Fourth Circuit clarifies circumstances of joint employment under FLSA

In Schultz v. Capital International Security, Inc, the Fourth Circuit Court of Appeals clarified the circumstances under which an employee is jointly employed by two employers pursuant to the Fair Labor Standards Act ("FLSA"). The court also further elucidated the difference between an independent contractor and an employee for purposes of determining a worker's entitlement to overtime. The district court had entered judgment in favor of the defendants, holding that the plaintiffs were not entitled to overtime because they were independent contractors as opposed to employees, but the Fourth Circuit vacated this judgment following a determination that the defendants were joint employers and that the plaintiffs were their employees for purposes of the FLSA.

In analyzing the issue of whether the plaintiffs were independent contractors or employees, the court noted that the issue is not the degree of control that an alleged employer has over the manner in which the work is performed in comparison to that of another employer. Rather, according to the Fourth Circuit, it is the degree of control that the alleged employer has in comparison to the control exerted by the worker. This analysis goes to the heart of the ultimate question--whether the worker, as a matter of economic reality, is dependent on the business the worker serves or, conversely, whether the worker is in business for himself. Once the court determined that the plaintiffs were employees, it easily determined that the defendants were joint employers on the basis that the plaintiffs performed work that simultaneously benefited both of the defendants.

(contributed by Sandi R. Wilson)

Fourth Circuit remands for a decision on the merits regarding challenge to Virginia's open primary law

In MILLER v. BROWN, the Fourth Circuit considered a district court order dismissing a constitutional challenge to Virginia's open primary law for lack of justiciability. The district court held that Virginia's 11th Senatorial District Republican Committee and its chairman, Larry Miller had no standing to challenge the open primary and that any claimexistingg was not ripe. At base, the GOP does not want the Dems participating in the GOP primary.

The Fourth Circuit disagreed that there was no standing. According to the panel:

Focusing on the plaintiffs' injuries reveals that their alleged constitutional injuries are not conjectural or hypothetical. The participation of Democrats in the plaintiffs' upcoming primary is inevitable. Knowing their upcoming process for selecting a nominee will include Democrats prevents the plaintiffs from formulating a message and selecting the candidates best tailored to their party's interests.

The panel also found that the case was ripe: "The only issue in the case is whether Virginia's open primary law violates the plaintiffs' First Amendment rights to freely associate." The Court rejected a contention that the GOP had to wait until at least twocandidatess had filed for office because there would be "insufficient time to decide the case without disrupting the pending election."

Fourth Circuit vacates another sentence at variance with the Guidelines

In United States v. Curry, Curry was convicted in a jury trial for various fraudulent transactions on e-bay. At base, Curry sold gold coins that he did not have. The district court sentenced Curry to twelve-month terms of incarceration on each count, to be served concurrently and followed by twelve months of home detention and three years of supervised release. This sentence was at variance with the Guidelines and the Government appealed.

The district court departed from the Guidelines and imposed a variance sentence because in its view that Curry did not at the outset intend to defraud the buyers. The Fourth Circuit held that this was an improper basis on which to depart because the district court contradicted the weight of evidence and the verdict. The district court also cited Curry's payment of restitution. Again, the panel held that this was insufficient: "we find that Curry's restitution is by itself insufficient to justify the 70 percent variance at issue" because "Curry did not begin making restitution until the jury convicted him of the charges." Hence, the sentence was vacated.

S.C. Supreme Court strikes statute requiring engineering experts to have a SC license

In Baggerly v. CSX Transportation, the Supreme Court reversed a grant of a directed verdict for CSX. In this case, a train engineer was injured when his train derailed after a street sweeper had jumped the curb and collided with the railroad track. Although the sweeper operator was negligent, the court held that there was enough evidence to show that the negligence of the sweeper operator, combined with CSX's negligence regarding insufficient ballast on the roadbed, to bring about the derailment.

Also important in this opinion is the court's decision regarding an out-of-state expert in engineering who was excluded by the trial court under Pursuant to South Carolina Code Section 40-22-30, because the expert was not a South Carolina licensed professional engineer. This Code section provides:

Practice of engineering means any service or creative work, the adequate performance of which requires engineering education, training, and experience in the application of special knowledge of the mathematical, physical, and engineering sciences to such services or creative work as consultation, investigation, expert technical testimony....

The Supreme Court held that exclusion of the expert would clearly contravene SCRE 702: "Without clear indication from the Legislature that the 2000 amendment was, in fact, intended specifically to limit Rule 702 in this way, we decline to adopt that interpretation."

Of course, there is not doubt that the legislature intended to prohibit out-of-state engineers from offering expert testimony in our courts. The legislature did the same thing with medical experts, but earlier this week the Supreme Court suspended the legislature's effort at redefining the practice of medicine when there was no actual case or controversyy before it.

Carolina Investors case near final payout

From the Greenville News:

The 12,000 people who lost money when Carolina Investors Inc. failed nearly 3-1/2 years ago likely will get one final payout before the books are closed on a saga that erased an estimated $278 million from a life's work for retirement, small businesses and college funds for grandchildren.

At most, however, they will get another half a penny to add to the 18 cents they have received for each dollar they lost when the Pickens-based company ran out of money and abruptly closed its doors.

S.C. Supreme Court delays enforcement of Act requiring physician experts to have a SC license

The Supreme Court has temporarily delayed judicial enforcement of Act 385 of 2006 insofar as the Act requires a physician to obtain a license to practice medicine in South Carolina before offering expert medical testimony in a South Carolina administrative or court proceeding. According to the Court:

the effect of the revised statutes has the potential to substantially impair the orderly administration of justice. Specifically, Act 385 casts serious doubt on a physician's ability to offer testimony regarding the treatment provided to a witness, party litigant, or criminal defendant if the physician, at the time of trial, resides outside of South Carolina. This categorical exclusion overlooks the fact that the physician may have treated the patient in the physician's home jurisdiction, and also that the physician, although at one time licensed and providing treatment to the patient in South Carolina, has relocated out of this state. We believe requiring a treating physician to seek a South Carolina medical license before offering often necessary testimony strains Act 385 far beyond its intended scope.

Bikini murder carries a death sentence

From CNN: A prosecutor said Tuesday he will seek the death penalty for a Tennessee man charged in the slaying of a Clemson University student who was strangled with a bikini top.

DSS fails to follow law in child welfare cases

From the Times and Democrat:

The state Department of Social Services fails to follow state law in child protection cases, according to a state audit released Wednesday.The Legislative Audit Council report says DSS workers aren't following the law requiring reports and visits in cases involving abuse and neglect. More than half of the sample of cases they reviewed showed caseworkers failed to visit once a month. Auditors also found DSS staffers sometimes did not complete abuse investigations within the required 60-day period.

Meth labs in S.C. 'popping up everywhere'

According to the AP: Methamphetamine is becoming the drug of choice in South Carolina, creating paranoid addicts who turn to crime to support their habits, state and local law enforcement officials say.

Fourth Circuit holds that good faith is relevant to section 841 charges brought against physicians

In UNITED STATES v. HURWITZ, a jury convicted Dr. William E. Hurwitz of multiple counts of drug trafficking for prescribing narcotic pain medicine in violation of federal statutory law. Hurwitz appealed his conviction, inter alia, arguing that the trial court improperly instructed the jury on the law. To convict a doctor for violating section 841, the government must prove: (1) that the defendant distributed or dispensed a controlled substance; (2) that the defendant acted knowingly and intentionally; and (3) that the defendant's actions were not for legitimate medical purposes in the usual course of his professional medical practice or were beyond the bounds of medical practice. Hurwitz argued that the district court erred by rejecting his request for a "good faith" instruction inasmuch as his good faith in issuing the challenged prescriptions was relevant to his intent when treating his patients and thus relevant to the jury's determination of whether he acted outside the bounds of accepted medical practice or without a legitimate medical purpose. The judge did not charge good faith on the trafficking counts because he believed that good faith was legally irrelevant. The panel disagreed with the district court, noting that it is proper to instruct juries that a doctor should not be held criminally liable if the doctor acted in good faith when treating his patients. The panel further held that this good faith determination is objective rather than subjective. The conviction was vacated and remanded for a new trial.

S.C. Supreme Court promulgates rules providing for appeal of agency decisions to appellate court rather than the circuit courts

Until Act No. 387 went into effect July 1, all appeals from agency decisions, including decisions of the administrative law court, have been to the circuit court. Now, appeals from decisions of the administrative law court and certain agencies will be to the Supreme Court or the Court of Appeals as provided by the South Carolina Appellate Court Rules.

In light of Act 387, the Supreme Court has promulgated emergency amendments to the appellate rules.

S.C. Supreme Court holds probation condition of non-association with those having a criminal record does not violate due process

In State v. Allen, Mr. Allen challenged a condition of probation that prohibited him from associating with anyone with a criminal record. Allen argued that this condition violated due process and is generally unenforceable because it is overly broad. Allen asserted the condition would, for example, prohibit someone from associating with a spouse or relative who has a criminal record, or from working at a place which employed anyone with a criminal record.

The Supreme Court rejected these arguments. According to the Court:

In the present case, we reject Appellant's arguments and uphold the validity of the standard condition that Appellant not associate with persons with a criminal record. The condition is not so overly broad as a general rule that it violates due process in all cases; nor does application of the condition under the facts and circumstances of this case violate due process. The condition is reasonably related to the crime for which Appellant was convicted, is intended to prevent future criminal conduct, and should aid in Appellant's rehabilitation.

We further hold, as the trial court and other courts have recognized, that the no-association condition implicitly requires a finding that the probationer knew the person in question had a criminal record during the period of association, and that the association was not simply an unknowing or incidental encounter.

S.C. Supreme Court reverses judgment for SCE&G in electronic easement case

In Gressette v. SCE&G, Landowners sued SCE&G for trespass, unjust enrichment, an injunction, and declaratory judgment. Landowners claimed SCE&G's conveyance of excess capacity on its fiber optic cables was an improper use of the electric easements granted by Landowners to SCE&G. The trial judge granted SCE&G's motion to dismiss under Rule 12(b)(6).

The Supreme Court reversed the grant of the motion to dismiss. The issue, according to the Court, was whether SCE&G may apportion its allowed use to third parties. Because this issue could not be resolved without construing the instruments granting the easements in question, the Court held the granting of the motion to dismiss was improper.

S.C. Supreme Court hints that failure to keep proper records on breathalyzer could result in suppression of test results

In State v. Landon, the Supreme Court held that the failure to disclose repair and maintenance records for breathalyzer equipment pursuant to a Rule 5 request does not warrant suppression of breath test results absent a showing that such records are material to the defense. The Court did note that information regarding the DataMaster is exclusively within the State's control, and that SLED's failure to provide a detailed record significantly hampers the defendant's ability to show prejudice. Hence, the Court held that once a defendant makes a prima facie showing of prejudice, the burden must shift to the State to prove the defendant was not prejudiced, either by providing records to show the machine was working properly at the time of testing or by some other contemporaneous evidence.

Fourth Circuit holds that ADHD is not enough to overcome an appeal waiver

In UNITED STATES v. COHEN, Cohen pled guilty to mail fraud. After sentencing, Cohen sought to appeal, arguing that the district court erred in determining the amount of loss for sentencing purposes and in calculating the amount of restitution owed to his victims. The United States moved to dismiss the appeal based on an appeal waiver contained in Cohen's plea agreement. The plea agreement provided that he

waive[ed] knowingly and expressly all rights, conferred by 18 U.S.C. 3742, to appeal whatever sentence is imposed, including any issues that relate to the establishment of the [applicable and advisory] Guideline range, reserving only the right to appeal from an upward departure from the Guideline range that is established at sentencing. . . .

Cohen argued that the panel should find his appeal waiver to be invalid and unenforceable because of his ability to knowingly and intelligently waive his right to appeal was compromised by his Attention Deficit Hyperactivity Disorder. The panel rejected this argument because the district court undertook a careful inquiry to determine that Cohen was competent and understood what he was doing by entering into the plea agreement and pleading guilty; the district court asked specific questions about Cohen's ADHD condition; Cohen was represented by counsel during the proceedings, who assured the district court that the various doctors who evaluated Cohen all found him competent to understand the nature of the court proceedings; and Cohen's attorney further stated that he had no difficulty communicating with Cohen and had no reason to doubt Cohen's competency.

Hence, the panel dismissed the appeal.

Ct. of Appeals issues opinion on malice in a malicious prosecution case

In Guider v. Churpeyes, Inc., Guider was an employee of Church's Chicken and stole $800 from the Company before she quit. She came clean, and eventually returned the money to Church's by depositing the funds in the company's bank account on June 13, 2003. She had retained possession of the funds for eight days, during which time Church's did not have access to the funds. A municipal court judge signed the arrest warrant on June 19, 2003. Police served Guider with the warrant on June 29, and arrested her on the charges. The charges were dismissed the following day when Church's failed to appear at Guider's hearing. Guider sued for abuse of process and malicious prosecution. The trial court denied Church's motions for directed verdict, and Church's appealed.

The Court of Appeals reversed, holding that there was no malice in the prosecution of Guider. According to the Court: "A reasonable party could only conclude Church's had probable cause to believe Guider guilty of breach of trust. We find Guider failed to meet her burden of proving Church's lacked probable cause to bring breach of trust charges against her. "

S.C. Court of Appeals issues opinion on actual malice standard

In Metts v. Mims, the state Court of Appeals decided a defamation case and issued guidance on what is actual malice. The case concerned a newspaper article regarding county officials using county work crews to perform work at the officials' residences. Metts's claim of actual malice in this case hingedon the reporter's failure to investigate allegations that Mett's used the work crews at his house even though the reporter received a list of offending officials that did not contain Metts' name. The Court of appeals found no actual malice:

Newspaper is a small weekly publication, and the evidence reveals the reporter received the list a few hours before the deadline for submitting final articles. We agree with the circuit court that the evidence indicates the reporter failed to investigate due to time constraints and a number of other obligations, including numerous editorial and administrative tasks. Although the reporter's actions may have been negligent, we cannot say that they constituted an extreme departure from the standards of investigation normally employed by publishers so as to rise to the level of constitutional actual malice.

Hence, the grant of summary judgment to the newspaper was affirmed.

S.C. Supreme Court reverses PCR judge's grant of new trial

In Watson v. State, the PCR judge granted Watson a new trial because trial counsel failed to object to hearsay testimony concerning Watson's alleged sexual abuse of the victim. At the PCR hearing, trial counsel testified that she did not object to the hearsay testimony because she wanted to avoid the possibility that the prosecution would have shown the video of the victim talking about the sexual abuse. Counsel stated that, "I used my own judgment. Had I objected, then they could have shown the video and shown the child again. And I did not think that was wise, to keep showing that. . . the child telling about the abuse over and over, and over, and the jury seeing the child telling that over and over and over." The Supreme Court held that this was a valid reason to fail to object and reversed the grant of a new trial.

S.C. Supreme Court reverses conviction for failure to show actual dominion over drugs seized

In State v. Heath, the Supreme Court held that the State failed to present evidence that Heath was in constructive possession of the cocaine found outside his mother's house and thus should not have been convicted of trafficking. The police discovered crack in a car-washing mitt in a recycling bin outside near the back door of the house. The State presented no direct or circumstantial evidence linking Heath to the 43.48 grams of crack. Heath lived in the home where the crack was found, but the home was owned by his mother. As a result, the Court held, it was arguable that Heath merely had a right to access the area where the crack was found, not actual dominion and control of the property.

S.C. Supreme Court finds duty of care when person agrees to provide services to a mentally disabled client

Babcock Center is a private, non-profit corporation based in Columbia that provides housing and other services for people with mental disabilities. "Madison" was a mentally retarded female resident of the Center. Madison left the Center one night, got in a car with former Center residents, had sex with the former residents and contracted sexually transmitted diseases. In Madison ex rel Bryant v, Babcock Center, Madison and her guardian sued the Center, alleging various causes of action. The circuit court granted summary judgment to Babcock Center on the ground it owes no legal duty of care--apparently the trial court believed there was either no duty or a 24-hour duty of constant watch. The Supreme Court reversed, holding that a private person or business entity which accepts the responsibility of providing care, treatment, or services to a mentally retarded or disabled client has a duty to exercise reasonable care in supervising the client and providing appropriate care and treatment to the client.

The trial court also held that the South Carolina Department of Disabilities and Special Needs, which contracted with the Center, owed no duty to Madison. The Supreme Court disagreed, citing the same common law standard as the Babcock Center.

Center for Capital Litigation closes its doors

According to this article from The Greenville News, the Center for Capital Litigation, a nonprofit lawyers group that represented death row inmates in appeals for decades in South Carolina, has closed its doors because of a lack of money.

Joseph Savitz, chief attorney for the South Carolina Office of Appellate Defense, said there is "nobody left" to replace the center. "The fact that they are no longer here increases the chances of an execution that shouldn't occur," he said. "It's a sad thing that there's no money available, especially given the recent disclosures of innocent men sitting on death row and the wrong people being executed."

S.C. Supreme Court challenge to law making it a crime to disturb schools

According to The State:

The S.C. Supreme Court will hear a Greenwood County case next month that challenges state law making it a crime to disturb schools. Lawyers for a boy convicted of disturbing his school will argue that the law is overly broad.

In South Carolina in fiscal 2004-05, there were 2,801 disturbing-school cases referred to solicitors. It was the top juvenile offense for that year, state Department of Juvenile Justice records show.

Fourth Circuit issues Title II and Section 1981 Opinion

In DENNY v. ELIZABETH ARDEN SALONS, the Fourth Circuit dealt with the District Court's grant of summary judgment in favor of Elizabeth Arden Salons on Title II and Section 1981 claims. At base, the Salon refused to style Denny's hair because they "didn't do black people's hair."

Title II entitles individuals "to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation . . . without discrimination or segregation on the ground of race, color, religion, or national origin." The following are listed as places of public accommodation: (1) hotels, (2) restaurants and(3) "place[s] of exhibition or entertainment." The Fourth Circuit held that a hair salon does not fall within the statute and thus no Title II claim could be brought.

Plaintiff also brought a section 1981 claims which provides that all citizens have the right to make contracts the same as white citizens. On this claim, the Fourth Circuit reversed the district court's grant of summary judgment. According to the Court:

In fact, it is hard to imagine plainer evidence of purposeful discrimination than when services are denied expressly because the purchaser is African American. When Seandria Denny arrived to pay for her mother' s hair coloring, the receptionist explained that the salon did not "do black people' s hair." Denny also alleges that Chelsey Orth, the salon's manager, confirmed this view from management's perspective. Orth further explained that each and every one of the eight or nine hair stylists present refused to work on Jean Denny's hair. While there may be a more benign explanation for the salon's refusal to fully serve plaintiffs, the receptionist's overt racial explanation creates a triable dispute.

Fourth Circuit decides duty to defend case

In COWAN SYSTEMS v. HARLEYSVILLE MUTUAL INSURANCE, the Fourth Circuit held that Harleysville Mutual Insurance Company had a contractual duty to provide Cowan Systems, Inc. with a defense in an action commenced against Cowan by Linens N Things, Inc., who, facing a claim for premises liability, sought indemnity from Cowan based on an indemnification provision in a commercial contract between them. At base, a driver for Cowan was injured while he was delivering an empty Linens N Things trailer to a mud lot leased by Linens N Things. He fell on the ice and then filed a personal injury action against Linens N Things alleging that Linens N Things had negligently failed to remove ice and snow from the mud lot. Linens N Things filed a third-party complaint against Cowan to have Cowan indemnify Linens N Things for its premises liability. When Cowan presented the suit papers to its insurer, Harleysville, Harleysville denied coverage, claiming that it had no duty to defend.

Harleysville conceded that the CGL policy provided Cowan coverage for certain tort liability that Cowan assumed by contract. But, it argued that the contractual coverage did not insure Cowan's indemnification of liability to an employee of Cowan because the driver was not a "third person or organization" whose claim was covered by the contractual coverage provision. The Fourth Circuit found that employment status did not change the fact the driver was not a party to the Truckload Transportation Agreement and therefore was also a "third person" with respect to the contractual indemnification in that agreement. Accordingly, coverage existed.

S.C. Court of Appeals issues standing opinion in CON case

In Commander Health Care Facilities, Inc v. DHEC, Commander filed a declaratory judgment action seeking to overturn DHEC's approval of additional new Medicaid beds for Heritage Home. Commander also sought a declaration that DHEC’s grant of permission to Heritage Home to build new Medicaid beds under Proviso 9.35, which gave DHEC permission to grant requests for new beds without obtaining a CON.

The Court of Appeals upheld the circuit court's decision that no standing existed. Commander suffered no injury because it failed to put forth any evidence that it applied for and was denied Medicaid beds contemporaneous with or since Heritage Home was awarded beds under the Proviso and it did not assert that it had any particular plans to apply for beds in the future. Without an injury, there is no standing.

S.C. Supreme Court overturns murder conviction because of prosecution's Golden Rule argument

In State V. Reese, Willie Reese was tried and convicted of murdering Teresa Reese. In closing argument, the solicitor asked the jury "Who speaks for Teresa Reese?" He than told the jurors that they did. The defense lodged a timely objection and made a motion for a mistrial. The Supreme Court agreed that this was improper "Golden Rule" argument:"The solicitor argument indisputably asked jurors to abandon their impartiality and view the evidence from terraces viewpoint." Hence, a new trial was granted.

Remember: Key to this case was a timely objection. Had there been no objection, the argument would be been waived and no new trial would have been granted.

BMW enters into consent order regarding unpaid wages

The U.S. Department of Labor announced last week that a complaint and consent judgment with BMW has been reached for unpaid overtime at its South Carolina plant.

The judgment calls for payment of $629,869 in overtime back wages to 1,224 workers in Spartanburg, S.C. The suit was based on an investigation by the department's Wage and Hour Division into violations of the Fair Labor Standards Act.

According to the department, the company failed to pay automobile body and paint shop workers for time spent putting on (donning) and taking off (doffing) required safety gear and for time spent walking to and from work stations, which resulted in unpaid overtime. The period covered in this judgment is between April 2003 and March 2006.

Senate returns Fourth Circuit nominations of Boyle and Haynes to President Bush

Confirm Them has the details.

Fourth Circuit vacates sentence because of improper departure for a single criminal occurrence

In UNITED STATES v. HILLYER, Hillyer pled guilty to two federal environmental crimes involving illegal dredging in North Carolina's Croatan Sound and received three years probation. The Fourth Circuit vacated a sentence as unreasonable. A defendant may be eligible for a 5K2.20 departure if he "committed a single criminal occurrence or single criminal transaction that (1) was committed without significant planning; (2) was of limited duration; and (3) represents a marked deviation by the defendant from an otherwise law-abiding life."

The Court noted that while Hillyer's conduct might have had a single motivation, it was not a single occurrence or transaction. Rather, it constituted multiple criminal acts, with each occurrence of prop dredging representing a violation of the permit and applicable federal laws.

Moreover, Hillyer's conduct was not a single criminal occurrence because there was significantt planning of the criminal act and the criminal act occurred over a one week period. Hence, the sentence was vacated.

Reggie Lloyd to seek the death penalty in Comfort Inn fire case

According to this from The State: The U.S. Justice Department, in a rare move, is seeking the death penalty in a 2004 Greenville motel arson that claimed six lives, including a toddler's, and hurt 11 adults. The Comfort Inn & Suites that burned Jan. 25, 2004 lacked sprinklers, prompting a legislative push to mandate them in all S.C. motels and hotels.

S.C. Court of Appeals holds prisoners have no liberty interest in prison employment

In Skipper v. SCDC, the prisoner brought suit alleging he was denied both a liberty interest in prison employment and due process with regard to SCDC's drug-testing policy when SCDC terminated him from his prison job for testing positive for drugs. The circuit court agreed that there was a liberty interest, but the South Carolina Court of Appeals disagreed, holding that the prisoner had no liberty interest in prison employment which potentially afforded him a basis for a claim under 42 U.S.C. 1983.

Doctrine of in pari delicto can apply to receivers of corporations

In Myatt v. RHBT Financial Corporation, the court of appeals issued a decision involving the doctrine of in pari delicto, which is the principle that a plaintiff who has participated in wrongdoing may not recover damages resulting from the wrongdoing. In a matter of first impression in South Carolina, the court held that a receiver of a corporation used to perpetuate fraud may not seek recovery against an alleged third-party co-conspirator in the fraud.

S.C. Court of Appeals awards new trial because of multiple Miranda violations

In State v. Navy, Navy appealed his conviction for homicide by child abuse, arguing the trial court erred in admitting three inculpatory statements. The State Court of Appeals found violations of Miranda where officers approached Navy and refused to delay the questioning until after the child's funeral. The court described these actions as a mandate to accompany the officers. Also important to the Court was the fact that Navy was transported to the Sheriff's Department in the backseat of a patrol car, rendering him unable to return home on his own. Once at the jail, Navy was not allowed to walk about the Sheriff's Department freely, and he was accompanied for smoke breaks. Hence, Navy was in custody and should have been given his Miranda warnings.

As for later written statements, the court also found improper police tactics. The police questioned Navy until he gave them inculpatory statements and then read him his Miranda rights. According to the Court, the mid-interrogation Miranda warning given to Navy was not effective in advising him of his rights or the consequences of abandoning them.

The Court granted Navy a new trial.