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.

Cookie From Empire’s Jail Phone Calls

The week of February 5, 2018, brought us very little in the way of published case law.   Maybe it had to do with Punxatawney Phil seeing his shadow.  Maybe the Minnesota legal word was still buzzing about my oral argument from weeks ago.   However, what we lacked in published material we made up in jail phone calls.  Jail phone calls are the best.   Unless they are with their attorney (and maybe still then, cue the conspiracy) they are recorded.  The majority of the jail phone calls are people asking for money.  Some are a little risque.  Some admit to crimes.  And here today, they reference “Cookie.”   Not Cookie Monster from Sesame Street.  But the fictional character cookie from Empire.  Here are the facts.

In January 2015, two Minneapolis police officers were patrolling a high-crime neighborhood when they observed a slow-moving vehicle approach a woman standing on the street.  When the vehicle turned into an alley, the woman followed. After the officers also turned into the alley, they observed the woman get into the backseat of the vehicle.

The officers observed that none of the occupants was wearing a seatbelt. The officers signaled the vehicle to pull over. The driver stopped but then started driving away. Moments later, the driver pulled over again and stopped. The officers approached the vehicle in a parallel fashion with their guns drawn but pointed toward the ground.   The officer saw marijuana in D.P.’s lap and ordered D.P. out of the vehicle.  Meanwhile, they saw the defendant, in this case, Mr. Scott tosses something between the driver seat and driver door.  The officers order Scott out of the car and conducted a pat-down search.  They recovered $4500 in cash from his coat.  When the officers were attempting to handcuff him he ran away.  They found him hiding underneath a vehicle.  The officers seized more than 9 grams of methamphetamine, 5 grams of powder cocaine, 13 grams of cooked cocaine, latex rubber gloves, a scale, and clear plastic baggies from the vehicle.

The state charged Scott with first-degree cocaine sale in violation of Minn. Stat. § 152.021, subd. 1(1) (2014); second-degree cocaine possession in violation of Minn. Stat. § 152.022, subd. 2(a)(1) (2014); second-degree methamphetamine possession in violation of Minn. Stat. § 152.022, subd. 2(a)(1); and second-degree methamphetamine sale in violation of Minn. Stat. § 152.022, subd. 1(1) (2014).   R.F., an acquaintance of Scott’s who was not present at the scene on the night of his arrest, filed an affidavit through Scott’s counsel admitting liability for the drugs:

At trial, Scott maintained that the drugs belonged to R.F., introduced R.F.’s affidavit as evidence, and called J.A., D.P., and R.F in support. J.A. testified that Scott was carrying a large amount of cash because he was buying a used vehicle from J.A. that day. R.F. testified consistently with her affidavit. But as soon as R.F. finished testifying, the state arrested her for aiding an offender. Both sides rested, and R.F. spent the weekend in jail.

Before closing arguments on Monday, the prosecutor moved to reopen the state’s case in order to rebut R.F.’s testimony. The prosecutor advised the district court and appellant’s counsel that, during two jail calls recorded the same day that R.F. testified, she said on the phone to someone familiar with Scott’s trial,

“[W]e had an agreement,” “I kept my end of the bargain,” and “[H]e said [he] was not going to hang [me] like Cookie” and “[Y]ou watch Empire, right?”

The prosecutor argued that these statements established that R.F. lied about owning the drugs so as to take the fall for Scott. When the prosecutor called R.F. in rebuttal, she invoked her Fifth Amendment privilege against self-incrimination. The prosecutor offered the jail calls as statements against R.F.’s penal interest. Scott’s counsel objected, arguing that R.F.’s unavailability violated Scott’s confrontation rights. After concluding that the jail calls were not testimonial, the district court admitted them into evidence. The prosecutor subsequently distributed copies of the transcripts, played the calls in their entirety and argued during closing that R.F. took the fall for Scott. The jury convicted Scott on all four counts.  Scott Appealed.

One exception is for statements made against a declarant’s penal or pecuniary interest. Minn. R. Evid. 804(b)(3).

The rule states that if a declarant is unavailable, a statement is admissible if, at the time of its making, it “so far tended to subject the declarant to civil or criminal liability . . . that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true.” State v. Morales, 788 N.W.2d 737, 762 (Minn. 2010) (quoting Minn. R. Evid. 804(b)(3)).

Before admitting a statement under Minn. R. Evid. 804(b)(3), a district court must (1) determine that the declarant is unavailable to testify; (2) conclude that the statement, at the time of its making, so far tended to subject the declarant to civil or criminal liability that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true; and (3) scrutinize the statement so as to avoid violating the Confrontation Clause. Id.

Here, the legal analysis was conducted based on a plot of Empire, which I am sure the Justices watched for accuracy.

 R.F. said, “We had an agreement,” discussed holding up her end of a “bargain,” and told the person on the phone that Scott was not going to “hang [her] like Cookie,” referencing the television show  In Empire, “the audience learns that Lucious and Cookie were both involved in drug dealing, and that Cookie pled guilty so that Lucious could pursue his music career and take care of their children.” See Tanksley v. Daniels, No. 16-CV-0081, 2017 WL 1735257, at *9 (E.D. Pa. Apr. 28, 2017) (describing the plot for Empire within copyright-infringement context)

So this is how this case was decided:

1.) Scott gets arrested for drug sales.

2.)  R.F. says the drugs were hers.

3. ) She gets arrested after her testimony for aiding an offender for helping Scott

4.)  She spends the weekend in jail and made a phone call to her friend about not wanting to be like Cookie from Empire and that they had a “bargain.”

5.)  The State got a hold of these phone calls and played them pursuant to the exception that the statement subjects the speaker to criminal or civil liability.

6.)  She was unavailable because she took the 5th.   It exposed her to criminal liability because she discussed an agreement to aid Scott.  So it comes in.   All because of Empire.  

The COA actually says the District Court errored by playing the entire call rather than parsing it up. In Williamson v. United States, the Supreme Court concluded that the word ‘statement,’ as used in the statement-against-interest exception . . . should be narrowly construed as ‘a single declaration or remark’ rather than an entire confession narrative.”   They should have conducted a Williamson test and didn’t.   The error was harmless because Scott threw something, ran away and hid underneath a car.  Plus you can jointly possess controlled substances with someone else.  So even if the court shouldn’t play the whole tapes, it still didn’t matter because they had plenty of evidence to convict Scott.   The Court of Appeals basically said, “that is the way the cookie crumbles.”

Court of Appeals Oral Argument

2018, is not off to a good blogging start.  But let’s be honest, 2016 and 2017 weren’t either.   Just more content.

There was a break from the blog last week due to the fact that instead of writing about the Court of Appeals, I was arguing there.   I have tried almost 100 cases to 100 different juries but I have only given one appellate oral argument in my life  And it gets even lamer, I was in law school.   And my opponent in law school on the day of oral argument came cruising into the parking lot, windows down, blaring “Where the Streets Have No Name.”   At that point, it was really over.  It was like when they played the Chicago Bulls entrance music back with those teams in the 90’s.   I was mentally defeated before it even began.  Flash forward about 13 years later and I am doing it again.  Called up the big leagues.  Well actually, the Supreme Court is the big leagues.  So maybe this is like Triple A.   But, that would be more akin to Minnesota Supreme Court.   This is more like college ball.  Division 3.  Actually, it is a big deal.  A lot of history is in that building and a lot of law has been made there.   But not from me.  And I had to call ahead to make sure I was going to the right history-making building.

Anytime you step out of your comfort zone you get a little nervous and I built this up to something that it wasn’t.  I believed I would have to memorize case names for case law that simultaneously supported and opposed me.   Since my case was so fact-driven they did not grill me on case law, but they grilled me nevertheless.   A couple of things about the Court of Appeals.   The parking lot is tiny.  If you are like me, and a lot of litigants are, and currently wearing a walking boot to a metatarsal stress fracture; the parking situation was not ideal.   Second, you do not need to bring in your crusty old CORE water bottle.  The Court of Appeals provides their own water and has glasses that looked be from the Crate and Barrel.  Third, the seating was sparse.   I pictured a grand room where tons of interesting spectators sat watching the confluence of brilliant legal minds.   A fire marshall would cap the occupancy at 20.   After my parents cancelled because of a “car repair,” the only people watching were law clerks.  The arguments were made to a 3 judge panel.  Fourth, it was way more laid back than I thought.  I didn’t get to put my feet on a desk and make my argument while reclined but it was not nearly as formal as I had imagined.    They would probably be annoyed by numbered arguments. Fifth, I thought I was being recorded and sadly, only oral arguments for the Supreme Court so my performance will live only in my head.  Which is probably fine for everyone.  Sixth, the opposing party, the Appellant got carte blanche for his entire 15 minutes.  The Justices barely interrupted and when they did, they asked questions that seemed to suggest they agreed with my opinion.   You get 15 minutes to make your argument.  Both the appellant and the respondent.  There is a green light, yellow light, red light set up on the podium.   Seventh, I was grilled.  They kept on trying to put me in a corner whereby had I agreed with their premise I would have indirectly conceded my argument.  But I was slippery and refused to put in a corner like that dancing movie with Patrick Swayze.  My sense is from the questions I was asked that I will lose.   But you never lose if you try your best.  Actually, you still lose.

That was about it.  I really enjoyed the experience and a different style of practice.  I am used to talking while no one else is talking, which is easier.  Here, you are making an argument while fending off tough questions.   The Justices will issue an order within 90 days.   I will not discuss the facts of my case here as to not to influence any opinion.  I can only assume my blog is read by all none of the Justices, but, in the event that they do read, they will only be influenced by me in my alloted 15 minutes.  Not in a poorly edited, lightly read blog.   Finally, it is my mom’s birthday.  I blogged on her birthday last year and wonder who did she make so angry that allows her to get acknowledged in a blog about case law.  So happy birthday mom and thanks to the Court of Appeals for having at 25 Rev. Dr. Martin Luther King Drive or where the streets have no name.



Two Week Blogiatus

This blog is back after two weeks off, a blogiatus, if you will.   Somehow the sun continued to rise and humanity continued to press on.    The reason for the break was the holidays and the worst vacation ever.    A vacation that I had to flu, broke my foot and it was so cold in Florida that Iguanas were falling from the trees.   I feel like Lloyd Chrismas saying “our pets heads are falling off!” with the Iguana thing.     Now, I may have broken my foot prior to leaving the State, but the TSA didn’t catch the broken foot (which would have been cheaper than an MRI) and Iguanas are sort of stupid, but those things happened.  And now we have to blog.   Blogging is chicken noodle soup for the fingers.   That sounds weird.

The case this week is about lanes.  “Stay in your own lane.”  Literally. Here is what happened:

On September 22, 2016, at approximately 11:50 p.m., Officer Jacques was on routine patrol traveling north on County Road 24 when he observed a vehicle approximately one mile in front of him traveling in the same direction. Officer Jacques was patrolling that location because there had been parties there in the past.  When they say parties, not like the Whigs, but parties involving underage drinking.  The worst kind.  Officer Jacques caught up to the vehicle, and when he was approximately three car lengths behind the vehicle, he observed it move right and on to the fog line, but not over the fog line. Officer Jacques then observed the vehicle move left and onto the center line, but not over the center line. Officer Jacques initiated a traffic stop and identified Kruse as the driver of the vehicle. Kruse performed poorly on field sobriety tests, and Officer Jacques arrested him for DWI.

Kruse moved to suppress the evidence supporting the charges, arguing that he was unlawfully seized without reasonable, articulable suspicion of criminal activity. Kruse also petitioned for rescission of the license revocation on the same ground.  Kruse lost at the district level and appealed.   How much lane touchin’ became the question?

Here is the law:

A traffic stop “‘must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.’” State v. George , 557 N.W.2d 575, 578 (Minn. 1997) (quoting United States v. Cortez , 449 U.S. 411, 417, 101 S. Ct. 690, 695 (1981)). It cannot be based on a “hunch” or be “the product of mere whim, caprice or idle curiosity.” Id. ; State v. Pike, 551 N.W.2d 919, 921 – 22 (Minn. 1996) (citing Terry, 392 U.S. at 21, 88 S. Ct. at 1880). However, “ if an officer observes a violation of a traffic law, no matter how insignificant the traffic law, that observation forms the requisite particularized and objective basis for conducting a traffic stop.” State v. Anderson, 683 N.W.2d 818, 823 (Minn. 2004). “[T]he factual basis required to support a stop for a ‘routine traffic check’ is minimal. ” State v. Engholm, 290 N.W.2d 780, 783 (Minn. 1980) (quotation omitted).  So they don’t need much.   The classic stop is when the officer pulls someone over because their license plate light is not inoperable.

Minn. Stat. § 169.18, subd. 7. That statute provides,

When any roadway has been divided into two or more clearly marked lanes for traffic…

(a) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.

 Kruse argued:

That a “momentary touch of the fog line of a highway, [without] crossing it, does not constitute a violation of [Minn. Stat. § 169.18, subd. 7(a)],” which, again, provides that “ [a] vehicle shall be driven as nearly as practicable entirely within a single lane and should not be moved from such lane until the driver has first ascertained that such movement can be made with safety.”

So the court determined it all depends on what the meaning of “is” is.   No, they defined “lane:”

The American Heritage College Dictionary defines “lane” as “[a] narrow way or passage between walls, hedges, or fences ” and as “[a] strip delineated on a street or highway for a single line of vehicles.” The American Heritage College Dictionary 779 (4th ed. 2007).  The same dictionary defines “delineate” as “[t]o draw or trace the outline of; sketch out, ” and it defines “between” as “[i]n or through the position or interval separating.” Id. at 136, 375. Combined, these definitions indicate that the markings referred to in Minn. Stat. § 169.18, subd. 7(a), delineate lanes for traffic and that the areas between the markings, but not the markings themselves, constitute the lanes.

Thus driving on markings constitutes movement from a lane and a potential violation of the statute.    So there you go.  Don’t drive on markings.  Don’t drive on paint.  Stay in your own lane.  Don’t break your foot or attempt to drive with an air boot on.  You will drive on paint.  You will get pulled over.  You will get pulled out of the car because your flu symptoms will be mistaken for intoxication.   You will be tested for field sobriety.  Which you will fail because you can’t walk a straight line because of the aforementioned boot and because you will be distracted by iguanas falling out of a tree. All of these things could happen if you are drive on paint.

The Cheese Lady

The week of December 18, 2017, was the not the most poignant as far as case law is concerned so we are going to talk to about a cheese lady.  A lot of times, this blog tries to educate the public at large my mom on case law, but sometimes cases are just funny.  This is that case.   In State v. Ryerson, the COA considered whether past bad behavior at a pizza place would be admissible for disorderly conduct about bad behavior at the same pizza place trial.     Here are the facts:

Ms. Ryerson was accused of acting inappropriately at a pizza place.  I am going to guess Godfather’s Pizza.   She left in a cab before law enforcement could arrive and the taxi company was not able to provide her name.   The following day, an officer investigating pizza gate got her name and address from an unrelated civil matter.    Mozzarella v. Ryerson.  She got charged with disorderly conduct.  Her defense was she has not been to the pizza place in three years.   During the trial, the owner of the restaurant identified Ryerson as the person in the pizza place that fateful day.   She said Ryerson yelled at one of her employees and she asked Ryerson to leave when she was taking too much Parmesan for her pizza.  She said she has seen Ryerson about eight times and Ryerson has the habit of emptying out all the Parmesan shakers on her one piecce of pizza.

The assistant manager also identified appellant at trial as the person who caused a disturbance at the restaurant. She testified that she has had six interactions with appellant, and that appellant used vulgar language during those interactions, complained about the food and cost, would “dump Parmesan” into her food container, and would arrive at the restaurant in a taxi.  She testified that, on the day of the incident, appellant entered the restaurant and complained about the food options and cost.  She testified that appellant used the “F-word” and “B-word” and said “sh-t a few different times to a few . . . other customers.” She testified that she witnessed appellant have a confrontation with two different customers, one of whom had young children with her. She testified that appellant called the customer a “sh–ty mother” who “was being a b—h.”

A customer also testified during the trial. She identified appellant as the person with whom she interacted. She testified that she intervened when appellant called another customer a “piece of sh-t” and complained about the employees. She testified that appellant then called her “an ugly piece of sh-t.” The customer testified that the incident left her five-year-old son “flabbergasted” and that he talked about the incident for days afterward.

Let’s put aside the objective fact that Ryerson rules, to discuss how the jury was instructed.  The district court instructed the jury that disorderly conduct includes conduct that is offensive, obscene, abusive, boisterous or noisy, or abusive language that qualifies as “fighting words.”  Ryerson got convicted and appealed the decision.

The question became did Ryerson get a fair trial when the jury heard about all her other Parmesan cheese discretions?

Minn. R. Evid. 404(b) prohibits the use of evidence of another crime, wrong, or act “to prove the character of a person in order to show action in conformity therewith.” Such evidence, commonly known as Spreigl evidence in Minnesota, 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) (quotations omitted); see State v. Spreigl, 272 Minn. 488, 490, 139 N.W.2d 167, 169 (1965).

The challenged evidence established that appellant frequented the restaurant and complained, used vulgar language, and took excessive amounts of Parmesan while there.  But the court says these weren’t even bad acts.   As someone who is mindful of the public cheese distribution that is almost offense.  But I can see the otherside of it as well, if you don’t want someone to take all of the Parmesan; put the Parmesan on the pizza yourself.  It seems like this was a self inflicted wound for the pizza place.   So the court says these are not prior acts so the employees can talk about all the excessive cheese shaking that they want.  Even if it was considered a prior bad, it would still would not be Spreigl evidence because prior cheese behavior and complaints were “very unique, very memorable” to the employees.

So Ryerson loses and let this be a lesson to you.   If you are going to use excessive Parmesan, don’t go back to the same crime scene.   Go from pizza place to place and let the pizza managers try to establish a serial Parmesan shaker while working together.  Don’t do make it as easy on them by going back to the scene of the crime.  It is like an arsonist showing up at their own fire and dumping Parmesan on it.

I’m on Meth. I got it from Dave

The week of December 11, 2017, was a little bit of a letdown in the way of Minnesota criminal case law.   Nothing was published, but there was a case about hearsay.   Hearsay is one term that is often incorrectly by the public at large.   Along with “squashing” warrants and something being rendered mood.  “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Minn. R. Evid. 801(c).   There are exceptions to hearsay but we don’t need to get into those now.    Here are the facts of this case:

Samuel Manthey was intoxicated at a social event.  Hopefully, it wasn’t a baby shower because that would be completely unacceptable.  Unless he was having issues with conceiving then it would mitigate the baby shower intoxication a little.  When asked if he was on the sizzurp he said, “I’m on liquid methadone,” and “I got it from Morgan Pavey.”  Mr. Pavey is the defendant in this case.   The next morning Mr. Manthey’s family found him unresponsive and the cause of death was methadone toxicity.  The State charged Mr. Pavey with 3rd-degree murder and used the statements made by Manthey against Pavey.  Pavey got convicted and appealed the conviction.

The district court admitted the statements made by Manthey under Minn. R. Evid. 807.    That is the “catch-all” rule when none of the other hearsay exceptions apply. Minn. R. Evid. 807, which allows admission of hearsay that possesses “equivalent circumstantial guarantees of trustworthiness.”

Rule 807 of the Minnesota Rules of Evidence provides that a hearsay statement not specifically covered by rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, may be admitted into evidence if it meets the criteria identified in the rule. When determining whether the statement has equivalent circumstantial guarantees of trustworthiness, a district court uses a totality of the circumstances test. State v. Griffin, 834 N.W.2d 688, 693 (Minn. 2013)

A district court should generally consider the following factors in evaluating trustworthiness:

whether the statement was given voluntarily, under oath, and subject to cross-examination and penalty of perjury; the declarant’s relationship to the parties; the declarant’s motivation to make the statement; the declarant’s personal knowledge; whether the declarant ever recanted the statement; the existence of corroborating evidence; and the character of the declarant for truthfulness and honesty. Id. 

Here, they say Manthey made a voluntary statement. He made the statements to friends who did not know Pavey and he had no motivation to lie.  What the Court is glossing over is that he was higher than a kite and people that are high are not reliable.    He could have been lying, he could have been mistaken, he could have gotten the drugs from Pavey but he could have stolen them from him.   We have really bare bones of evidence here.   But then Facebook happened.   Public service announcements to defendants: Don’t Communicate with People About Crimes on Facebook.  A friend of Manthey’s named, KT started communicating with Pavey on Facebook and Pavey wrote the following:

“Your [sic] pathetic it wasn’t even mine im on 48 mgs just stop . . . That wouldn’t of even got high he had 150i told him exactly how to take it he was doing what he always did. Pushed his limits that the way sam was . . . That goes for a dollar a mg I didn’t make a profit on it so stfu you sound so ignorant you have no idea what happened so why do you act like you do?”

I am not sure what that means but it makes me want to do an aggressive facepalm.   There is your circumstantial guarantees of trustworthiness.  To determine “that the statement has the necessary ‘guarantees of trustworthiness,’” Minnesota Rule of Evidence 807 also requires that the district court consider whether:

(A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

The Court agreed that these factors were all met and Pavey’s conviction gets upheld.   The lesson is here is clear.  This was a case that would not have been charged if Pavey would have just used MySpace.   While, I don’t condone the language, Spaulding from “Caddyshack” inherently understands this case in the video below.

My Purse, You Can’t Look Inside

The week of December 4, 2017, brought us some ruckus in the MN Supreme Court.   But before I get to that, I want to address last week.   There was not a blog written.  I received a throng (not like Sisqo) of questions why.  Actually, my mom just wanted to know if I was still alive.   I did not compose a blog because I was writing my own brief for the Court of Appeals that was due on Friday.  I will not comment on pending litigation, but I will break it down when the Court of Appeals makes their decision.   However, in the meantime, I can write about the ongoings of the MN Supreme Court.  They released two cases this week.  The first was an ineffective assistance of counsel case.  Which people do love.  A lawyer messes up and people want to spike their faux leather briefcase down in their face.   First-Degree murder case where the lawyer said this:

First-degree murder requires premeditation and the intent to kill. … We’re not really disputing the premeditation part. I would submit to you that intent element is the one that’s in question here.”

You can’t concede any elements with the express consent of the client so this guy gets a new trial.  The second case was about a search of purses.  We have all been there before.  We set our purse down while visiting a friend to check out some Ducktales and the police show up to execute a search warrant on the house.  The police search your purse and they find that you are holding.   You get charged with a crime basically for watching Ducktales.   This lady who just wanted to watch Scrooge McDuck dive into a giant pile of money challenged the search.  Beyond the scope of the search warrant.  She lost at the district and appellate court level and the MN Supreme Court decided to review it.

A search that exceeds the scope of a warrant is unconstitutional. Horton v. California, 496 U.S. 128, 140 (1990). A warrant, however, does not authorize the police to search the body and outer clothing of persons who are not named in the warrant. See Ybarra v. Illinois, 444 U.S. 85, 91 (1979).(holding that a search warrant authorizing the search of a tavern and a bartender did not authorize police to search customers at the tavern when the warrant was executed); see also State v. Wynne, 552 N.W.2d 218, 220 (Minn. 1996) (recognizing that a purse carried by a person is protected from search under a premises warrant because it is an extension of the person).

So you can’t search not named in the search warrant people for watching Ducktales during a search warrant.  You can’t search those same peoples’  purse while they are watching Ducktales, but only if they are holding their purse.  Here the purse was just chilling.  So they applied a totality of the circumstances test.  The totality of the circumstances should be a reality of the bureaucrats because purse lady loses.   Here, they were looking for drugs at a woman’s house.  Who carries purses?  European guys and women.   You can hide drugs in a purse and they were looking drugs.  Second, the purse was left unattended, they thought it belonged to someone named Michael Kors.   They lose.

Here is the lesson.  When you are watching Ducktales and the police bust in, your purse is on the kitchen table and you don’t want them rifling through it to find evidence of a crime like shoplifting at Walmart, grab that damn purse.  Hold on tight and tell them it is beyond the scope of the warrant.  Then get back to the shenanigans of Huey, Duey, and Louie.