A Whole New Rule For Search - The Old Rule

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.

Waterfall Instruction

In Virginia there's a charge of Grand Larceny with intent to Sell or Distribute (we ain't having any of that Robin Hood stuff here). It's the first part of § 18.2-108.01:

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).

It's Back!!!!

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.

Revisiting the Big 4

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.

Centre: The Best Among Us

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.

Another State's Fix of the Law of Stealing

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?

Model Penal Code: Error in the Intent

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.

Model Penal Code: One Nugget

Back in the day, the good folks over at the American Legal Institute (ALI) decided that nobody was getting criminal law right. Although in other areas of the law the ALI had issued "Restatements", it wrote its own brand spanking new Model Penal Code (MPC). From the late 60's to the early 80's various States abandoned the common law and adopted large portions of the MPC.  I have seen a quote that claimed as many as 35 States have adopted the MPC, but I am skeptical of this because it listed Virginia as an adopter and Virginia very clearly remained a common law state; you don't cite or quote the MPC here.

In the end, the MPC has had - at best - mixed results. It was used by a number of States as a means to sheer off a lot of dead weight that had built up over the years, but failed to unify criminal law throughout the United States. The federal government probably has the most labyrinthian, byzantine, in need of fixing criminal code in the U.S.; it has never so much as given it the time of day to the MPC. The MPC has also been roundly criticized for not dealing with drug crimes, which has left even the States which adopted the MPC with a jumble of very different drug crimes. Lately, the ALI has chosen to abandon the attempt to write laws in connection with the reality on the ground and politicized the MPC when it voted to remove capital punishment in direct contravention of 2/3 of the States and the federal government. Generally, it begins to look more and more like the MPC's day has come and gone and that any changes to it are not going to be attempts to grapple with the realities of modern criminal law and punishment in an attempt to make them operate as best possible. Instead, it looks like it's headed to some politicized ideal which will never pass a State Legislature.

This is something of a shame. There are definitely parts that I wish we had adopted in Virginia. First and foremost, I wish we had adopted some version of the MPC's intent (mens rea, scienter) section:

Model Penal Code § 2.02. General Requirements of Culpability.
(1) Minimum Requirements of Culpability. Except as provided in Section 2.05, a person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense.

(2) Kinds of Culpability Defined

(a) Purposely.
A person acts purposely with respect to a material element of an offense when:
(i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and
(ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.

(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.

(d) Negligently.
A person acts negligently with respect to a material element of an offense when he should be aware of 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 the actor's failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation.

(3) Culpability Required Unless Otherwise Provided. When the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts purposely, knowingly or recklessly with respect thereto.

There's more to this section, but this is the most pertinent.

I've seen a lot of articles talking about this as the greatest innovation of the MPC and I tend to believe them. The common law is a disaster for intent in crime. There are general intents and specific intents and willfulness and wantoness and statutes and case law can require different formulations for each crime. Most disturbingly, our Virginia Appellate Courts have decided that the default for criminal statutes is strict liability. The MPC cuts through and corrects all that.

Personally, I don't think the MPC is politically viable in Virginia, but if we could only cherry pick one part of it, I'd want this one. Of course, it would cause a massive rewriting of all the other criminal statutes in Virginia to come in line, but I'd be willing to let some legislator's aide slave away doing that for the greater good of all. I'm sure she would understand and happily pitch in.