A passenger on a commercial flight from Arizona to Florida allegedly stole $500 from another passenger’s purse. Now it appears that the alleged thief’s arrest in Florida will come to naught because of a problem with jurisdiction.

The lucky criminal defendant, Stacy Sanders, took a commercial flight from Phoenix, Arizona to Fort Lauderdale, Florida on June 25, 2009. Sometime before the flight entered Florida airspace, Sanders allegedly stole $500 from a fellow passenger’s purse.

According to prosecutors, an alert flight attendant caught Sanders in the act and forced her to return the money.

Of course, Sanders couldn’t just return the money and call it even-steven. When the plane landed in Florida, deputies from the Broward County Sheriff’s Office were there to greet her. The good deputies arrested Sanders and she was later charged with grand theft.

Sanders’ lawyer, Richard L. Rosenbaum of Arnstein & Lehr in Fort Lauderdale, argued that Florida lacked jurisdiction to prosecute the matter because all of the acts relating to the charge occurred outside the state.

The trial court denied the motion to dismiss. The court concluded that the charge against Sanders fell within the scope of Florida’s criminal jurisdiction statute (Florida Statutes §910.005) because her actions constituted an attempt to commit grand theft within Florida.

Apparently, the trial judge gave credence to the state’s view that Sanders would have had to leave the plane with the victim’s money after the plane landed in Florida in order to complete the crime.

Late last month, a Florida appeals court concluded that Rosenbaum had the much better argument:

It is apparent that Sanders allegedly committed all of the elements of theft prior to the plane’s entering Florida’s territory. When Sanders took physical possession of the victim’s money, she would no longer be “endeavor[ing] to obtain” the victim’s property because she would have already obtained the victim’s property with the intent to permanently deprive her of it. This means that the theft was fully executed before the plane reached Florida. Sanders could not be “endeavor[ing] to obtain” the victim’s property because she already had done so. Thus, the theft was not “committed wholly or partly within” Florida, so paragraph (a) of subsection 910.005(1) does not apply. Further, because the crime was completed the moment she obtained the victim’s money with the intent to deprive her of it permanently, Sanders’s actions on the plane could not “constitute[] a n attempt to commit an offense within” Florida under 910.005(1)(b).

(Sanders v. Florida)

Accordingly, the court of appeals remanded the matter with instructions that the trial court dismiss the grand theft charge against Sanders. So for now it looks as though Sanders walks away scot-free. We can only hope that she’ll keep her hands to herself on upcoming flights. 

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Mug shot of David Kernell

Apparently the Sarbanes-Oxley Act isn’t just for snagging corporate crooks. It also provided a handy tool for sending to prison a college student who hacked into Sarah Palin’s e-mail account during the 2008 Presidential election. 

Yesterday, the 6th Circuit upheld the constitutionality of a lesser-known provision of Sarbanes-Oxley that makes it a crime to destroy records that may be of interest to federal investigators. 

As we all know, the passage of Sarbanes-Oxley in 2002 brought volcanic changes to securities regulation and corporate governance. The package of laws passed by Congress as part of Sarbanes-Oxley included an obstruction of justice provision, 18 U.S.C. §1519. 

Section 1519 prohibits the knowing destruction or alteration of any record “with the intent to impede, obstruct, or influence the investigation … of any matter within the jurisdiction of any department or agency of the United States … or in relation to or in contemplation of any such matter or case.”

While §1519 may have been aimed at preventing the sort of widespread destruction of evidence that federal investigators encountered in the Enron and Adelphia accounting scandals, it turns out the statute has other uses as well. 

David Kernell probably never even heard of Sarbanes-Oxley, let alone §1519, when in the early morning hours of Sept. 16, 2008, he wormed his way into Palin’s e-mail account.

At the time, Kernell was a University of Tennessee student. The son of a Democratic politician, he probably thought it was pretty neat when he posted several pages of Palin’s e-mail on an Internet message board.

But after boasting about his mischief on the Internet, he began to have second thoughts and started to take steps to try to erase from his computer information relating to his hacking of Palin’s e-mail. These actions proved to be the real problem when the FBI caught up with him and he was charged under §1519.

A federal jury convicted Kernell for violating the law by deleting information on his computer relating to the Palin affair.

Monday, the 6th Circuit affirmed Kernell’s conviction, turning aside his argument that §1519 is unconstitutionally vague.

Kernell raised two arguments in his challenge to the statute. First, Kernell contended that the structure of the statute creates an ambiguity as to the application of mens rea to the various elements of the statute.

The court rejected this argument, explaining that “‘the statute does not impose liability for “knowingly … destroy[ing] … any … document … in … contemplation of any [federal] matter,” without an intent to impede, obstruct, or influence a matter.’ By applying this requirement to each of the three scenarios, the construction creates the needed specific intent and avoids Kernell’s concern that ‘the statute would forbid innocent conduct such as routine destruction of documents that a person consciously and in good faith determines are irrelevant to a foreseeable federal matter.’”

Kernell also argued that §1519’s requirement that the defendant act “in contemplation of an investigation” is vague.

But the 6th Circuit observed that other courts “have consistently held that the belief that a federal investigation directed at the defendant’s conduct might begin at some point in the future satisfies the ‘in contemplation’ prong.”

The 6th Circuit conceded that “this interpretation makes ‘in contemplation’ under §1519 very broad,” but also observed that  ”it is consistent with the legislative history and other cases to consider the question.”

Moreover, the court concluded that the statute could not be said to be vague as applied in Kernell’s case because the hacker had posted an Internet message revealing his concern that his actions could trigger a federal investigation.

“Thus there is no doubt from this post that Kernell ‘contemplat[ed]’ that an investigation would occur when he took his action, since he specifically referenced the possibility of an FBI investigation in his post,” the court said. “As such, to the extent there are any ambiguities in the ‘contemplation’ prong, Kernell may not raise or rely on them.” (U.S. v. Kernell) 

So Kernell’s conviction stands. According to Reuters, the hacker was released in November after serving less than eleven months of his one-year sentence, so he’s already paid his debt to society.

But Kernell’s misadventures do serve notice that Sarbanes-Oxley has some bite outside of Wall Street and the boardrooms of Fortune 500 companies.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Here’s a story that should give pause to any woman who blindly trusts that a husband or boyfriend will forever keep private those intimate photographs taken in a moment of whimsy.

Yesterday, the Minnesota Court of Appeals reversed the harassment conviction of James Charles Pegelow Jr., who in an ugly attempt at revenge posted nude photos of his ex-girlfriend, K.Z., in the men’s restroom of her place of employment.

According to the court, the state failed to prove that the resident of Columbus, Minn., actually committed a crime by posting the photos. The court held that, without the predicate offense, there could be no violation of the state’s harassment law.

“[T]he jury’s determination that Pegelow committed an unlawful act necessarily was based on speculation, rather than evidence, and the conviction must be reversed,” the court said.

Presumably, at one time there was genuine affection between Pegelow and K.Z. However, their relationship ended for reasons unclear in August 2009.

Unfortunately for K.Z., before their relationship ended she made a couple of really bad decisions. First, K.Z. had nude and partially nude photographs taken of herself. Then, she gave the photos to Pegelow in a sorry expression of love.

All too predictably, Pegelow was bitter over the breakup and made plans to exact his pound of flesh by using K.Z.’s revealing photos.

K.Z. worked at a store in Forest Lake. At around 7:00 p.m. on Jan. 29, 2010,  an employee of the store found the photographs of K.Z. posted in the men’s restroom. The store manager notified K.Z. and returned the photographs to her.

Naturally, K.Z. was upset and embarrassed. She called the police and named Pegelow as the probable perpetrator of the foul act. Sure enough, the store’s security tape showed Pegelow walking into the store at approximately 5:18 p.m., entering the men’s restroom, and leaving the store at approximately 5:26 p.m.

The state charged Pegelow with gross-misdemeanor harassment under §2(a)(1) of the state’s harassment law. The law makes it a crime when an individual “directly or indirectly manifests a purpose or intent to injure the person, property, or rights of another by the commission of an unlawful act.”

A jury convicted Pegelow, but it turns out that there was a fatal flaw in the state’s case.

In Pegelow’s appeal, the Minnesota Court of Appeals had to decide in the first instance whether §2(a)(1) obligated the state to prove that he committed “an unlawful act” distinct from the offense of harassment as defined in other parts of the law.

The court held that the state indeed was required to prove the commission of a predicate crime, observing that “if the unlawful-act requirement is satisfied by an act that only meets the definition of harass, the statutory language [in §2(a)(1)], ‘by the commission of an unlawful act,’ is rendered superfluous.”

The court’s holding that §2(a)(1) requires evidence of an independent unlawful act left the state’s case against Pegelow flapping in the wind.

“The state here was required to introduce some evidence from which the jury could reasonably find that Pegelow’s act was unlawful,” the court said. “We offer no opinion as to whether such evidence could have been presented because it is undisputed that the state did not indicate if or how the act of posting photographs was unlawful and offered no evidence from which the jury could so conclude.” (Minnesota v. Pegelow)

So under this court’s rendering, it’s up to the state legislature to come up with a law that would make criminal Pegelow’s act of posting K.Z.’s embarrassing photos in a public restroom.

But is such legislative action really necessary?

As the reversal of Pegelow’s conviction points out, there will always be gaps in the law that leave us unprotected from our poor choices. Rather than adding another chapter to the code books, perhaps it’s high time to reemphasize that the burden is on the individual to avoid engaging in behavior that opens the door to such embarrassment.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

If there was ever someone entitled to be shielded by a 50-year protection order, it would be Vanessa Rew. Incomprehensible as it may seem, Rew’s ex-husband thinks the order is unjust and wants it lifted on constitutional grounds. Thankfully, the Minnesota courts see things differently.

In 2008, the Minnesota legislature amended the state’s domestic abuse statute to permit the extension of a protection order for up to 50 years. The virtual lifetime extension is authorized upon the court finding that the abusing party has violated a prior or existing order for protection on two or more occasions, or that the petitioner has been issued two or more prior protection orders against the same party.

In 2010, Rew applied for a 50-year extension of an existing protection order against her ex-husband, James Allen Bergstrom, in Washington County District Court.

The evidence against Bergstrom was overwhelming.

Bergstrom and Rew were married in 1994 and had two children during their marriage. Rew alleged that Bergstrom began physically abusing her three years into the marriage while she was pregnant with the couple’s first child.

According to court records, in 2002 Bergstrom pleaded guilty to assault after Rew claimed that he severely beat her, dragged her down stairs, choked and punched her, and knocked her out by slamming her head into a faucet.

After that incident, Rew obtained a protective order on behalf of herself and the children. It only took four months for Bergstrom run astray and he pleaded guilty to a misdemeanor violation of the protection order.

Afterwards, the parties reconciled and remained together until 2007. Rew alleged that throughout this period Bergstrom beat and threatened her. So Rew obtained a one-year protection order in June 2007.

Bergstrom was subsequently arrested for stalking Rew in a rental car with a camera and binoculars. In December 2007, he pleaded guilty to violating Rew’s new order.

Several months later, Rew reported to police that Bergstrom accessed her e-mail accounts. So Bergstrom once again found himself in the position of pleading guilty to violating a protection order.

Before the 2007 order expired in 2008, Rew obtained a new one-year protection order that encompassed the children. The 2008 order temporarily suspended Bergstrom’s parenting time.

In 2009, the 2008 protection order was extended from one year to two years.

According to court records, Bergstrom spent most of 2009 incarcerated for violating terms of probation by stalking and harassing another woman and tampering with his electronic monitoring system. He was released from Minnesota Correctional Facility-Stillwater in October 2009. But it only took him several months to find himself in trouble once more.

In April 2010, Bergstrom was arrested and charged with violating the 2008 protection order after he allegedly showed up at Rew’s church retreat and refused to leave. Bergstrom was incarcerated in the Washington County jail until June 2010 when the charge was dropped.

This last incident caused Rew to apply for the 50-year extension, which a state trial court had little trouble granting.

Under the court’s order, Bergstrom is prohibited from: (1) having any contact with Rew or the children except for purposes of coordinating parenting time; (2) coming within 120 yards of Rew’s residence, place of work, or church; (3) coming within 120 yards of the children’s school or childcare location; (4) coming within 50 yards of Rew or the children in public places; or (5) possessing a firearm.

Despite the clear evidence supporting the appropriateness of the order, Bergstrom appealed to have it vacated. He raised a variety of constitutional challenges, in particular arguing that the 50-year extension violated due process and his First Amendment rights.

Last week, the Minnesota Court of Appeals turned aside these arguments and upheld a protective order which won’t expire until 2060.

With respect to Bergstrom’s free speech claims under the First Amendment, the court recognized that that the state has a “significant interest” in protecting the victims of domestic violence and that someone who has satisfied the statutory criteria for the issuance of a 50-year extension “has demonstrated a pattern of harmful and invasive conduct that invites the lawful regulation of the state.”

In sum, the court concluded that application of the 50-year extension to someone in Bergstrom’s shoes burdens no more speech than necessary to serve a significant government interest.

Bergstrom also argued that the extension violated due process because he was not provided notice of the collateral consequences of pleading guilty to his prior protection order violations.

This argument went nowhere with the court.

“The extension of [Rew’s protective order] against [Bergstrom] is not a criminal sanction; it is a remedial civil order issued at the discretion of the district court, intended to protect respondent and the children from future abuse. As such, it is not a direct consequence flowing ‘definitely, immediately, and automatically from the guilty plea.’ Therefore, [Bergstrom] was not entitled to notice that pleading guilty to violating [a protective order] could give rise to the extension of [protective order] as a collateral consequence,” the court said. (Rew v. Bergstrom) 

– Pat Murphy

patrick.murphy@lawyersusaonline.com

When your client has been arrested on a warrant that had been quashed 13 months earlier, you probably like your chances of recovering damages for a violation of his civil rights.

But the Arizona Supreme Court decided last week that law enforcement officers had no liability from what would appear to be a clear violation of the Fourth Amendment.

The plaintiff in the case before the state high court was Clifford Ochser. In January 2003, Ochser failed to appear at a status conference in his marriage dissolution proceeding in Maricopa County Superior Court. The judge found Ochser in civil contempt for failure to pay child support and issued an arrest warrant.

In March, the judge quashed the warrant after determining that Ochser never received notice of the January status conference.

The order quashing the warrant was supposedly faxed to the Maricopa County Sheriff’s Office, but Ochser took the precaution of obtaining certified copies of the order to keep in his car and office.

Over a year later, in May 2004, the sheriff’s department conducted Operation Mother’s Day, rounding up parents with outstanding child-support arrest warrants. Deputies Gerard Funk and Anthony Cruz were assigned several warrants for execution in northern Arizona, including the 2003 warrant for Ochser’s arrest.

The department allegedly checked to make sure each arrest warrant was valid, but the problem was that the department’s records showed that the warrant for Ochser was still active. 

On May 5, 2004, Funk and Cruz went to Ochser’s workplace at Lowell Observatory in Flagstaff. When Ochser arrived for work, the deputies placed him under arrest.

Naturally, Ochser protested that the arrest warrant against him was no longer active and that he had the documents to prove it. What ensued is subject to dispute. Funk later testified that he took steps at the scene of the arrest to verify the warrant. The deputy claimed that he called a court clerk and was told that the warrant was still valid.

In any event, it is undisputed that the deputies refused to permit Ochser to go to his office — a mere 20 yards away — to get his certified copy of the order quashing the warrant.

Instead, the deputies handcuffed and shackled Ochser, and took him to Phoenix where he spent the night in jail. Ochser was released the next day when law enforcement finally determined that his warrant had indeed been quashed.

Ochser sued the deputies under §1983 for a violation of his Fourth Amendment rights, but a state judge determined that the law officers were immune because they were acting on a facially valid arrest warrant.

Ochser’s appeal landed before the Arizona Supreme Court where he won a Pyrrhic victory.

In a Dec. 21 decision, the state high court recognized that Ochser’s Fourth Amendment rights had been violated when the deputies failed to allow him to take the simple step of going into his office to get his certified copy of the order quashing the arrest warrant.

“We hold, and clearly establish prospectively, that when, as here, law enforcement officers arrest someone pursuant to a warrant and are confronted with readily available information that objectively casts genuine doubt on the warrant’s validity, the officers must undertake further reasonable inquiry,” the court said.

Of course, the fly in the ointment for Ochser was that the court recognized in its holding that the law on this issue wasn’t “clearly established” at the time of his wrongful arrest.

This opened the door for the court’s further determination that Deputies Funk and Cruz Anthony were immune in Ochser’s suit for damages.

In reaching this conclusion, the court was persuaded by the split of authority in quashed-warrant cases.

“Given the conflicting case law at the time of Ochser’s arrest in May 2004, we cannot conclude that ‘every reasonable official would have understood’ that the deputies’ conduct here was unreasonable and violated Ochser’s Fourth Amendment rights,” the court said. (Ochser v. Funk)

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Scott Pattison told police that he came home from work and found his wife with a weight bar pinned across her throat. His account of his wife’s tragic death may have held up except for the fact that he had forgotten that he had equipped his home with a surveillance system.

At 12:14 p.m. on July 2, 2009, Pattison called 911 to report that his wife, Lisa Pattison, wasn’t breathing and that he was driving her to the hospital in Marion, Indiana. Pattison requested a police escort and a few minutes later an ambulance and a police officer intercepted Pattison’s truck en route. The ambulance took Lisa to the hospital where she was pronounced dead.

Pattison, who owned a roofing business, told police that he had come home at 11:30 a.m., entered the house at 11:45 a.m., and discovered Lisa in the exercise room.

According to Pattison, Lisa was lying on a weightlifting bench with the weight bar pinned across her throat. He administered CPR. When he was unable to revive his wife, he put her in his truck and headed for the hospital.

Pattison’s story sounded plausible, but Marion police had cause for suspicion because in 2001 the Wabash County Sheriff’s Department received a report that Pattison had asked a person to kill Lisa. That investigation went nowhere, but it was duly noted by Marion detectives.

On the day of Lisa’s death, detectives went to Pattison’s house to conduct a search. In the garage, the detectives noticed a surveillance system that was connected to cameras mounted outside the house. The recording device had a slot for a DVD, but there was no DVD in the machine.

Police felt that, without a DVD, they were out of luck. But several days later an employee of the company that had installed Pattison’s surveillance system called the detectives to inform them that the system recorded to an internal hard drive.

Figuring that they might be about to strike gold, detectives sought and obtained a search warrant for the surveillance system and seized the system from Pattison’s house. Sure enough, Pattison’s story unraveled when detectives got the chance to review the recording from July 2, 2009.

Pattison told police that he arrived home around 11:30 in the morning. However, the surveillance video showed that Pattison had returned home at 8:32 a.m. The cameras also recorded him entering and exiting the house and walking around outside of the house at 9:56 a.m., 10:03 a.m., 10:07 a.m., and 11:38 a.m.

Police dug up other evidence that would lead to Pattison’s indictment for murder, including evidence that his marriage was troubled and the fact that Lisa wasn’t known to use the weight bench on which her body was found.

But the surveillance video evidence was sure to be critical at trial, so Pattison’s lawyer went to work to keep it from getting before the jury. The main thrust of Pattison’s argument was that the search warrant for the surveillance equipment was not supported by probable cause.

The trial court rejected this argument and the jury convicted Pattison of murder after seeing the surveillance video.

Last week, the Indiana Court of Appeals concluded that, even though the affidavit supporting the search warrant included some stale information, there was enough valid information provided by detectives to establish probable cause.

Of course, there was the information uncovered by detectives that Pattison and Lisa were having marital problems to the point that Pattison had filed for divorce. Then there was the obvious fact that the camera surveillance system may have recorded footage outside of the Pattisons’ home on the day that Lisa died.

Most importantly, the affidavit supporting the application for the search warrant advised the court that an autopsy of Lisa revealed that her death may not have been an accident.

The coroner who performed the autopsy would later testify that Lisa’s neck injury was not consistent with the weight bar falling on her neck at a high rate of speed. Instead, it was his opinion that Lisa’s death was caused by asphyxiation due to compression of the weight on her neck.

In upholding Pattison’s murder conviction, the court of appeals concluded that “reasonable inferences drawn from the totality of the evidence indicate that there was a fair probability that evidence of murder would be found in the surveillance system, and the trial court had a reasonable basis to issue the search warrant. The admission of the surveillance system equipment and video into evidence did not violate the Fourth Amendment.” (Pattison v. Indiana)

– Pat Murphy

patrick.murphy@lawyersusaonline.com

One is left speechless in the face of a 17-year-old girl’s decision to pay a stranger to repeatedly punch her in the stomach in order to terminate her late-term pregnancy.

What kind of family environment spawns that kind of monstrous decision-making?

Yesterday, the Utah Supreme Court had to decide the technical legal question of whether the teen mother’s alleged actions amounted to solicitation to commit murder or somehow could be shoehorned into a woman’s right to seek an abortion.

The case involves J.M.S. of Vernal, Utah. According to the state, in 2009, the seventeen-year-old found herself with an unwanted pregnancy. She went to an abortion clinic to solve her problem, but learned that her pregnancy was too far advanced and that she was no longer eligible for the procedure under state law.

With that news, J.M.S. figured she was in real trouble. No, J.M.S. wasn’t thinking long-term about the harsh reality of being an unwed teen mother. According to the state, what was really top most on J.M.S.’s mind was the fact that her boyfriend had told her he would have nothing to do with her while she was pregnant.

Trapped by her boyfriend’s ultimatum, J.M.S. was determined to end her pregnancy one way or the other. So she allegedly hatched a plan to pay a stranger to punch her in the stomach to kill her unborn child.

J.M.S. found the necessary stranger, Aaron Harrison, and allegedly went to his home and paid him to repeatedly punch her in the stomach.

How does a teenager come up with such an evil plan?

There are those always ready to forgive the transgressions of the young, chalking off to immaturity all sorts of bad judgments. But the alleged actions of J.M.S. can’t just be dismissed as the wrong-headed moves of a love-sick teen. Such actions suggest an individual with a completely disengaged moral compass.

Of course, apart from the sinister motives, there were also problems with the execution of the plan. After taking repeated blows from Harrison, J.M.S. called her mother and claimed that someone had sexually assaulted her.

So J.M.S.’s mother drove her to the police station. During questioning, J.M.S.’s story fell apart. She came clean, allegedly confessing that she had not been sexually assaulted, but instead had paid Harrison to hit her to kill her fetus.

So J.M.S. found herself in trouble with the law. What’s more, her attempt to end the pregnancy was unsuccessful and the child was born “relatively” healthy. (Harrison himself was later convicted of attempting to kill an unborn child.)

In May 2009, the state filed a delinquency petition in the juvenile court in Vernal. The state alleged that J.M.S. had engaged in criminal solicitation to commit murder, a first degree felony if committed by an adult.

J.M.S. found herself before an “understanding” juvenile court judge who was evidently prepared to do back flips in order to let the teen off the hook. The judge decided that J.M.S.’s conduct fell within the state’s definition of “abortion,” which “includes any and all procedures undertaken to kill a live unborn child.”

According to the judge, J.M.S. had simply resorted to an unorthodox “procedure” to end her pregnancy and, therefore, her alleged conduct constituted seeking an abortion, not solicitation of murder.

The state appealed the dismissal of its delinquency petition and yesterday the Utah Supreme Court politely instructed the trial judge that he had gone  astray in interpreting state law.

First, the court concluded that the authorization of “procedures” to terminate a pregnancy under the state’s abortion statute only refers to medical procedures.

“Given the overwhelming medical focus of the Abortion Statute, we conclude from the plain language of the abortion definition that its use of the term ‘procedure’ refers to medical procedures,” the court said.

In reversing the dismissl of the delinquency petition, the court further decided that defining what J.M.S. allegedly did as an abortion procedure would render meaningless sections of the state’s criminal code which protect unborn children.

“If the broad interpretation of ‘procedure’ as ‘a series of steps taken to achieve a result’ is taken to its logical end, then any act undertaken to intentionally kill an unborn child would constitute an abortion. This result creates a logical conflict within the criminal homicide statute; the legislature cannot have intended to criminalize the intentional killing of an unborn child while simultaneously exempting from prosecution any series of steps intentionally undertaken to kill an unborn child,” the court said. (Utah v. J.M.S.) 

So J.M.S. will have to answer for her actions in juvenile court after all. We can only hope that her child can escape unscathed from whatever environment produced her mother.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

It seems rather odd that a police officer would not have justification to stop a driver after watching him “peel out” in an intersection, but the Alaska Court of Appeals has made a plausible argument as to why such a stop violates the Fourth Amendment.

Those of us who have left our teen years behind, both literally and figuratively, understand that flooring the gas to accelerate from a complete stop is a reckless act. That’s certainly what Alaska State Trooper Lucas Altepeter thought when he observed a truck “peel out” from a stop-sign-controlled intersection in Bethel at around 12:30 a.m. on Sept. 20, 2009.

As Altepeter watched the accelerating truck spin its tires through the beginning of a left-hand turn, it occurred to the state trooper that perhaps the driver had overindulged in adult beverages. So the trooper initiated a traffic stop.

Altepeter knew he had struck pay dirt when he observed that the driver of the truck, Vernon Burnett, had bloodshot, watery eyes, and stumbled a bit when he walked. Further, the trooper’s nose detected the strong odor of alcohol.

Burnett proceeded to flunk field sobriety tests and a portable breath test, so Altepeter placed him under arrest for driving under the influence. A breath test performed at the trooper post showed that Burnett had a blood alcohol content of .162 percent, about twice the state’s legal limit.

So it looked like the state had an open-and-shut case for driving under the influence and Trooper Altepeter could be commended for getting another drunk driver off the road.

Sure, Burnett would argue that the trooper lacked reasonable suspicion to initiate a traffic stop. But the driver had been observed peeling out from an intersection, so he must have been in violation of some state or local law against negligent or reckless driving, right?

Well, the Alaska Court of Appeals had a chance to review Burnett’s drunk-driving conviction. Last Thursday, the court decided that the traffic stop violated the Fourth Amendment. In looking at the issue of whether Trooper Altepeter had reasonable suspicion to initiate the stop, the court first explained that the mere act of peeling out on a public roadway does not violate Alaska law prohibiting negligent driving.

The court noted that the state negligent driving law requires proof that the alleged dangerous conduct actually endangers persons or property. In Burnett’s case, there was no such proof.

“Trooper Altepeter testified that when Burnett accelerated and turned left at the intersection, Burnett’s tires spun one-third to one-half of the way across the intersection. However, the trooper stated that he did not see Burnett engage in any other improper driving. Altepeter did not assert that Burnett’s driving endangered Burnett or anyone else, or that Burnett’s driving put property at risk,” the court said.

But if Burnett did not commit a traffic offense in the presence of a police officer, could the state argue that the mere act of peeling out provided Trooper Altepeter with reasonable suspicion that Burnett was intoxicated?

The court answered this question in the negative, observing that Altepeter “testified that, based on his training and experience, the fact that Burnett spun his tires for that distance caused Altepeter to suspect that Burnett was under the influence. However, Altepeter did not explain what aspect of his training and experience led him to this conclusion, other than the fact that Burnett’s behavior was unusual.”

The court concluded that “that Burnett’s act of unnecessarily spinning his tires, without more, is not a sufficient indication of intoxication to justify a traffic stop for driving under the influence.” (Burnett v. Alaska) 

Of course, since the evidence of Burnett’s impairment was deemed the fruit of an unlawful traffic stop, Burnett’s conviction for driving under the influence could not stand. So he’s free to peel out on Alaska’s roadways to his heart’s desire, whether intoxicated or not. 

– Pat Murphy

patrick.murphy@lawyersusaonline.com

While Narcissistic Wall Street Protester Dude is giving him a run for his money, Incessant Cell Phone Talker Guy remains firmly atop the list of the most annoying people walking the planet. 

So it is with quiet satisfaction that we receive the news this morning that a $103 traffic ticket will stand against a driver who just couldn’t resist the urge to pick up his cell phone while waiting at a red light.

California Vehicle Code §23123(a) prohibits a person from using a wireless telephone “while driving” unless the phone is configured for hands-free listening and talking.

Carl Nelson had the misfortune of being cited under the law. According to the police officer who wrote him a ticket,  Nelson pulled out his cell phone to take a call while waiting at a stop light in Richmond, California, on the morning of Dec. 28, 2009.

Nelson argued that, because he was stopped at the time, he was not “driving” within the meaning of the state law prohibiting cell phone use.

In making this argument, Nelson cited case law addressing drunk drivers caught sleeping behind the wheel of parked cars. Nelson in particular relied on the California Supreme Court’s decision in Mercer v. Department of Motor Vehicles that there must be some proof of “volitional movement” for a drunk driving conviction to stand under those circumstances.

Yesterday, in what most certainly is a dispensation of cosmic justice, the California Court of Appeal rejected Nelson’s arguments and upheld his $103 fine. The court held that the state’s distracted driving law encompassed a “fleeting pause” at a traffic light.

“Our conclusion is consistent with Mercer because there was proof of volitional movement of [Nelson’s] motor vehicle, since [he] moved it immediately before and after his fleeting pause at the red traffic light. Therefore, we conclude [Nelson] violated §23123(a) because there was substantial evidence that he listened to a hand-held wireless telephone during his fleeting pause at a traffic light ‘while driving’ on public roadways in Richmond,” the court said. (California v. Nelson)

Of course, Nelson’s lawyer tells The San Francisco Examiner that he expects to take the case to the California Supreme Court. But it is hard to avoid the conclusion that a decision allowing Nelson to avoid his ticket would essentially make enforcement of the state’s distracted driving law unworkable.  

That point was made clear by the state appeals court in yesterday’s decision.

“Were we to adopt [Nelson’s] interpretation, we would open the door to millions of people across our state repeatedly picking up their phones and devices to place phone calls and check voicemail (or text-based messages) every day while driving whenever they are paused momentarily in traffic, their car in gear and held still only by their foot on the brake, however short the pause in the vehicle’s movement,” the court said.

Heck, I’m for anything that reduces the number of clowns on the road with one hand on the wheel and the other holding a cell phone.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

You gotta hand it to the Los Angeles police. They had DNA evidence from a string of burglaries, and figured out a way to get a saliva sample from their prime suspect without violating the Fourth Amendment.

The nailed burglar is one Troy Corsby Thomas. The LAPD suspected Thomas of committing six residential robberies between 2006 and 2008.

The problem was police had little evidence linking Thomas to the crimes. Yes, one burglary victim was able to pick Thomas’s photo from a six-pack photographic line-up, but that was about it. The good news was that police had collected genetic material left by the burglar at five of the crime scenes.

But how were they to get genetic material from Thomas in order to make a DNA match?

A break in the case came in the form of an informant’s tip that gave police cause to place Thomas under surveillance.

Sure enough, on Dec. 1, 2008, Thomas committed a traffic violation while under police surveillance. During the traffic stop, Thomas exhibited bloodshot and watery eyes, providing police a reason to check him for drunk driving. After performing sobriety tests, Thomas consented to a preliminary alcohol screening (PAS) breath test that required him to place his mouth over the plastic tip of a breath testing device and blow into it.

Thomas passed the breath test with flying colors and was allowed to go on his way, but police had gotten what they really wanted. Instead of discarding the mouthpiece of the PAS device, the police preserved it for DNA testing. The DNA profile derived from the mouthpiece linked Thomas to two of the burglaries. A DNA sample obtained after Thomas’s arrest matched genetic material recovered from five of the burglaries.

Thomas tried to suppress the DNA evidence, complaining that the testing of the saliva he deposited on the mouthpiece of the PAS device constituted an illegal search. The trial court denied the motion to suppress, triggering Thomas’s no contest plea to a single burglary count. With prior felony enhancements, Thomas received 17 years in prison.

In an attempt to avoid the long stretch in prison, Thomas renewed his Fourth Amendment argument on appeal.

Late last month, the California Court of Appeal decided that the DNA test was not a search under the Fourth Amendment because Thomas abandoned any privacy right he had in the saliva he deposited on the breath testing device.

The court framed the constitutional question as being “whether a defendant may assert a privacy interest in a DNA sample that the police surreptitiously obtain from a publicly discarded item or material.”

It answered that question in the negative.

The court explained that Thomas “abandoned any expectation of privacy in the saliva he deposited on [the PAS] device when he failed to wipe it off. Whether defendant subjectively expected that the genetic material contained in his saliva would become known to the police is irrelevant since he deposited it on a police device and thus made it accessible to the police. The officer who administered the PAS test testified that used mouthpieces are normally discarded in the trash. Thus, any subjective expectation defendant may have had that his right to privacy would be preserved was unreasonable.” (California v. Thomas)

– Pat Murphy

patrick.murphy@lawyersusaonline.com