Monday, November 23, 2009

United States v. Ruckes: Evidence Admissible Despite Illegal Vehicle Search

In United States v. Ruckes, the Ninth Circuit court of Appeals upheld the admissibility of drug and firearm evidence in a case where law enforcement conducted an illegal search of a vehicle under the doctrine of inevitable discovery. The Court followed the recent Supreme Court decision of Arizona v. Gant, which limits searches of automobiles, pursuant to the driver’s arrest, to situations where the driver is “unsecured and within reaching distance” of the interior of the car at the time of the search or where it is reasonable to expect evidence related to the crime underlying the arrest might be found in the vehicle. In Ruckes, the driver was arrested for driving without a license and secured in the back of a patrol vehicle. The Court found that since no evidence related to unlawful driving might be found in the car, and since Mr. Ruckes posed no danger of getting a weapon from the car at the time of the search, the search would otherwise be illegal under the Gant decision. However, the Court allowed evidence of cocaine base and possession of a gun to be used against Ruckes under the doctrine of inevitable discovery, a recognized exception to the Fourth Amendment’s warrant requirement. The Court held, "because the district court did not err in alternatively holding that the drugs and firearm would have been uncovered during a routine inventory search of the vehicle upon impound, we affirm its denial of the motion to suppress under the doctrine of inevitable discovery.” Id. at *1. United States v. Ruckes can be found at __F.3d __, No. 08-30088 , 2009 WL 3719209 (9th Cir. Nov. 9, 2009)

Tuesday, November 10, 2009

Recent Case Holding: People v. Stevens (deputy can stand next to testifying defendant)

Last Thursday, the California Supreme Court ruled that positioning a uniformed deputy next to a testifying criminal defendant isn't inherently prejudicial. Justice Carol Corrigan wrote that "jurors may view the sight of an officer accompanying the defendant to the witness stand as nothing more than a routine measure." On the dissent, Justice Carlos Moreno, joined by Justice Joyce Kennard, said that such an act posed a "serious risk" to an individual's right to a fair trial.

This case occurred in Alameda County, when the trial judge directed a deputy to stand at a defendant's side as he testified on his own behalf in a rape trial. The defense argued that this was akin to a "human shackle" unjustified by good cause. Nonetheless, the majority of the Court held that the presence of a deputy "does not directly impair the accused's mobility, nor does it create the affront to human dignity that we have lamented in the context of visible shackles."

The ruling is at: People v. Stevens, 09 C.D.O.S. 13508.

Tuesday, November 3, 2009

November 1, 2009 Amendments to United States Sentencing Guidelines with respect to Sex Crimes

Taking effect on November 1, 2009, the U.S. Sentencing Commission has made several changes to the federal Sentencing Guidelines in a number of ways relating to sex crimes. The amendments address an enhancement for undue influence of a minor as well as changes to the child pornography and human trafficking guidelines.

Undue Influence Amendments
§2A3.2 (Criminal Sexual Abuse of a Minor Under the Age of Sixteen Years (Statutory Rape) or Attempt to Commit Such Acts) and §2G1.3 (Promoting a Commercial Sex Act of Prohibited Sexual Conduct with a Minor; Transportation of Minors to Engage in a Commercial Sex Act or Prohibited Sexual Conduct; Travel to Engage in Commercial Sex Act or Prohibited Sexual Conduct with a Minor; Sex Trafficking of Children; Use of Interstate Facilities to Transport Information about a Minor) each contain an enhancement for undue influence where “a participant otherwise unduly influences the minor to engage in prohibited sexual conduct.”

Two issues have arisen involving the undue influence enhancement. The first is whether it can apply in attempt cases. The second is whether it can apply where the only “minor” involved is a law enforcement officer. The Sentencing Commission resolved a split in various circuits on this issue in favor of applying the enhancement in applicable attempt cases, but not where the only “minor” involved in the offense is an undercover law enforcement office. The Commission reasoned that unlike other enhancements, the undue influence enhancement properly focuses on the effect on the minor. It is undetermined at this point whether this amendment should be made retroactive to previous defendants’ sentences.

Child Pornography Amendments
§2G2.1 (Sexually Exploiting a Minor by Production of Sexually Explicit Visual or Printed Material; Custodian Permitting Minor to Engage in Sexually Explicit Conduct; Advertisement for Minors to Engage in Production) and §2G2.2 (Trafficking in Material Involving the Sexual Exploitation of a Minor; Receiving, Transporting, Shipping, Soliciting, or Advertising Material Involving the Sexual Exploitation of a Minor; Possessing Material Involving the Sexual Exploitation of a Minor with Intent to Traffic; Possessing Material Involving the Sexual Exploitation of a Minor) are amended to reflect changes in the child pornography statutes at 18 U.S.C. §§ 2251 et seq.

The technology of "streaming video" was added to the child pornography statutes. Specifically, everywhere that “producing a visual depiction” is mentioned, the Commission added “transmitting a live visual depiction” and everywhere “possessing material” is mentioned, the Commission added “accessing with intent to view the material.” These amendments ensure that viewing streaming video, whether or not the video is stored in any permanent format, will result in the same penalties as saving the material.

The Commission also amended §2G2.2 to provide for a new offense at 18 U.S.C. sec 2252A(a)(7), which makes it unlawful to knowingly produce with intent to distribute or knowingly distribute “child pornography that is an adapted or modified depiction of an identifiable minor.” This offense has no mandatory minimum and carries a maximum sentence of fifteen years. The guideline now provides for a base offense level of 18 for such an offense, which is four levels lower than other child pornography distribution offenses. The lower level accounts for the fact that creating the image does not involve actual exploitation of the child (however, the enhancements for distribution and use of a computer are likely to still apply).

Human Trafficking Amendments
The Commission amended §2L1.1 (Smuggling, Transporting, or Harboring an Unlawful Alien) to include an alternative enhancement prong at §2L1.1(b)(8)(B). This enhancement will apply where the alien harboring was for the purpose of prostitution and the defendant receives a §3B1.1 adjustment for aggravating role. In such instance, a two-level increase applies, but if the alien who engaged in the prostitution was a minor, a six-level increase applies. Application Note 6 was also amended to note that §3A1.3 (Restraint of Victim) may apply.