Monday, December 23, 2013

Latest Insider Trading Conviction

Last week, a federal jury in Manhattan found former SAC portfolio manager, Michael Steinberg, guilty on 5 insider trading charges related to trades he made in the shares of Dell and Nvidia.  Steinberg was the highest-ranking employee at SAC Capital Advisors to stand trial for insider trading. Other SAC employees pled guilty to securities fraud and cooperated with the government. His verdict was also reached without the use of wiretap evidence; the evidence was purely circumstantial. A former SAC analyst who was cooperating did testify on behalf of the government, but otherwise, there was no hard evidence against Mr. Steinberg. 

The government's record is now 77 guilty pleas or convictions for insider trading cases over the past four years, out of 87 people charged, including firms and individuals.

Monday, December 9, 2013

Expert Testimony on Reliability of Breath Test in DUI Excluded

The California Supreme Court affirmed a trial court decision that excluded the defendant's expert witness testimony regarding the reliability of breath test machines at trial.

The court ruled as follows:

"The trial court did not err in limiting Dr. Hlastala‟s prehearing jury testimony and excluding his subsequently proposed elaborating testimony with respect to the statutory per se charge. As the trial court observed, defendant remained free to argue, and present evidence, that the particular machines used in this case malfunctioned, or that they were improperly calibrated or employed. But as explained earlier, the 0.08 percent breath-alcohol concentration formulated by the Legislature in enacting the underlying per se offense, section 23152(b), was adopted on the basis of correlation studies employing just such breath-testing
machines — and the various physiological factors that affect the results of breath machines generally, have already been taken into account by those studies and the widely accepted statutory partition ratio. We construe both the statute, section 23152(b), and the regulation on which defendant relies, California Code of
Regulations, title 17, section 1219.3, as calling simply for a breath specimen . . . " People v. Vangelder, Cal.Sup. C.t; Nov 21, 2013; S195423, at 51-52.

This case presents a blow to an otherwise-great expert defense in breath test DUIs!

Tuesday, October 29, 2013

Real Estate Investment Fraud Case Results in UPward Variance for Non-Criminal Conduct!

In this case, the defendant pled guilty to wire fraud in connection with a real estate investment scheme. The parties reached an agreement on defendant's sentencing guidelines and the loss amount, taking into account that some of the losses were not due to defendant's conduct at all, but rather, due to the investments themselves. 

The district court did not accept the parties' loss conclusions and applied a much higher loss amount and varied upward nearly double from the joint guideline recommendation of sixty months in custody.  The court used the rational for the upward variance as the impact on the victims' lives (even though much of the losses were simply investments that didn't work out).  The issue for the Ninth Circuit was whether the "life-destroying" facts of the victims proper for the court to consider in varying upward.  The Ninth said yes - the Court could consider these other factors.

Judge Tashima wrote a very strong dissent on this issue, citing procedural error in imposing an upward variance on the basis of investor losses that were not attributable to the defendant's criminal conduct.

United States v. Christensen, 2013 WL 5583827, *10 (9th Cir. Oct. 11, 2013) 

Monday, October 21, 2013

United States v. Underwood: deficient search warrant

United States appealed the granting of defendant’s motion to suppress which was granted due to bare bones, cut and paste facts in a search warrant affidavit. Underwood was charged with conspiracy to possess and distribute controlled substances in violation of 21 U.S.C. §§ 841 and 846.
•The Ninth Circuit held that:
–Conclusions of affiant unsupported by underlying facts can’t be used to establish probable cause
–The affidavit contained only two facts, foundationless expert opinion, and conclusory allegations
•Seen baggie of personal use marijuana lacked a nexus to ecstasy trafficking
•Observation of Defendant delivering two wooden crates to suspected dealers three months before warrant wasn’t detailed enough; was a bare conclusion that it contained ecstasy
•Affidavit failed to define “drug trafficker” and provided no facts to support conclusion that Underwood is in business of buying & selling ecstasy
•LAPD Officer’s statement that a federal warrant had previously issued in the case for a different residence didn’t add any indicia of probable cause to the state affidavit (neither warrant nor affidavit were attached).
•“Leon” good faith exception doesn’t apply because the affidavit was “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.”
–“The affidavit reasonable supports only the following innocent conclusions: Underwood knows Luong and Barrera; he helped [them] move crates on one occasion; and Underwood possibly uses marijuana.”

Wednesday, October 16, 2013

United States v. Lira: Mandatory Minimum sentence enhancement requires proof beyond a reasonable doubt

Lira appealed his 120-month mandatory minimum sentence imposed following his jury trial conviction for use or carrying and possession of firearms in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c). He was convicted in Counts I-III of possession and distribution of meth, and the District Court found by a preponderance of the evidence in Count IV that Lira discharged a firearm “during and in relation to or in furtherance” of a drug trafficking offense, which triggered the 10 year mandatory minimum consecutive sentence.
Lira appealed his 120-month mandatory minimum sentence imposed following his jury trial conviction for use or carrying and possession of firearms in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c). He was convicted in Counts I-III of possession and distribution of meth, and the District Court found by a preponderance of the evidence in Count IV that Lira discharged a firearm “during and in relation to or in furtherance” of a drug trafficking offense, which triggered the 10 year mandatory minimum consecutive sentence.
•On Appeal, Lira challenged the imposition of the 10 year sentence. At his sentencing, the law was Harris v United States, 536 U.S. 545 (2002) (which held that discharge of firearm could be found by judge by preponderance of evidence); rule was reconsidered in Alleyne v. United States, 133 S.Ct. 2151 (2013) and overruled.
Alleyne held that “facts that increase mandatory minimum sentences must be submitted to the jury” and established “beyond a reasonable doubt.” 
•The government conceded that Lira’s sentence on Count IV didn’t comport with Alleyne because the increased mandatory minimum sentence was based on a fact found by the district court by a preponderance of the evidence.  The Ninth ordered the district court to reexamine the entire sentence in light of the vacated sentence on Count IV.

Wednesday, October 2, 2013

Did You Get the Memo? Eric Holder’s New Policies and Initiatives on Federal Drug Sentencing & Federal Charges

Federal drug sentencing has been given a long-awaited makeover by the issuance of Eric Holder’s Memorandum and Guidelines to Federal Prosecutors in August of this year.  The new policy should help certain drug offenders avoid mandatory minimum sentences in federal drug cases.  Attorney General Holder also set forth “Federal Prosecution Priorities” pertaining to the charging of certain offenses in federal, versus state, court.

Citing to Alleyne v. United States, 133 S.Ct. 2151 (2013), the Holder Memo on Charging Mandatory Minimum Sentences (Aug. 12, 2013), reminded United States Attorneys that “any fact that increases the statutory mandatory minimum sentence is an element of the crime that must be submitted to the jury and found beyond a reasonable doubt.”  Mr. Holder noted that because of this standard, the prosecutor’s discretion in charging mandatory minimum cases must be used with particularity and discretion.  Specifically, Mr. Holder stated:

When making these individualized assessments, prosecutors must take into account numerous factors, such as the defendant's conduct and criminal history and the circumstances relating to the commission of the offense, the needs of the communities we serve, and federal resources and priorities. Now that our charging decisions also affect when a defendant is subject to a mandatory minimum sentence, prosecutors must evaluate these factors in an equally thoughtful and reasoned manner.
With these thoughts in mind, he went on to write that “we now refine our charging policy regarding mandatory minimums for certain nonviolent, low-level drug offenders.  We must ensure that our most severe mandatory minimum penalties are reserved for serious, high-level, or violent drug traffickers.”  He even pointed out that mandatory minimum sentences have resulted in unduly harsh sentences for low-level offenders.  Such sentences did not, and do not, promote public safety, deterrence, and rehabilitation, he emphasized. 

Accordingly, prosecutors are now expected to give very close evaluation as to which cases ought to trigger mandatory minimum penalties.  Factors to consider, according to Mr. Holder, are drug quantities, alleged violence or weapons, injuries, the defendant’s role in the offense (leader, organizer, or manager), ties to drug trafficking organizations, and the defendant’s criminal history.  Notably, if such information is not available to the prosecutor at the time of charging, they are to refrain from including charges which trigger mandatory minimum sentences until further information is obtained.  The defendant’s cooperation and acceptance of early responsibility are also factors to be assessed in recommending a sentence, urged Mr. Holder.

As for the applicability of these new guidelines, in another memo on August 29, 2013, Mr. Holder outlined when the policy applies:

For cases charged and awaiting adjudication of guilt: the policy is applicable to all such cases. 
● For cases in which guilt has been adjudicated and sentence has not yet been imposed: the policy may be applied in the discretion of the prosecutor, and prosecutors are encouraged to apply the policy in guilty-plea cases where legally and practically feasible.
● For cases in which sentence has been imposed: the policy is not retroactively applicable.

When applicable, this Holder memo noted that prosecutors are to again consider the specific facts and circumstances of the given case, the defendant’s criminal history (including whether it is remote, aberrational, or minimal) and the treatment of co-defendants.  Mr. Holder urges a very individualized look at both the case and the defendant in each circumstance, instead of applying a generic, formulaic approach to the application of mandatory minimum sentences in drug cases.  He also noted that prosecutors can seek relief from pleas triggering the mandatory minimums by negotiating new plea agreements with pleas to, for example, a Superseding Information  which charges a drug offense without the pertinent quantity, with dismissal of the original indictment. 

As for defendants convicted at trial, the theme is similar: discretion should be used to assess whether a particular defendant should not face the mandatory minimums and where the interests of justice require relief from the lengthy prison terms.

In yet another memo dated August 12, 2013, Eric Holder wrote on the subject of Federal Prosecution Priorities.  There, he urged prosecutors to use their “limited resources” in a responsible manner; meaning, prosecutions that serve a substantial federal interest.  A federal interest can include: no alternative prosecution, national security threats, protecting Americans from violent crime and financial fraud, and an assessment of district-specific criteria. 

Alternatives frequently include state prosecutions, defendant serving a sentence for another offense with a distant release date, a preference for local law enforcement and local abilities, and whether Indian County can best address the criminal conduct.  This memo is particularly relevant in districts, such as the Northern District of California, where we frequently see state-type offenses being charged and prosecuted in federal courts (firearms, drugs).  Hopefully, with this memo, conduct which ought to rightfully be prosecuted in state courts (with potentially lower sentences) would remain in state courts.  Moreover, for those facing prosecutions in state and federal court for the exact same conduct, such future double prosecutions should be avoided or greatly reduced.

These Holder memos seem to tap into existing research which shows that with respect to deterrence of crime, increases in punishment do not routinely reduce crime through deterrence mechanisms, particularly because the link between actual punishment levels and the perceptions of punishment levels is weak to nonexistent.

These new policies also recognize the injustice and draconian nature of the mandatory minimum sentences (for drug cases, these are in the 10-year, 20-year and life terms).  Holder also cited to financial and social reasons for re-assessing the policies that have led to so many lengthy prison sentences for Americans; the United States leads the world in the percentage of its population behind bars.  In a speech to the American Bar Association in San Francisco in August, AG Holder said that the United States accounts for just 5 percent of the world’s population, but incarcerates almost a quarter of the world’s prisoners.  He noted that federal prisons are nearly 40 percent above capacity and that almost half of the inmates are serving time for drug-related crimes.  At the federal level, the Bureau of Prisons comprises nearly one-third of the Justice Department’s Budget.  Grim facts for a government in a shut down.  

Time will tell how the prison population, the types of cases charged, and the length of sentence is affected by this so called “Smart on Crime” Initiative, which essentially aims to modernize the criminal justice system.  Should common sense and reason dictate, we will see far fewer non-violent, low-level drug offenders behind bars for decades.  The Department of Justice is seeking further sentencing reforms to address non-dangerous, ailing and elderly inmates.

The recognition of principles long known by the defense bar, regarding drug addiction, lack of deterrence, disparate sentences for minorities, and the consequences of convictions seems to finally be hitting home with the Justice Department.  Everyone is anxious to see how these recent and upcoming policies will play out in the courts.  Stay tuned…

Friday, September 20, 2013

Petitions for Factual Innocence (Penal Code section 851.8)

An arrest, even where there is no conviction, can have devastating effects on a person's life.  For non-citizens, it can result in random detentions at immigration outposts and obstacles to obtaining citizenship.  For those seeking employment, an arrest can be detected through background checks and can result in disqualification from certain jobs.  A Petition for Factual Innocence pursuant to California Penal Code section 851.8 can get one's arrest record sealed and destroyed.  The standard is very high, however, as the Petitioner must prove that he/she was factually innocent; in other words, that the arrest was improper and that the person is innocent.

At Jayne Law Group, we handle these petitions on a regular basis. In fact, just today, Julia Jayne won a Petition for Factual Innocence involving a Domestic Violence arrest.  The client's life changed today - no more stops at immigration, employment opportunities, and a chance to put that awful part of his life behind him.

For more information on how to file such a Petition in the case of a wrongful arrest, or even when a charge was filed and then dismissed, contact Jayne Law Group.

Monday, September 16, 2013

Fourth Amendment update:Consent to search phone doesn't include allowing agents to answer phone

In United States v. Lopez-Cruz, the 9th Circuit held last week that a police officer may not answer a person's cell phone and impersonate that individual based on consent to look at a phone.  In the case, Lopez-Cruz was stopped by agents near the Mexico border and he had two cellphones in his center console.  Agents asked to look at the phones.  He consented to a search of the phones.  One of the cellphones rang, and the agent answered it and detected alien smuggling activity.  Lopez-Cruz moved to suppress the details of the conversation.  The 9th Circuit upheld the suppression decision by the district court, holding that the agents went too far in assuming the identity of Lopez-Cruz and having a conversation on his behalf.  Contrary to the government's argument, the Court held that his consent to search the phone did not include consent for the agents to answer his personal calls.

The case is: United States v. Lopez-Cruz, 2013 WL 4838908 (9th Cir. Sept. 12, 2013).

Tuesday, September 10, 2013

Warrantless DUI Arrest: No Violation of Fourth Amendment

In People v. Burton, the Appellate Division of the Ventura County Superior Court, held that a defendant's misdemeanor arrest for DUI which was not committed in the officer's presence did not violate the Fourth Amendment.

In the case, a witness observed Mr. Burton driving, and Mr. Burton admitted to driving, but the officer never saw him drive.  This issue arises in many DUI cases.  Mr. Burton challenged the stop in a motion to suppress.

The court held that Vehicle Code section 40300.5 does allow officers to make warrantless arrests in suspected drunk drivers.   Thus, his motion to suppress was denied, which was upheld by the Appellate Division.  The court explained that the officer had probable cause to arrest Mr. Burton.

The case is: People v Burton, (2013) __ Cal.App.4th Supp. __

Friday, August 30, 2013

Circumstantial Evidence May Be Used to Bolster Blood Alcohol Test Results

The California Court of Appeals recently decided Coffey v. Shimoto, a case regarding rising blood alcohol after an arrest for DUI and the admissible evidence at a DMV administrative hearing regarding a license suspension. 

In the case, Ms. Coffey was arrested for DUI. An hour later, she took a breathalizer test with a  test result of .08 percent BAC.  A few minutes later, her BAC test result was .09 %.  Twenty-five minutes later, she took a blood test, which resulted in a BAC of .095 percent.
DMV suspended her license after a hearing at which the arresting officer testified that Ms. Coffey had driven “erratically,” appeared intoxicated, and had the usual script of bloodshot watery eyes, strong odor of alcohol, and poor performance on Field Sobriety Tests (FSTs).

She challenged DMV’s decision with a writ of mandate and argued that uncontroverted expert testimony showed that her BAC had been rising (as evidenced by the three test results).  While the Court agreed with Coffey that the uncontradicted evidence of her rising BAC rebutted the presumption set forth in Veh. Code §23152(b) that a person had a BAC of 0.08 percent or more at the time of driving if a BAC test performed within three hours of driving reveals a level of 0.08 percent or more, the court concluded that DMV had produced sufficient additional evidence to prove that Coffey’s BAC was at least 0.08 percent at the time of driving. The Court pointed to circumstantial evidence: Coffey’s erratic driving, failed field-sobriety tests, and objective indications of intoxication were substantial evidence that Coffey had a BAC equal to or greater than 0.08 percent at the time of driving.  Accordingly, the Court of Appeal concluded that the trial court had properly relied on this non-chemical test circumstantial evidence in concluding that Coffey’s BAC at the time of driving was consistent with her BAC at the time of her chemical tests.

 Coffey v. Shiomoto, Cal.App.4th; August 15, 2013; G047562.

Wednesday, July 10, 2013

Alleyne v. United States : Facts that Increase Mandatory Minimum Sentences Must Be Submitted to Jury

Opinion by: Justice Thomas

The United States Supreme Court decided in Alleyne v. United States (June 2013) that any facts that would increase the mandatory minimum sentence of a crime must be submitted to the jury, overruling Harris v. United States (2002).

In Alleyne, Petitioner was charged, among other offenses, with using or carrying a firearm in relation to a crime of violence, which carries a minimum sentence of 5 years imprisonment. On the verdict, the jury did not indicate a finding that the firearm was “brandished,” which carries a minimum sentence of 7 years. However, the presentence report recommended a 7-year sentence based on the court’s assertion that it had found evidence supporting a finding of brandishing. The District Court relied on Harris, which held that judicial fact finding that increases the mandatory minimum sentence for a crime is permissible under the Sixth Amendment because facts can be a “sentencing factor” rather than an “element of the crime.”

In Apprendi, the court held that a fact is by definition an element of the offense and must be submitted to the jury if it increases the maximum punishment and that the Sixth Amendment requires all offense elements to be proven by a jury beyond a reasonable doubt. Apprendi’s definition of “element” includes, however, not only facts that increase the ceiling, but also those that increase the floor. Harris was a five-four decision that has long been criticized for its inconsistency with the constitutional rule in Apprendi. Now, the U.S. Supreme Court has decided that Harris could not be reconciled with Apprendi.

Therefore, facts that increase the mandatory minimum sentence are elements and must be submitted to the jury and found beyond a reasonable doubt.  

Tuesday, July 2, 2013


The California Court of Appeal of the Fifth Circuit held in In re Cabrera recently that possession of photocopies of drawings signed by prison gang members or associates is not sufficient to establish association with those artists.

Under the Due Process Clause, administrative findings underlying a gang validation resulting in placement in a security housing unit (SHU) must be supported by “some evidence.” This “some evidence” test requires the court to determine whether there is any evidence in the record that could support the conclusion reached by the prison officials. The California Supreme Court asserts that there must be a “rational nexus between the evidence presented and the finding of fact made,” meaning that a decision to place an inmate in a SHU cannot be based on merely a hunch or intuition.

Furthermore, validation of an inmate as an associate of a prison gang requires at least one source item to be a direct link to a current or former member or associate. Although there is no bright-line rule defining what evidence would satisfy the “some evidence” test, case law has provided some guidance in determining the type of evidence that would be considered sufficient and insufficient to establish a direct link to a gang member.

In In re Furnace, the inmate was found in possession of a piece of paper that had the full name, CDCR number, and the housing location of another validated gang member. He was also in possession of a flyer, newspaper articles, compact disc, and book related to support for the Black Guerilla Family prison gang. In that case, the court held that possessing contact information of a validated gang member in addition to other research materials related to that gang’s membership was sufficient under the “some evidence” test to establish a direct link between the inmate and a gang member. However in In re Villa, a recent case decided by the California Court of Appeal, a confidential memorandum based on an interview of a confidential informant was not sufficient to satisfy the “some evidence” test. In that case, the memorandum disclosed testimony from the informant that Villa held a fairly high position with the Mexican Mafia. The reasoning behind that court’s holding was that the evidence only provided for a link to the Mexican Mafia in general, not to a specific person.

Elvin Cabrera is an inmate at California Correctional Institution at Tehachapi (CCI), serving a sentence of 62 years to life in prison for convictions unrelated to gang affiliations. He had also enrolled in a hobby craft program for three years and collected a large quantity of drawings from various artists. Although he was in his cell at the time of an incident involving other inmates from the same yard he was housed in, prison officials conducted operation “Swift Response” which led to the discovery of the two photocopies of drawings signed by Mexican Mafia prison gang members in Cabrera’s possession.

Each drawing contained symbols related to the Mexican Mafia and were signed by a printed first name of the artist. There was no evidence of any contact information about the artist in possession by Cabrera or that he knew how to contact either of them. Thus, the Court found that absent evidence that Cabrera even knew who the gang member artists were or that one was an associate and the other a member, the photocopies were not sufficient under the “some evidence” test to establish a direct link for validation. 

Thursday, June 13, 2013

United States Supreme Court Rules on Warrantless DUI Blood Draws

The United States Supreme Court recently ruled that the natural dissipation of alcohol in blood alone does not constitute exigent circumstances per se to justify a warrantless blood draw in DUI cases where the suspect does not consent. Without a warrant or consent from the suspected drunk driver, a blood draw is a violation of the driver’s Fourth Amendment right to be secure from unreasonable searches and seizures. Prior to this decision, Missouri v. McNeely, police officers in California were generally not required to obtain a warrant in order to draw blood for measuring blood-alcohol content in drunk-driving cases.

In this landmark case, Missouri v. McNeely, Tyler McNeely was pulled over on the grounds of suspicion of driving under the influence. After refusing twice to take a breathalyzer, he was taken to a hospital where the police ordered his blood drawn without his consent or a warrant. The officer had not made an attempt to obtain a warrant because he thought that Missouri law did not require it.

The opinion by Justice Sonia Sotomayor returned to the 1966 Supreme Court decision of Schmerber v. California, where the Court held that a person’s blood is protected under the Fourth Amendment. However, the ruling provided an exception for warrantless blood draws where there were “exigent circumstances” in drunk-driving cases. Without a concrete definition of what constituted exigent circumstances, law enforcement officers were left to their own discretion in interpreting this element.

Although the state of Missouri argued that the dissipation of alcohol in the blood stream resulted in valuable evidence being lost creating exigency to justify the blood draw, the Supreme Court disagreed for several reasons. First, the Court concluded that in most cases, there is ample time to request and receive a warrant, especially if there is more than one officer involved in the DUI investigation or available at the scene. Second, the dissipation of blood occurs in a predictable manner, which can be calculated based on an individual’s physical characteristics like gender, height, and weight.

“In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so,” Sotomayor wrote.

Currently, there are electronic search warrant systems in place, in which a search warrant can be obtained in about one hour. This is roughly the same amount of time it may take for the officer to transport a suspect to a hospital and order a blood draw. The McNeely decision will not necessarily prevent blood draws from occurring at every refusal nor reduce the number of DUI arrests, but it will ensure that law enforcement officers follow procedural guidelines prior to making a DUI arrest. This not only protects citizens from unreasonable arrests at the sole discretion of law enforcement officers, but it will also protect those law enforcement officers from claims of unlawful arrests.

As a result of this decision, Jayne Law Group, P.C. is presently, and will continue to, challenge all warrantless, non-consensual blood draws in DUI cases, through motions to suppress.  See:

The case is: Missouri v. McNeely, Docket 11-1425 (April 17, 2013).
Schmerber v. California, 384 U.S. 757 (1966)

Thursday, February 28, 2013

United States Supreme Court Roundup of Criminal Cases

The United States Supreme Court recently decided a number of criminal cases of interest to citizens, criminal law practitioners, and constitutional law aficionados.  This roundup summarizes the following cases: Bailey v. United States (search & seizure); Evans v. Michigan (double jeopardy); Florida v. Harris (4th Amendment); and Chaidez v. United States (Sixth Amendment).

Bailey v. United States, 652 F.3rd 197 (2013): this case had to do with the execution of a search warrant. The Court held that police executing a search warrant may only “seize” or detain individuals within the “immediate vicinity” of the premises subject to the search. The facts of the case were as follows: while police were preparing to execute a warrant to search an apartment for a handgun, detectives conducting surveillance outside saw two men – later identified as Bailey and his friend – leave the apartment area in a car. The detectives followed the car for about a mile before stopping it. Upon contacting the men, Bailey said he lived in the apartment, and then denied it upon learning of the search. The detectives conducted a patdown search of Bailey and found a set of keys on him that later matched the apartment door. Both men were handcuffed and driven to the apartment, where the search team had uncovered a gun and illicit narcotics in plain view.  Bailey moved to suppress his statement and the apartment key, arguing that it resulted from an unreasonable seizure. At trial, the District Court denied Bailey’s motion to suppress, holding that Bailey’s detention was justified under Michigan v. Summers, 452 U. S. 692, as a detention incident to the execution of a search warrant, and, in the alternative, that the detention was supported by reasonable suspicion under Terry v. Ohio, 392 U. S. 1. Bailey was convicted. The Second Circuit affirmed denial of the suppression motion. Finding that Summers authorized Bailey’s detention, it did not address the alternative Terry holding.

By way of a quick summary, the Supreme Court held that the rule in Summers is limited to the immediate vicinity of the premises to be searched and does not apply here, where Bailey was detained at a point beyond any reasonable understanding of the immediate vicinity of the premises in question. The Court concluded that the three law enforcement interests of officer safety, facilitating completion of the search and preventing flight didn’t justify detention once the occupants had left the area, as was the case with Bailey, who was a mile away when detained.


Evans v. Michigan, Docket No. 11-1327 (U.S. Sup. Ct. Feb 2013): the question presented in this case was whether the Double Jeopardy Clause bars retrial after the trial judge erroneously held a particular fact to be an element of the offense and then granted a midtrial directed verdict of acquittal because the prosecution failed to prove that fact. What occurred was that two police officers saw Evans running away from a burning house while holding a gas can. At the time of the fire, the house was uninhabited and lacked gas or electricity. He was charged with arson. The offense in Michigan requires the prosecution to prove that the defendant “willfully or maliciously burn[ed] any building or other real property.”  The trial judge erroneously added an additional element to the offense by also requiring the State to prove that the burned building was not a dwelling. As such, the trial judge granted Evans’ mid-trial motion for directed verdict, entered an acquittal and dismissed the case since the State hadn’t proven the additional element added by the judge. On appeal, the Michigan Court of Appeals reversed the trial judge’s order granting the directed verdict.

In an 8-1 decision by Justice Sotomayor, the Court reversed the Michigan Court of Appeals’ decision and held that even where the acquittal was based on a legal error, the Double Jeopardy Clause bars retrial.


Florida v. Harris, Docket No. 11-817 (U.S. Sup. Ct. Feb 2013): the Court evaluated at what point a sniffer dog was qualified to be used to provide probable cause to search a vehicle. Harris was charged with possession of pseudoephedrine with intent to manufacture methamphetamine. At trial, he moved to suppress evidence obtained during a warrantless search of his car. The police had searched his car during a traffic stop when a drug-detection dog alerted the officer. This particular canine had been trained to detect various illegal substances, but not pseudoephedrine. During the search, officers found over 200 loose pills and other supplies for making meth. Harris argued to the trial court that the dog’s alert was false and didn’t provide probable cause for the search. His motion was denied based on an analysis of the totality of the circumstances. The First District Court of Appeals affirmed, but the Florida Supreme Court reversed, holding that Florida hadn’t proven the dog’s reliability in drug detection to support the search.

Writing for a unanimous Court, Justice Kagan reversed the Florida Supreme Court and held that probable cause is a flexible common sense test that takes the totality of the circumstances into account. The Court added that a probable cause hearing involving a drug-sniffing dog should proceed like any other, allowing each side to make their best case and evaluating the totality of the circumstances with the evidence available. The Court found that the record in the case supported the trial court’s determination that the police had probable cause to search Harris’ car. Harris did not get to cross-examine the dog.

Chaidez v. United States, Docket No. 11-820 (U.S. Sup. Ct. Feb 2013): this case held that the Sixth Amendment requiring criminal defense attorneys to inform their clients of deportation risks of guilty pleas does not apply retroactively to cases already final on direct review. Here, Ms. Chaidez was a lawful permanent resident when she was indicted on three counts of mail fraud in connection with an insurance scheme. On the advice of her attorney, she pled guilty in Northern District of Illinois in 2003 and received a sentence of four years probation. In 2009, under a federal law that allows deportation of any alien who commits an aggravated felony, the U.S. Government initiated removal proceedings. Her attorney never told her that pleading guilty could lead to her deportation. Chaidez filed for a writ of coram nobis, arguing ineffective assistance of counsel. While this motion was pending before the District Court, the U.S. Supreme Court handed down its decision in Padilla v. Kentucky, which held that it is ineffective assistance of counsel for an attorney to fail to advise his/her client that he/she may face deportation as a result of a guilty plea. The District Court concluded that Padilla didn’t really announce a new rule, and so its holding applied to Chaidez’s case. The Seventh Circuit Court of Appeals reversed, holding that Padilla did announce a new rule and was therefore not retroactively applicable to Chaidez, whose conviction was final.

The U.S. Supreme Court agreed and found that Padilla created an entirely new rule regarding advice about deportation and how it applied to the Sixth Amendment right to counsel. Because it was a new rule, it couldn’t retroactively apply to already-decided cases. So Chaidez was out of luck.


Jayne Law Group, P.C. is a premier criminal defense firm which offers representation for individuals and small businesses at every stage of a criminal proceeding in state or federal court.  The firm provides representation in virtually every area of criminal law, including white collar crime, felonies and misdemeanors, drug cases, and driving-related offenses.  Jayne Law Group, P.C. practices criminal defense in Federal Courts and in all Bay Area counties, including San Francisco, Alameda, Contra Costa, San Mateo, Santa Clara, Santa Cruz, Marin, Sonoma, Napa, and Solano counties.
For more information, see our new, updated website:
The Criminal Law Update is a periodic newsletter published by Jayne Law Group, provide general information and updates on the legal field. It is not intended to provide legal advice or opinion on any set of specific circumstances. Please consult counsel regarding any legal questions you may have concerning your individual situation. For additional information, please contact Jayne Law Group, P.C.