Based on the findings of fact above, Trooper Stahl’s testimony that he observed Webster commit a traffic violation is not credited and the Government has offered no other objectively reasonable basis to justify the stop. As a result, the stop is unconstitutional.The Government tried to show how other facts discovered after the stop justified detention, but the judge held that any such discovery was tainted by the initial illegal stop and not sufficiently attenuated to independently justify the detention. As a result, the judge suppressed the evidence.
Wednesday, April 27, 2011
KHP Trooper discredited
Hawaii has a state constitution
As recounted, unlike a conflicts of law approach, an exclusionary rule analysis requires us to consider the principles served by that rule. Bridges identified three purposes underlying our exclusionary rule: judicial integrity, protection of individual privacy, and deterrence of illegal police misconduct.
It's sort of interesting, because the SCOTUS has recognized principles such as judicial integrity when it comes to excluding defense evidence upon lack of proper notice of defense, but fails to recognize it when it comes to the Fourth Amendment. Nice to see a state court take a broader approach.
I wonder if mid-19th century Kansans thought privacy from government intrusion was an important principle?
Thursday, April 21, 2011
Acquittal in Lawrence
Tuesday, April 19, 2011
Bruns appointed to COA
Friday, April 15, 2011
Consumer dispute not theft by deception
We agree with Hulsey that the evidence was insufficient to establish that he obtained control over Cowick's property through a false statement or representation that he had obtained the necessary permits for the project. Cowick admitted Hulsey never explicitly stated he had obtained the permits, outside the contractual promise to do so. The contract did not require Hulsey to obtain the necessary permits and licenses before beginning construction and the evidence indicated he could have obtained the permits anytime before construction, was completed. The contract required Cowick to pay Hulsey $49,000 after the foundation was completed. There is no question that the foundation was completed on April 24, 2007, so Hulsey was entitled to receive a payment from Cowick on that date. Although Hulsey may have breached a future promise to perform under the contract, he made no misrepresentations about present or past existing facts.
In this case, the State exercised its discretion to prosecute Hulsey for a felony offense under the Kansas Criminal Code. It appears that the dispute may have also been governed by the Kansas Consumer Protection Act (KCPA). Although the criminal code is strictly construed in favor of the accused, the KCPA is liberally construed to protect consumers from suppliers who commit deceptive acts and practices. [T]he definition of “deceptive acts and practices” is much broader than the definition of “deception” under the criminal code. Whereas a criminal charge must be proven beyond a reasonable doubt, a KCPA claim must only be proven by a preponderance of the evidence.
We are mindful of our obligation to review the evidence in the light most favorable to the prosecution. Even applying this standard, we conclude the evidence presented at trial was insufficient to convince a rational factfinder of Hulsey's guilt beyond a reasonable doubt. Hulsey's conviction of theft by deception is reversed and his sentence is vacated.This is a nice description (and application) of the difference between criminal fraud and consumer protection.
Failure to give instruction requires reversal
Based on the facts in this case, we believe reasonable jurors could find Plummer guilty of theft, though they might reach some other conclusion. Plummer spent about 2 hours in the Target store picking up merchandise. Some of his actions, as observed by store security personnel, were indicative of an intent to steal, rather than to purchase. Plummer commandeered Target property to facilitate the crime—the knife and backpack—and tampered with other property—he took the shaver out of its packaging. But the security personnel did not immediately challenge Plummer and instead waited until he had begun to leave the store, long after he had taken possession of much of the merchandise. As the Kansas Supreme Court noted in Saylor, the crime of theft is completed once a store patron "conceals" merchandise "on his person" with the intent to permanently deprive the owner of that property. The thief needn't leave or attempt to leave the store.The COA also directed that the district court carefully consider giving lessers for attempt on retrial. Another in a line of cases that causes me to ask: "Why not give the lesser? What is the harm?" Why is there so much reluctance among the judiciary? If we believe in the right to a jury trial, why not let the jury do its work and let the chips fall where they may?
Accordingly, the trial court erred in failing to charge the jury on theft, as a lesser degree of robbery, in conformity with Plummer's request. We, therefore, reverse and remand for a new trial.
[Update: the state file a PR on May 16, 2011.]
[Further update: the KSC granted the state's PR on September 21, 2011.]
[Further update: on August 24, 2012, as blogged about here, the KSC ordered a new trial..]
Not a voluntary encounter
It's a good lesson that just because the KSC said that some police encounters can become voluntary encounters, these cases are factually intensive and the KSC precedent does not stand for the proposition that all police encounters are voluntary encounters.Examining the totality of the circumstances, we are unable to conclude that Hogan freely, voluntarily, specifically, and without implied coercion, gave his consent to search the bag in the back seat. In addition to the equivocal nature of any consent by Hogan, many of the same factors considered in evaluating the detention must be considered here, including the presence of two uniformed and armed officers, the holding of Hogan behind the vehicle by Crowe as Robinson searched the back seat, the continuing activation of the overhead light bar, and the repeated questions from Robinson. Additionally, we note that Robinson utilized aggressive language after Hogan's protestation when he responded, "[Y]ou said I could search, correct?" We view that language as indicating that acquiescence to the officer's extended search was compulsory.
Examining the totality of the circumstances, we conclude that a reasonable person would not have felt free to leave upon Robinson's initial request to search the vehicle, and even if we were to conclude otherwise, any consensual encounter was transformed back to an illegal detention after Hogan objected to further search of his personal stuff. And finally, we are unable to conclude that Hogan's consent to search the black bag was voluntary after he protested to that search.
Closure of courtroom requires reversal
The COA correctly recognized that Public Trial Clause violation is not subject to harmless error analysis and reversed.The State argues that the spectators abused their privileges to observe the witnesses and, therefore, the trial court rightly closed the courtroom.
However, the standard for denying a defendant his or her right to a public trial requires that the decision be no broader than necessary and the court consider reasonable alternatives to closure. Barnes correctly argues the trial court failed to consider reasonable alternatives to closing the courtroom, including banning cell phones from the courtroom.
The trial court could also have removed only Brooks without closing the entire proceeding to the public. The court had satisfied itself that Brooks was not taking pictures of the jury. If the court believed Brooks was acting in an unruly manner, which it may well have, its best option would have been to tell her to leave while allowing the rest of Barnes' friends and family to remain.