Stephen J. Nardi: Recent Criminal Law Developments

On June 7, 2002, the Montana Supreme Court in State v. Spang, 2002 MT 120 reaffirmed and amplified its previous ruling in State v. Johnson, 221 Mont. 512 (1986) involving a defendant's waiver of his right to counsel under U.S. v. Miranda.

The Court reaffirmed the general rule under the Federal Constitution that if a suspect requests counsel at any time during an interview, they are not subject to further questioning until a lawyer has been made available, or until the suspect re-initiates conversation with law enforcement officers. Edwards v. Arizona, 451 U.S. 477 (1981). They also restated that the right to counsel afforded by Article II, Section 24 of the Montana Constitution is broader than the rights afforded by the United States Constitution. State v. Johnson supra.

The question in Spang, was whether or not Spang's request for counsel was ambiguous and equivocal so that the interviewing officers could further question him to clarify whether or not he really wanted an attorney under U.S. v. Davis, 512 U.S. 462. In Johnson, supra, the defendant, after being given his Miranda warning, stated "I would like to talk to somebody." The Court held that this request was sufficient to invoke the defendant's right to counsel stating that the "somebody" he referred to was an attorney. After having received his Miranda warning, Spang stated "shit, I need a lawyer, man." In Spang, the Court said "we recall few requests which exceed the clarity and lack ambiguity as illustrated by Spang's request for counsel. Here, Spang specifically requested a lawyer after he was Mirandized, unlike the defendant in Johnson who merely requested to speak to somebody. Accordingly, we conclude that Spang's request for counsel is neither ambiguous nor equivocal."

The Court further held that since counsel was not made available to Spang, nor did he initiate the portion of the conversation wherein he provided the incriminating statements to law enforcement officers, then Spang did not voluntarily waive his right to counsel and those statements must be suppressed.

It is obvious that the Supreme Court is telling the District Courts that Montana had adopted a "bright line" rule when considering whether or not a defendant has unequivocally and unambiguously waived his right to counsel. Essentially, the Court is saying that a defendant's waiver of counsel had better be pretty darn clear or it will be suppressed.

On August 22, 2002, the Montana Supreme Court in State v. Harold Lee Stevens, further clarified the elements of proof under § 45-5-503, MCA, for Sexual Intercourse Without Consent. Unlike the facts of State v. Haser, 2001 MT 6, this case dealt with the definition of "physically helpless" under § 45-2-101(56), MCA. In relevant part, the term "without consent" is defined in § 45-5-501, MCA:
(b) The victim is incapable of consent because he is: ...(ii) physically helpless...

"Physically helpless" means that a person is unconscious or is otherwise physically incapable to communicate unwillingness to act under § 45-2-101(56). In the case at bar, the Court held that a sleeping victim of sexual intercourse without consent is physically helpless under that definition. The Court goes on to state that whether or not a victim is "sleeping" is a factual question for the jury. The Court reasoned that even though this is a case of first impression in Montana, they had previously concluded that sleeping victims could not consent to sexual intercourse. State v. Lundblade, 221 Mont. 185 (1986).

The practical effect of this ruling for Stevens, was that only one of his convictions for Sexual Intercourse Without Consent was allowed to stand because the victim had allegedly been sleeping to such a degree that she was "physically helpless." In the light most favorable to the prosecution the Court held that the facts supported the conviction. Since Stevens received his sentences concurrently on the charges, it didn't help him too much. Defense counsel needs to explore the "sleeping" component in these types of cases very carefully. As the Court noted in Stevens, there are many varying degrees of sleep.

On September 10, 2002, the Montana Supreme Court in State v. Evelyn Logan (2002 MT 206), again declined to address the issue of whether or not a drug detecting dog sniffing of the exterior of an automobile constituted a search under the Montana Constitution. Amicus briefs were filed on behalf of the defendant by the ACLU of Montana and for the State by the Montana County Attorney's Association. The Court instead reversed the case on the narrow grounds that exigent circumstances did not justify the officer's warrantless search of Logan's car and purse. Clearly this issue will come up time and time again and will eventually have to be decided by the Court.

The facts of this case are very interesting and enlightening. This case is an example of how far down the road of unbelievability the State will go to justify law enforcement behavior. The automobile in question was driven by a character known to the police officer, and stopped for failure to have the rear license plate illuminated, contrary to § 61-9-204(3). (Is it possible that this was a pretext stop)? After the stop the officer called for the Drug Sniffing Canine Unit for "officer safety" reasons. (Really)? Of course since the driver was known to be a bad actor, it was necessary for the officer to get all 3 occupants out of the car and conduct a pat-down search on each one. Then, because the dog "alerted" outside of the car, it became necessary for the officer to search the automobile, including the defendant's purse which was in the back seat.

From a defense perspective, this case comes dangerously close to not even being able to pass the laugh test. Beware defense counsel. I suspect that more of these are on the way.

In State of Montana vs. James K. Tackett, 2003 MT 81, the Montana Supreme Court again addressed the issue of dog sniff searches in a drug case. In this case the Court held that a dog sniff of the exterior of a vehicle is in fact a search, but that it fits a narrow exception to the warrant requirement if particularized suspicion exists for the search. The Court determined that the defendant did have an expectation of privacy in the contents of his trunk and distinguished this case from its previous holding in Sheetz, 286 Mont. 41 (1997). The Court reasoned that in Sheetz the defendant put his luggage into the public purview when he took it to the airport and therefore lost his expectation of privacy. In Tackett Court said that "when a person stores something in a concealed area of a vehicle and seeks to preserve their privacy, that privacy has constitutional protections." The Court balances the nature of the State's intrusion against the defendant's expectation of privacy in holding that a dog sniff search is a narrow exception to the warrant requirement, however in this case the Court, having examined all of the facts of the case, found that law enforcement had no particularized suspicion upon which to base the dog search. In short, Tackett stands for: (1) a driver of a vehicle does have a constitutionally protected expectation of privacy for items contained in the trunk of a vehicle; and (2) the State must have a particularized suspicion based upon the facts in order to take advantage of the narrow exception to the warrant requirement allowing dog-sniff searches of the vehicle.

In State v. Callie Hamilton, 2003 MT 71, the Court addressed an interesting issue with regard to a lost wallet. The facts of the case are that Ms. Hamilton lost her wallet; it was turned into the police station; the police officer located the identity of the owner of the wallet by the driver's license which was in plain view as the wallet was opened; and the officer then searched all of the individual compartments of the wallet to "inventory" its contents. The Court held: (1) That the owner of a lost wallet retains an expectation of privacy although that expectation is diminished somewhat by the necessity of the finder to learn the identity of the owner; (2) That this was not a case of abandonment as the District Court found, because in an abandonment situation the owner loses all expectation of privacy -- the lost vs. abandonment differentiation was key in this case; and (3) That because of the nature of the expectation of privacy in the wallet and because the police did not need to search all of the compartments of the wallet in order to safely preserve its contents, the warrantless search was a violation of the Defendant's constitutional right to privacy under Article II, Sections 10 and 11 of the Montana Constitution. The Court correctly noted that "few things are more inherently private than the contents of a wallet or a purse." This case reflects the recognition of that fact.

In State vs. Rardon, 2002 MT 345, the Supreme Court strengthened its previous position regarding plea bargain agreements and specific performance. The Court re-emphasized the fact that plea agreements are a contract between the State and a Defendant and are subject to contract law standards. State vs. Munoz, 2001 Mont. 85. In this case the Court addressed a prosecutorial tactic common in Flathead County. The prosecutor technically recommends that the Court impose the sentence agreed upon, however then goes out of his way to solicit inflammatory testimony from victims so that the Court will oppose the agreed upon sentence. The Court held that when a prosecutor merely pays "lip service" to the plea agreement, as opposed to when a prosecutor has fairly but strongly presented the State's case in order to influence a Court to accept the plea recommendation, the prosecutor has, in fact, not performed his obligations under the contract. The Court, after reviewing all of the facts of this case, concluded that the prosecutor did undercut his own plea agreement and therefore the Defendant was entitled to either withdraw his guilty plea o r require specific performance of the plea agreement at a new sentence hearing. Interestingly enough, the Court ordered the State to be represented by a different prosecutor in front of a different Judge on remand. Hopefully this case will put an end to this type of prosecutorial practice.

In State vs. Sherer, 2002 MT 337, the Montana Supreme Court addressed one of the most bizarre criminal cases in Montana in this writer's memory. Sherer placed a series of random telephone calls from the State of Florida to approximately 40 women residing in the Bozeman area. During these conversations he would impersonate a doctor, and would somehow convince these women to harm themselves physically. One woman cut her nipple, another woman cut her nipple off, and yet another woman placed a knife inside of her vagina. Among other counts, Sherer plead guilty to Aggravated Assault, reserving his right to his appeal. On appeal, the Court basically had to address the question of whether or not Sherer's conduct, if true, constituted Aggravated Assault. The Court considered the statute literally and discussed the meaning of "conduct" and "act" under § 45-2-101, MCA. Sherer argued that the causal link between the Defendant's alleged acts and the resulting injury of the victims was non-existent. Basically his argument was that the injuries were self-inflicted and but for the victim's conduct the injury would not have occurred. The Court essentially held that under Montana's definition of "act" and "conduct" the Defendant's conduct did constitute the offense of Aggravated Assault if his conduct resulted in the intended injury. Perhaps this case has more to do with an intended result rather than a logical analysis of the facts.

In State vs. Shreves, 2002 MT 333, the Montana Supreme Court addressed a fairly common "catch-22" situation which arises when a Defendant continues to maintain his innocence after being found guilty. Shreves maintained his innocence throughout trial, and during his sentencing for a Deliberate Homicide conviction. The District Court handed Shreves a stiff sentence and stated on the record that it was in part because of his failure to show remorse or accept responsibility for his actions. Article II, Section 25 of the Montana Constitution is a broader protection than the 5th Amendment of the Federal Constitution, even though the language is similar. State v. Johnson, 221 Mont. 503 (1986). The Court relied upon its previous holdings on this issue in State vs. Imlay, 249 Mont. 82 (1991) and State vs. Fuller, 276 Mont. 155 (1996). In holding that Shreves was improperly penalized for maintaining his innocence pursuant to his constitutional right to remain silent, the Court was careful to point out that a trial court can certainly consider a Defendant's lack of remorse in sentencing, but that lack of remorse can be gleaned from many other factors other than the Defendant's maintaining his innocence throughout the proceedings. The Court said, "To allow sentencing courts to do otherwise would force upon the defendant the HOBSON'S choice which is condemned by the 5th Amendment and Article II, Section 25 of the Montana Constitution, specifically that the defendant must either incriminate himself at sentencing and show remorse (with respect to a crime he claims he did not commit) or in the alternative stand on his right to remain silent and suffer the imposition of a greater sentence. To compel that of a defendant is constitutionally impermissible."

In State v. Martinez and Olson, 2003 MT 65, the Montana Supreme Court continued its strict scrutiny of pretext vehicle stops. In this case the Defendant's vehicle was stopped because the police officer could not read the temporary sticker in the rear window of Martinez's vehicle. He walked up to the car and as he did so he noticed the sticker, could read it, and it appeared to be valid. However, instead of ending the investigatory stop at this point, the officer proceeded to further investigate. As the court has previously held in Pratt 286 Mont. 156 (1997) and other similar cases, "whether a particularized suspicion supports an investigative stop is a question of fact that is analyzed in the context of the totality the circumstances." The court pointed out that under § 46-5-403, MCA, an investigative stop is a temporary detention that "may not last longer than is necessary to effectuate the purpose of the stop." The court held in this case that once the officer saw that the sticker was current and therefore not illegal, his inquiry should have ended at that time. Of course the reason that he didn't was because they had a confidential informant's tip that the Defendants were carrying a load of marijuana. The court again discussed Pratt, supra, to evaluate the reliability of the informant's tip as a basis for the particularized suspicion. In applying the Montana Constitution to a higher standard than Federal case law, the court held that an allegation of criminality from an unreliable informant that has no known basis in fact does not constitute objective data from which an officer may legitimately infer a particularized suspicion. Therefore, the defendant's motions to suppress should have been granted and the case was reversed and remanded. Again, the Court is very careful to limit the use of pretext stops in Montana based upon a higher standard of the Montana Constitution. This case, combined with the Tackett decision, 2003 MT 81, clearly indicates Montana's stricter standard.