Prior Criminal History Did Not Justify the Use of a Drug Sniffing Dog During Traffic Stop

Police holding someone during a traffic stop because the driver’s prior criminal history involving drugs did not warrant the use of a drug sniffing canine that led to an eventual arrest

State v. Alvarez, Haw., 2016 BL 211663, No. SCWC-12-0000838, 6/30/16.

    The Hawaii Supreme Court found that officers lacked a reasonable suspicion to call in a drug sniffing canine during a traffic stop, even though the suspect had a prior criminal history and was currently suspected of selling drugs. The court held that the stop was still unconstitutional, even if the canine unit arrived within the time frame of writing and processing the tickets for a seatbelt infraction. Under Rodriguez v. United States, the United States Supreme Court found that there is no Fourth Amendment violation if the drug sniffing canine arrives during the normal time needed for the traffic stop. The Hawaii Supreme Court, however, did not view timeliness as the only requirement for such a search. Under the Hawaii Constitution, any unreasonable invasions of privacy, as well as unreasonable searches and seizures, are forbidden. Within this protection of privacy, the escalation of any investigation that is not supported by any other evidence of criminal activity is also forbidden.

   The court held that for the drug sniffing dog to be used, there needed to be a separate criminal inquiry into possible drug distribution. The evidence, however, was not sufficient to warrant a separate inquiry. The court held that a history of drug use and a five-day old tip on the driver’s criminal activity was not sufficient to warrant reasonable suspicion to allow for an escalated investigation. In the opinion, the court recognized that if the evidence used by police was sufficient for a separate criminal investigation, then “any traffic stop could be improperly utilized to detain individuals based on their previous misconduct.”


http://www.bloomberglaw.com/public/document/State_v_Alvarez_No_SCWC120000838_2016_BL_211663_Haw_June_30_2016_

GPS Tracking Data Not Prohibited by Exclusionary Rule Because of Officer’s Good Faith

Evidence gathered from a GPS tracker device is admissible because it was collected before United States v. Jones, which required police to obtain a warrant for GPS tracking

United States v. Mitchell, 2016 BL 210529, 10th Cir., No. 15-3006, 6/30/16.

   The Tenth Circuit found that GPS evidence collected before the United States v. Jones decision was admissible in court. The ruling follows similar decisions from other jurisdictions, including the Fifth, Seventh, Eight, and Ninth Circuits. Only the D.C. Circuit has taken the opposite view.

   Before Jones, police did not need a warrant to collect information from a GPS tracker attached to a suspect’s car. Moreover, there was existing case law allowing the use of similar electronic tracking devices, such as electronic radio transmitters that attach to vehicles. The court recognizing the legality of the search before the Supreme Court decision stated, “[W]e think a reasonable officer could be forgiven for thinking, prior to Jones, that existing appellate precedent authorized him to install and monitor a GPS device on a private vehicle without a warrant.”

https://www.bloomberglaw.com/public/desktop/document/United_States_v_Mitchell_No_153006_2020_BL_210529_10th_Cir_June_3?1467818975

Intent a Necessary Element for Violating Rules of Conduct in Making a False Statement

The Utah Supreme Court found that sanctions placed on an attorney for making false statements lacked the necessary intent requirement for imposing the specific sanctions

In re Tyler James Larsen, 2016 UT 26.

   After reviewing the sanctions placed on a Utah prosecutor, the Utah Supreme Court found that he lacked the requisite intent to have violated the rules of professional conduct in making false statements. Under Rule 3.3(a)(1), a lawyer shall not “make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer." During the trial, the prosecutor made false statements about evidence presented to the court, but without proof of intent, he could not be in violation of the Rule 3.3.  The court found that the rule “plain meaning requires that any misstatement to be made knowingly.”

   The Supreme Court upheld the second half of his sanctions, finding that he violated Rule 3.8, which “requires a prosecutor in a criminal case to ‘make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.’” The prosecutor admitted evidence at the time of the trial, which the court concluded there was “no way to characterize the admission he made at trial as a timely disclosure under rule 3.8(d).” In defending his action, the prosecutor attempted to support his lack of timeliness under Brady because he was required to disclose any evidence, even if it was late. The court rejected this argument, noting that the Rules of Professional Conduct not only provide for a fair trial, but also establish an ethical duty that will avoid the problem in the first place.

    The six-month suspension of the prosecutor was also upheld. The court found the mitigating and aggravating factors cancelled each other out, noting that although he was less-experienced, had no prior record of sanctions, and lacked a dishonest or selfish motive, he still refused to acknowledge wrongfulness of his conduct and harm to the victim. Additionally, deference was given to the district court in issuing the suspension because of the support of the record and precedent of similar suspensions for comparable actions.

   Finally, the Office of Professional Conduct wanted to adopt a single system of sanctions where “the ultimate sanction imposed should at least be consistent with the sanction for the most serious instances of misconduct among a number of violations.“ The Supreme Court refused to adopt this standard of just one sanction for multiple violations, recognizing the difficulty that exists when a single sanction encompasses multiple violations is reviewed by appellate courts, complicating the punishment after review.


https://www.utcourts.gov/opinions/supopin/In%20re_%20Tyler%20James%20Larsen20160616.pdf

Defendant Entitled to Respond to State’s Motion to Dismiss Post-Conviction DNA Test

The Supreme Court of Utah found that a recently convicted defendant should have been allowed to file a memorandum in opposition to the State’s motion to dismiss a post-conviction DNA test

Gordon v. State, 2016 UT 11, 369 P.3d 1255.

     The Supreme Court of Utah recently clarified that the procedural due process rights of a convicted murder were violated because he could not file a memorandum in opposition to the state’s motion to dismiss his motion for a post-conviction DNA test. After being convicted of murder, the inmate petitioned to DNA test items that were not originally included in the trial. In response, the state motioned to dismiss the petition, which the court did before the petitioner could reply.
 
   The court found, by examining both the relevant statute and the Utah Rules of Civil Procedure, that if all of the elements are met for the specific statute in play of the petition, then the inmate had the right to supply a response motion.

    In addition, the supreme court clarified who had the burden of proof in in showing whether evidence not sought after in trail was done so because of “tactical reasons.” While the court did not rule on the merits of the issue, they clarified the rule by stating “the State has the burden of pleading that the petitioner declined to request DNA testing for tactical reasons, but that the burden of proof shifts to the petitioner to establish that he did not have tactical reasons for such failure.”

   The case was remanded so petitioner could properly respond to the motion to dismiss.

https://www.utcourts.gov/opinions/supopin/Gordon%20v.%20State20160323.pdf

Preponderance of Evidence Standard Remains as Standard in Disciplinary Proceedings

The standard of proof in an ethics violation proceeding remains the preponderance of evidence, even when the a criminal act is the basis of the ethics violation 

In re Discipline of Steffensen, 2016 UT 18, 2016 WL 1584452.

   The Utah Supreme Court reaffirmed the standard of review used in ethics violation proceedings to be by the preponderance of evidence and not by proof beyond an unreasonable doubt. In the recent disciplinary proceeding, the attorney argued that a heightened standard of proof should be used because of the basis for his ethics violation was a criminal action. The Supreme Court, however, refused to elevate the standard because the rules “prescribe a preponderance standard for all ‘formal complaints of misconduct.’ And we see no room in the straightforward terms of the rule for the adoption of a higher standard of proof on a charge of ‘criminal act’ under [the] rule.”

   In arguing for the change, the attorney claimed that there would be a due process violation without the heightened standard. The court rejected this argument because of their desire to “retain discretionary license to assure fair procedure in the cases that proceed through our justice system. But our usual course for so doing is by promulgating rules of procedure.”

   The attorney also argued that a heightened standard has more positive aspects that outweigh the negative ones. The court recognized the possible benefits as respectable, but concluding that policy reasons do not override the clear terms of an existing rule.

https://www.utcourts.gov/opinions/supopin/State%20v.%20Jones20160111.pdf