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Plaintiff forced to waste jury strike, gets new trial


Here’s a tough court decision for me to get a handle on. 

How is it that a personal injury plaintiff could get a new trial merely because his lawyer was forced to use a peremptory challenge after the trial judge mistakenly refused to boot a juror for cause?


I mean, shouldn’t the plaintiff have been required to show more in terms of how the judge’s gaff actually hurt his case?


Here’s the deal.


Scott Roberts was injured while working for CSX Transportation. He sued the railroad in a Virginia state court, bringing a claim under the Federal Employers Liability Act.


During voir dire, Donald Kemp, a potential juror, disclosed that he was a 30-year stockholder in CSX.


However, the trial judge was impressed by the Kemp’s assurances that he could be fair and impartial, so the judge refused to strike the juror for cause.


This forced Roberts to later use one of his peremptory strikes to remove Kemp from the jury panel.


Following a two-day trial, the jury found that although Roberts sustained $280,000 in damages, he was 95 percent at fault for the accident. Accordingly, the trial court entered a judgment against CSX in the amount of a measly $14,000.


Naturally, Roberts wanted a new trial. And earlier this month the Virginia Supreme Court granted him his wish.


The main bone of contention on appeal was the trial judge’s failure to remove prospective juror Kemp for cause.


Now, it’s hard not to agree that Kemp should have been stricken for cause in the first instance.


The Virginia Supreme Court gave this aspect of the appeal short shrift.


“Prospective juror Kemp directly owned stock in defendant CSX, thus rendering him not ‘indifferent in the cause’ as a matter of law,” the court said. “That he sincerely maintained he could faithfully and impartially perform his duties as a juror is without import.”


So the error was made. And for CSX, this spelled doom because the court deemed it to be per se reversible error.


“Roberts’ use of a peremptory strike to remove Kemp from the jury panel did not render that error harmless because Roberts was entitled, as a matter of law, to have a panel free from exception upon which to exercise his peremptory strikes,” the court said.


This is the part I have a problem with.


The state supreme court doesn’t even mention whether the trial judge’s error caused Roberts to exhaust his peremptory challenges, thereby affecting the ultimate composition of the jury.


Why should such a trial error be exempt from harmless error analysis?


Given everything invested by the parties and the lower court in one trial, shouldn’t Roberts have been put to the test and required to demonstrate some quantum of prejudice before he could get a second bite at the apple?


CSX had the same qualms, and it expended its last bullet in the chamber to avoid a new trial.


The railroad tried to argue that, because this was a FELA case, federal law supplanted the Virginia rule that it is reversible error to force a party to use a peremptory strike to remove a prospective juror who should have been stricken for cause.


But the Virginia Supreme Court would have none of it.


“Contrary to CSX’s suggestion, whether CSX is ‘at hazard’ for another trial is not the appropriate inquiry,” the court said. “Nor will applying the Virginia rule affect the ‘rights and obligations of the parties’ under the procedural/substantive rubric. Instead, it will extend to a litigant presenting a FELA claim in a Virginia court the statutory rights the General Assembly has afforded to all parties in jury trials, whether civil or criminal, i.e., a jury panel free from exception to which a party may then direct its full complement of peremptory strikes.” (Roberts v. CSX)


— Pat Murphy


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Fired ‘tomboy’ can sue for sex discrimination


Here’s a tough call for an employer. You need to fill a position that involves a lot of face-to-face interaction with customers. 

A subordinate recommends a candidate and you sign off on the hire sight unseen.


But when you eventually meet the new hire in person, you realize she doesn’t exactly fit the bill as far as being one of the faces of your organization.


You wanted a perky, Mary Tyler Moore type to charm the customers. Instead you find that the new hire is a tomboy who is sometimes mistaken for a man.


Must you live with what in your mind is a mistake? Or can you make a change without some jury socking you with a painful sex discrimination verdict?


According to a decision last week by the 8th Circuit, it might be best to just grit your teeth and bear it.



The tomboy of Heartland Inns


Heartland Inns operates a chain of hotels in Iowa. One of the hotels is located in Ankeny, a dusty crossroads outside Des Moines.


In December 2006, the Ankeny Heartland Inn had an opening at the front desk for the 7:00 am to 3:00 pm “A” shift.


The manager of the Ankeny hotel, Lori Stifel, thought she had the perfect candidate to fill the position. Brenna Lewis had worked part time for Heartland since 2005 and, by all accounts, had done a great job.


Stifel called headquarters to get permission to hire Lewis and Barbara Cullinan, Heartland’s Director of Operations, gave the thumbs up to offer Lewis a full time job as a guest service representative.


All was well until Cullinan showed up in Ankeny and got a look at Lewis.


Cullinan didn’t like what she saw.


You see, Heartland’s Director of Operations allegedly takes the view that being “pretty” and feminine-looking is a prerequisite for female employees who wish to work at the front desk.


Lewis doesn’t exactly fit that profile. She describes her appearance as “slightly more masculine.” Others at Heartland have said that Lewis has “an Ellen DeGeneres kind of look.”


Lewis at the time wore her hair short and prefers to go without makeup. Because she tends to wear loose fitting clothing, including men’s button down shirts and slacks, Lewis has been mistaken for a male and referred to as “tomboyish.”


All of this didn’t sit well with Cullinan. She allegedly told Stifel that Lewis was not a “good fit” for the front desk because she lacked that “Midwestern girl look.”


Rather than leaving well enough alone, Cullinan ordered Stifel to move Lewis to an overnight shift. When Stifel refused, Cullinan insisted that the hotel manager resign.


With Stifel out of the way, Cullinan turned her attention to Lewis.


First, the company issued a new directive that hiring for front desk positions required a second interview.


Next, Cullinan scheduled Lewis for another job interview.


Now, keep in mind that by this time Lewis had already been on the job for nearly a month, so she was understandably upset to suddenly find out that she had another hoop to jump through.


And it’s pretty clear that Lewis well understood which way the wind was blowing.


In any event, the interview with Cullinan didn’t go well and three days later Lewis was fired.


Heartland’s position is that Lewis was fired because she was insubordinate during the interview with Cullinan, exhibiting hostility toward the company’s new policies.


But it’s hard to imagine that someone at Heartland wasn’t savvy enough to realize that all this bumbling and stumbling wasn’t going to result in a lawsuit.


And sue Lewis did, claiming that Heartland violated Title VII by enforcing a de facto requirement that a female employee conform to gender stereotypes in order to work the A shift.


According to Lewis, this runs afoul of Price Waterhouse v. Hopkins, in which the Supreme Court decided that sex stereotyping can violate Title VII when it influences employment decisions.



Gender stereotyping


Last week, the 8th Circuit put in its two cents in the case, reversing a summary judgment in favor of Heartland.


The district court concluded that Lewis could not win because she could not show that she was treated differently than similarly situated males.


But the 8th Circuit said this was a mistaken view of Title VII.


The court observed that nothing in “Supreme Court precedents compel a woman alleging sex discrimination to prove that men were not subjected to the same challenged discriminatory conduct or to show that the discrimination affected anyone other than herself.”


Instead, the 8th Circuit said that “Lewis need only offer evidence that she was discriminated against because of her sex. The question is whether Cullinan’s requirements that Lewis be ‘pretty’ and have the ‘Midwestern girl look’ were because she is a woman. A reasonable fact finder could find that they were since the terms by their nature apply only to women.” (Lewis v. Heartland Inns of America)



What’s an employer to do?


This decision seems to create quite a dilemma for employers who wish to use physical appearance as a factor in making hiring decisions.


Chief Judge James B. Loken aptly summed up the problem in his dissent.


“Apparently, the majority would hold that an employer violates Title VII if it declines to hire a female cheerleader because she is not pretty enough, or a male fashion model because he is not handsome enough, unless the employer proves the affirmative defense that physical appearance is a bona fide occupational qualification,” Loken wrote.


Loken said that this is a misreading of Price Waterhouse.


“In my view, an employer’s decision to hire or fire based on a person’s physical appearance is not discrimination ‘because of . . . sex’ unless it is a pretext for disadvantaging women candidates,” Loken wrote.


That seems to be the essence of the problem in this dispute between Lewis and Heartland Inns.


Here you have a female decision maker — Cullinan — who rightly or wrongly decided that Lewis’ appearance did not present the image that the company wished to present.


It seems pretty clear that Cullinan’s decision was not based on gender per se, but rather on her subjective assessment of Lewis’ appearance. The bet here is that Cullinan would make the same decision regarding an unattractive male hotel clerk who might not have that “fresh,’ chipper look about him.


As unsavory as we might view such a decision, shouldn’t that be the employer’s prerogative?


Or should we just go over the cliff, recognizing the “unattractive” as a protected class under employment discrimination law? 


— Pat Murphy


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Senior center smack down!


If MTV ever runs out of ideas for reality shows, maybe it should check out a local senior center.

The folks on “The Jersey Shore” are playing patty cake compared to what goes on at the Big B —  the Behring Senior Center  in Monroe, Wisconsin. 

Yep, the action is fast and furious at the Big B. The people take their euchre seriously, keeping an eagle eye out for those card sharps who would try to slip in a marked deck at the playing table.


For those of you who think the rowdies on “The Jersey Shore” are tough, let me just point out that no one ever really gets banished from MTV.


Well, you can get banished from the Big B. Just ask Edith Milestone, the one and only.


Who would have thought that a 79-year-old, 110-pound ball of sinew and attitude could be the source of so much drama?


The first thing you need to know about Edith is that she has a temper. And, if you cross her, she’ll sue you.


At least that’s according to Tammy Derrickson, the Big B’s senior center coordinator. Tammy says that Edith has an unfortunate penchant for threatening to sue whenever she gets angry. And Edith seems to get angry a lot.


Edith herself complains that good old Kenny Hendrickson likes to warn those at the senior center, “You better watch Edith Milestone. She’ll take every penny you’ve got in your pocket.”


Edith’s temper has long been a matter of concern for the center’s staff, as evidenced by 13 “incident reports” filed on her going back to 2002. That’s quite an impressive rap sheet for the Big B.


The other thing you need to know about Edith is that she likes to play cards. Euchre is her game, and sitting at the senior center’s “500 Table” on Mondays and Thursdays is where she likes to be.


The problem is that Edith’s temper and euchre just don’t seem to be a good mix.


Fellow card player Patsy Remour recalls how one day Edith threw a deck of cards at her euchre partner and stormed out of the building. That accounts for one of Edith’s 13 incident reports.


The latest incident involving Edith and the one that got her banned from the senior center occurred Oct. 23, 2008.


Tammy Derrickson’s good morning turned sour when she found a complaint against Edith on her desk.


Louis Draney had accused Edith of bringing a marked deck of cards from home. And Louis claimed that some players had stopped coming altogether because of Edith’s ornery nature.


Taking a deep breath, Tammy went to the center’s dining room later that afternoon to sort things out at the euchre table.


There Tammy found Edith engaged in an argument over her euchre score.


Scoring always seemed to be a flash point for Edith. She didn’t like the way others kept score, and no one would ever allow Edith to handle that responsibility.


Tammy laid down the law and said that from now on no one was allowed to bring a deck of cards from home. The center would provide new decks as needed.


Now, Edith and Tammy always seemed to be on the verge of locking horns. As legend would have it, the bad blood really goes back to the center’s potluck Thanksgiving dinner in 2005.


Wanting to make sure she was one of the first in the dinner line, Edith arrived early that day to get a seat at the table she just knew would be first to be called up.


But all of Edith’s planning went awry when Tammy strolled in and started with the tables at the other end of the dining hall, making Edith one of the last in line.


Believe me, Edith, I’ve been there. At every wedding I get dragged to I always seem to find myself sitting at one of the last tables to be called up to eat, despite all my clever strategizing.


And, like you, Edith, it’s hard for me not to come to the conclusion that there must be some dark forces at work.


For Edith at that Thanksgiving dinner, the dark force was Tammy Derrickson, and Edith made it clear to Tammy that she believed that she had been singled out for ill treatment.


Those bad feelings bubbled up again on that fateful day in October 2008.


Edith was apparently miffed about the card marking accusations, and (Surprise!) she didn’t like the way her euchre score had been kept.


So when it came time for Tammy to hand out the prizes for the afternoon’s events, Edith said words to the effect that Tammy could keep her $1.00 prize and shove it.


Now, there are two different versions about this conversation.


Edith claims that she and Tammy had a civil disagreement.


Tammy, however, alleged that Edith was “ranting and raving,” shaking her finger in her face and being downright nasty.


What’s more, Tammy claimed that she felt physically threatened by Edith, walker or no walker.


Tammy and the senior center had had enough and banned Edith from coming to the facility based on her violating the center’s code of conduct.


After a hearing by the Behring Senior Center Board of Directors, the lifetime banishment was modified to allow Edith to apply for reinstatement after she completed an anger management class.


Anger management be damned!


True to form, Edith sued. Because the senior center was operated by the city of Monroe, Edith sued under §1983, claiming her First Amendment rights were being violated.


The problem was that Edith failed to exhaust her remedies with the city by failing to appeal the board’s decision. Because, as a consequence, her banishment could not be considered a result of the city’s action, U.S. Magistrate Judge Stephen Crocker last week entered a summary judgment in favor of Monroe.


And Crocker said that Edith would most likely lose even if the city was a proper defendant in the case.


First, the judge noted that the senior center’s board believed Tammy’s testimony that Edith had physically threatened her.


That finding stands in the absence of an administrative appeal.


The judge wrote that he therefore “must assume that the board banned plaintiff from the center not because it was trying to suppress dissent, but because it believed that plaintiff posed a safety concern. Plaintiff cannot argue that threats are protected by the Constitution or that the city must wait for an assault to occur before it takes action.”


And Judge Crocker further found that Edith could not establish a First Amendment violation, even accepting her denial that she had physically threatened Tammy.


“Even if one considers the undisputed facts only, this leaves the undisputed fact that plaintiff was ‘complaining loudly’ about her score,” the judge wrote. “Even with respect to protected speech, the government has a right to regulate the manner of the speech, so long as it is unrelated to viewpoint. The city has a legitimate interest in minimizing disruption and keeping the center a pleasant environment for its visitors.” (Milestone v. Monroe


You can’t feel too bad for Edith. She may have lost this round, but who’s to say that Judge Crocker’s decision will stand?


And if this lawsuit ultimately does come to naught, there’s always someone else to sue.


Who knows? MTV might have a reality show all lined up for Edith and the Big B — once she gets that anger management course behind her.


— Pat Murphy


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Police open up those laptops, cell phones

Laptops and cell phones are the smoking guns of the new century. They’ve become treasure troves of incriminating evidence for police.

Getting that evidence suppressed is often the first order of business for criminal defense attorneys. 

When do police need a warrant to get at the information contained in those electronic devices? 

Just before Christmas, the Ohio Supreme Court became the first state high court to address the issue of whether police need a warrant before they can examine the contents of a cell phone seized in the course of an arrest. 

The Ohio Supremes held that police generally do need a warrant, but the bet here is we’ll see a difference of opinion emerge as other state and federal courts weigh in on the issue. 

A couple of other recent decisions zero in on the issues raised when a family member turns a device over to police voluntarily, specifically the issues of consent and the client’s reasonable expectation of privacy. 


Family laptop?

Police in Idaho arrested Vincent Patrick Aschinger for engaging in lewd conduct with a child.

Aschinger had a laptop computer. He purchased the laptop when he was married to his ex-wife.

Ms. Aschinger happened to have the laptop in her possession at the time Vincent was in jail on the lewd conduct charge. Checking the laptop for photos of their kids, Ms. Aschinger came across images of another sort entirely.

Yes, the laptop contained voyeuristic photographs and a movie file of a female changing into a bathing suit.

The alarmed Ms. Aschinger promptly brought the laptop to the police, compounding Vincent’s troubles with a charge of video voyeurism.

Now, Vincent tried to argue that Ms. Aschinger didn’t have the authority to consent to the search of his private computer files.

One big problem with that argument was that the laptop was purchased during the marriage and Ms. Aschinger and the kids regularly had access to it.

Vincent’s strongest argument was that the illegal images were contained within his personal user account.

But late last month the Idaho Court of Appeals shot down that argument, too.

The court conceded that if “an individual user takes precautions to ensure privacy and limit access and control over files, the joint user may not have sufficient access or control to consent to a search of those files.”

Nonetheless, the court concluded that Ms. Aschinger had actual authority to consent to the search because Vincent failed “to restrict co-users from accessing personal files through use of a password or other means.”

This was so because the Windows display screen on the laptop showed Vincent’s user name which, when clicked, provided access to “everything.”

The court said that this fact belied Vincent’s contention that Ms. Aschinger did not have joint access to and control over files stored within his user account.

“While a user account can be password protected, the mere existence of a user account without password protection does not necessarily signify an intention to limit another user’s access to that user account,” the court said. (State v. Aschinger)


The cell phone he left behind

Last week, the South Dakota Supreme Court decided whether police needed a warrant to check out the contents of a cell phone that a child rape suspect left behind in his bedroom after he was kicked out of his father’s home.

Barry Glenn Thunder was kicked out of his father’s home after a domestic dispute with his father’s live-in girlfriend.

Among the personal belongings that Barry left behind was a cell phone.

Sure enough, family members discovered that the cell phone contained photographic evidence that Barry had molested a young child and turned the device over to police.

In seeking to suppress the evidence, Barry argued that he had a reasonable expectation of privacy in the cell phone because he kept it amongst his personal belongings in a locked bedroom.

The problem for Barry was that other household members claimed that it was their phone and that they had never given Barry permission to use or have it.

Hearkening back to the U.S. Supreme Court’s decision in Rakas v. Illinois, the state court concluded that Barry’s assertion that he had a reasonable expectation of privacy in the cell phone was defeated “because his possession of the cell phone was wrongful. [Barry], like the ‘burglar plying his trade in a summer cabin during the off season,’ may have had a subjective expectation of privacy in the cell phone, but it is not ‘one which society is prepared to recognize as reasonable.’” (State v. Thunder)

— Pat Murphy


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Home insurer hammered for causing a mistrial


Did an insurance defense lawyer orchestrate a mistrial when he saw his case going south? 

Or was the mistrial-causing gaff by his witness an innocent mistake?


We’ll probably never know. But one thing we do know is that the insurer is on the hook for $26,000 in sanctions.


And for those of you crafty types who just might consider such courtroom strategies, be forewarned that you might be placing the green in your own wallet at risk.


Fire at 474 Jackson Street


This courtroom drama was preceded by a neighborhood mystery — a fire at 474 Jackson Street in Wabash, Indiana. The home of Linda and Randall Good was partially destroyed in a blaze on March 16, 2003.


Linda had a policy on the home issued by Allied Property and Casualty Insurance. Pursuant to Allied’s policy, the dwelling was insured up to $330,000, and the personal property was insured up to $250,000.


But Allied thought that Randall had set the fire, so the insurer refused to pay up.


Linda sued Allied for breach of contract and bad faith. Allied filed a counterclaim to establish that it had no duty to provide coverage, naming Randal as a third party defendant.


Now, as the case headed for trial, there were two matters that Linda and Randall wanted kept from the jury.


First, there was a fire in the Goods’ home back in 1994.


Second, Randall has a bit of a criminal past, including a theft conviction from 30 years ago.


The trial court agreed that these facts would unfairly prejudice the jury, so it issued an order in limine barring the introduction of such evidence.


Disorder in the court


It didn’t take too long for the specter of a mistrial to rear its ugly head.


The third day of trial featured the testimony of Allied’s fire investigator, Arvin Copeland.


During cross-examination, Randall’s attorney asked a question about previous fires Copeland had investigated.


Apparently perceiving that a door had been opened, Copeland answered that he had investigated a previous fire at the Goods’ home in 2000.


Apart from being wrong about the year, Copeland had clearly violated the order in limine.


Of course, all hell broke loose. Objections, threats of contempt citations and admonitions to the jury flew about the courtroom, but a mistrial was avoided.


The plot thickened the next day.


Seeking to avoid further shenanigans, Linda’s attorney expressed concern that Allied’s next scheduled witnesses also might try to slip in references to prior fires and Randall’s criminal history.


Allied’s attorney assured one and all that his witnesses had been told about the order in limine and that there would be no problem. But what happened next is the stuff of war stories that lawyers love to share over a cocktail or two.


First, Allied’s case took a devastating hit.


Allied wanted a man by the name of Gregory Keel to testify that Randall had offered him $3,000 to burn down the Jackson Street property. Keel failed to show up for reasons unknown, however, so Allied sought to have his deposition testimony introduced.


The trial court would have none of it and told Allied’s attorney to get on with his case.


Stymied by the loss of a key part of his case, Allied’s attorney called in the manager for the insurance company’s underwriting department, Natalie Hornung.


And what does Hornung do?


While recounting her review of Linda Good’s insurance application, Horning testified that there were misrepresentations on the form regarding “prior felony convictions.”


So all hell broke loose a second time.


Intentional harpoon?


Once the jury was taken out of the courtroom, the trial court asked Allied’s attorney what in tarnation was going on.


Threatened with contempt, Allied’s attorney tried to explain that Hornung had been told about the order in limine and that the witness had simply “forgot” about the admonition not to bring up Randall’s criminal history.


You get the sense that the trial court suspected that Allied’s attorney was being sly by half, particularly given that Hornung’s testimony triggered a potential mistrial just after Allied had lost a key battle regarding the Keel deposition.


The trial court flatly said to Allied’s attorney that “it‘s possible that your trial strategy was to not have Mr. Keel here and attempt to use the highly damning deposition, or … you were unable to subpoena him in sufficient time to have him here.”


Whatever the case, the trial court concluded that Hornung’s reference to Randall’s prior criminal conviction appeared to be “an intentional harpoon thrown into this proceeding.”


Faced with a second blatant violation of its order in limine, the trial court had no choice but to declare a mistrial.


But that wasn’t the end of this phase of the case.


The trial court found that Allied intentionally violated the order in limine and was obligated to pay $24,000 for Linda‘s attorney fees, $1,200 in expert witness fees, $268 for her attorney’s hotel accommodations and $2,053 in Wabash County jury costs. (Linda later won a retrial against Allied and recovered $1.05 million.)


Up on appeal  


Allied appealed the sanction levied by the trial court.


The insurance company argued that a court’s inherent power to enforce its orders does not extend to imposing sanctions for violating an order in limine and causing a mistrial.


The Indiana Court of Appeals last week flatly rejected this contention.


And here’s the kicker.


Even though this case only involved sanctions against Allied, the court went out of its way to say that a party’s attorney may also be in the crosshairs for intentionally causing mistrials.


The court of appeals concluded that “Indiana trial courts possess the inherent power to sanction parties and attorneys for violating orders in limine and causing mistrials. This power is designed to protect the integrity of the judicial system and to secure compliance with the court‘s rules and orders. In order for a trial court to impose sanctions against a party or attorney, the court must find that the party engaged in egregious misconduct that causes a mistrial.” (Allied Property and Casualty v. Good)



— Pat Murphy


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Tackling those New Year’s Eve traffic stops


The Tie Disguise

The Tie Disguise


Amateur Night is over, so it’s a good bet that this morning you have a voicemail from a client who failed to bear in mind that law enforcement goes on high alert New Year’s Eve.

Yep, caught up in the partying your client goofed up and was pulled over by police.


If they were lucky, they were sent on their way with a warning or traffic citation. But that guy didn’t call you.


Nope, you got the call from the client whose night of celebration ended up in jail because the traffic stop turned up evidence of serious criminality: intoxication, illegal drugs or that gee-are-you-in-big-trouble handgun.


Take heart, legal beagle, because just for you Benchmarks has rounded up a slew of December decisions from across the country, court rulings that provide fresh takes on traffic stops and the Fourth Amendment.


These pearls of judicial wisdom just might support you efforts in suppressing evidence by having a traffic stop or vehicle search declared illegal — or confirm your initial judgment that the client has a plea deal in his future.



Police needn’t ID driver to conduct stop


Police are not required to verify the identity of a driver before conducting a stop of a vehicle registered to an individual whose license has been suspended.


That holding comes to us from the Indiana Supreme Court in a case in which police initiated a traffic stop after a routine status check of a license plate revealed that the driver’ license of the registered owner of the vehicle — Thomas Armfield — was subject to a lifetime suspension.


Naturally, the stop established that it was in fact Armfield who was driving, and the court said that officers could conduct the stop without first getting a physical description of Armfield.


“We hold that an officer has reasonable suspicion to initiate a Terry stop when (1) the officer knows that the registered owner of a vehicle has a suspended license and (2) the officer is unaware of any evidence or circumstances which indicate that the owner is not the driver of the vehicle,” the court said. (Armfield v. State)



Search of suspended driver’s car illegal


Piggybacking on the Armfield decision above, the Indiana Supreme Court decided that Damen Holly was out of luck when police stopped him because he happened to be driving the car of a friend whose license was suspended.


But Holly was able to suppress marijuana found in the car because the court decided that police lacked reasonable suspicion to search the vehicle.


“[O]nce it becomes apparent that the driver of the vehicle is not the owner then an officer simply has no reason to conduct additional inquiry,” the court said. (Holly v. State)



Stop triggered by ruse checkpoint is lawful


This is one of those ticky tacky traffic stops that drive criminal defense attorneys crazy.


Laura Adler is driving down a Nebraska interstate in a truck carrying 470 pounds of marijuana. She apparently sees a sign advertising a Nebraska State Patrol narcotics checkpoint up ahead, so she gets off at the first exit.


Of course, there is no checkpoint and Trooper Cory Townsend is watching the exit as Adler approaches.


Adler doesn’t signal a left turn until after she stops at end of the off ramp, so Townsend pulls her over for failing to signal for at least 100 feet before making a turn.


The 8th Circuit concluded Thursday that the traffic stop was lawfully in accordance with the express language of Nebraska’s turn signal statute.


“[B]ecause we interpret [the state law] to require Adler to have signaled her turn 100 feet in advance, we hold that Trooper Townsend had probable cause to stop her vehicle for the traffic violation he observed,” the court said. (U.S. v. Adler)



Vehicle search after cuffing illegal


An automobile search conducted after the driver was arrested, handcuffed and secured in a police cruiser violated the Fourth Amendment and the state constitution, according to the Washington Supreme Court.


This is one of the first state supreme court decisions applying the U.S. Supreme Court’s holding in Arizona v. Gant.


In suppressing methamphetamine discovered in a secret compartment of the defendant’s automobile, the state court concluded that the “search was conducted without a warrant even though the circumstances did not preclude officers from obtaining one prior to the search. There was no showing that a delay to obtain a warrant would have endangered officers or resulted in evidence related to the crime of arrest being concealed or destroyed.” (State v. Valdez)



Consent to search vehicle doesn’t include container


Police conducting a safety checkpoint could not open a shaving bag discovered while searching the interior of a vehicle with the driver’s consent, concludes the Maine Supreme Judicial Court.


The bag turned out to contain four and one-half methamphetamine pills.


The court said that “consent to search a vehicle does not in all cases extend to containers within it, and that under the objective circumstances of the consent in this case the trial court could conclude that the consent did not reasonably encompass the bag….” (State v. Sargent)



Consent invalidated by unlawfully extended traffic stop


The Oregon Court of Appeals has decided that a vehicle search that turned up methamphetamine could not be justified on the basis of the consent of the driver. This was because the driver gave her consent after police unlawfully extended the stop.


A police officer stopped the driver in the case for failing to signal before turning. While awaiting an outstanding warrants check, the officer obtained the driver’s consent to search her vehicle, a search that yielded methamphetamine.


But the court decided that the evidence must be suppressed, explaining that the “state put on no evidence that, when [the officer] began to question defendant about matters unrelated to the traffic stop, he had not yet received all of the information that he needed to process the traffic citation. Because the state bears the burden of proof and did not meet that burden, we must conclude that [the officer] unlawfully extended the duration of the stop when he asked for defendant’s consent to search.” (State v. Berry)



Police can test closed container’s contents


Police didn’t need a search warrant to determine the contents of an opaque metal cylinder discovered during a vehicle inventory, the Oregon Supreme Court ruled New Year’s Eve.


Here, the defendants were arrested for criminal trespassing after being Ammonia is a precursor used in methamphetamine production.


An inventory search of their vehicle turned up a metal gas cylinder, and the court said that police didn’t need a warrant to conduct tests to determine that the cylinder contained ammonia.


The court explained that when an officer vented the cylinder — an act which the defendants didn’t challenge — “the ammonia was exposed and discernable (through the sense of smell), [and] defendants no longer had a privacy interest in the contents of the cylinder.” (State v. Heckathorne


— Pat Murphy


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