If You Enter the State, Even In Custody, You Are Subject to the Predatory Registration Statute.

In the Matter of the Risk Level Determination of G.G., Minn.Ct.App., 8/25/2009.  The Wabasha County Attorney charged G.G. with various crimes; at the time G.G. was serving a prison sentence over in Wisconsin.  Because it was a sex crime G.G. was required to register in Wisconsin as a predatory offender.  After a while, Wisconsin sent G.G. over to Minnesota to take care of the Wabasha County charges; G.G. spent about three weeks in the local jail and then returned to Wisconsin.

The Department of Corrections determined that G.G. was also required to register as a predatory offender in Minnesota.  G.G. took issue with this, saying that he had not entered Minnesota and remained for 14 days or longer.  Minn.Stat. 243.166, subd. 1b(b)(2).  G.G. said that entry only counts when it’s volitional. The appellate court concedes that the statutory text is ambiguous so it gets to look at the purpose of the registration statute.  That clinches it; G.G. has to register even when he’s hauled over in handcuffs.

No Entitlement to Voluntary Intoxication Instruction on Reckless Terroristic Threats Charge.

State v. Bjergum, Minn.Ct.App., 8/25/2009.  Mr. Bjergum came to work drunk one day; his employer sent him home, then fired him.  About a month later, a former coworker and her husband separately ran into Mr. Bjergum drinking at a local bar; on each occasion Mr. Bjergum said that if he didn’t soon get his unemployment he would go down to his former workplace and “go postal.”  The state charged him with intentional terroristic threats.  When Mr. Bjergum gave notice of an intoxication defense the state added a second terroristic threats count, this one alleging reckless conduct.  At trial, the court refused to give an intoxication instruction on the reckless terroristic threats count.  As luck would have it, the jury acquitted on the intentional terroristic threats but convicted on the reckless one.  That was the issue on appeal.

Back in 1976, the Minnesota Supreme Court said that voluntary intoxication is a defense if a particular intent or other state of mind is a necessary element of the crime charged.  City of Minneapolis v. Altimus, 306 Minn. 462, 238 N.W.2d 855 (1976).  So, the legal question is whether making terroristic threats with reckless disregard for the consequences requires specific intent.  Mr. Bjergum first argued that there’s no such thing as an unintentional threat and so terroristic threats requires intentional conduct.  The appellate court says that this isn’t so.  A declared threat, say, “I’m going to kill you.” may be just that or it may be a joke.  It’s a crime regardless when the statement would reasonably cause fear that the speaker will act accordingly. 

Next, Mr. Bjergum argued that the recklessness requirement is that “other” state of mind that triggers a voluntary intoxication instruction.  Again, the appellate court rejects this.  Although recklessness requires deliberate action in disregard of a known, substantial risk, it is not the same as specific intent.  The reckless declaration, however intended, may violate the statute.

 

In a Burglary Prosecution the State Cannot Rely Upon the Domestic Abuse Prior Bad Acts Statute to Introduce Evidence of those Prior Bad Acts.

State v. McCurry,Sr., Minn.Ct.App., 8/18/2009.  As G.M. was getting ready for work, an intruder, whom G.M. afterwards identified as her ex-husband, Mr. McCurry, broke into her home.  The intruder stole G.M.’s wallet and left.  G.M. used a ruse by which to meet with Mr. McCurry later that day, at which time the police arrested him.  The state charged Mr. McCurry with burglary and theft.

The McCurry’s had had a contentious relationship and things didn’t let up once the trial started.  The fireworks started right away when the prosecutor asked G.M. what happened after the two of them had met and she became pregnant.  She volunteered that soon after that Mr. McCurry went to prison for attempted criminal sexual assault.  It continued when the state wanted to introduce evidence of all the prior bad acts between them, which the state said was admissible under 634.20.  This statute has noting to do with burglary:

634.20 EVIDENCE OF CONDUCT.

Evidence of similar conduct by the accused against the victim of domestic abuse, or against other family or household members, is admissible unless the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

G.M. was prepared to testify to various instances of physical abuse and sexual infidelities during the marriage.  She was also ready to testify about three incidents that occurred shortly before the burglary; in one Mr. McCurry came to her house, argued with her, pushed her and smashed her phone, causing her to flee.  In another, he came to her house through the kitchen window and “stayed with her overnight.”  In the third, he phoned her and made a veiled threat, after which G.M. discovered damage to her car.  The trial court ruled that G.M. could testify to these three incidents and could testify generally that she and Mr. McCurry had had problems.  This ruling was the main issue on appeal.

The appellate court concludes that 634.20 applies only to trials that involve charges of domestic abuse.  That being so, the appellate court looked for other justifications for the admissibility of G.M.’s testimony.  The court concludes that her general evidence about tensions and disagreements was admissible as relationship evidence without regard to the statute or to a Spreigl analysis.  On the other hand, the three specific incidents were admissible only under a Spreigl, analysis.  Since the state didn’t believe it needed to comply with Spreigl, it did not give Mr. McCurry the proper notice; testimony about the three specific incidents was thus not admissible.  Unfortunately for Mr. McCurry, the error was harmless.

Mr. McCurry also complained that the prosecutor commented on his failure to call alibi witnesses.  The appellate court says that such comments are prosecutorial misconduct, but this misconduct was harmless.

The Dangerous Weapon Need Not Have Caused The Substantial Bodily Harm to Support a Conviction of Second Degree Assault.

State v. Harlin, Minn.Ct.App., 8/25/2009.  Mr. Harlin suspected that his girlfriend was cheating on him so he set about to find out.  Mr. Harlin believed that an aggressive approach was required, but instead of water boarding he used a mallet and a hammer; over the next forty five minutes he hit her with one or the other each time he didn’t believe her answers to his questions.  (Still dissatisfied, he tried to hang her by wrapping an electrical cord around her neck.)  Among other things, the state charged Mr. Harlin with second degree assault with a dangerous weapon, substantial bodily harm.

Here’s what the statute says:

609.222 ASSAULT IN THE SECOND DEGREE.
Subd. 2. Dangerous weapon; substantial bodily harm. Whoever assaults another with a dangerous weapon and inflicts substantial bodily harm may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both.

Mr. Harlin conceded that he used a “dangerous weapon” and that his girlfriend suffered bruises on her back and a cut to her scalp.  He argued that the state had to prove that the dangerous weapon caused the substantial bodily harm.  The appellate court isn’t buying the argument.  The court says that all that is necessary is an assault that results in substantial bodily harm and that the assault involves the use of a dangerous weapon. 

All Your Car’s Brake Lights Must Work; If Not, There’s Justification To Stop You; An Officer Can Also Stop You For Littering.

State v. Beall, Minn.Ct.App., 8/25/2009.  A Coon Rapids officer saw a car with its center brake light out; worse than that, the officer saw a passenger throw a cigarette butt out the window.  Seeing enough, she pulled the car over.  Noticing an alcohol smell, the officer administered a field sobriety test to Mr. Beall, on which he registered .212.  The officer arrested Mr. Beall; at the station, his Intoxilyzer reading was .210.

The district court concluded that because Mr. Beall’s car had two working brake lights as required by Minn.Stat. 169.57, subd. 1(a) the officer had no basis on which to have stopped the car.  Further, littering was not “really an issue.”  The state appealed the suppression of its evidence.

The problem was, the trial court overlooked a different subsection of the statute, 169.57, subd. 3(a), which says that no matter how many you have all of your “stop lamps” have to be working:

[W]hen a vehicle is equipped with stop lamps or signal lamps, such lamps shall at all times be maintained in good working condition.

The appellate court rejects Mr. Beall’s argument that his just refers to the two “stop lamps” that the other subsection mentions.  So, two out of three isn’t good enough; the officer’s observation of the burnt out center brake light gave her justification to stop the vehicle.

To add insult to injury, although littering is a petty misdemeanor, the officer’s observation of it also justified the stop.

Exigent Circumstances, Genital Searches Incident to Arrest – Well You Have to Read It.

State v. Lussier, Minn.Ct.App., 8/18/2009.  At around two in the morning, officers met up with a woman who was wrapped in a blanket, shaking, crying uncontrollably as she reported that she had just been raped inside the next door garage.  The officers checked out the garage, during which they saw various items of female clothing, condom wrappers, and a make shift bed, among other things.  The officers did not see anyone inside the garage.  Roughly an hour later, the officers decided that the rape suspect was inside the house next to the garage, perhaps destroying evidence, such as body fluids.  The officers knocked on the door but got no response so they forced themselves inside.  They found Mr. Lussier inside.  The officers swabbed Mr. Lussier’s bleeding hands, then took him to the hospital for a sexual assault exam.  At the hospital, someone combed his pubic hair and swabbed his cheek, swabbed his hands (again) and swabbed his penis.  All this without a warrant.

The trial court suppressed the evidence obtained during the search of the residence, and the evidence obtained during the sexual assault exam.  The trial court said that there were no exigent circumstances to support the residence search and the sexual assault exam was a fruit of the unconstitutional residence search.  The state appealed this pretrial ruling and gets a split decision.

Although the U.S. Supreme Court has never really settled the question, Minnesota has utilized one of two tests to determine the existence of exigent circumstances:  either a single factor or by the totality of the circumstances.  State v. Gray, 456 N.W.2d 251 (Minn. 1990).  Once such single factor is the imminent destruction or removal of evidence.  Under both tests, the standard is an objective one:  whether the officer reasonably believed that Mr. Lussier was capable of destroying evidence.  That officers had been told by a neighbor that Mr. Lussier was most likely extremely drunk and asleep is interesting but not determinative.  The possible destruction of evidence thus justified the entry into the residence without a warrant.

That said, the hospital exam cannot be excluded as the poisonous fruit.  On the other hand, the examination at the hospital of Mr. Lussier’s genitals was not a valid search incident to a lawful arrest.  First, it may be okay to look at Mr. Lussier’s penis, State v. Riley, 303 Minn. 251, 226 N.W.2d 907 (1975), but that’s a far as it goes without a warrant (or, I suppose, consent).  Moreover, Mr. Lussier was handcuffed and under constant police observation during the exam, which brings this exam within the orbit of Arizona v. Gant, 129 S.Ct. 1710 (2009) (“If there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the search-incident-to-arrest exception are absent and the rule does not apply.”).

Permissive Consecutive Sentencing on a DUI Is At A Zero Criminal History Score

State v. Johnson, Minn.Ct.App., 8/18/2009.  An officer down in Scott County stopped Mr. Johnson, apparently on suspicion of driving while impaired.  He was.  The state charged him with gross misdemeanor driving after cancellation and with felony first degree driving while impaired.  He pled guilty to both charges, with an agreement for the court to sentence him first on the gross misdemeanor.

His criminal history score was eight.   The district court gave Mr. Johnson a year in jail on the gross misdemeanor.  The trial court used the history score of 8  and imposed a stayed sentence of 102 months, consecutive to the gross misdemeanor, which was a departure from the guideline sentence of 75 months executed.  Later, the district court reduced the sentence on the felony to 75 months, again using a history score of eight.

Mr. Johnson appealed, saying that the trial court should have sentenced him at the zero history score level.  The appellate gets to that after first pointing out that permissive consecutive sentencing for the felony is authorized by statute, Minn.Stat. 169A.28, subd. 3:

The court may order that the sentence imposed for a violation of section 169A.20 (driving while impaired) run consecutively to a previously imposed misdemeanor, gross misdemeanor, or felony sentence for a violation other than section 169A.20.

When it came time to sentence of the felony, he had the requisite “[just] previously imposed … gross misdemeanor … sentence for a violation other than section 169A.20.

The real fight is over the history score, zero (for permissive consecutive sentencing) or eight.  The state argued that because Guidelines II.F.2. says nothing about permissive consecutive sentencing for a felony driving while impaired then the actual criminal history score wins.  The state’s argument is based on this language from II.F.:

Except when consecutive sentences are presumptive, consecutive sentences are permissive (may be given without departure) only in the following cases . . . .

And then it lists seven instances where permissive consecutive sentencing is okay, none of which is remotely close to a felony driving while impaired sentence.  The appellate court says, no, anyway, that the correct history score is zero, mostly because it doesn’t like the result.  While the appellate court correctly points out that the statute, 169A.28, subd. 3 is more specific than the guidelines, the statute is totally silent on what criminal history score to utilize so the court’s footnoted reliance on this argument is somewhat thin.  Nonetheless, Mr. Johnson wins and gets to go back for a new sentencing hearing with a zero history score.

Whether the Inclusion in a Complaint of only a Victim’s Initials Suffices to Enable a Determination of Probable Cause is a Case By Case Determination

State v. Dunson, Minn.Ct.App., 8/18/2009.  The criminal complaint in this (and a companion) case identified the victims only by initials.  The names were disclosed in discovery materials provided under the criminal rules.  The trial court, on its own, ruled that the use of initials in the complaints violated the rules of criminal procedure and due process requirements of the federal and state constitutions.  The trial court said that the name of the victim was an essential element of a complaint, the absence of which precluded a finding of probable cause.  Accordingly, the complaints were dismissed.  The state appealed.

First, it’s an appealable order. 

Second, it is generally unnecessary for purposes of determining probable cause to include the actual names of the victim of the alleged offense.  Rule 2.01 requires only that the trial court determine that an offense has been committed and that the charged defendant committed it.  The appellate court could find no requirement in this rule or any other rule that the actual name of the victim be stated in the complaint.  As a due process/notice requirement, whether the charging document adequately identifies the alleged victim through information other than a name is a fact specific question; a blanket pronouncement that the actual name must be provided in order to apprise a defendant of the nature and cause of the accusations against him goes too far.

A Hearing To Consider Conferring Use Immunity is not a “Critical Stage” at Which a Defendant Has a Right to be Present.

State v. Booker, Minn.Ct.App., 7/28/2009.  Two men, one of whom was alleged to be Mr. Booker, robbed a taxicab driver at gunpoint.  The investigating officer got the cell phone number used to order the cab and traced it back to an apartment located at the same address that the taxicab driver had picked up the two men.  R.G. lived at this apartment and he did not fit the description of the two assailants.  He did lead the officer to two men who had come to his apartment at the time of the robbery:  J.R., and Duckworth.  R.G. picked photos of both of these men from a photo array.

The investigating officer then built two photo arrays to show to the taxicab driver; one had J.R. as the suspect and the other had Duckworth; neither array contained a photo of Mr. Booker.  The officer showed the arrays to the taxicab driver, who picked J.R. and Duckworth from them.  Finally, the officer showed the taxicab driver one last photo array, intended to rule out J.R. as a suspect; it contained a photo of Mr. Booker.  The taxicab driver then said that he had been wrong about J.R. but that he was 100 percent certain that Mr. Booker was the person who had pointed the gun at him.

But all of this has little to do with the meat of the Opinion.  Rather, the central issue was whether Mr. Booker had a right to be present when the trial court pondered whether Mr. Duckworth could assert a Fifth Amendment privilege and refuse to testify.

Duckworth gave a confession of sorts; it at least put Booker in the cab – the right cab – at the time of the robbery.  Duckworth, however, got cold feet and refused to testify at Booker’s trial, whereupon the state offered him use immunity.  Because Duckworth had already been tried and convicted for his roll in the robbery, the trial court held a hearing to determine whether Duckworth still had a Fifth Amendment privilege to assert; the trial court held this hearing in secret with neither Mr. Booker nor his attorney present.  When Booker’s attorney complained, the trial court held a second hearing after which it ordered Duckworth to testify.

On appeal, Mr. Booker argued that he had a right to be present at the first hearing where the court considered whether there was a Fifth Amendment privilege to be asserted.  The appellate court rejects this argument for three reasons:  the rules of criminal procedure don’t mention hearings under the use immunity statute, 609.09; the statute only requires notice to the person whose testimony is to be compelled, omitting any reference to the defendant; case law suggests that use immunity is often granted before the start of the trial, without the presence of either the defendant or counsel.  Although the appellate court said there were three reasons, it actually mentions a fourth one:  a defendant has no standing to challenge the court’s ruling to grant immunity.

Mr. Booker made various pro se challenges to the identification procedures, all of which the appellate court rejected.

Admission of Prior Bad Acts, Offered to Prove Motive, Was Proper.

State v. Burrell, Minn.S.Ct., 8/20/2009.  Mr. Burrell has been twice convicted for the shooting death of Tyesha Edwards, age eleven;  Mr. Burrell was shooting at someone else, Timothy Oliver.  One of the bullets went through Mr. Oliver’s pants before it struck Edwards.  Mr. Oliver and Mr. Burrell were members of rival gangs at the time; (Mr. Oliver died in between the two trials.)  The Minnesota Supreme Court reversed Mr. Burrell’s first conviction, a judge convicted him again, and he again appealed.

The trial court permitted the state to elicit evidence of four “prior bad acts.”  First, that some years back Mr. Burrell had shot at one of the state’s witnesses, Dameon Leake; Mr. Leake testified that Mr. Burrell told him that he’d been trying to “smoke Little Timmy” when Edwards got killed.  The state was also allowed to elicit evidence from another of its witnesses, Terry Arrington, that Mr. Burrell had shot at Mr. Arrington and Mr. Oliver some time before the Edwards shooting, all the while saying “What up, Blood.” as he fired.  Mr. Arrington testified that Mr. Burrell had told him that the bullet that hit Edwards had first gone through Oliver.  Next, Deleon Walker testified that Mr. Burrell had shot at him some years back; as with the Edwards shooting, Mr. Burrell missed Mr. Walker but struck another person instead.  Finally, Mr. Burrell’s ex-girlfriend testified that Mr. Burrell had shot at the occupants of a passing car as those occupants shot back.

On appeal Mr. Burrell challenged the introduction of all this prior bad acts evidence.  The trial court had allowed in this evidence to prove motive.  Mr. Burrell contended that the prior act, when offered to prove motive, must be of a “but for” character:  if not for the bad acts, the defendant would have had no reason to commit the charged offense.  The appellate court rejected this contention.  The question is whether the evidence is material and relevant; if so, then the next question is whether the probative value weighed against the potential for unfair prejudice.  The appellate court answered both questions, yes.  It’s important to emphasize that the prejudice question may have received a different answer had this been a jury trial.

Mr. Burrell also challenged the introduction of certain gang testimony from a “gang expert.”  The appellate court assumed without deciding that some of the testimony was erroneously admitted but said it was harmless.  The issue at trial had been whether Mr. Burrell was the shooter; because none of the gang testimony alleged that Mr. Burrell was the shooter its admission was harmless.

Finally, the state conceded that the trial court could not impose a sentence that was longer than the original sentence.  See Hankerson v.State, 723 N.W.2d 232 (Minn.2006).

“Cornerhouse” Interview of Child Sexual Abuse Victim is “Testimonial” under Crawford.

Bobadilla v. Carlson, 2009 WL 2392182, C.A.8 (Minn. 2009).  See State v. Bobadilla, 709 N.W.2d 243 (Minn. 2006).   The Minnesota Supreme Court had ruled that a social worker’s interview of a child sexual abuse victim was not “testimonial” under Crawford v. Washington, 541 U.S. 36 (2004).  The trial court could, therefore, admit the interview when the child was unavailable because of young age (incompetent).  The Eighth Circuit effectively reversed the Minnesota Supreme Court.  Here’s the salient paragraph from the Opinion of the Eighth Circuit, granting Mr. Bobadilla’s federal habeas petition and ordering a new trial:

Crawford held that statements taken by police officers in the course of interrogations are testimonial under even the narrowest standard, and it was unreasonable for the Minnesota Supreme Court not to conclude the interview of T.B. was, in all relevant aspects, a form of police interrogation. First, the interview was initiated by a police officer. Second, the interview was conducted for the purpose of the criminal investigation. Although Molden contacted T.B.’s mother, the evidence demonstrates it was Detective Akerson who requested Molden to do so. Furthermore, Molden stated Detective Akerson asked her to “assist him” in questioning T.B. and
that she was not involved in the criminal investigation until Detective Akerson “asked [her] to assist him.” Third, the interview was not conducted until five days after the
abuse was first alleged, which indicates the purpose of the interview was to confirm a past allegation of abuse rather than to assess immediate threats to T.B.’s health and welfare. Because of these circumstances, this interview was no different than any other police interrogation: it was initiated by a police officer a significant time after the incident occurred for the purpose of gathering evidence during a criminal investigation.

The Eighth Circuit also points to two more recent U.S. Supreme Court Opinions, which it says “strongly supports” its conclusion:  Davis v. Washington, 126 S. Ct. 2266 (2006) (holding that statements made during a 911 emergency call were not testimonial, while statements made to a police officer after the danger had passed were testimonial); and Melendez-Diaz v. Mass., 129 S. Ct. 2527 (2009) (holding that lab analyses introduced into trial are testimonial).

The Eighth Circuit also rejected the state’s reliance on Minn.Stat. 626.526, which authorizes social workers to interview alleged victims of abuse for the purpose of protecting their health and welfare.  At the same time, the statute requires that the interview be recorded and that the social worker coordinate the interview with the police in order to eliminate the need for multiple interviews. 

When Imposing a “Minimum Term of Imprisonment” For a Criminal Sexual Conduct Life Sentence, The Guidelines Apply in Establishing That “Minimum Term”.

State v. Hodges, Minn.S.Ct., 8/13/2009.  A grand jury indicted Mr. Hodges on one count of criminal sexual conduct in the first degree, and on one count of criminal sexual conduct in the third degree.  For both counts, the indictment included a statutory reference to Minn.Stat. 609.3455, a subdivision of which carries a life sentence (but with eligibility for supervised released after service of a “minimum term of imprisonment”).  The statute requires that the trial court state at sentencing what the “minimum term of imprisonment” is; the court is to base that minimum term on either the sentencing guidelines or any applicable mandatory minimum sentence.

Mr. Hodges pleaded guilty to criminal sexual conduct in the third degree.  He waived his right to a Blakely sentencing jury; he and the state agreed that the “minimum term of imprisonment” would be 270 months.  The trial court imposed a life sentence, with the 270 month minimum term of imprisonment.  It justified the 270 month term by concluding that either the guidelines did not apply or that there were seven aggravating factors to support the sentence under the guidelines (which called for a presumptive sentence of 91 months).

The appellate court concluded that the guidelines do apply.  It rejects Mr. Hodges’ argument that the state had failed to give timely notice of its intent to seek an upward departure, pointing to the stipulation in the plea agreement for a minimum term of imprisonment that exceeded the presumptive guidelines sentence.  The appellate court goes on to conclude that the aggravating factors supported the departure, and that the factors were “severe,” thus satisfying the requirements for a greater than double departure.

Supreme Court Says a Defendant Sort of Has a Due Process Right to Call Witnesses at a Bail Hearing

State v. LeDoux, Minn.S.Ct., 8/13/2009.  The state charged Mr. LeDoux with a cornucopia of crimes:  criminal sexual conduct in the first degree, possession of pornographic works involving minors, possession of a controlled substance in the fifth degree, and furnishing alcohol to a minor.  The district court set a combined bail in the amount of $263,000.00.  Mr. LeDoux thought that amount was a bit much and wanted to present witness testimony to prove it.

The corrections officer who prepared the bail study interviewed several people, after which the officer recommended that the bail amount was supported by the facts, and by the “community reaction” to Mr. LeDoux’s alleged crime spree.  Mr. LeDoux’s attorney then subpoenaed the witnesses whom the corrections officer had interviewed and the corrections officer.  The trial court quashed the subpoenas and ruled that Mr. LeDoux had no right to call witnesses at a bail hearing.  The trial court did, however, permit Mr. LeDoux to make an offer of proof.  It’s worth reproducing the summary of this offer of proof (although you can skip it if you just want to know how it all comes out):

First, LeDoux offered proof to rebut statements by the witnesses in the bail-bond study that they were “terrified” of him or regarded him as a threat to the community. LeDoux offered information that in the years since the alleged sexual assault on the juvenile victim, he and the victim became closer and frequently had non-sexual contact with each other. He also offered proof that the victim’s mother would testify that, despite her desire to avoid contact with LeDoux, she had helped him obtain health insurance and mental health counseling. In addition, LeDoux offered proof that his ex-girlfriend was not terrified of him because, despite the fact that she had obtained an order for protection she had repeatedly contacted him in jail.
LeDoux also made offers of proof as to his good character. LeDoux made an offer of proof that a counseling psychologist who was a friend of his mother would say that LeDoux was a person of good character and was not a threat to the community. He also offered proof that his mother would allow him to live with her, would assist him after his release, and believed that LeDoux did not represent a threat to the community.

Finally, LeDoux attempted to call as a witness the corrections officer who prepared the bail-bond report. LeDoux claimed that the officer would testify as to LeDoux’s lifelong residency in the area, lack of family ties outside the area, and lengthy employment history. LeDoux wanted the opportunity to cross-examine the officer about his conclusions as to LeDoux’s mental condition.

About the only concrete thing that the appellate court did was to say that “community reaction” is not a proper basis on which to establish the amount of bail.  The appellate court next concluded that the bail amount, which Mr. LeDoux could not meet, infringed his liberty interests.  It ducks deciding whether the imposition of pretrial release conditions also infringes a liberty interest, although it refers to a rather old opinion saying that it does.  Finally, it gets to the meat of the opinion, whether Mr. LeDoux can call witnesses at a bail hearing.

The answer is yes, maybe.  Here’s the test that the court enunciates but does not apply to Mr. LeDoux because while all the appeals were going on he went and pleaded guilty:

[W]e hold that at a bail hearing, a defendant may only call a witness if the defendant makes a persuasive offer of proof that the witness’s testimony, when considered in the context of all the other relevant available information, will lead to either release without bail or a reduction in the bail amount to a level that would result in the defendant’s release.

The appellate court lifts this test language from State v. Rud, 359 N.W.2d 573 (Minn. 1984).  That opinion answered the question whether a defendant could call the victim to testify in a probable cause hearing.  Just how trial courts will apply this variation of the Rud test in the bail hearing context doesn’t seem hard to predict and in any event won’t be disturbed absent an abuse of discretion.

Trooper Had Probable Cause to Arrest Both Car Occupants For Cocaine Possession; and Did Not Unreasonably Detain Passenger During Vehicle Search.

State v. Ortega, Minn.S.Ct., 7/30/2009.  Back in August, 2004, a State Trooper stopped a car for speeding and for not displaying a front license plate.  Mr. Ortega was the front passenger in this car.  The trooper thought that the driver, Ms. Sorg, was “overly nervous';” he also observed that the pulse in her neck was visible and that she constantly smoked.  Mr. Ortega made the mistake of looking straight ahead, avoiding looking at the trooper.  Oh, the trooper also smelled a “faint odor of burnt marijuana.”

The trooper checked Ms. Sorg’s license plate and driver’s license, finding nothing amiss.  Nonetheless, he “asked” Ms. Sorg to get out of the car so that the two could chat outside Mr. Ortega’s hearing, apparently about drugs.  Ms. Sorg denied any drug usage in the car but would not answer questions about marijuana.  The trooper then asked for consent to search the car; Ms. Sorg consented.  The trooper had Ms. Sorg stand at the front of the car; he had Mr. Ortega get out of the car.  The trooper frisked Mr. Ortega, who gave him a pocket knife and a small amount of grass; the trooper then had Mr. Ortega join Ms. Sorg at the front of the car.

Did I mention that the trooper had a drug dog with him?  He did; the dog alerted all over the car so the trooper easily enough found a rolled up dollar bill in the center console cup holder, which had residues that field tested positive for cocaine.  The trooper then arrested both Ms. Sorg and Mr. Ortega; during a search of Mr. Ortega, the trooper found another rolled up dollar bill in his pants pocket which also had residues that tested positive for cocaine.

Mr. Ortega moved to suppress the evidence of the rolled up dollar bill that the trooper found in his pants pocket.  The appellate court concludes that the odor of burnt marijuana and the rolled up, cocaine laced dollar bill in the center console provided enough suspicion that Mr. Ortega possessed that dollar bill constructively with Ms. Sorg so that the trooper was justified in arresting them both.  The trooper could then search Mr. Ortega’s pants pockets incident to that arrest.

Mr. Ortega also complained that the trooper unlawfully detained him longer than he should have.  Specifically, he argued that once he gave the trooper the non-criminal amount of marijuana the trooper was required to issue a citation and send him on his way.  Mr. Ortega would then have abandoned Ms. Sorg to her own fate and the trooper would never have found the rolled up, cocaine laced dollar bill in his pants pocket.  The appellate court rejected this complaint, on officer safety grounds.

Expungement Does Not Extend to Executive Branch Records

City of Crystal v. N.G.K., Minn.Ct.App., 7/28/2009.  A court convicted N.G.K. of gross misdemeanor theft eleven years or so ago.  Potential employers kept turning him down for jobs, and N.G.K. worried that he would not be able to get a loan to buy a house.  So, he petitioned to expunge the conviction, serving everyone imaginable with a copy of the petition, including the City of Crystal.  After a hearing, the district court exercised its inherent authority and ordered that judicial records be sealed.  The court also ordered that executive branch offices seal documents that were “generated as part of judicial proceedings,” language that the court lifted from State v. V.A.J., 744 N.W.2d 674 (Minn. App. 2008), review denied (Minn. Oct. 1, 2008).

Unfortunately, after V.A.J., the Supreme Court weighed in with State v. S.L.H., 755 N.W.2d 271 (Minn. 2008), which enunciated a different standard by which courts were to exercise its inherent authority to seal executive branch records.  S.L.H. said that the exercise of inherent authority is limited to “that which is essential to the existence, dignity, and function of a court because it is a court.”  Adverse experiences job hunting don’t pass the test.