A South Carolina Criminal Defense Blog

U.S. v. Robertson (4th Cir.) – consent or submission?

In U.S. v. Robertson, decided December 13, 2013, the Fourth Circuit Court of Appeals held that a defendant, who responded to an officer’s request for consent to search by remaining silent and placing his hands over his head, did not consent to the search but rather was submitting to what he perceived as the officer’s command.

A number of officers approached a group of black men at a bus stop, looking for two black men wearing white shirts that may have just been involved in a fight.  An officer searched Robertson (who was not wearing a white shirt), found a pistol on him, and charged him with felon in possession in federal court.

The Fourth Amendment prohibits unreasonable searches and seizures.  Searches without probable cause are presumptively unreasonable, unless the person consents to the search.  The government has the burden of proving consent.  The Court outlines factors to consider when determining if consent was given:

Relevant factors include the officer’s conduct, the number of officers present, the time of the encounter, and characteristics of the individual who was searched, such as age and education. Lattimore, 87 F.3d at 650. Whether the individual searched was informed of his right to decline the search is a “highly relevant” factor. Wilson, 895 F.2d at 172.

Despite the District Court’s characterization of the officer’s testimony as credible and Robertson’s as not, the 4th Circuit reverses and bases their ruling solely on the testimony of the officer.  The Court finds that Robertson’s actions were not “voluntary consent to a request,” but rather they were “begrudging submission to a command.”  There were numerous officers around the bus shelter where Robertson was approached, including 3 patrol cars and 5 uniformed officers with guns.  Robertson watched the other people in the bus shelter “get handled” by the other officers.  The officer’s first question was accusatory: “do you have anything illegal on you?”

Robertson remained silent and did not respond, at which point the officer waved him forward and asked to conduct a search.  Robertson’s exit was blocked by the officer and the officer did not inform Robertson that he had a right to refuse the search.  The Court finds that these circumstances effectively communicated to Robertson that he was not free to leave or to refuse the search – it appeared that his options were 1) submit to the search; or 2) resist the search; and Robertson sensibly chose to submit.

This case is a reminder to take a hard look at the circumstances involving alleged consent to search – particularly if the defendant remained silent and the officer proceeded without a verbal acknowledgement of consent to search.  Even when the defendant does give verbal consent, it is worthwhile to take a hard look at the circumstances – consent is not valid if it is not voluntary, and in a situation such as that described in Robertson, the consent arguably would not have been valid even if it was verbal, because, under the circumstances, it was not voluntary.

Another common example of invalid consent is when the officer obtains consent to search on the side of the road during a traffic stop – if there is no reasonable suspicion for a continued detention and the original purpose of the traffic stop has been completed, the officer has launched a second detention (a second “Fourth Amendment event”) and, without reasonable suspicion to further detain the person, the consent is invalid (see, e.g. State v. Williams 351 S.C. 591, 571 S.E.2d 703 (Ct. App. 2002); State v. Pichardo, 367 S.C. 84 (Ct. App. 2005)).

State v. Sawyer – DUI – non-compliance with videotape requirement

State v. Sawyer, decided June 4, 2014, is the latest in a line of DUI cases where the S.C. Supreme Court re-affirms Suchenski and enforces the mandatory videotaping requirements of South Carolina’s DUI/ implied consent laws.  The Court held that “a videotape from the breath test site that lacks the audio portion of the reading of Miranda rights and the informed consent law did not satisfy the requirements of S.C. Code Ann. § 56-5-2953(A)(2) (2006).”

The common thread in City of Rock Hill v. Suchenski and the cases that follow is simple and it is consistent – if the officer does not comply with the mandatory requirements of  56-5-2953, the remedy is dismissal unless the arresting officer submits a sworn affidavit setting forth a valid reason for the non-compliance that complies with the language of the statute.  No video, no audio on the video, Miranda is not shown on the video, FST’s are not shown on the video (under the current statute), video begins later than activation of the blue lights – it doesn’t matter what the non-compliance is, if it is listed in 2953 and it is mandatory, and there is no valid affidavit per the statute, dismissal is an appropriate remedy.

On the other hand, under another line of DUI opinions (see State v. Huntley, 349 S.C. 1, 562 S.E.2d 472 (2002)), procedural violations that are not mandatory in the statute do not necessarily result in dismissal, but the defendant must show that he/she was prejudiced by the error.  Statutory language that uses terms such as “shall” or “must,” such as the videotaping requirements listed in 2953, are mandatory and are not governed by Huntley.  The State argues that defects in the videotape go “to the weight of the evidence, not it’s admissibility -” but the Supreme Court holds, consistently with Suchenski and other DUI opinions, that strict compliance with 2953(A) is a prerequisite for admissibility, unless an exception applies from 2953(B).

In Sawyer, there was no audio for the Datamaster room recording.  The Datamaster operator, who was not the arresting officer in this case, submitted an affidavit stating that the audio was not operating due to “exigent circumstances,” pursuant to 2953(B).  The circuit court in this case suppressed all evidence related to the breath test, including the video, any mention of the test, and the results of the test.  The Court of Appeals affirmed the suppression, and then the Supreme Court affirmed again in this opinion.  The Courts found that there were no exigent circumstances (exigency means an emergency, or something requiring immediate attention, and in this case the state didn’t even know about the audio malfunction for months), and that the wrong officer submitted the affidavit anyway – the statute says the “arresting officer” may submit an affidavit, not the datamaster operator.

Brevard County Judge John Murphy

I saw this last month but, well, I’ve been away from the keyboard for a few months now.  The video below shows a Brevard County, Florida, public defender in the courtroom with Judge John Murphy.  The public defender tells the judge he is not waiving his client’s right to a speedy trial, Judge Murphy gets pissed off, the judge takes the public defender into a back hallway and attacks him, then comes back out alone, without the public defender, and attempts to get the public defender’s client to waive his right to a speedy trial without his attorney.

The judge has not been charged with assault and it does not appear that he will, and he has not lost his job.  According to the chief judge, Murphy will take a leave of absence and seek anger management counseling.

The fight erupted after Weinstock refused to waive his client’s Sixth Amendment right to a speedy trial, apparently causing scheduling problems.

“You know, if I had a rock I would throw it at you right now – stop pissing me off, just sit down, I’ll take care of it,” Murphy said to Weinstock.

“You know I’m the public defender,” Weinstock countered. “I have a right to be here and I have a right to stand and represent my clients.”

An emotional Murphy sneered, “If you want to fight, let’s go out back and I’ll just beat your ass,” after which the two men left the courtroom. Loud smacking noises could be heard and a man – identified as Murphy in the police report – shrieked, “Do you wanna f-ck with me?”

Murphy then returned to the bench to applause from a shocked audience.

Gideon has more on Fightin’ John Murphy here, and Judge Kopf at Hercules and the Umpire has two short blog posts blaming the public defender for getting himself beat up by the judge.  Apparently he was “told by someone with a background in such things that: ‘[Judge] Murphy is one of the calmest guys around . . .'”  Also, the “career PD is an ankle biter.”

There’s undoubtedly some history between the two, and the video posted on Gideon’s blog shows a hearing or two prior to the one that blew up, where the public defender is again insisting on not waiving his client’s speedy trial rights.  The public defender is being obstructionist, is refusing to waive his clients’ rights, and is not being particularly nice about it.  In short, he is doing his job, which probably comes as a shock to judges or prosecutors who are used to attorneys waiving their clients’ rights and making the process easier for everyone.

I respect the fact that judges have a hard job, and I do not envy them in the least.  Different people are looking to you to maintain order, to run the court’s docket efficiently, to preserve the rights of defendants, to preserve the rights of victims, and through it all to maintain a calm and patient demeanor.  It’s a high standard, but necessary. In today’s courtrooms in the United States, there is never an acceptable excuse for a sitting judge to verbally or physically attack a litigant or attorney unless it is in self defense or defense of others.  Worse than the verbal and physical attack, is that the judge came back out, after getting rid of the defense lawyer, and tried to get the public defender’s client to waive his speedy trial without his attorney, which shows the judge’s motivation and his disregard for the rights of defendants in his courtroom.

Isolated incidents

My wife is working on a sociology degree.  In one of her classes, she is working on a project where she is supposed to highlight a community issue where a “fallacy” exists.  She chose to look at police misconduct, and the fallacy that she chose to highlight is the notion that, wherever police misconduct occurs or is alleged, it is an “isolated incident” and therefore there is no systemic problem.

She is complaining that there is no database or website that she could find with reliable statistics, so she researched newspaper articles where police misconduct was alleged in South Carolina, within the past 3 years only, and drew a map showing the allegations by county, to illustrate why the “isolated incident” excuse is a fallacy:

Download the PDF file .

Her map includes only incidents that were reported by the news media, and it does not include all incidents that were reported by the news media, because she was more concerned with showing how many counties it spans rather than creating an all-inclusive list.  The incidents on her map only go back three years.  Some involve officers that were charged with crimes, and they are innocent until proven guilty.  Others may involve officers that were not charged with a crime, that were disciplined, or that were not disciplined by their departments.  All are credible reports of misconduct, however.

The only way I know of to track allegations of misconduct is through the media reports, which certainly only contain the tip of the iceberg.  At one time, the National Police Misconduct Reporting Project was the most reliable collection of media articles nationwide, released daily.  Ironically, it was more reliable when one individual was in charge of publishing the statistics, but it appears to be useless/severely under-reporting since it was taken over the CATO institute.  I can only compare to the media reports in South Carolina, but they miss most of them.

 

Walker v. State – PCR granted where defense counsel failed to investigate alibi witness

In Walker v. State, decided March 19, 2014, the S.C. Supreme Court upheld the circuit court’s grant of post-conviction relief (PCR) to the applicant where defense counsel failed to investigate and interview a potential alibi witness.

The applicant had been convicted of criminal sexual conduct 1st degree and kidnapping, based on allegations that he had kidnapped a woman at a convenience store, held her captive and sexually assaulted her.  The applicant stated that, although he had been at the gas station on that day, he spent the night with his girlfriend’s home that night.  Trial counsel did not contact or interview the girlfriend, although trial counsel’s notes referenced her as a person that needed to be interviewed.

The girlfriend testified at the PCR hearing that no-one had contacted her and she did not know what had happened until she was contacted by PCR counsel, and that, although she could not testify as to the exact dates in question, she spent every weekend with the applicant up to the time he was arrested.  The Court found that, had the girlfriend testified at trial, there was a reasonable probability that the outcome would have been different.

The Court distinguishes Glover v. State, where an alibi witness would have testified that Glover was in Florida at 8:00 am, and the crime was committed at 8:30 pm the same day.  The drive from the location of the crime to the location in Florida was approximately 6 and a half hours, which means, if the jury believed the alibi witness, it still would not have precluded the defendant’s having committed the crime.  In Walker’s case, if the jury had believed that Walker was with the girlfriend the night of the alleged crime, it would have been physically impossible for him to have committed the crime.

Counsel has a duty to conduct an independent investigation, which means contacting and interviewing any alibi witnesses proffered by the defendant.  Failure to contact potential witnesses to determine if their testimony would help the defendant is not reasonable, and if the testimony would have resulted in a reasonable probability that the outcome would have been different, PCR should be granted.

Ex Parte Shurling – no prior approval, no attorney fees

In Ex Parte Shurling, decided April 9, 2014, the S.C. Supreme Court denied approximately $30,000.00 in attorney fees to two attorneys who were appointed to represent a client charged with murder, assault with intent to kill, criminal conspiracy, possession of a weapon during a violent crime, and possession of marijuana, because the attorneys did not obtain an order pre-approving the amount of their attorney fees.

South Carolina authorizes attorney fees in the amount of $40/hour out of court and $60/hour in court, up to a total of $3500.00 for appointed felony cases, including murder.  The same statute authorizes $500.00 in expenses, only if it is pre-approved.  This may seem like a lot of money to a layperson, but the truth is most law offices lose money at $40.00 an hour, taking into consideration their overhead, office staff, expenses, and paying clients whose cases they are not working on, or whose cases they miss completely because they are in a week long murder trial.

In this case, the attorney obtained a funding order that pre-authorized attorney fees of $100.00/hour (closer to a reasonable rate and closer to what federal courts pay), up to $15,000.00.  She just did not go back and get another funding order to increase the amount once she had reached the $15,000.00 limit.

On the one hand, all they had to do was go back and get a new order increasing the amount of attorney fees allowed.  Of course, one would have to keep careful track of their hours, anticipate when the limit is about to be reached, and then stop work on the case until a judge authorizes the increase.  On the other hand, if the amount of work that went into defending the client through trial was reasonable, then it was reasonable.  Its reasonableness doesn’t depend on whether the attorney has the foresight to have a judge pre-approve the attorney fees.

Denying an attorney payment for work they have already completed, based on their failure to get pre-approval, seems kind of shitty, to put it bluntly.  The state needs money, so indigent defense uses any excuse they can find to not pay the attorneys who work defending indigent clients.  Our state does not value attorneys who defend indigents.  Our legislature does not value them.  Our courts do not value them.  Our Office of Indigent Defense does not value attorneys who defend indigents.  Or the rights of indigents, for that matter.

Last year, the Commission on Indigent Defense moved to a system of conflict attorneys to save the state even more money.  Attorneys who volunteer for the conflict attorney contracts will get appointed cases at a flat rate of $900 per case, no matter the type case – drug possession, drug trafficking, armed robbery, murder, plea or trial, a flat rate of $900 per case.  How many attorneys can afford to shut down their office and try a murder case for $900?

We are guaranteed the right to counsel, not the right to counsel of our choice and not the right to the best counsel.  If we are asking the state to pay for our defense, we take what they give us, right?  Of course, we are guaranteed the right to effective assistance of counsel.  If we are convicted and we think we got the shaft, we can then file an action for post-conviction relief, alleging ineffective assistance of counsel, and we will get another appointed attorney to handle our PCR claim, one who has volunteered for a contract to handle PCR’s for a per-case flat rate.

 

Question and Answer

Just in case Google did not have the answer you were looking for, I am here to help.  Some search terms that brought people to Trial Theory in the past month:

rules and regulations on pretrial gps monitoring in south carolina – there are no rules governing when a gps monitor can and cannot be ordered as a condition of bond.  As a result, some magistrates and municipal judges will order it at random.  If it’s a non-violent crime, and there is no victim to protect, such as in drug cases, it doesn’t make sense to put someone on gps monitoring as a condition of bond.  If you are charged with a General Sessions level offense, you can automatically move in the Circuit Court to amend the conditions of your bond, and you have a good chance of getting the ankle monitor off it you’re charged with a non-violent offense.  If not, you can re-file the motion once every six months, or whenever there is a change in circumstances.

private prisons cheap labor - Prison labor amounts to forced slavery, and is booming business for the government and private corporations.

ineffective assistance of counsel did not convey final plea offer – if counsel does not convey a plea offer to the client, it can be grounds for post-conviction relief.  The courts can’t force the prosecutor to make the offer again once the case is remanded, although, in fairness, the prosecutor should.

what motivates criminal law – Society’s need to stop people from committing crimes, to protect us from one another, and to prevent vigilante justice?

how long does disorderly conduct stay on record first offense in south carolina law in 2014 – If it’s the only conviction on your record, it can be expunged after 3 years – it’s not automatic, you will have to take action to get it expunged.

duis money making machines – for government, for MADD money, for police departments, and for attorneys.  Everyone wins financially, except the guy who got arrested.

how do i win a failure to appear - show up in court?  Seriously, if it’s a failure to appear at roll call and it’s the first time it’s happened, your attorney may be able to get the bench warrant lifted.  Talk to an attorney before turning yourself in.

the hand of one is the hand of all” theory south carolina – it’s another way of saying “accomplice liability.”  Some police think that this means if you are there, you are also guilty – not true.  The elements include 1) you are present; 2) you know what’s happening; and 3) you take some action to participate in it.  Mere presence is never enough to convict a person.

counsel should not waive preliminary hearings - I agree.  Your case could be dismissed at a preliminary hearing.  If it is, the solicitor’s office can still get an indictment, but they don’t always.  Even if it’s not dismissed, it’s your best chance at getting testimony from the arresting officer before trial, at a point where he has not been prepped for testimony – if the testimony is helpful, your attorney can get a transcript made to use later.  On a related note, the Horry County public defenders office is no longer waiving their clients’ preliminary hearings, and from what I’ve seen they are doing a good job with them.

proscutor knows cop is lying – results on case - I suppose it depends on the prosecutor, doesn’t it.  1) prosecutor calls cop out and informs the court that cop lied, maybe case is dismissed or the jury is informed (not likely); 2) prosecutor says nothing, argues the false testimony to the jury, and defendant is convicted; or 3) most likely – you say the cop is lying, but the prosecutor knows no such thing; likely the prosecutor would say you are the one lying.

sc cdv 1 girlfriend and boyfriend both arrested - what if you both plead the Fifth Amendment and they have no witnesses?  What about that?  Anyway, get attorneys now.

i was sentenced to the youthful offender act does my record still show up – yes.  But – five years after the completion of your sentence, if you have no other convictions, you can get your record expunged.

when u make a statement why do some people say nothing – some people have sense.  Or read my blog.

in a drug case can county attorney withhold evidence til trail - in a perfect world, when the prosecutor produces evidence on the eve of or morning of trial, the evidence is excluded or the case dismissed, depending on the egregiousness of the violation.  In the real world, the Court will probably allow the evidence in, tell the defense that there is no prejudice, since you have the evidence now, and allow the case to go forward and the evidence to be presented.

i got arrested but not convicted for cdv in sc, can i buy a handgun? - they might make you wait until the case is over, but the answer is yes you can.

 

how much does it cost to get expungement in sc per charge - if an attorney is handling it for you, it depends on the attorney and the complexity of the expungement.  The court costs vary, depending on whether the charges were dismissed (no court costs) or whether it was a conviction that now qualifies for expungment.

i was arrested for cdv in 2009 in lexington, sc when can i have it expunge? If there was no conviction, you can have the arrest expunged at any time.  If you were convicted, it can be expunged after 5 years if there are no other convictions on your record.

lie detector test pro’s and cons - Just don’t do it.  Law enforcement uses the polygraph as an interrogation tool.  The test is not reliable.  It is so unreliable that it is never admissible in court.

can i buy a gun in south carolina if convicted of cdv 10 years ago - no you cannot.  But, if you have no other convictions on your record, you can get the CDV expunged from your record.  If you do have other convictions on your record, you can apply for a pardon – a pardon restores your civil rights, including the right to own a firearm and to have a concealed carry permit.

are former prosecuters good lawyers? Yes.  No.  Being a former prosecutor does not make someone a better defense attorney, in my opinion.  That being said, I know some former prosecutors who are excellent defense attorneys and I would trust them with my own case.  I know many more who are terrible, who see their clients as dollar signs, and who see their job as helping you to plead guilty.

adam reposa contempt - never a dull moment with Mr. Reposa.  He’s a lawyer.  Also, Don’t be a jerk-off.  Oh, and don’t drive drunk.

my lawyer didnt go to a hearing and now i have a bench warrant - it may be that your lawyer didn’t go to the hearing, I don’t know, but you probably have a bench warrant because you didn’t appear, not because your lawyer didn’t appear.  Not apologizing for the lawyer, it may be he or she sucks and its their fault.  But courts don’t issue bench warrants unless you missed a court date yourself.

what is a roster meeting in court – ostensibly, it’s a day when the attorneys and prosecutors set a trial date.  The judge or the clerk goes down the list, calls the names of each defendant, and they pick the date.  Depending on what court you are in, it could instead be a day when the prosecutor leans on you to get you to plead guilty, or it could be a day when your prosecutor disappears into a back room to discuss your case with the prosecutor.

bobby g lockdown crime – Yeah.  That’s right.  I’m a lawyer.

 

 

S.C. Police Misconduct Update

News reports in the past month:

Two Bluffton officers were suspended after a bar fight; one allegedly pulled a gun another person in the bar.

A North Charleston police officer who is also a substitute teacher was charged with assaulting a student.

A North Myrtle Beach K-9 officer was charged with DUI in his patrol car.  As of the date of article, he was not terminated, but instead was placed on desk duty.

A Gaffney police officer pled guilty to felony DUI with great bodily injury and was sentenced to 3 years home detention and probation.

A City of Columbia police officer was arrested and charged with CDV/ criminal domestic violence.

A Cherokee County Detention Center nurse was charged with first degree sexual misconduct with an inmate of a correctional facility, accused of having oral sex with an inmate.

Two people were killed following a high speed chase by a Darlington County Sheriff’s deputy – their car flipped over and the deputy crashed into it.  Although I may include deaths caused by police chases here, I want to point out that it is not necessarily misconduct on the part of the officer involved – in my opinion the problem with police chases lies with departmental policy and the departments’ failure to explore alternatives to high speed chases, which is reflected in their policies.  If the deputy is following his department’s policy, he may be doing nothing wrong.

A Lexington County woman has released a home surveillance video that shows a Lexington County Sheriff’s Department detective entering her boyfriend’s home as she sleeps on the living room sofa, then walking through the home, searching through her cell phone, and touching her breast before waking her up to tell her he is looking for her friend “on grounds of child support.”  The Sheriff’s department says that the detective was “serving civil papers at the proper residence,” but the woman says her boyfriend does not have children.  Also, since when do detectives serve warrants for child support?  Most, if not all, Sheriff’s departments have a warrants division with uniformed officers that serve warrants – they do not send detectives to serve child support warrants.  The detective was fired, but the Lexington County Solicitor’s Office declined to prosecute him.

 

DUI ignition interlock bill passes SC House

“Emmas Law” passed the House yesterday with a unanimous vote, and is expected to pass the Senate as well.  The law will require drivers to have an ignition interlock device for 6 months following a DUI 1st offense conviction with a BAC of greater than .15, and it will require an ignition interlock device for 2 years following a DUI 2nd offense conviction, regardless of the BAC level.

I’m ambivalent about requiring interlock devices for persons who are convicted of DUI, provided the devices are accurate (I don’t know that they are) and that they are mandated only for a definite period of time, such as the 6 month and 2 year requirements in this particular bill.  There are some nutcases out there who would like to require every person to have an ignition interlock device on their car, or require car manufacturers to install them on every car – that is untenable.

Of course, no DUI-related article in any self-respecting publication could forgo the obligatory slap at DUI lawyers, using the word “loophole” at least once:

South Carolina’s current DUI laws contain numerous loopholes that let people charged with DUI delay or avoid trial, get off with light sentences and resume driving quickly. Representing accused and convicted DUIs is a booming, $100 million-plus annual business for attorneys in South Carolina. About 30,000 people are arrested each year for DUI.

“Loophole” translates to “constitutional protection” or anything that is written into a law to protect ordinary people from over-zealous or over-reaching government officials.  Our current DUI law was carefully crafted by defense lawyers, prosecutors, and legislators to create a balance between aggressive DUI enforcement and protection of our rights.  The newest amendments to our state’s DUI laws increased penalties dramatically, with mandatory minimum sentences of up to 3 years and maximum sentences of up to 7 years, with a system of graduated penalties based on BAC level and prior offenses.

If you think that DUI defense lawyers are not necessary, consider that our state continues a system of rewards (not quotas), including shiny new cars, for law enforcement officers who make the most DUI arrests – not convictions, but arrests, without regard to the quality of the cases or whether the person arrested was actually guilty.

If you think that the only persons charged with DUI are hopeless drunks who are carousing the highways while liquored up, you are wrong.  I have handled cases where officers charged a person whose BAC was 0.00 and who then passed a blood test as well.  I have handled many cases where the person had a drink or two drinks and was well below the “legal limit.”  Some officers will charge a person if they smell alcohol, regardless of how many drinks the person had.  Whether you drink one half of one beer or 12 beers, it smells the same on your breath.

It is not against the law to drink and then drive, nor should it be.  It is against the law to drink to a point where your faculties to drive are materially and appreciably impaired – when your reflexes are impaired to the point where you are a danger to others on the highway.  The videotaping requirement in S.C.’s DUI law is not a “loophole” – it is a necessary check on an officer’s ability to arrest and prosecute people who are not violating the law.  We don’t have to take an officer’s word for it – the defense, prosecutor, judge, and jury can see the person’s conduct during the traffic stop for themselves.

Border patrol checkpoint refusal

H/T Reason.com – checkpoint officer is polite, friendly, and extremely conscious of protecting motorists’ constitutional rights:

(April Fools . . .)

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