Saturday, October 22, 2016

Warrant Based Upon Probable Cause Is Required to Issue GPS Tracking Device

State v. Liebl, Minn.Ct.App., 10/17/2016.  The DNR had a bad week, from both the court of appeals and the supreme court.  Here, the DNR invoked a statute, Minn.Stat. 626A,37, which said that a judge could issue an order authorizing the DNR to covertly install a GPS tracking device on a showing of "reason to believe" that the data obtained from the GPS device would be relevant to an ongoing criminal investigation.  The DNR suspected that Mr. Liebl was hunting deer in violation of various gaming statutes.  Eventually, the state obtained a search warrant for Mr. Liebl's home and truck, where evidence of such unlawful gaming was found.  The search warrant application relied, at least in part, on the data obtained from the GPS tracking device.

Back in 2012, SCOTUS said that installation of a GPS tracking device was a "search" within the meaning of the Fourth Amendment.  United States v. Jones, ___ U.S. ___, 132 S.Ct. 949 (2012).  It necessarily follows that the court could authorize the DNR to install the GPS only upon a warrant application supported by probable cause, or if there were some exception to the warrant requirement.The DNR did not even suggest to the district court that there was probable cause, relying instead on the statutory standard of "reason to believe," so the authorization was invalid.

The state's fallback position was to argue for an extension of Minnesota's limited adoption of the good faith exception to the warrant requirement.  The court of appeals rejects this attempt, pointing out that Jones had been good law for quite some time; the state could point to no cases that applied a good faith exception  to preserve the admissibility of evidence that had been obtained through a post-Jones, warrantless GPS tracking device:
In sum, Officer Picht lacked an objectively reasonable basis for his belief that warrantless GPS tracking of Liebl’s truck was constitutionally permissible after Jones. We believe that the exclusionary rule’s deterrence rationale was served here, because law enforcement has a duty to stay abreast of changes in the law.

Sunday, October 16, 2016

Refusal Statute As Applied to Warrantless Urine Test is Unconstitutional

State v. Thompson, Minn.S.Ct., 10/12/2016.  Chief Justice Gildea takes something of a victory lap to celebrate the SCOTUS adoption of the Minnesota Court's pronouncement that a breath test is nothing more than search incident to a lawful arrest.  State v. Bernard, 859 N.W.2d 762 (2015), aff’d sub nom. Birchfield v. North Dakota, ___ U.S. ___, 136 S. Ct. 2160 (2016).  Somewhat, because the court unanimously throws in the towel to declare Minnesota's refusal statute unconstitutional as applied when what's refused is either a blood or urine test.  This opinion is the urine test refusal.

The state wanted the court to expand its recent limited adoption of the good faith exception to the warrant requirement.  However, the Chief points out that nothing had really been suppressed; after all the cops didn't collect any evidence sought to be introduced at trial.

Refusal Statute As Applied to Warrantless Blood Test is Unconsitutional

State v. TrahanMinn.S.Ct., 10/12/2016.  Chief Justice Gildea takes something of a victory lap to celebrate the SCOTUS adoption of the Minnesota Court's pronouncement that a breath test is nothing more than search incident to a lawful arrest.  State v. Bernard, 859 N.W.2d 762 (2015), aff’d sub nom. Birchfield v. North Dakota, ___ U.S. ___, 136 S. Ct. 2160 (2016).  Somewhat, because the court unanimously throws in the towel to declare Minnesota's refusal statute unconstitutional as applied when what's refused is either a blood or urine test.  This opinion is the blood test refusal.

The state wanted the court to expand its recent limited adoption of the good faith exception to the warrant requirement.  However, the Chief points out that nothing had really been suppressed; after all the cops didn't collect any evidence sought to be introduced at trial.

Thursday, September 29, 2016

No Abuse of Discretion To Deny Post Conviction Petition Without Evidentiary Hearing

Morrow v. State, Minn.S.Ct., 9/21/2016.  Mr. Morrow filed this post conviction action, on time, challenging the representation that he received from his appellate counsel.  He said that appellate counsel had rendered ineffective assistance of counsel by failing to raise these five issues:
(1) the sufficiency of the evidence; (2) prosecutorial misconduct; (3) ineffective assistance of trial counsel; (4) instructional error on the driveby-shooting counts; and (5) the possible violation of a statute prohibiting multiple overlapping convictions, Minn. Stat. § 609.04 (2014).
The post conviction court denied the petition in its entirety without holding an evidentiary hearing.

To get a hearing, Mr. Morrow had to allege facts which if proved would satisfy the two requirements of Strickland v. Washington, 466 U.S. 668 (1984): counsel's performance fell below an objective standard of reasonableness, and absence appellate counsel's shoddy performance the outcome of his direct appeal would have been different.  Justice Stras jumps straight to this second requirement to affirm the summary dismissal of the petition.

Mr. Morrow had raised both a sufficiency and prosecutorial misconduct challenge in his pro se supplemental brief on his direct appeal. Appellate counsel was not obliged to take up either of those causes absent a showing that this failure "fell below an objective standard of reasonableness," which Justice Stras didn't address.  

Because the trial court did not sentence Mr. Morrow on the drive-by shooting conviction, there could be no prejudice to him as a result of any error in the court's instructions on that count.  See State v. Jackson, 773 N.W.2d 111 (Minn. 2009).

Finally, Mr. Morrow's argument that Minn.Stat. 609.04 required the trial court to convict and sentence him on the lowest degree of the offenses charged just didn't square with the language of the statute. Rather, all that the statute says is that the trial court could not have convicted Mr. Morrow of both the first and second degree murder counts for the same victim.

Monday, September 19, 2016

Testimony About some of What Defendant Said during Interrogation Does Not Authorize Defense To Introduce Entirety of Recorded Statement

State v. Robertson, Minn.S.Ct., 9/14/2016.  A jury convicted Mr. Robertson of first degree premeditated murder of Kevin Braziel.  It was the state's theory that Mr. Robertson shot and killed Mr. Robertson by mistake.  When police interrogated Mr. Robertson he denied any involvement in Mr. Braziel's death.

The state did not play Mr. Braziel's recorded statement during the trial.  Instead, the officer to conducted the interrogation testified about parts of the interview.  Although the trial court allowed defense counsel to ask this officer about other portions of the interrogation the court denied a request to play the whole thing. 

Mr. Robertson made this request under Rule 106 of the rule of evidence.  This rule says that if one side introduces a portion of a recorded statement  then the other side may be permitted to play any of the remainder of the recording "which ought in fairness to be considered contemporaneously with it."  Chief Justice Gildea said, however, that the problem for Mr. Robertson was that the state didn't introduce any of the recorded statement (or its transcript). State v. Bauer, 598 N.W.2d 368 (Minn. 1999) says just that.  It should be permissible, however, for the defense to introduce portions of the recorded interview where not doing so would mislead the jury.

Mr. Robertson raised some additional errors on appeal, none of which did the court find persuasive.

Use of Multi-County Grand Jury Procedure Survives State Constitutional Challenge

State v. Fitch, Minn.S.Ct., 8/24/2016.  Mr. Fitch shot and killed a police officer in Dakota County, then shortly thereafter got into a shoot out with officers in Ramsey County, injuring three of those officers before being shot himself.  The state convened a multi-county grand jury under the provisions of Minn.Stat. 628.41, subd. 2.  That grand jury then returned an indictment which charged Mr. Fitch with the homicide in Dakota County, and with multiple offenses in Ramsey County:  three counts of attempted murder in Ramsey County and possession of a firearm by an ineligible person.  

The statute authorized either a Dakota or Ramsey judge to convene this multi-county grand jury.  Whether by coin flip or otherwise, a Dakota judge convened one of these multi-county grand juries and designated the Dakota County Attorney's Office to attend to the care and feeding of this grand jury.   The order that impaneled the grand jury also designated Dakota County as the venue for any proceedings in the event of an indictment.  This venue designation put Mr. Fitch's prosecution on a collision course with a provision of the state constitution, Article 1, Section 6, which says that Mr. Fitch "enjoys" the right to a "public trial by an impartial jury of the county or district wherein the crime shall have been committed..."

Mr. Fitch invited this collision by attacking the indictment in two ways.  He moved to dismiss the indictment, saying that regardless of what the statute said the district court was constitutionally required to sever the Ramsey County offenses from the Dakota homicide offense because of the jury locale requirement of the aforementioned Article 1, Section 6 of the state constitution . This was an apparent if not explicit reference to the offenses that happened in Ramsey County.  Mr. Fitch also moved to sever the Dakota homicide from the Ramsey County offenses under Rule 17.03, subd 3; he relied upon two provisions of that rule:  that the Ramsey County offenses were not related to the Dakota homicide, or even if related joining the offenses for trial was too prejudicial.  

At the same time, Mr. Fitch moved to change venue because, he said, all the pretrial publicity prevented him from getting a fair trial. The trial judge took up the venue change motion first and granted it, packing everyone off to Stearns County for trial.  The trial court then took up Mr. Fitch's constitutional challenges and denied them. Then the trial court then denied the motion to sever the Ramsey County charges.  A Stearns County jury convicted Mr. Fitch of all of the charges.

Mr. Fitch appealed the rulings on his constitutional challenge and on his Rule 17.03 severance request.  The court first took up the constitutional challenge.

Justice G. Barry Anderson acknowledges that Mr. Fitch had a right to be tried by a jury from a particular county or district; the constitutional provision is about the jury pool and not about the location of trial.  With that understanding it's easy to reject any claim that Mr. Fitch had a right to either a judge or prosecuting authority from a particular county or district.  Rather, Mr. Fitch's rights under Article 1, Section 6 cannot be violated until a judge impanels a jury from a county other than the one in which the offense occurred to adjudicate the case against him.  

Addressing the right to be tried by a jury from a particular county or district, Justice Anderson says that past opinions establish that even this right is subject to at least two exceptions:  this right can be overcome where it would be difficult to identify the county or district in which the offense occurred, and where an impartial jury cannot be drawn from the county or district in which the alleged crime occurred.  The court does say that in most cases in which a multi-county grand jury returns an indictment, the district court should designate venue based on where the alleged offense occurred.  So, although the statute gives the trial judge discretion in designating the venue of charges returned by a multi-county grand jury the state constitution does impose restraints on that discretion.

So, the court is creeping perilously closer and closer to having to answer the constitutional question:  did keeping the Ramsey County charges in Dakota County violate Mr. Fitch's right to be tried by a jury of the county or district in which the crimes occurred?  The state said no, for two reasons:  because it avoids serial prosecutions, and because it would be just too traumatic and, frankly, inconvenient, for all of its witnesses to have to testify at two different trials.  Justice Anderson found these justifications for trampling on Mr. Fitch's state constitutional rights just a bit too easy and more problematic, amorphous.  The court said that under the state's rule there would be "no limiting principle for when witness convenience outweighs a defendant's rights under Article 1, Section 6 to trial by a jury of the county or district in which the crime was committed."  

By rejecting the state's only reasons to try both sets of charges in Dakota County Justice Anderson is left with no justification to deny Mr. Fitch his state constitutional right to a trial by a jury of the county or district in which the crime was committed.  Now finally face to face with the state constitutional question the court does what it is wont to do and punts it.

To do that things get a little fuzzy.  This is because, remember, at the same time that Mr. Fitch moved to dismiss the indictment on state constitutional grounds he also moved to change venue because of publicity.  This was just the out that the court was looking for.  If Mr. Fitch could not get a fair trial in "the greater Twin Cities metropolitan area" - which is what he said - then what did it matter whether he was entitled to trial in Ramsey County before a Ramsey County jury on the Ramsey County charges?  

Justice Anderson takes a breath at this point and rather sheepishly concedes in a lengthy footnote that Mr. Fitch had been asking the Dakota County court only that the homicide venue, which was initially and properly located in Dakota County, be moved out of Dakota County; while at the same time he was asking that the Ramsey charges be sent packing back to St. Paul, not as a venue change because of pretrial publicity from a properly venued action but as a recognition that under the state constitution Dakota County had no business trying the Ramsey charges in the first place.  The court also accepted Mr. Fitch's assertions to them that he had not intended to waive his right to have the Ramsey County charges tried by a Ramsey County jury.

Despite all this, Justice Anderson fudges these concessions by then noting that by requesting a change of venue Mr. Fitch was admitting that he could not receive an impartial jury trial in either county.  An "impartial" jury is one of the safeguards that Article 1, Second 6 protects.  This lets the court off the hook because it could now pronounce that because of all that publicity about which Mr. Fitch so bitterly complained he simply "did not have a right to a trial by a Ramsey County jury on the Ramsey County charges..." because that trial would not be an impartial one. As a result the court offers no guidance on how to address these thorny issues the next time up. Whew, that was close.

The court then addresses the severance motion under traditional severance jurisprudence.  The resolution of that question turns on the existence of prejudice, which in this case Mr. Fitch could not show.  Joinder is not prejudicial, the court said, if "evidence of each offense would have been admissible Spreigl evidence in the trial of the other."  State v. Conaway, 319 N.W.2d 35 (Minn. 1982). It was easy enough for the court to say that that was the case for Mr. Fitch, if for no other reason than the two sets of charges occurred roughly five miles and five hours apart.  Finding no prejudice to Mr. Fitch by denying the severance request the court does not have to rule whether the refusal to sever was error.

Monday, September 12, 2016

For DWI Prosecutions a "Hazardous Substance" May But Need Not Be Listed Under the Hazardous Substances Rules

State v. Carson, Minn.Ct.App., 9/6/2016.  For those who were wondering,  1,1-difluoroethane (DFE) is a "hazardous substance" under the DWI laws.  It is unlawful to drive while under the influence of a hazardous substance.

1,1-difluoroethane (DFE) turns out to be one of the components of those air canisters that blow all the dust out of the innards of computers.  A couple of things to know about such products: Although known as "canned air" there is no air in the products. The cans contain gases that have been compressed into liquids, something that air won't allow to happen except under really extreme temperatures.  Second,  when inhaled the gases displace oxygen in the lungs and removes carbon dioxide from the blood which causes the user a euphoric feeling.

Ms. Carson said that the state had failed to prove that she was under the influence of a "hazardous substance" which is defined as "any chemical or chemical compound that is listed as a hazardous substance in rules adopted under chapter 182 (occupational safety and health)."  DFE is not included in the chapter 182 list of hazardous substances.

However, those rules also state that the list includes the majority of hazardous substances but not all of them.  The rule further requires an employer to keep an eye peeled for the presence of other substances that are "hazardous."  

A Person "15 Years of Age or Younger" Is a Person Who Has Not Yet Attained The Age of 16.

State v. Olson, Minn.Ct.App., 8/22/2016.  The state charged Mr. Olson with four counts of violating the child solicitation statute. Unbeknownst to him, Mr. Olson communicated with an undercover cop who said that her name was "Haley" and claimed to be fourteen years of age.  When Mr. Olson arrived for his first meeting with "Haley" the cops busted him.

To convict Mr. Olson the state had to prove that he reasonably believed that he was soliciting or communicating sexually explicit material to a "child."  The statute defines a "child" as a "person 15 years of age or younger."  Mr. Olson waived a jury trial and the trial judge found that Mr. Olson reasonably believed that he was communicating with a person "under the age of sixteen."  Mr. Olson said, hold on, the statutory definition of "child" means a person who is younger than or has reached the specified fifteenth birthday and not a day older.

The court of appeals is not amused.  As usual, it hauls out various dictionaries to discover that people ordinarily express their ages in yearly intervals, so that one who is "15 years of age" might actually be 15 years and eleven months old.  If Mr. Olson's interpretation is correct, then just how is "Haley" to say how old she is on the day after her fifteenth birthday.  "Hi, I'm Haley.  I was fifteen yesterday. Today I'm not sixteen."  You get the idea.

Tuesday, September 6, 2016

Confession is Voluntary and Evidence of Premeditation is Sufficient

State v. Cox, Minn.S.Ct., 8/24/2016.  Mr. Cox and his buddy Mr. Kurr went to rob Mr. Moran whom they believed was a drug dealer and thus likely to have a lot of both drugs and cash laying around his house.  When Mr. Moran failed to obey Mr. Cox's command to take his hands out of his pockets Mr. Cox first shot Mr. Moran in the thigh and then three times in the chest.  A jury convicted Mr. Cox of first degree premeditated murder, two counts of first degree intentional felony murder and first degree aggravated robbery.  On appeal Mr. Cox challenged the admissibility of his confession, and the sufficiency of premeditation to uphold the first degree premeditated murder conviction.

Mr. Cox said that his confession was not voluntary for three reasons:  the cops promised that in exchange for his confession they would look into his brother's death; the cops assured him that they could influence the county attorney's charging decision; and a "small town Scott County jury" would be more lenient if presented with a full confession.  Justice Dietzen rejects each of these assertions in turn.  The Justice says that because it was Mr. Cox who suggested that he would trade his confession for a promise to look into his brother's death his will was hardly overborne.  While it is improper for cops to suggest that they can influence prosecutors in favor of a defendant, all that the cops did here was to point out that the prosecutors would be "impressed" by his confession.  Finally, the crack abou "small town juries" being more lenient was "simply a prediction.

Two Justices, Chief Justice Gildea and Justice G. Barry Anderson, dissented from the majority's conclusion that the state had sufficiently proven premeditation.  Here's what Justice Dietzen says that the state proved that support a reasonable inference that Mr. Cox premeditated Mr. Moran's murder, which facts are inconsistent with a reasonable inference that his conduct was the result of a rash impulse:
The circumstances proved taken together are as follows. Cox planned the armed robbery of Moran’s home, including the potential murder of those he encountered, to accomplish his criminal objective. Cox practiced shooting the handgun, and brought a fully loaded handgun, extra bullets, and a shooting glove with him so that he was ready to murder the occupants of the home if necessary. Cox unlawfully entered Moran’s home, and told B.M. that he might kill everyone in the home if B.M. lied to him. When Moran arrived Cox stated that Moran is “the one I’m looking for.” Moran’s cell phone rang and Cox ordered Moran to show his hands. When Moran ignored Cox’s command to “put down the phone,” Cox shot Moran in the leg shattering his femur. Forty seconds elapsed between the first command and the first shot. Moran was wounded and unarmed. When Moran ignored the second command, Cox shot Moran in the chest causing him to stumble and fall. Cox shot Moran in the chest two more times.
The dissenters anguish that the majority has eviscerated the intentional murder statute:
The court’s holding in this case will make a premeditated murder out of virtually any armed robbery that results in a death. More generally, an affirmance here of the premeditated murder conviction may leave few circumstances that fit the statutory definition of intentional murder. Given the legislative decision to distinguish between an intentional murder and a premeditated murder, that cannot be the law. The circumstances as a whole in this case are not consistent only with the theory of a premeditated murder and inconsistent with all other rational theories. As a result, I would vacate the conviction for first-degree premeditated murder and remand this case to the district court for further proceedings.

Saturday, August 27, 2016

Under Knaffla, Post Conviction Claim Is Procedurally Barred

Ouk v. State, Minn.S.Ct., 8/24/2016.  A jury convicted Mr. Ouk back in 1992 of two counts of first degree felony murder and two counts of attempted first degree felony murder.  The trial court imposed two life sentences with the possibility of release on the murder verdicts, and two fifteen year sentences of the attempt verdicts, with these sentences to be served consecutively.  

Mr. Ouk brought this action in his view to correct his sentence under Rule 27.03, subd. 9.  He said that the juvenile court had failed to follow the proper procedure for certifying him to stand trial as an adult.  The trial court construed this pleading as a post conviction petition because the petition challenged more than just his sentence.  Johnson v. State, 877 N.W.2d 776 (Minn. 2016); State v. Coles, 862 N.W.2d 477 (Minn. 2015.)  It then summarily denied the petition under the Knaffla rule that says, among other things, that after direct appeal, claims that a petitioner knew about or should have known about at the time of direct appeal are procedurally barred.

Justice G. Barry Anderson says that the post conviction court got it right.  After certification occurred, Mr. Ouk either knew or should have known whether the juvenile court messed things up so Knaffla eliminates that claim from further challenge.  Because Mr. Ouk did not allege any exception to the statutory two year limitations statute, the court can continue to dodge the question whether Knaffla has survived the recent amendments to Chapter 590.

State's Unilateral Dismissal of Tab Charge or Complaint Need Not Be Made In Good Faith

State v. Olson, Minn.S.Ct., 8/24/2016.  When Mr. Olson's case came up for trial the state's only witness didn't bother to show up. When the trial judge denied the state's continuance request the state dismissed the tab charge and got in the judge's face by saying they would just refile the charge.  Which they did. When Mr. Olson moved to dismiss the refiled charge the trial court denied that motion.  Mr. Olson appealed.  The Court of Appeals said that the state could not use this dismiss/refile workaround to avoid its witness availability problems.

Justice Stras is having none of that.  He pulls out the rule book to find that Rule 30.01 states unambiguously that the prosecutor doesn't need anyone's permission to dismiss either a tab charge or a complaint.   The Justice declines to require that state act in good faith in exercising this authority.

Under a different rule, however, Rule 30.02, the trial court has the discretion to dismiss a charge - whether by tab charge, complaint, or indictment, "if the prosecutor has unnecessarily delayed bringing the defendant to trial."  This rule, the Justice says, applies whether the delay occurred in initially bringing charges or in Mr. Olson's situation, where the state dismisses and then refiles.  The court concludes that the trial court got it right in denying Mr. Olson's dismissal motion, quoting favorably from the trial court's ruling on the dismissal motion:
[The State] did not charge the case in order to obtain an unfair advantage and did not blatantly delay the [d]efendant’s trial. The witness’s unavailability was unknown to the State until the day before trial and the State promptly disclosed the information, continued to negotiate the case and made its intent to recharge known prior to making the continuance request. Further, the case had not been unnecessarily delayed by any continuances prior to the continuance request on the day of trial and the [d]efendant’s trial in the new recharged case was set promptly at the first available date for the parties. 

Thursday, August 25, 2016

Probable Cause To Search Blood For Alcohol Authorizes Search for Controlled Substances as Well

State v. Fawcett, Minn.S.Ct., 8/24/2016.  A court that prides itself on precision use of words, constantly running to the nearest dictionary, is not so persnickety when called upon to discern a cop's application for a search warrant.   Fresh off her victory in State v. Bernard, - a breath test is a search incident to a lawful arrest and thus an exception to the warrant requirement, Birchfield v. North Dakota, ___ U.S. ___ (2016) - Chief Justice Gildea delves into alchemy to turn alcohol into narcotics.

Ms. Fawcett ran a right light and plowed into another car, causing injuries to the driver of that other car.  Officers smelled alcohol on Ms. Fawcett's breath and she admitted that she had drunk two to three beers earlier.  Meantime, another officer applied for a warrant to search a sample of Ms. Fawcett's blood for "evidence of the crime of criminal vehicular operation/homicide."  The officer's application stated the belief that Ms. Fawcett was under the influence of alcohol.  The judge then signed a search warrant that authorized the officers to cause a blood sample to be taken from Ms. Fawcett and forwarded to an approved lab for testing.  The BCA tested the blood sample for alcohol and came up dry.  They then tested the blood sample for drugs and found two controlled substances.

The state charged Ms. Fawcett with criminal vehicular operation. She moved to suppress all evidence of the presence of drugs, saying that the warrant application did not provide any basis for police to test her blood for controlled substances.  The trial court granted that motion.  The court of appeals reversed the trial court saying that once the state "seized" a quantity of Ms. Fawcett's blood it was none of her business just what the state did with it.  

In a footnote, Chief Justice Gildea nixed that theory by the court of appeals, saying that Ms. Fawcett retained some expectation of privacy in her blood that had been seized pursuant to a search warrant although the court does not define the extent of that expectation.  The Chief then gets down to it and announces the rather astonishing conclusion that the trial judge had enough information to conclude that there was a "fair probability" that evidence of intoxicants, whether alcohol, controlled substances, or a combination of the two would be found in Ms. Fawcett's blood:
Considering all the circumstances set forth in the warrant application and supporting affidavit, including L.S.’s visible injuries, the eyewitness’s placement of Fawcett behind the wheel of a vehicle that ran a red light, the odor of alcohol on Fawcett’s breath, the officers’ conclusion that she had been drinking, and Fawcett’s admission that she had been drinking prior to the crash, the issuing judge had a substantial basis to conclude there was a fair probability that evidence of intoxicants, whether alcohol, controlled substances, or a combination of alcohol and controlled substances would be found in Fawcett’s blood.
The court justifies this result by stating two things:  First, the whole point of getting a search warrant is to put the decision in the hands of a judge to make an independent assessment of the existence of probable cause; and, Second, that independent assessment includes drawing reasonable inferences from the materials supplied to that judge by the applicant for the warrant.  But, this actually turns the more traditional analysis on its head; courts constantly compliment police officers for their acumen in ferreting out what's really going on - they're the experts - but here the court is saying that the cop got it wrong and it was for the judge to do the ferreting.

Justice Stras, joined in part by Justice Lillehaug, dissents.  Justice Stras, ever the literalist, points out that the search warrant application only talked about alcohol and never about drugs, and so the application failed to establish probable cause to search for controlled substances.  
The court has not said why facts suggesting that Fawcett negligently operated her vehicle while under the influence of alcohol also provide reason to believe that controlled substances would be found in her blood. In essence, the court has reached the unsupported conclusion that, if there is a fair probability that a person has recently used alcohol, there is a fair probability that the person has used drugs as well. 
Put another way, smelling alcohol on a driver's breath is easy.  After that it's anyone's guess whether the driver's driving behavior was the result of that alcohol, the result also of drugs, or the result of texting as well.  Who knows?

Both the majority and the dissent give lip service to supposed limits to the breadth of this opinion.  Each says, for instance, that a search warrant for blood to test for the presence of alcohol would not authorize a search for other private medical facts about a person. This acknowledgment raises the question whether this is really a smart phone case.  Just as with smart phones, there's just too much private and otherwise sensitive information in a tube of blood.  If he happens to get pulled over for suspected DWI heading up I-94 on his way to Wall Drugs does Chief Justice Roberts really want the BCA checking his genetic markers?

Justice Stras also made another pitch to adopt the Leon good faith exception to the exclusionary rule, but gets no takers.

Monday, August 22, 2016

Minn.Stat. 244.10.5a(b) Permits Aggravated Sentence Based on Any Aggravating Factor Arising From Same Course of Conduct

State v. Fleming, Minn.S.Ct., 8/17/2016.  Someone cut Mr. Fleming with a knife while the two were apparently playing basketball on a court in some park; illegal screen perhaps.  In any event, Mr. Flemming pulled a gun out of his backpack and fired off six rounds.  There were lots of adults and kids around when this happened.

Mr. Fleming pled guilty to both assault and possession of a firearm by an ineligible person.  The trial court imposed a 90 month sentence on the firearm possession conviction; the trial court initially stayed that sentence but when Mr. Fleming violated probation the court executed the sentence.  Mr. Fleming appealed. He said that although his possession of the firearm created a greater than normal danger to the safety of other people, he created that greater danger by committing the assault.  That being the case, Mr. Fleming then said that a court can't rely on conduct underlying one conviction to support a sentencing departure for a separate conviction.

Both the trial court and the court of appeals rejected this argument, relying upon a 2009 amendment to Minn.Stat. 244.10, subd. 5a(b):
Notwithstanding section 609.04 or 609.035, or other law to the contrary, when a court sentences an offender for a felony conviction, the court may order an aggravated sentence beyond the range specified in the sentencing guidelines grid based on any aggravating factor arising from the same course of conduct.
The supreme court accepted review.  Justice Dietzen doesn't really have a whole lot to say about this beyond what the court of appeals already said.  The "plain language" of the statute means just what it says:  the statute authorizes a departure based on "any aggravating factor" "notwithstanding" whatever either 609.04 or 609.035 say.

Monday, August 15, 2016

Rule of Evidence Don't Apply to Restitution Hearings

State v. Willis, Minn.Ct.App., 8/15/2016.  A jury convicted Mr. Willis of aggravated forgery, something to do with a quitclaim deed.  Fortunately, this case isn't about property law, but restitution. At the restitution hearing the trial court received in evidence, over objection, a letter from the victim's attorney stating that the victim had incurred expenses of two grand in legal fees to untangle the quitclaim business.  On appeal, the question is whether the rules of evidence apply to restitution hearings.

Now, just a few months back the supreme court said that the rules of evidence apply to Blakely bench trials.  State v. Sanchez-Sanchez.  The court of appeals, however, distinguishes this case by saying that an award of restitution is part of a criminal sentencing,   Evans v. State, 880 N.W.2d 357 (Minn. 2016), but it's not part of sentencing under Rule of Evidence 1101.  A Blakely trial is more like an adjudication of guilt phase of a criminal trial because, in part, "adjudicatory facts are determined." Just why a determination of an amount of restitution is not an "adjudicatory fact" isn't really explained.

Except that if such a determination is an "adjudicatory fact" then a restitution hearing, which is admittedly part of a criminal sentence, starts to look a lot like a Blakely hearing.  That, of course, requires a jury, which is the real elephant in the courtroom.

Wednesday, August 10, 2016

Limitations Provisions of Post Conviction Petition Are Not Ex Post Facto Provisions

Jones v. State, Minn.S.Ct., 8/10/2016.  In this post conviction petition Mr. Jones says that the limitations provisions that were enacted in 2005 cannot constitutionally be applied to him because the crimes for which he was found guilty occurred in 1992, long before the limitations provisions were enacted.  To apply the limitations provisions to him violates the federal and state prohibitions on ex post facto laws.  

Justice Lillehaug rejects this assertion.  The limitations provisions did not alter the consequences of any acts that Mr. Jones committed in 1992 and thus did not deprive him of any vested right or create a new obligation or disability regarding a past transaction.

Mr. Jones also argued that Minn.Stat. 631,21, which authorizes a court to order that a criminal action be dismissed applied to his "rare and unusual case."  The Justice also rejects this assertion, saying that the "plain words" of the statute applies to an ongoing criminal case in the district court.

Post Conviction Court Has Discretion To Raise Limitations Issue On Its Own Motion

Weitzel v. State, Minn.S.Ct., 8/10/2016.  Mr. Weitzel filed a post conviction petition.  The state did not raise a limitations claim in its response, but the post conviction court raised it on its own. Without giving the parties the opportunity to address the limitations issue the court found that the petition was untimely and summarily dismissed it. On appeal to the court of appeals Mr. Weitzel said that the post conviction court was required to consider the merits of his petition because the state had forfeited its right to assert a limitations defense. The court of appeals said that while the post conviction court should have given the parties a heads up of what it was considering doing - denying the petition as untimely  - and allow them to stake out their positions it didn't really matter because the court went on to address the merits of the claim. 

Justice Dietzen concludes that the post conviction court has the discretion to raise the limitations issue on its own motion it must provide the parties notice and the opportunity to be heard before ruling on the issue.  The Justice remanded the case back to the post conviction court to provide that opportunity.

In an odd pairing, Chief Justice Gildea and Justice G. Barry Anderson dissent.  The Chief said that she would have held the state to its failure to assert limitations as a defense and would not have allowed them to raise it. She would remand the case back to the post conviction court to consider the merits of the claim.

Post Conviction Claims Are Untimely And Thus Frivolous

Brocks v. State, Minn.S.Ct., 8/10/2016.  In this his fourth post conviction petition Mr. Brocks argued that his right to effective assistance of counsel had been violated because his attorney had a conflict of interest.  The post conviction court summarily denied the petition, saying that it was untimely under the limitations provision of the post conviction statute, and that it did not satisfy the "interests of justice" exception to those limitations provisions. In the alternative, the post conviction court said that the petition was barred under Knaffla, including the statutory adoption of the Knaffla rules.

Chief Justice Gildea points out that Mr. Brocks' petition was filed well past the two year limitations period and so he stays in court only if one of the exceptions applies.  Mr. Brocks claimed that the "interests of justice" exception applied but the Chief rejects that assertion.  The petition does not satisfy the "interests of justice" exception because it is procedurally barred.  Mr. Brocks raised the claim presented here both in his direct appeal and in her first post conviction appeal.  Mr. Brocks did not raise either of the Knaffla exceptions, the continued viability of which the court continues to dodge, and so he has forfeited any claim that either exception applies.

Elimination of Mistake As To Age Defense in Prosecution for Internet-Only Child Solicitation Prosecution Violates Substantive Due Process

State v. Moser, Minn.Ct.App., 8/8/2016.  Mr. Moser solicited a child for sex over the internet.  He never met the child in person and the child told him that she was sixteen when in fact she was fourteen.  Although Mr. Moser repeatedly asked for pictures of the child the child apparently never sent any photos to him.  

The state charged Mr. Moser with violating the child-solicitation statute, Minn.Stat. 609.352.  He was convicted.  He challenged that conviction, saying that as applied to solicitation that occurs only over the internet, involving no face to face contact, and where the child represents that he or she is sixteen or older the inability to raise a mistake of age defense violated substantive due process.  The court of appeals agrees and reverses Mr. Moser's conviction.

The child solicitation statute prohibits the solicitation of a "child or someone the person reasonably believes is a child" to engage in sexual conduct with intent to engage in sexual conduct." Minn.Stat. 609.352, subds. 2, 4.  The statute explicitly eliminates mistake as to age as a defense.  Minn.Stat. 609.352, subd. 3(a).  The criminal sexual contact statutes similarly eliminate mistake as to age as a defense when the victim is under certain stated ages, although is some instances a defendant's "reasonable belief" that the victim  is a certain age or older is an affirmative defense.

The court acknowledges that previous SCOTUS and Minnesota cases hold that there is no due process violation to charge the child pornography producer, the in-person child solicitor, or the child rapist with knowledge of the victim's age.  United States v. X-Citement Video, Inc., 513 U.S. 64 (1994); State v. Morse, 281 Minn. 378,  161 N.W.2d 699 (1968). A defendant in such an in-person encounter "can reasonably be required to ascertain the age of a person the defendant meets in person."  For Mr. Moser's internet-only encounter the court concludes that it was unreasonable to charge him with that obligation.
In summary, as applied to Moser and in other cases where the defendant has no in person contact with the child and the child represents to the defendant that he or she is 16 or older, Minnesota Statutes section 609.352, subdivisions 2 and 3(a), violate due process by imposing strict liability and eliminating a mistake-of-age defense. The child-solicitation statute infringes on Moser’s fundamental rights to liberty, to a fair trial, and to present a complete defense. It cannot survive strict scrutiny. Although the statute imposes strict liability, it has none of the characteristics that usually accompany strict-liability offenses. The statute does not create a public welfare offense, and it is not reasonable to require a defendant in Moser’s position, engaging in solicitation solely over the Internet without any face-to-face contact, to verify the actual age of the person solicited. The statute does not survive strict scrutiny because, given its harsh penalties, it is not narrowly tailored to serve the compelling government interest of protecting children from sexual exploitation. Because the child told Moser she was 16 years old, Moser may have reasonably believed  that she was not a child as defined by the statute. We therefore conclude that the district court erred by denying Moser the opportunity to raise a mistake-of-age affirmative defense.

Monday, August 8, 2016

Court Recognizes Retroactivity of Miller v. Alabama, Imposes Life Sentence With Possibility of Release After 30 Years For Juvenile Offender Whose Sentence Was Final Before Miller

Jackson v. State, Minn.S.Ct., 8/3/2016.  The state charged Mr. Jackson with premeditated murder; he was seventeen years old.  A jury convicted him, and the trial court imposed a life sentence without possibility of release under a statute that required that result without exception.

After Mr. Jackson's conviction and sentence became final the U.S. Supreme Court held in Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455 (2012), that mandatory imposition of life without possibility of release is unconstitutional as applied to juveniles under the Eighth Amendment.  In Chambers v. State, 831 N.W.2d 311 (Minn. 2013), and in Roman Nose v. State, 845 N.W.2d 193 (Minn.2014), the Minnesota Supreme Court held that Miller v. Alabama, was not retroactive.  Earlier this year the U.S. Supreme Court held that Miller v. Alabama is retroactive, overruling both Chambers and Roman Nose.  Montgomery v. Louisiana, ___ U.S. ___, 136 S.Ct. 718 (2016).

Justice G. Barry Anderson had joined the opinion in Chambers, and had written a concurring opinion in Roman Nose wherein he wished that SCOTUS would answer the retroactivity question.   With none of the dissenters in Chambers and Roman Nose - Justices Page and Paul Anderson - still on the court, Justice G. Barry Anderson gets to write the obituaries of these two opinions, one supposes because he kept wishing that SCOTUS would answer the retroactivity question.

Jackson's mandatory life sentence without possibility of release clearly violates Miller.  So, the meat of the opinion is determining what the remedy is.  The state argued that the remedy was to remand the case back to the trial court for a "Miller hearing." Without dissent, however, the court does remand the case, but with instructions to impose a life sentence with possibility of release after serving thirty years.  This is the "last text standing" before the legislature enacted the now unconstitutional mandatory life without possibility of release statute for juvenile offenders. The court simply thought that too much time had passed - 10 years for Jackson - for any kind of meaningful "Miller hearing" to occur:
A Miller-hearing remedy provides inadequate relief in a retroactive context for a juvenile such as Jackson, whose sentence was imposed nearly 10 years ago. Based on the significant passage of time since Jackson’s 2006 sentencing, holding a fair and meaningful Miller hearing is not possible. 
Concluding, the Justice stated:
We hold that Minn. Stat. §§ 609.106, subd. 2, 244.05, subds. 4-5 (2014), are severed as applied to Jackson and any juvenile offenders who received mandatory LWOR sentences that were final before the Miller rule was announced. The most recent constitutional versions of those statutes are revived. Based on Jackson’s conviction of first-degree premeditated murder, the revived statutes require a sentence of life imprisonment with the possibility of release after 30 years, Minn. Stat. §§ 609.106, subd. 2, 244.05, subds. 4-5 (2004). Therefore, we vacate Jackson’s LWOR sentence and remand to the district court for imposition of a sentence of life imprisonment with the possibility of release after 30 years
Just how this will play out for the other juvenile offenders who received mandatory life without possibility of release sentences that were final before the Miller rule was announced remains to be seen. The state has shown no willingness to abandon the preservation of these unconstitutional sentences and so likely each juvenile's case will have to be litigated separately.

Court Upholds Multiple Sentences for Possession of Pornographic Images Acquired on Different Dates

State v. Bakken, Minn.S.Ct., 8/3/2016.  On seven different days between November and June, Mr. Bakken downloaded to his computer's hard drive seven pornographic images of seven different minors.  The state charged Mr. Bakken with seven counts of possession of pornographic work involving minors.  Mr. Bakken pled guilty to all seven counts.  At sentencing he argued that he could only be convicted and sentenced for one count of possession.  He said that this was so for two reasons:  the "unit of prosecution" is possession of the computer on which the images were stored rather than the individual images stored on it; and his offenses were part of a single behavioral incident.  The trial court rejected this view of the statute and the court of appeals affirmed.  Justice Lillehaug agrees with the trial court. 

On this "unit of prosecution" here's what the statute says:
A person who possesses a pornographic work or a computer disk or computer or other electronic, magnetic, or optical storage system or a storage system of any other type, containing a pornographic work, knowing or with reason to know its content and character, is guilty of a felony . . . .
Justice Lillehaug interprets this language to criminalize both the possession of a pornographic work itself, and the possession of a computer storing a pornographic work.  The state could thus choose to charge Mr. Bakken with possession of seven distinct pornographic works.  

On the "single behavioral incident" claim, the general test is whether the offenses occurred at substantially the same time and place, and whether the conduct was motivated by an effort to obtain a single criminal objective.  State v. Bauer, 792 N.W.2d 825 (Minn. 2011).  Mr. Bakken could only establish one of those factors - place - to the court's satisfaction, perhaps because the parties agreed that the seven offenses occurred in the same place, his mom's bedroom. But, on the other two factors things don't go Mr. Bakken's way. The Justice concludes that the seven offenses were not committed at "substantially the same time;" two of the offenses were completed - downloaded onto the computer hard drive - five days apart, and other offense were separated by over a month.  

Here's what the Justice had to say about whether the seven offenses were motivated by an effort to obtain a single criminal objective:
Even assuming that Bakken possessed each of the pornographic works to satisfy his sexual urges, the mere fact that he committed multiple crimes over time for the same criminal objective does not mean he committed those crimes to attain a single criminal objective,
There's no real guidance here, except for a throwaway line that prosecutors need to be somewhat prudent about piling on hundreds of counts, one for each image.  So long as the prosecutor is exercising "some selectivity in enforcement" the sky's the limit.

Sunday, August 7, 2016

Court Rejects Post Conviction Claim of Ineffective Assistance of Counsel

Griffin v. State, Minn., Minn.S.Ct., 8/3/2016.  A jury found Mr. Griffin guilty of two first degree murder offenses for the shooting death of one victim.  The trial court sentenced him on the verdict of first degree premeditated murder. Mr. Griffin is serving a life sentence without possibility of release for a conviction of first degree murder.  The Supreme Court affirmed his conviction on direct appeal in 2013.  Mr. Griffin filed a timely petition for post conviction relief, alleging that he received ineffective assistance of trial and appellate counsel.  The post conviction court denied the claim without benefit of an evidentiary hearing.

Mr. Griffin complained on appeal but not before the post conviction court, that his two convictions - premeditated and drive-by first degree murder - violated Minnesota's statutory double jeopardy statute, Minn.Stat. 609.04, and that his trial counsel was ineffective for not objecting to this prosecution on the two counts. Justice Chutich declines to entertain these two claims because Mr. Griffin did not raise them in his post conviction petition.

Mr. Griffin complained that his trial counsel was ineffective for failing to object to the admission of certain out of court statements of a state witness.  This was an issue that Mr. Griffin raised on direct appeal, unsuccessfully, but the post conviction court considered the claim on the merits under one of the two Knaffla exceptions, "interests of justice, because Mr. Griffin's trial counsel was also his appellate counsel.  Justice Chutich declines to answer the question whether this Knaffla exception applies when trial and appellate counsel are the same; instead, the court assumes that it applies and finds the claim lacking on the merits.  The court also continues to duck the question whether the Knaffla exceptions have been done away with by enactment of the 2005 amendments to the post conviction statute.  See Anderson v. State, 830 N.W.2d 1 (Minn. 2013).

Friday, August 5, 2016

Trial Court Has Authority and Discretion to Hear Late Filed Motion to Amend Timely Filed Motion For New Trial

State v. DeLaCruz, Jr., Minn.Ct.App., 8/1/2016.  A jury convicted Mr. DeLaCruz, Jr. of first degree burglary, kidnapping, several sexual misconduct crimes and assault.  Mr. DeLaCruz, Jr. filed a pro se motion for a new trial within the fifteen day window prescribed by the criminal rules.  Thereafter, but after the expiration of these time limits, the trial judge disclosed that he had received a court file that contained what was possibly an exculpatory police report.  Mr. DeLaCruz, Jr, filed an amended motion for new trial, this time through counsel, raising this possible Brady violation.  The initial trial judge recused himself but the next judge refused to entertain the amended motion for a new trial, saying that it was made too late.

Notice of a motion for a new trial must be served within fifteen days after the verdict or finding of guilty.  The criminal rules do not permit the trial court to extend this deadline but say nothing about amended post-trial motions.  The court of appeals concludes that this fifteen day deadline for new trial motions is a "claim-processing" rule and not a "jurisdictional" requirement.  That meant that the trial court had the authority to hear the amended new trial motion. Mr. DeLaCruz Jr. had a satisfactory reason for making the amended new trial motion outside the fifteen day window because he didn't know about the possible Brady violation during that window. The court remands the case back to the trial court to consider that violation.

Single Mitigating Factor Can Support Sentencing Departure

State v. Solberg, Minn.S.Ct., 7/27/2016.  Mr. Solberg entered a Norgaard plea to criminal sexual conduct in the third degree, claiming that his memory was impaired as a result of intoxication at the time of the offense.  The trial court granted a downward durational departure; the court relied on three factors that were offender-based factors - Mr. Solberg's age, family support, and cooperation - and a fourth factor, remorse. The court of appeals reversed this departure.  Judge, now Justice, Hudson, said that although a single aggravating factor may justify an upward departure she could find no case law saying that a single factor is enough to justify a downward durational departure.

Justice Chutich smacks down her colleague and says that a single mitigating factor is, indeed, enough to support a downward durational departure.  In this case, it's Mr. Solberg's remorse. Remorse remains one of those factors that the court doesn't really know what to do with.  It's said, vaguely, that "there may be cases in which the defendant's lack of remorse could relate back and be considered as evidence bearing on a determination of the cruelty or seriousness of the conduct on which the conviction was based." Got that? Right. State v. McGee, 347 N.W.2d 802, 804 (Minn. 1989). Without any analysis that could carry forward to other cases, the Justice summarily concludes that Mr. Solberg's remorse did not diminish the seriousness of his conduct so the trial court did err in imposing the downward durational departure.

Post Conviction Claims Knaffla Barred

Fairbanks v. State, Minn.S.Ct., 7/20/2016.  A jury convicted Mr. Fairbanks of first degree murder and nine other felonies associated with the homicide of a deputy sheriff.  The supreme court affirmed his murder conviction and all by one of the other felony convictions in 2014. In this post conviction petition Mr. Fairbanks says that he didn't actually cause the death of the deputy sheriff.  He based this claim by asserting - as he apparently did at trial - that in part the family's decision to refuse further medical treatment caused the death.  That is, Mr. Fairbanks is saying that the family committed euthanasia.

Now, before trial the defense and the state struck a deal whereby the defense wouldn't make the euthanasia claim and the state would neither argue about the definition of euthanasia nor ask the medical examiner whether euthanasia caused the deputy's death.  Mr. Fairbanks signed off on this arrangement on the record.  On direct appeal, Mr. Fairbanks did not raise the causation issue.  Justice G. Barry Anderson concluded that Mr. Fairbanks' causation claim was barred under Knaffla because he could have raised the claim on direct appeal but failed to do.  Mr. Fairbanks did not suggest that either of the Knaffla exceptions applied.

Thursday, August 4, 2016

Court Rejects Post Conviction Claims of Ineffective Assistance of Counsel

Swaney v. State, Minn.S.Ct., 7/13/2016.  Mr. Swaney is serving a life sentence without possibility of release.  The supreme court affirmed his direct appeal back in 2010.  In this post conviction go-round, Mr. Swaney made a lot of claims, most of which the post conviction court summarily denied under Knaffla.  The post conviction court did hold an evidentiary hearing on three of Mr. Swaney's ineffective assistance of counsel claims: that his trial counsel had been ineffective by not obtaining the prison phone records of an inmate who claimed that Mr. Swaney made inculpatory statements to him; by not personally interviewing witnesses; and by being inexperienced.  

Justice Dietzen concludes that Mr. Swaney is not entitled to any relief. Mr. Swaney claimed that this inmate had access to information about the crime other than from him, which the jury should have known. Justice Dietzen said, however, that because Mr. Swaney was unable to show what the contents of the inmate phone calls were, it was speculative whether production of those calls would have changed the outcome of the trial. To cover the bases, the Justice went on to say that even if the calls had supported Mr. Swaney's claim, the calls would have been impeachment evidence at most.

Mr. Swaney said it was ineffective for trial counsel to have sent out an investigator to interview witnesses, that counsel should have undertaken that role.  Justice Dietzen rejects this claim as meritless, pointing out that sending out an investigator eliminates the risk that counsel would become a witness and thus unable to continue representation.

Finally, inexperience, by itself is not grounds to support an ineffective assistance claim.  Inexperience can be a factor in judging counsel's performance but that's as far as it goes. Moreover, trial counsel's only apparent "inexperience" was not having previously tried a murder one case.  However, counsel had two co-counsel who had tried murder one cases.