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• CONSTITUTIONAL LAW Database probe is proper police search-and-seizure It is not an unreasonable search-and-seizure for police to conduct a National Crime Information Center database search of a car passenger, so long as the search is within the scope of the traffic stop and does not last too long, the New Jersey Supreme Court ruled on Feb. 11. New Jersey v. Sloane, No. A-40-06. Carteret, N.J., police pulled over Sherma Moore because they suspected her license had been suspended. They ran Moore’s information through the National Crime Information Center (NCIC) database before arresting her. Moore’s passenger, Sulaiman Anwar Sloane, gave officers his name, birth date and Social Security number so they could confirm he was a licensed driver and give him the car keys. The NCIC database indicated two outstanding arrest warrants and a parole violation against Sloane. Police arrested him and, in a search incident to that arrest, found crack cocaine in his shoe. A state trial court rejected Sloane’s motion to suppress the cocaine on the ground that the officers did not have a reasonable suspicion to run his name through the NCIC database. An intermediate appellate court reversed. The New Jersey Supreme Court affirmed in part and reversed in part. The court affirmed that Sloane was seized by police, for Fourth Amendment purposes. The court reversed the holding that police could not run Sloane’s name through the database. Since the database comprises public records, Sloane has no reasonable expectation as to the privacy of the information to be found there. Also, so long as the database search is within the scope of a traffic stop and does not unreasonably prolong it, there is no federal or state constitutional violation.   Full text of the decision Moral objection no basis for violation of privacy A Texas law criminalizing the sale of sexual devices violates the 14th Amendment of the U.S. Constitution, the 5th U.S. Circuit Court of Appeals held on Feb. 12. Reliable Consultants Inc. v. Earle, No. 06-51067. Texas Penal Code Ann. � 43.21 prohibits the sale of any device designed for sexual stimulation. Companies who sold or distributed these devices in Texas � Reliable Consultants Inc. (d/b/a Dreamer’s and Le Rouge Boutique) and PHE Inc. (d/b/a Adam & Eve Inc.) � claimed they feared prosecution under the statute and filed a declaratory judgment to challenge its constitutionality and to enjoin enforcement. A Texas federal trial judge dismissed the case, finding that the statute does not violate the 14th Amendment because there is no constitutionally protected right to promote obscene devices. Reversing, the 5th Circuit cited the U.S. Supreme Court’s Lawrence v. Texas, 539 U.S. 558 (2003), which struck down Texas’ sodomy law as a violation of the 14th Amendment. The justices in Lawrence had rejected the state’s claim of public morality as a legitimate government interest that justifies intrusion into private sexual behavior. “Just as in Lawrence, the State here wants to use its laws to enforce a public moral code by restricting private intimate conduct. The case is not about public sex. It is not about controlling commerce in sex. It is about controlling what people do in the privacy of their own homes because the State is morally opposed to a certain type of consensual private intimate conduct.” • CONSUMER PROTECTION FDCA doesn’t pre-empt deceptive marketing suit The Federal Food, Drug, and Cosmetic Act doesn’t pre-empt state lawsuits alleging that grocers violate California state law by selling artificially colored, farm-raised salmon without disclosing that the salmon is colored to make it resemble wild salmon, the California Supreme Court held on Feb. 11. In re Farm Raised Salmon Cases, No. S147171. Consumers in California filed a number of suits against Albertsons Inc., Safeway Inc., Whole Foods Market Inc., The Kroger Co. and Costco Wholesale Co., alleging that, by selling farm-raised salmon that had been colored artificially with chemicals to make it resemble wild salmon and not disclosing the use of the chemicals, the grocers had violated the state Sherman Food, Drug, and Cosmetic Law, Calif. Health & Safety Code � 109875. The grocers jointly demurred, arguing the action was pre-empted by Section 337(a) of the federal Food, Drug, and Cosmetic Act (FDCA). A trial court granted the motion, and an intermediate appellate court affirmed, holding that Section 337(a) precludes private enforcement of the FDCA, that the state law claims were predicated on a violation of the FDCA and that, therefore, Section 337(a) impliedly pre-empts state law claims. Reversing, the California Supreme Court held that the FDCA does not pre-empt state law claims. The court said, “Defendants’ starting assumption is incorrect. Plaintiffs do not seek to enforce the FDCA; rather, their deceptive marketing claims are predicated on violations of obligations imposed by the Sherman Law, something that state law undisputedly allows. That the Sherman Law imposes obligations identical to those imposed by the FDCA . . . does not substantively transform plaintiffs’ action into one seeking to enforce federal law.” • CRIMINAL PRACTICE Identity theft conviction requires knowing theft To get a conviction under the federal aggravated identity theft law, the government must prove a defendant knew the stolen identity belonged to someone else, the U.S. Circuit Court of Appeals for the District of Columbia held on Feb. 15. U.S. v. Villanueva-Sotelo, No. 07-3055. District of Columbia police asked Gustavo Villanueva-Sotelo for identification. He presented a false permanent resident card with his name, photograph and an alien registration number. Villanueva-Sotelo, a Mexican national who had been deported twice as an illegal immigrant, admitted he knew the registration number was fake. The government charged him with unlawful entry of a removed alien, possession of a fraudulent immigration document and aggravated identity theft. In a D.C. federal court, Villanueva-Sotelo pleaded guilty to the first two charges, but sought to dismiss the identity theft charge. The aggravated identity theft law, 18 U.S.C. 1028A(a)(1), imposes two additional years of imprisonment on anyone who, during the commission of an enumerated felony, “knowingly” uses someone else’s I.D. Villanueva-Sotelo said the statute requires proof that he knew the registration number belonged to another person. The trial judge agreed. Affirming, the D.C. Circuit called the aggravated identity theft law ambiguous. Settling the ambiguity in favor of the defendant, the court cast doubt on whether Villanueva-Sotelo’s conduct amounted to theft. “Although the government can prove that the alien registration number displayed on the card belonged to another individual, it concedes � critically for this case � that it lacks any evidence that Villanueva-Sotelo actually knew this,” the court said. “It’s only common sense to conclude that conviction under an identity theft statute requires actual theft.” • JUDGES Judge wasn’t prejudiced by testifying for victim It is not prejudicial for a Florida trial judge to preside at post-conviction proceedings in a death penalty case after testifying in federal court on behalf of the victim, the Florida Supreme Court held on Feb. 14. Doorbal v. Florida, nos. SC05-383 and SC06-1490. Noel Doorbal was sentenced to death for the abduction and attempted murder of Marc Schiller and the abduction and murder of Frank Griga and Krisztina Furton. Doorbal kidnapped and tortured Schiller until he signed over his assets. Doorbal then tried to kill Schiller, but Schiller escaped. In 2003, a Florida state jury convicted Doorbal of the abduction and attempted murder of Schiller, and of the separate abduction and murder of Griga and Furton. The jury sentenced Doorbal to death. Subsequently, the trial judge testified in favor of leniency at the federal Medicare fraud sentencing hearing of Schiller. The judge said that what Schiller went through “should be given some credit, because I don’t think it could have been any worse if he was a prisoner of war.” Arguing the judge was biased, Doorbal sought to disqualify him from post-conviction proceedings. The judge denied the motion. The Florida Supreme Court affirmed, holding that the “facts of this case would lead any reasonable person to conclude that the experience of Schiller was traumatic and not entirely unlike that of a prisoner of war.” Also, the judge’s testimony was largely a recitation of his findings in murder trial sentencing order. • WORKERS’ COMPENSATION Insurer owes duty of coverage in punitives suit Texas public policy allows insurance coverage for punitive damages suits, the Texas Supreme Court ruled on Feb. 15 in answer to a certified question from the 5th U.S. Circuit Court of Appeals. Fairfield Ins. Co. v. Stephens Martin Paving, No. 04-0728. Following Roy Bennett’s death while working for Stephens Martin Paving, the employer’s workers’ compensation insurer, Fairfield Insurance Co., paid benefits to Bennett’s wife and children, who then sued the employer for gross negligence. Having received workers’ compensation benefits, the Bennetts were statutorily barred from seeking actual damages � they sought only punitive damages. Fairfield sued Stephens Martin Paving and the Bennetts in a Texas federal court seeking a declaration that it owed no duty to defend or indemnify the employer in a punitive damages suit. The court ruled that Fairfield’s policy covers punitive damages and that Texas public policy does not prohibit such insurance coverage. Fairfield appealed, and the 5th Circuit certified for the Texas Supreme Court the question of whether such coverage would be against state public policy. The Texas Supreme Court said it isn’t against public policy when it comes to workers’ compensation, but refused to extend the principle without legislative direction. The court said that neither the state code nor the Texas Department of Insurance’s workers’ compensation scheme prohibits recovery for punitive damages in a case of gross negligence.

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