What's Up in the 5th
As my countless legions of faithful readers know, I do a roundup of 8th District decisions every Tuesday, where I do an analysis of about four to six decisions from that court. I do a Case Update on Monday, where I have brief summaries of the decisions from the other districts. Every now and then, when I do the Case Update, I run into one that deserves a little more discussion than I can give it there. This week, I ran into two, and oddly enough, they're both from the 5th District, one on the new criminal discovery rules and one on a search. So let's take a look.
State v. Viera is the discovery case, and it's interesting because it addresses the requirements of the new CrimR 16(K), which became effective on July 1, 2010, that expert reports must be submitted to the other party no later than 21 days before trial. Viera was charged with theft and burglary, and the state called an expert at trial to testify about a fingerprint and a palmprint she found at the scene. Here's where things get funky:
- The new rule went into effect on July 1, 2010.
- The state provided the expert's report on the fingerprints prior to that.
- The state provided the report on the palm prints after that date. The opinion doesn't specify when, but it was apparently not within 21 days of the trial date of January 25, 2011.
- The rule also requires that a summary of the expert's qualifications be provided along with the report; here, the qualifications weren't provided until the day of trial.
The 5th District held that the failure to provide the summary of qualifications wasn't a discovery violation, deeming the issue "moot" because the the expert was already going to testify on the fingerprint report. That seems to miss the point: procedural rules generally are deemed to apply to pending cases, and so it could be argued that, even if there had been no issue with the palm print, the state should have supplemented the fingerprint with the expert's qualifications once the new rule took effect.
But that leaves the major issue: what is the remedy for a discovery violation? The judge offered the defense a continuance to prepare for the the palm print issue, but the defense declined, insisting that the appropriate remedy was exclusion of the testimony. The judge didn't buy that, and neither did the appellate court, citing Rule (L), which allows the court to modify any period specified in the rules "for good cause shown," and to make "such other orders as it deems just under the circumstances." The court says that provision is "essentially a codification of the case law favoring the trial court's discretion in fashioning remedies to satisfy justice."
I think they're right. The law has always been that the court should look first to the least onerous sanction for a discovery violation. That makes sense from a theoretical perspective -- I don't think it's a good idea to impose rules rigidly, without consideration of the underlying question of whether this helps achieve a just outcome -- and from a pragmatic perspective as well: although it was a prosecutor who screwed up here, it could just as easily have been a defense attorney. (Although a defense attorney might have more leeway, as I indicated in my post about State v. Fussell a month ago, where the court held that sanctions for the defendant's discovery violations have to take into account his 6th Amendment right to present a defense.)
I'm less enthralled with the decision in State v. Caldwell, which featured the Bullshit Traffic Stop of the Week®. While on a stakeout of a drug house, an officer observed a van drive down the street without its taillights illuminated. He pulled it over, and Caldwell, who was driving, produced a valid drivers license, but his passenger, it turned out, had an "active felony warrant" for failure to appear, and was removed from the van. Another officer approached Caldwell, and observed him "looking around the vehicle and moving his hands around a lot." He removed Caldwell from the van, patted him down, and felt a large bulge in Caldwell's pocket. Eschewing the Mae West inquiry, the officer asked Caldwell what it was, and Caldwell told him it was cash which he'd gotten when he'd just been released from jail, and told him further that he had a receipt for it in the van. The officer went to the van to retrieve it, and found it -- sitting underneath a baggie of crack cocaine.
The court goes through the steps, and gets them right, up to a point. The stop was lawful; traffic violations, no matter how trivial, suffice to warrant a stop. The stop could ordinarily be no longer than that necessary for the violation -- to give a ticket, something like that -- but here the arrest of the passenger necessarily prolonged the stop. A police officer doesn't need a reason to request an occupant to exit the vehicle; the courts have held that this isn't a sufficient invasion of privacy to constitute a violation of the 4th Amendment.
And then we come to the patdown. The state offered three factors in justification: the high crime area, the passenger's arrest, and Caldwell's "furtive movements."
Issues like the reasonable of a stop or a frisk are to be determined according to the "totality of the circumstances." That's basically an invitation to a judge or an appellate panel to engage in results-oriented decision-making, and come up with any result they want. The list of "circumstances" which are to be considered isn't exhaustive; there's no indication of how they're to be weighed.
To its credit, the 5th District goes through each one, and generally discounts them. The high crime area factor would be more significant if the van was somehow tied to the drug house the cops were watching, but it wasn't; Caldwell simply happened to be driving up the street. The "furtive gestures" were really nothing more than the expression of annoyance that he was being asked to exit the van, "an annoying, frightening, and perhaps humiliating experience," after he had been earlier told that he'd probably receive only a warning citation for the taillight violation. (In fact, the opinion contains a smorgasbord of great quotes from other cases about the significance, or lack thereof, of "furtive movement" testimony in general.)
So the court tosses the search, right? Wrong. Again, it correctly observes that no one factor is determinative, and that the combination of factors can mean more than the balance of each individual one; in other words, the whole can be greater than the sum of its parts. And here, it decides, the fact that the passenger had an outstanding felony warrant, coupled with the other factors, is sufficient to tip the scales in favor of allowing the patdown.
The problem with this is that the court essentially concluded that the officers had a reasonable suspicion that Caldwell was armed and dangerous simply because his passenger had a felony warrant for failure to appear. A felony warrant for, say, robbery or some other crime of violence might have been sufficient to create a reasonable suspicion that the passenger was armed; it would still be a stretch to extend that to Caldwell. But in the absence of anything to indicate that the passenger was armed and dangerous, it's hard to see how it could reasonably be inferred that Caldwell was.
I'm not saying that it's the wrong decision, it's simply not the one I would have made. And it gives me added comfort that I practice in the 8th District, where this search would have been bounced in a heartbeat.