Order to Obtain DNA Doesn't Authorize Police To Use Taser to Acquire DNA

Confronted by the police who had an order to obtain his DNA, Ryan Smith reportedly told the police "You are gonna have to Taser me if you want my DNA." Ans so the police proceeded to use a taser to acquire Mr. Smith's DNA. On appeal Mr. Smith challenged both the legality of the order and the use of the taser. In a 4-1 decision (People v Smith,2012 NY Slip Op 01896 (3/16/2012) the Appellate Division, Fourth Department agreed with Mr. Smith both that there was insufficient notice of the motion to seek DNA testing and that the use of the taser was improper.

Normally, this is the part in which quote from and discuss the decision. But I am very happy to report that Scott Greenfield has returned to blogging at Simple Jusice and has already written this excellent post on the case.

So I will just quote this portion of the decision regarding the use of the taser:

It is undisputed that defendant did not threaten, fight with, or physically resist the officers at any time; rather, he simply refused to open his mouth to allow the officers to obtain a buccal swab. . . We cannot agree with the suppression court that, after 10 to 15 minutes of asking a suspect to comply with a court-ordered buccal swab of which the suspect had no prior knowledge, it is reasonable for the police to tase a nonviolent, handcuffed, and secured defendant in order to force the suspect into submission.

While the People seek to characterize the use of a taser as a "minimal" degree of force and emphasized at the suppression hearing that defendant did not lose consciousness and suffered no visible scarring or injuries, we note that "extreme pain can be inflicted with little or no injury" (Hickey, 12 F3d at 757). The officers who witnessed the tasing incident acknowledged that the use of a taser causes pain and that, upon application of the taser, defendant appeared to be in pain and shouted for the officers to stop using it. Our review of a videotape of the tasing incident supports the conclusion that defendant was in pain upon application of the taser to his bare skin.

Congratulations to Mr. Smith's attorney, Mark Funk, for obtaining this reversal.

Order to Obtain DNA Doesn't Authorize Police To Use Taser to Acquire DNA

Confronted by the police who had an order to obtain his DNA, Ryan Smith reportedly told the police "You are gonna have to Taser me if you want my DNA." Ans so the police proceeded to use a taser to acquire Mr. Smith's DNA. On appeal Mr. Smith challenged both the legality of the order and the use of the taser. In a 4-1 decision (People v Smith,2012 NY Slip Op 01896 (3/16/2012) the Appellate Division, Fourth Department agreed with Mr. Smith both that there was insufficient notice of the motion to seek DNA testing and that the use of the taser was improper.

Normally, this is the part in which quote from and discuss the decision. But I am very happy to report that Scott Greenfield has returned to blogging at Simple Jusice and has already written this excellent post on the case.

So I will just quote this portion of the decision regarding the use of the taser:

It is undisputed that defendant did not threaten, fight with, or physically resist the officers at any time; rather, he simply refused to open his mouth to allow the officers to obtain a buccal swab. . . We cannot agree with the suppression court that, after 10 to 15 minutes of asking a suspect to comply with a court-ordered buccal swab of which the suspect had no prior knowledge, it is reasonable for the police to tase a nonviolent, handcuffed, and secured defendant in order to force the suspect into submission.

While the People seek to characterize the use of a taser as a "minimal" degree of force and emphasized at the suppression hearing that defendant did not lose consciousness and suffered no visible scarring or injuries, we note that "extreme pain can be inflicted with little or no injury" (Hickey, 12 F3d at 757). The officers who witnessed the tasing incident acknowledged that the use of a taser causes pain and that, upon application of the taser, defendant appeared to be in pain and shouted for the officers to stop using it. Our review of a videotape of the tasing incident supports the conclusion that defendant was in pain upon application of the taser to his bare skin.

Congratulations to Mr. Smith's attorney, Mark Funk, for obtaining this reversal.

Molineux is Alive and Well and Coming to a Courtroom Near You

In People v Cass (#28 decided 2/16/12) the defendant's claim of extreme emotional disturbance was undercut by the fact that he'd allegedly committed a nearly identical murder 14 months earlier. In both cases he claimed that he was surprised by men making sexual advances to him and he "just lost it". Though in the instant case Cass' belt was used to drag the deceased and in the prior case it was used to cause death. The defense countered the DA's request by saying that the prior allegations were not inconsistent with the claimed EED defense, but rather supported it, and in any event were highly prejudicial even if modestly probative.

The Court of Appeals held: "By asserting the defense of extreme emotional disturbance, defendant necessarily put his state of mind at the time of the Dombrova killing in issue. We have held that where a defendant puts an affirmative fact--such as a claim regarding his/her state of mind--in issue, evidence of other uncharged crimes or prior bad acts may be admitted to rebut such fact" ... "This highly probative evidence is directly relevant to defendant's extreme emotional disturbance defense in that it has a logical and natural tendency to disprove his specific claim that he was acting under an extreme emotional disturbance at the time of the Dombrova homicide (See Santarelli, 49 NY2d at 248). The evidence arguably shows that defendant had a premeditated intent to target gay men for violence, thereby tending to rebut the loss of control he claimed as part of his extreme emotional disturbance defense. Thus, the evidence tends to establish that the subjective element of the defense has not been made out." Thus, even if the Molineux evidence is not wholly inconsistent with the defense, if it has sufficient value as a counter to a proffered defense, it can be admissible. The Court of Appeals also stressed repeatedly the DA's theory, implying perhaps that a prosecution can be tailored to fit particularly nasty Molineux evidence.

The Court also upheld the use of Molineux to prove identity where the complainant was the defendant's wife and the defendant admitted being present at the scene of the crime when it took place (People v Agina Case #12). The complainant alleged that the defendant accused her of cheating on him, and that he proceeded to bind and torture her. He released her and the two then had four reasonably good days together before she alerted authorities. On the theory that since the defendant denied committing the crimes in question, he had placed identity in issue, the trial court allowed the defendant's ex-wife to testify that, 15 months before the allegations at trial, he had accused her of cheating on him, bound her and tortured her. The Appellate Division reversed, saying "identity my ass" (I haven't read the decision). The Court of Appeals reinstated the conviction. "The issue before us is whether defendant's identity was so conclusively established as to prevent the exception from being invoked. We hold that it was not." "While the existence of the complainant's injuries was proved by photographs, nothing in the People's case except the complainant's testimony (apart from the evidence of the uncharged crime) pointed to defendant as the person who injured her. Since the jury might doubt the complainant's word, this evidence was not conclusive. It is true, as the dissent says, that there was no possibility of mistaken identity (dissenting op at 2-3). But the jury could have believed that the complainant's identification was intentionally false, as defense counsel's opening suggested, in language quoted by the dissent: "she is not telling the truth" (dissenting op at 4)."

Judges Ciparek and Jones dissented for the obvious reason that the complainant's ability to identify her husband was not an actual issue at trial.

Molineux is Alive and Well and Coming to a Courtroom Near You

In People v Cass (#28 decided 2/16/12) the defendant's claim of extreme emotional disturbance was undercut by the fact that he'd allegedly committed a nearly identical murder 14 months earlier. In both cases he claimed that he was surprised by men making sexual advances to him and he "just lost it". Though in the instant case Cass' belt was used to drag the deceased and in the prior case it was used to cause death. The defense countered the DA's request by saying that the prior allegations were not inconsistent with the claimed EED defense, but rather supported it, and in any event were highly prejudicial even if modestly probative.

The Court of Appeals held: "By asserting the defense of extreme emotional disturbance, defendant necessarily put his state of mind at the time of the Dombrova killing in issue. We have held that where a defendant puts an affirmative fact--such as a claim regarding his/her state of mind--in issue, evidence of other uncharged crimes or prior bad acts may be admitted to rebut such fact" ... "This highly probative evidence is directly relevant to defendant's extreme emotional disturbance defense in that it has a logical and natural tendency to disprove his specific claim that he was acting under an extreme emotional disturbance at the time of the Dombrova homicide (See Santarelli, 49 NY2d at 248). The evidence arguably shows that defendant had a premeditated intent to target gay men for violence, thereby tending to rebut the loss of control he claimed as part of his extreme emotional disturbance defense. Thus, the evidence tends to establish that the subjective element of the defense has not been made out." Thus, even if the Molineux evidence is not wholly inconsistent with the defense, if it has sufficient value as a counter to a proffered defense, it can be admissible. The Court of Appeals also stressed repeatedly the DA's theory, implying perhaps that a prosecution can be tailored to fit particularly nasty Molineux evidence.

The Court also upheld the use of Molineux to prove identity where the complainant was the defendant's wife and the defendant admitted being present at the scene of the crime when it took place (People v Agina Case #12). The complainant alleged that the defendant accused her of cheating on him, and that he proceeded to bind and torture her. He released her and the two then had four reasonably good days together before she alerted authorities. On the theory that since the defendant denied committing the crimes in question, he had placed identity in issue, the trial court allowed the defendant's ex-wife to testify that, 15 months before the allegations at trial, he had accused her of cheating on him, bound her and tortured her. The Appellate Division reversed, saying "identity my ass" (I haven't read the decision). The Court of Appeals reinstated the conviction. "The issue before us is whether defendant's identity was so conclusively established as to prevent the exception from being invoked. We hold that it was not." "While the existence of the complainant's injuries was proved by photographs, nothing in the People's case except the complainant's testimony (apart from the evidence of the uncharged crime) pointed to defendant as the person who injured her. Since the jury might doubt the complainant's word, this evidence was not conclusive. It is true, as the dissent says, that there was no possibility of mistaken identity (dissenting op at 2-3). But the jury could have believed that the complainant's identification was intentionally false, as defense counsel's opening suggested, in language quoted by the dissent: "she is not telling the truth" (dissenting op at 4)."

Judges Ciparek and Jones dissented for the obvious reason that the complainant's ability to identify her husband was not an actual issue at trial.

In People v Smith(2/16/12]) the Court of Appeals reversed a conviction for driving while impaired upon a holding that the trial court erred in permitting the People to introduce evidence that Mr. Smith refused to take a chemical breath test to determine his blood alcohol content when requested to do so by State Troopers.

At the scene of his motor vehicle stop, the troopers administered Mr. Smith both Miranda warnings and chemical test warnings as contemplated in Vehicle and Traffic Law § 1194(2)(f).

The chemical test warnings informed defendant:

"You are under arrest for driving while intoxicated. I am going to ask you if you will submit to a chemical test to determine the alcohol and/or drug content of your blood. Before I do, I must advise you that a refusal to submit to a chemical test or any portion thereof will result in the immediate suspension and subsequent revocation of your license or operating privileges, whether or not you are found guilty of the charge for which you were arrested. Your refusal to submit to a chemical test or any portion thereof can be introduced into evidence against you at any trial, proceeding or hearing resulting from this arrest. Do you understand what I have told you? Will you submit to a chemical test for the purpose of determining the alcohol and/or drug content of your blood?"

Mr. Smith twice responded that he understood the warnings but wanted to speak to his lawyer before deciding whether to take a chemical test.

He tried but was was unable to reach his lawyer by telephone. A half-hour later, the troopers read the chemical test warnings a third time and sought an answer from defendant concerning whether he would take a chemical test. Defendant responded that he was waiting for his attorney to call him back. The troopers interpreted defendant's response as a refusal to submit to the test and they recorded that refusal on a form pursuant to Vehicle and Traffic Law § 1194(2)(b). Smith was never advised that his time to seek a consultation with an attorney had elapsed. Thus, he maintained that he was unaware that his response to the third request — that he was waiting to hear back from his lawyer — would be interpreted as a refusal to take the test.

After reiterating its holding in People v Shaw (72 NY2d 1032 [1988] that police need not inform suspects of their right to consult counsel prior to deciding whether to submit to chemical tests, the Court held that

All that is required for a refusal to be admissible at trial is a record basis to show that, through words or actions, defendant declined to take a chemical test despite having been clearly warned of the consequences of refusal. In this case, such evidence would have been present if, during the third request, troopers had merely alerted defendant that his time for deliberation had expired and if he did not consent to the chemical test at that juncture his response would be deemed a refusal. Indeed, we already approved the use of a comparable admonition in People v O'Rama (78 NY2d 270, 280-281 [1991]) where, after defendant continued to express his desire to consult with counsel before taking a chemical test despite his inability to promptly reach his lawyer, the police properly advised defendant that his insistence on waiting for his attorney would be interpreted as a refusal.

Since Mr. Smith had not been so informed, it as error to permit testimony about a refusal.

In People v Smith(2/16/12]) the Court of Appeals reversed a conviction for driving while impaired upon a holding that the trial court erred in permitting the People to introduce evidence that Mr. Smith refused to take a chemical breath test to determine his blood alcohol content when requested to do so by State Troopers.

At the scene of his motor vehicle stop, the troopers administered Mr. Smith both Miranda warnings and chemical test warnings as contemplated in Vehicle and Traffic Law § 1194(2)(f).

The chemical test warnings informed defendant:

"You are under arrest for driving while intoxicated. I am going to ask you if you will submit to a chemical test to determine the alcohol and/or drug content of your blood. Before I do, I must advise you that a refusal to submit to a chemical test or any portion thereof will result in the immediate suspension and subsequent revocation of your license or operating privileges, whether or not you are found guilty of the charge for which you were arrested. Your refusal to submit to a chemical test or any portion thereof can be introduced into evidence against you at any trial, proceeding or hearing resulting from this arrest. Do you understand what I have told you? Will you submit to a chemical test for the purpose of determining the alcohol and/or drug content of your blood?"

Mr. Smith twice responded that he understood the warnings but wanted to speak to his lawyer before deciding whether to take a chemical test.

He tried but was was unable to reach his lawyer by telephone. A half-hour later, the troopers read the chemical test warnings a third time and sought an answer from defendant concerning whether he would take a chemical test. Defendant responded that he was waiting for his attorney to call him back. The troopers interpreted defendant's response as a refusal to submit to the test and they recorded that refusal on a form pursuant to Vehicle and Traffic Law § 1194(2)(b). Smith was never advised that his time to seek a consultation with an attorney had elapsed. Thus, he maintained that he was unaware that his response to the third request — that he was waiting to hear back from his lawyer — would be interpreted as a refusal to take the test.

After reiterating its holding in People v Shaw (72 NY2d 1032 [1988] that police need not inform suspects of their right to consult counsel prior to deciding whether to submit to chemical tests, the Court held that

All that is required for a refusal to be admissible at trial is a record basis to show that, through words or actions, defendant declined to take a chemical test despite having been clearly warned of the consequences of refusal. In this case, such evidence would have been present if, during the third request, troopers had merely alerted defendant that his time for deliberation had expired and if he did not consent to the chemical test at that juncture his response would be deemed a refusal. Indeed, we already approved the use of a comparable admonition in People v O'Rama (78 NY2d 270, 280-281 [1991]) where, after defendant continued to express his desire to consult with counsel before taking a chemical test despite his inability to promptly reach his lawyer, the police properly advised defendant that his insistence on waiting for his attorney would be interpreted as a refusal.

Since Mr. Smith had not been so informed, it as error to permit testimony about a refusal.

The Use of a Peer-to-Peer File Sharing Program and Enhancement Under the Federal Sentence Guidelines

by
Mark D. Hosken, Supervisory Assistant Federal Public Defender

The United States Sentencing Guidelines (USSG) include enhanced punishment for those individuals convicted of a child pornography offense involving distribution. The greatest enhancement (an increase of five levels) is applied if the offense involved distribution for receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain. [USSG § 2G2.2(b)(3)(B).]

What is distribution? Any act, including possession with intent to distribute...., related to the transfer of material involving the sexual exploitation of a minor. Accordingly, distribution includes posting material involving the sexual exploitation of a minor on a website for pubic viewing. [USSG § 2G2.2 comment, note 1.]

What is receipt for a thing of value? Any transaction, including bartering or other in-kind transaction, that is conducted for a thing of value, but not for profit. Thing of value means anything of valuable consideration. [USSG § 2G2.2 comment, note 1.]

Frequently, sentencing courts apply the five level enhancement to those individuals utilizing peer-to-peer file sharing programs such as LimeWire, FrostWire, Kazaa, or Shareaza to download contraband images. Those courts reason once an individual installs a file sharing program it is configured to allow others to download the defendant’s collection of child pornography stored in a shared folder. The shared folder is a repository for the illegal images which others access and download. The conclusion being the defendant distributed child pornography with the expectation he would receive a thing of value – additional child pornography – from other peers.

This enhancement is applied in those situations when the defendant admits use of a file sharing program. Rarely is the government required to prove the defendant was proficient or knowledgeable in the settings found in the installation of the peer to peer program. Nor, is the government required to establish transfer of something of value other than the mere existence of the file sharing application. The discovery of the program with a shared folder is usually sufficient for the five level enhancement.
Recently, a panel of the Eleventh Circuit struck down the application of the five level enhancement finding the record did not support the conclusion that the defendant distributed child pornography for receipt, or expectation of receipt of a thing of value.

In United States v. Spriggs, ____ F.3d ____, 2012 WL 48016 (11th Cir., January 10, 2012), the defendant was convicted of receiving child pornography. Spriggs downloaded the images through a file sharing program, Shareaza. This peer to peer program provided for reciprocal sharing. Others could access and download files from Spriggs’ shared folder. The majority of Spriggs’ collection of contraband images was located in this shared folder. The record supported a finding that Spriggs knew Shareaza enabled others to access files on his computer. Similarly, Spriggs admitted he used the program to download and upload files.

The panel determined the expectation of receiving a thing of value must be contextual. The use of a file sharing program enables free access to files. The files are free. There is no sharing for valuable consideration as required under the Guidelines. Without proof that Spriggs and another user specifically agreed to share their files on a return promise to share files, there was no transaction conducted for valuable consideration.

Notwithstanding Spriggs’ plea to receiving child pornography and his use of a peer to peer file sharing program, the majority of the contraband images found in the shared folder, and his use of the program to download and upload files, there was insufficient evidence to support the five level enhancement for receipt, or expectation of receipt, of a thing of value.

The significance of this decision is the rejection of the enhancement for simply using a peer to peer file sharing program. Some sentencing courts previously considered the use of a file sharing program constituted bartering for something of value-more contraband images. Here, the panel in Spriggs specifically rejected that application. Moreover, the additional facts present in Spriggs (admissions of the use of shared folders and the distribution and receipt of contraband images) were not indicia of proof of sharing for valuable consideration. Simply put, the Guidelines’ enhancement requires something more.