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The biggest sentencing news since Blakely?

by: Ryan Scott • September 14, 2016 • no comments

Well, not as big as Blakely. Not as sexy. And not constitutional. Just a matter of statutory construction. But the impact may be significant. All you need is a client charged with delivery of a controlled substance, and the odds are pretty good your client will benefit from today's opinion.

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Due Process Joinder Issues

by: Thad Betz • September 10, 2016 • no comments

We’ve all been there: clients facing a slew of crimes against alleged victim #1 and a slew of crimes against alleged victim #2. These could have been joined in the same indictment, or they could have been separate charging documents joined together. The result is the same---you are left thinking, after reading a pretty depressing joinder severance statute, ORS 132.560, that the cases or counts will remain joined together and that your client won’t get a fair trial. Its true, they won’t. Which is why fundamental fairness needs to be our focus. There are at least three different places that due process comes into play: (1) reading due process into the subfactors allowing joinder, (2) weighing whether or not joinder itself can provide for a fair trial using Rule 403, and (3) crafting specific trial procedures and jury instructions in the event of a joinder of wholly separate incidents.

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Significant Commercial Drug Offense Opinion

by: Ryan Scott • September 9, 2016 • no comments

We don't get very many opinions on the Commercial Drug Offense factors which can aggravated a simply delivery or possession to a level 8. Part of the reason is that even if you've got a good challenge, and you preserve it, it might be mooted out by the simple fact that -- even if you were to win -- the state would have more than three factors to rely on.

Anyway, this week's opinion in State v. Rankins is wonderful, and it might provide a basis for new arguments and renewed attention to the factors.

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My Wish List

by: Ryan Scott • September 5, 2016 • no comments

As most of you know, I have a number of pet issues that I push at any given time. If I seem somewhat relentless with some of the issues, it's because it takes about 6-10 years from when I start promoting an issue to when it gets resolved at the appellate courts. Some win, some lose, some win then lose. But none of them get up to the COA without (1) a case with the issue, (2) a defense attorney who is aware of the issue, (3) a defense attorney willing to preserve the issue (not always the same thing), (4) a case that goes to trial, (5) the issue losing at the trial level, (6) the defendant losing at trial, (7) an appellate attorney who raises it well, (8) an appeal that doesn't moot the issue out for some reason and (9) an appellate court that finds it worth writing about.

Depending on the issue, these can be 9 conditions that are very hard to satisfy. So I keep urging them on attorneys who I like and trust, in the hope that sheer force of numbers will allow the issue to get up at least once, fertilize the COA and produce an opinion.

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Another Reason "On Supervision" Shouldn't Merit a Durational Departure

by: Ryan Scott • September 5, 2016 • no comments

If you do felony sentencings, then you know that there is a three-step process in order for the defendant's sentence to be upwardly departed. First is notice that the state intends to prove one or more aggravating factors to the trier-of-fact. The second is actually proving that factor beyond a reasonable doubt to the trier-of-fact. And the third is the judge finding "the circumstances are so exceptional that imposition of the presumptive sentence would not accomplish the purposes of the guidelines."

I have previously written why I believe why "on supervision" never justifies an upward departure. The reason is simple: a defendant's status of "on supervision" is not remarkable. In fact, it's probably more likely than not. If so, it isn't the type of "exceptional" circumstance that the judge must find in order to upward depart.

There is a new case that probably justifies making this argument with a bit more vigor. In State v. Davilla,,the Court of Appeals reversed an upward departure on an aggravated murder conviction. It did so because the reasons given for the upward departure were insufficient.

To be clear, we are not holding that a defendant’s use of a dangerous weapon could not, as a matter of law, justify a departure sentence. Rather, we conclude that the court’s explanation here regarding defendant’s choice of a small, dull knife and the “increased pain and suffering” experienced by the victim as a result is insufficient to demonstrate why defendant’s use of a dangerous weapon in this case created circumstances so exceptional that the imposition of a presumptive sentence would not accomplish the purposes of the guidelines.

If the state has proven "on supervision", and the judge is now deciding whether to seek an upward departure, be sure to point out that "on supervision" is not exceptional, as demonstrated by the post I linked to above, but also insist that the judge put on the record the reason why "on supervision" is so remarkable in this case that it demonstrates why the guidelines sentence is not sufficient. The judge will have a much easier time explaining why a presumptive probation is insufficient, but she will likely stumble over explaining why a presumptive prison sentence, particularly a long prison sentence, is not sufficient. The key is to ask -- and ask again if necessary -- that the judge put on her reasoning. In the absence of such a request by the defendant, the Court of Appeals will be less likely to hear a complaint that the judge's lack of explanation is insufficient.

Huge Computer (and, by extension, cell phone) SW Opinion

by: Ryan Scott • July 31, 2016 • no comments

If you have a case where the police seized your client's computer or cell phone and searched it pursuant to a search warrant, then you absolutely must read last week's Court of Appeals decision, State v. Mansor.

The key issue:

Here, defendant’s challenge appears to encompass both of those concepts. As we understand it, defendant argues alternatively that (1) the warrant (even in combination with Rookhuyzen’s affidavit) was impermissibly imprecise, because it failed to identify the information on the computers’ hard drives for which the police were authorized to search; and (2) in all events, the warrant was overbroad as authorizing examination of material on the computers beyond that pertaining to defendant’s internet searches during the 15-minute period preceding the 9-1-1 call.

Four Different Applications of the Brady Doctrine

by: Ryan Scott • July 13, 2016 • no comments

Police personnel records and Brady. A nightmare, right? See the analysis here. Notable paragraph:

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Pole Cams and the 4th Amendment

by: Ryan Scott • July 12, 2016 • no comments

From a criminal law blog at the University of North Carolina

Drug Dealers, Their Homes and PC to Search

by: Ryan Scott • June 29, 2016 • no comments

Good federal case on the failure of the search warrant to connect the alleged dealer's residence with his drug activity.

Key quote:

We have never held, however, that a suspect’s “status as a drug dealer, standing alone, gives rise to a fair probability that drugs will be found in his home.” United States v. Frazier, 423 F.3d 526, 533 (6th Cir. 2005). Rather, we have required some reliable evidence connecting the known drug dealer’s ongoing criminal activity to the residence; that is, we have required facts showing that the residence had been used in drug trafficking, such as an informant who observed drug deals or drug paraphernalia in or around the residence. Compare Jones, 159 F.3d at 974-75 (finding probable cause to issue a warrant where confidential informant made drug purchases from defendant, was at defendant’s residence during monitored drug transactions, and observed defendant in possession of cocaine), United States v. Ellison, 632 F.3d 347, 349 (6th Cir. 2011) (inference was proper because reliable confidential informant had “observed someone come out of [the defendant’s] residence, engage in a drug transaction, and then return into the residence”), and Berry, 565 F.3d at 339 (“Although a defendant’s status as a drug dealer, standing alone, does not give rise to a fair probability that drugs will be found in defendant’s home, there is support for the proposition that status as a drug dealer plus observation of drug activity near defendant’s home is sufficient to establish probable cause to search the home.” (internal citation omitted)), with Frazier , 423 F.3d at 532 (inference was not proper because affidavit failed to establish informants’ reliability and informants had not “witnessed [the defendant] dealing drugs from his [new] residence,” just his old residence). Our emphasis on the fact-intensive nature of the probable cause inquiry in known drug dealer cases accords with the Supreme Court’s rejection of “rigid rules, bright-line tests, and mechanistic inquiries in favor of a more flexible, all-things-considered approach” when evaluating probable cause. Florida v. Harris, 133 S. Ct. 1050, 1055 (2013).
This emphasis likewise comports with the Supreme Court’s instruction that “[t]he critical element in a reasonable search is not that the owner of property is suspected of crime but that there is reasonable cause to believe that the specific ‘things’to be searched for and seized are located on the property to which entry is sought.” Zurcher v. Stanford Daily, 436 U.S. 547, 556 (1978). Finally, our totality-of-the-circumstances probable cause inquiry for search warrants for the home of an allegedly “known drug dealer” honors the Fourth Amendment’s safeguards against unreasonable governmental intrusion into the home.
In sum, our cases teach, as a general matter, that if the affidavit fails to include facts that directly connect the residence with the suspected drug dealing activity, or the evidence of this connection is unreliable, it cannot be inferred that drugs will be found in the defendant’s home—even if the defendant is a known drug dealer. The affidavit here lacks that necessary nexus.

Prosecutorial Culture

by: Ryan • June 24, 2016 • no comments

Reason magazine has recently published, "Confessions of an Ex-Prosecutor."

Key quote:

Once again, nobody taught me to think that way, and nobody had to. I learned it by watching how the system ground up clients indifferently and mercilessly. I learned it by watching prosecutors make the sorts of arguments and decisions I had made, and seeing how they actually impacted human lives. I learned it by watching prosecutorial suspicion—and even paranoia—from the wrong end. I learned it by watching how the system crushed indigent clients, and by how it could destroy the lives of even wealthy clients with minimal effort or cause.
I even learned it by watching prosecutors commit misconduct—the deliberate or reckless infringement of defendants' constitutional rights. I saw prosecutors make ridiculous and bad-faith arguments defending law enforcement, and prevail on them. I saw them make preposterous assertions about the constitution because they could, and because judges would indulge them. I saw them reject my claims that my clients' rights were violated because they were the government and my client was the defendant and that was their job.

Per Se Exigency vs. Near Per Se Exigency

by: Ryan • June 23, 2016 • no comments

In today's opinion in Birchfield v North Dakota, the US Supreme Court held -- among other things -- that obtaining a blood draw in a DUII investigation requires a search warrant or an exception to the warrant requirement (e.g., consent, exigency.) It rejected the argument that no warrant was required under the "search incident to arrest" exception to the warrant requirement.

The big question: Is this different than what the Oregon Supreme Court held in Machuca? And the answer is: yes and no.

Machuca did not hold that blood draws in a DUII investigation justified a per se exception to the warrant requirement. But it did -- in effect -- find a near per se exception, finding that in virtually every case a warrant was not required. The exception to the exception occurred when:

in the rare case, that a warrant could have been obtained and executed significantly faster than the actual process otherwise used under the circumstances. We anticipate that only in those rare cases will a warrantless blood draw be unconstitutional.

Machuca at 736.

Does that mean there's ever a situation where the police would have to get a warrant to draw blood in a DUII investigation? Well, the following exchange might be appropriate here.

Lloyd Christmas: Hit me with it! Just give it to me straight! I came a long way just to see you Mary, just... The least you can do is level with me. What are my chances?
Mary Swanson: Not good.
Lloyd Christmas: [he gulps, his mouth twitching] You mean, not good like one out of a hundred?
Mary Swanson: I'd say more like one out of a million.
Lloyd Christmas: [long pause while he processes what he's heard] So you're telling me there's a chance. YEAH!

In the real world, Machuca announced a per se exception (to everyone except Lloyd Christmas), the very thing that was rejected today in Birchfield. But the Oregon Supreme Court has -- in the past few years -- become known for slicing the law very finely. Will it pretend that its rule of a near per se exigency is not at obvious odds with today's Birchfield decision, because of an exception it imagines that simply doesn't translate in an any meaningful way to the experience on the ground?

Interesting SCOTUS Fact of the Day

by: Ryan • June 21, 2016 • no comments

Per Ronald Mann, for the Term so far -- there are still nine opinions left to be issued -- the two Justices most in agreement, according to SCOTUSblog statistics, are Justices Elena Kagan and Anthony Kennedy, agreeing in ninety-seven percent of the cases.

When a minor distributes nude pictures of himself

by: Ryan • June 21, 2016 • no comments

I blogged about this in September, 2015, in response to an incident out of North Carolina.

Well, now it has happened a little closer to home. 17-year-old harasser is convicted of distributing child porn of himself

Orin Kerr on Utah v Strieff

by: Ryan • June 20, 2016 • no comments

A curious decision from the COA

by: Ryan • June 15, 2016 • no comments

I submit that it is simply impossible to reconcile Tooley and today's opinion, but assuming it is possible, the COA at least had an obligation to try. In Tooley, there was more than enough time to "do other, almost kind of mundane things" (like errands) and then to "reflect, reform a state of mind and intent" (12 hours) before he "came back and administered a second assault" (murder).

The failure of the court to explain its ruling with anything more than the most cursory analysis unnecessarily feeds the cynical view that 12 hours between crimes, with errands run in between, constitutes just one criminal episode as long as it means the state wins, but 15 minutes between crimes, with mundane activities taking place in between, constitutes two criminal episodes, as long as it means the state wins. (Both cases involved one overarching criminal objective.) I am not that cynical, because I'm actually a very big fan of the judges at the Court of Appeals, but I do think they really whiffed on this one.

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Another Cell Phone Search Warrant Found to Be Overbroad

by: Ryan • June 14, 2016 • no comments

Opinion out of Massachusetts here. Unfortunately for this defendant, it was found to be harmless.

But as we observed in Dorelas, which involved a search of a cellular telephone offering features and access to the Internet similar to the defendant's, where search of this type of cellular telephone is sought, there must be probable cause that the device contains "particularized evidence" relating to the crime. See Dorelas, supra at 502. The properties of such a telephone render it "distinct from the closed containers regularly seen in the physical world, [and] a search of its many files must be done with special care and satisfy a more narrow and demanding standard" than exists for establishing probable cause to search physical containers or other physical items or places. See Dorelas, supra at 502. In particular, it is not enough that the object of the search may be found in the place subject to search. See id. at 501-502. Rather, the affidavit must demonstrate that there is a reasonable expectation that the items sought will be located in the particular data file or other specifically identified electronic location that is to be searched. See id. at 503-504.

As I have noted in previous posts, about once a month, maybe slightly longer, there is an opinion out of a state or federal appellate court finding a cell phone search warrant overbroad. We're still waiting on such on opinion out of Oregon, but in the meantime, please preserve this issue, and talk to me if you need help to do so.

9th Circuit: No 2nd Amendment Right to Public Conceal and Carry

by: Ryan • June 9, 2016 • no comments

Details here.

Growing Opposition to the Death Penalty and Finding Death-Qualified Juries

by: Ryan • June 8, 2016 • no comments

Details here.

Stanford Rape Case

by: Ryan • June 8, 2016 • no comments

Smart piece by Mark Joseph Stern on the erosion of due process guarantees exemplified by the recent sentencing.

What does it mean to masturbate "with" someone?

by: Ryan • June 8, 2016 • no comments

For questions of such seminal importance, we look -- as always -- to the Utah appellate courts.