The facts in the Florence case are as follows:

Mr. Florence was arrested during a traffic stop by a New Jersey state trooper who checked a statewide computer database and found an arrest warrant issued for Florence’s arrest after he failed to appear at a hearing to enforce a fine.  He was initially detained in the Burlington County Detention Center and later in the Essex County Correctional Facility, but was released once it was determined that the fine had been paid.  At the first jail, Florence, like every other incoming prisoner, had to shower with a chemical that is used to get rid of head lice, and he was checked for scars, marks, gang tattoos, as well as for things like drugs and weapons as he undressed.  Mr. Florence claimed that he also had to open his mouth, lift his tongue, hold out his arms, turn around, and lift his genitals.

At the second jail, Florence, like other arriving prisoners, had to remove his clothing while an officer looked for body markings, wounds, and illegal objects. An officer also looked at his ears, nose, mouth, hair, scalp, fingers, hands, armpits, and other body openings.  He had a mandatory shower, and his clothes were examined.  Florence claimed that he was also required to lift his penis, turn around, and cough while squatting.

When his case eventually reached the Supreme Court, Mr. Florence argued that      people who are arrested for minor crimes should not be subjected to strip searches unless jail officials have reason to believe that a particular individual is concealing weapons, drugs, or some other type of illegal object on his or her person.

Unfortunately for Florence, the Supreme Court rejected his argument for the following reasons:

1.  Maintaining order and safety at jails requires that jail officials be given substantial discretion to devise reasonable solutions to problems.

2.  Jail officials have a significant interest in conducting a thorough search as a standard part of the intake process.

3.  The admission of new inmates creates risk for jail staff, the existing inmates, and for the new inmates themselves.

4.  People arrested for minor crimes are among those who are processed at jails.

5.  Jail officials must screen new arrivals for contagious infections and for injuries that require immediate medical attention.  It may be difficult to identify and treat such medical problems until inmates remove their clothes for a visual inspection.

6.  Because jails must deal with potential gang violence, jail officials should be allowed to visually inspect the bodies of new arrivals for signs of gang affiliation.

7.  Jail officials should be allowed to inspect new arrivals for such things as drugs, alcohol, and weapons in order to protect both the jail staff and the inmates themselves.

8.  Experience shows that people arrested for minor crimes have tried to smuggle illegal items into jails, sometimes by using their rectal cavities or genitals in order to conceal the items.  For example, one man arrested for driving under the influence of alcohol was found to have two small bags of marijuana, one pack of rolling papers, 20 matches, and five sleeping pills taped under his scrotum.

9.  Some people who are arrested for minor crimes make a snap decision to hide illegal items on their persons in order to avoid getting into even more trouble.

1.  The existence of an enterprise;

2.  The enterprise affected interstate commerce;

3.  The defendants were employed by or associated with the enterprise;

4.  The defendants participated, either directly or indirectly, in the conduct of the affairs of the enterprise; and

5.  The defendants participated through a pattern of racketeering activity.

In the case of United States of America versus Goldin Industries, Inc., the defendants were corporations that were convicted of RICO.  They appealed to the Eleventh Circuit Court of Appeals where they argued that their convictions should be reversed because the law requires that a “person” who is prosecuted under the RICO statute be “separate and distinct from the RICO ‘enterprise’ which has its affairs conducted through a pattern of racketeering activity.”  In other words, a corporation cannot be named in an indictment both as a liable “person” and as the “enterprise” in RICO prosecutions. Because the indictment in this particular case did precisely that, the defendants argued that their convictions were unlawful and should therefore be reversed.

The appellate court agreed with the defendants and in doing so stated that “the RICO enterprise is necessary because the enterprise itself can be a passive instrument or victim of the racketeering activity. . . .  [T]he indictment must name a RICO person distinct from the RICO enterprise.  The plain language of the statute requires that the entities be distinct.”

Whether a police officer may lawfully frisk a passenger in a vehicle stopped for a minor traffic infraction when the officer has no reason to believe that the passenger has committed, is committing, or is about to commit a crime, but nevertheless reasonably suspects the passenger to be armed and dangerous?

The facts in the Johnson case are as follows:

“On April 19, 2002, Officer Maria Trevizo and Detectives Machado and Gittings, all members of Arizona’s gang task force, were on patrol in Tucson near a neighborhood associated with the Crips gang.  At approximately 9 p.m., the officers pulled over an automobile after a license plate check revealed that the vehicle’s registration had been suspended for an insurance-related violation.  Under Arizona law, the violation for which the vehicle was stopped constituted a civil infraction warranting a citation.  At the time of the stop, the vehicle had three occupants–the driver, a front-seat passenger, and a passenger in the back seat, Lemon Montrea Johnson.  In making the stop the officers had no reason to suspect anyone in the vehicle of criminal activity.

The three officers left their patrol car and approached the stopped vehicle.  Machado instructed all of the occupants to keep their hands visible.  He asked whether there were any weapons in the vehicle; all responded no.  Machado then directed the driver to get out of the car.  Gittings dealt with the front-seat passenger, who stayed in the vehicle throughout the stop.  While Machado was getting the driver’s license and information about the vehicle’s registration and insurance, Trevizo attended to Johnson.

Trevizo noticed that, as the police approached, Johnson looked back and kept his eyes on the officers.  When she drew near, she observed that Johnson was wearing clothing, including a blue bandana, that she considered consistent with Crips membership.  She also noticed a scanner in Johnson’s jacket pocket, which ‘struck her as highly unusual and cause for concern,’ because ‘most people’ would not carry around a scanner that way ‘unless they’re going to be involved in some kind of criminal activity or are going to try to evade the police by listening to the scanner.’  In response to Trevizo’s questions, Johnson provided his name and date of birth but said he had no identification with him.  He volunteered that he was from Eloy, Arizona, a place Trevizo knew was home to a Crips gang.  Johnson further told Trevizo that he had served time in prison for burglary and had been out for about a year.

Trevizo wanted to question Johnson away from the front-seat passenger to gain ‘intelligence about the gang Johnson might be in.’  For that reason, she asked him to get out of the car.  Johnson complied.  Based on Trevizo’s observations and Johnson’s answers to her questions while he was still seated in the car, Trevizo suspected that ‘he might have a weapon on him.’  When he exited the vehicle, she therefore ‘patted him down for officer safety.’  During the patdown, Trevizo felt the butt of a gun near Johnson’s waist.  At that point Johnson began to struggle, and Trevizo placed him in handcuffs.  Johnson was charged in state court with possession of a weapon by a prohibited possessor.”

The Supreme Court ruled that Officer Trevizo’s patdown of Johnson did not violate the prohibition against unreasonable searches and seizures contained in the Fourth Amendment to the U.S. Constitution for the following reasons:

1.  A traffic stop of a car communicates to a reasonable passenger that he is not free to end the encounter with the police and move about at will.

2.  Nothing occurred in this case that would have communicated to Johnson that, prior to the frisk, the traffic stop had ended or that he was otherwise free to leave the scene without the permission of the police.

3.  Officer Trevizo was not constitutionally required to give Johnson an opportunity to leave the scene after Johnson got out of the car without first ensuring that she was not permitting a dangerous person to get behind her.

Before SORNA went into effect, an individual named Thomas Carr, who was a registered sex offender in Alabama, moved to Indiana but failed to comply with Indiana’s registration requirements for sex offenders.  After SORNA went into effect, Carr was charged with violating it because of his failure to register in Indiana.

Carr filed a motion to dismiss his case on the ground that prosecuting him violated the Ex Post Facto Clause of the United States Constitution because he had traveled to Indiana before SORNA went into effect.  The judge denied his motion, so Carr appealed to the Seventh Circuit Court of Appeals.  That court also ruled against Carr on the ground that he had had a reasonable amount of time to register after SORNA went into effect but had still failed to do so.

Carr then appealed to the United States Supreme Court.  That court ultimately ruled in his favor in the case of Carr v. United States.  The High Court stated that SORNA applies to two categories of persons:

1. Anyone who is a sex offender because he was convicted under federal law; and
2. Anyone else who is required to register under SORNA and who travels to another state or country.

Because Congress used the word “travels” rather than “traveled” or “has traveled,” Congress thereby indicated that SORNO does not apply to those individuals who traveled to another state or country before that law went into effect.  And because Mr. Carr traveled from Alabama to Indiana before SORNA went into effect, he could not be prosecuted under that law even though he had continued to fail to register in Indiana after it went into effect in 2006.

          Earlier this year, though, the Supreme Court decided the case of Maryland v. Shatzer which dealt at length with the ruling in Edwards.  The relevant facts in Shatzer are as follows:

          In 2003, a police detective tried to question Mr. Shatzer while he was already incarcerated at a Maryland prison on another charge about allegations that he had sexually abused his son.  Shatzer, however, exercised his Miranda right to have an attorney present while being questioned, so the detective stopped the interview.  Shatzer returned to the general prison population, and the investigation was closed.  Subsequently, in 2006, another detective reopened the investigation and attempted to question Shatzer once again while he was still incarcerated.  This time, Shatzer waived his Miranda rights and made incriminating statements.

          Shatzer’s lawyer filed a motion to suppress his incriminating statements to the second detective based on the fact that he had told the first detective three years earlier that he wanted a lawyer present while being questioned.  Shatzer lost that motion, and his case ultimately ended up being decided by the U.S. Supreme Court.

          The High Court also ruled against Shatzer and in doing so stated:

          1.  Edwards v. Arizona held that once a suspect invokes his Miranda right to have an attorney present while being questioned by the police, any waiver of that right in response to subsequent questioning by the police is deemed involuntary and therefore inadmissible in court.

          2.  But where a suspect has been released from custody and returned to his normal life for some time before the police attempt to question him again, there is little reason to believe that his decision to speak with the police was coerced.

          3.  After 14 days have passed, the ruling in Edwards v. Arizona no longer applies.  That is to say, the police are free to return to a suspect and try to question him again even though he stated he wanted a lawyer present when the police previously tried to question him as long as at least 14 days have passed between the two events.

          4.  Shatzer’s release back into the general prison population constituted a break in custody for purposes of satisfying the requirements contained in Miranda v. Arizona.

          Previously, on November 1, 2007, the sentencing commission amended the crack-cocaine guidelines when it lowered the penalties for most crack-cocaine crimes by two levels. On December 11, 2007, the commission voted to make the amended guidelines retroactive to cases sentenced before November 1, 2007, with an effective date of March 3, 2008.  The commission also significantly changed the retroactive application of amendments.  Through an amendment that became effective on May 1, 2008 (Amendment 715), the commission further modified the sentencing guidelines by revising the way in which combined offense levels are determined in cases involving crack cocaine as well as other drugs.  Amendment 715, which was also made retroactive, provides that 1 gram of cocaine base equals 20 kilograms of marijuana and provides for a two-level reduction in the combined offense level for cases involving more than one type of drug unless certain exceptions apply.

          1.  That there was an agreement by two or more persons to commit a crime;

          2.  A defendant had knowledge of the agreement; and

          3.  The defendant voluntarily joined in the enterprise.

          When the defendant in an alleged drug conspiracy is located in an automobile that has drugs in it at the time of his arrest, it is not enough that he is merely present in the car; there must also be “circumstances evidencing a consciousness of guilt” on his part before he can be convicted of conspiracy.  Such circumstances include the fact that the defendant was:

          1.  Nervous;

          2.  Made conflicting statements to the police;

          3.  Told the police an implausible story;

          4.  Made untrue statements to the police;

          5.  Took steps to avoid police surveillance;

          6.  The defendant had made other, brief trips along the same drug route; and

          7.  He sought assistance in hiding the cocaine in his car.

          In the case of United States v. Stanley, Ms. Stanley was an automobile passenger and was ultimately convicted of conspiracy to possess with intent to distribute cocaine based on the following facts:

          “On December 12, 1991, police arrested Timothy Wayne Murray in Columbus, Georgia, on cocaine trafficking charges. Murray agreed to cooperate with police by assisting them in arresting his suppliers in Atlanta, Georgia.  At the direction of the police, Murray made a telephone call from the police department in Columbus to defendant Cameron in Atlanta. Murray telephoned Cameron’s pager number and left the telephone number of the telephone line used by the police to set up undercover drug deals.  At approximately 8:40 p.m. on December 12th, Cameron returned Murray’s telephone call, and the police tape-recorded the ensuing conversation between Cameron and Murray. During the course of this conversation, Cameron and Murray arranged a drug deal: Cameron agreed to drive down to Columbus that evening with three and one-half ounces of cocaine base, for which Murray agreed to pay $3,600.00. Cameron agreed to telephone Murray when he arrived at the Hardee’s Restaurant in Columbus.

          Several hours later, Cameron telephoned Murray from the Hardee’s Restaurant in Columbus.  An undercover police officer drove Murray to the Hardee’s Restaurant in an old pick-up truck. When they arrived at the Hardee’s, Murray saw Cameron across the street at the gas station, standing beside his car pumping gas. As he approached Cameron’s car, Murray saw two passengers in the car, a black female in the front passenger’s seat and a black male, identified as Powers, in the back seat.  Murray asked Cameron, “where the dope was,” and Powers responded, “You need to talk to me.”  Powers then got out of the car and he and Murray walked across the street to the Hardee’s Restaurant, discussing the drug deal as they walked. Powers and Murray then walked back across the street to the gas station and got into the back seat of Cameron’s car. Cameron sat in the driver’s seat. The woman was still in the front passenger’s seat.

          Cameron drove the car out of the gas station and across the street toward the back of the Hardee’s Restaurant, ostensibly so Murray could obtain money for the drug deal.  As Cameron drove across the street and around toward the back of the restaurant, police officers moved in to make the arrests.  The undercover police officer who had driven Murray to the scene stopped Cameron’s car by ramming it with the pick-up truck. Another officer observed Powers throw an automatic pistol out of the car.  After apprehending the occupants of Cameron’s car, the police officers searched the car and discovered cocaine base under the dashboard. The police arrested Cameron, Powers, and the woman in the front seat, identified as Stanley.  The arrests were made at approximately 2:00 a.m.  In a post-arrest statement, Cameron admitted ownership of the cocaine base discovered hidden under the dashboard.”

          Ms. Stanley appealed her conviction, and the Eleventh Circuit Court of Appeals agreed with her that the evidence was insufficient to indicate a consciousness of guilt on her part.  The appellate court therefore vacated her conviction and in doing so found the following facts to be particularly relevant:

          1.  There was no evidence regarding Stanley’s demeanor as well as no evidence that she made untrue, contradictory, or otherwise incriminating statements.

          2.  Murray, who set up the drug transaction, did not know Stanley.

          3.  Although Murray asked about the “dope” in Stanley’s presence, there was no evidence that she heard his statement or, if she did, whether she reacted to it.

          4.  Before discussing the drug deal, Powers and Murray moved away from the car, such that Stanley could not hear their discussion.

          5.  There was no evidence that the crack cocaine hidden under the dashboard was within Stanley’s reach.

          6.  Cameron admitted ownership of the cocaine without in any way implicating Stanley.

          7.  There was no evidence to tie Stanley to the unidentified, inaudible, female voice on the tape recording of Murray’s conversation with Cameron.

          8.  Cameron’s reference during that conversation to a “posse” could not implicate Stanley because Cameron indicated that he did not intend to bring the “posse” on the trip to Columbus.

[A]ny person who, during and in relation to any crime of
violence or drug trafficking crime . . . for which the person may be prosecuted in[federal court], uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime -

(i) be sentenced to a term of imprisonment of not less than 5
years;

(ii) if the firearm is brandished, be sentenced to a term of
imprisonment of not less than 7 years; and

(iii) if the firearm is discharged, be sentenced to a term of
imprisonment of not less than 10 years.

          Because of the enhanced penalties that exist for using a firearm, it is obviously very important to know what the word “uses” means in the context of this particular law.  However, the statute itself does not define this word, so we have to look elsewhere for guidance. 

          As it so happens, the United States Supreme Court has discussed the meaning of the word “uses” in the context of this particular law on at least three different occasions.

          In the first case, Smith v. United States, Mr. Smith offered to trade a gun to an undercover police officer in exchange for cocaine and was subsequently indicted in federal court for several firearm and drug-trafficking crimes.  On appeal, Mr. Smith argued that “using” a firearm means actually using it as a weapon and not merely bartering with it.

         The Supreme Court rejected this argument stating that:

The firearm’s presence in this case was not the product of happenstance.  On the contrary, far more than in the ordinary case in which the gun merely facilitates the offense by providing a means of protection or intimidation, here the gun was an integral part of the transaction.  Without it, the deal would not have been possible.  The undercover officer posing as a pawnshop dealer expressly told Smith that he was not in the narcotics business and that he did not get involved with drugs.  For a semiautomatic weapon, however, he was willing to see if he could track down some cocaine.

          The second case in which the Supreme Court dealt with the definition of “uses” was Bailey v. United States.  In that case, two individuals named Bailey and Robinson were each convicted of violating federal drug laws as well as the statute that was quoted at the beginning of this article. 

          In Bailey’s case, the police found a loaded pistol inside a bag in his locked car trunk after he had been arrested and while his car was being searched.  In Robinson’s case, an unloaded, holstered gun was found locked in a trunk in her bedroom closet after she had been arrested on several drug-related offenses.  There was no evidence that either Bailey or Robinson actively used the guns in any way.

          On appeal, the Supreme Court ruled in favor of both Bailey and Robinson stating that using a firearm means actively employing it in connection with a crime of violence or drug-trafficking crime.  It is not enough for a prosecutor to prove merely that a gun was located close to drugs or to a defendant.  Because neither Bailey nor Robinson actively employed guns in either of their cases, the Supreme Court reversed their convictions.

          The third case in which the Supreme Court dealt with the definition of “uses” was Watson v. United States.  Unlike the Smith case where the defendant offered to trade an automatic weapon to an undercover officer in exchange for drugs, Mr. Watson did just the opposite:  he offered to trade drugs in exchange for a gun.  That being the case, it was actually the officer who used the gun during the transaction and not Watson.  Accordingly, the Supreme Court reversed Mr. Watson’s conviction.

          If you have been charged in federal court with using a firearm in connection with a crime of violence or a drug-trafficking crime, you should look carefully at how you are alleged to have used that firearm.  Is the prosecuting alleging that you actively employed it or that it was merely present at or near the crime scene?  That distinction could make all the difference in your particular case.

          But what happens if the police violate this rule and the defendant confesses to committing a crime after he is arrested but before he is taken before a judge?

          The United States Supreme Court addressed this question in a case called Corley v. United States.  The relevant facts in that case are as follows:

          “Corley was arrested for assaulting a federal officer at about 8 a.m. Around 11:45 FBI agents took him to a Philadelphia hospital to treat a minor injury. At 3:30 p.m. he was taken from the hospital to the local FBI office and told that he was a suspect in a bank robbery. Though the office was in the same building as the nearest magistrate judges, the agents did not bring him before a magistrate judge, but questioned him, hoping for a confession. At 5:27 p.m., some 9.5 hours after his arrest, Corley began an oral confession that he robbed the bank. He asked for a break at 6:30 and was held overnight. The interrogation resumed the next morning, ending with his signed written confession. He was finally presented to a Magistrate Judge at 1:30 p.m., 29.5 hours after his arrest, and charged with armed bank robbery and related charges.”

          Corley subsequently filed a motion to suppress in which he asked the lower court to throw out his confession because the FBI agents who arrested him violated Federal Rule of Criminal Procedure 5 by waiting so long before letting him see a magistrate judge.  The lower court denied his motion, and Corley was eventually convicted of conspiracy and bank robbery.

          Corley’s case ultimately reached the U.S. Supreme Court which ended up ruling in Corley’s favor (but by a vote of just 5 to 4).

          Writing for the majority, Justice Souter noted that the Supreme Court has long held that confessions are inadmissible in court when they are obtained in violation of the rule requiring recently-arrested defendants be brought promptly before a magistrate judge.

          Justice Souter stated that “[i]n a world without [this rule], federal agents would be free to question suspects for extended periods before bringing them out in the open, and we have always known what custodial secrecy leads to.  . . .  No one with any smattering of the history of 20th-century dictatorships needs a lecture on the subject, and we understand the need even within our own system to take care against going too far. ‘[C]ustodial police interrogation, by its very nature, isolates and pressures the individual,’ . . . , and there is mounting empirical evidence that these pressures can induce a frighteningly high percentage of people to confess to crimes they never committed . . . .”

          In the Fisher case, police officers responded to a complaint of a disturbance.  When the officers arrived, a couple directed them to a residence where a man was “going crazy.”  After arriving and before entering the home, the officers saw the following:

• A pickup truck in the driveway with its front smashed;
• Damaged fence posts along the side of the property;
• Three broken house windows;
• Glass still on the ground outside;
• Blood on the hood of the pickup, on clothes inside the pickup, and on one of the doors to the house;
• The back door to the house was locked;
• A couch blocking the front door;
• Mr. Fisher inside the house screaming and throwing things; and
• A cut on Mr. Fisher’s hand.

          When the officers saw the cut on Fisher’s hand, they asked him if he needed medical attention.  Fisher ignored their questions and demanded that they go get a search warrant.  One of the officers then pushed the front door open and went inside where he saw Fisher pointing a gun at him.

          Fisher was subsequently charged under Michigan law with assault with a dangerous weapon and possession of a firearm during the commission of a felony.

          After much litigation in the lower courts, Fisher’s case finally arrived at the U.S. Supreme Court where he argued that the officer who entered his home without a search warrant violated the Fourth Amendment to the United States Constitution. 

          Unfortunately for Mr. Fisher, however, the Supreme Court rejected his argument.  Citing to its earlier decision in the case of Brigham City v. Stuart, the High Court reiterated its previous ruling that law enforcement officers “may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.”

          Justice John Paul Stevens disagreed with the majority opinion and therefore wrote a dissenting opinion in which he pointed out that the officer who entered Fisher’s home had previously testified that he saw “mere drops” of blood outside Fisher’s residence and that he did not ask whether anyone else was inside.  Additionally, the officer did not testify that he had any reason to believe that anyone else was inside the house.

          Justice Stevens continued on to state that the trial judge who heard firsthand the testimony of the police officers “found the police decision to leave the scene and not return for several hours–without resolving any potentially dangerous situation and without calling for medical assistance–inconsistent with a reasonable belief that Fisher was in need of immediate aid.  In sum, the one judge who heard [the officer's] testimony was not persuaded that [he] had an objectively reasonable basis for believing that entering Fisher’s home was necessary to avoid serious injury.”