Monday, January 26, 2015
Wednesday, January 21, 2015
Monday, January 19, 2015
Court Rejects “Ready Access” Formulation of Constructive Possession
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.
Rule of McNeely is Not Retroactive on Collateral Review of Final Convictions
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.
Predatory Offender Statute Does Not Require Written Notice of Change in Employment
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.