could not be found or that they had recently been moved.
The Magistrate is yet to issue his report, but given this testimony, it is clear that a search based on this dog's alert can not meet the constitutional standard of a finding of probable cause.
How many earlier cases have been mistakenly determined on the basis
of misleading testimony concerning the reliability of such dog alerts?
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A three judge panel of the Tenth Circuit Court of Appeals issued an historic opinion July 1, 1998 in United States v. Singleton. In this opinion, written by Judge Kelly, a Bush appointee, the court unanimously held that the plain language of the federal anti-bribery statute, 18 U.S.C. Section 201(c), prohibits the government's standard practice of offering sentence reductions for cooperating codefendants and other such informant witnesses.
The decision threw the United States Justice Department into a panic. Within days, however, on July 10, 1998, the Tenth Circuit vacated the Singleton opinion and ordered a rehearing en banc, that is, by the entire Tenth Circuit Court of Appeals. Oral arguments have been scheduled for the week of November 16, 1998 in Denver. That will be a hot ticket for sure among the criminal defense bar, all of whom will want to hear the case argued.
DOJ is said to be discussing proposing an amendment to the statute by which Congress would expressly exempt the government from the reach of the bribery statute.
If anyone you know has been the victim of this type of "bribery" testimony, please alert such person to contact his attorney immediately to discuss possible remedies, which may include a motion under either 28 U.S.C. Sections 2241 or 2255.
What follows is the full text of the opinion. Click
here to go to Singleton Decision.
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The May edition of this newsletter discussed in the headline story the oral argument Mr. Kent had in United States v. Willie Washington. That case involved a search of bus passengers in which the passengers were expressly not told they had a right to refuse to consent to the search.
That story described Judge Roney's apparently favorable reception to Mr. Kent's arguments made at oral argument before the three-jduge court of appeals panel.
Since then Judge Roney has issued an opinion in a very similar case, United States v. Guapi, a bus search case out of Mobile, Alabama. The same legal issue was presented - a bus search in which passengers were expressly not told that they were free to not consent to the search. In that case the court has held that the search violated the Constitution because it was not free and not voluntary, focusing on the failure of the law enforcement officers to advise the passengers of their right to refuse to consent.
Judge Roney apparently relied upon Mr. Kent's legal argument in reaching his conclusion.
The initial version of the court's opinion in Guapi that was
released on the internet by the court of appeals, included a sentence that
referred to the Washington case and that said that the two cases were being
decided the same way. In a later version of the opinion the sentence
concerning the Washington case was deleted, so the outcome their is uncertain
as of this date.
August
28, 1998 the Elevent Circuit issued its decision in Washington, reversing
Mr. Washington's conviction, in a two to one decision for publication.
What follows is the full text of the Guapi decision: Guapi
The Eleventh Circuit's opinion in United States v. Grimes was a major disappointment. This case was argued by Mr. Kent in December of last year before a three judge panel of the Eleventh Circuit Court of Appeals. The case presented ten issues, a number of which were issues of first impression in this circuit. Although all the issues presented by the case were important, a number were especially noteworthy, in particular, the violation of Mr. Grimes's Fifth Amendment Right to Counsel, which he had expressly invoked by signing a written "Edwards" notice when he was arraigned in state court here in Jacksonville on state charges and had a state public defender appointed to represent him. As is standard practice for the state public defender in Jacksonvill, Mr. Grimes was provided a written notice to sign which was then given to the sherrif's office, court and state attorney, by which he invoked his right to remain silent and right to not be questioned by police about the crime for which he had been arrested or about any other crime without his lawyer being present.
This form is based on a famous older Supreme Court decision called Edwards v. Arizona, hence the form is commonly known as the Edwards notice.
Normally a person's right to counsel is thought to derive from the Sixth Amendment to the Constitution, which amendment expressly provides the right to assistance of counsel at trial. This right to counsel, however, has been held to only "attach" from and after and during all "critical stages" of a court case, i.e., from and after first appearance in court. In other words, you do not have a right to counsel before you are charged with a crime and before you are brought to court and appear before the judge.
However, the Fifth Amendment provides a person with the right to remain silent when questioned by police. That right applies even before a person is ever charged and comes to court. Thus, when police try to question a suspect, the suspect has the right to "invoke the Fifth," that is, exercise his right to remain silent.
In another older famous case, Miranda v. Arizona, the Supreme Court held that once a person is "in custody," i.e., under arrest, before he can be questioned he must be advised that he has this Fifth Amendment right to remain silent and he must be told that he has the right to appointment of counsel and the advice of counsel before giving up his Fifth Amendment right to remain silent. From this line of cases came the concept of the "Fifth Amendment Right to Counsel."
This right to counsel is not dependent upon a charge being filed and a person being brought to court. It applies generally to one's right to remain silent. Thus it is said to not be "offense specific," but can be exercised as to any potential crime, not just the crime that a person has presently been arrested for.
This is the right to counsel Mr. Grimes invoked using the form his state public defender provided at his first court appearance.
The joint federal-state task force investigating him as the suspect in a fatal bombing disregarded his invocation of his rights by this form. Instead, they infiltrated a confidential informant into his life, who led Mr. Grimes to make statements that the police took to be incriminating. Mr. Kent argued that Mr. Grimes properly invoked his right to not be questioned by the police and that the use of this informant to question him, while he was in jail, was a violation of his Fifth Amendment right to counsel and right to remain silent.
The Eleventh Circuit disagreed. This issue and the other issues of the case are discussed in the full text of the opinion below. Mr. Kent has petitioned the full Eleventh Circuit to reconsider the case en banc or for the three judge panel to reconsider its decision. A ruling on this motion is pending. If denied, Mr. Kent will petition the Supreme Court to review the case.
Grimes Decision
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The internet version of this newsletter and other matters of interest can now be found on the Kent's Federal Criminal Defense Update webpage. The address is:
www.jacksonville.net/~wkent
Kent's Federal Criminal Defense Update
Check it out; bookmark it and return to it for updates. The webpage is updated as events warrant, sometimes on a daily basis. You can provide feedback via email directly from the webpage, or by email to either:
or
The 11th Circuit has kept busy since the last news letter with a number of noteworthy decisions being issued.
July 11th Circuit Criminal Cases
Representaciones
en el Exterior
Consulado General
Dirección: 1200 N.W. 78th. Ave.,
Suite 200 33126 Miami Fl.
Tels:(305) 716-4979/ 716-4953/85
Fax: (305) 593-2758
Cónsul General
Luis Ortiz Monasterio Castellanos
*****
Consulado de Carrera
Dirección:823East Colonial Drive
Orlando, Florida, 32803
Tels: (407) 894-0514
Fax: (407) 895-6140
Titular
Martín Torres Gutierrez Rubio
Your lawyer is William M. Kent. Mr. Kent was first admitted to practice by the State Bar of Florida in 1978. He has also been admitted to practice before the United States Tax Court (1979), the State bar of California (1980), the Middle District of Florida (1989) and the United States Supreme Court (1992). Mr. Kent is one of three lawyers in the Jacksonville office of the Federal Public Defender. The other attorneys are James H. Burke, Jr., who is the Managing Assistant in charge of the Jacksonville office and Mark Rosenblum. Both Mr. Burke and Mr. Rosenblum have over twenty years criminal law experience. The office has a full time Jacksonville investigator, Mr. Jerry Cribbs, and a paralegal specialist (who is also the only Federal Court Certified Spanish Interpreter in Jacksonville), Mr. Stephen Kruer. The Jacksonville office's administrative and support staff consists of Mrs. Debbie Dixon and Mrs. Dottie Began. The office hours are 8:30 to 5:00 Monday through Friday. Collect phone calls are accepted during office hours at (904) 232-3039. The office fax number is 232-1937. Mr. Kent's E-mail address is Bill_Kent@fpdflm.org and wkent@mediaone.net. His WEB Page is found at www.jacksonville.net/~wkent.
If you are held in custody without bond, Mr. Kent will normally visit you once a week at the jail. If you are released on bond, please contact Mr. Kent at least weekly.
It is office policy to provide you with copies of all correspondence,
pleadings and documents coming into or going out of the office on
your case. Exceptions may be made in the case of certain sensitive
documents relating to governmental cooperation for clients who are
in custody.
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Max's eyes were wet. Slowly he extended his hand. Bigger
shook it.
"Good-bye, Bigger," he said quietly.
"Good-bye, Mr. Max."
Max groped for his hat like a blind man; he found it and jammed it on his head. He felt for the door, keeping his face averted. He poked his arm through and signaled for the guard. When he was let out, he stood for a moment, his back to the steel door. Bigger grasped the bars with both hands.
"Mr. Max . . ."
"Yes, Bigger." He did not turn around.
"I'm all right. For real, I am."
"Good-bye Bigger."
"Good-bye, Mr. Max."
. . .
Native Son, by Richard Wright, 1940.
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