Office of the Revisor of Statutes: Court Opinions Report

Well, this is just weird.  It turns out that the Office of the Revisor of Statutes is required to report to the Legislature every two years “any statutory changes recommended or discussed or statutory deficiencies noted in any opinion of the Supreme Court or the Court of Appeals of Minnesota.”  The Revisor just let loose the latest biannual report, all 252 pages of it.

So, remember the farmer who let his acres of pumpkins rot so that all the deer would gather for slaughter?  It's in the report. With others.  Check it out.

No Published Supreme Court Criminal Opinions

11/28/2012:  The Supreme Court issued no published criminal opinions today.  The Court did grant further review in one criminal case, State v. Latham, and stayed proceedings pending disposition of Rew v. Bergstrom.

Too Much Evidence About Church Doctrine Gets Priest Convicted of Criminal Sexual Conduct a New Trial

State v. Wenthe, Minn.Ct.App., 11/26/2012.  Mr. Wenthe is or was a Catholic priest who began to hear A.F.’s confessions.  They became friends, then lovers.  This went on for about a year.  A.F. eventually reported the sexual liaison to church officials and then to the police.  The state charged Mr. Wenthe with two counts of criminal sexual conduct.  They charged one continuing count that alleged that the sex occurred while A.F. was meeting with Mr. Wenthe on an ongoing basis for spiritual counsel; and they charged a second count that alleged that the sex occurred on a single occasion in which A.F. sought or received spiritual counsel.  The jury acquitted him of the former and convicted him of the later.

Before trial, Mr. Wenthe moved to dismiss the complaint, arguing that the “clergy sexual conduct” statute was unconstitutional on its face.  The trial court denied this motion.  Mr. Wenthe also moved in limine to prevent the state from adducing evidence of Catholic doctrine.  The state said they wouldn’t do that but they did anyway.

The court of appeals rejects the facial challenge to the statute.  A previous opinion of the Minnesota Supreme Court, a 3-3 tie, State v. Bussmann, 741 N.W.2d 79 (Minn. 2007) had affirmed the determination of the court of appeals that the statue was not facially unconstitutional.  That was enough precedent to dispose of the facial challenge.

Bussmann had, however, been reversed on an “as applied” claim because the conviction had been based on extensive evidence regarding church doctrine.  The same thing happened here to Mr. Wenthe:

Somewhat like what occurred in Bussmann, and despite the state’s assurances that it would not present evidence on religious doctrine, the following evidence was presented and received in this case: (i) evidence regarding the power imbalance between priests and parishioners, stemming from priests’ religious authority; (ii) the Roman Catholic Church’s official policies regarding pastoral care; (iii) the church’s doctrines and concerns about sexual conduct involving priests; (iv) the church’s response to the allegations of appellant’s misconduct; and (v) the religious training appellant received.

The court of appeals concludes that all this religious evidence was excessive, and that the result was to invite the jury “to determine [Mr. Wenthe’s] guilt on the basis of his violation of Roman Catholic doctrine, his breaking of the priestly vows of celibacy, and his abuse of the spiritual authority bestowed on Roman Catholic priests.”  Can’s do that.  Mr. Wenthe gets a new trial.

Civilian Informant’s Sexual Favors to Induce a Controlled Drug Deal, Unbeknownst to the Police, Does Not “Shock the Conscious.”

State v. Christenson, Minn.Ct.App., 11/26/2012.  Officer Marcotte, a Bemidji police officer assigned to the Paul Bunyan Drug Task Force – yes, Paul Bunyan – recruited a civilian to work as an informant.  She tricked any number of guys to perform controlled buys of drugs, for which the police paid her handsomely.  Mr. Christenson was one of the guys from whom she made a controlled buy.  It turned out, though, that in addition to paying for the drugs with the state’s buy fund money she was also swapping sex with Mr. Christenson to get him to sell her the drugs. 

Mr. Christenson moved to dismiss the drug charges that the state filed against him because of what he characterized as the “outrageous government conduct” of the informant.  The trial court held a hearing on this motion and determined that the state didn’t know that she had had to bribe Mr. Christenson with sex to convince him to sell her the narcotics.  The trial court denied the motion and Mr. Christenson appealed his conviction.

If the government behaves in sufficiently outrageous conduct either to induce an individual to commit a crime or during its participation with that individual to commit a crime that conduct will bar a conviction, even of someone predisposed to commit the crime.  Hampton v. United States, 425 U.S. 484 (1976).  Now, there are varying iterations of the test to apply to the conduct in question.  There’s a test when the conduct is sex, State v. Burkland,  775 N.W.2d 372 (Minn.Ct.App. 2009); and another test when the conduct is drugs, State v. James, 484 N.W.2d 799 (Minn.Ct.App. 1992).  The trial court ignored the sex and applied the drugs James test.  Mr. Christenson thought that this was error.  The court of appeals didn’t think either test was applicable, especially the sex test because here it was not an officer who was having the sex; moreover the officer didn’t know about it.  So, the court fell back to a generic test, asking the rather broad question whether the conduct “shocks the conscience” of the court.  It doesn’t:. 

The district court found that the CI “apparently” engaged in a sexual relationship with Christenson. However, any sex that occurred happened a few weeks before the CI informed Marcotte that Christenson was a potential target for a controlled buy. Marcotte did not encourage the CI to engage in sexual activity with Christenson, nor was Marcotte aware that sexual activity had occurred between the CI and Christenson. In fact, Marcotte explicitly told the CI to avoid arranging buys with close personal friends or family members—which reasonably would have included sexual partners. In summary, the police in this case have minimal culpability for the CI’s use of sexual conduct during the investigation. This case simply does not present government conduct that “shocks the conscience.”

11/19/12: No Published Court of Appeals Criminal Opinions

There were no published criminal opinions today from the court of appeals.

No Supreme Court Opinions

11/14/2012.  There were no published  opinions this week from the Minnesota Supreme Court.

No Published Court of Appeals Criminal Opinions Today

The court of appeals did not issue any published criminal opinions today.

Argument Recap: Bailey v. United States

There were no published Opinions today from the Minnesota Supreme Court.  So, I'm presenting the argument recap from SCOTUSBlog on Bailey v. United States, the case argued the other day that asks whether Michigan v. Summers should be extended to permit the stopping of individuals who are seen leaving a place about to be searched under a search warrant.  Here goes:

Argument recap: Reasonable suspicion or none

Last week the Court heard oral argument in Bailey v. United States.   At issue inBailey was whether Michigan v. Summers – which permits police to detain persons on premises during the execution of a search warrant – extends to allow police to detain someone whom they observed leaving the premises to be searched seven-tenths of a mile away from those premises. In this case, police not only stopped Bailey’s car but searched him, finding a key in his pocket that – they later learned – opened the front door of the premises. He also made statements during the stop linking him to the premises. Police returned him there for completion of the search. Police found drugs and a gun in the house during the search. At trial, Bailey was convicted of possessing the drugs and gun, with the key and his statements forming an important part of the evidence against him.

Arguing on behalf of Bailey at the Court, attorney Kannon Shanmugam asserted that Summers is limited to suspicionless detentions of persons in the “immediate vicinity” of the premises to be searched when the warrant is executed. Beyond that immediate vicinity, he argued, the usual rules for detaining someone — Terrystops and frisks of individuals, where there was respectively reasonable suspicion that they were involved in criminal activity or that they were armed and dangerous, and probable cause to arrest or conduct full-blown searches — would apply. Although the application of Terry was not before the Court, in response to questioning by the Justices, Shanmugam insisted that there was no reasonable suspicion justifying the detention and search of Bailey’s person under Terry; therefore, there certainly was no probable cause. He argued that the most important justification for the Summers rule was protecting police officer safety, but the government had no empirical evidence demonstrating a serious risk that individuals who leave the premises without having seen the police are likely to return to threaten the officers or to warn compatriots on the premises to do so.  Moreover, the abstract, theoretical danger of persons of ill intent returning to search the premises is both unpredictable and ever present, as likely to occur hours before or after a search as during it. That is why police routinely do, and certainly should, station some officers as lookouts while a warrant is being executed.

Furthermore, argued Shanmugam, because the Summers rule is an exception to the usual probable cause and warrant requirement and is a categorical rule applying to all warrant executions, the rule must be interpreted narrowly. The rule itself was unsupported by the Fourth Amendment’s history, and expansion of the rule’s prophylactic nature would permit ready and broad invasions of privacy based on little more than speculation that they were needed. For similar reasons, including especially the improbability that someone who has left would return to the scene, a second aspect of the Court’s rationale in Summers – that detention was necessary to prevent obstruction of the search process – did not apply. Nor was it likely that a detained person would want to return to assist law enforcement in its efforts. Indeed, although the burden should be on the government to prove the need to expand a narrow categorical exception, the government had not identified “a single example of an individual who is seen leaving the scene who has returned to disrupt the search in that fashion.”

As for the last rationale of Summers, preventing people who may be guilty from fleeing, Shanmugam stressed that that rationale, standing alone, could not win the day unless the other rationales applied to the current circumstances, which they did not. The flight-prevention rationale alone offered a slippery slope, justifying the detention of anyone who was even loosely connected to the premises to be searched, regardless of how far they were from the premises in time and space and whether they even knew that a search was occurring. The flight rationale was also a justification more akin to a traditional criminal search than to the “special needs” that justified Summers.

Most of the Justices seemed to be struggling with Shanmugam’s arguments, though less so than they would later with those of the government. But Justice Scalia’s comments suggested that he had squarely made up his mind that the detention and subsequent search of Bailey was unreasonable under the Fourth Amendment. For example, while Shanmugam said that Terry’s application would be a novel issue for the Court’s resolution, Justice Scalia did not see the issue as novel at all. To the contrary, he suggested that the length of Bailey’s detention, the police handcuffing him, and their actions in returning him to the scene went well beyond the sort of brief detention to confirm or dispel suspicions that Terry permitted. Justice Scalia also expressed approval for the immediate vicinity test and took issue with giving it too expansive an interpretation. Indeed, he was troubled by the suggestion that it extended to the physical bounds of the property because that could encompass very large properties, such as a fifty-acre farm.

Several other Justices, including Sotomayor, Kagan, and the Chief Justice, however, pressed Shanmugam on the meaning and workability of the “immediate vicinity” test. Shanmugam argued that the primary justifications for the Summersrule and its limited nature favor a narrow definition of immediate vicinity as a geographic area in which there is a significant risk of harm to either the officers executing the warrant or their ability to do their work efficiently.  Justice Alito suggested that the immediate vicinity rule undermined officer safety because it required officers to stop a person on the premises, thus tipping off anyone inside that the search was afoot.  But Shanmugam emphasized that the police could choose not to detain someone at all, as mere presence alone would not establish reasonable suspicion to believe that someone was involved in a crime. Shanmugam also drew an analogy to the rule in Maryland v. Buie, permitting suspicionless protective searches of areas of a home “immediately adjacent” to the place of arrest. The Buie rule had proven workable, so there was no reason to believe that a similar immediate vicinity rule should prove less so. The Chief Justice expressed concern that the immediate vicinity test was too costly, requiring additional officers to be present at the scene purely to serve as lookouts. But Shanmugam insisted that the government’s seize-as-soon- as- practicable test was the more costly, routinely requiring an additional two officers to track someone seen leaving the premises. Finally, he argued that the test that the government was advancing was actually more like “the authority to detain any individual with a connection to the place to be searched” than an “as soon as practicable” test.

Arguing on behalf of the United States, Assistant to the Solicitor General Jeffrey Wall insisted that the government was not positing a mere “connection-to-the-premises” rule but instead would require an “observable connection.” The government conceded that police departments with sufficient resources to do so should post sentries whenever officers are executing a warrant, regardless whether anyone was seen leaving the premises. Nevertheless, the government suggested that the danger to the officers from individuals leaving the premises to be searched was particularly high while a warrant is being executed because those individuals often return. While conceding  that there was a danger, Justices Sotomayor and Scalia expressed skepticism that an individual observed leaving the premises necessarily heightened that danger. Justice Scalia flatly declared that, in a case like this one, it was “implausible” that someone presenting a danger to the police or the search who has just left the premises would return there during the search. Wall argued that, although only a “foolhardy person” might do so, “that is a perfect description of many criminals who do not tend to be level-headed rational actors.” But, explained Justice Scalia, “You don’t adopt absolute rules to cover foolhardy people.”

Justice Kagan suggested that the proposed rule was too broad because many people might leave the premises for perfectly ordinary reasons, such as going to work. Justice Sotomayor questioned what legal authority would justify preventing flight, to which Wall responded that an individual’s presence on the premises during or close to the execution of the warrant established such reasonable suspicion.  Justice Scalia expressed particular concern that the reasonably practicable test was not sufficiently clear and absolute to help police officers. Wall countered that the Summers suspicionless detention rule applied to whom the police may stop (anyone observed leaving the premises), but the usual, more flexible Fourth Amendment reasonableness test governed where the detention could be made. To Justice Sotomayor’s explanation that probable cause was the default reasonableness rule, Wall responded only that Summers creates a class of situations in which reasonable suspicion is automatically assumed to exist and that such suspicion is sufficient. Several Justices then explored the feasibility of simply stopping and detaining someone leaving the premises under Terry, rather than returning him to the search location, until the search was completed.  But Wall argued that most courts would view a lengthy detention as turning a Terrystop into an arrest, requiring probable cause, such that only a Summers-rule extension could cover the posited situation.

The Chief Justice suggested that there was an inconsistency between the officer safety and assisting-the-police rationales. Someone posing a danger to police is unlikely to assist them. Someone assisting them is unlikely to pose a danger and thus need not be detained. Justice Breyer likewise described the idea of a dangerous or guilty person whose premises are being searched assisting the officers as “fanciful.” Wall insisted that there were ample examples to the contrary.

Justice Scalia suggested that the government’s rule would allow the mere existence of the search warrant to justify detaining anyone connected with the premises, a sharp break from the particularity-of-description requirement of the Warrant Clause. But Wall insisted that the government was not arguing for an expansion of Summers; instead, it was merely seeking to have the Summers rule faithfully applied.  Nor was there evidence of police abuse of Summers or behavior suggesting that law enforcement viewed Summers as creating an “entitlement” to search freely. Furthermore, Bailey’s proposed rule was “severely under-inclusive” because it would bar officers from serving the Summers interests the moment a suspect crosses some “magical gate”; merely following the suspect would not be a solution because it is risky and does not adequately protect against the risk of flight. That argument prompted Justice Scalia to respond: “All law enforcement would be a lot easier if we didn’t have the doggone Fourth Amendment. I mean, the Fourth Amendment is an impediment to law enforcement. Of course it is.”

In his rebuttal, Shanmugam made two central points. First, Summers created a no-suspicion rule rather than a “reasonable suspicion” rule, and thus provides so little protection for privacy and freedom of movement that its expansion is unwise. Second, no historical evidence supports Summers, an observation that does not require jettisoning Summers but does require reading it narrowly.

Conclusion

Predicting case outcomes from oral argument is always a risky business. Nevertheless, the most vocal Justices during oral argument on balance seemed to express far deeper concern about the government’s position than Bailey’s. Few, if any, of the Justices’ comments or questions suggested a serious defense of the government’s position. That does not bode well for the United States. Time will tell.

Latent Print Analysis Passes Frye-Mack Challenge

State v. Dixon, Minn.Ct.App., 11/5/2012.  The state charged Mr. Dixon with first degree burglary.  The state’s evidence mostly was finger and palm prints collected by the Minneapolis Police Department at the location of the burglary.  Mr. Dixon launched a Fry-Mack challenge to the admissibility of evidence that he was the source of these prints.  Four days of hearing resulted in a determination that:

friction-ridge-print identification using the ACE-V methodology is generally accepted by experts in the field as reliable and that the examiner in this case complied with the appropriate standards and controls and could testify that she reached her resulting conclusions “to a reasonable scientific certainty.”

Here’s what the examiner, Ms. Bunkers, did:

Bunkers initially entered two latent fingerprints obtained from the scene of the burglary into MAFIN, requesting the ten best matches. For both prints, MAFIN identified the fingerprint card of appellant Terrell Matthew Dixon as the number one match. Bunkers made her own comparison of the latent prints to Dixon’s exemplar, evaluated the results, and concluded “identification.” Bunkers’s identification conclusion for each print was validated by another lab examiner. Bunkers notified an investigator on the case of the identification and continued to examine the rest of the prints obtained from the scene. Bunkers’s comparison of the remaining prints to Dixon’s finger- and palm-print exemplars resulted in Bunkers’s conclusion of “identification” for all of the latent prints as being from Dixon. These identifications were verified.

The trial court answered a number of questions on its way to concluding that fingerprint analysis is generally accepted in the relevant scientific community and that the testing of these particular fingerprints was reliable.  First, the relevant scientific community consists of experts in the field, which includes experts who actually analyze fingerprints and those who research the reliability of such analysis.  Next, the court concluded that the methodology employed by experts in the field – ACE-V – is widely accepted.  Next, the testing of these fingerprints was reliable.  Finally, the court said that Ms. Bunkers could express her opinion “to a reasonable scientific certainty.” 

State Cannot Appeal Restitution Order Made Separate From Criminal Judgment and Commitment

State v. Brett David Borg, Minn.Ct.App., 11/5/2012.  This is a restitution case, the third published opinion to come out of this prosecution.  The court of appeals first reversed Mr. Borg’s conviction but the supreme court reinstated it.

Which has nothing to do with this appeal.  Mr. Borg asked the trial court to reduce the restitution award by some three hundred dollars.  The state argued that his request was too late, beyond the thiry day limitations period.  The trial court ignored that complaint and granted the reduction.  The state appealed.  The court of appeals dismissed the appeal.  The court said that although Rule 28.04, subdivision 1, lists seven types of district court decisions that the state can appeal, not one of them is a free standing restitution order.

The Supreme Court has granted review on whether the state can appeal the restitution order.

A Defendant’s Silence in Response to Police Letter Asking For Statement is Not Protected Under Compulsory Testimony Provision of Fifth Amendment

State v. Borg, Minn.S.Ct., 9/21/2011.  This comes up from the court of appeals, about which I wrote here.  I missed this back in November and would have continued to miss it were it not the subject of yet another opinion today.  Before the state charged Mr. Borg with a sex offense, the lead investigator sent him a letter in which he referred to a previous phone call with Mr. Borg during which Mr. Borg said he had hired an attorney to represent him, and in which he also asked Mr. Borg to have his attorney contact him “to arrange an interview appointment.”  There was no proof that Mr. Borg actually got the letter.

By the time everybody gathered in the courtroom for trial the facts had changed.  The state told the trial court, without objection from the defense, that the investigator had first sent a letter to Mr. Borg and then called him on the phone, both times asking if Mr. Borg would be willing to make a statement.  Mr. Borg said, no.  The trial court ruled that the investigator could testify in the state’s case in chief that he sent a letter to Mr. Borg to which he received no response.  However, the investigator could not testify about the telephone call because Mr. Borg said during it that he had an attorney.

The court of appeals reversed the trial court on these rulings.  Justice G. Barry Anderson, writing for a four person majority, reversed the court of appeals, concluding that there was no compelled testimony – in this case, silence, adopting the reasoning of a concurrent opinion by Justice Stevens in a supreme court opinion, Jenkins v. Anderson, 447 U.S. 231 (1980):

When the government does nothing to compel a person who is not in custody to speak or to remain silent, however, then the voluntary decision to do one or the other raises no Fifth Amendment issue. 447 U.S. at 241, 100 S.Ct. 2124 (Stevens, J., concurring). We hold that if a defendant's silence is not in response to a choice compelled by the government to speak or remain silent, then testimony about the defendant's silence presents “a routine evidentiary question that turns on the probative significance of that evidence.”

Justice Meyer dissented, saying that the state improperly commented on Mr. Borg’s s counseled silence in violation of both his Fifth Amendment and Due Process rights.  Justice Page joined her dissent.  Justice Paul Anderson joined her dissent on the Fifth Amendment section only.