Momentum against warrantless drug-sniffing dogs?

Two weeks ago, the Connecticut Supreme Court heard oral argument in a case involving the police’s use of a drug-sniffing dog in an apartment hallway without getting a warrant first. I wrote a detailed review of the case over at CT News Junkie, in which I speculated that the court would likely rule against such uses of drug-sniffing dogs and why that would be the correct outcome.

It seems that I’m not alone in thinking so. Just today, the 7th Circuit Court of Appeals issued an opinion in an almost identical case, United States v. Whitaker. In that case the issue was the same: should warrantless use of a drug sniffing dog in an apartment hallway be permitted under the Fourth Amendment. The court emphatically said no, for two primary reasons.

Reasonable Expectation of Privacy. First, while not wading into the tresspass vs. reasonable expectation of privacy debate, the simply cites the concurrence in Jardines (which held such searches illegal in relation to a standalone home) and concludes that we all have a reasonable expectation of privacy in apartments and in a limited sense in the hallway outside an apartment door:

Whitaker’s lack of a reasonable expectation of complete privacy in the hallway does not also mean that he had no reasonable expectation of privacy against persons in the hallway snooping into his apartment using sensitive devices not available to the general public.

Whitaker’s lack of a right to exclude did not mean he had no right to expect certain norms of behavior in his apartment hallway. Yes, other residents and their guests (and even their dogs) can pass through the hallway. They are not entitled, though, to set up chairs and have a party in the hallway right outside the door.

Similarly, the fact that a police officer might lawfully walk by and hear loud voices from inside an apartment does not mean he could put a stethoscope to the door to listen to all that is happening inside.

Applied to this case, this means that because other residents might bring their dogs through the hallway does not mean the police can park a sophisticated drug-sniffing dog outside an apartment door, at least without a warrant. See Jardines, 133 S. Ct. at 1416.

Second, the Court recognized the arbitrariness in limiting Jardines to single family standalone homes:

First, there is the middle ground between traditional apartment buildings and single-family houses. How would courts treat a split-level duplex? Perhaps even one that had been converted from a house into apartments? Does the number of units in the building matter, or do all multi-unit buildings lack the protection Jardines gives to single-family buildings? And what about garden apartments whose doors, like houses, open directly to the outdoors?

In doing so, the Court also acknowledged the unfairness in drawing such a distinction because it would discriminate based on income, race and ethnicity. Poorer people are more likely to live in apartments and those who live in houses are more likely to be white. The Court correctly recognizes that the Fourth Amendment cannot be read to apply differently based on these factors.

Not the same as a car search. The other important point the Court noted is that this case is easily distinguishable from Illinois v. Caballes and United States v. Place. Both those cases are relied upon by the State to argue that there is no reasonable expectation of privacy in contraband. That’s a superficially appealing argument as I’ve said before, but the REP is is not in contraband, but in the place or item being searched – like a home. Both Caballes and Place deal with searches in public places, where there is a lesser expectation of privacy and thus those warrantless searches were legal, whereas the same search of a home would not be.

This is now the second court to rule in this fashion, after the Illinois Supreme Court in People v. Burns. Hopefully the Connecticut Supreme Court follows suit.

 

Remedies for prosecutorial intrusion in attorney-client privilege

Communications between a client and his attorney are regarded as privileged, which means that they are “permanently protected from disclosure,” unless waived by the client. The strong public policy rationale behind keeping communications confidential is to ensure full disclosure between an individual and his attorney. The importance of this privilege is why we sometimes tolerate uneasy outcomes.

But what happens when that privilege is pierced in a criminal case and that too, by the prosecution? What happens when the prosecution gains access to confidential documents and conversations between a criminal defendant and his lawyer in a pending case?

While most courts agree that invasion of this attorney-client privilege is “reprehensible” and “abhorrent”, three cases highlight the difficulty courts have in deciding what the appropriate remedy should be.

In State v. Taylor, a recent Indiana Supreme Court case:

The body of Brian Taylor’s girlfriend, Simone Bush, was found on March 14, 2014, just a few hours after Taylor was dropped off at a police station. Taylor’s attorney arrived shortly thereafter and began meeting with his client. Police told the attorney to flip a switch if he didn’t want the police listening to his conversation, but when he did he piped his conversation with his client into another room where many officers were listening. They heard the location of a handgun, among other details. Two days later, Taylor was charged with murder.

A prosecutor was also present and overheard the conversation between the two.

In State v. Winkler, a case out of Missouri, Jennifer Winkler was charged with manslaughter in the shaking death of an infant she was taking care of. Both she and her husband were represented by the same lawyer:

According to available court documents, defense attorneys alleged that prosecutors met with Steven Winkler and discussed trial strategy for his former wife’s defense that should have been protected by attorney-client privilege.

Steven Winkler knew the strategy because lawyer Neil Bruntrager not only represented Jennifer Winkler in the murder case but also represented both, before they were divorced, in an effort to retain custody of their children. Bruntrager remains Jennifer Winkler’s attorney but no longer represents her ex-husband.

Finally, in State v. Lenarz, a Connecticut case from 2011:

During its examination of the defendant’s computer, the state laboratory discovered voluminous written materials containing detailed discussions of the defendant’s trial strategy…The state laboratory read and copied much of this material and transmitted it to the police department along with its report. In turn, the police department forwarded the materials and the report to the prosecutor…Although it is unclear from the record how long the prosecutor had been in possession of the privileged communications before the September, 2005 meeting, defense counsel represented at a hearing on a motion to suppress the materials seized under the search warrant that the prosecutor had had the materials for six weeks, and the prosecutor did not dispute this claim.

 

Rebuttable Presumption. The similaries in these cases go beyond the facts: all courts agree that when a governmental agency has committed such an intrusion, there is a strong presumption of prejudice and it is up to the government to prove that the prejudice can be overcome:

We agree with the courts that have held that the burden is not on the defendant to establish that he was prejudiced when the prosecutor has intruded on attorney-client communications that contain information concerning the defendant’s trial strategy. Rather, because the disclosure of such information is inherently prejudicial, prejudice should be presumed, regardless of whether the invasion into the attorney-client privilege was intentional. The subjective intent of the government and the identity of the party responsible for the disclosure simply have no bearing on that question.

State v. Lenarz. What differs among the courts is the standard by which the prosecution must overcome this presumption of prejudice. In Connecticut, the prosecution need only show by “clear and convincing evidence,” a burden higher than the civil “preponderance of evidence” but less demanding than “beyond a reasonable doubt”. The latter, which also applies to harmless error analysis is required by the Indiana Supreme Court in Taylor. So prosecutors in Indiana need to overcome a higher burden than prosecutors in Connecticut in proving that the defendant was not prejudiced by their intrusion in attorney-client privilege.

Remedy. Thus we get to the question of remedy. How is this violation of Constitutional rights to be vindicated? Most criminal defendants would want a dismissal of charges, but courts are loathe to sanction such a drastic remedy barring exceptional circumstances. The remedy also depends on the posture of a case. In Winkler above, the appeals court rejected her request for a dismissal, but granted her request to disqualify the prosecutor’s office. In Taylor, the trial judge ordered that the testimony of the police officers be suppressed and the physical evidence obtained as a result of the eavesdropping be suppressed as well. The Indiana Supreme Court reversed, stating that the prosecution had to have the opportunity to prove that the tainted evidence could have and would have been obtained in non-tainted ways. In Lenarz, the charges were dismissed, but only because it had been over a year and a half since the conviction and there was no way to effectively remedy the violation short of dismissal.

The problem with a lot of the remedies short of dismissal is that it is almost impossible to know the impact of the confidential information on police investigations and prosecution strategy. Even if a prosecutor swears that the information did not impact her decisions in any way, there is no reliable way to know that – information seeps into our brain and we can end up relying on it even subconsciously. If total dismissal is not the preferred remedy, then one could envision a regime where attorney-client communications are routinely monitored and the information gained therein is used to obtain other evidence through legal means. The privileged information would also drive trial strategy and provide the prosecution with access to the defenses that it ordinarily should not have.

If the attorney-client privilege is so sacrosanct and the cases above represent reprehensible violations of the right to counsel, then it should operate as does the exclusionary rule: a categorial bar that serves as a reminder to police and prosecutors that violations of the right to counsel cannot and will not be tolerated.

 

Should Administrative Warrants Be Legal?

The Supreme Court heard oral argument today in State v. Saturno, a case which involved the town zoning official obtaining an ex-parte warrant from a judge in order to enter a home suspected of violating zoning laws.

On appeal, the defendant argues that the search of his home was illegal because there is no statutory authority for an administrative search warrant, because there was no probable cause to support the warrant here, and because an administrative search warrant should not issue ex parte.  He claims that the legislature has yet to authorize an administrative warrant by statute, and he points out that the warrant here was obtained using a form that refers only to the criminal warrant statute, General Statutes § 54-33a.

As the Chief Justice aptly pointed out during argument, there are two issues:

  1. Is there any authority to issue administrative warrants, and
  2. If there is, what should be the procedure for issuing them

The state has indeed been pursuing administrative warrants at the legislature for years and for years (decades even?) they’ve been rebuffed, including this year.

In Saturno the police obtained an administrative warrant because they believed he had an illegal third apartment in his two-family home. When they entered – after breaking down a locked gate – they saw items they believed were part of an illegal pipe bomb making process. Based on that they obtained a criminal warrant and then found further illegal items and he was charged with several crimes.

The defendant argues in his brief that permitting such warrants violates the Fourth Amendment and the proper procedure is the one approved by our supreme court in Town of Bozrah v. Chmurynski. In that case, the court approved of an injunction which gives notice to the homeowner and an opportunity to contest the town’s desire to enter into the home. This would not be possible if administrative warrants were permitted, which would, in essence, allow criminal fact-finding investigations without a showing of probable cause that a crime has been committed.

In essence, the defendant argues that because the administrative process is far removed from a criminal investigation, it should not be treated as such. The policy reasons underlying the criminal warrant process – an ex-parte request, no opportunity by the subject to be heard, no notice – are not applicable when seeking to investigate a zoning violation and thus, the State’s interests aren’t so great that they outweigh an individual’s right to privacy in his home.

To be sure, general administrative searches are permitted under the Federal Constitution:

In the administrative context, on the other hand, the Supreme Court held in Camara v. Municipal Court, supra, 387 U.S. at 538-39, 87 S.Ct. 1727, that inspections that are part of a general administrative plan for the enforcement of a statutory scheme are reasonable within the meaning of the fourth amendment if “reasonable legislative or administrative standards for conducting an area inspection” demonstrate “a valid public interest.” (Emphasis added.) Particularized suspicion for choosing an individual residence within the area searched is unnecessary. Id., at 536, 538, 87 S.Ct. 1727.

In other words, probable cause to inspect a particular location may be based on a showing that the premises was chosen pursuant to a general administrative plan for the enforcement of a statute derived from neutral sources. Marshall v. Barlow’s, Inc., supra, 436 U.S. at 320-21, 98 S.Ct. 1816.

Bozrah. However, in Bozrah the court concluded that in order to conduct a particularized search for a specific home or individual, an injunction based on probable cause, issued by a neutral magistrate, after giving notice to the homeowner, is required.

Certainly situations like Saturno highlight the problem of permitting administrative warrants because they could end up being end runs around the probable cause requirement of warrantless searches. Town officials may, suspecting illegal activity, obtain administrative warrants to inspect the home for fire safety checks or other minor zoning violations and use that opportunity to enter the home in order to scope out other illegal activity whose fruits or instruments might be in plain sight.

If the concept that the home is a person’s castle is to be given any teeth – as with the drug-sniffing dog case from last week – police should not be permitted to enter a person’s home without probable cause and a warrant or some emergency situation to fulfill their caretaking function. An administrative warrant would provide another exception to that well-regarded requirement.

Inquiry into jurors’ racial animus

Generally speaking, deliberations of jurors are sacrosanct. Courts will not permit the parties to inquire of jurors their thought-processes and details of their deliberations. Under the Federal Constitution there is no exception for inquiry into whether any misconduct on a part of a juror impacted their verdict, thus rendering the decision unfair. A Coloroda man has asked the United States Supreme Court to change that and hold that the right to a fair trial is an exception to the so-called “no impeachment” rule of juror deliberations. (Here is his brief.) In his case, the allegation centered around racially charged statements made by a juror:

“I think he did it because he’s Mexican and Mexican men take whatever they want,” is one of several racially tinged statements attributed to the juror identified in court records by the initials H.C. In another comment, the juror is said to have cast doubt on an alibi provided by a Hispanic witness for Pena Rodriguez because the witness was “an illegal.” The witness testified that he was in the country legally.

Rodriguez argues that this juror’s racial bias violated his right to a fair trial and the trial court should have permitted inquiry into these comments and the effect the comments had on the verdict. SCOTUS will decide whether to take up this case.

Connecticut, however, already recognizes such an exception. Practice Book Section 42-33 provides:

Upon an inquiry into the validity of a verdict, no evidence shall be received to show the effect of any statement, conduct, event or condition upon the mind of a juror nor any evidence concerning mental processes by which the verdict was determined. Subject to these limitations, a juror’s testimony or affidavit shall be received when it concerns any misconduct which by law permits a jury to be impeached.

Further, our supreme court has clearly stated:

[A]n allegation that a juror is racially biased “strikes at the heart of the [defendant’s] right to a trial by an impartial jury and the right to equal protection.” State v. Brown, 232 Conn. 431, 453, 656 A.2d 997 (1995). In addition, public confidence in the fair administration of justice is undermined if such allegations are not thoroughly investigated and quashed. Discrimination on the basis of race, odious in all aspects, is especially pernicious in the administration of justice.

State v. Santiago, 245 Conn. 301, 335 (1998).

This makes a lot of sense. While we want to protect the jury and its deliberations, shielding it from outside influence and second-guessing based on dissatisfaction with its verdict, those same considerations require the ability to conduct some limited inquiry. The inquiry isn’t to find out why the jury voted a certain way, but rather to discover if its decision was motivated by something other than a consideration of the facts of that case.

If the defendant’s right to a fair trial and an impartial jury is to be taken seriously, then he must be given the tools to determine if the verdict in his case was impartial and fair. In Pena Rodriguez’s case, there seems to be a risk that the verdict was based on racial bias and if that’s the case, can it be said to rest solely on the facts and evidence presented to the jury?

Finality of and respect for the jury’s verdict are important considerations in the criminal justice system, but they should not be so inviolable as to render the defendant’s right to a fair trial impossible.

State v. Brown created the framework for inquiry into juror misconduct. In Brown, our supreme court exercised its supervisory authority over the administration of justice to hold that a trial court must conduct a preliminary inquiry, on the record, whenever it is presented with any allegations of jury misconduct in a criminal case, regardless of whether an inquiry is requested by counsel. Continue reading

Reviews of newly released opinions

One of the goals of this blog is to review criminal law opinions released by the Supreme and Appellate Courts of Connecticut on a weekly basis.

This allows me to stay abreast of the latest developments in the law and will also make the job of preparing for next year’s Annual Criminal Law Review much easier.