Friday, August 24, 2007

No actual or apparent authority for search

Thanks to Tenth Circuit Blog for catching a nice defense win on a government interlocutory appeal.

Margaret Katze, a federal public defender in New Mexico, successfully defended a suppression order holding that officers lacked actual or apparent authority to search in United States v. Kos, No. 06-2187 (10th Cir. Aug. 21, 2007). The Tenth Circuit recited the following facts from the record:

[S]even Albuquerque police officers arrived at Mr. Cos's apartment at approximately 3:00 p.m. to serve the arrest warrant. Feather Ricker, Mr. Cos's nineteen-year-old friend, answered the door.

Ms. Ricker testified at the hearing on the motion to suppress that she had known Mr. Cos for about a month, that they were "[r]eally good friends" who were "[j]ust getting to know each other," and that they would "go out sometimes." She also testified that she never had a key to Mr. Cos's apartment, that she was not living there, that she did not pay the rent, and that her name was not on the lease. Before June 29, 2005, Ms. Ricker had been alone in the apartment once or twice, when Mr. Cos went to the store, and she had spent the night there on two or three occasions. However, she did not keep any of her personal belongings in the apartment. Ms. Ricker added that she lived at another apartment complex and that Mr. Cos did not help her financially.

The Tenth Circuit applied United States v. Rith, 164 F.3d 1323, 1329 (10th Cir. 1999), which is its own precedent applying United States v. Matlock, 415 U.S. 164, 169-72 (1974) (discussing actual authority) and concluded that Ricker did not have actual authority to consent:

as the district court also observed, there are additional facts indicating that Ms. Ricker "was more like an occasional visitor whom [Mr.] Cos allowed to visit, rather than one who asserted a right to access the property jointly with [Mr.] Cos." Id. Ms. Ricker did not leave her personal belongings in the apartment, but instead took them with her when she left, indicating that she could not come and go as she pleased. Further, she had only been alone in the apartment on two occasions before the day of the search, and each occasion was only for a brief period. Ms. Ricker's limited access to the apartment is therefore insufficient to demonstrate actual authority under the first Rith inquiry.

The Court also agreed with the district court that the government had failed to show apparent authority:

Again, we agree with the district court's thorough analysis rejecting the government's contentions. Even if accompanied by young children, a third party's mere presence on the premises to be searched is not sufficient to establish that a man of reasonable caution would believe that she had "mutual use of the property by virtue of joint access, or . . . control for most purposes over it." See Rith, 164 F.3d at 1329. Instead, the government must offer some additional evidence to support a claim of apparent authority.

The Tenth Circuit also rejected any claim of "good-faith" and affirmed the suppression order.

Wednesday, August 22, 2007

Can't depart just for being in US illegally

Janine Cox won in State v. Martinez, No. 96,613 (Kan. App. Aug. 17, 2007), reversing a Barton County upward dispositional departure imposed because Mr. Martinez appeared to the district judge to be an illegal alien. The COA held that judge illegally being in the United States does not necessarily equate to nonamenability to probation:

The district court viewed Martinez' continued presence in the United States during a term of probation to be incompatible with his status as an illegal alien. The court observed: "Mr. Martinez is illegally in the country and is in violation of the probation rules right from the start if I were to place him on probation." This is true if Martinez had previously been deported and thereafter reentered the country illegally. 8 U.S.C. § 1326 would make his mere ongoing presence here a felony. On the other hand, if Martinez entered the country in violation of 8 U.S.C. § 1325 but has not previously been deported, his ongoing presence is not a crime though he is subject to deportation. Since the district court made no finding that 8 U.S.C. § 1326 applies to Martinez, we must set aside the departure sentence and remand for resentencing. If Martinez has not previously been deported, then the mere fact of his illegal alien status does not in itself render him unamenable to probation.

On the other hand, had Martinez previously been deported and reentered the country illegally, the district court's observations would be correct: Each day he served on probation would be a day on which he violated 8 U.S.C. § 1326.
On the flip side, the COA rejected Mr. Martinez' claim that the state district court was powerless to determine any fact about immigration status:

The district court did not engage in an adjudication of Martinez' immigration status. It simply recognized a fact about Martinez which his counsel volunteered during the course of the proceedings. On remand the district court is permitted to consider whether Martinez has been deported in the past in determining his amenability to probation.

Martinez correctly points out that it is not the function of the state courts to enforce our national immigration laws. The district court was not enforcing our national immigration laws by simply recognizing Martinez' immigration status for the purpose of deciding whether he is amenable to probation. The fact that our national leaders, for political, policy, or budgetary reasons, have chosen to ignore violations of our immigration laws does not prevent our courts from considering whether a defendant is engaging in an ongoing violation of law in determining that defendant's amenability to probation. The sentencing court should not be compelled to impose a plan of probation which, by its very nature, cannot be successfully completed.
Here is the Wichita Eagle article reporting on the case. Here is the CNSNews coverage and here is WorldNetDaily coverage of this case, which has also garnered some comment on other internet forums. (Here and here and here and here and here just to name a few). Here is a transcript of an interview on the O'Reilly Factor about the case. Given the current national debate on immigration, I won't be suprised to see this case talked about more in the future. And, on the practical side, I suspect this is a pretty recurrent issue in those parts of our state with lots of aliens.

[Update: the state did not file a PR and the mandate issued September 20, 2007].

Edwards violation

Charles O'Hara won in State v. Morales, No. 96,621 (Kan. App. Aug. 10, 2007) (unpublished), reversing a Lyon County drug conviction based on Edwards violation. Officers arrested Mr. Morales after a controlled buy. After providing Miranda warnings, Mr. Morales invoked his right to counsel.

[The detective] said if Morales wanted to talk with them, he would need to contact his attorney or initiate contact from the jail. Morales was then handcuffed. Both detectives said Morales spoke English and had no difficulty understanding and communicating with them.While walking Morales to the jail which was a distance of 400 to 500 feet away, [the detective] told Morales that the possible penalty he would receive for selling narcotics within 1,000 feet of a school was 54 months in jail. Morales testified at the suppression hearing that he was told it would be 10 to 15 years. Morales never asked about the penalty nor did he initiate any conversation with the detectives on the way to jail. When they entered the jail, the detectives' weapons were secured and while holding onto his arms and walking Morales down a hallway, Morales said he did not want to go to jail. [The detective] said there was not much he could do about it and he could not talk with Morales because he had asked for an attorney. Morales then said he no longer wanted an attorney.

The state argued that the detective's comments were not interrogation, but the COA disagreed:

Was it “interrogation” or was it just “harmless conversation”? The trial judge who heard the one detective say that he told Morales about the penalties to inform him, not to scare him, nevertheless, specifically held in his written findings that the detectives' conversation “was made in part with the hope of gaining incriminating statements from the defendant.”It is clear that Morales never asked what the penalties were for the crimes with which he was expected to be charged.We hold that Morales did not “initiate” the conversations after he asserted his right to counsel. Conversations designed to obtain additional information and incriminating statements from Morales amount to coercive conduct.

A common sense result--if officers affirmatively make the situation so coercive that a suspect "initiates" some more contact, that should not be treated as "initiation" for Edwards purposes.

[Update: the state did not file a PR and the mandate issued on September 13, 2007].

Thursday, August 09, 2007

Arson acquittal

Here is a Topeka Capital-Journal article reporting that Steve Dieter, a Sabetha attorney, won an acquittal in a fairly high-profile Nemaha County arson prosecution stemming from a fire that burned down a school.

Tuesday, August 07, 2007

New district judge in Johnson County

Here is the Governor's press release announcing that James Charles “Chuck” Droege has been appointed district judge to fill the vacancy created by Steve Leben being appointed to the COA. I don't know anything about Mr. Droege.

There is one more vacancy to fill in Johnson County. There is also a district judge vacancy (due to Judge Graber's retirement) to be filled in the 30th Judicial District (Pratt, Wellington, Kingman, Medicine Lodge). Lots of new faces on the bench.

Wednesday, August 01, 2007

September 2007 KSC docket

Here are the criminal cases on the KSC docket for September 4-7. These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details. Don't forget, arguments are streamed live over the internet at the appellate court website (here) if you would like to listen in to any of these arguments.

September 4, 2007-Tuesday-a.m.

State v. Akira Brown, No. 92,544 (Sedgwick)
Direct appeal; First-degree Murder
Carl F.A. Maughan
[Affirmed; Luckert; Dec. 7, 2007]

1. Confrontation Clause
2. Improper admission of gang evidence
3. Failure to suppress statements
4. Failure to instruct on heat of passion/vol manslaughter
5. Failure to allow 3d party evidence
State v. Marc Sappington, No. 94,415 (Wyandotte)
Direct appeal; First-degree Murder
Sarah Ellen Johnson
[Affirmed; Nuss; Nov. 2, 2007]

1. Failure to give vol intoxication instruction
2. Failure to appoint new counsel
3. Failure to allow evidence of victim's mental illness
4. Failure to declare mistrial after state began to play wrong confession to jury
State v. Marc Sappington, No. 94,416 (Wyandotte)
Direct appeal; First-degree Murder
Sarah Ellen Johnson
[Affirmed; Nuss; Nov. 2, 2007]

1. Prosecutorial misconduct-improper definition of reasonable doubt
2. Judge's failure to recuse
3. Gruesome photos
4. Failure to appoint new counsel
State v. Darrell Farmer, No. 91,466 (Montgomery)
Direct appeal (reargument); First-degree Murder
Randall L. Hodgkinson
[Affirmed; McFarland; Feb. 1, 2008]

1. Sufficiency of underlying criminal discharge at an occupied vehicle
2. Failure to suppress statements obtained by appeal to religion
September 4, 2007-Tuesday-p.m.

State v. Gavin Scott, No. 83,801 (Sedgwick)
Direct appeal (reargument); Capital Murder & Death Sentence
Rebecca E. Woodman
[Aff'd in part, rev'd in part, death sentence vacated; per curiam; May 16, 2008]

1. Whether statute making tie at sentencing phase go to state violates Kansas Constitution
September 5, 2007-Wednesday-a.m.

State v. Donnie Ventris, No. 94,002 (Montgomery)
Direct appeal (petition for review); Aggravated Robbery
Matthew J. Edge
[Reversed and remanded; Rosen; Feb. 1, 2008]
[Cert petition granted Oct. 1, 2008]
[SCOTUS reversed KSC; Scalia; April 29, 2009]
[Conviction affirmed on remand from SCOTUS; Rosen; July 24, 2009]
  1. Improper impeachment with statements obtained in violation of right to counsel
  2. Failure to give prior bad acts limiting instruction

September 5, 2007-Wednesday-p.m.

State v. Mardoqueo Gutierrez, No. 94,317 (Lyon)
Direct appeal (petition for review); Att vol manslaughter
Korey A. Kaul
[Affirmed; Beier; Dec. 7, 2007]

1. Insufficient evidence of agg burglary based on vol manslaughter
2. No crime of attempted voluntary manslaughter
Alex Bellamy v. State, No. 94,365 (Sedgiwick)
K.S.A. 60-1507 appeal (petition for review)
Korey A. Kaul
[Reversed; Rosen; Dec. 7, 2007]

1. Standard of review when appellate court reviews summary denial
State v. Previn Araujo, No. 94,831 (Sedgwick)
Direct appeal (petition for review); Possession w/ intent to sell
Shawn E. Minihan
[Affirmed; Luckert; Nov. 2, 2007]

1. Confrontation Clause
Keith Barr v. State, No. 94,429 (Sedgwick)
K.S.A. 60-1507 appeal (petition for review)
Randall L. Hodgkinson
[Affirmed; per curiam; Nov. 14, 2008]

1. Exceptions that allow late direct appeal
September 6, 2007-Thursday-a.m.

State v. Thomas Murray, No. 94,619 (Douglas)
Direct appeal; First-degree Murder
Sarah Ellen Johnson
[Affirmed; Davis; Jan. 18, 2008]

1. Prosecutor misconduct--facts not in evidence/personal opinion
2. Improper admission that defendant invoked Fifth
3. Improper hearsay evidence admitted
State v. Billy Scott, No. 95,760 (Reno)
Direct appeal (transfer); Involuntary Manslaughter
Jennifer Conkling
[Reversed; Beier; Dec. 7, 2007]

1. Insufficient evidence that defendant's conduct caused death
2. Failure to instruct jury on proximate cause
3. Failure to instruct on lesser included offense (drinking contest)
4. Failure to specify act that was "commission of lawful act in unlawful manner"
Garnet Tolen v. State, No. 95,106 (Saline)
K.S.A. 60-1507 appeal (transfer)
Michael Holland
[Affirmed; Rosen; Feb. 1, 2008]

1. One year statute of limitations violates Kansas Constitution
September 7, 2007-Friday-a.m.

Joseph Guillory v. State, No. 96,610 (Washington)
K.S.A. 60-1507 appeal (petition for review)
Korey A. Kaul
[Dismissed; McFarland; Nov. 2, 2007]

1. Whether exception for late notice of appeal due to failure to inform of right to appeal should apply to K.S.A. 60-1507 appeal

Tod Pabst v. State, No. 97,139 (Thomas)
K.S.A. 60-1507 appeal (transfer)
Richard Ney
[Affirmed; Johnson; Sept. 19, 2008]

1. Associate prosecutor hired by victim had conflict of interest
2. IAC of trial and appeal counsel for failure to challenge prosecutor
3. IAC of trial counsel for failure to impeach coroner
4. Whether amended K.S.A. 60-1507 motion relates back for purposes of one-year statute of limitations