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Friday, November 12, 2010

4th Amendment Protections to a rented room

Today the Iowa Supreme Court issued an opinion regarding the suppression of evidence obtained in the search of a residence and a rented room inside. The renter claimed the officers exceeded the scope of the search warrant by searching his rented room where he maintained an expectation of privacy under the Iowa and Federal Constitutions.

"Fleming filed a motion to suppress any physical evidence recovered by the officers. Fleming argued that the evidence was obtained in violation of his Fourth Amendment rights guaranteed by the United States Constitution and article I, section 8 of the Iowa Constitution. Fleming claimed the application for the search warrant was defective because it failed to establish the reliability and veracity of the informants. He also claimed the search of his bedroom was outside the scope of the warrant because he had exclusive possession of the room, and Iowa does not recognize a good faith exception to the exclusionary rule."

"Generally, the rights contained in the Fourth Amendment and the Iowa Constitution are “deemed to be identical in scope, import, and purpose.” State v. Groff, 323 N.W.2d 204, 207 (Iowa 1982). In evaluating claims under the Iowa Constitution, the United States Supreme Court interpretation of a parallel federal constitutional provision may be persuasive authority, but is no more binding on this court on the state constitutional issue than the cases of other state supreme courts. We jealously reserve the right to interpret our state constitution in a fashion that provides greater protection. State v. Cline, 617 N.W.2d 277, 284–85 (Iowa 2000) (“[A]lthough this court cannot interpret the Iowa Constitution to provide less protection than that provided by the United States Constitution, the court is free to interpret our constitution as providing greater protection for our citizens’ constitutional rights.”), overruled on other grounds by Turner, 630 N.W.2d at 606 n. 2; see also Graves v. State, 708 So. 2d 858, 861 (Miss. 1997) (declaring the state constitution provides greater protection of an individual’s reasonable expectation of privacy than that provided under the federal law)."

In reversing and remanding with an order that the evidence be suppressed, the court explained:

"We conclude that under our state constitution Fleming had a reasonable expectation of privacy in his bedroom, and the officers violated that interest by searching his bedroom without obtaining a warrant supported by probable cause authorizing a search of that area. As a result, the evidence seized from Fleming during the search must be excluded from trial. The decision of the court of appeals is vacated and the district court judgment reversed. We remand for further proceedings.

Monday, July 12, 2010

Suppression of illegally obtained evidence...a recent win.

One of the attorneys I work for on a regular basis recently had a case where a client was a passenger in a car stopped by police. After citing the driver for operating without insurance, the officer advised he was having the car towed. The passenger, John, asked the officer if he could leave and walk home. The officer directed John to empty his pockets first. John complied. The officer then conducted a patdown search and reached into John's pocket, finding a 1 gram packet of marijuana. John was arrested and jailed.

On suppression counsel challenged the search as illegal based upon a lack of exigent circumstances, officer safety, or valid consent. The controlling case for suppression was State v. Chihak, No. 9-090/08-0452 (Iowa App. 3/11/2009) (Iowa App., 2009), where the Court reversed and remanded the denial of suppression based upon an illegal pat down search. The Chihak Court held:

"Warrantless searches and seizures are per se unreasonable unless they fall within one of the carefully drawn exceptions to the warrant requirement. State v. Simmons, 714 N.W .2d 264, 271 (Iowa 2006). Valid exceptions to the warrant requirement include searches based on (1) consent, (2) plain view, (3) probable cause coupled with exigent circumstances, (4) searches incident to arrest, and (5) those based on the emergency aid exception. State v. Lewis, 675 N.W.2d 516, 522 (Iowa 2004). The State has the burden of proving by a preponderance of the evidence that a warrantless search falls within one of the exceptions to the warrant requirement. Id.
It is not contested in this appeal that the officers had a right to stop the vehicle because of the loud muffler. Additionally, Chihak does not contest that the officers had a right to search the vehicle in which Chihak was a passenger based on Murley's consent, nor does Chihak dispute that the officers had the right to order him out of the car to facilitate the lawful consent search of the vehicle. Rather, the crux of the appeal is based on what occurred after the officer ordered Chihak out of the car. Specifically, we must determine whether Officer Lowrey was justified in performing a pat-down search of Chihak.
As stated above, after Chihak exited the car at the request of Officer Lowrey, the officer stated "I'm going to pat you down, make sure you don't have any bombs, guns, knives or anything that can stick me." The State argues Officer Lowrey had a right to conduct this pat-down search of Chihak prior to searching the car in order to ensure his own safety. Officer Lowrey testified he just wanted to "make sure [Chihak] didn't have a gun in his pocket or a knife in his pocket or something that [Chihak] could harm me in some way when I put him to the rear of the vehicle" while he was assisting in the search of the vehicle. Additionally, he testified "[a]ny time I have anybody to my back it tends to be an officer safety issue." The State argues the pat-down Officer Lowrey performed was justified under the officer safety exception. The issue here is controlled by the landmark decision of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), and its progeny. Under Terry, an officer has authority to conduct a reasonable search for weapons for the officer's own protection, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual. Terry, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909; see also Michigan v. Long, 463 U.S. 1032, 1047-50, (1983); Ybarra v. Illinois, 444 U.S. 85, 92-94,(1979); Pennsylvania v. Mimms, 434 U.S. 106, 112, (1977).
The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or `hunch,' but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience. Terry, 392 U.S. at 27. In justifying this particular intrusion upon individuals' constitutionally protected interests the officer "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Id. at 21. The Fourth Amendment requires that at some point the reasonableness of a particular search or seizure can be subjected to the neutral, detached scrutiny of a judge. Id. The judge must then evaluate the reasonableness in light of the particular circumstances, and in making that assessment must employ an objective standard:

"would the facts available to the officer at the moment of the seizure or search `warrant a man of reasonable caution in the belief' that the action taken was appropriate?" Id. at 21-22.

Officer Lowrey testified he was going to conduct the pat-down search of Chihak to ensure his safety. However, he also testified that Chihak was cooperative (the driver was also cooperative), gave him his ID, made no movements and was not moving around, was not threatening, and that Chihak was not a danger to him when he asked
him to step out of the car. This testimony demonstrates that Officer Lowrey did not have the requisite "reasonable belief" that Chihak was armed and presently dangerous to justify the initiation of a pat-down search. Furthermore, not only is there no testimony from the officer that he had any belief that Chihak was armed or dangerous, we cannot find that the facts available to the officer at the time of the search would have warranted a person of reasonable caution to believe that he was.

The court ruled in favor of the defense, citing the officer's error in ordering the defendant to empty his pockets and then conducting a further search "in hopes of finding fruits of a crime." This case was won because the attorney took the time to question the legality of the search. It could have been easy to plead the client out to a misdemanor and unsupervised probation with a fine. But instead the client was cleared of the arrest and did not suffer the harm of a conviction.

Chalk a win up for the defense.


Wednesday, July 7, 2010

Sad State for ACTUAL INNOCENCE in the Ninth Circuit

On July 6, 2010, the Ninth Circuit dealt a severe blow to state habeas corpus petitioners seeking releif under 28 USC 2254.

In a lengthy opinion, the court held that 2244 does not recognize an ACTUAL INNOCENCE exception for state habeas corpus petitioners.

Following more than 9 years of litigation, Richard Lee was able to convince a federal discourt court of his actual innocence of several state felony offenses. The procedure history of the case is almost unbelievable. Back and forth through state and federal courts to finally win his freedom, only to be curtailed by a federal statute that has been admittedly enacted on the wrong basis by president Clinton, who signed the AEDPA into law in 1996.

Here is a quote from the case:

" O'SCANNLAIN, Circuit Judge.

We must decide whether to recognize a judge-made exception to the statute of limitations for federal habeas relief in the case of a state prisoner who makes a showing of actual innocence in his original petition.

An Oregon state court jury convicted Richard Lee of two counts of first-degree sexual abuse and two counts of sodomy of a four-year-old named Matthew. Lee appealed, but his counsel filed the Oregon equivalent of an Anders brief, and the Oregon Court of Appeals affirmed the conviction. Lee did not seek review in the Oregon Supreme Court, so direct review became final on September 30, 1996.

Lee timely filed for state postconviction relief. He alleged, inter alia, that he received ineffective assistance of counsel regarding the initial exclusion of evidence concerning another suspect, the appeal of the same issue, the failure to call an expert witness on the reliability of child testimony, and the calling of witnesses harmful to the defense. But his petition was denied. The Oregon Court of Appeals affirmed, and the Oregon Supreme Court denied review. State postconviction proceedings thus became final on September 24, 2001.

Lee petitioned for habeas relief in federal district court, again alleging, inter alia, ineffective assistance of counsel. Initially, the district court, relying on a magistrate judge's recommendation that Lee did not appeal the state trial court's denial of postconviction relief, dismissed his petition as untimely under the one-year federal statute of limitations for seeking federal habeas relief. 28 U.S.C. § 2244(d)(1). We reversed. Lee v. Lampert, 92 F. App'x 532 (9th Cir. 2004). Lee then filed an amended petition in 2005, which was held in abeyance pending determination of the retroactivity of Crawford v. Washington, 541 U.S. 36 (2004). After resolution of that issue, the magistrate judge again recommended denying the habeas petition.

But this time the district court disagreed. After conducting several evidentiary hearings over the fall and winter of 2008, it granted the petition for a writ of habeas corpus on March 24, 2009, finding that Lee established actual innocence and ineffective assistance of counsel and ordering Oregon to release or to retry Lee. Lee v. Lampert, 607 F. Supp. 2d 1204, 1221-22, 1226 (D. Or. 2009). The State timely appealed and a motions panel stayed the district court order, placing the case on expedited calendar for our review."

Ultimately the court ruled against Lee, finding that his petition was untimely filed and no actual innocence exception was allowed by the statute:

"We now resolve this question for our circuit for two reasons.

First, there is a widening split among the district courts of our circuit on whether there is an actual innocence exception to section 2244(d). Several district courts, including ones in the Central District of California, the Northern District of California, and the District of Oregon, have held that "actual innocence" overrides the statute of limitations. E.g., Lisker v. Knowles, 463 F. Supp. 2d 1008, 1032-38 (C.D. Cal. 2006) (Phillips, J.) ("[T]he Court concludes that AEDPA's statute of limitations must be tolled when an evidentiary showing demonstrates that its application would work a miscarriage of justice under Schlup."); Larsen v. Adams, 642 F. Supp. 2d 1124, 1131 (C.D. Cal. 2009) (Snyder, J.) (holding that "a credible actual innocence claim overcomes the statute of limitations bar"); Nickerson v. Roe, 260 F. Supp. 2d 875, 890 (N.D. Cal. 2003) (Patel, C.J.) (adhering to previous order finding actual innocence exception); O'Neal v. Lampert, 199 F. Supp. 2d 1064, 1066 (D. Or. 2002) (Aiken, J.) (finding "that creating an `actual innocence' exception to the habeas corpus statute of limitations is a logical extension of [Schlup]").

Several other district courts, including some within the Eastern District for California and the District of Oregon, have held the opposite. E.g., Chestang v. Sisto, No. CIV S-07-1173 (E.D. Cal. Sept. 30, 2009) (Karlton, J.), adopting in full, 2009 WL 2567860, *13 (E.D. Cal. Aug. 18, 2009) ("The court is persuaded by the David rationale that claims of actual innocence are required to be brought diligently the same as any other claim."); Souliotes v. Tilton, 2008 WL 782479, *8 (E.D. Cal. Mar. 20, 2008) (Wanger, J.) (rejecting actual innocence argument and ruling that "petition for writ of habeas corpus is barred by the statute of limitations"); Flemmer v. Eckland, Civ. No. 99-598-HU, at 2 (D. Or. 2000) (King, J.) (adopting magistrate judge's recommendation that there is no actual innocence exception to statute of limitations).

This split creates troubling inconsistency. The rights of state prisoners in Oregon depend on which judge hears their cases. The rights of state prisoners in California depend on the happenstance of the location of their state prison. Such chaos calls out for our resolution.

Our second reason for resolving this question at this time is that our district courts are expending vast amounts of resources under the current approach of evaluating actual innocence, on the assumption that an actual innocence exception exists. Each such evaluation requires the submission of exhibits, oral argument, evidentiary hearings, and numerous rulings, as the case before us demonstrates.[ 16 ] Here, the district court held several hearings and accepted numerous exhibits over the course of proceedings lasting several months. Lee, 607 F. Supp. 2d at 1216; see Nickerson, 260 F. Supp. 2d at 889 (recounting four days of hearings over three months, two hundred exhibits, and post-hearing briefing).

[12] A simple search, furthermore, demonstrates that every district in our circuit has faced numerous cases like this, in which they scrupulously evaluated actual innocence claims in the context of a petition time-barred by the statute of limitations, on the assumption that an actual innocence exception exists.[ 17 ] The Central District of California, by itself, has decided at least twenty-four cases in this manner between March 4, 2008 and October 5, 2009, the date of argument in this case.[ 18 ] This massive expenditure of judicial resources has affected us at the circuit level as well, as a cursory search of our cases demonstrates.[ 19 ] All of these efforts are for naught if there is no actual innocence exception to the statute of limitations. Since the text of the statute indicates there is not, the federal courts in our circuit are needlessly burdened. We decline to prolong the inevitable recognition that there is no "actual innocence" exception to the one-year statute of limitation for filing an original petition for habeas corpus relief.

Accordingly,[ 20 ] we REVERSE the judgment of the district court and REMAND with instructions to DISMISS the habeas petition as untimely."

However, it appears the Ninth Circuit framed its opinion in such a way as to give note to the US S Ct that resolution of this issue is of paramount importance.

Hopefully this petitioner will seek Supreme Court review and get this issue settled once and for all.

Good luck to you Richard.


Saturday, July 3, 2010

EQUITABLE TOLLING is real now for state applicants seeking federal relief.

Recently the Supreme Court issued a nasty opinion against states seeking dismissal of "untimely" federal habeas corpus petitions.

In HOLLAND v. FLORIDA, No. 09-5327. Argued March 1, 2010--Decided June 14, 2010, the Court held that a state petitioner seeking federal habeas corpus relief under 28 USC 2254 is entitled to equitable tolling if he satisfies two criteria: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way" and prevented timely filing.

The Holland Court explained several prior Supreme Court cases for support of their holding, citing the following: Pace v. DiGuglielmo, 544 U. S. 408, 418. Such "extraordinary circumstances" are not limited to those that satisfy the Eleventh Circuit's test. Courts must often "exercise [their] equity powers ... on a case-by-case basis," Baggett v. Bullitt, 377 U. S. 360, 375, demonstrating "flexibility" and avoiding "mechanical rules," Holmberg v. Armbrecht, 327 U. S. 392, 396, in order to "relieve hardships ... aris[ing] from a hard and fast adherence" to more absolute legal rules, Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U. S. 238, 248. The Court's cases recognize that equity courts can and do draw upon decisions made in other similar cases for guidance, exercising judgment in light of precedent, but with awareness of the fact that specific circumstances, often hard to predict, could warrant special treatment in an appropriate case.

Many state and federal habeas corpus petitioners face an uphill battle when reseraching and preparing their petitions. Most are pro-se and done wthout the benefit of counsel. Reliance is placed on prison law clerks and the limited resources available inside. Most often the habeas corpus petitioner was not informed of the timeline necessary to file a timely petition. Most attorneys withdraw from a case when an appeal is complete and at that point the petitioner is flying solo, usually with a blindfold on.

Now those petitioners have a fighting chance to have their issues heard rather than face summary dismissal on untimeliness grounds.

The full opinions is available at

Good luck.


Wednesday, May 26, 2010

Graham v. Florida...LWOP for Juveniles is gone.

With all the hub-bub recently about Graham v. Florida, I thought I should blog it. Spoke with a client today that retained an attorney I work for. Her son is one of the few inmates (7 total per media reports) in Iowa that is affected by the case. It is a very positive outlook for kids that committed crimes before they could really experience life and make adult decisions based on those experiences.

Here is an excerpt from the case:

Petitioner Graham was 16 when he committed armed burglary and another crime. Under a plea agreement, the Florida trial court sen-tenced Graham to probation and withheld adjudication of guilt. Sub-sequently, the trial court found that Graham had violated the termsof his probation by committing additional crimes. The trial court ad-judicated Graham guilty of the earlier charges, revoked his proba-tion, and sentenced him to life in prison for the burglary. Because Florida has abolished its parole system, the life sentence left Graham no possibility of release except executive clemency. He challenged his sentence under the Eighth Amendment’s Cruel and Unusual Pun-ishments Clause, but the State First District Court of Appeal af-firmed.
Held: The Clause does not permit a juvenile offender to be sentenced to life in prison without parole for a nonhomicide crime.
(a) Embodied in the cruel and unusual punishments ban is the “precept . . . that punishment for crime should be graduated and pro-portioned to [the] offense.” Weems v. United States, 217 U. S. 349, 367. The Court’s cases implementing the proportionality standardfall within two general classifications. In cases of the first type, theCourt has considered all the circumstances to determine whether the length of a term-of-years sentence is unconstitutionally excessive fora particular defendant’s crime. The second classification comprisescases in which the Court has applied certain categorical rules againstthe death penalty. In a subset of such cases considering the nature of the offense, the Court has concluded that capital punishment is im-permissible for nonhomicide crimes against individuals. E.g., Ken-nedy v. Louisiana, 554 U. S. ___, ___. In a second subset, cases turn-ing on the offender’s characteristics, the Court has prohibited death for defendants who committed their crimes before age 18, Roper v. Simmons, 543 U. S. 551, or whose intellectual functioning is in a low range, Atkins v. Virginia, 536 U. S. 304. In cases involving categori-cal rules, the Court first considers “objective indicia of society’s stan-dards, as expressed in legislative enactments and state practice” to determine whether there is a national consensus against the sentenc-ing practice at issue. Roper, supra, at 563. Next, looking to “thestandards elaborated by controlling precedents and by the Court’sown understanding and interpretation of the Eighth Amendment’s text, history, meaning, and purpose,” Kennedy, supra, at ___, the Court determines in the exercise of its own independent judgment whether the punishment in question violates the Constitution, Roper, supra, at 564. Because this case implicates a particular type of sen-tence as it applies to an entire class of offenders who have committeda range of crimes, the appropriate analysis is the categorical ap-proach used in Atkins, Roper, and Kennedy.
(b) Application of the foregoing approach convinces the Court thatthe sentencing practice at issue is unconstitutional.

The basic tenet of this case is that if the defendant is under 18 years of age a sentence of more than fifty years (in most jurisdictions) cannot be applied. The sentence must also be paroleable in some fashion.

The nature of the issue is one of Cruel and Unusual punishment which is prohibited by the Eighth Amendment.

Good news for juvenile offenders. A thumbs up to the US S Ct for this one.

The bad part of this decision is that alot of families on both sides will be going through the same emotional breakdowns that came with the guilty pleas and trials that convicted their children. It is hard for those that lost loved ones to the crimes as well as those whose loved ones are incarcerated without hope of release. Now that the light of hope shines, those emotions will flare again.

To all of you who experience it, just take it one step at a time.

To those of you who may have a loved one affected by the decision, feel free to drop me an email for referral to a very good PCR attorney who can assist with motioning the court for relief.

C. Smith-LMC

Tuesday, May 25, 2010

What is Post-Conviction Relief (PCR)?

Post-Conviction Relief, or PCR for short, is all of the legal actions taken once a verdict (finding of guilt) and judgment (sentence) is entered. It can range from post-trial motions, a direct appeal, and habeas corpus.

Iowa law provides several avenues for relief. The predominant state is Iowa Code section 822. The relevant sections can be found by entering 822 at this link:

The basic provisions mandate that a convicted defendant has three years from the date his convictionis final (by judgment or direct appeal) to file a PCR application challening a sentence and conviction on the grounds it was illegally entered or is unconstitutional.

A standard form is available for preparing the application and is available from

However, preparing and litigating a proper PCR is not as easy as filling in the blanks and filing the form. Perhaps the most important aspect of a proper PCR action is identifying the issues at hand, gleaning the facts from the trial record and extrinsic sources, and putting them together with the right post-conviction cases in your arguments.

If you are intending on filing a PCR action your best bet is to retain an attorney. But don't just start calling lawyers from the phonebook. Look online at recent cases and call the names you see and read the most as PCR counsel. These are the attorneys that are going to get you the best relief possible. They are experienced at the work and will put your interests at heart.

If you need assistance in locating a good PCR attorney, I can refer you to some that I know will do the work and give you the best product for your dollars.

C. Smith-LMC

Iowa Post Conviction...the first steps

This is my first blog entry on Iowa Post Conviction law. I hope that all who visit this blog will find something useful.

I have written a comprehensive manual on Iowa Post-Conviction Relief that can be reviewed and purchased at I wrote the book for two reasons. First, I work for Iowa attorneys that handle post-conviction cases, and the law in Iowa can be a jumbled mess of confusion. No one has ever penned a good source for Iowa PCR law. Second, alot of the attorneys who handle Iowa PCR actions seem to take the wrong steps or simply lay on a case and let it fester. Those types of actions simply cannot endeavor to improve the criminal law system.

I needed a good source to share with Iowans on the ins and outs of Iowa PCR law. The result of my work is the book on my website.

I trust that those that need it will find it and help all of us work toward a better future in Iowa PCR law, and positive outcomes to the thousands of PCR actions filed each year in Iowa.

If you have any questions or comments my direct email is

Best of luck to all of you.

C. Smith-LMC