Private Hotel Searches Of Guest’s Room, Seizing A Guest’s Possessions And Turning Them Over To The Police Is Usually Illegal

The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ....” U.S. Const. amend. IV. A person may have a legitimate expectation of privacy in places other than his home. No less than a tenant of a house, or the occupant of a room in a boarding house, McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153, a guest in a hotel room is entitled to constitutional protection against unreasonable searches and seizures. Stoner v. California, 376 U.S. 483, 490, 84 S.Ct. 889, 893 (1964); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948).

Since the Fourth Amendment protects persons, not places, its protections follow wherever a person has a legitimate expectation of privacy. Minnesota v. Olson, 495 U.S. 91, 96 & n. 5, 110 S.Ct. 1684, 1688 & n. 5, 109 L.Ed.2d 85 (1990); Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). In Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979) the Court noted that “luggage is a common repository for one's personal effects, and therefore is inevitably associated with the expectation of privacy.” Sanders, 442 U.S. at 762, 99 S.Ct. at 2592, 61 L.Ed.2d at 244.

Although the Fourth Amendment limits searches conducted by the government, and not those conducted by a private party, if the private party acts as an “instrument or agent” of the government, the search is a governmental search and is protected by the Warrant Clause. See Walter v. United States, 447 U.S. 649, 656, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980); United States v. Young, 153 F.3d 1079, 1080 (9th Cir.1998).

A private search triggers the application of the Fourth Amendment if federal agents instigate, orchestrate, encourage or exceed the scope of the private search. See United States v. Souza, 223 F.3d 1197, 1201 -1202 (10th Cir.2000). A defendant challenging a search conducted by a private party bears the burden of showing the search was governmental action. United States v. Cleaveland, 38 F.3d 1092, 1093 (9th Cir.1995); United States v. Reed, 15 F.3d 928, 931 (9th Cir.1994).

Whether a search is governmental or private depends on: (1) whether the government knew of and acquiesced in the intrusive conduct; and (2) whether the party performing the search intended to assist law enforcement efforts or further the party's own ends. See Young, 153 F.3d at 1080; United States v. Cleaveland, 38 F.3d 1092, 1093 (9th Cir.1995); United States v. Reed, 15 F.3d 928, 931 (9th Cir.1994); United States v. Walther, 652 F.2d 788, 792 (9th Cir.1981). A search is only private if the government is not involved either directly as a participant or indirectly as an encourager. United States v. Gumerlock, 590 F.2d 794, 800 (9th Cir.1979).

Update From The Cultural War's Frontlines

On Friday Judge Michael Mosman (D. OR) withdrew his ill advised December 2007 stay that had prevented Oregon's domestic partnership law from going into effect. Those who oppose domestic partnerships and same sex marriages worst fears may soon be realized. On the same day a New York state appeals court ruled that the state must legally recognize valid out-of-state same sex marriages.

Belarus Editor Jailed For Islam Cartoon

According to the AP, a Belarus court sentenced a newspaper editor last Friday to three years in prison for reprinting a caricature of the Prophet Muhammad that sparked worldwide riots when it was initially published in a Danish newspaper. The Minsk City Court imposed its sentence after a closed-door trial.

President Alexander Lukashenko ordered the small-circulation Zhoda newspaper shut in February 2006 when Alexander Sdvizhkov, the former deputy editor, published the caricatures which had originally appeared in the Danish newspaper Jyllands-Posten. Calling the publication of the cartoons "a provocation against the state," this past November President Lukashenko ordered Sdvizhkov's arrest on charges that he was "inciting religious hatred."

The President's action and the court's sycophantic secret trial and sentence makes little sense since the ex-Soviet republic of Belarus is overwhelmingly Orthodox Christian; less than 1 percent of the country's 10 million is Muslim. There is no friction between Russians and Muslims. Even Belarusian Islamic leader Ismail Voronovich called the sentence excessively harsh.

Many contend the real reason that Sdvizhkov was charged and convicted of this "crime" was that he continued to speak out against the dictatorial President Lukashenko, so Lukashenko dreamed up an excuse to imprison him.

Inmate Transfers Under Prison Transfer Treaties

Under U.S. law (18 U.S.C. §§ 4100-4115) foreign nationals convicted of a crime in the U. S., and U. S. citizens or nationals convicted of a crime in a foreign country, may apply for a prisoner treaty transfer to their home country if a treaty providing for such transfer is in force between the U. S. and the foreign country involved.

The U. S. has 12 bilateral prisoner transfer treaties in force in the following countries: Bolivia, Canada, France, Hong Kong S.A.R., Marshall Islands, Mexico, Micronesia, Palau, Panama, Peru, Thailand and Turkey. In addition, the U. S. is a party to two multilateral prisoner transfer treaties, the Council of Europe Convention on the Transfer of Sentenced Persons (sometimes called the "COE Convention" or "Strasbourg Convention" after the city in which it was signed) and the Organization of American States Treaty (called the "OAS Treaty").

The U. S. has enacted legislation implementing all prisoner transfer treaties. See 18 USC §§ 4100 et seq. See also 28 CFR 2.62. Most prisoner treaty transfers between the U. S. and a foreign country involve Mexican and Canadian offenders who are incarcerated under federal and state statutes. Mexican and Canadian prisoners make up, by far, the largest segment of foreign inmates incarcerated in the U. S.

The decision to transfer or receive a prisoner under the prisoner treaty transfer system is a completely discretionary decision to be made by each country. The consent of the U.S. Government, the foreign government and the prisoner is required for each prisoner transfer. If the prisoner was convicted of a crime by a state in the U. S., and is serving a sentence in a state facility, consent of the state is also required.

Exodus 21:23–27

This week the United States Supreme Court granted certiorari in Kennedy v. Louisiana (07-343), a case in which the Court will decide whether our evolving standards of justice and decency requires the Court to find that the death sentence constitutes cruel and unusual punishment when it is imposed upon a defendant for a crime in which the victim was not killed.

Although rare today, until the late mid-20th century several states, particularly those in the deep South, provided for the death penalty in cases other than murder. The most typical situation was when the charge was aggravated rape and the defendant was a black man and the victim was a white woman.

Patrick Kennedy was sentenced to death in Louisiana for raping a minor. The Louisiana Supreme Court upheld the death sentence. Although the Court’s conservatives still firmly support the death penalty, and the facts of the crime are aggravated, the death penalty appears to be on its final legs in the Western World and this should be a win for the defense as the liberal wing of the Court is likely to be joined by religious jurists, who will give more than lip service to the biblical belief in “an eye for an eye," Exodus 21:23-27, and hold that death is only an appropriate sanction when death is the result.

C'mon Judge Mosman, This Is A State Issue And Not A Federal Case

United States District Judge Michael W. Mosman (D. OR) has issued an order placing on hold an Oregon domestic partnership law set to take effect Jan. 1, 2008. Although the law would not allow same sex marriages, the Oregon law would give important spousal rights to same-sex couples such as inheritance rights, child-rearing and custody rights, the right to joint state tax filings, joint health, auto and homeowners insurance policy rightss, and visitation rights at hospitals, among others.

The law does not purport or attempt to affect any federal benefits for married couples, like Social Security and joint filing of federal tax returns. The Oregon Domestic Partnership law solely affects state rights.

After the Oregon Legislature approved the domestic partnership law, gay rights opponents launched an effort to collect enough signatures to suspend the law and place it on the ballot for a statewide vote. Opponents of the law asked the federal courts to intercede after the Oregon secretary of state's office ruled that the effort to block the law via referendum had failed to collect enough valid signatures to be placed on the statewide ballot.

The state's largest gay rights group, Basic Rights Oregon, criticized the judge's decision. Both morally and legally they have a valid point. The domestic partnership law does not discriminate; it does not deprive any citizen of the equal protection of the law; and whether a state law was validly enacted or not is a state’s right issue.

Rule 5

Rule 5 requires government agents to promptly bring an arrestee before a federal magistrate in the district of arrest. Rule 5 was meant to put a stop to coercive police third degree practices, see United States v. McNabb, 318 U.S. at 344, and secret police interrogations. Upshaw v. United States, 335 U.S. 410, 412 (1948). Yet it is becoming more common that arrestees are induced to cooperate with government agents and waive their rights under Rule 5.

The Rule 5 waiver scenario begins when case agents think an arrestee has usable information. Before the Sixth Amendment right to counsel attaches the case agent has the arrestee go "operational" as an uncharged informant. The operational period can last a few hours, a few days or even a few months.

The purpose for which a person is arrested does not alter the fact that when one is arrested a seizure subject to constitutional scrutiny has taken place. Cupp v. Murphy, 412 U.S. 291, 294, (1973); Davis v. Mississippi, 394 U.S. 721, 726-27, (1969); Terry v. Ohio, 392 U.S. 1, 10 (1968). The essential element is the physical restraint placed upon the person, not the purpose behind the restraint. Bacon v. United States, 449 F.2d 933, 942 (9th Cir. 1971). An arresting officer's determination of probable cause justifies a brief period of detention to take the executive steps incident to arrest. Gerstein v. Pugh, 420 U.S. 103 (1975). For continued detention a magistrate must make a prompt determination of probable cause. County of Riverside v. McLaughlin, 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991).

The Sixth Amendment guarantees that in all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel. Gideon v. Wainwright, 372 U.S. 335 (1963). The right to counsel is vital to the fair administration of our adversary system of criminal justice. Brewer v. Williams, 430 U.S. 387, 389 (1977); quoting Kirby v. Illinois, 406 U.S. 682, 689 (1972). The Sixth Amendment right to counsel does not attach until the initiation of adversarial proceedings against the defendant. Michigan v. Jackso , 475 U.S. 625, 629 (196). The arraignment signals the initiation of adversary judicial proceedings and the attachment of the Sixth Amendment. United States v. Gouveia, 467 U.S. 180, 187 (1984).

The traditional remedy for a Rule 5 violation is the suppression of any confession obtained during any unnecessarily long period of pre-arraignment delay. Mallory v. United States, 354 U.S. 449 (1957); McNabb v. United States, supra. Suppression however cannot redress the constitutional violations that occur when the government disregards its obligations under Rule 5 nor will it deter the police from continued use of this tactic. The benefit the government obtains is not just evidence needed to convict the defendant; the bigger prize is the chance to obtain evidence needed to identify and convict the defendant's coconspirators.

The Supreme Court first used the label supervisory power in McNabb v. United States, 318 U.S. at 341, to describe its authority to formulate procedural rules in its administration of criminal justice. The supervisory power doctrine is premised on the inherent ability of the federal courts to formulate procedural rules ... to supervise the administration of justice. United States v. Larrazolo, 869 F.2d 1354, 1358 (9th Cir.1989). Case law supports dismissal of an indictment as an appropriate sanction for an egregious Rule 5 violation. See United States v. Osunde, 638 F.Supp 171. 176-77 (ND CA 1986). See also United States v. Jernigan, 582 F.2d 1211 (9th Cir.1978).

The government justifies this practice by asserting that it is giving the arrestee the opportunity to qualify for cooperation and a 5K1.1 downward departure motion at sentencing. Although delay in presenting an arrestee before a magistrate was rejected over half a century ago the disregard of Rule 5 in this type of situation usually goes unchallenged. The draconian sentences most drug defendants face is often reason enough. However, this practice is an attack on the role of defense counsel. Plea negotiations are a core defense function. United States v. Lopez, 4 F.3d 1455, 1462 (9th Cir.1993).