Introducing Judge Russell L. Healey

July 31, 2013

Wednesday, July 31, 2013

Good afternoon to all of our friends:

Duvall County Judge Russell L. Healey is the third judge to handle the Michael Dunn case.

Scott Butler of the Florida Times-Union has the story:

A second judge has removed herself from the high-profile Jacksonville murder trial of Michael David Dunn, charged with killing 17-year-old Jordan Davis in a dispute over loud music.

Circuit Judge Mallory Cooper had been appointed in May following the defense team’s request for Judge Suzanne Bass to step down due to concerns for a fair trial.

Bass denied him bail, refused a motion to have the state declare him indigent and pushed to have the trial in September even though his attorneys said it was unrealistic. Defense attorney Cory Strolla also said Bass failed to control her courtroom, including warning the victim’s father about his outburst, the Times-Union previously reported.
Cooper was replaced by Circuit Judge Russell Healey, court records show.

I previously wrote about the first and only hearing so far before Judge Healey. He denied Dunn’s motions seeking reconsideration of Judge Bass’s denial of bail, denial of indigency status, and denial of a motion to continue the trial date.

DISCLOSURE: Although Judge Healey and I were members of the National Association of Criminal Defense Lawyers when I was a member of the Board of Directors, I do not recall his name. It is possible that I may have met him during our midwinter meeting in Jacksonville in the late 90s, or at one or more of our other meetings, but I do not recall doing so. Therefore, I have no opinion about him.

The odd thing about Judge Healey’s appointment is that he is not a Circuit Court Judge. He is a Duvall County judge and I do not believe county judges can preside over felony trials without some sort of special appointment and or the consent of both parties to the case.

There does not appear to be a shortage of judges serving on the Fourth Judicial Circuit, which has 29 judges, with 9 assigned to handle criminal cases full time.

Could the Dunn case be the case that no circuit court judge wants to handle because of its high profile and possible voter backlash from the verdict?

Why Judge Healey?

Does not appear that he has any experience presiding over any felony trial, let alone a high profile felony trial.

Did he volunteer for this duty?

Who in their right mind would volunteer for a baptism by fire?

This oddity does not inspire confidence that the outcome of this trial will not be rigged.

Zoom has the skinny on Judge Healey.

Russell L. Healey was a law partner for 14 years in Mahon, Mahon & Healey, P.A. where he practiced criminal law specializing in marital and family law.

He was a board certified Marital and Family Law attorney and a former member of the Jacksonville Planning Commission.

Before joining Mahon & Mahon, he worked in private practice with Tassone and Healey after serving as an assistant state attorney and state attorney for the 4th Judicial Circuit of Florida in Jacksonville.

He has a bachelor’s degree in Finance from the University of South Florida, a JD degree from the University of Florida and was admitted to the Florida Bar in 1981.

Before becoming a Duvall County judge in 2002, he was a member of the American Bar and Florida Bar Associations, the National and Florida Associations of Criminal Defense Lawyers, the Association of Trial Lawyers.

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The Decision From Hell (Part 3)

December 29, 2011

In Part 1 of this series of posts about the decision from hell, as I have come to call it, I criticized the first part of the Kentucky State Court of Appeals decision in Crane Station’s case.

That part affirmed the circuit court’s pretrial and supplementary post trial decision denying her motion to suppress evidence. In so doing, the Court of Appeals ignored binding legal precedent by United States Supreme Court and Kentucky State Supreme Court cases interpreting the Fourth Amendment. The Court of Appeals, in effect, established a new rule that trial courts may consider evidence acquired after an investigatory stop without the requisite reasonable suspicion in determining whether a police officer had a reasonable suspicion to conduct an investigatory stop. In other words, an otherwise unlawful investigatory stop becomes lawful, if the officer discovers evidence of a crime!

In Part 2, I criticized the Court of Appeals decision that, even if the circuit court improperly restricted her from cross examining the arresting officer, the error was harmless and the conviction should be affirmed. I pointed out there is no question that (1) the trial judge improperly restricted the cross examination and (2) the error violated her Sixth Amendment right to present a defense. Further, because the error involved a constitutional right, the Court of Appeals had applied the wrong rule in determining whether the error was harmless.

If the Court of Appeals had applied the correct rule in Crane’s case, it should have reversed her conviction. Why? Because the correct rule would have required it to conclude that the error affected the outcome of the trial, unless the prosecution could have satisfied it beyond a reasonable doubt that it did not. I demonstrated how that was an impossible in Crane’s case.

Now, let us proceed to take a look at, believe it or not, the most egregious error committed by the Court of Appeals.

After the prosecution rested its case, the defense asked the trial judge to enter a judgment of acquittal on the DUI charge. The trial judge denied the request and the jury subsequently convicted Crane of DUI. The Court of Appeals affirmed the trial judge’s denial of her request.

The problem with this decision is that it ignores the results of two scientific tests of Crane’s blood sample by analysts at the Kentucky State Crime Laboratory that conclusively established to a reasonable scientific certainty that she had no alcohol and no drugs in her blood.

KRS 189A.010, which defines the crime of DUI, required the prosecution to prove beyond a reasonable doubt that Crane operated her motor vehicle while under the influence of alcohol or any other substance or combination of substances which impairs one’s driving ability.

The Court of Appeals said,

The evidence elicited at trial established that Leatherman admitted to Deputy McGuire that she was taking three prescription medications, including Clonazepam, which contains a warning regarding driving while on that medication. Deputy McGuire also testified to his observations of Leatherman’s behavior, including the results of the HGN test showing intoxication.

Furthermore, Mr. Wilkey (the 911 caller) testified at trial that Leatherman and her husband visited him several months after the incident regarding his upcoming testimony. He reported that Leatherman told him that she was unable to remember what they discussed because she was “whacked out.” This evidence is more than a mere scintilla and is of sufficient substance to permit the question of guilt to go to the jury. (citation omitted)

Putting aside for the moment that I was there, she did not say that or anything like it, I told her lawyer that she did not say that, I asked him to call me as a witness, and he failed to call me as a witness,

The simple fact remains that two scientific tests established to a reasonable scientific certainty that she had no alcohol and no drugs in her blood.

That simple fact also establishes to a reasonable scientific certainty that the deputy and the 911 caller were mistaken or lying when they testified that she appeared to be intoxicated. Further, the HGN test is just a non invasive screening test that indicates possible alcohol or drug impairment that needs to be confirmed by a breath or blood test. Here, the blood test did not confirm impairment and the HGN was not even administered in the proper fashion.

This is a very dangerous precedent, if it is allowed to stand, because it basically says that mistaken and unreliable eyewitness testimony can trump scientific test results that establish innocence to a reasonable scientific certainty.

So much for exculpatory DNA testing . . .

I guess this is the Kentucky Court of Appeals solution to ‘solving’ the alarming, embarrassing, and escalating number of wrongful convictions of innocent people, including many people on death row, as conclusively established by post conviction DNA testing.

Do not attempt to reform the system because that would involve admitting something is wrong. Instead, just disappear wrongful convictions altogether by setting up a false equivalence that a scientific test result is not more accurate and reliable than a lay witness’s opinion and let a jury decide which to believe.

Will the Kentucky State Supreme Court deny Crane’s motion for discretionary review and allow this case to rewrite federal and state constitutional law and ‘solve’ the wrongful conviction problem by ignoring and disappearing it?

Stay tuned.


The Decision From Hell (Part 2)

December 28, 2011

Yesterday, in Part 1 of this post, I critiqued the first part of the Court of Appeals decision affirming the trial court’s denial of her pretrial motion to suppress evidence.

I concluded that the Court of Appeals erred because it improperly relied on evidence (1) obtained after the deputy stopped Crane Station and (2) facts invented by the trial court. The Court of Appeals also (3) erroneously claimed that her appellate lawyer had failed to challenge any of the trial court’s findings of fact. I provided links to the decision by the Court of Appeals and Crane’s Opening Brief on Appeal and her Reply Brief.

In a related post today entitled How Could Judge Taylor Forget Garcia v. Commonwealth, I discussed a decision he wrote reaching the opposite conclusion on a set of materially indistinguishable facts. You may find that to be an interesting and helpful follow-up to Part 1 since he is one the three judges who decided her case. I also referenced Crane’s Petition for Rehearing of the decision by the Court of Appeals just so there is no misunderstanding or confusion regarding whether her lawyer challenged the findings of fact.

This first part of the decision by the Court of Appeals stands for the proposition that a motion to suppress based on an argument that a police officer lacked a reasonable suspicion to stop someone can be decided on the basis of information he acquires after the stop. Likewise an argument that a police officer lacked probable cause to arrest can be decided on the basis of evidence that turns up after the arrest. Both principles are contrary to long established federal and state case law and eviscerate the Fourth Amendment.

Therefore, the Kentucky State Supreme Court must grant discretionary review and reverse the Court of Appeals. If it does not, trial courts across the state will create havoc by following the decision by the Court of Appeals and denying motions to suppress in violation of a long line of state and federal cases. Eventually, the Supreme Court would have to grant review in one of those cases and overrule the Court of Appeals in the Leatherman case.

That is why it is necessary to grant discretionary review.

Today, I will critique that part of the decision that deals with Crane’s statement that her watch had fallen behind the seat during the ride to the hospital and her request for the deputy’s assistance to retrieve her watch for her.

Tomorrow in Part 3, I will deal with the final issue; namely, the decision by the Court of Appeals that the trial court properly denied her motion for a directed verdict of acquittal on the DUI charge. Due to the length of today’s article, I have decided that I should discuss the latter issue in a separate post.

When Deputy McGuire assisted Crane to get out of the back seat of his patrol vehicle at the hospital (because she was handcuffed with her hands behind her back), she told him that her watch had fallen off her wrist and dropped behind the rear seat during the ride. She asked him to please retrieve it for her. That is undisputed.

At the preliminary hearing, McGuire testified that, after they returned to his vehicle following the blood draw, he pulled the seat back, saw the watch and the suspected controlled substance near it, and seized both of them. When her lawyer asked him if he could see the two items before he pulled the seat back, he said. “No.” However, at the suppression hearing, he testified that he saw both items in “plain view” sitting at the top of the seatbelt crack next to where she was sitting when he opened the door to assist her to get out of his vehicle at the hospital.

Those two statements are mutually exclusive. They cannot both be true and there is no question that Crane’s lawyer was entitled to challenge the deputy’s credibility at trial by impeaching him with his prior inconsistent statement under oath at the preliminary hearing. Nevertheless, the trial judge sustained an improper objection by the prosecutor to that line of inquiry preventing him from eliciting the inconsistent statement.

Why did the trial judge do that?

Before jury selection, the trial judge granted the prosecutor’s motion in limine (i.e., at the beginning) for an order preventing the defense from introducing Crane’s statement about her watch and her request for his assistance in retrieving it on the ground that her statement was inadmissible hearsay.

I have addressed this issue previously in Hearsay, Part Deaux.

The judge’s ruling was improper because the statement was not hearsay, since it was not offered to prove the truth of the matter asserted in the statement. It was offered to show that, as a result of something she said (and it really does not matter what it was, which is why it was not offered to prove the truth of the matter asserted), he pulled the seat back to look for her watch and found both the watch and the suspected controlled substance in proximity to each other.

There is nothing misleading or improper about allowing the jury to hear that evidence because that is the way it happened, according to the deputy’s testimony at the preliminary hearing.

Instead, the jury only heard the deputy’s trial version of his discovery, which was that he found her watch and the suspected controlled substance in plain view on top of the rear seat in the seatbelt crack right next to where she was sitting. To make matters worse, in his final summation the prosecutor said the proximity of her watch to the suspected controlled substance in plain view amounted to her “autograph” on the controlled substance and she had not offered any explanation for how they happened to be in plain view together in the seatbelt crack right next to her.

It’s not surprising in the least that the jury found her guilty of possession and evidence tampering for attempting to conceal the rock of crack. Would the jury have convicted her if they knew that the deputy found the rock not in plain view, but under his back seat because she asked him to retrieve her watch from under the seat?

I do not believe the jury would have convicted her because who would ask a police officer to retrieve their watch from under the seat, if they had lost the watch while attempting to slough a controlled substance?

That was her defense, but the trial judge took it away from her with his ruling in limine.

The Court of Appeals did not decide whether her statement about her watch and request for his assistance to find her watch was inadmissible hearsay. Instead, it dodged the issue by saying the error, if any, was harmless because she could have testified about her statement and request. Indeed, the Court of Appeals noted that the trial judge told her that she could testify about it.

Why does this not make any sense?

(1) If the statement were hearsay, it is not admissible, whether or not she testifies. That is the law and the trial judge cannot create an exception that does not exist.

(2) She had a constitutional right under the Fifth Amendment not to testify and a right to have the judge instruct the jury that it cannot hold her silence against her. In other words, silence is not evidence of guilt.

(3) The judge’s unlawful exception was a manipulative and coercive effort to force her to testify against her will in violation of her Fifth Amendment right to remain silent and not have her silence held against her.

(4) If she had testified, the jury would have been presented with a classic he-said-she-said controversy in which he said he found her watch and the rock together in plain view at the top of the seatbelt crack on the seat right next to her, and she said he found it under the seat after she asked him to look for her watch. Not even the longest long shot Louie at Hialeah would put a fin on her fate in such a swearing contest.

(5) Who could deny that the odds on the outcome of that he-said-she-said swearing contest would change dramatically, if the jury found out that the deputy had previously testified under oath at the preliminary hearing, about a week after her arrest, confirming her statement. The suppression hearing was five months after her arrest and the trial was 18 months after her arrest, by the way. There can be little doubt that the jury would have believed her and disbelieved his plain-view testimony. Then their whole case falls apart.

(6) That is why her lawyer’s attempt to cross examine the deputy by impeaching him with his prior inconsistent statement under oath at the preliminary hearing was proper and legitimate.

To call this error harmless is disingenuous and absurd. But guess what? That is not even the right test. Why is it not the right test?

The trial judge’s order in limine and his ruling preventing her lawyer from impeaching the deputy with the deputy’s prior inconsistent statement under oath at the preliminary hearing took away her defense.

A defendant in a criminal case has a constitutional right to put on a defense and her right to do that was denied to her by the trial judge’s rulings and aggravated by the prosecutor’s closing argument in which he commented on her silence, which is forbidden by the Fifth Amendment. He also attempted to switch the burden of proof over to her to prove her innocence, which is a denial of due process of law under the Fifth and Fourteenth Amendments.

When the court and a prosecutor violate a defendant’s constitutional rights, the test presumes the error affected the outcome of the trial and the prosecution must rebut that presumption by proof beyond a reasonable doubt that it did not.That is a far different test from the one employed by the Court of Appeals.

There is no way the prosecution can meet its burden in this case. Therefore, the Court of Appeals must be reversed on this issue.

Until tomorrow . . .


The Decision From Hell (Part 1)

December 27, 2011

The Kentucky State Court of Appeals issued its decision affirming Crane Station’s conviction on January 21, 2011. Her motion for reconsideration was summarily denied without an explanation. Her motion for discretionary review is pending in the Kentucky State Supreme Court.

I call the 3-0 opinion written by written by Judge Lambert and joined by judges Henry and Taylor the decision from hell and will now take it apart. First, here is a link to the decision.

The Court begins by making two fundamental errors that invalidate the conclusion it reached affirming the circuit court’s denial of the motion to suppress evidence. The two errors are:

(1) It relied on after-acquired information, including trial testimony and the dispatcher’s tape, which is prohibited by the United States Supreme Court and the Kentucky Supreme Court; and

(2) It stated that the appellant had failed to challenge any of the findings of fact in the three suppression orders, which is absolutely false.

In United States v. Hensley, the Supreme Court held that trial courts must decide the constitutional validity of investigatory stops of civilians by police officers (i.e., whether there was reasonable suspicion or probable cause to justify the stop) based on the information available to the police officer before the stop. Information acquired after the stop cannot be used to justify a stop that was not supported by reasonable suspicion or probable cause because that would eliminate the rule.

The Supreme Court also held in Hensley that, even if a police officer stops a suspect acting in good faith on mistaken information provided by a dispatcher, the stop nevertheless violates the Fourth Amendment, if the correct information did not constitute a reasonable suspicion.

Therefore, the proper legal analysis under Hensley is to determine whether the information supplied by the 911 caller constituted a reasonable suspicion to justify the stop. The caller said,

And there is a lady in a dark blue looks like a Buick LeSabre. I’d say it’s a late 80s, early ’90s model. And I’ve got a license plate number. But she’s out here walking around in my neighbor’s yard and everything and writing stuff down, and she’d talked to him and mentioned something about tar heroin and all that stuff.

The caller did not describe suspicious activity, much less criminal activity. He described a conversation between his neighbor and a stranger in which the stranger mentioned the word heroin. So what?

This is not complicated. Absent information that the caller witnessed a purchase or sale of a controlled substance, or possibly a request to purchase or sell a controlled substance, there is nothing to investigate.

A reasonable suspicion is more than a mere hunch or suspicion. The hunch or suspicion must be reasonable. That is, it must be supported by articulable objective facts and circumstances that would warrant a reasonable person to conclude that a crime has been committed, is being committed, or is about to be committed. That did not happen.

Now, the stop would violate the Fourth Amendment, even if the dispatcher had innocently altered what the caller said and told the deputy that the caller had reported witnessing a drug transaction between his neighbor and a stranger and the officer stopped the stranger to investigate.

Why? Because the dispatcher cannot create a reasonable suspicion that did not already exist, even if the dispatcher does so by committing an innocent mistake. In other words, good faith reliance on mistaken information provided innocently by a dispatcher cannot create a reasonable suspicion where none existed. Therefore, the dispatcher’s information is irrelevant under Hensley.

But even if we consider what the dispatcher said, there still is no reasonable suspicion. He said,

Suspicious person complaint, the 4000 block of Queensway Drive off of Lester Harris and Bottom Street. A white female in a dark blue LeSabre that’s out walking around asking people about 218A.

(218A is a reference to the Kentucky State Uniform Controlled Substances Act)

Again, so what? A person walking around asking people about a drug statute is not illegal activity.

I am not saying that the caller’s tip should not have been investigated. I am saying that the proper procedure would have been to contact and interview the caller to obtain additional information regarding what he observed, which the deputy did the following day. However, even if the caller provided additional information such as, “I saw the woman buy some heroin from my neighbor,” the information could not be considered for the purpose of determining whether the deputy had a reasonable suspicion to stop Crane Station because he acquired that information after he stopped her. Therefore, it is irrelevant.

But the caller did not say anything like that. He said,

On 6-28-2006, a Lady driven a Buick LeSabre stoped at my driveway and ask me if I would sell 2 berrlles and i said they belong to my Naber. She had her painst unbuttoned and unzipped. She acted like she was under the Influence of something. She was a dirty Blonde wereing Blue shirt and Blue Jeans. (Spelling and grammatical errors in the original)

(incidentally, her jeans were not unbuttoned and unzipped in the in-dash video)

Asking someone if they are willing to sell two barrels is not criminal activity. (The barrels were made out of oak and split in half across the middle so they could be placed on a deck and used as planters) In addition, the statement does not mention heroin or any other drug. Finally, the description he provided and the conclusion that she appeared to be high on something falls far short of “sufficient articulable objective facts and circumstances that would warrant a reasonable person in concluding that the person had committed, was committing, or was about to commit a crime.”

Also, since the caller provided the statement after he knew about the arrest, his perspective would have necessarily changed and we cannot know whether he would have said the same thing, if he had been interviewed before the stop. The bottom line is this information should not have been considered.

Additional information that came to light at subsequent pretrial hearings or the trial itself would, of course, also be irrelevant on the issue of reasonable suspicion because it would have been after-acquired. Therefore, to the extent that the Circuit Court and later the Court of Appeals relied on such information to enter findings of fact, such findings are necessarily invalid, as a matter of law under Hensley.

A consideration of the deputy’s observations of Crane Station’s driving prior to the stop is not prohibited by Hensley. To find out what he observed, the Circuit Court should have watched and listened to the deputy testify at the suppression hearing and the Court of Appeals should have watched the video and read the transcript of his testimony at the suppression hearing. Evidently the judges did not do this because the deputy testified that her driving was exemplary, she violated no laws, and he pulled her over as soon as he realized that she and her vehicle matched the description provided by the caller. He did not pull her over because of her driving; he admitted that he pulled her over because he suspected she possessed heroin.

The deputy was the only witness at the suppression hearing. Therefore, there were no disputed facts. No he-said-she-said differences for the trial judge to resolve. He merely had to enter findings of fact based on what the witness said, but he did not do that.

Instead, he made-up some facts, such as Crane Station initiated a voluntary citizen-police contact that is not subject to the Fourth Amendment, when the deputy testified that he pulled her over. He also relied on trial testimony, which was after-acquired information, including testimony by the deputy that directly and materially contradicted his testimony at the suppression hearing.

It is difficult to know what the hell was going on when the deputy and the trial judge were making stuff up.

The Court of Appeals added to the mess by ruling that the appellant is stuck with the invalid findings of fact because she did not challenge them on appeal. That is absurd because her lawyer challenged all of the materially false facts. There is no doubt. Read her opening and reply briefs, if you do not want to take my word for it.

Finally, the Court of Appeals ignored Hensley. Ignored Crane’s argument that the HGN should not have been considered because it was improperly administered. Concluded that despite “not driving erratically or weaving” and passing a portable breath test, the invalid HGN, when considered together with nervousness, glassy eyes, her admission that she was taking prescribed Clonazepam, and other unspecified “odd behavior,” the deputy had probable cause to arrest. Apparently, despite quoting the product insert warning for Conazepam, which does not say that people who take the drug should never operate machinery or a motor vehicle the Court of Appeals believes that, as a matter of law, a police officer has probable cause to arrest anyone who takes the drug and operates a motor vehicle whether they drive properly or not. The Court also ignored federal and state cases cited by Crane’s lawyer, which hold that nervousness is not a valid or reliable indicator of impairment because people who are not under the influence of drugs or alcohol typically also exhibit nervousness when stopped. They require additional evidence of evasive behavior to establish probable cause to arrest and there was no evidence of that in Crane’s case.

So, did the judges on the Court of Appeals read her briefs?

Difficult to conclude that they did, because I do not see how they could honestly claim that her lawyer failed to challenge any findings of fact, if they had read it.

On the other hand, if they wrote an opinion affirming the conviction without having read her briefs, they should be defrocked and disbarred.

Either way, they have a lot of splainin’ to do.

I will deal with the rest of the Decision From Hell in Part 2 tomorrow.

Until then, Court will be in recess.


The Full-Text Motion For Discretionary Review [Frog Gravy Legal Case]

December 22, 2011

For those of you following the legal case, the 26-page Kentucky Court of Appeals Published Opinion Affirming is available online at the Kentucky Court of Appeals site. Other documents, such as this one, while they are in the public domain, are not readily available. (One must file an open records request)

I am also going to make the opening brief and response available here, online, for the public. This first document is a Motion For Discretionary Review. It was filed with the Supreme Court in June of this year (2011). The attorney is The Honorable Julia K. Pearson.

COMMONWEALTH OF KENTUCKY
SUPREME COURT OF KENTUCKY
FILE NO.2011-SC-000272

RACHEL LEATHERMAN MOVANT

v.

COMMONWEALTH OF KENTUCKY RESPONDENT

MOTION FOR DISCRETIONARY REVIEW

The Movant, Rachel Leatherman, comes by counsel and pursuant to CR 76.20, requests this Court to grant discretionary review of the decision of the Kentucky Court of Appeals in Leatherman v. Commonwealth, 2008-CA-0849, which was decided on January 21, 2011. The Petition for Rehearing was denied on April 12, 2011. Ms. Leatherman explains the grounds for this motion below.

THE JURISDICTIONAL FACTS

1. The Movant’s name is Rachel Leatherman. Counsel for Movant is Hon. Julia K. Pearson, Assistant Public Advocate, Department of Public Advocacy, 100 Fair Oaks Lane, Suite 302, Frankfort, Kentucky 40601.

2. The Respondent is the Commonwealth of Kentucky. Counsel for Respondent is Hon. Jack Conway, Attorney General, Commonwealth of Kentucky, Criminal Appellate Division, 1024 Capital Center Drive, Frankfort, Kentucky 40601.

3. The Court of Appeals finally disposed of Movant’s case on April 12, 2011.

4. Neither Movant nor Respondent has a Petition for Rehearing or a Motion for Reconsideration pending in the Court of Appeals. The Petition for Rehearing filed in this case was denied on April 12, 2011.

THE MATERIAL FACTS

Sometime in the evening of June 28, 2006, a man identifying himself as Vernon Wilkey, residing on Queensway Drive in Paducah, called 911 and said, “there is a lady in a dark blue looks like a Buick LeSabre. I’d say it’s a late 80s, early 90s model. And I’ve got a license plate number. But she’s out here walking around in my neighbor’s yard. . . and writing stuff down and she’d talked to him and mentioned something about tar heroin and all that stuff.” Wilkey said the woman driving the car was white and that the vehicle had Washington state plates. Wilkey testified at trial that she “didn’t seem like she was really all together there.” He did not give the 911 operator that piece of information.

McCracken County Deputy Sheriff Eddie McGuire testified at trial that he received a dispatch about a suspicious person on Queensway Drive. He thought it took fifteen to twenty minutes to arrive on scene, where he looked for a car with Washington state license plates, but was unsuccessful. At the suppression hearing, McGuire testified when he entered the Queensway Drive neighborhood, he did not check with Vernon Wilkey to obtain any additional information, such as what time Wilkey encountered the woman, whether Wilkey saw her leave in a particular direction, whether Wilkey thought she was under the influence or whether the woman had said where she was going. McGuire testified that he spoke with Wilkey and took his written statement the next day, after he had arrested Ms. Leatherman.

At trial, the deputy testified that he had just come through the Metropolis Lake intersection when he saw a car with its left turn signal flashing. McGuire admitted that he did not know how fast he was driving as he drew alongside the vehicle.

“As I was passing the vehicle, she had her left blinker on as if she was going to turn out in the passing lane, but she never did. And then as I was going to go ahead and go past her, I noticed that the license plate—it was a Washington license plate that was the description that was also given at the time of the call. So when I noticed that, I slowed down and let her go back by me and then when I pulled in behind her, she pulled over.”

After McGuire pulled in behind her, the woman pulled over to the shoulder. He thought that action was as suspicious as the woman leaving her left turn signal blinking, so he pulled over to the side and activated his emergency lights. McGuire said as he walked up to the vehicle, he noticed that the driver’s pants were unbuttoned and unzipped, but belted. Even so, Rachel Leatherman “promptly” handed her identification and proof of insurance to Deputy McGuire. He ordered her to get out of the car and stand behind it. McGuire said she had no problem getting out of the car. In fact, he said that if she had been unsteady on her feet or slurring her speech, he would have documented it in his citation.

Sometime after that, Deputy Jason Walters came to the scene. The men searched the car for contraband, but came up with nothing. Later, Officer Gretchen Dawes arrived and searched Leatherman. Before she arrived, however, McGuire testified that Leatherman had emptied her two front pockets. He could not remember whether Leatherman had buttoned her pants at any time during the automobile and personal searches.

Neither Officer Dawes nor Deputy Walters testified at the suppression hearing. However, as her testimony at trial showed, Dawes’ search was not a simple Terry pat-down. Dawes searched the inside rear pockets of Rachel Leatherman’s jeans and made her open the front of her pants so she could search Leatherman’s crotch. Dawes made Leatherman lift her shirt so she could search her breasts for concealed controlled substances. Even McGuire conceded that Dawes’s search was “thorough.”

Deputy McGuire agreed that “[u]nder the circumstances, [Dawes] was not only looking for weapons but also looking for possible drugs,” but found none. McGuire did not see Dawes search Leatherman’s back pockets, but he assumed she did so as part of that thorough search. Finally, McGuire said that en route to Lourdes Hospital, he did not see Leatherman moving in any sort of fashion to indicate that she was trying to hide something.

A thorough search by a trained police officer would presumably “sanitize” a suspect before she is handcuffed and placed into a police car. In other words, how is it possible that Rachel Leatherman held onto a baggie with rock cocaine through a search of her vehicle and her person? Officer Dawes offered her speculation at trial. She said she was told only that the deputies wanted a female officer to search a female suspect. The deputies did not tell her anything about the case such as whether she was supposed to conduct a Terry pat-down or the more thorough search incident to arrest. Interestingly, Dawes said that if she had prior knowledge that Leatherman had drugs on her person, she would have done an even more thorough search.

Deputy McGuire and the two backup officers searched Ms. Leatherman’s person and her car for about 1.25 hours. That search yielded no illegal drugs, no drug residue and no paraphernalia. Despite the fact that Leatherman had not committed a traffic violation and a PBT (Portable Breath Test) registered no alcohol, McGuire arrested her for Driving under the Influence and transported her to Lourdes Hospital for a blood draw.

Subsequent analysis found no alcohol or drugs in Leatherman’s blood.

McGuire was certain Leatherman was wearing a watch, but only thought it was on her right arm. McGuire’s story was that as he assisted her out of the car at the hospital, he noticed that Leatherman had dropped her watch and a small baggie containing a substance consistent with a rock of cocaine. He did not confront Leatherman at that time. McGuire was unsure how long the two remained at the hospital. Once he arrived at the McCracken County Jail and booked Ms. Leatherman, he ran a field test for heroin. That test came back negative.

Rachel Leatherman was charged with Possession of a Controlled Substance in the First Degree, Tampering with Physical Evidence and Driving an Automobile under the Influence. She was convicted on all three charges and sentenced to eight years.

QUESTIONS PRESENTED

1. A trial court shall make written findings of fact and conclusions of law after holding a suppression hearing. RCr 9.78. Is it appropriate for a trial court to render findings of fact and conclusions of law after trial, using information gained at the trial, but not the suppression hearing?

The panel concluded:

Based upon the 911 call, during which the caller described a woman. . . who was committing criminal activity, and the undisputed fact that Leatherman pulled to the side of the road and stopped before Deputy McGuire activated his emergency lights, we hold that there was no constitutional violation in the investigatory stop.

Leatherman v. Commonwealth, 2011 WL 181251, *7 (Ky. App., January 21, 2011).

Walking around a neighborhood and saying the word “heroin” are not criminal acts.

The trial court’s second conclusion of law was that: “[t]he combination of a report of an unknown person, driving a Washington state licensed vehicle in a Paducah, Kentucky residential area, asking about tar heroin, later observed to signal a left turn but pull off the roadway in the right, constitutes reasonable suspicion to investigate and possibly cite for improper signal. TR 222.

The court’s third conclusion was that “[a] report of suspicious activity by a person who identifies himself by name, phone number and address is presumptively reliable.” TR 222. These conclusions came not after the suppression hearing, but after the trial.

The court should have relied only upon the information in the 911 call, not evidence it heard at trial, in order to decide whether Deputy McGuire had reasonable suspicion to stop Rachel Leatherman. United States v. Hensley, 469 U.S. 221 (1985).

The information in the particular 911 call left a good deal to be desired. Vernon Wilkey did not tell the dispatcher that Leatherman was asking “where may I get black tar heroin” “do you have any black tar heroin” or even “does a drug dealer live in this neighborhood”? He simply told the dispatcher that she “mentioned” tar heroin. All Deputy McGuire had was a dispatch that a woman was walking around a neighborhood in McCracken County and mentioned tar heroin. McGuire admitted at the suppression hearing: “[a]t the time we responded, the only information that we had was the fact that she had come up to his house and asked about heroin.” TR 155. He admitted that he talked to Wilkey after he arrested Leatherman. Id., emphasis added. He admitted at trial that he had no idea when the woman had made contact with the neighbor (or Wilkey, for that matter). VR 4; 11/27/2006; 14:05:04.

The Fourth Amendment requires that reasonable suspicion comes only when the police believe criminal activity is currently afoot. See Joshua v. DeWitt, 341 F.3d 430, 446 (6th Cir. 2003), citing Terry v. Ohio, 392 U.S. 1, 20 (1968); emphasis in original. Was the woman “asking about 218A” doing a survey for the local newspaper or television station? Doing surveys for local media is a perfectly legal action. Was she a teacher doing a survey for a local high school civics or social studies class? Doing those sorts of surveys is also a legal act. But McGuire jumped to the conclusion that Rachel Leatherman had to be committing some sort of crime because she was talking to people in a neighborhood and mentioned tar heroin. Unfortunately for McGuire, in Terry, supra, the Supreme Court made clear that the officer’s reasonable suspicion must be made from the facts and the “specific reasonable inferences he is entitled to draw from the facts in light of his experience.” 392 U.S. at 21; emphasis added. McGuire’s suspicion was not based upon reasonable inferences from the facts he had at hand.

The panel ignored United States and Kentucky Supreme Court precedent in finding those facts were enough predictive information with which Deputy McGuire could arrest Ms. Leatherman. In Florida v. J.L., Florida officers received a phone call that a young, black male who was wearing a plaid shirt and standing with two other males at a bus stop was carrying a gun. Officers arrived and found the young man wearing a plaid shirt standing at the bus stop and arrested him. The United States Supreme Court found that the tip gave police no independent reason to suspect that J.L. was up to a nefarious act. 529 U.S. 266, 274 (2000).
In Collins v. Commonwealth, this Court found that a tip claiming that a man driving a white Chevrolet Blazer with a certain license plate threw alcohol at another vehicle parked at a gas station was likewise not enough information that something criminal was afoot.

As in J.L., the tip provided in this matter contained no predictive information; rather, it consisted almost entirely of information readily available to a casual bystander, such as Appellant’s license plate number, his direction of travel, and the make and model of his vehicle. Thus, Trooper Oliver was left with no predictive information to corroborate, or other means by which to verify that the tipster had intimate knowledge of any illegal behavior. 142 S.W.3d 113, 116 (Ky. 2004).

If the panel’s Orwellian holding remains valid, the simple acts of “walking around” in a neighbor’s yard, “writing stuff down” and merely uttering the words tar and heroin, without any further indication of intent to buy or sell, then, in contravention of federal and state case law, the police are absolutely free to engage in fishing expeditions.

Moreover, any person—axe to grind or not–who gives his name and address may pick up a phone and report some “crime” and have that report be deemed reliable. That analysis flies in the face of J.L., supra; Florida v. Royer, 460 U.S. 491 (1983), Hensley, supra; and Terry v. Ohio, 392 U.S. 1 (1968).

“Hunch” that Rachel Leatherman possessed a controlled substance did not constitute suspicion for a stop or reasonable cause for an arrest

The trial court’s first conclusion of law was that “[t]he deputy did not conduct a stop of Defendant’s vehicle. Defendant pulled off the roadway and stopped. The deputy then pulled in behind her and activated his emergency lights so as to investigate.” TR 222. This is incorrect as a matter of law and is unsupported by the evidence.

Deputy McGuire admitted at the suppression hearing that he “was going to” stop Leatherman “anyway” when she pulled to the shoulder. TR 165. He admitted, “I suppose she assumed I was going to stop her, so she went ahead and pulled over, anyway.” He admitted that Leatherman’s actions “were a safe assumption” that he was going to stop her. TR 166; emphasis added. McGuire conceded that it was possible Leatherman had activated her turn signal, but decided against moving into the left lane when she saw the cruiser come up in her rear view mirror. VR 4; 11/27/2006; 14:15:05. McGuire had already testified that he was driving faster than the Leatherman vehicle. That Leatherman did not move to the left lane and collide with the cruiser is evidence that she noticed him coming up on her side.

Yet, McGuire, the trial court and the panel found it suspicious that Leatherman speedily obeyed the demands of KRS 189.930, which mandates that emergency vehicles are to be given the right of way, by the operator of the motor vehicle “driv[ing] to a position parallel to, and as close as possible to, the edge or curb of the highway clear of any intersection. . .”

The panel absolutely ignored Garcia v. Commonwealth, in which a member of the panel had found that the police did not have reasonable suspicion to stop a driver who “quickly changed to the right lane” as a Kentucky State Police Trooper approached the vehicle. 185 S.W.3d 658, 660-661 (Ky. App. 2006). The panel found that “Garcia’s nervousness, lane change, failure to make eye contact, ‘death grip’ on the steering wheel, and out-of-state license plate. . . . describe a substantial number of drivers on our highways.” Further, the panel said, “[i]f we were to accept the Commonwealth’s argument, ordinary law abiding citizens could be subjected to a stop by police based upon routine driving habits.” Id., at 665.

Contrast the behavior in Garcia with that in the case at bar. According to the officers in each case, both Leatherman and Garcia appeared nervous and changed lanes and had out-of-state license plates. The difference is that Leatherman driving with a turn signal blinking was somehow seen as suspicious behavior, rather than the routine (for some drivers) driving habit that it is.

Exculpatory scientific tests trumped by “glassy eyes” and an improper HGN

As a result of the panel’s opinion, exculpatory blood test results are no longer good evidence. The panel used as part of its reasoning for affirming Rachel Leatherman’s convictions that she “failed the HGN test, which reveals intoxication by alcohol or some other drug”. Even assuming arguendo that the other indicators had been present (addressed infra), McGuire improperly administered the test.

The National Highway Traffic Safety Administration warned police officers to position DUI suspects so that they do not face blinking cruiser lights or oncoming traffic because the lights can create a false nystagmus (optokinetic nystagmus). The field video shows McGuire positioned Rachel Leatherman facing the blinking cruiser lights and oncoming traffic. Moreover, the panel ignored the fact that Metoprolol, which Leatherman told McGuire she was taking for hypertension, can cause nystagmus. The test was neither administered properly nor documented. For the panel to rely on this so-called “failed” test in order to affirm Leatherman’s conviction is the height of arbitrariness and incorrect legal analysis.

The panel noted that his “observation of [Rachel] Leatherman’s glassy eyes and odd behavior coupled with her admission that she was taking prescription medication” was sufficient to provide Deputy McGuire with probable cause to arrest her for DUI. Leatherman, supra, at *9.

The panel absolutely ignored McGuire’s admissions that Leatherman drove in compliance with traffic laws. It even cited McGuire’s testimony that Leatherman was neither driving erratically nor weaving! Id. Leatherman produced her license and registration quickly after he asked for them. Her eyes were not watery or bloodshot. Her pupils were not pinpoint or dilated. She did not have a runny nose as is common with some cocaine users. She did not have scabs or needle marks, also common with intravenous drug users. She was not coughing or short of breath; she was not sneezing or sweating. She did not complain of nausea or chest pains. Her face was not flushed. She was alert.

Moreover, McGuire admitted at the suppression hearing that the HGN result by itself could not provide probable cause. VR 4; 11/27/2006; 14:21:45. Neither does nervous behavior.

The panel also absolutely ignored United States Supreme Court and Sixth Circuit case law which establishes that nervous, evasive behavior is the standard to justify reasonable suspicion, not simple nervousness or restlessness. Illinois v. Wardlow, 528 U.S. 119, 124, (2000); Joshua v. DeWitt, 341 F.3d 430 (6th Cir. 2003).

One need only look at several Supreme Court cases regarding drug smuggling at the United States-Mexico border to determine that evasive behavior is the key. United States v. Brignoni-Ponce, 422 U.S. 873, 885 (1975) (“The driver’s behavior may be relevant, as erratic driving or obvious attempts to evade officers can support a reasonable suspicion.”); Florida v. Rodriguez, 469 U.S. 1, 6 (1984) (“[T]he three confederates … had spoken furtively to one another. One was twice overheard urging the others to ‘get out of here.’ Respondent’s strange movements in his attempt to evade the officers aroused further justifiable suspicion….”); United States v. Sokolow, 490 U.S.1, 5, 8-9, (1989) (noting that “[Respondent] appeared to be very nervous and was looking all around the waiting area,” but that “one taking an evasive path through an airport might be seeking to avoid a confrontation with an angry acquaintance or with a creditor”).

The ultimate irony for this case is that after the hour and one-half Deputy McGuire held Rachel Leatherman on the side of the road, he found nothing illegal. The panel stated as much when it said, “consent searches of her automobile and her person did not reveal any heroin or any other illegal substance.” Leatherman, supra, 2011 WL 181251, at *7.

Effects of Clonazepam/Klonopin

As the final rung of its finding that McGuire had probable cause to arrest Ms. Leatherman for DUI, the panel cited to “the product information for Klonopin. . . .[which] states that patients taking that medication “should be cautioned about operating hazardous machinery, including automobiles, until they are reasonably certain the Klonopin therapy does not affect them adversely.” Leatherman, supra, at *9.

Unfortunately, that information is also after-acquired and not something Deputy McGuire knew at the scene. The trial court made the same error when it noted her statement that “she was taking medication that would cause her to fail the test, constitutes probable cause to arrest for DUI.” TR 222.

Moreover, the panel and the trial court absolutely ignored KSP lab tech Ryan Johnson’s testimony that Klonopin itself could cause “positive” HGN signs. VR 4; 1/22/2008; 2:59:55. The panel (and the trial court) also absolutely ignored Johnson’s testimony that even if he had the equipment to test Rachel Leatherman’s blood for the presence of Klonopin, the simple presence of the drug was not an indicator that the person was under the influence such that she could be charged with, let alone convicted of, driving under the influence of an intoxicant. Id., 3:03:36.

Conclusion

The panel ignored the facts and law of this case in affirming Rachel Leatherman’s convictions for driving under the influence. Moreover, the trial court ignored the facts and the law, including the dictates of RCr 9.38, when it used information gained from trial testimony to concoct a third set of findings of fact and conclusions of law. This Court must grant discretionary review.

2. The panel erred when it found the trial court properly granted the government’s motion in limine which prohibited defense counsel from mentioning that Rachel Leatherman asked Deputy McGuire to retrieve her watch from the backseat.

The panel found that the trial court did not abuse its discretion when it did not admit Leatherman’s statements to Deputy McGuire from the back of his cruiser. The panel said, “the trial court indicated that it would permit Leatherman to testify to her statement regarding the watch had she opted to take the stand in her own defense.” Leatherman, supra, at *10. That finding is inconsistent with the trial court’s ruling that Leatherman’s statements were inadmissible, self-serving hearsay. VR 1; 1/22/2008; 8:56:24.

In light of the government’s announcement that it believed “801A(b)” prevented trial counsel from broaching the subject, this Court cannot seriously believe that had Leatherman testified, “I asked Deputy McGuire to look for my watch,” the government would not have been strenuously objecting on hearsay grounds. But why should Leatherman be forced to give up her right to remain silent to an admissible statement?

The panel next found, “Leatherman did not attempt to impeach Deputy McGuire’s prior statements regarding discovery of the watch and drugs through laying a proper foundation.” Leatherman, supra, at *10. The panel ignored trial testimony. In his cross-examination, defense counsel asked Deputy McGuire:

DC: How is it that you came to find the watch?

DM: Whenever she got out of the backseat, that’s when I found it.

DC: She actually asked you about the watch, didn’t she?

VR 2; 1/22/2008; 5:40:32. The government immediately objected.

It is hard to fathom what else counsel was doing besides beginning to lay a foundation so that he could cross-examine McGuire when he was prevented from doing so by the government’s objection and the trial court sustaining it. The panel focused on Leatherman’s alleged failure to impeach McGuire to the exclusion of the impeaching material to be discovered.

It absolutely ignored just how Deputy McGuire’s testimony changed in the months between the preliminary hearing, the suppression hearing and trial. At the preliminary hearing, McGuire’s testimony was that the watch and baggie were not in plain view. In fact, he testified that he saw the baggie only when he moved the seat. TPH 11.

By the time the suppression hearing came around, the baggie and Ms. Leatherman’s watch were in plain view next to her in the back seat. VR 4; 11/27/2006; 14:25:55. Interestingly, he also said Leatherman had told him before they went into the hospital that she had dropped her watch. Id., 14:28:15. At trial, McGuire testified that as he assisted Ms. Leatherman out of the cruiser at Lourdes Hospital, he saw a baggie with what appeared to be a rock of cocaine lying underneath her watch in the seatbelt crack of the back seat. VR 2; 1/22/2008; 4:06:20.

The panel could not then—this Court cannot now—reconcile McGuire’s conflicting accounts regarding whether he saw the baggie and watch in plain view or not in plain view. McGuire had been a member of the McCracken County Sheriff’s Department for four and one-half years. VR 1; 1/22/2008; 14:08:45. Presumably, he was familiar with the meaning of the phrase “plain view.” Yet, his story about plain view progressed over the months.

Finally, the panel opined that the outcome of the case would not have been changed because of the “strength of the rest of the testimony that was introduced, including the close proximity of the watch and the drugs as well as the search of the area prior to Leatherman’s placement in the cruiser.” Leatherman, supra, at *10. It is hard to fathom how testimony which changes in material ways from preliminary hearing to trial is “strong”.

The panel absolutely ignored Gretchen Dawes’s testimony about how she searched Rachel Leatherman’s person. Prior to Dawes’s arrival, McGuire testified, Rachel Leatherman emptied her front pockets. VR 4; 11/27/2006; 14:25:36.

Dawes searched the inside rear pockets of Leatherman’s jeans and made her open the front of her pants so she could search Leatherman’s crotch. She made Leatherman lift her shirt so she could search her breasts for concealed controlled substances. TR 26. Even McGuire conceded at the suppression hearing that Dawes’s search was “thorough.” VR 4; 11/27/2006; 14:25:40.

Yet, the panel believed the impossibility that Rachel Leatherman held onto a baggie with rock cocaine through a search of her vehicle and her person. Assuming for sake of argument that Leatherman did so, where did she conceal the baggie? As was clearly seen on the dashboard camera (the recording is a part of the exhibits in the file housed with the Clerk of the Kentucky Court of Appeals), McGuire had her open her hands up together, at one time—she could not have held the baggie in one hand, then the other. Dawes opened her jeans zipper—Leatherman could not have concealed the baggie in her crotch. Dawes had her raise her blouse—Leatherman could not have concealed the baggie in her bra. The search also begs the question of how Leatherman retrieved the baggie–in handcuffs–without moving enough to make at least one of the officers suspicious.

Conclusion

The panel ignored the facts and law of this case. This Court must grant discretionary review.

CONCLUSION

The panel ignored clear precedent and the facts of this case in affirming Rachel Leatherman’s convictions. Moreover, the panel also ignored the fact that the trial court’s findings of fact and conclusions of law changed over three iterations, one coming after it had heard all the trial testimony. Just as Deputy McGuire used after-acquired information, so, too, did the trial court. This Court must grant discretionary review.

Respectfully submitted,

JULIA K. PEARSON

NOTICE

Please take notice that the foregoing Motion for Discretionary Review will be filed in the Office of the Clerk of the Supreme Court on this 17th day of June 2011.

CERTIFICATE OF SERVICE

I hereby certify that a true and accurate copy of the foregoing Motion for Discretionary Review has been mailed, postage paid, to Hon. Jack Conway, Attorney General, 1024 Capital Center Drive, Frankfort, Kentucky 40601 and Hon. Samuel Givens, Jr., Clerk of the Court of Appeals, 360 Democrat Drive, Frankfort, Kentucky 40601, this 17th day of June 2011.

Julia K. Pearson


The Curious Case of the Three Suppression Orders (Part 3)

December 9, 2011

This music is fitting for this post ( and the FG legal case). You can simply click on the video and then read the post. You do not have to watch the video.

Part 1

Part 2

The Curious Case of the Three Suppression Orders (Part 3)

Author’s Note: Judge Clymer surprised us with a third suppression order that he issued out of the blue 3 days after the trial concluded. He did not inform us that he was considering modifying his second order and he did not schedule a hearing, request any input or allow any discussion or objections. He simply mailed it out as one might do with a letter bomb.

The order consists of the judge’s personal opinions set forth as findings of fact in a transparent effort to strengthen his order denying suppression by making stuff up and characterizing it as “unusual, suspicious, and disturbing,” even though Deputy McGuire never uttered those words at the suppression hearing. He even uses the word appellant, instead of defendant, obviously anticipating an appeal.

During my 30 years representing clients charged with felonies in state and federal courts, I never had a case in which a judge did this and I never heard of a case in which a judge did something like this.

3. The Third Suppression Order Issued Post-Trial on January 28, 2008.

In his third suppression order, the supplemental suppression order, Judge Clymer modified his first finding of fact in the second order (that correctly quoted what the caller reported to 911) by eliminating the quote and replacing it with the following statement.

The 911 dispatcher received a call from an identified public citizen, Vernon Wilkey, who reported that a white female driving a dark blue LeSabre with Washington State license plates made unusual and disturbing statements about heroin in his neighborhood.

(Finding of Fact 1)

Finding of Fact 2 states,

911 called deputies, and alerted them to the woman, her vehicle, and her suspicious drug activity.

Finding of Fact 3 characterizes the appellant’s driving and states,

The vehicle was travelling slowly in the right traffic lane of Highway 60 with the left-turn signal activated for an unusually long time for no apparent reason. The vehicle did not turn left, but continued on straight, which all appeared unusual and suspicious to the deputy.

Finding of Fact 4 (mis-numbered as a second 3) states,

The vehicle then pulled to the right side of the road and stopped without any signaling to do so by the deputy. This demonstrated additional unusual behavior by the appellant. The deputy then pulled in behind the appellant’s vehicle and activated his roadstop lights. By the time the deputy stopped, he had reasonable grounds and reasonable suspicion to approach the driver. He exited his cruiser and walked to speak to the driver.

Finding of Fact 5 (mis-numbered as 4) states in part,

The appellant failed all HGN tests. She also gave unusual responses to instructions given to her by the deputy; she appeared somewhat confused; she appeared nervous; and she appeared to the deputy to be under the influence of drugs or alcohol.

Finding of Fact 6 (mis-numbered as 5) states,

The appellant admitted to the deputy that she was on a number of medications, including Clonazepam. Clonazepam is a strong anti-psychotic medication which interferes with motor performance, including driving a motor vehicle. Clonazepam also causes abnormal eye movements.

Finding of Fact 7 (mis-numbered as 6) states,

The deputy had reasonable grounds and probable cause to arrest the appellant for DUI.

Finding of Fact 8 (mis-numbered as 7) states,

The appellant was transported to the hospital for the taking of a blood test. At the hospital a suspicious baggie was found next to the appellant’s watch in the back seat of the deputy’s patrol car. The deputy knew that the patrol cruiser did not have the suspicious plastic baggie or a watch before the appellant was placed into the back seat. The appellant admitted losing her watch. The deputy had probable cause and exigent reasons to seize the baggie. The baggie appeared to contain crack cocaine. The deputy had probable cause to arrest the appellant for tampering with evidence and possession of cocaine.

Conclusion of Law 1:

The caller who reported the appellant’s unusual interest in heroin was identified. Such a report is considered more reliable than an anonymous tip.

Conclusion of Law 2:

The deputy had reasonable suspicion and probable cause to make an investigation stop and search of the appellant and her vehicle.

Conclusion of Law 3:

Discovery of the suspicious plastic baggie in the back seat of the deputy’s cruiser was based on plain view discovery. The appellant and her vehicle had previously been detained based on the circumstances described above which proceeded (sic) the discovery of the baggie.

Author’s Note: We have previously discussed Deputy McGuire’s testimony under oath at the preliminary hearing in which he said he found the rock of crack under his rear seat while he was looking for Crane-Station’s watch that she had asked him to retrieve for her.

I was confident that the Court of Appeals would reverse on the suppression issue in this”unusual, suspicious, and disturbing” case, but it did not, and that is when I lost hope for an honest and judicious review of her case.

If this could happen to Crane-Station, it can happen to you. We are all lost when our judicial system ceases to function.


The Curious Case of the Three Suppression Orders (Part 2)

December 8, 2011

Author’s note: In case y’all missed it or want to refresh your recollection, Part 1 is here.

Deputy McGuire testified at the suppression hearing that he was dispatched by 911 to investigate a call by a citizen who reported that, “There’s this lady walking around in my neighbor’s yard talking to my neighbor and writing stuff down in a notebook and she mentioned something about tar heroin and all that stuff.”

The caller identified himself and described the woman and her vehicle. He also reported that the vehicle had a WA license and provided the number. He did not indicate if he had spoken with the woman; if he was present when the conversation took place; who told him about it if he was not present; or what she was writing down.

When he arrived in the area, the deputy searched for but he did not find the woman or the vehicle and he cleared the call without talking to the 911 caller. As he was approaching the traffic-controlled Cairo Road intersection in the passing lane on Highway 60, he noticed that he was passing a vehicle with its left turn signal blinking. The vehicle had WA plates and both the driver and the vehicle matched the description provided by the caller. He decided to pull her over and investigate.

He slowed down, allowing her to move ahead, and then he fell in directly behind her. She reacted by activating her right turn signal and moved over into the emergency lane along the right shoulder of the highway. As she did, he activated his emergency lights, moved over with her, and stopped behind her.

Upon request, she produced her license, registration, and proof of insurance without difficulty.

When he ordered her to get out of her vehicle, she did so without stumbling, and she followed his instructions without exhibiting any confusion or mental impairment. Other than “glassy” eyes and nervousness, he saw no signs of possible impairment. He administered a portable breath test (PBT) that she passed, effectively ruling out alcohol intoxication. Although she “failed all six clues” on the horizontal gaze nystagmus test (HGN), he administered the test improperly, according to the National Highway Transportation and Safety Administration (NHTSA) because he positioned her facing the headlights of oncoming traffic and his patrol cruiser’s emergency lights. NHTSA, which developed the test, warns police not to do that because the lights produce a false nystagmus.

The deputy conceded that he did not witness any bad driving and her blinking left-turn signal could have been due to her intending to move into the left lane, but his approaching vehicle in that lane prevented her from doing so.

After he placed her under arrest for DUI, he transported her to a hospital for a blood draw and discovered an apparent rock of crack next to her watch in the seatbelt crack of his back seat next to where she was sitting.

Author’s note: In another post we discussed his prior testimony under oath at the preliminary hearing and the grand jury in which he said he found her watch and the rock of crack under his back seat. In other words, he did not find it in plain view on the seat beside her. He said he pulled the back seat forward to look for her watch after she told him that it had fallen off and slipped behind the seat. She asked him to retrieve it because she was handcuffed and could not do it herself.

The trial judge entered three suppression orders.

1. The First Order.

On January 11, 2007, Judge Clymer issued his first order denying the motion to suppress evidence. Although all of the material findings of fact and conclusions of law were clearly erroneous, one finding of fact and its corresponding conclusion of law merit special consideration. In Finding of Fact 5, Judge Clymer wrote,

When Defendant first exited the [her] vehicle the Deputy observed a wristwatch in close proximity to a baggie with apparent controlled substance inside the car. Defendant denied the apparent controlled substance was hers but acknowledged the wristwatch was hers.

This did not inspire confidence as one can only wonder how the judge forgot or became confused and thought that the rock of crack was discovered in her vehicle rather than the police cruiser.

Not to worry, we thought. We pointed out that and other errors and asked him to reconsider his order, which he agreed to do.

2. The Second Order

On January 18, 2008, Judge Clymer entered his second order concerning the defense suppression motion. He found that while driving “in a right hand traffic lane with her left turn signal activated, [the appellant] did not turn but pulled to the right side of the roadway and stopped.” (Finding of Fact 3) “The deputy pulled in behind the stopped vehicle and activated his emergency lights.” (Finding of Fact 4) He concluded that the arresting officer “did not conduct a stop of the appellant’s vehicle” because she “pulled off the roadway and stopped” before “he pulled in behind her and turned on his emergency lights so as to investigate.” (Conclusion of Law 1)

Author’s note: We have already discussed whether this was an investigatory stop initiated by a police officer or a voluntary citizen initiated contact with a police officer. This was an investigatory stop.

Judge Clymer also concluded that “[t]he combination of a report of an unknown person, driving a Washington state licensed vehicle in a Paducah, Kentucky residential area, asking about tar heroin, later observed to signal a left turn but pull off the roadway to the right, constitutes reasonable suspicion to investigate and possibly cite for improper signal.” (Conclusion of Law 2)

Author’s note: A person who calls 911 to report a possible crime is presumed to have provided reliable information if he identifies himself and provides a current address. Since the caller in this case provided the requisite information, he would be presumed to have provided reliable information. However, even if one assumes that his information was accurate and reliable, he did not describe criminal activity. In addition, the judge’s findings of fact conflict with the information provided by the caller and the deputy’s testimony, which described an alert driver operating her motor vehicle in compliance with the traffic laws. He could not have cited her for “improper signal” because no such statute exists. Since the information provided by the presumptively reliable caller and the deputy described lawful activity, the judge erroneously concluded that the deputy had a reasonable suspicion “to investigate and possibly cite for improper signal.”

Regarding the appellant’s arrest, he found as fact that the appellant admitted that she had taken several prescription medications, including Clonazepam. (Finding of Fact 6) He also found that “[t]he maker of Clonazepam warns that it should not be used when driving a vehicle and that the drug causes abnormal eye movements.” (Finding of Fact 7) He concluded, “[d]efendants inquiring about heroin, failing an HGN test, signaling a left turn and pulling off the road to the right, and stating she was taking medication that would cause her to fail the test, constitutes probable cause to arrest for DUI.” (Conclusion of Law 4).

Author’s note: We have already discussed the HGN and Clonazepam issues noting that the product insert does not warn “that it should not be used when driving a vehicle and that the drug causes abnormal eye movements.” It advises physicians to warn their patients for whom they first prescribe Clonazepam to be careful because the drug might cause drowsiness and impair their ability to operate a motor vehicle or other machinery. If that happens, the dosage can be lowered to avoid impairment. This is actually a common warning given for many drugs that are prescribed to improve functioning. Clonazepam is such a drug and it is prescribed to enhance function by reducing anxiety and to control seizures. Dosage is critical. Assuming the judge was honest, the rest of the finding establishes that he was thinking of a different case when he crafted this effort.

To be continued.


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