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Articles by Dale Chappell

Kentucky Supreme Court Tosses Evidence Holding Dog Sniff of Nervous Driver with Prior Drug Charges was Unreasonable

by Dale Chappell

The Supreme Court of Kentucky held that a drug-dog sniff based on the nervousness of the driver who had prior drug charges (but not convictions) was an unreasonable search under the Fourth Amendment, requiring suppression of the evidence found in the search.

“This opinion is not for Rakim Moberly,” the Court made clear. “We render this opinion for the untold numbers of innocent Kentucky citizens who have ‘criminal charges’ and may become nervous and sweaty and look around when confronted by police.”

Moberly, who was convicted of drug and gun possession after a 3 a.m. traffic stop, appealed the denial of his motion to suppress the evidence obtained after the police called in a drug dog based on Moberly’s nervous appearance and his prior drug charges. Moberly argued on appeal that the dog sniff was not reasonably connected to the legitimate traffic stop for not having a valid registration. The Commonwealth argued that his nervous behavior allowed the police to further detain Moberly and search his vehicle. Ultimately, the Kentucky Supreme Court agreed with Moberly and tossed the evidence.

In Rodriguez v. United States, 135 S. Ct. 1609 (2015), the U.S. Supreme Court ...

Texas Court of Criminal Appeals Holds Sua Sponte Jury Instruction on Self-Defense Also Applies to Lesser-Included Charges

by Dale Chappell

A sua sponte jury instruction on self-defense for a murder charge applied equally to the lesser-included charge, and a judge’s failure to inform the jury that it could acquit even the lesser charge was “egregious” error requiring reversal, the of Texas Court of Criminal Appeals (“CCA”) held.

The trial court instructed the jury that it could acquit Adrian Mendez of murder if it found that he used deadly force to protect himself in self-defense. Mendez had argued that he stabbed to death a man who was arguing with him when he thought he was reaching for a gun. The court’s instruction to the jury about the self-defense theory was not at Mendez’s request but on the court’s own volition. The jury acquitted Mendez of murder, but it convicted him of the lesser-included charge of aggravated assault. Sentenced to seven years in prison, Mendez appealed, and the First Court of Appeals held that the trial court was required to instruct the jury that the self-defense theory also applied to the lesser-included charge, not just to the murder charge. The State petitioned the CCA, which agreed to hear the State’s appeal.

Texas Code of Criminal Procedure Article 36.14 ...

NY Court of Appeals Affirms Dismissal of DWI for Improper Breathalyzer Refusal Warning

by Dale Chappell

The Court of Appeals of New York found that a driver’s eventual consent to a breathalyzer test was “coerced” and involuntary after police waited more than two hours to ask him to consent to the test. The Court held that the officer’s warning that his refusal could be used against him in court was improper under the law, and that his consent based on that warning required suppression of the evidence.

Donald Odum was arrested for DWI and taken to the police station. Over two hours later, he was asked to submit to a breathalyzer test but declined. The officer warned Odum that if he refused to take a breath test, it would be used as evidence against him in court. Odum then agreed, based on that warning, and the result showed his 0.09 percent alcohol level was just over the legal limit.

He moved to suppress the test results, and the criminal court ruled that because Odum had refused but then consented to the breathalyzer more than two hours after his arrest based on the officer’s erroneous statement of the law, the evidence had to be suppressed.

The State appealed, and the intermediate appellate court ...

New Jersey Supreme Court Holds 2014 Amendment to Megan’s Law Violates Ex Post Facto Clause

by Dale Chappell

The Supreme Court of New Jersey held that a 2014 amendment to the Violent Predator Incapacitation Act (“VPIA”), part of Megan’s Law, which applied to defendants who had violated their community supervision for life (“CSL”), violated the Ex Post Facto Clauses of the U.S. and New Jersey Constitutions. That’s because a violation of CSL is not a new offense but relates back to the original offense.

When four defendants in separate, unrelated cases violated their conditions of CSL, the four were charged under the 2014 amendment to the VPIA. That increased their violations from fourth-degree to third-degree offenses and would convert their CSL to parole supervision for life (“PSL”), resulting in harsher consequences than the law provided at the time of their criminal conduct a decade ago. The trial courts presiding over the four separate cases tossed the indictments, holding that imposing the harsher punishments under the 2014 amendment violated the Ex Post Facto clause. The State appealed, but the Appellate Division affirmed. The New Jersey Supreme Court granted the State’s petition for certification and consolidated the four cases for appeal.

Under CSL, those convicted of sex-based offenses are subject to several conditions—more than 20 in ...

California Court of Appeal Holds Box Cutter Not ‘Inherently’ Deadly Weapon

by Dale Chappell

A box cutter is a type of knife “designed to cut things and not people,” and was therefore not “inherently” a deadly weapon as a matter of law, the Court of Appeal of California Second Appellate District held, overturning a defendant’s conviction.

There was no question that Yazan Aledamat pulled a box cutter and said, “I’ll kill you,” during an argument. The question later became whether the box cutter was “inherently” a deadly weapon to support his conviction for assault with a deadly weapon, after the jury found him guilty based on the superior court’s instruction on what constitutes a “deadly weapon” as a matter of law. Aledamat appealed his conviction.

A “deadly weapon,” as a matter of law, is defined as an object that is deadly to others in its “ordinary use for which it is designed” or when used in a manner “capable of and likely to produce death.” Because a box cutter is not designed to cut people in its ordinary use, the Court of Appeal ruled that it is “not an inherently dangerous or deadly instrument as a matter of law.” The superior court’s jury instruction was a ...

Kentucky Supreme Court Overrules Flawed Brindley Opinion and Announces Commonwealth Cannot Appeal Judgment of Acquittal

by Dale Chappell

The Supreme Court of Kentucky held that the Commonwealth cannot appeal from a judgment of acquittal in a criminal case after a jury’s guilty verdict, interpreting the Kentucky Constitution and overturning its prior decision on the issue.

Michael Maupin was charged with failing to comply with Kentucky’s sex offender registry after law enforcement was unable to locate him at the homeless shelter he listed as his residence. Maupin’s name was listed only two times in a month’s span on the shelter’s sign-in sheet. The Commonwealth convinced a jury that this proved Maupin was not at his approved residence, and he was sentenced to 10 years in prison.

Maupin moved for a new trial or for a judgment of acquittal. The trial court granted Maupin’s motion for acquittal, ruling that the Commonwealth’s proof was insufficient because the sign-in sheet was equivocal at best and that the officer’s single attempt to locate him did not justify a criminal conviction. The Commonwealth appealed, and a divided panel of the Court of Appeals reinstated Maupin’s conviction. The Kentucky Supreme Court granted Maupin discretionary review.

Section 115 of the Kentucky Constitution provides that “in all cases, civil or criminal, there shall be ...

Iowa Supreme Court Announces Actual Innocence Claim Is Freestanding Claim That Can Be Made Even After Guilty Plea

by Dale Chappell

The Supreme Court of Iowa adopted and announced a new rule that characterizes claims of actual innocence as freestanding claims under Iowa’s postconviction-relief statute, regardless of whether the applicant has knowingly and voluntarily pleaded guilty and thereby overturning its prior cases that had barred relief under those facts.

“What kind of system of justice do we have if we permit actually innocent people to remain in prison?” asked Justice David Wiggins for the Court, before overturning its prior cases that prevented freestanding actual innocence claims to be raised in a postconviction-relief action. “It is time that we refuse to perpetuate a system of justice that allows actually innocent people to remain in prison.”

Jacob Schmidt pleaded guilty in 2007 to charges of assault with intent to commit sexual abuse and incest, under a plea agreement, after he was accused of sexual conduct with a minor relative. The same day, the district court, finding that Schmidt’s plea was knowing and voluntary, sentenced him to no more than seven years in prison.

In 2014, Schmidt filed an application for postconviction relief based on the alleged victim’s recantation of his story to police, claiming, “I was not guilty ...

NY Court of Appeals Holds Trial Court’s Failure to Advise Defense of Jury Note Contents Constitutes Reversible Error

by Dale Chappell

The Court of Appeals of New York held that a trial court’s failure to make the defendant aware of the content of notes by the jury to the court was error requiring reversal, even though the issue was raised for the first time on appeal.

During the joint trial of Lawrence Parker and Mark Nonni for crimes related to burglary, the jury sent three substantive notes to the court, requesting specific information about the case. When everyone reconvened in court, the judge raised the issue of the three notes and said the court would address each one in turn. After resolving the first note, the court broke for lunch and said it would address the other notes after lunch. The jury, however, reached a verdict during lunch, ending the trial. The two remaining notes were never mentioned.

After the Appellate Division affirmed their convictions, Parker and Nonni were granted leave to appeal to the Court of Appeals.

Raised for the first time before the Court of Appeals, Parker and Nonni argued that the trial court’s failure to provide them with notice of the content of the other notes amounted to a mode of proceedings error requiring reversal ...

Insurance, Courts Protect Cops from Liability

by Dale Chappell

Lots of lawsuits get filed against law enforcement, but very few result in a payout. Police have an ever-growing shield called “qualified immunity” and decades of court decisions to hide behind. And even when there is a payout, it is not groundbreaking.

The U.S. Supreme Court recently upheld the broad protection qualified immunity offers law enforcement. The Court, once again, held that qualified immunity “gives ample room for mistaken judgments by protecting all but the plainly incompetent [officers] or those who knowingly violate the law.” Kisela v. Hughes, 138 S. Ct. 1148 (2018). It is a high standard, lawyers admit, and no defined criteria exist.

Police again can thank the courts for decisions that give them a loophole to get out of lawsuits. Say police use excessive force and crush a man’s pelvis during an arrest, as in the case of Brandon Anderson, who had his pelvis crushed by Bristol, Tennessee, police after he gave them a fake name. There’s an easy and virtually foolproof way to ensure he cannot sue—charge him with resisting arrest, even if he didn’t do so. When Anderson sued, police invoked the “Heck Rule,” which bars a criminal defendant ...

East Pittsburgh Officer Charged in Shooting of Unarmed Teen

by Dale Chappell

An East Pittsburgh Police Officer was charged with criminal homicide June 27 in the shooting death of Antwon Rose Jr., a 17-year-old who ran from police during a traffic stop but was unarmed and posed no threat to anyone.

Experts say this type of charge against an ...


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