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What's Up in the 8th

Our old friend allied offenses drops by for a visit (four of them, in fact), but the state learns again that the 8th District is not their friend on 4th Amendment cases, as the court hands down only a dozen decisions this week, eleven of them criminal.

In State v. McCord, the cops get an anonymous tip that a black Hummer's parked in front of a certain address, and the occupants are engaged in drug activity.  They go to that address and see the black Hummer parked in front.  No drug activity is noted, but they decide this bears a closer look; one cruiser pulls in front of the Hummer while another pulls alongside it.  The officers approach the vehicle and ask the occupants to show their hands.  One doesn't, and makes "furtive movements," so the police order the occupants out of the vehicle, and when one gets out, a bag of heroin drops from his pants leg.

The state argued that the officers' approach of the vehicle was merely a consensual encounter, and the stop didn't begin until the officers saw the "furtive movements."  That's an important distinction, because the law's very well-established that an anonymous tip can't form the basis for a stop unless the police observe the incriminating aspects of the tip.  One judge buys it, but the other two don't, and they're right.  The majority notes that the two police vehicles hemmed in the defendant's car, essentially creating a stop.  What's more, although people certainly have the right to walk up to my car in the street, most of them don't do so shouting "let's see your hands."  That's more than sufficient "show of force" to constitute a stop.

The state fares no better in State v. Dailey, where a Metropolitan Housing cop sees a car driving slowly, which prompts his attention.  He checks to see whether the car is stolen, and dispatch tells him that it isn't, but that the owner's deceased.  He stops the vehicle, and is told by the driver that the car belongs to her father, who just died.  After he has the driver exit the vehicle, he shines a flashlight in her purse as she is getting her ID and observed a pill bottle, which turned out to contain a single pill of Ecstasy.  The trial judge tossed this, and the court affirms, noting that once the police officer determined the car wasn't stolen, that should have been it; learning that the owner was deceased didn't give a basis for the stop.  Then the court piles on, noting that it's "troubled" by the officer's assertion that the Metro Housing Authority has a deal whereby their officers have citywide authority to conduct stops (none of this happened on Metro property), and tops it off by basically calling him a liar and suggesting that he didn't learn the owner was deceased until after the driver told him that.

Sometime back, I suggested that the best way of resolving the allied offense mess is having courts rule on every possible permutation of crimes, and that effort continues apace this week.  Are felonious assault and engaging in gang activity allied offenses?  I can't imagine any reason they would be, and neither can the court in State v. MunsonIf you drive drunk, have an accident, and injure your two passengers, can you be convicted of two counts of aggravated vehicular assault and given consecutive sentences for them?  Absolutely, says the court in State v. Buitrago; when a crime involves harm to an individual, you can be convicted and sentenced for each individual you harm.

In State v. Underwood the Supreme Court laid to rest the notion that a defendant waives an allied offense argument by pleading guilty; in fact, the defendant doesn't even have to object at the time, because failure to properly merge offenses is plain error.  Unfortunately, a plea hearing doesn't provide nearly the same record that a trial does in determining the issue of whether the offenses were indeed allied.  That's the problem in State v. Bias, where the defendant had pled to sexual battery and abduction, and argued that the two should have merged.  In a 2002 case, State v. Banks, the court had remanded a plea to kidnapping and rape back for a hearing to determine whether the two were allied.  (In fact, Bias had originally been charged with those offenses.)  The court takes the same tack here, kicking it back to the trial judge for a hearing to sort it all out.

State v. Cooper raises one more argument about allied offenses.  Cooper had pled to four counts of pandering sexually-oriented matter involving a minor, and he argued that two of them should have merged because the indictment alleged they were committed on the same day.  The offenses, though, related to two separate movie files on Cooper's computer, and "this court has previously held that multiple convictions are allowed for each individual image because a separate animus exists every time a separate image or file is downloaded and saved."

The more interesting aspect in Cooper arises from this portion of the opinion:

In mitigation, Cooper's ex-wife made a statement on his behalf. She confirmed that she separated from Cooper because she caught him spying on her two teenage daughters through a peephole in the attic around the year 2000.

Some mitigation, huh?  To be sure, the ex-wife did say that she'd forgiven Cooper and reconciled with him, and that he was "working hard to get help."  Still, the best argument (and often the only one) you can make in these cases is that the guy just looks at pictures on the computer, and that's diluted by any showing that he's taken to looking for actual victims, and when that could be his own daughters, well...  Cooper argues that the judge improperly considered the evidence about "peeping" in fashioning his sentence (16 years, out of a possible 36), but "a defendant's uncharged yet undisputed conduct may be considered in sentencing without resulting in error when it is not the sole basis for the sentence," and here the record indicates it wasn't the "sole" basis.

I think I would have left the ex-wife at home.


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