by Jill Paperno, Esq.,
author of  Representing the Accused: A Practical Guide to Criminal Defense

As criminal defense lawyers, and especially as public defenders, we are often a unique combination of optimism and pessimism. We become convinced that we will prevail at trial under impossible circumstances – and often we do. We are certain that the judge is out to get us, the prosecutor is holding back, or the police are not being truthful – and too often we’re right. 

Yesterday and today news organizations touted the settlement of a lawsuit concerning provision of indigent defense services in New York, in Hurrell-Harring v. New York, as a cure for what ails the indigent defense process. “How New York is Finally Helping Poor Defendants” was the headline of a Newsweek article. The New York Times headline stated, “In New York, Cuomo Pledges More Aid for Lawyers of the Indigent.” The Washington Post blog announced, “New York Agrees to Major Reforms to Provide Public Defense to the Poor.” But as those cynical optimists, or optimistic pessimists, that we are, perhaps we should slow down before popping the corks. 

A press release issued by the Chief Defenders Association of New York, while praising the relief obtained by the five counties, sounded a cautionary note:

The settlement between the plaintiffs and New York State benefiting Ontario, Onondaga, Schuyler, Suffolk and Washington counties is a welcome first step in the long recognized need for the State to fully fund its constitutional responsibility towards indigent defense. But it is only a first step, and the State must ensure that the citizens in the remaining 57 counties in New York State are not forgotten.
CDANY applauds Governor Cuomo and Attorney General Schneiderman’s recognition that effective representation of the indigent is ultimately a State responsibility, requiring:

· The dedication of additional State resources to ensure that every indigent criminal defendant has a lawyer at their first court appearance. 

· The dedication of additional State resources to ensure that indigent defense programs have the resources they need to hire sufficient lawyers, investigators and support staff to ensure that all poor criminal defendants have lawyers with the time and support necessary to vigorously represent the defendant. 

· The implementation of caseload standards, as they are a necessary component of effective indigent defense.

CDANY also applauds the Governor and Attorney General in recognizing that additional resources provided to improve public defense should be implemented through a strengthened, independent Office of Indigent Legal Services.

However, the settlement provides no resources for the indigent defense providers in the rest of the State. New York cannot continue a system of justice that deprives dedicated public defenders the resources they need to effectively represent all of their clients, in every area of the State.

CDANY calls on the Governor and the New York State Legislature to immediately implement a plan to provide for the dedication of additional resources to all the remaining counties in New York State so that the indigent defense providers in those counties may implement the improvements mandated in the Hurrell-Harring settlement.

So why are we raining on the parade?  First, a little (and very abbreviated) background.

In order to understand why we might not want to celebrate just yet, we have to take a look at the history of this case, and the role that the state had in it.

New York is made up of sixty-two counties. Indigent defense in New York is provided by one of three methods – not for profits, such as Legal Aid, public defender offices, or assigned counsel attorneys. Each county determines how to provide defense services to the poor. Each county is responsible for paying for its indigent defense services. County executives complain, perhaps rightfully, that this is an unfunded mandate they cannot afford and do not want to pay for.  Spending lots on folks charged with crimes is not likely to win them any elections. They seek state funding.  The state provides some funding for services in the form of grants and other assistance, but the lion’s share of costs are borne by the counties.  

Because counties do not want to pay for indigent defense, the money allotted is not nearly enough to cover what we all believe is necessary.  As a result, depending on the county, caseloads for defenders may be well over guidelines, payments to attorneys may unfairly limited by judges, investigative services can be denied by judges, training and supervision may be inadequate or non-existent, and attorneys may split their time between their own private cases and assigned cases, with little payment for the assigned cases.  In 2006 a Commission appointed by Chief Judge of the Court of Appeals (New York’s highest court), Judith Kaye, determined that there were many inadequacies in provision of indigent defense services. The report can be found here.

In 2007 several indigent defendants living in five of New York’s sixty-two counties, represented by the New York Civil Liberties Union and a private firm, filed a lawsuit.  They alleged that due to the insufficient staffing and other inadequacies of the public defense system, they could not receive competent defense.  Initially, they sued the state.  The state moved to recuse the trial judge, claiming that the judge’s prior employment as the Albany County Public Defender, as well as his public support for improvement in the indigent defense system, disqualified him from hearing the case.  The judge declined to step down. The state then moved to dismiss the case on numerous grounds. The governor at the time was then impleaded (remember that term from law school?) and the judge denied dismissal provisionally, requiring that the counties be added to the suit. 

The state appealed the denial of dismissal, prevailing in the Appellate Division – the intermediate appellate court in New York. That Court agreed that defendants could seek to address their grievances in post-conviction proceedings. The plaintiffs appealed to the highest court in New York, the Court of Appeals.  Ultimately, the Court of Appeals, in a decision by Justice Lippmann – a strong proponent of quality representation for the poor – denied dismissal. See Hurrell-Harring v. State of New York, 15 NY3d 8 (2010). 

In 2011, after denial by the trial court, a class was certified for defendants within the five counties. 

So just to score it a bit – New York initially sought to recuse the judge who supported quality services for indigent defendants, then moved to dismiss the complaint, then appealed the denial of the dismissal, fighting for dismissal all the way to the Court of Appeals. 

Fast forward. Yesterday, the case was settled.  

In the settlement, found here, the state entered an agreement that addressed a process for establishing uniformity of eligibility determinations throughout the state. That was the only statewide provision.  The rest of the agreement focused on the provision of services in the five counties which were the subject of the lawsuit. Not sixty-two, but five. And in those five counties, public defender corks should be popping all over the place. 

But here’s the part that brings out my inner Eeyore (and the diplomatic concern expressed by the Chief Defenders):

1.  There is no indication about where the funding will come from, whether it will come from the same source that indigent defense funding comes from for the entire state, and what will happen to make up the amounts the rest of the counties may lose if it is from the same pot;

2.  There is no requirement that the really significant improvement in staffing, caseload caps, and support services will be extended to offices around the state;

3.  There is no promise from New York (the party that sought recusal and dismissal up to the highest court) to continue to work toward implementing these standards across the state.

I hope that the state truly recognizes that it has an obligation to ensure that all indigent defendants receive what it has agreed to provide in five counties.  But until we see where the money is coming from and whether it will have a negative impact on the remaining fifty-seven counties, I’m going to be keeping that cork in the bottle. 

"Good morning, Eeyore," said Pooh.

"Good morning, Pooh Bear," said Eeyore gloomily. "If it is a good morning, which I doubt," said he.

"Why, what's the matter?"

"Nothing, Pooh Bear, nothing. We can't all, and some of us don't. That's all there is to it."

"Can't all what?" said Pooh, rubbing his nose.

"Gaiety. Song-and-dance. Here we go round the mulberry bush."

Winnie the Pooh

by Jill Paperno, Esq.,
author of  Representing the Accused: A Practical Guide to Criminal Defense

As criminal defense lawyers, and especially as public defenders, we are often a unique combination of optimism and pessimism. We become convinced that we will prevail at trial under impossible circumstances – and often we do. We are certain that the judge is out to get us, the prosecutor is holding back, or the police are not being truthful – and too often we’re right. 

Yesterday and today news organizations touted the settlement of a lawsuit concerning provision of indigent defense services in New York, in Hurrell-Harring v. New York, as a cure for what ails the indigent defense process. “How New York is Finally Helping Poor Defendants” was the headline of a Newsweek article. The New York Times headline stated, “In New York, Cuomo Pledges More Aid for Lawyers of the Indigent.” The Washington Post blog announced, “New York Agrees to Major Reforms to Provide Public Defense to the Poor.” But as those cynical optimists, or optimistic pessimists, that we are, perhaps we should slow down before popping the corks. 

A press release issued by the Chief Defenders Association of New York, while praising the relief obtained by the five counties, sounded a cautionary note:

The settlement between the plaintiffs and New York State benefiting Ontario, Onondaga, Schuyler, Suffolk and Washington counties is a welcome first step in the long recognized need for the State to fully fund its constitutional responsibility towards indigent defense. But it is only a first step, and the State must ensure that the citizens in the remaining 57 counties in New York State are not forgotten.
CDANY applauds Governor Cuomo and Attorney General Schneiderman’s recognition that effective representation of the indigent is ultimately a State responsibility, requiring:

· The dedication of additional State resources to ensure that every indigent criminal defendant has a lawyer at their first court appearance. 

· The dedication of additional State resources to ensure that indigent defense programs have the resources they need to hire sufficient lawyers, investigators and support staff to ensure that all poor criminal defendants have lawyers with the time and support necessary to vigorously represent the defendant. 

· The implementation of caseload standards, as they are a necessary component of effective indigent defense.

CDANY also applauds the Governor and Attorney General in recognizing that additional resources provided to improve public defense should be implemented through a strengthened, independent Office of Indigent Legal Services.

However, the settlement provides no resources for the indigent defense providers in the rest of the State. New York cannot continue a system of justice that deprives dedicated public defenders the resources they need to effectively represent all of their clients, in every area of the State.

CDANY calls on the Governor and the New York State Legislature to immediately implement a plan to provide for the dedication of additional resources to all the remaining counties in New York State so that the indigent defense providers in those counties may implement the improvements mandated in the Hurrell-Harring settlement.

So why are we raining on the parade?  First, a little (and very abbreviated) background.

In order to understand why we might not want to celebrate just yet, we have to take a look at the history of this case, and the role that the state had in it.

New York is made up of sixty-two counties. Indigent defense in New York is provided by one of three methods – not for profits, such as Legal Aid, public defender offices, or assigned counsel attorneys. Each county determines how to provide defense services to the poor. Each county is responsible for paying for its indigent defense services. County executives complain, perhaps rightfully, that this is an unfunded mandate they cannot afford and do not want to pay for.  Spending lots on folks charged with crimes is not likely to win them any elections. They seek state funding.  The state provides some funding for services in the form of grants and other assistance, but the lion’s share of costs are borne by the counties.  

Because counties do not want to pay for indigent defense, the money allotted is not nearly enough to cover what we all believe is necessary.  As a result, depending on the county, caseloads for defenders may be well over guidelines, payments to attorneys may unfairly limited by judges, investigative services can be denied by judges, training and supervision may be inadequate or non-existent, and attorneys may split their time between their own private cases and assigned cases, with little payment for the assigned cases.  In 2006 a Commission appointed by Chief Judge of the Court of Appeals (New York’s highest court), Judith Kaye, determined that there were many inadequacies in provision of indigent defense services. The report can be found here.

In 2007 several indigent defendants living in five of New York’s sixty-two counties, represented by the New York Civil Liberties Union and a private firm, filed a lawsuit.  They alleged that due to the insufficient staffing and other inadequacies of the public defense system, they could not receive competent defense.  Initially, they sued the state.  The state moved to recuse the trial judge, claiming that the judge’s prior employment as the Albany County Public Defender, as well as his public support for improvement in the indigent defense system, disqualified him from hearing the case.  The judge declined to step down. The state then moved to dismiss the case on numerous grounds. The governor at the time was then impleaded (remember that term from law school?) and the judge denied dismissal provisionally, requiring that the counties be added to the suit. 

The state appealed the denial of dismissal, prevailing in the Appellate Division – the intermediate appellate court in New York. That Court agreed that defendants could seek to address their grievances in post-conviction proceedings. The plaintiffs appealed to the highest court in New York, the Court of Appeals.  Ultimately, the Court of Appeals, in a decision by Justice Lippmann – a strong proponent of quality representation for the poor – denied dismissal. See Hurrell-Harring v. State of New York, 15 NY3d 8 (2010). 

In 2011, after denial by the trial court, a class was certified for defendants within the five counties. 

So just to score it a bit – New York initially sought to recuse the judge who supported quality services for indigent defendants, then moved to dismiss the complaint, then appealed the denial of the dismissal, fighting for dismissal all the way to the Court of Appeals. 

Fast forward. Yesterday, the case was settled.  

In the settlement, found here, the state entered an agreement that addressed a process for establishing uniformity of eligibility determinations throughout the state. That was the only statewide provision.  The rest of the agreement focused on the provision of services in the five counties which were the subject of the lawsuit. Not sixty-two, but five. And in those five counties, public defender corks should be popping all over the place. 

But here’s the part that brings out my inner Eeyore (and the diplomatic concern expressed by the Chief Defenders):

1.  There is no indication about where the funding will come from, whether it will come from the same source that indigent defense funding comes from for the entire state, and what will happen to make up the amounts the rest of the counties may lose if it is from the same pot;

2.  There is no requirement that the really significant improvement in staffing, caseload caps, and support services will be extended to offices around the state;

3.  There is no promise from New York (the party that sought recusal and dismissal up to the highest court) to continue to work toward implementing these standards across the state.

I hope that the state truly recognizes that it has an obligation to ensure that all indigent defendants receive what it has agreed to provide in five counties.  But until we see where the money is coming from and whether it will have a negative impact on the remaining fifty-seven counties, I’m going to be keeping that cork in the bottle. 

"Good morning, Eeyore," said Pooh.

"Good morning, Pooh Bear," said Eeyore gloomily. "If it is a good morning, which I doubt," said he.

"Why, what's the matter?"

"Nothing, Pooh Bear, nothing. We can't all, and some of us don't. That's all there is to it."

"Can't all what?" said Pooh, rubbing his nose.

"Gaiety. Song-and-dance. Here we go round the mulberry bush."

Winnie the Pooh

The October 17th News Picks email update to New York State Defender Association members (a great organization and valuable source for criminal law developments, $75/year for attorneys, $15/year for students, a bargain at twice the price) included a summary of People v Chappelle, 2014 WL 5285479 [3rd Dept 10/16/14], an important case from the Third Department.

Mr. Chappelle was arraigned without counsel.  The next day, the prosecution’s notice of the right to testify before the grand jury was served on Mr. Chappelle personally, in jail, as he was still without counsel and, in fact, did not have any contact with counsel until after he was indicted.  More than 5 days after arraignment on the indictment, defense counsel moved to dismiss the indictment based on the violation of defendant’s right to testify before the grand jury. The trial court denied the motion as untimely (see, CPL § 190.50[5][c]).  The defendant then pled guilty and waived his right to appeal.

On appeal, despite the defendant’s appeal waiver (which the Third Department found to be invalid) the Court reversed the conviction on the grounds that the defendant was denied his constitutional right to counsel at a critical stage of the proceedings, an argument made for the first time on appeal. The Court noted that although defendant’s guilty plea forfeited his claim that his statutory right to testify under CPL § 190.50 was violated, the “claimed deprivation of the [s]tate constitutional right to counsel may be raised on appeal, notwithstanding that the issue was not preserved” before the lower court (citing People v Kinchen, 60 NY2d 772, 773 [1983]).  The Court then held defendant’s inability to consult with counsel concerning whether to testify before the grand jury resulted in a denial of defendant’s constitutional right to counsel and required reversal of the conviction.

So, a defendant deprived of his constitutional right to counsel at a critical stage of the proceedings may raise that error at any time, unbounded by statutory time constraints, and without regard on appeal to whether the issue was properly preserved below.  It would be hard to overstate the significance of this decision.  At the same time, the rationale seems obvious.  Why a ground for dismissal of the indictment under § 190.50[5][c] at all?  Because testifying, or not, before the grand jury is a critical stage of the proceedings at which the defendant has a constitutionally-guaranteed right to counsel. While there are laudable reasons for requiring such a violation to be raised promptly, those reasons only affect the defendant’s statutory rights, and will not excuse a constitutional violation.

Thus, where a defendant moves to dismiss the indictment based on allegations that he was deprived of the right to counsel prior to indictment, the trial court that elects to strictly adhere to the CPL § 190.50 time frame for such motions may see that defendant before it again a couple years down the line. 

The October 17th News Picks email update to New York State Defender Association members (a great organization and valuable source for criminal law developments, $75/year for attorneys, $15/year for students, a bargain at twice the price) included a summary of People v Chappelle, 2014 WL 5285479 [3rd Dept 10/16/14], an important case from the Third Department.

Mr. Chappelle was arraigned without counsel.  The next day, the prosecution’s notice of the right to testify before the grand jury was served on Mr. Chappelle personally, in jail, as he was still without counsel and, in fact, did not have any contact with counsel until after he was indicted.  More than 5 days after arraignment on the indictment, defense counsel moved to dismiss the indictment based on the violation of defendant’s right to testify before the grand jury. The trial court denied the motion as untimely (see, CPL § 190.50[5][c]).  The defendant then pled guilty and waived his right to appeal.

On appeal, despite the defendant’s appeal waiver (which the Third Department found to be invalid) the Court reversed the conviction on the grounds that the defendant was denied his constitutional right to counsel at a critical stage of the proceedings, an argument made for the first time on appeal. The Court noted that although defendant’s guilty plea forfeited his claim that his statutory right to testify under CPL § 190.50 was violated, the “claimed deprivation of the [s]tate constitutional right to counsel may be raised on appeal, notwithstanding that the issue was not preserved” before the lower court (citing People v Kinchen, 60 NY2d 772, 773 [1983]).  The Court then held defendant’s inability to consult with counsel concerning whether to testify before the grand jury resulted in a denial of defendant’s constitutional right to counsel and required reversal of the conviction.

So, a defendant deprived of his constitutional right to counsel at a critical stage of the proceedings may raise that error at any time, unbounded by statutory time constraints, and without regard on appeal to whether the issue was properly preserved below.  It would be hard to overstate the significance of this decision.  At the same time, the rationale seems obvious.  Why a ground for dismissal of the indictment under § 190.50[5][c] at all?  Because testifying, or not, before the grand jury is a critical stage of the proceedings at which the defendant has a constitutionally-guaranteed right to counsel. While there are laudable reasons for requiring such a violation to be raised promptly, those reasons only affect the defendant’s statutory rights, and will not excuse a constitutional violation.

Thus, where a defendant moves to dismiss the indictment based on allegations that he was deprived of the right to counsel prior to indictment, the trial court that elects to strictly adhere to the CPL § 190.50 time frame for such motions may see that defendant before it again a couple years down the line. 

The prosecution’s new penchant for videotaping confessions/interrogations raises the following issue. The facts are generally straight forward. The defendant is arrested, detained and interrogated by police investigators. The entire interrogation is video and audio recorded. He starts off denying everything then gradually lets some information slip out, then before you know it he cracks like an egg and admits everything. The tapes vary in length, but generally are 6 - 10 hours long. Lots of gaps, sometimes the defendant offers thin evidence of self-defense, intoxication, recklessness etc. The CPL 710.30 notice references the oral statements made by the defendant and evidenced on the accompanying DVD. At the Huntley hearing you get the interrogator’s grand jury testimony.

Now the fun starts.  In the testimony before the grand jury, the DA lays out that the defendant was interviewed, advised of Miranda, waived, agreed to talk and was interviewed by the investigator. Was the interrogation videotaped? Yes. How long is it? Twelve hours. Now the question...In sum and substance can you describe to the grand jury what he said? Sure no problem -- and the twelve hour interview gets reduced to twelve lines. First he denied it, then we continued to question him further over the course of the interview and he eventually admitted shooting the victim. My experience has been the prosecution never introduces or plays the videotape because it's too long. Try this laundry list for you motion to inspect the grand jury minutes and dismiss the indictment under CPL § 210.

a. The grand jury was not instructed as to complete defense, such as alibi or justification.  People v. Karp, 158 AD2d 378, 551 NYS2d 503.  People v. Valles, 62 NY2d 36, People v. Lancaster, 69 NY2d 20, or agency, People v. Jenkins, 157 AD2d 854 (2nd Dept. 1990); see also, People v. Falcon, 204 AD2d 181 (1st Dept 1994) (Indictment dismissed). The People enjoy wide discretion in presenting their case to the Grand Jury, but the prosecutor performs a dual role of advocate and public officer, charged with the duty not only to secure indictments but also to see that justice is done. ((citing People v. Lancaster, 69 NY2d 20, 25-26)). Having elected to introduce the written one page statement of the defendant, the prosecutor was obligated to introduce the videotaped statement as well, which given during the course of a continuous interrogation, amplified the written statement and contained facts sufficient to support the defense of justification that the People were required to charge to the grand jury). 

b. A material statement, here the videotaped interrogation, was withheld to the extent that the grand jury was misled by the prosecutor’s presentation and the Investigator’s testimony.  People v. Abbatiello, 129 Misc2d 831, 494 NYS2d 625 (indictment dismissed where DA withheld statement by car owner that weapons inside were his own); People v. Livingston, 175 Misc.2d 322, 668 N.Y.S.2d 443 (1998) (And although such videotapes need not always be presented to a Grand Jury it is noted that in driving while intoxicated cases the trier of fact is often left with a decision as to whether or not the “opinion” of the arresting officer as to defendant's state of intoxication, or lack thereof, will be accepted. In this case where there was no evidence of erratic driving on the part of the defendant, and especially since the videotape shows the defendant performing those sobriety tests in a manner at odds with the opinion of the arresting officer and his partner, the videotape can indeed allow the Grand Jury to reach its own opinion. The Court finds that the failure to present the videotape to the Grand Jury impaired the integrity of the proceeding and prejudiced defendant (CPL 210.35[5]).

c. Indictment dismissed where the People introduced inculpatory portions of defendant's statement to investigating officer, but not the exculpatory portions of that same videotaped statement which were part of a continuous interrogation.  People v. Rodriguez, 188 AD2d 566 (1992). Here the testifying Investigator never mentioned the alternative explanations offered by the defendant, reducing the interrogation to, “he eventually admitted he was in fact the front seat passenger....and he was the one who fired two shots at the victim.” This was a blatant misrepresentation and omission of any exculpatory explanations elicited by the interrogation. Here the rule of completeness requires defendant was entitled to have his complete statement/interrogation, rather than only the inculpatory assertions of the Investigator introduced into evidence before the grand jury. See, People v. Dlugash, 41 NY2d 725; People v. Saintilima, 173 AD2d 496, 497; People v. Blackburn, 213 A.D.2d 1009 (4th Dept.,1995). The court erred in permitting the People to read into evidence an inculpatory portion of defendant's Grand Jury testimony, while denying defense counsel's request to have read into evidence exculpatory portions of that testimony or portions that explained the testimony introduced by the People.

d. Inadmissible hearsay evidence was adduced before the grand jury.  CPL 190.30(1), People v. Jackson, 18 NY2d 516, U.S. v. Diaz, 922 F2d 998 (2nd Cir.). The sum and substance narrative of the Investigator is his conclusory opinion or synopsis of the 12 hour interrogation, not statements of the defendant. New York State indictments must be based on competent evidence, meaning evidence not subject to an exclusionary rule, such as the prohibition against hearsay (Richardson, Evidence § 4, at 4 [Prince 10th ed]; see also, People v. Oakley, 28 NY2d 309, 314; People v. Swamp, 84 NY2d 725,730 (1995). More than conclusory assertions of the defendant’s conduct are required at the Grand Jury stage. People v. Dumas, 68 NY2d 729; People v. Kenny, 30 NY2d at 157; People v. Swamp, supra, 84 NY2d at 730.

Good hunting. 

The prosecution’s new penchant for videotaping confessions/interrogations raises the following issue. The facts are generally straight forward. The defendant is arrested, detained and interrogated by police investigators. The entire interrogation is video and audio recorded. He starts off denying everything then gradually lets some information slip out, then before you know it he cracks like an egg and admits everything. The tapes vary in length, but generally are 6 - 10 hours long. Lots of gaps, sometimes the defendant offers thin evidence of self-defense, intoxication, recklessness etc. The CPL 710.30 notice references the oral statements made by the defendant and evidenced on the accompanying DVD. At the Huntley hearing you get the interrogator’s grand jury testimony.

Now the fun starts.  In the testimony before the grand jury, the DA lays out that the defendant was interviewed, advised of Miranda, waived, agreed to talk and was interviewed by the investigator. Was the interrogation videotaped? Yes. How long is it? Twelve hours. Now the question...In sum and substance can you describe to the grand jury what he said? Sure no problem -- and the twelve hour interview gets reduced to twelve lines. First he denied it, then we continued to question him further over the course of the interview and he eventually admitted shooting the victim. My experience has been the prosecution never introduces or plays the videotape because it's too long. Try this laundry list for you motion to inspect the grand jury minutes and dismiss the indictment under CPL § 210.

a. The grand jury was not instructed as to complete defense, such as alibi or justification.  People v. Karp, 158 AD2d 378, 551 NYS2d 503.  People v. Valles, 62 NY2d 36, People v. Lancaster, 69 NY2d 20, or agency, People v. Jenkins, 157 AD2d 854 (2nd Dept. 1990); see also, People v. Falcon, 204 AD2d 181 (1st Dept 1994) (Indictment dismissed). The People enjoy wide discretion in presenting their case to the Grand Jury, but the prosecutor performs a dual role of advocate and public officer, charged with the duty not only to secure indictments but also to see that justice is done. ((citing People v. Lancaster, 69 NY2d 20, 25-26)). Having elected to introduce the written one page statement of the defendant, the prosecutor was obligated to introduce the videotaped statement as well, which given during the course of a continuous interrogation, amplified the written statement and contained facts sufficient to support the defense of justification that the People were required to charge to the grand jury). 

b. A material statement, here the videotaped interrogation, was withheld to the extent that the grand jury was misled by the prosecutor’s presentation and the Investigator’s testimony.  People v. Abbatiello, 129 Misc2d 831, 494 NYS2d 625 (indictment dismissed where DA withheld statement by car owner that weapons inside were his own); People v. Livingston, 175 Misc.2d 322, 668 N.Y.S.2d 443 (1998) (And although such videotapes need not always be presented to a Grand Jury it is noted that in driving while intoxicated cases the trier of fact is often left with a decision as to whether or not the “opinion” of the arresting officer as to defendant's state of intoxication, or lack thereof, will be accepted. In this case where there was no evidence of erratic driving on the part of the defendant, and especially since the videotape shows the defendant performing those sobriety tests in a manner at odds with the opinion of the arresting officer and his partner, the videotape can indeed allow the Grand Jury to reach its own opinion. The Court finds that the failure to present the videotape to the Grand Jury impaired the integrity of the proceeding and prejudiced defendant (CPL 210.35[5]).

c. Indictment dismissed where the People introduced inculpatory portions of defendant's statement to investigating officer, but not the exculpatory portions of that same videotaped statement which were part of a continuous interrogation.  People v. Rodriguez, 188 AD2d 566 (1992). Here the testifying Investigator never mentioned the alternative explanations offered by the defendant, reducing the interrogation to, “he eventually admitted he was in fact the front seat passenger....and he was the one who fired two shots at the victim.” This was a blatant misrepresentation and omission of any exculpatory explanations elicited by the interrogation. Here the rule of completeness requires defendant was entitled to have his complete statement/interrogation, rather than only the inculpatory assertions of the Investigator introduced into evidence before the grand jury. See, People v. Dlugash, 41 NY2d 725; People v. Saintilima, 173 AD2d 496, 497; People v. Blackburn, 213 A.D.2d 1009 (4th Dept.,1995). The court erred in permitting the People to read into evidence an inculpatory portion of defendant's Grand Jury testimony, while denying defense counsel's request to have read into evidence exculpatory portions of that testimony or portions that explained the testimony introduced by the People.

d. Inadmissible hearsay evidence was adduced before the grand jury.  CPL 190.30(1), People v. Jackson, 18 NY2d 516, U.S. v. Diaz, 922 F2d 998 (2nd Cir.). The sum and substance narrative of the Investigator is his conclusory opinion or synopsis of the 12 hour interrogation, not statements of the defendant. New York State indictments must be based on competent evidence, meaning evidence not subject to an exclusionary rule, such as the prohibition against hearsay (Richardson, Evidence § 4, at 4 [Prince 10th ed]; see also, People v. Oakley, 28 NY2d 309, 314; People v. Swamp, 84 NY2d 725,730 (1995). More than conclusory assertions of the defendant’s conduct are required at the Grand Jury stage. People v. Dumas, 68 NY2d 729; People v. Kenny, 30 NY2d at 157; People v. Swamp, supra, 84 NY2d at 730.

Good hunting. 

Overcriminalized: America's use of incarceration as a response to mental illness, substance abuse, and homelessness

This series of short YouTube videos by Brave New Films examines the overuse of incarceration and, in the case of the mentally ill, force - too often deadly physical force - as a means to control those who are unable to toe the imaginary line of the social compact, thereby frightening the rule-bound and risk-averse.  The first video, for example, examines the social and economic benefits to utilizing officers and agencies trained in crisis intervention training when responding to those in mental health crisis, an all-to-common component of modern police work.

Given the obvious benefits, "Why wouldn't you do this?" asks one of the implementers of the training program for officers. The answer, sadly, comes not infrequently from the officers required to participate the crisis intervention training: "I'm a cop, I'm not a social worker; I don't believe in this B.S.," which roughly translated, sounds like "a little more force will solve the problem," a mindset that sometimes leads to shooting unarmed teenagers or choking people to death outside of Staten Island convenience stores for the tax code violation of selling loose cigarettes.

H/T Paul Layton

Overcriminalized: America's use of incarceration as a response to mental illness, substance abuse, and homelessness

This series of short YouTube videos by Brave New Films examines the overuse of incarceration and, in the case of the mentally ill, force - too often deadly physical force - as a means to control those who are unable to toe the imaginary line of the social compact, thereby frightening the rule-bound and risk-averse.  The first video, for example, examines the social and economic benefits to utilizing officers and agencies trained in crisis intervention training when responding to those in mental health crisis, an all-to-common component of modern police work.

Given the obvious benefits, "Why wouldn't you do this?" asks one of the implementers of the training program for officers. The answer, sadly, comes not infrequently from the officers required to participate the crisis intervention training: "I'm a cop, I'm not a social worker; I don't believe in this B.S.," which roughly translated, sounds like "a little more force will solve the problem," a mindset that sometimes leads to shooting unarmed teenagers or choking people to death outside of Staten Island convenience stores for the tax code violation of selling loose cigarettes.

H/T Paul Layton

Family Court: An under utilized resource for the criminal defense attorney

Family court proceedings can be the ultimate source of discovery for the criminal defense attorney. Where a child neglect/abuse petition is filed in family court against a parent of a child or a "person legally responsible" for a child, there is often a companion criminal case.  The allegations in both venues are often identical.  Despite this, criminal defense attorneys (in my experience) seldom contact a client's family court attorney or observe the family court proceedings.  The advantages of having a "companion" family court case are numerous.

Upon the filing of a child abuse/neglect petition under Article 10 of the Family Court Act, an initial court appearance is scheduled within days.  During this appearance, the Respondent (the parent or person "legally responsible" of/for a child) is entitled to an immediate evidentiary hearing (a "1027 hearing" pursuant to Section 1027 of the family Court Act) to determine whether that child should be legally removed from that parent's care during the pendency of the family court proceeding. Witnesses will be called at this hearing and will be subject to cross examination.  Hearsay is admissible at this stage of the proceedings, however the primary Child Protective Services case worker who conducted the "investigation" as to the allegations of child abuse/neglect will most often be the witness called to testify.  That case worker is usually the individual who conducted the interview of the child.

The family court attorney may decide not to request such a hearing on behalf of the client during theses early stages of the proceedings, opting instead to reserve the client's right to a hearing for the return of the child at some point in the future (usually to give the client an opportunity to begin substance abuse treatment for example if there are allegations of substance abuse leading to the initial removal of the child).  Such a hearing is referred to as a "1028 hearing" pursuant to Section 1028 of the Family Court Act.

It may be more advantageous to the client to have certain witnesses cross examined early on in family court in order to assist in the defense of the criminal charges, rather than to wait   The criminal defense attorney may be deciding whether to waive a case to the grand jury without the benefit of discovery.  The Family Court "1027 hearing" may assist a great deal in exploring the allegations.

In addition to the "1027 and 1028 hearings", the Respondent in Family Court child neglect/abuse proceedings is ultimately entitled to a "fact finding hearing" to determine whether the child or children have been abused or neglected by the Respondent(s).  Hearsay is not admissible at this stage of the proceedings, with the exception of a child's hearsay statements if such statements pertain to neglect or abuse and are corroborated.  Consequently, the criminal defense attorney has the potential to gain discovery from two separate evidentiary hearings during which there will evidence pertaining to the very same allegations forming the basis of the "companion" criminal charge(s).

There is more even.... The family court attorney has access to the entire file compiled by the Department of Human Services.  Such a file is truly invaluable.  The Child Protective Case Worker(s) assigned to the case complies the contents of this file.  Child Protective Case Workers write everything in their notes!! I am often surprised by the detail that is included, details of conversations and observations that are often not helpful to them or their case, and often very helpful to yours! Such notes will include details regarding the interview of the child that you will not see in any document generated by law enforcement.

Family Court: An under utilized resource for the criminal defense attorney

Family court proceedings can be the ultimate source of discovery for the criminal defense attorney. Where a child neglect/abuse petition is filed in family court against a parent of a child or a "person legally responsible" for a child, there is often a companion criminal case.  The allegations in both venues are often identical.  Despite this, criminal defense attorneys (in my experience) seldom contact a client's family court attorney or observe the family court proceedings.  The advantages of having a "companion" family court case are numerous.

Upon the filing of a child abuse/neglect petition under Article 10 of the Family Court Act, an initial court appearance is scheduled within days.  During this appearance, the Respondent (the parent or person "legally responsible" of/for a child) is entitled to an immediate evidentiary hearing (a "1027 hearing" pursuant to Section 1027 of the family Court Act) to determine whether that child should be legally removed from that parent's care during the pendency of the family court proceeding. Witnesses will be called at this hearing and will be subject to cross examination.  Hearsay is admissible at this stage of the proceedings, however the primary Child Protective Services case worker who conducted the "investigation" as to the allegations of child abuse/neglect will most often be the witness called to testify.  That case worker is usually the individual who conducted the interview of the child.

The family court attorney may decide not to request such a hearing on behalf of the client during theses early stages of the proceedings, opting instead to reserve the client's right to a hearing for the return of the child at some point in the future (usually to give the client an opportunity to begin substance abuse treatment for example if there are allegations of substance abuse leading to the initial removal of the child).  Such a hearing is referred to as a "1028 hearing" pursuant to Section 1028 of the Family Court Act.

It may be more advantageous to the client to have certain witnesses cross examined early on in family court in order to assist in the defense of the criminal charges, rather than to wait   The criminal defense attorney may be deciding whether to waive a case to the grand jury without the benefit of discovery.  The Family Court "1027 hearing" may assist a great deal in exploring the allegations.

In addition to the "1027 and 1028 hearings", the Respondent in Family Court child neglect/abuse proceedings is ultimately entitled to a "fact finding hearing" to determine whether the child or children have been abused or neglected by the Respondent(s).  Hearsay is not admissible at this stage of the proceedings, with the exception of a child's hearsay statements if such statements pertain to neglect or abuse and are corroborated.  Consequently, the criminal defense attorney has the potential to gain discovery from two separate evidentiary hearings during which there will evidence pertaining to the very same allegations forming the basis of the "companion" criminal charge(s).

There is more even.... The family court attorney has access to the entire file compiled by the Department of Human Services.  Such a file is truly invaluable.  The Child Protective Case Worker(s) assigned to the case complies the contents of this file.  Child Protective Case Workers write everything in their notes!! I am often surprised by the detail that is included, details of conversations and observations that are often not helpful to them or their case, and often very helpful to yours! Such notes will include details regarding the interview of the child that you will not see in any document generated by law enforcement.

Lets take a trip down memory lane to the ‘80s: a time when hair was big, music was bad, and some important cases that are still good law concerning grand jury practice and, in particular, motions to dismiss an indictment pursuant to CPL § 190.50 based on a violation of the defendant’s right to testify before the grand jury were being decided. 

With respect to grand jury proceedings, the district attorney has a “duty of fair dealing to the accused” (People v Pelchat, 62 NY2d 97, 105 [1984]; see also, People v Lancaster, 69 NY2d 20, 26 [1986]) and to the court (People v Ianniello, 21 NY2d 418, 424 [1968]).  This duty of fair dealing encompasses an obligation to ensure fairness in grand jury submissions (People v Pelchat, supra; People v Jordan, 153 AD2d 263 [2nd Dept 1990]; People v Russo, 128 Misc2d 876, 880 [Co Ct Suffolk Co 1985]), which includes notice of the grand jury proceedings that gives a defendant a reasonable opportunity to exercise his right to testify, not mere technical compliance with minimum statutory notice requirements (People v Davis, 133 Misc2d 1031 [Sup Ct Queens Co 1986]; People v Martinez, 111 Misc2d 67 [Sup Ct Queens Co 1981]; People v Rakity, 77 Misc2d 324 [Sup Ct Suffolk Co 1974]; People v Randazzo, 171 Misc2d 541 [Sup Ct Kings Co 1997] [one day’s notice is not reasonable notice]).

Under CPL § 190.50(5)(c) a defendant may move to dismiss an indictment on the grounds that he was denied the opportunity to testify before the grand jury.  Such a motion is waived, however, if not made within five days of arraignment (see also, People v Jones, 187 AD2d 750 [3rd Dept 1992], lv den, 81 NY2d 790 [1993]), although in some cases, discussed below, that five-day deadline may be extended.  

Defense counsel’s failure to have a defendant testify at the grand jury does not, per se, constitute ineffective assistance of counsel (People v Jiminez, supra; see also, People v. Wiggins, 89 NY2d 872 [1996]), however actions of counsel that deprive a defendant of a meaningful opportunity to testify before the grand jury constitutes ineffective assistance.  For example, when notice of opportunity to testify before the grand jury is provided to defense counsel, failure to timely make defendant aware of such notice or otherwise protect defendant’s right to testify (by failing to provide the People with written notice of the defendant’s desire to testify, for example) is ineffective (see, People v Jiminez, supra; People v Prest, 105 AD2d 1078 [4th Dept 1984]; see also, People v Crown, 216 AD2d 484 [2nd Dept 1995]). 

Where a defendant is incapacitated at the time of the presentation to the grand jury, the indictment may be dismissed with leave to represent (People v Bakulas, 95 AD2d 813 [2nd Dept 1983]). Likewise, where defendant was represented at the time of the grand jury proceeding by counsel who rendered ineffective assistance the defendant may be considered legally “incapacitated” for purposes of exercising his right to testify, warranting extension of the time to file a motion pursuant CPL § 190.50 to a period of five days following the appointment of new counsel (see, People v Stevens, 151 AD2d 704 [2nd Dept 1989] [Five day time period for motion to dismiss held inappropriate where defendant unrepresented]; People v Moskowicz, 192 AD2d 317 [1st Dept 1993] [Five day time period inappropriate where prior counsel was ineffective]; see also, People v Hooker, 113 Misc2d 159 [Sup Ct Kings Co 1982]).  

A good example of a situation in which the five day period for a § 190.50 motion may be extended is provided by People v Prest, 105 AD2d 1078 [4th Dept 1984].  In Prest, the defendant was originally represented by a public defender for purposes of arraignment on the felony complaint.  After being indicted, defendant alleged that she was not advised of her right to testify before the grand jury by her public defender, and new counsel was assigned.  Within five days of being assigned, defendant’s new counsel moved for dismissal of the indictment pursuant to CPL § 190.50(5), based on denial of defendant’s right to testify before the grand jury.  County Court denied defendant’s motion and defendant thereafter pled guilty.  The Fourth Department reversed defendant’s conviction and dismissed the indictment, reasoning that

. . . the circumstances here militate against a strict application of the five day requirement (CPL 190.50, subd. 5, par. [c]) . . . Assigned counsel promptly moved within five days of his appointment to dismiss the indictment on the ground that defendant had improperly been denied her right to testify before the Grand Jury.

see also, People v Mason, 176 AD2d 356 [2nd Dept 1991] [five day period extended where new counsel is assigned]; People v Backman, 274 AD2d 432 [2nd Dept 2000] [same].  Further, at least one lower court has reasoned that “[i]t is quite possible that holding the defendant to the five day limitation in these circumstances could violate the defendant’s due process rights” (People v Onyeabor, 8 Misc3d 310, 314, n 10 [Sup Ct Kings Co 2005] citing Santobello v New York, 404 US 257 [1971]).

Circumstances giving rise to the filing of what would otherwise be an untimely § 190.50 notice can arise in several ways.  For example, counsel who represents the defendant at arraignment never meets with the defendant and advises him concerning his right to testify before the grand jury, or having determined that the defendant wishes to testify, counsel fails to notify the District Attorney in writing of defendant’s desire to testify.  Sometimes, counsel who is not present at arraignment is assigned thereafter, but never meets with the defendant before the grand jury votes an indictment.  Other times, counsel may appear with the defendant at arraignment and announce a conflict of interest and new counsel may not be assigned until after the indictment is voted, leaving the defendant unrepresented during the entire pre-indictment period and often, with the notice of his right to testify having been served on an attorney who does not represent the him (conflicted counsel who is present at arraignment) and who cannot advise him concerning his right to testify.  

Where the motion papers demonstrate that the defendant’s right to testify before the grand jury has not been “scrupulously protected,” the “mandatory language” of CPL § 190.50(5) “creates what is a ministerial duty on the part of the court to dismiss an indictment obtained in violation of a defendant’s right to appear before the Grand Jury” (Matter of Borrello v Balbach, 112 AD2d 1051 [2nd Dept 1985]; see also, People v Mason, 176 AD2d 356 [2nd Dept 1991]; People v Greenfield, 178 AD2d 653 [2nd Dept 1991]; People v Degnan, 246 A.D.2d 819 [3rd Dept 1998]).

Lets take a trip down memory lane to the ‘80s: a time when hair was big, music was bad, and some important cases that are still good law concerning grand jury practice and, in particular, motions to dismiss an indictment pursuant to CPL § 190.50 based on a violation of the defendant’s right to testify before the grand jury were being decided. 

With respect to grand jury proceedings, the district attorney has a “duty of fair dealing to the accused” (People v Pelchat, 62 NY2d 97, 105 [1984]; see also, People v Lancaster, 69 NY2d 20, 26 [1986]) and to the court (People v Ianniello, 21 NY2d 418, 424 [1968]).  This duty of fair dealing encompasses an obligation to ensure fairness in grand jury submissions (People v Pelchat, supra; People v Jordan, 153 AD2d 263 [2nd Dept 1990]; People v Russo, 128 Misc2d 876, 880 [Co Ct Suffolk Co 1985]), which includes notice of the grand jury proceedings that gives a defendant a reasonable opportunity to exercise his right to testify, not mere technical compliance with minimum statutory notice requirements (People v Davis, 133 Misc2d 1031 [Sup Ct Queens Co 1986]; People v Martinez, 111 Misc2d 67 [Sup Ct Queens Co 1981]; People v Rakity, 77 Misc2d 324 [Sup Ct Suffolk Co 1974]; People v Randazzo, 171 Misc2d 541 [Sup Ct Kings Co 1997] [one day’s notice is not reasonable notice]).

Under CPL § 190.50(5)(c) a defendant may move to dismiss an indictment on the grounds that he was denied the opportunity to testify before the grand jury.  Such a motion is waived, however, if not made within five days of arraignment (see also, People v Jones, 187 AD2d 750 [3rd Dept 1992], lv den, 81 NY2d 790 [1993]), although in some cases, discussed below, that five-day deadline may be extended.  

Defense counsel’s failure to have a defendant testify at the grand jury does not, per se, constitute ineffective assistance of counsel (People v Jiminez, supra; see also, People v. Wiggins, 89 NY2d 872 [1996]), however actions of counsel that deprive a defendant of a meaningful opportunity to testify before the grand jury constitutes ineffective assistance.  For example, when notice of opportunity to testify before the grand jury is provided to defense counsel, failure to timely make defendant aware of such notice or otherwise protect defendant’s right to testify (by failing to provide the People with written notice of the defendant’s desire to testify, for example) is ineffective (see, People v Jiminez, supra; People v Prest, 105 AD2d 1078 [4th Dept 1984]; see also, People v Crown, 216 AD2d 484 [2nd Dept 1995]). 

Where a defendant is incapacitated at the time of the presentation to the grand jury, the indictment may be dismissed with leave to represent (People v Bakulas, 95 AD2d 813 [2nd Dept 1983]). Likewise, where defendant was represented at the time of the grand jury proceeding by counsel who rendered ineffective assistance the defendant may be considered legally “incapacitated” for purposes of exercising his right to testify, warranting extension of the time to file a motion pursuant CPL § 190.50 to a period of five days following the appointment of new counsel (see, People v Stevens, 151 AD2d 704 [2nd Dept 1989] [Five day time period for motion to dismiss held inappropriate where defendant unrepresented]; People v Moskowicz, 192 AD2d 317 [1st Dept 1993] [Five day time period inappropriate where prior counsel was ineffective]; see also, People v Hooker, 113 Misc2d 159 [Sup Ct Kings Co 1982]).  

A good example of a situation in which the five day period for a § 190.50 motion may be extended is provided by People v Prest, 105 AD2d 1078 [4th Dept 1984].  In Prest, the defendant was originally represented by a public defender for purposes of arraignment on the felony complaint.  After being indicted, defendant alleged that she was not advised of her right to testify before the grand jury by her public defender, and new counsel was assigned.  Within five days of being assigned, defendant’s new counsel moved for dismissal of the indictment pursuant to CPL § 190.50(5), based on denial of defendant’s right to testify before the grand jury.  County Court denied defendant’s motion and defendant thereafter pled guilty.  The Fourth Department reversed defendant’s conviction and dismissed the indictment, reasoning that

. . . the circumstances here militate against a strict application of the five day requirement (CPL 190.50, subd. 5, par. [c]) . . . Assigned counsel promptly moved within five days of his appointment to dismiss the indictment on the ground that defendant had improperly been denied her right to testify before the Grand Jury.

see also, People v Mason, 176 AD2d 356 [2nd Dept 1991] [five day period extended where new counsel is assigned]; People v Backman, 274 AD2d 432 [2nd Dept 2000] [same].  Further, at least one lower court has reasoned that “[i]t is quite possible that holding the defendant to the five day limitation in these circumstances could violate the defendant’s due process rights” (People v Onyeabor, 8 Misc3d 310, 314, n 10 [Sup Ct Kings Co 2005] citing Santobello v New York, 404 US 257 [1971]).

Circumstances giving rise to the filing of what would otherwise be an untimely § 190.50 notice can arise in several ways.  For example, counsel who represents the defendant at arraignment never meets with the defendant and advises him concerning his right to testify before the grand jury, or having determined that the defendant wishes to testify, counsel fails to notify the District Attorney in writing of defendant’s desire to testify.  Sometimes, counsel who is not present at arraignment is assigned thereafter, but never meets with the defendant before the grand jury votes an indictment.  Other times, counsel may appear with the defendant at arraignment and announce a conflict of interest and new counsel may not be assigned until after the indictment is voted, leaving the defendant unrepresented during the entire pre-indictment period and often, with the notice of his right to testify having been served on an attorney who does not represent the him (conflicted counsel who is present at arraignment) and who cannot advise him concerning his right to testify.  

Where the motion papers demonstrate that the defendant’s right to testify before the grand jury has not been “scrupulously protected,” the “mandatory language” of CPL § 190.50(5) “creates what is a ministerial duty on the part of the court to dismiss an indictment obtained in violation of a defendant’s right to appear before the Grand Jury” (Matter of Borrello v Balbach, 112 AD2d 1051 [2nd Dept 1985]; see also, People v Mason, 176 AD2d 356 [2nd Dept 1991]; People v Greenfield, 178 AD2d 653 [2nd Dept 1991]; People v Degnan, 246 A.D.2d 819 [3rd Dept 1998]).

When you file a suppression motion in federal court, certain things will almost always happen. First, the government will threaten to withdraw offers of resolution and foreswear any future motion for acceptance of responsibility points for your client. (Whether this is proper or not is a topic for a future blog.)

Second, the government will challenge your client’s "standing" to make the suppression motion and demand a declaration from your client or, if you have already provided a declaration, the government will claim the declaration is insufficient. This will happen in almost every case.

The government will invariably couch its challenge to your client’s right to protest an illegal search in terms of "standing." The United States Supreme Court, however, has not adopted the use of this common law term to define the limits of Fourth Amendment protection. Rather the Court has stated that the "definition of those rights is more properly placed within the purview of substantive Fourth Amendment law than within that of standing." Rakas v. Illinois, 439 US 128, 140 (1978). You don’t have to use the term "standing" if the Supreme Court doesn’t and it is usually better to frame your issue in terms of your client’s privacy expectations.

"the Fourth Amendment protects people, not places"

This is a classic quote from Katz v. United States, 389 U.S. 347, 351 (1967). In Katz, the government tried to avoid the warrant requirement for taping phone calls by attaching an eavesdropping device to the outside of a public telephone booth. Rejecting the government’s property­-based standing argument, the Supreme Court affirmed the suppression of the recordings and held that a "Fourth amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable." Katz, 389 U.S. at 361 (Harlan, J. concurring) (cited in Kyllo v. United States, 533 U.S. 27, 33 (2001).

After Katz, the government continued its efforts to cordon off Fourth Amendment protection to property rather than people, usually arguing that if a person doesn’t have property rights for a location or a thing, he or she has no reasonable expectation of privacy to protest the search or seizure. Courts have resisted this argument in certain contexts, see United States v. Gargiso, 456 F.2d 584 (2d Cir. 1972) (holding that a person has a right to privacy in a hotel room and the hotel clerk can’t consent to the search), while yielding to it in others, see California v. Greenwood, 486 U.S. 35, 41 (1988) (holding a person has no expectation of privacy in discarded trash waiting for pickup by trash collector).

The Two Minnesota Cases

In Minnesota v. Olson, 495 U.S. 91 (1990), the Supreme Court held that an overnight guest enjoys an expectation of privacy that society deems legitimate. The Olson language is inclusive and should be used to resist the government’s efforts to contract the boundaries of Fourth Amendment protection:

We stay in others' homes when we travel to a strange city for business or pleasure, when we visit our parents, children, or more distant relatives out of town, when we are in between jobs or homes, or when we house­sit for a friend. We will all be hosts and we will all be guests many times in our lives. From either perspective, we think that society recognizes that a houseguest has a legitimate expectation of privacy in his host's home.

495 U.S. at 498.

In contrast to Olson stands another Minnesota case: Minnesota v. Carter, 525 U.S. 83, 98­, 99 (1998) (holding that occupants of an apartment who were using the apartment solely for the illegal commercial purpose of bagging cocaine lacked an expectation of privacy sufficient for Fourth Amendment protection).

The government will always urge the court to employ Carter, while the defendant will argue for an application of Olson. In advancing the Olson argument, it is important to emphasize that the issue is

the privacy interest of the guest, not the actual "overnight" status of the guest, and that Carter is the exception, not the rule. And in United States v. Fields, 131 F.3d 313, 321 (2d Cir. 1997), the Second Circuit set forth a slightly more expansive rule than that in Olson: "any guest, in appropriate circumstances, may have a legitimate expectation of privacy when he is there ‘with the permission of his host, who is willing to share his house and his privacy with his guest,’" even when the apartment was also used for drug packaging. Also, in United States v. Pollard, 215 F.3d 643, 647-­48 (6th Cir. 2000), the Sixth Circuit held that a guest who was present at the premises for a commercial drug sale, but who had also previously stayed at the premises and had personal property there, was protected by the Fourth Amendment.

Conclusion

Always view the government’s argument of lack of standing skeptically. Frame your issue in terms of privacy interests rather than common law standing. And remember the more vociferous the government challenges standing, the more it is signaling to you, and to the court, its reluctance to argue the constitutionality of the search or seizure at issue.

Posted o/b/o Bill Easton

Up Next from Bill: the filing of affidavits or declarations from your client to support suppression motions.

When you file a suppression motion in federal court, certain things will almost always happen. First, the government will threaten to withdraw offers of resolution and foreswear any future motion for acceptance of responsibility points for your client. (Whether this is proper or not is a topic for a future blog.)

Second, the government will challenge your client’s "standing" to make the suppression motion and demand a declaration from your client or, if you have already provided a declaration, the government will claim the declaration is insufficient. This will happen in almost every case.

The government will invariably couch its challenge to your client’s right to protest an illegal search in terms of "standing." The United States Supreme Court, however, has not adopted the use of this common law term to define the limits of Fourth Amendment protection. Rather the Court has stated that the "definition of those rights is more properly placed within the purview of substantive Fourth Amendment law than within that of standing." Rakas v. Illinois, 439 US 128, 140 (1978). You don’t have to use the term "standing" if the Supreme Court doesn’t and it is usually better to frame your issue in terms of your client’s privacy expectations.

"the Fourth Amendment protects people, not places"

This is a classic quote from Katz v. United States, 389 U.S. 347, 351 (1967). In Katz, the government tried to avoid the warrant requirement for taping phone calls by attaching an eavesdropping device to the outside of a public telephone booth. Rejecting the government’s property­-based standing argument, the Supreme Court affirmed the suppression of the recordings and held that a "Fourth amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable." Katz, 389 U.S. at 361 (Harlan, J. concurring) (cited in Kyllo v. United States, 533 U.S. 27, 33 (2001).

After Katz, the government continued its efforts to cordon off Fourth Amendment protection to property rather than people, usually arguing that if a person doesn’t have property rights for a location or a thing, he or she has no reasonable expectation of privacy to protest the search or seizure. Courts have resisted this argument in certain contexts, see United States v. Gargiso, 456 F.2d 584 (2d Cir. 1972) (holding that a person has a right to privacy in a hotel room and the hotel clerk can’t consent to the search), while yielding to it in others, see California v. Greenwood, 486 U.S. 35, 41 (1988) (holding a person has no expectation of privacy in discarded trash waiting for pickup by trash collector).

The Two Minnesota Cases

In Minnesota v. Olson, 495 U.S. 91 (1990)

, the Supreme Court held that an overnight guest enjoys an expectation of privacy that society deems legitimate. The Olson language is inclusive and should be used to resist the government’s efforts to contract the boundaries of Fourth Amendment protection:

We stay in others' homes when we travel to a strange city for business or pleasure, when we visit our parents, children, or more distant relatives out of town, when we are in between jobs or homes, or when we house­sit for a friend. We will all be hosts and we will all be guests many times in our lives. From either perspective, we think that society recognizes that a houseguest has a legitimate expectation of privacy in his host's home.

495 U.S. at 498.

In contrast to Olson stands another Minnesota case: Minnesota v. Carter, 525 U.S. 83, 98­, 99 (1998) (holding that occupants of an apartment who were using the apartment solely for the illegal commercial purpose of bagging cocaine lacked an expectation of privacy sufficient for Fourth Amendment protection).

The government will always urge the court to employ Carter, while the defendant will argue for an application of Olson. In advancing the Olson argument, it is important to emphasize that the issue is

the privacy interest of the guest, not the actual "overnight" status of the guest, and that Carter is the exception, not the rule. And in United States v. Fields, 131 F.3d 313, 321 (2d Cir. 1997), the Second Circuit set forth a slightly more expansive rule than that in Olson: "any guest, in appropriate circumstances, may have a legitimate expectation of privacy when he is there ‘with the permission of his host, who is willing to share his house and his privacy with his guest,’" even when the apartment was also used for drug packaging. Also, in United States v. Pollard, 215 F.3d 643, 647-­48 (6th Cir. 2000), the Sixth Circuit held that a guest who was present at the premises for a commercial drug sale, but who had also previously stayed at the premises and had personal property there, was protected by the Fourth Amendment.

Conclusion

Always view the government’s argument of lack of standing skeptically. Frame your issue in terms of privacy interests rather than common law standing. And remember the more vociferous the government challenges standing, the more it is signaling to you, and to the court, its reluctance to argue the constitutionality of the search or seizure at issue.

Posted o/b/o Bill Easton

Up Next from Bill: the filing of affidavits or declarations from your client to support suppression motions.