Privacy Interests in the Texts You’ve Sent

Thanks to Amanda Alvarez for bringing St v. Clampitt (Missouri) to my attention.

In that case, the state had issued two subpoenas.

The first investigative subpoena was issued on June 18, 2010, and requested U.S. Cellular provide the State with tower location information for Audrain County as well as “text message content and detail for incoming and outgoing text messages” for the number XXX-XXX-XXXX “for June 13, 2010 through present.” The second investigative subpoena was also issued on June 18, 2010, and requested that U.S. Cellular provide the “text message content and detail for incoming and outgoing text messages for any and all phone numbers under the account” of number XXX-XXX-XXXX “for June 13, 2010 through present.”

His motion to suppress was based on a privacy interest in those texts.   The state’s argued to the contrary.

This body of case law notwithstanding, the State claims that Clampitt had no reasonable expectation of privacy in the contents of his text messages because the text messages were in the possession of a third party. The State points out that generally, “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Smith v. Maryland, 442 U.S. 735, 743-44, 99 S. Ct. 2577, 2582 (1979). While this is true, courts have held that “the mere ability of a third-party intermediary to access the contents of a communication cannot be sufficient to extinguish a reasonable expectation of privacy.” United States v. Warshak, 631 F.3d 266, 286 (6th Cir. 2010) (emphasis in original).

The Missouri court rejected the state’s argument:

The rationale used by the Warshak court in establishing individuals’ reasonable expectation of privacy in the contents of their email is equally applicable to cell phone users’ expectation of privacy in the contents of their text messages. Cell phone providers have the ability to access their subscribers’ text messages; however, the providers’ ability to access those messages does not diminish subscribers’ expectation of privacy in their text message communications. Rather, subscribers assume that the contents of their text messages will remain private despite the necessity of a third party to complete the correspondence. Callers have long enjoyed Fourth Amendment protection of the information they communicate over the phone. We see no reason why the same information communicated textually from that same device should receive any less protection under the Fourth Amendment.

Furthermore, society’s continued expectation of privacy in communications made by letter or phone call demonstrates its willingness to recognize a legitimate expectation of privacy in the contents of text messages. What individuals once communicated through phone calls and letters can now be sent in a text message. Thus, as text messaging becomes an ever-increasing substitute for the more traditional forms of communication, it follows that society expects the contents of text messages to receive the same Fourth Amendment protections afforded to letters and phone calls. We therefore find that the trial court did not err in concluding that Clampitt had a reasonable expectation of privacy in the contents of his text messages.

Additionally, the Missouri court drew some inferences from recent US Supreme Court precedent, which wasn’t on point factually but had some interesting dicta or, as the court described it, “intimations.”

Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification. That might strengthen the case for an expectation of privacy [in the employee-employer context]. On the other hand, the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cell phones or similar devices for personal matters can purchase and pay for their own.

As the Missouri court said, “Thus, it is clear the Court is saying that, outside the workplace and employer-provided technological equipment, a person has a reasonable expectation of privacy with regard to cell phone and text message communications on or via privately owned equipment.”

But what about those texts you’ve sent but can be found on another person’s phone?   Can you assert a privacy interest in those texts?   If you can assert a privacy interest in the texts which are held by the cellular provider, why not the phone of the recipient?  Sure, the phone’s owner can consent to show those texts to the police, but if he doesn’t, whether you have a privacy interest can make or break the state’s case.

I think anyone who claims to know the answer definitively is kidding themselves.   We live in a world of rapidly evolving technology, and we don’t know for certain how the 4th Amendment will play out.  It’s a fun time to be a defense attorney.

 

 

 

Wagner I: That Case Doesn’t Mean What You Think Does

As noted in a couple of previous posts, the Oregon Supreme Court has granted review in State v. Reinke, and the question — based on the question presented but also the briefs that were submitted to the COA — hinges on whether offense-specific enhancement facts must be plead in the indictment.  In one of those posts, I briefly touched on why I think the state’s main argument that pleading isn’t required — relying on Wagner I — is in error.

I want to use this post to explain the issue in more detail.

The Oregon Supreme Court has often looked at whether offense-specific enhancement facts are elements under Article I, section 11.  If so, they’d have to be proven to a jury.  But Article I, section 11, also guarantees the defendant the right to a Grand Jury indictment, and under long-standing case law interpreting that provision, elements must be plead.

So, it would seem to be an easy question, right?  Unfortunately, the AG’s office has argued — successfully to the COA — that Wagner I does not require pleading even offense-specific enhancement facts.   The quote they pull from Wagner I is usually, “There is no requirement of pleading an indictment that requires the indictment to set forth possible penalties that the law may fix for guilt on a particular charge.”

Seems dispositive, doesn’t it?  Yeah, not so much actually.  First, you’ll really want to read the entire discussion of this issue (don’t worry, it’s brief).

  Defendant argues that the indictment failed to allege facts that would give him notice that the death penalty would be sought and the “particular evidence of aggravating factors.” Amici urge that the indictment is insufficient in failing to allege in the language of ORS 163.150(2)(a) that defendant “deliberately” caused the death of the victim.

ORS 132.550(7) provides:

“The indictment shall contain substantially the following:

“(7) A statement of the acts constituting the offense in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended;”The offense with which this defendant is charged is aggravated murder as defined in ORS 163.095(2)(a)(E), which is set forth at the outset of this opinion. The ultimate facts that make up that offense are clearly alleged in the indictment. To be guilty of aggravated murder one does not need to act “deliberately.” If one is guilty of aggravated murder but the jury does not unanimously find that the perpetrator acted deliberately, the guilty one is not sentenced to death but is yet guilty of aggravated murder. There is no requirement of pleading an indictment that requires the indictment to set forth possible penalties that the law may fix for guilt on a particular charge.

What’s missing is any reference to the Oregon Constitution or any reference to Article I, section 11.  It’s a purely statutory argument that’s made there.  That said, the Oregon Supreme Court has since addressed the issue under the Oregon Constitution, and it’s those cases that we need to look at.

The issue was in fact addressed in State v. Terry, sorta.  Terry looked at whether “deliberateness”  was an element of aggravated murder and therefore whether it needed to be plead in the indictment.  The court noted this was a similar issue to the one presented in Wagner, and presumably the reason it wasn’t the same issue is because Wagner was decided under the statute but Terry the constitution.  Nevertheless, the Terry court does quote Wagner as follows:  “If one is guilty of aggravated murder but the jury does not unanimously find that the perpetrator acted deliberately, the guilty one is not sentenced to death but is yet guilty of aggravated murder.” [Emphasis added.]

Terry was authored by Justice DeMuniz.

A few years later, the court decided State v. Johnson, and it reaffirmed Terry, saying, “However, nothing in those cases suggests that those questions [e.g., deliberateness] necessarily define a separate crime of capital aggravated murder and, as such, that they must be set out in the indictment. “  [Emphasis added.]

In other words, the court reaffirms that the crime of  conviction — aggravated murder — doesn’t change regardless of the finding of deliberateness, etc.  Death or no death, it’s still aggravated murder.

But compare that conclusion to what the court said in State v. Wedge, in determining whether the gun minimum was an aggravating factor.  Better yet, note how the court in State v. Ice described the holding in Wedge:

State v. Wedge, 293 Or 598, 652 P2d 773 (1982), as described in State v. Ice,  “explain[ed] that, although the statute  treated firearm use as a mere sentencing factor, when applied in the context of a robbery conviction, it in effect * * * create[d] a new crime’ of first-degree robbery using a firearm. Id. at 608.” [Emphasis added.]

I assume you see the difference.  Wagner, Terry, Johnson all make a point of saying that the sentencing factors necessary to impose death are not elements, because the crime of Aggravated Murder is unchanged, regardless of whether the sentencing factors are found or not.    But offense specific enhancement facts like the gun minimum — which is not an element in the statutory element of robbery in the first degree — create a new crime.

Consequently, just like the gun minimum, sentence enhancement facts, such as harm greater than typical or vulnerable victim, are elements, because they are offense-specific factors that create a new crime (e.g., kidnapping a vulnerable victim).   This new crime must be plead under Article I, section 11, because:

Simplification of pleading may be of benefit to an accused, as it tends to clarify the charge against him, but it has been held that the legislature may not constitutionally authorize the omission from an indictment of allegations necessary to describe a specific crime. Commonwealth v. Freelove, 150 Mass. 66 22 N. E. 435. It is not within the power of the legislature to declare that to be an indictment which does not set forth those elements of a criminal offense required by the constitution to be contained in an indictment. 27 Am. Jur., Indictments and Informations, section 2; People v. Bogdanoff, 254 N. Y. 16, 171 N. E. 890, 69 A. L. R. 1378.  [Emphasis added.]

State v. Smith, 182 Or 497, 501-502 (1948)

And if you don’t think this is an issue the Oregon Supreme Court has been waiting for the opportunity to address, then how do you explain this aside by the Oregon Supreme Court from just last year:

Cf. State v. Ice, 343 Or 248, 257-60, 170 P3d 1049 (2007) (distinguishing, for the purpose of Article I, section 11, between sentencing factors that relate to the offense and those that relate to a defendant’s character or status), rev’d on other grounds, Oregon v. Ice, 555 US 160, 129 S Ct 711, 172 L Ed 2d 517 (2009).

That quote reaffirmed my belief that the OSC would take up the issue of offense-specific enhancement facts as soon as they could, and wouldn’t you know it?  They did just that in Reinke.  The state has claimed and will continue to claim Wagner, Johnson and Terry don’t require pleading in the indictment, but as noted above, those cases don’t address the “new crimes” that are created by the additional allegation of offense-specific elements.

State’s Notice of Intent to Seek an Upward Departure and Other Sorrows*

Defense attorneys need to remember that the law changed substantially regarding the timing of the state’s notice.

SECTION 1.  ORS  136.765  is  amended  to  read:

136.765.  In  order  to  rely  on  an  enhancement  fact  to  increase  the  sentence  that  may  be  imposed in  a  criminal  proceeding,  the  state  shall  notify  the  defendant  of  its  intention  to  rely  on  the enhancement  fact  by:

(1)  Pleading  the  enhancement  fact  in  the  accusatory  instrument;  or

(2)   Providing  written  notice  to the  defendant  of  the  enhancement  fact, and  the  state’s  intention  to rely  on  it, no later than 60 days after the defendant is arraigned on an indictment, waives indictment or is held to answer following a preliminary hearing, or 14 days before trial, whichever occurs earlier, unless the parties agree otherwise or the court authorizes a later date for good cause shown.

SECTION 2. The amendments to ORS 136.765 by section 1 of this 2011 Act apply to criminal prosecutions commenced on or after the effective date of this 2011 Act.

What would constitute good cause?  I imagine something unknown to the prosecutor within the deadline, but how often is the prosecutor unaware that the defendant was on supervision, or has a long criminal history of similar offenses, or that the victim was vulnerable, or the harm was greater than typical?  And even if they didn’t know, whose fault is that?

A reminder of a few of the arguments that you need to make if the prosecutor does manage to get you notice in time.

Here’s a post on “on supervision.”

Here’s why an argument challenging offense-specific enhancement factors has new life.

Then of course there’s the Savastano argument.   See this post too. Has anyone in your county yet subpoenaed the DA’s policy on when they give notice of these factors?

And by the way, don’t know if anyone has done this yet, but I wanted to remind everyone of a surprising twist in the law.  How many jurors does it take to acquit of a CDO factor or the gun minimum?  If you’ve had a trial with those factors, I’m pretty certain that the jury was told that ten people had to vote for acquittal and, alas, you probably didn’t object to that instruction.  But that’s not the right answer.

We don’t normally think of these factors as Blakely enhancement factors, because the statutory requirement that they be plead and proven pre-dates Blakely and Apprendi.  But they qualify as Blakely factors, which the legislature has defined as follows:

ORS 137.760(2) “Enhancement fact” means a fact that is constitutionally required to be found by a jury in order to increase the sentence that may be imposed upon conviction of a crime.

And the number of people who need to vote to acquit of a sentence-enhancement fact is:

136.785 (3) An enhancement fact that is tried to a jury is not proven unless:

(a) The number of jurors who find that the state has met its burden of proof with regard to the enhancement fact is equal to or greater than the number of jurors that was required to find the defendant guilty of the crime; and

(b) Of the jurors who find that the state has met its burden of proof, at least the minimum number of jurors required by this subsection to prove an enhancement fact are also jurors who found the defendant guilty of the crime or alternate jurors as provided by ORS 136.773 (5).

In other words, it’s not proven unless at least 10 jurors vote for it.  Only 9 equals acquittal.  But if the number of jurors who convicted the defendant was only 10 to begin with, then a single juror (if out of those 10) is enough to defeat the enhancement factor.

Ask for that instruction, except if you don’t get it, except to the standard instruction, and just wait for the case to come back from the court of appeals.

*The title of this post alludes (for no particular reason) to the book First Love and Other Sorrows, by Harold Brodkey.  I’ve never read the book, but the title is wonderful.  The title also reminds me of an observation made by Martin Amis that a brilliant title is often a sign of a good but ultimately minor masterpiece.  As I recall, his examples in support of this observation were Hangover Square and The Ballad of the Sad Cafe.

Strategic Losing: The Demurrer Y’all Should Really Be Filing Regularly

Assume the following facts.  Defendant is a passenger in a stolen car.   Following his arrest, a substantial amount of drugs are found on him.  He’s arrested for DCS and PCS.  All three counts (the drugs counts plus UUV) are on the same indictment.

Those counts are properly on the same indictment only if at least one of three requirements is met:  (1) Same or similar crimes (no), (2) common scheme or plan (maybe, but probably not — depends on other facts); (3) same criminal episode (no, for the reasons given below).

In this situation, you do NOT want to file a motion to sever.  Why?  Because a motion to sever — per statute — only applies when the counts are PROPERLY joined, but too prejudicial to be tried together.  The only statutory remedy for counts that are IMPROPERLY joined is a demurrer.

Why does it matter, since the judge will treat the demurrer like a motion to sever anyway?  Because assume you lose the demurrer.  The case goes to trial.  You lose at trial.  The case goes up on appeal.  The COA says, yeah, the demurrer should have been granted, the indictment should have been dismissed.  But the state can’t get a re-trial, because the statute of limitations has run.  Had you appealed the denial of a motion to sever, and you prevailed, there is no need for the state to reindict, and your client has to go through another trial.

So, why aren’t the UUV and the DCS/PCS from the same criminal episode?    Because the facts necessary to prove the elements of one are unrelated to the facts necessary to prove the elements of the other.   See Orchard v. Mills, which held that a hit and run was from a separate criminal episode from the assault/car accident the defendant was running from.  Orchard held:

As discussed, ORS 131.505(4) defines a “criminal episode” as “continuous and uninterrupted conduct that establishes at least one offense and is so joined in time, place and circumstances that such conduct is directed to the accomplishment of a single criminal objective.” (Emphasis in Orchard.)

You can’t convince me that a hit & run and a vehicular assault are from separate criminal episodes, but a UUV and a DCS are not, if that’s the standard.  The DCS does NOT involve the same criminal objective as the UUV.

Let’s assume you lose.  Why do you lose?  Because the judge finds that it is in fact one criminal episode?  Great.  Then your client gets the benefit of the 200% rule and shift-to-I at sentencing.  If you lose because the judge merely severs, also great, because now your client has a better shot with a jury and you’ve preserved the demurrer for appeal.  If you win the demurrer, lots of good things could happen:  state could appeal, your client gets out of custody, or, at a minimum, you’ve gotten a de facto severance.

Here’s a sample improper joinder demurrer when the crimes arise from the same traffic stop.  It hasn’t been updated to reflect Orchard.

Here’s a sample demurrer when the crimes occur on different dates.

The full legal analysis — with case law and statutory citations — can be found in the demurrers.

These issues come up quite frequently. Failure to register and just about any other crime, if on the same indictment, are improperly joined.  PCS and any non-drug charge (including ID Theft) are probably improperly joined.    If you do almost entirely court-appointed felonies, I’ll bet I could go through your files and find at least one (and probably more, if you do mostly C felonies) that would benefit from one of these demurrers.

You cannot lose, even when you lose, and how often are defense lawyers in that situation?

This Appellate Week

Stop – Passenger – No Show of Authority

It is not a stop when an officer calmly orders a passenger out of a stopped car and asks whether he has any drugs or weapons.  Even if there’s a second officer on the other side of the car.  A reasonable person would feel free to leave because there’s no show of authority like a drawn weapon or a confrontational tone. Prior case law establishes that neither asking a person to get out of a car nor asking if a person has weapons or drugs is a show of authority.  The court reverses it’s prior opinion in light of State v Ashbaugh.  State v Smith

Witness Comments on Credibility – When Statement is From Non-Testifying Witness

While a witness may not comment on another witness’s credibility, a witness may testify to an out of court comment about a witness’s credibility.  In this case, an officer testified at defendant’s sex abuse trial that when defendant was asked whether he would believe the victim if she made an allegation of sex abuse, defendant said he would believe her. Relying on State v Odoms, the court says that the point of the prohibition on credibility comments is “only to preclude testimony by one trial witness about whether another trial witness is telling the truth.” It doesn’t bar statements made by a nonwitness about a witness’s credibility. 

The court also finds that a Southard error was harmless where the trial judge, after a bench trial, expressly disclaimed reliance on the diagnosis:  “I do not rely on it at all in this case.”  State v Brooks

Compensatory Fine – Economic Damages – Witness’s Plane Ticket for Trial

The court may not impose a compensatory fine to reimburse a witness for a plane ticket used to get to trial.  A compensatory fine can be imposed only when economic damages are caused by defendant’s crime.  Economic damages are damages that could be recovered in a civil action.  The cost of a plane ticket, purchased to attend trial, is a cost not damages.  The costs of litigation are not economic damages.  Only the damages caused by the crime may be imposed as a compensatory fine.  Note: this was a delinquency case but the issue is identical in juvenile and adult court.  In the Matter of S.J.P.

Dependency – Change in Permanency Plan – Reliance on Facts Outside Jurisdictional Judgment

A court may not rely on facts outside the jurisdictional judgment to change a permanency plan from reunification to adoption.  Here, the court relied, at least partly, on allegations of sexual abuse and evidence of sexualized behavior to find that the barriers to reunification were too high to be accomplished in a reasonable amount of time.  Because sexual abuse was not part of the jurisdictional judgment, it could not form the basis, even in part, for a change in the permanency plan.  Neither mom nor dad had adequate process available to challenge the allegations and their impact on the likelihood of reunification.  DHS v M.T. and N.T.

Sentencing – Maximum – Prison plus Post-Prison Supervision

A defendant may not be sentenced to 36 months prison followed by 36 months post-prison supervision on a C felony.  The term of post-prison supervision, when added to the prison term, shall not exceed the statutory maximum.  OAR 213-005-0002(4).  State v Lowell

A Rainoldi Follow-Up: Is It the Last Word?

In State v. Rainoldi, the Oregon Supreme Court looked at the felon in possession statute and concluded that no mental state applied to the defendant’s status as a felon.   So, we have a state statute interpreted by the state supreme court.  Short of a legislative amendment (which seems unlikely), it’s hard to imagine this isn’t the last word on the subject.

Or it was hard to imagine until I saw portions of a federal opinion (or more specifically, portions of a concurrence) at Sentencing Law and Policy blog.  The post is here.  At this point, I’d say it’s highly theoretical, and nothing will change (in state or federal court) unless SCOTUS decides to weigh in.   But it is possible Rainoldi might not be the final word on the subject.

U.S.S.Ct: GPS Tracking is a Search

This morning the U.S. Supreme Court issued a Fourth Amendment opinion, U.S. v Jones, finding that GPS vehicle tracking is a search.  Scalia and 3 other justices think it’s a search because the physical trespass of a vehicle (to which the GPS tracker was attached) was something the original founders would have understood to fall within the Fourth Amendment.  That is, this was a physical trespass, therefore it was a search.  Alito and 3 other justices think that applying an originalist understanding to modern technology is laughably absurd. The test the Alito concurrence would apply is whether a person’s reasonable expectation of privacy is violated.  Sotomayor is the swing vote.  She believes that the trespass test is a Constitutional minimum but also that a more expansive privacy test should be used to account for our modern world:

JUSTICE ALITO’s approach, which discounts altogether the constitutional relevance of the Government’s physical intrusion on Jones’ Jeep, erodes that longstanding protection for privacy expectations inherent in items of property that people possess or control. By contrast, the trespassory test applied in the majority’s opinion reflects an irreducible constitutional minimum: When the Government physically invades personal property to gather information, a search occurs. The reaffirmation of that principle suffices to decide this case.

Nonetheless, as JUSTICE ALITO notes, physical intrusion is now unnecessary to many forms of surveillance. With increasing regularity, the Government will be capable of duplicating the monitoring undertaken in this case by enlisting factory- or owner-installed vehicle tracking devices or GPS-enabled smartphones. In cases of electronic or other novel modes of surveillance that do not depend upon a physical invasion on property, the majority opinion’s trespassory test may provide little guidance. But “[s]ituations involving merely  the transmission of electronic signals without trespass would remain subject to Katz analysis.” As JUSTICE ALITO incisively observes, the same technological advances that have made possible nontrespassory surveillance techniques will also affect the Katz test by shaping the evolution of societal privacy expectations. Under that rubric, I agree with JUSTICE ALITO that, at the very least, “longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. . .

More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a greatdeal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. Perhaps, as JUSTICE ALITO notes, some people may find the “tradeoff” of privacy for convenience “worthwhile,” or come to accept this “diminution of privacy” as “inevitable,”, and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal  expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy.

Sotomayor concurrence, U.S. v Jones

Stealing shamelessly from SCOTUSblog, the go-to Supreme Court website, here’s the reporting from around the blogosphere:

By Kali Borkoski on Jan 23, 2012 at 2:55 pm

This morning the Court issued its decision in the GPS tracking case United States v. Jones, holding that attaching a GPS device to a vehicle and then using the device to monitor the vehicle’s movements constitutes a search under the Fourth Amendment. Although the Justices were unanimous in upholding the opinion by the U.S. Court of Appeals for the District of Columbia Circuit, the reasoning on which they relied to reach that conclusion varied.  Lyle Denniston explained the decision in detail for this blog, while Greg Stohr covered the case for Bloomberg.  Additional coverage is available from Adam Liptak at the New York Times, Robert Barnes and Cecilia Kang of the Washington Post, Joan Biskupic of USA Today, Mike Sacks of the Huffington Post, Kashmir Hill at Forbes, Jesse Holland and Pete Yost of the Associated Press (via MSNBC), Ariane de Vogue of ABC, James Vicini of Reuters, Tony Romm of Politico, Jim Harper of Cato@Liberty, and Brendan Sasso at The Hill’s Hillicon Valley blog.

NRP’s The Two–Way blog features a discussion on the case between Nina Totenberg and Paul Brown.

At the Volokh Conspiracy, Orin Kerr has several posts on the opinion here, here, and here.

The Consequences of a Reinke Win: 2 COA cases likely overruled and 2 merger arguments with new life

In case you hadn’t heard, the OSC has granted in review in State v. Reinke.  The first question in Reinke is whether offense-specific enhancement facts are “elements”, even if given a “sentence-enhancement” label by the legislature.  The second is, if they are elements, whether they must be plead in the indictment.  Both questions are under the Oregon Constitution and therefore separate and distinct from Blakely and Apprendi arguments.

Oral argument is set in May.  We can probably expect an opinion in about a year (i.e., about the same time that — if you preserved an issue today — the defendant’s brief would be filed).

If Reinke is successful, it would throw into question at least two appellate decisions and it would likely give new fuel to a couple of merger arguments.

A quick reminder that this issue — which might seem new — actually has a long history in Oregon law.  State v. Wedge, 293 Or 598, 652 P2d 773 (1982), as described in State v. Ice,  “explain[ed] that, although the statute  treated firearm use as a mere sentencing factor, when applied in the context of a robbery conviction, it in effect * * * create[d] a new crime’ of first-degree robbery using a firearm. Id. at 608.”  [Emphasis added.]

The first decision likely to fall if Reinke prevails is State v. Williams, 237 Ore. App. 377 (2010), where the COA upheld an amendment to a sub-category enhancement fact (that the victim “did not substantially contribute to the commission of the offense by precipitating the attack”).  The COA held that — though offense-specific — the enhancement fact was not an element and therefore did not have to go through grand jury to be litigated.  If sentence enhancement facts that are offense-specific must be plead in the indictment, then it would be hard to conclude that Williams was still good law.

Williams came out just over a year ago, but there’s an older, somewhat obscure case that — if reversed — would subject a number of drug indictments to a demurrer.   Let’s assume you’ve got an indictment that alleges both a “commercial drug offense” and “substantial quantities.”   Right now, they are considered mere sentence enhancements, but given that they are offense-specific, they would likely be considered elements if Reinke prevails.   And if they were elements, they would violate the rule against having two crimes that are not “separately stated.”  ORS 135.630(3).  Here’s a portion of a COA opinion concluding otherwise:

We read the above language to mean that the subcategory factors required for sentencing purposes are not themselves elements of the underlying offense, but are alleged in addition to those elements. Accord State v. Stewart, 123 Ore. App. 147, 149, 859 P.2d 545 (1993), on recon 126 Ore. App. 456, 868 P.2d 794 (1994), aff’d on other grounds 321 Ore. 1, 892 P.2d 1013 (1995) (trial court properly refused proposed instruction that erroneously treated penalty enhancer as an element of the crime). Applying that holding in this context, we conclude that when an indictment properly alleges the elements of the underlying offense, the inclusion of alternative grounds for enhancing the sentence does not create additional offenses.  The trial court erred in concluding that Count 1 alleges multiple offenses and in sustaining the demurrers on that basis.  [Emphasis added.]

State v. Merrill, 135 Or App 408, 412-413 (1995).

If you file a demurrer under the theory rejected in Merrill — and I’ve got one if you want it — there’s a good chance Reinke will be decided before the appellate attorney has to decide whether to brief it.  One way or another, Reinke should make it an easy decision for appellate counsel.

The following issue hasn’t yet made it to the COA, but it would likely be impacted by a Reinke win.  Of course, it may prevail anyway.

I had mentioned that in Wedge, the OSC found that the gun minimum was an “element” of the crime.   In fact, the gun minimum statute now calls it an element, though I believe at the time Wedge came out, it was considered a mere sentence enhancement factor.   Anyway, assume you’ve got someone charged with Felon in Possession (with additional language of use or threatened use of a firearm) and Unlawful Use of a Weapon.  Arguably, all of the elements of UUW are encompassed in the gun minimum language attached to the Felon in Possession.  Therefore, they would merge on the grounds that a lesser-included offense always merges into the greater offense:

A crime is a lesser-included offense of another crime as a matter of law if either of two circumstances exist: “(1) the elements of the lesser offense necessarily are included in the greater offense because the elements of the former are subsumed in the latter; or (2) all of the elements of the lesser offense are expressly set forth in the accusatory instrument.” State v. Lee, 174 Or App 119, 125, 23 P3d 999, rev den, 332 Or 559 (2001).

And if you want to tell me that (2) doesn’t apply in this situation, then tell me when (2) applies but (1) does not.

A related issue is when a defendant is charged with DCS (substantial quantities) and PCS.  If the DCS-heroin includes the language “the defendant possessed substantial quantities of heroin,” then all the elements of possession are alleged within the DCS, resulting in merger.  Currently, the state will argue that “the defendant possessed substantial quantities of heroin” is not an element, which may not be a strong enough argument to defeat merger under Lee, but if Reinke says it is an element, then merger would seem inevitable.

 

OSC Grants Review in Reinke

This very long post — in journalism parlance — buried the lead.   So I’m posting this post as well, because I’m assuming not everyone read to the end of the previous post, and this is potentially big news.  The Oregon Supreme Court granted review in State v. Reinke, and the questions presented are:

(1) Does the Oregon Constitution require the state to plead in the indictment facts necessary to find that defendant is a dangerous offender, before a sentencing court may impose a dangerous offender sentence?

(2) If not, is the state otherwise required to include them in some type of document that is filed with the trial court?

You can go to that very long post for a breakdown of the legal issues involved, but the bottom line is that if you’ve been given notice of an offense-specific enhancement factor — and “dangerous offender” is sometimes included — then you need to object to the state going forward on that allegation if they haven’t plead it in the indictment.    Whether you go bench or jury, doesn’t matter.  Object beforehand that they haven’t been plead.  Writing is preferable but an oral objection is better than nothing.  Typical offense-specific enhancements are:  harm substantially greater than typical, vulnerable victim, etc.

For further discussion, go to the long post, but in the meantime, preserve the objection. 

P.S.  And while you’re at it, don’t forget to make a Savastano objection as well, although that will require a bit more work ahead of trial.

The Lazy Co-Defendant’s Guide to Not Screwing Up the Appeal

There are some defense lawyers — you know who they are — who resist ever writing a motion or a demurrer or a special jury instruction.  They have their rationalizations, and I won’t soap-box about it now.  But there are times their aversion to paperwork might be fatal to their client’s appeal in a way they might not have considered.

And that is when the lawyer, in a co-defendant case, says to the court, “I’ll join in the co-defendant’s [special jury instruction/demurrer],” in lieu of filing a motion of their own.

While this may not be bad practice every time, both demurrers and special jury instructions are required to be in writing and filed with the court.

Jury instructions:

ORCP 59

A Proposed instructions. Unless otherwise requested by the trial judge on timely notice to counsel, proposed instructions shall be submitted at the commencement of the trial. Proposed instructions upon questions of law developed by the evidence, which could not be reasonably anticipated, may be submitted at any time before the court has instructed the jury. The number of copies of proposed instructions and their form shall be governed by local court rule.

Demurrers:

ORS 135.610   (2) The demurrer shall be in writing, signed by the defendant or the attorney of the defendant and filed. It shall distinctly specify the ground of objection to the accusatory instrument.

Co-defendants may be on the same indictment, but they have different case numbers.  This means there are different court files for each co-defendant.  So whatever jury instructions the attorney “joins” in, those instructions could only be found in the other defendant’s file.   Even if there weren’t separate court files, the “joining” co-defendant hasn’t submitted a demurrer in writing, much less signed it.

Have I ever seen an appellate court reject an argument as unpreserved in this situation?  I haven’t, but that hardly means it hasn’t occurred, and let’s face it, my clients won’t be in that situation.    Even if it wasn’t fatal, it would still mean more work for the appellate attorney, and it risks a fight over preservation, which can use up all the oxygen that otherwise would have been spent arguing the merits.

And if nothing else, it makes one of the lawyers look less prepared than the other.

Co-Defendants to Rob I and Proving the Firearm is Loaded

I’m going to keep this short.  I’m going to start with a list of things you probably already know, if you represent people charged with robbery in the first degree.  And then one last observation that has the potential to significantly help the defense of co-defendants.

(1)  If the theory of robbery in the first degree is “armed with a deadly weapon,” then robbery II (representing that you had a deadly weapon) is not automatically a lesser-included offense.

(2)  But rob II can be a lesser-included offense of rob I (armed with a deadly weapon) if the state has charged the gun minimum.  See State v. Riehl, 188 Or App 1 (2003)(finding that robbery in the second degree based on representation of a deadly or dangerous weapon is not a lesser-included offense of robbery in the first degree based on being armed with a deadly weapon, unless the state has also alleged the sentence enhancement factor of “use or threatened use of a firearm.”).

(3)  If your client is charged with rob I on a theory of “armed with a deadly weapon,” there is a jury instruction you absolutely need to ask for and one you need to object to.  That discussion is here.  Numerous Multnomah County attorneys have beaten Rob I counts using the arguments in that post.

(4)  Assume multiple co-defendants involved in a robbery.  All are charged with Rob I (armed with a deadly weapon) but only one actually had a firearm.  Under current case law, it’s not enough — in order to find a co-defendant guilty of rob I — to prove that he aided and abetted the robbery.  The jury must find beyond a reasonable doubt that the firearm was loaded and that the co-defendant intended that the firearm was loaded.

And here’s my final thought, which — unlike the above — I don’t believe I’ve posted on before.  If the state charges the gun minimum, Rob II is a lesser-included offense of Rob I. But the gun minimum is offender-specific.  That means that it only — only — applies to the person who wielded the firearm.   Therefore, my question is, can a co-defendant who didn’t know (or more precisely, didn’t intend) that the firearm was loaded be convicted of the lesser-included offense of robbery II if the “element/sentence enhancement” that makes that possible — by its own terms — only applies to the guy holding the gun?

If not, then the appropriate lesser-included offense to submit to the jury is robbery in the third degree.  But only for those co-defendants who weren’t waving around the firearm.

 

 

Revisiting Old Posts: Tea Leaves, Dangerous Offenders, Upward Departures and Offense-Specific Aggravators

When you start reading, you’ll think I’m just re-hashing an old argument.  But I have a pleasant surprise at the end.

There is an argument that I’ve been pushing for some time, where I’m virtually alone — I suspect — in thinking the argument has merit.  I say “virtually” alone, but I do think I have Jess Barton on my side, which is even better than having Clint Barton on my side.

And the issue is whether offense-specific enhancements must be plead under the Oregon Constitution.    The argument is pretty straight-forward:  according to more than 20 years of Oregon Supreme Court case law, offense-specific enhancement factors are “elements” of a crime under the Oregon Constitution, regardless that they’ve been given a “sentence-enhancement” label.    Ironically, the greatest summary of this history is in the first half of State v. Ice.   But even when Ice was good law, everyone ignored the first half, because of the more immediately significant portion that dealt with the federal constitution.  Now that Ice has been reversed (but only as to the federal constitution), mentioning Ice as a case of continuing importance tends to meet with scorn.

Prior to Ice, the most significant — but far from the most recent — case on this topic was State v. Wedge, which held that the gun minimum — a classic “sentence enhancer” — was an element, despite its legislative label.

If offense-specific enhancements are elements under the Oregon Constitution, then elements have to be plead in the indictment, right?  Quite a number of cases say so, but the one exception — sorta — is the case that says that the questions a jury must answer to impose death do not have to be plead in the indictment.  The state has routinely relied on this case to say that even if offense-specific factors are elements, they don’t have to be plead.

The flaw in the state’s argument is this:  the indictment already says “aggravated murder.”  That informs the defendant that the maximum sentence is death.  The allegation of “aggravated murder” satisfies the pleading requirements, just as a defendant charged with felony DWS isn’t entitled to have the actual reason it’s a felony suspension plead in the indictment.  The defendant is given sufficient notice by pleading “felony” DWS.  Sentence enhancement factors — in contrast — are not inherently part of the charge itself.  They are in addition to the charge, and therefore — if offense-specific — must be plead like any other element.

As I said, I’m virtually alone in believing this.  At least it seems that way sometimes.  The COA has rejected this argument repeatedly.  A number of appellate attorneys have gone out of their way to concede this argument in the state’s favor.   As far as I can tell, trial attorneys don’t even make this argument anymore (even though the motion has already been written and is available here).

It’s true that I did see a glimmer of hope in an offhand reference in a recent Oregon Supreme Court opinion.  I actually wrote about it here.   That’s why this post falls into the “revisiting old posts” category.    In that post, I quoted the OSC as saying:

Our state constitutional vagueness holding is limited to sentencing and, within that context, to sentencing factors that bear on a defendant’s character. We have no occasionto consider whether greater specificity would be required either for a statute defining the elements of an offense or for sentencing factors that relate to the offense rather than the offender. Cf. State v. Ice, 343 Or 248, 257-60, 170 P3d 1049 (2007) (distinguishing, for the purpose of Article I, section 11, between sentencing factors that relate to the offense and those that relate to a defendant’s character or status), rev’d on other grounds, Oregon v. Ice, 555 US 160, 129 S Ct 711, 172 L Ed 2d 517 (2009).   [emphasis added.]

And then I reminded y’all that, going as far back as 1948, Article I, section 11, requires pleading elements in the indictment:

Section 11 of Article I of the state constitution guarantees to every person accused of crime the right to “demand the nature and cause of the accusation against him”. We have recognized that this guaranty is absolute and is peremptorily binding upon the courts, but we have held that it does not prevent the legislature from providing for the simplification of indictments through the elimination of unnecessary verbiage. State v. Dormitzer, 123 Or. 165, 261 P. 426. Simplification of pleading may be of benefit to an accused, as it tends to clarify the charge against him, but it has been held that the legislature may not constitutionally authorize the omission from an indictment of allegations necessary to describe a specific crime. Commonwealth v. Freelove, 150 Mass. 66 22 N. E. 435. It is not within the power of the legislature to declare that to be an indictment which does not set forth those elements of a criminal offense required by the constitution to be contained in an indictment. 27 Am. Jur., Indictments and Informations, section 2; People v. Bogdanoff, 254 N. Y. 16, 171 N. E. 890, 69 A. L. R. 1378.  [Emphasis added.]

State v. Smith, 182 Or 497, 501-502 (1948)

“Okay,” you say, “fine, tea leaves, arguments on life-support, what’s the pleasant surprise you promised before I started reading this g*dd&**n long post?”

Today, the Oregon Supreme Court granted review in a case called State v. Reinke.  And the questions presented are:

(1) Does the Oregon Constitution require the state to plead in the indictment facts necessary to find that defendant is a dangerous offender, before a sentencing court may impose a dangerous offender sentence?

(2) If not, is the state otherwise required to include them in some type of document that is filed with the trial court?

Now, we all know that granting review on a question doesn’t mean that the OSC will reverse the COA, but really, if you’re going to trial on offense-specific enhancement facts — and dangerous offender can be a hybrid of offense- and offender-specific enhancements — it’s now officially malpractice not to raise this argument, at least until the OSC rules against us.  If they rule against us.

One last thought:  Jess Barton mentioned hybrid enhancement factors in this post, where he said:

Like the dangerous-offender findings for Class B and C felonies, most of which are offender-specific but one of which is offense-specific, see, e.g., State v. Tanner, 192 Or App 670, 87 P3d 688, rev den, 337 Or 160 (2004), Aggravating Factor D is a hybrid. Part of it is offender-specific, but another part is offense-specific. Moreover, its hybrid nature makes a tremendous difference in how the factor may be used—including whether it may be used at all.

Subscribers: Sorry About the Emails

If you’re a subscriber to this site, you accidentally received 3 to5 emails today referring you to posts on the Library of Defense of the Future.  Some of the posts weren’t even remotely new.  That was all an accident.  You weren’t supposed to receive any of those emails.  I’m so sorry for any inconvenience.  The people that are building the new site got caught in some glitch that is way above my head.  In any case, I’ve been assured that it won’t occur again.  On the upside, it means that we’re getting close with the new site.  Close, but definitely not there.  I expect you to have access in the next week or two.

Again, please accept my profuse apologies for any inconvenience and my infinite thanks for being a subscriber.

Alex

Revisiting Old Posts: A Shameful Day for the Court of Appeals . . . and Oregon.

Today, St v. Ofodrinwa was argued before the Oregon Supreme Court.  The argument is on the web, and it can be found here.

The attorneys are both excellent, but I think there’s way too much focus on legislative history, which tends to be somewhat confused in the best of circumstances.

Rather, there are two significant problems with interpreting the law the way the state urges.  Two absurdities are created that no one, I submit absolutely no one, could have intended.  Those two problems are discussed in this post, which I wrote in a rage when the COA opinion in Ofodrinwa was released.

Why a Stip Facts Trial is Better Than a Plea

On September 24, 2011, the Library of Defense posted an article of mine called “The Real World Effects of State v Cloutier.” In it I explained how the Supreme Court’s then-recent decision in Cloutier construed ORS 138.050(1) to severely restrict the types of sentencing issues a misdemeanor defendant could raise on appeal if he pled guilty or no contest.

I also said, “To be frank, the only solution I can think of,” to deal with the fallout from Cloutier, “stems from [its] admonition that” because a separate appellate-review statute applies in felony cases—i.e., ORS 138.222—Cloutier “applies to misdemeanor sentencing only; * * * it does not apply to felony sentencing.” I then concluded, “This creates the absurd possibility that the way defense counsel might circumvent Cloutier is by negotiating pleas that would have misdemeanor clients plead to felonies.”

But based on what I just went through at oral arguments in the Court of Appeals in a felony case, I need to warn defense counsel that I may need retract that as a possible solution.

In my case, I was seeking appellate review of sentences imposed on felony convictions consequent to guilty pleas. The court grilled me hard with this question:

Why isn’t your sentencing argument, which admittedly isn’t reviewable under ORS 138.050(1), not reviewable period?

My answer was that Cloutier explains that in felony cases, arguments that aren’t reviewable under ORS 138.050(1) may be reviewable under ORS 138.222, and that my claims are reviewable under that statute. But I’m here to tell you that if oral arguments are any kind of predictor, the court will reject my arguments. That is, if the court goes the way it sure sounded like it wants to go, it will apply ORS 138.050(1) to felony appeals. If the court does that, felony defendants will have the same sorts of problems on appeal that misdemeanor defendants have, if they plead guilty or no contest.

But there is one saving grace. In my September 24, 2011 article I said,

ORS 138.040 regulates appellate jurisdiction in trial cases, so [in misdemeanor cases] defense counsel might try to circumvent Cloutier by resolving cases through stipulated-facts trials. But for sentencing issues, that statute’s text is identical to the text of ORS 138.050(1) on which Cloutier relies. That means there is little hope that stipulated-facts trials, in lieu of guilty and no-contest pleas, will be of any help.

Fortunately, that wouldn’t be true in felony cases. Unlike misdemeanor cases, in felony cases the broader, appellate review provisions of ORS 138.222 would apply to the benefit of defendants who are convicted by stipulated-fact trials to the bench.

Unless and until the appellate courts rule favorably for felony defendants on this appellate-review issue, my suggestion to everyone is that if you wish to negotiate a plea in a felony case that would leave sentencing issues open, and if you want your client to be able to appeal in the event the sentencing issues are decided against him, you should negotiate an agreement in which he would be convicted through a stipulated-facts trial to the bench, rather than by a guilty or no-contest plea.

Revisiting Old Posts: Endangering the Welfare of a Minor

The Oregon Supreme Court has taken review of State v. McBride.  The question presented is:

For purposes of imposing criminal liability under ORS 163.575(1)(b), what is the correct interpretation of the phrase “[p]ermits a person under 18 years of age to enter or remain in a place where unlawful activity involving controlled substances is maintained or conducted”?

The specific issue in McBride reminds me of an old argument I used to encourage (but never had a chance to make myself) that the phrase “maintained or conducted” did not include mere possession.  If the legislature intended possession, they would have said possession.  Consequently, just because a 15 year-old is in a house at the same time marijuana is possessed, that’s not enough to constitute endangering.  I wrote about making that argument to the court here.  There’s even a sample motion.

I don’t know if McBride will reach that issue, but I thought I’d start highlighting some old posts you might not know to look for.

 

 

 

No Santa Claus today, but there is a Hannukah Harry

Alex is right.  No COA opinions today.  But SCOTUS has come through, writing an opinion which, I am happy to say, does no damage to existing due process case law.

In Perry v. New Hampshire, the defendant loses, but after oral argument went so badly, that was to be expected.   I think the defendant — and lone dissenter Sotomayor — have an important point about the difference between the exclusionary rule under the 4th And 5th Amendments and excluding evidence under the due process clause, but — again — it was obvious from oral argument that a majority of the Court was never going to adopt that position.

Perry is an Eyewitness Identification case.   My fear had been that the Court might reconsider all of its prior eyewitness identification case law.  In fact, I had concerns that the Court would reject exclusion as a remedy for a tainted identification ever, arguing that it was solely a jury question and dependent on the defense counsel to explain to the jury why the identification was unreliable.   (The problem is, even when the unreliability of the identification is explained in detail, jurors still tend to find the identification convincing.)  Moreover, this wasn’t just an abstract issue for me.  I am handling the appeal of a murder case where there was a horribly unreliable and suggestive identification.   Eliminate exclusion of the remedy and we would almost certainly lose the appeal.

Thankfully, that didn’t come to pass.  I still need to read the opinion in more detail, but my brief review is that it reaffirms some basic but important tenets.  One of which is, as noted in a footnote:

As our case law makes clear, what triggers due process concerns is police use of an unnecessarily suggestive identification procedure, whether or not they intended the arranged procedure to be suggestive.

I encourage you to read the case.  I think there are more problematic ID cases than the defense counsel is always able to identify.   I’ve been in court when a witness who no one thought could identify the defendant suddenly develops the ability to do so.  Defense counsel needs to be prepared for that situation.

There are numerous resources that are available if you have a bad ID.  Two great speakers at the OCDLA winter conference spoke on the issue.  There are easily locatable posts on this blog that — I hope — make the issue clear and simple.

This Appellate Week

Ryan Scott received no Christmas presents this chilly Wednesday morning.  No cases at all.  Just a bunch of AWOP coal chunks.  It’s so sad. 

(That’s me to the right, keening for this tragedy.  Ryan is holed up somewhere distracting himself by repeatedly taking apart and putting back together a complicated criminal episode puzzle.)

Petition for Cert on Collateral Estoppel

Don’t know how often this situation comes up, but apparently often enough that there’s a 3-way split among different jurisdictions.  The abbreviated version of the question presented is:

Issue: Whether the doctrine of collateral estoppel . . . bars relitigation of a fact necessarily decided in the defendant’s favor in an initial prosecution, when that fact is deemed evidentiary in nature in a subsequent prosecution.

Briefs available here.   A decision on the petition will likely be made within a couple of weeks.

Dog Sniffs: Cert Granted in Florida v. Jardines

For better or worse (probably worse), cert has been granted in Florida v. Jardines.  If you went to the 2011 OCDLA’s Winter Conference, you know all about the case.  If not, the question presented is:

(1) Whether a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is a Fourth Amendment search requiring probable cause; and (2) whether the officers’ conduct during the investigation of the grow house, including remaining outside the house awaiting a search warrant is, itself, a Fourth Amendment search.

The fantastic Florida opinion, the state’s petition for cert and related briefs can be found here.