Category: Drugs

Expungements

Sometimes people make poor decisions. What if you make one very poor choice, or if you make a choice you believe is the only choice you have to make at the time, but it turns out to be illegal? That choice may effect your life for years if you are convicted of a crime. What if you turn your life around, or there are circumstances about the decision you made that can be rectified with some sort of rehabilitation? What if the Judge who heard your case believes that you deserve a second chance after you have paid your debt to the community? If that conviction can’t be sealed, the information, especially in today’s cyber world, will haunt you when you apply for student loans, apply for schooling, apply for housing, or try to find work. Even if the Court seals its records, the law as it is now states that the Court can’t tell the executive branch – law enforcement – to seal their records. Even if it is in everyone’s best interests that the records be sealed. Thankfully, Rep. John Lesch, D – St. Paul, has drafted a bill that would allow the Courts to determine when the records should be sealed, even in the executive branch. Sealing does not mean erasing. The information would simply not be public.

For example, suppose a high school senior, who is 18, gets arrested with 33 grams of marijuana in his possession. That is a felony. Just over one ounce. Suppose this 18 year old is a straight A student and for all other discussions is a great kid. The arrest records fall under the executive branch, law enforcement. Even if the prosecutor offers to resolve the case in a manner that will ultimately result in the matter being dismissed, the current law only allows for the court records to be sealed. The arrest records and police reports will still be open and available through the executive branch. That is why employment agencies, housing agencies and others simply take a trip to the BCA, the local Sheriff’s Department or the Police Department to obtain records on people even if the case was dismissed.

This bill, if it passes, should allow the Court to properly seal all the records that hinder a person’s ability to be successful after they have paid their debt to the community for their wrongdoing. Click here to read an article about the process.

Mandatory Minimums on illegal drug cases

In 2013 United States Attorney Eric Holder sent a memo to his Assistant United States’ Attorneys noting that not all illegal drug cases should demand mandatory minimum sentences. If you have a case drug case in Federal Court or Minnesota State Court, please contact Patrick Flanagan at 651-214-7209 to discuss your case

Click here to read more about the Holder memorandum

Or watch the news conference on the subject here http://www.youtube.com/watch?v=CcuzCNwFktA”>Holder Conference

Give a friend a ride – make sure you know what’s in the van before you do

There are times when a person may find themselves in a situation wanting to make some easy money. Usually, if it seems too good to be true, it probably is. In the Case of United States v. Listman, a young man agreed to drive a van cross country for about $1,000 a trip. The Defendant was told there were drugs in secret compartments within the van, although Defendant Listman never actually saw the drugs. However, as the case discusses, the knowledge he did have was enough for a jury to convict him of conspiracy to distribute methamphetamine. Read below to see how a seemingly simple act can get you wrapped up into a conspiracy.

Summary:

UNITED STATES v. LISTMAN (4-12-2011)

The Jury convicted Defendant Listman of conspiracy to distribute methamphetamine for his role driving a van carrying the drugs in a hidden compartment. Defendant Listman did know where the trap doors were on the vehicle and there was no evidence that he ever saw the drugs. However, The Federal Court of Appeals Held that Evidence that Defendant Listman knew the van carried drugs was sufficient to support the conviction. There was no need to need to prove he knew where in the van the drugs were.

Furthermore, The Federal Court of Appeals Held there was no error in allowing an officer to testify that Defendant Listman seemed to be under influence of drugs. This testimony was allowed not to show that Defendant was actually under the influence, but was relevant to show his knowledge, court said.

The Federal Court of Appeals rejected Defendant Listman’s argument that since he did not ever see the drugs and really did not know if he was told the truth about what he was doing, that he should be allowed to provide a “Deliberate ignorance” instruction to the jury.

Complete Decision:

636 F.3d 425 (2011)
UNITED STATES of America, Appellee,
v.
Bruce LISTMAN, Appellant.
No. 10-1721.

United States Court of Appeals, Eighth Circuit.
Submitted: December 17, 2010.
Filed: April 12, 2011.

428*428 Steven Ray Davis, N. Little Rock, AR, for appellant.

Anne E. Gardner, AUSA, Little Rock, AR, for appellee.

Before RILEY, Chief Judge, BEAM and BENTON, Circuit Judges.

RILEY, Chief Judge.

A jury convicted Bruce Listman of conspiracy to possess with intent to distribute at least 500 grams of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846. Listman appeals, arguing there was insufficient evidence to support the conviction. Listman also challenges the district court’s[1] evidentiary rulings and inclusion of a deliberate ignorance jury instruction. We affirm.

I. BACKGROUND

A. Facts[2]

From approximately March to November 2008, Listman was a courier for the Valdovinos drug trafficking organization. Candice Russell recruited Listman to drive with her from California to Arkansas because she did not have a driver’s license.

Russell and Listman drove vehicles modified to include a trap door concealing a hidden compartment. The vehicles carried methamphetamine to Arkansas and cash back to California. Listman and Russell deny knowing the specific locations of the traps.

Listman accompanied Russell on four trips.[3] Russell did not tell Listman they were smuggling drugs during their first trip to Arkansas. During their second trip, Russell told Listman “what was going on … [b]ecause it wasn’t right for him not to know.” Russell received approximately $2500 per round-trip. In turn, Russell paid Listman $1000 per trip in addition to methamphetamine.

Starting in September 2008, the offices of the United States Department of Justice Drug Enforcement Agency (DEA) in California and in Arkansas began investigating the Valdovinos drug trafficking organization, surveilling and arresting various participants. During the investigation, the DEA identified Russell as a courier.

On November 21, 2008, California Highway Patrol Officer Anthony Cichella, acting on DEA information relayed to him from an area police department, stopped a gray Toyota Corolla traveling westbound on Interstate 10 near Fontana, California. Russell was driving the vehicle and Listman was a passenger. Russell consented to a search of the vehicle. With a drug dog’s assistance, Officer Cichella discovered a trap over a modified compartment under the rear bench seat. The trap contained a crystalline residue, which Officer Cichella believed to be methamphetamine.

During the encounter, Officer Cichella observed Listman was fidgety, moody, easily agitated, and at times uncooperative. 429*429 This led Officer Cichella to conclude Listman “was definitely under the influence.” Officer Cichella did not conduct a field sobriety test and did not arrest Listman for being under the influence of a controlled substance. Officer Cichella took both Russell and Listman to the police station and seized the Corolla.

B. Prior Proceedings

A federal grand jury charged Listman with conspiracy to possess with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846.[4] Listman moved to suppress evidence of Officer Cichella’s discovery of the trap, arguing the stop and search violated his Fourth Amendment rights. Alternatively, Listman moved in limine to exclude evidence of the trap, contending “testimony that he was a passenger in a vehicle which contained a hidden compartment which police suspected of being used to transport drugs would unduly prejudice his defense.” The district court denied both motions.

A three-day jury trial began on January 19, 2010. Law enforcement officers and four co-conspirators, including Russell, testified for the government. At trial, Listman objected to Officer Cichella’s observation that Listman was under the influence of drugs during the traffic stop, arguing Listman’s drug use was not relevant. The district court ultimately found the evidence admissible because “although [Listman’s] personal use of methamphetamine does not lead to the conclusion that he must have been involved in a conspiracy, it does show … that methamphetamine was … in his presence … [a]nd … would indicate he had some knowledge.” At Listman’s request, the court instructed the jury “if you believe … Listman used methamphetamine … you may not just from that alone conclude that he was involved in a conspiracy … to possess with intent to distribute.”

At the close of the government’s case, the district court denied Listman’s Fed. R.Crim.P. 29 motion for a judgment of acquittal. Listman testified in his own defense. Before closing arguments, Listman objected to the district court’s inclusion of a deliberate ignorance jury instruction. The district court overruled the objection and included the instruction. The jury found Listman guilty. Listman appeals.

II. DISCUSSION

A. Sufficiency of the Evidence

Listman claims the evidence supporting his conviction was insufficient. We “review[] sufficiency of the evidence de novo and reverse[] only if no reasonable jury could have found the defendant guilty.” Clay, 618 F.3d at 950. We must sustain a conviction when the evidence, viewed most favorably to the government, substantially supports the verdict. See id.

To convict Listman of conspiracy to distribute methamphetamine, “the government must prove: (1) that there was a conspiracy, i.e., an agreement to distribute [methamphetamine]; (2) that [Listman] knew of the conspiracy; and (3) that [Listman] intentionally joined the conspiracy.” United States v. Rolon-Ramos, 502 F.3d 750, 754 (8th Cir.2007) (quoting United States v. Jiminez, 487 F.3d 1140, 1146 (8th Cir.2007)) (internal quotation marks omitted). Listman concedes there was a conspiracy, but argues the government failed 430*430 to prove he knew of or intentionally joined the conspiracy.

The evidence was sufficient for the jury to conclude Listman knew he was transporting methamphetamine. Russell testified she told Listman they were transporting drugs, and it was the jury’s prerogative to believe her. “The jury is the final arbiter of the witnesses’ credibility, and we will not disturb that assessment.” United States v. Hayes, 391 F.3d 958, 961 (8th Cir.2004). The government also produced circumstantial evidence—such as Russell paying Listman cash and methamphetamine, and Russell and Listman using methamphetamine together during the trip—supporting an inference Listman knew he was transporting drugs.

Listman argues “a person who is caught driving a car full of drugs does not possess them in a legal sense if he did not know what he had.” See United States v. Mendoza-Larios, 416 F.3d 872, 873-74 (8th Cir.2005) (noting legal possession could not be inferred based solely on the defendant driving a car containing large quantities of hidden illegal drugs). This proposition, while true, is inapplicable here because the jury heard direct and circumstantial evidence demonstrating Listman knew he was transporting methamphetamine. See United States v. Ojeda, 23 F.3d 1473, 1476 (8th Cir.1994) (holding direct and circumstantial evidence supported finding driver was aware of the presence of drugs within the vehicle). It is not necessary to prove Listman knew exactly where in the vehicle the drugs were hidden.

B. Motion in Limine

Listman argues “the trial court erred in denying Listman’s motion in limine and objections at trial” to Officer Cichella’s testimony regarding the vehicle stop. Specifically, Listman challenges Officer Cichella’s testimony regarding the existence of the hidden trap and his assessment that Listman was under the influence of drugs.

“We review the district court’s evidentiary ruling for clear abuse of discretion, and will not reverse if the error was harmless.” United States v. Hyles, 479 F.3d 958, 968 (8th Cir.2007) (internal citation omitted). “The trial court has broad discretion in determining the relevancy and admissibility of evidence” and “great deference is given to a district court’s balancing of the relative value of a piece of evidence and its prejudicial effect.” United States v. Zierke, 618 F.3d 755, 759 (8th Cir.2010) (quoting Jiminez, 487 F.3d at 1145) (internal quotation marks omitted); see also United States v. Emmanuel, 112 F.3d 977, 979 (8th Cir. 1997) (“The district court’s discretion is particularly broad in the context of a conspiracy trial.”)

We perceive no reversible error here. The very existence of the hidden trap was probative as to whether Listman participated in the conspiracy and the danger of unfair prejudice, if any, did not substantially outweigh this probative value. See Fed.R.Evid. 403. “[E]vidence is not unfairly prejudicial merely because it tends to prove a defendant’s guilt.” United States v. Boesen, 541 F.3d 838, 849 (8th Cir.2008).

Neither are we persuaded the admission of Officer Cichella’s assessment that Listman was under the influence of drugs was an abuse of discretion. The district court found this assertion probative of Listman’s knowledge that he was transporting methamphetamine. The officer’s assessment also corroborated Russell’s testimony that Russell and Listman discussed methamphetamine, Russell paid Listman, in part, with methamphetamine, and they used methamphetamine during the trips. Considering the court’s accompanying 431*431 cautionary instruction that the jury could not conclude Listman was involved in the conspiracy based solely upon Listman’s use of drugs, we find no abuse of discretion. See United States v. Davidson, 449 F.3d 849, 853 (8th Cir.2006) (noting a cautionary instruction to the jury diminished the risk of unfair prejudice to the defendant). Regardless, any error was harmless. It is difficult to imagine the challenged evidence substantially influenced the verdict, see United States v. Donnell, 596 F.3d 913, 919 (8th Cir.2010), particularly because Listman admitted he often used methamphetamine with Russell, and on at least one occasion during their trips to Arkansas, Russell started to smoke methamphetamine.

C. Jury Instruction

Listman argues the district court erred in instructing the jury on a theory of deliberate ignorance consistent with Eighth Circuit Model Criminal Jury Instruction 7.04 (2007), contending “there is absolutely no evidence that Listman deliberately avoided learning about the drug conspiracy.” We disagree.

We review the inclusion of a jury instruction for an abuse of discretion and consider whether any error was harmless. See United States v. Hernandez-Mendoza, 600 F.3d 971, 979 (8th Cir.2010). “A deliberate ignorance instruction is appropriate when the evidence is sufficient to support a jury’s conclusion that `the defendant had either actual knowledge of the illegal activity or deliberately failed to inquire about it before taking action to support the activity.'” Id. (quoting United States v. Whitehill, 532 F.3d 746, 751 (8th Cir.2008)). “Ignorance is deliberate if the defendants were presented with facts putting them on notice criminal activity was particularly likely and yet intentionally failed to investigate.” Whitehill, 532 F.3d at 751. It is “not appropriate if the evidence implies defendants could only have had `either actual knowledge or no knowledge of the facts in question.'” Id. (quoting United States v. Parker, 364 F.3d 934, 946 (8th Cir.2004)).

As discussed above, Russell’s testimony and other evidence supported a conclusion Listman knew he was transporting methamphetamine. The jury could have disbelieved Russell and still concluded Listman knew it was likely he was transporting drugs and chose to remain ignorant. Listman contends, “There is no reason to believe that a methamphetamine user like [Listman] could conduct an investigation worthy of Sherlock Holmes and discover the existence of a multi-level conspiracy to transport methamphetamine.” To the contrary, we deduce it is elementary that someone recruited to drive across the country on multiple occasions in exchange for cash and drugs would suspect criminal activity was afoot. Listman’s own testimony that he wondered whether Russell had methamphetamine on her “[b]ecause she used so much more [methamphetamine] than anyone [Listman had] known before” is strong evidence Listman had some notice. The deliberate ignorance instruction was appropriate, and giving the instruction was not an abuse of discretion.

III. CONCLUSION

We affirm the judgment of the district court.

[1] The Honorable Susan Webber Wright, United States District Judge for the Eastern District of Arkansas.

[2] “We recite the facts in the light most favorable to the jury’s verdict[].” United States v. Clay, 618 F.3d 946, 948 n. 2 (8th Cir.2010) (quoting White v. McKinley, 605 F.3d 525, 528 (8th Cir.2010)) (internal quotation marks omitted).

[3] Listman did not return with Russell on the first trip, opting instead to fly home to California.

[4] This indictment superseded an already existing indictment against other participants in the conspiracy. In January 2010, a grand jury returned a second superseding indictment, charging Listman with the same crime.

Probationers and Parolees have a limited expectation of privacy

A Parolee or a person on probation soon finds out that the application of their Constitutional Rights is analyzed much different than a person not on Parole or probation. The person may be required to do drug testing, make scheduled meetings, or as the following case shows, be subjected to searches of their person or residence without the requirement of a search warrant. In this case, the parolee learned from the Court that his expectation of Privacy under the 4th Amendment of the Constitution is much less than the citizen not on parole or probation. I have included a summary of the case first, followed by the entire opinion for you to read how the application of your Rights are analyzed by the Court when you are on probation or parole.

State of Minnesota v Heaton
(CT APPS, 05-07-2012, A11-659, St. Louis Co)

Issue: Search of parolee’s person and residence

In this case, the court holds that a parolee’s house and person can be searched pursuant to a valid parole condition and upon reasonable suspicion.

The facts which gave rise to the reasonable suspicion were as follows:

Defendant Heaton was a passenger in a car that was stopped by the police. An occupant, not Defendant Heaton, was arrested on an outstanding warrant. Defendant Heaton had $3000 in cash on his person which he said he got from a sale of his car. However, Defendant Heaton could not provide proof of the transaction, or the name of the person to whom he sold the car.

Defendant Heaton’s Parole officer was notified by police about the stop. The Parole Officer waited for Defendant Heaton to return to his apartment and then searched him. During the search, the Parole Officer found methamphetamine, $2,600 in cash and a gun in Defendant Heaton’s apartment. Defendant Heaton was subsequently convicted of a drug offense and gun possession. Defendant Heaton was then sentenced to 60 months and 100 months concurrent.

Conviction affirmed there was reasonable suspicion to search. The concurring opinion states that a Parole Officer does not even need reasonable suspicion to search.

STATE OF MINNESOTA IN COURT OF APPEALS
State of Minnesota, Respondent,
vs.
Stirling Michael Heaton, Appellant.
Filed May 7, 2012

Affirmed

Hudson,Judge
Concurring specially, Ross, Judge
St. Louis County District Court File No. 69DU-CR-10-2498

Lori Swanson, Attorney General, John B. Galus, Assistant Attorney General, St. Paul, Minnesota; andMark S. Rubin, St. Louis County Attorney, Duluth, Minnesota (for respondent) David W. Merchant, Chief Appellate Public Defender, Jodie Lee Carlson, Assistant Public Defender,
St. Paul, Minnesota; andBradley T. Smith, Special Assistant Public Defender, Dorsey & Whitney LLP, Minneapolis, Minnesota (for appellant)
Considered and decided by Ross, Presiding Judge;Halbrooks, Judge; and
Hudson,Judge
.
S Y L L A B U S

No more than reasonable suspicion is required to search a parolee’s home
when the search is conducted pursuant to a valid parole condition.

O P I N I O N

HUDSON,Judge

On appeal from his convictions of possession of a firearm by a felon and possession of methamphetamine, appellant argues that (a) his right to be free from warrantless searches was violated when his parole officer conducted a search of his apartment and (b) because he did not consent to the warrantless search, the district court erred by not suppressing evidence
discovered during the search. Because a valid, warrantless search of a parolee’s home may be conducted if the search was conducted pursuant to a valid parole condition and was supported by reasonable suspicion, we affirm.

FACTS
On July 13, 2009, appellant was released from prison after his incarceration for unlawful possession of a firearm by a prohibited person;
appellant was then placed on intensive supervised release. Before appellant’s release, the parole officer assigned to supervise appellant
familiarized himself with appellant’s criminal history and prior contacts with law enforcement, including a previous parole compliance search in 2006
that resulted in the discovery of a loaded pistol. Discovery of the firearm led to appellant’s conviction. Appellant’s release status was reduced on July 13, 2010, from intensive supervised release to supervised release status. Appellant’s conditions of release stated: “The offender will submit at any time to an unannounced visit and/or search of the offender’s person, vehicle or premises by the agent/designee.” There is no dispute that appellant signed the conditions of release.

On July 22, 2010, appellant was a passenger in a vehicle stopped by Carlton County law enforcement. Another occupant of the vehicle was arrested on an outstanding warrant. During the stop, appellant was searched, and officers found that he was carrying $3,000 in cash. Appellant told the officers that the cash came from the sale of his car, but he was unable to provide documentation regarding the transaction. The
next day, appellant’s parole officer was informed by law enforcement
about the traffic stop. Appellant also contacted the parole officer that day, as required by his parole release conditions, and told him of the contact with law enforcement. The parole officer thought it “very odd” that appellant, with a modestly paying job, would carry $3,000 in cash with no documentation to explain the source of the income. Based on the discovery of the cash and the parole officer’s knowledge of the 2006 search, the parole officer determined that “there was a strong possibility” that appellant’s apartment contained contraband. The parole officer, accompanied by three plain clothes police officers, went to appellant’s apartment and knocked on the door, but appellant was not there. The parole officer then went to the restaurant where appellant worked as a cook, but he was unable to speak with him because the restaurant wa
s busy. The parole officer returned to appellant’s apartment, where the officers remained, and waited for appellant to return.

Around midnight, appellant was dropped off at home by a co-worker and found the parole officer and the police officers waiting for him in an alley behind his apartment. Appellant was handcuffed and searched, during which approximately $2,600 in cash was found on appellant, and appellant’s apartment key was removed from his pocket.
The parole officer then directed everyone to enter appellant’s apartment and used appellant’s key to unlock the front door of the apartment. After entering the apartment, the parole officer with all three police officers present asked appellant about the traffic stop and the large amount of cash he had been carrying. Appellant told the parole officer that he had sold his car to a man from the Mille Lacs/Hinckley area and knew the buyer’s first name but not his last. Appellant could not provide a receipt or any other documentation regarding the sale.

At this point, the parole officer explained his concerns about the stop and the cash appellant had been carrying and told appellant he wanted to conduct a compliance search of the apartment. The parole officer testified that he then asked appellant for consent to search the apartment. The parole officer further testified that appellant “was silent. He did not say
no, he did not say yes.” One of the officers escorted appellant to the bathroom and stayed with him for the duration of the search. During t
he search, a pistol wrapped in a bandana was found under the kitchen sink and suspected methamphetamine and drug paraphernalia were located
on top of the kitchen cabinets. These items were seized and inventoried.
The state charged appellant with possession of a firearm by a felon, in violation of Minn. Stat. § 624.713, subd. 1 (Supp. 2009), and two counts of second degree possession or sale of methamphetamine, in violation of Minn. Stat. § 152.022, subds. 1, 2 (2008).

Appellant moved to suppress the evidence of the firearm and drugs, claiming that he did not consent to the search, that the parole officer who authorized and conducted the search lacked reasonable suspicion, and the search was pretextual. The district court denied appellant’s motion to suppress, calling the decision “a very close case.”

The district court applied two distinct tests to its analysis of whether the agents conducted a valid search: the special needs test under Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164(1987), and the totality of the circumstances test under State v. Anderson, 733 N.W.2d 128 (Minn. 2007)
(citing United States v. Knights, 534 U.S. 112, 122 S. Ct. 587 (2001)). Under both, the district court determined that the search was supported by reasonable suspicion and therefore valid.

Appellant waived his right to a jury trial and agreed to a bench trial on stipulated facts. The district court found appellant guilty of the firearms offense and one count of possession of methamphetamine and sentenced him to concurrent executed prison terms of 60 months for the gun offense and 100 months for the drug offense. This appeal follows.

ISSUE

Did the district court err by not suppressing evidence discovered during the warrantless search of appellant’s residence on the ground that the officers lacked reasonable suspicion?

ANALYSIS

A district court’s ruling on constitutional questions involving searches and
seizures is reviewed de novo. Anderson, 733 N.W.2d at136. We review
the district court’s factual findings for clear error. Id. Appellant argues that the district court erred by denying his motion to suppress the evidence discovered during the warrantless search because his parole officer lacked reasonable suspicion of wrongdoing.

An individual’s right to be free from unreasonable searches and seizures is guaranteed by the Fourth Amendment to the United States Constitution and Article I, Section 10, of the Minnesota Constitution. The Fourth Amendment is a personal right, the protection of which may be invoked by showing that a person “has an expectation of privacy in the place searched, and that his expectation is reasonable.” Minnesota v. Carter
, 525 U.S. 83, 88, 119 S.Ct. 469, 472 (1998). The Minnesota Supreme Court has held that probationers have a diminished expectation of privacy, and, accordingly, their homes may be searched without a warrant as long as a valid condition of probation exists and authorities have reasonable suspicion of criminal conduct. Anderson, 733 N.W.2d at 139–40. But Minnesota courts have not addressed whether an appellant’s status as a
parolee similarly diminishes the expectation of privacy and likewise permits a warrantless search when police officers can establish reasonable suspicion or whether police officers need any suspicion at all.

Respondent asserts that a suspicionless search of a parolee’s home is permitted, relying on Samson v. California, 547 U.S. 843, 126 S. Ct. 2193 (2006). Samson and the instant case share factual similarities, but Samson differs substantively. In Samson, the applicable statute stated that a parolee “shall agree in writing to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause.” Id. at 846, 126 S. Ct. at 2196 (citing Cal. Penal Code Ann. §3067(a) (West 2000)). The parole search condition imposed under Minnesota law states that “the offender shall submit at any time to an Appellant does not dispute the validity of his parole conditions. Unannounced search of the offender’s person, vehicle, or premises.” Minn. Stat. §244.14, subd. 4 (2008). Unlike the search condition recited in California law, appellant’s search condition pursuant to Minnesota law contains no language explicitly eliminating suspicion or cause in connection with the search of a parolee. And although respondent suggests that the “at any time” language in Minn. Stat. § 244.14, subd. 4, allows a suspicionless search, in our view, the “at any time” language merely provides a temporal condition, allowing a search at any point during the day, such as the search that occurred here shortly after midnight.

Accordingly, Samson’s authorization of a suspicionless search does not
Apply here. Therefore, as in Anderson, we begin by balancing the parolee’s right to privacy against any legitimate government interests to determine if reasonable suspicion, rather than a warrant and probable cause, is required to search a parolee’s home. Anderson, 733 N.W.2d at 140. In doing so, we note that appellant’s expectation of privacy was diminished simply by his status as a parolee, just as a probationer’s expectation of privacy is diminished by his status as a probationer. Id.
at 139–40; see also Samson, 547 U.S. at 850, 126 S. Ct. at 2198 (“[P]arolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment.”). Additionally, it is undisputed that appellant signed the conditions of the state’s reliance on State v. Bartylla, 755 N.W.2d 8 (Minn. 2008), is likewise
unavailing. Citing Samson, Bartylla held that the warrantless, suspicionless collection of DNA as a result of a prior felony conviction did not violate the Fourth Amendment. Id. at 17–19. Notably, Bartylla involved an ncarcerated person rather than a conditional releasee. And nothing in Bartylla suggests that its holding is applicable to other, more intrusive suspicionless searches, such as the search of a home.

Defendant’s release, which stated that he would “submit at any time to an unannounced visit and/or search of the offender’s person, vehicle or premises by the agent/designee.” By agreeing to this condition of parole, appellant diminished his reasonable expectation of privacy. Knights, 534 U.S. at 119–20, 122 S. Ct. at 591–92; Anderson, 733 N.W.2d at 139.
And, as with probationers, the state has a legitimate, substantial interest in ensuring that parolees abide by the terms of parole and “protecting potential victims from illegal conduct” the parolee may commit. Anderson, 733 N.W.2d at 140; see also Samson, 547 U.S. at 844, 126 S.Ct. at 2195 (“A State has an ‘overwhelming interest’ in supervising parolees because ‘parolees . . . are more likely to commit future criminal offenses.’” (quotation omitted)).

Accordingly, we hold that these legitimate government interests extend to parolees and probationers alike and conclude that the search of a parolee’s home requires only reasonable suspicion. Therefore, a warrantless search of appellant’s apartment was lawful if reasonable suspicion of criminal conduct can be established.

Reasonable suspicion requires specific, articulable facts that, taken together with rational inferences from the facts, reasonably warrant the intrusion at issue. State v. Davis, 732 N.W.2d 173, 182 (Minn. 2007). The showing required is not high, but it requires “more than an unarticulated hunch” and the ability of an officer “to point to something that objectively supports the suspicion at issue.” Id. (quotation omitted). In determining whether reasonable suspicion exists, we weigh the totality of the circumstances, which may include otherwise innocent factors. State v. Martinson, 581 N.W.2d 846, 852 (Minn. 1998). The district court determined that the search of appellant’s apartment was based on
“more than an unarticulated hunch” and was therefore supported by reasonable suspicion.

The district court identified four facts to support its determination: (1) the parole officer knew that appellant, as a parolee, had recently been placed
on a reduced supervision status; (2) the parole officer knew that appellant possessed a significant amount of cash and had a “thin” explanation for why he possessed it; (3) the parole officer knew of appellant’s limited financial means; and (4) the parole officer knew that, when stopped, appellant was with an individual who had an outstanding warrant.

Appellant argues that these four factors separately and collectively point to innocent behavior that cannot give rise to reasonable suspicion. But individual factors consistent with innocent behavior may, when taken
together, amount to reasonable suspicion. Id. (citing Reid v. Georgia, 448 U.S. 438, 441, 100 S.Ct. 2752, 2754 (1980) (stating circumstances could arise where innocent factors together may justify suspicion that criminal activity was afoot)).
Appellant first argues that, absent other indications of wrongdoing, possessing a large amount of cash does not establish reasonable suspicion. Appellant contends that the two cases cited by the district court on the cash possession factor, United States v. Johnigan, 90 F.3d 1332 (8th Cir. 1996) and United States v. Stephenson, 924 F.2d 753 (8th Cir. 1991) are inapposite. In Stephenson, appellant argues, possession of cash was not the sole reason upon which the district court determined that reasonable suspicion existed. Stephenson, 924 F.2d at 759. Though true, this observation actually supports the district court’s reasoning because the district court here, likewise, did not rely solely on 10 the possession of cash to support its determination that the officers had reasonable suspicion for the search.

In its order, the district court stated that “possessing a large quantity of cash without an adequate explanation, in light of the surrounding circumstances, is sufficient to establish reasonable suspicion.” (Emphasis added.) Here, the surrounding circumstances included appellant’s recent change in supervision status, his lack of documentation for the large amount of money he possessed, and his previous parole violation for possessing drugs and a firearm.

Appellant is correct, however, that the district court’s reliance on Johnigan
was misplaced because reasonable suspicion in Johnigan was based on the suspect’s outstanding warrants, not the cash later found in a search incident to arrest. Johnigan, 90 F.3d at 1336. On its own, the possession of
$3,000 may be an innocent circumstance, but when considered as part of
the totality of the circumstances, it supports the district court’s finding that the parole officer had reasonable suspicion for the warrantless search.

Second, appellant argues that his status as a parolee and his criminal history, on their own, do not give rise to reasonable suspicion. Specifically, appellant argues that all parolees have criminal records and to allow criminal history to be a basis for reasonable suspicion would result in unlimited warrantless searches in the homes of parolees.

Appellant’s argument has some merit, but this record persuades us that appellant’s argument nevertheless fails. We note first that the district court’s rationale was not based on appellant’s criminal history per se. Rather, the district court supported its reasonable-suspicion determination based on the change in appellant’s supervisory status, not his criminal history. And although the parole officer did rely on appellant’s history regarding the 2006 search and his subsequent conviction, the parole officer’s knowledge of appellant’s 2006 parole violation was also information “that objectively supports” the parole officer’s suspicion that criminal activity was afoot. Davis, 732 N.W.2d at 182. Third, appellant argues that the fact that appellant was in the presence of an individual with an outstanding warrant, on its own, does not indicate that appellant was engaged in criminal activity.

Appellant notes that suspicion must be particularized to the suspect and
that association with a person previously engaged in criminal activity does
not support reasonable suspicion. Anderson, 733 N.W.2d at 138 (quotation omitted); State v. Diede, 795 N.W.2d 836, 844 (Minn. 2011); see also State v. Varnado, 582 N.W.2d 886, 890 (Minn. 1998) (holding that mere association with suspected drug dealer, including driving dealer’s car, did not provide reasonable basis to suspect person may be armed and dangerous). Appellant asserts that, though his companion at the time of the stop in Carlton County had an outstanding warrant, there was no indication that appellant was engaged in criminal activity. Appellant’s argument is persuasive because our supreme court has held that particularized suspicion of appellant’s criminal activity is required. State v. Martinson, 581 N.W.2d at 850 (stating that reasonable suspicion requires “a particularized and objective basis for suspecting the person . . . of criminal activity”) (quotations omitted). But even discounting this factor, based on the totality of the circumstances, we conclude that the search was supported by reasonable suspicion. Fourth, appellant argues that his limited financial means should not be used to support reasonable suspicion. Appellant provides no caselaw to support this argument.
He simply asserts that he provided a plausible explanation for being in possession of the cash—the sale of his car—which was corroborated by the fact that his car was not parked at his home when officers arrived, and appellant was later dropped off by a coworker. But appellant neglects to mention that he could not provide the last name of the purchaser or verify the sale of the car with documentation of any kind. Appellant also asserts a policy argument, noting that if reasonable suspicion can be predicated upon limited financial means, many innocent people of limited means will be implicated. This argument again mistakenly presumes that appellant’s limited means is viewed in isolation, when, in fact, it is but one part of a totality-of-the-circumstances analysis.

We conclude that ample reasonable suspicion existed to conduct a search of appellant’s home, given that the parole officer knew that appellant possessed a large amount of cash unsupported by documentation, even though he held a low-paying job, and had previously violated his parole by possessing drugs and a firearm. Because we conclude that reasonable suspicion existed to search appellant’s apartment, we need not reach appellant’s consent argument.

Appellant additionally argues that his right against warrantless searches was violated under the state constitution. Courts look to the state Constitution as a basis for individual rights “with restraint and some delicacy,” particularly when the right at stake is guaranteed by the same language in the federal constitution. Bartylla, 755 N.W.2d at 18; Anderson, 733 N.W.2d at 140 (quotation omitted). Bartylla and Anderson deemed the
federal precedent on warrantless searches as adequate protection of the basic rights and liberties of state citizens and not a radical departure from Fourth Amendment precedent. 13 Bartylla, 755 N.W.2d at 19; Anderson, 733 N.W.2d at 140. The same reasoning applies here, eliminating the need for a separate analysis under the state constitution.

D E C I S I O N

Because appellant was a parolee when officers searched his home and the search was conducted pursuant to a condition of parole and supported by reasonable suspicion, the district court did not err when it refused to suppress the firearms, drugs, and drug paraphernalia that were seized in the search of appellant’s home.

Affirmed.

CS-1
ROSS, Judge (concurring specially)

I respectfully disagree with the majority’s declaration that the reasonable suspicion standard applies to searches of parolees, and so I write separately, concurring only in the result. The United States Supreme Court’s black-letter holding in Samson v. California seems to provide the unambiguous standard that we must apply to Heaton’s Fourth Amendment challenge: “[W]e conclude that the Fourth Amendment does not prohibit a
police officer from conducting a suspicionless search of a parolee.” 547 U.S. 843, 857, 126 S. Ct. 2193, 2202 (2006). We should follow that holding.

I believe that two mistaken premises have led the majority to its mistaken conclusion that Samson does not apply to measure the constitutionality of the parolee search in this case. The majority first mistakenly adopts the reasonable suspicion standard by assuming that State v. Anderson, 733 N.W.2d 128 (Minn. 2007), is more factually similar to this case than Samson. I believe that the assumption is wrong. Samson involved the
suspicionless search of a parolee who was on supervised release from prison while serving a sentence for possession of a firearm as a felon. 547 U.S. at 846, 126 S.Ct. at 2196. This case identically involves the suspicionless search of a parolee who was on supervised release from prison while serving a sentence for possession of a firearm as a felon. In contrast to these mirror-image cases, Anderson involved the search of a probationer, not a parolee, 733 N.W.2d at 131, and, as the Samson court explained, a parolee has less of an expectation of privacy for Fourth Amendment search purposes than does a probationer. Samson, 547 U.S. at 850, 126 S. Ct. at 2198 (“On this continuum, parolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment.”).

The majority’s second mistake is that it renders significant what seems to be an insignificant difference between the parolee-release agreement in Samson and the similar agreement in this case. In Samson, the applicable parole agreement provided that the parolee was required “to be subject to search or seizure by a parole officer or other peace officer at any time . . . with or without a search warrant and with or without cause.” 547 U.S. at 846, 126 S. Ct. at 2196 (quotation omitted). Similarly in this case, consistent with state statutory and administrative law, Heaton’s parole agreement acknowledged that he “will submit at any time to an unannounced visit and/or search of [his] person, vehicle, or premises by the agent/designee.” It is true, as Heaton and the majority point out, that, unlike the parole agreement in Samson, Heaton’s agreement here did not expressly include the words “with or without cause.” But this is merely a semantic, not substantive, difference. The difference between having to
“submit . . . to” an “unannounced search” occurring “any time” and having to be “subject to” a “search . . . with or without cause” occurring “at any time” is not constitutionally material; each provision delivers the same obliterating blow to any reasonable parolee’s expectation of privacy. This is because each informs the parolee that he is subject to an unanticipated search at any time, and the suspicionless nature of that potential search is just as implicitly clear under the Minnesota language as it is explicitly clear under Samson’s California language. “Anytime” means anytime; and it cannot really be anytime if it is limited only to those times when reasonable suspicion exists.

When a misdemeanor in State Court might be a Felony in Federal Court

What may be considered a misdemeanor in State court may not be considered as such in Federal Court. Client’s are often shocked when they learn that offenses they thought were minor in State Court have a dramatic effect when sentenced in Federal Court. In the Case of United States v. Coleman, a misdemeanor conviction in State Court turned out to be a considered a felony for sentencing purposes in Federal Court and gave the Defendant a career offender status.

If would like to read more on this case, please see the summary and complete decision posted below. See the rest of my site to see how I can help your situation.

UNITED STATES v. COLEMAN (3-30-2011)

Fact Summary:

Defendant Coleman appealed his sentence for heroin possession and distribution conviction after entering a guilty plea. At sentencing, Defendant Coleman received an enhancement for a State misdemeanor offense that he believed should not have been counted as a qualifying felony under the career offender Sentencing Guidelines.

Defendant Coleman argued that the Sentencing Commission exceeded its statutory authority by not using the “violent felony” convictions definition from Armed Career Criminal Act.

The Federal Court of Appeals Ruled that Congress did not tell Commission how to define “felony” in setting higher Guidelines range for certain felony recidivists. The Federal Court of Appeals found there was a presumption of reasonableness to sentence in middle of Guidelines range and affirmed the Sentence.

Below is the Complete Decision

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 10-1498
___________
United States of America, * Appellee, *Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Herbert Lee Coleman, *
*
Appellant. *
___________
Submitted: October 18, 2010
Filed: March 30, 2011
___________
Before SMITH, COLLOTON, and SHEPHERD, Circuit Judges.
___________
SHEPHERD, Circuit Judge.Herbert Lee Coleman appeals from his sentence of 170 months imprisonment imposed after his conviction for conspiracy
to distribute heroin and distribution of heroin. See 21 U.S.C. §§ 841, 846. Coleman contends the district court procedurally erred and imposed an unreasonable sentence. We affirm.

Coleman pled guilty. At his sentencing hearing, the district court calculated a base offense level of 26 and a criminal history category of III. The district court applied the career offender enhancements contained in the United States Sentencing Coleman professes to challenge the career offender Guidelines definition of felony on substantive reasonableness grounds
. Because Coleman effectively argues that the district court incorrectly app
lied the career offender Guidelines range, we construe his argument as one
of procedural error. See United States v. Feemster , 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (describing how procedural error includes
improper application of the Guidelines).
-2-
Guidelines section 4B1.1 and increased Coleman’s offense level to 32 and his criminal history category to VI. The district court subtracted three offense levels for acceptance of responsibility. With an offense level of 29 and a criminal history category of VI, Coleman’s Guidelines range was 151 to 188 months imprisonment. The district court sentenced Coleman to 170 months imprisonment. Coleman argues that the district court erred by treating Coleman’s state misdemeanor conviction that was punishable by imprisonment for less than two years as a qualifying felony under the career offender Sentencing Guidelines.

Acknowledging that the district court correctly applied the definition of “prior felonyconviction” contained in section 4B1.2 of the Sentencing Guidelines, Coleman contends the Sentencing Commission exceeded
its statutory mandate in section 4B1.2 by not using the definition for qualifying “violent felony” convictions from the Armed
Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B).

According to Coleman, if the Sentencing Commission had given “prior
felony conviction” the definition of “violent felony” from the ACCA, his misdemeanor conviction is not a qualifying felony because “violent felony” only includes state misdemeanor convictions punishable by imprisonment for more than two years. We review the district court’s application of the Sentencing Guidelines de novo. United States v. Daniels, 625 F.3d
529, 534 (8th Cir. 2010).

We conclude that the Sentencing Commission acted well within its statutory
authority in defining “prior felony conviction” for purposes of the career offender Guidelines differently than “violent felony” under the ACCA. Congress directed the Sentencing Commission to set higher Guidelines ranges for certain felony recidivists, 28 U.S.C. § 994(h), but did not specify how the Commission should define “felony.”

Accordingly, the Commission was free to define “prior felony conviction” for purposes of the career offender Guidelines as an “adult federal or state conviction for an offense punishable by death or imprisonment for a term exceeding one year.”United States Sentencing Commission, Guidelines Manual, §4B1.2, comment. (n.1). Although Coleman is right that the definitions of certain terms in section 4B1.2 andthe Armed Career Criminal Act are used interchangeably, United States v. Craig, 630 F.3d 717, 723 (8th Cir. 2011), there is no basis for concluding that the statutory definitions from the ACCA somehow limit the Sentencing Commission’s statutory authority under section 994(h), United States v. Ross, 613 F.3d 805, 809-10 (8th Cir.
2010) (recognizing distinctions between the definitions in §4B1.1 and §924(e)).

Thus, because the district court correctly applied the definition of a prior felony conviction from section 4B1.2, it properly determined that Coleman should be sentenced as a career offender. Coleman also argues that no presumption of reasonableness applies to a sentence imposed under the career offender Guidelines and that his sentence was substantively unreasonable. Coleman reasons that without the presumption, the district court abused its discretion in not varying downward based on his minor
convictions and the lack of empirical evidence supporting an enhanced sentence for career offenders. We review the substantive reasonableness of a sentence under a “deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007). “Where, as here, the sentence imposed
is within the advisory guideline range,we accord it a presumption of reasonableness.” United States v. Bauer, 626 F.3d1004, 1010 (8th Cir. 2010).

Coleman complains that the applicable Sentencing Guideline, U.S.S.G. §4B1.1, should not be accorded a presumption of reasonableness because it is the product of congressional direction in the Sentencing Reform Act, 28 U.S.C. § 994(h), not the Sentencing Commission’s application of empirical data and national experience. We apply a presumption of reasonableness to a within-Guidelines-range sentence because it “recognizes the real-world circumstance that when the judge’s discretionary decision accords with the Commission’s view of the appropriate application of § 3553(a) in the mine run of cases, it is probable that the sentence is reasonable.” Rita v. United States, 551 U.S. 338, 350-51 (2007). We have extended this logic to Guideline sections that are “the product of congressional direction rather than the empirical approach described by Rita” because “where a sentencing judge agrees with Congress, then the resulting sentence is also probably within the range of reasonableness.” United States v. Kiderlen, 569 F.3d 58, 369 (8th Cir. 2009)(discussing U.S.S.G. §2G2.2).

Although the presumption of reasonableness applies, even without it we easily conclude that the district court selected a reasonable sentence. In selecting Coleman’s sentence, the district court explained that it had considered all of the factors in section 3553(a), cited Coleman’s complete lack of gainful employment, and took note of Coleman’s cooperation upon arrest. The district court disagreed with Coleman’s description of his criminal history as minor and instead characterized it as extensive and justifying the career offender enhancement. The district court found that a substantial sentence was necessary to afford adequate deterrence, to protect the public, to avoid unwarranted sentencing disparities, and to further the congressional intent of severely sentencing career offenders. It concluded, “[T]he Guideline sentencing system adequately addresses the circumstances of this defendant and the sentencing range is reasonable.” The district court permissibly exercised its discretion to select a sentence in the middle of the advisory Guidelines range.

Finally, Coleman’s argument that the career offender Guidelines are unsupported by empirical evidence is not an issue of substantive reasonableness and not properly made to this court.United States v. Talamantes , 620 F.3d 901, 902 (8thCir. 2010). To the extent the district court could have varied from the career offender Guidelines based on a policy disagreement, Spears v. United States, 129 S. Ct. 840, 843-44 (2009), it was not required to do so, Talamantes, 620 F.3d at 902.

Accordingly, we affirm the judgment of the district court.

Urine samples in Minnesota DWI and Missouri v. McNeely link

The Supreme Court Case Missouri v. McNeely has generated a lot of discussion about Driving Under the Influence cases lately. The topic of when a search warrant will be required in all cases before the taking of a blood, breath or urine sample is currently being debated now that the United States Supreme Court has ruled on Missouri v. McNeely. What effect McNeely will have on Minnesota DWI laws will be determined in the future.

However, many other issues have already been ruled upon regarding DWI laws in Minnesota. One Issue is the first voiding in a urine test. The question was whether this first voiding of urine is an accurate reflection of a person’s blood alcohol content, or is this more of a pooling that has not affected the person’s intoxication level? In the case below, the Minnesota Supreme Court ruled that the intoxication effect on the person is not the proper question, but the law only asks for proof of a person’s urine content.

If you have any questions about your DWI case, please give me a call at 651-200-3484, or see my video as to how I might be able to help you with your other cases.

For a further reading on Missouri v. McNeely, you can use this web address for the complete United States Supreme Court case decision: http://www.supremecourt.gov/opinions/12pdf/11-1425_cb8e.pdf

State v Tanksley (SUP CT, 02-08-2012, A10-0392, Hennepin Co)

First Void Urine Test, Correlation to Blood Alcohol Irrelevant.

The Defendant was convicted of Driving While Intoxicated based on a urine test showing 0.13. The State charged the Defendant with driving under influence and with more than ,08 within 2 hours of driving.

Before trial, The Defendant moved to suppress the urine test and argued for a Frye-Mack hearing stating his first void urine sample and this is an unreliable method of showing blood alcohol. The trial court denied the motion and the Defendant was convicted in a stipulated facts trial.

The Supreme Court analyzes the first question as to whether the correlation
between first void urine testing and blood alcohol concentration is relevant. Court holds that this evidence irrelevant because the Minnesota Statute only requires
proof of urine alcohol concentration, not as to whether a first voiding is more accurate in determining blood alcohol concentration than a second voiding. The Minnesota Supreme Court states that this is analogous to not allowing a defendant to introduce evidence he was not impaired in a charge of driving with a certain alcohol concentration. Therefore, the Minnesota Court does not consider any argument that this method of testing does not reveal a true or accurate alcohol concentration.

Conviction affirmed.

Drug Check Point Ahead

Exiting off the Interstate after a Drug Check Point sign is not probable Cause to Stop a Motor Vehicle.

In Federal Court the Federal Magistrate handles the preliminary issues before trial such as detention and evidentiary suppression issues. After a hearing, where testimony may be taken, the Federal Magistrate then makes a report and recommendations to the Federal District Court Judge as to what the outcomes should be according to the Federal Magistrate. After this Report and Recommendation, the Parties may make written objections. The Federal District Court then makes a Decision on whether to accept the Report and Recommendations or Reject these. After trial, if properly preserved, these issues may then be appealed to the Federal Court of Appeals.

In the following case, officers set up a fake checkpoint. This checkpoint did not actually exist. Instead, the officers put up a sign warning drivers that a checkpoint for drugs existed ahead. This sign was put up just before an exit off the Interstate. When a driver exited the Interstate, the officers made a presumption that the car might have drugs in it.

This case is important for two reasons, although the officers were correct as it relates to this car – there were drugs in the car – the idea that an officer, or government official, can stop a citizen without probable cause of a crime is simply illegal. Citizens are presumed innocent. The government can’t invade the citizen’s expectation of privacy to proceed in life without government involvement unless the government (police officer) has probable cause that a crime is being committed. Simply exiting the road after a sign saying checkpoint ahead, does not establish the objective facts necessary for a reasonable belief that the person is committing a crime.

The second reason is that this case shows that the government bears the burden, responsibility, for establishing the proper and objective facts that would allow them to invade the Constitutional Rights of a citizen – including a citizen that may be committing a crime. The Constitution does not look to the ends to determine if the Officer was correct, but looks to the means used to arrive at the ends.

United States v. Ronald Prokupek and United States v. Christine App. from Dist. of Neb.

Fact Summary:

Officers set up a fake drug checkpoint on United States Interstate 80 going through Nebreska. Officers set up a sign that said there was a drug checkpoint ahead. The State Troopers then stationed themselves at the next exit after the sign.

Defendants Prokupek and McGlothen took that next exit after the sign and turned on to a country road. The Troopers, on dash cam, stated they stopped the car for failing to signal for a lane change when it exited the highway.

After the stop, a drug dog arrived a few minutes later. The Dog walked around car several times and alerted near driver’s door window. Officers searched the Defendant’s vehicle and found 151 grams of methamphetamine in the center armrest compartment.

Defendants Prokupek and McGlothen were subsequently charged with Possession With Intent to Distribute methamphetamine. Defendants Prokupek and McGlothen filed a motion to suppress the evidence found in the motor vehicle alleging the stop lacked probable cause and the drug dog’s actions did not provide probable cause because the dog was not properly trained and did not provide sufficient indication drugs were present.

At the suppression hearing, the officers testified that the probable cause for the stop of Defendant’s vehicle was the failure to signal the turn onto the country road. Defendant Prokupek’s then had a chance to cross-examine the officer. During the cross examination, the Officer admitted that he did not see the car pull off highway. However, the Magistrate found the Trooper’s testimony about the failure to use a turn signal credible and denied motion.

Both Defendant Prokupek and Defendant McGolothen objected to the Magistrate’s Report and Recommendation saying officer’s testimony was not credible. The Federal District Court adopted the Magistrate’s Report and Recommendation, but
did not adopt the finding that there was a failure to signal onto country road.

Defendant Prokupek and Defendant McGlothen subsequently entered conditional pleas of guilty allowing them to appeal The Federal District’s Decision not to suppress the evidence. Defendant Prokupek was sentenced to 60 months and Defendant McGlothen was sentenced to 18 months.

Defendant Prokupek and McGlothen appealed the denial of their suppression issues. At oral argument, the Government conceded that probable cause could not be based on any failure to signal the exit from interstate on to the exit ramp because the officer who made the stop did not see car.

The Federal Court of Appeals remanded this issue to the Federal District Court to “clarify its finding that Prokupek failed to signal at one of the two described places.” The Government filed a motion to reopen the suppression hearing and allow for additional testimony. The Federal District Court denied the Government’s motion and then entered the finding that the officer’s testimony that they stopped the car because it failed to signal a turn onto the country road credible. The Federal District Court also found that the officer’s “Videotaped statement” was an “unintentional misstatement.” The Federal Court of Appeals then made the following Decision:

Issues:

(1) Probable Cause for the Car Stop

a. Prokupek and McGlothen argued

1. The Finding that the traffic violation occurred is clearly
erroneous based upon the officer’s testimony.

2. The Statement that the driver failed to signal his turn on to a country road is
contradicted by dash cam.

a. The 8th Circuit Federal Court of Appeals noted:

1. The Court has previously held that reasonable suspicion for a traffic
stop cannot be based solely on fact that a driver exits an interstate after
seeing a sign indicating that a drug checkpoint lies ahead — U.S. v. Carpenter (8th Cir. 2006);

2. However, a traffic stop pursuant to a ruse checkpoint
does not violate the 4th Amendment of the Constitution if the driver commits traffic violation when exiting interstate.

3. The Court agrees that the officer’s statements are contradictory in this case.

a. There is no evidence in record that supports finding that
this is unintentional misstatement. That burden lies with the government.

b. Therefore, the Finding that the driver failed to signal turning onto the exit is clearly erroneous.

c. For the same reasons, the Finding that the driver failed to signal onto a country road is also clearly erroneous.

d. The Evidence is suppressed.

Is This How Ma Barker Got Started?

People are often amazed to find out what they did in the past that may not be considered illegal, or even minor and unrelated to a current charge, can be used as evidence in a current trial by the prosecution. One such scenario is Federal Rule of Evidence 404. This Rule deals with character and acts of an accused. The general rule is that a person’s character or a trait of his character can’t be used at the instant trial to prove that because he acted that way in the past, he must have acted that in the current accusations. Of course, as with everything else, there are exceptions. To see how exceptions were applied in one case where a son taught mom how to shoot a machine gun read the case below

One exception is if the accused offers up a particular trait. Once the accused brings his character into play, then evidence showing this claim not to be true, may be heard by the jury.

Another exception includes matters that include not only previous crimes, but also non criminal acts that are considered wrongs or bad acts. In this instance, again, this information may not be used to prove the character of the person in order to show action in conformity therewith. However, it may be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake.

Such scenarios are outlined in the case below. In this case, the Defendant chose to video tape himself showing mom how to shoot a machine gun. While this act in itself may not have been a crime, the Court said the video could show the jury the Defendant’s motive to possess, intent to posses, his plan to possess, his knowledge to possess, his lack of mistake in knowing what was possessed and his identity toward the possession of the machine gun.

The Defendant chose to take the stand and raised his character as a proud military person protecting his country as character for the jury to consider before passing judgment of guilty or not guilty. Once this door was opened, the government prosecutor was then able to bring up the Defendant’s dishonorable Discharge. This is an example as to why a Defendant should think long and hard before ever waiving their 5th Amendment Rights to Remain Silent and choose to testify at their trial.

United States v. Guy Allen Op.
App. from E.D. Mo.

Fact Summary: A Federal Jury convicted Defendant Allen of one count of possession of illegal machine guns. The Federal District Court in Missouri sentenced defendant Allen to 24 months in Federal Prison.

Defendant Allen Appealed and argues that the Federal District Court erred with its evidentiary ruling at trial by allowing the federal government to show a video of him teaching his mother to fire a machine gun and also to cross-examine him about his military service and discharge.

Issues:

(1) Video Footage

A. The 8th Circuit Federal Court of Appeals Ruled:

1. The Government offered the video under Federal Rule of Evidence 404(b).

2. This court characterizes 404(b) as a rule of inclusion rather than exclusion and will reverse the trial court only when such evidence clearly has no bearing on the issues in the case and was introduced solely to prove defendant’s propensity to commit criminal acts.

3. Evidence is admissible under 404(b) if its:

a. Relevant to a material issue;

b. Similar in kind and not overly remote in time to the crime charged;

c. supported by sufficient evidence;

d. higher in probative value than its prejudicial effect;

4. In this case the video was admissible to show motive, intent, knowledge
or other permissible purposes.

a. Doesn’t matter if the prior act was a crime or not.

(2) Military Service including arrests, charges, subsequent discharge.

a. The 8th Circuit Federal Court of Appeals noted that evidence of character is admissible in criminal cases where the defendant introduces evidence aimed at portraying his own character in a positive light and the prosecution is only
rebutting the inference drawn from such statements.
1. Allen opened the door to being cross examined on his military failings on direct examination by saying he was proud of his military service.

With roomates like this who needs friends

Many times a jury has to determine the credibility of witnesses. This can happen for both lay witnesses and for expert witnesses. See below for for a case that discusses credibility of an expert witness and what federal rule of evidence applies to this evaluation. The Court also discusses what factors are considered for determining constructive possession. If you have any questions, please give me a call at 651-200-3484.

In the case, a roommate thought somebody had burglarized the residence. The roommate then called law enforcement to have them search the house. While searching the house the officers found drugs in the defendant’s room. The defendant was then charged with possession with intent to distribute over 5 grams crack cocaine. The 5 grams was significant because that increased the Defendant’s prison sentence significantly.

At trial, the expert testified that errors in the weighing of the drugs could have resulted in an amount less than 5 grams. In fact, when weighed, the actual amount was under 5 grams. Read the case on my blog to see how the jury was still able to convict the Defendant of over 5 grams.

United States v. Alfred Finch
App. from D. of Neb.

Fact Summary: Officers responded to a possible burglary. The resident, named
Steele, arrived home to find a window pried open and a door “slightly
ajar.” The resident asked officers to check the building for intruders. In one bedroom the officers noticed a plastic bag inside a laundry basket. Inside the bag were 105 small green plastic bags containing crack. There was also a digital scale, .22 caliber bullets and mail addressed to Defendant Alfred Finch. Defendant Finch was Steele’s roommate at the residence. Steele, slept in the bedroom across the hallway from Defendant.

Defendant Finch was indicted by a Grand Jury with Possession With Intent To Distribute more than 5 grams of crack cocaine. Defendant Alfred Finch
went to trial. At trial Finch was convicted of the offense. At trial, Defendant Finch focused his Defense on who really possessed the crack cocaine and also challenged the expert witness who testified as to the weight of the crack cocaine.

The Federal District Court in Nebraska sentenced Defendant Finch to 78 month in Federal Prison.

Issues: Defendant Alfred Finch Appealed his case on the following issues:

(1) On the Sufficiency of Evidence as to possession of the Crack Cocaine.

a. The Federal Court of Appeals 8th Circuits notes that:

1. Possession With Intend to Distribute has 2 elements: (a) possession and (b) intent to distribute.

2. The Possession can be proven as actual possession or constructive possession.

a. Constructive possession occurs when person has dominion over the premises in which the contraband is concealed.

3. There was sufficient evidence that Finch exercised
dominion over the bedroom.

a. Steele testified that he rented house and let Defendant Finch move into the bedroom where the drugs were found.

b. The owner of the house testified that he saw Defendant Finch in that bedroom before.

c. There was mail in the room addressed to Finch.

d. Another person testified that he had purchased
drugs from Finch in that room.

4. Intent can be based on circumstantial evidence such as
drug quantity, packaging, cash, and other relevant evidence.

a. Here there were 105 bags, bullets, a digital
scale and a witness who stated Finch sold to them from the bedroom.

(2) Admissibility of Expert Testimony

a. The Expert used at trial by the government weighed each bag individually and then determined that there was 6.68 grams of crack cocaine. This put the Defendant over the limit of 5 grams for sentencing purposes. This had an effect on the amount of prison time the sentencing guidelines called for.

1. The expert testified that the margin of error on weighing each bag was .03 grams.

2. Finch argued that if the scale was .03 high every time, there could be as little as 3.53 grams because there were 105 bags weighed.

b. At the prosecutor’s request, before trial, the expert emptied each
bag and reweighed it as a whole, the total weight was determined to be 4.28 grams.

1. At trial the Prosecutor attempted to elicit testimony from the expert that testing could have consumed enough drugs in her testing to decrease the amount from over 5 grams to 4.28 grams.

2. Defendant Finch moved to exclude this testimony arguing it was
mere speculation.

a. The Defendant argued to the Federal Court of Appeals that any claim that the expert consumed .76 grams in testing is mere conjecture.

b. The district court allowed this testimony to be heard and considered by the jury.

3. The 8th Circuit Court of Appeals Ruled:

a. The applicable Rule for consideration on the expert is FRE 702.

b. As a general rule, the factual basis of an expert opinion
goes to the credibility of the testimony, not the admissibility. This credibility is for a Jury to decide.

c. The Court determined that that Jury could properly evaluate the credibility of whether amounts were consumed in testing. Therefore the Verdict stands.

Double Jeopardy and Private Searches – “He got weed, He got weed”

Double Jeopardy stands for the principle that a person can’t be convicted for the same crime twice. Sometimes laws are created that involve the exact same action. A conviction for both crimes can have an effect on sentencing and how many years someone may spend in prison.

Below is a case that discusses what the courts look to when considering Double Jeopardy. This case also has a good discussion on when the right to invoke counsel has taken place and when Miranda is necessary.

Miranda is not required for statements taken from people not in custody. In determining custody status, the Courts will look to the objective facts and not the subjective intent of the officers.

Finally, this case also discusses when the 4th Amendment of the Constitution applies for searches and why a search by a private party not acting on the behalf of the government is not governed by the 4th Amendment of the Constitution.

When reading this case, I couldn’t help but think of the Chris Rock video where he plays a man who upsets his girlfriend in the car. When the officers pull them over, the woman starts yelling, “he got weed, he got weed”

United States v. Randall Muhlenbruch
App. from S.D. Iowa

CONVICTION OF RECEIPT AND POSSESSION OF CHILD PORNOGRAPHY BASED
ON SAME ACT VIOLATES DOUBLE JEOPARDY CLAUSE

Factual Summary:

Defendant Muhlenbruch was assaulted by his wife. The wife was ordered to move out of the apartment, but she still stayed. The then Wife claimed she found Child Pornography on her husband’s computer. The wife claims when she confronted Defendant Muhlenbruch he agreed to delete the images but she then convinced him not to do so. When Defendant Muhlenbruch left the home to run errands, the wife had a friend come to the home and copy the Child Pornograpy files onto a CD. The wife’s friend then took the images to the police.

The officers viewed the images and prepared a search warrant. Officers conducted surveillance on the apartment. When Defendant Muhlenbruch and his wife showed up, officers approached Defendant Muhlenbruch. Defendant Muhlenbruch was not placed under arrest but was taken to the police station in the back of a patrol car for questioning. The wife told officers she found the Child Pornography and had friend make copies of it to turn over to the police.

Defendant Muhlenbruch was interrogated and the interrogation was recorded on DVD. Officers said he was free to leave. Defendant Muhlenbruch asked if he needed an attorney. Offices said that was up to him. Muhlenbruch then confessed. After the confession, Defendant Muhlenbruch again asked if he should have an attorney. Finally, Defendant Muhlenbruch asked for a lawyer.

The facts are clear that Defendant Muhlenbruch was not advised of his Miranda rights before his statement was taken. Defendant Muhlenbruch eventually consented to the search of his computer as well. Defendant Muhlenbruch was not arrested and was taken back home.

Defendant Muhlenbruch was indicted by a Grand Jury. Defendant Muhlenbruch filed motions to suppress his statements and the evidence obtained during search of his apartment and the computers hard drive.

The Federal District Court denied the motions. The Federal District Court sentenced Defendant Muhlenbruch to two concurrent 120 month. sentences after jury verdict of guilty on knowingly receiving Child Pornography and knowingly possession Child Pornography.

Issues:

(1) Motion to Suppress Statements and Evidence
a. Defendant Muhlenbruch asserts that his statements should be suppressed because he was nott advised of his Miranda rights and the statements were involuntary.

b. The Federeal 8th Circuit Court of Appeals ruled:

1. Miranda warnings are required when interrogation is initiated by officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.

2. Custody is determined under totality of circumstances. The Court looks to whether a reasonable person in his position would consider his freedom of movement restricted to the degree associated with formal arrest.

3. The focus of the analysis is on the objective circumstances, not the subjective opinions or determinations of the officers.

4. The factors to consider are:

a. whether the suspect was informed he was free to
leave and answering was voluntary;

b. whether the suspect possessed freedom of movement;

c. whether the suspect initiated contact or voluntarily
acquiesced to the statement;

d. whether the strong arm tactics or strategies were
employed by law enforcement;

e. whether the atmosphere of the interview was police dominated;

f. whether the suspect was placed under arrest at end
of questioning.

5. In this case the Federal Court of Appeals Ruled that the Defendant was not in custody.

a. Since he was not in custody there is no need to
provide Miranda and no need to evaluate argument that officers denied his unambiguous request for counsel.

b. Regarding the voluntary nature of his statement, the Federal Court of Appeals 8th Circuit said:
1. A conviction based on involuntary confession, obtained through police coercion violates Due Process and any such conviction must be overturned.

2. A statement is considered involuntary if it was extracted by threats, violence, or express or implied promises sufficient to overbear the Defendant’s will and critically impair his capacity for self-determination.

3. The Court will look at the totality of the ircumstances and the conduct of the officers and characteristics of the accused.

4. In this case, The Federal Court of Appeals 8th Circuit ruled that the confession was voluntary.

a. there was no indication he was sleep deprived or under influence of alcohol thus making him more susceptible to coercion.

6. Regarding the motion to suppress the evidence found on the Computer, the Federal Court of Appeals 8th Circuit ruled-

A . A search by a private citizen is not subject to the
strictures of the 4th Amendment of the Constitution unless the private citizen is acting as a government agent.

B. In order for a citizen to be considered a government agent, the Court looks to:

a. whether the gov’t had knowledge of and
acquiesced in the search;

b. whether the citizen intended to assist law
enforcement to further his own purposes; and

c. whether the citizen acted at the gov’t’s request.

C. In this case, the wife did her own independent investigation and her friend copied the files at the request of the wife, not law enforcement. Therefore, there was no government involvement in the initial search and the 4th Amendment of the Constiution does not apply.

7. The Court then ruled on Double Jeopardy for Possession and Receipt conviction for same images.

a. The 8th Circuit Federal Court of Appeals said:

1. In order to establish a violation of the clause, the Defendant must show he was convicted of two offenses that are in law and fact the same offense.

2. if the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offense or only one is whether each provision
requires a proof of a fact which the other does not.

3. For the analysis, the Court looked to Ball v. U.S. 470 U.S. 856 (1985).

a. The Court determined that Congress did not intend to
punish felons for both possessing and receiving the same firearm under different statutes because proof of illegal receipt of a firearm necessarily includes proof of illegal possession of that weapon.

b. The Federal Court of Appeals in the 9th Circuit in the case of U.S. v. Schales 546 F.3d 965, determined possession of Child Pornography is lesser included offense of receipt of Child Pornography.

4. The 8th Circuit Court of Appeals agreed that that proof of receiving child pornography necessarily includes that of receiving child pornography and therefore the multiple convictions violate double jeopardy.