Case Law Update: 2011-2014 Cumulative Edition

Holding: Even though Defendant was seeing a therapist as a condition of his parole, the statutory doctor-patient privilege applied and State could not obtain the therapy records to use in SVP proceeding against Defendant.


State v. Lenarz, 89 Crim. L. Rep. 636, 2011 WL 2638158 (Conn. 7/19/11):

Holding: Where law enforcement seized Defendant’s computer pursuant to a search warrant for child sex abuse and the computer contained confidential communications between Defendant and his attorney about trial strategy, the charges must be dismissed to protect the attorney-client privilege and 6^th Amendment right counsel, even though the discovery of the confidential information was inadvertent and there was no showing of prejudice.
In re Prosecutor’s Subpoena Regarding S.H. and S.C., 93 Crim. L. Rep. 11 (Ind. 3/27/13):

Holding: Where Prosecutor has not filed a charge or initiated a grand jury proceeding, Prosecutor may not compel a person to testify under a grant of use immunity when that person is the primary target of the investigation and has asserted a right against self-incrimination.

State v. Washington, 93 Crim. L. Rep. 359 (Iowa 6/7/13):

Holding: Where judge imposed additional community service on Defendant after he refused to answer a question at sentencing about drug use, this violated Defendant’s 5^th Amendment privilege against self-incrimination.
State v. Rodriguez, 90 Crim. L. Rep. 454 (Iowa 12/23/11):
Holding: Privilege against self-incrimination limits use of incriminating statements made during psychiatric examination to determine competency to waive Miranda rights.
State v. Holton, 89 Crim. L. Rep. 692 (Md. 7/13/11):

Holding: Where statute gave legislators “speech and debate” immunity from criminal prosecution, an indictment resulting from evidence derived from legislative votes had to be dismissed.
Keough v. State, 90 Crim. L. Rep. 420 (Tenn. 12/9/11):

Holding: Movant seeking postconviction relief is entitled to testify at postconviction hearing without cross-examination under postconviction rule that states that “under no circumstances shall petitioner be required to testify regarding the facts of the conviction … unless necessary to establish the allegations of the petition.” Court notes whether the privilege against self-incrimination applies to a postconviction case remains an open question, but the state rule was designed to accomplish the same goal; the movant should not be dissuaded from testifying due to fear of self-incrimination.

Probable Cause To Arrest
State v. Beck, 2013 WL 5524826 (Mo. App. S.D. Oct. 7, 2013):

Merely crossing the fog line of road does not provide reasonable suspicion to stop vehicle for DWI.

Facts: Officer testified he observed Defendant’s vehicle cross the fog line separating the shoulder of the road from the driving lane, and stopped Defendant to investigate for DWI. Defendant then was arrested for DWI. Defendant filed a motion to suppress evidence of the stop, and prevailed. The State appealed.

Holding: Erratic or unusual driving will provide reasonable suspicion for a stop to investigate DWI. But prior cases have held that merely crossing the fog line does not, by itself, provide such suspicion. The trial court granted the motion to suppress on the basis that Officer only saw vehicle cross the fog line. Even though the State argues that the Officer also saw the car weave in the lane, the trial court apparently did not accept this fact, and appellate court is required to defer to the trial court on factual findings.
U.S. v. Camacho, 2011 WL 5865650 (1^st Cir. 2011):

Holding: Where the only thing associating defendant with a reported street fight was defendant’s proximity to the scene of the fight, police officers did not have a reasonable suspicion of criminal activity when they stopped the defendant.
Santos v. Frederick County Bd. of Commissioners, 93 Crim. L. Rep. 637 (4^th Cir. 8/7/13):

Holding: Due to federal preemption, State and local police do not have authority to detain people, even briefly, based on civil violations of federal immigration law; civil violations do not provide probable cause to believe a suspect is engaged in “criminal activity.”
United States v. King, 90 Crim. L. Rep. 808 (9^th Cir. 3/13/12):

Holding: Uncorroborated “double hearsay” from tipsters of unknown reliability cannot give police reasonable suspicion to believe that a defendant is engaged in criminal activity.
U.S. v. Campbell, 2011 WL 1883044 (D. Vt. 2011):

Holding: Even though (1) Defendant was in “trunk” portion of out-of-state SUV, (2) there were air fresheners in the SUV, and (3) Officer thought another person in the SUV answered questions falsely and had red, watery eyes, there was no probable cause to arrest Defendant.
U.S. v. Cole, 2013 WL 2435567 (W.D. Wash. 2013):

Holding: Even though Defendant was driving a quarter mile with his left turn light activated, this did not provide probable cause to stop Defendant for violating state negligent driving laws where the highway had left exits.
Ochser v. Funk, 90 Crim. L. Rep. 513 (Ariz. 12/21/11):

Holding: When an arrestee insists he has proof that an arrest warrant was quashed and police officers can easily and safely retrieve proof of the order quashing it, the Fourth Amendment requires them to do so.
Com. v. Jackson, Com. v. Pacheco, & Com. v. Daniel, 93 Crim. L. Rep. 41 (Mass. 4/5/13):

Holding: Where Mass. had decriminalized possession of small amounts of marijuana, Officers’ observations of people smoking marijuana does not provide probable cause to stop them to search for possibly distributing marijuana or possession of an illegal quantity.

Com. v. Washington, 2011 WL 711441 (Mass. 2011):

Holding: Probable cause, rather than reasonable suspicion, is the standard to justify issuance of a citation for violation of seat belt law.
State v. Ortega, 93 Crim. L. Rep. 17, 2013 WL 1163954 (Wash. 3/21/13):

Holding: Officer cannot arrest person for misdemeanor based on probable cause from another Officer’s observations; Washington Constitution does not allow “fellow officer” rule to form basis for information for probable cause.
Walker v. State, 2013 WL 3481859 (Ga. App. 2013):

Holding: Officer escalated his consensual encounter with Defendant into an investigatory stop, requiring reasonable suspicion of criminal activity, when Officer ordered Defendant to remove his hands from his pockets; even though Defendant was walking off school property after midnight, this did not provide reasonable suspicion of criminal activity to stop Defendant.
State v. Rinehart, 90 Crim. L. Rep. 359 (Ill. App. 11/30/11):

Holding: Even though an anonymous person flagged down an officer and said someone had a gun, this did not provide reasonable suspicion to stop a person who matched the description where the person who flagged down the officer had not given their name.
Corwin v. State, 2011 WL 6282365 (Ind. Ct. App. 2011):

Holding: Officer did not have probable cause to arrest defendant based on pill bottle found in defendant’s pocket during a Terry frisk, and so the officer was not justified in opening the bottle as a search incident to arrest.
Crider v. State, 2011 WL 5554806 (Tex. Crim. App. 2011):

Holding: An affidavit in support of a search warrant to draw blood did not establish probable cause where there was no indication in the affidavit of how much time had passed between its signing and when the stop was initially made.

Prosecutorial Misconduct
State v. Polk, 2013 WL 6632015 (Mo. App. E.D. Dec. 17, 2013):

Holding: Prosecutor’s public “tweets” on Twitter about Defendant’s rape charge and trial shortly before and during trial possibly violated Rule 4-3.8(f), which limits prosecutor’s public statements to those that “serve a legitimate law enforcement purpose” and prohibits statements that have a “substantial likelihood of heightening public condemnation of the accused,” but in the absence of any evidence that jurors were influenced by the statements, the fairness of the trial was not implicated.

Discussion: Extraneous statements on Twitter or other social media, particularly during the time frame of trial, can taint the jury and result in reversal of the verdict. We doubt that using social media to highlight the evidence against the accused and publicly dramatize the plight of the victim serves any legitimate law enforcement purpose, or is necessary to inform the public of the nature or extent of the prosecutor’s actions. We are concerned that broadcasting that Defendant is a “child rapist” is likely to arouse heightened public condemnation. We are especially troubled by the timing of the tweets, because tweets before and during trial magnify the risk that the jury will be tainted by extrajudicial influences. However, there was no evidence here that the jury knew of or was influenced by the tweets.
State v. Avent, 2014 WL 1303418 (Mo. App. W.D. April 1, 2014):

Even though Officer testified that Defendant-Driver had glassy eyes, admitted to consuming beers, smelled of alcohol, failed a PBT test, and failed some sobriety tests, where there was also contrary evidence and trial court granted Defendant’s motion to suppress statements and evidence by finding there was no probable cause to arrest Defendant, the appellate court’s deferential standard of review requires that all credibility determinations and inferences be viewed in the light most favorable to the trial court’s ruling, and therefore, granting of motion to suppress is affirmed.

Facts: Defendant-Driver was stopped for speeding. Officer smelled alcohol, and had Defendant perform various field sobriety tests. Defendant passed the walk-and-turn test and one-leg-stand test, but failed the HGN test and PBT. Officer arrested Defendant, and read her Miranda warnings. Her BAC was ultimately tested and was greater than .08. Defendant filed a motion to suppress her statements and test results, on grounds that Officer had no probable cause to arrest her for DWI. The trial court granted the motion. The State appealed.

Holding: On appeal, the State cites evidence in the record that supports a finding of probable cause to arrest. However, this is contrary to the appellate standard of review, which allows the trial court to make credibility determinations and which views evidence and inferences in the light most favorable to the trial court’s ruling. Where the trial court makes no findings of fact, the trial court is presumed to have found all facts in accord with its ruling. The trial court will be deemed to have implicitly found contrary testimony not credible. Here, Defendant contested the State’s claim that she was intoxicated by cross-examining the Officer about favorable facts to her side of the case. The court was not required to find the Officer credible. Properly viewed in accord with the standard of review, although some facts showed intoxication, Officer observed several tests that did not indicate intoxication, Officer did not observe Defendant not have control of her vehicle (although she was speeding), Defendant complied with requests for identification and license, Defendant was not incoherent or confused or uncooperative, and her eyes weren’t impaired. The trial court weighed this evidence and determined there was no probable cause to believe Defendant was intoxicated. Judgment affirmed.
State v. Sprofera, No. WD73213 (Mo. App. W.D. 4/10/12):

Court abused discretion in allowing State to admit evidence that Defendant called Prosecutor a “cunt” because this had no logical relevance in proving the elements of the case or impeaching Defendant’s testimony.

Facts: Defendant was charged with various child sex offenses. At trial, he testified he was a “calm” parent and did not have a significant temper. The State, over objection, was then allowed to cross-examine Defendant about an outburst he had made at a prior court appearance where he called the Prosecutor a “cunt” in court.

Holding: The State claims the cross-examination was relevant to impeaching Defendant’s testimony that he was a calm parent and did not have a significant temper. However, we fail to see any logical relevance a profane outburst made to a prosecutor could have in proving the elements of the case against Defendant or in impeaching his testimony about his parenting. Given that the testimony was wholly irrelevant and could have prejudicial effect, the Prosecutor should not have been allowed to ask the question and the objection should have been sustained. However, the evidence was harmless in light of other evidence of guilt here.
State v. Avent, 2014 WL 1303418 (Mo. App. W.D. April 1, 2014):

Even though Officer testified that Defendant-Driver had glassy eyes, admitted to consuming beers, smelled of alcohol, failed a PBT test, and failed some sobriety tests, where there was also contrary evidence and trial court granted Defendant’s motion to suppress statements and evidence by finding there was no probable cause to arrest Defendant, the appellate court’s deferential standard of review requires that all credibility determinations and inferences be viewed in the light most favorable to the trial court’s ruling, and therefore, granting of motion to suppress is affirmed.

Facts: Defendant-Driver was stopped for speeding. Officer smelled alcohol, and had Defendant perform various field sobriety tests. Defendant passed the walk-and-turn test and one-leg-stand test, but failed the HGN test and PBT. Officer arrested Defendant, and read her Miranda warnings. Her BAC was ultimately tested and was greater than .08. Defendant filed a motion to suppress her statements and test results, on grounds that Officer had no probable cause to arrest her for DWI. The trial court granted the motion. The State appealed.

Holding: On appeal, the State cites evidence in the record that supports a finding of probable cause to arrest. However, this is contrary to the appellate standard of review, which allows the trial court to make credibility determinations and which views evidence and inferences in the light most favorable to the trial court’s ruling. Where the trial court makes no findings of fact, the trial court is presumed to have found all facts in accord with its ruling. The trial court will be deemed to have implicitly found contrary testimony not credible. Here, Defendant contested the State’s claim that she was intoxicated by cross-examining the Officer about favorable facts to her side of the case. The court was not required to find the Officer credible. Properly viewed in accord with the standard of review, although some facts showed intoxication, Officer observed several tests that did not indicate intoxication, Officer did not observe Defendant not have control of her vehicle (although she was speeding), Defendant complied with requests for identification and license, Defendant was not incoherent or confused or uncooperative, and her eyes weren’t impaired. The trial court weighed this evidence and determined there was no probable cause to believe Defendant was intoxicated. Judgment affirmed.
U.S. v. LaDeau, 94 Crim. L. Rep. 198, 2013 WL 5878214 (6^th Cir. 11/4/13):
Holding: Where court had suppressed evidence that made prosecution for possession of child pornography impossible, and Gov’t then charged conspiracy to receive child pornography (which carried a greater sentence), a judge may presume prosecutorial vindictiveness violative of due process if Defendant establishes that the Gov’t has some “significant stake” in deterring Defendant’s exercise of his rights and the Gov’t’s conduct was “somehow unreasonable;” here, Defendant met that test, warranting dismissal of new charge, because while it would have been reasonable to charge conspiracy to possess child pornography (which would have been possible), it was unreasonable to charge conspiracy to receive, since “receipt” carries a higher mandatory minimum sentence than conspiracy to possess.
Stumpf v. Houk, 89 Crim. L. Rep. 743 (6^th Cir. 8/11/11):

Holding: Prosecutor’s use of factually inconsistent theories at two trials as to which co-defendant shot victim violated due process and precluded imposition of death sentence.
U.S. v. Abair, 94 Crim. L. Rep. 771 (7^th Cir. 3/19/14):

Holding: Gov’t impeachment was improper where Gov’t accused Defendant of previously filing false tax and financial aid forms, when Gov’t lacked a good-faith basis to believe Defendant lied on those forms.
Dow v. Virga, 2013 WL 4750062 (9^th Cir. 2013):

Holding: State court unreasonably applied federal law in applying test of whether it was reasonably probable that a result more favorable to the defense would have occurred absent prosecutor’s knowing presentation of false evidence, rather than correct test of whether there is any reasonable likelihood that the false evidence could have affected the judgment of the jury.
U.S. v. Whitney, 90 Crim. L. Rep. 816 (9^th Cir. 3/7/12):

Holding: A prosecutor breached an immunity provision of a plea agreement when she exercised a government prerogative reserved in another provision.
U.S. v. Juan, 92 Crim. L. Rep. 432 (9^th Cir. 1/7/13):

Holding: Prosecutor violated due process by threatening its witness (Defendants’ wife) into recanting her exculpatory trial testimony and giving testimony incriminating Defendant in domestic abuse case; Wife had initially told police that Defendant beat her, then changed her story to an exculpatory one, then changed her story back to an incriminating one after Prosecutor threatened to charge her with perjury and persuaded the judge to allow her to consult with a court-appointed counsel.
Sivak v. Hardison, 2011 WL 3907111 (9^th Cir. 2011):

Holding: Prosecutor’s presentation of false testimony by snitch witness denying that he expected any favorable treatment in exchange for testimony violated Napue.
U.S. v. Schmitz, 88 Crim. L. Rep. 746 (11^th Cir. 3/4/11):

Holding: Prosecutor cannot cross-examine Defendant whether witnesses were “lying” because this invades province of jury since jury determines credibility of witnesses.
In re Howes, 90 Crim. L. Rep. 786 (D.C. 3/8/12):

Holding: The District of Columbia Court of Appeals disbarred a former assistant U.S. attorney for handing out thousands of dollars of witness vouchers to ineligible people in murder cases and actively concealing the improper payments from defendants and the courts.
U.S. v. Aguilar, 2011 WL 6097144 (C.D. Cal. 2011):

Holding: Government’s misconduct warranted exercise of the trial court’s supervisory powers to dismiss the indictment, where the misconduct included search warrants procured through materially false and misleading affidavits, improperly obtained privileged communications between defendant and defense counsel, and other flagrant acts.
State v. Maguire, 2013 WL 5989742 (Conn. 2013):

Holding: (1) Prosecutor’s argument that Defendant and defense counsel were asking jury to “condone child abuse” and to find that “child abuse that happens in secret is legal” was highly improper in that it appealed to emotions and demeaned defense counsel; and (2) Prosecutor’s objection during defense counsel’s cross-examination of forensic interviewer which left misleading impression that redacted portions of interview refuted defense counsel’s assertions was improper.
In re Flatt-Moore, 90 Crim. L. Rep. 624 (Ind. 1/12/12):

Holding: A prosecutor in a check fraud case engaged in conduct prejudicial to the administration of justice by giving the crime victim total veto power during plea bargaining with the defendant.
Com. v. Scott, 2014 WL 815335 (Mass. 2014):

Holding: Where Gov’t forensic lab engaged in misconduct regarding representations on a drug certificate, the misconduct is attributable to the State and there is a conclusive presumption that misconduct occurred in this case; case must be remanded to determine if there is a reasonable probability Defendant would not have pleaded guilty if he had known of the misconduct.
State v. Inman, 90 Crim. L. Rep. 513 (S.C. 12/28/11):

Holding: A prosecutor intimidated an expert witness into silence when, during voir dire, the prosecutor found out that the witness was not licensed to practice in the state and directed the judge’s attention to the statute dealing with the unauthorized practice of social work and told the witness that the statute provided for criminal penalties.

State v. Fuentes, 94 Crim. L. Rep. 560 (Wash. 2/6/14):
Holding: Where police (jailers) listened to taped phone conversations between Defendant and his lawyer, there is a presumption of prejudice, and the conviction must be vacated unless the State can prove beyond a reasonable doubt that the eavesdropping did not cause any prejudice.
State v. Monday, 89 Crim. L. Rep. 548 (Wash. 6/9/11):

Holding: Prosecutor injected racial bias into trial by pronouncing the word “police” as “po-leese” during questioning and by arguing that the reason the state’s witnesses weren’t more forthcoming was that “black folk” follow a code that frowns on cooperating with authorities.
People v. Puentes, 2010 WL 5143520 (Cal. App. 2010):

Holding: Prosecution was presumptively vindictive where charge was dismissed following two mistrials due to hung juries and Defendant was retried a third time only after another conviction was reversed on appeal.
Camm v. State, 90 Crim. L. Rep. 267 (Ind. Ct. App. 11/15/11):

Holding: Where prosecutor had entered into book contract to write about case, he was disqualified under Model Rule 1.8(d) from prosecuting the case, even though the contract was ultimately cancelled.
Brown v. Blumenfeld, 90 Crim. L. Rep. 102 (N.Y. App. Div. 10/4/11):

Holding: Judge may consider whether prosecutor violated professional conduct rules in deciding whether to suppress Defendant’s statements; prosecutor had prepared script to use to interrogate arrested people telling them that if they have a different story to tell, this is their only opportunity and that that this is the only opportunity they will have to tell something they would like law enforcement to investigate.
Ex Parte Coty, 2014 WL 128002 (Tex. App. 2014):