Benchmarks is always on the lookout for those novel search and seizure cases that help point the way for criminal defense attorneys. Last week, the Oregon Court of Appeals reached the somewhat counterintuitive conclusion that police can’t treat the covered bed of a pickup truck the same as the trunk of a car.

The beneficiary of that decision is Jay Lee Hanna. A Eugene, Ore., police officer investigating property crimes saw Hanna place suspected stolen items in the back of his Dodge pickup truck.

Interest piqued, the officer waited for Hanna to commit a traffic offense before initiating a stop. The officer place Hanna under arrest after determining that he was driving without a valid license and that he hadn’t kept up with his sex offender reporting requirements.

With its driver in handcuffs, police decided to tow and impound Hanna’s pickup truck. That led officers to conduct an inventory search of the vehicle pursuant to the Eugene Police Department’s policy.

The officers struck gold when they searched the cab of the truck, finding a glass pipe with a white residue that turned out to be methamphetamine. The inventory search of the cab complete, police turned their attention to the bed of the truck.

The bed of Hanna’s pickup truck was covered with a tonneau cover. You’ve seen those. They’ve become a favorite of the more stylish pickup truck owners.

A tonneau cover often looks like a black leather tarp covering the entire bed of the pickup. In fact, they’re typically made of hard plastic, fiberglass, or metal. Like a trunk, a tonneau cover can be locked to secure items in the rear of the vehicle.

Police found that Hanna’s cover was locked, but that wasn’t a problem because they had found the keys to the cover when they searched the cab.

Unlocking the cover, police discovered a shotgun in the pickup’s bed. This was more bad news for Hanna because he was a convicted felon who wasn’t supposed to have a firearm.

A state court later denied Hanna’s motion to suppress and he was convicted of possession of methamphetamine and being a felon in possession of a firearm.

Hanna’s strongest argument on appeal was that police had conducted an unlawful inventory search when they unlocked the tonneau cover and searched the bed of his pickup.

Eugene Police Department’s inventory search policy doesn’t specifically address pickup trucks with tonneau covers, but the state was confident that the inventory search of Hanna’s truck bed fell within the guideline authorizing the search of a vehicle’s “trunk and any external vehicle container(s) attached to the vehicle (e.g., car-top carrier) if you can open them without damaging the vehicle or the container.”

Wednesday, the Oregon Court of Appeals concluded that the search of Hanna’s pickup bed exceeded the scope of the police department’s inventory search policy.

First, the court concluded that the pickup’s bed, as enclosed by the pickup’s walls and the locked tonneau cover, was not a “trunk” under the department’s policy:

To be sure, the combination of the bed of a pickup and a tonneau cover can create a space that performs the same function as a trunk, just as a backpack or fanny pack can perform the same function as, for example, a briefcase or a purse. But just as a fanny pack is not a purse, neither is a pickup bed covered with a tonneau cover a trunk. In that regard, we emphasize that the operative provision of the inventory policy at issue here is phrased precisely, in terms of a specific referent, “trunk,” rather than more broadly and functionally – e.g., “a trunk or any other area of a motor vehicle designed or created to contain items of personal property.”

Further, the court concluded that the search was not authorized under language authorizing the search of external vehicle containers. The court said: 

Reference to the dictionary would be gratuitous because, even granting that the combination of the tonneau cover and the bed and walls of the pickup created a “container,” that “container” was not “external” or “attached” to the vehicle. Rather, parts of the vehicle itself were integral components of the “container”; that is, without the vehicle, there could be no “container.” Nor is the tonneau cover, which is “attached to the vehicle,” itself a “container” any more than the lid to a travel coffee mug is a container. Rather, the cover by itself is just that – a cover.

(State v. Hanna)

With the shotgun suppressed, the court proceeded to reverse Hanna’s conviction for felon in possession of a firearm.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

A federal judge has blocked a pair of Arizona laws that attempt to criminalize the hiring of day laborers from the street corner.

U.S. District Judge Susan R. Bolton ruled Wednesday in Friendly House v. Whiting that immigration advocates are likely to succeed on their claim that the laws violate free speech.

“The court has concluded that plaintiffs are likely to succeed on the merits of their First Amendment challenge to [the day laborer laws], and that conclusion, when coupled with plaintiffs’ evidence regarding the chilling of individuals’ solicitation of day labor, demonstrates that plaintiffs are likely to suffer irreparable harm in the absence of an injunction,” the judge wrote.

The preliminary injunction ordered by Bolton addresses two additions to the Arizona Criminal Code under Senate Bill 1070, Arizona’s controversial anti-immigration bill that Governor Jan Brewer signed into law in 2010.

The two new criminal provisions specifically address the interactions of day laborers and the motorists who wish to hire them. The first statute, §13-2928(A), makes it unlawful for a motorist to stop and impede traffic when attempting to hire a person for work at another location. 

The second statute, §13-2928(B), makes it unlawful for a person to enter a motor vehicle in order to be hired if the vehicle is stopped on a street, roadway, or highway and is impeding traffic. 

In suing to enjoin the two laws, immigration advocates argued that the statutes violated the free speech rights of day laborers.

The state countered that the laws advanced the substantial government interests of promoting traffic safety, crime reduction and economic development. According to the state, there was no First Amendment violation because the laws permissibly regulated commercial speech.

While the case was pending, the en banc 9th Circuit struck down a similar municipal anti-solicitation ordinance in California in Comite De Jornaleros v. Redondo Beach. 

Judge Bolton took her cue from the Redondo Beach decision in granting a preliminary injunction against the Arizona statutes.

The judge just didn’t buy the state’s argument that the real aim of the laws was to address the problem of traffic tie-ups caused by drivers picking up day laborers. Instead, the court saw the statutes at issue as serving the overarching purpose of Senate Bill 1070, which was to discourage illegal immigration.

This was problematic for the state, as the judge was quick to point out:

The commercial speech test “ensure[s] not only that the State’s interests are proportional to the resulting burdens placed on speech but also that the law does not seek to suppress a disfavored message.” Because A.R.S. §13-2928(A) and (B) are not drawn to achieve Arizona’s goal of promoting traffic safety, the Court finds that plaintiffs have shown a likelihood of success on the merits of their claim that the First Amendment bars these provisions.

The judge’s preliminary injunction against the day laborer provisions is only the latest development in the broad-ranging fight over the constitutionality of various aspects of Arizona’s anti-immigration statute.

Most notably, in July 2010 Judge Bolton issued an injunction against a provision in Senate Bill 1070 that required police officers to determine the immigration status of people they suspect are in the country illegally. 

Last December, the U.S. Supreme Court agreed to decide whether federal immigration law indeed preempted that provision as Bolton concluded, and a decision in the case is expected later this year.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

A New Jersey man claims that the property manager of his apartment complex has laid out the welcome mat for those who have entered the country illegally. Friday, the 3rd Circuit decided that the upset tenant could not hold the property manager liable for “harboring” illegal immigrants under the Racketeer Influenced and Corrupt Organizations Act.

“We cannot imagine that Congress contemplated that our nation’s landlords (not to mention our hotel and motel operators, innkeepers, and others who are in the business of providing accommodations) would be tasked with making complex legal determinations about who is permitted to live in this country, much less that they would be criminalized for an error in so doing,” wrote Judge Julio M. Fuentes in Delrio-Mocci v. Connolly Properties. 

The civil RICO case was brought by Richard Bolmer. Since 2004, Bolmer has lived in the Pingry Arms apartment complex in Plainfield, New Jersey. After Bolmer became a tenant, Connolly Properties began managing the apartment. 

According to Bolmer, the apartment complex has gone downhill since Connolly Properties took over. In addition to asserting that the building has fallen into disrepair, Bolmer claims that Connolly Properties has permitted overcrowding, failed to remedy flooding and mold, allowed the building to become infested with bugs and rodents, and generally turned a blind eye to criminal activity.

Bolmer alleges that the apartment’s problems are directly related to a scheme hatched by Connolly Properties back in 2006 to solicit illegal immigrants as tenants.

According to Bolmer, the property manager hired a Spanish-speaking leasing agent to market to the Hispanic community. He claims that the leasing agent operated under instructions to exempt from normal background checks those prospective tenants who were suspected of being in the country illegally.

Bolmer claims that Connolly Properties sought out illegal immigrants as tenants because it believed that they were less likely to complain about poor housing conditions or report housing code violations.

Fed up, Bolmer filed his lawsuit in federal court in 2008, alleging that Connolly Properties violated RICO by engaging in an “Illegal Alien Rental Scheme.” As a predicate offense, Bolmer contended that the property manager violated 8 U.S.C. §1324(a)(1)(A)(iii), which makes it a criminal offense to “conceal, harbor, or shield” an individual who has entered the country illegally.

The district court dismissed the case, concluding that Bolmer’s allegations were insufficient to show that the property manager committed the predicate offense of harboring.

Last week, the 3rd Circuit affirmed the dismissal of Bolmer’s complaint. Writing for the court, Judge Fuentes explained:

While Bolmer has plausibly asserted that the Property Managers sought to conceal their own violations of local housing code and of federal prohibitions against discrimination in housing, he has not shown that they did anything to prevent their undocumented residents from being apprehended by immigration authorities. …. The picture Bolmer paints … is one of a company whose leadership cared little of what happened to its tenants so long as Connolly Properties received a steady stream of rental income from any source. Bolmer has alleged that the Property Managers engaged in a great deal of unsavory and possibly discriminatory behavior. However, he has not sufficiently alleged that their conduct “‘tend[ed] to substantially facilitate an alien’s remaining in the United States illegally’ and to prevent government authorities from detecting the alien’s unlawful presence.”

The 3rd Circuit also rejected Bolmer’s contention that Connolly Properties’ actions violated 8 U.S.C. §1324(a)(1)(A)(iv), which prohibits a person from “encourag[ing] or induc[ing] an alien to . . . reside in the United States, knowing or in reckless disregard of the fact that such . . . residence is or will be in violation of law.”

In finding that Connolly Properties did not engage in the predicate offense of encouraging or inducing illegal immigration, Fuentes explained that the property manager “did not engage in an affirmative act that served as a catalyst for aliens to reside in the United States in violation of immigration law when they might not have otherwise.”

Specifically, the judge observed that “Bolmer did not allege that these aliens would not or could not have resided in the United States without renting apartments in Connolly Properties’ buildings.”

Further, Fuentes concluded that “defining the conduct at issue in this case as encouraging or inducing runs the risk of criminalizing actions contemplated by federal law and undermining the federal system of immigration enforcement.”

– Pat Murphy

patrick.murphy@lawyersusaonline.com

The Fifth Amendment protected a child pornography suspect from having to decrypt his computer hard drives in response to a grand jury subpoena, a federal appeals court ruled yesterday. 

“[W]e hold that [the suspect’s] decryption and production of the hard drives’ contents would trigger Fifth Amendment protection because it would be testimonial, and that such protection would extend to the government’s use of the drives’ contents,” wrote Judge Gerald Bard Tjoflat of the 11th Circuit.

The court’s decision in U.S. v. Doe overturns a civil contempt order against a “John Doe” suspect in a child pornography investigation. Florida investigators identified several Internet protocol (IP) addresses in connection with the sharing of explicit materials involving underage girls. Investigators linked the IP addresses to hotel rooms registered to Doe and in October 2010 tracked the suspect to a hotel in California.

Officers seized two laptops and five hard drives discovered as a result of a search of Doe’s room, but FBI forensic examiners were unable to access certain portions of the hard drives that they suspected contained child pornography. With investigators hitting a brick wall, a federal grand jury in Florida issued a subpoena requiring Doe to produce the unencrypted contents of his laptops and hard drives.

Naturally, Doe responded by invoking his Fifth Amendment privilege against self-incrimination and refused to comply with the subpoena.

In an effort to get around the Fifth Amendment, federal prosecutors asked the district court to grant Doe immunity limited to “the use [of Doe’s] act of production of the unencrypted contents” of the hard drives. This limited grant of immunity purportedly would still allow the government’s derivative use of contents of the drives as evidence against him in a criminal trial.

Persuaded by the government’s arguments, the district court concluded that Doe’s act of decryption and production would not constitute “testimony,” thus alleviating Fifth Amendment concerns. Accordingly, the district court granted Doe immunity as requested by the government, required him to respond to the subpoena, and cited him for contempt when he refused to do so.

In the 11th Circuit’s decision reversing the contempt judgment against Doe, Judge Tjoflat explained that the district court was just plain wrong when it concluded that that Doe’s act of decryption and production would not constitute testimony under the Fifth Amendment.

“We conclude that the decryption and production would be tantamount to testimony by Doe of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files,” Tjoflat said.

Further, the court rejected the government’s contention that Doe’s act of production could not be deemed testimonial under the “foregone conclusion” doctrine.

As Tjoflat explained, the “foregone conclusion” doctrine essentially provides that an act of production is nontestimonial – even if it reveals facts pertinent to the existence, location, possession, or authenticity of the subpoenaed materials – if prosecutors can show with “reasonable particularity” that they already knew of the materials, making any testimonial aspect a “foregone conclusion.”

Explaining why the foregone conclusion doctrine did not apply here, Tjoflat wrote that “[n]othing in the record before us reveals that the government knew whether any files exist or the location of those files on the hard drives; what’s more, nothing in the record illustrates that the government knew with reasonable particularity that Doe was even capable of accessing the encrypted portions of the drives.”

In overturning the contempt order against Doe, Judge Tjoflat also pointed out that the district judge was mistaken in limiting Doe’s immunity to the government’s use of his act of decryption and production, while allowing the government derivative use of the evidence disclosed by his compliance with the subpoena.

“Immunity coextensive with the Fifth Amendment requires both use and derivative-use immunity,” the judge explained. “The government’s offer of act-of-production immunity clearly could not provide the requisite protection because it would allow the government to use evidence derived from the immunized testimony. Thus, because the immunity offered here was not coextensive with the Fifth Amendment, Doe could not be compelled to decrypt the drives.”

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Officer Hasheen Basil probably didn’t imagine that he’d wind up herding Black Friday shoppers when he signed on to become a member of the Philadelphia Police Department.

He also probably never thought that a simple push in the back might amount to a violation of a shopper’s Fourth Amendment rights.

Thursday, a federal judge in Pennsylvania decided that a simple push is enough to support a §1983 claim for excessive force.

The lawsuit was brought by Michael P. Bannan. In the early morning hours of Nov. 26, 2010, Bannan somehow allowed himself to be trapped into going Black Friday shopping with his wife and daughter at a Philadelphia Walmart.

Bannan and his wife and daughter arrived at around 1:30 a.m. and duly lined up in the “cattle chute” that Walmart had set up at the entrance to control the flow of shoppers into the store. Once inside, they discovered that the shopping carts were all gone.

Displaying a fundamental ignorance of the dynamics of Black Friday shopping, Bannan made the mistake of thinking that it would be a simple matter for him to go back outside, get a cart from the parking lot, and then return to the store. 

Grabbing a cart outside, Bannan turned around only to be faced with once again navigating the cattle chute. Bannan evidently thought he had obtained squatters rights by making it to the store entrance the first time, so he attempted to rejoin his family by lifting the cart over the barrier separating the entrance from the exit at the front of the store.

As Bannan tried to perform this maneuver, he was confronted by Officer Basil and Officer Margaret Donnelly, who were trying to maintain some kind of order in the Black Friday madness.

The officers would later claim in their respective depositions that Bannan was intoxicated at the time. Bannan disputed that claim, but admitted that he had had two beers before going shopping, presumably to stiffen his resolve.

Anyhow, perceiving a breach of Black Friday etiquette, the officers told Bannan to leave. In order to help him along, Basil grabbed Bannan by the arm and escorted him away from the entrance.

Bannan went back to his car and stewed for about ten minutes before deciding to head back into the store to go shopping with his family. But Bannan had learned his lesson and this time followed store procedure by walking through the cattle chute to the store entrance.

However, at the end of the cattle chute, instead of a cheerful welcome by a smiling Walmart greeter, Bannan was confronted by Officer Basil. The police officer had meant what he said when he told Bannan to leave. After asking, “What, are you f-ing stupid?”, Basil grabbed Bannan’s arms, and moved him away from the entrance area.

There’s a dispute as to what happened next. Bannan claims that he did nothing threatening and did nothing to resist the officer in any manner.

The police office had a different account of what occurred. According to Basil, Bannan objected to being moved and “stiffened-up” to resist the officer’s efforts to lead him away from the store.

There is no dispute that, as Basil escorted Bannan away from the store entrance, Basil pushed Bannan in the back. The store’s security camera confirms this fact.

The officer’s push caused Bannan to fall to the pavement. Bannan claims that he was injured in the fall. In any event, he requested an ambulance at the time and was taken to the hospital.

Next came the inevitable §1983 suit against Basil in which Bannan alleged that the officer used excessive force in violation of his Fourth Amendment rights.

Basil moved for summary judgment, arguing that one shove is not excessive as a matter of law.

U.S. District Judge Legrome D. Davis agreed with the general proposition that not every push or shove violates the Fourth Amendment, but pointed out that whether a particular push or shove is excessive must be evaluated under the standard of reasonableness.

The judge concluded that Bannan raised a jury issue on this point based on his allegation that he did nothing to resist Officer Basil as he was being escorted from the Walmart.

“Basil says Bannan resisted, while Bannan says he did not,” the judge explained. “We have reviewed the surveillance video of the incident and find it inconclusive on the resistance issue. Of course, if Bannan resisted, Basil’s shove seems much more reasonable. In light of this genuine issue of material fact, we cannot grant summary judgment.”

Moreover, the judge found that Basil was not entitled to qualified immunity:

[W]e believe that a reasonable officer would know … that it would be excessive to shove a non-resisting, non-threatening, non-armed man in the back hard enough that he falls to the ground, merely to move him away from a Walmart entrance and arrest him for disorderly conduct. This is particularly true if the officer did not first verbally warn the individual not to enter the store, as Bannan contends here. Stated differently, the right not to be pushed in the back by a police officer for no legitimate reason is clearly established, even if no precedent addresses these precise factual circumstances. 

 (Bannan v. Philadelphia) 

– Pat Murphy

patrick.murphy@lawyersusaonline.com

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