Illegal Searches

The Fourth Amendment prohibits searches and seizures by the government unless they have a warrant, issued by a judge, based on probable cause. Often the warrant is to search a residence, and is based on a tip of a Confidential Informant (CI). Basic questions to present to the court in seeking an appeal are:

• What right did the police have to rely on this CI?
• Have they worked with him/her in the past? If so, when and in what type of cases?
• How could the CI know that some evidence of a crime would be in the house, i.e., what is his/her basis of knowledge?
• Is the CI a criminal himself?
• Is the CI getting some type of benefit or payment for his/her "assistance?"
• What are the police looking for? A warrant must state specifically what police are seeking, though in many drug cases they use a standard list.
• Did the police exceed the scope of the search? For example, they may be allowed to search the main living quarters, but not a locked container that belongs to some third party.

Unfortunately, there are many exceptions to the warrant requirement. If police feel they are chasing a "fleeing felon," they can reasonably cite some urgent circumstance (such as a possible destruction of evidence, like flushing cocaine down a toilet). Police may also attempt to get consent to enter a property without a warrant. They may seize items in "plain view," search you and your property "incident" to a lawful arrest (which is sometimes a pretextual arrest to justify a search), or claim that the search is just to "inventory" the evidence of the crime.

Miranda Violations

Before the police are even required to "read you your rights" under Miranda v. Arizona (right to remain silent and to have an attorney present during questioning), two elements must be present:

1. you must be "in custody"

2. there must be an actual "interrogation" being conducted

You are only considered in custody when you are formally arrested or the circumstances are such that a reasonable person in that position would not feel free to leave. This applies to being at a police station or in a holding cell, as well as other places such as the crime scene, at your home, or in transit. Police often try to bypass this issue by claiming that they were having a consensual conversation with you, and you were free to leave at anytime. Most people are quite intimidated by the police and believe (wrongly) that they are legally obligated to answer questions. They are not. If you consent to an interview or voluntarily go to the police station, you have essentially abandoned a Miranda claim. However, you may still be able to argue that your waiver of Miranda was invalid, because you did not understand the nature and consequences of what you were doing.

An "interrogation" is any questioning that is "likely to illicit an incriminating response." Sometimes, this might be done at the scene of the crime, in the squad car or during booking. The courts have held that simply gathering information is not an "interrogation," even if that information is later used as part of a criminal charge.

 

Identification Procedures

The process of identifying a suspect through in-person or photo line-ups is fraught with problems and is a common basis for appeal. Often, identification procedures can be – intentionally or unintentionally – suggestive. Police may show a photo array that contains the actual suspect, along with 5 or more "fillers." Many times a witness will have some hesitation about making a definitive identification, and the police will make comments such as "keep looking" or "Are you sure he's not there? Look again." This is a cue to the witness that the person that they seek is one of the people shown. Another bad procedure is a "show up," in which police might take a witness to see the accused at the scene of the crime. This nearly always results in a "positive" identification. The number of wrongful convictions that are a direct result of mistaken identification is staggering. Despite this, however, appellate courts typically only overturn a jury's acceptance of such an ID if it was obviously biased or simply not possible.

Defective Guilty Plea

The primary challenge to a guilty or "no contest" plea is of the "voluntariness" of the plea. Think of the following before you chose to enter into a plea agreement:

• Know that the court is not bound by any plea agreement and can sentence you to any term, up to the maximum allowed by statute;

• Fully understand the constitutional rights you are giving up (trial by a jury, forcing the government to prove each element of the offense beyond a reasonable doubt, right to confront your accusers and call witnesses of your own, etc.)

• Know what the elements of the offense are, and what specifically the government has to prove to establish your guilt: in a plea you are required to agree that they have sufficient evidence to meet their burden.

After winning an appeal to withdraw a guilty plea, you will still be charged with the same crime, but now you will be able to go to trial and present all the challenges that you had previously given up. Alternatively, you could use this as an opportunity to negotiate a better settlement.

Sufficiency of the Evidence

Even though you many have been convicted by a jury, the Court of Appeals (or even the trial judge) may reject the conviction or the verdict, if no "reasonable juror" could have found you guilty beyond a reasonable doubt. This is a rarely granted appellate issue, but in cases in which it happens the accused cannot be retried because double jeopardy has attached.

Prosecutorial Misconduct

A prosecutor may not comment, nor allow any witness to comment, on your invocation of your Fifth Amendment right to remain silent. This includes remaining silent when questioned by the police, or making a decision not to testify at trial. The prosecutor also may not appeal to the "passion and prejudice" of the jury. However, all of these things are quite common - especially in drug and sex crime cases, where people generally have strong emotional reactions - and can be sufficient grounds for an appeal.

Common Trial Court Errors

• Voir Dire: Often the court will not excuse potential jurors, even when they are clearly biased. This presents a real problem for the criminal defense lawyers who then have to use something known as a "preemptory" strike to weed out adverse jurors. Ideally, the court should be vigorous in making sure that the prospective jurors are completely objective. In reality, this not always the case.

• Admission of Evidence: The trial court decides what evidence the jurors can or cannot hear about. There are specific rules of evidence that govern this process and restrict what is considered a proper "evidence." If the court improperly lets the jury hear about a defendant's prior criminal history or evidence of his/her "bad character," the conviction may be reversed and a new trial granted.

• 'Other Acts' Evidence: Evidence of defendant's prior convictions or other offenses can only be admitted if it is relevant and for the purpose of showing intent, motive, and opportunity to commit the crime. Many times, this is devastating to the defense since jurors often conclude that, "If they did it before, they probably did it this time."

• Use of Experts: If the court allows, or the DA solicits an "expert testimony" that somehow offers an opinion on the fact of the crime, the expert is then essentially becomes a "superjuror." Only the jury may decide which facts to believe or disbelieve.

Stages of an Appeal

• Motion for Post-Conviction Relief: This is an appeal of the judgment of conviction and the sentence. This motion is heard before the same judge who presided at trial and sentencing, so defendants are mainly asking the court to reverse its own decision. This motion usually involves all pretrial issues, such as illegal searches, coerced confessions, wrongly admitted evidence, as well as trial errors and sentencing issues. If an issue was not raised before the trial court – either before trial or in this motion - it is not permitted to be raised before the court of appeal. Thus, it is very important to raise all possible issues at trial.
• Direct Appeal to the Court of Appeals: This involves a review of both the original trial rulings and the denial of a post-conviction motion. The Court of Appeals is interested in constitutional issues and in correcting procedural errors at the trial court level.
  
  
• Petition for Review to the State Supreme Court: If you lose in the Court of Appeals, you may request that the State Supreme Court review your case. The Supreme Court only accepts about 6% of criminal appeals filed and usually only those that have serious statewide impact or substantial constitutional questions.
• §974.06 Motion: This is the state version of a federal Writ of Habeas Corpus and allows challenge of constitutional issues only, such as illegal searches of you or your property, right to have an effective attorney, or coerced statements and confessions. Defendants are required to raise all issues presented in their first filing, or be banned from raising them later in a subsequent motion (you may only use this motion if you are incarcerated when you file). This motion is presented to the same trial court, but is not necessarily heard by same judge who presided at your trial.
• Writ of Habeas Corpus: This federal filing allows a challenge to constitutional issues from a trial, but it must be brought within 1 year after all state appeal options have been exhausted.
• Writ of Certiorari: This is a request that the United States Supreme Court review your case. The US Supreme Court accepts even fewer criminal cases than the State Supreme Court, and then only those with very serious and substantial constitutional issues.

• Appeals of Probation Revocation: Writ of Certiorari to the state Circuit Court. If you are revoked by an Administrative Law Judge, you may appeal to the Circuit Court in the county you were convicted in. However, the circuit judge may only reverse your revocation if the ruling was directly contrary to law, or if actions by the Department of Corrections demonstrated a purposeful exercise of its "will" over its "judgment." This is difficult legal burden. If you lose at the circuit court level, you may follow the normal course of appeals as with any other case.
• Petition for Adjustment of Sentence: This Petition allows someone who completed 75% of his/her sentence (85% in a sexual assault case) to ask for time to be cut from his/her sentence. Such Petitions are filed for the following reasons:
  • There was a change in law that would have resulted in a lower sentence had it been in place when you were sentenced;
  • You have shown good progress in rehabilitation, or have successfully completed the program while in prison;
  • You have been sentenced in another state or you are an illegal alien; and
  • In the interest of justice.
  • The District Attorney (and in sexual assault cases, the victim) may object to this petition, which will automatically deny your petition by statute. However, recent cases have interpreted the statute to allow the court to reject any objections. Also, you may only petition the court one time, and you do not have a right to counsel (appointed). It has been disputed whether those sentenced under the original Truth-In-Sentencing (TIS) law (those convicted between 12/31/1999 and 02/03/2003) may use this petition to have their sentences reduced under the less harsh adjustments in the law that took effect on 02/03/2003. Many courts have denied such petitions, despite overwhelming legal arguments that mandate inclusion.