Monday, April 21, 2014

SCOKY speaks - April - Part I

The Supreme Court of Kentucky issued twelve published opinions on April 17, and there is a lot of meat on that bone. More meat than I can chew in one meal. This is the first installment.

Three criminal appeals.

Minks v. Commonwealth, 2012-SC-000316-MR, April 17, 2014

Criminal search and seizure - Search warrant probable cause - Judicial ethics & disqualification

1. Held: Judge's participation in probable cause determination to issue search warrant, determination of probable cause and issuance of search warrant does not, per se, disqualify same judge from conducting suppression hearing on evidence discovered upon execution of the search warrant on Due Process fundamental fairness grounds. Abuse of discretion is the standard of review for Circuit Court judge's overruling Defendant's motion to transfer case and refusal to recuse.

Standard of review:

"The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles."

2, The issue of an ethical appearance of impropriety for one judge to determine probable cause for search warrant and also to conduct suppression hearing in the same case is a question of first impression in Kentucky.

Held: "[W]e decline to adopt a rule that any judge must automatically recuse from hearing a challenge to a search warrant which he or she issued. As in other contexts, pursuant to statute and our rules governing judicial ethics, there must be evidence drawing the judge's impartiality into question before an appellate court will find abuse of discretion in the judge's refusal to recuse."

3. Did the affidavit presented support probable cause for the issuance of a search warrant?

a. Appellee's suppression motion did not allege that the deputy who procured the warrant purposefully or recklessly included false statements in, or omitted material facts from, his affidavit. An evidentiary hearing on a motion to suppress may not be necessary when the issue hinges upon only the information contained within the affidavit itself. The fact that the Circuit Court conducted an evidentiary hearing that elicited additional information in support of probable cause, which was not contained within the affidavit, is irrelevant.

"[A]n evidentiary hearing often is not necessary [to rule on a motion to suppress] when a search is based on a warrant, the exception being where the defendant alleges that the issuing judge was presented with an affidavit containing false statements or omitting material facts."

b. The lack of an assertion in the affidavit concerning the reliability of the informants simply factors into the totality of the circumstances assessment. The fact the affidavit in support of search warrant did not contain recitations as to a confidential informant's reliability and basis of knowledge was not conclusive on the question of whether warrant was issued without probable cause.

Note: Well, it seems the defendant did allege the omission of a material fact after all.

"When faced with a motion to suppress, a trial court judge must 'determine whether under the totality of the circumstances presented within the four corners of the affidavit, a warrant-issuing judge had a substantial basis for concluding that probable cause existed.' "

"It is well established that '[s]earch warrants must be supported by probable cause to satisfy the dictates of the Fourth Amendment.' "

"[P]robable cause is a 'practical, commonsense decision' that given all the circumstances set forth in the affidavit" there is 'a fair probability that contraband or evidence of a crime will be found in a particular place.' "

"It is the duty of the judicial officer to issue or deny the warrant based solely on the facts contained within the four corners of the affidavit."

c. That the affiant-officer personally observed marijuana on the premises and included that fact as support for probable cause, in addition to information from a confidential informant, it did not preclude the search for and seizure of methamphetamine production evidence. The search warrant, as requested and as issued, was not limited to a search for any particular controlled substance. 

Standard of review:

"When reviewing a suppression hearing ruling regarding a search pursuant to a warrant, appellate courts must first determine if the facts found by the trial judge are supported by substantial evidence, (in those cases where an evidentiary hearing was necessary) and then determine whether the trial judge correctly held that the issuing judge did or did not have a substantial basis for concluding that probable cause existed."

- ooOoo -

Kavanaugh v. Commonwealth, 2012-SC-000820-DG, April 17, 2014
Court of Appeals: 2012-CA-000185-MR (Unpublished)

Criminal search and seizure - Stop and frisk

During a "Terry" stop and frisk with doubtful justification, the Appellant assaulted the police officer which triggered Appellant's arrest and full search. Crack cocain was located on Appellant's person. Appellant moved to surpress the evidence based upon the illegality of the initial stop and frisk.

Held: "The search of Kavanaugh's person that yielded the cocaine occurred after the arrest, not during the Terry frisk. Therefore, the contraband was obtained from a valid search incident to a valid arrest. . . We conclude that Kavanaugh's assault of Officer Rice constituted an intervening act that purged the taint, if any, that resulted from any detention which may have violated the Fourth Amendment."

Standard of review:

"Our standard of review of the trial court's denial of a suppression motion is twofold. First, the trial court's findings of fact are conclusive if they are supported by substantial evidence; and second, the trial court's legal conclusions are reviewed de novo."

Stop and frisk

"An 'officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions. But the detainee is not obliged to respond'[cite omitted] Whether a Terry detainee is required, to provide identification to an officer is determined by state law."

"[a] state law requiring a suspect to disclose his name in the course of a valid Terry stop is consistent with Fourth Amendment prohibitions . . . in states without such laws, 'a suspect may decline to identify himself without penalty.'"

"[T]he Commonwealth of Kentucky is not a 'stop and identify' jursdiction. Therefore, absent a statute requiring disclosure, Kavanaugh could not have been arrested and prosecuted for failure to provide identification. However, since an officer is constitutionally permitted to request identification, any failure to comply may still be considered along with other sufficient factors demonstrating reasonable suspicion."

"It is well-settled that '[t]here is no right to use self-defense during an arrest.' "

- ooOoo -

Commonwealth v. Goss, 2011-SC-000780-DG, April 17, 2014
COA 2010-CA-000298-MR (Unpublished)

Identity theft - Mutually exclusive crimes - Sufficiency of evidence.

Goss's conviction for identity theft was reversed on two grounds. First, fraudulently obtaining a checking account was combined with fraudulently obtaining credit cards in a single count, and these two aspects were not differentiated in the jury instructions. However, Goss was charged with violating KRS 514.160, identity theft, which specifically excludes credit card fraud.

"Goss, however, cannot be prosecuted for identity theft under KRS 514.160 for obtaining the credit cards because the statute expressly precludes it. The entire statute is subject to KRS 514.160(4), which states: 'This section does not apply to credit or debit card fraud under KRS 434.550 to 434.730.' KRS 434.550 to 434.730 is the Credit and Debit Card Crime Act." 

Second, the evidence was insufficient. The evidence consisted of testimony that Goss had access to another's Social Security number and that fraudulent accounts were addressed to Goss's former residence. This simply was not enough. Also, although not given any significance by the court, the victim of the fraud was an ex-husband.

Personal cynical suspicions: My mind runs to the possibility of a reverse-whammy, or fraudulent set-up, by the ex. I think I'd like to more convincingly eliminate that twist before sending anyone to jail.

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