Here's a link to an interesting article by Adam Liptak, of the New York Times, analyzing the erosion of the federal exclusionary rule. http://www.nytimes.com/2009/01/31/washington/31scotus.html?hp
As I often mention and am always thankful for, Idaho has no good-faith exception to the exclusionary rule. Our state constitutional exclusionary rule, which pre-dates Mapp v. Ohio (which applied the Fourth Amendment rule to the states), is not co-extensive with the federal rule. State v. Arrequi (1927); State v. Guzman (1992).
At the same time, best wishes for the long life and good health of Justice Kennedy.
Saturday, January 31, 2009
Friday, January 30, 2009
Peaceable Resistance to Unlawful Pat-Down is Not Resisting or Obstructing
The Hagerman Police Chief receives a telephone call from the City Supervisor. The Supervisor says that two carnival workers told him that they had been offered methamphetamine by a man later identified as Shane Bishop. The Chief locates Bishop and says he needs to speak to him about methamphetamine. The Chief notices that Bishop appears nervous, is clutching a bag close to him, and that his eyes were dilated, bloodshot and had a "wild look" in them. Concluding that Bishop is high, the Chief tells Bishop that he's going to search Bishop for weapons. Bishop says "no," but turns around and places his hands on the patrol car so the Chief can search. Once the search has started, Bishop says "no" again and is arrested for Resisting and Obstructing. During the search incident to arrest, a bag of meth is found.
The Supreme Court holds that the bag must be suppressed because: 1) there was no basis for the frisk and therefore Bishop had the right to peaceably resist it; and 2) as there was no probable cause to arrest for R&O the search incident to arrest was unlawful.
Another win by the good folks at SAPD. Congratulations in particular to Shannon Romero.
Read the opinion at: http://www.isc.idaho.gov/opinions/bishop35241.pdf
The Supreme Court holds that the bag must be suppressed because: 1) there was no basis for the frisk and therefore Bishop had the right to peaceably resist it; and 2) as there was no probable cause to arrest for R&O the search incident to arrest was unlawful.
Another win by the good folks at SAPD. Congratulations in particular to Shannon Romero.
Read the opinion at: http://www.isc.idaho.gov/opinions/bishop35241.pdf
Thursday, January 29, 2009
Scope of Admissible 404(b) Evidence No Greater In Sex Crime Cases
In State v. Grist, docket number 33652, the Idaho Supreme Court built on the foundation it created in State v. Field, 144 Idaho 559 (2007), and "clarified" prior case law by holding that "the scope of evidence that may properly be admitted pursuant to I.R.E. 404(b) is no greater in sex crime cases than it is for any other type of case." So, despite protestations to the contrary, there is no sex crime exception to 404(b). Rather, as in other types of cases, the admissibility of 404(b) evidence requires many findings by the trial court.
First, "the trial court must determine whether there is sufficient evidence to establish the other crime or wrong as fact." In vacating the conviction in Grist, the Court noted that the district court had failed to make this finding.
Second, the evidence must be relevant to a material and disputed issue concerning the crime charged. At a minimum, the jury must be reasonably able to conclude "that the act occurred and that the defendant was the actor."
Third, it must be admissible for a proper purpose, including corroboration of the testimony of a witness or to establish a common scheme or plan. However, the evidence must actually serve one of those two purposes, "without reliance on the impermissble theory of the defendant's propensity to engage in such misconduct." (emphasis added). In other words, 404(b) evidence may not be admitted "when its probative value is entirely dependent upon its tendency to demonstrate the defendant's propensity to engage in such behavior." In a further clarification, the Court noted that in order to meet this test, the evidence must be "relevant to prove ... a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, knowledge, identity, or absence of mistake or accident." In other words, the State must actually show a relationship between the 404(b) evidence and the crime charged. The necessary extent of that relationship was previously addressed in Field, where the Court focused on the importance of common ages of the 404(b) witness and complaining witness, actual prior incidents of abuse, and the similarity of the events. In vacating the conviction in Grist, the Court noted that the district court had not articulated what the probative value of the evidence actually was.
Finally, even if the evidence is probative for either corroboration of testimony or to show a common scheme or plan, the district court must still determine that it's probative value outweighs any unfair prejudice to the defendant. In order to properly address this issue, defense counsel should consider for which of the purposes the trial court has found the evidence is probative. If the trial court finds the evidence probative for corroboration of the complaining witness's testimony, it should be noted that in Field, the Supreme Court recognized that a seventeen-year-old "did not need as much corroboration to establish credibility as do younger children...." Thus, the probative value of corroboration evidence will be limited when the complainnig witness is older.
All in all, this opinion gives strong guidance to trial courts on how to properly analyze and scrutinize 404(b) evidence in sex crimes cases.
Here's the link: http://www.isc.idaho.gov/opinions/grist33652.pdf
First, "the trial court must determine whether there is sufficient evidence to establish the other crime or wrong as fact." In vacating the conviction in Grist, the Court noted that the district court had failed to make this finding.
Second, the evidence must be relevant to a material and disputed issue concerning the crime charged. At a minimum, the jury must be reasonably able to conclude "that the act occurred and that the defendant was the actor."
Third, it must be admissible for a proper purpose, including corroboration of the testimony of a witness or to establish a common scheme or plan. However, the evidence must actually serve one of those two purposes, "without reliance on the impermissble theory of the defendant's propensity to engage in such misconduct." (emphasis added). In other words, 404(b) evidence may not be admitted "when its probative value is entirely dependent upon its tendency to demonstrate the defendant's propensity to engage in such behavior." In a further clarification, the Court noted that in order to meet this test, the evidence must be "relevant to prove ... a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, knowledge, identity, or absence of mistake or accident." In other words, the State must actually show a relationship between the 404(b) evidence and the crime charged. The necessary extent of that relationship was previously addressed in Field, where the Court focused on the importance of common ages of the 404(b) witness and complaining witness, actual prior incidents of abuse, and the similarity of the events. In vacating the conviction in Grist, the Court noted that the district court had not articulated what the probative value of the evidence actually was.
Finally, even if the evidence is probative for either corroboration of testimony or to show a common scheme or plan, the district court must still determine that it's probative value outweighs any unfair prejudice to the defendant. In order to properly address this issue, defense counsel should consider for which of the purposes the trial court has found the evidence is probative. If the trial court finds the evidence probative for corroboration of the complaining witness's testimony, it should be noted that in Field, the Supreme Court recognized that a seventeen-year-old "did not need as much corroboration to establish credibility as do younger children...." Thus, the probative value of corroboration evidence will be limited when the complainnig witness is older.
All in all, this opinion gives strong guidance to trial courts on how to properly analyze and scrutinize 404(b) evidence in sex crimes cases.
Here's the link: http://www.isc.idaho.gov/opinions/grist33652.pdf
February Arguments Preview
The Idaho Supreme Court will hear argument in four criminal law cases in February.
February 9: In State v. Doe, No 35699, Tom Sullivan from Wiebe and Fouser will argue that his client, a 12-year-old boy charged with attempted first-degree murder, should not have been waived into adult court.
February 13: State v. Kofoed, No. 34589, involves the application of the knock and announce requirement during the execution of a search warrant. The United States Supreme Court has held that a violation of the Fourth Amendment knock and announce standard does not require suppression of evidence. Hudson v. Michigan, 547 U.S. 586 (2006). However, the Idaho Court of Appeals has held that evidence acquired following a violation of I.C. § 19-4409, and presumably the knock and announce requirement implicit in the Idaho Constitution, does require suppression. State v. Ramos, 142 Idaho 628, 634, 130 P.3d 1166, 1172 (Ct. App. 2005). This case looks like it will give the Idaho Supreme Court to decide the question of whether the state exclusionary rule applies.
February 20: The Court will hear two criminal law cases. The first, State v. Sanchez, No. 35547, is a probation revocation case. The Court of Appeals reversed the order revoking probation because the state did not show that probationer's failure to maintain weekly contact with his probation officer was willful, and because failure to maintain weekly contact did not justify revocation as the probation officer knew the probationer was under close supervision in California halfway house. Sara Thomas, Chief Appellate Deputy for SAPD, is Mr. Sanchez’s attorney. The COA opinion is at 2008 WL 1973662.
The second case, State v. Willoughby, No. 35289, is a state’s appeal from an order granting a motion to suppress. The magistrate judge, the district judge on appeal and the Court of Appeals on further appeal have all held that the defendant, who was in a parked car, was "seized" by the officers when they arrived at the parking lot with their overhead lights flashing and remained so while the officers investigated him for driving under the influence but that the police lacked a reasonable suspicion of criminal activity to justify the seizure of the defendant. Fred Loats is the attorney for Mr. Willoughby. The COA opinion in this case is reported at 2008 WL 1973662.
February 9: In State v. Doe, No 35699, Tom Sullivan from Wiebe and Fouser will argue that his client, a 12-year-old boy charged with attempted first-degree murder, should not have been waived into adult court.
February 13: State v. Kofoed, No. 34589, involves the application of the knock and announce requirement during the execution of a search warrant. The United States Supreme Court has held that a violation of the Fourth Amendment knock and announce standard does not require suppression of evidence. Hudson v. Michigan, 547 U.S. 586 (2006). However, the Idaho Court of Appeals has held that evidence acquired following a violation of I.C. § 19-4409, and presumably the knock and announce requirement implicit in the Idaho Constitution, does require suppression. State v. Ramos, 142 Idaho 628, 634, 130 P.3d 1166, 1172 (Ct. App. 2005). This case looks like it will give the Idaho Supreme Court to decide the question of whether the state exclusionary rule applies.
February 20: The Court will hear two criminal law cases. The first, State v. Sanchez, No. 35547, is a probation revocation case. The Court of Appeals reversed the order revoking probation because the state did not show that probationer's failure to maintain weekly contact with his probation officer was willful, and because failure to maintain weekly contact did not justify revocation as the probation officer knew the probationer was under close supervision in California halfway house. Sara Thomas, Chief Appellate Deputy for SAPD, is Mr. Sanchez’s attorney. The COA opinion is at 2008 WL 1973662.
The second case, State v. Willoughby, No. 35289, is a state’s appeal from an order granting a motion to suppress. The magistrate judge, the district judge on appeal and the Court of Appeals on further appeal have all held that the defendant, who was in a parked car, was "seized" by the officers when they arrived at the parking lot with their overhead lights flashing and remained so while the officers investigated him for driving under the influence but that the police lacked a reasonable suspicion of criminal activity to justify the seizure of the defendant. Fred Loats is the attorney for Mr. Willoughby. The COA opinion in this case is reported at 2008 WL 1973662.
Wednesday, January 28, 2009
POETRY CORNER: You Felons on Trial in Courts
YOU felons on trial in courts;
You convicts in prison-cells—you sentenced assassins, chain’d and hand-cuff’d with iron;
Who am I, too, that I am not on trial, or in prison?
Me, ruthless and devilish as any, that my wrists are not chain’d with iron, or my ankles with iron?
You prostitutes flaunting over the trottoirs*, or obscene in your rooms,
Who am I, that I should call you more obscene than myself?
O culpable!
I acknowledge—I exposé!
(O admirers! praise not me! compliment not me! you make me wince,
I see what you do not—I know what you do not.)
Inside these breast-bones I lie smutch’d and choked;
Beneath this face that appears so impassive, hell’s tides continually run;
Lusts and wickedness are acceptable to me;
I walk with delinquents with passionate love;
I feel I am of them—I belong to those convicts and prostitutes myself,
And henceforth I will not deny them—for how can I deny myself?
– Walt Whitman, Leaves of Grass (1900).
* Trottoir: A paved footpath
SCOIDBlog does not necessarily endorse any of Mr. Whitman's poetic sentiments, especially that part about the delinquents and passionate love.
Monday, January 26, 2009
Criminal Law Cert Alert
The U.S. Supreme Court granted certiorari in two criminal cases yesterday.
In McDaniel, Warden, et al., v. Brown (Docket 08-559), the issue is whether, on federal habeas review, the evidence underlying the defendant’s conviction for sexual assault was clearly insufficient under Jackson v. Virginia. Two members of a Ninth Circuit panel held that there was not sufficient evidence. The dissenter held that the Nevada state courts had not unreasonably applied Jackson and thus no habeas relief could be granted.
The issue in Maryland v. Shatzer, Sr., (Docket 08-680) is whether Edwards v. Arizona, which bars police from initiating questioning with criminal suspects who have invoked their right to counsel, applies to an interrogation that takes place nearly three years after the invocation. The Maryland Court of Appeals held that it did because, in part, the defendant was in prison the entire period between the two police contacts.
In McDaniel, Warden, et al., v. Brown (Docket 08-559), the issue is whether, on federal habeas review, the evidence underlying the defendant’s conviction for sexual assault was clearly insufficient under Jackson v. Virginia. Two members of a Ninth Circuit panel held that there was not sufficient evidence. The dissenter held that the Nevada state courts had not unreasonably applied Jackson and thus no habeas relief could be granted.
The issue in Maryland v. Shatzer, Sr., (Docket 08-680) is whether Edwards v. Arizona, which bars police from initiating questioning with criminal suspects who have invoked their right to counsel, applies to an interrogation that takes place nearly three years after the invocation. The Maryland Court of Appeals held that it did because, in part, the defendant was in prison the entire period between the two police contacts.
Terry Pat-Down of Passenger OK Even When There is No Suspicion of Criminal Activity on Passenger's Part
A unanimous U.S. Supreme Court, per Judge Ginsburg, held today that the first prerequisite for a Terry frisk, i.e., a lawful investigative stop, "is met whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation." The police do not need to have suspicion that any occupant in the vehicle is involved in criminal activity. Thus, if the second Terry requirement of "reasonable suspicion that the person subjected to the frisk is armed and dangerous" is present, a pat-down of that person is permitted, even if the person is only an occupant of the vehicle and not suspected of any wrongdoing. Arizona v. Johnson, http://www.supremecourtus.gov/opinions/08pdf/07-1122.pdf
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