News from Nebraska

It was widely reported that the state of Nebraska has gone to court to prevent rehiring Robert Henderson, a Nebraska state trooper, who is a card carrying member of the Ku Klux Klan.

Henderson, represented under a collective bargaining agreement, appealed and an arbitrator ordered the state to rehire Henderson and fork over sixty days of back pay.

Whatever one may say about his rights under the contract, Henderson is undoubtedly a man whose effectivity as an officer is severely compromised by his politics. If he succeeds, every arrest he makes from now until doomsday will be challenged in court, and the entire sorry tale will be told again and again and again to the eternal discredit of the good people of Nebraska-some of whom I count as my friends.

Perhaps the appropriate postscript here would be the words of Oliver Cromwell, who said to the Rump Parliament in 1653, "You have sat too long here for any good you have been doing. Depart, I say, and let us have done with you. In the name of G-d, go!"

http://apnews.myway.com/article/20060826/D8JNVKL80.html

When is Five Grams Five Grams-Wet or Dry?

In State v. Johnson, No. 05-0535 (Iowa Ct. App. Aug. 23, 2006), the defendant was in the process of manufacturing methamphetamine when he was interrupted by law enforcement. Among the items seized were three glass jars that contained liquid methamphetamine which, if dried, would have yielded less than five grams. The county attorney amended the charge upward to 124.401(1)(b), a class B felony and Johnson entered an Alford plea.

On appeal the defendant alleges that he received ineffective assistance of counsel because when the liquids were dried there was less than five grams of methamphetamine and thus no factual basis for pleading to the top charge existed.

The Court of Appeals differed, finding that the statute was quite clear in its prohibition of manufacture of more than five grams of "...(m)ethamphetamine, its salts, isomers, or salts of isomers, or analogs of methamphetamine, or any compound, mixture, or preparation which contains any quantity or detectable amount of methamphetamine, its salts, isomers, or salts of isomers, or analogs of methamphetamine.

Hunting Season and Felons in Possession of Firearms

Every year about this time many folks in Iowa start thinking about getting out in the field and doing a little fall hunting. One of the consequences for law enforcement is dealing with a number of people with old felony convictions who are dumfounded at facing serious consequences for doing what comes naturally to many Iowans.

In particular, one of my cases at the county attorney's office was just such an occurrence. Two fellows were on their way back from a day out in the field, there was a Ruger Mini-14 rifle in the truck, and the passenger had a couple of rounds in his pocket and a DUI-third offense conviction a number of years ago.

All of which makes the following very interesting. A correspondent has told me that he has a son who will soon receive the gift that keeps on giving-a felony conviction-and he has heard that his son might be able to hunt with a muzzle loader and wonders what he needs to do with the firearms he has in the home.

As to whether a felon can legally possess a black powder firearm, the answer is decidedly NO. Although 724.3 of the code excerpts black powder firearms from the definition of offensive weapons that are prohibited to certain persons, 724.26 prohibits felons from possessing ANY firearm OR offensive weapon.

"Firearm" is not defined in the Code, however, State v. Lawr, 263 N.W.2d 747 (Iowa 1978) defines a firearm as "a small arms weapon from which a projectile is fired by gunpowder".

In addition to Iowa law, under 18 U.S.C. 922g, possession by felons of ANY firearm or ammunition that has been shipped or transported in interstate commerce is prohibited.

Further, my correspondent is taking a mighty big risk for his son and himself by having firearms anywhere in his home or vehicle when his son's around.

New Court of Appeals Decisions 8-10-2006

In State v. Wise, No. 05-1543, (Iowa Ct. App. Aug. 9, 2006) a woman was interviewed because of a citizen prostitution complaint, and she appeared to have been drinking. Ultimately, the woman was arrested for public intoxication and a search incident to arrest produced cocaine and paraphernalia.

The defendant argued that the facts were insufficient to support the investigatory stop that led up to the arrest and search. The court held that when the woman staggered and turned away from the officer, that was sufficient to warrant further investigation as to the offense of public intoxication. In addition, although the woman did not completely match the description of the citizen complaint, the area of the arrest was known to be a haven for prostitution and there was sufficient evidence to raise a trained officer's suspicions.

The defendant suggested that the officer was indiscriminately targeting African American women, but the court held that the facts in evidence served to dispel the notion.

In State v. Douglas, No. 05-1020, (Iowa Ct. App. Aug. 9, 2006) a defendant was convicted at trial for possession of cocaine with intent to deliver and tax stamp violations and appealed. The defendant lived in an apartment above the Mug Shot tavern in Ottumwa, and it was reached by a stairway on the outside of the building which was secured by a lower door. An officer had received an anonymous report of cocaine sales taking place at the address and went to talk to the occupants. He entered the lower door, went up the stairway, and knocked on the inner door.

The officer heard men talking inside the apartment and knocked and a voice from inside said "Come on in." He entered and saw three men, a mirror covered with a white substance and a razor blade. The officer secured the scene and the occupants were arrested.

Douglas was arrested on an outstanding warrant and a search warrant was obtained for the premises. A motion to suppress evidence was heard, it was denied, and Douglas was convicted.

On appeal, the court examined whether Douglas had a legitimate expectation of privacy in the stairway, and if so, whether the state impermissibly invaded the premises. The court concluded that Douglas had a legitimate privacy interest in the stairway that was impermissibly invaded.

Because the officer was confronted with a door that bore two locks and a doorbell, and he made no attempt to summon the occupants to the stairway. Rather, the court considered the fact that the officer did not make an effort to summon the occupants significant. The court also opined that the consensual entry into the apartment did not purge the illegal entry into the stairway.

The Lautenberg Amendments and the Ability to Possess a Firearm

One of my correspondents discussed the Lautenberg Amendments, as they are known to the law enforcement community, in a recent phone call.

For the three guys who've been in a sub under the polar icecap watching the North Koreans for the last fifteen years, the Lautenberg Amendments to the Gun Control Act of 1968 prohibit the possession of firearms by any person convicted of a misdemeanor crime of domestic violence.

In practice what this means is that if one has ever been convicted of a crime of domestic violence one is forever barred from possessing firearms and therefore cannot be a sworn peace officer if that job involves handling or carrying firearms.

I remarked to my correspondent that I was quite sure that the Lautenberg Amendments were not the end of the story and that there were other provisions of law that had a similar effect, with a subsidiary set of problems, and of course, we here at the Iowa Law Enforcement Reporter were, as usual, right.

In fact, the Violence Against Women Act prohibits the possession of firearms by persons who are subject to a domestic violence restraining order. Although there is an exception for serving officers, this exemption does not include possession of firearms while off duty.

Where this becomes complicated for departments is the fact that ex parte restraining orders may be obtained under Iowa Code Ch. 236, and because this is a civil matter, tracking is not available through the usual state and federal channels.

Here's a good article on the Lautenberg Amendments.

http://66.102.7.104/search?q=cache:IU6dJ7J9dwkJ:www.peaceathomeshelter.org/DV/readings/federal/lautenberg.pdf+Lautenberg+Amendments&hl=en&gl=us&ct=clnk&cd=2

and one on the VAWA prohibitions.

http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/crm01116.htm

Adam Walsh Bill of 2006 Signed by President

President Bush signed into law the Adam Walsh Child Protection and Safety Act of 2006 in July of this year. The bill is named for Adam Walsh, child of John Walsh, the well known host of America's Most Wanted and a tireless advocate for child safety and tougher penalties for sex offenders.

The law will create a national sex offender data base to integrate local information into a national database for law enforcement and the public alike. The statute will increase Federal penalties for crimes against children, and provides funding to create a national child abuse registry for professionals that will allow better evaluation of prospective adoptive and foster parents.

Good work, John. Let's hope it can be extended to the world of private adoptions as well.

http://www.whitehouse.gov/news/releases/2006/07/20060727-7.html

From the Vault: Can a Person Contract to Limit Child Support?

Because nothing much has been happening lately in the criminal law field here in Iowa, I pulled this one out of the vault because it is a problem that everyone who pays child support considers: can we agree to limit child support by way of a mutual arrangement?

The answer is decidedly not.

In Marriage of Kerker, 2005 Iowa App. LEXIS 1498 (Dec. 7, 2005), the Iowa Court of Appeals rendered a decision that seems to lawyers to cover ground that's already been plowed but hope springs eternal, I suppose..

Kerker et ux divorced with two children. In the original divorce decree that was agreed to by the parties and the court, it was agreed that the spouse would receive $421.88 per month for the support of the children, and would not petition the court to increase the support.

The spouse subsequently contacted the Child Support Recovery Unit and sought a modification of the support order that raised the amount assessed to $710 per month.

On this issue, the court of appeals concluded that enforcing the agreement not to modify support would be against the interests of the children. To the extent an agreement not to modify support is injurious to the children it is not enforceable.

In a footnote, the court observed that even though the parties had not argued the issue, the court questioned whether stipulations that child support shall never be modified (which the court considers distinct from stipulations as to the amount), are consistent with public policy.