Natty Shafer Law

Utah lawyer for criminal and immigration cases


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Warrant Exceptions: Search Incident to Arrest

Most laypeople are vaguely aware that warrants allow police officers to search private belongings or property, and lack of a warrant can make a search illegal and render any evidence obtained inadmissible in court. However, there are so many exceptions to the warrant requirement that an officer can often find an exception. It sometimes seems as though the warrant requirement is no requirement at all. Today, I’m writing about one of those exceptions: the search incident to arrest.

When an officer arrests a person, the officer can search a person’s body to check for weapons or contraband. The rationale has been that officers need to protect themselves and they need to preserve evidence. The exception has a fairly long history. As Professor Orin Kerr showed, it goes back to at least 1914 and probably earlier. It is pretty well settled that officers can search everyone they arrest and the area within arm’s reach of the arrestee.

The problem comes with changes in technology and how intrusive such searches can be. We are in limbo as to whether or not police officers can search a person’s cell phone after an arrest. A police officer is allowed to remove the cell phone from someone they arrest, but are they allowed to open the cell phone and search for possibly incriminating evidence? A cell phone makes a poor weapon. Once an officer has removed it from a person’s possession, there is no threat of it harming the officer or of the arrestee deleting evidence. Unfortunately, the Supreme Court has not ruled on the issue of search incident to arrest recently, and lower courts are left analogizing new technologies to dissimilar objects from past rulings. Different courts are split on the issue. Neither the Utah Supreme Court nor the Tenth Circuit Court of Appeals have yet weighed in on the issue.

In United States v. Robinson, a 1973 case, the Court said that an officer could search a man’s pocket, which contained a crumpled up cigarette packet with heroin inside. As a result, some courts such as the California Supreme Court, have held that a cell phone on a person’s body is subject to search. A police officer, after a lawful arrest, can examine all of a phone’s contents without a search warrant.

It is not just the guilty who should be worried about this type of intrusion, either. Innocent people do get arrested, and there is a lot of personal information on a cell phone. I don’t know about you, but if an officer were so inclined, he could find a lot of embarrassing but not illegal information on my phone. I would not want a stranger poking around my text messages, call logs, appointment calendar, and pictures. Some people have even more sensitive information on their phone such as sensitive emails or trade secrets on their business phone.

Fortunately, there are other courts that have ruled differently, such as the Florida Supreme Court, and recognized that the rationale for this warrant exception does not apply to cell phones. Once an officer has taken a phone, the need to protect evidence or the officer’s safety is gone.

Until there is a ruling in Utah, it wouldn’t hurt to password protect your cell phone.


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A Low Threshold for Probable Cause

Two weeks ago the FBI arrested Paul Kevin Curtis for sending letters laced with ricin to President Obama and Senator Wicker of Mississippi, and it has been another week since the charges were dropped. Now the FBI has a second suspect in custody who may be responsible for sending the letters.

One lesson to be learned from the episode is the importance of letting the judicial process take its course and realizing that it is not just a cliche that a person is innocent until proven guilty. It is a central concept of our judicial system that until a person is convicted, they are still innocent under the law, and travesties will happen if we let mob mentality undermine that.

However, the episode also shows the depressingly low standard that it takes to arrest someone or for a judge to issue a search warrant. The Supreme Court has said that the standard for both an arrest and a search warrant is “probable cause.” The definition of probable cause has evolved a bit, but we are now using the definition outlined in a 1983 case, Illinois v. Gates, in which the Court said, “probable cause does not demand the certainty we associate with formal trials.” Instead, judges issuing search warrants should determine whether “there is a fair probability that contraband or evidence of a crime will be found in a particular place…. This flexible, easily applied standard will better achieve the accommodation of public and private interests.”

The Court is correct that this is an easily applied standard. It is easily applied because it sets the bar so low. The Court has never set a numerical value on what “fair probability” means, but if I were to say there is a fair probability of rain tonight, and the weatherman says there is a 15% of rain tonight, I don’t think anyone would find those statements contradictory. As has become apparent in the 30 years since the Gates decision, judges have interpreted “fair probability” to mean “within the realm of possibility.”

It is doubtful the FBI will voluntarily release the information that backed their search warrant and arrest of Paul Kevin Curtis, but from news reports, it appears there was little evidence against him. Both letters were signed “I am KC and I approve this message.” That is a sign off phrase Curtis has used in internet postings. The FBI acknowledged that the letters and stamps had no fingerprints and were sealed with self adhesives, leaving no DNA evidence. It would seem that the “probable cause” leading to the arrest and search of Mr. Curtis’ house consisted entirely of the repetition of phrases that he likes to use in social media, and the fact that he lives in Mississippi and his initials are KC.

If that is all it takes to establish probable cause, there is not much stopping the police from searching anyone’s home and not much stopping them from arresting just about anyone.


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Citizenship Naturalization Process

Applicants who have determined that they are eligible for naturalization are likely to be curious about the process of naturalization and what to expect. (Other people may be curious, too.)

First, applicants (or their attorneys) fill out the N-400. Every question should be answered, and it should be written in CAPS. What supporting documentation to submit depends on the applicant’s history and basis for filing the N-400, but each application requires a photocopy of the front and back of their Permanent Resident Card, 2 passport style photos, and a check for the filling fees.

After USCIS receives the application, they will send a notice for a “biometric” appointment. Basically, they will take the applicants’ fingerprints and possibly their pictures so that they can conduct background checks. Assuming that applicants have no criminal history, no ties to terrorist or communist organizations, and no other red flags, then they should pass the background check. It is possible to select another appointment date, but if at all possible, applicants should go to their appointment on the assigned date.

USCIS will send a notice for another appointment, this time for the naturalization interview. Some applicants may qualify for a waiver, but most applicants will need to be ready to take a civics test and to speak to the interviewer in English. The whole interview will be done in English, and one of the interviewer’s goals will be to test the applicant’s ability to communicate in English. The interviewer will ask up to 10 questions on civics and the U.S. government; once the applicant has correctly answered 6 questions, the questions stop. The applicant will also need to read one sentence in English and write one sentence in English. An applicant will get up to 3 chances to read and write a sentence correctly.

An applicant who passes the naturalization interview and the background check is likely to be recommended for citizenship. Applicants will get a final notice for their swearing in ceremony. Usually, many applicants are sworn-in at once. Either a United States judge or a USCIS officer will swear in the applicants, and the applicants must swear allegiance to the United States. After that, applicants are officially U.S. citizens. They can vote, serve on juries, obtain a U.S. passport, and generally have the same rights as citizens born in the United States.


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Citizenship Naturalization Requirements

The process of naturalization grants foreign born citizens or nationals U.S. citizenship, provided they meet the requirements Congress established. Previously, I have written about getting citizenship through military service. This information is for civilians wishing to become naturalized citizens.

The most common way for a person to become a citizen is by being a lawful permanent resident (green card holder) for at least 5 years and is at least 18 years old. After 5 years, a potential applicant may fill out “Form N-400” to start the process. During the past 5 years, the applicant must have spent at least 30 months (2.5 years) of that time inside the United States. Also, the applicant may not have had any foreign trips that lasted longer than 6 months. (These rules exist under the rationale that applicants who spends more than half their time outside the country may not have strong enough ties or allegiance to the United States.)

Another way a person can apply is if they are at least 18 years old, have been a lawful permanent resident for 3 years, and have been married to and living with a U.S. citizen for 3 years. The U.S. citizen spouse must have been a citizen for all of that 3 year period. Such applicants also fill out Form N-400.

This next way is relatively rare but is worth mentioning. A small group of people are classified as “U.S. nationals” and yet were not born U.S. citizens. People born in some U.S. territories, such as American Samoa, belong in this category. U.S. nationals who have lived in a state long enough to be legal residents can request naturalization through Form N-400; it is not required that they be a permanent resident first.

For some people it may be possible to have USCIS declare that they automatically became a citizen after they were born. This requires filling out Form N-600 “Certificate of Citizenship.” Often, the N-600 is naturalization as well, since such applicants are born as citizens of a different country but become citizens after birth. The N-600 deserves its own post, however.


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Public Defenders in Utah

The Salt Lake Tribune had an opinion piece earlier this week that highlighted the need and problems with the public defender system in Utah. According to the article, 48 states fund and supervise the process for ensuring representation for the indigent. Utah is one of the two states that do not. Each county devises its own system for people who cannot afford their own lawyer. Many counties spend as little as possible on public defenders, meanwhile providing ample resources to their prosecution departments.

In Gideon v. Wainwright, the Supreme Court held that state courts are required to provide counsel in criminal trials for people who cannot afford a lawyer. Earlier this year, we celebrated the 50th anniversary of Gideon, but still Utah does not have a statewide system for defending the indigent.

It really is important that everyone be given a proper attorney and trial. It would be hard to overstate how important it is to have a competent attorney who has the time to dedicate to an individual case. Everyone in Utah should let their representatives know that they do not approve of the current situation.


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Prosecutors with Weak Cases

One the frustrating things about being a defense attorney is the presumption that prosecutors only bring cases when they are sure the defendant is guilty. Unfortunately, prosecutors just do not spend a lot of time pondering whether each individual defendant is guilty. Now an interesting study from earlier this year found that one of the predictive factors in having a case later overturned was the prosecutor having had a weak case. The study compared the overturned convictions with what they called “near misses,” or cases where an innocent defendant was indicted but released before a conviction. (To determine that the near misses were actually innocent, the study examined the evidence to see if the person was actually innocent.) Overall in the near misses, the prosecutors actually had stronger cases. This is counterintuitive as we usually expect weaker cases to be dismissed sooner and stronger cases to have a higher chance of conviction.

To explain this phenomenon, some explanations are more charitable than others. Among the more generous interpretations are that prosecutors, realizing the weakness of their case, prepare for trial better, or that this is merely a failing of the human mind. Prosecutors who indict in spite of a weak case must first convince themselves of the correctness of their position. That internal conviction “translates” well with jury, and the jury convicts because of the confidence of the prosecutor. A less generous interpretation is that prosecutors with weak cases take active measures to illegally withhold evidence from the defendant. They become so committed to proving the defendant’s guilt that evidence potentially exonerating the defendant is discounted. In some of the cases the study examined, the prosecutor failed to turn over exculpatory evidence.

Other possible explanations the study highlighted are that prosecutors might behave differently when they have a weak case. While the police and the prosecutor are still investigating, they often realize they need to shore up weak aspects of their case. In some of the overturned convictions, the prosecutor used a lineup based on a merely passing resemblance to the victim’s description of the perpetrator; some victims feel compelled to select someone out of a lineup, but once a victim chooses someone they are unwilling or unable to tackle the idea they may have made a misidentification. In some cases, the prosecutor used a snitch to provide corroborating testimony. (The word “snitch” has a specific use in terms of testimony. It refers to someone who is not an eyewitness, but that supposedly gets an accused person to confess or corroborate all or part of the case against them. For myriad reasons, such testimony is extremely unreliable. Often, a snitch will receive compensation in the form of a reduced sentence or better living conditions in exchange for testimony. Unfortunately, juries often give snitches too much credence.) These actions have the effect of confirming a prosecutor’s incorrect hunch about a case, and people love when their hunches are confirmed.

This is just one of the many reasons that defense attorneys frequently remind juries to hear all the evidence and evaluate it on its own terms. Prosecutors frequently are wrong, and, as this study suggests, sometimes more likely to obtain a conviction when a case is weaker. That is why juries must actually listen to the evidence presented and uphold their duty to find a defendant guilty only when they are guilty beyond a reasonable doubt.


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Your Privacy Rights Are in the Control of a Canine

The Supreme Court issued a ruling yesterday that is disappointing for anyone concerned with civil rights. In Florida v. Harris, the Court unanimously overruled the Florida Supreme Court and held that a “dog sniff” is enough to establish probable cause for a police officer to search your vehicle.

Last summer, I wrote about a case that has yet to be decided, Florida v. Jardines, that also challenges the validity of drug-sniffing dogs. The problem with drug-sniffing dogs is that they can be influenced by their human handlers, and the prejudices and preconceptions of dog handlers should not be enough to establish probable cause. The latter case could still be decided differently since the Court has traditionally been more protective of rights when a house is involved, but its decision in Harris indicates a reluctance to second guess the use of drug-sniffing dogs, despite a lack of science establishing their reliability.

In this case, the dog was wrong that the defendant, Clayton Harris, had any of the narcotics that it was trained to uncover. Mr. Harris was pulled over twice, two months apart, and the same dog and handler walked around his car. Both times the dog alerted. The first time, Mr. Harris had ingredients and equipment for making methamphetamine, but the dog was not trained to find those ingredients. The second time, he had nothing illegal at all.

From a civil rights perspective, the problem is that most police departments do not keep records of stops involving drug-sniffing dogs. For people who are truly innocent, this means their lives can be disrupted while an officer tears apart their car looking for the contraband that will never be found. The innocent person may or may not receive an apology from the officer, but that will be cold comfort for anyone who missed a crucial appointment or had embarrassing (but not illegal) personal belongings uncovered while the officer searched. For the guilty, it shifts the burden of proof from the prosecution to the defense. A defendant must show that the dog and the handler are unreliable, and if police departments do not keep records or a dog’s mistakes, this will be nearly impossible.


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Juries Rarely Hear about Eyewitness Unreliability

There is a pretty big problem with alerting a jury about how unreliable eyewitness testimony is: the expense of hiring an expert witness. A defendant could agree with everything a prosecutor asserts except the identity of the perpetrator, but the defendant is going to need someone to testify about eyewitness unreliability.

Anything a lawyer says during opening or closing arguments needs to be supported at some point during the trial; a lawyer cannot just assert during closing arguments that eyewitnesses are extremely unreliable. To allow the jury to hear that information, a lawyer needs a witness, and it has to be an “expert witness.” The Utah Rules of Evidence, which are based on the federal rules, say that any witness testifying on scientific or specialized knowledge, and not on “the witnesses’s perception” (what they personally saw or heard), must be certified as an expert.

Expert witnesses are paid for their time, both in preparing for trial and they day of the trial. If they have to travel, it is normal to pay for travel expenses and food. How much an expert is paid depends a bit on their specialty. Rare specialties and specialties in which a person could be making a pretty good salary outside of court are paid more. Experts on eyewitness unreliability would fall into the “rare” category and are paid accordingly.

This has the compound effect of compromising their integrity in the minds of the jurors. When experts testify, they are routinely asked about the payment for testifying. Many are paid more than $100 an hour, and the jury may conclude the expert will say anything for that much money. Many lawyers decide it is not worth the price to tell the jury, especially if there are other arguments in favor of a not guilty verdict, and other defendants cannot afford the price regardless.


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It Didn’t Happen That Way

If there were a piece of scientific evidence that had a 30% failure rate, we would not let it into court. Polygraphs, which have been shown to be accurate between 90 and 95% of the time, are inadmissible. The justice system has decided that juries will give too much weight to the information. Yet eyewitness testimony, in study after study, has shown to have high error rates, but is not only let into court, it is frequently the determining factor in a jury’s decision.

The rules of evidence are quite complicated. The central rule is that the evidence has to be relevant. After that, most rules are designed to keep juries from letting the wrong factors determine their decision. In other words, the evidence is relevant, but due to human nature, a jury either will not hear it at all or a judge must carefully limit the evidence in order to prevent that particular piece of evidence from being the only thing a jury considers.

Studies have shown there is no correlation between how confident a witness is and how accurate their memory actually is. But a confident witnesses is a more believable witness, so prosecutors encourage witnesses to state a high degree of certainty to a jury.

Most people overestimate their own ability to remember things, and likewise overestimate other people’s memories. False memories tend to accord to our philosophy and world view. As a recent slate article put it, “The scary part is that your memories have already been altered. Much of what you recall about your life never happened, or it happened in a very different way. Sometimes our false memories have done terrible things. They have sent innocent people to jail.”


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Prosecutorial Discretion, Part 2: Plea Bargaining in the Modern Justice System

Part 1: Introduction

Justice is unbalanced.
Photo by “Frachet“

The modern day practice of prosecutors is to charge a defendant with every charge that could apply, and then drop several charges during the plea bargaining phase. It was not always so. Until about 1970, plea bargaining was a rare occurrence in the United States. When people were charged with crimes, prosecutors were expected to prove them before a jury. There were exceptions, of course, but sooner or later they had to go before a jury and make a case. This kept them in check. The more crimes charged, the more preparation to be done for a trial. Including weaker charges would allow defense lawyers to focus on those charges and suggest they were overzealous. Prosecutors probably care a little too deeply about their win/loss record for each charge in their jury trials. (They look at it like baseball stats, in a way.)

In 1970, the Supreme Court gave its explicit blessing to plea bargaining. Article III of the Constitution provides, “The trial of all crimes, except in cases of impeachment, shall be by jury.” Many legal experts were of the opinion that plea bargaining was unconstitutional. In Brady v. United States the Court said that plea bargaining is acceptable as long as the pleas are “knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” The number of cases resolved through plea bargaining jumped and kept on growing so that few cases make it to trial now. Today, prosecutors regularly agree to drop one or more charges in exchange for a plea, and judges have no problem with this.

This period of plea bargaining has also coincided with a systematic increase in prison or jail sentences. Legislators have decided that they want to be “tough on crime” so that sentences are about three times as long as they were fifty years ago. Combine this with an explosion in the number of crimes that are on the books and a person can be facing a very long sentence, indeed. As a result, many defendants feel coerced into taking a plea. Some prosecutors threaten to bring further charges or prosecute friends and family, if a defendant does not take a plea offer.