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

         You have probably seen police roadblocks when you were out driving your car, and you may have even been stopped at one, but did you know that before the police are allowed to actually set up a roadblock they are first required to prepare written guidelines so that the officers conducting the roadblock do not violate motorists' rights by, for example, stopping motorists because of their race or ethnicity?

          In the case of State of Florida v. Jones, the Florida Supreme Court stated that "[w]ritten guidelines should cover in detail the procedures which field officers are to follow at the roadblock.  Ideally, these guidelines should set out with reasonable specificity procedures regarding the selection of vehicles, detention techniques, duty assignments, and the disposition of vehicles."  According to the United States Supreme Court decision in Brown v. Texas, when the police stop someone and that stop "is not based on objective criteria, the risk of arbitrary and abusive police practices exceeds tolerable limits."

          Seven years after the Jones case was decided, the case of Campbell v. State of Florida arose.  In the Campbell case, the Jacksonville Florida Sheriff's Office set up a roadblock to check for traffic violations.  The only written instructions for implementing the roadblock stated merely, "Stop motorists on Mandarin Rd. for a traffic safety check.  Have a motorcycle [with] radar on each end of check to monitor speed."  In addition to the written instructions, the officer in charge of the roadblock gave oral instructions to the officers who actually stopped the motorists.  One of the oral instructions was to stop every car passing through the roadblock.

         Things did not, however, go exactly according to plan.  Several times during the five-hour roadblock, traffic backed up which created a safety concern.  In response, the officers on scene used their discretion on different occasions to simply waive some cars through the roadblock while continuing to stop and check others.

          One of the motorists who was stopped was a man named Phillip Campbell.  When the police discovered that Campbell had a suspended driver's license, he was arrested and taken to the county jail where the police found cocaine and marijuana in one of his socks.  Campbell's lawyer later filed a motion to suppress requesting that the judge suppress the narcotics found in his sock because the roadblock violated the Fourth and Fourteenth Amendments to the United States Constitution as well as the Jones decision.

          Campbell's case eventually reached the Florida Supreme Court, and that Court ended up siding with Campbell finding that "the limited police directives used here do not limit police discretion and fall short of the discretion-limiting written set of uniform guidelines specifically required by us in [the Jones case]."  The High Court continued on to say that "[i]n this country, the police are not vested with the general authority to set up 'routine' roadblocks at any time or place.  Rather, law enforcement was placed on notice by our holding in Jones that the stopping and detaining of a citizen is a serious matter that requires particularized advance planning and direction and strict compliance thereafter."

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          Sometimes a person will be arrested, yet the case never actually goes to court either because the police do not file the case with the State Attorney’s Office or because the State Attorney’s Office decides not to prosecute the case. When that happens, there is a procedure whereby an individual can request that the Florida Department of Law Enforcement administratively expunge the arrest record.  That procedure is discussed in my article entitled "How to Get Your Criminal Record Administratively Expunged."

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          In May 2004, the Federal Bureau of Investigation (FBI) arrested Brandon Mayfield, a lawyer, as a material witness in an investigation of terrorist attacks on commuter trains in Madrid, Spain.  The FBI Laboratory maintained that Mayfield's fingerprint was found on a bag of detonators in Madrid that was connected to the attacks.  Two weeks after Mayfield was arrested, the Spanish National Police advised the FBI that it had identified another individual named Ouhnane Daoud as the source of the fingerprint.  After the FBI examined Daoud's fingerprints, it realized that it had made a mistake and released Mayfield from custody.

         Following this misidentification of Mayfield, the Office of the Inspector General (OIG) investigated the causes of the misidentification and issued its written conclusions.  The OIG identified the following six primary causes of error:

          1.  Although Mayfield and Daoud did not have identical fingerprints, they did, nevertheless, have very similar-looking prints;

          2.  After the FBI found as many as 10 points of unusual similarity between Mayfield's fingerprint and the fingerprint located on the bag of detonators, "the FBI examiners began to 'find' additional features in [the fingerprint on the bag] that were not really there, but rather were suggested to the examiners by features in the Mayfield prints.  As a result of this process, murky or ambiguous details in [the fingerprint on the bag] were erroneously identified as points of similarity with Mayfield's prints."

          3.  The FBI fingerprint examiners "apparently misinterpreted distortions in [the fingerprint on the bag] as real features corresponding to [extremely tiny details] seen in Mayfield's known fingerprints."  Thus, whereas error #1 had to do with comparatively large fingerprint details, error #3 had to do with extremely tiny details.

          4.  FBI fingerprint examiners are taught to adhere to the "one discrepancy rule" according to which "a single difference in appearance between [an unknown] print and a known fingerprint must preclude an identification unless the examiner has a valid explanation for the difference."  In Mayfield's case, the examiners failed to adhere to this rule when they accepted an "extraordinary set of coincidences" and "cumulatively required too many rationalizations to support an identification with the requisite certainty."

          5.  As noted in error #2 above, the FBI found as many as 10 points of unusual similarity between Mayfield's fingerprint and the fingerprint located on the bag of detonators.   "However, the limited clarity of [the fingerprint on the bag] prevented the examiners from making an accurate determination of the type of many of these points (that is, whether they were ending ridges or bifurcations)."

          6.  Although the Spanish National Police advised the FBI on April 13, 2004 that the fingerprint on the bag of detonators did not match Mayfield's prints, the FBI nevertheless arrested Mayfield more than three weeks later on May 6, 2004.  In what is certainly an understatement, the OIG concluded that "the FBI Laboratory's overconfidence in the skill and superiority of its examiners prevented it from taking the [April 13 report] as seriously as it should have."  According to the OIG, what the FBI should have done was:

• Determine precisely why the Spanish National Police examiners believed that Mayfield's fingerprints did not match the print on the bag before arresting him; and

• Have a new FBI examiner examine the fingerprint on the bag in order to verify whether or not it was Mayfield's.

           In reviewing the OIG's report, the two things that stand out to me the most are:

• The fact that the six errors discussed in this article were committed by not just one person but by four people including:  a fingerprint examiner with the FBI Latent Print Unit, a second FBI Latent Print Unit examiner, a Unit Chief in the FBI Latent Print Unit, and an independent expert appointed by the judge to review the FBI's fingerprint identification.

• The fact that the FBI arrested Mayfield, searched his home and office, and took items from those two locations three weeks after being told by the Spanish National Police that Mayfield's fingerprints did not match the print on the bag of detonators.

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          The following article appeared in the New York Times earlier this week:

          In an age of advanced forensic science, the first step toward ending Kenneth Reed’s prolonged series of legal appeals should be simple and quick: a DNA test, for which he has offered to pay, on evidence from the 1991 rape of which he was convicted.

          Louisiana, where Mr. Reed is in prison, is one of 46 states that have passed laws to enable inmates like him to get such a test. But in many jurisdictions, prosecutors are using new arguments to get around the intent of those laws, particularly in cases with multiple defendants, when it is not clear how many DNA profiles will be found in a sample.

          The laws were enacted after DNA evidence exonerated a first wave of prisoners in the early 1990s, when law enforcement authorities strongly resisted reopening old cases. Continued resistance by prosecutors is causing years of delay and, in some cases, eliminating the chance to try other suspects because the statute of limitations has passed by the time the test is granted.

          Mr. Reed has been seeking a DNA test for three years, saying it will prove his innocence. But prosecutors have refused, saying he was identified by witnesses, making his identification by DNA unnecessary.

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          In the case of United States v. Francis, the U. S. Court of Appeals for the Eleventh Circuit stated that the defense of entrapment consists of the following two elements:

          1.  Government inducement of the crime; and

          2.  A lack of predisposition on the part of the defendant to commit the crime.

          But what exactly constitutes "inducement," and what constitutes a "lack of predisposition"?  It was these two issues that the Eleventh Circuit Court of Appeals addressed in the Francis case.

           In that case, Henry Francis and another individual named Green were originally arrested for selling crack cocaine.  Francis then decided to hire a Jamaican named "Mauler" to kill the prosecutor, the investigating officer, and a confidential informant.  Francis later changed plans and decided to have some friends of his who were located in Jamaica carry out the murders.  Francis asked Green to help him acquire passports for the Jamaicans.  In an effort to help himself out with the U.S. Attorney's Office, Green told the F.B.I. what Francis had asked him to do.  Green also gave Francis the telephone number of an individual who was actually an undercover detective named Archie.  Green told Francis that Archie had provided Green with false documents in the past and that he might be able to help Francis obtain the passports he needed.

          Over the next two months, Francis and Archie had approximately twenty telephone conversations during which Archie agreed to provide Francis with four passports costing a total of $2,000.00.  Archie also offered to provide the Jamaican assassins with guns. 

          As a result of his conversations with Green and Archie, Francis was eventually charged with and convicted of conspiring to murder a federal official engaged in the performance of his official duty as well as murder for hire.  On appeal, Francis argued that the prosecution did not prove that he was predisposed to commit murder.

          The Eleventh Circuit rejected Francis's argument for the following reasons:

• It was Francis who first brought up the subject of murdering the three individuals;

• It was Francis who attempted to hire Mauler to carry out the assassinations;

• Before Francis was introduced to Archie, Francis contacted the Jamaicans about performing the murders;

• Francis asked Green to get passports for the Jamaicans; and

• Francis asked Green to take pictures of one of the intended targets if he were released on bond.

          The Eleventh Circuit Court of Appeals concluded by stating:

          "The evidence supports the conclusion that the government did not implant in Francis's mind the disposition to murder [the three individuals].  Although Green and Archie assisted Francis, and Archie offered his services as an assassin, the government did not initiate the assassination plot.  Rather, the government merely provided Francis with a method of accomplishing the crime.  The fact that [government agents] merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution.  Artifice and stratagem may be employed to catch those engaged in criminal enterprises."

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          On January 25, 2009, I posted an article on this website entitled "Judge Throws Out More Than 100 Breathalyzer Tests."  The article discussed how two different appellate courts affirmed the rulings of Manatee County Court Judge Doug Henderson that evidence of breath alcohol tests in more than 100 drunk-driving cases could not be presented at trial because the company that makes Florida's breathalyzers, CMI, Inc., has consistently refused to release the contents of its computer software to lawyers representing individuals accused of DUI in Manatee County.

          On April 30, 2009, the Minnesota Supreme Court ruled similarly when it held in the case of State of Minnesota v. Brunner that a lower-court judge was correct in ordering the prosecutor's office to supply Brunner's lawyer with the computer source code for the machine that Brunner blew into because the source code might reveal deficiencies that could be used to challenge the reliability of the Intoxilyzer which could, in turn, ultimately affect Brunner's guilt or innocence.

         The prosecutor's office argued that it could not provide Brunner's lawyer with the source code because it did not possess it due to the fact that the manufacturer of the breathalyzer, CMI, Inc., owned the code.  The Supreme Court dismissed that argument finding that the State of Minnesota did, in fact, own part of the source code and that the prosecutor's office has a legal obligation to assist a defendant in seeking access to material that the prosecutor possesses.

          Jury instructions in Minnesota state that jurors must assess the reliability of the breath-testing method in DUI cases.  That being the case, said the Supreme Court, Brunner should be allowed access to the software that controls the testing procedure.

          In Florida, jurors in DUI cases are instructed as follows:

"If you find from the evidence that the defendant had a blood or breath alcohol level of 0.08 or  more, that evidence would be sufficient by itself to establish that the defendant was under the influence of alcohol to the extent that his normal faculties were impaired.  However, such evidence may be contradicted or rebutted by other evidence demonstrating that the defendant was not under the influence to the extent that his normal faculties were impaired."

           If such "other evidence" can arguably be acquired once access to the breathalyzer's computer software is obtained, then it would seem only logical that individuals charged with DUI should have such access.  (But then again, who ever said that the law is logical?)

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          Earlier this year, the U.S. Supreme Court decided the case of Herring v. United States in which the issue presented was whether evidence found during a search incident to arrest must be excluded in a later prosecution when that evidence was seized by the police in violation of the Fourth Amendment to the U.S. Constitution.

          The pertinent facts in Herring are that in July of 2004 a police officer in Coffee County Alabama learned that an individual named Bennie Dean Herring had driven to the Coffee County Sheriff's Department in order to retrieve an item located in his truck which had been previously impounded by that same department.  Because the officer knew that Herring had a criminal past, he asked the county's warrants clerk to check on whether Herring had any outstanding warrants for his arrest in Coffee County.  When the clerk found none, the officer asked her to check on whether Herring had any outstanding warrants in neighboring Dale County.  Upon being told that Herring did indeed have an open warrant in that county, the officer arrested and searched Herring.  When he did so, the officer found drugs and a gun on Herring's person.  However, within ten to fifteen minutes of Herring's arrest, the officer was told that the warrant he had arrested Herring for had actually been recalled five months earlier.  In spite of that, Herring was indicted in a United States District Court in Alabama for illegally possessing the gun and drugs.

          Herring's lawyer filed a motion to suppress the gun and drugs on the ground that Herring's arrest was illegal because the warrant he had been arrested for had been recalled five months prior to his arrest.  Although the prosecutor agreed that Herring's arrest violated the Fourth Amendment, he still maintained that he should be allowed to present the seized evidence to the jury at Herring's trial because the arresting officer reasonably believed that there was an outstanding arrest warrant in effect when he arrested Herring.

          The case ultimately made its way to the U.S. Supreme Court where the Court was asked to decide whether the prosecution could present the gun and drugs as evidence at Herring's trial.  By a vote of 5 to 4, the United States Supreme Court ruled that the gun and drugs could be presented as evidence at Herring's trial because the error regarding the recalled warrant was "the result of isolated negligence attenuated from the arrest."  In other words, because the officer who arrested Herring made an honest mistake regarding the recalled warrant, the Fourth Amendment does not require that the gun and drugs be excluded at Herring's trial.

         In dissent, Justice Ginsburg, joined by three other justices, stated that "the most serious impact of the [majority opinion] will be on innocent persons wrongfully arrested based on erroneous information carelessly maintained in a computer database."  She continued on by saying that "[n]egligent recordkeeping errors by law enforcement threaten individual liberty, are susceptible to deterrence by the exclusionary rule, and cannot be remedied effectively through other means."

          Finally, Justice Ginsburg perceptively observed that "by restricting suppression to bookkeeping errors that are deliberate or reckless, the majority [opinion] leaves Herring, and others like him, with no remedy for violations of their constitutional rights."  In other words, when the police violate the law but the violation is not deliberate or reckless, there is nothing that a person can do who suffers as a result of that violation.

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