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• ADMINISTRATIVE LAW Income loss no basis for waiver from smoking act Undue financial burden doesn’t justify a waiver from the Nebraska Clean Indoor Air Act’s ban on smoking, the Nebraska Supreme Court held on Feb. 22. Prout v. Nebraska Dep’t of Health and Human Services Regulation and Licensure, No. S-06-764. Will Prout owns Big John’s Billiards Inc. that runs pool halls with bars and delicatessens that allow smoking. The Nebraska Department of Health and Human Services Regulation and Licensure denied Big John’s a waiver under the Nebraska Clean Indoor Air Act to permit smoking in any of the halls. Prout sought a waiver from the act’s requirement on the ground that he would suffer a loss of revenue if smoking were not allowed. The trial court affirmed. The Nebraska Supreme Court affirmed. Neb. Rev. Stat. � 71-5702 states that the purpose of the act is to “protect the public health, comfort, and environment by prohibiting smoking in public places and at public meetings except in designated smoking areas.” A waiver from the act’s requirements may be granted if the department “determines there are compelling reasons to do so and a waiver will not significantly affect the health and comfort of nonsmokers.” However, the act doesn’t cite financial burden as a compelling reason for a waiver. Prout had failed to show that the health and comfort of nonsmokers would not be significantly affected if a waiver were granted.   Full text of the decision • CIVIL RIGHTS Suit over school locker room video cameras OK School officials who oversaw installation of surveillance cameras in student locker rooms can be sued for civil rights violations, the 6th U.S. Circuit Court of Appeals ruled on Feb. 20. Brannum v. Overton County School Board, No. 06-5931. During the summer of 2002, the Overton County, Tenn., school board approved the installation of video surveillance equipment throughout a local middle school to improve school safety. Assistant Principal Robert Jolley oversaw the installation of the cameras in both the boys’ and girls’ locker rooms. Jolley claimed that when he realized the cameras were capturing images of students dressing and undressing he notified the school principal, Melinda Beaty, and suggested that the placement of the cameras be changed. But the cameras were neither removed nor changed throughout the fall semester. In January 2003, a visiting girls’ basketball team noticed the cameras. Thirty-four school students sued Jolley, the principal, the school board members and the company that installed the cameras in a Tennessee federal court. The defendants moved for summary judgment, claiming qualified immunity. The court denied the motion. The 6th Circuit affirmed in part and reversed in part. “Given the universal understanding among middle school age children in this country that a school locker room is a place of heightened privacy, we believe placing cameras in such a way so as to view the children dressing and undressing in a locker room is incongruent to any demonstrated necessity, and wholly disproportionate to the claimed policy goal of assuring increased school security, especially when there is no history of any threat to security in the locker rooms.” The school board members who were not aware of the cameras’ locations are immune from suit, but the various school officials who were directly involved with the decision to install the cameras are not. • CONSTITUTIONAL LAW Immunity for state lab that didn’t reveal results A driving under the influence defendant’s constitutional rights were not violated when a Georgia state crime lab withheld the results of blood-alcohol tests that were favorable to the defense, the 11th U.S. Circuit Court of Appeals held on Feb. 21. Kjellsen v. Mills, No. 07-11918. Richard Kjellsen was arrested in Forsyth County, Ga., for driving under the influence (DUI), driving without a license and driving with a broken headlight. A Georgia Bureau of Investigation crime lab toxicologist performed blood-alcohol level tests, yielding results of 0.10 grams of alcohol per 100 mL. Kjellsen was charged with driving with a blood alcohol concentration of 0.10 or higher in violation of Ga. Code Ann. � 40-6-391(a)(5). He also was charged with violating Ga. Code Ann. � 40-6-391(a)(1), a lesser DUI, which doesn’t require a specific blood-alcohol level but only a showing that a defendant was intoxicated and unfit to drive. Preparing for trial a year later, Kjellsen asked the lab to release the blood samples to the defense expert for independent testing. The lab performed second and third rounds of tests, which yielded readings below 0.10 grams. These results were not released to either the prosecution or defense. At trial, a prosecution witness revealed the crime lab’s additional test results. The trial judge instructed the jury to disregard all testimony as to blood tests. The jury acquitted Kjellsen on the DUI charges but convicted him on the other counts. Kjellsen filed suit in a Georgia federal court, alleging that the crime lab officials had violated his Fourth and Sixth amendment rights by failing to reveal the later test results. He alleged that failure to reveal exculpatory evidence was malicious prosecution. The judge said there was a question of fact as to whether the later test results negated probable cause. Reversing, the 11th Circuit said that blood-alcohol levels in stored blood samples often decrease over time and that “a reasonably prudent person might conclude that the earliest test result was the most accurate.” The court said that probable cause existed at the time of the DUI charges and the later test results did not negate it. Thus, there was no malicious prosecution. The constitutional claims fail because there is no showing that the retest evidence was material to the defense. Kjellsen was unable to show that suppression of the evidence would have led to a different outcome at trial. In the absence of constitutional breaches, the lab officials are entitled to qualified immunity. • CRIMINAL PRACTICE Sex offender law can’t be applied retroactively An Ohio law prohibiting sex offenders from living near schools wasn’t expressly made retroactive by lawmakers, so it doesn’t apply to an offender who bought his home and committed his offense before the law took effect, the Ohio Supreme Court held on Feb. 20. Hyle v. Porter, No. 2008-542. Convicted of sexual offenses in 1995 and 1999, Gerry R. Porter Jr. was a registered sex offender. In 2003, the Ohio Legislature imposed residency restrictions on certain sexual offenders. Ohio Rev. Code Ann. � 2950.031 prohibits anyone convicted of a sexual offense from occupying a residence within 1,000 feet of any school. After the law was passed, Green Township in Hamilton County, Ohio, sought a permanent injunction enjoining Porter from continuing to occupy his Cincinnati residence, which was within 1,000 feet of school premises. Porter had lived in the house since 1991. A trial judge enjoined Porter from occupying his home, and an intermediate appellate court affirmed, holding that the statute could be applied to an offender who bought his home and committed his offense before the law was on the books. Reversing, the Ohio Supreme Court applied a two-part analysis in the case. A law must “clearly proclaim” that it applies retroactively. Otherwise it does not overcome the presumption that it applies only prospectively. If a law expressly applies retroactively, the court then must determine whether lawmakers could pass such a law. The Ohio Constitution says that a retroactive statute may not impair vested substantive rights. Applying the test to the Porter case, the court said that the statute at issue does not contain “a clear declaration” but at best “a suggestion” of retroactivity. “Although we acknowledge that the language of [Section] 2950.031 is ambiguous regarding its prospective or retroactive application, we emphasize that ambiguous language it not sufficient to overcome the presumption of prospective application.” No need for notice for guideline departure Notice is sometimes, but not always, required when a court sua sponte imposes a sentences that departs upward from the Federal Sentencing Guidelines range, the 1st U.S. Circuit Court of Appeals held on Feb. 21. U.S. v. Vega-Santiago, No. 06-1558. A 1st Circuit panel had affirmed the conviction and sentence of Manuel Vega-Santiago in a Puerto Rico federal court for armed carjacking and related weapons crimes. Since his 240-month prison sentence was an upward departure from the sentencing guidelines range of 177 to 190 months, the 1st Circuit granted rehearing en banc to consider the panel’s ruling that a district judge must provide “notice” to litigants before, sua sponte, imposing an above-guidelines sentence. Neither the pre-sentence report nor the government’s prehearing submissions had suggested departure from the guidelines. The 1st Circuit acknowledged Fed. R. Crim. P. 32(h), which stipulates that before a court departs from the range on a ground not identified in the pre-sentence or prehearing submission, it must give the parties “reasonable notice that it is contemplating such a departure.” However, in its ruling, U.S. v. Booker, 543 U.S. 220 (2005), the U.S. Supreme Court had given judges more latitude. The “preferable solution,” the 1st Circuit said, “is . . . not a mechanical rule mandating formal notice in every case where the judge may conceivably vary.” Instead, “when proposing to adopt a variant sentence relying on some ground or factor that would unfairly surprise competent and reasonably prepared counsel, a judge must either provide advance notice or, on request, grant a continuance.” • EVIDENCE Nontestimonial forensic evidence may be OK DNA and latent fingerprint comparison reports prepared by nontestifying experts are not testimonial when the reports are not compared against known samples and do not directly accuse a defendant of a crime, the New York Court of Appeals ruled on Feb. 19 in a case of first impression. People v. Rawlins, No. 6. Michael Rawlins was convicted, after a jury trial, of six counts of third-degree burglary. His arrest stemmed from a 2003 burglary of a flower shop in New York City. During their investigation of this burglary, police lifted five latent fingerprint samples from the cash register and matched them with a prior print sample from Michael Rawlins. Because of the similarity of the flower-shop burglary with four others, police compared fingerprints lifted from those sites with Rawlins’. One officer prepared reports on two of the burglaries, concluding that the lifted prints matched those of Rawlins, and another officer produced a similar report about the other two burglaries. The second officer testified at Rawlins’ trial, but only the report of the first officer was introduced under the business-records exception. Meanwhile, at Dwain Meekins’ trial for sodomy and other crimes, the report of a DNA laboratory’s analysis was entered under the business-records exception and two lab employees not involved in the report’s final review testified. Meekins’ conviction was upheld on appeal. The defendants argued that by admitting the reports, which were testimonial in nature, the courts violated their Sixth Amendment rights. The New York Court of Appeals, the state’s highest court, affirmed. The court said that fingerprint or DNA analysis must be judged on whether a report is prepared “in a manner resembling ex parte examination,” and whether a statement accuses a defendant of criminal wrongdoing. In Rawlins’ case, the fingerprint report did accuse of him of being the perpetrator of all of the burglaries because the officers matched the prints against Rawlins’, but the error in admitting the reports was harmless because the reports were cumulative of other evidence. In Meekins’ case, the DNA test wasn’t testimonial because it didn’t compare his data with any known DNA profiles. Cohabitant can’t consent to a warrantless search A federal district court erred in failing to suppress evidence obtained from a warrantless search because neither the plain-view doctrine nor the voluntary consent to the search of a shared premises by another occupant justified it, the 9th U.S. Circuit Court of Appeals held on Feb. 20. U.S. v. Murphy, No. 06-30582. After observing and apprehending men with materials used to make methamphetamines enter a storage facility, Jackson County, Ore., police officers knocked on the door of a unit the suspects had visited. Stephen Murphy, who lived in a unit at the facility rented by Dennis Roper, answered the door; the officers noticed methamphetamine manufacturing equipment in plain view and arrested Murphy. He refused to consent to a search. The officers performed a protective sweep of the unit. Later, Roper arrived and gave his consent to a search, during which the officers seized evidence of methamphetamine production. Murphy moved to suppress the evidence, challenging both the protective sweep and the subsequent search. An Oregon federal court denied the motion. Reversing in part, the 9th Circuit held that, though the protective sweep was justified, the second search violated Murphy’s Fourth Amendment rights. The court held that the plain-view doctrine did not justify the search because there were no exigent circumstances at the time. In addition, the U.S. Supreme Court in Georgia v. Randolph, 547 U.S. 103 (2006), held that a warrantless entry and search is invalid if one occupant refuses permission to search even though another occupant with authority consents. In this case, Roper’s consent was not sufficient to allow the search over Murphy’s objections. The court said, “[T]he storage units were the closest thing that [Murphy] had to a residence . . . .For the purposes of the Fourth Amendment, this is sufficient to create an expectation of privacy.”

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