The Unexpected Consequences of Minor Offenses

I often get phone calls from people who have been arrested or ticketed for relatively minor crimes like underage possession of alcohol, public urination, open container, and false ID.  Many of them are quick to tell me they probably won’t hire a criminal defense attorney, but they want to pick my brain anyway.   I’m not one to waste my time giving out free advice over the phone to someone who probably doesn’t have any intention of actually retaining me, but there is something I always point out to these people before I give them the come-in-for-a-consultation-or-get-off-the-phone-and-stop-wasting-my-time ultimatum: there are going to be unexpected consequences of your guilty plea.

What most people don’t understand about these magistrate-level offenses is that they have collateral consequences outside the fines and/or jail time contemplated by the statute defining the crime.  For example, the statutory penalty for underage possession of alcohol, S.C. Code Ann. § 63-19-2440(A), is a $100-$200 fine, or up to 30 days in jail, or both.  Not so bad, right (you're probably not going to get jail time, and if you do, the judge will probably make it a suspended sentence)?  However, the following subsection (B) notes that anyone convicted under that statute must also attend a DAODAS-approved alcohol and drug class, the cost of which shall not exceed $150.  Maybe a little bit of a hassle, but not too terrible.  But if you dig deeper and look at S.C. Code Ann. § 56-1-746, you’ll find that a person convicted of underage possession of alcohol will also have his driver’s license suspended for 120 days for a first offense, and for 1 year for a second or subsequent offense.  Those suspensions aren’t negotiable – they’re administrative procedures through the DMV, and the judge has no say in the matter.

When I explain these consequences to the potential client, I can usually hear the surprise through the phone.  Most have no clue they stand to lose their driver’s license for 4 months, or would be required to take and pay for a alcohol and drug class.  And with good reason they shouldn’t.  The question I’ve always had is why does the State suspend the driver’s licenses of people who are convicted of offenses which have nothing to do with driving?  I agree that it makes logical sense for the State to suspend the license of someone convicted of DUI in South Carolina.  But crimes like underage possession of alcohol, false ID, and controlled substance possession have no logical connection or nexus to driving.

Interestingly, because the license suspension provisions are considered administrative rather than criminal, there are few meaningful challenges that South Carolina criminal defense attorneys can make against them.  That’s why I counsel potential clients to look beyond the “direct” consequences and penalties of their magistrate-level offenses and make sure to fully understand the “indirect” or collateral consequences they’ll face upon conviction.  Often, the potential loss of a driver’s license is enough for a defendant to decide to hire an attorney to explore not only the merits of the charge, but also alternative programs such as PTI, AEP, or deferred prosecution.

Supreme Court: Silence Is Not Sufficient to Invoke Miranda

If you want to invoke your right to remain silent, you better first say so.

I posted a comment recently about Berghuis v. Thompkins, which was then pending argument in the Supreme Court.  Today the Court released its opinion in the case.

[I won't get into the facts of the case here.  Check the above link to my previous post which outlines the factual and procedural issues.]

In a predictable 5-4 split, the Court found that mere silence is not enough to invoke your right to . . . remain silent.  Justice Kennedy wrote the majority opinion, finding "there is no principled reason to adopt different standards for determining when an accused has invoked the Miranda right to remain silent and the Miranda right to counsel . . . ."  Essentially, the Court adopts the Davis standard for right-to-remain-silent cases, which means that a suspect must invoke the right "unambiguously."  Well, what about the fact that we're talking about the right to remain silent?  While it is certainly understandable that the Court likes bright-line tests when dealing with Miranda and the Fourth Amendment, it seems quite odd to suggest that it is ambiguous for a suspect to invoke the right to remain silent by doing exactly what the right allows -- that is, remain silent.

Justice Sotomayor dissented, joined by Justices Ginsburg, Breyer, and Stevens.  Interestingly, the Justice Sotomayor wrote that she would not reach the issue of whether Thompkins had indeed invoked his right to remain silent.  Instead, she wrote, she would have disposed of the case based on a finding that the State could not demonstrate that Thompkins had waived his right initially.  [This case actually involves 2 separate Miranda issues -- invocation and waiver.  I will write about the waiver issue separately.]  But, she continued, she could not agree "with the Court's much broader ruling that a suspect must clearly invoke his right to remain silent by speaking."  To me, this is a very succinct and accurate way of posing the issue of Miranda invocation in this case.

It looks like the Court has decided that, to turn a baseball phrase, the tie goes to the pitcher.  The default presumption is now that a suspect has not invoked his right to remain silent if he decides to do just that.  Instead, he must actually say something and clearly invoke the right.

This new rule will make South Carolina criminal defense attorneys (and those nationwide) take a more careful look at their clients' statements to police and determine whether a suppression hearing is appropriate, as well as gauge the likelihood of success on the suppression motion.  I guess now it's not good practice to tell your clients to just keep their mouth shut if they're arrested -- they need to say something first.

4th Circuit: U.S. Sentencing Guidelines Implicate Ex Post Facto Clause

Today the Fourth Circuit released an interesting opinion touching on the relationship between the U.S. Sentencing Guidelines and the Ex Post Facto Clause of the Constitution.

In United States v. Lewis, the defendant was convicted in the Eastern District of Virginia of unlawful possession of a firearm by a convicted felon.  After Lewis's conviction, but before his sentencing hearing, the Sentencing Guidelines were changed, resulting in sentencing range for Lewis that was double what the range would have been had the Guidelines not been changed.  The district court found that applying the amended Guidelines range to Lewis would violate the Ex Post Facto Clause, and Lewis was then sentenced under the 2005 (pre-amended) Guidelines.  The United States appealed the sentencing ruling, and Lewis appealed the district court's denial of his motion to suppress evidence of the firearm for which he was convicted of unlawful possession.  For purposes of this post, only the Sentencing Guidelines issue is relevant.

The Fourth Circuit, by a 2-1 decision, agreed with the district court, concluding that applying the more harsh sentencing range suggested by the amended 2008 Guidelines would violate the Ex Post Facto Clause, and that Lewis was properly sentenced under the 2005 Guidelines.

The majority wrote that the court "need only determine whether, practically speaking, application of the 2008 edition of the Guidelines would have created a significant risk of increased punishment for Lewis."  The Fourth Circuit, using as 'as applied' analysis, found that an almost two-fold difference in the likely sentences suggested by the opposing versions of the Guidelines would certainly create a "significant risk of increased punishment."  The majority additionally found, in refuting the dissent's analysis, that the sentencing judge's use of the Guidelines as merely a consideration before imposing its sentence does not comport with Fourth Circuit precedent.  Rather, the majority wrote, "the [sentencing] court must correctly calculate the advisory Guidelines range, and it must provide an adequate explanation of how it arrived at that calculation." (emphasis added).

The dissent, by Judge Goodwin (sitting by designation), relied primarily on the plain text of the Ex Post Facto Clause and the effect of United States v. Booker.  [As quick background, in Booker, the Supreme Court found that the Sentencing Guidelines do not have strict legal force and are merely advisory, rather than mandatory.]  Because the Ex Post Facto Clause applies only to retroactive "laws," Judge Goodwin opined, it cannot logically apply to a merely advisory Guidelines range.  "In so doing [finding the Ex Post Facto Clause applies], the majority ignores the reality that the Guidelines lack legal force."

Although I practice a significant amount of criminal defense law, I think I must agree with Judge Goodwin's dissent here.  If we are going to accept the Supreme Court's decision (not like we have a choice) that Booker made the Guidelines fully advisory and with no true legal force, then it must follow that we cannot treat the Guidelines as mandatory in any respect.  Everyone knew that Booker was a very significant decision when it was rendered, but I think now we're starting to see some of its collateral effects.  There is apparently a split among the federal appellate courts on this Ex Post Facto Clause issue (the Lewis decision explored opposing views from two circuits -- the Seventh and the D.C. Circuits), and this may be ripe for Supreme Court review sometime soon.

4th Circuit: No Expectation of Privacy in Your Internet Subscriber Information

In a child pornography case, the Fourth Circuit recently considered a novel issue (in the Fourth Circuit, at least) in a challenge to whether the Fourth Amendment protects an expectation of privacy in Internet subscriber information.

In United States v. Bynum, the defendant was convicted by a jury of interstate transport and possession of child pornography, federal offenses.  Judge Reidinger, of the Western District of North Carolina, sentenced Bynum to 16 years in prison – a mid-Guidelines sentence for these particular offenses and Bynum’s criminal history (category I).  Bynum appealed to the Fourth Circuit, arguing the district court erred on several issues, however, this blog comment concerns only one of the issues reviewed by the appellate court.

Bynum claimed on appeal that the FBI violated his Fourth Amendment rights by using administrative subpoenas to acquire his Internet subscriber information – i.e., his name, telephone number, email address, and physical address.  To get this information, the FBI went through several links in a chain.  First, the FBI identified the IP address belonging to a frequent user (“markie_zkidluv6”) of a Yahoo! chat room who had uploaded various pictures of child pornography.  After identifying the IP address for “markie_zkidluv6,” the FBI tracked down the Internet provider associated with that IP address and subpoenaed the user’s Internet subscriber information.  Thus, the FBI determined that “markie_zkidluv6” was actually Bynum.

On appeal, Bynum argued that the district court erred, inter alia, by denying his motion to suppress the evidence against him as being the fruit of unlawful administrative subpoenas.  The Fourth Circuit disagreed with Bynum, issuing its opinion on May 5 and finding that Bynum had no subjective reasonable expectation of privacy in the subscriber information he supplied to his Internet provider.  Judge Motz wrote that “Bynum voluntarily conveyed all this information to his Internet and phone companies.  In so doing, Bynum assumed the risk that those companies would reveal that information to police.” (quoting Smith v. Maryland).  Further, Bynum voluntarily included his age, sex, location, and a picture of himself on his Yahoo! chat profile.  Because the FBI’s subpoenas did not invade any legitimate expectation of privacy, the Fourth Circuit found that the FBI did not violate Bynum’s rights under the Fourth Amendment, and the district court correctly denied his motion to suppress.

All in all, this decision is probably the right one, even from a South Carolina criminal defense attorney’s perspective.  We all subject ourselves to a slight loss of privacy when we put ourselves “on the grid” and voluntarily provide personal information to Internet and other service providers in order to become customers.  For someone to give his real name and contact information, access and upload child pornography, and then claim that he had an expectation that his information would be kept private from law enforcement… that really doesn’t seem reasonable.

Warrantless Searches Coming to S.C.: House Overrides Governor's Veto

I've opined before about the then-pending bill in the General Assembly which would give police virtually unfettered ability to search people who have been granted probation or parole.  With individual civil liberties in mind, Governor Sanford vetoed the bill when it landed on his desk.  But on Wednesday, April 28, the governor's veto was overridden by the General Assembly after 2 previous failed attempts.  The House voted 74-37, and the Senate voted 36-7, to force the bill into law, effective immediately.

The new law applies to conditionally released juveniles and youthful offenders, furloughed inmates, parolees, and people participating in community supervision programs.  It subjects them to search or seizure, without a search warrant, without cause, of their person, any vehicle they own or are driving, and any of their possessions.  Let that sink in.

Even though the law doesn't affect those who have been convicted of a Class C misdemeanor or unclassified misdemeanor carrying a possible sentence of 30 days or less prison time, it's still troubling.

House Speaker Bobby Harrell released a pandering and largely self-laudatory press release to announce the law's passage.  Speaker Harrell crowed, "These searches are completely warranted because convicted offenders are serving out their remaining sentences in the public in lieu of jail."  I'm sure the irony in calling these warrantless searches "warranted" isn't lost on the Speaker.  But to follow his logic, because the parolees are in public, they are not afforded the typical Fourth Amendment protections?  Further, in order to "reduce recidivism," we're going to go ahead and presume each and every parolee is going to break the law.  So why grant them parole in the first place?

So what does this mean for South Carolina criminal defense attorneys? [. . .]

Physical Observations Not Protected by "Probation Agent/Client Relationship"

We often hear about violations of attorney/client privilege, doctor/patient privilege, and priest/penitent privilege.  It's rare, then, that we see a court opinion centering on a statutory privilege between a probation agent and the criminal on probation.  In Hutto v. State, filed last Monday, the South Carolina Supreme Court considered just that.

In the process of burglarizing a 91-year-old woman's home and raping her, Hutto received several cuts on his arms and hands from broken glass.  A month later during a routine visit, Hutto's probation agent noticed the cuts.  The probation agent then relayed the information about the cuts to an investigator, which eventually resulted in Hutto being identified in a lineup.  At trial, the probation agent testified about the cuts on Hutto's arms and hands, and Hutto was convicted of burglary and criminal sexual conduct.

Hutto later applied for post-conviction relief, arguing that his trial counsel was ineffective.  Hutto cited S.C. Code Section 24-21-290, which states: "All information and data obtained in the discharge of his official duty by a probation agent is privileged information, is not receivable as evidence in a court, and may not be disclosed directly or indirectly to anyone other than the judge or others entitled under this chapter to receive reports unless ordered by the court or the director."  Hutto's PCR argument was that, based on the statute, his trial attorney should have moved to suppress the agent's statement, as it was gained from privileged information disclosed by Hutto's probation agent.  The PCR application was denied, and Hutto appealed.  The Court of Appeals affirmed, and Hutto appealed to the Supreme Court.

The Supreme Court again affirmed the PCR court, holding that the probation agent's testimony should not have been suppressed, and thus there was no ineffective assistance of counsel.  Writing for the Court, Chief Justice Toal in a one-paragraph explanation reasoned that "the statute's purpose is to foster open lines of communication between the probation agent and client," and that the statute was not intended to encompass physical observations such as the probation agent noticing Hutto's cuts.  The Chief Justice continued that "anyone could have [noticed the cuts] when encountering [Hutto]."

To me, however, this fails to explain the Court's decision to avoid the plain, straightforward, and unambiguous language of the statute.  The statute bars the disclosure of "all information and data" unless it is specifically authorized or ordered otherwise.  The Court's reasoning is that interpreting the statute as literally written would prevent a probation agent from ever disclosing evidence of crimes.  The statute itself clearly rebuts this reasoning, since disclosure is allowed as long as it is ordered or authorized.  Certainly if there is clear evidence that a criminal on probation has committed another crime, the probation agent would petition a judge or court to allow disclosure of the fact.

 Justice Pleicones dissented, pointing out the plain language of the statute as well as the statute's inclusion of a procedure to disclose the information, which was not followed in Hutto's case.

The ruling may strike a blow to criminal defense attorneys in South Carolina who zealously represent their clients by challenging the procedures the State uses to introduce evidence against defendants at trial.  Police and prosecution agents should not be able to avoid statutory requirements when compliance will merely make things inconvenient for them.

Court of Appeals Clarifies Meaning of "Presenting" a Firearm

On April 5, the S.C. Court of Appeals released an opinion interpreting the meaning of "presenting" a firearm.  In In re Spencer R., the juvenile defendant was convicted of presenting a loaded assault rifle at a woman, the woman's daughter, and the daughter's friend -- a felony criminal offense carrying a maximum penalty of five years in prison.  The facts suggest that the defendant "stared down" the alleged victims while holding a loaded assault rifle in the 10 o'clock and 4 o'clock position (essentially, holding the gun at rest).  Although the defendant never actually pointed the weapon at any of the victims, the trial court found that the term "presenting" encompassed holding a firearm with the muzzle pointing up.

The Court of Appeals, however, disagreed with the trial court's definition.  In a per curiam opinion, the court adopted a definition of to present as "to offer to view in a threatening manner, or to show in a threatening manner."  Based on this new definition, the court still found there was sufficient evidence to convict the defendant of the presenting a firearm, based largely on circumstantial evidence.  Although the defendant was holding the assault rifle at ease, he "stared down" one of the victims as she passed by the defendant in a car.  Additionally, the defendant made statements earlier in the day about wanting to shoot and kill the victim.  The court's opinion clarifies a somewhat ambiguous statutory term, which may make it easier for criminal defense attorneys in South Carolina to better analyze pointing and presenting cases.