Yep, W&L Law is number 24 on the new US News ranking. That keeps W&L the highest ranked private law school in Virginia although there is a *sniff* public university somewhere in the Commonwealth which is ranked a little higher.

So, Scott's off haring after stupid marketing tricks again. This time it is about a kid barely out of the gates spending time worrying about and creating a logo for his two man firm. It's a never ending quest he has embarked upon to shepherd young lawyers away from the idea that glitz can make you successful rather than that boring actually practicing law stuff.

Most of the time I agree with Scott about these things (ie: you won't get clients by publishing a blog), but this time I have to disagree. I'm not disagreeing so much because he's wrong, but because I think I have to or I'd be hypocrite.

Hi. I'm Ken and I used to have a logo.

Actually, if I ever go back out into private practice I'll have one again. Let me explain.

I didn't create this logo for my law practice. It was a personal "coat of arms" I created way back when and have added to over the years. I think it may have started as a high school project. In the end it looked like this:


Don't ask me what all of it means. At least half of it is stuff that I thought looked cool when I was 16.

Anyway, one of the things I realized fairly early into my practice is that clients would go into court and tell the judge "Mr. Lammers said . . ." and sometimes they would go in with letters which backed up their claims, but which I did not ever remember typing. I talked to some of the senior defense attorneys about this and they told me "Sure, that sort of thing happens all the time. That's why we have pre-printed multi-color stationary. They can't fake that."

So, I went to the printer and walked right back out when the price he quoted me was about half the gross national product of Brazil. Faced with this, I went out and bought a cheap color printer. Then I figured out how to set up Word Perfect so that the logo would be on top and since nobody else had that pic and nobody would put that on their letters (as opposed to the ubiquitous scales) it made whether the letter actually came from me easy to discern.

So, you see, it was a security measure, NOT a sign of self importance or a marketing tool.

That's my story and I'm sticking to it.

Over at The Volokh Conspiracy, Eugene Volokh has raised the almost heretical idea that rape is about sex instead of control.  As often occurs with posts over at the Conspiracy, the discussion in the comments is probably better than the post itself.  I always thought this argument was silly myself as rape, by definition, is gaining control of another in order to have sex with that person.  If one merely gains control it's abduction, not rape. If one adult merely has sex with another it may be hedonism, but we haven't outlawed that entirely yet.

And yet, as a lawyer, I don't care if rape is about sex or control. I care whether it fits under the statute. In Virginia Va. Code § 18.2-61 requires:

If any person has sexual intercourse with a complaining witness, whether or not his or her spouse, or causes a complaining witness, whether or not his or her spouse, to engage in sexual intercourse with any other person and such act is accomplished (i) against the complaining witness's will, by force, threat or intimidation of or against the complaining witness or another person; or (ii) through the use of the complaining witness's mental incapacity or physical helplessness; or (iii) with a child under age 13 as the victim, he or she shall be guilty of rape.

The difficulty in proving rape is that most of the time there are only two witnesses. This isn't much of a problem when the victim is badly beaten and at the hospital getting the rape kit done. In lots of other cases it is a terrible problem.

The inferred element above (except in the rape of a minor) is the lack of consent.  It is specifically the lack of consent, NOT whether the accused party reasonably believed that consent was given.  Intent is given extremely short shrift under Virginia's case law. In Commonwealth v. Minor, JAN04, VaSC No. 030401, the standard was set as:

Although proof of rape requires proof of intent, the required intent is established upon proof that the accused knowingly and intentionally committed the acts constituting the elements of rape.

In other words, if you did it you meant to do it. That's not terribly helpful in the close calls. In the end, it almost always comes down whether consent was given.

The reason that courts and legislatures have shied away from allowing the accused's perception of consent as evidence is rooted in the desire to avoid the "she asked for it" argument. The basic principle that no one asks to be raped is axiomatic.  The mere fact that a woman dresses a certain way or is at a certain location does not mean she is asking to be raped. This seems to have taken a while to beat into the norms of society, but it has taken purchase. In fact, it can be argued that in some cases it has gone too far (Antioch Policy).

On the other side of this is the fact that consent does not need to be verbal. This causes a rather nasty dance in the courtroom where the prosecution tries to keep things out on the grounds that it is being introduced to show the accused perceived her consent (she asked for it) and the defense is trying to get things in on the grounds that they actually tend to demonstrate consent. What does it mean when the young lady shows up at the door wearing high heels, a leather micro-mini, and a skin tight tube top? Does your answer change if she shows up dressed like that in mid January and the weather outside is 15 degrees fahrenheit?  Thankfully, I'm not the judge who has to make those calls.

The consent issue can be particularly problematic in intimidation and incapacitation by alcohol cases. Consider a 300 pound offensive lineman and a 106 pound girl in his room. He makes a move on her, she says nothing to dissuade him, and they have sex. Was she intimidated by this guy without him even realizing it?  Or, did she think about how big a mistake it was the next morning and convince herself that she would have never had sex with him if he were not so intimidating? Or did he purposefully use his size as a way to scare her into being unable to refuse him?

Consider two college kids drinking at a Halloween party and both are drunk. They go off together and have sex. He says she helped him get her out of that skin tight catsuit and they had sex. She says she was so drunk she doesn't remember anything but coming to consciousness with him on top of her.

The problem with the first scenario is that even if you were there you might not be able to discern the reality of consent. In the second scenario you end up in a swearing contest between two individuals who both may believe their version is the truth.

Imagine overlaying an "intent to control" element on top of all this. The jury instruction might go something like this:

In order to find the defendant guilty of rape you must find that his primary goal was to demonstrate control of the victim through sexual behavior.

That is a nightmare. It would stop all sorts of rape charges dead in their tracks. It would make the date rape cases like those above - already the hardest to prosecute - almost impossible. "Sure, she was drunk and Bob took advantage of the situation, but he wasn't trying to demonstrate control; he was just trying to have opportune sex." It would even make the stranger sex cases difficult. "He had sex with her on the 15th, but it wasn't to demonstrate control; if it had been to demonstrate control it would have had to be part of some continuing pattern of behavior in which he asserted control prior to this event and the sex was just a demonstration of that control."

In fact if rape were a demonstration of control the only people who would consistently qualify would pimps and the abuser in an abusive relationship. Mind you, I think that this could be incorporated into the law for just those situations as an aggravating factor.

If you find that the defendant raped the victim and that this rape had the primary goal of demonstrating control over the victim through sexual behavior, you shall find the defendant guilty of aggravated rape.

However, I don't think that rape as a demonstration of control can, or should, be written into the general law of rape.

I was just putting together my summaries of last month's cases and read Howes in depth for the first time. It's a Habeas case rising from State courts. Therefore, all that a federal court need do to reject it is to find some scrap of law that supports the assertion that there is enough flux in federal precedents that there is no extremely clear  constitutional rule the State court has violated.

In Howes, Alito does this by characterizing a clearly set out rule as dicta and then pointing to other dicta which uses to counter the rule. Having done this, his opinion ends. Right? No, of course it doesn't. He then goes on to bloviate on the rule as he wishes it to be (can't have short concise opinions). And here's my summary of his dicta:

Netflix has decided that I love British television programs and keeps recommending them to me. Most of them I ignore, some of them I watch with bemusement, and some strike a chord.  Kingdom turned out to be a real gem. I rate it a 4 out of 5.

Kingdom is the story of Peter Kingdom, a solicitor in Norfolk. He is surrounded by a number of characters who are slightly offbeat. There's his protege, Lyle, who apparently didn't go to the best of law schools or spend his time worrying terribly about grades while there (it is implied that he would have never come out to Norfolk if he could have gotten a job in London), but who tries hard and has all the foibles, desires, and prejudices of youth. There's Gloria, the secretary who is the one who keeps everything running however chaotic things get. There's also the chronically depressed sister, Beatrice, who moves in and acts irresponsibly.

There's also a string of slightly goofy clients who come in and want Peter to handle all sorts of situations for them.  The most prominent of these is Sidney, the town eccentric who wants to fight the council on everything it wants to build in the town. My favorite episode is probably the one when the powers that be in the town get fed up with Sidney and start doing things to mess with him, such as putting a "No Parking" sign in the middle of his porch, 4" from the only doorway so that Sidney has to climb in and out his window.

There's also a slightly darker back story, which explores the death of Peter's brother and the debts he had accumulated with criminals prior to his dissappearance. I can't say this drew me to the show, but I think it serves as an anchor, keeping the show from spinning into a goofy comedy.

The great thing about this show is that it is just enjoyable. You are not being shoved along at breakneck speed. There's not a lot of people yelling at each other and threatening law suits. The tone can be serious, but it is not overly brooding. Best of all, the characters are not so eccentric and goofy as to be ridiculous. It's filled with understated humor and interesting situations, but no flash. Of course, this means it would never be made in the U.S.

Sadly, only three seasons with 6 episodes apiece were made in the U.K.  I recommend each and every one of them.

I am constantly getting asked what the parameters are when a defendant is in a house and officers are seeking to arrest him. Then I always get dubious looks when I say, "Officers can do X, Y but not Z." So, I thought I'd look at it one more time and write it down here so I can tell people where to go to find information on entering a house.

The foundation of any discussion on entering a home is Payton v. New York, OCT79, USSC No. 78-5420.  In Payton the Federal Supreme Court struck down a New York statute that allowed officers to enter a residence without a warrant to make a felony arrest.

In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.

Payton made it clear that officers couldn't enter a residence to seek a suspect, absent the usual exigent circumstances (defendant will escape, defendant will harm self or others, defendant will destroy evidence), unless they had a warrant in hand.  This case probably more sited for its converse aspect: if an officer has a warrant he may go into the residence to get the suspect.

As with any foundational case, this case led to a series of subsequent cases answering cases which refined the holding. These are the major questions that I know have been answered so far.

Can an officer with an arrest warrant enter a third party's house in order to arrest a suspect?

No. An arrest warrant does not allow an officer to enter the house of a 3d party in order to get the suspect..  Steagald v. U.S., APR81, USSC No. 79-6777.  Of course, there are exceptions to this if there are exigent circumstances or consent.  In all other circumstances the officers must get a search warrant to search a third party's residence.  However, while this definitely protects the resident, the entry into the 3d party's residence is not a violation of the suspect's rights and he probably wouldn't be able to use this as a defense.  See e.g. U.S. v. Willis, SEP10, USDC EDVa No. 3:10CR186-HEH.

What if an officer is trying to arrest a suspect and she runs back into her house? 

If a person is in public, including the open doorway of her house, and the officers engage in an attempt to arrest her, the officers are not required to stop at the door when the suspect retreats into the house.  U.S. v. Santana, JUN76, USSC No. 75-19.  It is considered a "hot pursuit."  Thus, during the Saturday night fun and games, when officers respond to a call about Bob being drunk again and Bob opens the door and spits at them, it's constitutional when they break the door down to get him.

Can officer just enter the suspect's residence as long as they have an arrest warrant?

No.  There is a test as to (a) whether this is the suspect's residence, and (b) whether the suspect is in the residence. However, there is a difference of opinion as to what level of proof the officers must have of these two factors.  The older standard is the one first laid out in U.S. v. Magluta, FEB95, 11Cir No. 93-5069.

We think it sufficient to hold that in order for law enforcement officials to enter a residence to execute an arrest warrant for a resident of the premises, the facts and circumstances within the knowledge of the law enforcement agents, when viewed in the totality, must warrant a reasonable belief that the location to be searched is the suspect's dwelling, and that the suspect is within the residence at the time of entry.

The reasonable belief standard seems to be the one that is adhered to in most jurisdictions, but in a minority of jurisdictions the standard is probable cause. The case which begins this line is U.S. v. Gorman, DEC02, 9Cir No. 02-50053.

We now conclude that the "reason to believe" standard of Payton and Underwood embodies the same standard of reasonableness inherent in probable cause.

 I cannot find any Virginia cases which decide this question. However, it seems to me that the Courts Appellate Virginian would almost certainly follow the majority and adopt the lesser reasonable belief standard.

Can an officer enter a suspect's residence if he has a misdemeanor arrest warrant for the suspect?

Yes. People just don't want to believe an officer can enter a residence to arrest someone on a misdemeanor warrant and often law enforcement agencies have policies against doing so. Additionally, there is an argument that since Payton struck down a statute allowing entry without a warrant to make a felony arrest that the converse aspect of that decision is that officers can enter with a felony arrest warrant - not a misdemeanor arrest warrant. However, this interpretation of Payton has been roundly rejected.

The case which sets forth the interpretation of Payton allowing entry with a misdemeanor warrant is U.S. v. Spencer, JUL82, 2Cir No. 81-1493.  The decision points out that no matter the language of the rejected statute, the court in Payton speaks of arrest warrants generally, not distinguishing felony warrants and misdemeanor warrants. It concludes that the general language includes all arrest warrants (felony, misdemeanor, and bench) and therefore an officer with any arrest warrant can enter a residence. Every opinion I have found addressing this issue adopts the Spencer reasoning and allows officers to enter residences when they have a misdemeanor warrant in hand. In fact, Virginia takes it a step further. In Archer v. Commonwealth, NOV97, VaApp No. 1726-96-1, the Virginia Court of Appeals approves entry when the officer knows of the existence of an arrest warrant, even if he does not personally have it.

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From

Sometimes you just run into something cool that you have to share. Mark walked past the prosecutor's desk and saw a cheat sheet for young prosecutors. I looked at it and thought maybe we should tape this to the desks we have in various courtrooms. That way we could all look down and scan quickly for the proper objection or maybe throw dice to choose.

Of course, we'd have to change some things. Since we don't yet have rules of evidence there is no "403" in Virginia, we'd have to replace it with "Overly Prejudicial." And, I'm pretty sure "Side Bar" isn't an objection (at least it's not in Virginia); so, I'd probably take it off the chart. I've only once heard a narrative objection, so I wouldn't put it in such a prominent place. Finally, I can't say I'm certain what "Improper Voir Dire: Expert Opinion" means exactly. Everything that I can think of falls under "Improper Commitment" (asking Jury to prejudge evidence), "Going Into the Facts of the Case", and "Argument."

Of course, now that the General Assembly has made certain that it has the final say on evidentiary rules, it looks like we are going to have brand new Rules of Evidence in Virginia (say goodbye to common law evidence and our friend Friend). So it might not just be brand new lawyers who need a sheet to tell them what objections are appropriate. Soon, everybody in Virginia will need an evidentiary cheat sheet.

The General Assembly has tried to make a statutory "castle doctrine" part of Virginian law for several years now. I discussed a previous version of this back in 2010. The difference between then and now is that it appears the current version will be enacted.

The House of Delegates Bill (HB48) mirrors the Senate version of the bill (SB4):

§ 18.2-91.1. Use of physical force, including deadly force, against an intruder; justified self-defense. 

Any person who lawfully occupies a dwelling is justified in using any degree of physical force, including deadly physical force, against another person when (i) the other person has unlawfully entered the dwelling and has committed an overt act toward the occupant or another person in the dwelling and (ii) the occupant reasonably believes he or another person in the dwelling is in imminent danger of bodily injury.

It fails at some of the same things which I thought were shortcomings in the version I discussed previously.

(1)  "Injury" is a poor choice of words. It already has the specific meaning under Virginia law of serious internal bodily damage. This is as compared to "wound", which means bodily damage which breaks the skin, and "harm", which is less well defined but seems to mean causing pain and non-serious bodily damage. The General Assembly could do better to state "wounding or injury." It could also write a specific definition into the statute.  As it stands, bodily injury cannot mean only what the term of art "injury" has meant under current interpretation because it would be ridiculous to restrict this statute to bodily injuries that did not break the skin. This will mean that the meaning will be undefined and we get to spend time arguing over whether a punch in the face justifies deadly force under this statute.

(2)  I wish it stated "feloniously entered" instead of "unlawfully entered." I have visions of every yahoo who has his fight with his neighbor spill into his house or who gets into a fight with his cousin in the kitchen claiming he has the right to use deadly force because "He was trespassing in my house."

(3)  I wish there were presumptions in this that stated that entry into a residence at night (burglary), while the residents are asleep does not require an overt act.

All-in-all, I don't expect this statute to change much of anything. Virginia isn't the most forgiving Commonwealth when it comes to somebody who breaks into someone else's house. I can't remember any legitimate cases wherein I've seen someone prosecuted - or even sued - for taking care of an intruder in his house.

5 Second Review:  When an American mobster is hidden in Norway everything will go well, right?

30 Second Review:  An American mobster turns on his fellows (well, they tried to kill him first) and his only condition is that after he testifies he will be resettled in Lillehammer, Norway. Will he take over the whole country or just Lillehammer?

In Depth:  When the new boss tries to kill him, a high ranking mobster turns government witness on condition that he be resettled in Lillehammer, Norway.  He shows up in Norway where the government has given him a tiny row house, an electric car, and an invalid driver's license. He runs face first into an amazing level of bureaucracy and small town police. Being a mobster, he doesn't just sit around and take it; he starts to bend the entire system to his will.

There's a good bit of humor here which starts from goofiness surrounding the interaction between an Italian-American mobster and Norwegian society. However, there's also a dark humor which surfaces whenever someone gets in the way and when the Mob figures out where their turncoat is and sends a couple guys to take care of the situation.

Cons: This is not a show you can listen too in the background while you are doing something else. Unless you speak both Norwegian and English you have to read the captions at the bottom. I've watched all but one of the episodes and Norwegian may have replaced Arabic as my second best language. Also, this is only on Netflix, but everybody has Netflix by now so it shouldn't be too difficult to find.

Interesting. After years of copyright fighting over people copying videos and songs on the internet someone actually went back to the beginning and looked at what the U.S. Constitution has to say.

The Congress shall have the Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

The question then becomes, what is a "useful Art?" I cannot claim expertise in this area of the law, but it does seem to me that useful arts would be things such as mechanics, blacksmithing, sewing, etc.  This would exclude things such as acting, singing, dancing which are not meant to provide a product for further use, but to provide entertainment in the moment. It's an intriguing argument which seems to have teeth. Of course, there are a lot of arguments which seem to have teeth at first glance, yet are contrary to long established interpretation by the courts.

Of course, the woman in this case is accused of violating copyright regarding porn, which technically could be related to a useful art (sex) meant to provide a product (child). I'd love to see how that argument played out in court.

Senator Creigh Deeds introduced a bill calling for the elimination of the Virginia Court of Appeals. Per the VLW blog Senator Deeds "said few of the Court of Appeals judges had experience in criminal, domestic or workers compensation practice before going on the bench. 'We’ve used the court as a place to reward folks.'" There's nothing terribly shocking about that. The old chestnut in Virginia runs something like: "How do you become a judge in Virginia? You grow up with a friend who becomes a Delegate." For those of you from outside the Commonwealth, the kernel of truth in that comes from the fact that in Virginia the General Assembly decides who will be judges in Virginia. Somehow, I just don't see the Court of Appeals going away because of cronyism. If it did, how would cronies be rewarded?

However, the Court of Appeals could use some direction from the General Assembly in order to make it a better institution.

1) Require all Appellate Courts Virginian to have a strong presumption for the addressing the actual issue presented instead of dismissing cases because of errors in the filing. The appellate courts in Virginia have long had the reputation for denying appeals on grounds other than substantive. This is unjust because it denies the appellant his day in court because of error by the appellant's attorney. I have previously suggested a statute meant to deal with this and answered questions concerning my position.

2) Mandate that all criminal conviction appeals must be accepted for a three judge decision by the Court of Appeals. However, establish a presumption against oral argument.

There's really no reason for oral arguments except as an ego boost for attorneys and judges. If all but extraordinary cases were proceeded upon via court filings it would be more efficient.

There will be those who argue that mandating that all criminal convictions be accepted will bog down the Court. It will probably add some work to the Court. However, all the paperwork and fuss that now goes on with petitions for appeals will go away and this combined with doing away with almost all oral argument would make things close to even.

3) Set a specific format for appellate opinions. This should be something like

A. Error accepted for argument. List it exactly as accepted without comment.

B. Holding. No more than one paragraph.

C. Disposition. No more than one paragraph.

D. Facts. No more than 1 page.

E. Legal Rationale. No more than 4 pages. Most well written decisions follow a format similar to this already. Yet, there are scads of opinions where the judge or justice just plunges into the facts and analysis and doesn't tell you what the actual holding is until 17 pages later.

A set format would make it easy to quickly understand a case's holding and those of us in the middle of a trial need to quickly understand a case's holding.

The page limitation is something I wish that legislatures everywhere would impose on appellate courts. Decisions get filled with tons of irrelevant boilerplate and footnotes and circular reasoning going round and round and round. If the appellate courts were forced into brevity, and God is merciful, a lot of that would be shorn away. Look back at opinions from 100 years back or further. They were able to use two or three pages to be less obtuse and confusing than our current appellate courts are in fifteen. I am confident our current judges are capable of writing concise, well written opinions.

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These three changes could be written into law by the General Assembly in order to make the Virginia Court of Appeals a much better court. The first two would make it more just. The third would make it easier to actually use its opinions.

Of course, there would be myriad objections to these changes, but they would all basically boil down to (a) "Wah! You're going to make us work harder!" and (b) "Change how we do things?!?! OMG! It's the end of the world!!!" I know Virginia is resistant to any change, but change for the better is a good thing.

Now on to some less important things that could be changed.

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4) Assign areas of the Commonwealth from which each Court of Appeals judge must be appointed. Whenever a position opens up on the Court of Appeals candidates pop up from all over the Commonwealth. The obvious danger here is that the large urban areas can soak up all the slots and leave the more remote areas unrepresented on the Court of Appeals.

5) Mandate that Court of Appeals judges must have spent at least three years as a defense attorney and three years as a prosecutor. Yes, I know this is a pipe dream, but it would be really nice if appellate judges charged with deciding most criminal law issues understood both sides. I don't care how much time someone's spent as a trial judge, prosecutor, or defense attorney, without having worked on both sides he does not understand the system in its entirety. Ideally, the Court of Appeals judges should have previously been a defense attorney, a prosecutor, and a trial judge, but I think that the marginalization of the trial judge in the era of guidelines, plea agreements, and mandatory sentences probably mean that serving as a trial judge is not as important a prerequisite as it should have been in the past.

6) Require all decisions, published or unpublished (including denials of petitions) to have a judge's name on them; do not allow any court except the Supreme Court of Virginia to use "per curiam." Admittedly, this is a pet peeve of mine. Back when I was doing defense work, the use of "per curiam" by the Court of Appeals was adopted on denials of petitions for appeals (previously they had been each attributed to a particular judge). I wouldn't have wanted my name on the vast majority of denials I got either. 80% of the denials were a page or two of boilerplate with a paragraph or two that were tailored for the petition I wrote; some displayed such a disconnect that I wondered if the argument I made had been read or understood. It seemed obvious these were being written by the clerks and the "per curiam" label wasn't being used as intended (the answer to this issue is so obvious that all the judges agree it is X), but as a way for individual judges to avoid having to put their names on these denials. Of course, of all the issues I write about today, this is the one of least importance. It just annoyed me.

There's no way I would have thought my German Shepherd, Holly, could have had so many puppies. I think she's a little overwhelmed herself.

The BIG FUSS this week has been about United States v. Jones, JAN12, USSC 10-1259. I read about it first on my phone during a break in a jury trial I was prosecuting on Monday. The headline said pretty much what I've seen others say: The Supreme Court Requires Search Warrant for GPS Tracking of Vehicles.

Of course, this headline isn't exactly right (they never are). After my week slowed down a little, I finally got to read the Scalia opinion and I must say that I don't have a lot of heartburn with it.

Facts: A search warrant was gotten in the District of Columbia in order to put a GPS tracker on a car. The warrant ran out without the GPS tracker being placed on the car. Government agents, after the search warrant had lapsed went into Maryland and placed the GPS tracker on the car. The evidence gained from the tracker was used in the Defendant's trial. Government's Argument: There was no search because the defendant had no reasonable expectation of privacy as he drove his car on the street.

New Rule: There is now a two part test to determine whether an act by the government is a search (either makes it a search):

1: Is the act a trespass on the property of the suspect?

1a: Exception: If the act (i.e. attachment of a gps tracker) is done before the item becomes the property of the suspect then it is not a search even after it has become the property of the suspect.

Note: Property in this case does not just mean land; it also means personal property such as cars, purses, briefcases, etc.

2. Does the act violate the suspect's reasonable expectation of privacy?

Note: With the trespass rationale coming back to the fore, the role of the reasonable expectation of privacy might become narrower. In most cases the opening of a car trunk or entry into a building is a trespass. Therefore, the reasonable expectation of privacy would apply to something else. The thing which pops into my mind is "emanations." Emanations are those things which escape from a persons property through the air (energy, heat, smell, sound) and do not require the police to actually touch the suspect's property. Reasonable expectation of privacy requiring a search warrant for emanations tracks with the cases such as Katz (sound that emanated out of a phone booth required a search warrant) and Kyllo (energy emanating from a house required a search warrant).

Exceptions: 2a: Those emanations which are readily noticeable by a person may not require a search warrant. For instance an officer that smells marijuana, or sees stolen property in a car or hears someone in a house yelling "Rape!" would not have to go get a search warrant.

2b: Emanations (scents) which are alerted to by a dog do not require a search warrant per Cabelles.

Note: Any information which can be retrieved about a person without trespass on his real or personal property should go through a reasonable expectation of privacy analysis. Emanations are just the most obvious. Others might be mail or billing or . . .

WHAT THIS CASE DID NOT DO: The Court specifically declined to address whether it was reasonable for government agents to place the gps tracker without a search warrant because the government did not argue this below. Thus there is no actual mandate for a search warrant to attach a gps tracker. However, common sense tells us that reality on the ground is that in the majority of cases a warrant should be obtained. If we ever get to the point that every officer is carrying trackers on his belt and can throw one on the back of a car escaping a bank robbery then it wouldn't be required, but short of that it is hard to picture a scenario in which officers don't preplan the use of a gps tracker so that a search warrant should be obtained.

A. Any person who commits larceny of property with a value of $200 or more with the intent to sell or distribute such property is guilty of a felony punishable by confinement in a state correctional facility for not less than two years nor more than 20 years. The larceny of more than one item of the same product is prima facie evidence of intent to sell or intent to distribute for sale.

The problem is that there are several lesser included offenses within this statute including plain Grand Larceny, Petit Larceny, and Possession of Stolen Property with Intent to Sell. Of course, there is no model jury instruction which covers all this.  I had to make one of my own. When an instruction starts out with one greater charge and the possibility of conviction of it or lesser included charges it's called a "waterfall instruction."  Here's my attempt.  Enjoy!

The defendant is charged with grand larceny with the intent to sell or distribute the stolen item. If you believe from the evidence beyond a reasonable doubt that the defendant

1) Took property which belonged to John Smith; and

2) The property was taken without John Smith's consent and against her will; and

3) The defendant intended to permanently deprive John Smith of the property; and

4) The property was worth $200 or more; and

5) The defendant knowingly possessed the stolen property with the intent to sell or distribute it,

then you shall find the defendant guilty of grand larceny with the intent to sell or distribute the stolen item.

If you find from the evidence beyond a reasonable doubt that the Commonwealth has proven all the elements except the fifth, then you shall find the defendant guilty of grand larceny.

If you find from the evidence beyond a reasonable doubt that the Commonwealth has proven only the forth and fifth elements you shall find the defendant guilty of possessing stolen property with intent to sell or distribute.

If you find from the evidence beyond a reasonable doubt that the Commonwealth has proven the first three elements, but has not the forth element you shall find the defendant guilty of petit larceny.

If you find that the Commonwealth has failed to prove any of the above offenses beyond a reasonable doubt then you shall find the defendant not guilty.

I never charge this if I can help it. There are no sentencing guidelines for this offense, which makes it a pain to deal with when the defendant has 17 prior convictions and the defense attorney comes to me asking for a sentence of 3 months because the guideline recommendation of 2 years which would have been on the table for plain grand larceny aren't available. On the other hand, if I charge the defendant with grand larceny and possession with intent to sell or distribute there are two appropriate charges along with guidelines. On the other hand, this is a great charge to take to a jury with all the options that allow the jury to decide exactly what they think the defendant should be convicted of (or, of course, the jury could reject them all and find not guilty).

Raylan Givens and the gang are back to terrorize Harlan County, Kentucky - as he brings his particular brand of justice home.

Tonight 10:00 p.m. on FX.

As you'll all recall, a couple years back I staked my claim to the Big 4 reasons that people can't possibly go to jail. By the way, several of you defense attorneys are behind on your payments for the use of my copyrighted/trademarked reasons. I'm sure it's just an oversight.

Anyway, I was talking to another attorney a few days back and he had, independently, developed a chart in which he measured the the probability that a defendant would develop a relationship with God or find a well paying job against the probability that he was going to jail.  He stated that there was an amazing correlation between between the two. I thought this was pretty cool and sat down to plot the Big 4 on the same sort of chart (as I see them where I practice; your mileage may vary).


Illness is an epidemic among those heading to jail.  It's both a reason why a person cannot go to jail and a reason why that person, if she must go to jail, can get occasional vacations (furloughs) from jail so that she can go to the doctor to deal with her problems (and visit home; and get a meal a McDonalds; etc.). Honestly, I think that a fair portion of these people actually have pre-existing medical conditions. However, I cannot help but notice that a rather large percentage were not going out of their way to deal with their medical issues prior to getting charged. In fact, it's amazing how many people have a doctor's appointment scheduled the day after they are scheduled to be sentenced by the judge and how that broken tooth the defendant has had for a year suddenly starts to throb terribly once she's in jail, becomes a health risk, and needs three dental appointment furloughs to fix.

Job is another way to try to stay out as well as a way to mitigate the actual sentence. An impressive number of people get jobs before they come to their sentencing hearing. A not insignificant number will tell the judge that they have a job waiting as soon as the uncertainty caused by this criminal sentencing is over. A smaller number will tell the judge they've got that job interview today or tomorrow for a job they're sure they'll get. The implication is that if the judge locks them up he will cause them to lose their jobs and ruin their and their family's lives. Of course, if the judge gives them jail time then they want work release. Mind you, work release isn't a terrible idea for someone who is not a repeat offender, is convicted of a minor offense, and has a decent job (not just fry-guy at the local Burger Grease Palace).  The problem with work release always turns out to be the guy who got a "job" working for his subcontractor uncle and just goes home every day to watch TV or the ones who think they are clever and slip off to *ahem* "meet" with boyfriend/girlfriend for 30 minutes when they are sure they won't be missed. I don't know how often these things actually happen; all I know is that I've been involved in cases where they happened often enough that these are the first two problems that pop into my mind when I think of work relief.

Family need is always there, but the defendant seems to become acutely aware of it when she is looking at a jail sentence. She didn't think of the family when stealing the TV from Mega~Mart or when she was dealing drugs in front of her kids, but she absolutely has to be there for them now. They cannot make it without her there to support and protect them. This is a mixed bag. Any prosecutor worth his salt is going to doubt the sincerity of the defendant. She has a history of not caring about her family and the way she's acting right now seems more like an attempt to leverage her family for her benefit. On the other hand, defense attorneys will be more likely to believe their clients' sincerity and become upset at the prosecutors' lack of compassion. Of course, caught in the middle of this is the family itself and the very real concern that, even if Jane Smith is 40% of the mother we wish she were, will we harm the children by depriving them of that 40%? In most cases, the family need is raised as an all or nothing issue. Either the defendant stays out to help her family or she goes to jail and the family is harmed. Sometimes, this is used in conjunction with the job attempt at palliation under the rationale that the defendant must continue to provide financial support to her family.

Finding God seems to tie in more often to when defendants are being held in the jail pretrial. Churches send people to the jail to spread the Good Word and with little else to do the defendant goes to services and Bible studies and classes on good Christian behavior and etc. Sometimes defendants come to the sentencing hearing with a stack of completion certificates a couple inches high. While there obviously some trying to manipulate the system, I think the majority of these are sincere. However, experience has also taught me that once these folks are back on the street and hanging around with their buddies on the outside they will fall back into their wicked ways. So, while I'm sure that a lot of us hope that there are true conversions that hold up under testing, I've not seen too many people get out of their sentences thru conversion. However, I've seen lots of pastors and deacons in court fighting for a member of the body as well as his soul.

Forbes ranks colleges and has become enamored with Kentucky. Furthermore, it has spotted the gems of Kentucky Education: Berea & Centre. Berea because it gives those who have little other opportunity the tools to better themselves. Centre because . . . well, because it's Centre.

"Centre is one of the finest schools in the U.S.  Forbes ranks Centre as one of the nation’s top 20 liberal-arts colleges, above such famous Ivy League universities as Columbia, Cornell, or the University of Pennsylvania. Its secret, I think, is an unrelenting, laser-like focus on offering a superior experience for students."

Oh, and they also mention Transy. Not sure why.

Here in Virginia we have larceny, larceny by trick, embezzlement, fraud, concealment (shoplifting), larceny of farm animals, larceny of milk crates, bad checks, &cetera. It's a pain. That's why I love this section of Texas' statute:

Sec. 31.02. CONSOLIDATION OF THEFT OFFENSES. Theft as defined in Section 31.03 constitutes a single offense superseding the separate offenses previously known as theft, theft by false pretext, conversion by a bailee, theft from the person, shoplifting, acquisition of property by threat, swindling, swindling by worthless check, embezzlement, extortion, receiving or concealing embezzled property, and receiving or concealing stolen property.

I get choked up just looking at it.

How do I get the Virginia General Assembly to adopt that statute? Please?

Having said yesterday that I wish we would cherry pick the intent section from the Model Penal Code (MPC), let me not leave you with the impression that it is perfect. Specifically, there is a difficulty in that jurors have been shown to have trouble distinguishing between knowing acts and reckless acts. This is not terribly hard to understand.

(b) Knowingly.
A person acts knowingly with respect to a material element of an offense when:
(i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and
(ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.

(c) Recklessly.
A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation.

Under "knowingly", (b)(i) is pretty straight forward; if it is illegal for a felon to knowingly possess a firearm and a felon knows he is possessing a firearm he satisfies that portion of the "knowingly" intent.

However, "knowingly" under (b)(ii) is the big brother of "recklessly." In other words, they are variants of the same thing. In both, the defendant has committed an act which results in a forbidden result. However, in "knowingly" doing the act it results in a "practical certainty" of an illegal result while "recklessly" doing the act only results "a substantial and unjustifiable risk" that the illegal result will occur. These are different degrees of the same thing, but with the modern aversion to actually assigning differential meanings it's doubtful that anyone will say something like "knowingly means the defendant knew to a 99% certainty that the illegal result would occur while recklessly meant he knew there was a 75% probability that the illegal result would occur."

I can understand why this could be confusing to jurors. It's the same reason that all sorts of things are confusing to jurors: because we lawyers over complicate things. I'm not sure why we need the "knowingly" intent. It seems to me that one cannot do, or omit the doing of, something purposefully without knowledge of it. The "knowingly" intent is redundant.

But, you say, what if the defendant knows he is doing something, but does not have the purpose of doing the crime? After all, someone could take Felon's wife hostage and require him to take a pistol and hide it. As well, Suspect going to jail could have been arrested with drugs secreted on her body and have it found after she is in jail and strip searched. In the first case, I would argue that Felon does purposefully possess, but that he has a powerful duress defense. In the second case, Suspect is faced with two possibilities and makes a choice: admit possession and get another charge before arriving at the jail or taking a chance that the drugs won't be found when she gets to jail. Either option is a purposeful act or omission. I am hard pressed to think of any crime where mere knowledge without a purposeful act or omission constitutes a convictable crime.

Thus, I would alter the MPC's intent section so that only Purposeful, Reckless and Negligent intents would constitute crimes. I would also add some language to the "Purposefully" section which would make it clear that both acts and omissions constitute purposeful acts and that doing or failing to do something with a knowledge that it will cause an illegal result is a purposeful act.