On Point

Pierce County v. Troy H., 2012AP2525 and 2012AP2526, District 3, 2/19/13; court of appeals decision (1-judge, ineligible for publication); case activity

The circuit court termination decision was the result of an erroneous exercise of discretion because the court failed to consider the statutory factors:

¶8        Troy asserts the circuit court erroneously exercised its discretion because the record shows that the court did not consider any of the Wis. Stat. § 48.426(3) factors when determining it was in the children’s best interests to terminate his parental rights. The County, relying on Julie A. B., 255 Wis. 2d 170, ¶30, responds that the court sufficiently “alluded” to the § 48.426(3) factors because the County presented evidence that would support termination based on the factors. See Julie A. B., 255 Wis. 2d 170, ¶30 (“The court should explain the basis for its disposition, on the record, by alluding specifically to the factors in … § 48.426(3) and any other factors that it relies upon in reaching its decision.”).

¶9        We reject the County’s argument. That the County presented evidence that could support the court’s determination does not mean that the court, when explaining its determination, “allud[ed] specifically to the factors in … Wis. Stat. § 48.426(3).” See Julie A. B., 225 Wis. 2d 170, ¶30. Further, in Margaret H., our supreme court stated that “the record should reflect adequate consideration of and weight to each factor” listed in § 48.426(3). (Emphasis added.) Here, nothing reflects that the court considered the § 48.426(3) factors when determining it was in the children’s best interests to terminate Troy’s parental rights.

In addition, the evidence presented in support of termination was “not uncontroverted,” though the circuit court did not explain how it considered the conflicting evidence in making its determination. (¶10). Accordingly, the court of appeals concludes the circuit court erroneously exercised its discretion and therefore reverses and remands for a new dispositional hearing.

State v. Brian A. Gottschalk, 2012AP2351, District III (not recommended for publication).  Case activity.

Wow!  Two decisions overruling the denial suppression motions in one day.  In this case, the State charged the defendant  with OWI and operating with a PAC, both as second offenses.  The defendant moved for suppression of evidence on the grounds that the officer seized him without reasonable suspicion.  He lost the motion and pleaded no contest to the OWI, second offense.

Issue:  Was the defendant “seized” when the officer pulled behind his parked vehicle and activated the squad car’s red-and-blue-emergency lights given that a reasonable person would have believed he was not free to leave? See United States v. Mendenhall, 446 U.S. 544, 554 (1980).  Or, as the State argued, was he “seized” once he was apprehended by the officer on the theory that seizure occurs when “an officer applies physical force, however slight, to restrain the person’s movement or when the person submits to a show of authority.”  State v. Young, 2006 WI 98,¶3, 294 Wis. 2d 1, 717 N.W.2d 729 (citing California v. Hodari D., 499 U.S. 621, 626 (1991).

Holding:  When a person submits to a police “show of authority,” the Mendenhall test for seizure applies.  When a person flees in response to a “show of authority,” the Hodari test applies.  A squad car’s activation of red-and-blue emergency lights amounts to a “show of authority.”  Here the defendant submitted to the lights, so that’s when the seizure occurred.  The court of appeals reversed the denial of the defendant’s suppression motion and remanded the case for a determination of whether the seizure was lawful.

State v. La’Drea L., 2012AP1984 and State v. Ricky B., 2012AP2027, District 1, 2/20/13; consolidated court of appeals decision (1-judge, ineligible for publication); case activity: LaDrea L.; Ricky B.

The circuit court properly exercised its discretion when it determined termination was in the children’s best interests because it considered all of the statutory factors under Wis. Stat. § 48.426(3). The circuit court “did not say the precise words” of, or “expressly invoke[]” or “explicitly state” some of the factors. (¶¶19, 23, 27). Nonetheless, in a fact-intensive review of the trial court’s termination decision, the court of appeals concludes “[t]he record shows that the trial court properly applied the best-interests-of-the-child standard and, in doing so, properly considered the Wis. Stat. § 48.426(3) factors.” (¶28).

Johnson v. Williams, USSC No. 11-465, 2/20/13

United States Supreme Court decision, reversing and remanding Williams v. Cavazos, 646 F.3d 626 (9th Cir. 2011)

When a defendant convicted in state court raises a federal claim and a state court rules against the defendant in an opinion that addresses some issues but does not expressly address the federal claim in question, the federal habeas court must presume (subject to rebuttal) that the federal claim was adjudicated on the merits:

….AEDPA sharply limits the circumstances in which a federal court may issue a writ of habeas corpus to a state prisoner whose claim was “adjudicated on the merits in State court proceedings.” 28 U. S. C. §2254(d). In [Harrington v.] Richter, 562 U. S., at ___ (slip op., at 10) [(2011)], we held that §2254(d) “does not require a state court to give reasons before its decision can be deemed to have been ‘adjudicated on the merits.’” Rather, we explained, “[w]hen a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” Id., at ___ ([Richter] slip op., at 9).

Our reasoning in Richter points clearly to the answer to the question presented in the case at hand. Although Richter itself concerned a state-court order that did not address any of the defendant’s claims, we see no reason why the Richter presumption should not also apply when a state-court opinion addresses some but not all of a defendant’s claims. (Slip op. at 7).

A case of importance to counsel handling federal habeas litigation, though its holding should not be a surprise in light of Richter. The bit of slack in the decision that might benefit some litigants is its rejection of the government’s request to make the presumption of adjudication on the merits irrebuttable. (Slip op. at 10-11). The Court also gives some examples of the “unusual” circumstances under which the “strong” presumption might be rebutted—e.g., if the state standard applied to the federal claim is “less protective” or is “quite different from” the federal standard, or a provision of the Federal Constitution or a federal precedent was “simply mentioned in passing in a footnote or was buried in a string cite[,]” or, interestingly, if a federal claim is “rejected as a result of sheer inadvertence,…” (Slip op. at 11-12). How might that be demonstrated, one wonders? So does Justice Scalia, who concurred in the judgment but argued the majority’s standard “will guarantee protracted litigation”; he believes the only way to rebut the presumption is to show, “based on the explicit text of the court’s order, or upon standard practice and understanding in the jurisdiction with regard to the meaning of an ambiguous text, that the judgment did not purport to decide the federal question.” (Concurring op. at 1, 6).

Update: The original post neglected to link to our post on the cert grant in this case, which noted that the Seventh Circuit seemed to follow the same rule the Ninth Circuit applied in this case. Thus the importance of the decision to counsel handling federal habeas cases in the Seventh Circuit.

Evans v. Michigan, USSC No. 11-1327, 2/20/13

United States Supreme Court decision, reversing People v. Evans, 491 Mich. 1, 810 N.W.2d 535 (2012)

A trial judge entered a directed verdict of acquittal in favor of Evans after concluding the state had not provided sufficient evidence of a particular element of the offense. A state appellate court later ruled that the unproven “element” was not actually an element at all and thus ordered a retrial. Relying on precedent starting with Fong Foo v. United States, 369 U. S. 141, 143 (1962)—which recognized that the Double Jeopardy Clause bars retrial following a court-decreed acquittal even if the acquittal is “based upon an egregiously erroneous foundation”—the Supreme Court holds that Evans’s cannot be retried:

Our cases have applied Fong Foo’s principle broadly. An acquittal is unreviewable whether a judge directs a jury to return a verdict of acquittal, e.g., Fong Foo, 369 U. S., at 143, or forgoes that formality by entering a judgment of acquittal herself. See Smith v. Massachusetts, 543 U. S. 462, 467–468 (2005) (collecting cases). And an acquittal precludes retrial even if it is premised upon an erroneous decision to exclude evidence, Sanabria v. United States, 437 U. S. 54, 68–69, 78 (1978); a mistaken understanding of what evidence would suffice to sustain a conviction, Smith, 543 U. S., at 473; or a “misconstruction of the statute” defining the requirements to convict, [Arizona v.] Rumsey, 467 U. S. [203,] 211 [(1984)]; cf. Smalis v. Pennsylvania, 476 U. S. 140, 144–145, n. 7 (1986). In all these circumstances, “the fact that the acquittal may result from erroneous evidentiary rulings or erroneous interpretations of governing legal principles affects the accuracy of that determination, but it does not alter its essential character.” United States v. Scott, 437 U. S. 82, 98 (1978) (internal quotation marks and citation omitted). (Slip op. at 4).

The Court also reaffirms its cases defining “acquittal” to encompass any substantive ruling relating to the ultimate question of guilt or innocence (Scott, 437 U.S. at 98; Burks v. United States, 437 U. S. 1, 10 (1978); United States v. Martin Linen Supply Co., 430 U. S. 564, 571 (1977)) as well as the importance of distinguishing such substantive rulings from procedural rulings that may also terminate a case mid-trial but which are unrelated to factual guilt or innocence (like an error with the indictment or pretrial delay). The distinction is critical because “the law attaches particular significance to an acquittal,” Scott, at 437 U.S. at 91, so “a merits-related ruling concludes proceedings absolutely.” (Slip op. at 5).

There is no question the trial court evaluated the state’s evidence against Evans and determined that it was legally insufficient to sustain a conviction, for the trial court acted under a state rule requiring a directed verdict of acquittal on any charge on which the evidence is insufficient. (Slip op. at 6). Thus, the ruling was not a dismissal on a procedural ground unrelated to factual guilt or innocence; it was a determination that the state had failed to prove its case. That means Evans was acquitted, even though the trial court’s ruling was predicated on a clear misunderstanding of what facts the state needed to prove. (Id.).

State v. Turley, 128 Wis. 2d 39, 47-50, 381 N.W.2d 309 (1986), followed the precedent reaffirmed by Evans, and concluded “it is clear that federal constitutional law treats mislabeled or erroneous rulings as acquittals when those rulings resolve factual elements of the offense and that these de facto acquittals bar appeal by the state when new trials would be necessitated. It is further clear that even if the circuit court based its ruling on an erroneous standard of review, as the State argues in this case, double jeopardy precludes an appeal by the state if the ruling of the court resolved factual elements of the offense in Turley’s favor.” To the extent there was any doubt about whether Turley’s reference to “factual elements” covered an element mistakenly read into the offense, Evans removes the doubt.

At first glance  Evans appears to be of limited significance, as it reaffirms and relies on a long line of precedent. But the decision is noteworthy in several respects. First, the Court specifically rejected, as inconsistent with its precedent, the state court’s conclusion that because an element was mistakenly added, the trial court had not resolved any factual elements necessary to establish the crime; therefore, there was no acquittal, just an error of law unrelated to guilt or innocence on the elements of the offense. (Slip op. at 7).

The Court also rejects the suggestion that Evans could not complain about the error because he invited it. The Court recognizes most judgments of acquittal result from defense motions, so finding a waiver of double jeopardy protection whenever a trial court error in his favor on a midtrial motion leads to an acquittal “would undercut the adversary assumption on which our system of criminal justice rests, and would vitiate one of the fundamental rights established by the Fifth Amendment.” (Slip op. at 12, quoting Sanabria, 437 U.S. at 78). Likewise, the majority rejects the dissent’s suggestions that defense counsel “fooled the judge,” noting that counsel presented a colorable legal argument based on the persuasive authority of Michigan’s own criminal jury instructions, which, at the time, supported his position. (Slip op. at 12).

Finally, the Court rejected the government’s request to reconsider its precedent. (Slip op. at 14). There is no reason to believe the existing rules have become so “unworkable” as to justify overruling precedent, the logic of the cases still holds, and the states (and the federal government) can prevent this sort of situation, as nothing obligates them to afford its trial courts the power to grant a mid-trial acquittal or to defer consideration of a motion to acquit until after the jury returns a verdict (sometimes done in Wisconsin). As the Court says, “having chosen to vest its courts with the power to grant midtrial acquittals, the State must bear the corresponding risk that some acquittals will be granted in error.” (Slip op. at 16).

Florida v. Harris, USSC No. 11-817, 2/19/13

United States Supreme Court decision, overruling Harris v. Florida, 71 So. 3d 756 (2011)

In a unanimous decision addressing the question of when a drug-sniffing dog’s alert constitutes probable cause, the Supreme Court overturned the Florida Supreme Court’s requirement that the state produce records of the dog’s reliability in the field in order to support probable cause. The Court ruled that because the probable cause inquiry is a practical common-sense judgment based on the totality of the circumstances, it cannot follow any specific rules about what evidence must be provided. Thus, the Florida court improperly imposed a requirement that the state present  records of field tests and field performance. Instead, the Court holds:

If a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume (subject to any conflicting evidence offered) that the dog’s alert provides probable cause to search. The same is true, even in the absence of formal certification, if the dog has recently and successfully completed a training program that evaluated his proficiency in locating drugs. (Slip op. at 8).

The defense can then try to rebut the presumption with specific evidence:

A defendant, however, must have an opportunity to challenge such evidence of a dog’s reliability, whether by cross-examining the testifying officer or by introducing his own fact or expert witnesses. The defendant, for example, may contest the adequacy of a certification or training program, perhaps asserting that its standards are too lax or its methods faulty. So too, the defendant may examine how the dog (or handler) performed in the assessments made in those settings. Indeed, evidence of the dog’s (or handler’s) history in the field, although susceptible to the kind of misinterpretation we have discussed, may sometimes be relevant…. (Slip op. at 8).

Under Wisconsin’s existing test, a dog alert can provide probable cause for a search only where “the dog is trained in narcotics detection and has demonstrated a sufficient level of reliability in detecting drugs in the past and the officer with the dog is familiar with how it reacted when it smelled contraband.” State v. Miller, 2002 WI App 150, ¶12, 256 Wis. 2d 80, 647 N.W.2d 348 (emphasis added). A footnote to this sentence says this standard “suggests that there may be a need to obtain additional evidence to support probable cause when the dog has not yet established a proven track record that it is reliable.” To the extent Miller‘s “proven track record” language requires the kind of performance records Florida did, it goes too far; on the other hand, it could be read to be consistent with the Court’s emphasis on an evaluation of proficiency. The requirement that the officer be familiar with how the dog alerts, however, must still be valid: If the officer doesn’t know that, there would be no probable cause regardless of how accurate the dog is.

The Court’s general conclusion that there is no specific record or test for determining probable cause based on an alert by a drug dog is in keeping with the long-standing, flexible, “totality of the circumstances” approach to determining probable cause. But as Orin Kerr notes, while the Court says there is no particular test, it seems to create one: Certification from a “bona fide” organization based on reliability “in a controlled setting” or “recent[] and successful[]” completion of a training program, which creates a presumption of probable cause. While that presumption “can” be rebutted by the defense, it will apparently take “conflicting evidence.” Apparently, then, if the defense does not put on specific evidence of unreliability (through cross or by calling its own witnesses), the judge must find the dog to be reliable and probable cause to be established. A later statement by the Court seems to make this point, too:

In short, a probable-cause hearing focusing on a dog’s alert should proceed much like any other. The court should allow the parties to make their best case, consistent with the usual rules of criminal procedure. And the court should then evaluate the proffered evidence to decide what all the circumstances demonstrate. If the State has produced proof from controlled settings that a dog performs reliably in detecting drugs, and the defendant has not contested that showing, then the court should find probable cause. If, in contrast, the defendant has challenged the State’s case (by disputing the reliability of the dog overall or of a particular alert), then the court should weigh the competing evidence. In all events, the court should not prescribe, as the Florida Supreme Court did, an inflexible set of evidentiary requirements. The question—similar to every inquiry into probable cause—is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime. A sniff is up to snuff when it meets that test. (Slip op. at 9).

If you are seeking to challenge probable cause based on a drug dog alert, then, you need to do more than just argue the absence of evidence of tests or performance in the field that show reliability. And you will need to do more than just cross-examine the officer if he or she knows little about whether the training or certification program the dog went through is “lax” or “faulty.” In that situation, you’ll need to present your own “fact or expert witnesses,” or the court will be entitled to presume the dog is reliable. That possibility was why Florida imposed its requirement: The court said that because the state has the burden of proving probable cause, the defendant should not have the burden of showing the lack of reliability of the dog. Harris, 71 So. 3d at 759.

Bailey v. United States, USSC No. 11-770, 2/19/13

United States Supreme Court decision, reversing and remanding United States v. Bailey, 652 F.3d 197 (2d Cir. 2011)

The Court holds it was not reasonable for police to seize an individual incident to the search of the individual’s residence when the individual was not in the “immediate vicinity” of the place being searched. The holding is an elaboration of the rule from Michigan v. Summers, 452 U.S. 692 (1981), where police detained and later searched an individual who was “descending the front steps” of a house where police were about to execute a search warrant. Id. at 693.

Summers held that “a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.” Id. at 705.  Summers justified this rule based on the limited additional instrusive of the detention above and beyond the search itself, and by reference to three law enforcement interests: officer safety, facilitating completion of the search, and preventing flight. Id. at 701-03.  Bailey holds that neither Summers’s rule nor the three law enforcement interests support the seizure of someone, like Bailey, who had left the apartment to be searched and was not in the “immediate vicinity” of the place to be searched when he was stopped. (Slip op. at 6, 11, 13). As the concurrence succinctly puts it, “[b]eyond Summers’[s] spatial bounds, seizures must comport with ordinary Fourth Amendment principles.” (Scalia, J., concurring, at 5).

The basic facts: While some officers began a search of Bailey’s apartment, others followed Bailey when he and a companion left in a car. (Slip op. at 2). The police stopped and detained Bailey almost a mile away from the apartment. (Id.) He was then handcuffed and returned to the apartment. (Id. at 2-3). By that point the officers executing the warrant had found drugs and a gun in plain view. (Id. at 3). Unlike the ordinary Summers situation, where the person is on the premises, there was no need to protect against violence or evidence destruction by Bailey. (Id. at 8, 11). Likewise, Bailey’s absence meant he could not facilitate or hinder the search of the apartment. (Id. at 9-10). And detention away from the person’s home adds a degree of intrusiveness not present in Summers. (Id. at 12-13). Because Bailey was detained at a point “beyond any reasonable understanding of the immediate vicinity of the premises in question” his detention was unlawful. (Id. at 13).

The majority opinion says that because Bailey was clearly beyond the “immediate vicinity” of the apartment,

this case presents neither the necessity nor the occasion to further define the meaning of immediate vicinity. In closer cases courts can consider a number of factors to determine whether an occupant was detained within the immediate vicinity of the premises to be searched, including the lawful limits of the premises, whether the occupant was within the line of sight of his dwelling, the ease of reentry from the occupant’s location, and other relevant factors. (Slip op. at 13).

To the dissent this shows “immediate vicinity” is not a bright line rule, but instead is the substitution of  “a line based on indeterminate geography for a line based on realistic considerations related to basic Fourth Amendment concerns such as privacy, safety, evidence, destruction, and flight.”   (Breyer, J., dissenting, at 5, 9). No doubt there will be, as the dissent predicts, “case-by-case litigation,” though the dissent’s own interest balancing would lead to the same result.

Lawyers dealing with an issue governed by Bailey might look for guidance not only to the majority’s factors, but to the concurrence by Justice Scalia, which emphasizes that the “immediate vicinity” standard follows from Summers having established “a categorical rule” instead of a balancing test weighing interests of the police and the occupants. Because the general rule is that Fourth Amendment seizures are reasonable only if based on probable cause, Scalia writes, “Summers embodies a categorical judgment that in one narrow circumstance—the presence of occupants during the execution of a search warrant—seizures are reasonable despite the absence of probable cause.” (Scalia, J., concurring at 3). Stress on this “categorical limit”  might provide ammunition for arguing that “immediate vicinity” must be applied very narrowly.