Wednesday, May 31, 2006

A historical note of interest.

(photo credit Glenn Shirley, Law West of Fort Smith (1968 ed.)
The motto of this blog is a quote from Judge Isaac Parker:

"Do equal and exact justice."

For those of you who are not familiar with Judge Parker, he was the presiding judge of the Western District of Arkansas and he sat on the bench at Fort Smith from 1875 to 1896. His jurisdiction extended into Indian Territory, and in those days that region was a nest of unrepentant banditti who used the remote territory as a refuge from the reach of the law and a place to practice the rule of the gun and the knife, and to satisfy themselves on the populace. Judge Parker is known for having sentenced nearly a hundred men to death on the gallows in the courtyard of the military installation at the end of Garrison Street, but he also conducted many criminal trials and was supported in the work of bringing law and order to the frontier by as fearless a group of men as any who wore the badge and packed a Colt.

Judge Parker was born in Ohio in 1838 to a modest family of farmers. He read the law, and hung out his shingle in St. Joseph, Missouri after being admitted to the Ohio bar in 1859. A Union man through and through, Judge Parker's loyalty to the Great Cause was rewarded through a number of important appointments and he served as a Representative in the U.S. Congress before he was appointed to the post in the Western District of Arkansas by President Grant. He served ably for many years.

There are two excellent books about the Judge and his Court, They are, Law West of Fort Smith by Glenn Shirley, and Hell On the Border by S.W. Harman.

Pat Down Search of Defendant Outside Vehicle Passes Constitutional Muster

State v. Duke, 05-0556 (Iowa Ct. App. May 24, 2006)

Duke was driving a van without plates when he was stopped by two Des Moines officers. Duke's passenger Cipale was observed making the ever popular furtive movements. Duke produced his license, insurance card, proof of ownership and a valid auto dealer's license plate.
When the second officer approached the passenger's side of the van he observed a police scanner on top of a duffel bag. The officer also knew Cipale to be involved in drugs, as he'd arrested Cipale previously for possession.

The driver and passenger were patted down for weapons and Duke had a knife on his person. While one officer was holding the occupants the other proceeded to search the console area where Cipale had been observed making furtive movements. A K-9 officer arrived at the scene on his own initiative, although the searching office had been about to request the same. The dog alerted on objects that proved to be marijuana, drug paraphernalia, methamphetamine, cash, a knife and electronic equipment.

Duke's lawyer filed a motion to suppress evidence far past the deadline for filing pretrial motions. Duke chose to go forward with a bench trial rather than have his motion to suppress dismissed. Duke lost the motion to suppress and was convicted on drug and weapons charges.

Duke argued that the patdown search and the search of the van were unreasonable. The court held that the passenger's furtive movements, the presence of a police scanner and the passenger's status as a known felon triggered officer concern for their safety, and that the search of the console area was reasonable.

The court also concluded that having a drug dog sniff the perimeter of a vehicle lawfully stopped in a public place does not of itself constitute a search.

All that is required in such a case is that the dog sniff be conducted in a reasonable amount of time after the stop and that the stop is not unduly prolonged without a sufficient basis.

Court Affirms DNA Profiling Requirement of Sentence

State v. Doss, 05-1192 (Iowa Ct. App. May 24, 2006)

Doss pled guilty to willful injury, a class D felony and was sentenced to a five year hitch. The court also ordered Doss to submit to DNA profiling, which became law after Doss pled guilty but before he was sentenced.

Doss argued that ordering him to undergo DNA profiling was unconstitutional and an abuse of the court's discretion. The court found that the requirement was applicable to Doss as it had become effective on 14 June, 2005, prior to sentencing.

Further, the court held that the statute requiring all felons to undergo DNA profiling was applicable to all felons, defeating Doss' equal protection argument, and that the statute had a rational basis in identification of perpetrators of future crimes and exonerating the innocent.

Last, Doss argued that the DNA requirement was an unreasonable search and seizure. The court held that such a requirement need only show a reasonable basis rather than the more difficult probable cause standard, because the balance between public interest and private intrusion weighed in favor of the public interest.

Search of Defendant at Police Station Supported By Evidence

State v. Gary, 05-0597 (Iowa Ct. App. May 24, 2006)

An informant told police that Gary was in a vehicle in possession of cocaine. The vehicle was spotted and when it was learned that Gary's license was suspended and it was Gary's vehicle a stop was initiated. It was then discovered that Gary was a passenger.

When an officer approached the vehicle he smelled the odor of marijuana on Gary's person. A drug dog was called to the scene and hit on the area where Gary was seated. Despite no contraband being uncovered, police escorted Gary to the station where he was searched and cocaine was found in his socks.

Gary moved to suppress, arguing that the vehicle stop was without justification because he was not driving. The court held that because the officer reasonably believed that an unlicensed driver was at the wheel the stop was reasonable. This belief was based on knowledge that the vehicle belonged to Gary, his license was suspended, and an individual matching Gary's description was driving.

Gary next moved to suppress the search of the vehicle. The court held that the smell of marijuana along with the exigency due to the vehicle's mobility justified the search of the vehicle.

Last, Gary moved to suppress the search of his person at the station. The court held that where a defendant is under arrest (as the defendant in this case conceded although it is not clear whether he was formally arrested) the search of his person was lawful. If there is probable cause to arrest a person, then the search of that person is lawful, according to the court.

Search of Pockets Exceeds Scope of Weapons Patdown

State v. Ragsdale, 05-1316 (Iowa Ct. App. May 24, 2006)

Ragsdale was seen in a high drug trafficking area of Waterloo, Iowa, and an officer spoke with him. Ragsdale consented to a search but responded by putting his hands in his pockets. When Ragsdale complied with the request to remove his hands from his pockets, the officer noticed a bulge in Ragsdale's left pants pocket. When the officer asked what was in the pocket Ragsdale lit out for the timber and was hauled down after a foot chase.

When Ragsdale was detained the officer reached into his pocket and retrieved seven baggies of marijuana. Ragsdale was convicted of possession with intent to deliver, and appeals the denial of his motion to suppress evidence.

The court held that when the officer reached into Ragsdale's pocket, the warrantless search went well beyond the scope of a weapons patdown, requiring the State to show probable cause, which requires a reasonable and articulable suspicion that criminal activity is occurring prior to the defendant's flight.

Ragsdale had not been observed involved in criminal activity prior to the approach of the officer.

In short, presence alone in a high drug trafficking area is not sufficient to transform a hunch into reasonable suspicion suffucuent to support a Terry stop and frisk.

Thursday, May 25, 2006

Jail Fees Settlement in Georgia

It was reported on National Public Radio recently that as part of a settlement, Clinch County, Georgia will stop collecting inmate jail fees, which were being collected from people who had been released because charges were dropped.

Tuesday, May 23, 2006

From the Vault: Can a Person Attempt to Murder Someone Already Dead?

In People v. Dlugash, 395 N.Y.S.2d 419 (N.Y. Ct. App. 1977), Geller was found shot to death in his bedroom, and the autopsy revealed that he had been shot by two weapons, a .25 and a .38 caliber pistol. The .25s were found in the victim's head and the .38 had pierced his heart.

When he was interrogated, Dlugash alleged that he fired his pistol into Geller's face after his comrade had shot Geller in the chest and the victim had fallen to the floor. He alleged that when he shot Geller, that Geller was not moving and his eyes were closed. In short, his statement was that the victim was already dead.

Dlugash was convicted of attempted murder and the Appellate Division reversed, stating that the defendant had attempted to murder a dead man.

The Court of Appeals reversed the Appellate Division and reinstated the conviction for attempted murder, finding that the jury could have concluded the defendant believed Geller was alive when he shot him and that Dlugash's purpose was to administer the coup de grace.

Farmer Not a State Agent

State v. Ziehl 05-0293 (Iowa Ct. App. 2006)

In this case, a defendant drove his vehicle onto private property. A farmer blocked the defendant from leaving and had his spouse call 911. When police arrived, the farmer told the police that he thought the motorist had been drinking. When questioned, Ziehl admitted he had had seven shots.

The court of appeals held that the farmer, in blocking the defendant from leaving the scene, was acting as a private citizen. In addition, Ziehl's fourth amendment rights were not violated because he was not seized until after he was arrested, which did not occur until the defendant had failed the field sobriety test, admitted to drinking, exhibited watery eyes and smelled of alcohol, and drove his car off a dead end road.

BB Pistol Not a Deadly Weapon

State v. Johnson, 05-0558 (Iowa Ct. App. 2006).

Johnson robbed the Metrobank in Davenport using a BB pistol as a flash weapon. The defendant also threatened a bystander with the BB pistol. At trial, the district court instructed the jury that the State was required to prove that the defendant was armed with a dangerous weapon, and specifically that a BB gun was a dangerous weapon.

The Court of Appeals reversed and remanded the case for a new trial, holding that a BB gun was not, per se, a deadly weapon and that factual decision was improperly taken from the jury. As this conclusion prejudiced Johnson, the case merited a retrial.

Presence in Apartment Under a Warrant Sufficient to Find Stolen Property in Plain View

Edwards v. State, 05-0905 (Iowa Ct. App. 2006)

In this post conviction review case a search warrant for the defendant's apartment for drug related activity. When the warrant was executed, the officers observed a large quantity of merchandise including several bicycles. The serial numbers were checked against computer records and one of the bicycles was proved to be stolen.

The defendant was convicted of theft of the bicycle and sentenced to two years' imprisonment.

The district court of Woodbury County overruled the defendant's motion to suppress evidence (which alleged that the original search warrant lacked probable cause to search for stolen property) stating that the serial number of the bicycle was in plain view.

The court of appeals concluded that the officers were legally in the suspect's apartment because there was substantial probable cause to conclude that there were drugs on the premises, and that made the warrant valid. The officers properly moved the bicycles to search for drugs (as he was required to do) and the police were thus properly in possession of the bicycles containing the serial numbers. The defendant's reliance on the plain view analysis of Arizona v. Hicks, 480 U.S. 321 (1987) was therefore misplaced.

Alleged Drinking at Accident Scene Insufficient to Overcome DUI 3rd

In State v. Orvis, 05-0200 (Iowa Ct. App. 2006), a defendant in a DUI-third offense was driving a motorcycle and hit a truck in Black Hawk County, injuring himself and his passenger. Orvis' blood sample taken at the hospital revealed a BAC of .14. Orvis alleged that he had been sitting at the curb and was drinking from a pint bottle of vodka he kept for medicating himself on just such an occasion, and essentially that nobody could prove otherwise.

The court of appeals made short work of the case, holding that the evidence substantially supported the conclusion that Orvis was intoxicated at the time he ran into the side of the semi truck and that his story was not supported by the facts.

This case does, however, point to the importance of securing the scene of an accident and keeping a close watch on the people involved where it is suspected that one of the drivers is impaired or intoxicated.

Plain Smell of Ammonia in Hallway Sufficient to Conclude Criminal Activity Occurring

State v. Simmons, 04-1327 (Iowa 2006)

A Clarinda police officer went to an apartment building on a complaint of loud music. While in the hallway the officer smelled what he belived to be anhydrous ammonia coming from another apartment and contacted his supervisor who referred him to a certified methamphetamine lab expert. The officer and the expert returned to the building and the expert confirmed that the smell was of anhydrous ammonia, commonly used in the manufacture of methamphetamine by the lithium reduction method.

The officers knocked and announced their presence because they were concerned about safety in view of the hazards of exposure to ammonia fumes. Receiving no satisfactory response the officers forcibly entered the apartment and took the occupants into custody. There they found a working meth lab and Simmons admitted the manufacturing operation was his.

The fighting issue on appeal was whether the district court's denial of the defendant's motion to suppress the warrantless entry and search was supportable.

In an issue of first impression, the Iowa Supreme Court held that the smell established the necessary probable cause for a search. The court also found that the volatile nature and dangers of a working methamphetamine lab established the necessary exigent circumstances that allowed the initial warrantless search of the premises.

Simmons' statements while being questioned were allowable admissions under the public safety exception to Miranda v. Arizona announced in State v. Deases, 518 N.W.2d 784 (Iowa 1994).