Foreign Jurisdiction Law Clerk: Part 3

State v. Dezso, 512 N.W.2d 877 (This is an independent analysis of the case, not shepardized)

Routine-ish traffic stop with some subsequent shenanigans by the boys in blue up for debate here as we ruffle the feathers of the 4th amendment yet again. Hero in this case is traveling from Michigan to California for work, passing through the lovely land of ten thousand lakes when he is pulled over for speeding. So far so good, and this was January so I will assume that its par for the course in Minnesota to invite your pulled over guest into your squad car when its cold outside?

Officer did a license check and verified that Michigan license was good. Then he asked the defendant if he had anything in the car, asked if he could search. Ultimately he felt that something was fishy about the guy’s wallet, and took a look inside. He found a paper with blotter acid (LSD, dude) and arrested the guy. Defendant lost suppression hearing, and intermediate appellate court upheld the denial. Supreme court says not so fast, and cites one of my favorite ambiguous theories of law “whether a reasonable person would have felt free to decline the officer[‘s] requests or otherwise terminate the encounter.” Florida v. Bostick, 501 U.S. 429, 115 L. Ed. 2d 389, 111 S.Ct. 2382, 2387 (1991).

In Maryland, there is a case Ferris v. State, 355 Md. 356 in which this reasoning is rested with a totality of the circumstances test, encompassing a myriad of factors that could lend itself to the defendant feeling intimidated, or feeling free to decline the search, consent, etc. Minnesota seems to have a similar set of circumstances that they use as a test: “the nature of the encounter, the kind of person the defendant is, and what was said and how it was said. The encounter in this case took place at night, on a highway, and in the front seat of a parked squad car”

 

The court does not find that the circumstances lend themselves to the state meeting the burden of proof to sustain such findings, and reverse the prior decisions of the trial and appellate court.

Foreign Jurisdiction Law Clerk: Part 2

State v. Barajas, 817 N.W.2d 204 (This is an independent analysis of the case, not shepardized)

I’m starting to get a good feel for the drug culture in Minnesota after reading another 4th amendment case from their Supreme court. So here we have another meth case, good times. Don’t these kids know what this stuff does to your brain cells? Maybe the long term cognitive impairment was there before the meth…

Regardless, in this case our hero was a cell phone collector who was also squatting in an unoccupied apartment. Police received a report of his squatting from the landlord, and upon investigation found defendant and his cell phone collection. He didnt’s speak much english, and upon contacting a border patrol agent determined him to be unlawfully in the country, and detained him. Border patrol advised the offices that defendant may be involved in drug trafficking, which was apparently enough to create probable cause to search the apartment. With this apparent probable cause and consent of the landlord(which is probably all they really needed), the apartment was searched and “The police recovered five plastic bags containing a white crystal substance, a digital scale, powdered milk, salt, an empty sugar container, motor oil, razor blades, an “SD card” that can be physically moved from one cellular telephone to another for the purpose of transferring data, a fourth cellular telephone, and packaging materials, including tin foil, plastic bags, plastic wrap, and electrical tape.”

He was charged with possession with intent to distribute. He moved to suppress photographs taken from his cell phone(s) and such motion was granted due to the overly invasive nature of the search: “intentional invasion into the contents of an electronic device” by the police, which requires an “intentional search . . . or other deliberate key strikes,” must be supported by either a warrant or an exception to the warrant requirement. The district court also concluded that Officer Schroeder’s warrantless search of Barajas’s cellular telephone did not fall under the search-incident-to-arrest exception to the warrant requirement because no exigency existed, Barajas had already been removed from the premises at the time of the search, and the telephone was not contraband, an instrumentality of trespassing, or a weapon affecting officer safety.” This quote encompasses almost the entire first half of my con crim pro 1 class. Good work Minnesota courts!

However, apparently our hero had signed a consent form to have the phones searched. Although defendant did not speak much english, it was apparently OK with the court that he sign a consent form entirely in english. I’m certain the local officers in Moorhead explained the form and he signed it intelligently and knowingly of its purpose and extent of the consent. All of this aside, it was apparently good enough for the court to reconsider the suppression motion and allow the photos. (I recant my previous praise to the court).

With the evidence in, trial commenced, and defendant was found guilty by a jury of his “peers.” Appeal ensued.

It must be easy to brief cases as a Minnesota law student. If its not, and I’m just reading softball opinions, my apologies. The court breaks down the issues in the opinion:

ISSUES

I. Did the district court err by denying appellant’s motion to suppress evidence obtained by the police during a warrantless search of appellant’s cellular telephone?

II. Did the district court err by admitting in evidence photographs recovered from appellant’s cellular telephone that were irrelevant and unfairly prejudicial?

III. Did the district court err by admitting in evidence drug-courier-profile testimony?

 

How sweet is that? I mean, this case continues on as essentially a brief of itself. This case results in what is essentially a “moral victory” and one more important to the search guidelines for this type of evidence. “An individual has a reasonable expectation of privacy in the concealed contents of a cellular telephone. Because appellant’s cellular telephone concealed the photographs stored within the telephone’s internal memory, the investigating officer was required to obtain a warrant before searching that telephone.” Basically, he won, but he lost. The search was no good, but the district court error was not only harmless, there was enough other corroborating evidence to convict. However this does seem to solidify, if there were no such cases before it, that a warrant or real informed consent is required before snooping through someone’s cell phone photos.

Foreign Jurisdiction Law Clerk: Part 1

State v. Diede, 795 N.W.2d 836. (This is an independent analysis of the case, not shepardized)

This is a 2011 Minnesota Supreme Court case involving an apparent 4th amendment violation. Trial court and intermediate appellate court had denied defendant’s motion to suppress evidence found on defendant. Defendant was driver of the vehicle, which had stopped to drop off a passenger, a known drug “aficionado,” but was originally followed due to the license place not matching the vehicle in question. The passenger, who got out of the vehicle and allegedly appeared to throw something back into the vehicle, was arrested based on his prior dealings with drugs and police. Defendant got out of the car, and police told her to stay there, they had to ask her something. They then asked her to turn out her pockets, revealing a cigarette packet, which ultimately contained a baggie of meth. Minnesota law holds that “a police officer may temporarily detain a suspect without probable cause if (1) “the stop was justified at its inception” by reasonable articulable suspicion, and (2) “the actions of the police during the stop were reasonably related to and justified by the circumstances that gave rise to the stop in the first place.” State v. Askerooth,681 N.W.2d 353, 364 (Minn. 2004) (citing Terry, 392 U.S. at 19-21). Evidence obtained as a result of a seizure without reasonable suspicion must be suppressed.”

In the initial appeal to this case to the intermediate court, the parties stipulated to the facts, and the supreme court reviewed as such, holding “[t]he only basis in the record for suspecting that anyone possessed drugs was Detective Jensen’s assertion that he had probable cause to arrest Hanson for previous drug sales. But the record does not describe the foundation of that probable cause. Nor does it indicate any objectively articulable facts that would have allowed the police to reasonably infer that Hanson was carrying drugs at the time of his arrest on April 22. The record also does not indicate whether Hanson recognized Detective Jensen as a law enforcement officer, which would be necessary to support the officer’s suspicion that Hanson left something in the truck in response to the presence of the police. The record does not indicate that any of the officers saw Diede reach for anything while she was in the truck or that the officers looked into the truck to see if the object they saw Hanson leave there had been removed from the truck.”

 

The state leans on some key 4th amendment cases, but the court quickly distinguishes both: Maryland v. Pringle, 540 U.S. 366, 124 S. Ct. 795, 157 L. Ed. 2d 769 (2003), and Wyoming v. Houghton, 526 U.S. 295, 119 S. Ct. 1297, 143 L. Ed. 2d 408 (1999). “In both Houghton and Pringle, the police had already discovered drugs or drug paraphernalia inside the car.”

“Neither case supports the contention that the police may reasonably suspect a person of possessing a controlled substance merely because she is in the same truck as a suspected drug dealer who appears to leave something in the truck as he is getting out of it. Cf.United States v. Di Re, 332 U.S. 581, 586-87, 68 S. Ct. 222, 92 L. Ed. 210 (1948) (holding that probable cause to search a vehicle does not justify searching a passenger).”

 

The state also alternatively argues that the search of defendant was an extension of the investigation of the mismatched plates, and the court quickly drops this argument like a bad habit, largely in part to it being absolute BS(Id at no shit, sherlock).

And….for the part we really care about “Because Detective Jensen did not have a reasonable articulable suspicion that Diede was engaged in drug-related criminal activity, his request to search Diede’s cigarette package exceeded the scope of the initial temporary investigative seizure. Consequently, the district court erred when it denied Diede’s motion to suppress the methamphetamine evidence discovered in the cigarette package.”

Court also found that Diede did not consent to the search, despite the state arguing that she did, she said no clearly several times before eventually submitting to the search of the cigarette package, et al.

Court finally refuted the argument that the police would have inevitably found the contraband because they “could have” arrested her for the mismatched plates.

 

 

 

My Free Law Library or why its sometimes good to lose

So today I happened across an entirely free law library. I know you’re probably thinking “everything is on lexis or west, who reads books?” and you’d be right, but books are cool. At least, to me–and now you’ve stopped reading!

For those of you who are like minded, and appreciate books, you’ll get it. To a lawyer, or future lawyer like me, books are gold. Even if you get the same info in on the web and never open the books, just having them makes you feel warm inside. When I say that I now have an entire law library, I mean it:

This is half of my new law library

 

This is the first trip, about half. This is an entirely FULL Honda Crosstour, with seats down, and the front seat full to the brim!

I’m talking open the door and books fall out full. Wowza!

 

So how the hell did I get these books? Yes, the purpose of the post, almost revealed…..

Several months ago a Baltimore Chiropractor friend of mine (yeah, why not give a free back link?) told me about a building around the corner from his office that was for sale. He told me it would be a great location to open a law practice. I reminded him that I still had about 18 months of law school left, then the bar, then I’d be a lawyer….Lets not count chickens yet. He convinced me to take a look. The building was of a retired lawyer, who apparently had either shut his practice down, or whatever–he wasnt practicing any longer. He had volumes and volumes of books. Everything a lawyer could imagine, replace your relevant state with Maryland, all the federal stuff, TONS of CLE documentation, even though Maryland doesnt require CLE, there used to be a thing called MICPEL that put on CLE courses on a ton of subjects.

I was giddy as shit when I saw this building, it was a law office, so clearly it would be perfect as a law office. Still we run into the problem…..I’m not a lawyer yet!

So…we convince my boss, who runs a large volume Baltimore Auto Accident Lawyer (ooh shit, another backlink??) that if we bought the property that we’d move the office there. Easy enough, right? Well the day that we put an offer in on the building, we learn its under contract. Shit on me, too little, too late!

Oh well, it wasn’t the best plan anyway, but it would burn me up to find out that another lawyer bought it.

For the next few weeks I continually check the SDAT recordings to find out who bought the building…two months go buy, and I think its been way too long, so I google the property. Lo and behold, its now up for auction. Whomever bought the property in the first place, apparently couldn’t use it for their intended purpose, and now its up for auction. So of course we go to the auction.

Without going into the details and the snafu that was the auction (the auctioneers could not and would not confirm whether or not the entire parking area conveyed with the property, which was a dealbreaker) we did not win the auction.

I told my chiropractor colleague, who walks by this building almost every day, to pay attention to the property. The guy who won the auction looked like a contractor, and I’d put good money on him eventually cleaning the place out and throwing out the books.

This happened today, and of course my boy clued me in on the ability to move in, and help out the guys who were getting rid of everything.

Now a 3rd year law student has an entire law library, primarily due to losing an auction!

 

Uh oh!

So, I’ve learned a lesson that I knew from the past…iPhones are glass. Glass breaks, especially when you throw it.

So, learn a lesson from me, and don’t throw your iPhone…otherwise this might happen:

 

Ouch! It's time for a new phone

 

So due to the “trauma” that i put my old iPhone through, I got one of the new ones…new for now, because I’m sure tomorrow Apple will announce their next iPhone.

Anyway, my main concern with this phone in general has been the battery life. I’ve now learned how to remedy some of this situation, and mitigate the battery loss. What I’ve always known is that all apps/programs/whatever that you run on your phone continue to run “in the background” and essentially suck up battery life.

I’m sure that anyone reading this already knows it, but if you double tap the home button you get the list of running/recent apps. you can scroll though this list, and hold one in(like you would to delete it) and it’ll start shaking, and you can now select apps to turn off!

I’m going to keep everything turned off that I’m not readily using, and hopefully this will save some battery life, so I’m not at 10% left at about 5pm every day!

Maryland v. King: my initial reaction

Oh yes, DNA swabs for the purpose of identification from arrestees is acceptable under the 4th amendment.

Wait, what? I am baffled at what happened at the Supreme Court yesterday.

It is already lawful to take DNA swabs and compare to the database of other crimes AFTER one enters a guilty plea or is found guilty. That makes more sense to me, but to do so with someone presumed innocent is somewhat baffling. Furthermore, the majority masking this important for identification purposes is outright insane! There is no way in which the DNA test was used in King to identify him, that was already done by other evidence. They had King in custody, so why not get a warrant for his DNA? Oh yeah, because there is not probable cause for which said warrant would be granted! So my question is: if you cannot get a warrant, why is it ok to do the search without the warrant?

I am hardly a constitutional scholar. I am a second year law student, almost third. Rising 3L? Who cares, labels are for groceries…. However, I do know that there are some limits what is and isn’t acceptable in situations like this. Right now I’m looking at Winston v. Lee, 470 U.S. 753 that says “Such an intrusion would not be reasonable […] given the state’s failure ‘to demonstrate a compelling need for it.’ no such need was deemed present, as the state had considerable other evidence connecting defendant with the [crime]” in regard to the probable cause to remove a bullet that was lodged in the defendant, which was fired by a victim in a robbery, potentially corroborating his involvement in the crime. No doubt, the removal of the bullet instance can be distinguished, perhaps, because it is an entry into the body, and some will argue that swabbing the inside of the cheek for DNA is not, but I’m not sure I like that argument either. Regardless, the point is that the evidence to be gained by the search is necessary to prove the crime. Not to prove any crime.

I also see this as quite different than Schmerber v. California where the courts first developed the test utilized in Winston. This was the case where they had a DUI suspect and they wanted to draw blood to test for blood alcohol content. Decidedly different here, what is acceptable is based upon the evanescence of the evidence. In an hour, two hours, or even more the alcohol content would greatly dissipate. I’m not sure King, or any other defendant for that matter, has chameleon DNA that may change or be altered between his arrest to his sentencing.

Is there a public policy reason for DNA testing, cross referencing, and potentially solving other crimes: yes.

Should the above DNA testing be constitutional, legal, etc: sure.

How now, brown cow? Well I think its a simple process, like all law enforcement:

1) Do you job right (search, seizure, etc)

2) Get the right guy

3) Get a guilty plea or verdict

4) Get your DNA sample

5) Win, constitutionally

Well, now that Maryland v. King is here you can skip steps 1-3, but I digress.

 

Spam filter initiated…commenting might be possible soon!

So I haven’t paid much attention to the comments that have been left on this blog since its inception. Mostly because they are almost all spam! There are currently 10,019 unapproved comments awaiting my auditing….I would venture a guess that perhaps less than 5 of them are legitimate. I have been told that people read this blog, real people. In fact, some people have found my you tube videos and thanked me for teaching them civil procedure….good thing someone learned something from those videos!

Anyway, this spam filter is supposed to automatically delete the robot spam crap, and i’ll actually be able to view and approve real comments. So if you have something to say about something that I have to say, say it!

From to classroom to the courtroom

This summer is a bit different of a summer for me, as far as classes are going. I am in the home stretch, this summer and 2 more semesters to go, then I should be finished with law school (whew!).

Last summer I took 2 classroom lecture style classes, this summer is a bit different. I am taking a classroom lecture style class, constitutional criminal procedure 1, and I am also taking a for-credit internship at the office of the public defender in Cecil County. I may have mentioned this previously, as for 2 days/week the 12 minute commute is incredibly relaxing compared to my normal hour+ commute to the city for work and/or school.

The semester is more than just a quick commute 2 days a week—I’m actually learning real life application of the law. Perhaps I am taking the perfect combination of “classes” by learning about constitutional criminal law issues and applying them in a corresponding internship. It could be, also, the the con crim pro 1 class is probably the “closest to the action” as any other course I’ve taken in the first 2 years of my law school career. Sure, most courses tackled issues that are real, but still somewhat at arm’s length. Here, I’m meeting clients who are dealing with situations in the internship that I’ve learned about, or will learn about in the class. Hearing comments and conversation from lawyers in the OPD office about things like “wing span” and then 2 weeks later learn about the relevance of what the “wing span” argument is for what police officers can and cannot search subsequent to a legal arrest.

Not only is this perhaps the perfect summer combination of courses, but it also serves as a good “priming of the pump” so to speak for my fall semester, when I will be involved in the rule 16 attorney practice clinic program, also at the public defender’s office.

Good times, and looking forward to rounding out the last year of law school, and of course taking the bar next July!

Phones, Cars, Trash….

Like most professionals, at least most young to middle aged professionals, I use my phone a lot for work. E-mail, calls, etc. My office is very client centered, so when I leave the office I hit a button that forwards my extension to my cell phone. My wife doesn’t necessarily like it, but for me it works. I also screw around on my phone, and this contributes to killing the battery life quickly.

 

Usually by 4pm my iPhone 4s is nearing the 20% battery mark. I charge the phone every night, and for some strange reason it only works on one charger, plugged into one plug in my house. This prevents me from taking another charger to work, or using one in the car. However, I have a solution that may help solve this problem, as well as other problems.

New cars who are outfitted for satellite radio should be phones, too. Yes- I mean this. In theory this may sound useless, but I think it would solve a lot of problems. I have an hour or more commute each day. I use my commute into the office to call insurance adjusters, doctors, therapists, etc. I use my evening commute home to call clients and follow up with them. I am always talking calls as the phone rings. If my car were a cell phone, too–and what I means is that I get into the car, pop out my sim from my iPhone and pop it into a slot on the car, I am now making calls that should be clear as the car is outfitted with a satellite antenna, and my phone is off, thus preserving battery life.

Why would anyone do this? Well, I’ve also come up with an interesting safety/public policy reason for this. I must be through 2 years of law school to be looking at things this big picture. However, think about this: there is a HUGE issue in our country, at least in the metropolises, with people texting while driving. My phone has text capabilities. If my car were to be a phone, it wouldn’t. It could have software that automatically shoots back a text that says caller is connected to his car, your text will be delivered when sim is placed back into phone, or something like that.

I’m sick of dealing with overpriced plans, and over priced phones for sub-par service. I drop no less than 8 calls per day. My battery is dead by the time I am driving home, unless I am lucky. It’s dead by 3pm if i decide to sling birds at pigs–but here enters the assumption of risk defense.

I pay $28 every month to have a private company come to my curb weekly and take away my trash. I pay $178 every month to have AT&T deliver the trash they call service to my and my wife’s iPhones. I’m sick of it. P.S. Don’t think this is a direct dig on AT&T. If I thought any other company gave a damn enough to provide solid, decent service, I’d have switched to them months ago.

 

What they don’t teach you in law school

There’s a lot about the practice of law, and the reality of law that just isn’t taught in law school. In fact, not only do they not teach it in law school, but you don’t learn anything about the reality of the cases when reading opinions.

The famed “Burger King” case involving personal jurisdiction from Civil Procedure–we learn that the defendant purposefully availed himself to florida, but who won the case? We never know any of this stuff, nor do we really find out. If a case gets remanded for a new trial, or new trial on a given issue, we never really know the outcome, we only find out who won the appeal.

 

This summer I am doing an internship at the Public Defender’s office in Cecil County, approximately 12 minute commute from where I live. Here i get into the real dirt of things, but I still have questions. I am taking Constitutional Criminal Procedure this summer, and am currently reading a recently case Florida v. Jardines. The court upheld that a search of the premises was in violation of the 4th amendment, so it gets suppressed. The case involves a guy who was allegedly growing and trafficking marijuana. I presume that the plants in question were confiscated, and I can assume that other processed product and cash was also confiscated. His lawyers motioned for suppression of the evidence, eventually won, and SCOTUS upheld the decision. So does he get his stuff back?

 

These are the crazy questions that go through my mind when reading these things. I guess its my fault for looking too deep into the cases, or trying to find the actual situation that happened behind the case.

 

Oh well, should be a fun semester, full of hands on practical learning.