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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