Thursday, July 30, 2009

Two Forfeitures, Two Results

there are a lot of things happening here so it's taken me this long to get to it. Let the follies begin. There are a couple of important forfeiture cases.

In re Property Seized From Lamaak, no. 08-1706 (Iowa Ct. App. July 22, 2009)

Lamaak owned two homes which were searched pursuant to a warrant. In the newer of the two homes police seized marijuana, methamphetamine type stuff, guns three concealed bags with $28,000 in them, and $1,143 from Lamaak's person. The older house had evidence of a marijuana grow operation. On January 8, 2008 the state served notice of seizure of the cash under Iowa Code section 809.3 and on February 7, notice of pending forfeiture of $19,143. An amended notice correcting the amount to $29,143 was filed on February 11. Lamaak filed a resistance, saying that it was all his property, not used or acquired as a result of a drug related offense, and he was an innocent owner.

Hearing was set of May 5, 2008 but no hearing took place. On June 6, the state filed an in rem forfeiture action for the cash alleging it was part of a drug transaction and Lamaak filed an identical response. On August 28, the state moved for judgment and on September 2 Lamaak moved to dismiss alleging that the 90 day limit in the Code had been exceeded. The court forfeited the money and Lamaak appealed.

The court of appeals reversed, finding that because the state failed to comply with the 90 day deadline, the district court erred in denying Lamaak's motion to dismiss. The state's late filing under the statutory scheme was fatal to its request for forfeiture.

In re Property Seized From Young, no. 08-1369 (Iowa Ct. App. July 22, 2009).

Young's pistol was seized in March, 2002, was convicted, and his appeal on his charges was dismissed in 2003. On October 15, 2007 the state filed an in rem forfeiture action for the pistol. Young filed a motion to dismiss. The motion to dismiss was denied and Young was allowed 30 days to file a claim for the property and an answer to the state's complaint. He failed to do so and the court entered judgment for the state.

Young argued that the complaint was past the 5 year statute of limitations. The Court noted that the state's forfeiture filing was within the deadline.

Young also argued that the property was seized on the date of his arrest, but there was no seizure for purposes of forfeiture until 2007, when the state filed its in rem complaint.

Both of these cases are closely related to the applicable deadlines contained in Chapter 809A. One is the hard requirement for hearing to be had within 90 days, and the other is the 5 year statute of limitations, which, it seems, does not start until the forfeiture action is filed. The takehome's clear. Don't file for forfeiture of contraband until you want to start the 90 day clock ticking, and then, be ready for court before it elapses.

Tuesday, July 21, 2009

Lawyers Behaving Badly

High summer seems to be the season for odd behavior. It seems that a fellow named Larry Wilder, city attorney for Jeffersonville, Indiana, was out for a night on the town with friends and ended up sleeping it off inside a city trash bin.

What you see there is an actual photo of what puzzled citizens discovered.

What is at issue is just how the photos taken by police made it onto the airwaves.

All of which should serve as a cautionary tale for young lawyers and some older ones as well who have a thirst for the healing grape: try not to piss off your counterparts in law enforcement.

Monday, July 20, 2009

Gelnhausen Cops On the Pursuit of Law and Order

Folks, I'm not making this up.

It seems that a 56 year old man was arrested in the town of Gelnhausen while in the act of purloining three pairs of jockey shorts from a sports hall. A search of this fellow's residence uncovered over one thousand pairs of mens' underpants and one hundred pair of tracksuit trousers.

In the fellow's defense the guy had laundered the skivvies and they were all neatly folded and stacked.

Monday, July 06, 2009

1st Annual Flatliner Award

Folks, we're instituting a new award series here called the Flatliner Awards because the recipients have conclusively demonstrated that there's no detectable electrical activity inside their mush filled crania.

To get this off with a bang, the first annual Flatliner is a fellow named Gamaliet Figueroa up in Cedar Rapids who, while on probation for distributing heroin, posted photos of himself with guns on his myspace page-which, of course, his PO, being no fool was watching. On the strength of that Figueroa's home was searched and a rifle and ammunition was discovered.

For his efforts Figueroa may well end up spending a dime of his time in a fine federal correctional facility-he's a felon, you see.

Amazingly he's not the only one who's wandered into this thicket.

Record Closes In Flores Post Conviction Review

We've been watching Iowa Courts Online for new developments in the long running Flores post conviction review proceedings now pending before the Polk County District Court, the Hon. Don Nickerson presiding. As the deadline for submission for post trial briefs has passed we expect that a decision may be forthcoming in fairly short order.

As you may or may not know, Flores was convicted of the murder of Phyllis Davis. Davis, a middle aged woman who worked in a bank, was driving home from her work in her Nissan Sentra. At the corner of 9th and University, she drove into the middle of a shooting war, caught a bullet, and drowned in her own blood right there in the intersection.

Flores, a combatant in the wars between the Des Moines Crips and Bloods franchises, was convicted on circumstantial evidence and the admissions of his girlfriend to her mother and aunt. She's stated that she was "playing a game" in making such statements when Flores first came into view under the police microscope, but it does point to the age old principle that loose lips do, indeed, sink ships.

We've reported in depth on this matter back in the beginning of the year and you can certainly check it out if you've got a few minutes.

One thing that bothers me about these proceedings is the fact that Flores has made numerous pro se filings and arguments from the stand despite having the services of a competent attorney who has gone above and beyond the call of duty to speak on his behalf.

I've thought it over and I don't much like what I'm seeing.

Although Flores declined to testify at his trial and does not seem inclined to testify as David Flores, Defendant, he was more than happy to expound his legal analysis as David Flores, Litigant and otherwise describe how it dovetailed in his case.

Here's what I think.

He did a pretty good job of making an end run around the system, asserting the 5th amendment and avoiding testifying where matters of criminal liability and his involvement in this affair could have been subject to vigorous cross examination by the state, but he's otherwise been able to sink his oar deep in these troubled waters by masquerading as a litigant expounding his legal theories. That seems like legal chicanery to me, and I don't like it one bit.

Boone County Confidential

State v. Blair, no. 08-0792 (Iowa Ct. App. July 2, 2009).

Hill called 911 saying he'd shot himself and died shortly thereafter. An investigation revealed that Blair and Hill's wife had been having an affair. A deputy who knew Blair and had been a family friend and one time foster parent brought Blair in for two separate interviews, and in the second interview Blair confessed to his involvement in Hill's demise.

Charged with first degree murder, Blair moved to suppress his confession. Blair argued that his confession was involuntary and he was improperly promised leniency.

The Court of Appeals found that although the deputy used his prior relationship with Blair to elicit a confession, it did not amount to coercive conduct or the abuse of a relationship.

In addition, statements of a DCI operative did not amount to impermissible promises of leniency.

Back in March, we reported on the fact that the court of appeals had affirmed the suppression of statements made by the black widow at the center of this web, Jessica Hill. That's under review at the Supreme Court on the theory that one good appeal deserves another.

Smile-You're On Candid Camera

State v. Bush, no. 08-0881 (Iowa Ct. App. July 2, 2009)

Bush was stopped on July 6, 2006 in response to a citizen tip and officers found a crack pipe in his truck. He was taken to a hospital because he informed officers that he did not have his anti seizure meds, and there the officers invoked implied consent obtaining a breath and urine sample. The breath sample produced no results, but when the urine sample was returned it indicated use of marijuana. Bush was arrested for OWI on August 29 and Bush was charged by trial information with OWI on October 6, 2006.

Bush argued that his right to a speedy indictment was violated but that claim was rejected. The state, in an excess of diligence, reopened the record on March 13, 2007 because it learned of the existence of a videotape of the vehicle stop which was potentially relevant to Bush's motion to dismiss.

The trial court found, and the district court affirmed, that he had not been arrested on July 6, 2006 for operating while intoxicated, although he was arrested for possession of narcotics and/or paraphernalia at that time. There was no evidence he'd been cited for OWI.

Videotape is a wonderful thing, isn't it?

Friday, July 03, 2009

Time's Up: Scott County Attorney Gets Faked Out By Savvy Defendant

Campbell v. State, no. 08-1249 (Iowa Ct. App. July 2, 2009).

Campbell was convicted of delivering a controlled substance, lost his appeal, and filed an application for post conviction relief. He argued that his trial counsel, his appellate counsel, and his post conviction review counsel were all ineffective for not challenging the violation of his right to be tried within one year after he was arraigned.

Campbell was arraigned on September 28, 2005. He was not tried until October 2, 2006. The court examined whether good cause existed for the delay. Campbell himself was responsible for considerable parts of the delay in filing a motion to substitute counsel on the day of trial, and a motion for a psychiatric examination . On the third date for trial Campbell demanded the presence of a DCI expert and trial was once again continued. The trial was continued until June 5, 2006 whereupon Campbell asked for substitute counsel again and had filed an ethics complaint against his attorney. Trial was rescheduled for August 7, 2006, whereupon Campbell requested DNA testing of evidence, which was granted. He then rescinded his request

The Court of Appeals found that delays which accrued after September 28, 2006 were attributable to the court or the state and reversed. Had it not been for these delays, the court reasoned, the case could have been tried within the one year timeline.

I've got a real problem with this case because it's painfully obvious that Campbell gamed the system by presenting successive unreasonable demands and delaying tactics disguised as motions on the eve of trial dates, all the while nibbling away at the one year rule. Ultimately his tactics bore fruit. I'll bet this one's going to go to the Supremes as well.

Meanwhile, watch those deadlines. I lost one because of a deadline I didn't understand.

Never again. It's a hard lesson for junior prosecutors to get taught by defendants who've learned their chops. It is probably a good idea for law enforcement to pay close attention to and track deadlines on important cases.

Sioux County Confidential

State v. Vesper, no. 08-1076 (Iowa Ct. App. July 2, 2009)

Vesper was involved in an accident. Officers did not initially suspect him of being intoxicated and so did not invoke the implied consent procedure. An officer asked Vesper to provide a urine sample, opining that it might help him in the future if he'd nothing to hide, and Vesper assented.

Subsequently, the test of his urine sample showed he'd been using marijuana and Vesper was charged with O.W.I. second offense. He moved to suppress the evidence, which was denied. This appeal followed.

It was admitted that the officer had no reasonable suspicion to believe Vesper was under the influence but he asked for the sample anyway, suggesting that a test would be advantageous to Vesper. As a result of this, the district court's refusal to suppress the test results was overruled.

The object lesson is clear here. Get your reasonable cause, and your probable cause, and invoke the implied consent like you're supposed to.

Juvenile Waived To Adult Court In Reckless Auto Death

Interest of E.L.C., no. 08-1483 (Iowa Ct. App. July 2, 2009)

E.L.C., a seventeen year old juvenile struck a van with her automobile, then ran a red light and killed a motorcyclist. She then drove away and crashed into a light pole and again attempted to wander off into the gloaming but was restrained by bystanders until police arrived.

As she was a juvenile the state filed a delinquency petition charging her with leaving the scene of an accident where a death occurred and a raft of other offenses. The State sought to have her waived into adult court but the district court demurred. This appeal followed.

The Court of Appeals observed that there was little chance that the remedies and rehabilitation provided for in the juvenile system would have had much effect in the two week period before she aged out of the system. The district court abused its discretion in concluding that the state had not met its burden to show that waiver to the adult system was not in ELCs or the community's best interests.