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Criminal Defense Attorneys And The People They Really Protect

Note: this is the first part in a three-part series on the criminal justice system.  See part two: “Prosecutors And The “Technicalities” That Set Criminals Free”; part three: “Prosecution v. Defense And The Constitution That Binds Them.”


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At some point in your life, whether at a cocktail party, holiday party, or as part of everyday casual conversation, you have probably been involved in a discussion on criminal defense attorneys.  And at that point, you were probably either defending or criticizing defense attorneys.  Such criticism usually includes the fact that some criminal defense attorneys are just greedy individuals who will defend anyone to make a quick buck, some do not care whether a criminal is set free to harm others once more, and some may flat-out lack a conscious and will defend even repeat child molesters.  I, like many others, agree that not all criminal defense attorneys are perfect.  Unfortunately, however, nearly every profession is afflicted by individuals consumed with excessive greed, with a disregard for humanity’s well being, and with a lack of conscious that results in a disconnect between society’s mores and their own.

Nonetheless, it is important to remember that criminal defense attorneys are not just defending “criminals,” they are more importantly defending your constitutional rights.  To the average person the import of such a notion may not be as striking as it is to a student of the law, and for that reason, the forthcoming examples highlight some rights that have been defended for the good of society.  Problems here abound between the role of the government and its ever-increasing emphasis on detecting and eradicating crime versus the role of individuals and their rights to be secure in their “persons, houses, papers, and effects.”  More specifically, at some points, the government, whether advertently or inadvertently, intrudes upon the rights guaranteed to “the people” under the Fourth Amendment, which guards us from “unreasonable searches and seizures” absent “probable cause.”

On many different occasions, I have been asked why the criminal justice system lets criminals go free just because police officers located the body or murder weapon in a place where the officers were not supposed to be.  The obvious retort here is that these persons are not familiar with the protection from the government that our framers had in mind when they created the Constitution and the Bill of Rights.  The Fourth Amendment protects us from officers simply acting on a hunch, or even less, from entering our homes and rummaging through our belongings regardless of whether there is any actual suspicion that criminal activity has taken place.

The right belongs to “the people,” which includes both the guilty and the innocent.  Thus, when an individual says something along the lines of, “who cares if they broke into his house, he should not have been selling drugs in the first place,” it is important to remember that it could have been your house that they entered.  Keep in mind that most of us, myself included, do not care as much about a criminal’s rights being violated.  The critical point here is that if law enforcement knows no bounds then the completely innocent person’s rights will be infringed.  Being that the mistakes officers make when they enter an innocent person’s home are not as often litigated, we are left with criminal defense attorneys defending our rights through their “criminal” clients.

For example, even though an officer found drugs in a bus passenger’s bag in Bond v. U.S. (2000), the Supreme Court (“Court”) held that officers were not permitted to board a bus to check for drugs and manipulate a passenger’s bags in an exploratory manner absent any kind of suspicion of criminal activity.  This may seem trivial to many individuals, but what if you have something of an intimate or sensitive nature in your bag that you do not want anyone knowing about (e.g. prescription pills for an ailment you would prefer keeping secret).

Similarly, when officers tried using thermal-imaging devices to obtain intimate details of the inside of a suspected marijuana grower’s home absent a search warrant, the Court held that the officers violated the suspect’s Fourth Amendment rights (see Kyllo v. U.S. (2001)).  Despite the fact that the suspect was indeed growing marijuana, the Court upheld its long-standing protection of the “home” and elaborated upon the officers’ ability to gain intimate knowledge of the occurrences within the home, such as when the “lady of the house takes her daily sauna or bath.”  Essentially, such a ruling prohibits officers from sitting outside of your home and peering through the walls simply because they are acting on a hunch, an unreliable anonymous tip, or even less than that.

Also of great importance is the Court’s holding in County of Riverside v. McLaughlin (1991), where the Court ruled that an arrested individual must be provided with a probable cause assessment within 48 hours after being arrested.  In other words, this rule, for the most part, assures that officers will not be able to simply arrest you without sufficient suspicion and hold you indefinitely even though you did not commit any criminal act (note: the delay can extend beyond 48 hours, but at that point the burden shifts to the government to prove a bona fide emergency or extraordinary circumstances led to the delay).

In Steagald v. U.S. (1981), the Court disallowed evidence seized in the defendant’s home when officers used an arrest warrant for a fugitive to enter the defendant’s home in search of the fugitive but instead found drugs that were used against the defendant.  Once again, some may argue that this is what he deserves, but the bigger picture here involves asking yourself if you are comfortable with officers being able to enter your home and search through your belongings simply because they may have an arrest warrant for a friend or relative of yours.  Relying on such privacy concerns, the Court made clear that in order for police to conduct such procedures they must obtain both an arrest warrant for the suspect and a search warrant for the third-party’s residence.

The Court dealt with the issue of general crime control roadblocks in City of Indianapolis v. Edmond (2000). Officers in Indianapolis were stopping vehicles without any suspicion to look for signs of impairment, to peer inside the vehicle for any contraband, and to let drug-sniffing dogs walk around the vehicles in an attempt to detect contraband.  Although certain roadblocks have been upheld in the past and continue to be upheld (e.g. border security in U.S. v. Martinez-Fuerte (1976); DUI detection in Mich. Dept. of State Police v. Sitz (1990); and to obtain info to aid police in finding the perpetrator of a specifically known crime in Illinois v. Lidster (2004)), the primary purpose of general crime control in Edmond was deemed unconstitutional.  Essentially, this ruling prohibits police from stopping every car on the road for suspicionless invasive “traffic” stops of varied durations.

In a landmark case involving criminal procedure, the Court ruled that the exclusionary rule (the rule that excludes illegally seized evidence) under the Fourth Amendment applies to the states as well as the federal government (see Mapp v. Ohio (1961)).  In this case, officers mistakenly believed the defendant was harboring a fugitive in her home based on a tip they received.  The officers went to her home and demanded entrance.  Upon her attorney’s advice, she refused to let them in without a warrant.  Subsequently, more officers arrived, forced their way into the home, and then waived a piece of paper claiming it to be a search warrant (this paper was never produced at trial).  Ultimately, the defendant was restrained and officers found a trunk containing “lewd and lascivious” materials, but no fugitive was found.  The material was then offered against defendant.  The Court held that the exclusionary rule applies to state action and thereby prohibits state police officers from illegally seizing evidence and then using it in court against that individual.  Justice Clark noted that “[n]othing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.”  Since this case, however, the exclusionary rule has become riddled with exceptions (e.g. officers can use illegally seized evidence to impeach on cross-examination in U.S. v. Havens (1980), officers reasonably relied upon a mistake in the warrant in good faith in U.S. v. Leon (1984)).  Whether you agree with the exceptions or not is a matter of debate, but the general rule that officers should obey the laws governing our nation should be welcomed by most, if not all.

More recently, the lower courts have been battling with whether officers have the right to place a GPS tracking device on an individual’s vehicle absent a warrant and sometimes even absent reasonable suspicion.  The D.C. Circuit for Washington D.C. recently held in U.S. v. Maynard (2010), that this practice of continuous tracking over an extended period of time violated the defendant’s privacy rights and the Fourth Amendment since no warrant was obtained.  On the other hand, both the Seventh Circuit and Ninth Circuit have upheld such law enforcement techniques as not violative of an individual’s Fourth Amendment rights (see U.S. v. Garcia (2007) and U.S. v. Juan Pineda-Moreno (2010) respectively).  Yet another recent legal issue the Supreme Court may find itself resolving in the near future is the scope and constitutionality of the new search procedures being implemented in airports throughout the country.  As of yet, the Court has not decided a case regarding the more extensive searches that have been in use since 9/11.

At this point, it is not clear where either the majority of lower courts or the Supreme Court will fall regarding these two relatively new issues.  It is also not clear what major legal issues will arise subsequent to that.  One thing that is clear, however, is that if the opportunity arises a criminal defense attorney will defend the rights of both his/her client and “the people.”

– Daniel E. Bonilla

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