Case law (VT & and US) update 2016 no.1

(Presented at Inter-agency 4)

Spring 2016
Case law updates

Miranda 5th Amendment

•In Re EW 2015 VT 7

•Juvenile in custody in his home. Independent witness did not clearly enhance EW’s sense of freedom to decline to answer the officer’s questions, in light of statements about honesty and doing the right thing;

•not the juveniles actual home but a mandated placement where he had been 6-8 weeks;

•defendants age – 15

•Statements suppressed

State v Alexander 2016 VT 19

Reasonable Suspicion

•Defendant argues that the trial court erred when it denied his motion to suppress evidence obtained as a result of an unlawful seizure that was not supported by reasonable suspicion.

-Facts-

•On July 11, 2013, Detective Urbanowicz of the Bennington Police Department (BPD) was driving an unmarked police vehicle in Bennington when a taxicab pulled up next to him on his right side and the driver motioned for him to roll down his window. When he did so, the cab driver asked Detective Urbanowicz for the location of the “China Buffet’

•Detective Urbanowicz noted that according to the information displayed on the cab, it haled from Albany, New York. On the basis of his work with the Southern Vermont Drug Task Force, the detective was aware of information that heroin and crack cocaine dealers from out of state were using cabs and buses to travel to Bennington to distribute drugs.
Facts

•Specifically, he was aware that the Yankee Trails bus stop, located next to a Chinese restaurant on Main Street in Bennington that had always been called the Lucky Dragon, was a place where both controlled and street drug transactions had occurred

•Detective Urbanowicz was aware that the task force had developed information that a large African American male, with the nickname “Sizzle,” traveled to Bennington in the company of a woman named Danielle and a man named Tracy, both known to Detective Urbanowicz to deal drugs.1 Detective Urbanowicz noticed a large African American male sitting in the front passenger seat of the cab and thought he might be “Sizzle,” though he was not certain.
Facts

•Corporal Hunt saw that the cab had a GPS device attached to the interior of the front windshield and stopped the cab for violating 23 V.S.A. § 1125, which prohibits driving with an obstructed windshield.
 

•Corporal Hunt ran records checks on both the driver and passenger and saw that there were no warrants for either. The record check also revealed Alexander had a prior misdemeanor arrest from Dover, Vermont in 2010, had an alias: “Snacks,” and had a listed address in New York.

•At that point, Corporal Hunt asked the driver to step out of the cab so he could discuss the situation with the driver.
 

•After this discussion, Corporal Hunt asked the driver for permission to search the cab.
 

•Corporal Hunt asked defendant “if he minded” if Corporal Hunt searched his bags. Defendant initially responded that he did mind. Corporal Hunt then radioed for a canine unit to be brought to the scene to perform a search. Once he heard that, defendant clarified that he did not mind if Corporal Hunt searched his bags. Upon searching defendant’s bags, Corporal Hunt discovered over ten grams of heroin in 401 bags, wrapped in forty separate bundles
 

•A jury subsequently convicted defendant, and the court sentenced him to ten years to ten years and one day to serve. 

-Law-

•Generally, a police officer may stop an individual where the officer has “reasonable and articulable grounds to suspect that an individual is engaged in criminal activity.” Pitts, 2009 VT 51, ¶ 7; see Terry v. Ohio, 392 U.S. 1, 21, 28 (1968).
 

•Where the officer has reasonable suspicion of criminal activity, the officer “may briefly detain the individual to investigate the circumstances that gave rise to the suspicion.” Pitts, 2009 VT 51, ¶ 7
  •However, “[t]he scope of the search must be strictly tied to and justified by the circumstances which rendered its initiation permissible.” Terry, 392 U.S. at 19 (citing Warden v. Hayden, 387 U.S. 294 (1967)

•In the context of seizures relating to traffic violations, the law is well settled that police may stop a vehicle and briefly detain its occupants to investigate a reasonable and articulable suspicion that a motor vehicle violation is taking place. See Rodriguez v. United States,

 •Authority for the seizure thus ends “when tasks tied to the traffic infraction are—or reasonably should have been—completed.” Id.

  •the police expanded the seizure beyond the scope of the reasonable suspicion supporting the traffic stop at the time Corporal Hunt asked the driver to get out of the cab and talk to him privately

  The focus of his inquiry pivoted from the traffic infraction that supported the stop in the first place to an investigation arising from suspicion that defendant was engaged drug-related crimes.

•This new “mission” prolonged the traffic stop beyond the time necessary to effectuate the purpose of the traffic stop, and thus required additional reasonable suspicion to support the extended seizure. See State v. Winters, 2015 VT 116
 

•The critical question, then, is whether the police had reasonable suspicion to prolong the seizure of defendant at the moment Corporal Hunt asked the driver to get out of the car.

•Reasonable suspicion of criminal wrongdoing must be based on “specific and articulable facts” and not on an officer’s “inchoate and unparticularized suspicion or ‘hunch.’ ” Terry, 392 U.S. at 21, 27
  

•At the time Corporal Hunt asked the driver to get out of the car, the police knew: (1) The Lucky Dragon Chinese Restaurant is a known drug hotspot, and is located on Main Street; (2) Defendant was looking for the Chinese restaurant on Main Street, but thought it was called the Chinese Buffet; (3) heroin and crack cocaine dealers from out of state were using cabs and buses to travel to Bennington to distribute drugs; (4) defendant lived in Brooklyn, and was in a cab coming to Bennington from Albany; (5) police had information that an unidentified large African-American male, with the nickname “Sizzle,” traveled to Bennington by taxi or by public transportation in the company of a woman named Danielle for the purpose of selling drugs; (7) defendant is a large, African-American male who was traveling to Bennington by himself in a taxicab; (8) defendant was arrested in 2010 in Dover, Vermont and has an alias of Snacks.

•Turning to this case, although heroin and crack cocaine dealers from out of state may arrive in Bennington by taxicab or bus,4 so do out-of-state visitors coming to Vermont to ski, hike, shop, view the foliage, attend school, engage in legitimate business activites, or enjoy a quiet getaway.
  

•The act of traveling by taxi or bus from Albany to Bennington is not only entirely innocent in and of itself, but is common for law-abiding citizens. Detective Urbanowicz testified that a Yankee Trails bus arrives in Bennington (to a station near the Lucky Dragon) twice a day, and that in recent times Bennington is seeing more taxicabs from Albany. In short, the fact that defendant was riding in a taxi from Albany to a Chinese restaurant on Main Street in Bennington cannot support a reasonable suspicion that he was engaged in criminal activity just because drug dealers are known to travel by taxi or bus (or private transportation), because “a very large category of presumably innocent travelers” do the same. Reid, 448 U.S. at 441

•Accordingly, this case really turns on the significance of the anonymous and confidential tips that an unidentified large African-American male known as “Sizzle” was known to travel by bus or taxi to the Lucky Dragon with a woman named Danielle in order to sell drugs.

•the information known to the police was insufficient to support the inference that defendant was Sizzle. Sizzle was known to travel with a female associate known to local law enforcement; defendant was traveling alone. Sizzle was known by the nickname “Sizzle;” the only nickname associated with defendant was “Snacks.”
  

•the only shared characteristics supporting the inference that defendant was Sizzle are that both are large African-American men, and both apparently travel to Bennington by taxi or bus

•With more specific characteristics, reasonable suspicion may have been established.
  

•Because the extended seizure of defendant was unconstitutional, we conclude that defendant’s consent to search his bag was invalid.


SUPREME COURT OF THE UNITED STATES

Second Amendment

JAIME CAETANO v. MASSACHUSETTS
 
ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME JUDICIAL COURT OF MASSACHUSETTS 
No. 14–10078. Decided March 21, 2016 
•The Court has held that “the Second Amendment ex­tends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” District of Columbia v. Heller, 554 U. S. 570, 582 (2008)

•Not in use when 2nd amendment created

•Dangerous per se – modern invention

•Contemporary lense, only those useful in warfare

•All arguments were rejected

 

SUPREME COURT OF THE UNITED STATES
 

MICHAEL WEARRY v. BURL CAIN, WARDEN 

•Murder conviction overturned

•Police held onto prior statements made by complainant (key witness)

•Prosecution did not disclose potential deals made with key witness

•Medical records regarding a witness not disclosed 

Montgomery v. Louisiana

•Rule that juveniles cannot not get life without parole applies retroactively as the change in law (rule) is a substantive change.
 

MULLENIX v. LUNA Per Curiam 

•No civil liability of police officer where deadly force was not improper “beyond debate.”
FSE

•Citation pending

•Defendant not advised that a refusal of FSE’s could be used against him

•Evidence of refusal permitted
Traffic stop

•3 justice Panel Ruling (permissive)

•State v Corbeil

•LE stopped d for fog light

•Trial court – bad stop b/c optional equipment

•Reversed b/c non working light would fail vehicle inspection so therefore LE has reasonable suspicion that inspection sticker is expired.

DUI element of driving

State v. Laraway

•Evidence sufficient d was driving where d made many inconsistent statements, had injuries consistent with being driver, d was one of two people who could have been driving.

Excited utterance DV (citation pending)

•Victim said her boyfriend assaulted him immediately after assault. Court allowed statements. Defendant convicted without victim testimony at trial.
Trespass case (Barre Town)

•We recently had a case where a person was found in a person’s outbuilding/garage on their property. When asked, the owner stated that they never kept the door locked, the garage/building was not part of the residence (attached) and the homeowner did not give notice that the person was not allowed.

•Unlawful Trespass is:

•When a person enters or remains on land or place where notice against trespass is given by actual communication or by a sign, it’s a crime. 13 V.S.A. 3705(a)(1). 

•If a person enters a building/land/place owned by someone and that someone says, “get out” and the person remains, it’s an unlawful trespass. 

•If a person enters a building/land/place that has a sign stating, “No trespassing”, it’s an unlawful trespass.
 

•When a person enters a building other than a residence, whose access is normally locked, whether or not the access is actually locked, or a residence in violation of a court order, it’s a crime. 13 V.S.A. 3705(c). 

•“When a nonresidence is involved, the unlawful trespass statute requires that the normal access to the building be locked, 13 V.S.A. s 3705(c), or that certain methods of notice against trespass be employed, 13 V.S.A. s 3705(a).” State v. Savo, 139 Vt. 644, 647 (1981).

•Even though, it’s a 1981 case, still good law and comes directly from the plain language of the statute.
 

•When a person enters a dwelling house, whether or not a person is actually present, knowing that he or she is not licensed or privileged to do so, it’s a crime. 13 V.S.A. 3705(d).

•Dwelling house is a residential structure or mobile home which contains one to four family housing units, or individual units of condominiums or cooperatives, other than a time-share in a unit, each of which is used or intended to be used as a residence. 12 V.S.A. 4931(2).

•Must show that the defendant knew he or she was not allowed to enter. 


New Law involving Violation of Probation conditions and Conditions of Release

 
State v. Careau 2016 VT 18

Probation condition struck

•Defendant sex offender

•“You shall reside/work where your Probation Officer or designee approves. You shall not change your residence/employment without the prior permission of your Probation Officer or designee.”

•We can dispose of the first question rapidly

•Although no objected to at imposition

•We agree with the parties that Freeman controls and so strike condition 43 as plain error and reverse and remand the matter for the trial court to justify the condition, make it more specific, or eliminate it entirely.

 
COR

•State v. Gates

•Repeated VCR’s

•State seeks to hold under 13 VSA 7575
COR

•Gates cont

•Between December 2014 and January 2016, defendant was charged with several new crimes—retail theft, unlawful trespass, identity theft, prescription fraud, welfare fraud, petit larceny, grand larceny, false pretenses, and obstruction of justice—as well as seventeen VCRs for going onto the premises of the Iron Kettle or for having contact with his mother or both (Docket Nos. 127-2-15 Bncr, 201-3-15 Bncr, 290-4-15 Bncr, 313-4-15 Bncr, 344-4-15 Bncr, 402-5-15 Bncr, 523-6-15 Bncr, 594-7-15 Bncr, 694-8-15 Bncr, 801-9-15 Bncr, 1028-10-15 Bncr, 1059-11-15 Bncr, 1084-11-15 Bncr, 6-1-16 Bncr, 57-1-16 Bncr). The trial court has found probable cause to support each of these charges. In each case, defendant was released subject to conditions of release.

 
COR

•Gates cont

•The right to bail may be revoked entirely if the judicial officer finds that the accused has:

•intimidated or harassed a victim, potential witness, juror or judicial officer in violation of a condition of release; or

•repeatedly violated conditions of release; or

•violated a condition or conditions of release which constitute a threat to the integrity of the judicial system; or

•without just cause failed to appear at a specified time and place ordered by a judicial officer; or

•in violation of a condition of release, been charged with a felony or a crime against a person or an offense like the underlying charge, for which, after hearing, probable cause is found.

 
COR

• “very limited and special circumstances where the State’s interest is legitimate and compelling, a court may not deny bail in the face of the constitutional right.” State v. Blackmer, 160 Vt. 451, 456, 631 A.2d 1134, 1137 (1993) (citing Sauve, 159 Vt. at 573-74, 621 A.2d at 1301).
COR

•13 VSA 7575 (1)

•we do not find in them direct evidence of intimidation.

 
COR

•13 VSA 7575 (2) – multiple VCR’s

•There is no finding of nexus between the VCRs and the disruption of the prosecution, if such a disruption has occurred, and the evidence supporting a connection is very weak
COR

•13 VSA 7575 (3) threat to judicial system

•(d threatened to deflate prosecutor’s tires)

•We hold that the State had to introduce some live testimony, which could be supported by affidavits, to prove by a preponderance of the evidence that defendant committed obstruction of justice. It failed to do that.
COR

•13 VSA 7575 (4)

•“The Vermont Constitution provision does not have an exception for multiple charges. Reliance on § 7575(5) in this case would be ineffective for the same reasons as we found that § 7575(2) does not support revocation.”
COR

•Washington County – Courts will not even impose a condition 3

 
COR – bail

•Bail imposed where “defendant’s repeated threatening phone messages and direct threats of violence tin front of state trooper demonstrate threat to public safety but also reflect on character and mental state – which bears on defendant’s risk of non appearance.
Sentencing Issues

 Defendant has right to speedy trial
•The legislative and constitutional goal is clear and laudable: in nonlife-imprisonment cases, defendants held without bail get their cases tried on a priority basis. That will include a substantial number of cases involving, as does this case, charges of domestic violence. State v. Passino, 154 Vt. 377, 384, 577 A.2d 281, 286 (2004)
 

The Evolution of Surveillance 

•In 1791 the Bill of Rights was signed. Included was the Fourth Amendment: “The right of the people to be secure in their persons, houses, papers and effects…
 

•In 1928, Olmstead v. United States, determined that evidence from wiretaps placed by federal officials without judicial approval is permissible; this did not violate the suspected bootleggers Fourth Amendment right. This case involved telephone conversations and the agents did not trespass on the accused property.
 

•This remained in effect until 1967 with Katz v. United States. In that case, the Justices overturn Olmstead by deciding that the “Fourth Amendment does protect phone calls and electronic transmissions as well as the “’reasonable expectation of privacy’ in places like home, office, hotel room, phone booth. Examination of such places and things now require a warrant.”

 
 

•Following this decision, in 1968, Congress passed the Omnibus Crime Control and Safe Street Acts which was the first Federal law to restrict wiretapping. This law made an exception for the President to have the authority to approve wiretaps if it is to protect the United States

 

Four years later, in 1972, President Nixon is impeached and resigns due to attempted wiretapping and theft of secret documents. In 1975, the Church Committee, headed by Senator Frank Church, investigated the CIA and FBI and uncovered hundreds of warrantless wiretaps and electronic surveillance.

 
•Due to the Church Committee findings, in 1978 President Carter signed the FISA legislation. This provided judicial and congressional oversight of foreign intelligence surveillance activities while maintaining the secrecy necessary to monitor national security threats.
 

•October 26, 2001 George Bush signed into law the Patriot Act (Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001). The act is comprised of 10 categories. This legislation was written in response to the September 11 attacks. This law gave new powers to the US Department of Justice, National Security Administration and other federal agencies for surveillance of electronic communications. The law also removed legal barriers from blocking police, intelligence and defense agencies from sharing information about potential terrorist threats.  

 

•Certain provisions of the Patriot Act expired on June 1, 2015. On June 2, 2015, President Obama signed the Act which included three amendments. Those three amendments are referred to as the USA Freedom Act. This Act was in response to Edward Snowden who, in 2013, leaked information that the NSA was using the Patriot Act to justify the collection of millions of phone calls.

 
 

•In 2013, Edward Snowden reported to the newspapers The Guardian and The Washington Post a secret program called PRISM that, since 2009, has allowed the NSA access to personal data of millions of people through social media and telephones. Furthermore, the FBI is using drones as part of the domestic surveillance program.  

 
 

•Amendments: 1) This Act requires the NSA to stop collecting bulk phone records, however, those corporations who manage the data can (AT&T, Verizon). The government can request information from these corporations if they have a specific selector, i.e., the person’s name, telephone number, etc. and this is relevant to an authorized investigation. 2) When the NSA wants records, they go through the Federal Foreign Intelligence Surveillance Act Courts. Under this Amendment, there will also be a public advocate at these hearings who will argue to protect our data. 3) The government is now required to public the results of the decisions as well as statistics regarding the use of surveillance. These Amendments expire in 2019.

 
 

•In 2002, the National Joint Terrorist Task Force was created which is a multi agency collaboration comprised of “small cells of highly trained investigators, analysists, SWAT experts and other specialists to combat terrorism. In 2003 the Homeland Security Act was passed by Congress. This is a stand alone cabinet level department to coordinate and unify national homeland security efforts.

 
•The warrant requirement in our Constitution reflects a deeply-rooted historical judgment that the decision to invade the privacy of an individual’s home or possessions should normally be made by a neutral magistrate, not by the agent of the search itself. See State v. Savva, 159 Vt. 75, 86, 616 A.2d 774, 780–81 (1991).
 

•US v. Wurie, 2014: Police watched a suspected drug dealer make a sale, they arrested him and took his cell phone. They used his contact list from his phone to locate his home and then found drugs there. The Court ruled the police cannot search a phone taken from a suspect without a warrant.

 
 

•US vs. Jones, 2012: The FBI got a search warrant to place a GPS tracking device on the underside of the defendant’s automobile. The warrant authorized GPS be installed within 10 days and the installation be in Washington, DC; the agents installed the GPS on the 11th day and in Maryland. The lower court suppressed the GPS data while the vehicle was parked at Jones’ residence but held that the remaining data was admissible since the vehicle was on public streets. The court ruled the tracking exceeded the warrant’s time limits and was an illegal search.

 
 

•In June 2105, the US Supreme Court overturned a conviction of Pennsylvania man, Anthony Elonis. Elonis posted tirades about murdering his estranged wife, an FBI agency and schoolchildren; this resulted in Elonis being charged with threats and incarcerated. In Elonis v. United States, Elonis argued his posts weren’t true threats but rather therapeutic rap lyrics that should be protected by free speech. Elonis posted: “There’s one way to love you but a thousand ways to kill you. Enough elementary schools in a ten mile radius to initiate the most heinous school shoot over imagined.” The Supreme Court agreed. Chief Justice Roberts wrote that it is not criminal speech unless the author intended it as a threat even if a reasonable person would read it as a threat. “… negligence is not sufficient to support a conviction.”

 
Surveillance

•State v. Geraw

•Supreme Court of Vermont. March 15, 2002 173 Vt. 350 795 A.2d 1219

•Electronic Surveillance. Warrantless recording of conversation with officer in defendant’s home violated right to privacy.
 

•In 2008, the Vermont Supreme Court ruled in State v. Bryant that the actions of law enforcement flying 100 feet above the defendant’s property (looking for marijuana which resulted in a lower court conviction for cultivation) is an unreasonable intrusion of privacy that triggers constitutional protection.
Drones in general

•Amazon has a patent for a type of drone that picks up and delivers packages. If you want to use a drone for personal use, you do not need a license, but you do need to register it ($5.00) which is valid for 3 years and you must be at least 13 years old. Drones are governed by FAA rules, which include a 400’ operation ceiling.
S.18

•Currently the Vermont legislature is reviewing S.18 concerning the use of drones and automated license plate recognition (ALPR). As currently written, the bill proposes to establish regulations on the use of drones and to “permit a law enforcement agency to use a drone only if the agency obtains a warrant or if emergency circumstances exist.” The bill also will restrict the “use of ALPR systems to require data capture by ALPR systems be kept confidential and to limit such data from being retained for more than 24 hours, unless certain exceptions apply.”

 
Posting mugshots?

•In 2013, Bristol (VT) police, in response to the public outcry of not knowing what’s going on in the community, posted mug shots and information on their Facebook page. Many residents were upset over this decision. In 2015, South Burlington Police Department announced they would no longer post mug shots on Facebook due to inappropriate comments posted. This has snowballed and in July 2015, VT Digger wrote an article, ‘Distributing Mugshots a Balancing Ace for Police, Publishers.”
Civilian surveillance

•Audio v video

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Telephone recordings

•Who must give permission to record a telephone or in-person conversation?

•Federal law permits recording telephone calls and in-person conversations with the consent of at least one of the parties. See 18 U.S.C. 2511(2)(d). This is called a “one-party consent” law.

 
Recording Law enforcement

•First Circuit (with jurisdiction over Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island): see Glik v. Cunniffe, 655 F.3d 78, 85 (1st Cir. 2011) (“[A] citizen’s right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.”); Iacobucci v. Boulter, 193 F.3d 14 (1st Cir. 1999) (police lacked authority to prohibit citizen from recording commissioners in town hall “because [the citizen’s] activities were peaceful, not performed
 

•The First Amendment right to record does NOT give you the right to interfere in the performance of officials’ duties, or violate generally applicable laws. You may still face criminal prosecution or civil liability if, while recording, you: interfere with an arrest; trespass into secure government areas or private property; fail to respond to legitimate measures by law enforcement to control riots or disturbances; or otherwise interfere with official activity or violate private rights.
More information

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About danielmichaelcavanaugh

Chief Deputy and Special Victims prosecutor with the Washington County State's Attorney's office. Coordinating efforts with local law-enforcement through training and collaboration. Involved with the training of junior deputies. Substantial trial litigation with special victim cases. Working with local partners to provide better processes for child victims and victims of domestic violence. Drug Treatment Court representative.
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