West Palm Beach Criminal Lawyer Blog : Ronald Chapman: West Palm Beach Criminal Lawyer | Florida Criminal Attorney: DUI, Assault & Battery, Felonies | Criminal Law Firm

          The United States Supreme Court has repeatedly stated that searches conducted by the police without first obtaining a search warrant are unlawful unless those searches fall within certain recognized exceptions to the warrant requirement contained in the Fourth Amendment to the U.S. Constitution.  One of those exceptions permits police officers to conduct warrantless searches during or immediately after a lawful arrest.  (This is commonly referred to as the "search-incident-to-arrest" exception.)

          In the 1981 case of New York v. Belton, the U.S. Supreme Court analyzed the search-incident-to-arrest exception in the context of a police search of a car.  The High Court concluded that when a police officer lawfully arrests the occupant of a vehicle, he may--right then and there--search the passenger compartment of the vehicle as well as any containers found in the passenger compartment.  The reasons why she may do so are twofold:

         1.  To remove any weapons contained in the car that the arrested person might try to obtain in order to hurt the officer with; and

          2.  To prevent the arrested person from concealing or destroying evidence (such as drugs) contained in the car.

          But what if the arrested person has been handcuffed and placed in the backseat of a patrol car?  He certainly cannot get back into his car and retrieve a gun or drugs.  In that case, why should the police be allowed to search the passenger compartment of his car and any containers found therein?  This question has been raised many times since Belton was decided almost thirty years ago, but courts have, by and large, routinely allowed the police to conduct such searches notwithstanding this very plausible argument.

          However, all that changed in the very recent case of Arizona v. Gant.  In that particular case, Rodney Gant was arrested for driving with a suspended driver's license, handcuffed, and locked in the back of a patrol car.  The police then searched his car and found some cocaine in the pocket of a jacket located on the backseat.

          On appeal, Gant argued that the Belton case did not authorize the search of his car because:

          1.  He posed no threat to the officers after he was handcuffed and placed in the backseat of a locked patrol car; and

          2.  He was arrested for a traffic crime for which no evidence could be found in his vehicle.

          The United States Supreme Court agreed with Mr. Gant holding that the police are authorized to search a vehicle incident to a recent occupant's arrest only when the arrested person is unsecured and within reaching distance of the passenger compartment at the time of the search. 

          However, the Court also concluded that the police are authorized to conduct such a search when it is reasonable to believe that evidence relevant to the crime for which the occupant has been arrested might be found in the vehicle.  For example, if a recent occupant of a car is arrested for possessing cocaine found in one of his pants' pockets, it would probably be reasonable for the police to believe that additional narcotics or narcotics-related equipment might also be found in his car.  In that case, the police would probably be justified in searching the passenger compartment and any containers located inside of that compartment.

          It will be interesting to see how the ruling in Gant affects the day-to-day decisions of police officers now that they no longer have the authority to automatically search someone's car when they arrest a recent occupant.  Will some officers intentionally not handcuff such persons immediately upon arrest so that the officers can later argue (in court) that they were authorized to search the person's car in order to prevent that individual from grabbing a gun or destroying drugs?  Are the police authorized to search a recent occupant's car if he is arrested for, say, being an illegal alien?  Only time and the inevitable litigation that follows important Supreme Court opinions such as Gant will tell.

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          When a person is arrested for a State crime in Florida, he is typically taken before a judge within twenty-four hours of his arrest so that the judge can set the conditions of his release from jail.  That hearing is called a first appearance, and it is governed by Florida Rule of Criminal Procedure 3.130.

          Sometimes, though, a prosecutor who is later assigned to a particular case does not believe that the conditions of pretrial release are as strict as they ought to be.  That prosecutor may then file a motion pursuant to Florida Rule of Criminal Procedure 3.131 asking, for example, that the amount of bail be increased.  However, before a judge is authorized to raise the amount of bond or otherwise make the conditions of pretrial release more stringent, the prosecutor must first show "good cause."

          The issue of what constitutes "good cause" was presented in the Florida case of Keane v. Cochran.  In Keane, the first-appearance judge set bond at $2,100.  Three months later, the prosecutor on the case filed a motion asking the trial judge to increase the bond.  At the hearing on the motion, however, the prosecutor failed to present any evidence justifying an increase in the bond.  In spite of that, the presiding judge still increased the bond to $10,000.

         Keane appealed that decision to Florida's Fourth District Court of Appeal and won!  The Fourth District Court stated that "[i]n order to have good cause to modify a bond, the [prosecutor] must present evidence of a change in circumstances or information not made known to the first appearance judge."  Because the prosecutor in Mr. Keane's case failed to present such evidence, the appellate court ruled that the trial judge erred when he increased the bond from $2,100 to $10,000.

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          In the case of Wiles v. Bagley, Boyce F. Martin, Jr., a judge on the United States Court of Appeals for the Sixth Circuit, stated that "[c]apital punishment in this country remains 'arbitrary, biased, and so fundamentally flawed at its very core that it is beyond repair."

          In this particular case, Mark Wiles was convicted of first-degree murder and sentenced to death.  After his appeals in state court in Ohio were denied, he filed a writ of habeas corpus in federal court in which he argued that his trial lawyer provided him with ineffective assistance of counsel.  A panel of judges on the Sixth Circuit Court of Appeals disagreed and affirmed Wiles's conviction. 

          However, one of those judges, Boyce F. Martin, Jr., wrote a concurring opinion in which he expressed the opinion that the death penalty is not worth what it costs society to maintain it.  Judge Martin wrote that an evaluation of the capital punishment system that currently exists in the U.S. "is particularly appropriate at a time when public funds are scarce and our state and federal governments are having to re-evaluate their fiscal priorities."

          Judge Martin is undoubtedly correct when he highlights the issue of the scarcity of public funding.  To cite just one example, the Florida Bar published an article on its website earlier this month entitled Funding Florida Courts which begins with the sobering words:  "Florida state courts are in crisis.  Two years of budget cuts have undermined adequate and equitable funding of the court system, forcing layoffs and hiring freezes."

          Judge Martin continues, "Make no mistake:  the choice to pay for the death penalty is a choice not to pay for other public goods like roads, schools, parks, public works, emergency services, public transportation, and law enforcement. . . .  [T]he evidence indicates that, on average, every phase of a capital case is more expensive than in a non-capital case, and that the lifetime cost of a capital case is substantially more than the cost of incarcerating an inmate for life without parole.  Surprising as that may seem, the reason for it is simple:  'lawyers are more expensive than prison guards.' "

         Some, such as Ohio's Attorney General Richard Cordray, believe that the appeals process in capital cases is sometimes too long.  Not so, says Judge Martin.  "[E]xperience has shown that every stage of review is needed to guard against wrongful convictions and correct the unusually high rate of error that plagues capital cases."  In support of his contention, Martin cites to a study which demonstrates that between 1973 and 1995 the error rate in capital cases was 68% compared just 15% in non-capital cases.

          Citing the fact that in 2008 only nine of the thirty-six states which have capital punishment actually executed anyone, Martin observes that "given the death penalty's exorbitant costs and many basic flaws, it is clear to me that our scarce public resources can be put to better use.  This is especially so given what the public is getting for its money--little more than the time of lawyers and judges and the 'illusion' of capital punishment.  Moral objections aside, the death penalty simply does not justify its expense."

          When individuals such as college professors and journalists speak out against the death penalty, their opinions are frequently dismissed as being those of bleeding-heart liberals.  But when a judge who has carefully examined numerous death penalty cases over the last thirty years--a judge such as Judge Martin--speaks out against the existing system of capital punishment in the United States, we would be wise to listen carefully to what he says.

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         In the case of Jacobson v. United States, the U.S. Supreme Court reversed the conviction of Mr. Jacobson after finding that agents of the federal government entrapped him when they overstepped the line between trapping an unwary innocent person and trapping an unwary criminal.

         In 1984, Mr. Jacobson ordered two magazines and a brochure from an out-of-state adult bookstore that contained photographs of nude preteen and teenage boys.  At that time, it was legal to order such materials through the U.S. Postal Service.  However, that same year Congress passed the Child Protection Act of 1984 which outlawed such activity.

          For the next two-and-a-half years, two government agencies, through five fictitious organizations and a bogus pen pal, explored Jacobson's willingness to break the new law by ordering sexually-explicit photos of children through the mail.  After receiving a letter from one such fictitious organization in 1987, Jacobson ordered a magazine that showed young boys engaged in various sexual activities.  He was then arrested and indicted for violating the Child Protection Act.

          At his trial, Jacobson argued that he had been entrapped, but the jury rejected that argument as did the United States Court of Appeals for the Eighth Circuit.  Jacobson then appealed his case to the United States Supreme Court which concluded that he had indeed been entrapped into buying pornographic materials.

         The High Court stated that "[w]here the Government has induced an individual to break the law and the defense of entrapment is at issue, as it was in this case, the prosecution must prove beyond [a] reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents. . . .  Had the agents in this case simply offered [Jacobson] the opportunity to order child pornography through the mails, and . . . had [Jacobson] promptly availed himself of this criminal opportunity, it is unlikely that his entrapment defense would have [ultimately been successful]. . . .   But that is not what happened here.  By the time [Jacobson] finally placed his order, he had already been the target of 26 months of repeated mailings and communications from the Government agents and fictitious organizations.  Therefore, although he had become predisposed to break the law by May 1987, it is our view that the Government did not prove that this predisposition was independent and not the product of the attention that the Government had directed at [Jacobson] since January 1985."  (Italics added.)

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          In the two cases of United States of America vs. Powers and United States of America vs. Buckius, both Mr. Powers and Mr. Buckius were indicted for failing to register as sex offenders as required by the Sex Offender Registration and Notification Act (otherwise known as "SORNA").  After being indicted, both defendants filed motions asking a United States District Judge from the Middle District of Florida to dismiss the charge of failing to register as a sex offender on the ground that SORNA was unconstitutional.  Both defendants argued that SORNA was unconstitutional because it violated the Commerce Clause of the U.S. Constitution insofar as SORNA did not regulate activities that substantially affected interstate commerce and thus was beyond the scope of Congress's power under the Commerce Clause.

          Although it is rare for a judge to declare a law unconstitutional, the judge in both Powers's and Buckius's cases did just that!  Not surprisingly, however, the U.S. Attorney's Office for the Middle District of Florida decided not to go down without a fight.  It appealed both decisions to the United States Court of Appeals for the Eleventh Circuit.  That particular appellate court, which tends to be very conservative, overruled both Powers and Buckius and in so doing relied upon another Eleventh Circuit appellate case--United States of America v. Ambert--which was issued just twenty days before Powers and Buckius were decided.

          In the Ambert case, the defendant, like defendants Powers and Buckius, was indicted for failing to register as a sex offender pursuant to SORNA.  Ambert subsequently filed a motion asking a federal district judge to dismiss the charge against him on the following six grounds:

          1.  He was not bound by the criminal provisions of SORNA because his relevant travel dates occurred before the United States Attorney General decided on February 28, 2007 that SORNA's registration requirements apply to all offenders convicted before July 27, 2006;

          2.  SORNA is unconstitutional because it violates the Non-delegation Doctrine of the U.S. Constitution;

          3.  SORNA is unconstitutional because it violates the Ex Post Facto Clause of the U.S. Constitution;

          4.  SORNA is unconstitutional because it violates the Commerce Clause of the U.S. Constitution;

          5.  SORNA is unconstitutional because it violates the Due Process Clause of the U. S. Constitution; and

          6.  SORNA is unconstitutional because it violated Mr. Ambert's right to travel.

          Unfortunately for Mr. Ambert, the federal district judge from the Northern District of Florida who decided his case did not find any of his arguments persuasive and therefore denied the motion to dismiss the charge pending against him.  Eventually, the Eleventh Circuit Court of Appeals not only agreed with the lower-court judge that Ambert's case should not be dismissed but also relied upon Ambert in overturning Powers and Buckius.

          The decisions in Ambert, Powers, and Buckius are just three examples of how tough the law is today in the United States when it comes to the issue of sex offenders and the registration requirements for such individuals.

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