Monday, February 23, 2015
Wednesday, February 18, 2015
In Deciding Motion For Judgment of Acquittal, Trial Court Must Apply the Two-Step Al-Naseer/Silverdnail Legal Analysis
State v. Sam, Minn.Ct.App., 2/17/2015. A state trooper made a traffic stop. Mr. Sam was the driver and R.S. was the front passenger. One thing led to another – there were no challenges to either the stop or the search of the vehicle – and the officers found marijuana and a firearm in the center console. There was methamphetamine in the glove box and on R.S.’s person. The state charged Mr. Sam with several offenses, two of which were possession of narcotics with a firearm enhancement and prohibited person in possession of a firearm. Mr. Sam stipulated that he was ineligible to possess a firearm. A jury convicted him of these two offenses.
Mr. Sam moved for a judgment of acquittal after the verdict. He said that there was insufficient circumstantial evidence to convict him of possession of the methamphetamine and the firearm. The trial court declined to apply the Al-Naseer/Silvernail two-step analysis of the sufficiency of circumstantial evidence, believing that this was an appellate standard of review that trial courts didn’t have to bother with.
The court of appeals says that the trial court is incorrect. Applying that two-step analysis,the court of appeals reverses both convictions. The state conceded that Mr. Sam was not a person who was prohibited from possessing a firearm. That was because he had been discharged from his conviction of felony escape from custody and he had had his civil rights restored.
The firearm was still in play, however, because it enhanced the drug offense. The firearm was in the center console and the meth was in the glove box. No one argued that these items were in a place over which Mr. Sam exercised exclusive control so the state had to prove that Mr. Sam consciously exercised dominion and control over the two items of contraband. The court concludes that the state failed to meet that burden.
As it turned out, it was R.S. whom the trooper saw squirming around in the passenger seat as the stop occurred; the trooper didn’t see Mr. Sam do anything other than drive the car. Ammunition for the firearm was in a backpack in the back seat and the meth in the glove box was directly in front of R.S., who had more meth in his wallet. The officers found no drugs on Mr. Sam’s person. These facts, the court concluded, are not both consistent with guilt and inconsistent with any rational hypothesis other than guilt. The narcotics could have been in the car when Mr. Sam borrowed it, or R.S. may have put the narcotics in the vehicle. Because there are reasonable inferences from the circumstances proved that are inconsistent with Mr. Sam having consciously exercised dominion and control over the narcotics the state failed to meet its burden of proving constructive possession.
Although not an issue presented to the court here, the court does teasingly discuss whether a jury instruction that incorporates the Al-Naseer and Silvernail analysis ought to be given:
In ruling on the motion, the district court discussed whether a jury instruction may properly be given explaining the limitations on the use of circumstantial evidence. While the district court correctly recognized that several Minnesota appellate opinions have commented about the efficacy of incorporating the Al-Naseer and Silvernail analysis into jury instructions, see State v. Andersen, 784 N.W.2d 320, 340 (Minn. 2010) (Meyer, J., concurring and writing for three justices); State v. Tscheu, 758 N.W.2d 849, 871 (Minn. 2008) (Meyer, J. concurring); McCormick, 835 N.W.2d at 505 n.2, appellant did not argue to the district court, and does not argue on appeal, that the jury instructions were erroneous or insufficient. The absence of a jury instruction concerning the limitations on the use of circumstantial evidence elevates the importance of the district court’s proper evaluation of a motion for judgment of acquittal in circumstances such as are present here.
Sunday, February 15, 2015
State v. Bernard, Jr.,, Minn.S.Ct., 2/11/2015. This is the long awaited DUI test refusal opinion. Bernard, Jr. said that the refusal statute is unconstitutional because it makes criminal the exercise of a right to refuse to consent to an unconstitutional search. Whether in a particular case the submission to a breath test is an unconstitutional search turns largely on how (or how far) one reads the McNeeley opinion. McNeeley upended what had been the prevailing view that Schmerber established pretty much an unwritten rule that the natural dissipation of alcohol in the body was a sufficient exigency to permit a forced breath test without a warrant. The five justice McNeeley majority said, no, that's not what Schmerber meant. The cop on the scene of a DUI arrest needs a warrant unless the circumstances of that arrest make that an unreasonable endeavor.
So, just as Schmerber did not - apparently - always dispense with the warrant requirement because of dissipation McNeeley does not always obligate a warrant because of dissipation.
A driver's refusal to submit to alcohol content testing is to go down the rabbit hole. Even drunks out on the roads who are annually causing roughly thirty percent (30%) of highway deaths nationally cannot be constitutionally punished for the exercise of a constitutional right. If McNeeley requires a warrant in the particular circumstances under review then the refusal to blow into the tube is constitutionally protected.
The court of appeals thought it could climb out of the rabbit hole by asking whether the cop on scene could have obtained a warrant. What came to be known as the "virtual warrant" was surely not going to survive and it did not. In its stead, Chief Justice Gildea, for five members of the court, extends a well known exception to the warrant requirement - search incident to lawful arrest - to extract the very breath out of your lungs. Back down (deeper) into the rabbit hole.
In the days between Schmerber and McNeeley, lower courts more or less glossed over just what the justification was for a forced alcohol test without a warrant. Schmerber, at least as it came to be applied, didn't require paying much attention to articulating a justification. Schmerber rather quickly morphed into a convenient "rule of thumb" that the dissipation of alcohol was enough to support the forced alcohol test without a warrant. Those sanguine days are, of course, now gone. After McNeeley, a warrant may be the default but McNeeley may still let the magistrate get a lot of shut eye.
In the interim between Schmerber and McNeeley a small handful of courts did say, without much thought, that a forced alcohol test without a warrant is a "search" incident to a lawful arrest. And a reasonable one at that. Schmerber did not say that; what it did say was:
Search warrants are ordinarily required for searches of dwellings, and absent an emergency, no less could be required where intrusions into the human body are concerned.
See, generally, "Do Warrantless Breathalyzer Tests Violate the Fourth Amendment?." (Sorry, Westlaw subscription required.).
Justices Page and Stras, penning a joint dissent, were horrified by the adoption of this rationale. It finds no support from the U.S. Supreme Court and most of the opinions that have relied on this theory are before McNeeley and so are of dubious validity.
It's a disconcerting theory on which to rely for sure. While routine trips to the local ER for prostate exams or other body cavity intrusions of suspects doesn't seem to be on the horizon, what of more routine, less invasive intrusions? DNA cheek swabs? Or Heimlich maneuvers to force the expulsion of drugs from an arrestee's mouth? Cf. State v. Hardy, 577 N.w.2d 212 (Minn. 1998). Genital swabs? Cf. State v. Zornes, 831 N.W.2d 609 (Minn 2013). It was not lost on any of the justices that just last term the Supreme Court said that cops need a warrant to view the contents of a cell phone. That is not required, say five members of the Minnesota Supreme Court, to "view" an exemplar of breath in order to measure alcohol content. The juxtaposition of the constitutional protection afforded to one's "selfies" and one's breath is jolting. Bernard, Jr. creates the very "bright line rule" that McNeeley just rejected.
Which begs the question, did the court of appeals really get it so wrong, or did they just answer the wrong question? McNeeley asks whether the cop's decision to forgo getting the magistrate out of bed in the middle of night to sign (actually or electronically) a search warrant was reasonable under all the circumstances? Not whether the magistrate would have signed the warrant but whether it was reasonable to dispense with finding out. Was it really necessary for Justice Gildea to significantly expand the breadth of "search incident to lawful arrest" to save the refusal statute? Is not the analysis now required under McNeeley - a totality of circumstances analysis - the same whether the suspected drunk driver blew or refused to blow?
If asked to do so, Bernard's expansion of the search incident doctrine, in the face of Riley and Gant, both of which circumscribed the reach of the doctrine, may well provoke SCOTUS once again to take a look at Minnesota's handiwork.
Tuesday, February 10, 2015
Friday, February 6, 2015
No Constitutional Right to Morrissey Advisory During Revocation Hearing; Court Avoids Issue of Waiver of Those Rights
Monday, February 2, 2015
Sunday, February 1, 2015
No Sixth Amendment Violation From A Defendant’s Request to Close the Courtroom Because Closure Did Not Seriously Affect the Fairness of the Judicial Proceedings
State of Minnesota v. Benton, Minn.S.Ct., 1/28/2015. During Mr. Benton’s jury trial he made two requests to the trial court to close the courtroom. The trial court granted both requests without objection by the state. During the first courtroom closure Mr. Benton complained about some testimony that had been received in evidence and about his dissatisfaction with his trial counsel. During the second courtroom closure Mr. Benton asked to be absent from that day’s proceedings. During that discussion Mr. Benton was apparently in restraints and dressed in a jail jumpsuit.
On appeal, Mr. Benton said that these courtroom closures violated his Sixth Amendment right to to a public trial. Justice Anderson, writing for a unanimous court, rejected this argument. Justice Anderson did so for two reasons: first, Mr. Benton invited the alleged error and the alleged error did not seriously affect the fairness, integrity,or public reputation of the judicial proceedings. This “invited error” doctrine has been applied in courtroom closures in the past. State v. Kortness, 284 Minn. 555, 170 N.W.2d 210 (1969). Even in an “invited error” situation, an appellate court is still required to review the error if it seriously affects the fairness, integrity or public reputation of judicial proceedings. Such review is akin to plain error review. Mr. Benton not only consented to the courtroom closures he requested them. He made the requests in the belief that they would benefit his defense. Mr. Benton cannot, therefore, meet the “seriously affect” test.
Mr. Benton also complained about the admission of relationship evidence. The court had admitted such evidence that was against persons other than the victim of the offense for which he was on trial. He said that such non-victim relationship evidence should not have been admitted and that the probative value of that evidence was substantially outweighed by the danger of unfair prejudice. Justice Anderson did not say whether admission of this evidence was error because in the court’s view admission of this evidence did not significantly affect the verdict.
The state had charged Mr. Benton with first degree domestic abuse murder, which requires proof of a “past pattern” of domestic abuse. On his motion, the trial court bifurcated that element of first degree domestic abuse murder from the other elements. Despite the bifurcation, the trial court admitted relationship evidence during both phases of the trial. Justice Anderson didn’t seem to think this mattered, even though the upshot was to vitiate the bifurcation; the whole point of the bifurcation was to keep relationship evidence out of play during the jury’s determination of guilt/innocence of the actual homicide. The Justice avoids this problem by eschewing deciding whether admission of the relationship evidence – regardless of when it came in – was an error at all.
Monday, January 26, 2015
Wednesday, January 21, 2015
Monday, January 19, 2015
State v. Salyers, III, Minn.S.Ct., 1/14/2015. Officers raided Mr. Saylers’ home under authority of a search warrant to search for stolen property. No one was home during the search. Officers found a locked gun safe in a bedroom. Inside, the officers found three firearms. S.B., who had just moved out of Mr. Salyers’ home, told officers that she owned the gun safe and one of the firearms. A jury convicted Mr. Salyers. On appeal, the court of appeals said that a person possesses “the readily accessible firearms inside a container under that person’s control.”
Justice Page affirms the court of appeals but rejects its reasoning. “Ready access” is too easy; case law has always said that constructive possession cases are “necessarily fact driven” and that they are not to be determined by examination of only one factor. The Justice cites several cases in which the trial court had placed special emphasis on a particular factor in its instructions, only to see those convictions reversed. While ease of access is one factor relevant to establishing constructive possession “it is not the sole factor or necessarily even the most important factor.” Rather, all of the factors that the court had previously identified in State v. Florine, 303 Minn. 103, 226 N.W.2d 609 (1975) were in play in determining constructive possession of items within a container:
In Florine, we held that to establish constructive possession, the State must show either (1) that the prohibited item was found “in a place under defendant’s exclusive control to which other people did not normally have access,” or (2) if the prohibited item was found “in a place to which others had access, there is a strong probability (inferable from other evidence) that defendant was at the time consciously exercising dominion and control over it.”
Here, Justice Page concludes that the state present sufficient direct evidence that the firearms were in a place under Mr. Salyers’ exclusive control to which other people did not normally have access.
O’Connell v. State, Minn.Ct.App., 1/12/2015. The state charged Mr. O’Connell with one count of driving while impaired after his urine tested positive for amphetamines. After he lost his suppression motion he pled guilty. After that conviction became final, Mr. O’Connell filed a post conviction petition asking to be allowed to withdraw the guilty plea and be granted a new trial because the trial court’s failure to suppress the urine test, obtained without a warrant or voluntary consent “compelled him to plead guilty.” The post conviction court denied the petition and the court of appeals upholds that denial.
The court of appeals says that Missouri v. McNeely, 133 S.Ct. 1552 (2013) does not apply retroactively on collateral review of a final conviction. The court applied the retroactivity analysis from Teague v. Lane, 489 U.S. 288 (1989) and concluded that the rule from McNeely is a new rule; McNeely announced a rule that was not “dictated” by precedent existing at the time the conviction under attack became final. Such a new rule applies retroactively to final convictions only if the rule is a watershed rule of criminal procedure.
State v. Munger, Minn.Ct.App., 1/12/2015. The state charged Mr. Munger with three counts of failure to register under the predatory registration statute: (1) Failure to provide written notice five days before he moved from Minnesota to Colorado; (2) failure to inform his agent or law enforcement authority that he was no longer employed; and (3) failure to return the annual verification letter sent to him in Colorado. Mr. Munger’s underlying conviction that triggered registration was an assault in the second degree, the jury having acquitted him of kidnapping and false imprisonment charges involving an adult. At the time of that conviction, kidnapping required registration only if a minor was involved. Mr. Munger moved to dismiss these three charges because he was not a “person required to register.” The trial court denied that motion and the judge convicted him of all three counts. The court imposed a concurrent thirty-six month sentence of counts one and three but imposed a consecutive sentence of one year and a day on the other one.
On appeal, Mr. Munger argued that the registration statute does not require written notice of change in employment. That, it turns out, is correct. Even so, however, there was enough evidence to prove that he had failed to give even verbal notice that he’d quit his job when he moved to Colorado. On the dismissal argument – acquittal of the offenses that required registration – Mr. Munger’s argument was that acquitted charges cannot support a probable cause finding for purposes of the registration statute. This is a riff on State v. Lopez, 778 N.W.2d 700 (Minn. 2010), which held that an offender does not need to be convicted of a predatory offense in order to trigger the registration requirements so long as the predatory offense is support by probable cause. In Lopez, the predatory offense had been dismissed. In State v. Haukos, 874 N.W.2d 270 (Minn.Ct.App. 2014) the court of appeals affirmed the use of acquitted charges to require registration. The court was not willing to revisit that holding.
Wednesday, January 7, 2015
Monday, January 5, 2015
Wednesday, December 31, 2014
Monday, December 29, 2014
Saturday, December 27, 2014
State v. Hunter, Minn.Ct.App., 12/22/2014. Officers who were on a drug surveillance detail saw Mr. Hunter, the driver of an SUV, holding what one of these officers believed to be a bag of crack cocaine in the area between the two front seats. This same officer also saw Mr. Hunter drop the bag of crack cocaine onto the passenger seat, whereupon the passenger pushed the bag onto the floorboard.
The state charged Mr. Hunter with a second degree drug crime. Among other instructions, the state asked the trial judge to tell the jury that “constructive possession exists when an object is not on the person or in his immediate presence but it is in a place subject to that person’s conscious dominion and control.” Despite the objection from Mr. Hunter’s lawyer, the court gave that instruction. The jury convicted Mr. Hunter.
On appeal, Mr. Hunter said that this instruction misstated the law on constructive possession. Specifically, he said that this instruction allowed the jury to convict him if he exercised dominion and control over the space where the cocaine was found – the SUV – rather than over the cocaine, itself. The court of appeals agrees with Mr. Hunter and awards him a new trial.
Now, neither the law nor the pattern jury instruction is a model of clarity. Back in 1975, the supreme court said:
a jury may find that a defendant constructively possessed a controlled substance “in a place to which others had access [and] there is a strong probability (inferable from other evidence) that defendant was at the time consciously exercising dominion and control over it.”
The pattern jury instructions are no more helpful. It says:
In order to find the defendant possessed , it is not necessary that it was on the defendant's person. The defendant possessed if it was in a place under the defendant's exclusive control to which other people did not normally have access, or if found in a place to which others had access, defendant knowingly exercised dominion and control over it.]
So, is “it” the place where the drugs are or is “it” the drugs themselves? “It” is the drugs themselves. The court of appeals cites to several other cases in which the supreme court does make that clear. Among them is State v. LaBarre, 292 Minn. 228, 195 N.W.2d 435 (1972); State v. Robinson, 517 N.W.2d 336 (Minn. 1994); and State v. Dickey, 827 N.W.2d 792 (Minn.Ct.App. 2013). In this last case the court said:
a police officer has probable cause to arrest a suspect for constructive possession of a controlled substance when . . . there is a strong probability that the suspect was exercising or had exercised dominion or control over the controlled substance.
Mr. Hunter also complained about all the drug testing business over at the St. Paul crime lab. But, having awarded Mr. Hunter a new trial on the instruction error, it didn’t need to get into all that. The court did uphold the denial of Mr. Hunter’s motion to suppress evidence. The court agreed with the trial court that the officers had the requisite reasonable suspicion justifying the officer’s approach of the SUV and the seizure:
Officers were present in the parking lot because it was known as a location for drug transactions. Although this alone does not constitute reasonable suspicion of criminal activity, see State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992), a police officer also testified that he observed Hunter’s SUV enter the parking lot and park in a location that, according to the officer’s training and experience, indicated preparation for a drug transaction. The officer also observed the sedan enter the parking lot and park in a location consistent with the same inference of a potential drug transaction. The officer then observed the sedan’s driver and passenger leave the still-running vehicle, enter Hunter’s SUV, and begin talking with him. Although Hunter is correct that these actions may also be consistent with innocent explanations, when taken together with the police officers’ training and experience, they are sufficient to constitute reasonable suspicion justifying the officers’ approach and investigatory seizure. . . .Having developed reasonable suspicion justifying an investigatory seizure, the police officers were justified in opening the car door even before viewing the cocaine. See State v. Ferrise, 269 N.W.2d 888, 890 (Minn. 1978) (holding that officer safety and other concerns authorize police officers to open car doors during an investigatory seizure).
Wednesday, December 17, 2014
Monday, December 15, 2014
Thursday, December 11, 2014
Monday, December 8, 2014
Police Interrogation After Initial Court Appearance & Appointment of Counsel Did Not Violate Either Sixth Amendment or Professional Conduct Rules
State v. Ware, Minn.Ct.App., 12/8/2014. Mr. Ware’s girlfriend called the police to report that Mr. Ware had assaulted her. The investigator assigned to the case got to work on it the next day and four days after that he sent a recommendation to the prosecutor that Mr. Ware be charged. Meantime, Mr. Ware kept pestering the police department with phone calls in which he said that he wanted to come in and talk. Mr. Ware finally just went down to the police station where officers promptly arrested him.
The prosecutor filed a criminal complaint, Mr. Ware made his initial appearance on that Complaint, and the court appointed him a lawyer. Two days later, the investigator showed up at the jail to interrogate Mr. Ware. Mr. Ware listened through the Miranda warning, signed the waiver and then made lots of admissions. He did not tell the investigator that he either had an attorney or wanted the attorney to be present. The investigator made no effort to determine whether Mr. Ware had already been arraigned on the criminal complaint and had counsel appointed. Rather, he chose to believe, because it was most convenient, that Mr. Ware was in jail on a probation violation. A riff on The Ostrich Instruction.
Mr. Ware moved to suppress his statement to the investigator because the investigator had not first contacted defense counsel and because he should have known that Mr. Ware was represented. The trial court concluded that the prosecutor had been totally out of the loop and that it was “questionable” whether the investigator knew that Mr. Ware was represented. The trial court denied the suppression motion.
And the court of appeals affirms. A defendant, the court says, may waive the right to counsel whether or not he is already represented by counsel. If the state proves that the waiver was valid – that is, it was a knowing, intelligent and voluntary act – then the statement is admissible.
Mr. Ware also complained that the investigator’s interrogation violated a rule of professional conduct that prohibits an attorney from interviewing a represented defendant without opposing counsel’s presence or consent. There was no proof that the prosecutor had any contact with Mr. Ware without defense counsel’s presence or consent. So, to come within this rule of professional conduct, the prosecutor either had to have ordered or ratified the interrogation. Because the prosecutor had no knowledge of the interview until it was concluded he neither ordered nor ratified the interrogation.