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What's Up in the 8th

Reading the week's 8th District's opinions can be an exercise in drudgery.  (Hence, this blog's motto:  We read the opinion so you don't have to.)  That's not a slight on the judges; cranking out an opinion or two a week doesn't give rise to much occasion for creativity, and there's only so many times you can regurgitate the standard of review for manifest weight and sufficiency of the evidence, or explain what's required for consecutive sentencing, or recite one more time that a plea withdrawal has to be based on something more than a change of heart.  It's not for nothing that one commentator called judicial opinions the worst body of literature ever produced in the history of mankind.

But this week we have three interesting opinions on three relatively uncommon issues, so while that might not exactly call for the donning of party hats and favors, it's something.

I've mentioned before that one of the more uncomfortable positions for an attorney is when you're going against your client:  say, for example, he wants to withdraw his plea because you "coerced" him into taking it.  A variation on that theme emerges in State v. Montgomery, where the defendant appeals the denial of the motion to withdraw his guilty plea to murder and arson.  Montgomery claimed that his trial attorney had failed to tell him about some exculpatory evidence, and if he'd known about it, he would have gone to trial.  Whether the evidence was truly exculpatory was debatable, but more problematic was the prosecutor's reply, which contained an affidavit from the trial lawyer stating that he had indeed told Montgomery about the evidence. 

Montgomery tries to overcome the latter issue by arguing that the judge should have stricken the attorney's affidavit.  Obviously, this involves the issue of client confidentiality, although the trial judge held that these weren't "communications" because the affidavit didn't state precisely what the attorney said to Montgomery.  The panel finds this to be incorrect, for obvious reasons, but holds that the judge was right in refusing to strike the affidavit, noting the extensive case law which holds that a defendant claiming ineffective assistance of counsel waives confidentiality regarding those issues.  The ABA issued an opinion holding that information should only be disclosed "with prior judicial approval in the proceeding in which the claim is joined," but plenty of bar associations disagree.

You've worked out a good deal for your client, who was charged with selling a wide variety of drugs out of his gas station:  only one count out of the ten of drug trafficking, plus one of having a weapon under disability.  So you're a bit non-plussed when the judge gives your client the maximum three-year sentence on the drug trafficking, because one of the drugs he was selling was bath salts, which Hizzoner feels is particularly pernicious.  But wait!  That was one of the counts that was dismissed!

No matter, as the defendant (and lawyer) learn in State v. Dari.  The law prohibits a judge from basing his sentence on a crime that was neither charged nor proven, and if a jury acquits your client of rape but convicts him of gross sexual imposition, the judge can't impose a stiff sentence on the grounds that the jury got it wrong and should have convicted him of the rape charge.  But on a guilty plea, it's different:  the judge is permitted to consider the original charge in fashioning a sentence, and "the plea bargain does not preclude the trial court's consideration of the underlying facts in determining the appropriate sentence to impose."

In State v. Allen, the Lyndhurst police were vexed by a series of burglaries.  They got a tip about one of the burglars, went out to neighboring Lake County, surreptitiously entered the gated community where he lived (and they say crime doesn't pay), and attached a GPS device to his car.  They monitored his movements over the next few days, and tied him to the crimes.  All this happened before the Supreme Court held in United States v. Jones that the police needed a warrant for a GPS, but Allen's case was still chugging along when Jones came down, so Allen filed a motion to suppress, which the judge granted.

Hard to argue that the 8th District should overrule the US Supreme Court, so instead the State argued that the good faith exception should be applied, relying on the Supreme Court's 2011 decision in Davis v. US.  For those who click on links, I did a brief recap of the case here.  For those who don't, Davis had been arrested and placed in the cop cruiser, and a search of his car revealed a gun.  The judge denied a motion to suppress, and while Davis' case was on appeal, the Court held in Arizona v. Gant that a search of a car incident to the occupants' arrest was impermissible if the occupant wasn't within reaching distance of the car.  In doing so, the Court overruled its 27-year-old decision in Belton v. New York, which had adopted a bright line rule that police could search the interior of the car contemporaneous to the arrest of an occupant.  Davis didn't benefit from Gant; the Court held that the police couldn't be faulted for conducting the search, since it was legal at the time. The State argues that the police should similarly get a pass in Allen. 

There's a difference, though.  While the police in Davis could point to Belton to authorize their actions, the Allen court notes that there was no controlling law in the jurisdiction that the police didn't need a warrant for the GPS. 

Frankly, I doubt if any prosecutor, let alone a cop, would sit down to consider what the "controlling law of the jurisdiction" is before deciding to conduct a search.  That seems a very limiting construction.   The fact is that while there were few state cases on the subject, and all of them after the search in this case, the use of GPS devices had been wildly upheld in other state and Federal courts, with several US Supreme Court cases holding that observing a person's movement on a public road was not a "search" within the meaning of the 4th Amendment. 

There's probably more here than the standard pro-4th-Amendment bias of the 8th.  (And if you're going to be biased, being biased in favor of enforcing constitutional rights is the way to go.)  It's been especially hesitant about the use of GPS monitoring.  Two years ago (and a year before Jones), in State v. Jefferson, the 8th reversed a case for ineffective assistance because the attorney hadn't filed a motion to suppress the use of a GPS device (case discussed here), and basically used the analysis that the DC Circuit had used in throwing out the GPS search in Jones.

One other point is bluntly made in the penultimate paragraph of the court's opinion:

It has not been lost on this court that in addition to not obtaining a warrant prior to attaching the GPS tracking device to Allen's vehicle, the Lyndhurst detectives crossed into another jurisdiction by going into another county, under the cover of night, and entered a gated community to surreptitiously attach the device at issue. Thus, had a reckless wanton analysis been necessary, instead of Davis's application in the wake of Jones, it is arguable that the State's good-faith argument would have been tarnished by the procedure the Lyndhurst detectives employed to attach the GPS tracking  device to Allen's vehicle.

Yeah, that's a little creative.

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