Friday, October 23, 2009

Blackhawk County Drug Stop

State v. Vance, No. 08-1762 (Iowa Ct. App. Oct. 21, 2009)

A police officer observed a vacant car parked legally but in an odd manner. A check revealed it belonged to one Athena Smith whose license was suspended. Some minutes later the officer saw the vehicle on the highway but could not determine who was in the car because of the lateness of the hour.

Stopping the vehicle, the officer observed that Vance was driving solo. Further inquiry revealed that Vance was barred. From his pockets, Vance removed a syringe, a spoon with burn marks and a wooden spoon with methamphetamine residue on it. The officer smelled a heavy chemical odor coming from the car and found freshly manufactured methamphetamine on the front seat. Numerous other items commonly used in manufacturing methamphetamine were found in the car, the glove compartment and the trunk.

While in the back of the cruiser, Vance was recorded calling someone on his cell phone and saying "He's going to find the shit."

Vance was convicted of possessing pseudoephedrine and anhydrous ammonia with the intent to manufacture methamphetamine. Vance appealed on the sufficiency of the evidence, arguing that the state did not prove that he possessed the precursor with the intent to manufacture.

No pseudoephedrine was found in Vance's possession, although he had purchased it the same day, and he had a coffee grinder in the trunk with the residue of pseudoephedrine tablets and no coffee residue in it. In addition, police impounded numerous items in the car consistent with manufacture, including fresh product, lithium battery shells, ammonia, muriatic acid and used and unused coffee filters.

The court found that a reasonable jury could have concluded that Vance had possession of the 2.4 grams of pseudoephedrine he had purchased earlier in the day and had the requisite intent to manufacture.

Vance also raised a 4th amendment claim, arguing there was not reasonable cause to stop his vehicle. The court found that the officer had a reasonable and articulable suspicion that the driver could well be unlicensed and that was reason enough to detain the vehicle.

Cyclone Confidential

State v. Rave, no. 09-0415 (Iowa Ct. App. Oct. 21, 2009)

At about 8:42 PM, Ames police observed a blacked out car proceeding through a parking lot in which some enthusiastic Cyclone tailgating was going on. Because of concern for the safety of pedestrians an officer stopped the vehicle and noticed that the driver appeared....well.....soused.

After failing field sobriety tests, Rave was arrested and refused to take the breath test.

Rave moved to suppress, arguing that there was no reasonable cause to stop his vehicle, arguing that the statute that dictates use of headlights from sunup to sunset did not apply in the for pay parking lot he was in. The district court denied his motion to suppress and this appeal followed.

The court noted that the actions of officers were constitutionally acceptable under the community caretaking function which consists of three elements: 1) there was a seizure under the 4th amendment, 2) were the police engaged in bona fide community caretaker activity, and 3) whether the public's needs and interests outweighed the intrusion on privacy.

The court affirmed, finding that the intrusion on Rave's privacy interest was minimal and there was considerable concern that an inebriated pedestrian could be injured by the unlit car.

Tuesday, October 20, 2009

From the Annals of Crime: Death By Hot Dog

The New York Daily News brings us the story of a 44 year old assault case that, says the medical examiner, became a murder, the weapon being a hot dog.

Yep, that's right. It seems that a sixty five year old man named Jimmy Crawford had gotten into a hassle with a carload of fellows back in 1965 when racial epithets were traded. Crawford earned a wallop with a tire iron, a steel plate in his head and a seizure disorder.

Where's the hot dog come in, you say?

Seems that Jimmy was in the habit of eating them regularly, and it appeared that he had been in the process of consuming one when he had a seizure and choked on the bun. Now, police are in the process of trying to identify who the suspects are in the original assault case.

Thursday, October 15, 2009

Post-Arizona v. Gant Vehicle Search

State v. Petrie, no. 08-1841 (October 7, 2009).

A Polk County deputy observed a vehicle making a turn without signalling and stray across the center line and the fog line. He initiated a stop, and while doing so noticed the driver reaching down along the center console. The driver was patted down and placed in the squad car.

The deputy returned to the passenger side of the vehicle to talk to the passenger and saw a partially open briefcase alongside the console. The briefcase was inspected and contained methamphetamine, syringes and scales. Petrie, the driver, was charged with possession with intent, tax stamp violation, and possession of marijuana.

Petrie moved to suppress the evidence of the search. At hearing the deputy stated that he was concerned about a weapon because of the furtive movements the driver made and wanted to make sure the passenger could not access a weapon while he was questioning the driver. The passenger testified that the briefcase was locked and the windows were tinted such that nobody could see what was going on.

The court denied Petrie's motion and it proceeded to trial on the minutes. Petrie was convicted and received a long sentence because of his prior convictions.

Petrie argued that furtive movements, without more, are insufficient to trigger the warrant exception. The court reasoned that the limited search conducted by the deputy was justified by the belief that the driver could have been reaching for or concealing a weapon.

Now the Gant stuff.

The court notes that Petrie was secured in the squad car when the search took place and thus did not have access-which was what Arizona v. Gant was all about. However, danger can emanate from the passenger as well as the driver. Gant teaches that a search of the passenger compartment can be searched when there is reasonable suspicion that an individual, whether or not the arrestee , could access the vehicle to gain immediate control of weapons.

Out of the Mouths of Drunks: The falling down Miranda exception.

State v. Cue, 08-1596 (Iowa Ct. App. October 7, 2009)

Cue was implicated in the stabbing death of one Rodney Deville. Cue was interviewed by a Council Bluffs police operative while he was sitting at the curb in an inebriated state. Cue was not arrested or Mirandized, and gave statements in which he incriminated himself. He then voluntarily went to the Omaha police station, and gave further admissions and requested counsel in a chaotic one hour interview that ended with Cue being arrested and charged with the murder of Deville.

Cue moved to suppress his statements, and the district court agreed to suppress the audio tapes of his statements both on the street and at the Omaha police station.

The state appealed, arguing that Cue was not under arrest or in custody in either location, and that he had been adequately Mirandized at the police station.

The court first found that because the first statements were given when Cue was so inebriated he could not sit up without assistance and was thus unable to walk away from the interview.* Cue was asked specific questions about the murder and his involvement in it. The officer admitted that Cue was not free to leave the scene although he probably did not know that.

(Parenthetically, this is the first time that I've ever heard that the inability to leave the interview-which is the sine qua non of a custodial interrogation-could be supplied because the defendant himself had rendered himself physically unable to do so. Is this the 'falling down drunk exception to the mobility prong of Miranda? But nevermind.)

The court next found that Cue was in custody at the police station and was never told he was free to leave. He asked to see a lawyer and no move was made to honor his assertions.

Folks, this is not a case about a nickel bag of weed. It's a homicide. A man died, for crying out loud.

If you are in doubt, give the warnings, tell the skel he can leave at any time, and get that over with up front. Chances are the guy will forget all about it and you can go on your way rejoicing, as the saying goes.

Will the state seek further review? You betcha, as Mrs. Palin says.

Washington County Flim Flam

State v. Smith, no. 08-1757 (Iowa Ct. App. October 7, 2009)

Smith was convicted of violating Iowa Code section 99F.15(4)(i). I must confess I'd never encountered this charge in the lexicon of Bad Stuff That People Do so I went to the Code.

99F concerns itself with the activities that take place in riverboats and casinos. Here's what it says:

4. A person commits a class "D" felony and, in addition, shall bebarred for life from excursion gambling boats and gambling structuresunder the jurisdiction of the commission, if the person does any ofthe following: i. Claims, collects, or takes, or attempts to claim, collect, or take, money or anything of value in or from the gambling games, with intent to defraud, without having made a wager contingent on winning a gambling game, or claims, collects, or takes an amount of money or thing of value of greater value than the amount won.

So here's the story.

Smith was playing blackjack at the Riverside Casino in Washington County and he was "capping"-that is, surreptitiously adding chips to his bet after the dealer has received his cards.

It's cheating, all right. But the question the court had to answer was whether the section Smith was charged under applied to the facts of what he did.

In interpreting the statute the court found support in a Michigan decision interpreting that state's statute which was identical to the Iowa statute. That case, which was affirmed, concerned a person who altered lottery tickets and cashed them. The statute, the court noted, was intended to apply to frauds where a person used an artifice collect more than they'd actually won, rather than cheating itself.

The court reversed, holding that capping does not violate the specific section of the Code, ordering that the charge be dismissed.

What I don't get is why Smith was not charged with a violation of 99F.15(4)(d), which says:

Cheats at a gambling game.

The point is, in case you missed it, is : Read the bloody statute.