Constitutionality of Home Search in Question

On November 20, 2020, the U.S. Supreme Court in the case of CANIGLIA, EDWARD A. vs. STROM, ROBERT F., ET AL. (Case Number 20 -157), granted the Petition for a Writ of Certiorari, which is the procedure in which the Supreme Court is asked by a litigant who is challenging a case (akin to an “appeal”) to review the merits of a lower Court’s Decision.

The underlying case is worthy of note in that the litigant, who is entitled Petitioner, Edward Caniglia, sought to set aside the Decision of the First Circuit of the U.S. Court of Appeals, Caniglia v. Strom, 953 F.3d 112 (1st Cir. 2020), which Court held against him and in favor of law enforcement. The facts of the 2015 case dealt with Caniglia, who was 68 years old with no criminal history and no record of domestic violence; however, he got into an argument with his wife with whom he was married for 22 years and, when the argument escalated, he retrieved an unloaded gun from their residence, and said, “Why don’t you just shoot me and get me out of my misery.” However, the unloaded gun was laid on the table. As might be expected, his wife left their home [and went to a nearby motel]; the next day, she contacted the local police because she told them she was unable to reach her husband when she called.

When the police arrived to perform their “wellness check,” Caniglia told them he “couldn’t take it anymore,” but said “he would never commit suicide.” Shortly thereafter, Mrs. Caniglia entered the home. The officers claimed they had a concern and, therefore, a risk Caniglia would harm himself. After a discussion with he and his wife, Caniglia agreed to be evaluated; then, he was taken by the police to the hospital, where he was seen by a nurse and a social worker. However, Caniglia was discharged the same day, being billed about $1000 for the temporary health services. As part of the police contact, and allegedly having falsely representing to the police her husband had consented, Caniglia’s wife led them to the part of their home where they took possession of his other weapon and the particular gun Caniglia had previously laid on the table.

Thereafter, Caniglia filed a lawsuit in in the U.S. District Court, Caniglia v. Strom,  396 F. Supp. 3d 227 (D.R.I. 2019), in which he alleged the law enforcement officers violated his Constitutional guarantees under Section 1983 of the Civil Rights Act. Essentially, he claimed the police violated the Second and Fourth Amendment, along with the Fourteenth Amendment’s Due Process and Equal Protection Clauses of the U.S. Constitution. In a truly mixed and complex Decision, Caniglia lost on procedural grounds and without a trial on the merits; that Decision was appealed to the First Circuit of the U.S. Court of Appeals, which on March 13, 2020, affirmed the  U.S. District Court’s Decision. It is the ruling of the U.S. Court of Appeals that was then appealed by Caniglia’s attorneys who thereafter filed a Writ to the U.S. Supreme Court, as stated at the outset of this Blog.

Under the Fourth Amendment of the U.S. Constitution, we are guaranteed “to be secure ….. against unreasonable searches and seizures,” unless there is a valid Search Warrant or probable cause.  The concept of probable cause has a long history and is one heavily litigated by criminal defense lawyers who uniformly claim it requires sufficient proof of a reasonable basis to believe a crime may have been committed or there is evidence of a crime present in the place to be searched. The police had asserted their entry and seizure of the two weapons was justified under their “community caretaking” functions.

Most importantly, the Courts have been deeply divided on the definition and what constitutes  the duties and responsibilities of law enforcement to preserve and protect community safety. The U.S. Supreme Court granted the Petition for a Writ of Certiorari because the “community caretaking” exception should be deemed an anomaly to, and a very narrow deviation from, the Fourth Amendment. Therefore, this concept needed to be clarified if law enforcement were to use it, without a warrant, to justify searches that otherwise might violate the sanctity of our homes and undermine the dignity and respect of human life. In granting the Petition, the U.S. Supreme Court stated, “it is the role of the courts—not the police—to decide whether and when an intrusion into the home is justified. ” The Court further elaborated by stating:

The expansion of an amorphous exception—which, according to the First Circuit, can cover teenage parties, wellness checks, and anything else an officer deems “reasonable” in the name of community care—into that most private of spaces authorizes exactly those intrusions the Founders   most feared. And the entrenched split of authority leaves officers without much-needed guidance about the scope of their authority—and citizens without much-needed confidence in the supposed sanctity of their homes” (emphasis added).

The U.S. Supreme Court has accepted this significant criminal case. The Court will eventually put the matter on their calendar to hear arguments and later issue a Decision.

Unanimous Jury Verdict is Required in Serious Crimes

Today, in the case of RAMOS vs LOUISIANA, April 20, 2020 (No. 18-5924), the U.S. Supreme Court ruled a unanimous jury verdict  is required in cases involving serious crimes. It held the Sixth Amendment of the U.S. Constitution, which guarantees the right to a jury trial, also requires the verdict in serious crimes to be unanimous. Since 1968, the 6th Amendment has been applied against states under the 14th Amendment of the Constitution. Duncan v. Louisiana, 391 U.S. 145 (1968).

Up to this point, a single juror’s vote to acquit a defendant was enough to prevent a conviction in 48 States and the federal courts. The state of Oregon now remains the only state that permits a non unanimous verdict in the case of a serious offense; this distinction exists because the right to a jury trial is inapplicable to “petty offenses.

The Court addressed the historical significance by declaring: “The requirement of juror unanimity emerged in 14th-century England and was soon accepted as a vital right  protected by the common law.” It further reasoned: ” So if the Sixth Amendment’s right to a jury trial requires a unanimous verdict to support a conviction in federal court, it requires no less in state court.”

The result of the Court’s decision is that defendants and prisoners in Louisiana and Oregon, the only two states in recent years that have allowed such verdicts, will have their cases overturned claiming their verdicts are now void.

Serious Ongoing Concerns re: Hacking on the Internet

Hackers are highly motivated to obtain and then sell &/or use the information they obtain from illegal means of accessing the online files and records we have for illegal gain.  As such, there are serious ongoing hacking concerns each of us must be vigilant accessing the internet.

In a most recent newspaper account, there was a report that over 10 million customers of MGM Resorts international had their records accessed because MGM was hacked; it said someone had gained unauthorized access to the company’s “cloud” server. [The “cloud” being something everyone speaks highly about since businesses maintain their data and information on the internet and not on their premises].

It has been reported that Yahoo, owned by Verizon, allegedly has had  the largest data breach in U.S. history. Others are Capitol One [July, 2019: 100 million said to be 30% of the population]; Marriott [ 2018 500 million];  Equifax one of the three largest credit bureaus[ 2017 146 million accounts (names, birth dates, social security numbers, addresses and some driver’s license numbers + 209,000 U.S. credit card numbers were exposed).  2018,(they found an additional 2.4 million U.S. consumers’ names and partial driver’s license information were stolen)]. FEMA [2019 the Federal Emergency Management Agency announced about 2.5 million disaster victims] and, just one other familiar business is Facebook [2019 540 million records; they admitted it has not properly secured passwords].

Also, reported were other familiar companies with various types of content hacked, such as INSTAGRAM, EVITE, SPRINT, STATE FARM, CHOICE HOTELS, MOVIE PASS; DOOR DASH, ADOBE, DISNEY Streaming Services, MACY’S E-Commerce site, T-MOBILE, and ZYNGA are some of those identified via information and  data protection services.

Clearly, security issues on the internet can be compromised. 

Everyone has to be proactive, because  the question that is being asked is “not” who is next, but WHEN will be the next hacking!

 

SECRETLY RECORDED CONVERSATIONS ADMISSIBLE IN CRIMINAL CASES

On December 5, 2019, in a unanimous ruling, the California Supreme Court in the case of People vs. Guzman, declared prosecutors can use secretly recorded conversations and they are, therefore, admissible in criminal cases. This decision does not change the illegal status of secretly recorded conversations that are inadmissible in civil cases. Pursuant to Penal Code section 632, it is illegal to secretly record a private conversation without the express consent of the other person.

The California Supreme Court followed a line of cases that extended the principles set forth in the ballot measure entitled Proposition 8, passed by California voters in 1992, referred to as Marsy’s Law or the Victims’ Bill of Rights Act, which among other things, sought to allow all relevant evidence in a case to be admitted into evidence in a criminal preliminary hearing and criminal trial. In reaching its conclusion, the Court rejected the argument by the defense that such a ruling would violate the defendant’s right to privacy.

Restrictions on State Agencies From Utilizing Convictions and False Statements

Effective July 1, 2020, AB 2138 becomes operative as law in California (approved and signed by the Governor 9/30/18), as follows:

Under current law, the licensing and regulation of various professionals and occupations fall within the Department of Consumer Affairs. These state agencies are empowered to take disciplinary action against a licensee, including to deny an applicant a license, or suspend and/or revoke an existing license or on various specified grounds, including but not limited to one having been convicted of a crime. However, they cannot take any such action in the case of a felony the defendant has obtained a certificate of rehabilitation, and/or the person has been convicted of a misdemeanor if (s)he has met the applicable agency requirements of rehabilitation.

In addition, each agency has been mandated to develop objective criteria to consider regarding a denial, suspension, or revocation of a license to determine whether a crime is substantially related to the qualifications, functions, or duties of the business or profession as well as the criteria to evaluate the rehabilitation of any such individual or business.

The above referenced new law places restrictions on a State Agency in denying, suspending or revoking a license to those cases in which the criminal conviction took place within the preceding seven (7) years from the date of application. Moreover, an individual cannot be denied a license based upon the underlying acts surrounding the conviction if the conviction was dismissed or expunged; the individual has provided evidence of rehabilitation; the person was granted a pardon or clemency; or if an arrest resulted in a disposition other than a conviction.

Current law gives a State Agency the authority to deny a license on the grounds that an applicant knowingly made a false statement of fact that is required to be revealed in the application for a license. However, the new law prohibits an agency from denying a license because of false statements made in an application solely on the failure to disclose a fact unless the disclosure of the fact itself would have been cause for denial of the license.

Some have opined this law should have been enacted long ago; and, it should have been made effective July 1, 2019 rather than 2020.

Important Choices To Preserve Humanity

President Harry Truman, on April 11, 1952, signed into law a bill that proclaimed the National Day of Prayer. Thereafter in 1988, President Ronald Reagan amended the law designating the first Thursday of May each year as the National Day of Prayer. While it is not a public holiday, there are countless prayer gatherings across the United States, many of which are non-denominational.  As we all know, these are troubling times when we read about or view news accounts of horrific crimes and mass killings, hate mongers, widespread and highly polarized dissension, along with an increasing number of individuals who can be classified as morally bankrupt and/or lawless, lacking integrity, respect and appreciation of others. The new reality has brought forward the adage (click this link), “If we see something, say something.

Nonetheless, all of us need to underscore the world is a magnificent place and people are basically good, even though there are exceptions which are often characterized as the new norm. Aside from what solid values, positive attitudes as well as divergent ideas, opinions and religious beliefs can bring to humanity, we need to have healthy relationships and strong support systems. We can make important choices to preserve humanity in today’s world,  and make all of our lives better.

Let us start by smiling (click this link), as when it comes from the heart, it can be priceless.  And, if you are not used to or feel comfortable smiling, try to think of a good reason to do so in a genuine way. The social value of a smile is that it shows we are likeable, happy and content. A smile is our gift to others, but most importantly (click this link), smiles are infectious for those in our surrounding to feel important, and appreciated. In addition, smiling can improve our own mood and, therefore, increase our positive thoughts and feelings.

Taking this one step further, we have all heard that “laughter is the best medicine.” And, studies have shown (click this link to read) how laughter can be powerful, referencing among other consequences, happier individuals live longer. In contrast to a “toxic” life filled with, among other emotions,  stress from negativity, exposure to violence, and/or loneliness,  positive thinking can produce a healthier and happier life.

Rabbi Dorsch of the Tifereth Israel Synagogue in San Diego was interviewed by KGTV Channel 10 News on Sunday, April 28, 2019 in response to the horrific killing at a local synagogue was quoted saying (click this link), “We have to give one another hugs and say we are not going to let this destroy us.” There has been a great deal written, considered highly effective and adopted by therapists that hugs have a synergistic effect (the whole is greater than the parts, or 2+2 =5 or 6), including the famous author and psychotherapist Virginia Satir, who is is a pioneer in the messaging value of hugs in family therapy and quoted in “10 Reasons Why We Need at Least 8 Hugs a Day” (click this link).

In conclusion, all of us can provide to others, and realize for ourselves, happiness, along with innumerable social and health benefits from a smile; and smiling can turn into laughter, which in and of itself is worth celebrating. Let’s not be part of the problem, but part of the solution, as we take each step today and forever. We can indeed make important choices in today’s world to preserve humanity, one person and one day at a time.

Exceptional Attorney and Essential

There may have been a point when one distinguished between exceptional and essential. Many individuals may have been content in utilizing a physician, dentist, accountant, and/or an attorney, perhaps as long as they were not inferior. However, is it any different in reading or watching the news, utilizing a barber or beautician, going out to dinner, or watching a movie? When the emphasis is on the desired result, it becomes essential to want a higher standard, receive value and choose exceptional as the significant keyword. In this regard, therefore, the number one criterion in selecting the people we retain (and the things we do), becomes very important; doing anything else, such as what may only be “o.k.” becomes tantamount to accepting mediocre and, at times and at best, this is superficial, inadequate, deficient and, even worse, useless and a waste of time.

Most of us want more, with the emphasis on an effective outcome. Yet, some will inevitably place a greater importance on the cost rather than the potential adverse outcome. In other words, they do not automatically ask “what do I have to lose, such as the priceless time I have, my professional career, credibility and/or personal integrity?” Therefore, with all of this in mind, many do not want “just o.k.” and, instead, focus on exceptional as the measurement for the individual with whom they choose to employ and, often, on the things they do with the time they have.

In selecting a lawyer, the same criteria can be critical. The website Avvo provides a profile on all of the attorneys in the United States. Then, one has the opportunity to decide whether (s)he wants an attorney who is exceptional, as well as knowledgeable, skilled and highly experienced, particularly with a proven and written record of ongoing favorable results. For example, it might not at the outset seem as important in choosing a contractor, until one first looks at testimonials to determine whether there are others who have spent their savings or mortgaged their home, only to then experience their contractor departed from the plans and specifications, delayed at great length on the work and/or did not actually complete the project.

In the practice of law, it can be critical the attorney does more rather than less. It is essential in order to diminish the risk or not gamble on the outcome. Hence, in choosing a lawyer, it is recommended you evaluate the advantages of a comprehensive scope in the work to be performed involving, among other things, indispensable steps, such as a risk assessment; an exhaustive factual and legal analysis; focused research; essential strategizing; and utilizing credible experts to evaluate and provide an opinion integrated into an optimum forensic report concerning such issues, including those directly or indirectly, related to the standard of care, prudence, judgment, lawfulness, moral turpitude, competency, etc.

In summary, what some may have previously thought were unnecessary because they did not think they  required selecting an attorney who is exceptional, now are considering the above issues as very important criteria and, therefore, essential characteristics in choosing the best lawyer (and the things they do).

Canadian Government Legalizes Marijuana

On October 17, 2018, the Federal Government of Canada legalized cannabis. At best, this is a national experiment and controversial legislation. Clearly, the tax profits available to the Canadian government are enormous,  and the vast numbers of businesses devoted to the production, distribution and sales of marijuana seem boundless.  And, the question of health to adults and youth using cannabis continues to be in dispute.

The proliferation of businesses engaged in the promotion and marketing are restricted from using techniques and procedures to attract younger demographics, however, opponents contend this is a slippery slope in which  informational materials and brand marketing are sending a message to Canadians that marijuana is acceptable, perhaps confusing those who might otherwise have decided to not smoke cigarettes. And, there still remains doubt as to whether and to what extent one’s ability to safely operate equipment, machinery, and automobiles may be impaired.

While there are unanswered questions regarding the short and long term consequences of using marijuana,  many in the health profession continue to develop campaigns to alert the public as to the health and other risks associated with cannabis. Undoubtedly, this is a topic under consideration now and in the future by the representatives in the United States Government, and other countries.

SUPERIOR ADVOCACY

How does one define the role of a lawyer? What are your expectations? Do you want an average lawyer or a truly great attorney? Here is a list of questions you might want to ask yourself and the lawyer with whom you consult:

  1. Do you want a lawyer who is pro-active, meticulous and believes in YOU?
  2. Are you intent on seeking the advice of a highly regarded attorney with boundless experience; superior knowledge and skills; is smart and knows how to persuasively articulate the case on your behalf?
  3. Do you place more value on the fees and cost of the lawyer, or are the primary factors both the direct impact of the case and the unintended consequences, now and in the future?
  4. Using objective criteria, one can read about the rating for the attorney; client reviews; attorney endorsements; full resume, including the nature, frequency and number of total and recent awards.
  5. Do you have the utmost trust and confidence in the lawyer with whom you consult, seek legal advice and representation? One of the ways to determine the character, expertise, history, and winning results can be evaluated by viewing the description and details at, and click the following link as it regards the author, on www.Avvo.com, which is a national legal directory that provides profiles of nearly every lawyer in the United States.
  6. Does your selection of an attorney also encompass whether the lawyer has respect for YOU as a valued individual, instead of  you just being another “case?”
  7. Does the lawyer have a genuine care and appreciation of YOU and your legal issue(s)?
  8. Do you want to retain a lawyer who works long and hard to solely refute, dispel or deny wrongdoing?
  9. Would you prefer a lawyer who not only does the obvious by presenting a thorough defense, but also pursues a comprehensive “offense,” which can involve a painstaking effort to marginalize the charges, allegations, as well as the inferences and conclusions?
  10. Is the attorney mindful of YOUR best interests?
  11. Despite the huge responsibilities a lawyer has to protect your rights and advance your interests, do you want an attorney who not only creates an action plan for himself/herself, but gives YOU a detailed roadmap and plan of action that focuses on what is best about YOU; your redeeming qualities; and, who involves you as an integral part of the “team,” instead of you not being actively involved?
  12. Do you want a lawyer who takes a huge number of cases (as an assembly line) and, therefore, does less on each one and charges less? On the other hand, many clients’ primary goal is to have a lawyer who has a deep commitment, is hard working, considers the advantage of a thorough investigation, research, analysis, strategizing, and has an online presence establishing their proven record.

In summary, take sufficient quality time to research the lawyer you are considering, focus on the impact the outcome can have on YOU now and in the future, rather than solely upon the costs in retaining an attorney. This situation may be a defining moment in YOUR personal and professional life. Give a great deal of weight to the objective facts set forth in the lawyer’s ratings,  attorney’s integrity,  respect by other lawyers and admiration by the countless past and current clients who have provided consistent testimonials month after month, year after year to document the knowledge, experience, skills, concern, and overwhelming energy, along with documented and proven results. Your family, friends, associates, and particularly YOU deserve superior advocacy.

US Supreme Court Invalidates Federal Ban on Sports Betting

In the May 14, 2018 case of MURPHY. vs. NATIONAL COLLEGIATE ATHLETIC ASSN., the U.S. Supreme Court held the Federal law that barred sports betting was null and void.

Supreme Court Justice Samuel A. Alito Jr. wrote in the majority opinion: the Federal law was a violation of state sovereignty because it “unequivocally dictates what a state legislature may or may not do.” The Decision is consistent with the Tenth Amendment to the U.S. Constitution because the Federal Government only possesses those powers delegated to it by the U.S. Constitution. As such, all remaining powers are reserved for the states or the people.

Consistent with this Decision, it is anticipated that several states will enact legislation to legalizing sports gambling. There are clearly two sides to legal gambling, but more and more of the focus of proponents now include those States who also seek ways to increase their revenues to offset the escalating budgets from year to year.

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