DWI Refusers….Unite!

It has been a little bit since the last blog so here are some updates.  Paul Manafort was not the only person this week some counts declared a mistrial.   We had an Ineligible Person in possession of a firearm hung jury where it was science versus belief.   Those type of sweeping arguments have never been made before so it was nice to argue such a noncontroversial subject matter to a jury of 12 people.

Also, in more important news…a prosecutor who was listening to my client’s jail phone calls had admitted my client told the person on the other line that he has the best attorney north of the cities.  One, I am flattered.   That is a very nice thing to say.   Two, what does the Twin Cities have that is so special?

Next, the MN Supreme Court ruled on what the kids like to call “dick pics.”  We are too classy here to refer to them as “DP’s” so we will call them genitalia paraphernalia.  In State v. Decker, the MNSC said Decker could be charged with Indecent Exposure and 5thDegree Criminal Sexual Conduct for his genitalia paraphernalia.  You don’t know to be in the same place, just the same cyber space.    So don’t pretend before you hit send.

The biggest news is what the MN Supreme Court did on Wednesday.  The case was State v. Johnson and they applied new law that can be retroactively applied to old DWI refusals.   They got there by looking at three decisions.

The Supreme Court’s decision in Birchfield v. North Dakota, 579 U.S. ___, 136 S. Ct. 2160 (2016), and MNSC’s decisions in State v. Trahan, 886 N.W.2d 216 (Minn. 2016), and State v. Thompson, 886 N.W.2d 224 (Minn. 2016), created a class of people who could not be prosecuted for refusing an unconstitutional blood or urine test.

So a bit of history, Birchfield consolidated three cases.   The bottom line was the State could not ask for a blood test without a warrant but they could ask for a breath test because a breath test was a search incident to a lawful arrest.   The reasoning behind this is, blood and urine tests are far more personal than a breath test.  For example, someone could find out pregnancy or disease through a blood or urine test.  Breath tests just involve the presence of alcohol and Hardees.

Therefore, a refusal to unconstitutional blood or urine test cannot be valid since the police would have to get a warrant.   So you cannot be prosecuted for refusing something unconstitutional.  So in order to get a DWI for refusing a blood or urine test the police need to get a warrant or show exigent circumstances, that they could not a warrant and the natural dissipation of alcohol in the bloodstream.  For example, if a person is in a hospital and going to be airlifted.  Thompson and Trahan, affirmed those rulings for the State.

So anyone who challenged refusals on blood or urine would have won while those case were being litigated, but what about the people before?   What about the guy who is in prison for refusing a blood or urine test?  Or the girl who is on probation for 4 more years for refusing a blood or urine test? Or someone who had an attorney who didn’t challenge the constitutionality of a blood or urine refusal?

The court said this following:

“The Birchfield rule does not merely regulate the manner in which a defendant is determined to be guilty or not guilty. The rule instead changes who can be prosecuted for test refusal. Prior to Birchfield, Minnesota statutes provided that persons could be convicted of test refusal if they “refuse[d] to submit to a chemical test of the person’s blood, breath, or urine.” See Minn. Stat. § 169A.20 (2016). But under the Birchfield rule, persons may be convicted of test refusal only if they refuse to submit to a breath test or if they refuse to submit to a blood or urine test when the police have a search warrant or a valid exception to the warrant requirement applies. Because of the Birchfield rule, those drivers who refuse to submit to warrantless blood or urine tests cannot be prosecuted unless the State proves that an exception to the warrant requirement applies. If no exception is proved, these drivers then are beyond the power of the State to punish.”


This does not happen often.  So if you or anyone you knew pleaded guilty or got found guilty for refusing a blood or urine test since…forever…you should contact the law offices of SailorsAllen Law. The best attorneys…not in the Twin Cities.

This is a watershed moment.  The floodgates are open.   Luckily we are talking about urine refusal floodgates.




Technicality Reality

The last couple of weeks we have talked about more interesting topics.    We have talked about a defendant who concealed drugs in dark cavernous places.  We have talked about a South Dakota Deputy who expanded the scope of the stop to a drug investigation because the driver was driving too well.  Sometimes you have to eat your vegetables.   Sometimes if there is nothing funny you need to talk about people getting off on technicalities.

In this case, the juvenile was placed on probation on August 16, 2016 and violated probation a bunch of times.   The PO filed a violation on May 30, 2017.   That is within 360 days, right?  For all your calendaric scholars.    The juvie gets hit with consequence after consequence  and gets placed on indefinite probation, right? Wrong.  He got nothing and the State has to like it.  Actually, they don’t have to like it.  It just reminds me of the Spaulding from Caddy Shack scene.

Here is why they don’t like it:

Minnesota Statutes section 260B.198, subdivision 7(a). The statute states:

When it is in the best interests of the child to do so . . . the court may continue the case for a period not to exceed 180 days on any one order. The continuance may be extended for one additional successive period not to exceed 180 days, but only with the consent of the prosecutor and only after the court has reviewed the case and entered its order for the additional continuance without a finding of delinquency.

Minn. Stat. § 260B.198, subd. 7(a) (emphasis added). The same requirements are stated in Minnesota Rule of Juvenile Delinquency Procedure 15.04, subdivision 4(B).

Because the district court imposed two 180-day continuances without adjudication, the defense attorney, said the court had no jurisdiction over the juvie because the judge did not review the case and order another 180-day continuance without a finding of delinquency.

The COA agreed said the questioned statute is unambiguous.  It plainly limits a court to only issue one continuance, up to 180 days, and requires a court’s review prior to extending that continuance for another 180 days. See Minn. Stat. § 260B.198, subd. 7.

Here, the district court continued the case without adjudication for two 180-day periods at the initial disposition proceeding and failed to review the case within the first 180-day continuance to extend the continuance an additional 180 days. The district court did not comply with the plain language of the statute.

The district court acknowledged its mistake, stating “this Court’s dispositional order, which continued the case for one year without a finding of delinquency, did not comply with the precise requirements of Minn. Stat. § 260B.198, subd. 7.” (Emphasis added.)

Therefore, probation is over.  The juvie and justice…both win.





Sit up Straight or Go to Jail

It is not often we review North Dakota cases but when cases get sent to us by “friends of the firm,” we have to review them.    North Dakota has no precedential value on Minnesota courts but they can be persuasive.  They are considered a “sister court” to Minnesota but it is more like a step sister.  Until they do something like this and totally redeem themselves.  Here is what happened.

Nhia Lee and Bee Thor were driving through the North Dakota presumably counting power lines when they got pulled over.   (Side note:  The name Bee Thor rules.    It would only be cooler if Praying Mantis Loki were in the car as well).   They got pulled over by a Stutsman County Deputy Matt Thom.  They were traveling 2 miles below the speed limit.   A faster car pulled in front of their truck and apparently their truck did not slow down “enough” (underneath the speed limit) so they were following too close.   So they got pulled over.

When the Deputy approached the truck, he noticed Lee was sitting “too rigidly,” had a “suspiciously” tight grip on the steering wheel, and Lee did not turn to look when the deputy drove past.  Thom followed the pair for 12 miles before pulling them over.  So because of this horrible posture, he decided to search the car.   Deputy Thom found 476 pounds of the Colorado Cotton (I don’t think that is a term).  However, our story does not end there.

Judge Jay Schmitz ruled that Lee’s, apple on the head, posture, firm grip, and decision to focus on the road rather than to gaze Thom, did not constitute probable cause to pull him over.   Schmitz called the prosecution’s argument “absurd” and Thom’s testimony “too inconsistent and contrived to be credible.” The evidence was suppressed during the stop could not be used at trial.

Stutsman County State’s Attorney Fritz Fremgen is unsure if he’ll appeal the ruling. The fate of the weed is up in the air.   The could just put out in front of a 7-11 and write “free” on it.   So feel free to cross state borders and grab that wheel as hard as you want.

Mr. Brown’s Anus

So you have been arrested by the police and they have a suspicion you have drugs up your butt.  What happens next?   Luckily, the MN COA published a case that answers this cavernous question once and for all.   The case is called State v. Brown, but could possibly be called, State v. Green, depending if asparagus was consumed prior.    Here are the sticky facts.  Minneapolis PD arranged for a Confidential Informant.  After the transaction was complete the police observed Brown reaching down his pants.  They believed he was trying to conceal something.  I would argue he didn’t wipe very well.  At the police station, police observed Brown “grinding his buttocks” against his chair in a back and forth motion.  Again, I would argue that he was twerking.

Brown then stood up, straddled the chair rail, and ground his butt cheeks into it. An officer told Brown to stop, believing that he was “attempting to jam narcotics up his rectum.” Then the officer observed Brown “taking his hands and shoving . . . kind of between his legs, shoving upwards.”  The officer believed that Brown was trying to insert something into his rectum.  A strip search revealed clear plastic sticking out of Brown’s anus. Again, back to the single ply toilet paper argument.

The officers applied for a search warrant and took Brown the hospital.  In the emergency department, Christopher Palmer, M.D., performed an external body search and did not see anything protruding from Brown’s anus.Dr. Palmer offered Brown a liquid laxative, but he refused it. After consulting the hospital’s legal counsel, Dr. Palmer declined to administer a laxative or perform any procedure to remove the suspected narcotics without Brown’s consent.

Police then applied for and obtained a more specific search warrant from the same district court judge who had granted the first warrant. The second warrant expressly authorized hospital staff to “use any medical/physical means necessary to have Brown vomit or defecate the contents of his stomach or physically by any means necessary remove the narcotics from the anal cavity so Officers can retrieve the narcotics.” Police transported Brown to the emergency department at Hennepin County Medical Center (HCMC) ( to hopefully a more liberal anus removal facility), where Paul Nystrom, M.D., reviewed the warrant and consulted the hospital’s legal counsel about his rights and obligations.  Dr. Nystrom understood the warrant to authorize the removal of the narcotics through any medically reasonable means but not to compel him to act if he was ethically opposed. His assessment was that leaving cocaine in the rectum had the potential to cause serious complications or death, but that no medical emergency existed at the time.

Dr. Nystrom offered Brown four options to remove the suspected narcotics: (1) Brown could remove the bag himself, (2) Dr. Nystrom could administer an enema,1(3) Dr. Nystrom could sedate Brown and perform an anoscopy, or (4) Dr. Nystrom could put Brown on a ventilator and insert a nasogastric tube to deliver a laxative that would“eventually clear his bowels.” After explaining the different procedures and associated risks, Dr. Nystrom recommended options one or two. Dr. Nystrom told Brown that if he did not select an option, they would proceed with a sedated anoscopy. Brown remained silent.   Remember that 5th amendment here, kids.

Dr. Nystrom elected to proceed with the third option—sedation and anoscopy. Dr. Nystrom concluded that, absent Brown’s cooperation, anoscopy was the safest and most conservative means of removal. He described the procedure as the insertion of a speculum in the rectum to allow inspection of the four quadrants. The procedure is typically done to look for internal bleeding or hemorrhoids, but can also be used to remove a foreign body. Dr. Nystrom explained that the speculum is “like the size of a large bowel movement, so it’s not comfortable,” but it allows visualization of “whatever it is you’re worried about.” The procedure takes “a couple of minutes,” and then the speculum is removed. He testified that although sedation is not always required for anoscopy, relaxation makes the procedure, “less painful, less uncomfortable.”

After another medical doctor sedated Brown intravenously with Propofol, Dr. Nystrom inserted the anoscope and conducted a visual inspection, but he did not immediately see anything. Taking a second look, he saw the edge of a plastic bag. Using Magill forceps, Dr. Nystrom removed the bag and handed it to police. Later testing confirmed that the bag contained 2.9 grams of crack cocaine.

The state charged Brown with fifth-degree crack-cocaine possession under Minn. Stat. § 152.025, subd. 2(a)(1) (2014). Brown moved to suppress the evidence, arguing that the procedure by which the cocaine was removed violated his constitutional right against unreasonable searches and seizures.

Here is the law:

Winston articulates three factors that courts should consider when determining whether a medical-procedure search is reasonable: (1) “the extent to which the procedure may threaten the safety or health of the individual,” (2) “the extent of intrusion upon the individual’s dignitary interests in personal privacy and bodily integrity,” and (3) “the community’s interest in fairly and accurately determining guilt or innocence.” 470 U.S. at 761-62, 105 S. Ct. at 1617-18.

  1.  Dr. Nystrom testified that it was safe and the equivalent of a large bowel movement, which can sometimes be relieving.
  2. The district court properly determined that “the procedure was demeaning, humiliating, and an infringement on Brown’s dignitary interests.” This factor favors a conclusion that the procedure was unreasonable.
  3.  The district court found that the community has a strong interest in prosecuting those who sell illegal drugs on street corners. Brown does not dispute this finding.  Significantly, unlike in Winston, the evidence sought here was the state’s only direct evidence of crack-cocaine possession.

    After balancing the three Winston factors, the COA conclude that the district court properly determined, in a comprehensive and thoughtful decision (nice job Judge Hoyos), that the anoscopy procedure was reasonable under the circumstances.

    So there you.    The lesson here is drugs are bad but if you have them up your butt don’t act like a bear scratching an itch on a tree.

What happens when you cannot legally speak to a witness?

This situation plays out every day in courts across the Country.   You are pro se, meaning you have an idiot for a client.    You are on trial for a domestic but a domestic abuse no-contact order (“DANCO”) prevents you from speaking to the victim.   Since you are representing yourself, how do you question that victim when they are on the stand?  Luckily, the MNCOA answered this long-standing question for us by publishing twin decisions.   State v. Anton Leo Schloegl, III.   In this case, Mr. S. III. was arrested for assaulting his fiancee during a car trip to Duluth.   He was charged with domestic assault and a DANCO was issued.

The district court orally emphasized, “No contact means no contact whatsoever.” It warned that “any attempt to contact her whatsoever” would result in his being “charged with new crimes.” It cautioned, “[Y]ou have no idea how many guys never even make it out of jail before they violate these and they find themselves in deeper water.”  The part of the written order that is emphasized that the prohibition against contact with S.O. “applies regardless of whether you are in jail or at the courthouse for a court appearance.”

Mr. S discharged his public defender before trial and he represented himself at trial.  The State called S.O. and S.O. testified against Mr. S.  The State’s attorney had no more questions.    Then the following exchange happened.

District Court: No questions?
Schloegl: What do you mean questions?

District Court: Do you have any questions that you wanted to ask?

Schloegl: For the person on the stand?
District Court: Yes.
Schloegl: But I have no contact order, so no.
District Court: That’s fine. You can step down then, ma’am.

Schloegl: I don’t want to get more charges.

 At the close of the state’s case, the district court invited Mr. S to present his case, asking whether he intended to call any witnesses.  Mr. S responded angrily with two profanities directed at the court. The district court made a record of what happened next: “Mr. Schloegl has been removed from the courtroom after an outburst where he threw a pitcher onto the ground.”  Mr. S was found guilty and appealed the conviction.

Mr. S argues that the district court denied him his Sixth Amendment Confrontation Clause right to cross-examine S.O.  The Sixth Amendment’s Confrontation Clause states, “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . .” This procedural guarantee affords every criminal defendant the “opportunity for effective cross-examination.” Delaware v. Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 294 (1985); see also Crawford v. Washington, 541 U.S. 36, 57, 124 S. Ct. 1354, 1367–68 (2004).

The COA agreed with Mr. S, saying the district court could have handled this differently.  For example, it could have declared that it interpreted the order in a manner that eliminated any possibility that Schloegl’s cross-examination would violate the order, or it could have orally modified the order’s no-contact restrictions, expressly excepting the cross-examination of witnesses.  But failing to address Mr. S’s understanding that he would face a criminal penalty by cross-examining S.O. left Schloegl without a burden-free opportunity to exercise his Confrontation Clause right.

So because Mr. S. couldn’t speak to S.O. he couldn’t cross-examine her and cast doubt on her story.  The State did not agree with this argument.  Not because of the 6th amendment, but because they argued Mr. S was a horrible attorney.   They cited the following:

  • Mr. S remained silent during voir dire, which the questioning of the jury
  • Mr. S stated “no comment” when asked if he wanted to give an opening statement.
  • At the conclusion of the direct examination, the court asked Schloegl three separate times and in different manners whether he had questions for the witness. After the third inquiry, Schloegl responded that he had a no-contact order, “so no.”
  • After the state rested, the district court asked Mr. S  if he planned to call any witnesses, to which he replied:

SCHLOEGL: No. I just want to f-cking go back there. This is f-cking bullsh-t, that’s what it is.
THE COURT: I’ll ask the deputy to remove him from the courtroom, please.

SCHLOEGL: All this is f-cked up. Get the door.
THE COURT: The record should reflect that Mr. Schloegl has been removed from the courtroom after an outburst where he threw a pitcher onto the ground.

The district court then excused the jurors and Schloegl was brought back to the courtroom. After addressing his behavior Schloegl stated that he did not wish to be present in the courtroom for the duration of the proceedings.

So there argument was Mr. S sucks at being an attorney, but I’ve seen worse.   The COA said no, he could had the ability to make a Clarence Darrow-esque closing but was prevented from doing it.    So this conviction is reversed for Mr. S part II, this time with questioning.

The Improper Etiquette for Leaving Voicemails for Judges

Nothing published by the MN Supreme Court and Court of Appeals so we are going to dive into unpublished cases.  This one involves leaving voicemails for Judges.  It is probably a bad idea to leave a voicemail for a Judge in general, but it is a really bad idea to do what Mr. Ivers did.

In early 2016, appellant Robert Phillip Ivers called a Hennepin County judge’s chambers to inquire about a case. D.J., the judge’s law clerk, answered the phone and told Ivers that his case had been dismissed.  Which is a good thing.  Ivers called again and asked to speak to the judge. D.J. answered again and told Ivers that attorneys and parties were not allowed to speak directly to the judge, but offered to relay a message.  Ivers decided to leave a few voicemails. The judge never listened to the voicemail but D.J. did.  DJ relayed the messages to the Sheriff’s Department and Ivers got charged with making Terroristic Threats.  A couple of years ago we blogged about a woman trying to get a call back from social services by leaving threatening voicemails who was charged with the same crime.   No one leaves voicemails anymore, just don’t do it.

Ivers’ voicemails were played for the jury during trial.   One night he left four voicemails.  Which is annoying to hear one and see that he is coming back for more.  The judge was identified as the intended recipient of the first two messages in which Ivers accused the judge of failing to do his job, insulted the judge, and used a great deal of vulgarity. Specifically, Ivers called the judge “a dead f-ck,” and threatened to put a woman who opposed him in his case “on the stand and . . . tear her f-cking c-nt out.

Ivers left a series of 12 voicemail messages a second night containing a barrage of vulgarities, insults, and accusations. Ivers threatened to make the judge “feel some pain”; he warned that he was “coming for” another judge; he cautioned the judges to “be on guard”; he accused the judicial system of “rigging . . . f-cking court cases”; and he stated: “[T]he whole Hennepin County f-cking judicial system, you’re f-cking corrupt, you pieces of f-cking garbage. You’re corrupt. And . . . we’re coming after you, you pieces of f-cking trash.” Transcribed, Ivers’s openly hostile messages left by voicemail filled more than ten pages and included more than 125 uses of the expletive “f-ck” or some variation of it.

So a total of 16 messages with 125 uses of expletive “f-ck,” or a total of 7.8 f bombs per message.  Again, Ivers got his case dismissed.  So lord only knows what he would have said if his case wasn’t dismissed.   So Ivers was convicted and he appealed the conviction for sufficiency of the evidence.

The statute he was convicted of Minn. Stat. § 609.749, subd. 2(5) (2014).1  The state was required to prove that (1) Ivers made or caused the telephone of another repeatedly or continuously to ring; (2) Ivers knew or had reason to know that this conduct would cause D.J., under the circumstances, to feel frightened, threatened, oppressed, persecuted, or intimidated; and (3) Ivers caused this reaction on the part of D.J. See id., subds. 1, 2(5).

He argued that he never intended for D.J. to hear the messages because they were intended for the Judge. That doesn’t help.  In State v. Hall, the COA stated that assessing whether the calls caused the victim to be frightened, threatened, oppressed, persecuted or intimidated required consideration of all the attributes of the calls. Id. at 858 (citing State v. Schweppe, 306 Minn. 395, 399, 237 N.W.2d 609, 613 (1975) (explaining that words must be considered within the context in which they were used to assess whether they were threatening)).  The actor’s knowledge of the harassing nature of the calls could “be inferred from the content” of the messages, which were “personal, often vulgar, and contained veiled threats.” Hall, 887 N.W.2d at 858.

Ivers loses here.   He says he called at night to leaved unobstructed messages.  12 of them.  He also was vulgar to the whole “f-cking Hennepin County judicial system.” He should have called Ramsey County.   So Ivers loses, and of course he does.  This bears repeating but Ivers had his case dismissed.   Just be happy it it is gone and send a poop emoji to the chambers.   But leaving 16 messages with 125 f-bombs and threatening to launch a revolution against the whole judicial system from your couch is not the right play here.   Ivers don’t threaten anyone, especially judges and DJ’s.

So When You Drop a Gun….

The MN COA went hard this week and published a lot of cases.  None of which had more consequence than the case about the fruit of the poisonous tree doctrine.   Poisonous fruit is not when IHOP puts a few blueberries on their waffles smothered in whipped cream.   Poisonous fruit is when the cops violate the Constitution.  The Constitutional violation is the tree.  That tree is poisonous like the Tuffula trees in the “Lorax.”  The police would be the Onceler to continue the dumb analogy.   The tuffula fruit from the tree is what was discovered by the police during that illegality.   For example, if the police officers tackle Scott Baio because they hated “Charles in Charge,” and they find a meth pipe, the tackling would be the poisonous tree and the meth pipe would be the fruit of that.  I am in no way suggesting that Scott Baio uses meth or that police in general, hated Cn’C.

So in this case they reviewed, it involves a guy named Corey Davis.  This could have been the same Corey Davis who was picked 5th by the Tennessee Titans last year.   MPLS PD was following a car that did not use a turn signal.  Mr. Davis, who was a passenger, got out of the car.  The cops believed it was odd that CD looked at them before walking away.  The cops followed and handcuffed Mr. Davis who proceeded to tell them information that led to the officers finding a nearby a gun.  A gun that Mr. Davis was not supposed to possess.  The district court said even though the stop was illegal; the officers learned no new information from CD and their decision to search the nearby area was based on CD’s evasive conduct.   So the gun came into evidence and Davis appealed.

Here is what the COA focused on this exchange:

Prosecutor: Did he say anything to you other than saying that he couldn’t sit down?

Officer Bartholomew: He did make an utterance to the effect that he had marijuana on him and that he had eaten it prior to being stopped, and he also stated that he thought he had some warrants.

Prosecutor: So, what did you do at this point?

Officer Bartholomew: Well, at that point I was suspicious that something may have been tossed, hidden somewhere in the area.

The use of the phrase  “at that point,” which was the exact way the prosecutor asked the question, was where the COA put their focus.    “At that point,” undermined the district court’s conclusion that the fact that the officers learned no new information.   Also CD ate marijuana, that is new information.   Since they did learn new information, was this FOPT? Several factors guide our poisonous-tree assessment, “including the temporal proximity of the illegality and the evidence alleged to be the fruit of that illegality, the presence of intervening circumstances, the purpose and flagrancy of the misconduct, and whether it is likely that the evidence would have been obtained in the absence of the illegality.” State v. Sickels, 275 N.W.2d 809, 814 (Minn. 1979).

The temporal proximity was nearly identical.  They heard him say he ate his stash and then they searched.   No circumstances intervened between the illegal detention and the questioning.   The illegality?  I’ll provide the quote:

“A passenger leaves a car whose driver failed to signal a turn, and the passenger is then grabbed by the arm, handcuffed, and ordered to the curb for police questioning in a residential neighborhood in broad daylight? All because, according to the officer, it appeared as though the person wanted to avoid interacting with police? This humiliating behavior is so obviously inconsistent with what the Fourth Amendment demands that we have no difficulty declaring it to be a flagrant affront to constitutional policing.”


And any intervening factor, the fourth one:

“We have no reason to assume that police customarily search the area whenever passengers leave cars being driven by turn-signal violators—even passengers who seem to want to avoid police contact. We have already determined that the officer’s testimony establishes that he based his decision to search on what he heard from Davis during the illegal detention, and so we must conclude that police would not have found the gun without the stop.”

They closed with this:

“But if courts do not deter the unconstitutional and demoralizing practice of detaining, handcuffing, sitting, and questioning people merely because they want to avoid police contact, the practice will only increase the number of people who want to avoid contact with police and will, consequently, add to the number of people who are then unconstitutionally detained merely for demonstrating this preference.”

Powerful words from Judge Kevin Ross.

The State tried to argue that the gun was abandoned so CD had no reasonable expectation of privacy in the gun because he threw it away.   However, that was swatted away by saying the supreme court has also held that, when a defendant has “abandoned [contraband] after he was unlawfully directed to stop, the abandonment was the suppressible fruit of the illegality.” Matter of Welfare of E.D.J., 502 N.W.2d 779, 783 (Minn. 1993).  The illegal stop included questioning and the incriminating statements that inspired police to search the area and find the abandoned gun. This causal connection between the illegal stop and the recovered contraband is analogous to the connection in E.D.J., where the illegal stop led police to recover the abandoned drugs.

The court reversed in a victory for all who want to exit a car and not be handcuffed.

Baited Affidavit

The blog is back.  Took a few weeks off to move but now we are back and we are talking about restitution.  But not just restitution but the timing to make your restitution claim.  Edge of the seat type of blogging out of the break.   Restitution is out of pocket losses incurred by a victim of a crime.  For example, if you were a victim of an indecent exposure and you could barely see what was being exposed so you had to go to the eye doctor to get your vision checked — you could ask for the out of pocket deductible for the eye exam.   But you would not get damages from pain and suffering from the “poof” test.  I hate the poof.   So out of pocket only.  The MN COA published a case named

Restitution is out of pocket losses incurred by a victim of a crime.  For example, if you were a victim of an indecent exposure and you could barely see what was being exposed so you had to go to the eye doctor to get your vision checked — you could ask for the out of pocket deductible for the eye exam.   But you would not get damages from pain and suffering from the “poof” test.  I hate the poof.   So out of pocket only.  The MN COA published a case named State v. Howard.

“An offender may challenge restitution, but must do so by requesting a hearing within 30 days of receiving written notification of the amount of restitution requested.” Minn. Stat. § 611A.045, subd. 3(b). “Under Minn. Stat. § 611A.045, subd. 3(a), the offender bears the initial burden of production to challenge a restitution request.” State v. Smith, 876 N.W.2d 310, 336 (Minn. 2016). “The timing of that burden is plain and unambiguous.” Id. “The affidavit must be served on the prosecuting attorney and the court at least five business days before the hearing.” Id. (emphasis and quotation omitted). “[I]f the defendant challenges the restitution amount sought, the statute requires the court to conduct a restitution hearing.” State v. Willis, 898 N.W.2d 642, 648 n.8 (Minn. 2017) (citing Minn. Stat. § 611A.045, subd. 3 (2016)).

Here, Howard gave his 30-day notice but the State argued that the Howard did not come close to meeting his burden of production with a detailed affidavit.  Howard filed an affidavit that by all accounts was an embarrassment to all affidavits.   The Court agreed and dismissed the restitution claim.  Howard claimed that he did not have to give detailed information until at least five days before the hearing so the Court was wrong to dismiss his petition.  His lame affidavit could easily be fixed by those five days before the hearing.  Sort of like Ali’s “rope a dope” this was a “baited affidavit.”   Lull the State into thinking they don’t know what they are doing and then “boom” hit them with the affidavit that is so detailed it will be the equivalent of a “mic drop” affidavit.   The COA said the DC was premature in dismissing this restitution and Howard will live to fight another day.

So the lesson here is simple.

If you want to shroud your restitution claim in secrecy, hit them with a generic motion for a hearing within the 30 days (usually sentencing) with a generic baited affidavit only to blow their minds with an affidavit soaked in detail five business days before.


The Playbook to defend exposing yourself allegations

Sometimes you don’t intend to write a blog this week and then you see a published case about a guy who claims he was drugged when he smoked a hookah which impaired him to such a degree that he did not know he was exposing himself.

On July 5, 2015, the appellant approached a family gathering in the front yard of a residence in Minneapolis, exposed his penis, and danced provocatively.  So more risque than the Macarena.    He was charged with indecent exposure.  He challenged whether indecent exposure was a general intent or a specific intent crime.   The importance of this is – that with a specific intent crime you can use voluntary intoxication as a defense.   Which he wanted to do because his testimony was this:

Prior to the incident, he smoked what he believed to be shisha—a flavored tobacco consumed through a hookah—with some men he met that day. He testified that after smoking the substance, he felt dizzy and disoriented. His reaction to the substance intensified and he vomited, blacked out, and woke up in the jail hours later— with no recollection of the incident.

So the COA took a stab at this one as this is a tough nut to crack.

When a statute simply prohibits a person from intentionally engaging in the prohibited conduct, the crime is considered a general-intent crime.” State v. Fleck, 810 N.W.2d 303, 308 (Minn. 2012). A specific-intent crime “requires an intent to cause a particular result.” Id. (quotation omitted).  The easiest way to explain it is assault intent to inflict bodily harm is a general intent.  If you slug someone and you don’t hurt them, you general intent is to slug so that is an assault.  If you attempt to assault someone by causing fear of immediate bodily harm or death then that is a specific intent crime.  The first one you cannot use voluntary intoxication as a defense, the second one you can.

Here they argued because of a case in our Supreme Court named Perry.  In Peery, the supreme court held that, to sustain a conviction for indecent exposure that does not occur in a public place, “the evidence must be sufficient to sustain a finding that the misconduct complained of was committed with the deliberate intent of being indecent or lewd.” 224 Minn. at 351, 28 N.W.2d at 854.  So here, they wanted to say “deliberate intent to be lewd,” should be in the jury instructions.  And maybe his provocative dance was more Shakira “Hips Don’t Lie” than indecent.   But Perry was in a private place and rules for private parts are different in private places.  So Perry does not work.

So know we look at voluntary intoxication after the judge said there is no specific intent instruction. Minnesota law provides:

An act committed while in a state of voluntary intoxication is not less criminal by reason thereof, but when a particular intent or other state of mind is a necessary element to constitute a particular crime, the fact of intoxication may be taken into consideration in determining such intent or state of mind.

They look at three factors

(1) the defendant must be charged with a specific-intent crime; (2) there must be evidence sufficient to support a jury finding, by a preponderance of the evidence, that the defendant was intoxicated; and (3) the defendant must offer intoxication as an explanation for his actions.” State v. Torres, 632 N.W.2d 609, 616 (Minn. 2001).

Indecent exposure is a general intent crime so the court was justified in not giving the instruction.

So the final thing they looked was did the court error by not giving a voluntary intoxication instruction?

He pursued a theory of innocent-involuntary intoxication. Innocent-involuntary intoxication occurs “when intoxication results from an innocent mistake by the defendant about the character of the substance taken, as when another person has tricked him into taking the liquor or drugs.”

But since he never identified the source of the intoxication, other than tobacco from the Hookah for something else, didn’t show the reaction was caused by something else other than what he took, and because he hide from the officers and put his genitalia back in his pants; knew what he was doing was wrong.  So he loses.  But we all gain from his loss to learn that next time you get messed up and nakedly dance like Shakira in a public place – there is no defense to that.

Same Behavioral Incident – Multiple Incidents Same Juice Box

For the followers follower (hi Mom) of this blog 2018 has not been turning out the material.   Lots of fingers can be pointed at the higher courts not giving material but Michael Jackson sang a song about looking at the man in the mirror which seems apropos.  But like no one has ever said, you can either continue to make excuses or you can start blogging.  I choose the latter.  So let’s blog.   There was an unpublished case that got my attention this week about same behavior incidents.   What that means is you cannot be punished for multiple acts that are considered the same behavior incident. For instance, if you stab your Capri Sun juice box incorrectly and intentionally spill juice sugar water all over the carpet while swearing, you should not be charged separately with criminal damage to property for intentionally damaging carpet with juice and disorderly conduct for engaging in offensive, obscene, abusive, boisterous, or noisy conduct or in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others.  However, if you intentionally spilled juice and then spiked the juice box with roofies because you are a horrible person, that would not be the same behavior incident and you should be charged twice.

So in this case, a Mr. Dale broke into a golf clubhouse in 2002 in South Dakota.  Must be fun to play golf in South Dakota as the fairways would be treeless wide open spaces and maybe you can put in Lincoln’s mouth.  * I know very little about South Dakota *  He pleaded guilty to possession of burglary tools, (a pitching wedge) and 3rd-degree burg.  So when he was convicted of another felony here, the question became could both of those felonies from South Dakota be used to compute his criminal history score.   Mr. Dale argues only one should be used since it was the same behavioral incident.

In considering whether multiple offenses constitute a single course of conduct, we look at factors such as “time, place, and whether the offenses were motivated by a desire to obtain a single criminal objective.” State v. Gould, 562 N.W.2d 518, 521 (Minn. 1997).  So what happened here, is the Court did not conduct a juice box analysis.   They did not determine if this was one act out of frustration with the intentionally unsharp stars or if this was multiple acts done with the same juice box but to achieve a different criminal objective.   So because the Court did not conduct the analysis to determine whether Mr. Dale should have one or two criminal history points on his criminal history the case was remanded.  Mr. Dale gets another drink of the apple… juice box.