Monday, November 29, 2010

Cannot "routinely" pat down without articulable safety concern

Michael Redmon won in State v. White, 103,472 (Kan. App. Nov. 12, 2010), reversing a Wyandotte County drug prosecution based on a Fourth Amendment violation. The COA held that an officer had improperly extended a traffic stop and then considered the validity of a pat down (where an officer found incriminating evidence):

White argues that the officer-safety pat-down, sometimes called a frisk, was an illegal search and all the evidence found as a result of that search should have been suppressed. Specifically, White argues that James had no reasonable suspicion that White was armed and dangerous or that James' safety or the safety of others might have been in jeopardy.

The State maintains again that the encounter was consensual and, therefore, a Terry analysis is unnecessary. As discussed above, however, the State failed to prove the encounter became voluntary. The State further argues that "the officers, by their testimony demonstrated that they were acting as reasonably prudent men in the circumstances" when James conducted the pat-down.

To restate the pertinent facts, James arrived on the scene without being dispatched and saw Bell talking to White. White then stepped out of his car and walked toward James, who was standing near the rear bumper of White's car. White appeared to be cooperating fully with the investigation. At that point, James performed the pat-down.

James did not engage in any conversation with White before performing the pat-down, nor did he recognize White from a previous encounter. When asked why he performed the pat-down, James testified, "It's officer safety. That's just what I've done since I started out here. Just make sure nobody has weapons on them when I'm talking to them." James did not provide any further explanation for the pat-down. During cross-examination, James acknowledged that he "routinely" performs a pat-down in every traffic stop where a person is asked to step out of the car.

. . . .

We recognize that law enforcement officers have dangerous jobs, and traffic stops are especially perilous. As a result, officers must be allowed to take reasonable steps to protect their safety and the safety of others. Courts will uphold a pat-down for officer safety as long as the officer articulates any reasonable suspicion that the officer's personal safety requires it. But a law enforcement officer cannot "routinely" perform a pat-down every time the officer personally encounters a citizen and expect the courts to sanction such a blatant constitutional violation.


The COA shows how easy it is for law enforcement to both extend a stop and conduct a pat down under existing law. But the COA properly says if law enforcement doesn't even take those easy and basic steps, it constitutes a "blatant constitutional violation."

[Update: the state did not file a PR and the mandate issued on December 20, 2010.]

Another upward durational departure set aside

Heather Cessna and Sarah Morrison won in State v. Duncan, No. 99,463 (Kan. Nov. 19, 2010), reversing imposition of an upward durational departure sentence in a Sedgwick County aggravated battery prosecution. Mr. Duncan had pleaded guilty to severity level seven agg battery, including a joint recommendation for an upward durational departure sentence, which the district court imposed. After probation revocation, Mr. Duncan challenged the departure sentence based on failure to validly waive his right to have a jury find aggravating factors beyond a reasonable doubt. The KSC agreed:

In other contexts, we have held that to be constitutionally valid, a waiver of rights in guilty or no contest pleas must be voluntary, knowing, and intelligent acts performed with sufficient knowledge of the relevant circumstances and likely consequences. Recently, this court held that to satisfy the Due Process Clause a waiver must be an intentional abandonment or relinquishment of a known right or privilege. State v. Copes, 290 Kan. 209, 218, 224 P.3d 571 (2010). As such, to waive the right to a jury in an upward durational departure proceeding, the defendant must do more than consent to the sentence. Duncan needed to understand—and the record needs to demonstrate—what specific right or rights he was waiving. An examination of the plea hearing proceedings relied upon by the Court of Appeals, as well as the written plea agreement, are required to determine whether the waiver satisfied these criteria.

At the plea hearing, the district court informed Duncan he was relinquishing his right to a trial on his guilt, his right to raise any defenses to the charge, his right to have the State prove each offense, his right to compel and cross-examine witness testimony, and his right to testify in his own defense. Regarding sentencing, the district court informed him of the potential range of sentences that could be imposed and that the court was not bound by the plea agreement and could impose any legal sentence deemed appropriate. But the district court did not advise Duncan that he had a right to a jury determination of the aggravating sentencing factors.

Similarly, the written plea agreement only informed Duncan of his right to have his guilt or innocence determined by a jury and the requirement that the State prove his guilt beyond a reasonable doubt on each element of the charge. Neither of these provisions informed Duncan he had a right to a jury determination of the aggravating sentencing factors. Indeed, under even the most generous reading of the plea agreement, at best, suggests it is ambiguous as to whether the defendant was waiving both the jury determination of guilt and the jury determination of aggravating factors. But if we were to find such ambiguity, it would not matter. This court interprets plea agreements under the same standard applied to ambiguous statutes, so that any uncertain language is strictly construed in the defendant's favor. Under this standard, the plea agreement's language would not be enough to constitute a waiver as written.

I hope the KSC will apply this same kind of scrutiny to other waiver situations as well.

Iowa Supreme Court invalidates fee-cap for appeals

Hat tip to Law of Criminal Defense for posting on this Iowa Supreme Court case holding that a fee cap of $1500 per appeal for criminal defense appeals is unconstitutional under a structural ineffective assistance of counsel approach. The opinion does a nice job of relating some of the economic realities of persons who do this kind of work and explaining the impact of these realities:

First, we examine what the fee cap would mean for a full-time attorney providing representation in criminal appeals. Under the NLADA standards, a lawyer who handles appeals should limit his or her workload to twenty-five appeals per year. Standards for the Defense, Standard 13.12. Under this standard, a full-time lawyer working pursuant to the appellate defender‘s rule could receive a gross income of $40,000. From this figure, the attorney must pay for overhead which, according to the Iowa State Bar Association survey offered into evidence in this case, was, for the average Iowa lawyer, in excess of $70,000. Even assuming that a criminal defense lawyer working on appeals would have less overhead than the average Iowa lawyer, it seems clear that it would be very difficult for a lawyer working under the state public defender‘s rule to earn a living.

Second, we look at this case by considering the hourly rate paid to Simmons for what the record establishes were reasonable and necessary services. His hourly rates for the cases amount to $12.56 for Millam‘s appeal and $12.27 for Cromer‘s appeal. Over the long run, payment of such hourly rates to appellate counsel will have a chilling effect on qualified lawyers taking this work and would discourage thorough appellate preparation.

Third, we use our own expertise in considering the impact of a $1500 fee cap for appellate work. No one can dispute that competent appellate representation requires thorough mastery of the underlying facts, communications with the client, research into applicable legal issues, consideration of which issues to present on appeal, and then careful writing and rewriting. A hard-fee cap of $1500 simply cannot provide adequate compensation in many cases, including the two cases at issue here.

The implications of the inadequate compensation framework on the provision of effective assistance of appellate counsel are multiple. First, inadequate compensation will restrict the pool of attorneys willing to represent indigent defendants. Second, the low level of compensation threatens the quality of indigent representation because of the perverse economic incentives introduced into the criminal justice system. Low compensation pits a lawyer‘s economic interest (recall Lincoln‘s metaphor that a lawyer‘s time is his stock in trade) against the interest of the client in effective representation.

Ecomonic times are tough for state governments, but they cannot choose to prosecute without adequately (not just minimally) funding the defense. If state governments want to reduce their indigent defense costs, they have to reduce the rate of prosecution/incarceration (or, as I've said before, at least the rate of prosecution/incarceration of poor people). It's that simple.

Tuesday, November 23, 2010

Downward departure upheld

Washburn student intern Jeffrey Dazey and I (and Patrick Dunn, who argued the case), won in State v. Liskey, No. 103,145 (Kan. App. Nov. 19, 2010), affirming Judge Leuenberger's imposition of a downward durational and departure sentencing in a fairly high profile Shawnee County aggravated indecent liberties and criminal sodomy prosecution. Judge Leuenberger had found eleven substantial and compelling reasons for departure in this case. The COA considered two of the eleven --Ms. Liskey's mental impairment and the complaining witness' participation in the conduct--and held that they were supported by substantial competent evidence and were substantial and compelling reasons for departure. Because the COA only needed to find a single factor supported the departure, it did not need to analyze any of the remaining factors.

Here is coverage of the decision in the Topeka Capital-Journal. Here and here is pre-argument and argument coverage of the appellate case in the Topeka Capital-Journal. Here is some WIBW video coverage of the argument expertly presented by "Ryan Hodgkinson" (played by Patrick Dunn).

[Update: the state did not file a PR and the mandate issued on December 23, 2010.]

Monday, November 22, 2010

Petition for Review granted, November 2010

On November 4, 2010, the KSC granted the defendant's petition for review in the following case:

State v. Hale, Case No. 101,071 (Dec. 31, 2009) (unpublished)

Issue presented: Whether the district court erred by denying the defendant’s motion to correct illegal sentence when the defendant’s criminal history score had been increased based on uncounseled misdemeanor convictions that resulted in incarceration.

Thursday, November 18, 2010

Short list for COA

Here is the press release announcing the nomination of municipal judge Karen Arnold-Burger, district judge Robert Fredrick, and KSC staff attorney Deborah Hughes for the vacancy on the COA to be created when Chief Judge Rulon retires in early January. Governor Parkinson has 60 days to select the new COA judge from this list. Another COA vacancy will be created by COA Judge Caplinger's recent appointment to the KSC, so the Nominating Commission will be at work again in the next few months, with Governor-elect Brownback making that appointment.

Wednesday, November 10, 2010

The New Miranda warning

I thought this post on the Marquette University Law School faculty blog by Michael Cicchini nicely summed up recent SCOTUS Fifth and Sixth Amendment jurisprudence pretty well. In conformity with these cases, here is how we should be giving the familiar Miranda warning if we really want to be honest:
I first have to read you these rights before you tell me your side of the story, okay? First, you have the right to remain silent.

Actually, you really don’t have the right to remain silent, unless you first speak. Berghuis v. Thompkins, 130 S. Ct. 2250 (2010).

But if you choose to speak so that you can remain silent, you had better not be ambiguous. If you tell me, for example, “I don’t got nothing to say,” that is ambiguous to me, and not because of the double negative. Your ambiguity will be construed in my favor, and I am allowed to continue my interrogation. United States v. Banks, 78 F.3d 1190 (7th Cir. 1996).

On the other hand, if I am ambiguous when I read you your rights, my ambiguity will also be construed against you. This is only fair. Florida v. Powell, 130 S. Ct. 1195 2010).

If you refused to answer questions posed to you before I began reading you your rights, your pre-Miranda silence can be used against you at trial, should you testify in your own defense. So, you might want to talk to me now so you don’t look guilty later. Jenkins v. Anderson, 447 U.S. 231 (1980).

But, anything you say to me can be used against you in court. (I’m not sure if this includes the things that you say in order to remain silent.)

You have the right to an attorney.

But if you choose to exercise your right to an attorney, once again, you had better not be ambiguous about it. Don’t ask me, for example, “Could I get a lawyer?” This might seem like a reasonable request to you, since you’re handcuffed and have no other way to actually get the nameless attorney that I just offered you. However, this statement is also ambiguous and is not sufficient to invoke your rights. United States v. Wesela, 223 F.3d 656 (7th Cir. 2000).

If you can’t afford an attorney, one will be appointed for you, unless your income happens to be above the 1980 poverty line. Then you might be on your own.

And don’t say “I can’t afford a lawyer but is there any way I can get one?” As you might have guessed by now, that is completely ambiguous, and lacks “the clear implication of a present desire to consult with counsel.” The interrogation, therefore, must go on. Lord v. Duckworth, 29 F.3d 1216 (7th Cir. 1994).

Now, do you understand these rights as I have read them to you, and would you like to take this opportunity to help yourself, waive your rights, and tell your side of the story?

Add to this recent jurisprudence cutting back on remedies when the police violate constitutional rights anyway despite all of these police-favorable cases and I wonder if the Bill of Rights matters any more (other than for people with money and people who want to bear arms).

Tuesday, November 09, 2010

KU Law to examine state constitutional law

Here is a news release that KU will host a symposium on state constitutional law this Friday November 12, 2010. Apparently there is up to 6.3 hours of free CLE available. Relevant topics include privacy rights, criminal procedure, search and seizure, and dual sovereignty.

Greene named Chief Judge

Here is a press release announcing that Richard Greene has been named by the KSC to succeed Gary Rulon as Chief Judge of the Kansas Court of Appeals.

New Mexico has a state constitution

In State v. Rivera, No. 31,656 (N.M. Oct. 19, 2010), the New Mexico Supreme Court recently considered the application of the private-search doctrine under the federal and state consitutuions:
In this case, a private citizen is alleged to have opened a sealed container that contained a toolbox holding several opaque bundles. The private citizen did not open any of the opaque bundles. When a law enforcement officer who was made aware of the private search obtained possession of the resealed container, he accompanied a second private citizen who re-opened the sealed container. The officer then cut open an opaque bundle to confirm his suspicion that it contained marijuana. The question is whether the officer violated either the Fourth Amendment of the United States
Constitution or Article II, Section 10 of the New Mexico Constitution when he cut open the opaque bundles without a search warrant.

We have consistently interpreted the search and seizure provision of the New Mexico Constitution, however, as imposing a greater requirement for a warrant than its federal counterpart. Accordingly, under the New Mexico Constitution an officer must obtain a valid warrant from a neutral and detached judge to expand the private search absent an exception to the warrant requirement. N.M. Const. art. II § 10. Our approach encourages private citizens to assist police officers in the investigation of crimes, while faithfully safeguarding existing privacy interests as required by our
constitution.

Because the officer in this case opened opaque bundles without a valid search warrant or an exception to the warrant requirement, the district court correctly suppressed the evidence.

The New Mexico Constitution, Article 2, Section 10 reads:
The people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures, and no warrant to search any place, or seize any person or thing, shall issue without describing the place to be searched, or the persons or things to be seized, nor without a written showing of probable cause, supported by oath or affirmation.

The Kansas Constitution, Bill of Rights, Section 15 reads:
The right of the people to be secure in their persons and property against unreasonable searches and seizures shall be inviolate; and no warrant shall issue but on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons or property to be seized.

Saturday, November 06, 2010

December 2010 KSC docket

Here are the criminal cases on the KSC docket for December 6, 2010. 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.

December 6--Monday--a.m.

State v. Chester Roberts, No. 100,233 (Reno)
State appeal (petition for review)
Randall L. Hodgkinson
[Affirmed; Luckert; Sept. 2, 2011]
  1. Effect of pretrial dismissal on merits
Melvin Holmes v. State, No. 100,666 (Sedgwick)
K.S.A. 60-1507 appeal (petition for review)
Michael P. Whalen
[Reversed; Nuss; June 10, 2011]
  1. Ineffective assistance of appelllate counsel

December 7--Tuesday--a.m.

State v. Robert Johnson, No. 98,812 (Wyandotte)
Direct appeal (petition for review); Possession
Ryan J. Eddinger
[Reversed; Schmisseur; Sept. 2, 2011]
  1. Fourth Amendment violation (improper stop)

December 8--Wednesday--a.m.

State v. Michael Tully, No. 92,764 (Johnson)
Direct appeal (petition for review); Rape
Bob Thomas (brief); Rebecca Kurz (argue)
[Rvd/Rmd; Luckert; Sept. 23, 2011]
  1. Improper cross-examination of right to remain silent
  2. Improper jury instruction on rape (re: amount of force)
  3. Improper expert testimony re: lack of evidence
State v. Brian Gilbert, No. 100,150 (Shawnee)
Direct appeal (petition for review); Possession
Nancy Ogle
[Dismissed; July 15, 2011]
  1. Fourth Amendment violation (standing and good faith exception)
State v. James Simmons, No. 98,770 (Crawford)
Direct appeal (petition for review); Rape
Shawn E. Minihan
[Reversed; Nuss; July 8, 2011]
  1. Prosecutorial misconduct

December 9--Thursday--a.m.

State v. Christopher Hall, No. 102,203 (Shawnee)
Direct appeal; First-degree murder
Nancy Ogle
[Affirmed; Beier; Aug. 12, 2011]
  1. Competency to enter guilty plea
  2. Failure to inform of maximum penalty

December 10--Friday--a.m.

State v. John Horton, No. 101,054 (Johnson)
Direct appeal; First-degree murder
Lydia Krebs
[Appeal stayed/remanded; Rosen; July 15, 2011]
  1. Improper coercive jury instruction (Salts)
  2. Improper refusal to reopen defense case for new evidence
  3. Improper admission of animated reconstrution video
  4. Improper exclusion of defense dog search evidence
State v. Jamil Fulton, No. 101,336 (Shawnee)
Direct appeal; First-degree murder
Jonathan B. Phelps
[Affirmed; Malone; Aug. 5, 2011]
  1. Insufficient evidence
  2. Failure to grant new trial (newly discovered evidence)
  3. Failure to sever co-defendants
State v. Patrick Naputi, No. 101,354 (Sedgwick)
Direct appeal; Agg indecent liberties
Michelle Davis
[Affd/Vacd/Rmd; Johnson; Sept. 2, 2011]
  1. Prosecutorial misconduct
  2. Denial of defense request re: jury nullification
  3. Improper order of lifetime electronic monitoring
  4. Lifetime postrelease is cruel and unusual

Monday, November 01, 2010

It's Justice Moritz

Here is the Governor's press release announcing the appointment of Judge Nancy Moritz to the Kansas Supreme Court to fill the seat of Chief Justice Davis, who passed away this last summer.

Here is coverage in the Topeka Capital-Journal. Here is some nice coverage in the Salina Journal, with interviews with high school teachers.