Tuesday, April 22, 2014

Justice Scalia issues dissent for a DUI criminal defendant

Yes, Rumpole... Justice Scalia is on the right side again. The case is Navarette v. California.

Here's the syllabus of Justice Thomas' opinion:

A California Highway Patrol officer stopped the pickup truck occupied by petitioners because it matched the description of a vehicle that a 911 caller had recently reported as having run her off the road. As he and a second officer approached the truck, they smelled marijuana.They searched the truck’s bed, found 30 pounds of marijuana, and arrested petitioners. Petitioners moved to suppress the evidence, arguing that the traffic stop violated the Fourth Amendment. Their motion was denied, and they pleaded guilty to transporting marijuana. The California Court of Appeal affirmed, concluding that the officer had reasonable suspicion to conduct an investigative stop.
Held: The traffic stop complied with the Fourth Amendment because,under the totality of the circumstances, the officer had reasonable suspicion that the truck’s driver was intoxicated.

From Justice Scalia's dissent, joined by Ginsburg, Sotomayor, and Kagan (Note that Breyer is again ruling in favor of the government):

The Court’s opinion serves up a freedom-destroying cocktail consisting of two parts patent falsity: (1) tha tanonymous 911 reports of traffic violations are reliable so long as they correctly identify a car and its location, and
(2) that a single instance of careless or reckless driving necessarily supports a reasonable suspicion of drunkenness. All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police. If the driver turns out not to be drunk (which will almost always be the case), the caller need fear no consequences, even if 911 knows his identity. After all, he never alleged drunkenness, but merely called in a traffic violation—and on that point hisword is as good as his victim’s.
Drunken driving is a serious matter, but so is the loss ofour freedom to come and go as we please without police interference. To prevent and detect murder we do notallow searches without probable cause or targeted Terry stops without reasonable suspicion. We should not do so for drunken driving either. After today’s opinion all of us on the road, and not just drug dealers, are at risk of having our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of a single instance of careless driving. I respectfully dissent.

Monday, April 21, 2014

Supreme Court rejects Gov. Scott's cert petition

This was in the drug testing case that Judge Ungaro had. From Curt Anderson:

The U.S. Supreme Court refused Monday to hear an appeal by Florida Gov. Rick Scott on his 2011 executive order that would have required random drug tests for as many as 85,000 state workers.

The ruling lets stand an appeals court decision that Scott's order was too broad. That decision also directed a Miami federal judge to oversee ongoing negotiations between the state and an employee union over which positions could be subjected to random drug tests.

The Supreme Court's refusal to hear the appeal follows a similar decision in late December by a federal judge in Orlando who struck down a Florida law requiring applicants for welfare benefits to undergo mandatory drug testing. Scott, a Republican, is also appealing that case.

The American Civil Liberties Union of Florida, which challenged both drug-testing plans as unconstitutional, said federal courts have clearly rejected blanket mandatory drug testing by the state.

"The question of whether the state has the power to compel all employees to submit to suspicionless searches without good reason is settled and the answer is no," said Shalini Goel Agarwal, the lead ACLU attorney in the state employees case.

Judge Hoeveler set to retire

It's been a good run.

John Pacenti covers the details:

Senior U.S. District Judge William Hoeveler said after more than three decades on the bench that he planned "to continue to work until they carry me out."
It may not come to that. Chief U.S. District Judge Federico Moreno in Miami sent a short memo last month reassigning Hoeveler's 21 cases effective April 1 "pending retirement later this year."
Appointed by President Jimmy Carter in April 1977, the World War II veteran quickly gained a reputation as a legal scholar. The 92-year-old judge oversaw landmark litigation on Everglades pollution, and he presided at the nine-month drug-trafficking and racketeering trial of Panamanian dictator Manuel Noriega.
Hoeveler also oversaw some of the 2000 hearings on whether 6-year-old Cuban refugee Elian Gonzalez should be returned to his homeland. A year earlier, he presided over a Port of Miami public corruption trial.
"The truth is he has left his fingerprints all across the district, not just on the Everglades, but on criminal, civil and environmental law," said former interim U.S. Attorney Guy Lewis, now a partner at Lewis Tein in Miami. "When the chips are down, Judge Hoeveler is the guy who comes through."
Compared to Lincoln
How well-regarded is Hoeveler among members of the Bar in South Florida? Several lawyers compared him to President Abraham Lincoln.
"He acted like Abe Lincoln," said attorney Aaron Podhurst, a partner at Podhurst Orseck in Miami. "He never raised his voice, and he was a fabulous lawyer, and he was a great trial judge."

Thursday, April 17, 2014

Thursday's news and notes

1. The dude who disrupted the Supreme Court got time served. From the AP:

A demonstrator who interrupted arguments at the U.S. Supreme Court in February and whose group posted video of the protest online, a first for the court, has been sentenced to time served.

Noah Kai Newkirk of Los Angeles pleaded guilty Tuesday in connection with the Feb. 26 disruption, after which he served a night in jail. After Tuesday's hearing, a Supreme Court policeman gave Newkirk a piece of paper that notified him he is also barred from the court grounds for a year.

After video of his protest was posted online, the Supreme Court, which forbids cameras and all other electronic devices, tightened its security screening. Newkirk declined Tuesday to say how the video of his protest was shot.

Newkirk, a member of the group 99Rise, told a D.C. Superior Court judge overseeing his case that he spoke out to protest the "unprecedented amount of money" corporations are spending on elections. He said the Supreme Court played a role in "deepening that corruption."
Newkirk's attorney, Jeffrey L. Light, told the judge Newkirk has no intention of returning to the Supreme Court. But Newkirk said outside the hearing that "it's a hypothetical possibility there may be others."

2. While keeping the Court closed to cameras and punishing those who disrupt the Court, Justice Scalia told a student that he should consider revolting:. From the WSJ:

Supreme Court Justice Antonin Scalia, after delivering prepared remarks before a standing-room-only crowd at the University of Tennessee College of Law on Tuesday, was asked by a student about the constitutionality of the income tax.

Justice Scalia, according to the Knoxville News Sentinel, replied that the government has the right to take his money. “But if reaches certain point, perhaps you should revolt,” he reportedly told the young man.

The justice, who was invited by the law school to present its annual “Rose Lecture,” delivered what he described as his “stump speech.”

He talked about the time he joined with the majority in 1989 in declaring that flag-burning was constitutionally protected speech.

“You’re entitled to criticize the government, and you can use words, you can use symbols, you can use telegraph, you can use Morse code, you can burn a flag,” he said, according to the News Sentinel.

Justice Scalia also said that he and his colleagues on the bench don’t care which party controls the White House, saying the clash of opinions among the justices isn’t partisan.

And he, naturally, offered a defense of his theory of originalism, the belief in a Constitution that’s fixed and unchangeable.

“The Constitution is not a living organism for Pete’s sake,” the justice said, according to the report. “It’s a law. It means what it meant when it was adopted.”

3. Another Rothstein indictment. This time it's Irene Stay. From the Sun-Sentinel:

Federal prosecutors filed a criminal charge Wednesday against Scott Rothstein's former bookkeeper, who became the chief financial officer of his law firm, court records show.

Irene Stay, now Irene Shannon, 50, of Miami, was charged with a lone count of conspiracy to commit money laundering and bank fraud. Prosecutors said she is the 18th Rothstein accomplice to be held accountable.

Shannon played a vital role in Rothstein's $1.4 billion Ponzi scheme, which he operated from 2005 to 2009, according to investigators.
Her job involved overseeing all of the law firm's accounting work from the secured inner sanctum that Rothstein had built in his Las Olas office, according to investigators from the IRS and FBI.

Some of Rothstein's investors alleged in a civil lawsuit that when Rothstein's law partners confronted Shannon after he fled to Morocco in late October 2009, she began crying and repeating the phrase, "I don't want to go to jail."

Tuesday, April 15, 2014

Fort Lauderdale jeweler Patrick Daoud gets house

Another Judge Marra/Fred Haddad matchup. From Paula McMahon:

Well-known Fort Lauderdale jeweler Patrick Daoud was sentenced to ten months of house arrest and two years of probation on Friday for helping to hide a huge 12.08 carat yellow diamond that Ponzi schemer Scott Rothstein's wife was attempting to conceal from federal authorities.

Daoud, 55,the owner of Daoud's Fine Jewelry in Fort Lauderdale, pleaded guilty to obstruction of justice last year.
His crime, prosecutors said, was lying about the diamond under oath when he was summoned to a deposition in federal bankruptcy proceedings in November 2011. He testified that he never received or kept the diamond and later, in June 2012, returned it to Weisman.

"He had the opportunity to do the right thing and chose not to," Assistant U.S. Attorney Lawrence LaVecchio said in court.

Daoud's lawyer, Fred Haddad, said that Daoud was "deliberately kept in the dark" and knew nothing of Rothstein's attempt to hide jewelry and other assets to try to keep her financially afloat after her husband's $1.4 billion investment fraud scheme was exposed in October 2009.

Daoud panicked when he figured out what was going on and got involved in a "misguided attempt to protect" Weisman – who he knew from attending charitable events – and his investment, Haddad said.

"Aside from losing a large sum of money in purchasing the ring, the embarrassment in a community where he is so well-known, [Daoud] has also been branded a felon, with a resultant loss of business," Haddad wrote.

When U.S. District Judge Kenneth Marra asked Daoud if he wanted to say anything before he was sentenced, Daoud hesitantly replied: "I'd rather not."