If An Officer Sees a Black Man Wearing a Black Hoodie, Carrying a Pistol, That’s Probable Cause to Arrest Him For Carrying A Pistol Without a Permit

State v. Williams, Minn.S.Ct., 3/9/2011.  Minneapolis police officers responded to a radio report of a robbery that involved the use of a gun.  The officers had a description – tall black male, wearing a black hooded sweatshirt – and a direction of travel – running west from 22nd Street and Emerson Avenue North.  An officer saw a tall black man wearing a black hooded sweatshirt running west on 22nd.  A foot chase ensued, during which the tall black man wearing a black hooded sweatshirt turned to his right, which exposed the butt of a handgun sticking out of the right front pocket of his sweatshirt.  Mr. Williams was the tall black man wearing a black hooded sweatshirt with a gun sticking out of one of the pockets of the black hooded sweatshirt.  How unlucky is that?

It gets worse.  The robbery victim was unable to identify Mr. Williams as one of the robbery suspects.  So, instead of charging Mr. Williams with robbery, the officer arrested him anyway, charging him with something to do with with possession of the gun.  The officer neither asked Mr. Williams to produce a permit for the pistol nor determined independently that Mr. Williams didn’t have a permit for the pistol.  It’s still a secret to this day whether he had a permit for the pistol.

What he did have, unfortunately, was cocaine, which Mr. Williams disclosed to the officer at the entrance to the jail.  That’s why the state charged Mr. Williams with possession of cocaine while in possession of a firearm.  Minn.Stat. 609.11, subd. 5:

[A]ny defendant convicted of an offense listed in subdivision 9 in which the defendant or an accomplice, at the time of the offense, had in possession or used, whether by brandishing, displaying, threatening with, or otherwise employing, a firearm, shall be committed to the commissioner of corrections for not less than three years…

Now, back to the permit for the pistol.  When the officer arrested Mr. Williams for possession of the pistol did he have probable cause to believe that Mr. Williams was in violation of the pistol permit statute:

A person . . . who carries, holds, or possesses a pistol . . . on or about the person’s clothes or the person . . . in a public place . . . without first having obtained a permit to carry the pistol is guilty of a gross misdemeanor. A person who is convicted a second or subsequent time is guilty of a felony.

Easy question to answer once you know that long long ago in a galaxy far away the Court had the prescience to have construed this statute to avoid this very problem.  State v. Paige, 256 N.W.2d 298 (Minn. 1997).  Paige says that you can’t carry a pistol in a public place, so that’s the starting point.  If you have a permit then you don’t get charged, but the only elements of the offense are possession of a pistol in a public place.  The officer saw the gun sticking out of Mr. Williams’ pocket, heard him admit that he had the gun and confirmed that admission by removing the gun from his pocket.  There was ample probable cause under these facts to have arrested Mr. Williams for possession of the pistol.

Mr. Williams took one more run at the statute.  He argued that by creating a presumption that possession of a pistol in a public place is illegal the statute runs afoul of the opposite presumption created by the Second Amendment.  The Court’s not going there, however, for the reason that Mr. Williams did not raise this issue in the trial court.

Justice Page concurred in the result but offered this acerbic observation about the statute’s presumption that it’s illegal to carry a pistol in public:

While I concur in the result, I write separately to note that it is likely to come as a shock to all those people who have obtained a permit to carry, hold, or possess a pistol in a public place that by carrying, holding, or possessing the permitted pistol in a public place they subject themselves to arrest under Minn. Stat. § 624.714, subd. 1a (2010).

Money Matters: Restitution, Identity Theft, That “PD Fee”.

It seems that money is on the court’s mind in more ways than the budget battles going on up at the capitol.  Here is a look at three recent opinions that take up money.

Anderson v. State, Minn.Ct.App., 2/8/2011, petition for discretionary review filed, 3/10/11. 

Mr. Anderson pleaded guilty to one count of identity theft of eight or more victims.  The trial court sentenced him to a guidelines sentence and ordered him to pay $1,000.00 in restitution to each of twenty-eight victims that were identified in the criminal complaint.  Of the twenty-eight victims only seven returned restitution affidavits and only five of them requested restitution.  One victim requested only $72.94.  Mr. Anderson did not dispute that the twenty-eight individuals were “victims” under the identity theft statute.

The identity theft statute, Minn. Stat. 609.527, subd. 4, says that the court must order someone who is convicted of this crime to pay each  victim “restitution of not less than $1,000.00.”  The general restitution statute, Minn.Stat. 611A.045, subd. 3, establishes what a victim of a crime must submit to the court in order to claim restitution.  Mr. Anderson argued that these two statutes should be read together. 

The appellate court says, no.  The identity theft statute has no requirement for proof of loss; a victim gets a thousand bucks, minimum.  There are at least two nagging questions, however, that the court did not consider:

Must the state show that a victim under the identity theft statute incurred some loss.  See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (stating that appellate courts will generally not consider matters not argued and considered by district court).  Mr. Anderson’s challenge was a procedural one – failure to comply with the general restitution statute – and not a fact challenge, and so this question was not before either the trial or appellate court.

Also, the appellate court did not consider what to do with victims who claimed losses of more than $1,000.00 and how the general restitution statute fits into such a claim.

 

State v. Gaiovnik, Minn.S.Ct. 3/9/2011.

Mr. Gaiovnik and an associate robbed Hollister, a clothing store in the Rosedale Mall, of an amount that everyone decided to agree was $19,200.00.  No one recovered the money.  A jury duly convicted Mr. Gaiovnik of simple robbery and theft.  No one from Hollister bothered to send in the paperwork to request restitution.  The trial court ordered him, nonetheless, to pay the difference between $19,200 and any money paid by Mr. Gaiovnik’s accomplice.

Mr. Gaiovnik objected, saying that the trial court could not order restitution under the general restitution statute, Minn.Stat. 611A.04 unless the victim submits the paperwork.  The state countered by pointing to another statute, Minn.Stat. 609.10.  That statute provides that upon conviction of a felony, the court “may sentence the defendant . . . to payment of court-ordered restitution in addition to either imprisonment or payment of a fine, or both.” Minn. Stat. §  609.10, subd. 1(a)(5).

Just as Mr. Anderson did, Mr. Gaiovnik said that the two statutes should be read together, that the authority conferred under 609.10 is only triggered by compliance with the requirements of 611A.04.  Just as the Court of Appeals did, however, Chief Justice Gildea declines to do so.  Minn.Stat. 609.10 is an independent source of authority by which to order restitution.  The only limitation under this statute is the requirement that there be a factual basis for the award.  In this case, everyone agreed on the amount, nineteen thousand and some change. 

The court does emphasize the requirement under the general restitution statute that information about the amount of restitution being claimed must be received at least three business days before the sentencing hearing.  This calls into some ill repute the local practice in some courts to leave restitution “open” for some period of time, usually ninety days.  Making such an objection could lead to a continuance of the sentencing hearing so that the state could get its money ducks lined up. 

Where no restitution paperwork shows up, a defendant should refrain from stipulating to any restitution amount.  Indeed, if the state is seeking restitution only under 609.10, without any record of the amount – either from a trial or stipulation – there may be a valid demand for a jury trial to determine that amount.  Might be fun.

 

State v. Moore, Minn.Ct.App., 3/1/2011. 

This unpublished Opinion gets included only because Mr. Moore challenged the trial court’s imposition of the $75.00 public defender fee.  Although denominated “public defender fee” the money in fact goes into the general fund. 

The trial court imposed this fee by rote, having made no findings about whether Mr. Moore could pay it.  The appellate court wasn’t amused:

Both the legislature and the supreme court have clearly expressed their intent that a district court’s discretion to impose copayments is contingent on findings of a defendant’s ability to pay. See Minn. Stat. § 611.20, subd. 2 (2010) (“If the court determines that the defendant is able to make partial payments [for counsel], the court shall direct partial payments to the state general fund.”) (emphasis added); Minn. R. Crim. P. 5.04, subd. 5 (“If the court, after finding the defendant eligible for district public defender services, determines that the defendant now has the ability to pay part of the costs, it may require a defendant to make partial payments as provided in Minnesota Statutes, Section 611.20.”) (emphasis added). The imposition of the copayment is reversed.

So, the trial court has to make those findings, which, it would seem from the two cases just above, require a factual basis.  What’s the source of that factual basis?  The pre sentence report?  If so, should defendants (politely) decline to provide financial information (including releases) to the probation office?  Lastly, notice that it’s not an all or nothing proposition.  The trial court can determine that a defendant can only pay part of this fee.