Profiling Muslims is a bad idea and it’s unconstitutional

June 21, 2016

In his OpEd yesterday in the Washington Post titled, Trump’s special version of Jim Crow — for Muslims, Eugene Robinson wrote,

On Sunday, “Face the Nation” host John Dickerson reminded Trump that last year he had raised the idea of “profiling” for Muslims and asked him to elaborate. Trump’s response: “Well, I think profiling is something that we’re going to have to start thinking about as a country. Other countries do it,” he said, naming Israel, and “we have to start using common sense.”

Reuters reported late last week,

Muslim-Americans have repeatedly informed authorities of fellow Muslims they fear might be turning to extremism, law enforcement officials say, contrary to a claim by presumptive Republican presidential nominee Donald Trump this week.

“They don’t report them,” Trump said in a CNN interview on Monday, in the wake of the mass shooting at an Orlando nightclub of 49 people by an American Muslim who claimed allegiance to Islamic State. “For some reason, the Muslim community does not report people like this.”

But FBI director James Comey said, “They do not want people committing violence, either in their community or in the name of their faith, and so some of our most productive relationships are with people who see things and tell us things who happen to be Muslim.

“It’s at the heart of the FBI’s effectiveness to have good relationships with these folks,” Comey said at a press conference following the Orlando shootings.

In addition profiling Muslims is a violation of the reasonable-suspicion-based-on-articulable-objective-facts test of the 4th Amendment. It also violates the Freedom of Religion Clause of the First amendment.

Donald Trump and his supporters like to base their arguments on “common sense.”

Hogwash. If we relied on “common sense,” for example, we would still believe that the Earth is the center of the universe with the Sun, the planets and the stars revolving around it. We also would believe in magic, the supernatural and witches who consorted with the Devil. In Europe from approximately 1480 to 1650, the Inquisition murdered approximately, 80,000 to 100,000 mostly poor and elderly women for practicing witchcraft. After obtaining confessions through the use of torture, they burned them at the stake.

Since the Age of Enlightenment, we’ve been relying on evidence-based reasoning to question common-sense assumptions about reality. In the name of “common sense,” Trump and his merry band of idiots want to turn back time and recreate the witch craze. He has already promised to use torture to extract confessions. How many Muslims is he going to detain, torture and kill before we the people have to end the slaughter?

Hitler exterminated 6 million Jews less than a century ago.

There are 1.6 billion Muslims in the world. Will Trump exterminate them?

We need to make sure he loses the election.


Why is President Obama considering nominating Ray Kelly to run DHS?

August 15, 2013

Thursday, August 15, 2013

Good morning to all of our friends.

Today we take a look at the moribund Fourth Amendment that was revitalized by United States District Court Judge Shira Scheindlin in New York City when she recently struck down the city’s stop and frisk policy.

Ray Kelly is the police chief of New York City.

I wrote about the stop-and-frisk rule last November.

I said,

Reasonable suspicion is a legal standard of proof in United States law that is less than probable cause, the legal standard for arrests and warrants, but more than an “inchoate and unparticularized suspicion or ‘hunch’ ”; it must be based on “specific and articulable facts”, “taken together with rational inferences from those facts”. Police may briefly detain a person if they have reasonable suspicion that the person has been, is, or is about to be engaged in criminal activity; such a detention is known as a Terry stop. If police additionally have reasonable suspicion that a person so detained may be armed, they may “frisk” the person for weapons, but not for contraband like drugs. Reasonable suspicion is evaluated using the “reasonable person” or “reasonable officer” standard, in which said person in the same circumstances could reasonably believe a person has been, is, or is about to be engaged in criminal activity; it depends upon the totality of circumstances, and can result from a combination of particular facts, even if each is individually innocuous.

I provided the facts in Terry v. Ohio, the seminal SCOTUS case that authorized a stop and frisk in order to explain the difference between a reasonable suspicion, which is required to justify an investigatory stop and frisk, and probable cause, which is required to justify a custodial arrest.

On October 31, 1963, while on a downtown beat which he had been patrolling for many years, Cleveland Police Department detective Martin McFadden, aged 62,[1] saw two men, John W. Terry and Richard Chilton, standing on a street corner at 1276 Euclid Avenue and acting in a way the officer thought was suspicious. Detective McFadden, who was well-known on the Cleveland police force for his skill in apprehending pickpockets, observed the two proceed alternately back and forth along an identical route, pausing to stare in the same store window. Each completion of the route was followed by a conference between the two on a corner. The two men repeated this ritual alternately between five and six times apiece—in all, roughly a dozen trips. After one of these trips, they were joined by a third man (Katz) who left swiftly after a brief conversation. Suspecting the two men of “casing a job, a stick-up”, detective McFadden followed them and saw them rejoin the third man a couple of blocks away in front of a store.

The plainclothes officer approached the three, identified himself as a policeman, and asked their names. The men “mumbled something”, whereupon McFadden spun Terry around, patted down his outside clothing, and felt a pistol in his overcoat pocket. He reached inside the overcoat pocket, but was unable to remove the gun. The officer ordered the three into the store. He removed Terry’s overcoat, took out a revolver, and ordered the three to face the wall with their hands raised. He patted down the outer clothing of Chilton and Katz and seized a revolver from Chilton’s outside overcoat pocket. He did not put his hands under the outer garments of Katz (since he discovered nothing in his pat-down which might have been a weapon), or under Terry’s or Chilton’s outer garments until he felt the guns. The three were taken to the police station. Terry and Chilton were subsequently charged with carrying concealed weapons.

Race cannot satisfy the reasonable suspicion test and statistics have proven and Judge Scheindlin found that the NYPD relies on race to justify their stop-and-frisk policy.

PBS News Hour states:

Critics point out that only a very small percentage of stop and frisk actions result in the seizure of weapons or drugs or other contraband. For example, this study showed that for the hundreds of thousands of stops that occurred in 2008, only 6 percent resulted in arrests. Under 2 percent yielded any contraband. And only about one-tenth of 1 percent of stops turned up guns. More recent data showed similar results.

Despite that, the number of stop and frisks have gone up significantly since the program began. The city counters by saying that the number of stop and frisks have dropped sharply in the last year after new training was given to officers about what constitutes reasonable suspicion for stops and searches.

Belated efforts do not save the blatantly unconstitutional policy that targeted blacks.

So why is President Obama considering nominating NYPD Chief Ray Kelly to run the Department of Homeland Security?

He calls her decision “offensive and disturbing.”

I find Ray Kelly offensive and disturbing.

How about you?

Edited to clarify title and text that President Obama is considering nominating Ray Kelly to run DHS.

______________________________________________________________________________________________________

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Producing articles every day and maintaining this blog requires substantial time and effort.

Consider where else will you see stories about Whitey Bulger, Operation Fast and Furious, the corrupting War on Drugs, the startling implications of Erwin Schrodinger’s cat, Judge Shira Scheindlin, Mayor Bloomfield, and Ray Kelly’s stop and frisk policy?

We streeeeeeetch your mind.

Namaste

Fred


Zimmerman Did Not Have a Reasonable Suspicion to Believe Martin had Committed, was Committing, or was about to Commit a Crime

November 11, 2012

Today, I am going to revisit the reasonable-suspicion rule that the SCOTUS established in Terry v. Ohio, 392 U.S. 1 (1968). Even though George Zimmerman is a private individual and the rule only applies to contacts with people, such as Trayvon Martin, initiated by federal or state law enforcement officials for investigatory purposes, it is a fundamental rule that any student in a criminal justice program, such as George Zimmerman, can reasonably be expected to know.

First, the Rule:

Reasonable suspicion is a legal standard of proof in United States law that is less than probable cause, the legal standard for arrests and warrants, but more than an “inchoate and unparticularized suspicion or ‘hunch’ ”; it must be based on “specific and articulable facts”, “taken together with rational inferences from those facts”. Police may briefly detain a person if they have reasonable suspicion that the person has been, is, or is about to be engaged in criminal activity; such a detention is known as a Terry stop. If police additionally have reasonable suspicion that a person so detained may be armed, they may “frisk” the person for weapons, but not for contraband like drugs. Reasonable suspicion is evaluated using the “reasonable person” or “reasonable officer” standard, in which said person in the same circumstances could reasonably believe a person has been, is, or is about to be engaged in criminal activity; it depends upon the totality of circumstances, and can result from a combination of particular facts, even if each is individually innocuous.

Terry, 392 U.S. at 21-22.

Second, why is this rule necessary?

Before the SCOTUS created this rule, police officials could initiate contact with a private individual, but could not lawfully detain that person for any length of time to investigate suspicious conduct, unless they had probable cause to arrest (i.e., reasonable grounds to believe the person had committed a crime). The SCOTUS created the reasonable-suspicion rule to apply to police initiated contacts with private individuals for investigation purposes to determine whether to arrest the person or let them go (i.e., whether, as a result of the contact, the officer developed probable cause to believe the person committed, was committing, or was about to commit a crime).

The absence of a rule to cover investigatory stops meant that the person stopped had the right to voluntarily terminate the contact at any time, or sue for false arrest, if the officer refused to allow the person to leave. Also, if the detention turned into an arrest without probable cause and a search incident to that arrest that led to the discovery of incriminating evidence concealed on the person or perhaps an admission by the person that he had committed a crime, the evidence seized and/or the admission would not be admissible in court because it had been obtained in violation of the person’s right to privacy, a violation of the Fourth Amendment. This potentially dire consequence, given a suitably egregious suspect like a serial killer, is the result of the exclusionary rule, another SCOTUS created rule to deal with persistent police misconduct that no amount of criticism or warnings by the court appeared to have any effect.

Third, how about an example to clarify the distinction between a reasonable suspicion and probable cause to arrest. Ask and you shall receive. Here are the facts in Terry.

On October 31, 1963, while on a downtown beat which he had been patrolling for many years, Cleveland Police Department detective Martin McFadden, aged 62,[1] saw two men, John W. Terry and Richard Chilton, standing on a street corner at 1276 Euclid Avenue and acting in a way the officer thought was suspicious. Detective McFadden, who was well-known on the Cleveland police force for his skill in apprehending pickpockets,[1] observed the two proceed alternately back and forth along an identical route, pausing to stare in the same store window. Each completion of the route was followed by a conference between the two on a corner. The two men repeated this ritual alternately between five and six times apiece—in all, roughly a dozen trips. After one of these trips, they were joined by a third man (Katz) who left swiftly after a brief conversation. Suspecting the two men of “casing a job, a stick-up”, detective McFadden followed them and saw them rejoin the third man a couple of blocks away in front of a store.

The plainclothes officer approached the three, identified himself as a policeman, and asked their names. The men “mumbled something”, whereupon McFadden spun Terry around, patted down his outside clothing, and felt a pistol in his overcoat pocket. He reached inside the overcoat pocket, but was unable to remove the gun. The officer ordered the three into the store. He removed Terry’s overcoat, took out a revolver, and ordered the three to face the wall with their hands raised. He patted down the outer clothing of Chilton and Katz and seized a revolver from Chilton’s outside overcoat pocket. He did not put his hands under the outer garments of Katz (since he discovered nothing in his pat-down which might have been a weapon), or under Terry’s or Chilton’s outer garments until he felt the guns. The three were taken to the police station. Terry and Chilton were subsequently charged with carrying concealed weapons.

Fourth, why is Terry relevant to the Zimmerman case.

George Zimmerman, who should have been familiar with the Terry rule, characterized Trayvon Martin’s conduct as suspicious; yet, there is nothing suspicious about it, unless one assumes that seeking shelter from a downpour in the mail shed early Sunday evening while young and Black and looking around at home addresses while walking fast in the rain is reasonably suspicious activity.

Remember that the word “reasonable” means an objective test. That is, whether a reasonable person or police officer in the same situation would have concluded that the behavior was suspicious.

Serino realized that Zimmerman profiled Martin and he knew that racial profiling is never reasonable. He was right.

Conclusion:

Even though the reasonable-suspicion rule does not apply technically to Zimmerman since he was not a police officer, he must have known about the rule or reasonably could have been expected to know it, such that his decision to hunt down Martin and prevent him from getting away, just like all of the other Black “assholes” who got away, is utterly indefensible.

Moreover, even if he had not shot him to death, but had “only” assaulted him in an effort to detain him for the police, he still would be guilty of a battery. Depending on whether he injured Martin while committing that battery, he might have been committed a felony.

Finally, if anyone had a right to use force in self-defense, that person was Trayvon Martin.


Did George Zimmerman Have a Reasonable Suspicion that Trayvon Martin Intended to Commit a Crime?

August 25, 2012

I believe it may be useful to compare what a police officer may have been able to do to Trayvon Martin, if he had seen him walking in the rain.

A police officer could not have stopped Trayvon Martin and temporarily detained him to determine his identity and investigate what he was doing in the neighborhood, unless he had a reasonable suspicion that Trayvon had committed, was committing, or was about to commit a crime.

Whenever you see the word “reasonable,” as part of a legal test or rule, you should immediately realize that the test or rule is objective, not subjective.

Let us assume for the sake of argument that George Zimmerman actually believed Trayvon Martin was, as he put it, “up to no good.” In other words, he had a subjective hunch that Trayvon was casing the neighborhood looking for a house to burglarize or someone’s property to steal.

A subjective hunch is not a reasonable suspicion unless there were sufficient articulable facts and circumstances such that a reasonable person in George Zimmerman’s situation would have suspected Trayvon intended to burglarize someone’s home or steal someone’s property.

We know the answer to that question is “No,” because Chris Serino told him that. Based on what George Zimmerman claimed to have seen, he did not have a reasonable basis to stop and detain Trayvon Martin.

Regardless what the Zimmerman supporters say, this is an undisputed fact and conclusion of law.

Serino was right. Walking through the neighborhood looking around at houses and hanging out in the covered mailbox area while it was raining does not suggest criminal activity of any kind is about to happen.

Serino also told him that his hoodie notwithstanding, Martin was not dressed in gang attire because he was wearing tan chinos and white tennis shoes.

Therefore, a police officer would have violated Trayvon’s Fourth Amendment right to privacy, if he had stopped and detained him for a few minutes to check his identification and ask him what he was doing in the neighborhood.

Police also have a community caretaker responsibility, however, that does not necessarily involve preventing criminal activity. If an officer saw a front door open, for example, she could walk up to the open door and look inside or call out to see if anyone is home.

If she saw Trayvon walking in the rain looking around at houses, she could approach him and ask him if he needed any assistance. That type of contact does not constitute a stop because the person contacted is free to leave at any time. The protections of the Fourth Amendment do not apply to those types of contacts.

George Zimmerman passed up two opportunities to do the same thing, but declined to do so.

By the way, if you should ever find yourself in an ambiguous situation after being contacted by a police officer, just ask the officer politely if you are free to go.

If the answer is “No,” the protections of the Fourth Amendment apply to you. You can be temporarily detained long enough for the police officer to determine your identity and confirm or reject his suspicion. If the officer determines that there is probable cause to arrest, he may arrest you and take you to jail. If not, he must release you.

At any time, you may assert your 4th Amendment right to refuse to consent to a search, your 5th Amendment right to refuse to answer questions, and your 6th Amendment right to counsel. If you decide to assert any or all of these rights, do so politely.

Be advised that operating a motor vehicle is a privilege and not a right. If you are pulled over for suspicion of DUI and asked to take a breathalyzer, your refusal will result in a suspension of your license, regardless if you are subsequently acquitted of DUI. You can always insist on a blood test.

Probable cause is reasonable grounds to believe that a person has committed a crime. As such, it is more than reasonable grounds to suspect that a person has committed a crime.

I believe it’s now clear that George Zimmerman assumed Trayvon Martin was a criminal looking for a house to burglarize or some property to steal and he hunted him down with the intent of detaining him in order to prevent him from getting away. He was so determined to do that that he intentionally and willfully disregarded the Neighborhood Watch rules and the NEN dispatcher’s admonition.

Acting as a private citizen, he had no authority or right to touch Trayvon, let alone restrain him.

Now that we have reviewed and understand the SYG law, we realize that Trayvon had the right to stand his ground and use reasonably necessary force to defend himself.

I am not satisfied that he used any force to defend himself, but if he did, he had a right to do so.

Since George Zimmerman was the aggressor, he had no right to use any force, let alone deadly force to defend himself.

Assuming for the sake of argument that Trayvon Martin used excessive and deadly force to defend against George Zimmerman’s initial use of force, George Zimmerman would have been required to attempt to withdraw from the confrontation and offer to quit fighting before he could lawfully use deadly force to defend himself.

George Zimmerman never claimed that he did and there is no evidence that he did.

Therefore, George Zimmerman did not act in self-defense. He committed an imminently dangerous act with a depraved mind indifferent to human life and that is the definition of murder in the second degree.


Get Out Your Checkbook, Aurora, CO!

June 6, 2012

Responding to a tip they considered to be “reliable,” police officers in Aurora, CO stopped all traffic at a downtown intersection two days ago (June 4), removed all of the adult drivers and passengers (40 people) from their vehicles, and handcuffed them. They gathered them together and explained that they were looking for someone who had robbed a Wells Fargo Bank.

Aurora Police Department Officer Frank Fania told ABC News,

We didn’t have a description, didn’t know race or gender or anything, so a split-second decision was made to stop all the cars at that intersection, and search for the armed robber.

Officer Fania said everyone consented to a search of their vehicle. When the officers finished searching a vehicle without finding the gun they were looking for, they released the driver and any passengers who were in the vehicle. The searches lasted approximately two hours as they systematically searched every vehicle at the intersection.

Eventually they found what what they were looking for in the last vehicle they searched: two loaded semiautomatic handguns. They arrested the suspect and took him to jail.

This was a flagrant violation of the Fourth Amendment which prohibits police officers from stopping a vehicle unless they have a reasonable suspicion that a person in that vehicle has committed, is committing, or is about to commit a crime.

A reasonable suspicion is more than a mere hunch. It requires articulable facts and circumstances that would cause a reasonable person to suspect that a particular individual had committed, was committing, or was about to commit a crime.

Apparently, Officer Fania was looking for a particular weapon, which he believed was concealed in one of the vehicles at the intersection, but he did not have a description of the robber or the vehicle the robber was driving or in which he was riding. Therefore, every vehicle the police stopped was an unlawful stop, including the stop of the vehicle that contained the person they subsequently arrested.

His case should be dismissed and 40 adults have valid lawsuits against the police department and the city for violating their right to privacy under the Fourth Amendment because this was a clear violation of the United States Supreme Court’s decision in City of Indianapolis v. Edmund, 513 U.S. 32 (2000).

Message to Aurora: Get out your checkbook!


How Could Judge Taylor Forget Garcia v. Commonwealth?

December 28, 2011

Note: I am cross posting this article from Crane Station’s site with her permission. In the article, she points out that Judge Taylor, who signed off on the opinion written by Judge Lambert in her case affirming the trial judge’s denial of her motion to suppress evidence, reached the opposite conclusion in an opinion that he wrote in Garcia v. Commonwealth. Judge Taylor was certainly free to change his mind. Judges who change their minds, typically write a concurring opinion explaining why they changed their mind. Usually a judge will change his mind because the Supreme Court has rendered a decision changing the law and the decision is binding precedent. The judge has no choice when that happens. Other times, for one reason or another, the judge will conclude that there is some significant fact in the case that differs from the earlier case causing him to reach an apparently contradictory conclusion. When that happens, the judge will write a concurring opinion distinguishing the two cases.

Judge Taylor, however, has remained silent, even though Crane’s lawyer handling the appeal specifically mentioned the contradiction in her Petition for Rehearing.

I suspect the answer may be due to the panel’s false assumptions (1) to rely on after-acquired and false information to support the trial judge’s clearly erroneous findings of fact and (2) to falsely declare that her lawyer failed to challenge any of the trial court’s findings of fact. I specifically addressed and shot down these false assumptions in The Decision From Hell (Part 1).

Judge Taylor’s refusal to explain himself and the panel’s refusal to mention and explain why the United States Supreme Court’s decision in United States v. Hensley does not require reversal is inexcusable and reflects poorly on the judges who decided the case, the Court of Appeals, and the legal system in general.

For those of you following the legal case, bear in mind that the case is no longer about me. The fact that the Kentucky Court of Appeals has designated the opinion in my case “to be published” means that they have deemed the case serious and important enough that it has precedential value for any and all related cases in the future; the Court seeks to make the Leatherman case available for future citation as binding case law.

In the Petition for Rehearing, Hon. Julia Pearson discussed a published Kentucky case, Garcia v. Commonwealth.

This Court also ignored Garcia v. Commonwealth, in which a member of this panel found the police did not have reasonable suspicion to stop a driver who “quickly changed to the right lane” as a Kentucky State Police Trooper approached the vehicle. 185 S.W.3d 658, 660-661 (Ky. App. 2006). The panel found that “Garcia’s nervousness, lane change, failure to make eye contact, ‘death grip’ on the steering wheel, and out-of-state license plate. . . . describe a substantial number of drivers on our highways.” Further, the panel said, “[i]f we were to accept the Commonwealth’s argument, ordinary law abiding citizens could be subjected to a stop by police based upon routine driving habits.” Id., at 665.

Contrast Garcia’s behavior with that of Rachel Leatherman in the case at bar. According to the officers in each case, both Leatherman and Garcia appeared nervous and changed lanes and had out-of-state license plates. The difference is that Leatherman driving with a turn signal blinking is somehow seen as suspicious behavior rather than the routine (for some drivers) driving habit that it unfortunately is.

The author of the published opinion in Garcia v. Commonwealth is Judge Taylor. Judge Taylor was a member of the panel in Leatherman as well. The Petition for Rehearing in Leatherman v. Commonwealth was denied without comment by judges Taylor, Lambert and Isaacs.

Note the ultimate irony, as stated by Hon. Julia Pearson:

The ultimate irony for this case is that after the hour and one-half Deputy McGuire held Rachel Leatherman on the side of the road, he found nothing illegal. This Court stated as much when it said, “consent searches of her automobile and her person did not reveal any heroin or any other illegal substance.” Leatherman, supra, 2011 WL 181251, at *7.

Such was not the case in Garcia.

Judge Taylor wrote the Garcia opinion. How could he sign off on, and seek publication of, the Leatherman opinion, reaching the opposite conclusion that he reached when he wrote Garcia? We do not know the answer to this question. At the vary least, Judge Taylor should have written a concurring opinion explaining why he reached the opposite conclusion, but he did not. His silence is deafening.

Here is the Garcia opinion that Judge Taylor wrote:

Garcia v. Commonwealth

THE COURT OF APPEALS OF THE STATE OF KENTUCKY

February 24, 2006

FRANCISCO GARCIA APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE
HEINRICH LETKEMAN APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

APPEAL FROM FRANKLIN CIRCUIT COURT HONORABLE WILLIAM L. GRAHAM, JUDGE ACTION Nos. 04-CR-00045-001 & 04-CR-00045-002.

The opinion of the court was delivered by: Taylor, Judge

TO BE PUBLISHED

OPINION

(1)REVERSING AND REMANDING APPEAL NO. 2004-CA-002271-MR

(2) AFFIRMING APPEAL NO. 2004-CA-002283-MR

BEFORE: MINTON, SCHRODER, AND TAYLOR, JUDGES

Francisco Garcia brings Appeal No. 2004-CA-002271-MR from an October 4, 2004, judgment of the Franklin Circuit Court entered upon a conditional plea of guilty to trafficking in marijuana. Heinrich Letkeman brings Appeal No. 2004-CA-002283-MR from an October 4, 2004, judgment of the Franklin Circuit Court entered upon a conditional plea of guilty to trafficking in marijuana. We reverse and remand Appeal No. 2004-CA-002271-MR. We affirm Appeal No. 2004-CA-002283-MR.

On March 6, 2004, Garcia and his passenger, Letkeman, were traveling upon Interstate 64 in a 1993 Dodge Caravan. Kentucky State Trooper Jeremy Devasher approached the vehicle and noticed the vehicle quickly changed to the right lane. The trooper testified that he pulled his cruiser alongside the vehicle. Trooper Devasher thought that the driver, Garcia, looked nervous because he avoided making eye contact with the trooper and kept a “death grip” on the steering wheel of the vehicle. The trooper then observed cracks in the windshield of Garcia’s vehicle and thought the cracks impaired Garcia’s forward vision. At this point, Trooper Devasher stopped the vehicle for a traffic violation.

Trooper Devasher testified that he asked Garcia a series of questions in both English and Spanish; consequently, the trooper believed Garcia spoke English very well. Trooper Devasher testified that Garcia and Letkeman’s stories concerning their travel plans fell apart upon further questioning. The trooper also noted that neither had any luggage for a purported trip to Virginia.

The trooper issued a citation for a cracked windshield pursuant to Kentucky Revised Statutes (KRS) 189.110. After issuing the citation, the trooper informed Garcia the traffic stop was complete and he was free to leave. Trooper Devasher then asked Garcia for permission to search the vehicle. The trooper testified that Garcia nodded affirmatively and pointed to the vehicle. A search was commenced, and ten bricks of marijuana were seized from the vehicle.

Garcia and Letkeman were indicted by the Franklin County Grand Jury upon the offense of trafficking in marijuana over five pounds (KRS 218A.1421(4)). Thereafter, Garcia and Letkeman filed motions to suppress the evidence seized (marijuana) from the search of the vehicle. After an evidentiary hearing, the circuit court denied both motions to suppress.

Garcia and Letkeman entered conditional pleas of guilty to the offenses of trafficking in marijuana. Pursuant to the conditional pleas, Garcia and Letkeman preserved the issue of whether the circuit court properly denied their motions to suppress. See Ky. R. Crim. P. 8.09. On October 4, 2004, Garcia and Letkeman were each sentenced to seven years’ imprisonment with one year to serve and the remaining sentence probated for a period of five years. These appeals follow.

Appeal No. 2004-CA-002271-MR

Garcia contends the circuit court erroneously denied the motion to suppress evidence seized from his vehicle. Specifically, Garcia contends the stop of his vehicle based upon the cracked windshield was improper. Garcia argues that the cracked windshield was not a violation of KRS 189.110. Thus, he contends the initial stop of the vehicle was without reasonable suspicion of criminal activity and the circuit court erred by denying his motion to suppress evidence.

Our standard of review of a suppression determination is succinctly set forth in Stewart v. Commonwealth, 44 S.W.3d 376, 380 (Ky.App. 2000)(footnote omitted):

First, the factual findings of the court are conclusive if they are supported by substantial evidence. The second prong involves a de novo review to determine whether the court’s decision is correct as a matter of law.

We observe that resolution of this appeal involves issues of both fact and law.

It is well-established that the stopping of a vehicle and detaining of its occupants amounts to a seizure under the Fourth Amendment of the United States Constitution and under Section 10 of the Kentucky Constitution. It is equally axiomatic that a police officer may stop a motor vehicle if that officer possesses reasonable suspicion that criminal activity has occurred or is imminent. Delaware v. Prouse, 440 U.S. 648 (1979). The occurrence of a traffic violation is recognized as sufficient justification to warrant a stop of a motor vehicle.

The initial stop of Garcia’s vehicle was originally premised upon Trooper Devasher’s belief that the cracked windshield constituted a violation of KRS 189.110. This statute provides as follows:

(1) A windshield in a fixed and upright position, that is equipped with safety glazing as required by federal safety-glazing material standards, is required on every motor vehicle which is operated on the public highways, roads, and streets, except on a motorcycle or implement of husbandry.

(2) A person shall not operate a motor vehicle on a public highway, road, or street with any sign, sunscreening material, product, or covering attached to, or located in or upon the windshield, except the following:

(a) A certificate or other paper required to be displayed by law;

(b) Sunscreening material along a strip at the top of the windshield, if the material is transparent and does not encroach upon the driver’s direct forward viewing area as defined in Federal Motor Vehicle Safety Standards No. 205 as the AS/1 portion of the windshield.

(3) A person shall not operate a motor vehicle required to be registered in the Commonwealth, on a public highway, road, or street on which vehicle the side wings and side windows on either side forward of or adjacent to the operator’s seat are composed of, covered by, or treated with any sunscreening material or other product or covering which has the effect of making the window nontransparent or which would alter the window’s color, increase its reflectivity, or reduce its light transmittance, except as expressly permitted by this section. A sunscreening material may be applied to the windows if, when tested on one-eighth (1/8) inch clear glass, the material has a total solar reflectance of visible light of not more than twenty-five percent (25%) as measured on the nonfilm side and a light transmittance of at least thirty-five percent (35%) in the visible light range.

(4) A person shall not operate a motor vehicle required to be registered in the Commonwealth, on a public highway, road, or street on which vehicle any windows behind the driver are composed of, covered by, or treated with any sunscreening material, or other product or material which has the effect of making the window nontransparent or which would alter the window’s color, increase its reflectivity, or reduce its light transmittance, except as specified below:

(a) Sunscreen material consisting of film which, when tested on one-eighth (1/8) inch clear glass, has a total solar reflectance of visible light of not more than thirty-five percent (35%) as measured on the nonfilm side and a light transmittance of at least eighteen percent (18%) in the visible light range; however, sunscreen material which, when tested on one-eighth (1/8) inch clear glass, has a total solar reflectance of visible light of not more than thirty-five percent (35%) as measured on the nonfilm side and a light transmittance of at least eight percent (8%) in the visible light range may be used on multipurpose passenger vehicles;

(b) Perforated sunscreening material which, when tested in conjunction with existing glazing or film material, has a total reflectance of visible light of not more than thirty-five percent (35%) and a light transmittance of no less than thirty percent (30%). For those products or materials having different levels of reflectance, the highest reflectance from the product or material will be measured by dividing the area into sixteen (16) equal sections and averaging the overall reflectance. The measured reflectance of any of those sections may not exceed fifty percent (50%).

(5) A person shall not operate a motor vehicle required to be registered in the Commonwealth, upon a public highway, road, or street, on which vehicle the rear window is composed of, covered by, or treated with any material which has the effect of making the window nontransparent, unless the vehicle is equipped with side mirrors on both sides.

(6) Each installer or seller of sunscreening material shall provide a pressure-sensitive, self-destructive, nonremovable, vinyl-type film label to the purchaser stating that the material complies with the provisions of KRS 189.010(20) to (23) and subsections (1) to (5) of this section. Each installer shall affix the required label to the inside left door jamb of the motor vehicle. In addition, the label shall state the trade name of the material and the installer’s or seller’s business name. Labeling is not required for factory glazing which complies with Federal Motor Vehicle Safety Standard No. 205.

(7) Every percentage measurement required by subsections (3) and (4) of this section is subject to a tolerance of plus or minus three percent (3%).

(8) A person shall not install window tinting materials on a vehicle that fails to meet the minimum standards for light transmission pursuant to subsections (3) and (4) of this section. Tinted material that fails to meet the minimum standards for light transmission pursuant to subsections (3) and (4) of this section shall be removed immediately.

(9) A person who applies sunscreening materials in violation of this section shall be guilty upon conviction of a Class B misdemeanor.

(10) Nothing in this section shall prevent the display of a representation of the American flag on the rear window of any motor vehicle, including any vehicle owned by a local or state government, provided that the representation does not exceed a size of five (5) inches by eight (8) inches and is placed in a lower corner of the rear window.

(11) The windshield on every motor vehicle shall be equipped with a device for cleaning rain, snow or other moisture from the windshield. The device shall be so constructed as to be controlled by the operator of the vehicle.

(12) Nothing in this section shall be construed to prevent the use of any window which is composed of, covered by, or treated with any material or component in a manner approved by federal statute or regulation if the window was a component part of a vehicle at the time of the vehicle manufacture, or the replacement of any window by a covering which meets these requirements.

KRS 189.110.

A reading of KRS 189.110 reveals that it provides requirements for window sunscreening and tinting. It also sets forth mandatory safety glazing of glass and windshield wiper requirements. It, however, does not set forth any express or implied proscriptions against cracks in a vehicle’s windshield. Based upon the plain language of KRS 189.110, a cracked windshield simply does not constitute a violation of its provisions. As a cracked windshield is not a violation of KRS 189.110, we believe the Commonwealth cannot justify the stop of Garcia’s vehicle upon same.

Alternatively, the Commonwealth argues the traffic stop was lawful because the cracked windshield was a violation of KRS 189.020, which states as follows:

Every vehicle when on a highway shall be so equipped as to make a minimum of noise, smoke or other nuisance, to protect the rights of other traffic, and to promote the public safety.

The interpretation of a statute is a matter of law for the court. City of Worthington Hills v. Worthington Fire Prot. Dist., 140 S.W.3d 584 (Ky.App. 2004). When interpreting a statute, a word is to be afforded its ordinary meaning unless it has acquired a technical meaning. Id. Upon examination of KRS 189.020, we must initially decide whether a cracked windshield constitutes an “other nuisance” within its meaning. When interpreting the term “other nuisance” in KRS 189.020, we are guided by the rule of statutory interpretation called ejusdem generis:

[W]here, in a statute, general words follow or precede a designation of particular subjects or classes of persons, the meaning of the general words ordinarily will be presumed to be restricted by the particular designation, and to include only things or persons of the same kind, class, or nature as those specifically enumerated, unless there is a clear manifestation of a contrary purpose.

Steinfeld v. Jefferson County Fiscal Court, 312 Ky. 614, 229 S.W.2d 319, 320 (1950)(citations omitted). Applying the rule of ejusdem generis to KRS 189.020, the term “other nuisance” is preceded by the particular designation of “noise” and “smoke.” To effectuate legislative intent, we believe “other nuisance” should be interpreted as including only those nuisances of a similar kind as noise and smoke. Accordingly, we do not interpret the term “other nuisance” in KRS 189.020 as encompassing a cracked windshield.

KRS 189.020 also requires a vehicle to be equipped so as “to protect the rights of other traffic, and to promote the public safety.” A cracked windshield that unreasonably impairs the vision of a driver certainly increases the risk and likelihood of an accident. The increased risk would undoubtedly present a significant threat to public safety and would adversely affect the rights of other traffic. Therefore, we hold that a cracked windshield must unreasonably impair the vision of a vehicle’s driver to constitute a violation of KRS 189.020. We emphasize that a cracked windshield is a violation of KRS 189.020 only if it is of sufficient severity to unreasonably reduce the driver’s visibility.

In the case at hand, Trooper Devasher testified that he believed the cracked windshield impaired Garcia’s forward vision. The circuit court concluded:

Courts hold that stopping a vehicle for a traffic law violation is constitutionally permissible under the Terry test. Whren v. United States, 517 U.S. 806 (1996); Commonwealth v. Fox, Ky., 48 S.W.3d 24 (2001). That is the situation here. Before stopping the Defendants’ vehicle, the officer observed two cracks in the vehicle’s windshield. The officer believed the cracks impaired the driver’s vision and violated KRS 189.110. The officer subsequently stopped the vehicle and issued Defendant Garcia a citation for this violation. The vehicle stop, therefore, did not contravene the Constitution.

In the record, there exists a photograph of Garcia’s vehicle, which provides a full view of the windshield. Upon examination of the photograph, the cracks do not appear to be of sufficient severity to unreasonably impair Garcia’s forward vision. We observe that mere hairline cracks of a vehicle’s windshield are not typically of sufficient severity to constitute a violation of KRS 189.020. Hence, we are of the opinion that the cracks in the windshield of Garcia’s vehicle were not of sufficient severity to constitute a violation of KRS 189.020.

We also reject the Commonwealth’s attempt to justify the stop as an investigatory stop based upon reasonable suspicion of criminal activity under Terry v. Ohio, 392 U.S. 1 (1968). The Commonwealth particularly argues:

Furthermore, given the training and experience of this officer, other indicia were present that suggested criminal activity might be afoot. The nervousness displayed by the driver, the erratic lane change upon observing that the officer was near, the failure to make eye contact, the “death grip” on the steering wheel, and the foreign license plate (knowing that the drug interdiction training indicated that illegal drugs typically travel east to west) led to further suspicion.

Commonwealth’s Brief at 12.

In Commonwealth v. Banks, 68 S.W.3d 347, 350-351 (Ky. 2001), the Supreme Court emphasized:

[T]he test for a Terry stop . . . is not whether an officer can conclude that an individual is engaging in criminal activity, but rather whether the officer can articulate reasonable facts to suspect that criminal activity may be afoot . . . . The totality of the circumstances must be evaluated to determine the probability of criminal conduct, rather than the certainty.

In the case sub judice, the articulated facts set forth by Trooper Devasher were Garcia’s nervousness, lane change, failure to make eye contact, “death grip” on the steering wheel, and out-of-state license plate. We believe these facts describe a substantial number of drivers on our highways and constitute an innocuous mirage created in an attempt to retrospectively justify the stop. If we were to accept the Commonwealth’s argument, ordinary law abiding citizens could be subjected to a stop by police based upon routine driving habits. Simply put, such routine driving habits do not warrant a police stop under Terry. As such, we do not believe that Trooper Devasher possessed the requisite reasonable suspicion to justify an investigatory stop of Garcia’s vehicle.

In sum, we hold the initial stop of Garcia’s vehicle was improper and the circuit court erred by denying Garcia’s motion to suppress the marijuana subsequently seized from the vehicle.

We view Garcia’s remaining contentions as moot.

Appeal No. 2004-CA-002283-MR

Letkeman argues that the circuit court improperly denied his motion to suppress the evidence seized from the vehicle.*fn1 Specifically, Letkeman contends that a cracked windshield is not a violation of KRS 189.110; thus, the initial stop was invalid. Letkeman further maintains that Garcia did not voluntarily consent to the search of the vehicle.

It has been recognized that the protection of the Fourth Amendment against unreasonable search and seizure is a personal right and cannot be vicariously asserted. Rakas v. Illinois, 439 U.S. 128 (1978)(citing Alderman v. United States, 394 U.S. 165 (1969)). To have standing to contest a search and seizure, an individual must possess a legitimate expectation of privacy in the area searched or property seized. Rakas, 439 U.S. 128. The United States Supreme Court has developed a two-step analysis for determining whether a legitimate expectation of privacy exists:

[W]hether the individual has exhibited a subjective expectation; and whether such subjective expectation, viewed objectively, is justifiable under the circumstances.

United States v. Thornley, 707 F.2d 622, 624 (1st Cir. 1983) (citing Smith v. Maryland, 442 U.S. 735 (1979)).

In the case at hand, we cannot say that Letkeman possessed a reasonable expectation of privacy in the vehicle. The record indicates that Letkeman was a passenger in the vehicle and did not assert an ownership or possessory interest in the vehicle. A mere passenger in a vehicle generally does not have the requisite expectation of privacy to raise the issue of the legality of the vehicle’s search. Rakas v. Illinois, 439 U.S. 128 (1978).

Letkeman also claims ownership of the marijuana seized from the vehicle and believes that such ownership in the property seized confers standing. The ownership and possession of seized property is not dispositive upon the issue of expectation of privacy; rather, such are simply factors to be considered. United States v. Salvucci, 448 U.S. 83 (1980).

In this case, the seized property was wrapped bricks of marijuana. These bricks were hidden in the vehicle’s rear storage compartments. Applying the two-part analysis for determining whether an expectation of privacy existed, we believe Letkeman satisfied the first part because it is uncontroverted he possessed a subjective expectation of privacy in the marijuana. However, the second part of the test requires that the subjective expectation of privacy be objectively reasonable under the circumstances.

The facts reveal that Letkeman was only a passenger in the vehicle and did not have control over its contents. Specifically, it appears that Letkeman did not possess the legal right to exclude third parties from exercising possession or control over the vehicle or its contents. Moreover, the marijuana bricks were not concealed by Letkeman in luggage or other baggage. Rather, the bricks were simply hidden in the vehicle’s rear storage compartments. Considering the unique circumstances of this case, we cannot say Letkeman possessed an objectively reasonable expectation of privacy in the seized marijuana.

In sum, we are of the opinion that Letkeman did not possess the requisite expectation of privacy to establish standing to contest the legality of the vehicle’s stop or of the marijuana’s seizure.

Letkeman also argues that his detention following the vehicle’s stop was unreasonably long and constituted a violation of the Fourth Amendment of the United States Constitution and Section 10 of the Kentucky Constitution. Letkeman particularly maintains he was detained by Trooper Devasher for some thirty minutes while waiting for another trooper to arrive. Letkeman contends that Trooper Devasher lacked reasonable suspicion of criminal activity to warrant the thirty-minute detention and that the citation took only a few minutes to issue.

In Ohio v. Robinette, 519 U.S. 33 (1996), the Supreme Court recognized that the legality of a continued detention following a stop for a traffic violation is a question of reasonableness. It has been held:

Questions that hold potential for detecting crime, yet create little or no inconvenience, do not turn reasonable detention into unreasonable detention. They do not signal or facilitate oppressive police tactics that may burden the public-for all suspects (even the guilty ones) may protect themselves fully by declining to answer. Nor do the questions forcibly invade any privacy interest or extract information without the suspects’ consent.

United States v. Burton, 334 F.3d 514, 518 (6th Cir. 2003).

In the case sub judice, the record indicates that Trooper Devasher questioned Letkeman and Garcia, checked the vehicle’s registration and license plate, and checked Garcia’s out-of-state driver’s license. Upon the whole, we believe the continued detention of Letkeman for some thirty minutes after the initial traffic stop was reasonable.

Letkeman additionally maintains the statement he made to police following his arrest should be suppressed.*fn2

Specifically, Letkeman alleges he did not voluntarily and knowingly waive his rights under Miranda v. Arizona, 384 U.S. 436 (1966). Letkeman contends he was advised of his Miranda rights in English but that he “did not understand English sufficiently to make a valid waiver of these important rights.” Letkeman Brief at 19. Letkeman claims his primary language is Spanish.

In its order denying Letkeman’s motion to suppress, the circuit court found:

Detective Brennan testified that Letkeman spoke English to him, answered everything asked of him, and he and Letkeman could communicate with each other.” (Comm. Br. at 13). Trooper Devasher testified that Letkeman answered “yes” when Devasher asked him if he understood his Miranda rights. Devasher also testified that Letkeman knew English better than he originally led the trooper to believe. Though Letkeman testified that he does not speak English and did not understand everything that Trooper Devasher said, the Court finds in favor of the Commonwealth based on the testimony by Brennan and Devasher.

Based upon the testimony of Detective Brennan and Trooper Devasher, we conclude the circuit court’s findings that Letkeman understood English and understood he was waiving his rights under Miranda were not clearly erroneous. See Stewart, 44 S.W.3d 376.

For the foregoing reasons, Appeal No. 2004-CA-002271-MR is reversed and this cause remanded for proceedings not inconsistent with this opinion, and Appeal No. 2004-CA-002283-MR is affirmed.

ALL CONCUR.


The Decision From Hell (Part 1)

December 27, 2011

The Kentucky State Court of Appeals issued its decision affirming Crane Station’s conviction on January 21, 2011. Her motion for reconsideration was summarily denied without an explanation. Her motion for discretionary review is pending in the Kentucky State Supreme Court.

I call the 3-0 opinion written by written by Judge Lambert and joined by judges Henry and Taylor the decision from hell and will now take it apart. First, here is a link to the decision.

The Court begins by making two fundamental errors that invalidate the conclusion it reached affirming the circuit court’s denial of the motion to suppress evidence. The two errors are:

(1) It relied on after-acquired information, including trial testimony and the dispatcher’s tape, which is prohibited by the United States Supreme Court and the Kentucky Supreme Court; and

(2) It stated that the appellant had failed to challenge any of the findings of fact in the three suppression orders, which is absolutely false.

In United States v. Hensley, the Supreme Court held that trial courts must decide the constitutional validity of investigatory stops of civilians by police officers (i.e., whether there was reasonable suspicion or probable cause to justify the stop) based on the information available to the police officer before the stop. Information acquired after the stop cannot be used to justify a stop that was not supported by reasonable suspicion or probable cause because that would eliminate the rule.

The Supreme Court also held in Hensley that, even if a police officer stops a suspect acting in good faith on mistaken information provided by a dispatcher, the stop nevertheless violates the Fourth Amendment, if the correct information did not constitute a reasonable suspicion.

Therefore, the proper legal analysis under Hensley is to determine whether the information supplied by the 911 caller constituted a reasonable suspicion to justify the stop. The caller said,

And there is a lady in a dark blue looks like a Buick LeSabre. I’d say it’s a late 80s, early ’90s model. And I’ve got a license plate number. But she’s out here walking around in my neighbor’s yard and everything and writing stuff down, and she’d talked to him and mentioned something about tar heroin and all that stuff.

The caller did not describe suspicious activity, much less criminal activity. He described a conversation between his neighbor and a stranger in which the stranger mentioned the word heroin. So what?

This is not complicated. Absent information that the caller witnessed a purchase or sale of a controlled substance, or possibly a request to purchase or sell a controlled substance, there is nothing to investigate.

A reasonable suspicion is more than a mere hunch or suspicion. The hunch or suspicion must be reasonable. That is, it must be supported by articulable objective facts and circumstances that would warrant a reasonable person to conclude that a crime has been committed, is being committed, or is about to be committed. That did not happen.

Now, the stop would violate the Fourth Amendment, even if the dispatcher had innocently altered what the caller said and told the deputy that the caller had reported witnessing a drug transaction between his neighbor and a stranger and the officer stopped the stranger to investigate.

Why? Because the dispatcher cannot create a reasonable suspicion that did not already exist, even if the dispatcher does so by committing an innocent mistake. In other words, good faith reliance on mistaken information provided innocently by a dispatcher cannot create a reasonable suspicion where none existed. Therefore, the dispatcher’s information is irrelevant under Hensley.

But even if we consider what the dispatcher said, there still is no reasonable suspicion. He said,

Suspicious person complaint, the 4000 block of Queensway Drive off of Lester Harris and Bottom Street. A white female in a dark blue LeSabre that’s out walking around asking people about 218A.

(218A is a reference to the Kentucky State Uniform Controlled Substances Act)

Again, so what? A person walking around asking people about a drug statute is not illegal activity.

I am not saying that the caller’s tip should not have been investigated. I am saying that the proper procedure would have been to contact and interview the caller to obtain additional information regarding what he observed, which the deputy did the following day. However, even if the caller provided additional information such as, “I saw the woman buy some heroin from my neighbor,” the information could not be considered for the purpose of determining whether the deputy had a reasonable suspicion to stop Crane Station because he acquired that information after he stopped her. Therefore, it is irrelevant.

But the caller did not say anything like that. He said,

On 6-28-2006, a Lady driven a Buick LeSabre stoped at my driveway and ask me if I would sell 2 berrlles and i said they belong to my Naber. She had her painst unbuttoned and unzipped. She acted like she was under the Influence of something. She was a dirty Blonde wereing Blue shirt and Blue Jeans. (Spelling and grammatical errors in the original)

(incidentally, her jeans were not unbuttoned and unzipped in the in-dash video)

Asking someone if they are willing to sell two barrels is not criminal activity. (The barrels were made out of oak and split in half across the middle so they could be placed on a deck and used as planters) In addition, the statement does not mention heroin or any other drug. Finally, the description he provided and the conclusion that she appeared to be high on something falls far short of “sufficient articulable objective facts and circumstances that would warrant a reasonable person in concluding that the person had committed, was committing, or was about to commit a crime.”

Also, since the caller provided the statement after he knew about the arrest, his perspective would have necessarily changed and we cannot know whether he would have said the same thing, if he had been interviewed before the stop. The bottom line is this information should not have been considered.

Additional information that came to light at subsequent pretrial hearings or the trial itself would, of course, also be irrelevant on the issue of reasonable suspicion because it would have been after-acquired. Therefore, to the extent that the Circuit Court and later the Court of Appeals relied on such information to enter findings of fact, such findings are necessarily invalid, as a matter of law under Hensley.

A consideration of the deputy’s observations of Crane Station’s driving prior to the stop is not prohibited by Hensley. To find out what he observed, the Circuit Court should have watched and listened to the deputy testify at the suppression hearing and the Court of Appeals should have watched the video and read the transcript of his testimony at the suppression hearing. Evidently the judges did not do this because the deputy testified that her driving was exemplary, she violated no laws, and he pulled her over as soon as he realized that she and her vehicle matched the description provided by the caller. He did not pull her over because of her driving; he admitted that he pulled her over because he suspected she possessed heroin.

The deputy was the only witness at the suppression hearing. Therefore, there were no disputed facts. No he-said-she-said differences for the trial judge to resolve. He merely had to enter findings of fact based on what the witness said, but he did not do that.

Instead, he made-up some facts, such as Crane Station initiated a voluntary citizen-police contact that is not subject to the Fourth Amendment, when the deputy testified that he pulled her over. He also relied on trial testimony, which was after-acquired information, including testimony by the deputy that directly and materially contradicted his testimony at the suppression hearing.

It is difficult to know what the hell was going on when the deputy and the trial judge were making stuff up.

The Court of Appeals added to the mess by ruling that the appellant is stuck with the invalid findings of fact because she did not challenge them on appeal. That is absurd because her lawyer challenged all of the materially false facts. There is no doubt. Read her opening and reply briefs, if you do not want to take my word for it.

Finally, the Court of Appeals ignored Hensley. Ignored Crane’s argument that the HGN should not have been considered because it was improperly administered. Concluded that despite “not driving erratically or weaving” and passing a portable breath test, the invalid HGN, when considered together with nervousness, glassy eyes, her admission that she was taking prescribed Clonazepam, and other unspecified “odd behavior,” the deputy had probable cause to arrest. Apparently, despite quoting the product insert warning for Conazepam, which does not say that people who take the drug should never operate machinery or a motor vehicle the Court of Appeals believes that, as a matter of law, a police officer has probable cause to arrest anyone who takes the drug and operates a motor vehicle whether they drive properly or not. The Court also ignored federal and state cases cited by Crane’s lawyer, which hold that nervousness is not a valid or reliable indicator of impairment because people who are not under the influence of drugs or alcohol typically also exhibit nervousness when stopped. They require additional evidence of evasive behavior to establish probable cause to arrest and there was no evidence of that in Crane’s case.

So, did the judges on the Court of Appeals read her briefs?

Difficult to conclude that they did, because I do not see how they could honestly claim that her lawyer failed to challenge any findings of fact, if they had read it.

On the other hand, if they wrote an opinion affirming the conviction without having read her briefs, they should be defrocked and disbarred.

Either way, they have a lot of splainin’ to do.

I will deal with the rest of the Decision From Hell in Part 2 tomorrow.

Until then, Court will be in recess.


The Art of Cross Examination (Part 5) The Killer Cross That Never Happened

December 24, 2011

Author’s Note: This is a continuation of the Killer Cross that never happened because Crane Station’s lawyer, Chris McNeill, refused to use it. If you have missed the first two parts of the cross, which are in Part 3 and Part 4 of this series, follow the links. I recommend reading them before reading this post, for the sake of continuity.

All rise. Court is again in session.

Good morning, ladies and gentlemen. You may be seated.

Deputy McGuire, you may return to the witness stand. I remind you that you are still under oath.

Counsel, you may proceed with your cross examination.

Thank you, your Honor.

40. Q: On the way to the hospital, you never detected any movement in the back seat that caused you to believe that Mrs. Leatherman was attempting to hide anything, did you?

A: No.

Transcript Suppression, page 24, lines 15-18

41. Q: But you testified under oath to the grand jury that on the way to Lourdes Hospital “Of course, she’s cuffed behind her back, and she is trying to work it — work it down into the seat, and she dropped her watch with it,” didn’t you?

A: Yes.

Transcript Grand Jury, pages 4-5, lines 23-1

42. Q: You didn’t see anything that would suggest she did that, did you?

A: No.

43. You told another lie, didn’t you?

A: Yes.

44. Q: You also testified to the grand jury that the Kentucky State Crime Laboratory result of the alcohol content in Mrs. Leatherman’s blood wasn’t back yet, didn’t you?

A: Yes.

Transcript Grand Jury, page 5, lines 17-18.

45. Q: Please take a look at Defendant’s Exhibit A. It has been identified as a copy of the laboratory analysis of the alcohol content in Mrs. Leatherman’s blood by Examiner Neil K. Vowels. Do you recognize it?

A: Yes.

46. Q: He did not detect any alcohol in her blood, did he?

A: No, he didn’t.

47. Q: Please take a look at the bottom left corner of the exhibit. There is a notation that reads, “Date Completed.” What date appears next to these words?

A: 7/14/2006.

48. Q: You testified before the grand jury on July 28, 2006, didn’t you?

A: Yes.

49. Q: So, you testified 14 days after Examiner Vowels completed his report, correct?

A: Yes.

50. Q: Now take a look at the top line. It indicates that the report was faxed to the prosecutor’s office at 12:32 PM on July 24, 2006, doesn’t it?

A: Yes.

51. Q: That was 4 days before you testified before the grand jury, correct?

A: Yes.

52. Q: Now at the grand jury when the Commonwealth’s Attorney said, “We don’t have the blood results back?” and you answered, “I don’t believe so, blood or lab, yeah,” can you explain why you and the Commonwealth Attorney did not know the result of the alcohol analysis of Mrs. Leatherman’s blood sample — a test completed two weeks before and faxed to the Commonwealth’s Attorney four days before you testified before the grand jury?

A: No.

53. Q: You have testified that Mrs. Leatherman failed all six clues on the HGN test. You did not document the basis for your conclusion in your narrative report, did you?

A: No.

54. Q: We only have your word for that, don’t we? Just as only have your word that she told you that she was on all of her prescription medication?

A: Yes.

55. Q: For the sake of argument, let’s assume you did tell the truth when you testified that she failed all six clues. As a police officer certified to give the HGN test, you must know that NHTSA, the National Highway Traffic and Safety Administration, recommends that the test be administered to a suspect facing away from the police cruiser because the strobing lights will cause a false nystagmus, don’t you?

A: Yes.

Link.

Q: Yet, you positioned her facing your strobing police cruiser when you administered the HGN, didn’t you?

A: Yes.

in-dash video

56. Q: Metoprolol is one of the prescription drugs that Mrs. Leatherman had in her car when you pulled her over, correct?

A: Yes.

57. Q: Metoprolol is a drug used to control hypertension, or high blood pressure, correct?

A: Yes.

58. Q: As a police officer certified to administer the HGN test, you know that hypertension can cause nystagmus, don’t you?

A: Yes.

59. Q: You, Deputy Walters, and Officer Dawes thoroughly searched Mrs. Leatherman’s vehicle, including the trunk, her purse, and her personal belongings, correct?

A: Yes.

60. Q: Other than the three prescription drugs, you didn’t find any drugs, drug residue, or paraphernalia, did you?

A: No.

61. And Officer Dawes thoroughly searched Mrs. Leatherman by the side of the road before you placed her in the back seat of your police cruiser, didn’t she?

A: Yes.

62. Q: The search included a visual examination of her genital area, correct?

A: Yes.

63. Q: She also reached into Mrs. Leatherman’s back pockets, correct?

A: Yes.

64. Q: And before the search, you ordered Mrs. Leatherman to empty her front pockets by turning them inside out, didn’t you?

A: Yes.

65. Q: And Officer Dawes checked Mrs. Leatherman’s breasts to see if she might have hidden something in her bra, didn’t she?

A: Yes.

66. Q: She also checked around Mrs. Leatherman’s waist to see if she might have hidden something there, correct? And shoes?

A: Yes.

67. Q: No drugs, drug residue, or paraphernalia were found, right?

A: Correct.

The answers to questions 59-67 can be verified by the in-dash video.

68. Q: You didn’t arrest her for DUI Alcohol, did you?

A: No, I did not arrest her for DUI alcohol.

69. Q: You didn’t arrest her for possession of a controlled substance at that point either, correct?

A: Yes.

70. Q: You arrested her for DUI Drugs, didn’t you?

A: Yes.

Transcript Preliminary Hearing, page 8, lines 4-6.

71. Q: You didn’t advise Mrs. Leatherman that she was under arrest, did you?

A: No, I didn’t.

72. Q: You told her that you were taking her to Lourdes Hospital for a blood test, didn’t you?

A: Yes.

73. Q: A blood test that she offered to take, correct?

A: Yes.

74. Q: You didn’t tell her you were taking her to jail, did you?

A: Correct, I didn’t tell her I was taking her to jail.

Author’s Note: Questions 71-74 set up a point to be made during final argument; namely, that Crane-Station had no reason to attempt to slough a rock of crack behind his seat during the ride to the hospital. Assuming for the sake of argument that she had somehow hidden it so well that Officer Dawes could not find it and, given that we know that Crane-Station knew her blood test would come back negative for alcohol and drugs, we can reasonably conclude that she would have had no reason to think she would be searched again. Therefore, why risk attracting attention attempting to slough drug?

This illustrates another important point about cross examining effectively. Use it to set-up your final arguments during summation.

Judge: Excuse me Counsel. Let’s break for the day. Court will be in recess.

To be continued . . .


The Full-Text Motion For Discretionary Review [Frog Gravy Legal Case]

December 22, 2011

For those of you following the legal case, the 26-page Kentucky Court of Appeals Published Opinion Affirming is available online at the Kentucky Court of Appeals site. Other documents, such as this one, while they are in the public domain, are not readily available. (One must file an open records request)

I am also going to make the opening brief and response available here, online, for the public. This first document is a Motion For Discretionary Review. It was filed with the Supreme Court in June of this year (2011). The attorney is The Honorable Julia K. Pearson.

COMMONWEALTH OF KENTUCKY
SUPREME COURT OF KENTUCKY
FILE NO.2011-SC-000272

RACHEL LEATHERMAN MOVANT

v.

COMMONWEALTH OF KENTUCKY RESPONDENT

MOTION FOR DISCRETIONARY REVIEW

The Movant, Rachel Leatherman, comes by counsel and pursuant to CR 76.20, requests this Court to grant discretionary review of the decision of the Kentucky Court of Appeals in Leatherman v. Commonwealth, 2008-CA-0849, which was decided on January 21, 2011. The Petition for Rehearing was denied on April 12, 2011. Ms. Leatherman explains the grounds for this motion below.

THE JURISDICTIONAL FACTS

1. The Movant’s name is Rachel Leatherman. Counsel for Movant is Hon. Julia K. Pearson, Assistant Public Advocate, Department of Public Advocacy, 100 Fair Oaks Lane, Suite 302, Frankfort, Kentucky 40601.

2. The Respondent is the Commonwealth of Kentucky. Counsel for Respondent is Hon. Jack Conway, Attorney General, Commonwealth of Kentucky, Criminal Appellate Division, 1024 Capital Center Drive, Frankfort, Kentucky 40601.

3. The Court of Appeals finally disposed of Movant’s case on April 12, 2011.

4. Neither Movant nor Respondent has a Petition for Rehearing or a Motion for Reconsideration pending in the Court of Appeals. The Petition for Rehearing filed in this case was denied on April 12, 2011.

THE MATERIAL FACTS

Sometime in the evening of June 28, 2006, a man identifying himself as Vernon Wilkey, residing on Queensway Drive in Paducah, called 911 and said, “there is a lady in a dark blue looks like a Buick LeSabre. I’d say it’s a late 80s, early 90s model. And I’ve got a license plate number. But she’s out here walking around in my neighbor’s yard. . . and writing stuff down and she’d talked to him and mentioned something about tar heroin and all that stuff.” Wilkey said the woman driving the car was white and that the vehicle had Washington state plates. Wilkey testified at trial that she “didn’t seem like she was really all together there.” He did not give the 911 operator that piece of information.

McCracken County Deputy Sheriff Eddie McGuire testified at trial that he received a dispatch about a suspicious person on Queensway Drive. He thought it took fifteen to twenty minutes to arrive on scene, where he looked for a car with Washington state license plates, but was unsuccessful. At the suppression hearing, McGuire testified when he entered the Queensway Drive neighborhood, he did not check with Vernon Wilkey to obtain any additional information, such as what time Wilkey encountered the woman, whether Wilkey saw her leave in a particular direction, whether Wilkey thought she was under the influence or whether the woman had said where she was going. McGuire testified that he spoke with Wilkey and took his written statement the next day, after he had arrested Ms. Leatherman.

At trial, the deputy testified that he had just come through the Metropolis Lake intersection when he saw a car with its left turn signal flashing. McGuire admitted that he did not know how fast he was driving as he drew alongside the vehicle.

“As I was passing the vehicle, she had her left blinker on as if she was going to turn out in the passing lane, but she never did. And then as I was going to go ahead and go past her, I noticed that the license plate—it was a Washington license plate that was the description that was also given at the time of the call. So when I noticed that, I slowed down and let her go back by me and then when I pulled in behind her, she pulled over.”

After McGuire pulled in behind her, the woman pulled over to the shoulder. He thought that action was as suspicious as the woman leaving her left turn signal blinking, so he pulled over to the side and activated his emergency lights. McGuire said as he walked up to the vehicle, he noticed that the driver’s pants were unbuttoned and unzipped, but belted. Even so, Rachel Leatherman “promptly” handed her identification and proof of insurance to Deputy McGuire. He ordered her to get out of the car and stand behind it. McGuire said she had no problem getting out of the car. In fact, he said that if she had been unsteady on her feet or slurring her speech, he would have documented it in his citation.

Sometime after that, Deputy Jason Walters came to the scene. The men searched the car for contraband, but came up with nothing. Later, Officer Gretchen Dawes arrived and searched Leatherman. Before she arrived, however, McGuire testified that Leatherman had emptied her two front pockets. He could not remember whether Leatherman had buttoned her pants at any time during the automobile and personal searches.

Neither Officer Dawes nor Deputy Walters testified at the suppression hearing. However, as her testimony at trial showed, Dawes’ search was not a simple Terry pat-down. Dawes searched the inside rear pockets of Rachel Leatherman’s jeans and made her open the front of her pants so she could search Leatherman’s crotch. Dawes made Leatherman lift her shirt so she could search her breasts for concealed controlled substances. Even McGuire conceded that Dawes’s search was “thorough.”

Deputy McGuire agreed that “[u]nder the circumstances, [Dawes] was not only looking for weapons but also looking for possible drugs,” but found none. McGuire did not see Dawes search Leatherman’s back pockets, but he assumed she did so as part of that thorough search. Finally, McGuire said that en route to Lourdes Hospital, he did not see Leatherman moving in any sort of fashion to indicate that she was trying to hide something.

A thorough search by a trained police officer would presumably “sanitize” a suspect before she is handcuffed and placed into a police car. In other words, how is it possible that Rachel Leatherman held onto a baggie with rock cocaine through a search of her vehicle and her person? Officer Dawes offered her speculation at trial. She said she was told only that the deputies wanted a female officer to search a female suspect. The deputies did not tell her anything about the case such as whether she was supposed to conduct a Terry pat-down or the more thorough search incident to arrest. Interestingly, Dawes said that if she had prior knowledge that Leatherman had drugs on her person, she would have done an even more thorough search.

Deputy McGuire and the two backup officers searched Ms. Leatherman’s person and her car for about 1.25 hours. That search yielded no illegal drugs, no drug residue and no paraphernalia. Despite the fact that Leatherman had not committed a traffic violation and a PBT (Portable Breath Test) registered no alcohol, McGuire arrested her for Driving under the Influence and transported her to Lourdes Hospital for a blood draw.

Subsequent analysis found no alcohol or drugs in Leatherman’s blood.

McGuire was certain Leatherman was wearing a watch, but only thought it was on her right arm. McGuire’s story was that as he assisted her out of the car at the hospital, he noticed that Leatherman had dropped her watch and a small baggie containing a substance consistent with a rock of cocaine. He did not confront Leatherman at that time. McGuire was unsure how long the two remained at the hospital. Once he arrived at the McCracken County Jail and booked Ms. Leatherman, he ran a field test for heroin. That test came back negative.

Rachel Leatherman was charged with Possession of a Controlled Substance in the First Degree, Tampering with Physical Evidence and Driving an Automobile under the Influence. She was convicted on all three charges and sentenced to eight years.

QUESTIONS PRESENTED

1. A trial court shall make written findings of fact and conclusions of law after holding a suppression hearing. RCr 9.78. Is it appropriate for a trial court to render findings of fact and conclusions of law after trial, using information gained at the trial, but not the suppression hearing?

The panel concluded:

Based upon the 911 call, during which the caller described a woman. . . who was committing criminal activity, and the undisputed fact that Leatherman pulled to the side of the road and stopped before Deputy McGuire activated his emergency lights, we hold that there was no constitutional violation in the investigatory stop.

Leatherman v. Commonwealth, 2011 WL 181251, *7 (Ky. App., January 21, 2011).

Walking around a neighborhood and saying the word “heroin” are not criminal acts.

The trial court’s second conclusion of law was that: “[t]he combination of a report of an unknown person, driving a Washington state licensed vehicle in a Paducah, Kentucky residential area, asking about tar heroin, later observed to signal a left turn but pull off the roadway in the right, constitutes reasonable suspicion to investigate and possibly cite for improper signal. TR 222.

The court’s third conclusion was that “[a] report of suspicious activity by a person who identifies himself by name, phone number and address is presumptively reliable.” TR 222. These conclusions came not after the suppression hearing, but after the trial.

The court should have relied only upon the information in the 911 call, not evidence it heard at trial, in order to decide whether Deputy McGuire had reasonable suspicion to stop Rachel Leatherman. United States v. Hensley, 469 U.S. 221 (1985).

The information in the particular 911 call left a good deal to be desired. Vernon Wilkey did not tell the dispatcher that Leatherman was asking “where may I get black tar heroin” “do you have any black tar heroin” or even “does a drug dealer live in this neighborhood”? He simply told the dispatcher that she “mentioned” tar heroin. All Deputy McGuire had was a dispatch that a woman was walking around a neighborhood in McCracken County and mentioned tar heroin. McGuire admitted at the suppression hearing: “[a]t the time we responded, the only information that we had was the fact that she had come up to his house and asked about heroin.” TR 155. He admitted that he talked to Wilkey after he arrested Leatherman. Id., emphasis added. He admitted at trial that he had no idea when the woman had made contact with the neighbor (or Wilkey, for that matter). VR 4; 11/27/2006; 14:05:04.

The Fourth Amendment requires that reasonable suspicion comes only when the police believe criminal activity is currently afoot. See Joshua v. DeWitt, 341 F.3d 430, 446 (6th Cir. 2003), citing Terry v. Ohio, 392 U.S. 1, 20 (1968); emphasis in original. Was the woman “asking about 218A” doing a survey for the local newspaper or television station? Doing surveys for local media is a perfectly legal action. Was she a teacher doing a survey for a local high school civics or social studies class? Doing those sorts of surveys is also a legal act. But McGuire jumped to the conclusion that Rachel Leatherman had to be committing some sort of crime because she was talking to people in a neighborhood and mentioned tar heroin. Unfortunately for McGuire, in Terry, supra, the Supreme Court made clear that the officer’s reasonable suspicion must be made from the facts and the “specific reasonable inferences he is entitled to draw from the facts in light of his experience.” 392 U.S. at 21; emphasis added. McGuire’s suspicion was not based upon reasonable inferences from the facts he had at hand.

The panel ignored United States and Kentucky Supreme Court precedent in finding those facts were enough predictive information with which Deputy McGuire could arrest Ms. Leatherman. In Florida v. J.L., Florida officers received a phone call that a young, black male who was wearing a plaid shirt and standing with two other males at a bus stop was carrying a gun. Officers arrived and found the young man wearing a plaid shirt standing at the bus stop and arrested him. The United States Supreme Court found that the tip gave police no independent reason to suspect that J.L. was up to a nefarious act. 529 U.S. 266, 274 (2000).
In Collins v. Commonwealth, this Court found that a tip claiming that a man driving a white Chevrolet Blazer with a certain license plate threw alcohol at another vehicle parked at a gas station was likewise not enough information that something criminal was afoot.

As in J.L., the tip provided in this matter contained no predictive information; rather, it consisted almost entirely of information readily available to a casual bystander, such as Appellant’s license plate number, his direction of travel, and the make and model of his vehicle. Thus, Trooper Oliver was left with no predictive information to corroborate, or other means by which to verify that the tipster had intimate knowledge of any illegal behavior. 142 S.W.3d 113, 116 (Ky. 2004).

If the panel’s Orwellian holding remains valid, the simple acts of “walking around” in a neighbor’s yard, “writing stuff down” and merely uttering the words tar and heroin, without any further indication of intent to buy or sell, then, in contravention of federal and state case law, the police are absolutely free to engage in fishing expeditions.

Moreover, any person—axe to grind or not–who gives his name and address may pick up a phone and report some “crime” and have that report be deemed reliable. That analysis flies in the face of J.L., supra; Florida v. Royer, 460 U.S. 491 (1983), Hensley, supra; and Terry v. Ohio, 392 U.S. 1 (1968).

“Hunch” that Rachel Leatherman possessed a controlled substance did not constitute suspicion for a stop or reasonable cause for an arrest

The trial court’s first conclusion of law was that “[t]he deputy did not conduct a stop of Defendant’s vehicle. Defendant pulled off the roadway and stopped. The deputy then pulled in behind her and activated his emergency lights so as to investigate.” TR 222. This is incorrect as a matter of law and is unsupported by the evidence.

Deputy McGuire admitted at the suppression hearing that he “was going to” stop Leatherman “anyway” when she pulled to the shoulder. TR 165. He admitted, “I suppose she assumed I was going to stop her, so she went ahead and pulled over, anyway.” He admitted that Leatherman’s actions “were a safe assumption” that he was going to stop her. TR 166; emphasis added. McGuire conceded that it was possible Leatherman had activated her turn signal, but decided against moving into the left lane when she saw the cruiser come up in her rear view mirror. VR 4; 11/27/2006; 14:15:05. McGuire had already testified that he was driving faster than the Leatherman vehicle. That Leatherman did not move to the left lane and collide with the cruiser is evidence that she noticed him coming up on her side.

Yet, McGuire, the trial court and the panel found it suspicious that Leatherman speedily obeyed the demands of KRS 189.930, which mandates that emergency vehicles are to be given the right of way, by the operator of the motor vehicle “driv[ing] to a position parallel to, and as close as possible to, the edge or curb of the highway clear of any intersection. . .”

The panel absolutely ignored Garcia v. Commonwealth, in which a member of the panel had found that the police did not have reasonable suspicion to stop a driver who “quickly changed to the right lane” as a Kentucky State Police Trooper approached the vehicle. 185 S.W.3d 658, 660-661 (Ky. App. 2006). The panel found that “Garcia’s nervousness, lane change, failure to make eye contact, ‘death grip’ on the steering wheel, and out-of-state license plate. . . . describe a substantial number of drivers on our highways.” Further, the panel said, “[i]f we were to accept the Commonwealth’s argument, ordinary law abiding citizens could be subjected to a stop by police based upon routine driving habits.” Id., at 665.

Contrast the behavior in Garcia with that in the case at bar. According to the officers in each case, both Leatherman and Garcia appeared nervous and changed lanes and had out-of-state license plates. The difference is that Leatherman driving with a turn signal blinking was somehow seen as suspicious behavior, rather than the routine (for some drivers) driving habit that it is.

Exculpatory scientific tests trumped by “glassy eyes” and an improper HGN

As a result of the panel’s opinion, exculpatory blood test results are no longer good evidence. The panel used as part of its reasoning for affirming Rachel Leatherman’s convictions that she “failed the HGN test, which reveals intoxication by alcohol or some other drug”. Even assuming arguendo that the other indicators had been present (addressed infra), McGuire improperly administered the test.

The National Highway Traffic Safety Administration warned police officers to position DUI suspects so that they do not face blinking cruiser lights or oncoming traffic because the lights can create a false nystagmus (optokinetic nystagmus). The field video shows McGuire positioned Rachel Leatherman facing the blinking cruiser lights and oncoming traffic. Moreover, the panel ignored the fact that Metoprolol, which Leatherman told McGuire she was taking for hypertension, can cause nystagmus. The test was neither administered properly nor documented. For the panel to rely on this so-called “failed” test in order to affirm Leatherman’s conviction is the height of arbitrariness and incorrect legal analysis.

The panel noted that his “observation of [Rachel] Leatherman’s glassy eyes and odd behavior coupled with her admission that she was taking prescription medication” was sufficient to provide Deputy McGuire with probable cause to arrest her for DUI. Leatherman, supra, at *9.

The panel absolutely ignored McGuire’s admissions that Leatherman drove in compliance with traffic laws. It even cited McGuire’s testimony that Leatherman was neither driving erratically nor weaving! Id. Leatherman produced her license and registration quickly after he asked for them. Her eyes were not watery or bloodshot. Her pupils were not pinpoint or dilated. She did not have a runny nose as is common with some cocaine users. She did not have scabs or needle marks, also common with intravenous drug users. She was not coughing or short of breath; she was not sneezing or sweating. She did not complain of nausea or chest pains. Her face was not flushed. She was alert.

Moreover, McGuire admitted at the suppression hearing that the HGN result by itself could not provide probable cause. VR 4; 11/27/2006; 14:21:45. Neither does nervous behavior.

The panel also absolutely ignored United States Supreme Court and Sixth Circuit case law which establishes that nervous, evasive behavior is the standard to justify reasonable suspicion, not simple nervousness or restlessness. Illinois v. Wardlow, 528 U.S. 119, 124, (2000); Joshua v. DeWitt, 341 F.3d 430 (6th Cir. 2003).

One need only look at several Supreme Court cases regarding drug smuggling at the United States-Mexico border to determine that evasive behavior is the key. United States v. Brignoni-Ponce, 422 U.S. 873, 885 (1975) (“The driver’s behavior may be relevant, as erratic driving or obvious attempts to evade officers can support a reasonable suspicion.”); Florida v. Rodriguez, 469 U.S. 1, 6 (1984) (“[T]he three confederates … had spoken furtively to one another. One was twice overheard urging the others to ‘get out of here.’ Respondent’s strange movements in his attempt to evade the officers aroused further justifiable suspicion….”); United States v. Sokolow, 490 U.S.1, 5, 8-9, (1989) (noting that “[Respondent] appeared to be very nervous and was looking all around the waiting area,” but that “one taking an evasive path through an airport might be seeking to avoid a confrontation with an angry acquaintance or with a creditor”).

The ultimate irony for this case is that after the hour and one-half Deputy McGuire held Rachel Leatherman on the side of the road, he found nothing illegal. The panel stated as much when it said, “consent searches of her automobile and her person did not reveal any heroin or any other illegal substance.” Leatherman, supra, 2011 WL 181251, at *7.

Effects of Clonazepam/Klonopin

As the final rung of its finding that McGuire had probable cause to arrest Ms. Leatherman for DUI, the panel cited to “the product information for Klonopin. . . .[which] states that patients taking that medication “should be cautioned about operating hazardous machinery, including automobiles, until they are reasonably certain the Klonopin therapy does not affect them adversely.” Leatherman, supra, at *9.

Unfortunately, that information is also after-acquired and not something Deputy McGuire knew at the scene. The trial court made the same error when it noted her statement that “she was taking medication that would cause her to fail the test, constitutes probable cause to arrest for DUI.” TR 222.

Moreover, the panel and the trial court absolutely ignored KSP lab tech Ryan Johnson’s testimony that Klonopin itself could cause “positive” HGN signs. VR 4; 1/22/2008; 2:59:55. The panel (and the trial court) also absolutely ignored Johnson’s testimony that even if he had the equipment to test Rachel Leatherman’s blood for the presence of Klonopin, the simple presence of the drug was not an indicator that the person was under the influence such that she could be charged with, let alone convicted of, driving under the influence of an intoxicant. Id., 3:03:36.

Conclusion

The panel ignored the facts and law of this case in affirming Rachel Leatherman’s convictions for driving under the influence. Moreover, the trial court ignored the facts and the law, including the dictates of RCr 9.38, when it used information gained from trial testimony to concoct a third set of findings of fact and conclusions of law. This Court must grant discretionary review.

2. The panel erred when it found the trial court properly granted the government’s motion in limine which prohibited defense counsel from mentioning that Rachel Leatherman asked Deputy McGuire to retrieve her watch from the backseat.

The panel found that the trial court did not abuse its discretion when it did not admit Leatherman’s statements to Deputy McGuire from the back of his cruiser. The panel said, “the trial court indicated that it would permit Leatherman to testify to her statement regarding the watch had she opted to take the stand in her own defense.” Leatherman, supra, at *10. That finding is inconsistent with the trial court’s ruling that Leatherman’s statements were inadmissible, self-serving hearsay. VR 1; 1/22/2008; 8:56:24.

In light of the government’s announcement that it believed “801A(b)” prevented trial counsel from broaching the subject, this Court cannot seriously believe that had Leatherman testified, “I asked Deputy McGuire to look for my watch,” the government would not have been strenuously objecting on hearsay grounds. But why should Leatherman be forced to give up her right to remain silent to an admissible statement?

The panel next found, “Leatherman did not attempt to impeach Deputy McGuire’s prior statements regarding discovery of the watch and drugs through laying a proper foundation.” Leatherman, supra, at *10. The panel ignored trial testimony. In his cross-examination, defense counsel asked Deputy McGuire:

DC: How is it that you came to find the watch?

DM: Whenever she got out of the backseat, that’s when I found it.

DC: She actually asked you about the watch, didn’t she?

VR 2; 1/22/2008; 5:40:32. The government immediately objected.

It is hard to fathom what else counsel was doing besides beginning to lay a foundation so that he could cross-examine McGuire when he was prevented from doing so by the government’s objection and the trial court sustaining it. The panel focused on Leatherman’s alleged failure to impeach McGuire to the exclusion of the impeaching material to be discovered.

It absolutely ignored just how Deputy McGuire’s testimony changed in the months between the preliminary hearing, the suppression hearing and trial. At the preliminary hearing, McGuire’s testimony was that the watch and baggie were not in plain view. In fact, he testified that he saw the baggie only when he moved the seat. TPH 11.

By the time the suppression hearing came around, the baggie and Ms. Leatherman’s watch were in plain view next to her in the back seat. VR 4; 11/27/2006; 14:25:55. Interestingly, he also said Leatherman had told him before they went into the hospital that she had dropped her watch. Id., 14:28:15. At trial, McGuire testified that as he assisted Ms. Leatherman out of the cruiser at Lourdes Hospital, he saw a baggie with what appeared to be a rock of cocaine lying underneath her watch in the seatbelt crack of the back seat. VR 2; 1/22/2008; 4:06:20.

The panel could not then—this Court cannot now—reconcile McGuire’s conflicting accounts regarding whether he saw the baggie and watch in plain view or not in plain view. McGuire had been a member of the McCracken County Sheriff’s Department for four and one-half years. VR 1; 1/22/2008; 14:08:45. Presumably, he was familiar with the meaning of the phrase “plain view.” Yet, his story about plain view progressed over the months.

Finally, the panel opined that the outcome of the case would not have been changed because of the “strength of the rest of the testimony that was introduced, including the close proximity of the watch and the drugs as well as the search of the area prior to Leatherman’s placement in the cruiser.” Leatherman, supra, at *10. It is hard to fathom how testimony which changes in material ways from preliminary hearing to trial is “strong”.

The panel absolutely ignored Gretchen Dawes’s testimony about how she searched Rachel Leatherman’s person. Prior to Dawes’s arrival, McGuire testified, Rachel Leatherman emptied her front pockets. VR 4; 11/27/2006; 14:25:36.

Dawes searched the inside rear pockets of Leatherman’s jeans and made her open the front of her pants so she could search Leatherman’s crotch. She made Leatherman lift her shirt so she could search her breasts for concealed controlled substances. TR 26. Even McGuire conceded at the suppression hearing that Dawes’s search was “thorough.” VR 4; 11/27/2006; 14:25:40.

Yet, the panel believed the impossibility that Rachel Leatherman held onto a baggie with rock cocaine through a search of her vehicle and her person. Assuming for sake of argument that Leatherman did so, where did she conceal the baggie? As was clearly seen on the dashboard camera (the recording is a part of the exhibits in the file housed with the Clerk of the Kentucky Court of Appeals), McGuire had her open her hands up together, at one time—she could not have held the baggie in one hand, then the other. Dawes opened her jeans zipper—Leatherman could not have concealed the baggie in her crotch. Dawes had her raise her blouse—Leatherman could not have concealed the baggie in her bra. The search also begs the question of how Leatherman retrieved the baggie–in handcuffs–without moving enough to make at least one of the officers suspicious.

Conclusion

The panel ignored the facts and law of this case. This Court must grant discretionary review.

CONCLUSION

The panel ignored clear precedent and the facts of this case in affirming Rachel Leatherman’s convictions. Moreover, the panel also ignored the fact that the trial court’s findings of fact and conclusions of law changed over three iterations, one coming after it had heard all the trial testimony. Just as Deputy McGuire used after-acquired information, so, too, did the trial court. This Court must grant discretionary review.

Respectfully submitted,

JULIA K. PEARSON

NOTICE

Please take notice that the foregoing Motion for Discretionary Review will be filed in the Office of the Clerk of the Supreme Court on this 17th day of June 2011.

CERTIFICATE OF SERVICE

I hereby certify that a true and accurate copy of the foregoing Motion for Discretionary Review has been mailed, postage paid, to Hon. Jack Conway, Attorney General, 1024 Capital Center Drive, Frankfort, Kentucky 40601 and Hon. Samuel Givens, Jr., Clerk of the Court of Appeals, 360 Democrat Drive, Frankfort, Kentucky 40601, this 17th day of June 2011.

Julia K. Pearson


The Curious Case of the Three Suppression Orders (Part 2)

December 8, 2011

Author’s note: In case y’all missed it or want to refresh your recollection, Part 1 is here.

Deputy McGuire testified at the suppression hearing that he was dispatched by 911 to investigate a call by a citizen who reported that, “There’s this lady walking around in my neighbor’s yard talking to my neighbor and writing stuff down in a notebook and she mentioned something about tar heroin and all that stuff.”

The caller identified himself and described the woman and her vehicle. He also reported that the vehicle had a WA license and provided the number. He did not indicate if he had spoken with the woman; if he was present when the conversation took place; who told him about it if he was not present; or what she was writing down.

When he arrived in the area, the deputy searched for but he did not find the woman or the vehicle and he cleared the call without talking to the 911 caller. As he was approaching the traffic-controlled Cairo Road intersection in the passing lane on Highway 60, he noticed that he was passing a vehicle with its left turn signal blinking. The vehicle had WA plates and both the driver and the vehicle matched the description provided by the caller. He decided to pull her over and investigate.

He slowed down, allowing her to move ahead, and then he fell in directly behind her. She reacted by activating her right turn signal and moved over into the emergency lane along the right shoulder of the highway. As she did, he activated his emergency lights, moved over with her, and stopped behind her.

Upon request, she produced her license, registration, and proof of insurance without difficulty.

When he ordered her to get out of her vehicle, she did so without stumbling, and she followed his instructions without exhibiting any confusion or mental impairment. Other than “glassy” eyes and nervousness, he saw no signs of possible impairment. He administered a portable breath test (PBT) that she passed, effectively ruling out alcohol intoxication. Although she “failed all six clues” on the horizontal gaze nystagmus test (HGN), he administered the test improperly, according to the National Highway Transportation and Safety Administration (NHTSA) because he positioned her facing the headlights of oncoming traffic and his patrol cruiser’s emergency lights. NHTSA, which developed the test, warns police not to do that because the lights produce a false nystagmus.

The deputy conceded that he did not witness any bad driving and her blinking left-turn signal could have been due to her intending to move into the left lane, but his approaching vehicle in that lane prevented her from doing so.

After he placed her under arrest for DUI, he transported her to a hospital for a blood draw and discovered an apparent rock of crack next to her watch in the seatbelt crack of his back seat next to where she was sitting.

Author’s note: In another post we discussed his prior testimony under oath at the preliminary hearing and the grand jury in which he said he found her watch and the rock of crack under his back seat. In other words, he did not find it in plain view on the seat beside her. He said he pulled the back seat forward to look for her watch after she told him that it had fallen off and slipped behind the seat. She asked him to retrieve it because she was handcuffed and could not do it herself.

The trial judge entered three suppression orders.

1. The First Order.

On January 11, 2007, Judge Clymer issued his first order denying the motion to suppress evidence. Although all of the material findings of fact and conclusions of law were clearly erroneous, one finding of fact and its corresponding conclusion of law merit special consideration. In Finding of Fact 5, Judge Clymer wrote,

When Defendant first exited the [her] vehicle the Deputy observed a wristwatch in close proximity to a baggie with apparent controlled substance inside the car. Defendant denied the apparent controlled substance was hers but acknowledged the wristwatch was hers.

This did not inspire confidence as one can only wonder how the judge forgot or became confused and thought that the rock of crack was discovered in her vehicle rather than the police cruiser.

Not to worry, we thought. We pointed out that and other errors and asked him to reconsider his order, which he agreed to do.

2. The Second Order

On January 18, 2008, Judge Clymer entered his second order concerning the defense suppression motion. He found that while driving “in a right hand traffic lane with her left turn signal activated, [the appellant] did not turn but pulled to the right side of the roadway and stopped.” (Finding of Fact 3) “The deputy pulled in behind the stopped vehicle and activated his emergency lights.” (Finding of Fact 4) He concluded that the arresting officer “did not conduct a stop of the appellant’s vehicle” because she “pulled off the roadway and stopped” before “he pulled in behind her and turned on his emergency lights so as to investigate.” (Conclusion of Law 1)

Author’s note: We have already discussed whether this was an investigatory stop initiated by a police officer or a voluntary citizen initiated contact with a police officer. This was an investigatory stop.

Judge Clymer also concluded that “[t]he combination of a report of an unknown person, driving a Washington state licensed vehicle in a Paducah, Kentucky residential area, asking about tar heroin, later observed to signal a left turn but pull off the roadway to the right, constitutes reasonable suspicion to investigate and possibly cite for improper signal.” (Conclusion of Law 2)

Author’s note: A person who calls 911 to report a possible crime is presumed to have provided reliable information if he identifies himself and provides a current address. Since the caller in this case provided the requisite information, he would be presumed to have provided reliable information. However, even if one assumes that his information was accurate and reliable, he did not describe criminal activity. In addition, the judge’s findings of fact conflict with the information provided by the caller and the deputy’s testimony, which described an alert driver operating her motor vehicle in compliance with the traffic laws. He could not have cited her for “improper signal” because no such statute exists. Since the information provided by the presumptively reliable caller and the deputy described lawful activity, the judge erroneously concluded that the deputy had a reasonable suspicion “to investigate and possibly cite for improper signal.”

Regarding the appellant’s arrest, he found as fact that the appellant admitted that she had taken several prescription medications, including Clonazepam. (Finding of Fact 6) He also found that “[t]he maker of Clonazepam warns that it should not be used when driving a vehicle and that the drug causes abnormal eye movements.” (Finding of Fact 7) He concluded, “[d]efendants inquiring about heroin, failing an HGN test, signaling a left turn and pulling off the road to the right, and stating she was taking medication that would cause her to fail the test, constitutes probable cause to arrest for DUI.” (Conclusion of Law 4).

Author’s note: We have already discussed the HGN and Clonazepam issues noting that the product insert does not warn “that it should not be used when driving a vehicle and that the drug causes abnormal eye movements.” It advises physicians to warn their patients for whom they first prescribe Clonazepam to be careful because the drug might cause drowsiness and impair their ability to operate a motor vehicle or other machinery. If that happens, the dosage can be lowered to avoid impairment. This is actually a common warning given for many drugs that are prescribed to improve functioning. Clonazepam is such a drug and it is prescribed to enhance function by reducing anxiety and to control seizures. Dosage is critical. Assuming the judge was honest, the rest of the finding establishes that he was thinking of a different case when he crafted this effort.

To be continued.


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