U.S. Supreme Court

Hotels Right To Privacy — Under Fire!

New Orleans Criminal Defense AttorneyThe US Supreme Court will examine a question of privacy as it concerns hotel and motel guest records during this session. The high court agreed to review a federal appeals court ruling that struck down a Los Angeles ordinance requiring that hotel guest records “be made available to any officer of the Los Angeles Police Department for inspection.”

 

A divided Ninth U.S. Circuit Court of Appeals ruled this past December that the ordinance was unconstitutional under the Fourth Amendment, which guards against unreasonable searches and seizures. In my opinion, rightly so! The court concluded that hotels have an interest in keeping guest records private, even if the guests themselves have no such privacy rights because they willingly give their information to the hotel.  Of course, the reason travelers give that information to the hotel is because they have been on the road all day and are not going to let a phone number or address get in the way of a hot shower and a good night’s sleep. After all when using a credit card to pay for our stay, like most of us do, we as customers expect this information to remain private. We don’t expect it to be readily shared. At least without a good reason and proper legal procedure, like a judge ordered Search Warrant.

 

The ordnance at issue was approved by the city in 2006. It requires hotels to collect and maintain guest information such as name and address, the number of people in the guest’s party, vehicle information, arrival and checkout dates, room number, and method of payment. Hotel operators who fail to comply with it face as many as 6 months behind bars and a $1,000 fine.

 

“A lot of the hotel owners in the L.A. area are being subject to warrantless searches under this ordinance,” explained the lawyer for L.A. motel owners, Naranjibhai and Ramilaben Patel. According to court documents the Patels had been cited by police for failing to keep the required records at one of their motels, the Rio Palace Motor Inn.

 

As the law in the state of Louisiana stands now, it is a violation of your right of privacy if the hotel discloses to another (including Police) which room you are staying in, and all other personal information related to your registering. However, a hotel may disclose whether or not you are a guest at the hotel unless you expressly instruct them not to do so.

 

When it comes to your actual room rental, I feel the same privacy protection should extend.

 

Generally, if you are using your hotel room in an ordinary way, then you have a limited right of privacy in the room. However, if the hotel believes that you are engaging in illegal acts, then hotel management has the right to enter and search your room without your permission. Under no circumstances can the hotel authorize the police to conduct a search of your room without your consent or without a PROPER SEARCH WARRANT.

 

Of course, I will be watching this case and will report the Supreme’s ruling.

 

Our freedom and liberty make us great.

Hey!  Officer Dan, you wanna look into my PERSONAL information, my room, car or wallet….get a court ordered SEARCH WARRANT!

 

Elizabeth Bagert Carpenter is a New Orleans based Drug Crimes and Firearms  Defense Attorney.

 

 

May a felon sell rather than give his guns to the government?

 

May a felon sell rather than give up his guns?

 

By: Elizabeth B. Carpenter — Firearm Attorney New Orleans

 

The Unites State Supreme Court has agreed to examine this issue during the present session in the case Henderson vs. United States.

 

 

New Orleans Firearms Attorney

This case centers on Tony Henderson, a former U.S. Border Patrol agent who was charged with selling marijuana in 2006, and later convicted of a felony.

 

Federal law prohibits felons from possessing firearms, and Henderson turned 15 personal weapons over to the FBI while his case was pending.

 

Two years later, he submitted a bill of sale to the FBI, indicating that he had sold the guns to another man and asked the FBI to transfer them accordingly. The government refused, reasoning that doing so would amount to granting “constructive possession” of the guns to Henderson.

 

 

The questions before the court are:

 

Whether a felony conviction, which makes it unlawful for the defendant to possess a firearm, prevents a court under Rule 41(g) of the Federal Rules of Criminal Procedure* or under general equity principles from ordering that the government (1) transfer non-contraband firearms to an unrelated third party to whom the defendant has sold all his property interests; or (2) sell the firearms for the benefit of the defendant.

 

Henderson’s case was governed by precedent in the 11th U.S. Circuit Court of Appeals that says allowing a felon to transfer guns is tantamount to giving him constructive possession of the weapons in violation of the law.  U.S. Courts of Appeals for the 3rd, 6th and 8th Circuits are in accord.

 

“Requiring a court to return firearms to a convicted felon would not only be in violation of a federal law, but would be contrary to the public policy behind the law,” that court argued.

But Henderson says the weapons had nothing to do with his crime.

 

Three other appeals courts reject that position, reasoning that the guns can be transferred because the felon has an interest in the firearms apart from a possessory interest.

By denying his sale of the guns, the government is trampling on his property rights, his lawyers argued in a petition seeking Supreme Court review of the case.

“It allows the government — based on a statutory prohibition on mere possession — to bypass formal forfeiture procedures and effectively strip gun owners of their entire ownership interest in significant, lawful household assets following a conviction for an unrelated offense,” petitioners say.

 

In this case, I agree with Henderson.  If his criminal offense involved a weapon, then I would feel differently – I see no reason for the government to deprive him of his right to transfer his ownership in this property.  Of course, I will be following this case — I am curious to see what the Supreme’s think.

 

*Motion to Return Property. A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property’s return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings.

 

 

What is Boykinization?

New Orleans Criminal Defense Attorney

 

Elizabeth B. Carpenter, Esq. — Criminal Defense Attorney New Orleans


Serving Clients in Orleans Parish, St. Tammany Parish, St. John Parish, St. James Parish, St. Bernard Parish, St. Charles Parish, Assumption Parish, Tangipahoa Parish, Terrebonne Parish, Plaquemines Parish and Jefferson Parish.

 

Boykinization is a term sometimes used to refer to reading a defendant his rights. It derives from a case, Boykin v. Alabama, 395 U.S. 238 (1969), decided by the United States Supreme Court. This case is most often cited for the principle that guilty pleas are enforceable only if taken voluntarily and intelligently. Due process requires an affirmative showing that a defendant who pleads guilty to a criminal charge has been apprised of his constitutional rights and has knowingly and voluntarily waived those rights. Such waiver cannot be presumed and reversible error is presented when the record does not disclose that the defendant voluntarily and understandingly entered his pleas of guilty.

 

In Boykin, the defendant was charged with common-law robbery. He pleaded guilty to the five indictments against him, and the trial court entered his plea of guilty.The jury sentenced defendant to death. On automatic appeal, the state supreme court affirmed the judgment, holding that a death sentence for robbery was not cruel and unusual punishment. On further appeal, the United States Supreme Court court reversed defendant’s conviction because the record contained no showing that his guilty plea was voluntary. The court held that an affirmative showing of voluntariness on the record was necessary in order to conclude that defendant had waived his constitutional rights.

 

If you or a loved one is facing criminal charges, contact attorney Elizabeth B. Carpenter for a consultation.  Our firm prides itself on the results we achieve for clients.

 

 

Supreme Court Agrees To Hear Case On Child Porn Victim Restitution

Child Pornography Defense New Orleans

 

Elizabeth B. Carpenter — New Orleans Criminal Attorney

 

If you are facing a Sex Crime charge in Louisiana for Possession, Production, Distribution of Pornography Involving Juveniles, it is imperative that you speak with an experienced New Orleans Sex Crime Defense Attorney.  American culture has created a witch hunt atmosphere for those accused of a sex crime; you will have to face hostile prosecutors and harsh public opinion.  Elizabeth B. Carpenter Law is here to defend you and to protect your freedom.  Ms. Carpenter has the experience necessary to effectuate skilled representation for those accused of Possession, Production, Distribution of Child Pornography.  Contact us to schedule a consultation.

 

 Supreme Court Agrees To Hear Case On Child Porn Victim Restitution

 

A few months ago, I reported that the 5th U.S. Circuit Court of Appeals ruled that a woman, was entitled to restitution from a Texas resident and a New Orleans resident , both of whom pleaded guilty in separate cases to possessing child pornography that included images of the woman.

At the end of the article that I posted, one of the attorneys for the defendants suggested that he would ask the Supreme Court to review the ruling.

Last Thursday, the Supreme Court agreed to hear the case.  The legal question is how much are the defendants required to pay in restitution under the 1994 Mandatory Restitution for Sexual Exploitation of Children Act.  The woman says that the defendant is liable for the full amount of her injury – such as counseling and loss of future income – while each defendant asserts that he should only be liable for his individual role. The woman has claimed $3.4 million in damages for this law suit alone.

Court papers indicate that more than 150 courts have awarded Amy restitution but these defendants are the only one to go before the Supreme Court.

Oral arguments and a decision are due in the court’s next term, which begins in October and ends in June 2014.

The case is Paroline v. United States, U.S. Supreme Court, 12-8561.

 

 

United States Supreme Court Cases To Follow This Week — Criminal Defense Attorney New Orleans

By: Elizabeth B Carpenter

New Orleans Criminal Defense Attorney

 

Elizabeth B. Carpenter, Esq. — New Orleans Premiere Criminal Defense Attorney

 


Serving Clients in Orleans Parish, St. Tammany Parish, St. John Parish, St. James Parish, St. Bernard Parish, St. Charles Parish, Assumption Parish, Tangipahoa Parish, Terrebonne Parish, Plaquemines Parish and Jefferson Parish.

 

The following cases are being argued before the U.S. Supreme Court this week:

 

BAILEY V. UNITED STATES

Can police officers may detain an individual incident to the execution of a search warrant when the individual has left the immediate vicinity of the premises before the warrant is executed.

 

CHAIDEZ V. UNITED STATES

In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), this Court held that criminal defendants receive ineffective assistance of counsel under the Sixth Amendment when their attorneys fail to advise them that pleading guilty to an offense will subject them to deportation. The question presented is whether Padilla applies to persons whose convictions became final before its announcement.

 

FLORIDA V. JARDINES

Is a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is a Fourth Amendment search requiring probable cause?

 

FLORIDA V. HARRIS

Is an alert by a well-trained narcotics detection dog certified to detect illegal contraband insufficient to establish probable cause for the search of a vehicle?

 

 

Supreme Court Declares Life Without Parole Unconstitutional — New Orleans Criminal Defense Attorney

Criminal Defense Attorney New Orleans

 

Elizabeth B. Carpenter, Esq. – Serving clients in Orleans, Jefferson, Terrebonne, Tangipahoa, St. Bernard, St. Charles, St. Tammany, St. John, Assumption and Plaquemines Parishes.

 

 

Life-without-parole sentences for juveniles declared unconstitutional by Supreme Court

The Times-Picayune

 

Life-without-parole sentences for juveniles are unconstitutional, according to a 5-4 opinionMonday morning from the U.S. Supreme Court that involved a 14-year-old convicted of murder in Alabama. Evan Miller was convicted of arson and murder in Lawrence County, but his life without any possibility of parole sentence violates the Constitutional protection against cruel and unusual punishment, according to the justices.

juvenile-court.JPG
Life-without-parole sentences for juveniles are unconstitutional, according to a 5-4 opinion Monday morning from the U.S. Supreme Court.

The opinion was written by Justice Elana Kagan. The ruling, which also includes a case from Arkansas, is another in a line of decisions that don’t allow the criminal justice system to give up hope that the youngest criminals can be rehabilitated.

“By requiring that all children convicted of homicide receive lifetime incarceration without possibility of parole, regard- less of their age and age-related characteristics and the nature of their crimes, the mandatory sentencing schemes before us violate this principle of proportionality, and so the Eighth Amendment’s ban on cruel and unusual punishment,” according to the opinion that was just released this morning.

The Campaign for the Fair Sentencing of Youth, which advocates for an end to lifetime mandatory sentences for youth, said that Louisiana has 332 youths serving life terms. That’s the third highest in the United States, behind only Michigan and Pennsylvania, according to the group.

“(The decision) will impact Louisiana significantly because we do have mandatory life sentences for juvenile offenses,” said Dana Kaplan, executive director of the Juvenile Justice Project of Louisiana. Kaplan, though, is reading the Supreme Court ruling, just out this morning, and says she’ll have a more thorough analysis later.

The four justices that dissented include Chief Justice John Roberts, Justice Samuel Alito, Justice Clarence Thomas and Justice Antonin Scalia.

Another New York Times Piece Regarding Prosecutorial Misconduct in the New Orleans DA Office: In Re Smith v. Cain

New Orleans Criminal Defense Attorney

Elizabeth B. Carpenter, Esq. —  Criminal Defense Lawyer Fighting for Justice.

 

Last week, I covered the current U.S. Supreme Court Case, Smith v. Cain.  I think that it is very important for Louisiana residents to know and understand what has been going on for YEARS in the Orleans Parish DA office and how such misconduct is leading to wrongful convictions.  Here are some links to refresh your memory.

 Smith v. Cain argument recap

Supreme Court seems ready to overturn conviction in New Orleans murder case

Prosecutorial Misconduct New Orleans DA Office vs. Brady v. Maryland

U.S. Supreme Court approached New Orleans case with blinders: Jarvis DeBerry

 

The Big Sleazy

By ANDREW ROSENTHAL

For the third time in 16 years, the Supreme Court is taking up the question of why prosecutors in New Orleans seem to have so much trouble with the law.  Smith v. Cain, a case heard last week, outlines truly shocking misdeeds going back decades. And an article in The Times-Picayune makes clear that problems continue.

Take for example this account of District Attorney Leon Cannizzaro’s ignorance regarding an essential rule of law:

Last week, Cannizzaro insisted his office acted properly when it waited until the middle of a trial to tell a defense attorney about its deal with the victim and lone eyewitness in a December 2010 shooting in eastern New Orleans. Cannizzaro told The Times-Picayune his office didn’t initially reveal the deal, which was inked in August, because Smith’s lawyer never asked. “The defense attorney has to request it, and if he doesn’t, we’re not obligated to give it to him,” Cannizzaro said last week.

Hey, I saw “My Cousin  Vinny.” That’s just wrong.

Beginning with the 1963 case Brady v. Maryland, the Supreme Court has made clear that a prosecutor has a duty to disclose evidence favorable to the defendant—even if the defendant doesn’t ask for it—if the evidence is likely to change the result of the legal proceeding.

Lest you be shocked by this tiny little gap in Mr. Cannizzaro’s knowledge, consider his predecessor, Harry Connick, who boasted that he “stopped reading law books” and “looking at opinions” after he was elected district attorney in 1974. That apparently includes Supreme Court rulings. After the Court’s 1995 decision in Kyles v. Whitley, featuring what Justice John Paul Stevens called “many instances” of the district attorney’s office’s “failure to disclose exculpatory evidence,” Mr. Connick testified in court that he made no changes in his office’s approach to meeting Brady requirements.

If a prosecutor so blatantly fails to do his job, surely there is swift and powerful punishment. Actually, no. Lincoln Caplan, one of the board’s legal writers, explains below:

Mr. Connick’s testimony came in Connick v. Thompson, which the court decided last March. In a bitterly divided 5-4 vote, the court overturned a $14 million jury verdict against the district attorney’s office, reached because the office withheld exculpatory evidence from John Thompson and, as a result, sent him to prison for 18 years, 14 on death row. That disposed of one the handful of ways it was possible to deter prosecutorial misconduct.

A group of Yale Law School students recently published a report on “The Myth of Prosecutorial Accountability After Connick v. Thompson,” which is unsettling but well worth reading.

In the Connick case, Justice Clarence Thomas wrote that “[a]n attorney who violates his or her ethical obligations is subject to professional discipline, including sanctions, suspension, and disbarment.”

But that’s not really so. As the report relates, “prosecutors have rarely been subjected to disciplinary action by state bar authorities,” even though “state bar disciplinary procedures stand as one of the few – and perhaps the only – means of holding prosecutors accountable for gross misconduct.”

For instance, although the lead prosecutor in Smith v. Cain was sanctioned for misconduct by the Louisiana Supreme Court in 2005 (in another case), the court suspended his sentence after observing that this was “a case of first impression in the State of Louisiana” and that the court had never before “been confronted with the issue of disciplining a prosecutor for failing to disclose” Brady material.

Well, that’s a novel idea. If you’re the first to be sanctioned for an offense, you don’t get punished for it.

Elizabeth B. Carpenter, Esq. —  Criminal Defense Lawyer Fighting for Justice.

Frequently Asked Questions About Police Interrogations

 

Frequently Asked Questions About Police Interrogations

 

Elizabeth B. Carpenter -- New Orleans Criminal Attorney

 

Do I have to answer questions if the police stop me while I am walking on the street?

The police can stop a person when they have good faith belief that the person was involved in a crime – this is often referred to as a “Terry Stop.”  However, under the Fifth Amendment right against self-incrimination, a person does not have to answer any questions.  In fact, a person should not answer any questions during a “Terry Stop.”  The law only requires a person to give his name, date of birth, address and other information to establish identity if requested.  Therefore, if questioned about a crime when walking on a street, do not utter any words accept your name.  Respectfully, inform the officer that you are exercising your Fifth Amendment Constitutional Rights. At the same time, do not argue with the officer!

 

In what circumstances do the police need a warrant to make an arrest?

If the police have “probable cause,” a reasonable suspicion that a person has been committed a crime, it is unnecessary for them to obtain a warrant before arresting someone.  However, police must obtain a warrant when arresting a person in his home if it is for a non-serious offense and there is no belief that the person will destroy evidence.  The arrest warrant must provide evidence that a crime has been committed, that the person names on the warrant committed the crime and the warrant must comply with all rules of court.  This evidence is usually presented in the form of an affidavit signed by law enforcement officer in front of the judge who is signing the warrant.

 

Do police have to give Miranda warnings when making an arrest?

This is a concept that is often misunderstood by clients.  No, the police do not need to give the Miranda warnings when making an arrest.  Miranda warnings are required only when the police interrogate a person after an arrest.  Miranda warnings are also not required when the police interrogate someone prior to an arrest however, everything that you say to the police at any point in time can be used against you.  Police may also have you sign a waiver of rights form rather than verbalize your Miranda Rights.  Pay attention to what you sign!

 

Will my case be dismissed since the police questioned and arrested me without giving a Miranda warning?

No, the prosecutor can still bring charges against you even if the police failed to give Miranda warnings before conducting a police interrogation.  The failure to Mirandize a suspect after arrest and prior to interrogation prevents the prosecutors from being able to use any evidence obtained via the interrogation against the suspect at trial.  But the prosecutor can use evidence obtained via another means to secure a conviction.

 

If I agree to police questioning, can I later decide not to answer questions?

Yes, Miranda warnings give a person the right to stop a police interrogation at any time even if he has already waived his right to remain silent and answered some questions.  A person can exercise this right by refusing to answer any more questions or requesting an attorney.  Once a person avers Miranda rights, the police must discontinue the interrogation.

 

What tactics can the police use when questioning a suspect?

Law enforcement is forbidden from using physical or psychological coercion when conducting police interrogations.  However (I wish that everyone understood this) the police can lie, trick and employ other types of non-coercive methods to obtain a confession from a suspect.  Police are trained in interrogation techniques.  They are allowed to make false promises and use scare tactics.  They are allowed to tell you that they have the power to decide how severely you will be prosecuted.  This is absolutely not true!

 

Do the police have the right to take a bodily sample without permission?

Generally, No.  Law enforcement must obtain a search warrant.  However, the Fifth Amendment right against self-incrimination applies to communication and does not prohibit the police from collecting physical bodily evidence, i.e. blood samples, hair samples.  I would refuse a bodily sample based on “no search warrant.”

 

The best advice I can give every client is Do Not Speak To The Police!

 

 

 

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