Say Nope to Dope….by Schools

The week of October 19, 2017, gave us nothing in the way of no case law.  The MN supreme court disciplined some attorney and the court of appeals gave us eight cases nonpublished.   So we are going to go back a few weeks to a published case about slingin’ dope in a school zone.  I don’t know if slingin’ dope is the right colloquium but it sounds cool lame so let’s go with that.  This case was called State v. Lapenotiere (A17-0456)  The head of the NRA  was convicted of  sale of drugs 2nd and 3rd degree within a block or 300 feet of school property.  He got 78 months in prison and appealed.

Under Minn. Stat. § 152.022, subd. 1(6), the state was required to prove that he sold a controlled substance in a school zone. “School zone” is defined as “the area surrounding the school property . . . to a distance of 300 feet or one city block, whichever distance is greater.” Minn. Stat. § 152.01, subd. 14a(1)(2).

This is the property layout of this case:


Wayne lives where the X is located.   This image is from google maps so perhaps if Wayne lived in a bigger house he wouldn’t need to sell drugs.  Lapenotiere says he doesn’t live one city block of the school property. He argues  State v. Carufel, where the defendant was convicted of second-degree controlled-substance crime based on selling drugs in a “park zone.” 783 N.W.2d 539, 541-42 (Minn. 2010).

“Park zone” is defined as “`the area within 300 feet or one city block, whichever distance is greater, of the park boundary.'” Id. at 542 (quoting Minn. Stat. § 152.01, subd. 12a (2008)). Carufel contended that the term “one city block” is ambiguous and encompasses, at most, the side of a block that is directly across the street from a park. Id. at 543, 545. The supreme court rejected both arguments, first observing that the term “block” is commonly understood “as a rectangular section of a city or town bounded on each side by consecutive streets.” Id. at 544. After noting that “one city block” is both a distance measurement and a description of area, id. at 544 n.2, the supreme court held that

when the land surrounding a public park is an area divided into rectangular blocks bounded by city streets on all four sides, the phrase “the area within . . . one city block” . . . is not ambiguous and the park zone includes the entire area of a block that is directly adjacent to the park.

Id. at 545.  Wayne says his case is not like Careful’s (sp) case and he should be treated differently.   Wayne says if you look at the google map above, under a careful reading of Careful (sp) that only the gray areas should be treated as directly adjacent.  Wayne asserts that he does not live within one city block of the school property because his residence (The X house”) is on a corner block rather than a block “directly adjacent” to the school property.  Wayne loses this argument.

First, they reject Wayne’s reliance on Carufel that only city blocks bounded by a street that borders school property meet the statutory requirement. While it is true that Carufel’s residence was located on such a block, the supreme court emphasized that its holding was “limited to the actual facts presented.” Id. at 545 n.3. Careful applies to Careful.  Nice try…Wayne.

Second, “park zone” is defined as “the area within 300 feet or one city block . . . of the park boundary.” Minn. Stat. § 152.01, subd. 12a (2012). But “[s]chool zone” is defined as “the area surrounding school property . . . to a distance of 300 feet or one city block, whichever is greater.” Minn. Stat. § 152.01, subd. 14a.  “Surround” means “[t]o extend on all sides of simultaneously; encircle.” The American Heritage Dictionary 1754 (5th ed. 2011).  Nice try again…Wayne.  But think of it as sweet surround sound speakers.  You don’t have to be sitting by the soundbar to hear how awesome Nick Cage’s “The Rock” sounds.

Third, keep children away from drugs.   Does Wayne not remember that remember that episode, in “Saved by the Bell.”  It was called “Say Nope to Dope.”  Johnny Dakota a super cool movie star came to Bayside to film an Anti Drug Commercial, but soon his secret was out when a “roach” was found in the bathroom.  Drugs and school shouldn’t mix.  Unless they are prescribed and used per prescription.  Then teachers beg of parents to make sure parents medicate their kids.  But not the drugs that Wayne and Johnny Dakota use.  Say Nope to Dope Wayne.

Difluoroethane in the membrane

The week of October 9, 2017, was again not the most interesting one in the jet-setting world that is MN case law.  However, if you are a difluoroethane (DFE) user, this week means the world to you. State v. Carson, A15-1687   In November of 2014, officers responded to call to a drive-thru restaurant about a passed out patron.  The MNSC was discreet about the restaurant but we all know it was Taco John’s.  Passing out in the driveway is unfortunate because you are so close to your reward that you can smell it, but then you go and pass out.   The passed out person seeking a super burrito was slumped over in her car.   As you can imagine she was pretty messed up.   Court’s language, not mine.   One can of Dust Off was found in the car.  One week later the same thing.  Slumped in a running car, potato oles everywhere with three cans of Dust Off    Several months later, the same thing happened at a different location.  The court did not name the other location but we all know it was another Taco John’s.  The only difference was this time they were five cans of Dust Off.

On each of those occasions, Ms. Carson was placed under arrest for DWI.  The police obtained blood samples from Carson on the first two occasions and a urine sample on the third occasion. Subsequent analysis revealed the presence of DFE and clonazepam. She filed a motion to dismiss saying that there was insufficient evidence that she was under the influence of a “hazardous substance” as defined in Minn. Stat. § 169A.03, subd. 9.  During the hearing, a scientist testified to the following:

“[DFE] is commonly seen in a product called Dust-Off. It is commonly abused as an inhalant simply because it is easy to obtain and you don’t need to be a particular age to acquire it or purchase it, and it will produce a pretty rapid high, as well.”

The district court said that DFE was a hazardous substance.  The Court of Appeals agreed and the Supreme Court got the final word in the neverending debate of whether or Dust Off is like the Sizzurp.  In Minnesota, it is a crime to drive, operate, or be in physical control of a motor vehicle while “the person is knowingly under the influence of a hazardous substance that affects the nervous system, brain, or muscles of the person so as to substantially impair the person’s ability to drive or operate the motor vehicle.” Minn. Stat. § 169A.20, subd. 1(3).  A hazardous substance is defined as “any chemical or chemical compound that is listed as a hazardous substance in rules adopted under chapter 182 (occupational safety and health).” Minn. Stat. § 169A.03, subd. 9 (emphasis added).  Chapter 5206 contains a specific rule on hazardous substances, which includes a “[l]ist of hazardous substances” in alphabetical order. See Minn. R. 5206.0400, subp. 5. Rule 5206.0400 also states: “The hazardous substance list includes the majority of hazardous substances that will be encountered in Minnesota; it does not include all hazardous substances and will not always be current.” Id., subp. 1.

Carson said that DFE is not included in the list of hazardous substances.  The State said the list of not exhaustive.  Then the court engaged in a spirited debate about what list means.  The American Heritage Dictionary of the English Language 1024 (5th ed. 2011) (defining the verb “list” as “[t]o make a list of; itemized” and a “list” as a “series of names, words, or other items written, printed, or imagined one after the other”).  The State said that “list” includes characteristics of DFE that make it a hazardous substance.

Think of it, like this… you are in a relationship and when you look at the characteristics of a relationship a lot of boxes are checked.  However, without an official Facebook status update, you are not the official relationship list.  And you have never met any of their friends.  Therefore, the State’s argument is there is a relationship by implication, but the MNSC said Dust Off on the hazardous substance list are just friends and can see other people.    It makes sense because if the legislature wanted to criminalize a person under the influence of any hazardous substance they would have said that.  But, they made a list.   So my sense is Dust Off will be on the banned substance list so if you want a little kick with your potato oles while driving, you better do it quick.  Difluoroethane in the membrane, difluoroethane in the brain.

Difluoroethane in the membrane


My Lawyer Sucks Argument

The week of October 2, 2017, was again not noteworthy in Minnesota published case law.  Which, I know comes as a major disappointment to the public at large.   There was an unpublished case where a guy pretended to be a sex therapist counseled a person addicted to sex.  This may come as a surprise to many but they had sex.  When he got charged with third-degree crim sex because of the sensitive nature of the professional/client relationship, said he was just pretending to be a professional.  He lost his argument and I feel like you get the gist of the case, so we will move onto ineffective assistance of counsel, or otherwise known as when lawyers suck.   This case is called, State v. Berhens Jr., (A17-0499).

He was on probation for a second-degree crim sex case for 25 years.  He was supposed to complete sex offender treatment, chemical dependency counseling, individual counseling, not get online without probation approval.   He has a probation-violation hearing regarding his use of devices that can get onto the internet.  The court dismissed the violation but the court amended the conditions of probation to include no internet access and no possession of internet-capable devices without agent approval.  There was another hearing in which he admitted buying a phone capable of accessing the internet.  As a consequence, the court ordered him to serve 120 days in jail.

After serving his jail time, he again got violated for the internet (must be a blog reader) drinking, possessing five cell phones and failing to complete chemical dependency treatment.  Behrens testified that he had issues with drugs and alcohol.  He didn’t show up for the treatment intake because of work.  He used the internet to obtain college transcripts and said the five phones were not in service.  Like collecting old Motorola Razrs.   The State argued that the violations were proved by clear and convincing evidence and Berhen’s attorney said this:

“I don’t know what to say for this man, Your Honor. He has been on probation a few years now. He probably should be farther along with things.  I think given his disability and mental illness and untreated chemical addiction problems I don’t think he is capable of being successful on probation. Every time I have talked with him in the past week or so since I have gotten this case he has been talking about going to treatment and wanting help for his alcohol problem and drug problem because he thinks that is sort of the overarching issue, but I know he wants to try one more time on probation, and that is what he is asking for, Your Honor.”

Once the court found the violations were proved,  the State asked that he go to prison for 36 months.  The state argued that it would depreciate the seriousness of those violations if the court did not revoke probation and execute the 36-month sentence. Behrens’ attorney was asked to address sanctions and responded with, “Nothing further to say, Your Honor.” The court sent him to prison for 36 months.  Behrens appealed for ineffective assistance of counsel.

A defendant has a statutory right to the assistance of counsel in a probation- revocation proceeding. Minn. Stat. §§ 611.14(3); 609.14, subd. 2 (2016). The parties have analyzed the issue under the Sixth Amendment. When evaluating claims of ineffective assistance of counsel under the Sixth Amendment, we employ the Strickland test, which has two prongs: deficiency of representation and prejudice to the defendant. State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999). The defendant must affirmatively prove that his counsel’s representation ‘fell below an objective standard of reasonableness’ and ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. ” Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987).

Behrens argues that his counsel’s representation was unreasonable because counsel conceded that Behrens violated probation and that he could not be successful on probation. According to Behrens, “[n]o reasonably competent attorney would do such a thing.” The State did not argue with that.   Without being at the hearing or reading the transcript it is impossible to know how the evidence came in.   That being said, the State needs to prove by clear and convincing evidence that the person intentionally violated probation.  The probationer can argue mitigation to the court as well, such as I had 5 cell phones because the 4 previous ones I had got cracked screens.

What the State argued is this, that there is no reasonable probability that the result of the proceeding would have been different, considering Behrens’ detailed history of probation violations and lack of meaningful progress while on probation.  So Behren’s could have had Johnny Cochran exhumed from the grave and the result would have been the same. Prison.

Behrens relies on Dukes v. State, where the supreme court acknowledged that “there are some Sixth Amendment right to counsel violations in which prejudice to the defendant will be presumed.” 621 N.W.2d 246, 254 (Minn. 2001) (citing Strickland 466 U.S. at 692, 104 S. Ct. 2052). In Dukes, the supreme court identified the situation “where counsel admits guilt without the consent of the defendant” as a situation in which the defendant would be “entitled to a new trial, regardless of whether he would have been convicted without the admission.” Id. at 254 (citing State v. Wiplinger, 343 N.W.2d 858, 861 (Minn. 1984).  So you can’t say, “yeah you are right, my client sucks.  He did it.”   This happened here but I think the court also could have focused on the complete lack of disposition arguments.   Disposition is the punishment.  You get to argue Austin, that the policies in favor of probation are not outweighed by the need for incarceration.   You can Motland, which talks about a need to protect public safety, or a need for correctional treatment, or that the seriousness of the violation unduly depreciates the seriousness of the violation.  Which sounds like something a headmaster says before you get kicked out of an English boarding school.   Something.  The client is related to Kim Jong Ill, and is named Menta Lee Ill.  Give the court something but here we got nothing.   And Mr. Behrens gets another bite at the apple.

You know that one time in Elk River

The week of September 25, 2017, did not yield a lot in landmark case law but there was an unpublished that got reversed so that is interesting.   The case is called, State v. Stigen, A16-1583.   It is about prior bad acts.   A lot of people think trials are like the Jerry Springer show where all your baggage come out on stage to a loud crowd chanting “Jerry, Jerry, Jerry.”   If the state wanted jurors not to hate their job, trials should be more like Jerry.  But they are not.  They are the polar opposite.  However, sometimes they can bring up back past bad acts.  You know… like.. that one thing you did one time in Elk River, that your wife will never let you forget.   We call that Spriegl evidence, but for the purposes of this blog, we can refer to it as Elk River evidence.  Because what happens in Elk River should stay in Elk River.

Quick facts:   On September 22, 2015, police discovered 1.8 grams of meth in the possession of T.N.  T.N. said he bought the meth from K.F.  Hopefully Kevin Federline.   T.N. thought KF got the drugs from a dude named Zane, who sounds like a guy from One Direction.   T.N. set up Federline and they caught Kevin driving to Zane’s house and emerged with what was found to be 13.449 grams of meth.  Federline said Zane sold him the meth.  Zane was charged with First Degree Sale.  In prosecuting Zane the State tried to get into evidence past drugs crimes of Inzane in the Membrane.

Evidence of another crime, wrong, or act is not admissible to prove the character of a person in order to show action in conformity therewith.” Minn. R. Evid. 404(b). Such evidence, also known as Spreigl (Elk River) evidence, is generally excluded because “it might . . . suggest[] that the defendant has a propensity to commit the crime or that the defendant is a proper candidate for punishment for his or her past acts.” State v. Fardan, 773 N.W.2d 303, 315 (Minn. 2009).

 There are five requirements that must be satisfied before evidence of another crime, wrong, or act is admitted at trial:

(1) The state must give notice of its intent to admit the evidence; (2) the state must clearly indicate what the evidence will be offered to prove; (3) there must be clear and convincing evidence that the defendant participated in the prior act; (4) the evidence must be relevant and material to the state’s case; and (5) the probative value of the evidence must not be outweighed by its potential prejudice to the defendant. State v. Ness, 707 N.W.2d 676, 685 (Minn. 2006) (restating the five requirements outlined in Minn. R. Evid. 404(b)).

The three Zane crimes the State was trying to introduce were (1) a 1997 conviction for conspiracy to sell 50 grams or more of meth. (2) a 2005 conviction for attempted fifth-degree possession of meth (which I am not sure how you attempt to possess meth?  Maybe it blows away and you try to catch it?)  and (3) a 2010 conviction for third-degree possession of meth.

The state argued the Elk River crimes were admissible to prove Zane’s knowledge or belief that the substance that was meth.  So because Zane didn’t stipulate to the knowledge that the substance was meth showing his familiarity would only be fair.   However, this wasn’t Zane’s defense.  Zane defense was Federline was lying and he didn’t sell him meth.   So the COA said the state’s need prior-crime evidence was minimal.   The State also argued that the three prior convictions were relevant and material to prove the identity of the person who sold Federline was lying.  In cases where Elk River evidence has been admitted to prove identity, the Minnesota Supreme Court has been rigorous in requiring that evidence is not just evidence of a propensity to commit a general sort of crime.

These crimes have one similarity, meth, but they are not substantially similar so as to properly identify Zane as the person who sold drugs to Federline on September 21 and 22nd.  State v. Cogshell, 538 N.W.2d 124 (Minn. 1995).  (requiring the prior-crime evidence be “sufficiently or substantially” to the charged offense, considering “matters such as time, place and modus operandi in determining similarity”).  Two of these past convictions did not involve any sale at all.   Instead, they invited the jury to conclude that Zane was a known drug user and had previously conspired manufacture meth.   The Elk River/past crimes did not identify Zane as the seller of the meth in any meaningful way.   You could argue, and Zane did, that they are markedly dissimilar to the charged crime.  The Ness case said that “close-calls” should be excluded.  Ness, 707 N.W.2d at 685.  So the COA errored by admitting the evidence.  The analysis was not done because the COA still had to determine that the evidence prejudiced Zane.

The State argued during their closing argument that the identity of the supplier was “the man with three prior meth-related convictions.”  This argument paints Zane as a serial meth user.  The only evidence the State had of Zane’s identity was from Federline.  No meth was found on Zane or his home after a search warrant was issued.   But both TN and Federline had meth and the defense was to attack Federline’s credibility by citing his plea agreement and his ties to the drug community.  It is certainly possible the jury was skeptical of Federline’s credibility until they heard about Zane’s past.   Therefore, Zane’s conviction should be reversed.

So if your wife keeps bringing up that one time in Elk River….tell her Zane’s story and that past conduct doesn’t survive a simple 404(b) analysis.  What happens in Elk River stays in Elk River.

International Hearsay

The week of September 18, 2017, did not bring us much in the form of case law, but it did bring this blog unprecedented attention.  I found out that this blog is read internationally.   Meaning someone I know, read it while abroad.  So it is just a matter of time before this blog catches fire in the Country Chad.  Because if there is one thing people in different countries care about, it is Minnesota case law.  That being said since there was nothing published of substance we can look at an unpublished case.

This case is called, State v. Abdullah, A16-1693 and was released on September 18, 2017.   This case is about hearsay.  People love to talk about hearsay.  They say well that is just hearsay when someone tells them what someone else says about them.  And they right!   It someone named Dave tells you someone named Todd called you a “power tool,” that is hearsay.   And that is what this case is about.   Mr. Abdullah’s first name was Rarity and he was convicted of being an ineligible person in possession of a firearm.   Here the facts:

On June 24, 2015, a St. Paul police officer heard shots fired.   The officer drove toward the shots, which is one reason as to why I would not make a good police officer because I would where there is not gunfire.   Unless it was that event at the Olympics where you bobsled for a while and then shot.   The officers saw a Lincoln speeding away which made them think the Lincoln could have been involved in the shooting.   They followed the Lincoln and someone got out who the officer described as a tall individual with dreadlocks.  So it could have been Javier Baez.  Addison Russell gets hurt and Baez decided to rock the dreds because he played short.    The Cub’s middle infield may be insipid to some, but again we have to keep the international readership happy.

The officers eventually pulled the Lincoln over and arrested Rarity’s brother named R.A.  No word on whether or not he served that role on the campus of Concordia St. Paul.   Someone named R.I., who does not serve as dorm supervisor for Hamline University said they saw someone a nervous looking man dump something in her neighbor’s garbage can.  A firearm was discovered in the garbage and it was tested for DNA by the BCA.  There was a mixture of three or individuals on the gun.  51.6 of the world’s population, including Rarity, could not be excluded.   8 billion people in the word that means a little less than 4 billion could not be excluded.  So Rarity was not a rarity with the DNA finding.   99.99999 with a bar over the last 9 could be excluded from reading this blog (before the international readership) that is powerful evidence.  Another officer found 4 casings from the scene where the shots were fired and the shots matched the gun found in the trash.

On the second day of trial, R.A. was arrested in his dorm with his lava lamp and Dave Matthews Band cd, (it has been a while since I have been on a college campus) and brought to trial.  R.A. was combative and testified that he did not remember where he was on June 24th.    After R.A.’s testimony, the state recalled Officer Filiowich who testified that after R.A. said that “[h]e thought somebody was shooting at his vehicle so he took off with his brother in the vehicle.” R.A. said that his brother’s name is Rarity.   Prior to this testimony, Rarity raised a hearsay objection. The testimony was allowed. Rarity also objected to Officer Filiowich’s squad video, which was nonetheless admitted and played for the jury from the beginning of the car chase through R.A.’s statement.  The court explained that R.A.’s prior recorded statement was admitted as substantive evidence as a prior inconsistent statement under Minn. R. Evid. 801(d)(1)(A).  The court concluded that the statement was not hearsay because it was inconsistent with R.A.’s testimony, it was not cumulative, and it was helpful to the trier of fact.

In the closing argument, the State argued that R.A.’s statement to the officer was more reliable than his trial testimony and asked the jury to convict Rarity for possessing the firearm.    He was convicted and appealed the decision to allow the hearsay.

Both sides agreed that it was hearsay.  Rarity argued that it was not given under oath, therefore it not qualify as an exception to hearsay under Minn. R. Evid. 801(d)(1)(A).  He said without it, they did not have sufficient evidence and the State relied heavily on the evidence by emphasizing it during the closing.

The state argues the statement is an excited utterance and was therefore admissible under an exception to the hearsay rule. See Minn. R. Evid. 803(2). The state classifies R.A.’s prior recorded statement as an excited utterance because there was a startling event, the statement related to the startling event, and R.A. was “under a sufficient aura of excitement caused by the event” to guarantee the statement’s trustworthiness. State v. Daniels, 380 N.W.2d 777, 782 (Minn. 1986).

Going back to the example of Dave telling you Todd called you a “power tool.”   If Todd had called you a “power tool” under oath and then denied than Todd’s statement could come into evidence as a prior inconsistent statement and could come into evidence.  That is what the Judge said.   The State said the Judge was wrong (never a good sign for your appeal) but the “power tool” statement made by Todd is admissible by Dave because Todd was super excited when he said it.  It was an excited utterance because people don’t usually lie when they are excited the statements are considered more reliable than nonexcited people.  Since the State did not argue

Since the State did not argue this in the trial, there was no record of how excited R.A. really was – R.A.’s so excited, he cannot hide it, he’s about to lose his mind and I think he likes it.  Therefore, not admissible.  And Rarity’s conviction gets reversed.  Rarity wins and now people know in Bolivia.

Ms. Hensel, she’s so hot right now.

It has been a year since the first blog was released on this website.  About 50 blogs and 50 likes later here we are still offering juvenile subjective reviews about the fascinating world of case law.  Thank you to the six readers.  You are small but loyal just like a miniature Golden Doodle.    So the MNSC must have known it was this blog’s one-year anniversary and released the case law equivalent of taking it out to dinner at Spoon and Stable.    On September 13, 2017, the MNSC released, State v. Hensel, (A15-0005).   This case is about being disruptive about public meetings.  Something, if you are being honest, we have all thought about doing at some point.  And if you don’t read all 1400 words I would feel like, “This guy’s really hurting me.” And it hurt.

Ms. Hansel’s version of being disruptive was a little different than I perhaps would have done.   Ms. Hansel, who Richard Gere is a real hero of hers, went to a Little Falls city council meeting and sat in the front row of the gallery.  She displayed signs that depicted dead and deformed children. These signs, which were approximately 4-feet long and 4-feet high, along with a sign on her head, obstructed the view of those seated behind her.  She eventually caused the city council to cancel the meeting.   Four days later they held the rescheduled meeting.  This time, for whatever reason, there was no seating in the gallery.   Ms. Hansel took a folding chair and placed it in a space that people were not supposed to sit.  She told the city council to listen to their friend Billy Zane, he’s a cool dude.   She was told not to sit there and then demanded to see a policy that she couldn’t sit here.  I love when people demand to see policies.  Of course, there is not a policy drawn with stick figures with giant signs about where they can and can’t sit.  She was warned that if she wanted to stay she be removed and cited for disorderly conduct.    You can imagine what happened next.     She said you can dere-lick my posters my cap-E-tan.

Before trial, Hensel moved to dismiss the disorderly conduct charge, arguing, among other grounds, that the statute violated the First Amendment because it was unconstitutionally overbroad, unconstitutionally vague, and unconstitutional as applied to her case.   She moved to dismiss the charge and that was denied.  She went to trial and asked she asked for jury instructions saying if the jury found her conduct expressive, then they would need to find she used “fighting words.”  The other instruction she asked for would have been to require to the jury to find that her disturbing conduct was completely separate from any protected expression.  Both of those requests were denied.  She lots the trial.  She appealed.   The COA upheld the conviction but used different grounds.  The disturbance-of-an-assembly-or-meeting statute was a time, place, or manner restriction that was not subject to standard overbreadth analysis.

Hensel moved to dismiss the disorderly conduct charge, arguing, among other grounds, that the statute violated the First Amendment because it was unconstitutionally overbroad, unconstitutionally vague, and unconstitutional as applied to her case.   She moved to dismiss the charge and that was denied.  She went to trial and asked she asked for jury instructions saying if the jury found her conduct expressive, then they would need to find she used “fighting words.”  The other instruction she asked for would have been to require to the jury to find that her disturbing conduct was completely separate from any protected expression.  Both of those requests were denied.  She lost the trial.  She appealed.   The COA upheld the conviction but used different grounds.  The disturbance-of-an-assembly-or-meeting statute was a time, place, or manner restriction that was not subject to standard overbreadth analysis. State v. Hensel, 874 N.W.2d 245, 253 (Minn. App. 2016).  However, they found that applying the relaxed test for time, place, or manner restrictions, the court concluded that the statute was constitutional and did not require a narrowing construction. Id. at 254-55.  So on to the Supremes.

Ms. Hansel reacted to the loss by saying, I was totally fine. I’ve never even been to Mount Vesuvius.  She challenged the overbreadth of the disturbing the meeting statute. The rationale for allowing an overbreadth challenge, even when a statute is constitutional as applied in a particular circumstance, is that enforcement of an overbroad law chills protected speech, which “inhibit[s] the free exchange of ideas.” United States v. Williams, 553 U.S. 285, 292 (2008).  The MNSC agreed and said, excuse me, brah, the statute chills a “substantial” amount of protected speech and expression.  So to determine if it is overbroad we should look at the statute.

 Minn. Stat. § 609.72, subd. 1(2), provides as follows:

Whoever does any of the following in a public or private place, including on a school bus, knowing, or having reasonable grounds to know that it will, or will tend to, alarm, anger or disturb others or provoke an assault or breach of the peace, is guilty of disorderly conduct, which is a misdemeanor (2) disturbs an assembly or meeting, not unlawful in its character.

To evaluate Hensel’s overbreadth claim, the first step is to interpret the statute itself to determine whether it includes protected speech or expressive conduct within its coverage. See Williams, 553 U.S. at 293. The court says, in addition to regulating expressive conduct, the disturbance-of-a-meeting-or-assembly statute covers protected speech as well.   For example, if Hansel had said, “You is talking loco and I like it,” that could be regulated.  The second step of the analysis, which is to determine whether the statute is substantially overbroad. A statute is not substantially overbroad merely because “one can conceive of some impermissible applications.” Williams, 553 U.S. at 303.  Rather, “[a] statute is substantially overbroad . . . if, in addition to prohibiting unprotected speech, it also prohibits a substantial amount of constitutionally protected speech.” State v. Washington-Davis, 881 N.W.2d 531, 539 (Minn. 2016).

The statute prohibits any activity, whether expressive or not, that “interferes with” or destroys the “tranquility” of any lawful “gathering of people” who share a common purpose or reason for gathering, so long as the individual knows, or has reason to know, that the activity will, or will tend to, disturb others. Minn. Stat. § 609.72, subd. 1(2). This statute presents us with a “criminal prohibition of alarming breadth.” Stevens, 559 U.S. at 474. It criminalizes a public speech that “criticize[s] various political and racial groups . . . as inimical to the nation’s welfare.” Terminiello v. City of Chicago, 337 U.S. 1, 3 (1949). It prohibits an individual from wearing a jacket containing an offensive inscription to a meeting. See Cohen v. California, 403 U.S. 15, 16 (1971). And certainly, it would forbid someone from burning the American flag on a public street. See Texas v. Johnson, 491 U.S. 397, 399 (1989).    Due to countless ways, it chills speech and therefore, is overboard.

Having concluded that the statute suffers from overbreadth, by basically saying, why you been acting so messed up towards me, suffers from substantial overbreadth, the remaining question is how to remedy the constitutional violation.  There are two possibilities here. First, if the statute is “readily susceptible” to a narrowing construction, we could adopt such a construction if it remedies the statute’s constitutional defects. Virginia v. Am. Booksellers Ass’n, 484 U.S. 383, 397 (1988). If no reasonable narrowing construction remedies the statute’s overbreadth problem, then the remaining option is to invalidate the statute. See State v. Crawley, 819 N.W.2d 94, 105 (Minn. 2012).

The statute is not “readily susceptible” to any of narrowing constructions because they all would require us to rewrite the statute, not simply reinterpret it. See Stevens, 559 U.S. at 464-65, 480-81.    So the only option left is to invalidate it.  The dissent said, what’s the dealio, yo?  We can rewrite this statute as follows:


Subdivision 1. Crime. Whoever does any of the following in a public or private place, including on a school bus, knowing, or having reasonable grounds to know that it will, or will tend to, alarm, anger or disturb others or provoke an assault or breach of the peace, is guilty of disorderly conduct, which is a misdemeanor
(2) disturbs an assembly or meeting, not unlawful in its character, so long as such disturbance is caused by conduct and not speech.

However, they knock that down saying, the shave-a-little-off-here and throw-in-a-few-words-there statute on which the dissent eventually settles may well be a more sensible statute, but at the end of the day, it bears little resemblance to the statute that the Legislature actually passed.  The results are in amigo. What’s left to ponder? Hansel wins.  Shoe throwing guy said, “I frigging worship her, man.”  Ms. Hansel, she’s hot right now.    Hey, Little Falls – who are you tryin’ to get crazy with, ese? Don’t you know she’s loco?

Who Let the Dogs in?

The week of September 6, 2017, the MN COA published a case about dog sniffs in apartment buildings.  Dedicated blog readers  (I forgot even we even did this) will know that in the week before Christmas and New Year’s Eve last year we wrote about this exact issue last year.

Getting Sniffed While Poor

In the horribly entitled blog “Getting Sniffed While Poor,” we followed unpublished dissent from the Chief Justice of COA Justice Cleary.  When the Chief Justice dissents on an unpublished case that should be an indication of something to come. The COA traffics in intrigue, but here we are nine months later and the dissent is relevant but unmentioned in the decision.  The decision is a case, State v. Edstrom, (A16-1382).    This case involves an apartment in Hopkins.   The lady who was sleeping on the road from a few backs was also in Hopkins is like the Dells with no water slides.  The apartment complex was secure access but management maintained a lockbox called a Knoxbox.  A quick google search reveals that is their real name.  The Knoxbox allows the police to come into the building.  A couple of Hopkins’s finest got the key and gave to the K9 drug sniffing dog’s handler.   The dog snagged the third floor and gave a positive hit in front of one door.  I wonder if the positive hit is like when my dog rolls around in something nasty in the grass?  The police got a search warrant and executed it.  Inside they found drugs, guns, and Edstrom.   He was arrested and charged with the technical legal term for a “bunch of stuff.”   He challenged the search which led to the search warrant citing the dog sniff occurred on the curtilage of the apartment.  As a result of the illegal search, he wanted to suppress all illegality contained therein.

For a refresher course in curtilage, it is the area immediately surrounding and associated with the home—what our cases call the curtilage—[is] part of the home itself for Fourth Amendment purposes.”  Florida v. Jardines, 569 U.S. 1, 133 S. Ct. 1409 (2013).  Jardines is the SCOTUS case that says,  a home’s front porch undoubtedly fits the definition of curtilage. Id. at  133 S. Ct. at 1415.  So this was argued here and it was argued in the Lundgren case mentioned above the hallway to an apartment is curtilage.   Lundgren lost but the Cleary dissent loomed large.   He talked about the efficacy of dog sniffs citing a study by the Chicago Tribune saying they only were accurate 44 % of the time.   Meaning the dog alerted to something and they found drugs at that percentage.   Then he cited numbers about who lives in apartments.   The answer was nonaffluent people of color.  As for income, 34.9 percent of those in the Twin Cities metropolitan area earning less than $30,000 a year live in single-unit, detached houses, while 84.2 percent of those earning $80,000 or more a year live in such houses. (Cleary, E., dissenting).  Data in the Twin Cities metropolitan area, 67.6 percent of households composed solely of whites live in one-unit, detached houses, while 29.9 percent of black households and 42.2 percent of Hispanic households live in such houses.U.S. Census Bureau, American Housing Survey, Table Creator, http://sasweb.ssd. (last visited Dec. 15, 2016).

Therefore he drew a distinction between someone who can afford a house and a dog sniff on their porch would be unconstitutional under Jardines, and someone who lives in an apartment and a dog sniff in their hallway is constitutional.       So that takes us to Edstrom.  Edstrom argued to overrule State v. Luhm, where the court ruled a resident’s door in a secured, multi-unit condominium is not curtilage and therefore not subject to constitutional protections like a porch. Luhm, 880 N.W.2d 615 (Minn. Ct. App. 2016).   The court said they were not going to do that, but they did consider Edstrom’s privacy rights.

The court used a concurrence from SCOTUS Justice Kagan, from Jardines.  In that concurrence she reasoned that the warrantless use of a narcotics-detection dog also violates privacy rights because the police officers’ use of the dog is similar to the use of “a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion.” Jardines at 1418-20 (Kagan, J., concurring).  A person’s home clearly falls within the “zone of privacy” protected by the Fourth Amendment. Payton v. New York, 445 U.S. 573, 589-90, 100 S. Ct. 1371, 1381-82 (1980). Indeed, the home is where “privacy expectations are most heightened.” California v. Ciraolo, 476 U.S. 207, 213, 106 S. Ct. 1809, 1812 (1986). A home may be a single-family house or, as here, a person’s apartment. Cf. Kentucky v. King, 563 U.S. 452, 460, 131 S. Ct. 1849, 1856 (2011) (treating an apartment as a home for purposes of the Fourth Amendment analysis).

The Fourth Amendment protects persons from the warrantless use of sense-enhancing technology that is not in general public use to obtain “any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area.” Kyllo, 533 U.S. at 34, 121 S. Ct. at 2043 (quotation omitted).  And since drug sniffing dogs can obtain a cavalcade of information during butt sniffing, the general public can’t get because the general public doesn’t usually sniff butts and the ones that do aren’t able to glean anywhere as close to as much as a dog can.   Therefore, the Court held:

The police officers’ use of a narcotics-detection dog in the common area of a secured apartment building is a search under the Fourth Amendment and article I, section 10, of the Minnesota Constitution, which requires either a warrant or circumstances that justify an exception to the warrant requirement.  So Edstrom wins.   He should thank Judge Cleary and /or the specialized butt sniffing noses possessed by dogs.


Bursting at the Seams, Trial Attire

August 28, 2017, the MN COA decided to publish a case made from the perspective from someone else’s shoes.   The case is State vs. Hazley, (A16-1988).   In this case, Mr. Hazley wanted to court to buckle down and make a decision about his case.   He had a court trial and was wearing jail clothes during the trial.

He was charged with third-degree burglary after he was discovered in a restricted area of a Macy’s store placing unpaid merch in a garbage bag. The day before his trial was scheduled to begin, the district court told appellant that he would “have to be out of [his] jail clothes” during the scheduled jury trial.  The next day, appellant waived his right to a jury trial. Third-degree burglary is a Felony so that means he would have a jury of 12 people.   But since he waived a jury, he would only have a trial to a judge called a court trial.   As you can imagine, court trials avoid almost all of the machinations that are done for the benefit of the jury.   You can try a case to a judge that would take two days if it was in front of a jury in a couple of hours.

When a jury is involved, optics are everything.   Trials can be are boring and jurors constantly size the defendant up during the process.  If the defendant is dressed in jail garb they look guilty.   Therefore having a client that is in jail not looking like they are in jail is the goal.  An accused should not be compelled to attend trial wearing prison or jail clothing because of the possible impairment of the presumption of innocence. Estelle v. Williams, 425 U.S. 501, 503, 96 S. Ct. 1691, 1692, (1976); see also U.S. Const. amend. XIV, § 1, “compelling” a defendant to wear jail clothes at trial is a due-process violation. State v. Lehman, 749 N.W.2d 76, 84-85 (Minn. App. 2008).  Having someone appear in jail clothes in front of a jury would be below the belt.

So keep in mind, Mr. Hazley had a court trial not in front a jury.   Judges see defendants in orange all the time so the prejudicial impact is greatly reduced.   Jurors would be bursting at the seams to convict someone who looks guilty in jail clothes.  In Estelle, the United States Supreme Court recognized that a state violates a defendant’s right to a fair trial under the Fourteenth Amendment if it compels the defendant to wear jail clothes at trial. 425 U.S. at 512, 96 S. Ct. at 1697. The Supreme Court explained that a defendant must object to being tried in jail clothes, or otherwise raise the issue to the trial court, in order to establish a constitutional violation. Id. at 512-13, 96 S. Ct. at 1697.   The Supreme Court noted that a defendant may, for strategic or tactical purposes, choose to wear jail clothes instead of street clothes, and a district court would not be required to inquire about that choice or seek a waiver from the defendant concerning the choice to forego street clothing. Id. at 512, 96 S. Ct. at 1697. The wearing of jail attire is not a constitutional issue; it is only when a defendant is compelled to wear jail clothes that his due-process rights have been violated. Id.

So what they are saying here if you don’t want to jail clothes, object to it.  Because if you don’t act like you have a bee in your bonnet, then the court will assume you are doing it strategically.   The only sitchuation I can think of if you have a card up your sleeve if the case is really minor or stupid; or stupid and minor and you want the jury to see how bad your client is being treated by being in custody.   Then having them wear the jail clothes rather than the shirt off of your back might make strategic sense.   In State v. Lehman, Lehman attacked his attorney during trial.  Wing tipped lives matter.  State v. Lehman, 749 N.W.2d 76, 84-85 (Minn. App. 2008).   Lehman had to wear jail clothes for the rest of the trial to avoid in any outbursts at the drop of a hat.  Because the jury in Lehman already knew that the defendant was in custody—they had witnessed the defendant being taken into custody following the attack—making Lehman wear jail clothes was harmless beyond a reasonable doubt. Id. at 85.  Hat’s off the attorney for finishing the trial.

Minnesota Rules of Criminal Procedure require that “[d]uring trial, an incarcerated defendant or witness must not appear in court in the distinctive attire of a prisoner.” Minn. R. Crim. P. 26.03, subd. 2(b).  However, Hazely didn’t object.  Also, it was the same judge who told him he needed to wear street clothes for his jury trial so the judge already knew he was in custody.   In going through the record with fine tooth comb, nothing in the decision showed the jail clothes were burning a hole in the judge’s pocket and influenced the decision.

Bottom line, no per se rule that appearing trial in jail clothes is unconstitutional by leaving the defendant caught with their pants down.  Unless the trial is for indecent exposure.

I will end with a story.  I tried a case for a client once who was in jail.  I gave him some clothes.  We won the trial and I was made aware of post trial victory pictures posted on Facebook while he was wearing the same trial clothes.   Needless to say, he got to keep the clothes.  Win a trial and get a shirt.  Full-service operation here.


What to do When Your Friend Breaks the Law

The week of August 21, 2017, brought forth a couple of published Minnesota criminal law decisions.   State v. Larsen, answered the question that has been bandied about in legal circles for decades, is a home a fixture if you crash into it while driving drunk?  Spoiler Alert, it is not and one of the dragons is now a wight.   But today we are going to get into the weeds with accomplice liability.  Literally hiding someone who committed a crime in the weeds would make you an accomplice.  This case is from Mille Lacs County and is State v. Smith, (A16-1607).

It involved a young woman who was named Daley.   Side note, because this is the part of the blog where I always lose my focus, she was a client of mine one time and I asked a bailiff if they have seen Daley Smith before calling the case.  They said no, but they saw her cousin Weekly, which I put on the record like a moron.  So hopefully that was a worthwhile digression.  Daley had a boyfriend named Chadric.  Who sounds like a dainty Brit but he wasn’t.  Chadric robbed three people and took their cell phones.   One of those people had the initials J.F.  The day before the robbery, J.F. agreed to borrow Daley but changed her mind.   Daley went to the home where JF lived and asked to see JF but JF hid in a bedroom to avoid her.   Daley later came back with Chadric.  He pulled a bandana over his face which is sort of stupid because they likely would have seen his face prior to that.  He attacked the other two people in the house. He also had a gun  One of the people with the initials AM said Daley blocked her way when she was trying to flee.   Daley then went into the back bedroom where JF was hiding.  JF called 911.  Chadric came in and took JF’s money, her phone which was in the middle of a call to 911 and some prescription pills.  Chadric and Daley left together.   The State charged Daley with aiding and abetting first degree aggravated robbery.  The jury was instructed that a defendant’s presence constitutes aiding if “the defendant knew her alleged accomplices were going to or were committing a crime” and “intended that her presence and actions aid the commission of the crime.” This accomplice-liability instruction mirrored the CRIMJIG 4.01 instruction. 10 Minnesota Practice, CRIMJIG 4.01 (Supp. 2016).

The question became did the court error in the instruction with accomplice liability?

“A person is criminally liable for a crime committed by another if the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.” Minn. Stat. § 609.05, subd. 1.  So think of Ocean’s 11 or to be more topical, a bunch of idiots who plan to kidnap a wight and take it to a queen who could care less.   Milton is the seminal case on the issue. That case held accomplice-liability instruction must adequately explain the “intentionally aiding” element of section 609.05, subdivision 1. Milton, 821 N.W.2d at 808. “Intentionally aiding” has been interpreted to include two mens rea elements: (1) “the defendant knew his alleged accomplice was going to commit a crime,” and (2) “the defendant intended his presence or actions to further the commission of that crime.” Huber, 877 N.W.2d at 524 (quotation omitted); Milton, 821 N.W.2d at 808.

Daley made a precog argument.   For another stupid reference explained, precogs were the bizarre creatures in Tom Cruise’s “Minority Report.”  They predicted crime while in a hot tub.  Daley argues that the case law indicates she needed to know her accomplice was going to commit a crime.   As opposed to during and after.   The COA was in a hypothetical mood and presented some scenarios.  We are going to use their hypo’s by changing them up a little.

For example, if a person plans to rob a Chick-fil-A and asks a friend for a ride to the Chick-fil-A, if the friend provides the ride and gets Spicey Deluxe, she has aided a crime. But if the friend did not know of the intent to commit a crime, she could not form the necessary intent to aid the crime.  If, on the other hand, the would-be unscrupulous person informs the friend that he plans to urinate in Sleep Number Store and asks for a ride to the Sleep Number in order to do so, the friend is guilty as an accomplice if she provides the ride. In this second scenario, the friend both possessed knowledge of the crime, and intended to aid by providing a ride. However, there is a third scenario: the friend becomes aware of the urinator’s criminal plans upon arriving at the Sleep Number and continues to assist by distracting the salesperson by pretending to be interested in Sleep Number waterbed after learning that the urinating is taking place. Here, the friend possesses knowledge of the crime at a point in time at or before rendering aid. If the friend, with knowledge of the urination, provides the get-away ride or otherwise aids in the commission of the crime, the elements of Minn. Stat. § 609.05 are satisfied.

Bottom line is you can be accomplice at a Sleep Number Store before, during or after the crime.  The COA says this jury instruction included this language and satisfactorily protects innocent people.   So, the lesson here is simple.  If you see your friend order a water at Chick-fil-A and see them fill it with a pop instead you need to flee or turn do what the person did in my Sleep Number hypothetical and leak the information.

How traveling with knives ruins everything.

The week of August 14, 2017, did not leave us with case law that will change the world.    The MNSC put out a case that said a downward departure is okay for playing a minor role in a crim sex case.  They also wrote about Batson challenges, which we have covered here before.  So we are going to talk about weed smoke.  Oh, weed smoke.   The very smell that gives law enforcement officers carte blanche to search your Honda Civic with a spoiler.   This case is called, State v. Hughes, A16-1481.   And while it is unpublished, it seems to clarify an issue that had been wafting, like the smell of..well…marijuana.   So here are the facts of Hughes.  

Before I do that, I am going to get down non-sequitur lane.  Hughes makes me think of Howard Hughes.  Who makes me think of Howard the Duck.  Who makes me think of my trial this week when the prosecutor talked about Howard the Duck.  Which nothing resonates more with juries than 1980’s box office bombs. But back to Mr. Hughes.   Hughes got pulled over for failing to signal his turn.  The officer spoke to M.B. and when he did smelt a strong odor of marijuana coming from inside the vehicle.  He could not tell where it was coming from because it was poltergeist marijuana.  The officer did call for backup.   Hughes was a passenger said he owned the vehicle and he did not have an insurance card in the vehicle.   The officer asked M.B. about the marijuana smell and he said M.B. became very nervous or totally paranoid.  M.B. eventually handed the officer a baggie of marijuana.  Then he admitted he had knives on him.  Multiple knives?  What is he, a ninja turtle?  The officer found some meth and a marijuana pipe during the search along with the knives.  I can’t get past the multiple knives.  M.B. was told to knifeless-ly sit on the curb.   The officer then turned his attention to Hughes.   The officer conducted a pat search on Hughes.  The officer found a hard case which eventually revealed contained meth, a meth pipe, and some marijuana.   Hughes tried to suppress the evidence.  The DC denied the request.  He entered into a Lothenbach stipulated fact trial, which leads us to this appeal.

Writing the opinion, Chief Justice Cleary, denied Hughes’s argument but provided valuable nonprecedential guidance on searching occupants in a car when cops smell weed.  Justice Cleary was a tad bit more articulate.    The Chief Justice said the DC erred because said, the smell of marijuana emanating from a vehicle, on its own, does not provide probable cause to arrest the vehicle’s occupants and conduct a full search incident to arrest.  In forming the opposite conclusion, the DC relied on State v. Schultz, 271 N.W.2d 836, 837 (Minn. 1978), State v. Piece, 347 N.W.2d 829, 833 (Minn. App. 1984), and State v. Ortega (Ortega I), 749 N.W.2d 851, 854 (Minn. App. 2008).

However, Schultz the MNSC  held the smell of weed allows police probable cause to search the vehicle under the “motor vehicle exception, but not arrest and search the occupants.  271 N.W.2d at 837.   Piece said the same thing.  Ottega I was no longer good case law.

The court affirmed this court’s decision in Ortega I in State v. Ortega (Ortega II), 770 N.W.2d 145, 151-52 (Minn. 2009), it did so on very different grounds. In a footnote, the supreme court disapproved of this court’s reasoning in Ortega I. 770 N.W.2d at 149 n.2.  The supreme court clarified that

(1) an odor of marijuana providing probable cause that a person possesses a noncriminal amount of marijuana does not, in and of itself, create probable cause to trigger a search incident to arrest, and

(2) while “probable cause to arrest” satisfies that search- incident-to-arrest exception, “probable cause to search” does not necessarily trigger an exception to the warrant requirement or lead to the conclusion that a search of a person was otherwise reasonable. Id. (noting that 1976 Minn. Laws ch. 42, § 1, at 101-02 (codified at Minn. Stat. § 152.15, subd. 2(5) (1976)) reduced possession of a small amount of marijuana from a criminal offense to a petty misdemeanor).

Therefore, because a small amount of marijuana is now a petty misdemeanor unless you have more than 42.5 grams, officers can search the car because of the smell, but without more, they do not have probable cause to search a person.  They also cannot call it a search incident to arrest because you cannot arrest someone for a petty misdemeanor.   A petty misdemeanor is by definition a noncriminal because you cannot go jail for one only pay a fine.

However, Hughes loses because the officer had other safety concerns to conduct a Terry search.  It was 2:00 A.M., Hughes was really nervous and the driver of the car had multiple knives.  Plural.  Like “Edward Scissorhands.”   So topical reference there too just like Howard.  But the lesson here is clear.  For whatever reason, people use cars as mobile pharmacies.  So if you are incapable of leaving your drugs at home, tell the officer that smell of weed, if not enough for them to search you to find your meth pipe.