Monthly Archives: June 2013

U.S. Senate Passes Immigration Reform Bill

By Peek & Toland on June 27, 2013

The U.S. Senate passed the immigration reform bill known officially as the Border Security, Economic Opportunity and Immigration Modernization Act of 2013. The immigration reform bill is not law yet, it will still need to pass the U.S. House and be signed by President Obama before it will become law. However, the hurdles the immigration reform bill already had to conquer are momentous. The Senate immigration reform bill is the first bill in thirty years to make it this far.

To read more about the Immigration Reform bill. Please visit our Immigration Reform page, or check out our website Reforma2013.com.

Posted in Immigration

SCOTUS: One must expressly invoke his or her right to remain silent to invoke 5th Amendment protections.

By Peek & Toland on June 17, 2013

Salinas v. Texas:

The U.S. Supreme Court held that a suspect who voluntarily provided answers to police questions could not assert that his silence to certain questions resulted in the invocation of his Fifth Amendment rights. The suspect was not in custody and did not receive his Miranda warnings, however voluntarily answered police questions about a murder, but fell silent when the police asked whether ballistic testing would match his shotgun to shell casings found at the scene of the crime. At the petitioner’s murder trial, the prosecutor introduced evidence of the petitioner’s failure to answer questions about the ballistic testing as evidence of the petitioner’s guilt despite his objections. Petitioner was convicted and brought his claim to the U.S. Supreme Court.

The Court found that petitioner failed to invoke the privilege in response to the officer’s question. The Court reasoned that there were only two exceptions to when a defendant does not have to expressly invoke the privileged neither of which applied in this case. The first, at the defendant’s own trial, and the second, where governmental coercion makes his forfeiture of the privilege involuntary. The petitioner in the instant case was not facing his own trial and voluntarily accompanied police to the station where he was free to leave at any time. Petitioner argued there should be a third exception to express invocation where the witness chooses to stand mute rather than give an answer that officials suspect would be incriminating. The Court rejected this argument stating that there were a multitude of reasons a defendant may decline to answer the officers’ questions, and that the Fifth Amendment guarantees that no one may be “compelled in any criminal case to be a witness against himself”, not an unqualified “right to remain silent”. The Court stated that it has long required defendants to assert the privilege in order to subsequently benefit from it.

Read the Full Opinion Here: https://www.supremecourt.gov/opinions/12pdf/12-246_1p24.pdf.

Posted in Criminal Defense

SCOTUS: Federal law preempts Arizona from requiring documented proof of citizenship to vote.

By Peek & Toland on June 17, 2013

Arizona v. Inter Tribal Counsel of Arizona:

The U.S. Supreme Court decided in a 7-2 decision to strike down an Arizona state law that required prospective voters to provide documented proof of citizenship before voting. The Supreme Court found that a federal law requiring states to use a federal form preempted Arizona’s state law requiring documented proof of citizenship. One of the questions included on the federal form requires citizens to answer whether or not he or she is a citizen, requires a signature for the purpose of swearing under penalty of perjury to the accuracy of the answer to the question. In contrast, the state law requires documented proof of citizenship such as a photocopy of the applicant’s passport or birth certificate, a driver’s license number demonstrating U.S. citizenship, evidence of naturalization, tribal identification, or other documents or methods of proof. The Court found that such requirements were preempted by federal law, which only required a prospective voter to include the federal form when mailing in his or her ballot.

Read Full Opinion Here.

Posted in Citizenship

SCOTUS: Police do not need a warrant for DNA sampling of an arrested person.

By Peek & Toland on June 4, 2013

The U.S. Supreme Court held today in Maryland v. King, that police may perform a search in the form of a DNA sample for the purpose of identification from a charged suspect of a serious crime without a warrant.

In the instant case, the defendant was arrested for aggravated assault and taken into custody. Police performed a cheek swab pursuant to the Maryland DNA Collection Act to collect the defendant’s DNA. The defendant’s DNA was uploaded to the Maryland DNA database and was matched to a DNA sample taken from an unsolved 2003 rape case. The defendant was then indicted by a grand jury for rape. The defendant moved to suppress the DNA match on the grounds that Maryland’s DNA collection law violated the Fourth Amendment. The Circuit Court Judge upheld the statue as constitutional. King plead not guilty to the rape charges, but was eventually convicted and sentenced to life in prison without the possibility of parole.

The federal and state courts reached differing opinions as to whether the Fourth Amendment prohibited the collection and analysis of a DNA sample from the persons arrested, but not yet convicted, on felony charges. The U.S. Supreme Court granted certiorari.

First, the Court established that there was a legitimate government purpose for the need for identification through DNA sampling citing five critical reasons:

(1)     to determine what is already known about the arrestee from the police databases,

(2)     to determine the type of person the arrested person is and his or her past convictions,

(3)     to ensure the arrestee is available at trial,

(4)     to ensure the potentially dangerous arrestee is not released on bail and becomes a danger to the public, and

(5)     to ensure wrongfully convicted person is not in prison for a crime the arrestee committed.

Then the Court identified that DNA sampling to identify an arrested person via a cheek swap is a minimal intrusion similar to fingerprinting a suspect, taking physical measurements of a suspect to identify his or her body shape and type, and employing photos for identification. Thus, the Court determined that the government had a substantial interest in performing DNA swabs for the purpose of identifying the arrested person and that the intrusion to the arrested person was minimal.

The Court also noted that a significant government interest does not alone justify a search and that the government must outweigh the degree to which the search invades an individual’s legitimate expectation of privacy. The Court determined that the search and seizure of the defendant’s DNA sample was reasonable because defendant was arrested and in police custody for a crime for which probable cause was present and thus did not have a great expectation of privacy.

Finally, the Court determined that the Maryland DNA Collection Act did not intrude on the defendant’s privacy in a way that would make his DNA identification unconstitutional. The Court reasoned that the DNA sampling tests determined coding parts of the DNA that did not reveal the genetic traits of the arrestee; the Act provided statutory protections that guarded against further invasions of privacy, and the included provisions prohibiting the use of DNA sampling for purposes other than identification.

Thus, the Court held that an arrestee’s DNA identification is a reasonable search that can be considered part of a routine booking if the arrest was supported by probable cause and was for a serious offense.

Posted in Criminal Defense

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