Here are two important challenges to upward departure factors. They're basic, but often forgotten by even experienced defense attorneys.
The first one involves a warrant for a defendant's entire Facebook account. A link to the opinion, and a discussion of its significance by Orin Kerr, can be found here.
Mr. Kerr's discussion of the second opinion can be found here. The title of this article is: "D.C. Circuit forbids seizing all electronic storage devices in computer warrant cases"
Additional discussion here from fourthamendment.com, under the heading, "DC Cir.: The mere fact a person has a cell phone isn’t PC to search it; must be PC evidence would be found"
The quiz is here.
The results are brutal this year. The ECSA/criminal episode issue was decided against the defense in State v. Dulfu, although the Oregon Supreme Court has granted review.
The good news appears to be limited to (4)(b).
That said, most of the remaining issues have yet to be addressed by the COA. But virtually all of the undecided issues are working their way through the appellate courts, so there is reason to think we'll get answers in 2018.
I have often noted that ambiguity in the law favors the state. If a defendant honestly can't tell whether or not crimes arise out of the same criminal episode, then he won't know the maximum sentence he might fact. Consequently, his decision to go to trial or accept a plea offer must factor in the worst case scenario, i.e., the sentence he might get if the court finds multiple criminal episodes. The prosecutor has little reason to make the same calculation from the other side. Maybe she'll make the offer marginally better because the defendant has a plausible claim to one criminal episode, but the consequences of being wrong -- arguing for multiple criminal episodes and losing -- is going to be of minimal significance.
This situation plays out in various ways every date in the criminal justice system. I don't include situations where the defendant doesn't know if he's going to be found guilty or not. But I do include situations where there is a genuine dispute over whether -- if the defendant actually did the acts he's accused of -- he's actually guilty of an offense, because there is some ambiguity over what the law actually says.
But there is one situation where the ambiguity in the law provides a potentially huge upside to the defendant. And that is when he has a slightly outside-the-box type of legal argument that could result in dismissal of most or all of the charges, and because of the relative novelty of the argument, there is no clear case law one way or the other. Because it's a longshot, the prosecutor scoffs and gives it little weight, generally assuming -- with good reasons -- that most judges are highly risk-adverse and aren't likely to grant the defendant's motion.
Not an unusual fact situation described here. From fourthamendment.com:
Defendant was a passenger in a car stopped for expired tags. She should have been allowed to keep her purse when she got out of the car. Instead, she was told to leave it in the car, and then it was searched in the car when the car was impounded. Suppressed. State v. Campbell, 2017 Iowa App. LEXIS 777 (Aug. 2, 2017).
When defendant consented to a search of her car, she attempted to remove her purse, and the officer had to honor that as a limitation on the consent. He ordered her to put it back, and that was mere acquiesce to a claim of authority. State v. Greub (Aug. 29, 2017).
The opinion is here.
- It is unlikely that the Government would argue it is constitutionally reasonable to search a home based on a warrant previously issued for a crime the homeowner had already been convicted of, and to also direct the searchers to look for evidence of offenses not named in the warrant. In this case, however, the Government asserts the right to do just that, but for a portable hard drive (thumb drive) rather than a home. We recognize the differences between a home and a thumb drive and the unique challenges in applying the Fourth Amendment in a digital context. See generally Josh Goldfoot, The Physical Computer and the Fourth Amendment, 16 Berkeley J. Crim. L. 112 (2011); Orin S. Kerr, Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531 (2005). But the Fourth Amendment compels us to treat them the same in this case. We hold that the military judge did not abuse his discretion in concluding that evidence of an offense not named in the warrant was outside the scope of the warrant and must be suppressed. Furthermore, based on the facts found by the military judge, we conclude, as a matter of law, that the search was not constitutionally reasonable under the particular circumstances of this case. Accordingly, we affirm the United States Army Court of Criminal Appeals (ACCA).
Another noteworthy quote:
Notable Colorado opinion. Headline at fourthamendment.com reads: CO: In this recreational MJ use state, a dog sniff is a “search,” and a positive alert isn’t PC a crime is occurring
I am of the opinion that the standard jury instructions for most theories of Assault II, some theories of Assault I, APSO, Theft-by-Taking and Criminal Mischief I and II are wrong. If you want supplemental jury instructions that would give you an additional defense and/or give you an issue for appeal, please contact me directly. If you know someone who is taking one of these cases to trial, please spread the word.
Maybe yes. First, a quick primer on vertical proportionality. From State v. Koch:
- On appeal, defendant argues that his sentences violate the proportionality requirement of Article I, section 16, of the Oregon Constitution. He asserts that, if he had committed Level 4 forgeries, the maximum durational departure sentence with a "B" criminal history score would have been 18 months in prison. Article I, section 16, prohibits the imposition of a sentence for a lesser offense that is greater than that available for a more serious offense. State v. Turner, 296 Or. 451, 456, 676 P.2d 873 (1984); Merrill v. Gladden, 216 Or. 460, 464, 337 P.2d 774 (1959); Cannon v. Gladden, 203 Or. 629, 631-33, 281 P.2d 233 (1955).
Second, State v. Haddon, which essentially held that ID Theft (a felony) can be a lesser-included of Fraudulent Use of a Credit Card (misdemeanor).
- In sum, proof of the elements of fraudulent use of a credit card proves the elements of the offense of identity theft, in the forms in which the offenses were alleged in this case. At least as is alleged here, identity theft does not require proof of an element that is not already included in fraudulent use of a credit card.
In other words, some ID Theft charges, by being charged as felonies, will violate Article I, section 16, because they carry a greater sentence than misdemeanors that describe more serious behavior.
The Haddon court found that the FUCC (the greater offense, measured by elements, but the lesser offense measured by crime seriousness) merged into ID Theft (the reverse). Even if that is the correct result in a merger analysis, that holding wouldn't solve the proportionality problem under the Oregon Constitution. The state can also defeat the merger argument by not charging FUCC, but that too would not have an impact on the proportionality challenge.
This argument will be limited to ID Thefts that fall into the Haddon category, but if they do, it's a powerful and fun argument to make. I would ask for either dismissal of the ID Theft or, failing that, immediate reduction to a misdemeanor. Can you raise it pre-trial? Probably not. Whether you'd want to alert the prosecutor to the issue as a part of negotiations will likely depend on how easy a problem it would be for them to fix.
This is a long blog post, but please read before you go to trial on an assault II based on serious physical injury, an assault I based on knowingly causing serious physical injury to a child, or assault on a public safety officer. It will tell you everything you need to know about why the standard jury instructions for those crimes are wrong.
In State v. Engen, the Court of Appeals held that while a defendant must knowingly possess a controlled substance, he didn't need to know the exact nature of the controlled substance. That is, a defendant charged with possession of cocaine couldn't get an acquittal by arguing he thought it was meth.
But back then, a defendant wouldn't have been charged with specifically possessing cocaine. He was charged with possessing a schedule II controlled substance. The statute didn't distinguish between cocaine and methamphetamine. Now, a defendant is usually charged with expressly possessing cocaine in most cases, though a separate general statute based on drug categories still exists.
The earlier failure to distinguish different controlled substances was part of the analysis in Engen:
- Given the historical context of the 1977 legislation—the lack of differentiation among types of controlled substances and the historic lack of an explicit mental state requirement pertaining to the specific type of controlled substance possessed—it seems unlikely that the 1977 legislature intended to impose such a requirement.
As I mentioned, at least some of the drug statutes make those distinction now. Let's assume the charge is possession of cocaine. The mental state is knowingly. The conduct -- using a Simonov analysis -- is possession of cocaine. I don't think a person can be guilty under that statute of possessing cocaine if they thought they possessed methamphetamine.
The story is here.
There is a larger point to be made about sloppy legislative drafting (as well as other points not suited to this blog) but I'll save those for another time.
If prisoner A is in custody, serving a prison sentence, because it is necessary to keep the community safe, then the fact that there is a job shortage would not impact that conclusion, would it?
But if a job shortage is a basis for releasing a prisoner, perhaps community safety isn't the issue. And if community safety isn't the issue, then aren't there a number of ways to punish a person that are more effective and cheaper than incarceration?
Drunk driving fatalities have fallen dramatically since the early '80s. They continued to fall since the mid-90s, but that drop is less significant because non-DUII auto fatalities have fallen the same amount, suggesting that improvements in auto safety (which protect the drunk and sober alike) account for most if not all of the drop in the last two decades.
Still, if you go back to the early '80s, the decline of drunk driving fatalities has been an extraordinary success story. Is it because of tougher laws? Social stigma? Demographics? Change is alcohol consumption patterns?
You might find an answer here.
The Tennessee Supreme Court, in a recent opinion, went over a large body of case law on whether a "No Trespassing" sign defeats the implicit license of police to walk up to your front door. A discussion of their opinion is here.
The Oregon Court of Appeals recently discussed the issue in St v. Wilson.
The US Supreme Court is considering whether to take cases where the issue is whether a search warrant or a mere subpoena is necessary to obtain historical cell-site data.
Links to the multiple petitions for cert can be found here.
And an argument for revisiting the third-party doctrine is here. As previously noted, the Oregon Constitution provides much greater protection to records held by third-parties, per State v. Ghim. Having said that, the exact parameters of that protection will continue to be unknown until defense attorneys start preserving the issues.
In State v. Simonov, the Oregon Supreme Court lays out the law on applying which mental states to which elements. The charge was UUV, but it's a great place to start if you ever have any questions about mental states and material elements.
In his opinion, Justice Brewer points out that the "knowing" mental state is the lowest applicable mental state that can be applied to conduct. When it comes to results and circumstances, the lowest applicable mental state is criminal negligence. He points out that if a crime is in the criminal code, and no mental state is explicitly applied to a particular element, then the lowest possible mental state applies, which, in the case of a conduct element, is "knowingly" and in the case of a circumstance element is "negligently."
He briefly uses theft to highlight the difference between conduct and circumstance, specifically the fact that value of an item is a circumstance.
- The theft statutes provide an example of the role of circumstance elements in a criminal offense. “Theft” in any degree is defined by ORS 164.015, which describes the prohibited conduct (the taking of property) and the applicable mental state (intent to deprive another of property). The prohibited conduct for theft in any degree is the taking of another’s property with the intent to deprive the owner of it. Id. A person commits first-degree theft when the person commits theft as defined in ORS 164.015, and the value of the property is $1,000 or more. ORS 164.055. If the value of the property is $100 or more and less than $1,000, the person commits second-degree theft, and if the value of the property is less than $100, the person commits third-degree theft. ORS 164.045 (second-degree theft); ORS 164.043 (third-degree theft).
But what he says next is what's most important. He cites St v Jones, a COA case (authored by then-Chief Justice of the Court of Appeals, David Brewer) that specifically involves whether one should apply a knowing mental state to the value of items stolen. And he summarizes Jones as follows: