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What's Up in the 8th

So when is an encounter consensual?  No, I'm not talking about my long-ago dating life, I'm talking about when The Man comes up to you on the street and starts asking questions.  The 8th District handled two of those this past week, with different results.  That, and an extended discussion (again) of allied offenses, are worth a look.

Did you know that Cleveland has a Violent Gun Reduction Initiative Program?  That's one of the things we learn from State v. Hood.  The other thing we learn is that the program apparently consists of a bunch of detectives driving around in a bunch of cars to "interact with members of the community who might have information about gang-related activity."

In Hood's case, while driving around in four-car procession, a detective spotted a male, Byarse, wearing a t-shirt with gang-related designs on it, and decided to stop and "interact."  Byarse was several feet away from a group of five or six people standing around a Malibu parked in the street.  The police pulled up next to, in front of, and behind the Malibu, and the nine detectives got out and encircled the group.  The detective testified that he didn't believe the Malibu was blocked in -- although I don't see how it couldn't have been -- but admitted that "the entire scene may have seemed dramatic to those individuals in the group."

Ya think?

Long story short, Hood, one of the members of the group, was found with a handgun.  He was acting kinda skeevy before the patdown, and it was hard to argue that the detective didn't have sufficient reasonable suspicion to conduct one at that point.  But the trial court concluded that the initial encounter was an investigative stop, and the detectives had no reasonable suspicion to conduct one, so everything that flowed from that initial stop had to be suppressed.

The panel affirms, and that's a relatively easy case.  The test for determining if an encounter is consensual is whether the suspect would feel free to walk away, and when you have nine detectives surrounding you and blocking in a car, that's a pretty coercive presence.

Another panel comes to the opposite conclusion in State v. Forester, and again, it's a fairly easy call.  A citizen informant calls the police and claims there's a man walking through the neighborhood looking into back yards.  The police respond and see Forester, who matches the physical description given by the caller, walking along the street.  The two officers get out and engage him in conversation, which by all accounts is a cordial one -- the cops acknowledge Forester was fully co-operative and polite -- but the conversation takes a different turn when one of the officers asks what's in Forester's pocket, and he indicates it's a knife.  That leads to an arrest for CCW and the discovery of items tying Forester to a burglary.

Again, the trial judge grants the motion to suppress, but this time the panel reverses.  The reasoning is murky; the majority opinion says that the officer's confrontation of Forester "constituted an investigative stop," but in the next paragraph says that initial counter was consensual, citing Terry v. Ohio, which has nothing to do with consensual encounters.

That doesn't mean the court got it wrong.  The lead case on consensual encounters is the Supreme Court's 1980 decision in US v. Mendenhall, where two DEA agents approached Mendenhall at the Detroit airport and asked to see her identification and airline ticket.  That was upheld as a consensual encounter, and the facts there are, if anything, worse for the government than the ones in Forester. 

The problem with the whole theory, of course, is that it's premised on the assumption that there ever is a time when someone, when approached by police officers who start asking him questions, would ever feel free to tell the cops to pound salt, and walk away. 

In State v. Velez, Velez and an accomplice rob a grocery store, and the accomplice stabs the store owner to death.  Velez cops to involuntary manslaughter -- "causing the death of another as a proximate result of committing a felony" -- and aggravated robbery.  He gets consecutive time, and argues on appeal that the two offenses should have merged. 

One might argue that the result is ordained by State v. Johnson, the Supreme Court's 2010 decision overruling State v. Rance, and focusing the defendant's conduct:  were the two crimes committed with the same act and animus?  (In Johnson, the court found that felony murder and felonious assault -- beating a child to death -- were allied offenses.)  Instead, the Velez panel relies on several cases which hold that the offenses of felony murder (similar to involuntary manslaughter) and aggravated robbery don't merge if "the force used to effectuate the murder is far in excess of that required to complete the robbery."

I think that's a good proposition as a general matter, but I'm not sure of the application in Velez's case.  In one of the cases cited by the opinion, the charges were aggravated robbery and aggravated murder, and the latter, unlike felony murder of involuntary manslaughter, requires a specific intent to kill.  In another case, the victim was beaten to death over several minutes, and again you can see how the intent would have differed. 

The basic problem, though, and one the cases don't address, is that you could make a decent argument that death is always "far in excess of that required to complete the robbery."  

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