Wednesday, January 31, 2007

Ongoing Serial Murder Trial in Canada

CanWest News Service reports on the ongoing trial of Robert Pickton who may be Canada's most proficient serial killer. He has been charged with 26 homicides.

In the brutality stakes, Pickton didn't take a back seat to anyone.

Stay tuned....there's more to come.

Dangerous Franklin County Vehicle Search

State v. McManemy, No. 05-2014 (Iowa Ct. App. Jan. 31, 2007)

A Franklin County DNR officer saw a man with a gun get out of a Suburban parked by the side of the road. Because it is illegal to carry an uncased firearm in a vehicle, the officer stopped and got out to investigate. The officer recognized the man as McManemy. Asking for the gun, the officer unloaded it and then walked over to the Suburban where he saw one Callan sitting in the front seat.

A number of cased weapons were observed and an exposed gun was on the console. The officer issued citations to both people and confiscated nine long guns. McManemy mentioned something about a pistol but denied he had one. The officer, concerned for his safety went over to the vehicle and observed a green bag that was large enough to hold a pistol. He asked McManemy to open the bag, but McManemy turned his back and leaned over the bag. The officer ordered him out of the vehicle and McManemy dove in the snowbank with the bag, stuffing items into the snow.

The officer observed a baggie of methamphetamine, called for backup and arrested McManemy. The search of the vehicle recovered a pistol and nineteen grams of methamphetamine.

McManemy moved to suppress evidence seized in the warrantless search of his vehicle, arguing that there was no probable cause and exigent circumstances.

The court of appeals disagreed, finding that the exigency requirement was satisfied by a movable vehicle, the occupants are alerted, and the evidence might never be found if a warrant must be obtained. Probable cause to search the vehicle was satisfied by the officer's reasonable concern for public safety.

This situation could have ended very, very badly for a solo officer.

We often see "coyote hunters" in rural Iowa, and the record seems to suggest that more often than not the quest is for some midnight venison. Nevertheless, the prudent officer will handle any vehicle search where there is even a suggestion that weapons are involved with the greatest of care and concern for his or her security, as well as that of the vehicle's occupants.

As it happened a substantial amount of methamphetamine was recovered, far more than would be consistent with personal use. People have been killed for a lot less.

Stay safe out there.

Consent Search Standard of Proof is Preponderance

State v. Chidester, No. 06-0566 (Iowa Ct. App. Jan. 31 2007).

Chidester's vehicle was stopped by a Waterloo PD officer because the taillights were out. A consent search of the car produced no contraband. The officer asked Chidester if he could perform a patdown search for officer safety and Chidester somewhat reluctantly assented. A marijuana pipe was recovered, Chidester was arrested, and in a search incident to arrest a package of methamphetamine was recovered.

Chidester moved to suppress the evidence. Although Chidester had not been Mirandized after the arrest, the trial court did not suppress the patdown or the search incident to arrest. The court of appeals held that the state had met its burden to show by a preponderance of evidence that the defendant had consented ot the search.

The takehome from this case for all of us who work in the field is the legal standard the state has to meet in a motion to suppress the fruits of a consent search. It is preponderance of the evidence, NOT reasonable doubt.

Wednesday, January 24, 2007

News From The Field

Here's a letter from a correspondent. It reads, in part:

Dear Sparky,

Is it just me or does it seem that SOME defense attorneys continue to bring up old arguments that never seem to work out for their client? I realize they got a job to do (challenge big-brother), but it just seems they either are trying to put on a "show" for their client or they're throwing "hail-mary" arguements that never seemed to work.

Example, our office receives a letter every quarter from the AG's office. This letter shows the results of numerous court rulings all over the state that relate to "Search and Seizure" and you can read the facts of the case and what the courts decided. And to be honest, it seems like the same issues are argued over and over.

Well, I was reading one where an officer/deputy pulled over a car after it was seen that the 3rd brake light wasn't working properly. Once stopped, the defendant ended up getting arrested for something (OWI or Dope I think).

During court, the defense made the motion to supress citing the officer/deputy's stop was unlawful because both brake lights were working and the third wasn't required. Well, it clearly says in the Iowa Code, "ALL FACTORY LIGHTING MUST BE IN WORKING ORDER" and this of course would mean the (3rd) lite would also have to work.

My point is.....why would they even try to argue that issue? I guess I'm hoping you can explain that for'd think after all the prior rulings, everything is laid out and arguing is a waste of time.

The answer, from the defense attorney's perspective is twofold and they both compel the result.

First of all, it's a gambit to see if you can catch the opposition napping. It happens, more than you'd think, that officers and county attorneys aren't up on the latest nuances of search and seizure law-maybe up on ANY nuances, for that matter, because they've been too busy rounding up bad guys to read the Iowa Law Enforcement Reporter, your source for cutting edge court decisions in Iowa.

In fact the first thing I do when I get a new case is go to the agency and get the police report to see if there's a get out of jail free card in it for my client.

Second and more nefarious is the ever popular "ineffective assistance of counsel" noises that the Iowa Appellate Defender makes in every damn case they catch, and the constant hectoring of Defendants in Denial to "work my case!"

As a practical matter, I had an experience like this with a client a while ago. She's accumulated four drug convictions and done time-in short, wasted the last fifteen years of her life in and out of prison. So she gets nabbed-again. Parole violation with 25 years behind, the triple punishment threat, the drug charge escalated to a felony and to top it all off, the Bitch.

So I get her a pretty sweet deal considering. Plead and go, they'll drop the habitual offender enhancement and take concurrency with the parole violation.She's OK with it. But then, they move her somewhere where she's hobnobbing with the guardhouse lawyers.

Two days later she calls me "Hey! I can't do this time! I've been looking at these predicate charges that underpin the one I've got now, and I was in prison those times so I couldn't have done that. They're not my charges, it must have been somebody else! I need you to clear them off my record, the charge will be reduced to a misdemeanor, and I'll get released and the parole violation will go away."

I tell her, "Look....even if that wasn't you, the time to appeal those cases is long since gone. Let's concentrate on what you can do today." She says "That's bullshit, man! I just can't seem to get you off your ass to work my case!" I say, "I'll pull the files but don't expect much from them. And look. Don't call me from the jail unless it's an emergency. I'm not going to sit here and listen to you scream at me. I'm not your punching bag."

Shee says "Well then, I want you to remove yourself from my case." I say "Are you sure about that?" She says "You're damn right-you're fired." and hangs up.

Then, I get feeling guilty. So I pull up the files , map out a timeline and there's no overlap. Hell, one of the cases was actually a trial. She was in prison good and proper, all nicely buttoned up.

That's the unreasonableness of the people we deal and the demands they make on a daily basis. Denial is so ingrained in them that they make unreasonable demands and unleash the hellhounds on their attorneys when the magic wand doesn't turn crap into gold at their command. And to be sure, they've done well with denial and rage-it's usually sufficient to intimidate a lot of people, until they try to use it against their own criminal records.

Because of that, there is an attorney tendency to dot every i and cross every t, no matter how insignificant it may seem and no matter how many times it's been done before.

Tuesday, January 23, 2007

Fruit of the Poisonous Tree and a Cast of Thousands: Everything's Up to Date in Jasper County

State v. Lane, No. 04-1147 (Iowa January 19, 2007)

A Jasper County deputy saw one Hammer, a known barred motorist behind the wheel. Before he was able to take action he observed Hammer bail out and the passenger drive off. After acquiring the license information from the car the deputy saw Hammer enter a garage at the residence of one Hoffert.

Backup was summoned to arrest Hammer and one Hedlund came out, saw the sheriff's men, said "It's the cops!" and reentered the garage, where the deputies found Hedlund, Hammer and one Lane. Lane was observed stuffing something in a thermal mug and placing it on the floor. When the deputy lifted the plastic bag from the mouth of the mug he observed what provedto be a plastic bag of methamphetamine and scales. It was known that Lane was a large scale dealer who carried his stash in a thermal mug.

There was some colloquy:

Lane: Do you have a warrant?
Deputy: Did you just graduate from law school?
Lane: No.
Deputy: This badge pretty much lets me do what I need to.

A warrant was gotten and the area was secured. While this was happening one Hogan, Lane's girlfriend and a known drug user was seen driving down the street. Officers went to the residence, were admitted by Hogan's daughter, and informed Hogan that Lane was under arrest for possession. Hogan gave permission to search the upper floor of the residence. Drug paraphernalia and a lockbox were found, but Hogan did not have a key.

After Mirandizing Lane he was asked about the lockbox and admitted it contained a large stash of methamphetamine. Lane told the deputy where the key could be found and when the box was opened better than 300 gm of methamphetamine was seized.

Lane moved to suppress the evidence seized at the garage as a result of an illegal search. He argued that the illegality of the search tainted the search of the house.

The trial court, Judge Huscher presiding, found that the search and seizure of the garage could not stand because there was no hot pursuit or exigent circumstances, but as long as the consent to search at the residence was voluntarily given, the evidence was lawfully obtained.

The State bore the burden of proving consent to search was voluntary. Hogan, a woman with an 8th grade education, testified she did not read the consent to search form, but the officer testified he'd read the form to Hogan, explained it and that she appeared to understand what was presented to her.

The court noted that the officers were permitted to enter the residence, and the officer and Hogan had known each other for years-as often happens in our rural counties. The officers did not mislead Hogan as to why they were there, and there was no suggestion that Hogan was going to be arrested. She signed her name and printed it as well with her birthdate and social security number.

Using a totality of the circumstances analysis, the court found that the consent to search was voluntarily given.

Next, the court turned to the appendant "fruit of the poisonous tree" argument, which concerns secondary evidence obtained because of a prior illegality. Under Iowa precedent it was unnecessary to consider whether there was a break in the illegal entry and the subsequent consent.

The Court indicates that the correct inquiry is whether the evidence and not the consent was obtained as the product of the first, illegal search. In a consent case, the question is going to be whether the consent was obtained through exploitation of the previous illegality or not.

Under the facts of this case, it was found that the consent search of the house was authorized by Hogan. She had no knowledge of the illegal entry at the garage and Hogan was never deprived of her liberty.

Chief Justice Ternus dissented because she concludes that the prior illegal entry of the garage provided a significant lead in terms of what other evidence could be obtained and thus led directly to Hogan. Justice Wiggins also dissented for similar reasons although in more detail.

Stay tuned. This one's headed downtown, I fear.

The takehome's clear for the officer on the street. Timing is EVERYTHING.

Although the Supremes bent over backward to save a good bust, the problem might not have occurred to begin with if the officers had just taken a deep breath, secured the area and obtained a warrant to search the garage based on what they saw Lane do, without going farther into the matter.

In addition, even had the state lost the case, 300 grams of deadly poison was removed from the streets, and that had to put Lane on the outs with his financiers-which may have been reason enough to stretch the envelope to the point of rupture.

Arrest Warrants: The Gift That Keeps On Giving

State v. Nielsen, No. 06-0207, (Iowa Ct. App. Jan. 18, 2007)

An arrest warrant was issued for Nielsen's arrest on a charge of Theft-5th, with a 100 mile transportation limit on the warrant.

Over a year later, two Oelwein police officers checked the license plate of a car leaving a convenience store and learned there was an existing warrant for Nielsen and that there was a 100 mile limit on the warrant. While awaiting verification of the transportation limit, the officers stopped the car.

Nielsen provided a Florida driver's license. At the same time, the Oelwein officers were advised that the Sac County sheriff was not going to come and retrieve the wayward Nielsen. One officer asked Neilsen for permission to search his car, which was given. Police uncovered s significant amount of methamphetamine and arrested Nielsen.

Nielsen moved to suppress the evidence uncovered in the search, and the trial court overruled. This appeal followed. Nielsen first argues that the warrant was invalid beyond the self imposed 100 mile limit attached by Sac County. The court differed, saying that an arrest warrant is directed to "any peace officer in the state" and it may be served anywhere in the state. The court said that an administrative limit imposed on the warrant did not define the territorial scope of the warrant. Thus, an investigatory stop was justified.

Nielsen argued that his consent to search was coerced. The record and testimony indicated there was nothing to indicate that the officer's statements or actions were coercive.

In a spank to the Appellate Defender, the court admonished thusly: "We note the lack of any evidentiary support for appellate counsel's claims concerning a threatened delay pending arrival of a drug dog."

Officer's Observations Justify Implied Consent

State v. Welshhons, No. 06-1040 (Iowa Ct. App. Jan. 18, 2007)

Welshhons was driving a pickup when he center punched an SUV on Douglas Avenue in the Highland Park are of Des Moines, killing a two year old passenger. Officers observed a beer bottle in Welshhons' truck and detected an odor of adult beverage. An hour and twenty minutes later officers arrived at the hospital where Welshhons had been taken for his injuries which were significant. The officer concluded he was in no condition to conduct a full on drug recognition exam.

At 11:58 pm a PBT was administered. Based on the results the implied consent procedure was instituted and a urine sample from the catheter bag proved positive for alcohol, amphetamines and marijuana.

Welshhons moved to suppress the evidence, argung that the implied consent procedures were improperly invoked because the officer had no reasonable grounds to believe he was operating under the influence.

The Court of Appeals differed, stating that when the preliminary results of the PBT show the presence of alcohol a prudent person would be warranted in requesting a more accurate test.

Thursday, January 18, 2007

Stuart Police Chief: J'accuse!

It's reported today by the Register that Carol Rayburn, deposed chief of the Stuart Police Department, made her case in front of the city council that abruptly fired her on December 8 of last year. Rayburn, it is reported, is concerned that the abrupt dismissal jeopardizes any future she may have had in law enforcement. Carol was police chief of Stuart for seven years.

As an interesting note, a person interviewed observed that 39 officers had been through the department in three years before Rayburn arrived on the scene and brought order out of chaos.

Apparently, the city council prefers chaos.

As a homily for young officers and those changing departments it bears repeating....figure out how many people have been through that revolving door and how fast it's spinning before you stick your head into it.

Stay tuned.....this could get interesting.

Cold Case Hits in Iowa

It is reported today in the Register that a Des Moines man was arrested and charged with the murder of Karen Weber of Colfax back in 1986. Martin Duffy's DNA was taken and added to a state database which logs the DNA profiles of convicted felons. A comparison of DNA from cold cases led to the match and the arrest of Duffy, who is now lodged in the Jasper County jail awaiting trial.

A previous cold case hit from the DNA database program occurred in January with the arrest of a Prairie City man in connection with an 11 year old rape and kidnaping case involving the abduction of a 13 year old girl.

These are all interesting developments. It's a big step forward in demonstrating to those who seek to practice the criminal arts that they can run but they can't hide. It's also a big step forward in getting justice for the victims of such terrible offenses.

Tuesday, January 16, 2007

This Week's "Too Stupid To Live" Award

This just in from the Herald News.

It seems that one Andrew Erickson, a student at Bristol Community College in Rhode Island submitted his final exam in a computer systems class on a CD.

However, what Andrew actually did was submit a CD which contained explicit child pornography pics. The professor, astounded, turned the CD over to authorities and charges are pending.

Erickson realized somewhere along the line that he'd submitted the wrong disc and tried to get it back. He sent an email to the prof saying "Oh snap. I am sorry. I accidentally gave you my friend's mixed music CD that I meant to keep here and install on my computer....I am sorry and hope that it didn't affect the grade at all."

Well, what to make of this? Several things appear relevant. Andrews spends too much time watching the Jaime Pressly character in "My Name Is Earl". Andrew's also something of a liar who's not above trying to blame others for his errors.

Friday, January 12, 2007

North Carolina Police Officer Dies During Foot Chase

It was reported today that a North Carolina police officer died of a heart attack while in foot pursuit of a suspect today. The officer was only thirty four years old. It was not clear from the article what the exact circumstances were, or whether there was some coronary defect that was unknown until today.

This brings up an important point for any officer who does more than drive a desk.

Cardiovascular health and fitness is as necessary to getting home unharmed after the shift as a safety check and a reliable weapon can be.

Anyone whose job involves inactivity and short bursts of extreme energy should take this as a caution. If that's you, and you're maybe packing a few extra pounds, take the time to look at all the things that can affect your cardiac health-smoking, stress, trouble at home, bad eating habits, lack of fitness.

Make the changes you need to, and get a clean bill of health from the medic. Get in shape and then go run those felons to ground.....chances are you're in better shape than the average suspect anyway.

Thursday, January 11, 2007

State v. Harper Forfeiture By Wrongdoing UPDATE

A tip o' the helmet to Deputy Jason Barnes of the Madison County Sheriff's Office for this update.

It is reported in the Fort Dodge Messenger this day that the Iowa Supreme Court has refused to hear an interlocutory appeal on behalf of Sessions Harper. The appeal sought to overturn the decision of the Webster County District Court to allow into evidence statements made by the victim to emergency room personnel before she died.

Any way you slice it, this issue will be argued in the appeal of right that will follow Harper's conviction, which seems likely at this point.

The case is set for trial this month. Stay tuned.

Thursday, January 04, 2007

Cold Cases In The News

There's a recent report of what may be the coldest case on record.

In the British Medical Journal was reported recently that the death of Francisco de Medici and his wife, Bianca Cappello, were most likely murdered in 1587 by Francisco's brother Ferdinando.

The Grand Duke of Tuscany and the Duchess were visited in Florence by Ferdinando and they fell ill and died shortly thereafter. Ferdinando would have been excluded from the line of succession to the throne if Francisco's illegitimate son succeeded him, or if Bianca Cappello, who was unable to have children, were to produce a false heir.

Ferdinando stepped into the breach and managed the entire affair by applied information control so as to remove any suspicion that the death was anything other than natural. The Grand Duke received a state funeral but the Duchess was alleged to have been buried in a common grave in the town of San Lorenzo.

As it turns out, four terra cotta jars containing the viscera of the Duke and Duchess were buried in a church close to the Grand Duke's villa. These were exhumed in 1857 and the possibility of poisoning was first raised.

Most recently, a forensic toxicology professor and a professor of medical history from the University of Florence reexamined the case, because the doctors' reports at the time of the fatal events were consistent with what we know of poisoning.

Biological material from the grave of Francisco and from the terra cotta jars in the church of Santa Maria a Bonistallo were examined with modern toxicological tools and methods, and it is quite likely that the royal couple were victims of acute arsenic poisoning.

The closest I ever came to anything like this was in dismissing charges against one Kevin Dickson, who had disappeared only to be discovered in a cistern behind an abandoned farmhouse in Clarke County, Iowa a decade later. As it happened, one Martin Moon was convicted of the crime after the remains were discovered and is now taking his ease at a fine state institution even as we speak.