On October 6, the U.S. Supreme Court heard arguments from defense counsel, the North Carolina State Attorney General, and the U.S. Solicitor General regarding the matter of Heien v. North Carolina. The question initially posed before the Court was whether a traffic stop premised on an officer’s mistaken understanding of a state statute violates the defendant’s Fourth Amendment rights. But as arguments proceeded, the issue became much more complicated, leaving some Justices concerned that this case raises more serious implications than initially anticipated.

The defendant in this case was a passenger in his own vehicle as it was operated by a friend down an interstate highway in North Carolina. A highway patrol officer noticed that only one of the defendant’s two brake lights was functioning. While the state statute only requires that vehicles have only one functioning break light, the officer interpreted the statute incorrectly and stopped the defendant’s vehicle to issue a warning to the defendant. The defendant then consented to the officer’s request to search the vehicle. And after forty minutes, the officer discovered a plastic sandwich bag containing cocaine. The defendant was charged and convicted on the charge of trafficking cocaine.

ISSUES BEFORE THE COURT

Often times, what initially begins as a traffic stop for a civil offense (such as speeding) unexpectedly becomes an investigation into a criminal offense, ultimately leading to criminal charges. Under Fourth Amendment law, police officers conducting a traffic stop can investigate for criminal activity so long as the investigation was reasonably derived from the officer’s initial suspicion that a traffic offense had been committed. Very recently, the Illinois State Attorney General filed an appeal with the U.S. Supreme Court to determine whether an officer can continue to hold the defendant even after the officer’s initial suspicion had already dissipated.

The case of Illinois v. Cummings

The petition for appeal was filed under Illinois v. Derrick Cummings, earlier this past summer. This case arose out of a traffic stop where a driver was charged with operating a vehicle without a license. The officer who conducted the traffic stop testified that he initially suspected the vehicle registration had expired. But after running the registration number through the database, the officer discovered that the registration was not expired but that the car was registered under a woman who had an arrest warrant issued against her. The officer then pulled the vehicle over and approached the driver. The driver was not a woman, but was the defendant, Mr. Derrick Cummings.

The United States Supreme Court will soon consider the case of Yohe v. Pennsylvania involving a DUI arrestee’s right to confront the lab technicians who analyzed his blood sample. The petition for writ of certiorari was filed by Attorney Justin McShane and is scheduled for conference later this week.

In the matter of Yohe, the defendant was arrested for operating under the influence during a traffic stop. The defendant subsequently provided a blood sample which was shipped to a 3rd party forensic lab for analysis for blood alcohol content. The lab then reported its findings to the prosecutor’s office, which offered them into evidence during trial through the testimony of an assistant director at the lab.

The forensic lab’s analysis consisted of three tests on three different portions of the defendant’s blood sample. The first analysis was an enzymatic assay test, conducted by one lab technician; another technician retrieved two more portions from the blood sample and conducted a Headspace Gas Chromatography test on each. The results of all three tests were reported to an assistant lab director who compared the results against certain lab protocols and electronically signed the reports certifying their accuracy.

The United States Supreme Court has before it several pending petitions that could clarify the scope of the Sixth Amendment right of confrontation. Until today lower courts have been completely split in their reasoning in their attempts to resolve Confrontation Clause challenges.

In the case of Turner v. United States, the defendant is appealing his conviction in the United States District Court for a drug distribution charge based on the fact that the chemist that performed the analysis of the cocaine at issue did not testify.

To prove that the substance was cocaine, the Government called a lab supervisor who reviewed the report of the original forensic analyst and concluded that he would have reached the same conclusion even though he did not personally conduct any of the testing. In the Turner case, the technician who actually tested the cocaine was on maternity leave.

The United States Supreme Court’s decision in Navarette v. California, decided today, diminishes Fourth Amendment protections of everyone on the road by allowing police to make stops based on uncorroborated 911 tips alleging erratic driving. While the goal of prosecuting drunk driving is worthy, it does not justify setting aside Constitution protections.

How do 911 Calls typically arise in an DUI case?

Anonymous 911 calls are extremely common in DUI cases and this decision provides for greater leeway among officer to make stops based on anonymous tips.

The United States Supreme Court is scheduled to issue landmark decisions early this summer regarding the constitutionality of a warrantless search of a suspect’s cell phone under the Fourth Amendment. The nation’s highest court has recently announced that it will be hearing arguments and deciding on two criminal cases – one from Boston, Massachusetts, and the other from California – that touch on the issue of warrantless searches of mobile devices. Arguments are scheduled for April, and the court is set to issue its decisions in June.

One of the cases to be examined by the court is U.S. v. Brima Wurie, which was litigated here in the U.S. District Court in Boston, MA. In the matter of Wurie, police officers arrested Wurie after allegedly observing him sell two bags of crack cocaine out of his car. When the officers were booking Wurie, they seized more than one thousands dollars cash, keys, and two cell phones, all of which were found in Wurie’s pockets. One of the cell phones – a flip phone – was repeatedly receiving calls from a number labeled “my house.” The officers opened the phone and checked the call log for the phone number making the calls to Wurie, and copied the number from the phone. The officers did not access either cell phone again.

Instead, the officers entered the phone number corresponding with the “my house” label into an online directory and discovered a street address associated with the number. Wurie denied living at that address. The officers then obtained a search warrant and went to the address on the assumption that Wurie had lied to them in order to protect a stash of cocaine at the home. When they executed the warrant, the officers discovered more crack cocaine, marijuana, cash, a firearm, and ammo inside the house. Wurie was charged with three federal offenses – possessing a firearm and ammo, possessing cocaine with intent to distribute, and distributing cocaine.

The United States Supreme Court is currently considering to hear another appeal that addresses the issue of whether surrogate expert testimony violates the Sixth Amendment Confrontation Clause. The appeal, titled Turner v. United States, was filed after a defendant was indicted and convicted in a federal drug distribution case on three counts. If the Court chooses to hear this appeal, the Justices may finally provide much needed direction and clarification following the Court’s problematic 2012 opinion in Williams v. Illinois.

Turner was indicted by a federal grand jury after he sold a mixture containing crack cocaine to an undercover police officer on three different occasions. Samples of the mixture obtained by the police officer from Turner were sent to the Wisconsin State Crime Lab, where an analyst issued a report identifying Turner and confirming the presence of crack cocaine in the mixture. The government initially notified Turner that the analyst would be called to testify to her findings on the compound, but then the government informed Turner that the analyst’s supervisor would testify in her place as the analyst was on maternity leave. This second notice came after the court’s deadline for expert witness discovery.

During trial, Turner’s counsel objected to admission of the supervisor’s testimony on the methods and procedures of the analyst who handled the cocaine mixture. The supervisor testified that although he did not conduct the analysis, he did review the data and notes generated by the actual analyst, and agrees with the analyst’s conclusion that the mixture contained crack cocaine. The supervisor also testified that it is the general practice and procedure of the Wisconsin Crime Lab for lab supervisors to review the work of their analysts and peers, and to sign off on final reports prior to release.

The United States Supreme Court in Turner v. U.S. may soon decide on the constitutionality of admitting surrogate expert testimony against a defendant in a drug federal drug case. Massachusetts criminal defense attorneys should expect this decision to clarify earlier Supreme Court precedent in Williams v. Illinois on the question of whether the Confrontation Clause bars expert testimony by a lab supervisor premised on a lower analyst’s findings.

After successfully petitioning the Supreme Court on a related issue, Turner has filed another appeal before the Court alleging violation of his constitutional right of confrontation. Turner was charged and convicted of distributing crack cocaine, a federal offense (21 U.S.C. sec.841(a)(1)). During the jury trial, the trial judge allowed the federal prosecutor to call an expert witness who supervised a state crime lab where certain substances seized during Turner’s arrest were analyzed. At the crime lab, a lower ranking lab analyst allegedly conducted the required analysis and issued a one-page report concluding that the seized substances had traces of crack cocaine. During the lab analysis, the lab supervisor conducted a peer review of the results and signed off on the report.

At the time of the trial, the lower analyst that conducted the actual analysis was on maternity leave, and so was not unable to testify. This analyst did, however, leave behind several hand-written notes created during the process. At the request of the federal prosecutor, the trial judge allowed the lab supervisor to testify in the analyst’s place with the understanding that the lab supervisor would rely only on his own findings and conclusions. Turner objected heavily to the court’s admission of the supervisor testimony because the supervisor frequently mentioned the written notes and conclusions of the lower analyst. More specifically, the supervisor testified that he relied on the notes and findings of the lower analyst in forming his opinion, and that he agreed with the analyst that the seized substances was cocaine-based.

The United States Constitution protects citizens from ex post facto laws. What this means is that a person cannot be punished for breaking a law that was not a law when they committed the act. This will be true even when the act becomes against the law after they committed it. As a Massachusetts criminal defense attorney, a question will often arise if the ex post facto protection applies to punishment guidelines that change after the defendant has committed the crime. The Supreme Court of the United States recently addressed this question in Peugh v. United States ruling that the sentencing guidelines in place at the time of the crime should be used even if they subsequently change.

The defendant in Peugh v. United States was convicted in federal court on five counts of bank fraud which occurred in 1999 and 2000. While sentencing the defendant, the judge used sentencing guidelines that were created in 2009; almost 10 years after Peugh had committed his crimes. The defendant argued that because these guidelines were not regulated when he committed his crime, it violated the ex post facto law in using them in sentencing.

In a 5-4 decision, the Supreme Court agreed with Peugh and ruled this was a violation of his constitutional rights. Punishment guidelines are often changing and becoming harsher and this decision shows that sentencing guidelines that were in effect at the time of the offense will be used when sentencing the defendant. The court focused on the fact that while punishment guidelines are not “laws” a judge will use the sentencing guidelines in over 80% of sentences. Because of this, a defendant will be subjected to a significant risk of a higher sentence because of these new guidelines. This is exactly what the constitution is trying to protect with the ex post facto rule.