Category: Miranda

Miranda only required for in custody interviews

One thing our Veterans have done for us is to protect our Right to Remain Silent and our Right to An attorney before speaking to the government. In other countries, you really do not have a choice. You will speak to the government, or you will be taken in and forced to speak. The requirement that the government notify you of your right to an attorney arises out of the Miranda warning. However, Miranda is not required every time law enforcement speaks to a suspect. Instead, Miranda is only required for in custody interviews.
In the case below, Mr. Lowen learned that inviting officers in to his home is not an in custody interview requiring Miranda. There are several factors that go into the analysis as to whether the statement is given while in custody. In this case, the Court Ruled that A reasonable person in defendant’s position would have felt at liberty to terminate the interrogation and cause the officers to leave, and, as a result, defendant was not in custody at the time of his interrogation and his statements,
made without Miranda warnings, were admissible.

U.S. v. LOWEN
647 F.3d 863 (2011)
UNITED STATES of America, Appellee,
v.
Edward Joseph LOWEN, Appellant.
No. 10-3668.
United States Court of Appeals, Eighth Circuit.
Submitted: June 15, 2011.
Filed: July 29, 2011.
Katherine M. Menendez, AFPD, argued, Minneapolis, MN, for Appellant.
James Lackner, AUSA, argued, St. Paul, MN, Kevin Ueland, AUSA, on the brief, Minneapolis, MN, for Appellee.
Before LOKEN, BEAM, and GRUENDER, Circuit Judges.
________________________________________

[ 647 F.3d 865 ]

GRUENDER, Circuit Judge.
A jury found Edward Lowen guilty of one count of bank robbery, a violation of 18 U.S.C. § 2113(a). Lowen appeals, and for the reasons that follow, we affirm.
I. BACKGROUND
On February 26, 2010, a man wearing aviator-style sunglasses, a baseball cap, white tennis shoes, work-style gloves, and a camouflage jacket entered the First National Bank of Walker in Akeley, Minnesota, and approached teller Janet Sheets. The bank’s surveillance camera footage showed the man hand a duffel bag to Sheets while pointing a gun at her. Sheets testified that the man demanded money and said “I’m not kidding.” Sheets placed approximately $2,525 into the duffel bag from her cash drawer and watched the man exit the bank and drive away in a dark blue Chevrolet Tahoe. Lori Robbins and Joyce Farrington, two other employees on duty that day, provided similar accounts of the robber, describing him as wearing a black baseball cap, aviator-style sunglasses, a camouflage jacket, and white tennis shoes.
Seeking tips as to the robber’s identity, law enforcement released a still image of the robber from the bank’s surveillance camera footage to the media. Tammy Jo Eischens, a woman married to Lowen’s ex-wife’s cousin, viewed the surveillance image in the Park Rapids Enterprise newspaper and informed law enforcement, and later testified at trial, that she recognized the man in the image to be Lowen. Eischens had known Lowen for fifteen years and saw him in person three to four times per year, including two weeks prior to the robbery. Law enforcement officers investigating the robbery also discovered that Lowen was the registered owner of a dark blue Chevrolet Tahoe.
Based on these tips, five law enforcement officers, including Investigator Colter Diekmann and Special Agent Chad Museus, traveled to Lowen’s residence in Park Rapids, Minnesota. Upon arriving, the officers noticed a dark blue Chevrolet Tahoe parked in Lowen’s driveway. Investigator Diekmann and Special Agent Museus approached the residence and knocked on the door, but there was no answer. Soon after, Investigator Diekmann and Special Agent Museus approached a man walking near the road leading to Lowen’s residence, identified themselves as law enforcement investigating a bank robbery, and inquired as to the man’s identity. The man confirmed that he was Lowen. Investigator Diekmann asked Lowen if he would speak with law enforcement, to which Lowen responded that he would. After Lowen allowed the officers into his home, Investigator Diekmann and Special Agent Museus questioned Lowen around his dinner table. Lowen denied owning a camouflage jacket or white tennis shoes and admitted that he was unemployed and having financial difficulties. Officers asked Lowen if they could search the Chevrolet Tahoe and his residence, and Lowen agreed to both. Upon searching the vehicle, officers discovered a dark-colored baseball cap, a pair of work-style gloves, and a pair of aviator-style sunglasses. Upon searching the wooded area near Lowen’s home, they also recovered a pair of white tennis shoes.
Based on this evidence, two of the officers left the premises to obtain a search warrant while another officer read Lowen his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Thereafter, Lowen requested the assistance of counsel. Officers executed the search warrant and, from inside of Lowen’s home, seized a photograph of Lowen wearing camouflage clothing, a black fleece duffel bag similar
[ 647 F.3d 866 ]

in appearance to the duffel bag used by the robber to carry the stolen money from the bank, a money order dated March 1, 2010, in the amount of $1,100, and an instruction manual for an air pistol similar in appearance to the weapon used by the robber.
During the investigation that followed, law enforcement officers discovered that, on February 28, Lowen used $1,500 in cash to purchase chips at the Northern Lights Casino in Walker, Minnesota. A casino manager testified that Lowen played blackjack for approximately ten hours on February 28 and March 1. Officers also determined that Lowen had purchased an air pistol on February 15— eleven days before the robbery—at a Wal-Mart store in Park Rapids, Minnesota. The instruction manual recovered at Lowen’s home matched the model Lowen had purchased.
Lowen moved to suppress his statements made during his questioning prior to receiving the Miranda warnings, including his denial that he owned camouflage clothing or white tennis shoes and his admission that he “could use some money.” A magistrate judge1 concluded that Lowen was not in custody at the time of the questioning and recommended denying the motion. The district court2 adopted the magistrate judge’s report and recommendation and denied Lowen’s motion, and Lowen proceeded to trial. At trial, Lowen stipulated that he owed the State of Minnesota $7,713.20. At the conclusion of the Government’s case, Lowen moved for a judgment of acquittal pursuant to Fed. R.Crim.P. 29, and the district court denied the motion. Lowen renewed his motion for judgment of acquittal after the jury was charged, and the district court again denied the motion. The jury found Lowen guilty of one count of bank robbery. The district court sentenced Lowen to 71 months’ imprisonment. Lowen appeals his conviction, challenging the denial of his motion to suppress, the sufficiency of the evidence, and the admission of Sergeant Cory Aukes’s identification testimony.
II. DISCUSSION
A. Motion to Suppress
Lowen first argues that the district court should have suppressed the statements he made to Investigator Diekmann and Special Agent Museus because he was in custody and was not advised of his Miranda rights. “Miranda requires that law enforcement agents provide certain prescribed warnings before conducting an interrogation of a suspect who is in custody.” United States v. New, 491 F.3d 369, 373 (8th Cir.2007). “The Supreme Court in Miranda stated that warnings are required when interrogation is `initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.'” Id. (quoting Miranda, 384 U.S. at 444, 86 S.Ct. 1602). “When reviewing the denial of a motion to suppress, we review the district court’s factual findings for clear error….” United States v. Muhlenbruch, 634 F.3d 987, 995 (8th Cir.2011). “We review de novo the district court’s legal conclusion that [the defendant] was not `in custody’ at the time of his interview.” Id.
The question “whether a suspect is `in custody’ is an objective inquiry.” J.D.B. v. North Carolina, 564 U.S. ___,
[ 647 F.3d 867 ]

131 S.Ct. 2394, 2402, 180 L.Ed.2d 310 (2011). “Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was at liberty to terminate the interrogation and leave,” id. (quoting Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995)), “or in this case, to terminate the interrogation and cause the [officers] to leave,” New, 491 F.3d at 373. “Once the scene is set and the players’ lines and actions are reconstructed, the court must apply an objective test to resolve the ultimate inquiry: was there a formal arrest or restraint on freedom of movement of the degree associated with formal arrest.” J.D.B., 131 S.Ct. at 2402 (quoting Thompson, 516 U.S. at 112, 116 S.Ct. 457); see also United States v. LeBrun, 363 F.3d 715, 720 (8th Cir.2004) (en banc).
“Rather than demarcate a limited set of relevant circumstances, we have required police officers and courts to `examine all of the circumstances surrounding the interrogation.'” J.D.B., 131 S.Ct. at 2402 (quoting Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994)). In the instant case, both the parties and the district court relied heavily on the six non-exclusive factors expounded by our court in United States v. Griffin, 922 F.2d 1343 (8th Cir.1990), for evaluating whether an individual is in custody for purposes of Miranda.3 “There is no requirement… that the Griffin analysis be followed ritualistically in every Miranda case.” United States v. Czichray, 378 F.3d 822, 827 (8th Cir.2004). “When the factors are invoked, it is important to recall that they are not by any means exclusive, and that `custody’ cannot be resolved merely by counting up the number of factors on each side of the balance and rendering a decision accordingly.” Id. at 827. “The ultimate inquiry must always be whether the defendant was restrained as though he were under formal arrest.” Id. at 828; see also LeBrun, 363 F.3d at 720.
Lowen asserts that the district court clearly erred when it made certain factual findings regarding the interrogation. Lowen concedes that he was “not physically restrained” but argues that he was “physically controlled” because Investigator Diekmann and Special Agent Museus determined where Lowen would be questioned and “asked him to strike certain poses for photographs.” We disagree. It is undisputed that Diekmann and Museus asked Lowen if he would speak with them and, later, if they could enter Lowen’s home in order to continue their questioning and that Lowen consented to both of these requests. Although Diekmann and Museus questioned Lowen around his dinner table, Lowen was not confined to any portion of his home during the questioning. Also, the record reveals that
[ 647 F.3d 868 ]

Lowen voluntarily agreed to be photographed. Lowen contends that the district court clearly erred when it determined that officers did not use deceptive techniques because Diekmann and Museus never informed Lowen that he was their only suspect. This determination was not clearly erroneous. The record reveals that Diekmann and Museus informed Lowen that they were investigating the robbery of the First National Bank and that his vehicle and physical description matched that of the robber. As such, the district court did not clearly err when determining the factual setting of the interrogation.
Given these circumstances, we conclude that a reasonable person in Lowen’s position would have felt at liberty to terminate the interrogation and cause the officers to leave. Lowen voluntarily acquiesced to Investigator Diekmann’s and Special Agent Museus’s requests to respond to questioning. Only two of the five officers present questioned Lowen, and the questioning occurred in Lowen’s home. “When a suspect is interrogated in the comfort and familiarity of his home, a court is less likely to find the circumstances custodial.” United States v. Axsom, 289 F.3d 496, 502 (8th Cir.2002). Moreover, Lowen’s freedom of movement was not restrained by handcuffs or any other means. The officers also did not confine Lowen during the questioning and did not arrest him upon the completion of the questioning. Diekmann and Museus’ failure to inform Lowen that he was not under arrest is not dispositive, see United States v. Flores-Sandoval, 474 F.3d 1142, 1147 (8th Cir.2007), as the touchstone of our inquiry remains whether Lowen was restrained as though he were under formal arrest, see LeBrun, 363 F.3d at 720.
In light of the totality of the circumstances surrounding Lowen’s questioning, we agree with the district court that Lowen’s freedom of movement was not restrained to the degree associated with a formal arrest. See J.D.B., 131 S.Ct. at 2402. Thus, he was not in custody at the time he made the relevant statements. See United States v. Lawson, 563 F.3d 750, 753 (8th Cir.2009) (determining that the defendant was not in custody because he “was not restrained, he was interviewed in his own home, … he was not physically threatened, and he was interviewed for less than one hour”). Accordingly, the district court did not err when it denied Lowen’s motion to suppress.
B. Motion for Judgment of Acquittal
Lowen also asserts that the district court erred when it denied his motion for judgment of acquittal pursuant to Fed.R.Crim.P. 29, arguing that the Government presented insufficient evidence on which the jury could find him guilty. “We review the denial of a motion for acquittal de novo.” United States v. Donnell, 596 F.3d 913, 924 (8th Cir.2010) (quoting United States v. Thropay, 394 F.3d 1004, 1005 (8th Cir.2005)), cert. denied, 562 U.S. ___, 131 S.Ct. 994, 178 L.Ed.2d 831 (2011). “Where a party challenges the evidence underlying his conviction, the standard of review is very strict, and the jury’s verdict is not to be lightly overturned.” United States v. Finch, 630 F.3d 1057, 1060 (8th Cir.2011) (quoting United States v. Hayes, 391 F.3d 958, 961 (8th Cir.2004)). “In reviewing the sufficiency of the evidence on appeal, the court views the evidence in the light most favorable to the government, resolving evidentiary conflicts in favor of the government, and accepting all reasonable inferences drawn from the evidence that support the jury’s verdict.” Id. (quoting United States v. Bates, 77 F.3d 1101, 1104-05 (8th Cir.1996)). “[W]e will reverse only if no reasonable jury could have found the defendant guilty beyond a
[ 647 F.3d 869 ]

reasonable doubt.” United States v. Brewer, 624 F.3d 900, 906 (8th Cir.2010) (quoting United States v. McCraney, 612 F.3d 1057, 1063 (8th Cir.2010)), cert. denied, 563 U.S. ___, 131 S.Ct. 1805, 179 L.Ed.2d 670 (2011).
Lowen’s central contention is that the Government failed to present sufficient evidence that he was, in fact, the bank robber because none of the bank tellers was able to positively identify him as the robber, law enforcement did not find the weapon used by the robber or any cash in Lowen’s home, and a number of the articles found in Lowen’s home and vehicle did not match exactly the items worn by the robber. We disagree. Eischens, who had known Lowen for fifteen years and saw Lowen two weeks prior to the robbery, testified that Lowen was the man in the surveillance image. While Lowen contends that Eischens was not credible because she is an employee of the Hubbard County Sheriff’s office and is related through marriage to Lowen’s ex-wife, we have made it clear that a jury’s credibility determinations are “virtually unassailable on appeal,” Brewer, 624 F.3d at 906 (quoting United States v. Nguyen, 608 F.3d 368, 376 (8th Cir.2010)), and “we must presume that the trier of fact resolved any conflicts in favor of the Government,” id. at 906-07 (quoting United States v. Littlewind, 595 F.3d 876, 882 (8th Cir.2010)).
The Government presented additional identity evidence that could lead a reasonable jury to conclude that Lowen was the robber. Lowen’s white tennis shoes, aviator-style sunglasses, work-style gloves, and dark-colored baseball cap all match the attire of the robber described by witnesses. Lowen argues that he “raised substantial questions” regarding whether the clothing worn by the robber matched the clothing recovered from Lowen’s residence and vehicle, but we must assume that the jury resolved these conflicts in favor of the Government. See id. The Government presented to the jury a photograph of Lowen wearing camouflage clothing and a black fleece duffel bag recovered from Lowen’s residence similar in appearance to the duffel bag used by the robber. Moreover, Lowen did not answer truthfully when Diekmann and Museus asked him if he owned camouflage clothing or white tennis shoes. See United States v. Van, 543 F.3d 963, 965 (8th Cir.2008) (“Van’s lie to the police about how long he was in Barthol’s apartment … w[as] additional evidence supporting the jury’s verdict….”). Additionally, the Government presented evidence that Lowen purchased an air pistol similar in appearance to the weapon used in the robbery just eleven days before the robbery occurred and that Lowen spent a total of $2,600 in cash—just $75 more than what the robber stole from the First National Bank—within days of the robbery despite owing more than $7,700 to the state of Minnesota. Finally, the Government showed that Lowen owned a dark blue Chevrolet Tahoe like the vehicle described by witnesses as the one used by the robber to flee the bank. We conclude that the evidence was sufficient for a reasonable jury to conclude that Lowen was guilty of robbing the First National Bank. Consequently, the district court properly denied Lowen’s motion for judgment of acquittal.
C. Admission of Sergeant Aukes’s Testimony
Lowen also argues that the district court abused its discretion by improperly applying Fed.R.Evid. 7014 when it
[ 647 F.3d 870 ]

allowed Sergeant Cory Aukes—a witness called by Lowen—to testify, on cross-examination by the Government, that he believed Lowen “absolutely looks like the person on the videotape.” Sergeant Aukes’s only previous encounter with Lowen was a brief one, while Lowen was in custody awaiting trial. Lowen suggests that the district court abused its broad discretion because Sergeant Aukes had no greater familiarity with Lowen than the jury and had no dealings with the defendant prior to his arrest. See United States v. Cruz, 285 F.3d 692, 700 n. 4 (8th Cir. 2002) (“An identification witness’s testimony must be rationally based on the perception of the witness, and is admissible if there is some basis for concluding that the witness is more likely to correctly identify the defendant from the photograph than is the jury.” (internal citations and quotation marks omitted)).
Assuming, without deciding, that it was error to admit Aukes’s testimony, we conclude that the error was harmless. “An error is harmless if we conclude that no substantial rights of the defendant were affected and that the error did not influence or had only a very slight influence on the verdict.” United States v. Tenerelli, 614 F.3d 764, 771 (8th Cir.2010) (quoting United States v. Eagle, 498 F.3d 885, 888 (8th Cir.2007)), cert. denied, 562 U.S. ___, 131 S.Ct. 1589, 179 L.Ed.2d 488 (2011). “An error in admitting testimony may be harmless if the testimony is corroborated by independent sources, or if it amounts to cumulative evidence on matters already before the jury.” United States v. Melecio-Rodriguez, 231 F.3d 1091, 1094 (8th Cir.2000) (per curiam). In this case, as we have discussed, the Government presented ample identification evidence from independent sources, including the testimony of Eischens, who knew Lowen for fifteen years and saw Lowen two weeks before the robbery, as well as the items of clothing discovered at Lowen’s residence that matched the clothing worn by the robber. Thus, we conclude that Sergeant Aukes’s additional identification was cumulative and had no more than a slight influence on the verdict. Accordingly, any error in admitting Aukes’s testimony was harmless.
III. CONCLUSION
For the foregoing reasons, we affirm Lowen’s conviction.

Cop isn’t exactly Robin Hood

Courts do not take kindly to government officials abusing their powers against citizens. In the case of United States v. Jackson, a police officer learned where thieves would house stolen goods. The officer would then obtain those goods and keep the goods for himself and another officer. Government agents set up a fake stash house for stolen goods. The officer took the bait and was ultimately convicted for stealing government property, the property the government used in the sting. What is noteworthy is that at sentencing the Court increased the officer’s sentence for being in possession of a weapon while committing the theft. Read below to see the case summary and complete opinion.

UNITED STATES v. JACKSON (E.D. Mo., Stohr) (5-9-2011)

Factual Summary: Defendant Jackson was a police officer. Agents received information that Defendant Jackson had been using his authority as
uniformed police officer to seize stolen goods. Then, Defendant Jackson would either keep those items for him, share the goods with another officer and also a finder of the stolen goods. Federal Investigators then set up a sting. The federal investigators caught Defendant Jackson in this sting illegally keeping the property. This amounted to theft. While taking the property, Defendant Jackson had his uniform and duty weapon with him. He was convicted of stealing government property. The government property, was the property used by federal agents in the sting. Defendant Jackson’s sentence was then enhanced for possessing a firearm in
connection with the felony, and for his role in organizing and leading the
theft.

The Federal Court of Appeals affirmed the conviction and sentence, holding an officer having his duty weapon on his person when his uniform is used to show authority in committing a theft satisfies the firearm enhancement. Furthermore, the evidence supported his role as a leader because the information about the original “thief” came to him, he recruited the other officer, and he distributed the stolen goods.

UNITED STATES v. JACKSON
UNITED STATES of America, Appellee, v. Ronald JACKSON, Appellant.
No. 10–2027.
— May 09, 2011
Before WOLLMAN, LOKEN, and SMITH, Circuit Judges.
Hal Goldsmith, AUSA, argued, St. Louis, MO, for Appellee.V. Clyde Cahill, argued, St. Louis, MO, for Appellant.
Ronald Jackson, formerly a police officer with the St. Louis, Missouri, police department, pleaded guilty to the theft of federal-government property, a violation of 18 U.S.C. § 641. At sentencing, the district court,1 among other things, added eight levels to Jackson’s base offense level for his possession of a dangerous weapon—his duty firearm—in connection with the offense. See U.S. Sentencing Guidelines Manual (U.S.S.G.) § 2B1.1(b)(13)(B) (2009). It then added two additional levels for his role in organizing and leading the theft. See U.S.S.G. § 3B 1.1(c). Jackson appeals, arguing that because his firearm played no role in facilitating the offense, and because he was not a leader, but rather was a mere “equal part[y]” with his codefendant (another officer), the adjustments found in §§ 2B 1.1(b)(13)(B) and 3B 1.1(c) do not apply. We affirm.
I.
On July 27, 2009, Jackson was on duty as a police officer when an informant tipped him off that a woman, described in the proceedings below only as “Jane Doe,” was in possession of stolen electronics. Unknown to Jackson, the “tip” had been generated by federal investigators, who suspected that Jackson had been “conduct[ing] police stops of vehicles that were supposedly containing stolen goods, [and] would then seize those items and then split those items with a third party.” Sentencing Tr. at 14:13–20. Their plan was to catch Jackson in the act.
The informant gave Doe’s location to Jackson, and the two agreed that Jackson would find her, seize the electronics, and share some of them with the informant. Jackson, a 30–year officer, contacted his co-defendant Christian Brezill, an officer with only 18 months’ experience, and asked if Brezill would help with the theft of the electronics. Brezill agreed to do so, and the two drove to the location the informant had provided, where they found Doe sitting in her car. After a computer check of her name revealed outstanding warrants for minor traffic violations, the officers arrested Doe, handcuffed her, and placed her in the back of Brezill’s police cruiser. They then searched the trunk of her car, recovering the “stolen” electronics, which they put in the trunk of Brezill’s cruiser. The officers booked Doe on the outstanding traffic warrants, but never charged her with possession of the stolen electronics and never reported their recovery to the police department.
Later, after the end of their shift, Jackson and Brezill met to divide the property. Jackson gave part of his share to the informant, kept an XBox gaming system for himself, and sold the rest for cash; Brezill kept a Wii gaming system and a laptop computer for himself, and sold the rest for cash. The total value of the property, all of which belonged to the United States government, was $1480.35.
Jackson and Brezill both pleaded guilty to theft of federal-government property. See 18 U.S.C. § 641. At Jackson’s sentencing, the district court applied—over Jackson’s objection—two upward adjustments to his base offense level. The first was for Jackson’s possession of a dangerous weapon in connection with the theft. See U.S.S.G. § 2B1.1(b)(13)(B). The second was for Jackson’s role in organizing and leading the offense. See U.S.S.G. § 3B1.1(c). The district court then calculated a total offense level of 15 and sentenced Jackson to 18 months’ imprisonment, the low end of the guidelines range. This appeal followed.
II.
“This court reviews the district court’s construction and application of the sentencing guidelines de novo, and we review its factual findings regarding enhancements for clear error.” United States v. Bastian, 603 F.3d 460, 465 (8th Cir.2010) (citation and quotation marks omitted).
Guidelines § 2B 1.1(b)(13)(B) provides a two-level enhancement for “possession of a dangerous weapon (including a firearm) in connection with” a theft. Furthermore, “[i]f the resulting offense level is less than level 14,” it is “increase[d] to level 14.” Jackson had a base offense level of six, see U.S.S.G. § 2B1.1(a)(2), which meant that § 2B 1.1(b)(13)(B) worked an eight-level increase to his base offense level.
Jackson acknowledges that he was in possession of a firearm—his duty weapon—when he committed the theft. But, he argues, there was no “nexus” between the firearm and the offense such that the enhancement found in § 2B1.1(b)(13)(B) could apply. In his view, that section applies only when the weapon advances the criminal enterprise, for example, by “enhanc[ing] the benefits of the offense,” “mak[ing] the offense easier to commit,” “inject[ing] a degree of fear,” or “increas[ing] the seriousness of the crime,” to name a few possibilities. And, Jackson argues, his firearm was just a necessary part of his uniform, “inconsequential” to the commission of the theft.
Section 2B 1. 1(b)(13)(B) requires that the possession of the weapon be “in connection with” the theft. See also U.S.S.G. § 2B 1.1 cmt. background (“Subsection (b)(13)(B) implements, in a broader form, the instruction to the Commission in section 110512 of Public Law 103–322.”); Violent Crime Control and Law Enforcement Act of 1994, Pub.L. No. 103–322, § 110512, 108 Stat. 1796, 2019 (1994) (“[T]he United States Sentencing Commission shall amend its sentencing guidelines to provide an appropriate enhancement of the punishment for a defendant convicted of a felony under chapter 25 of title 18, United States Code, if the defendant used or carried a firearm ․ during and in relation to the felony.” (emphasis added)).
But Jackson goes too far in arguing that his firearm was unconnected to his theft of the electronics. As the district court explained:
While the presence of a firearm will not always warrant [application of § 2B1.1(b)(13)(B) ], with regard to this case and this defendant, it’s clear that the presence of defendant’s firearm was not accidental or coincidental. It was available to help to deter resistance or intimidate the victim, and was available to help to protect the defendant in the event that the victim attempted to resist or harm him. In other words, the defendant used his status as a police officer with all the trappings, including the carrying of a service firearm, to commit the [theft].
Sentencing Tr. at 28:20–29:6. Indeed, it was Jackson’s police uniform, which included the firearm, that cloaked him with the apparent authority to arrest Doe, search her vehicle, and confiscate the electronics. Had he not been in uniform, it is not improbable that Doe would have regarded him as just another civilian. In those circumstances, we think it unlikely that she would have complied so readily, if at all, with his directives.
Furthermore, an officer’s visible possession of a firearm, even when it remains holstered, is a signal of authority that will usually promote compliance in an ordinary citizen. Accord Florida v. Bostick, 501 U.S. 429, 448, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (Marshall, J., dissenting) (“Our decisions recognize the obvious point, however, that the choice of the police to ‘display’ their weapons during an encounter exerts significant coercive pressure on the confronted citizen.” (citing cases)). That the department required Jackson to possess the firearm as one of the “certain tools or items in order to perform and carry out his duties,” Appellant’s Br. at 7, only furthers that view. We therefore agree with the district court that Jackson’s possession of a firearm was sufficient to support the enhancement.
III.
Jackson’s next argument—that he was not an organizer or leader for the purposes of guidelines § 3B1.1(c), but rather a mere “equal part[y]” with his co-defendant—fares no better.
Guidelines § 3B1.1(c) provides a two-level enhancement “[i]f the defendant was an organizer, leader, manager, or supervisor in any criminal activity” involving fewer than five participants and that was not “otherwise extensive.” See U.S.S.G. § 3B1.1 (criminal activity involving “five or more participants” or that is “otherwise extensive” is covered in parts (a) and (b)). Section 3B1.1(c) differs from § 3B1.1(a) and (b) in that it does not distinguish an “organizer or leader” from a “manager or supervisor”—both are treated to the same two-level enhancement. The background commentary explains:
In relatively small criminal enterprises that are not otherwise to be considered as extensive in scope or in planning or preparation, the distinction between organization and leadership, and that of management or supervision, is of less significance than in larger enterprises that tend to have clearly delineated divisions of responsibility. This is reflected in the inclusiveness of § 3B1.1(c).
U.S.S.G. § 3B1.1 cmt. background. Therefore, when considering whether § 3B1.1(c) applies, it is unnecessary to determine whether the defendant was a mere “manager or supervisor” or instead was a more responsible “organizer or leader.” Still, we think that application note 4, which explains how to “distinguish[ ] a leadership and organizational role from one of mere management or supervision” for the purposes of § 3B 1.1(a) and (b), is a helpful guide in determining whether § 3B1.1(c) should be applied to a defendant. See U.S.S.G. § 3B1.1 cmt. n.4.
That note provides:
In distinguishing a leadership and organizational role from one of mere management or supervision, ․ [f]actors the court should consider include the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.
Id.
Reviewing the facts regarding Jackson’s role in the offense, we conclude that the district court did not err in applying the enhancement. At sentencing, the district court heard testimony that it was Jackson who initially planned the offense, that it was Jackson who recruited an accomplice in Brezill, that Jackson was, by some three decades, the senior officer, that when the two officers found Doe it was Jackson who “made the decision to take the property,” that it was Jackson’s decision to split up the property at Brezill’s parents’ house, and that it was Jackson who shared some of the stolen electronics with the informant. Given those circumstances, a § 3B1.1(c) enhancement was appropriate.
IV.
Jackson’s final claim of error is that the district court punished him “for criminal behavior for which he was not charged,” specifically, that it relied on evidence that Jackson had committed similar “rip off[s]” on numerous prior occasions. Doing so, Jackson argues, conflicted with the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
At sentencing, the government called as a witness FBI Special Agent Anthony Bernardoni, who testified that in “the spring or early summer of 2009” he had received information that Jackson had been “conduct[ing] police stops of vehicles that were supposedly containing stolen goods, [and] would then seize those items and then split those items with a third party.” It was that information that led to the sting operation that gave rise to this prosecution. Furthermore, an addendum to Jackson’s Presentence Investigation Report (PSR) remarked that “Jackson had engaged in this type of illegal activity for quite some time, and he purposely conducted this type of illegal business armed with a weapon in order to intimidate the victims.” Addendum to PSR at 1.
Although Jackson did not object to Bernardoni’s testimony (he did object to the PSR addendum), he repeatedly urged the district court not to consider any “other incidents, crimes, or alleged crimes” that had not been charged. And it seems that the district court took Jackson’s objections to heart, for the record contains no indication that the district court gave any weight to Jackson’s prior, uncharged conduct or that it made reference to such conduct while imposing its sentence. Rather, it noted Jackson’s “lack of a criminal history.” We therefore find meritless Jackson’s contention that the district court’s sentence was based, even in part, on uncharged conduct.
In any event, judge-found facts regarding uncharged conduct may be considered by the district court in selecting a sentence. See United States v. Red Elk, 426 F.3d 948, 951 (8th Cir.2005). So long as the district court treats the guidelines as advisory, as it did here, Booker is not to the contrary. See Booker, 543 U.S. at 233, 259–60; United States v. Brave Thunder, 445 F.3d 1062, 1065 (8th Cir.2006).
V.
The sentence is affirmed.
FOOTNOTES
1. The Honorable Donald J. Stohr, United States District Judge for the Eastern District of Missouri.
WOLLMAN, Circuit Judge.

Alternative Perpetrator, First Degree Murder

There are certain defenses that are called affirmative defenses. In such a defense, the Defendant offers evidence that will negate guilt. This is different than a standard not guilty defense. In a standard not guilty defense, the defendant does not present evidence. The Constitution does not require the Defendant to introduce evidence as the Defendant is already presumed innocent and the government bears the burden to prove the Defendant guilty beyond a reasonable doubt.

There are certain rules that go along with Affirmative Defenses before the trial court will allow the jury to hear such evidence. This includes notice requirements and evidentiary weight thresholds. The analysis by the Court should also consider the Defendant’s Right to present a defense. Read below to view a summary on a case about a first degree murder case where the Minnesota Supreme Court ruled that a trial court should have allowed Defendant to argue that an alternative perpetrator committed the crime. A link to the complete case is at the end of the summary.

State v Ferguson (SUP CT, 10-19-2011, A10-0499, Hennepin Co)

Alternative Perpetrator

Defendant Ferguson was convicted of First Degree Murder. The trial court prohibited Defendant Ferguson from introducing alternative perpetrator evidence to the jury. In order for alternative perpetrator evidence to be admissible, the evidence about the alternative perpetrator must create must connect the alternative perpetrator to the crime.

Defendant Ferguson proffered that the alternative perpetrator he was suggesting committed the crime, had similar physical features to the Defendant Ferguson, drove car similar to Defendant Ferguson and was identified as being in the area at time of crime.

The Supreme Court Ruled that the Trial Court erred and Defendant Ferguson met the threshold for the admission of alternative perpetrator evidence and the jury should have been allowed to consider this evidence. The Supreme Court of Minnesota ruled that it was error to exclude it.

The Supreme Court also noted that only one person identified the defendant as the shooter. The Supreme Court therefore, also analyzed whether the denial of Defendant’s defense of alternative perpetrator was harmless beyond a reasonable doubt. The Supreme Court this error was not harmless and therefore, Defendant Ferguson’s right to present a complete defense was violated.

The Conviction reversed and a new trial was ordered by the Supreme Court of Minnesota.

Here is a link to the complete opinion: http://minnesotasupremecourtopinions.justia.com/2011/10/20/state-v-ferguson/

Police Interrogations should be recorded in Minnesota

Most people know of their 5th Amendment Right to remain silent when questioned by law enforcement. This Right does not mean that a person can lie or mislead. There are times when a government agent, police officer, or investigator will testify that a Defendant made a certain statement to them about the case. This testimony may be derived from the officer’s interpretation of the statement made, a sarcastic comment made by the Defendant, or, according to many Defendants, a false claim made by the officer that the Defendant made the comment. In Federal Court and in many States, this contradiction is to be determined by the jury – through the weight of the evidence. The problem is, for the jury to weigh the evidence, the Defendant will often have to take the stand to deny making the statement. This will subject the Defendant to cross examination and a waiver of his 5th Amendment Rights to Remain Silent.

Minnesota has protected the individual by requiring law enforcement to record all in custody interviews where feasible. This requirement was created in the case, State v. Scales, 518 N.W.2d 587 (Minn. 1984). See below to read this entire opinion. Call me at 651-200-3484 if you have questions about a case you may be involved with.

518 N.W.2d 587 (1994)
STATE of Minnesota, Respondent,
v.
Michael Jerome SCALES, Appellant.
No. C4-93-1541.

Supreme Court of Minnesota.
June 30, 1994.
Rehearing Denied August 22, 1994.

589*589 John M. Stuart, State Public Defender, Marie L. Wolf, Asst. State Public Defender, Minneapolis, and Michael J. Scales, Stillwater, for appellant.

Hubert H. Humphrey, III, Atty. Gen., St. Paul, and Michael O. Freeman, Linda K. Freyer, Asst. County Atty., Minneapolis, for respondent.

Heard, considered, and decided by the court en banc.

OPINION

WAHL, Justice.

Michael Jerome Scales appeals from a judgment of conviction, after a jury trial in a Hennepin County District Court, of two counts of first degree murder[1] and one count of second degree intentional murder[2] in connection with the stabbing death of Otha Brown. He was sentenced to life in prison.

The primary issue on appeal is whether appellant has a due process right under the Minnesota Constitution to have his entire interrogation by law enforcement authorities recorded or whether this court should exercise its supervisory powers to mandate such a requirement. Appellant also challenges the admission of three photographs and the trial court’s instruction on reasonable doubt. In the exercise of our supervisory powers we mandate a recording requirement for all custodial interrogations. We affirm the conviction.

Otha Brown was the mother of Angela Walker, appellant’s girlfriend, and the grandmother of Michael Scales, Jr., appellant’s two-year-old son. Appellant, Angela, Angela’s three children, including Michael Jr., and two of the Browns’ other grandchildren lived with Otha and her husband Leon in Minneapolis. In spite of her poor health, Otha Brown raised her grandchildren, was active in her church, and was a school bus driver.

At approximately 1:00 a.m. on October 4, 1992, appellant walked into the Browns’ bedroom, told Otha Brown that he was sick, and asked her to drive him to the hospital. Otha Brown agreed to drop appellant off at the hospital, threw a coat over her nightgown, and went out to her van. Leon Brown testified that appellant came back to the bedroom a few minutes later explaining that Otha Brown had forgotten her purse and had asked him to get it. After appellant left, Leon Brown went back to sleep but woke up around 2:00 or 3:00 a.m. and discovered that his wife had not returned and that Michael Jr. was missing.

Around 7:00 a.m., Otha Brown’s body was found in an alley on Osseo Road. She had been stabbed 26 times with a single-edged knife. Two or three of the wounds could have caused Otha Brown’s death. No weapons were found in the area where the body was discovered, but the police recovered a bloody “Emperor Steel” butcher knife and a bloody knit hat at a different location. The blood on the knife and the hat was consistent with Otha Brown’s blood and the knife matched an “Emperor Steel” knife found in the Browns’ kitchen.

Appellant’s statements to the police and the testimony at trial established that during the early morning hours of October 4, appellant was at a crack house getting high and making drug runs in Otha Brown’s van. Timothy Hill, an individual who accompanied appellant on one of these drug runs, testified that he noticed a red substance on the running board of the van. David Neal testified that while he was on a drug run with appellant, appellant mentioned that he had killed someone for money so he could repay people who were threatening to hurt him. While at the crack house, appellant handed out Otha Brown’s checks and credit cards. Jeffrey Pearson, who received several of these items, testified that the plan was for him to purchase merchandise, sell it for cash, and share the proceeds with appellant. Appellant himself 590*590 made two unsuccessful attempts to use Otha Brown’s bank card shortly after the time she was killed.

Otha Brown’s van was found on October 5. Blood, consistent with Otha Brown’s blood, was found throughout the van, but the greatest concentration was on the driver’s door, the signal and shift levers, the driver’s seat, the carpet, and the running board. Her purse was recovered in the vicinity where the van was found.

When appellant and his son returned home around 7:00 p.m. on October 4, the police placed him in a squad car and took him to the police station. Sergeant Michelle Smolley, Minneapolis Police Department homicide unit, and Special Agent Rick Loewen, a BCA investigator on loan to the Minneapolis police, began questioning appellant around 8:40 p.m. Both officers testified that before they questioned appellant, they gave him Miranda warnings. Appellant said he understood his rights, and indicated that he wished to waive them. The officers interrogated appellant for approximately three hours before conducting a formal question-and-answer statement that was simultaneously transcribed. No other part of the interview was recorded.

At the Rasmussen hearing, appellant disputed much of what the officers had said about the nature of the interview and the timing and content of the Miranda warnings. Appellant testified that he was not told he was under arrest or given any warnings until the interrogation was well underway, that when the warnings were given he was not asked if he understood his rights or was willing to waive them, that he was told, untruthfully, that his fingerprints had been found on the suspected murder weapon, and that he was “half liquored” and unable to use the bathroom during the interview. Appellant also denied giving several of the answers contained in the written statement and said that he was not permitted to read the statement before signing it. Appellant moved to suppress the formal statement and his other comments to police on the grounds that he had not received timely Miranda warnings, that the waiver of his rights was not explicit, and that neither the reading of his rights nor his three-hour interview was recorded. The trial court, in denying the motion, declined to rule on whether there is a constitutionally based recording requirement.

At trial, Agent Loewen testified that appellant told two accounts of the events of October 4, 1992. In both versions, appellant said he and Otha Brown drove to the hospital and then decided to leave. When they returned home appellant, at Otha Brown’s request, went inside to get her purse. He noticed that Michael Jr. was awake and brought him out to the van. Otha Brown then drove to a grocery store. At this point, the stories diverged. Initially, appellant said that Otha Brown dropped him off at the store after giving him $20, and he told the police he had not seen her since. He later changed his story and admitted to being “involved” in Otha Brown’s death.

In a formal statement consistent with his second story, appellant said that while he was looking for his ID on the way to the hospital, he reached into the seat pocket and felt a knife. As in the first story, appellant said he returned to the house where he picked up Otha Brown’s purse and his son. Consistent with the second story, however, appellant stated that when they reached the grocery store Otha Brown tried to give him more money than he wanted. He pushed her away while holding the knife in his hand and she fell to the floor of the van.

The next thing appellant remembered was driving away with bloody hands and throwing the knife out the window. When the officers asked appellant if he had blood on his sweatshirt, appellant said he did and admitted that it “most likely” was Otha Brown’s blood. Forensic tests confirmed that the blood on appellant’s clothes, shoe, wallet, players card, and pocket knife was consistent with the blood of Otha Brown. In addition, appellant’s bloody fingerprints were found inside the van. He also had an abrasion on the inside of his thumb that was consistent with the use of a knife.

This appeal clearly focuses on whether there should be a recording requirement for custodial interrogations under either the Due Process Clause of the Minnesota Constitution 591*591 or the supervisory authority of this court. In previous cases, we have been concerned about the failure of law enforcement officers to record custodial interrogations. State v. Robinson, 427 N.W.2d 217, 224 (Minn.1988); State v. Pilcher, 472 N.W.2d 327, 333 (Minn. 1991). In Robinson we observed that, as a practical matter, many factual disputes about the denial of a defendant’s constitutional rights would be avoided if all conversations between the police and a suspect were recorded. 427 N.W.2d at 224 n. 5. More recently, in Pilcher we “urge[d] * * * law enforcement professionals [to] use those technological means at their disposal to fully preserve those conversations and events preceding the actual interrogation” and warned that we would “look with great disfavor upon any further refusal to heed these admonitions.” 472 N.W.2d at 333. Appellant claims that by failing to preserve the entire interrogation, the police deliberately ignored our warning, thereby depriving him of his right to due process under the Minnesota Constitution.

The trial court distinguished Robinson and Pilcher on the grounds that the police conduct in those cases raised questions about an ambiguous or equivocal statement regarding the need for counsel, whereas in this case appellant does not allege that he asked for an attorney, failed to understand the Miranda warnings, or asked to terminate the interview. Although defense counsel raised the due process issue, the trial court declined to rule on whether appellant was deprived of a state constitutional right.

Appellant relies on Stephan v. State, 711 P.2d 1156 (Alaska 1985), which held that the unexcused failure to electronically record a custodial interrogation violated a suspect’s right to due process under the Alaska Constitution. Id. at 1158. The Alaska Supreme Court found this constitutional right because law enforcement officials had failed to follow the rule it had established five years earlier: “it is incumbent upon [Alaska law enforcement officials] to tape record, where feasible, any questioning [of criminal suspects,] and particularly that which occurs in a place of detention.” Mallott v. State, 608 P.2d 737, 743 n. 5 (Alaska 1980)

A recording requirement, the Stephan court stated, provides a more accurate record of a defendant’s interrogation and thus will reduce the number of disputes over the validity of Miranda warnings and the voluntariness of purported waivers. Stephan, 711 P.2d at 1160-62. In addition, an accurate record makes it possible for a defendant to challenge misleading or false testimony and, at the same time, protects the state against meritless claims. Recognizing that the trial and appellant courts consistently credit the recollections of police officers regarding the events that take place in an unrecorded interview, the court held that recording “is now a reasonable and necessary safeguard, essential to the adequate protection of the accused’s right to counsel, his right against self incrimination and, ultimately, his right to a fair trial.” Id. at 1159-60. A recording requirement also discourages unfair and psychologically coercive police tactics and thus results in more professional law enforcement.

Other courts have noted the protections that a recording requirement would provide but no state as yet has followed the Stephan decision.[3] Commentators have advocated a recording requirement. Yale Kamisar, Brewer v. Williams: A Hard Look at a Discomfiting Record, 66 Geo.L.J. 209 (1977-78); Glanville Williams, The Authentication of Statements to the Police, Crim.L.Rev. 6 (Jan. 1979). The Uniform Rule of Criminal Procedure 243 (1974) provides that information about rights, any waiver, and all questioning shall be recorded where feasible, and must be recorded when the questioning occurs at a place of detention. The Model Code of Pre-Arraignment Procedure § 130.4(3) (1975) also contains a recording requirement.

592*592 The United States Supreme Court has not addressed the recording issue directly but even if custodial interrogations do not need to be recorded to satisfy the due process requirements of the Federal Constitution, we are not precluded from finding a recording requirement under the Minnesota Constitution. This court has “the power to provide broader individual rights under the Minnesota Constitution than are permitted under the United States Constitution.” State v. Murphy, 380 N.W.2d 766, 770 (Minn.1986).

We are persuaded, as was the Stephan Court, that the recording of custodial interrogations “is now a reasonable and necessary safeguard, essential to the adequate protection of the accused’s right to counsel, his right against self incrimination and, ultimately, his right to a fair trial.” Stephan, 711 P.2d at 1150-60. We are disturbed by the fact that law enforcement officials have ignored our warnings in Pilcher and Robinson. In Stephan, the state argued on behalf of the police department that the failure to record an entire interrogation was based on the “chilling effect” recordings had on a suspect’s willingness to talk. 711 P.2d at 1162. Here, however, the state simply asserts that such a requirement is not constitutionally required and questions whether the requirement would, in fact, provide greater protections for defendants or make a substantial difference in police practices.

We choose not to determine at this time whether under the Due Process Clause of the Minnesota Constitution a criminal suspect has a right to have his or her custodial interrogation recorded. Rather, in the exercise of our supervisory power to insure the fair administration of justice,[4] we hold that all custodial interrogation including any information about rights, any waiver of those rights, and all questioning shall be electronically recorded where feasible and must be recorded when questioning occurs at a place of detention. If law enforcement officers fail to comply with this recording requirement, any statements the suspect makes in response to the interrogation may be suppressed at trial. The parameters of the exclusionary rule applied to evidence of statements obtained in violation of these requirements must be decided on a case-by-case basis. Following the approach recommended by the drafters of the Model Code of Pre-Arraignment Procedure, suppression will be required of any statements obtained in violation of the recording requirement if the violation is deemed “substantial.” This determination is to be made by the trial court after considering all relevant circumstances bearing on substantiality, including those set forth in § 150.3(2) and (3) of the Model Code of Pre-Arraignment Procedure.[5] If the court finds a violation not to be substantial, it shall set forth its reason for such finding. 593*593 The rule and the remedy will apply prospectively from the date of the filing of this opinion. The Advisory Committee on Criminal Rules may further consider the issue of the proper scope of the exclusionary rule in this context.

Though the police in this case disregarded our prior warnings in Robinson and Pilcher, we affirm appellant’s conviction because even if the unrecorded statements had been suppressed the result would have been the same. Appellant makes no claim that the unrecorded interrogation contained exculpatory evidence and the evidence against him without the statements was very strong.

On the night Otha Brown was killed, appellant convinced her to drive him to the hospital but there is no evidence in the record that they ever arrived at the hospital. Shortly after the time Otha Brown was killed appellant was photographed attempting to use her bank card and, according to several witnesses, appellant was at a crack house handing out Otha Brown’s credit cards and checks with the understanding that he would receive a portion of any proceeds from their use. One of the witnesses who went on a drug run in Otha Brown’s van after she was killed testified that he noticed a red substance on the running board where the police later found a substantial amount of Otha Brown’s blood. Another witness testified that appellant mentioned that he had killed someone for money. When appellant was arrested, his clothes, shoes, and wallet were covered with Otha Brown’s blood. Moreover, his bloody fingerprints were found in the van and the murder weapon matched a knife from the Browns’ kitchen. In light of this evidence, any error in admitting the unrecorded statements was harmless.

Appellant also challenges the admission of three photographs — two of which showed Otha Brown with her grandchildren and one of which showed Otha Brown at Disney World with Mickey Mouse. The admission of photographs is a matter left to the discretion of the trial judge and will not be reversed absent a clear abuse of discretion. State v. Friend, 493 N.W.2d 540, 544 (Minn. 1992). Here, where the photographs were used to provide background information about the family and to personalize Otha Brown and where the number of photographs used for these purposes was small, the trial court did not err in admitting them.

Appellant makes a pro se challenge to the trial court’s instruction that the jurors “should discuss the case with one another and deliberate with a view to reaching agreement if you can do so without violence to your individual judgment.” Appellant claims that the term “violence” had a negative impact on the jury’s understanding of reasonable doubt because it distorted the intensity a juror must feel before changing his or her mind. He also claims that it was error to give the instruction to a nondeadlocked jury. Neither argument is persuasive. First, the sentence appellant complains about is not an instruction on reasonable doubt, but is part of an instruction about the duty of the jurors to discuss the case and is taken directly from CRIMJIG 3.04 (Unanimous Verdict — Duty of Jurors to Discuss). Moreover, in State v. Martin, 297 Minn. 359, 371-72, 211 N.W.2d 765, 772 (1973), we specifically approved the language used in this instruction. We also approved of the instruction being given at the outset of deliberation, because “[t]he jury is forewarned of how it should proceed to forestall a deadlock” and because the “potential for coercion is minimized if the charge is simply reread at a time when the jury appears to be deadlocked.” Id. Thus, the trial court did not err in instructing the jury.

We affirm the judgment of conviction.

Affirmed.

TOMLJANOVICH, Justice (concurring in part, and dissenting in part).

I agree with the majority that the conviction in this case be affirmed; however, I vigorously dissent from that portion of the majority’s opinion holding that an unexcused failure to electronically record a statement during custodial interrogation must result in a suppression of that statement.

Custodial interrogations need not be recorded to satisfy the due process requirements of the United States Constitution relating to the preservation of evidence, as 594*594 established in California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984); see Stephan v. State, 711 P.2d 1156 (Alaska 1985). Moreover, as the majority indicates, of all the states that have addressed this issue, only the Alaska Supreme Court has held that the unexcused failure to record a statement during custodial interrogation must result in suppression of the statement.[1] I am unwilling at this time to depart from the rule of the vast majority of courts in this country.

While the recording of statements is desirable in many respects, I am not persuaded that recording is essential to the adequate protection of the accused’s right to a fair trial. I am especially reluctant to assume in the absence of any evidence that trial and appellate courts “consistently credit the recollections of police officers,” slip opinion at 7, and thereby routinely abandon their obligation to fairly assess the credibility of witnesses.

An exclusionary rule is a drastic remedy. I believe such a drastic remedy should be applied only after a full hearing of all the policy implications and with adequate notice to law enforcement. See State v. Spurgeon, 63 Wash.App. 503, 820 P.2d 960, 963 (1991). This is particularly true where a right is not found to be rooted in the state constitution.

I would recommend the matter be referred to the Supreme Court Advisory Committee on Rules of Criminal Procedure for further consideration.

[1] Pursuant to Minn.Stat. §§ 609.185(1) and § 609.185(3).

[2] Pursuant to Minn.Stat. § 609.19(1).

[3] See People v. Raibon, 843 P.2d 46, 49 (Colo. App.1992); Commonwealth v. Fryar, 414 Mass. 732, 610 N.E.2d 903, 909 n. 8 (1993); State v. Buzzell 617 A.2d 1016, 1018-19 (Me.1992); Williams v. State, 522 So.2d 201, 208 (Miss. 1988); Jimenez v. State, 105 Nev. 337, 775 P.2d 694, 696 (1989); State v. James, 858 P.2d 1012, 1017-18 (Utah App.1993); State v. Spurgeon, 63 Wash.App. 503, 820 P.2d 960, 961-63 (1991). See also State v. Rhoades, 119 Idaho 594, 809 P.2d 455, 462 (1991); State v. Gorton, 149 Vt. 602, 548 A.2d 419, 422 (1988).

[4] See State v. Borst, 278 Minn. 388, 397, 154 N.W.2d 888, 894 (1967).

[5] Section 150.3(2) and (3) provide as follows: (2) Violations Deemed Substantial. A violation shall in all cases be deemed substantial if one or more of the following paragraphs is applicable:

(a) The violation was gross, wilful and prejudicial to the accused. A violation shall be deemed wilful regardless of the good faith of the individual officer if it appears to be part of the practice of the law enforcement agency or was authorized by a high authority within it.

(b) The violation was of a kind likely to lead accused persons to misunderstand their position or legal rights and to have influenced the accused’s decision to make the statement.

(c) The violation created a significant risk that an incriminating statement may have been untrue.

(3) Circumstances to Be Considered in Determining Substantiality. In determining whether a violation not covered by Subsection (2) is substantial, the court shall consider all the circumstances including:

(a) the extent of deviation from lawful conduct;

(b) the extent to which the violation was wilful;

(c) the extent to which the violation was likely to have led the defendant to misunderstand his position or his legal rights;

(d) the extent to which exclusion will tend to prevent violations of this Code;

(e) whether there is a generally effective system of administrative or other sanctions which makes it less important that exclusion be used to deter such violations;

(f) the extent to which the violation is likely to have influenced the defendant’s decision to make the statement; and

(g) the extent to which the violation prejudiced the defendant’s ability to support his motion, or to defend himself in the proceeding in which the statement is sought to be offered in evidence against him.

[1] The Alaska Supreme Court did not rely on its supervisory powers but held that an exclusionary rule was necessary to protect a suspect’s right to due process under the Alaska Constitution.

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.

In Custody Statements that are not recorded should be suppressed

In Minnesota, when an officer has a person in custody and where feasible, any statement that is going to be used against a Defendant, must be recorded. This requirement is to protect the rights of the accused who is presumed innocent unless and until proven guilty beyond a reasonable doubt by the government. This requirement to record the in custody statements is derived from the case, State v. Scales, 518 NW 2d 587 – 1994.

Below is a case where the Miranda warning and Scales appears to come into play. However, the Minnesota Court of Appeals denied the Scales violation in this case as lacking merit. While there is not a long discussion about Scales in this case, the case does show how a Scales issue might arise. I have also included the entire , State v. Scales, 518 NW 2d 587 – 1994 case after the Ortega case for reading.

State v Ortega
(SUP CT, 04-18-2012, A10-0765, Dodge Co)

Factual Summary:

Defendant was convicted of aiding and abetting First Degree Murder and was sentenced to life without release.

When Defendant was arrested and before given the Miranda warnings, he said,
“[w]ell then I’m not gonna say nothin’ I just want to have an attorney present if you’re gonna question me.” The interview was terminated. A County Investigator went to arrange transport of Defendant from the station to the jail. The Defendant started talking to the Investigator. The Investigator said he couldn’t
talk because of the Defendant’s request for counsel. Shortly after the investigator left the room, the Defendant said he wanted to speak with investigator.

At a hearing, the Defendant testified that the Bureau of Criminal Apprehension (BCA) agents threatened him and the investigator acted like he was coming to Defendant’s rescue. Defendant then told his version of the events to the investigator.

At the trial, the court admitted the Defendant’s statement to the investigator.

ISSUE: Was Miranda invoked with statement to investigator and does State v. Scales, 518 NW 2d 587 – 1994 apply in this situation?

The Question the Court had to answer in this was whether The Defendant reinitiated a discussion with police after invoking right to counsel. The Supreme Court held that based on the record that the Defendant reinitiated the discussion voluntarily on his own. In arriving at this conclusion, The court says that none of the 3 officers in the room at the time of the statement corroborated Defendant’s account about being threatened and then saved by the investigator.

However, there is no mention made of existence or absence of recording required by Scales. The Defendant raises the Scales issue in a pro se brief, stating that Scales was violated and officers should not have been able to testify about his alleged statement since it was not properly recorded. The Minnesota Supreme Court responded to this appealable issue by stating it lacked merit. Deal

Conviction affirmed.

Below is the Minnesota Case of State v. Scales

518 N.W.2d 587 (1994)
STATE of Minnesota, Respondent,
v.
Michael Jerome SCALES, Appellant.
No. C4-93-1541.
Supreme Court of Minnesota.
June 30, 1994.
Rehearing Denied August 22, 1994.
589*589 John M. Stuart, State Public Defender, Marie L. Wolf, Asst. State Public Defender, Minneapolis, and Michael J. Scales, Stillwater, for appellant.
Hubert H. Humphrey, III, Atty. Gen., St. Paul, and Michael O. Freeman, Linda K. Freyer, Asst. County Atty., Minneapolis, for respondent.
Heard, considered, and decided by the court en banc.
OPINION
WAHL, Justice.
Michael Jerome Scales appeals from a judgment of conviction, after a jury trial in a Hennepin County District Court, of two counts of first degree murder[1] and one count of second degree intentional murder[2] in connection with the stabbing death of Otha Brown. He was sentenced to life in prison.
The primary issue on appeal is whether appellant has a due process right under the Minnesota Constitution to have his entire interrogation by law enforcement authorities recorded or whether this court should exercise its supervisory powers to mandate such a requirement. Appellant also challenges the admission of three photographs and the trial court’s instruction on reasonable doubt. In the exercise of our supervisory powers we mandate a recording requirement for all custodial interrogations. We affirm the conviction.
Otha Brown was the mother of Angela Walker, appellant’s girlfriend, and the grandmother of Michael Scales, Jr., appellant’s two-year-old son. Appellant, Angela, Angela’s three children, including Michael Jr., and two of the Browns’ other grandchildren lived with Otha and her husband Leon in Minneapolis. In spite of her poor health, Otha Brown raised her grandchildren, was active in her church, and was a school bus driver.
At approximately 1:00 a.m. on October 4, 1992, appellant walked into the Browns’ bedroom, told Otha Brown that he was sick, and asked her to drive him to the hospital. Otha Brown agreed to drop appellant off at the hospital, threw a coat over her nightgown, and went out to her van. Leon Brown testified that appellant came back to the bedroom a few minutes later explaining that Otha Brown had forgotten her purse and had asked him to get it. After appellant left, Leon Brown went back to sleep but woke up around 2:00 or 3:00 a.m. and discovered that his wife had not returned and that Michael Jr. was missing.
Around 7:00 a.m., Otha Brown’s body was found in an alley on Osseo Road. She had been stabbed 26 times with a single-edged knife. Two or three of the wounds could have caused Otha Brown’s death. No weapons were found in the area where the body was discovered, but the police recovered a bloody “Emperor Steel” butcher knife and a bloody knit hat at a different location. The blood on the knife and the hat was consistent with Otha Brown’s blood and the knife matched an “Emperor Steel” knife found in the Browns’ kitchen.
Appellant’s statements to the police and the testimony at trial established that during the early morning hours of October 4, appellant was at a crack house getting high and making drug runs in Otha Brown’s van. Timothy Hill, an individual who accompanied appellant on one of these drug runs, testified that he noticed a red substance on the running board of the van. David Neal testified that while he was on a drug run with appellant, appellant mentioned that he had killed someone for money so he could repay people who were threatening to hurt him. While at the crack house, appellant handed out Otha Brown’s checks and credit cards. Jeffrey Pearson, who received several of these items, testified that the plan was for him to purchase merchandise, sell it for cash, and share the proceeds with appellant. Appellant himself 590*590 made two unsuccessful attempts to use Otha Brown’s bank card shortly after the time she was killed.
Otha Brown’s van was found on October 5. Blood, consistent with Otha Brown’s blood, was found throughout the van, but the greatest concentration was on the driver’s door, the signal and shift levers, the driver’s seat, the carpet, and the running board. Her purse was recovered in the vicinity where the van was found.
When appellant and his son returned home around 7:00 p.m. on October 4, the police placed him in a squad car and took him to the police station. Sergeant Michelle Smolley, Minneapolis Police Department homicide unit, and Special Agent Rick Loewen, a BCA investigator on loan to the Minneapolis police, began questioning appellant around 8:40 p.m. Both officers testified that before they questioned appellant, they gave him Miranda warnings. Appellant said he understood his rights, and indicated that he wished to waive them. The officers interrogated appellant for approximately three hours before conducting a formal question-and-answer statement that was simultaneously transcribed. No other part of the interview was recorded.
At the Rasmussen hearing, appellant disputed much of what the officers had said about the nature of the interview and the timing and content of the Miranda warnings. Appellant testified that he was not told he was under arrest or given any warnings until the interrogation was well underway, that when the warnings were given he was not asked if he understood his rights or was willing to waive them, that he was told, untruthfully, that his fingerprints had been found on the suspected murder weapon, and that he was “half liquored” and unable to use the bathroom during the interview. Appellant also denied giving several of the answers contained in the written statement and said that he was not permitted to read the statement before signing it. Appellant moved to suppress the formal statement and his other comments to police on the grounds that he had not received timely Miranda warnings, that the waiver of his rights was not explicit, and that neither the reading of his rights nor his three-hour interview was recorded. The trial court, in denying the motion, declined to rule on whether there is a constitutionally based recording requirement.
At trial, Agent Loewen testified that appellant told two accounts of the events of October 4, 1992. In both versions, appellant said he and Otha Brown drove to the hospital and then decided to leave. When they returned home appellant, at Otha Brown’s request, went inside to get her purse. He noticed that Michael Jr. was awake and brought him out to the van. Otha Brown then drove to a grocery store. At this point, the stories diverged. Initially, appellant said that Otha Brown dropped him off at the store after giving him $20, and he told the police he had not seen her since. He later changed his story and admitted to being “involved” in Otha Brown’s death.
In a formal statement consistent with his second story, appellant said that while he was looking for his ID on the way to the hospital, he reached into the seat pocket and felt a knife. As in the first story, appellant said he returned to the house where he picked up Otha Brown’s purse and his son. Consistent with the second story, however, appellant stated that when they reached the grocery store Otha Brown tried to give him more money than he wanted. He pushed her away while holding the knife in his hand and she fell to the floor of the van.
The next thing appellant remembered was driving away with bloody hands and throwing the knife out the window. When the officers asked appellant if he had blood on his sweatshirt, appellant said he did and admitted that it “most likely” was Otha Brown’s blood. Forensic tests confirmed that the blood on appellant’s clothes, shoe, wallet, players card, and pocket knife was consistent with the blood of Otha Brown. In addition, appellant’s bloody fingerprints were found inside the van. He also had an abrasion on the inside of his thumb that was consistent with the use of a knife.
This appeal clearly focuses on whether there should be a recording requirement for custodial interrogations under either the Due Process Clause of the Minnesota Constitution 591*591 or the supervisory authority of this court. In previous cases, we have been concerned about the failure of law enforcement officers to record custodial interrogations. State v. Robinson, 427 N.W.2d 217, 224 (Minn.1988); State v. Pilcher, 472 N.W.2d 327, 333 (Minn. 1991). In Robinson we observed that, as a practical matter, many factual disputes about the denial of a defendant’s constitutional rights would be avoided if all conversations between the police and a suspect were recorded. 427 N.W.2d at 224 n. 5. More recently, in Pilcher we “urge[d] * * * law enforcement professionals [to] use those technological means at their disposal to fully preserve those conversations and events preceding the actual interrogation” and warned that we would “look with great disfavor upon any further refusal to heed these admonitions.” 472 N.W.2d at 333. Appellant claims that by failing to preserve the entire interrogation, the police deliberately ignored our warning, thereby depriving him of his right to due process under the Minnesota Constitution.
The trial court distinguished Robinson and Pilcher on the grounds that the police conduct in those cases raised questions about an ambiguous or equivocal statement regarding the need for counsel, whereas in this case appellant does not allege that he asked for an attorney, failed to understand the Miranda warnings, or asked to terminate the interview. Although defense counsel raised the due process issue, the trial court declined to rule on whether appellant was deprived of a state constitutional right.
Appellant relies on Stephan v. State, 711 P.2d 1156 (Alaska 1985), which held that the unexcused failure to electronically record a custodial interrogation violated a suspect’s right to due process under the Alaska Constitution. Id. at 1158. The Alaska Supreme Court found this constitutional right because law enforcement officials had failed to follow the rule it had established five years earlier: “it is incumbent upon [Alaska law enforcement officials] to tape record, where feasible, any questioning [of criminal suspects,] and particularly that which occurs in a place of detention.” Mallott v. State, 608 P.2d 737, 743 n. 5 (Alaska 1980)
A recording requirement, the Stephan court stated, provides a more accurate record of a defendant’s interrogation and thus will reduce the number of disputes over the validity of Miranda warnings and the voluntariness of purported waivers. Stephan, 711 P.2d at 1160-62. In addition, an accurate record makes it possible for a defendant to challenge misleading or false testimony and, at the same time, protects the state against meritless claims. Recognizing that the trial and appellant courts consistently credit the recollections of police officers regarding the events that take place in an unrecorded interview, the court held that recording “is now a reasonable and necessary safeguard, essential to the adequate protection of the accused’s right to counsel, his right against self incrimination and, ultimately, his right to a fair trial.” Id. at 1159-60. A recording requirement also discourages unfair and psychologically coercive police tactics and thus results in more professional law enforcement.
Other courts have noted the protections that a recording requirement would provide but no state as yet has followed the Stephan decision.[3] Commentators have advocated a recording requirement. Yale Kamisar, Brewer v. Williams: A Hard Look at a Discomfiting Record, 66 Geo.L.J. 209 (1977-78); Glanville Williams, The Authentication of Statements to the Police, Crim.L.Rev. 6 (Jan. 1979). The Uniform Rule of Criminal Procedure 243 (1974) provides that information about rights, any waiver, and all questioning shall be recorded where feasible, and must be recorded when the questioning occurs at a place of detention. The Model Code of Pre-Arraignment Procedure § 130.4(3) (1975) also contains a recording requirement.
592*592 The United States Supreme Court has not addressed the recording issue directly but even if custodial interrogations do not need to be recorded to satisfy the due process requirements of the Federal Constitution, we are not precluded from finding a recording requirement under the Minnesota Constitution. This court has “the power to provide broader individual rights under the Minnesota Constitution than are permitted under the United States Constitution.” State v. Murphy, 380 N.W.2d 766, 770 (Minn.1986).
We are persuaded, as was the Stephan Court, that the recording of custodial interrogations “is now a reasonable and necessary safeguard, essential to the adequate protection of the accused’s right to counsel, his right against self incrimination and, ultimately, his right to a fair trial.” Stephan, 711 P.2d at 1150-60. We are disturbed by the fact that law enforcement officials have ignored our warnings in Pilcher and Robinson. In Stephan, the state argued on behalf of the police department that the failure to record an entire interrogation was based on the “chilling effect” recordings had on a suspect’s willingness to talk. 711 P.2d at 1162. Here, however, the state simply asserts that such a requirement is not constitutionally required and questions whether the requirement would, in fact, provide greater protections for defendants or make a substantial difference in police practices.
We choose not to determine at this time whether under the Due Process Clause of the Minnesota Constitution a criminal suspect has a right to have his or her custodial interrogation recorded. Rather, in the exercise of our supervisory power to insure the fair administration of justice,[4] we hold that all custodial interrogation including any information about rights, any waiver of those rights, and all questioning shall be electronically recorded where feasible and must be recorded when questioning occurs at a place of detention. If law enforcement officers fail to comply with this recording requirement, any statements the suspect makes in response to the interrogation may be suppressed at trial. The parameters of the exclusionary rule applied to evidence of statements obtained in violation of these requirements must be decided on a case-by-case basis. Following the approach recommended by the drafters of the Model Code of Pre-Arraignment Procedure, suppression will be required of any statements obtained in violation of the recording requirement if the violation is deemed “substantial.” This determination is to be made by the trial court after considering all relevant circumstances bearing on substantiality, including those set forth in § 150.3(2) and (3) of the Model Code of Pre-Arraignment Procedure.[5] If the court finds a violation not to be substantial, it shall set forth its reason for such finding. 593*593 The rule and the remedy will apply prospectively from the date of the filing of this opinion. The Advisory Committee on Criminal Rules may further consider the issue of the proper scope of the exclusionary rule in this context.
Though the police in this case disregarded our prior warnings in Robinson and Pilcher, we affirm appellant’s conviction because even if the unrecorded statements had been suppressed the result would have been the same. Appellant makes no claim that the unrecorded interrogation contained exculpatory evidence and the evidence against him without the statements was very strong.
On the night Otha Brown was killed, appellant convinced her to drive him to the hospital but there is no evidence in the record that they ever arrived at the hospital. Shortly after the time Otha Brown was killed appellant was photographed attempting to use her bank card and, according to several witnesses, appellant was at a crack house handing out Otha Brown’s credit cards and checks with the understanding that he would receive a portion of any proceeds from their use. One of the witnesses who went on a drug run in Otha Brown’s van after she was killed testified that he noticed a red substance on the running board where the police later found a substantial amount of Otha Brown’s blood. Another witness testified that appellant mentioned that he had killed someone for money. When appellant was arrested, his clothes, shoes, and wallet were covered with Otha Brown’s blood. Moreover, his bloody fingerprints were found in the van and the murder weapon matched a knife from the Browns’ kitchen. In light of this evidence, any error in admitting the unrecorded statements was harmless.
Appellant also challenges the admission of three photographs — two of which showed Otha Brown with her grandchildren and one of which showed Otha Brown at Disney World with Mickey Mouse. The admission of photographs is a matter left to the discretion of the trial judge and will not be reversed absent a clear abuse of discretion. State v. Friend, 493 N.W.2d 540, 544 (Minn. 1992). Here, where the photographs were used to provide background information about the family and to personalize Otha Brown and where the number of photographs used for these purposes was small, the trial court did not err in admitting them.
Appellant makes a pro se challenge to the trial court’s instruction that the jurors “should discuss the case with one another and deliberate with a view to reaching agreement if you can do so without violence to your individual judgment.” Appellant claims that the term “violence” had a negative impact on the jury’s understanding of reasonable doubt because it distorted the intensity a juror must feel before changing his or her mind. He also claims that it was error to give the instruction to a nondeadlocked jury. Neither argument is persuasive. First, the sentence appellant complains about is not an instruction on reasonable doubt, but is part of an instruction about the duty of the jurors to discuss the case and is taken directly from CRIMJIG 3.04 (Unanimous Verdict — Duty of Jurors to Discuss). Moreover, in State v. Martin, 297 Minn. 359, 371-72, 211 N.W.2d 765, 772 (1973), we specifically approved the language used in this instruction. We also approved of the instruction being given at the outset of deliberation, because “[t]he jury is forewarned of how it should proceed to forestall a deadlock” and because the “potential for coercion is minimized if the charge is simply reread at a time when the jury appears to be deadlocked.” Id. Thus, the trial court did not err in instructing the jury.
We affirm the judgment of conviction.
Affirmed.

Search based upon a minor traffic offense

Client’s often ask how an officer can search their car after being stopped for a minor traffic offense. I am usually presented with the statement, or question, “they should have just given me a ticket and let me go.” Unfortunately, my clients often find there is more to it than what might routinely happen on most occasions. One example is the search incident to arrest doctrine. The case of United States v. Joshua Randolph out of Federal District of Missouri helps to explain how this doctrine works.

United States v. Joshua Randolph
App. from the W.D. Mo.

Facts: Detectives with Kansas City Police Department were conducting surveillance on an unrelated case when the noticed Defendant Randolph. The detectives followed Randolph as they recognized the car as belonging to a known female PCP
dealer and therefore knew Randolph was not the owner of the car. The officers followed Defendant Randolph to a residence. Officers had previously received information from a confidential informant that drugs were sold at
that residence. However, several attempts to purchase drugs from this
residence with a confidential informant and an undercover officer were unsuccessful. Defendant Randolph left that residence and went to a
different residence. The Detectives had uniformed officers standing by to stop
Randolph. The uniformed officers knew they were going to stop Randolph
before they ever saw him. Randolph parked in the driveway and went inside
the house, his family’s house. Defendant Randolph drank a beer on the sidewalk of his family’s home. After 30 minutes Randolph left. As Randolph was driving he pulled over to park on the side of a city street. Officers claimed Randolph failed to use his turn signal when he pulled over to park. Failing to signal when parking
is a traffic violation that is rarely enforced, but if it is enforced, it is usually done by giving the driver a citation. By the time uniformed officers approached, Defendant Randolph he had already parked his car, locked it and was walking away. When asked by Officers, Defendant Randolph stated it was not his car. Officers ordered Randolph back to the car, frisked and handcuffed him immediately. While the officer’s were running Randolph for warrants another officer came and looked into the car and said he saw a gun on the driver’s floorboard. The officer reached
through the window, opened the locked door and examined the gun. Randolph
was arrested for Felon In Possession of a Weapon, turning without a signal and public consumption of alcohol. The car was then searched after the officer’s observation. The searched and revealed a .380 handgun, crack, powder cocaine, PCP, marijuana and documents in Randolph’s name.

The Defendant brought a motion to suppress the stop of the vehicle and the search of the vehicle pursuant to the 4th Amendment of the Constitution

Issues:
(1) Traffic Stop

a. The 8th Circuit Court of Appeals Ruled that:

1. An officer may initiate a traffic stop after the driver has
stopped the car and exited the vehicle.

2. The Officer’s decision to stop the driver is reasonable if the officer
has probable cause to believe a traffic violation occurred.

3. Any traffic violation, however minor, provides probable
cause for a traffic stop.

a. Failing to signal is sufficient probable cause
even if the officer is suspicious of other crimes.

(2) Search Incident to Arrest

a. Defendant Randolph argued that at the time the officers searched the car Randolph was under arrest for failing to signal and there was no reason to believe there was evidence in the car of a crime being committed. Officers are not allowed to search a car unless there is evidence of a crime in the car, or that they have probable cause to believe such. This analysis takes place at the time Officers searched the vehicle, not after searching the vehicle and analyzing backwards. Furthermore, under Arizona v. Gant – officers are not allowed to search outside the arms length of a suspect without a warrant because there is no officer safety exception outside that arms length. In this case, Officers didn’t know Randolph was a felon until after the car was searched. Therefore, at the time of the search, officers did not have information that vehicle held evidence of a crime (felon in possession of a weapon).

b. The Court of Appeals for the 8th Circuit Ruled:

1. Under Arizona v. Gant police may search a car incident to a recent
occupant’s arrest only if the arrestee is within reaching distance of the
passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest (remember, in this case, the offense was failing to signal before parking).

2. On the stand, the officers claim they knew Randolph was a felon
at the time they searched the car.

(3) Standing – this is where the decision turned against the defendant

a. The 8th Circuit noted:
1. An individual’s 4th Amendment Rights under the Constitution are personal and may not be vicariously asserted.

2. Since Randolph had disavowed ownership, he is precluded
from claiming the search was unconstitutional because he did not have standing to challenge the search of another’s property.

What this means is that even if the true owner would challenge the search, that challenge would only apply to the true owner, not to Defendant Randolph. As the true owner was never charged with an offense, or indicted with an offense, there is no challenge here.

The Independent Source Doctrine

Yesterday I discussed the Miranda and how the Courts apply Miranda to statements made to the government. Within that discussion, I mentioned the independent source doctrine. Also known as the independent source exception or the independent source rule this doctrine refers to Evidence initially discovered during an unlawful search, but later obtained independently through activities untainted by the illegality, may be admitted into evidence at trial.
Justice James Browning of the United States District Court of New Mexico described the doctrine as follows: “The exclusionary rule prohibits the introduction of evidence, both tangible and testimonial, that is seized or acquired during an unlawful search. Under the fruit of the poisonous tree doctrine, the exclusionary rule bars the admission of physical evidence and live testimony obtained directly or indirectly through the exploitation of unconstitutional police conduct. If police conduct includes unconstitutional searches that acquire information used to obtain a search warrant, then evidence seized during the later search conducted pursuant to warrant would be inadmissible as fruit of the poisonous tree. When determining whether evidence is fruit of the poisonous tree, a court is to consider whether the evidence was come at by exploitation of the initial illegality or instead by means sufficiently distinguishable to be purged of the primary taint. Under the independent-source doctrine, evidence that is obtained based upon information unrelated to an unlawful search is not fruit of the poisonous tree. Evidence therefore need not be excluded under the fruits-of-the-poisonous-tree doctrine if there is an independent source for discovery of the challenged evidence.”
In US v Khabeer, The Court of Appeals outlined their analysis of the doctrine as follows: “The Fourth Amendment generally prohibits police from entering a home without a warrant unless the circumstances fit an established exception to the warrant requirement. The government does not defend the constitutionality of (the officer’s) entry and his observations in the home. The government claims, however, that because Miller’s information was not used in the application for a search warrant, the independent source doctrine permits the admission of evidence later seized from the home, despite an earlier unlawful search by (the officer).
“This rule is rooted in the view that the interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred. To establish that the independent source doctrine applies to evidence seized pursuant to a warrant obtained after an unlawful entry to a home, the government must show both (1) that the decision to seek the warrant was independent of the unlawful entry—i.e., that police would have sought the warrant even if the initial entry had not occurred—and (2) that the information obtained through the unlawful entry did not affect the magistrate’s decision to issue the warrant.”
The following is a practical example:
United States v. Kevin Craig, App. from N.D. of Iowa

Facts: Police received call from motorist who reported seeing a young
woman walking down the road carrying a baby. While the officers were
looking for the lady and her baby, they received another call that young
woman and baby were seeking shelter at a house in the area. Officers came
and spoke to the woman. The woman said Craig, her stepfather, had been
drinking heavily with friends when he got a gun from a bedroom and shot a
hole through the front door. The woman took her baby to a bedroom until Craig came in, screamed at her and pulled her hair.

The woman told police that Craig was a felon and had sexually assaulted her in
the past. Officers spoke and decided to go to Craig’s residence to see if he was home. If. If he wasn’t home they would then get a warrant.

Officers arrived after midnight. When the officers knocked a man named Sawvel answered and was immediately handcuffed. Officers asked Sawvel where Craig was. Swavel told officers that Craig left earlier in the night. Officers asked Sawvel for permission to search the home. Sawvel said “dowhat you got to do…..its not my house.” Officers entered the house and announced themselves as “Sheriff’s Office.”
Craig then yelled out from the bedroom wanting to know “Who the fuck is in
my house and what the fuck is going on?”. Officers ordered Craig out of the
room. In response to officer’s questioning, Craig responded creatively. During questioning by the officers, Craig admitted to being a felon and firing a gun earlier in the evening. Craig was arrested. While inside the residence Officers observed marijuana and several firearms.

After all of this, Officers then decided to prepare a search warrant
application for the Court to review. The officers obtained a warrant and seized the firearms, ammo and other items. Craig was arrested on state charges.

After posting bond, Craig decided to go to the sheriff’s office to explain his position. While at the Sheriff’s office Craig requested a urine test and asked to speak to the Sheriff. The urine test was given. Craig was finally Mirandized and made a recorded statement. During the statement Craig did his best effort to make things worse. Craig admitted to using a “shotgun” as a club, shooting a “snub nose” and going into his daughter’s room and wrestling with her. Craig was indicted with Felon In Possession of A Weapon.

Craig filed motion to suppress evidence and statements to Officers at the scene and also to the Sheriff. The Federal District Court denied the motion to suppress because, first, physical evidence was admissible pursuant to independent source doctrine and two, the statements to the Sheriff were sufficiently separated from the warrantless entry into the residence that the new evidence was not fruit of poisonous tree.
The District Court did suppress the statements at residence.

Issues:

(1) Denial of Motion to Suppress Physical Evidence

a. Craig claimed the officers illegally entered his residence.
b. The Government agreed that the roommate did not have permission to grant officers permission to search the residence and therefore did not argue the entry was a valid warrantless entry. Instead, the government argued that the evidence discovered during the illegal entry is admissible under independent source doctrine

1. Obtaining the search warrant based upon the statements made to the Sheriff was the independent source.

c. The 8th Circuit Court of Appeals analyzed the situation in the following manner:

1. The search of the residence was illegal. The visitor did not have the authority to grant a search of the residence and there were no exigent (immediate) circumstances to warrant an entry without a warrant. The warrant obtained after the illegal search of the residence, is not an
independent source if either of the following are true:

a. if the agents’ decision to seek the warrant was
prompted by what they had seen during the initial entry.

2. The 8th Circuit said the officers would have gotten the search warrant had Craig not been home, so the entry without the warrant was not a problem.

a. However, if the information obtained during the entry was
presented to the Magistrate and affect his decision to issue the warrant, then the 8th Circuit’s test is whether the redacted application (taking out the information from the illegal search) supports probable cause.

3. Craig conceded that absent the tainted information, there was still probable cause for a search warrant to be issued. Craig then argued that the statements used to the Sheriff should be excluded because those were only given as a result of the information obtained by police as a result of the illegal search.

a. The Court rejected this argument. Stating that, while verbal statements obtained as a result of the 4th Amendment violation are as much subject to exclusionary rule as are items of physical
evidence, the exclusionary rule is not intended for
statements made outside of the home, where police have probable cause to arrest.

b. As such, the statements to Sheriff were not subject to exclusionary
rule because there was probable cause to arrest Craig.

Miranda Application From Home to Police Station

Miranda warnings are derived from the case, Miranda v. Arizona, 384 U.S. 436 (1966). When and how is a Miranda warning applied? United States v. Vinton, a case out of the Eastern District in Missouri, provides a discussion on this application both at the scene of the alleged offense, in this case the home, and at the police station. It is important to remember that if Miranda is violated, that does not mean the case is dismissed. Instead, if Miranda is violated, only the statement given is suppressed from the trial and any evidence gathered from the statement is suppressed; unless, the evidence gathered was from an independent source and not solely from the statement. In the same vein, just because a statement is admitted, does not mean the person is guilty. If the Court rules that Miranda was properly given and waived, the statement is merely a piece of evidence that is allowed in at trial. The Jury still decides the weight of the statement and if they believe the statement really happened.

If you have questions as to how Miranda statements may play a part in your case, please contact me at PatrickFlanagan@Flanaganlawsite.com or call 651-200-3484, or 763-786-5324. Be sure to check out my video while visiting my site to see how I might be able to help in other matters. Patrick Flanagan

United States v. William Vinton
App. from E.D. Mo.

Relevant Fact summary: Police received report that two men broke into a house and stole a gun safe with four firearms inside. A witness identified Lee as one of the men who broke into the home. Police learned Lee was at Vinton’s house earlier that day. That night three officers went to Vinton’s house and knocked on the door. Officer’s claim Vinton answered the door who said Lee left earlier in the evening. For some reason, Officers assert that Vinton then consented to allow officers to search the home for Lee. There were two other men in the house, who were released. While questioning Vinton, officer’s claimed that he voluntarily and inexplicably asked if their investigation had “anything to do with the guns.” Vinton then told the officers he knew those weren’t Lee’s guns. Vinton then voluntarily told the officers where the guns and the safe were at inside the house. None of these conversations were recorded. Officers found the safe, and four guns in the house. Including a “sawed-off shotgun.” Vinton was placed under arrest and taken to the station. He was advised of his Miranda rights, ignored them and made incriminating statements. Vinton was indicted for Felon In Possession of a Weapon and possession of an un-registered sawed-off shotgun. Vinton moved to suppress the search of the house and the statements at the house and at the police station.
On the witness stand, one of the men that was in the house, claimed that Vinton refused to consent to entry but officers forced their way into the house..

Issues:
(1) Motion to Suppress – Statements

1. Vinton claimed his re-arrest statements were made before he was read
his Miranda rights.

b. The 8th Circuit analyzed this issue as follows:

1. Miranda applies to statements made when a person is in custody. Custody is determined by looking at whether there is a formal arrest or restraint of freedom of movement to the degree associated with a formal arrest. This is reviewed based upon a reasonable person standard and not a reasonable officer and not the viewpoint of the accused.

a. The review as to whether a reasonable person would believe their freedom of movement was restricted is based upon the totality of the circumstances. The Court evaluates the situation as whether, give the totality of the circumstances, a reasonable person would believe they are at liberty to terminate the interrogation and leave or be able to cause the government agents to leave.

2. The Court considered the following facts to be important in their decision:

a. Vinton’s statements were made during the first 5 minutes of contact with the officers.
b. Vinton was in his own home.
c. Vinton was not restrained or threatened in any way.

3. Based upon those facts, the Court determined that Vinton was not in custody when officers questioned him. Therefore, the statements are considered voluntary. Voluntary statements are the product of essentially free and unconstrained choice by their maker. Statements are not involuntary unless the police extorted the statements from the accused by means of coercive activity or deception on the government’s part.

(2) Motion to Suppress – Search of Home

1. Vinton claimed he did not consent to the search of the home

2. 8th Circuit began its analysis by pointing out that if Vinton’s consent is voluntary then the search is valid.

3. In order for the Court to determine if Vinton’s consent is voluntary, the Court must once again look at the totality of the circumstances.

4. The ultimate question of whether a person’s consent is voluntary is whether the individual’s will has been overborne and his capacity for self-determination critically impaired such that his consent must have been involuntary.

5. The Court ruled that Vinton’s consent was voluntary. In arriving at this determination, the Court focused on the following:

a. Vinton was unrestrained and rational during the questioning.

b. Vinton had history of dealing with the police and knew his rights. He was not a person who rarely had contact with law enforcement and would therefore be less intimidated by their presence.

(3) Motion to Suppress — Statements at the Police Station

1. Vinton claimed he did not make a knowing and voluntary waiver of
his Miranda rights when he gave a statement at the police station.

2. Vinton has a borderline IQ and claimed officers mislead him about his rights by saying “…this just means I’d like to ask you questions…”

3. The 8th Circuit Court of Appeals began its analysis into whether Vinton’s waiver of his Constitutional Right to remain silent at the police station was a knowing and voluntary waiver. If the waiver was not knowing and voluntary, any statements he made would be suppressed and not allowed to be used at trial.

4. There are two distinct questions to answer before deciding if a defendant’s waiver of his 5th Amendment Constitutional Right to Remain Silent is knowing and voluntary.

a. First, the waiver must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception by government officials. Law Enforcement is a government Official.

b. Second, the suspect must have waived rights with full awareness of both 1) the nature of the right being abandoned and 2) the consequences of the decision to abandon it.

5. The Court of Appeals Ruled that Vinton’s waiver at the police station was a valid waiver.

a. The Court noted that even if suspect has somewhat diminished capacity to resist coercion due to mental defect, a waiver will not be invalidated on that basis if there is no evidence of police coercion. In other words, the coercion by police must be more than simple passive aggressive techniques to make the statement or investigation to appear less intimidating.

Methamphetamine Drug case from stop to sentencing

Ephedrine is a key ingredient in the manufacture of methamphetamine. In many clandestine labs, local manufacturers will purchase large amounts of over the counter pseudoephedrine pills (usually used for allergies). There is then a process used to break down the inert ingredients in the pills so that the only remaining ingredient is the ephedrine. That ephedrine is then used to manufacture methamphetamine. The most common processes used are the Birch method or the Cold method. Both ways are extremely dangerous and illegal.

This case involves the manufacturing of methamphetamine and many other issues. Including, Stops, Pat Downs, Miranda Warnings, Search and Seizure of Vehicles, Confidential Informants wearing wires to record conversations, use of prior convictions at trial, Conspiracies, recorded jail calls, tampering with witnesses and 18 U.S.C. 3553(a) factors for sentencing.

United States v. William Crippen
Op. App. from S.D. Iowa

Facts: Two people were manufacturing meth at their house. Crippen
provided the manufactures with pseudoephedrine pills on multiple occasions. When police searched the house where methamphetamine was manufactured, Crippen was arrested there as well. Crippen was in possession of methamphetamine when arrested. Crippen gave a statement denying involvement in the methamphetamine manufacturing operation. Law enforcement released Crippen. After being released Crippen started manufacturing his own methamphetamine with two other guys, including one from the previous arrest. (including one from previous
arrest). Later, Crippen was a passenger in a truck when officers observed that he did not have a seatbelt on. Officers began to follow the truck. The officer
stopped the truck. The driver was ticketed for insurance offenses.
Crippen was ticketed for the seat belt violation. As the officer was
dealing with Crippen he saw a coffee filter sticking out of his pocket. The officer believed that the coffee filter was not associated with coffee, but associated with meth. He knew Crippen was arrested at the first drug house in poss. of meth. The officers patted Crippen down and took the coffee filters. When the officer asked about the filters Crippen admitted there drugs in the truck. A search of the truck revealed baggies, propane tank, digital scale, receipts for purchase of
pseudoephedrine. Crippen and the driver were arrested. The driver
cooperated and later wore a wire against Crippen. After several recorded conversations, Officers got a warrant and searched the second house where methamphetamine was being manufactured. Crippen was arrested and charged with conpsiracy to manufacture/distribute methamphetamine and the manufacture and distribution of methamphetamine. While in custody awaiting trial Crippen then made several calls to people discussing how to prevent the driver from testifying against him.

Crippen was then also charged with conspiracy to tamper with a witness.

Crippen filed motion to suppress evidence as a result of the stop. This motion was granted in part as to the statements Crippen made after the stop, but before Miranda was read.

Crippen was convicted of conspiracy to manufacture methamphetamine and conspiracy to tamper with a witness. At sentencing, Crippen’s sentencing guideline range was determined to be 262-327 months (21.8 years – 27.25 years).

The District Court applied 18 U.S.C. § 3553(a) factors and applied a variance below the sentencing guidelines to 180 months (15 years). Crippen appealed the denial of his motion to suppress all the evidence, appealed his conviction on sufficiency of evidence and appealed the sentencing decision.

Issues:
(1) Motion to Suppress
a. Crippen objected to the original pat down of him because it was not
based on officer safety. An officer is only to engage in a pat down if it is for officer safety. The pat down is not to go any further than to look for weapons that might endanger the officer while the officer freezes the scene to investigate further.

1. The 8th Circuit Court of Appeals ruled the officer had reasonable suspicion because he knew Crippen was in possession of methamphetamine in past, coffee filters are part of methamphetamine manufacturing and therefore it is reasonable to suspect he might be armed and dangerous. At the federal level, drugs are considered a violent crime.

b. Crippen also challenged the search of the vehicle as fruit of the involuntary
statements made after the officer’s Miranda violation. The officer had asked Crippen questions after stopping the vehicle and after the pat down. Officers and Defendants are often confused about Miranda and when it applies. In your case, you might hear an officer say – I am not arresting you, or you are not under arrest, and then ask you questions. The subjective opinion of an officer as to when you are under arrest does not matter. The question is, were you seized for the purposes of Miranda. The Court’s don’t care what the officer thinks, instead, what is important is, what would a reasonable person (not a reasonable officer) believe? If a reasonable person would believe they were not free to leave, then Miranda applies and Miranda warnings must be read before any type of statement or information is elicited from the seized person. This is where Defendant’s usually get confused. Miranda only applies to statements. If an officer violates Miranda – does not read Miranda warning after seizing the person, but still asks questions – then the information from the statement is suppressed, not the arrest. Unless of course, the only way the evidence incriminating the Defendant was found was by the illegal conduct of the officer in questioning the accused before reading Miranda. That is was Crippen was alleging in his appeal. That the only way the officers found information leading to the conspiracy charge, the drug charge, the manufacturing charge and the house to be searched, was based upon the information illegally obtained by officers in his non-Mirandized statement. It is also important to remember that in order to challenge a search of a location – you must have standing, or the expectation to the privacy of the area searched. If you do something in public, there is no expectation of privacy. Other times, you may find out, as Crippen did, that you do not standing to challenge because it is not your area to expect the privacy.

1. The 8th Cit. said Crippen didn’t have standing to challenge the search of the motor vehicle even if the only way Officers gained the information about the vehicle contents was through his illegal statement. This is because Crippen was not the owner of the vehicle and he was the passenger and and the incriminating evidence was under driver’s seat.

(2) Motions in Limine
b. 404(b) and Prior Convictions

1. The 8th Circuit said Crippen’s prior convictions were admissible at trial because these were offered to prove knowledge of his actions and the intent of his actions. Prior convictions can’t be used to prove that simply because you committed an act in the past, you must have did it this time also. However, as this case shows, prior convictions can be used to prove the required elements of knowledge and intent. In this case, the prior convictions were used to show that Crippen knew what methamphetamine was, what the materials in the vehicle were to be used for and what his intent on possessing these items were for.

c. Crippen’s phone calls from Jail which contain hearsay from
others.

1. The 8th Circuit said these were recorded calls were not hearsay because the statements were not offered for the truth of the matter asserted, that he committed the crime of conspiring to intimidate a witness, but instead offered to show the content of the calls and whom he contacted. Hearsay can’t be offered to prove the truth of the matter asserted. However, if the statement can be shown to be offered for a reason other than the assertion (i.e. he was conspiring to intimidate a witness), then the statements can come in. There are also many exceptions to the hearsay rule. One example is s tatement against interests.

(3) Sentencing

a. Crippen claimed error in the Court applying a Career Offender enhancement because three convictions were from “one single criminal episode” and therefore he
doesn’t have two of the convictions that were applied. In the sentencing guidelines, there are many enhancements which can increase your guideline sentence. One enhancement is the Career Offender status. This determination looks at your previous criminal history. Sometimes, a person might be convicted of several acts that occurred in one behavioral incident. For example, there might be a robbery that occurs and during the robbery some property is damaged, so the person is convicted of both robbery and criminal damage to property. Or, some states have what is called a crime spree. This might be where a person steals items from several garages in a neighborhood all on one night. Some states will combine those acts for sentencing and consider the whole act as one act rather than several separate acts. That is what Crippen was trying to argue in his case. Just because a State Court may consider several cases at sentencing, does not mean the Federal Court has to apply the same analysis.

1. The 8th Circuit Court of Appeals said the two prior convictions apply because the convictions were separated by intervening arrest as Sentencing Guidelines 4A1.1 requires. Therefore, the career offender status applies. The Court said said it doesn’t matter if the convictions were on same day.

The Federal Court of Appeals 8th Circuit affirmed the 180 month sentence.
There are many factors that go into determining the validity of a stop, arrest, search and investigation. Our Constitution and the Rules of Court and Rules of Evidence control all these issues. If you have a question as to how your case is effected by these laws, please email or call Patrick Flanagan.
www.Patflanagandefense.com
PatrickFlanagan@Flanaganlawsite.com
651-200-3484; 763-786-5324