Nothing new from the Supreme Court this week, although I made an appearance there. Rather, my blog did. Back in April, in State v. Taylor, the 8th District found that evidence had to be suppressed because of an illegal search, a result it arrives at with numbing regularity, due mainly to a police department which, as I've observed elsewhere, has no more understanding of the 4th Amendment than it does of the Rule against Perpetuities. The State appealed, as it also does with numbing regularity, and on the second page of its Memorandum in Support of Jurisdiction we find this:
. . . the ordered suppression is an anathema to 4th Amendment jurisprudence. Or as a local criminal defense blog so aptly stated,
"State v. Taylor can be introduced in evidence as Exhibit 135 in my case that the 8th District is the most 4th-Amendment friendly court in the state, if not the country."
And who might that local criminal defense blogger be? Why, Your Faithful Correspondent, of course; the quote is taken from my wrapup of the 8th District cases back then.
I'm not sure what the purpose of quoting me was. The argument seems to be that since a local criminal defense blogger believes the 8th District is "4th Amendment-friendly" and that Taylor is an example of this, Taylor must have been wrongly decided. The flaws in that reasoning, to use the term loosely, are self-evident. It apparently springs from a belief that a court's being solicitous for the constitutional rights of criminal defendants is to be frowned upon, and that the 8th District should instead emulate other districts, in which the legitimacy of an investigative stop is determined by using the standard of what a reasonable Gestapo agent would do. That belief might be one of the reasons that the prosecutors office here has done nothing to educate the police about their shortcomings in understanding search and seizure law, and why that office, while enjoying success before the Supreme Court in other areas, has been singularly unsuccessful in getting that court to accept search cases, much less overturn them.
Their luck is unlikely to change with Taylor. The Memorandum spends a lot of time arguing about how prior court decisions permit the police to detain a person after an investigatory stop by putting them in a police cruiser, without ever mentioning that Taylor was held for a half hour, without any basis for believing that she'd done anything wrong.
That rant out of the way, let's go on to what happened in the courts of appeals last week...
In 2010, the 2nd District held that felony murder and felonious assault which caused the death were allied offenses. The State appealed, and the Supreme Court reversed and remanded for consideration in light of State v. Johnson, which had overruled State v. Rance and held that the focus in determining whether offenses were allied was the defendant's conduct. On remand, the 2nd District in State v. Alsup holds that "upon review of State v. Johnson, we conclude that it provides more support for our prior decision, not less," and again finds the offenses were allied... Also on the allied offense front is the 4th District's decision in State v. Abdi, which found that felony murder and aggravated robbery were allied offenses. I handled the appeal, and I'll have more on that in the next few weeks... In State v. Wiley, the 5th District holds that the test to determine whether reverse a trial judge's decision not to grant a continuance to a defendant because of a prosecutor's discovery violation -- "whether there was a willful violation of the discovery rules, if foreknowledge would have benefited the accused in the preparation of his defense and whether the accused was unfairly prejudiced" -- is to be applied in the conjunctive, not the disjunctive: all three prongs have to be met...
The 2nd District reverses a restitution order in State v. Rose, finding nothing in the record to indicate that the trial court had considered the defendant's ability to pay; notable here is the court's correctly requiring the record to affirmatively demonstrate that, rather than engaging in the fiction that the judge must have done so... Does Crawford v. Washington bar a police officer from testifying in a suppression hearing what a witness told him? In State v. Rhines, the 2nd District says no, basing its ruling on decisions of the US Supreme Court which have held that hearsay that would not be admissible at trial can be admitted at a suppression hearing, because "the interests at stake in a suppression hearing are of lesser magnitue than those in the criminal trial itself"... In State v. Plastow, the 5th District rejects the argument that a defective imposition of post-release controls renders invalid a search conducted by his parole officer, finding that there is no basis for suppression when the officer's belief that PRC was properly imposed is "objectively reasonable"...
Gun rights update. In State v. Stone, the 2nd District holds that a weapons under disability conviction can be based upon a minor misdemeanor marijuana conviction, even though the latter does not constitute a criminal record. That's in keeping with a decision from the 1st District and an earlier decision from the 2nd. Most troublesome about the decision is that while Stone raised a 2nd Amendment argument (which I discussed here), the court mentioned it, then didn't even bother to address it. The court concluded that "that appellee's arguments would be better directed at the General Assembly than the judiciary" in getting the law changed. One might respectfully suggest that appellee's 2nd Amendment argument would be better received if courts understood the changes in the law in that area wrought by Heller and McDonald, and appreciated the fundamental nature of the right to bear arms.