BellFolsom

No Trespassing

bellfolsom — Sat, 11 Feb 2012 21:33:09 +0000

In Jones v. United States, 565 U.S. _______ (2012), the United States Supreme Court ruled that the police performed a “search” when they attached a GPS tracker to Jones’ car. While all the justices reached the same conclusion, they traveled different paths to get there. Writing for the majority, Justice Scalia revived the Fourth Amendment’s trespass theory. Simply put, it holds that the government performs a search when it trespasses on a person’s property to collect evidence. Courts had used the trespass theory until the Supreme Court’s decision in Katz v. United States, 389 U.S. 347 (1967). In Katz, the Court formulated a new theory: the reasonable expectation of privacy theory. Under this theory, the government performs a search whenever it invades an area in which a person has a reasonable expectation of privacy. After Katz, almost every search or seizure question was analyzed with the reasonable expectation of privacy theory while the trespass theory was largely relegated to the dustbin of constitutional history.

Until Scalia’s opinion in Jones. Scalia explained how Katz did not replace the trespass theory with something else; Katz actually added a whole new theory. These two theories are now mutually exclusive. They exist as independent but parallel barriers to the introduction of evidence seized through warrantless searches. Scalia’s revival of the trespass theory gives constitutional practitioners another front to litigate the merits of state action.

But how narrow will that front be? Justice Alito’s concurring opinion goes further than Scalia’s. It says that putting the GPS on Jones’ vehicle and tracking his movements for two weeks was an invasion of his reasonable expectation of privacy. Alito’s opinion does offer some qualifications which essentially say that his result is determined by the facts of this particular case. A shorter or less extensive monitoring might not implicate the Fourth Amendment. Justice Sotomayor wrote separately to articulate the heart of the case: technological advancement is beginning to outpace the law’s ability to adapt to it. The authors of the Fourth Amendment cannot have envisioned the world we now live in. Sotomayor’s opinion suggests she thinks it’s time for the Supreme Court to reevaluate the ideas that undergird its Fourth Amendment analyses.

Pay attention to what the Court did not decide. The Court did not hold that affixing the GPS unit to Jones’ car was an unreasonable search. Only that it was a search. The Fourth Amendment doesn’t prohibit all warrantless searches, just unreasonable ones. Scalia specifically pointed out that the government waived this argument and so the Court wasn’t going to decide it. The Court could later hold that placing a GPS unit on a vehicle is a reasonable search and doesn’t require a warrant. Until it does, the government will need a warrant to trespass to any person’s property.

We Should Expand the Exclusionary Rule

bellfolsom — Sat, 04 Feb 2012 16:07:32 +0000

I recently finished presenting evidence in a three day trial against the State of Kansas. Specifically, we alleged that my client received ineffective assistance of counsel. During the trial, one of the prosecution’s witnesses deliberately disregarded a court order and failed to preserve evidence. That evidence would have helped my client show he wasn’t guilty of the charges. Appellate counsel framed this is as a discovery order issue when it should have been framed as a Arizona v. Youngblood issue.

Arizona v. Youngblood and subsequent cases say that the prosecution’s failure to preserve evidence it knows will be potentially useful to the defense is a constitutional due process violation. The remedy for the violation depends on how much the evidence would have helped the defense. That’s the wrong remedy.

The right remedy is one that will deter the prosecution from destroying evidence. That’s why the exclusionary rule exists. It is a synthetic deterrent – a judicially-created rule – that excludes illegally-obtained evidence. The rule exists to deter police from violating the constitutional rights of citizens. The thinking is that if the police know that the evidence won’t be admitted at trial then they won’t violate a person’s rights to get that evidence.

Shouldn’t we apply that same rationale to destruction of evidence? Let’s compare the two situations. Take a police officer in the field who makes a quick decision to search a suspect without considering whether he’s entitled to do it. Compare that to someone who knows that evidence could help the defendant at trial and destroys it anyway. If we could only deter one of those activities, wouldn’t it be the latter?

But we don’t. Instead, we look and see how much the destroyed evidence would have helped the defendant at trial. This is a process witnesses aren’t allowed to do (it’s called speculation) but apparently judges who were were not in courtroom to hear the live evidence are perfectly free to do (they’re called appellate judges).. The courts regularly decide that the destroyed evidence wouldn’t have mattered at trial and uphold the conviction. The police know they can get away with it and have no incentive to stop.

We should apply the exclusionary rule to these situations. The intentional destruction of exculpatory evidence mocks the idea of a just society. We shouldn’t just deter it, we should punish it.

Police Can’t Always Search Incident to Arrest

bellfolsom — Sat, 07 Jan 2012 14:38:10 +0000

In State v. Oram, No. 104,163, Misti Oram was pulled over by sheriff’s deputies conducting a routine traffic stop. Oram was eventually arrested for obstruction of justice, and her passenger was arrested on an outstanding warrant. The deputies handcuffed Oram and her passenger and placed them in the backseat of separate patrol cars. Then the deputies searched the car and found a white paper bag containing what they believed to be marijuana.

The trial court admitted the evidence of the marijuana, and the jury found Oram guilty of possession of marijuana. However, the Kansas Court of Appeals reversed the jury’s decision.

It explained that the deputies unreasonably searched of Oram’s car and that therefore the marijuana should not have been admitted at trial as a piece of evidence against Oram. Generally, to justify a warrantless search incident to arrest, like the one conducted by the deputies, police officers must limit their search to the immediate presence of the arrestee to protect themselves from attack or keep the arrestee from escaping. The Kansas Court of Appeals found that Oram was no longer within the immediate presence of her car when the deputies searched it because she was handcuffed and seated in the back of a patrol car. The Kansas Court of Appeals found further that because Oram was handcuffed and in the back of the patrol car the deputies could not have been worried about Oram escaping or threatening their safety. Therefore, the search was unreasonable.

The evidence against her was suppressed, and the case will most likely be dismissed. If you’ve been the victim of an illegal search, contact Bell Folsom today so we can start fighting for you.

Sometimes A Video Is A Writing; Sometimes It Isn’t

bellfolsom — Mon, 26 Dec 2011 19:50:29 +0000

In State v. Dale, No. 99,781, Dale robbed a flower shop using a gun and then attempted to flee on foot. His flight ended when he traded fire with the police, as he was shot, injured, and subsequently arrested.

At trial the State admitted two DVDs with video of the incident taken from a patrol car. One portrayed the events at regular speed, the other portrayed them in slow motion. The district court overruled Dale’s objection that the slow motion video was cumulative and violated the best evidence rule. Dale was ultimately convicted of attempted first degree murder, agg robbery, and three counts of agg assault.

The best evidence rule provides: “As tending to prove the content of a writing, no evidence other than the writing itself is admissible.” K.S.A. 60-467(a). Videos qualify as a “writing.”

The Supreme Court found that the introduction of the slow motion DVD did not violate the Kansas best evidence rule because it was not introduced to prove the content of a writing (i.e. the video) because the best evidence (the original speed video) had already been admitted. The Court also found that the slow motion video was not cumulative because it enabled the jury to carefully review the actual sequence of events and shots fired. Also, it corroborated the testimony of one of the officers with whom Dale had traded fire.

This holding may be limited to cases where video evidence captures lots of significant action in a small moment. The Supreme Court noted that the Court of Appeals affirmed the trial court’s admission of the video because it helped jurors “determine the actual sequence of events as they occurred over a very short space of time.” Furthermore, the Court purported in its Syllabus to limit its holdings to “the facts of this case.”

It’s important to have an attorney who understands the rules of evidence. A jury should only use the most reliable evidence to make its decision. If you or a loved one is facing criminal charges, contact an experienced attorney at Bell Folsom, P.A today.

Kansas Supreme Court Rule 226

bellfolsom — Thu, 08 Dec 2011 00:21:52 +0000

Kansas Supreme Court Rule 226 – Kansas Rules of Professional Conduct 7.1(b) – states that a lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it:

(a) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;
(b) is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the rules of professional conduct or other law; or
(c) compares the lawyer’s services with other lawyer’s services, unless the comparison can be factually substantiated.

Disclaimer: Each case is different. Just because we achieve a result on a particular case or particular charge does not mean that we will be able to achieve the same result for your case or charge. This is not a full list of all case dispositions. We provide this for informational purposes only. Case names have been altered to protect the confidentiality of our clients.

bellfolsom — Sat, 19 Nov 2011 15:14:58 +0000

In State v. Johnson, No. 105,598, the Kansas Court of appeals decided a matter of first impression in Kansas. Johnson was convicted in the district court of aggravated battery (the latter via aiding and abetting), when she seemingly encouraged a man she had picked up at a bar to injure her paramour for a perceived indiscretion. Johnson was not present when the aggravated battery occurred, nor did she actually transport anyone to the location of the battery. In the light most favorable to the prosecution, her only involvement was to tell her paramour of the indiscretion, ask him to “take care of it,” and give directions to the victim’s house.

On appeal, the Kansas Court of Appeals had to determine whether K.S.A. 21-3205 (aiding and abetting statute) provides alternative means. At its core, an alternative means statute is one that can be broken in several different ways. For example, the same law might make it a crime to both possess and possess with intent to distribute a controlled substance. A person can break that law by either possession OR possessing with intent to distribute the controlled substance. Doing either one of those things is a violation of the law. To be fair to the defendant in a criminal case, the prosecution must either 1) elect which of the alternative means it wishes to prove or 2) allow the court to instruct the jury that they must be unanimous in the particular mean in which the statute was violated.

But the Kansas Court of Appeals held that the aiding and abetting statute was not an alternative means statute. The terms “aids,” “abets,” “advises,” “hires,” “counsels,” and “procures” do not entail materially different or distinct ways of committing a particular crime. The Court described these words as “various examples” rather than alternative means…and that “it is not the precise characterization of a person’s actions but rather his/her purpose in undertaking such actions that is of import.”

An aider and abettor is typically guilty of the same crime as the person who actually commits the crime. But what actually constitutes aiding and abetting is not always certain. In this case, the appellate court had an opportunity to clarify what actions will trigger a violation of the law but chose not to do so.

If you’ve been charged with a crime and don’t know where to turn, contact the experienced criminal defense attorneys at Bell Folsom, P.A. today.

Kansas Court of Appeals Holds Third-Party Compulsion Defense Applies to Prison Escapees

bellfolsom — Tue, 08 Nov 2011 22:04:11 +0000

In State v. Ottinger, the defendant was ordered – for probation – to complete the Sedgwick County Community Corrections Program at the Adult Residential Center (“the Center”). He was also ordered to have no contact with his wife – codefendant in the same case. On August 28, 2010, Ottinger was granted permission to leave the center from 8 – 11 AM. He never returned. He was later arrested and claimed the defense of “compulsion” because he had needed to care for his son and his suicidal wife. The district court granted the State’s motion in limine to prevent Ottinger from testifying about his need to escape.

The Court of Appeals affirmed the State’s motion, holding that – though the compulsion defense can be asserted by a defendant to protect his family – Ottinger did not qualify because he failed to establish that his wife was in imminent danger when he “escaped” from the Center. Specifically, the court held that Ottinger had failed to produce evidence that he reasonably believed her life was in imminent danger. But the Court of Appeals overruled State v. Kelly, 21 Kan. App. 2d 114, rev. denied 258 Kan. 861 (1995), which held that a prison escapee could not assert the compulsion defense to protect third parties. The Ottinger panel held that Kelly was wrongly decided and that escaped prisoners could claim compulsion as a defense of their crime. In other words, if a prisoner reasonably believed that he or she had to escape in order to save someone’s life, that would not be a crime.

If you or a loved one is facing criminal charges, contact an experienced criminal attorney at Bell Folsom, P.A. today.

Waivers Have Consequences

bellfolsom — Fri, 30 Sep 2011 15:54:39 +0000

Recently, the Kansas Court of Appeals was faced with the case of Mr. Anthony Barnes. State v. Barnes, No. 100,710 (Kan. Ct. App. Sept. 23, 2011). Mr. Barnes suffers from various mental illness including chronic paranoid schizophrenia. In Sedgwick County, he was charged with one charge of first-degree premeditated murder and one charge of aggravated assault. During his jury trial, he decided to waive his right to a jury trial and continue with a bench trial to be decided by the judge. At the trial court, the court spend a significant amount of time trying to explain the significance of waiving a right to jury trial. However, even at the end of their discussion, the court had a difficult time getting the defendant to confirm he understood what was happening to him. Eventually, the court did decide that Mr. Barnes was competent to waive his right to jury trial. The defense went on to put on evidence of Mr. Barnes’ schizophrenia disorder. A psychatric evaluation concluded Mr. Barnes’ mental illness prevented him from having the requisite intent to commit premidated murder and aggravated assault.owever, he was found guilty and sentenced to life in prison with a consecutive 14 months for the aggravated assault.

On appeal, Mr. Barnes raised the following five issues:

(1) Whether the district judge erred by failing to investigate Barnes’ competency to stand trial rather than accepting his waiver of jury trial;

(2) Whether Barnes’ waiver of his right to jury trial was knowing and voluntary;

(3) Whether there was sufficient evidence to support Barnes’ possession of the requisite mental state for first-degree premeditated murder and aggravated assault;

(4) Whether the district judge erred by relying on Barnes’ criminal history score to impose sentence, when Barnes’ criminal record had not been proved to a jury; and

(5) Whether the district judge erred in sentencing Barnes to the high number in the range assigned to the presumptive grid box for the aggravated assault. Id. at 3

The Kansas Court of Appeals begins by looking at the Kansas statute for incompetency to stand trial. K.S.A. 22-3301(1) reads “a person is ‘incompetent to stand trial’ when he is charged with a crime and, because of mental illness or defect is unable: (a) To understand the nature and purpose of the proceedings against him; or (b) to make or assist in making his defense.” The court notes that a criminal defendant is presumed competent to stand trial. State v. Cellier, 263 Kan. 54, Syl. ¶ 6, 948 P.2d 616 (1997). Here, the court recognizes Barnes was having difficulty with the options of a bench trial versus a jury trial. However, the court interperts Mr. Barnes confusion and apprehension as “indecision…induced by his realization that he had only unpleasant options.” Id. at 31. The court finds his inability to answer questions clearly is due to his guilt about the crime comitted, not his mental illness.

Therefore, the court’s interaction with the defendant in its efforts to explain the right to jury trial was sufficient. The judge did not err in failing to investigate Barnes’ compentency to stand trial and the waiver of his jury trial was knowing and voluntary.

Barnes also argues that the district erred in finding Barnes had the requisite mental state for his crimes. The defense presented medical evidence that the defendant was not capable of forming the intent at the time the crimes were committed, and the State did not try to refute this evidence. Here, the Court of Appeals finds the trial judge did consider the evidence presented by the defense, but simply did not find it as persuasive as the testimony of the eyewitnesses present when the murder was committed. Because her verdict was based on admissible evidence, it was reasonable.

Finally, the court rejects the final two arguments of Mr. Barnes based on precedent. A judge may rely upon a criminal history score to impose a sentence without requiring the State to prove the prior convictions to a jury beyond a reasonable doubt. Similarly, the State is not required to prove any evidence to the jury before a judge imposes upper term of sentence in the range assigned to a presumptive grid box under the Kansas Sentencing Guidelines Act.

Before you waive an important right, speak to a qualified criminal defense attorney at Bell Folsom, P.A.

Racial Profiling Still Difficult to Prove

bellfolsom — Fri, 16 Sep 2011 22:45:47 +0000

In United States v. Flores-Olmos, a recent case brought before the Tenth Circuit, Mr. Ruben Flores-Olmos argued he was the victim of racial profiling. In his case, Mr. Flores-Olmos was stopped by a Oklahoma deputy after the deputy caught sight of a passenger in his pickup hanging his upper body out of the passenger-side window in a fifty-mile per hour zone. Due to the way the passenger was situated, the deputy believed the passenger was not wearing a seatbelt, in violation of Oklahoma law. The deputy stopped the truck and asked for identification from the driver, Mr. Flores-Olmos. He was unable to produce a driver’s license or ID. When asked, he admitted he was not in the U.S. legally.

As a result of the stop, Mr. Flores-Olmos pled guilty to one count of being an alien in the United States after deportation, but reserved his right to appeal the trial court’s denial of his motion to suppress evidence acquired during the traffic stop. On appeal to the Tenth Circuit, he argued that the officer targeted his truck because he appeared to be of hispanic dissent. In addition, he claims that the Oklahoma seatbelt law is ambiguous.

The Tenth Circuit panel began by observing that a traffic stop must be reasonable to comply with the Fourth Amendment. Id. at 3. A stop is reasonable if “it is based on an observed traffic violation or a reasonable articulable suspicion that such a violation has occurred or is occurring.” Id. (citing United States v. Botero-Ospina, 71. F.3d 783, 787 (10th Cir. 1995). Here, the Court agreed with the lower court’s finding that the deputy had reasonable cause to stop Mr. Flores-Olmos’ pickup because he observed what appeared to be a person without a seatbelt on in the front of the vehicle. As a result, he had a reasonable suspicion that a violation of Oklahoma seatbelt law had occurred.

Next, the court found the deputy had the right to inquire about Mr. Flores-Olmos immigration status. An officer has general authority to inquire about possible immigration violations.

The court rejected the racial-profiling argument of Mr. Flores-Olmos. To succeed on a racial profiling claim, a defendant must show the following:

evidence from which a jury could reasonably infer that the law enforcement officials involved were motivated by a discriminatory purpose and their actions had a discriminatory effect. To satisfy the discriminatory-effect element, one who claims selective enforcement must . . . make a credible showing that a similarly-situated individual of another race could have been, but was not, [stopped or] arrested . . . for the offense for which the defendant was [stopped or] arrested. . . . And the discriminatory-purpose element requires a showing that discriminatory intent was a motivating factor in the decision to enforce the criminal law against the defendant. Discriminatory intent can be shown by either direct or circumstantial evidence. Id. at 5

This standard is difficult to show. Moreover, here, there evidence showed the stop was based on a traffic violation, not on Mr. Flores-Olmos’ appearance. There was no evidence that the deputy even saw Mr. Flores-Olmos before approaching his vehicle at the time of the traffic stop. As a result, court found the stop was justified and not based on discriminatory motives. Lastly, the court finds the Oklahoma seatbelt law is not ambiguous. As a result, the court affirmed the judgement of the district court, affirming his conviction.

“Black Man with Facial Hair” Is Not Enough to Arrest Someone

bellfolsom — Mon, 12 Sep 2011 16:41:11 +0000

In a recent opinion by the Kansas Supreme Court, the court reversed the conviction of Robert Johnson. See State v. Johnson, No. 98,812 (Kan Sept. 2, 2011). In State v. Johnson, Mr. Johnson was charged with one felony county of possession of cocaine, one misdimeanor count of possession of marijuana, and one felony count of possession of a controlled substance without a tax stamp.

At trial, Mr. Johnson argued all the evidence found during a search of his person should be suppressed because he was unlawfully seized and searched. Mr. Johnson was stopped by a FBI task force looking for another individual, a Shane Thompson. The FBI task force saw Mr. Johnson walking on a sidewalk near the residence of Thompson and claimed he fit the physical description of a “black man with facial hair.” They stopped Mr. Johnson on the sidewalk and performed a pat-down search, discovering drugs. At trial, the judge allowed the evidence in and the jury convicted Mr. Johnson of the possession counts.

On appeal to the Kansas Supreme Court, Mr. Johnson again argued the evidence should have been suppressed. He argued that the task force officers lacked reasonable suspicion to believe that he was committing or about to commit a crime. The supreme court first found that Mr. Johnson was seized the moment the officers activated their emergency lights and exited their cars, some with guns drawn.

Next, the court considered whether the officers were justified in seizing and searching Mr. Johson. The facts were undisputed and court found the officers did not have reasonable suspicion that Mr. Johnson was committing or about to commit a crime. In particular, the court found “(1) Johnson’s location was not related to criminal activity; (2) there is no evidence that the officers used reliable information; and (3) the physical description of “black man with facial hair” was too broad to be of any assistance in formulating reasonable suspicion.” Id. at 8. Therefore, as a matter of law, the officers did not have sufficient suspicion to stop Mr. Johnson. The search was a violation of the Fourth Amendment. As a result, the court reversed the ruling of the lower courts and vacated the sentence.

If you have been illegally searched and/or arrested contact an experienced criminal defense attorney at Bell Folsom, P.A. today.