12/31/2014: No Supreme Court Published Criminal Opinions

Prosecutor Does Not Have Power to Charge Criminal Contempt of Court For Alleged Probation Violation

State v. Jones, Minn.Ct.App., 12/29/2014.  Polk County’s had this cottage industry going – perhaps unique in the state - that produces criminal contempt of court convictions by the bucketful.  Every time the cops got someone for violating a term of probation the prosecutor would charge the probationer with the crime of contempt of court. 

The court had placed Ms. Jones on probation under a variety of conditions, one of which was that she refrain from using alcohol, if nothing else because she was under age.  The local law picked Ms. Jones up for consumption of alcohol by a minor and disorderly conduct, then threw in criminal contempt of court.  Her lawyer challenged the contempt of court charge for the reason that a contempt charge is inappropriate because other remedies – a probation violation – are available, and because other jurisdictions don’t allow such charging.  It turned out that during a two year stretch some 400 such contempt charges had been brought there.  The trial court agreed with Ms. Jones and dismissed the contempt charge.  (There was no explanation why it took four hundred of these charges to get the court moving.)  The trial court thought that criminal contempt was not a proper consequence for an alleged probation violation, and that the use of the court’s contempt power would be inconsistent with the purposes of contempt.

The state brought a pretrial appeal and the court of appeals agreed with Ms. Jones and the trial court.  Essentially, the court of appeals said that it wasn’t the prosecutor’s business to do the court’s business of protecting the dignity and authority of the court.  A probation violation does not fit within the overall purpose of the court’s contempt power, which is to punish deliberate disruptions of court proceedings and intentional acts of disrespect to the legal process.  Excluding probation violations from conduct that may be charged by a prosecutor as criminal contempt also ensures that noncriminal conduct – for instance, if an adult consumes alcohol – is not converted into criminal conduct. 

12/24/2014: No Supreme Court Published Criminal Opinions

“Constructive Possession” is of the Drugs, Not The Space Wherein They Are Found

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).

12/17/2014: No Supreme Court Published Criminal Opinions

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12/15/2014: No Court of Appeals Published Criminal Opinions

12/10/2014: No Supreme Court Published Criminal Opinions

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.

12/3/2014: No Supreme Court Published Criminal Opinions

12/1/2014: No Court of Appeals Published Criminal Opinions