Natty Shafer Law

Utah lawyer for criminal and immigration cases


And Down the Slippery Slope We Go

The Utah legislature is considering a bill that requires police departments to collect a DNA sample from every person arrested for a felony. This is the logical extension of last year’s Supreme Court decision Maryland v. King, which I discussed at the time. The Court limited its decision to the collection of DNA for “serious offenses,” but it did not say what constitutes a serious offense. The Maryland law that the Court condoned limited DNA collection to those arrested for violent crimes (specifically enumerated under Maryland law), for an attempted violent crimes, or for burglary. The Utah bill (HB212) expands DNA collection to everyone arrested for any felony.

The Supreme Court justices are not known for being imprecise with language. If the Court had intended to say it was acceptable to collect the DNA of everyone accused of a felony, it could have done so. Instead it chose the undefined phrase “serious offenses.” It is a phrase vague enough to not raise initial concern—I do not remember any non-lawyers expressing concern about the decision—but allows the Court to later expand DNA collection for all arrestees. This should worry anyone concerned about civil liberties. Utah already collects the DNA of everyone convicted of felonies. The only people a change in the law would negatively affect are people who are arrested but later acquitted. This is another way the criminal justice system is eroding civil liberties of everyone, whether or not they are guilty of anything.

UPDATE: The legislature passed this bill, and it was signed by governor Gary Herbert. It went into law on May 13, 2014.

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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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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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Supreme Court to Hear Challenge on Drug Dogs

This fall, the Supreme Court of the United States will hear oral arguments in a case that challenges the use of drug-sniffing dogs to perform warrantless searches outside a suspect’s house. The case, Florida v. Jardines, arose when Miami police received a tip that Joelis Jardines was growing marijuana in his home. The police took a drug-sniffing dog around the perimeter of his house, and the dog indicated that it smelled drugs. Based on that information, the police obtained a search warrant of the house, and they found marijuana plants growing inside.

The Supreme Court has previously allowed drug-sniffing dogs to be used around cars or in the airport, but since that time a study from UC Davis has called into question the validity of drug-sniffing dogs. UC Davis recruited 18 law enforcement dogs with their human handlers for the study. Experimenters told the handlers that drugs or explosives might be present at the testing site, but neither one was present in any of the rooms. If the dogs had behaved appropriately, they would have passed through all four rooms without alerting their handlers. Only one of the 18 dogs did not falsely alert in any of the rooms.

Nick Estrada of the U.S. Navy trains a drug-sniffing dog

UC Davis researchers hypothesized that the dogs were taking cues from their handlers. If that is true, the dogs are merely relaying the preconceptions of their handlers, and it calls into question the validity of drug-sniffing dogs in any circumstance.

The Supreme Court might not speak on the validity of drug-sniffing dogs when it rules on this case, but it should. It is important that police have actual evidence when they request that a search warrant from a judge; the preconceptions of dog handlers should not be enough for probable cause.

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Curious Development in the Obamacare Case

Excuse me for a moment while I have a nerdgasm, but this stuff does not happen often. Yesterday, Jan Crawford of CBS News got a major scoop detailing some of the inner-workings of the Supreme Court during the Obamacare case. Apparently, Chief Justice Roberts originally sided with the four other conservative justices to declare the individual mandate unconstitutional, but he changed his mind. The conservative justices then spent a month trying to get him to change his mind back.

The Supreme Court usually doesn’t leak this kind of story. The Court eschews most publicity—cameras aren’t even allowed in the courtroom—and details about the Courts’ deliberations usually come out years or decades later, if they come out at all. For this story to come out just three days after the decision means that a justice or a clerk wanted this story released immediately. It could have been anyone, but it most likely that someone angry leaked the story. It is unlikely that a clerk would risk their career without having permission to talk. One or more of the conservative justices, directly or indirectly, likely leaked this story.

If true, it explains several oddities about the case. For one, it would explain why none of the conservative justices were willing to join any portion of Roberts’ opinion, even the parts they agreed with, and it explains why the dissenters refused to reference his opinion in their unsigned joint opinion. But most of all is explains the sudden appearance around Memorial Day of op-ed pieces accusing the “liberal media” of trying to bully Roberts into changing his vote. (Linda Greenhouse, legal blogger for The New York Times, noticed this too.) It caught my attention at the time, because the op-ed pieces specifically singled out Roberts as the target of an alleged liberal campaign, instead of Justice Kennedy, who is generally more likely to vote with the liberals on the Court.


Chief Justice Roberts Rehabilitates My Faith in the Judiciary

I won’t say my faith is completely restored, but Chief Justice Roberts went a long way towards rehabilitation my faith in the Supreme Court. (Justice Scalia, on the other hand, is irredeemably partisan and unprincipled.) With the Chief Justice’s opinion on the Obamacare case, we now know that there are at least a couple conservatives on the Court who make decisions based on principles, instead of what is best for the Republican party.

Back in April, I worried that the Court would make a decision based on bad principles. I don’t entirely agree with the Court’s decision, but I have no doubt that Chief Justice Roberts arrived there through a principled, logical thought process.

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Mandatory Life Terms Unconstitutional

A judge must consider youth and the nature of the crime when they sentence juveniles to prison, the United States Supreme Court ruled yesterday in Miller v. Alabama. The case involved two young juveniles who were sentenced to life in prison without parole in their respective states, Arkansas and Alabama. Each of the men were 14 when they took part in unrelated homicides. Both states imposes life in prison without parole as a mandatory sentence, which the Court said violates the Eighth Amendment’s prohibition against cruel and unusual punishment.

The decision will not necessarily free either of the men, Kuntrell Jackson of Arkansas and Evan Miller of Alabama. Nor does it prevent judges in the future from imposing life without parole on juveniles. However, it does require judges to at least consider the age of the offender, any mitigating circumstances, as well as the nature of the crimes.

This is a small, but positive step in the realm of criminal justice. Mandatory sentencing schemes are bad for society and bad for the accused. Judges should always be able to consider the circumstances of a crime before imposing sentences. Mandatory sentences are more about revenge than about crime prevention or reform. Not allowing a judge to consider circumstances in not only unjust, it’s silly.

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Everyone Should Care About My Sacred Cows

It’s been over a week since the Supreme Court heard oral arguments about Obamacare. The news coverage on the networks and cable news focused on the result of what the Court will do, with decidedly less coverage going to the logic of how the Court will get there. I understand why most people are results oriented, but for lawyers like me, that’s frustrating because I believe deeply that the Court should rule based on principles. Unfortunately, it’s an all-too-common occurrence for an academic to lecture the general public for not caring enough about their sacred cow.

That’s why the warning of some Democrats that the Court striking down Obamacare would undermine the legitimacy of the Court strikes me as particularly hollow. Rightly or wrongly, polls continue to show that the majority of people disapprove of the Affordable Care Act, and particularly the individual mandate. If/when the Court strikes down the mandate or the whole act, the majority of people will focus on the result rather than the Court’s rationale.

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Strip Searches: or How Being Arrested Can Still Get Worse

On Monday, the Supreme Court ruled that police departments can now strip search literally everyone they arrest, regardless of the seriousness of the crime. The case, Florence vs. Board of Chosen Freeholders of Burlington County, was brought by Albert Florence after he was strip-searched at a New Jersey jail when the police computer erroneously showed that he had an outstanding warrant. (He had actually paid his fine several years before the officer pulled him over for a traffic offense.) The Court ruled that Mr. Florence can’t sue the government for subjecting him to a strip search.

Lest anyone get the wrong idea that a strip search isn’t that bad—that it’s just momentarily unpleasant—I should point-out how awful it is to be strip searched. The strip search takes several minutes while the guards carefully examine any place that a weapon, drugs, or other contraband could be stored. This includes inside a woman’s vagina, behind a man’s testicles, and everyone’s anus. Mr. Florence had to go through this twice, as he was moved from a first jail to a second, and he also had to endure a delousing at the first jail.

Generally, I’m of the opinion that certain Supreme Court members are deferential to police departments because they can’t picture themselves ever being subjected to the procedures they approve. But in this case, anyone can be incorrectly arrested, because that’s exactly what happened to Mr. Florence.