Oklahoma Criminal Defense Blog

To address the abundance of street crime in high crime areas of New York City, the police devised an aggressive stop-and-frisk approach.  They called it TAP, acronym for  Trespassers Affidavit Program.  It used to be known as Operation Clean Halls.  The police approached anyone outside certain housing projects, engaged them, search them, question them and then either let them go or, depending on circumstances, arrest them.  The campaign reaped 1,663 stops.  More aggressive police work usually does bring more arrests, so the inference is that they are stamping out crime, even though most of these encounters led to dismissed charges.

Moscow when it was a part of the Soviet Union and Berlin during the 1930s were remarkably free of street crime.  Of course, it came at the cost of a crushing police presence.  The citizens are terrified of “their” police, but the crime activity statistics look great. The KGB and the Gestapo really knew how to keep the streets free of crime, too.  The point is: Crime is a messy part of a democracy, and it is always a question of how far away from individual freedoms we want to move in order to eradicate crime.

The Constitution is supposed to give the answer to how far society will allow the police to go.  That is what some of the people arrested believed..  Several of those arrested filed a petition last March in federal court seeking an injunction to stop this campaign.  U.S. District Judge Shira Scheindlin granted the injunction, ruling illegal the New York City Police Department’s program.  The judge issued a 157 page opinion detailing why this approach and search campaign was a violation of the Fourth Amendment

The police patrols concentrated in high crime areas of the Bronx. They chose Clean Halls apartment buildings.

The police have justified this program as needed to ferret out drug dealers, gang members and anyone with an inclination toward crime, especially since the 1990s when drug dealers moved indoors to avoid police crackdowns on their street corner drug transactions.  The TARP program allowed them to approach in and around private buildings.

Judge Scheindlin’s injunction described how the police typically stopped one of their subjects: A person exits one of the target apartment buildings, and the police suddenly appear.  The police stop the person, demand identification and bombard the person with questions about where he or she has been, where he or she is going and what he or she is doing.  The police are hostile to any explanations, particularly if the person stopped is young and black.  The police frisk the person, and this may lead to further detention, possibly interrogation, maybe even arrest for trespass.  Most of the charges filed are unsupportable and therefore quickly dismissed.  The police never claimed to have any probable cause or even reasonable suspicion to justify their approach upon these subjects, no indication that they were committing a crime, other than they were there in a high crime area.  Such a rationale is not justifiable, as any criminal defense lawyer will tell you.

The critical legal issue is whether the police can make such seizures under the Fourth Amendment to the Constitution, which prohibits unreasonable searches and seizures.  These searches are called “Terry” searches in honor of the 1968 U.S. Supreme Court decision in Terry vs. Ohio. There are very fine lines between a stop, detention, temporary detention, seizure, and arrest.  But in these cases, the New York Police Department defended their program as essentially consensual, arguing that police didn’t even need reasonable suspicion to detain the subjects since these encounters were agreed-to.  This argument pretends that everyone whom the police approached, as the police, wearing their uniforms, badges, and guns, that everyone thus swarmed by the police, would be free to – or even allowed to- just walk away and ignore the police.

The Court rejected that police department argument and held under the Terry decision that if the police do not have specific and articulable suspicion that those they detain are involved in crime, the detention is illegal.

Police internal records showed that out of 1,663 stops made pursuant to TAP in 2011, 1,044 lacked any justification.  Judge Scheindlin found that only 13 percent of the trespass stops in the Bronx in 2011 resulted in an arrest.  Thus, 87% of those involved apparently did nothing wrong, and the police wasted their time with them, as well as deprived them of their constitutional rights to live their lives without government intrusion.

Since the attacks of September 11, 2001, a vast system has grown up to collect information about Americans has grown up.  No one knows how many programs exists within it or even who many people it employs or how much it costs.  It is the largest, most technologically advanced in our history.  It is designed to collect, analyze information about thousands of Americans, many of whom have been charged with a crime, feeding information from the F.B.I., local police, state homeland security and military criminal investigators.

Such snooping is new to America, but Israel and Britain, among others, have had such domestic security.  There are 3,984 federal, state, and local organizations working on domestic counterterrorism.  The F.B.I. is building a database with the names and certain personal information whom a local police officer or fellow citizen believes is acting in a suspicion manner.  It is accessible to an increasing number of local law enforcement officers, so it may end up as public records.

Some law enforcement agencies have sought to learn more about Islam and terrorism, so they have hired trainers.  These have included self-styled experts whose views on Islam and terrorism are considered inaccurate and counterproductive by the F.B.I. and U.S. intelligence agencies.  Yet the Department of Homeland Security sends the state and local agencies in its network intelligence reports with little helpful guidance.

Of course, everyone in government believes in the program, certainly the players in the  executive branch of the federal government.  Their instincts are all toward security.  “The old view is that if we fight terrorists abroad, we won’t have to fight them here’ is just that – the old view, “ Department of Homeland Security Secretary Janet Neopolitano told police and firefighters.  The Obama administration claims its local approach is the preferred approach, but the effectiveness of its programs is difficult to assess.

Neopolitano is a former governor of Arizona, which built one of the most extensive state  intelligence bases outside New York to combat illegal immigration.  “See Something, Say Something, “ was the catch phrase in Arizona.   Now, traffic signs in Washington, D.C. ask motorists for “Terror Tips,” and to “Report Suspicious Activity.”  Now, Neopolitano has enlisted as partners in her campaign Wal-Mart, major league baseball, Amtrack, and hotel chains.  She compares this fight against terrorism to the cold war fight against Communists.

Now in Arizona, members of the Maricopa County Sheriff’s Facial Recognition Unit use a type of equipment common in war zones, recording 9,000 biometric digital mug shots per month.  Now along the Mexican-U.S. border, the U.S. Customs and Border Protection flies predator drone along the border equipped with real-time, full motion video cameras.  These are the same aircraft as used in Afghanistan, Iraq, and Kosovo, manufactured by General Atomics.  Hand-held, wireless fingerprint scanners are being sold to police departments to check motorists identity.  Such scanners were used by American troops to register residents of neighborhoods in Iraq.

Special operations forces fighting overseas demanded technological advances that are now used at home.  In combat that technology enabled the quick use of biometric identification, captured computer records and cellphone numbers to give the troops the ammunition to launch their next surprise raid.  Now Department of Homeland Security has helped the Memphis Police Department purchase surveillance cameras that monitor high-crime housing projects, problem street corners, and bridges and other infrastructure.  It helped to pay for license plate readers and helped with the costs of setting up the crime analysis center in Memphis.  The D.H.S. has given Memphis $11 million total since 2003 in homeland security grants, most of which Memphis used to fight plain vanilla crime, not Al Queda.  There is no such thing as spending too much money to fight crime, so long as the taxpayers are willing to keep paying the bills.

Memphis is using the new equipment.  The police department all information it can get from government and private industry.  It now has daily updates on the names and addresses of subscribers from the utility company.  Instead of waiting for a patrol officer in the field to decide which license number to input, the officers now just drive around using one of their fancy new license plate readers installed on the hood of the car read and transmit to the center every license
they drive by.  The computer in the vehicle will tell the officer in the field the name, address and criminal history of the vehicle’s owner, along with the names of any one else who lives at that address with a criminal history.

The F.B.I. has 90,000 sets of fingerprints stored in Clarksburg, W. Va.  Stored there are fingerprints from this country with those collected by American authorities from Saudia Arabia, Iraq, Afghanistan and Yemen.  Now the F.B.I. has developed sharing its fingerprints files with D.H.S. and the Department of Defense fingerprint databases.

Meanwhile the F.B.I. maintains a top-secret vault on the fourth floor of the J. Edgar Hoover building. Kept there are the profiles of thousands of Americans, none of whom have been even accused of a crime.  Instead, the profiles are of people who have acted in a suspicious manner to any deputy sheriff, police officer or neighbor.  This should be a concern for all citizens, not just criminal defense lawyers.

The United States Supreme Court recently decided that citizens have a constitutional right to possess a firearm in their home, and that Second Amendment right applies to the states.  That means cities like Chicago have to change their laws regulating the possession of guns.

Four days after the Supreme Court decision invalidating Chicago’s gun ban, the City Council enacted new, gentler gun-control regulations.  The vote was unanimous for the 45 aldermen voting for the measure.  The council wanted to put new handgun law in place before the invalidated law disappears, and the city has no regulation at all.

Of course, Mayor Daly explained passage of the law as designed to keep guns out of the hands of “gangbangers and drug dealers.”  And, of course, the ordinance is explained as supporting adults who legitimately want a gun in their home for self-defense.  But some aldermen believe the new ordinance will have more impact on law-abiding citizens than on anyone intending to commit a crime with their gun.

The new law took effect 10 days after it was passed.  It will require anyone who wants to keep a handgun in their home lawfully to first obtain a permit from the City of Chicago. The permit requires the holder to complete firearm training and a record without any convictions of a violent crime, any record of violent use of a firearm, or two or more charges of driving under the influence of drugs or alcohol.

Each gun must be registered by the city, and a person can register only one weapon each month.  A permit-holder may have only one handgun in readily operable condition at one time. The permit requires the handguns be kept only in the home, and the ordinance excludes garages, porches, and exterior stairs from the definition of a home.

The ordinance prohibits gun sales, firing ranges or shooting galleries inside the City of Chicago.  The ban on sales is expected to be challenged in court, as are other provisions of the ordinance.  The council knows that.  Aldermen were quoted as saying they could not imagine how anyone could possibly question the reasonableness of their regulations, but they know the challenges are coming.

One of the aldermen, Leslie Hairston, said he thought the Supreme Court was wrong in their opinion upholding the Second Amendment just like the Court was wrong about segregation.  Historically, he’s right, but he forgot that it was the Supreme Court which turned the country around in the matter of segregation, beginning with the decision in Brown v. Board of Education of Wichita.  Only after years of decisions from the Supreme Court following the Brown decision did the executive and legislative branches address segregation significantly, the partial integration of the armed forces during World War II being a significant – but isolated – exception.

During consideration of the ordinance, several aldermen expressed the belief that the Supreme Court would never have overturned their gun law if the justices were more familiar with urban violence.  This comment shows the myopic viewpoint council, one incapable of looking beyond their routine horse-trading, pragmatic approach to everything.  These same aldermen would be the ones to fault any court-ordered restrictions to police handling of public demonstrators because the police need to protect public order.  They are unaware of the importance of protecting free speech by the First Amendment to the Constitution.  All countries have crowd problems and crime problems.  Only the United States has the Bill of Rights, including what is left of the Fourth Amendment.

The Supreme Court of South Dakota ruled a violation of the 4th Amendment to the U.S. Constitution, a police search when they conducted a routine inventory search of an automobile lawfully impounded by police for violations of municipal parking violations.

After incurring two overtime parking citations in the same morning, a car was towed by police and impounded.   At the impound lot, a police officer observed a watch and some other personal property inside the car and ordered the car unlocked to perform an inventory of its contents.  Using a “standard” form to list the property found, a police officer performed an inventory of the contents of the car according to police procedures.  Inside the unlocked glove compartment, police found some marijuana in a plastic bag.  All property, including the marijuana, was sent to the police department for safekeeping.

Respondent Opperman was later arrested and charged with possession of marijuana.  His motion to suppress was denied, and he was convicted by a jury.    He was sentenced to 14 days in jail and a fine of $100.  That conviction was reversed by the Supreme Court of South Dakota in a ruling that found an illegal search and seizure in violation of the Fourth Amendment.  That ruling was appealed to the United States Constitution and was decided in South Dakota v. Opperman.

The Supreme Court of the United States has recognized for years the distinction between the search of a building versus the search of an automobile.  According to the Court’s decision in Carroll v. United States in 1925, the “inherent mobility of automobiles creates circumstances of exigency that, as a practical necessity, rigorous enforcement of the warrant requirement is impossible.”  The Court stated the expectation of privacy was less in an automobile than in a home because its function is transportation and “seldom serves as one’s residence or as the repository of one’s personal effects…”

The Court found state courts have “overwhelmingly” concluded that, even if an inventory is characterized as a search, the intrusion is constitutionally permissible.  The Court noted that the majority of Appeals Courts have approved inventory procedures as reasonable police intrusions, citing decisions from the Fourth, Fifth, Sixth and Ninth circuits.

The Court cited its prior decision in Cady v. Dumbrowski, which had approved a warrantless search of an automobile which had been towed to a private garage even though no probable cause existed to believe the vehicle contained fruits of a crime.  In Dumbrowski, “the sole justification for the warrantless incursion was that it was incident to the caretaking function of the local police to protect the community ‘s safety.”

The Court distinguished its holding in Preston v. United States in 1964, in which the Court had invalidated a car search after a vagrancy arrest, saying Preston stood for the proposition that “the search challenged there could not be justified as one incident to an arrest.”  The Court said Preston did not raise the issue of the constitutionally of a protective inventory of a car lawfully within police custody.  Preston was not, therefore, at odds with the Court’s decision in Opperman, the Court ruled.

When you are arrested, you have the right to remain silent. Everyone knows that.  But if you simply maintain silence, the police can continue to question you until you finally talk.  That is the recent ruling from the United States Supreme Court.  If you want to protect your right to remain silent, you must, interestingly, speak up to assert that right.

In the case of Berghuis versus Thompkins, the Supreme Court decided by a vote of 5-4 in a split along well-known ideological lines not to suppress the statements of a suspect who incriminated himself after 3 hours of police interrogation.  Justice Anthony Kennedy wrote the majority opinion which decided that courts need not suppress statements made by defendants who receive the “Miranda” warning and do not expressly waive their rights and speak only after remaining silent through hours of interrogation.  Justice Sonia Sotomayor wrote her first major dissent.  She wrote that the majority’s decision “turns Miranda upside down” and “bodes poorly for the fundamental principles that Miranda protects.”

The case involved a Michigan man, Van Chester Thompkins, accused of shooting a man to death in 2000.  He was arrested a year later and read his Miranda rights.  He refused to sign a form to acknowledge he understood his Miranda rights.  He then sat through three hours of interrogation, silent.
Then, after two hours and forty-five minutes into the interrogation, Thompkins answered with the answer, “yes,” to three questions: “Do you believe in God?” “Do you pray to God?”  “Do you to pray to God to forgive you for shooting that boy down?”  His answer to the last question was introduced as evidence against him at his trial, at which he was convicted of murder in the first degree.  The U.S. Court of Appeals had ruled that statement should have been excluded because the prosecution could not prove Thompkins did not knowingly and voluntarily waive his right to remain silent, and it was that decision the U.S. Supreme Court reversed.

The famous 1966 U.S. Supreme Court decision of Miranda versus Arizona ruled that a “valid waiver will not presumed from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.”  It also said the government faced a “heavy burden” in trying to prove that a suspect’s waiver was knowing and intelligent.
Justice Kennedy in Berghuis acknowledged that “some language in Miranda could be read to indicate that waivers are difficult to establish absent an explicit written waiver or a formal, express oral statement.”  Justice Kennedy then said that decisions Miranda have diminished its language, and a more sensible rule put the burden on suspects to invoke their rights.

“A suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police,” Justice Kennedy wrote.   He said that people who knew their rights and acted “in a manner inconsistent with their exercise’ might be presumed to have waived their rights, meaning that responding to police questioning in itself an implied waiver of the right to remain silent.”  As criminal defense lawyers know, just because the Miranda rights are read, many suspects do not understand their rights;  They often have the impression that is not really a right which they can actually invoke.
Justice Kennedy was joined in the majority opinion by Justices Antonin  Scalia, Clarence Thomas, Samuel Alito, and Chief Justice John Roberts.

Justice Sotomayer’s dissent pointed out the majority opinion created a paradox.  “A suspect who wishes to guard his right to remain silent must, counterintuitively, speak.”  She said the principles flatly contradict earlier decisions from the court.  “At best, the court today creates an unworkable and conflicting set of presumptions.  At worst, it overrules sub silentio an essential aspect of the protections Miranda has long protected.”  She was joined in her dissent by Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer.

A former A.T.F. agent is in jail, awaiting prosecution for a fabricated drug buy.  Brandon McFadden was an agent for the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives for seven years before resigning last year.  He was arrested by the F.B.I. and is now in the Tulsa County Jail awaiting prosecution in U.S. District Court there.  McFadden pled guilty soon after he was arrested to participating in a drug conspiracy.

McFadden is alleged to have coached a drug informant and fabricated a drug buy on May 8, 2007.   Not charged but implicated along with McFadden in the crime is Jeff Henderson, a Tulsa Police Officer.  Upon pleading guilty, McFadden named Henderson as a co-conspirator in the drug conspiracy, saying he and Henderson stole drugs and money and set up drug dealers to sell drugs on their behalf.

The drug buy with the coached informant led to the conviction of Larita Annette Barnes and Larry Wayne Barnes of federal drug charges.  They were both released from federal prison last July because the informant, Ryan Logsdon, said he lied about the drug buy.   Larry Barnes had served about a year on a 5 ½ year sentence.  Larita Barnes had served about a year on two concurrent 10-year sentences.

Jeff Henderson was put on paid leave from the Tulsa Police Department in April after the local newspaper published the report about the Barnes’s being released from prison.  He should be getting ready for prison because McFadden will do whatever he can to help the U.S. Attorney to convict him.

Tulsa County District Attorney Tim Harris has ordered a review of the cases in which Henderson had been involved, which could number more than 100.   Harris announced in court that he could not release any information because there is an ongoing grand jury investigating matters, but Harris’s office acknowledged that it was contacted by Jane W. Duke, special prosecutor assigned to investigate corruption in law enforcement in Tulsa.  She is U.S. Attorney for the Eastern District of Arkansas.

This sort of thing does not come as a surprise to criminal defense lawyers.  Some people, however, believe uncritically in “law enforcement,” they will alibi without reason for these false-swearers.   Some people will continue to believe such “law reenforcement” types are the good guys, in spite of clear evidence they are the bad guys, law-breakers, perjurors, those who bear false witness and wrongfully put people in prison.  There are those who believe that just because someone wears a uniform, that someone can do no wrong.  That is a dangerous attitude, that someone can commit no wrong.  It is not the principle that drives our American system of justice, and that is why McFadden is being prosecuted.

As the economy continues to struggle in Oklahoma, revenues to the state come in at lower levels than last year.  The state must therefore cut expenditures.   All state agencies are now planning a five percent reduction in spending.   Some projects may do worse.

One of these is the Oklahoma Indigent Defense System. It pays for the defense of those accused of crimes who cannot afford their own lawyer.  The Indigent Defense System pays for attorneys and some investigators in separate departments, broken down into cases involving charges of capital crimes and non-capital crimes, and broken down for trials and for appeals for both capital and non-capital.

The capital division, for those charged with cases facing the death penalty, is adequately funded.  Funding for non-capital crimes is less sure.

Capital crimes are probably more certainly funded because any failure in representation in these cases will likely result in a reversal on appeal and the necessity to try cases all over again.   And capital cases are already costly for the state to prosecute due to the courts’ demands for detailed and careful proceedings when such an extreme penalty is at issue.

The Indigent Defense System says it needs $1million more in funding, and the legislature is looking everywhere in its budget for the money.  One pot of money the legislature is now considering shifting the Indigent Defense System is the funding the legislature gives to Legal Aid of Oklahoma.

The state is not required to fund Legal Aid, which provides legal services of a non-criminal nature to those who truly unable to afford legal services.  Legal Aid guidelines are strict and their income level required for someone to be represented is demandingly low. But Legal Aid does have other funding sources, and the legislature is not required to fund Legal Aid.  The legislature is required to fund Indigent Defense, required by the constitution, which could ultimately be enforced by the federal courts.

As criminal defense lawyers well know, attorneys appointed by the Indigent Defense System have a heavy workload.   There are always plenty of people charged with crimes who have no money to pay a lawyer.  But now that workload is increasing.

During the 2009 budget year which ended last June 30, the staff of criminal defense attorneys who work for the indigent defense office handled 39,369 cases.  Estimates are for an increase to approximately 44,100 cases by the end of the 2010 budget year.

The legislature may not get to use the money from Legal Aid for indigent defense, however.  The legislature and the governor agreed earlier this year on the funding levels for indigent defense and Legal Aid, and the governor’s office is sticking with that agreement.  For now, that means the legislature will have to look elsewhere for its $1,000,000 funding shortfall for indigent defense for next year.