Learning Center
Plans & pricing Sign in
Sign Out

This week appellate update Criminal Law Institute arizona dui lawyer


									SOSSAMON v. TEXAS, No. 08-1438 (April 20, 2011)

(Opinion by Thomas, J. Dissenting opinion by Sotomayor, J., joined by Breyer, J.
Kagan, J., took no part in the consideration or decision of the case)

1.     SOVEREIGN IMMUNITY: Restriction of Religious Worship
       After the Religious Freedom Restoration Act of 1993 was held unconstitutional as
applied to state and local governments because it exceeded Congress’ power under §5
of the 14th Amendment, Congress passed the Religious Land Use and Institutionalized
Persons Act of 2000 (RLUIPA). RLUIPA targeted two areas of state and local action:
land–use regulation, and restrictions on the religious exercise of institutionalized
persons. It also provided an express private cause of action for appropriate relief
against a government, including, States, their instrumentalities and officers, and
persons acting under color of state law. Petitioner Sossamon, a Texas prison inmate,
sued Respondents, the State and prison officials, seeking injunctive and
monetary relief under RLUIPA for prison policies that prevented inmates from
attending religious services while on cell restriction for disciplinary infractions
and that barred use of the prison chapel for religious worship. The District Court
held that sovereign immunity barred Sossamon’s claims for monetary relief and granted
summary for the State. The 5th Circuit affirmed, holding that the statutory phrase
“appropriate relief against a government” did not unambiguously notify Texas that its
acceptance of federal funds was conditioned on a waiver of sovereign immunity to
claims for monetary relief.
       The SCt held: (1) the states, by accepting federal funding, do not consent to
waive their sovereign immunity to private suits for money damages under
RLUIPA; (2) sovereign immunity principles enforce an important constitutional limitation
on the power of the federal courts; (2) a State, however, may choose to waive its
immunity but the test for determining whether it has done so is stringent, and the state’s
consent to suit must be “unequivocally expressed” in the relevant statute’s text – a
waiver will be strictly construed, in terms of its scope, in favor of the sovereign.


CASTLEBERRY, 01-10-00158-CR (Tex.App.-- Houston [1st Dist.] 4-28-11)

Sexual assault from the 177th District Court, Harris County. Affirmed.

1.     SEARCH: No Standing
       Darren Castleberry was charged with two sexual assaults of a child under 17,
and two sexual assaults of a child under 14. He pleaded guilty to sexual assault of a
child under 17 without an agreement and not guilty in the remaining charges, and
waived his right to a jury trial. The trial court found Castleberry guilty of the two charges
of sexual assault of a child under 14, and assessed punishment of 20-years
imprisonment for sexual assault of a child under 17, and life for sexual assault of a child
under 17. He argued the trial court erred in denying his motion to suppress. Castleberry

started sexually assaulting his stepdaughter and her classmate, when they were eight-
years-old. He would photograph the girls while they engaged in sexual conduct, plying
them with alcohol and instructing them on what to wear and how to pose. When
Castleberry took an overseas job, he gave his stepdaughter a lockbox and key to keep
for him while he was gone. He told her to destroy it and its contents if anything
happened to him. The stepdaughter, who was 17-years-old at the time, agreed, and
stored the lockbox in her closet at her grandfather’s house. Castleberry remained
overseas for several years. When the stepdaughter was 19-year-old, she told her
mother about the sexual abuse. Her mother called the police. The stepdaughter was
concerned that Castleberry would kill her, so she quit her job in Houston and moved to
her uncle’s home in Dallas a few days later. While traveling there, the stepdaughter
called her mother, told her about the lockbox, and asked her to give it to the police. Prior
to taking it to the police, the mother opened the lockbox and found computer disks,
floppy disks, printed photographs, and other materials. On one of the disks, Castleberry
had written “For My Eyes Only.” The mother opened the disc and it contained over 300
pornographic images of the two girls. When Castleberry learned that criminal charges
were filed, he quit his job in Kuwait and became a fugitive. Approximately three years
later, he was arrested in Thailand, and returned to Texas. Castleberry argued the
warrantless seizure of the lockbox violated his privacy rights under the state and
federal constitutions. The CA held: (1) a “seizure” of property occurs when there is
some meaningful interference with an individual’s possessory interests in that property,
and an Accused has standing to contest the seizure of personal property under the
Fourth Amendment only if he has a possessory interest and a legitimate expectation of
privacy in the property; (2) in claiming that he had a reasonable expectation of
privacy in the lockbox, Castleberry relied on evidence that: (a) he never intended
to abandon the lockbox; (b) he wanted his stepdaughter to keep the lockbox safe
for him while he was overseas; and (c) he never gave anyone authority,
permission, or consent to open or view the contents of the lockbox, except for his
instruction that his stepdaughter destroy the lockbox and its contents if anything
should happen to him. He compared his agreement to a bailment agreement. But it
is well-settled Texas law, that a minor is bound by an agreement only if she chooses to
be, and the age of majority in Texas is 18 years; (3) Castleberry could not reasonably
rely on his agreement with his 17-year-old stepdaughter to protect his privacy in the
lockbox and its contents; (4) further, the relevant question is not whether an effective
bailment existed, but whether the stepdaughter had mutual access to and control over
the lockbox, and Castleberry gave the lockbox and its key to his stepdaughter before he
went overseas – thus he made no effort to secure the privacy of the lockbox’s contents
as against his stepdaughter because he gave mutual, if not superior, access to and
control over them; (4) Castleberry never forbade the stepdaughter from accessing
the contents of the lockbox, and he indicated that he assumed the risk that his
stepdaughter would consent to its seizure – and by giving the stepdaughter full
access to and control over the lockbox and its contents, he could not have a
reasonable expectation of privacy in them, accordingly, Castleberry lacked
standing to challenge the seizure, and the trial court correctly denied the motion
to suppress.

EX PARTE COLEMAN, 04-10-00672-CR (Tex.App.-- San Antonio 4-27-11)

Jeopardy writ from the 198th District Court, Kimble County. Relief denied.

1.      JEOPARDY: Mistrial
        John Coleman’s trials for aggravated sexual assault and indecency ended in a
mistrial at his request based upon statements made by the prosecutor. Coleman’s wife
testified that she was a CPS caseworker involved in termination cases. She told the
jury she did not believe Coleman to be a child molester, that he had a sensitive nature,
was good with children, had a good reputation for being safe around children in their
community, and hundreds of people believe he could not have committed the crimes.
During cross-examination, the prosecutor questioned her about her familiarity
with child forensic interviews, and implied that there was such an interview in this
case by asking, “Okay. You understand that it would be improper under the Rules
of Evidence for the State to show this to the jury because it‟s all hearsay. We‟re
not allowed – ” The prosecutor also asked,“Do you know just – this is just if you
know, only if you know. Do you know whether or not the State of Texas is
allowed to show in District Court a forensic video?” Counsel objected at a bench
conference that the witness was not a legal expert, and that the prosecutor was
implying” that he had certain evidence that was not brought forward. The State
responded, “I’m not implying. I’m saying it. We have certain evidence we have not
shown, the forensic interviews. We are not allowed under the Rules of Evidence, and
this attorney knows it.” The State argued the Defense opened the door by creating a
false impression with the jury that the State could show the video interview. Counsel
moved for a mistrial based on the “blatant” misconduct of the prosecutor. The
court granted a mistrial, and issued an order stating it ruled that “there is no
evidence in this case that the prosecutor intentionally tainted the case on trial to
manipulate the Defendant into asking for a mistrial and the mere showing that the
prosecutor recklessly engaged in conduct that required a mistrial is not sufficient
to bar a retrial.” Coleman filed a writ application in each case alleging that the trial was
not going well for the prosecution and the prosecutor “intentionally, knowingly and
recklessly goaded” Coleman into requesting a mistrial.” The court considered the writ in
a non-evidentiary hearing, and denied all relief, and reiterated its earlier ruling that the
prosecutor did not intentionally goad the defense into requesting a mistrial. The CA
held: (1) a retrial is not barred by double jeopardy unless the prosecutor engaged in the
conduct with the intent to provoke the defense to request a mistrial or the prosecutor
intentionally engaged in the conduct with the intent to avoid an acquittal, and the burden
is on the applicant to prove his allegations by a preponderance of the evidence; (2)
Coleman did not met his burden of providing a sufficient record to prove his
allegations that the prosecutor intentionally goaded him into requesting a mistrial
because the trial “was not going well for the prosecution” and the prosecutor
sought to avoid an acquittal: (a) he provided only excerpts from the testimony of
two witnesses, and one of them testified Coleman signed a confession and thus it
cannot be concluded the trial was not going well for the prosecution.

BAGGETT, 06-10-00193-CR (Tex.App.-- Texarkana 4-28-11)

DWI from the 4th District Court, Rusk County. Reversed.

1.      GUILTY PLEA: Insufficient Evidence of Guilt
         Pamela Baggett entered an open plea of guilty for felony DWI. She challenged
the sufficiency of the evidence to substantiate her guilty plea as required by
Article 1.15 which requires the State to introduce evidence of guilt. A judicial
confession is usually sufficient so long as it embraces every constituent element of the
charged offense, but a judicial confession that omits an element of the offense is
insufficient to support a guilty plea. A guilty plea, even if the Defendant states that he
or she is pleading guilty to the charges in the indictment under oath, does not
constitute a judicial confession because the Defendant is merely entering a plea,
and is not confessing to the truth and correctness of the indictment or otherwise
providing substance to the plea. The State conceded that it did not offer a written
stipulation of evidence, and there were no written plea papers in the record. After
Baggett entered a guilty plea and pled true to the enhancement counts, the State did
not offer any evidence of the crime or that Baggett pled guilty because she had
committed the offense. The CA held: (1) Article 1.15 requires evidence in addition to,
and independent of, the plea itself to establish guilt, and pleading guilty to the
charges in the indictment does not constitute a judicial confession and does not
otherwise supply evidence to support the plea under Article 1.15; (2) failure to
present sufficient evidence to support the finding of guilt was not raised at trial,
however, this statutory directive falls within the absolute or systemic requirement
category, and a claim of error for noncompliance is not forfeited or waived by the failure
to object.

UNITED STATES v. WARREN, No. 10–1598 (3rd Cir. 4-21-11)

Intent to distribute 50 or more grams of crack cocaine and felon in possession of a
firearm. Affirmed.

1.      CONFESSION: Miranda Warning
        After Warren was arrested, he told the police that he wanted to talk to them. An
officer told Warren that he had the right to remain silent. Anything you say can and will
be used against you in a court of law. You have the right to an attorney. If you cannot
afford to hire an attorney, one will be appointed to represent you without charge before
any questioning if you wish. Should you decide to talk to me, you can stop the
questioning any time. The officer did not read this warning from a card, but rather
recited it from memory. Warren argued the officer's testimony evinced a deficient
Miranda warning because it failed to advise him of his right to an attorney after
questioning commenced. The CA held: (1) after Miranda, the Supreme Court has
consistently refrained from constructing a particular formula for the warning, and stated
reviewing courts are not required to examine Miranda warnings as if construing a will or

defining the terms of an easement. The inquiry is simply whether the warnings
reasonably conveyed to a suspect his rights as required by Miranda; (2) the officer
warned Warren of his right to counsel without any reference to whether it
commenced or ceased at any particular time. Warren was told in a
straightforward manner: “[y]ou have the right to an attorney.” Therefore, it cannot
be said that the warning explicitly stated a temporally-limited right to counsel; (3)
the lack of any express reference to the right to counsel during interrogation did not
undermine the validity of the warning.

TICE v. JOHNSON, No. 09–8245 (4th Cir. 4- 20-11)

Application for federal 28 U.S.C. §2254(a) habeas corpus relief. Relief granted.

1.      LAWYER: Ineffective
        Omar Ballard, Joseph Dick, and Derek Tice were charged with the rape and
stabbing murder of Michelle Bosko. A jury convicted Derek Tice, but his conviction was
reversed. At the second trial, the Commonwealth built its case on two evidentiary
pillars. The first was the eyewitness testimony of Joseph Dick, who, in 1999, had
pleaded guilty to Michelle's rape and murder. Dick lived in an apartment cater-
cornered to the Boskos. According to Dick, on the evening before Michelle's body was
discovered, he was at his apartment with Daniel Williams, Eric Wilson, and four other
men whom Dick hardly knew: Geoffrey Farris, Rick Pauley, John Danser, and Tice.
After listening to Williams speak provocatively about Michelle, the seven men became
excited and knocked on her door, but she would not let them enter. The group
dispersed to the parking lot, where they encountered Ballard, whom Michelle had met
and trusted. Ballard knocked on Michelle's door, and when she opened it, everyone
rushed in. Dick testified that all of the men raped Michelle and then took turns stabbing
her. The second pillar was Tice's signed confession, admitting the murder and
rape. Tice's confession contained three incontrovertible errors or omissions of fact: (1)
there was no evidence of forced entry into the premises, whether from marks made by a
claw hammer or otherwise, as claimed by Tice; (2) although Tice said that he
ejaculated, the only DNA evidence found at the crime scene was linked to Omar
Ballard; (3) Ballard undeniably raped Michelle, but his name or any reference to him
was not in Tice's confession. A motion to suppress this confession was not filed in
spite of the fact that the police ignored Tice‟s invocation of his right to remain
silent. The jury convicted Tice of rape and murder, and the conviction was affirmed on
appeal. Tice filed a state writ of habeas corpus alleging that: (1) the Commonwealth had
frustrated due process by improperly influencing Ballard to remain silent; (2) the trial
judge erroneously excluded evidence favorable to the Defense that bore on the
probative value of the confession; and (3) Tice had been ineffectively assisted by
counsel at both the trial and appellate stages. The writ judge, in granting the writ,
devoted the lion's share of his opinion to discussing Tice‟s claim that Tice's
Counsel had been ineffective by failing to move to suppress the confession on
the grounds that Tice had invoked his right to answer no further questions. The
judge evaluated Tice's statement that “he decide[d] not to say any more” in the context

of the applicable law: “When a Defendant has received a Miranda warning and waived
his right to remain silent, as the petitioner did, the waiver will be presumed to continue
throughout the interrogation until the Defendant “manifests in some way which would be
apparent to a reasonable person his desire to revoke it.” The Virginia Supreme Court
left intact the judge’s rulings that Tice had unambiguously invoked his constitutional
right to stop answering questions, and that Tice's confession obtained thereafter would
have been suppressed had such a motion been made. The court also assumed that
Tice's lawyers had performed in an objectively unreasonable fashion by failing to so
move. Nevertheless, the court unanimously reversed the grant of the writ because Tice
had not shown sufficient prejudice to establish that the jury's verdict would have been
different had counsel not erred. The court's conclusion rested substantially on its
assessment of the strength of Dick's testimony. Tice filed an application for federal
habeas corpus relief pursuant to 28 U.S.C. § 2254(a). The district court granted the
writ on the same ground identified by the state writ judge, namely, that counsel‟s
failure to move to exclude Tice's confession as having been obtained in
contravention of his right to remain silent constituted ineffective assistance of
counsel. With respect to the prejudice prong of Strickland, the district court
concluded that Tice's confession provided compelling evidence of his guilt; that
if the confession had been excluded, the prosecution's case against Tice would
be left awash in doubt. The district court thus determined to grant habeas relief. The
CA held: (1) Tice was deprived of the assistance of counsel to the minimum degree of
effectiveness contemplated by the Sixth Amendment; (2) Detective Crank's notes of
his conversation with Tice were on record with the state circuit court for more
than three years prior to Tice's retrial, and Counsel had a copy of the notes in his
case file, and Strickland established in no uncertain terms that counsel has a
duty to make reasonable investigations or to make a reasonable decision that
makes particular investigations unnecessary; (3) a reasonable investigation of the
file in this case would have revealed Detective Crank's notes of Tice's statement
that “he decide[d] not to say any more.” On its face, such a declaration ought to
give pause to even the greenest of criminal defense lawyers. Counsel candidly
admitted at the state habeas hearing that “[t]he one part of the notes that do
concern me is where [Crank] said, „[Tice] told me he decided not to say any
more.‟ As I go back and look at that now, that statement may have generated
something, may have generated a motion.” Counsel expressed his belief that
“[t]here must have been some reason I didn't file it,” but, on the witness stand, he
could not conceive of one; (4) there was nothing that would excuse the Defense
team's failure to move to suppress Tice's confession, and if a motion to suppress had
been filed. the trial court would have had little choice but to grant it; (5) inasmuch as
Detective Ford resumed questioning Tice a scant 13-minutes after Detective
Crank had finished, did not at that time issue fresh Miranda warnings, and
continued to inquire of Tice regarding the same subject matter that prompted him
to attempt to stop answering, it is plain that the Norfolk Police Department did not
scrupulously honor Tice's request to break off the interrogation; (6) the district
court was correct in holding that in light of “the variety of accounts Dick had provided
and the lack of any significant corroboration of his testimony, a reasonable jury would

have grave doubts as to Dick's veracity regarding Tice's participation in the crime, and
without Tice's confession the Commonwealth's remaining evidence was so lacking as to
seriously jeopardize the prospects for conviction – had the confession been
suppressed, there was a reasonable probability that the jury would have returned a
different verdict.

UNITED STATES v. LUDWIG, No. 10–8009 (10th Cir. 4-22-11)

Possession of ecstacy. Affirmed.

1.      SPEEDING: Lawful Stop
        Sergei Ludwig was stopped for speeding. The trooper approached the car and
Ludwig rolled down his window. A strong waft of cologne “hit [the trooper] in the face” –
something the trooper testified is often used to mask the smell of illegal drugs. Ludwig
appeared “very, very, very nervous.” So nervous that his hands were trembling and he
had difficulty retrieving his wallet from his pocket. As the trooper wrote up the speeding
ticket, he asked Ludwig about his travel plans. Ludwig described himself as an “IT
administrator.” He said he was returning to New Jersey from California. He said his
employer had sent him to California to help a different company with a “server problem.”
He said he chose to drive, not fly, all the way out west. Yet, he said, he had stayed in
California only four days before beginning his trek back to New Jersey. Asked where he
had spent last night, Mr. Ludwig said he had slept in his car. During their talk, the
trooper noticed that Ludwig declined to make eye contact and remained very nervous.
The trooper also noticed that both the registration and proof of insurance for Mr.
Ludwig's car were in someone else's name. After he finished writing the ticket, the
trooper asked Ludwig if he would answer a few more questions. Mr. Ludwig said no.
Believing he had reasonable suspicion to detain Mr. Ludwig for further investigation, the
trooper told Ludwig that he thought there were drugs in the car. The trooper instructed
Ludwig to stand aside while he released a drug detection dog from his patrol car. The
dog alerted to Mr. Ludwig's vehicle. The trooper opened the trunk and the dog alerted
again. The trooper spotted a recently welded metal patch that seemed to conceal a
compartment. At this point, two additional troopers arrived and the officers found 11.3
pounds of ecstasy hidden in the compartment. Ludwig moved to suppress the drugs,
arguing that his detention and the search of his car violated the Fourth Amendment. The
motion was denied. After this, Ludwig discovered that all three troopers had vehicles
equipped with video cameras, and the government had produced only two videos.
When Ludwig complained about the missing video, the government replied that it had
been automatically deleted by a program that erases videos after a certain period of
time; the government asserted that its failure to save the video before deletion was
accidental. Learning all this, Ludwig filed a motion to dismiss the indictment. He also
filed a second motion to suppress. After entertaining additional evidence and argument,
the district court denied both motions. When it did, Ludwig entered a conditional guilty
plea while preserving his right to appeal the disposition of his suppression motion, his
motion to dismiss, as well as the sentence he eventually received. Ludwig challenged
the constitutionality of his initial stop, his extended detention, and the search of his

vehicle The CA held: (1) Ludwig argued probable cause was lacking in his case
because the trooper's radar gun was unreliable due to the trooper's allegedly
shoddy maintenance habits. This argument was rejected because (a) the district
court found none of this persuasive and credited the radar gun's reading; (b) an
officer's visual estimation can supply probable cause to support a traffic stop for
speeding in appropriate circumstances; (c) the district court found the trooper's
visual estimate credible and there is no reason to believe otherwise.

        Ludwig argued says his continued detention after the trooper finished
writing the ticket was not reasonable. The government conceded that the trooper
detained Ludwig beyond the time it took to issue a traffic ticket. Neither does (nor can)
the government argue that Ludwig consented to this continued detention. So to justify
Ludwig's continued detention, the government to show that it had reasonable suspicion
to believe criminal activity may be afoot. The CA stated several considerations, in
combination, leads to the conclusion that the reasonable suspicion standard was
satisfied: (1) Ludwig didn't stop after the trooper signaled him to pull over –
instead, he moved onto the shoulder of the highway but then, for no reason
compelled by traffic conditions, continued to drive for about a quarter mile to a
half a mile. In all, Ludwig took 44 seconds to stop after crossing the shoulder. The
trooper testified that he thought this behavior “unusual,.” and this court has repeatedly
held that a driver's failure to stop his vehicle promptly is a factor that can contribute to
reasonable suspicion of criminal activity; (2) the trooper noticed an overpowering
smell of cologne when Ludwig rolled down his window. The trooper testified,
based on his experience, that strong masking odors are often used by drug
couriers to hide illegal drugs. And, though the use of cologne or perfume is certainly
consistent with lawful activity, our cases have acknowledged that it is “commonly used
to mask the odor of drugs” and so can contribute to a reasonable suspicion calculus; (3)
Ludwig was driving a vehicle registered to a third party who wasn't present. This
is a factor we “have often held” may “indicat[e] a stolen vehicle or drug trafficking”; (4)
Ludwig's account of his travel was suspect. He claimed that he was called out to
San Jose – a hub of the computer industry – all the way from New Jersey to fix a
computer server problem. At the least, this suggested the server problem was no mere
glitch but something critical, requiring specialization. Yet if this were true, it was surely
curious that the San Jose company would be willing to wait for Ludwig to drive cross-
country. And curiouser still that the company would refuse to pay for lodging or a rental
car. Considering these oddities together, the trooper reasonably regarded Ludwig's
claimed travel plans as suggesting that all was not as it seemed; (5) Ludwig was
exceptionally nervous throughout the encounter. Of course, everyone gets nervous
when stopped by a police officer. And for this reason we have emphasized – repeatedly
– that “nervousness is of limited significance in determining reasonable suspicion.” At
the same time, this court has just as consistently held that the fact we all get nervous
when stopped supplies “no reason” to ignore” entirely evidence of unusually extreme or
prolonged nervousness.

3.      NARCOTIC DOGS: Reliability
        The question remains whether and when, during this detention, the trooper
gained probable cause to permit his search of the car consistent with the Fourth
Amendment. It is well settled that a drug dog's sniff of the outside of a car is not itself a
search for Fourth Amendment purposes and so doesn't require a showing of probable
cause to justify it. But it is equally well settled that a trooper's opening of a car trunk is a
search and does require probable cause to make it constitutional. By the time the
trooper opened Ludwig's car, of course, the drug dog had alerted to the presence of
narcotics. And a positive alert by a certified drug dog is generally enough, by itself, to
give officers probable cause to search a vehicle. Seeking to defeat this conclusion,
Ludwig argued this dog wasn't reliable. He said the dog's records – spanning
some 200 pages in the record and covering 7 years' worth of data – revealed that
its alerts have identified a seizable quantity of drugs only 58% of the time. He
argued this was not enough to establish probable cause. And it surely goes without
saying that a drug dog's alert establishes probable cause only if that dog is reliable. The
CA held: (1) none of this means courts must mount a full-scale statistical inquisition into
each dog's history. Instead, courts typically rely on the dog's certification as proof
of its reliability. United States v. Kennedy, 131 F.3d 1371, 1378 (10th Cir.1997) (“[W]ith
a canine, the reliability should come from the fact that the dog is trained and annually
certified to perform a physical skill.”) Of course, if a credentialing organization proved to
be a sham, its certification would no longer serve as proof of reliability; (2) the judicial
task is limited: to assessing the reliability of the credentialing organization, not
individual dogs. And in this case there was no suggestion that the California
Narcotic Canine Association, the organization that credentialed the drug dog in
this case, was all smoke and mirrors; (3) probable cause doesn't require an officer's
suspicion about the presence of contraband to be “more likely true than false”; ; (4)
several circuits have upheld searches involving dogs with track records on par
with this one. See Limares, 269 F.3d at 798 (62% accuracy rate suffices to
demonstrate probable cause); United States v. Anderson, 367 F. App'x 30, 33 (11th
Cir.2010) (unpublished) (holding dog was reliable with a 55% accuracy rate);
United States v. Koon Chung Wu, 217 F. App'x 240, 246 (4th Cir.2007)
(unpublished) (“[A]n accuracy rate of 60% is more than reliable enough for [the
dog's] alert to have established probable cause”).

3.     VIDEO DESTROYED: No Proof of Bad Faith
       Ludwig argued that the government acted in bad faith when it destroyed
the video footage from the trooper's patrol car. He argued the Constitution required
the district court to dismiss the indictment. The CA held: (1) California v. Trombetta,
467 U.S. 479, 488–89 (1984) held that the duty to preserve evidence must be
limited to evidence that might be expected to play a significant role in the
suspect's defense; (2) to qualify as constitutionally material in this sense, the evidence
must: (a) possess an exculpatory value that was apparent [to the police] before the
evidence was destroyed, and (b) be of such a nature that the Defendant would be
unable to obtain comparable evidence by other reasonably available means; (3) if the
exculpatory value of the evidence is indeterminate and all that can be confirmed

is that the evidence was potentially useful‟ for the defense, then the Defendant
must also show (a) that the government acted in bad faith in destroying the
evidence; (4) Ludwig failed to demonstrate that the deleted videotape was of
such a nature that he would be unable to obtain comparable evidence by other
reasonably available means because: (a) he had two other videos of the traffic
stop from the vehicles of the other two troopers; (b) he had the video pf the
trooper who made the stop and this video offered the most comprehensive
account of the events

STUDENT LOANS: Drug Convictions: 20 U.S.C. § 1091(r), precludes federal financial
aid to college students convicted of federal or state drug offenses. The period of
suspension of aid varies from one year for simple possession and two years for sale for
first time offenders. The period of suspension increases with repeat offenders and can
result in permanent suspension of aid. Reinstatement requires taking an approved drug
rehabilitation course and passage of at least two no-notice urinalysis tests. Failure to
answer the question of prior drug offenses is considered an admission to conviction.
Lying about a conviction on an application constitutes a false official statement, a felony
offense under 18 U.S.C. § 1001.

COMMONWEALTH v. GARRISON, NO. 2010-CA-000042-MR (Ky.App. 4-15-11)

The Commonwealth of Kentucky appealed a suppression order. Reversed.

1.      ARREST: Handcuffing
        A Detective received a phone call from a known cooperating witness regarding
the whereabouts of Steve Alexis, a person of interest in an ongoing criminal
investigation regarding illegal drug sales. The detective knew that Alexis had
outstanding arrest warrants and had completed several “controlled buys” of illicit drugs.
The caller said Alexis was planning on leaving town for an extended period of time, and
that he was currently at a residence in Harrison County known for drug trafficking, and
was in possession of a firearm. The detective decided to serve the outstanding warrants
and requested assistance from the sheriff’s office and the state police. Upon arrival at
the residence, the officers saw Alexis and Garrison exit the home and get into a vehicle.
The officers did not know Garrison but recognized Alexis. With Garrison at the wheel,
the pair left the area. The detective and another officer followed in an unmarked police
vehicle, hoping back-up would arrive. After traveling some distance, but before other
officers could arrive, Garrison stopped and parked his vehicle between two apartment
buildings. Based on the circumstances, the detective thought it was necessary to
apprehend Alexis without waiting for the back-up officers to arrive. He and the
other officer Olin got out of the patrol car and, following the procedure for a
dangerous felony stop, did not approach Garrison‟s car but gave verbal
commands to Garrison and Alexis while remaining behind the protective barrier
of the car doors. Garrison, as the driver, was first ordered to exit and walk
backwards toward the officers with his hands raised. Once he reached the
officers, the officers patted him down for weapons. He was then handcuffed for

the officer‟s safety and escorted toward the rear bumper of the police cruiser.
Garrison was sweating profusely and his eyes were noticeably drooped as if he were
“half-asleep.” Garrison was placed on the curb while the officers turned their attention to
Alexis. Other officers soon arrived and noticed Garrison’s appearance and condition
and Garrison was arrested for DUI. Officers requested permission to search the vehicle,
but Garrison denied the request. A canine unit was called to the scene and arrived a
short time later. The canine alerted on the driver’s side door of Garrison’s vehicle.
Officers searched the vehicle and found multiple pills and drug paraphernalia containing
marijuana residue under the driver’s seat and in the center console. Garrison was
charged with trafficking in a controlled substance. He moved the to suppress all
of the evidence seized alleging the warrantless search of the vehicle violated the
mandates of Arizona v. Gant, ___ U.S. ___, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009).
The trial court granted the motion, and held the officers had “arrested” Garrison
when he was placed in handcuffs and that they had no probable cause to place
him under arrest. The Commonwealth appealed. The CA held: (1) the totality of the
circumstances must be considered in determining when a temporary detention turns
into an arrest, and there is no bright-line rule governing such a determination; (2) the
totality of the circumstances do not support the trial court‟s ruling that Garrison
was arrested at the moment he was placed in handcuffs: (a) the detective testified
that it was not his intention to place Garrison under arrest, but rather that he was
handcuffing Garrison for safety reasons because the detective had information
that Alexis was armed with a pistol; (b) there were only two officers present at the
time of the interaction, the uncertainty surrounding felony arrests, and the
knowledge that back-up officers would be delayed in arriving on-scene, the
detective believed it in everyone‟s best interests to temporarily restrain Garrison
to avoid the possibility of a violent or otherwise unfavorable confrontation; (c) the
decision to place Garrison under arrest was not made until further information
regarding his impaired status was gleaned by other officers; (4) the detective’s
actions were not tantamount to effectuating an arrest even though Garrison was placed
in handcuffs.


To top