Case Reviews
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U.S. Supreme Court 06-27-11
by: Grapkoch • June 26, 2011 • no comments
Read the full article for details about the following new cases:
- Court Vacates 9th Circuit SORNA Decision
In a per curiam disposition available here (scroll to the bottom), the Court vacates the Ninth Circuit's decision in United States v. Juvenile Male on mootness grounds. Although the Ninth Circuit had concluded that the SORNA provision requiring registration of juvenile offenders was unconstitutional on ex post facto grounds,
[a]t the time of the Ninth Circuit's decision in this case, the District Court's order of juvenile supervision had expired, and respondent was no longer subject to the sex offender-registration conditions that he sought to challenge on appeal .As a result, respondent's challenge was moot before the Ninth Circuit unless he could "show that a decision invalidating" the District Court's order would likely redress some collateral consequence of the registration conditions.
This result was prompted, in large part, by the Montana Supreme Court's certification that JM's continuing duty to register under state law was not contingent upon the continuing validity of the SORNA requirements. United States v. Juvenile Male
U.S. Supreme Court 06-23-11
by: Grapkoch • June 22, 2011 • no comments
Read the full article for details about the following new cases:
- Applying Post-Plea Changes to the US Sentencing Guidelines
In Freeman v. United States, the Court addressed whether a defendant is ineligible for a sentence reduction under 18 U.S.C. § 3582(c)(2), which allows a district court to reduce a term of imprisonment after it has been imposed if the defendant was sentenced based on a sentencing range that the U.S. Sentencing Commission subsequently lowered, because the district court accepted a plea agreement pursuant to Rule 11(c)(1)(C), which binds the district court as to sentence once it accepts the plea. In a plurality opinion, supplemented by Justice Sotomayor's concurrence, the Court answers yes.
I'll let you sort out the more technical distinctions between the plurality and the controlling concurrence, but Justice Sotomayor agrees with the plurality on the pivotal principle that the sentence at issue here was "based on" § 3582(c)(2). The key distinction is that Justice Sotomayor appears to believe this to be the case only when "a [Fed.R.Crim.P 11(c)(1)(C)] agreement expressly uses a Guidelines sentencing range applicable to the charged offense to establish the term of imprisonment, and that range is subsequently lowered by the United States Sentencing Commission."
The dissent agrees and disagrees with both the plurality and the concurrence. In her concurrence, Justice Sotomayor had initially opined that "[i]n my view, the term of imprisonment imposed by a district court pursuant to an agreement authorized by Federal Rule of Criminal Procedure 11(c)(1)(C) is 'based on' the agreement itself, not on the judge's calculation of the Sentencing Guidelines." The dissent believes that she got it right, and should have stopped there:
I agree with the concurrence that the sentence imposed under a Rule 11(c)(1)(C) plea agreement is based on the agreement, not the Sentencing Guidelines. I would, however, adhere to that logic regardless whether the agreement could be said to 'use' or 'employ' a Guidelines range in arriving at the particular sentence specified in the agreement. In that respect I agree with the plurality that the approach of the concurrence to determining when a Rule 11(c)(1)(C) sentence may be reduced is arbitrary and unworkable
That appears to be the crux of the argument between the opinions in this case. So, as noted above, for now I'll leave you with the task of sorting out the more particular details. More information on Freeman v. United States can be found at the SCOTUSblog case page, available here.
Oregon Appellate Court 06-22-11
by: Abassos • June 21, 2011 • no comments
Read the full article for details about the following new cases:
- Search and Seizure-Stop Juvenile Court Jurisdiction-Appeals
- Equal Privileges-Aggregation of Counts
U.S. Supreme Court 06-20-11
by: Grapkoch • June 19, 2011 • no comments
Read the full article for details about the following new cases:
- The Due Process Right to Counsel at Civil Contempt Hearings
In Turner v. Rogers, the defendant sought review from the Supreme Court on the issue as to whether an indigent defendant has a constitutional right to appointed counsel at a civil contempt proceeding that results in his incarceration. At issue here was whether a non-custodial parent who was charged with failing to meet child support obligations must be provided with counsel where his ability to pay is contested. The Court answers yes-at least, maybe yes, under the right circumstances:
We conclude that where as here the custodial parent (entitled to receive the support) is unrepresented by counsel, the State need not provide counsel to the noncustodial parent (required to provide the support). But we attach an important caveat, namely, that the State must nonetheless have in place alternative procedures that assure a fundamentally fair determination of the critical incarceration-related question, whether the supporting parent is able to comply with the support order.
The Court begins by noting that this case is not governed by the Sixth Amendment. "[T]he Sixth Amendment does not govern civil cases. Civil contempt differs from criminal contempt in that it seeks only to 'coerce the defendant to do' what a courthad previously ordered him to do."
Instead, the Court proceeds under a Fourteenth Amendment analysis while noting that this limited Due Process right only assures that fundamental safeguards are in place. Applying the three-part test of Mathews v. Eldridge to address this fundamental safeguards inquiry, the Court ultimately rejects a categorical rule requiring appointed counsel in all such circumstances for three reasons:
- Assuming proper procedures, indigence can be a question that in many-but not all-cases is sufficiently straightforward to warrant determination prior to providing a defendant with counsel;
- The imbalance in fundamental fairness is mitigated where the "prosecuting party" is actually a private person who is also unrepresented (particularly when they are unrepresented due to indigence); and
- If state courts employ substitute procedural safeguards, the risk of erroneous deprivation of liberty is mitigated. Those safeguards include (1) notice to the defendant that his 'ability to pay' is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information; (3) an opportunity at the hearing for the defendant to respond to statements and questions about his financial status, (e.g., those triggered by his responses on the form); and (4) an express finding by the court that the defendant has theability to pay."
Reviewing this decision, it is important to keep in mind the Court's overriding caveat. In fact, the majority repeatedly stresses that its refusal to craft a categorical rule is not dispositive:
We consequently hold that the Due Process Clause does not automatically require the provision of counsel at civil contempt proceedings to an indigent individual who is subject to a child support order, even if that individual faces incarceration (for up to a year). In particular, that Clause does not require the provision of counsel where the opposing parent or other custodian (to whom support funds are owed) is not represented by counsel and the State provides alternative procedural safeguards equivalent to those we have mentioned.
(Emphasis in original). Accordingly, the Court reverses and remands this case on a finding of constitutional error because Turner was neither represented by counsel nor afforded the procedural safeguards required by due process.
More information on Turner v. Rogers can be found via the SCOTUSblog case page, available here.
Turner v. Rogers
U.S. Supreme Court 06-16-11
by: Grapkoch • June 15, 2011 • no comments
Read the full article for details about the following new cases:
- Exclusion and Good Faith Reliance on Circuit Court Precedent
This morning, the Court announced its decision on whether to apply the Fourth Amendment exclusionary rule when police conduct a search in compliance with binding precedent that is later overruled. In refusing to do so, the Court explained that "[b]ecause suppression would do nothing to deter police misconduct in these circumstances, and because it would come at a high cost to both the truth and the public safety, we hold that searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule."
In arriving at this conclusion, the majority explicitly rejects the proposition that the exclusionary rule is "a self-executing mandate implicit in the FourthAmendment itself." Instead, the Court reiterates the need to engage in "a more rigorous weighing" of "costs and deterrence benefits" of the rule, with a particularly sharp eye towards "the 'flagrancy of the police misconduct' at issue." Under this test, "[p]olice practices trigger the harsh sanction of exclusion only when they are deliberate enough to yield 'meaningful' deterrence, and culpable enough to be 'worth the price paid by the justice system.'"
Applying the foregoing test, the Court notes that because the appellate precedent at issue here actually authorized a certain police practice, "all agree that the officers' conduct [at issue here] was in strict compliance with then-binding Circuit law and was not culpable in any way." In fact, the "officers who conducted the search did not violate Davis's Fourth Amendment rights deliberately, recklessly, or with gross negligence .Nor does this case involve any 'recurring or systemic negligence' on the part of law enforcement .The police acted instrict compliance with binding Circuit precedent." (Citations omitted). Therefore, there was no basis for concluding that the deterrent value of the rule exceeded its social costs.
Along the way to this conclusion, the Court rejects two very notable arguments (both were advocated by Davis and adopted by the dissent):
- The Court rejects the proposition that this is a retroactivity case governed by the principles in Griffith v. Kentucky, 479 U.S. 314 (1987), by arguing that this is a question of "remedy" and not "retroactivity."
- The Court also rejects the argument that by adopting this form of the good-faith exception the Court leaves criminal defendants without an incentive for challenging binding precedent, thereby stunting the development of Fourth Amendment litigation. In rejecting this argument the Court notes, among other things, that "[w]e have never held that facilitating the overruling of precedent is a relevant consideration in an exclusionary-rule case. Rather, we have said time and again that the sole purpose of the exclusionary rule is to deter misconduct by law enforcement."
More information on Davis v. United States can be found at the SCOTUSblog case page, available here.
Oregon Appellate Court 06-15-11
by: Abassos • June 14, 2011 • no comments
Read the full article for details about the following new cases:
- Sex Abuse II - Consent/Under 18 - Proportionality
- Rape/Sex Abuse-Admission of Prior Bad Acts
- Failure to Register as a Sex Offender-Supervising Agency
- Measure 11 Sentencing-Mental Capacity as a Factor
- Child and Family Services - Permanency Judgments - Judgment Must Be Based on the Record
- DUII Trials - Expert Testimony - Sufficiency of Evidentiary Foundation
- Criminal Mischief - Property Used in Direct Service to Public
- Probation - Special Conditions - High Vice Area
- Burglary - MJOA - Intent
- ID Theft - MJOA - Intent
U.S. Supreme Court 06-13-11
by: Grapkoch • June 12, 2011 • no comments
Read the full article for details about the following new cases:
- "Failure to Stop" as a Violent Felony Under the ACCA
- "Cocaine Base" and "Crack" Cocaine under the ADAA
I skipped the updates last Thursday morning, as I was out of town. Two opinions were issued, although both involved the construction of federal statutes. So, in case you missed the June 9th opinions and you're still interested at this point, here's a recap:
→ read the full summaries...Oregon Appellate Court 06-08-11
by: Abassos • June 7, 2011 • no comments
Read the full article for details about the following new cases:
- Dependency - Child Endangerment - Child Pornography
Possession of child pornography is not sufficient in itself for a finding of child endangerment. The state did not make a sufficient showing that a threat of exposure to pornographic images is harmful enough to children to justify a finding of endangerment. In addition, the mere fact that the father possessed images of child pornography was not enough by itself to show that the father posed a harm to his children. In the Matter of T.F.
U.S. Supreme Court 06-06-11
by: Grapkoch • June 5, 2011 • no comments
Read the full article for details about the following new cases:
- A Right to Effective Assistance of PCR Counsel?
In a fairly exciting development, the Supreme Court announced today that is was accepting certiorari in the case of Martinez v. Ryan, which asks
whether a defendant in a state criminal case who is prohibited by state law from raising on direct appeal any claim of ineffective assistance of trial counsel, but who has a state-law right to raise such a claim in a first post-conviction proceeding, has a federal constitutional right to effective assistance of first post-conviction counsel specifically with respect to his ineffective-assistance-of-trial-counsel claim.
In the opinion below, the Ninth Circuit answered in the negative: "We have already concluded that there is no right to the assistance of post-conviction counsel in connection with a state petition for post-conviction relief, such as Martinez asserts in this case. Without a right to the appointment of counsel, there can be no right to the effective assistance of counsel." So, next term we'll likely get a chance to see if the Supremes agree with that proposition.
More information can be found at the SCOTUSblog case page, available here.
Oregon Appellate Court 06-01-11
by: Abassos • May 31, 2011 • no comments
Read the full article for details about the following new cases:
- Evidence - No Foundation for Scientific Evidence in Clear Case
- Speedy Trial - No Consent for Delay Where FTA at Indictment
- Merger - "Sufficient Pause" and Separate Convictions
- Probation - Indeterminate PPS Term Prohibited
- Restitution - Hit and Run Property/Injury
- Civil Commitment- Dangerousness
- Miranda - Compelling Circumstances
- DV Hearsay Exception - A Kid Is Not a "Cohabiting Person"
- Child Support - Income-Withholding and Federal Assistance
U.S. Supreme Court 05-31-11
by: Grapkoch • May 30, 2011 • no comments
Read the full article for details about the following new cases:
- Subjective Motivations and the Fourth Amendment
The Court handed down an opinion today in Ashcroft v. Al-Kidd, which asked whether the Fourth Amendment prohibits an officer from executing a valid material witness warrant (18 U.S.C. § 3144) with the subjective intent of conducting further investigation or preventively detaining the subject. Al-Kidd had argued that the Fourth Amendment was violated because the AG used material witness warrants as a pretext to detain suspects for whom he did not have probable cause to arrest. However, the Court holds that "an objectively reasonable arrest and detention of a material witness pursuant to a validly obtained warrant cannot be challenged as unconstitutional on the basis of allegations that the arresting authority had an improper motive."
In reaching this conclusion, the Court explains that this case does not fall into any of the exceptions to the general rule that subjective motivations are irrelevant primarily because the judicial warrant at issue was based on "individualized suspicion." After first clarifying that "suspicion" is not limited to a belief "that the person suspected has engaged in wrongdoing"-but rather connotes a belief as to any connection with a crime- the Court explains that this case does not fall within the contours of Indianapolis v. Edmond, 531 U.S. 32 (2000) (prohibiting suspicionless, programmatic searches based solely a general interest in crime control). That is so because it was not the absence of probable cause that triggered Edmonds invalidating-purpose inquiry, but the checkpoints' failure to be based on "individualized suspicion."
Furthermore, neither the "special needs" nor the "administrative inspection" exceptions to the Fourth Amendment subjective motivation-rule apply to this case "[b]ecause those exceptions do not apply where the officer's purpose is not to attend to the special needs or to the investigation for which the administrative inspection is justified .The Government seeks to justify the present arrest on the basis of a properly issued judicial warrant-so that the special-needs and administrative-inspection cases cannot be the basis for a purpose inquiry here."
In sum, the Court appears to fashion a rule stating that a subjective motivation inquiry under the Fourth Amendment is foreclosed where the case involves a judicial warrant issued upon any individualized suspicion relating to law enforcement. Here, the judicial warrant established a qualifying suspicion that Al-Kidd was a material witness within the meaning of 18 U.S.C. § 3144 and hence subject to detention. Therefore, the subjective motivations of the applying officer were irrelevant.
More information on Ashcroft v. Al-Kidd can be found at the SCOTUSblog case page, available here.
Oregon Supreme Court 05-27-11
by: Abassos • May 26, 2011 • no comments
Read the full article for details about the following new cases:
- Sentence Vacated for Violation of Victims Rights
The Oregon Supreme Court ruled today that a trial judge is required to grant a victim's request to vacate a sentence where the judge has found that the victim's constitutional right to be informed in advance of sentencing was violated:
"The victim was entitled to a remedy by due course of law under Article I, section 42(3)(a). Her proposed remedy - vacating defendant's sentence and conducting a resentencing hearing - was permissible, in that it was not barred by the Double Jeopardy Clause. Because the remedy could be "effectuated after the disposition" of this criminal proceeding, the victim had not waived her rights under ORS 147.533. The trial court erred in not granting the victim the relief that she sought."
One key to this case is that the trial judge found that the victim's rights were violated. Diplomatically put, the record could have been more fully developed in that regard. What happened in this case is that the victim told the victim's advocate, a non-attorney employee of the District Attorney, that she wanted to attend critical stages of the proceedings. She was told to turn in a form to effectuate her request prior to March 2nd. Which she did, but not prior to a quick plea and sentencing that occurred on February 28th. The victim knew about the hearing date but was told by the advocate that she didn't need to be there.
The craziest thing about this case to me is that side conversations between the victim and any employee of the District Attorney apparently matter immensely. Yet the defense has no access to such information. As happens so often in criminal cases, the defense is simply blindsided. The defense is barred from talking to the complainant in most cases. The defense is barred from finding out what was said at Grand Jury. We're generally unable to talk to the officer who took the complainant's statements. The police aren't required to record the accusations. Which means that we are often hearing the complainant's actual story for the very first time at trial. This case feels like one more step in the direction of making critical information inaccessible to the defense.
Stay tuned for more on this case as the dust settles. It's also worth noting that one of the main tent presentations at the Annual Conference will be on victims rights. Just one more reason to attend.[http://www.publications.ojd.state.or.us/S059423.htm State v. Barrett]
U.S. Supreme Court 05-26-11
by: Grapkoch • May 25, 2011 • no comments
Read the full article for details about the following new cases:
- Court Moots Issue Concerning Warrants for Child Interviews
Earlier this term, the Court heard arguments in Camreta v. Greene. That case had asked whether the traditional warrant/warrant exception requirements that apply to seizures of suspected criminals should apply to an interview of the child in light of reports of child abuse, or whether a balancing standard should apply instead.
However, the Court-in an opinion available here-avoided the 4th Amendment question on mootness grounds:
In this case, the happenstance of S.G.'s moving across country and becoming an adult has deprived Camreta of his appeal rights. Mootness has frustrated his ability to challenge the Court of Appeals' ruling that he must obtain a warrant before interviewing a suspected child abuse victim at school. We therefore vacate the part of the Ninth Circuit's opinion that addressed that issue, and remand for further proceedings consistent with this opinion.
Two concurring opinions appear (authored by Scalia and Sotomayor (joined by Breyer)), as well as one dissenting opinion (Kennedy joined by Thomas). For the most part, those opinions are targeted at the majority's decision that a party who prevails due to qualified immunity may nevertheless seek certiorari on the constitutional question at issue so long as the issue is justiciable in all other respects.
For more infomation, the Camreta case page at SCOTUSblog is available here. Camreta v. Greene
Oregon Appellate Court 05-24-11
by: Abassos • May 23, 2011 • no comments
Read the full article for details about the following new cases:
- PV Revocations - Proper Grid Block / Revocation Not a Sentencing
- Attempted DUII - Jury Instruction
- DUII - Diversion Eligibility - Statutory Counterpart
- Southard Error-Two Victims/One Trial - Appellate Review
- Wiretapping Statute - Aggrieved Party
- Restitution - DA Must Present Evidence of Amount of Damages
- Restitution - Hit and Run
- Parole Revocation - Imposition of Original Sentence
- Designating Predatory Sex Offenders
- Using a Child in a Display of Sexually Explicit Conduct - Observers
Oregon Supreme Court 05-23-11
by: A stpierre • May 22, 2011 • no comments
Read the full article for details about the following new cases:
- Concealed Handgun Licenses - Medical Marijuana
- Recklessness - Summary Judgment
Oregon Supreme Court 05-19-11
by: Abassos • May 18, 2011 • no comments
Read the full article for details about the following new cases:
- Concealed Handgun Licenses - Medical Marijuana
- Recklessness - Summary Judgment
Oregon Appellate Court 05-18-11
by: Abassos • May 17, 2011 • no comments
Read the full article for details about the following new cases:
- Confessions - Statutory Exclusion for Promises of Leniency
- TPR - Integration
U.S. Supreme Court 05-16-11
by: Grapkoch • May 15, 2011 • no comments
Read the full article for details about the following new cases:
- Police-Created Exigent Circumstances
This morning, the Court issued an opinion in Kentucky v. King, which asked under what circumstances can lawful police action impermissibly "create" exigent circumstances that preclude warrantless entry? In response to the question, the Court announces the general rule that "[w]here, as here, the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry to prevent the destruction of evidence is reasonable and thus allowed." The Court also notes, in passing, that "[t]here is a strong argument to be made that, at least in most circumstances, the exigent circumstances rule should not apply where the police, without a warrant or any legally sound basis for a warrantless entry, threaten that they will enter without permission unless admitted." Ginsburg offers the lone dissenting voice.
In this case, the officers were in pursuit of a suspect who had recently been seen conducting a drug transaction. After following the suspect into an apartment complex and hearing a door shut, the officers came upon two apartment doors, unsure of which the suspect had entered. Smelling a strong odor of marijuana emanating from the doorway on the left, the officers knocked "as loud as [they] could" and announced, "'This is the police'" or "'Police, police, police.'" After making these announcements, the officers heard loud noises inside as if something was being moved, and therefore they kicked in the door on the belief that drugs were being destroyed. They found a large quantity of drugs and paraphernalia; later, they found their initial suspect-in the other apartment.
Before applying the foregoing principles, the Court rejects outright at least four tests suggested by lower courts-and one offered by Respondent-in dealing with the doctrine of "police-created exigencies":
- The Court first rejects "the suggestion by the Kentucky Supreme Court that a subjective standard applies whereby courts ask whether the officers in question "deliberately created the exigent circumstances with the bad faith intent to avoid the warrant requirement." The test, the Court stresses, is an objective one-as in virtually all Fourth Amendment circumstances.
- Next, the Court also rejects any application of a foreseeability test, under which courts would ask whether "it was reasonably foreseeable that the investigative tactics employed by the police would create the exigent circumstances." Two factors persuade the Court to reject this approach: First, the rule was created on the premise that officers would be acting on some degree of suspicion in the first place; Second, because of the first factor, inquiring into foreseeability would create uncertainty for both investigating officers and lower courts.
- The Court also rejects a test that would automatically invalidate a search based on exigency where the police had probable cause and enough time to secure a warrant. After noting several reasons, the Court bluntly states that "[f]aulting the police for failing to apply for a search warrant at the earliest possible timeafter obtaining probable cause imposes a duty that is nowhere to be found in the Constitution."
- The Court moves on to reject a test that would hinge on whether the police acted "contrary to standard or good law enforcement practices (or to the policies or practices of theirjurisdictions)," because "[t]his approach fails to provide clear guidance for law enforcement officersand authorizes courts to make judgments on matters that are the province of those who are responsible for federal and state law enforcement agencies."
- And, finally, the Court rejects the Respondent's suggested test, which would invalidate a police-created exigency were the police "engage in conduct that would cause a reasonable person to believe that entry is imminent and inevitable." The Court stresses that this "nebulous and impractical" test, with all of its "subtleties," would be "nearly impossible" for courts to administer.
Then, applying its newly-minted test with a clear vision of the factors that do not apply, the Court finds no evidence in the record of this case to suggest "that the officers either violated the Fourth Amendment or threatened to do so prior to the point when they entered the apartment." The simple announcements made by the police, although strict, were entirely consistent with the Fourth Amendment. Two more factors lead the Court to uphold the actions in this case. First, contrary to respondent's contention, there was neither sufficient evidence nor findings in the record to support the conclusion that the police "demanded" entry. And, second, although the police explained that they were going to enter regardless of compliance, this explanation came only after the presumed exigency arose.
More information on Kentucky v. King can be found at the SCOTUSblog case page, available here. Kentucky v. King
Oregon Appellate Court 05-12-11
by: Abassos • May 11, 2011 • no comments
Read the full article for details about the following new cases:
- Private Indecency - Jails - Reasonable Expectation of Privacy
- Endangering the Welfare of a Minor - "Permit" a Child to be Present
Oregon Supreme Court 05-05-11
by: Abassos • May 4, 2011 • no comments
Read the full article for details about the following new cases:
- Protective Sweeps - Reasonable Suspicion of Danger
The Oregon Supreme Court finds that police officers were not justified in conducting a protective sweep of a house because the officers did not have reasonable suspicion that there was an immediate threat of physical injury. The Court addresses each relevant fact and finds that individually and as a whole they are too vague to support a protective sweep.
The officers went to a house to conduct a knock and talk based on information they receieved from unnamed informants that the house was a drug house and "wanted persons" were staying there. While in the house with the consent of the person who answered the door, the officers allegedly became concerned for their safety because defendant and another person walked out of the house without obeying an order to stop. They are stopped by an officer outside and are thereafter cooperative. The officers had been told by the person who answered the door that there was only one other person in the house. Such evidence does not amount to a reasonable suspicion of immediate danger:
- There was nothing in the record about the reliability or credibility of the informants.
- The fact that two people walked out of the house in a manner that "resembled" fleeing was at most suspicious, not indicative of danger.
- The fact that at least one more person was present than indicated by the person who answered the door was also not indicative of danger.
- The state's allegation that the house was "associated with" another house known as a drug house was not supported by articulable facts and, in any case, also would not indicate immediate danger.
- The state's allegation that the person who answered the door was "associated with" people who reside at a known drug house was also too vague since there was neither evidence that those other people were dangerous nor that they had ever been in the instant house.
Either alone or together such "facts" do not support a protective sweep. Thus, when the officer saw drugs in defendant's bedroom during the sweep, it did not fall under the plain view exception. And when the officer used that information during a suspicionless stop to gain consent to search from defendant, it was not a voluntary consent.
DeMuniz, Durham, Walters and Balmer in the majority. Kistler and Linder dissent. Gillette and Landau didn't participate in the decision. State v. Guggenmos
