Archive for December, 2010

Supreme Court 12/16/10

Posted in Uncategorized on December 16, 2010 by tobywelchlaw

The Supreme Court today did away with the State’s ability to amend an indictment after a conviction.  In Gowdy v. State, Gowdy was indicted for Felony DUI.  He was set for trial on February 4, 2009.  The morning of the trial, he was offered a plea bargain of one year to serve and two years of post-release supervision.  Gowdy rejected the offer and proceeded to trial.  The jury voted to convict.  The following day, the State informed the Court that it had just received information as to Gowdy’s prior convictions in Iowa and that they would seek to amend the indictment to reflect habitual status.  Sentencing was held two months later and Gowdy was sentenced under Section 99-19-83 to life imprisonment.  Gowdy appealed the life sentence.


The majority held that an amendment shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised.  “We find that, in line with Akins, an amendment to the indictment to allege habitual status after conviction is an unfair surprise.”  The dissent states that habitual status is not an offense, and thus has no bearing on the indictment.  I have to agree with that.  It also states that there is no constitutional right to a plea bargain.  Again, correct.  However, there has to be fairness for a justice system to properly work.  It is not fair for a person to exercise their constitutional right to a trial and if they lose, be subject to a penalty that they were not subject to during trial.  All today’s ruling states is that a defendant has to be made completely aware of the entirety of the penalty they are facing.  Rule 8.04 of the Uniform Circuit and County Rules  states before a defendant can plead guilty, the trial court has a duty to ensure that he “understands the nature and consequences of the plea, and the maximum and minimum penalties provided by law.” “The rule should not be different for defendants who choose to exercise their right to trial by jury.”


On a tangential note, the dissent points out that seventy days passed between Gowdy being made aware of the convictions and the proposed amendment and the sentencing hearing and that Gowdy could not have been unfairly surprised.  “Further, the record is clear that the State did not have the information at the time it offered the plea deal to Gowdy.”  Forgetting the fact that the State got the information it did not have the day of trial, the day after trial, the State had arrested and indicted Gowdy approximately 10 months prior to the trial.  Why a duty, a duty laid out in UCCR 9.04 (A) (3) “The prosecution must disclose… Copy of the criminal record of the defendant, if proposed to be used to impeach”, the State had is weighed against the Defendant, and not the State, I don’t know.


Reports of the death of the 4th Amendment have been somewhat exaggerated.

Posted in Uncategorized on December 15, 2010 by tobywelchlaw

The 6th Circuit Court of Appeals held in United States of America v. Warshak on December 14, that a persons emails can not be seized by the government without a search warrant based on probable cause.  I’d like to use the real Mark Twain quote instead of having to paraphrase it, but the Court held that since the government relied upon the Stored Communications Act of 1986, the warrantless seizure was ok under a good faith exception and the emails did not have to be excluded.


The government got Warshak’s ISP to turn over all his emails, past and all future ones, without getting a search warrant.  The government relied upon the Stored Communications’s Act, which when passed in 1986, had not contemplated email and the public’s utter reliance upon it.  The 6th Circuit found email analogous to regular letters and said, “As we have discussed above, the police may not storm the postoffice and intercept a letter, and they are likewise forbidden from using the phone system to make a clandestine recording of a telephone call—unless they get a warrant, that is.”  But since the SCA was there, the government relied upon it in good faith and thus the emails were not supressed.

One would hope that going forward, the government, in whatever manifestation it appears in, would have to get a search warrant to open mail, electronic or otherwise.



Might be time to use that Maryland Law License.

Posted in Uncategorized on December 7, 2010 by tobywelchlaw

Arvin Phillip Johnson was convicted of possession of a controlled substance in Marion County in March of 2009.  He was found to be in possession of .7 grams of cocaine.  On its face, an unremarkable case.  I generally do not read all that closely the affirmed decisions that do not have a dissenting opinion attached, but there was a dissenting vote so I took a look.  Wow.

My former, and at time of the incident, current employer, the Mississippi Bureau of Narcotics did a routine buy/bust in Marion County in 2006.  They wired up the CI to go and purchase marijuana from “Teddy”.  The CI went to the convenience store where Teddy worked, bought the marijuana from Teddy’s supplier and left.  One team of agents followed Teddy’s supplier, who left after the deal, and the other team, three agents per team, met the CI and then went to the convenience store to arrest Teddy.  In the intervening minutes another car, driven by Johnson, pulled up to the store.  When the agents got out they placed both Teddy and Johnson on the ground and handcuffed them.  On the ground and handcuffed them.

Agents then searched the two men and found no weapons, no drugs, and no marked money on either.  The agents then searched Johnson’s car.  Johnson’s attorney, during the hearing on the motion to suppress, questioned Jon Harless of MBN and under cross-examination, Agent Harless testified that Johnson was not under arrest at the time the vehicle was searched and that he was handcuffed on the ground.  In fact, they had no information on Johnson at all.  They searched Johnson’s car and found .7 grams of cocaine in the visor of the vehicle.  The Court of Appeals found that the search was reasonable to ensure officer safety.  The Court correctly cites to Arizona v. Gant, a U.S. Supreme Court case that says:

Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.  When these justifications are absent, a search of anarrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.

The Court found that since Johnson was not handcuffed in the back of a police car, merely handcuffed on the ground, he could still have somehow gotten to a weapon.

The Court goes on to cite to the 5th Circuit in U.S. v. Sanders

The United States Court of Appeals for the Fifth Circuit also has noted this danger, stating:Handcuffs are a temporary restraining device; they limit but do not  eliminate a person’s ability to perform various acts.  They obviously do not impair aperson’s ability  to  use his legs and feet, whether to  walk, run, or kick.Handcuffs do limit a person’s ability to use his hands and arms, but the degree of the effectiveness of handcuffs in this role depends on a variety of factors,including the handcuffed person’s size, strength, bone and joint structure,flexibility, and tolerance of pain.  Albeit difficult, it is by no means impossible for a handcuffed person to obtain and use a weapon concealed on his person or within lunge reach, and in so doing to cause injury to his intended victim,to a bystander, or even to himself. Finally, like any mechanical device,handcuffs can and do fail on occasion.

As was very astutely pointed out to me, one mechanical device, i.e handcuffs is not enough to suppress a search, but two, i.e. handcuffs and a car door, are.