Friday, August 31, 2012

7th. Circuit sex offender registry due process violation

The University of Pittsburgh's Jurist PaperChase earlier this week reported the 7th. Circuit Court of Appeals last Tuesday holding that "by not allowing Indiana citizens to appeal erroneous entries on the state Sex and Violent Offender Registry, the Indiana Department of Corrections was in violation of defendants' Due Process rights." (7th. Circuit decision).

Jurist further notes that "the varying restrictions imposed by sex offender registries have been under scrutiny lately. The US Supreme Court, for instance, ruled in January, in Reynolds v. U.S., that sex offenders who committed their offenses prior to the passage of the federal sex offender registry do not have to list themselves unless the Attorney General commands them to, and a law that banning registered sex offenders from public libraries in Albuquerque, New Mexico was also struck down in federal appeals court that. (John Doe v. City of Albuquerque )

Thursday, August 30, 2012

"Kelsey's Laws"

There are three varieties of "Kelsey's Law" in the world -- or at least the U.S. right now.

The first type is named in memory of Kelsey Smith, a 16-year old teenager abducted, raped, and murdered in Kansas back in 2007, and seeks, on the state level, to mandate cellphone carriers provide law enforcement tracking & location data in emergencies. Federal law allows wireless companies divulge information to law enforcement agencies, but these would make it mandatory for the state in which enacted.

USAToday reported last Monday that this Kelsey Law variety "has steadily been gaining ground since Kansas' was passed in 2009; Nebraska, Minnesota, and New Hampshire enacted their versions in 2010, followed by North Dakota in 2011 and Hawaii & Tennessee earlier this year." Illinois, Massachusetts, the U.S. House of Representatives and the Canadian province of Albany are also reported to be considering similar legislation.

Missouri became the 8th. state in the nation, Tuesday, to enact a this version of Kelsey's Law ( Here ) , but already has it being challenged in Western Missouri District Court with claims that "Missouri's mandate for phone companies to supply information to police clashes with a federal law, giving cellphone providers discretion in determining whether a police request truly constitutes an emergency that would justify sharing information without a court order or subpoena." It seeks a restraining order or injunction prohibiting enforcement of Missouri's law, and class action status to represent all cellphone subscribers in the state. (News articles here & here; Complaint here )

Six years ago in May 2006, Oklahoma passed a bill that came to be known as the "Kelsey Smith-Briggs Child Protection Reform Act," bearing the name of a slain 2-year old girl that improved training of court-appointed child care advocates and made judges more accountable for their rulings in child-placement cases. ( Bill and Article… now part of Title 10 Chapter 70)

The last variety of "Kelsey Laws" is represented by a bill currently in the Michigan Senate which was elected to named it "Kelsey's Law" in honor and memory of Sault Ste. Marie teenager Kelsey Raffaele, who was killed when she crashed her car while talking on her cellphone. Her mother has lobbied lawmakers to pass such a ban and encouraged teenagers to not use their cellphones while driving. ( Bill and Article )

Coincidentally, Ohio's new driving & texting law also goes into effect tomorrow ( Bill analysis and Article )

Friday, August 24, 2012

Eighth Ohio District Court of Appeals "castle doctrine" case

In a case in which a woman went to the home of her ex-husband to visit their daughter , whom the ex-husband had permanent custody of, spent the night, but was then killed during an argument the next morning, resulted in the ex-husband's being charged and convicted of murder, felonious assault, and tampering with evidence for which he was sentenced to death. The Eighth District vacated the man's convictions last week, remanding the case for a new trial.(See CourtNews article)( Decision )

Eight District Judge James J. Sweeney in the unanimous decision that found fault with the trial court for not instructing the jury on the Castle Doctrine as codified in Ohio Revised Code §2901.09, saying, "The trial court never stated the general proposition of law that a person has no duty to retreat inside his or her home, which stems from the deep-rooted English maxim that 'a man's home is his castle,'" quoting from State v. Comer, 4th Dist. No. 10CA15, 2012-Ohio-2261.

Judge Sweeney also cited the Ohio Supreme Court case, State v. Thomas, 77 Ohio St.3d 323, 327, 673 N.E.2d 1339, which held "one should not be required to retreat when attacked by a cohabitant in order to claim self-defense," expanding the Castle Doctrine to cases of domestic violence.

Second Amendment/reasonable fear of attack case

In a case in which three men in a car were arrested, one of whom had a loaded gun, the Ninth District Court of Appeals reversed the trial court's denial of defendant's motion to dismiss and remanded the matter for further proceedings. (Decision)

Defendants father received a call from defendant's brother saying he owed a third man $20 and that that man had a gun. Defendant and his father drove to Akron, Ohio to give the brother the $20, but, as the brother had been shot before, the father had also brought a loaded handgun for protection. As the two men arrived at a gas station and the brother got in the back seat of the car, police, responding to a reported kidnapping, surrounded the vehicle and ordered the men out. After the three had exited the vehicle, one of the officers saw the gun between the seats of the car and all three were placed under arrest.

At trial, jury convicted defendant of improper handling of a firearm in a motor vehicle, but acquitted him of resisting arrest. A charge of carrying a concealed weapon was subsequently dismissed at the State's request. Trial court sentenced defendant to 18 months of community control and fined him $500 and court costs. Defendant appealed arguing that Ohio Revised Code §2923.16(B) was unconstitutional given the U.S. Supreme Court decisions in District of Columbia v. Heller and McDonald v. Chicago because it "does not contain an exception for a person to transport a loaded handgun when there is reasonable fear of a criminal attack." (The brother told his father over the phone that the man owned a gun.).

Judge Eve V. Belfance, writing for the majority in the Appeals decision, said "The trial court did not reach the question of whether the Second Amendment applied in this case, apparently believing that the Second Amendment required no more rigorous review than that already required by the Ohio Constitution for laws infringing upon the right to bear arms. But it was incorrect because Heller and McDonald indicate that courts have to apply a heightened level of scrutiny to laws infringing upon a Second Amendment right."

She noted that while the Ohio Supreme Court "set forth the level of scrutiny applicable to gun-control laws under the Ohio Constitution" with rulings in those two cases, "Ohio courts have not reached any consensus as to the proper level of scrutiny in the aftermath of Heller."

Wednesday, August 22, 2012

Ohio Supreme Court sex offender cases

The Ohio Supreme Court's docket this week included oral arguments on three cases examining various aspects of the state's sex offender registration and notification statute, the latest in a line of cases that answer legal questions that have arisen since the law was revised in conformity with the Adam Walsh Act in 2008. [ CourtNews ]

Heard yesterday was a case out of Wayne County (
State of Ohio v. Kyle D. Raber , Case no. 2011-1383), where the issue was "In a criminal case involving a sexually oriented offense, if a trial court enters a judgment of conviction and a sentencing order in its journal without including a requirement that the defendant register as a sex offender, does that judgment entry terminate the court’s subject matter jurisdiction over the case, and bar it from later imposing a registration requirement on the defendant?"

Today there were two cases, the first from Montgomery County (State of Ohio v. Donny A. Howard, Case no. 2011-2126), with the issue being "In sentencing a pre-2008 sex offender for a violation of his post-release registration duties, if the failure to register violation took place after the Ohio Adam Walsh Act (AWA) and its companion sentencing bill, S.B. 97, became effective on January 1, 2008, should the offender be sentenced for his registration violation under the pre-AWA (Ohio's Megan's Law) penalty scheme that was in place on the date his duty to register arose, or under the enhanced AWA/ S.B. 97 penalty scheme that was in place on the date his registration offense was committed?"

Today's second case is out of here in Hamilton County's First District, with a case (In re Bruce S., Case no. 2012-0059) that involves a juvenile offender identified who was convicted of a sexually related offense that was committed on September 1, 2007. In sentencing for that conviction, the Hamilton County Juvenile Court classified him as a Tier III (most dangerous) sex offender under the AWA, and ordered him to comply with the increased registration and community notification requirements imposed by S.B. 10. The case was appealed, asserting that the trial court had violated the Ohio Constitution's prohibition against retroactive laws by sentencing the offender under provisions of S.B. 10 for a crime that was committed before those provisions took effect. The First District Court of Appeals ruled that the provisions of S.B. 10 applicable to offense did not become effective until January 1. 2008. Based on that holding, the court of appeals reversed the offender's classification as a Tier III sex offender under the AWA, and remanded the case to the juvenile court with a directive to reclassify and resentence him under Megans Law, while certifying that its holding regarding which statutory scheme should be applied was in conflict with State v. Scott, a 2011 decision in which the Eighth District Court of Appeals held that a trial court sentencing a defendant for a sex crime committed after July 1, 2007 had properly applied the AWA rather than Megan's Law. With both sides citing the Supreme Court's July 2011 decision in State v. Williams, which held that the increased penalties imposed by the AWA may not be imposed retroactively as supportive of their positions, the Supreme Court agreed to review that case to resolve the conflict between appellate districts.

Last week, the Eight District Court of Appeals found in State v. Davis, that "a Cuyahoga County sex offender should not be subject to enhanced penalties of a new law when he was originally classified under a previous version of the law," with Judge Kathleen A. Keough there "noting that the appeals court previously reached a similar conclusion in another ruling (State v. Smith, 8th Dist. Nos. 96582, 96622, 96623, 2012-Ohio-261) and that previous ruling was in conflict with cases from the First and Fifth Appellate Districts. See State v. Freeman, 1st Dist. No. C-100389, 2011-Ohio- 4357, State v. Bowling, 1st Dist. No. C-100323, 2011-Ohio-4946, and State v. Dunwoody, 5th Dist. No. CT11-0029, 2011-Ohio-6360. On May 23, 2012, the Ohio Supreme Court recognized that a conflict exists and has held the case for the decision in State v. Grunden, Case No. 2011-1553."

Monday, August 20, 2012

Plea Bargaining and "Prosecutorial Power"

The New York Times has a panel debate this morning on whether "prosecutors have too much power," spurred by Senior U.S. District Judge John Kane's recently having rejected a plea bargain in a child pornography case in Denver because the defendant had agreed to waive his right to appeal, saying such a deal would undermine the purpose of appellate courts and then later accepting a plea bargain without that stipulation. (Rejected Agreement)(Agreement Later Accepted)

"Legal observers," the Times said " — including the editorial board of The New York Times — focused on the judge's concern as a sign that plea bargains have gotten out of control and in the process given prosecutors too much power. When one party decides whether to bring charges, what charges to bring and whether to offer a plea bargain, is the justice system lacking checks and balances?"

The Pueblo Chieftain carried the story locally, noting that the case attracted national attention last month when the Times published an editorial stemming from the case. That editorial also made reference to the Supreme Court's opinion earlier this year in Lafler v. Cooper where "Justice Anthony Kennedy noted a stunning and often overlooked reality of the American legal process: a vast majority of criminal cases — 97 percent of federal cases, 94 percent of state cases — are resolved by guilty pleas. 'Criminal justice today,' he observed, 'is for the most part a system of pleas, not a system of trials.'"

Thursday, August 16, 2012

Sixth Circuit holds no "reasonable expectation of privacy" when no "trespassory nature of police action"

The Sixth Circuit Court of Appeals, last Tuesday, relying on the 1983 Supreme Court decision in U.S. v. Knotts, holding that the government's use of a beeper to track a suspect "amounted principally to the following of an automobile on public streets and highways," and distinguishing its current case from the 2012 Supreme Court ruling in U.S. v. Jones, which held that a government's placement of a GPS device on a car is a Fourth Amendment search, ruled that there is no Fourth Amendment violation when a criminal defendant is tracked through the GPS technology on his disposable mobile phone where the defendant "did not have a reasonable expectation of privacy in the data emanating from his cell phone that showed its location," according to a Law Journal article that morning.

Judge John Rogers, who wrote the opinion in U.S. v. Skinner, joined by Judge Eric Clay, with Judge Bernice Donald filing a separate opinion concurring in part and concurring in the judgment, reported that Skinner's case was different because there was no physical intrusion, the Law Journal said. "Because authorities tracked a known number that was voluntarily used while traveling on public thoroughfares, Skinner did not have a reasonable expectation of privacy in the GPS data and location of his cell phone. Therefore, suppression is not warranted and the district court correctly denied Skinner's motion to suppress."

"This is not a case in which the government secretly placed a tracking device in someone’s car," Rogers' ruling read. "The drug runners in this case used pay-as-you-go (and thus presumably more difficult to trace) cell phones to communicate during the cross-country shipment of drugs. Unfortunately for the drug runners, the phones were trackable in a way they may not have suspected. The Constitution, however, does not protect their erroneous expectations regarding the undetectability of their modern tools…. In short, Skinner did not have a reasonable expectation of privacy in the data emanating from his cell phone that showed its location."

Likewise, "Skinner's case also does not present the concern raised by Justice Alito's concurrence in Jones," the decision read. "There may be situations where police, using otherwise legal methods, so comprehensively track a person's activities that the very comprehensiveness of the tracking is unreasonable for Fourth Amendment purposes. As Justice Alito recognized, prior to certain advances in technology, 'practical' considerations often offered 'the greatest protections of privacy.' Id. at 963. For instance, in the situation presented in Jones, 'constant monitoring of the location of a vehicle for four weeks . . . would have required a large team of agents, multiple vehicles, and perhaps aerial assistance.' Id. Technology, however, has made it possible to conduct a level of extreme comprehensive tracking, 'secretly monitor[ing] and catalogu[ing] every single movement' that the defendant made over four weeks, that previously would have been impossible. Id. at 964. No such extreme comprehensive tracking is present in this case. Justice Alito's concurrence and the majority in Jones both recognized that there is little precedent for what constitutes a level of comprehensive tracking that would violate the Fourth Amendment. Id. at 954, 964. Skinner's case, however, comes nowhere near that line."

The University of Pittsburg's Jurist PaperChase also had a article.

Wednesday, August 15, 2012

Third Circuit Court of Appeals re-hearing Hazleton Pennsylvania immigration case

An article in the Legal Intelligencer, Monday morning, gives notice of the Third Circuit U.S. Court of Appeals' "re-examining the City of Hazleton's controversial immigration ordinance in a hearing set for today that could be the first court in the nation to reconcile the U.S. Supreme Court's two most recent pronouncements on state and local attempts to regulate the flow of persons into the United States.

"Hazleton, Pennsylvania's ordinance, which bars landlords and employers from renting to or hiring illegal immigrants, is set to be eyed by the federal appeals court in light of the justices' 2011 opinion in Chamber of Commerce v. Whiting with its 2012 opinion in Arizona v. United States , both of which involved state legislation regarding illegal aliens.

"The case challenging Hazleton's ordinances is on remand from the U.S. Supreme Court, which vacated the Third Circuit's 2010 holding when it decided Whiting. Since then, the high court has ruled in Arizona... "

The Legal Intelligencer's article summarizes that the upcoming decision "could be the first to reconcile the U.S. Supreme Court's two opinions, answering questions that the high court left open, according to Peter J. Spiro, a professor who teaches immigration law at Temple University. The Third Circuit took two years from when it first heard arguments to issue its initial opinion in Lozano v. City of Hazleton.

"The first of its kind in the country, Hazleton's ordinance was passed in 2006 during the tenure of then-Mayor Lou Barletta, who is now a congressman representing Pennsylvania's 11th District. It has not yet been enforced since U.S. District Judge James M. Munley of the Middle District of Pennsylvania granted an injunction in 2007 that was later upheld by the Third Circuit."

"At issue in the instant case," the District Court's decision said, "are 'IIRA', as amended by Ordinance 2006-40 and Ordinance 2007-6 , and 'RO'. IIRA defines 'illegal alien' as an 'alien who is not, lawfully present in the United States, according to the terms of United States Code Title 8, section 1101 et seq.' (IIRA § 3.D.). Title 8, section 1101, et seq. is commonly referred to as the Immigration and Nationality Act or 'INA'. The INA provides no definition for the term 'illegal alien' or the term 'lawfully present.' (N.T. 3/19/07 at 130)." [[Pennsylvania's ACLU had the pertinent ordinances posted on their website here ]].

Tuesday, August 14, 2012

North Carolina "innocent" federal prisoner release

A USAToday article this morning relates to "dozens of federal prisoners being locked up even though prosecutors concede they are 'legally innocent' who could soon be released under new orders from the U.S. Justice Department following a USA TODAY investigation in June that identified more than 60 people who were imprisoned for something an appeals court later determined was not a federal crime."

The incident appears limited to North Carolina.

"Federal law prohibits," the article continued, "people from having a gun if they have been previously convicted of a crime that could have put them in prison for more than a year. In North Carolina, however, state law set the maximum punishment for a crime based in part on the criminal record of whoever committed it, meaning some people who committed crimes such as possessing cocaine faced sentences of more than a year, while those with shorter records face only a few months. Federal courts there said that didn't matter -- If someone with a long record could have gone to prison for more than a year, then all who had committed that crime are felons and cannot legally have a gun, the courts maintained. But last year, the 4th Circuit Court of Appeals said judges had been getting the law wrong: Only people who could have faced more than a year in prison for their crimes qualify as felons. Its decision meant thousands of low-level offenders are not committing a federal crime by having a gun."

USAToday in an earlier article at the time of its investigation, had reported "the 4th Circuit's decision came in a little-noticed drug case limited to North Carolina, United States v. Simmons, but its implications could be dramatic. For one thing, tens of thousands of people in North Carolina have criminal records that no longer make having a gun a federal crime. About half of the felony convictions in North Carolina's state courts over the past decade were for offenses that no longer count as felonies under federal law."

Monday, August 13, 2012

Ohio Sex Offender Update

The Ohio Supreme Court's Court News service last Friday carried this Cuyahoga County (8th. District) case involving another offender originally sentenced under Megan's Law but then erroneously reclassified under Adam Walsh in 2007.

Here, "Steven C. Davis was sentenced to five years probation for sexual battery and gross sexual imposition in 2004," the Court News summarized. "He was originally classified as a sexually oriented offender under Megan's Law, which required him to verify his address once a year for 10 years. After the enactment of Ohio's Adam Walsh Act in 2007, Davis was reclassified as a Tier III sex offender and required to verify his address every 90 days for life. In 2011, Davis was charged with failing to provide notice of change of address and sentenced to a mandatory three–year prison term." The Eighth District reversed & remanded the case. (Decision)

Judge Kathleen A. Keough wrote the decision noting that the appeals court previously reached a similar conclusion in another ruling (State v. Smith, 8th Dist. Nos. 96582, 96622, 96623, 2012-Ohio-261) and that previous ruling was in conflict with cases from two other appellate courts.

The decision here footnotes that the 8th. District "certified that its decision in Smith is in conflict with the decisions of the First and Fifth Appellate Districts. See State v. Freeman, 1st Dist. No. C-100389, 2011-Ohio- 4357, State v.Bowling, 1st Dist. No. C-100323, 2011-Ohio-4946, and State v. Dunwoody, 5th Dist. No. CT11-0029,2011-Ohio-6360. On May 23, 2012, the Ohio Supreme Court recognized that a conflict exists and has held the case for the decision in State v. Grunden, Supreme Court Case No. 2011-1553. [ Grunden 8th. District decision]

Judge Keough also pointed out that the Ohio Supreme Court has agreed to address the second, related, issue through State v. Howard (Case No. 2011-2126).

In that case, Howard’s attorneys write, “Ohio courts are misinterpreting the decisions of this Court in State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, State v. Gingell, 128 Ohio St.3d 444, 2011-Ohio-1481, and State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108. However, these decisions only addressed the retroactive application of S.B. 10 when designating a classification to an offender based upon when the offender committed his original sex offense. This Court has not addressed what penalty, pursuant to S.B. 97 and codified in R.C. 2950.99, should apply to an offender's new offense of failure to abide by the duties imposed by their classification.

“This significant issue has not been addressed by this Court, and this Court's recent decisions have made this issue the next immediate question to be addressed.”

Friday, August 10, 2012

Massachusetts Supreme Judicial Court: "What judges think protected by state/federal constitutions"

The Boston Globe yesterday morning had an article about a Massachusetts's supreme court decision that judges can't be forced to disclose their reasoning when they made their rulings to ethics investigators, a holding "that creates a 'judicial deliberative privilege' in Massachusetts for the first time."

The case was that of Boston Municipal Court Judge Raymond G. Dougan, whose rulings had led Suffolk District Attorney Daniel F. Conley to file a complaint with the state's Commission on Judicial Conduct, alleging Dougan violated ethical guidelines when dealing with criminal cases from Boston. The commission, in turn, subpoenaed Dougan's notes and any other materials he relied on when making his decisions in Suffolk County courtrooms – which led to the supreme court's involvement.

Massachusetts Supreme Judicial Court Justice Robert Cordy, in writing for the Court, said "judges must not fear that the issues, laws, and personal views that underlie their rulings will be displayed to the public."

"The judiciary's independence from the other branches of government and from outside influences and extraneous concerns has been one of the cornerstones of our constitutional democracy, intended to ensure that judges will be free to decide cases on the law and the facts as their best judgment dictates, without fear or favor,"’ he wrote. "Protecting judges from the post hoc probing of their mental processes also ensures the integrity and quality of judicial decision-making," he added.

"This absolute privilege covers a judge's mental impressions and thought processes in reaching a judicial decision, whether harbored internally or memorialized in other nonpublic materials," he said. "The privilege also protects confidential communications among judges and between judges and court staff made in the course of and related to their deliberative processes in particular cases."

While making it clear that the Judicial Conduct Commission should continue its inquiry into the allegations of bias by Dougan in numerous cases, Cordy said to do so by using already available sources of information.

The text of the Court's decision can be accessed

Thursday, August 09, 2012

Juvenile Law Updates

Last Monday Ohio's 12th. District Court of Appeals found that Clermont County's Juvenile Court had erred in denying a motion to exclude from evidence videotaped statements made by a 13-year-old boy to Union Township Police because of a Miranda violation in a case in which the individual had been adjudicated as delinquent on May 11, 2011 in which the delinquency complaint filed with the court alleged defendant had committed an act which would be rape if committed by an adult. Citing a number of decisions holding that a suspect must be advised of his rights even if questioning by law enforcement occurs during a "custodial interrogation," the Court held "After a careful review of the record, we find that appellant was in custody, for the purposes of Miranda, when he gave his statements to (police)… (The officer) had a duty to advise appellant of his Miranda rights; these warnings were necessary and not provided.” The case was reversed and remanded [ See In re J.S., 2012-Ohio-3534 ]

Yesterday, the Ohio Supreme Court's new Court News Ohio service described the "sweeping new legislation in Senate Bill 337 designed to ease the side effects of criminal conviction and help non-violent ex-offenders re-enter the workforce after serving their time. Some of the bill's lesser-known provisions are specifically designed to help juvenile offenders , including procedures for the sealing of juvenile records, removing sexual battery & gross sexual imposition from the list of offenses for which juvenile records can't be sealed, and the confidentiality of juvenile criminal records checks. Senate Bill 337 also amends provisions of Section 5 of Am. Sub HB 86, which provided for the establishment of The Ohio Interagency Task Force on Mental Health and Juvenile Justice to investigate and make recommendations on how to "most effectively treat delinquent youth who suffer from serious mental illness or emotional and behavioral disorders." [ SB 337 Analysis ]

These developments follow the Supreme Court's adopting amendments to its rules of evidence, appellate procedure, civil procedure, criminal procedure, and juvenile procedure, including those to Juv. R. 3, which mandates that juveniles consult with legal counsel before waiving their right to an attorney in specific cases, back in May.

Tuesday, August 07, 2012

Supreme Court's probable DNA collection clarification

Reuters, last Monday, carried a story about the Supreme Court's probable intention to review whether law enforcement officials could collect DNA samples from people who have been accused or arrested, but not yet convicted, of serious crimes on its October agenda. That outcome could affect half of the states in the nation and the federal government.

The case, Maryland v. King, involves a suspect, Lyle Denniston at ScotusBlog related, "was arrested in 2009 on assault charges, but when his DNA was collected and put into the state's database while he was awaiting trial on those charges, generated a match to a DNA sample that had been collected from a 2003 unsolved rape case. He was charged with that case as well, the DNA match being sole link to that crime. He was convicted on the rape charge, and sentenced to life in prison. He challenged the sampling of his DNA when he was only an arrestee, and, in a divided ruling in April, Maryland's Court of Appeals — that state’s highest court — ruled that it violates the Fourth Amendment rights of individuals who have been arrested — but have not been convicted — to test their DNA and put the results in a file to help in identifying criminal suspects. (Decision)

That conflicted with decisions of other appeals courts Chief Justice John G. Roberts said in a four-page ruling last week, staying Maryland's judgment pending the outcome of its Supreme Court appeal.

"There is a reasonable probability this Court will grant certiorari," Chief Justice Roberts said, "Maryland's decision conflicts with decisions of the U. S. Courts of Appeals for the Third and Ninth Circuits as well as the Virginia Supreme Court, which have upheld statutes similar to Maryland's DNA Collection Act. See United States v. Mitchell, 652 F. 3d 387 (CA3 2011), cert. denied, 566 U. S. ___ (2012); Haskell v. Harris, 669 F. 3d 1049 (CA9 2012), reh’g en banc granted, (July 25, 2012); Anderson v. Commonwealth, 274 Va. 469, 650 S. E. 2d 702 (2007), cert denied, 553 U. S. 1054 (2008); see also Mario W. v. Kaipio, (Ariz. 2012) (holding that seizure of a juvenile's buccal cells does not violate the Fourth Amendment but that extracting a DNA profile before the juvenile is convicted does)." [ Note: The 9th. Circuit's granting en banc rehearing in Haskell v. Harris on July 25th.. Refer 9th. Circuit's website ]

Additional background and information on DNA profiling issues & the Fourth Amendment, though a bit out-dated, can be gotten from the Congressional Research Service's "Compulsory DNA Collection: A Fourth Amendment Analysis" report issued in February 2010.

The National Conference of State Legislatures partnered with the National Institute of Justice to develop a DNA laws database providing general overviews of DNA topics including the establishment of DNA databases & requirements for accreditation; oversight and reporting on forensic practices; DNA requirements for convicted offenders; and requirements for arrestees, including overviews on the laws of those states, including Ohio, which have those types of laws. (Table here)

Thursday, August 02, 2012

Wilmington ruling may be gun control model for nation

A decision made last Friday by the Delaware U.S. District Court holding that gun restrictions imposed by the Wilmington Housing Authority on its residents are constitutional could become a model for the rest nation, according to a article yesterday morning. (See Jane Doe/Charles Boone v. Wilmington Housing Authority )

The article expounded District Judge Leonard P. Stark's writing in his 42-page opinion that "the housing authority's policy of prohibiting residents from openly carrying firearms in 'common areas' of public housing buildings is reasonable and does not unduly restrict residents' Second Amendment right to own and possess a gun."

The suit, according to the article, was originally filed June 1, 2010, and sought to overturn a blanket ban on gun ownership in public housing in the City of Wilmington altogether. A few weeks later, though, the landmark U.S. Supreme Court ruling in
McDonald v. Chicago held that state and local governments couldn't impose blanket bans on gun ownership. Following that ruling, the Wilmington's housing authority dropped its blanket ban on firearms in September 2010, instead limiting restrictions to guns in common areas. The plaintiffs, backed by the National Rifle Association, however, didn't drop their suit even with the housing authority changes, insisting that the new restrictions also were unconstitutional.

Wednesday, August 01, 2012

Statements made by suspect at scene should not have been supressed because were not result of interrogation

The Ohio Supreme Court's new Court News Ohio service yesterday reported a Second District Court of Appeals' decision that "statements made by a Dayton man arrested for drug possession were admissible and should not have been suppressed by the trial court because they were not the result of police interrogation."

After arresting & placing suspect in back of cruiser, officers field tested and confirmed the substance retrieved was crack cocaine while standing in the front of their car. The Court News summary said "before they had informed the suspect of his Miranda rights, he had made 'an excited utterance' attesting to the fact that he knew he had been standing over crack cocaine and further incriminating statements. Charged with possession of crack cocaine, suspect pleaded not guilty and filed a motion to suppress, which the trial court granted."

"In a unanimous decision authored by Judge Penelope R. Cunningham, sitting by assignment from the First District Court of Appeals, the appeals court said the trial court 'reasonably concluded that the suspect was in custody when he made his statements. However, the trial court erred in concluding that those statements resulted from an interrogation, because the officers did not engage in conduct that was likely to elicit a response.'"

State v. Moody, 2012-Ohio-3390