Monthly Archives: October 2012

New K2 Case Charged in Macomb County – Multiple People Charged

Details to come..

AP IMPACT: After 40 years, $1 trillion, US War on Drugs has failed to meet any of its goals

MEXICO CITY –  MEXICO CITY (AP) — After 40 years, the United States‘ war on drugs has cost $1 trillion and hundreds of thousands of lives, and for what? Drug use is rampant and violence even more brutal and widespread.

Even U.S. drug czar Gil Kerlikowske concedes the strategy hasn’t worked.

“In the grand scheme, it has not been successful,” Kerlikowske told The Associated Press. “Forty years later, the concern about drugs and drug problems is, if anything, magnified, intensified.”

This week President Obama promised to “reduce drug use and the great damage it causes” with a new national policy that he said treats drug use more as a public health issue and focuses on prevention and treatment.

Nevertheless, his administration has increased spending on interdiction and law enforcement to record levels both in dollars and in percentage terms; this year, they account for $10 billion of his $15.5 billion drug-control budget.

Continue reading

Will Supreme Court turn up its nose at drug-sniffing dogs?

(Reuters) – Two dogs, a chocolate Labrador retriever named Franky and a German shepherd named Aldo, should have their day at the U.S. Supreme Court.

The court is scheduled on Wednesday to hear Florida’s appeal of two decisions by that state’s highest court that found the detection of drugs by trained police dogs had violated the constitutional ban on unreasonable searches and seizures under the Fourth Amendment of the U.S. Constitution.

These arguments involve distinctly different issues: whether a dog can sniff outside a home without a warrant, and how qualified a dog must be to do a legitimate sniff.

They give the Supreme Court a chance to extend, or limit, prior decisions giving police a long leash to use dogs, including for suitcases at airports and cars stopped at checkpoints.

“If the court vindicates the ability of police to use dogs without probable cause, and that a sniff outside a car justifies searching that car, it could enhance their ability to use dogs for law enforcement,” said Richard Garnett, a University of Notre Dame law professor and clerk for former Chief Justice William Rehnquist.

Like others in law enforcement, Florida maintains that dog “alerts” are not searches because they uncover illegal activities that deserve no privacy protection.

The retired Justice David Souter mocked that idea in a dissent from a 2005 pro-sniff decision, saying it supposes that a trained canine becomes an “infallible dog” that never errs.

At least 23 U.S. states joined each of Florida’s appeals, calling drug-detecting dogs “essential weapons” at the forefront of efforts to stop illegal drug production and sales.

The Supreme Court is often their ally in search cases, typically siding with the police.

SANCTITY OF THE HOME

One of Wednesday’s cases, Florida v. Jardines, concerns a December 5, 2006, search outside Joelis Jardines’ home near Miami.

A “crime stopper” had tipped police that marijuana was growing inside. Relying on that tip, a detective, joined by Franky, approached. Trained to find the strongest odor, Franky went to the front door, sniffed the base, and sat down.

That was the alert his handlers were looking for. After obtaining a search warrant, police found marijuana plants inside the home. Jardines was arrested for possessing more than 25 pounds of marijuana, and stealing the electricity to grow it.

In voiding the search, Florida’s highest court called Franky’s sniff an “unreasonable government intrusion into the sanctity of the home.” There, it said, the expectation of privacy was much greater than in a car or an airport.

The court also likened Franky to the heat-sensing thermal imagers that the U.S. Supreme Court, in a 2001 decision that cut across ideological lines, said could not without a warrant be used outside a home to detect marijuana growing inside.

Where the government uses a device “not in general public use” to uncover details about a home, “the surveillance is a ‘search’ and is presumptively unreasonable without a warrant,” Justice Antonin Scalia then wrote for a 5-4 majority.

“Jardines is a line-drawing case: the question is can police use the dog at the front door,” said Orin Kerr, a law professor at George Washington University and former clerk to Justice Anthony Kennedy. “If a warrant were needed, police would never use the dog at a house, because then they could just go inside.”

TELLTALE NERVES

Wednesday’s other case, Florida v. Harris, involves a search not of a house, but of Clayton Harris’ pickup truck.

An officer pulled over Harris near Bristol, Florida, in the state’s panhandle, on June 24, 2006, after seeing that the truck had an expired tag. An open beer can lay in the cup holder.

Nervous, shaking and breathing rapidly, Harris would not let the officer search his truck. Out came Aldo, who was led around the truck for a “free air sniff.”

Near the driver’s door handle, Aldo gave his alert, becoming excited and then sitting down. The officer then searched the truck’s interior, and found 200 pseudoephedrine pills and 8,000 matches, which are ingredients for methamphetamine.

Harris pleaded no contest, but he got a reprieve. The Florida Supreme Court said the state did not show Aldo’s reliability as a drug detector with evidence of his training, certification and performance, and his handler’s experience.

By comparison, Franky had no such problems, according to court papers. At the time of Jardines’ search, he had made 399 positive alerts. The result: seizures of roughly one ton of marijuana and 34 pounds of cocaine and heroin.

“The state’s ‘credentials alone’ canine-reliability test is based on an overgeneralized assertion – that all trained or certified drug-detection dogs are reliable in the field,” a group of 34 law professors said in a brief supporting Harris.

Regardless of how the court rules in both cases, police will go on using dogs for drug detection. The questions are when, and how.

Decisions in both cases are expected by the end of June.

The cases are Florida v. Jardines, U.S. Supreme Court, No. 11-564; and Florida v. Harris, U.S. Supreme Court, No. 11-817.

(The story was refiled to make clear drug-sniffing dogs in headline)

(Reporting by Jonathan Stempel in New York; Editing by Howard Goller and Tim Dobbyn)

via Reuters

Neil Rockind secures a Violation of Probation DISMISSAL!

A client, on probation for narcotics possession, received a notice of probation violation. The allegations: new criminal activity, failure to report, failure to notify of a changed address and use of drugs. A search warrant had been issued and marijuana plants and mushrooms were located inside the house. The state thought they had landed a big fish — a convicted felon violating his probation. Wrong. The client hired Neil Rockind, Colin Daniels and Neil Rockind, P.C. Rockind was able to prove that 1) he had notified the probation department of his change of address, 2) the location of the marijuana plants and mushrooms were at his old address and he hadn’t lived there or been in possession of that home for some time and 3) he was in contact with his probation officer in another state as late as the date the Michigan probation department accused him of not appearing. Result: victory. Probation violation case dismissed.

People v. Ted Anderson

According to this case, the trial court cannot consider credibility when deciding whether or not the elements of Section 8 of the Medical Marijuana Act have been met. It is a simple question of law – not a question of fact. Good stuff.

Here is the case: http://coa.courts.mi.gov/documents/OPINIONS/FINAL/COA/20120918_C300641_69_300641O.OPN.PDF

Start Objecting Again: Guidelines Challenges Are Back in Play

This is a great Blog Post from a local appellate attorney, Mr. Stuart Friedman:

“A decade ago, we were objecting to the Michigan Sentencing Guidelines (our state’s presumptive sentencing scheme) arguing that it violated the Defendant’s right to a jury trial. Following the Michigan Supreme Court’s 2006 ruling inPeople v. Drohan, 475 Mich. 140, 159–164; 715 NW2d 778 (2006), these challenges largely died. The United States Supreme Court has agreed to hear a case which again put the guidelines at risk. Alleyne v. United States, Supreme Court No. 11-9335. Counsel should again start demanding jury trials on guideline issues and objecting to the guidelines being use as anything beyond advisory guidelines.

In 2000, the United States Supreme Court handed down its landmark case ofApprendi v New Jersey, 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000), which called into doubt sentencing guideline schemes (and presumptive sentencing schemes around the country). Then came the Court’s ruling in United States v Booker, 543 US 220; 125 S Ct 738; 160 L Ed 2d 621 (2005), which struck down the mandatory nature of federal sentencing guidelines. See also Blakely v Washington, 542 US 296; 124 S Ct 2531; 159 L Ed 2d 403 (2004) (invalidating the State of Washington’s guidelines); Cunningham v California, 127 S Ct 856 (2007)(invalidating California Sentencing Guidelines). For many years, Michigan practitioners unsuccessfully attempted to extend this rationale into Michigan.

The Courts rejected the argument largely relying on the fact that Michigan’s indeterminate sentencing scheme meant that the guidelines only controlled the minimum sentence that an accused was facing (as opposed to the maximum). As a 2012 Michigan Court of Appeals decision explained:

“In People v. Drohan, 475 Mich. 140, 159–164; 715 NW2d 778 (2006), the Michigan Supreme Court held that Michigan’s indeterminate sentencing system is not affected by Blakely because a defendant’s maximum sentence in Michigan is set by statute and the jury’s verdict. Therefore, the holding from Blakely is inapplicable to Michigan’s indeterminate sentencing scheme. Id. at 164.”

People v Baker, No. 302784, 2012 WL 1415159 (Mich Ct App April 24, 2012), app den 145268, 2012 WL 4370127 (September 24, 2012). The Drohan ruling is based almost exclusively on the minimum/maximum decision distinction which has its roots in Harris v United States, 536 US 545; 122 S Ct 2406; 153 L Ed 2d 524 (2002).

Harris
 however was an opinion from a divided Court. Justice Stephen G. Breyer’s vote was necessary for the five votes needed to uphold the scheme. After the ruling, Judge Breyer publicly changed his mind. See United States v Malouf377 F Supp 2d 315, 320 (D Mass 2005), rev’d 466 F3d 21 (2006) (noting functional overruling of Harris); United States v Kandirakis, 441 F Supp 2d 282, 299 (D Mass 2006). 

The Court has finally agreed to reconsider its ruling in Alleyne v. United States, Supreme Court No. 11-9335. Allen Alleyne was convicted for robbing a convenience store in Richmond, Virginia. His “basic sentence” was enhanced on the theory that he should have known that his accomplice in the robbery would brandish a gun during the robbery.  The enhancement was based upon the finding by the judge, not the jury, that Alleyne would have known about the plan to “brandish” a gun — a factor that leads to a mandatory minimum sentence beyond a basic sentence for the crime itself.

In the Alleyne case, the accused was convicted of one count of robbery affecting interstate commerce, because the robbery occurred as a store manager was carrying deposits to a bank, and one count of using a gun during a crime of violence.  He received a forty-six-month sentence on the robbery charge.  (He was also charged Alleyne with brandishing a firearm during the robbery).

Even though the jury concluded that Alleyne had not done so, the trial judge ruled that Alleyne should have foreseen that his accomplice would brandish a gun during the robbery, so he had to be punished for that himself.  The judge then imposed an added eighty-four months of sentence on top of the forty-six months — as required under the federal law that imposes a mandatory minimum sentence for brandishing a gun.

Alleyne’s lawyer at the trial had conceded that under Harris this enhancement was a legitimate sentencing factorThe attorney, however, mounted a frontal challenge on Harris. Counsel argued that based on Justice Bryer’s change of position in United States v O’Brien, 130 SCt 2169 (2010), the time may have come to revisit the Harris precedent. Without Justice Bryer’s original vote in Harris, the result would have been different.

Alleyne’s petition to the high court squarely argued that “Justice Breyer and the four dissenting Justices in Harris were correct in perceiving the logical and practical inconsistency of the plurality’s position.  A strict distinction between maximum and mandatory minimum sentences cannot be reconciled with the rule of Apprendi that the Constitution’s indictment, jury, and proof guarantees apply to all ‘facts that increase the prescribed range of penalties to which a criminal defendant is exposed.’”

Attorneys should absolutely preserve their challenges to the Michigan Sentencing Guidelines based on this new cases. The briefs from the O’Brien case can be foundhere and are a great place to start. Additionally, Federal Defender Bradley Hall has written a great law review on the subject. B. Hall, Mandatory Sentencing Guidelines By Any Other Name: When Indeterminate Structured Sentencing Violates Blakely v Washington, 57 Drake L Rev 643 (2009). Here is a link to that article:
10647_3_Law_Review_on_why_Blakely_should_apply_in_Mich_May,_2009[1]

Here is a link to another law review on this subject which is available for purchase from Lexis.com.While trial courts cannot give the Defendant relief, preserving the issue for direct appeal may give the Defendant’s a wonderful appellate issue.”

via CrimApp