WASHINGTON
Request for passenger’s name and personal information is a “seizure.”
State v. Brown,
154 Wash.2d 787, 117 P.3d 336 (Wash., 2005).
Police officer stopped a car for a traffic violation. The officer approached the passenger’s side where the defendant was sitting. Another officer requested the driver’s license and registration. The first officer asked the defendant (passenger) his name and date of birth, as well as where he was from. He then ran a warrant and records check. After the check came back clean, the officer asked the defendant for identification. The defendant told the officer he had none, but then submitted to a search. During the search, the officer found a fake credit card. The defendant was later convicted of forgery offenses.
The defendant argued that he was subjected to unlawful seizure and any evidence of criminality that flowed from that seizure should have been suppressed.
The Washington Supreme Court agreed, holding that a passenger in a vehicle is seized for purposes of the state constitution when an officer asks the passenger to provide his name and other identifying information for investigative purposes. Therefore, before an officer can make such a request, there must be some articulable suspicion of criminal activity.
LITIGATION TIPS
In an earlier case, State v. Rankin, 92 P.3d 202 (Wash. 2004), the court held that a passenger is subjected to an unlawful seizure when an officer requests identification. The difference between Rankin and Brown, however, was that in Rankin the defendants handed over their identification cards. The state argued this difference was meaningful, but the court disagreed, concluding it was distinction without a difference. The court decided that the case fell within Rankin’s holding and that officers must have an articulable suspicion of criminal activity before they could request identification from a passenger for investigatory purposes. Additionally, the court held that a “mere request for identification from a passenger for investigatory purposes constitutes a seizure …” under Rankin. Here, the seizure occurred when the officer asked the defendant/passenger to identify himself in order to check for any records on him.
The court also rejected the state’s argument that a seizure would only occur if the officer asked for and actually took tangible identification from the defendant or otherwise indicated that the passenger could not leave. In rejecting this argument, the court concluded such a distinction would “vitiate the greater protection afforded by the Washington Constitution, since an officer can investigate an individual by running a warrants and records check without actually taking a driver’s license or i.d. card.”
Finally, the court concluded that here, the facts that were known to the officer when he asked for the defendant’s name were insufficient to provide the officer with a reasonable suspicion that any criminal activity had occurred. Consequently, the evidence that was obtained as a result of the illegal seizure should have been suppressed.
CONNECTICUT
Defendant must be advised of the precise range of punishment he faces if convicted.
State v. Diaz,
274 Conn. 818, 878 A.2d 1078 (Conn., 2005).
The defendant was allowed to represent himself at a trial on drug and firearms violations. After he received an advisory from the trial judge that mentioned a 15-year plea offer, but did not identify the maximum sentence if the defendant was convicted after trial, the defendant pled guilty. The defendant was guilty and sentenced to 43 years imprisonment.
On appeal, he challenged the conviction on the grounds that he was not advised of the precise range of punishment before the plea was accepted by the trial court. The appellate court agreed and held that the defendant must be advised of the range of permissible punishments if the defendant had chosen to proceed to trial and was subsequently convicted. Because that was not done in this case, the conviction was overturned.
LITIGATION TIPS
In Iowa v. Tovar, 514 U.S. 77 (2004), the United States Supreme Court rejected the argument that a defendant who pleads guilty after revoking his right to self-representation must be advised about the value of counsel in recognizing defenses and evaluating the wisdom of such a guilty plea. Rather, the Court concluded that the defendant’s waiver of a Sixth Amendment right to counsel must be knowing and intelligent and will be satisfied when the trial court informs the defendant of the nature of the charges against him, of the right to be his own counsel, and of the range of allowable punishments.
Here, the defendant was permitted to represent himself and after an advisory from the trial judge that mentioned a 15-year plea offer, as well as an advisory that the defendant faced “big-time” charges and at least 15 years in prison, was “too nebulous and imprecise to satisfy the constitutional requirement that a defendant be advised of the range of permissible punishments.”
The court concluded in Diaz that the defendant “simply could not adequately appreciate the length of prison time he would face upon conviction,” and that imprecision invalidated the plea. Consequently, the defendant was granted a new trial. The court acknowledged that even though the trial judge “was not constitutionally required to ensure that the defendant had a ‘precise understanding’ of the range of possible punishments,” here, “the more precise the court [was] in explaining the range of possible penalties, the more likely that the court’s canvass will pass constitutional muster.”
Finally, the court urged its judges “to be precise when advising a defendant of the sentencing range available to the court if the defendant chooses to proceed to trial and subsequently is convicted.” See also State v. Ernst, 2005 WL 1572371 (Wis.) (prior holding of State v. Klessig, 564 N.W.2d 716 (1997) remains good law and still requires that a defendant waiving counsel be advised of the dangers and disadvantages of self-representation even though Iowa v. Tovar held that the advice was not required under the federal constitution).
TENNESSEE
Officer’s erroneous advisory on license suspension precluded statutory suspension.
State v. Collins,
166 S.W.3d 721 (Tenn., 2005).
The defendant was stopped for speeding in September 2000. The officer asked the defendant to submit to field sobriety tests. In the officer’s view, the defendant failed and he concluded the defendant was under the influence of alcohol. The officer then requested the defendant to take a breath test. He read the defendant a standard script that was issued by the Metropolitan Nashville Police Department. After reading the standard script, he asked the defendant if he would agree to take a breath test and the defendant refused. He was then indicted for driving under the influence of alcohol and the State sought to suspend his license for refusing the breath test. The defendant moved to strike the implied consent charge and to prevent the State from revoking his license. He also moved to preclude the State from arguing to the jury that he refused to submit to a breath test knowing he would lose his license as a consequence. The basis for his argument was that prior to 2000, the state legislature had amended the implied consent law to provide for revocations of one to five years and that a defendant, such as Collins, who had a prior drunk driving conviction, would be subjected to a two-year revocation for refusing a breath test. Consequently, the defendant argued that because the officer’s script failed to adequately warn him about the length of time for which his license would be revoked if he refused, the State could not seek the penalties under the implied consent law.
The trial court agreed and determined that the information provided by the officer was “wholly deficient” and thereby prevented the State from arguing the issue to the jury that Collins knew he would lose his license if he refused.
The State appealed and the Court of Appeals reversed, holding that Collins had been adequately informed of the consequences of refusing the test. The court concluded that it would be difficult and cumbersome for officers to read all the possible consequences of refusal. The court also concluded that because Collins knew he would lose his license, any additional information would have been superfluous and gratuitous. Finally, the Court of Appeals held that the State could argue to the jury that the defendant knew his license would be suspended for refusing the test.
The Supreme Court of Tennessee granted review. On review, the court concluded that the officer informed the defendant that his license would be suspended if he refused. The fact that the officer went beyond the requirement to inform Collins of a one-year length (which was incorrect under the circumstances) did not void the advisory statement; but it meant that the State was limited in seeking only a one-year revocation rather than a two-year revocation for which Collins otherwise qualified.
Finally, the court concluded that there was no reason to bar the State from arguing to the jury that Collins had refused because the consequences of not properly reading the implied consent warning only applied to the ability to seek a civil suspension of license.
LITIGATION TIPS
The Supreme Court of Tennessee held that § 55-10-406(a)(2) only required that a driver be informed that his license would be suspended. An officer is not required to inform the driver about the length of the suspension which, of course, varies depending on the driver’s history. The court concluded if the legislature had intended that the length of the suspension be read to the motorist, it would have so required in the applicable section. Rather, the provision that authorizes the length of suspension is contained in a different statute. Consequently, all the officer did not have to tell Collins about the length of suspension, when he gave Collins the wrong information and said his license would be suspended for one year, the State was then barred from attempting to suspend his license for a longer period of time. This defect, however, did not also preclude the State from advising the jury of the fact of refusal, which otherwise is allowed under Tennessee law.
NEW JERSEY
Beyond a reasonable doubt standard is required in refusal proceedings.
State v. Cummings,
184 N.J. 84, 875 A.2d 906 (N.J., 2005).
Defendant was arrested for driving under the influence of alcohol. He refused to submit to a breath test. In addition to the criminal charge, he was also cited for refusing to submit to a breath test in violation of NJSA 39:4-50.4(a). That statute allows a defendant to be convicted of refusal based on proof that meets a preponderance of the evidence standard.
The defendant argued that the statute violated his due process rights because it permitted him to be convicted on evidence that did not meet a beyond a reasonable doubt standard. He filed a motion to dismiss in this regard, but his motion was denied and he entered a conditional plea. Both the law division and the appellate division rejected his argument; however, the New Jersey Supreme Court granted certification to consider whether the preponderance of evidence of standard or the beyond a reasonable doubt standard applied. The court concluded that because the refusal proceeding was quasi-criminal in nature, a beyond a reasonable doubt standard applied and, consequently, the case was reversed and remanded.
LITIGATION TIPS
In State v. Widmaier, 724 A.2d 241 (N.J. 1999), the court held that the refusal statute was quasi-criminal for purposes of double jeopardy. As a result, if the refusal proceeding is quasi-criminal, then it follows that the proper standard of proof should be beyond a reasonable doubt. As the court noted, “despite the clear legislative election as well as prior acceptance of the preponderance of the evidence standard as the appropriate standard for breathalyzer refusal cases, the proper standard of proof here is proof beyond a reasonable doubt. The conclusion is compelled by the application of simple logic. If an acquittal under the refusal statute is to have the benefit of the double jeopardy bar, thereby prohibiting the State’s appeal therefrom, then it stands to reason that the State’s burden of proof must mirror the burden required of all other prosecutions that similarly are subject to double jeopardy considerations. That standard is proof beyond a reasonable doubt …”.
Finally, the court held that its ruling was not completely retroactive, but rather would have so-called “pipe line retroactivity.” That means that it applies to the present case and all future cases, as well as all cases still on direct appeal when the rule is announced.
WYOMING
Motorist improperly detained when asked questions about itinerary and purpose of trip.
O’Boyle v. State,
117 P.3d 401 (Wyo., 2005).
The defendant was stopped for driving 79 miles per hour in a 75 mile per hour zone on Interstate 80 in Wyoming. The trooper spent approximately seven minutes asking the defendant more than 30 questions about the purpose of his trip and other matters that were not directly related to the speeding violation. The trooper issued a warning citation and told the defendant he was free to go. However, when the defendant was walking back to the car, the trooper asked permission to ask some more questions and ultimately for permission to search the defendant’s car, which ended up in a discovery of marijuana. The defendant challenged the questioning as an unreasonable seizure, as it was unrelated to the speeding stop.
The Wyoming court agreed with the courts that applied Terry v. Ohio, 392 U.S. 1 (1968) to traffic stops based on probable cause. The court held that the scope of the trooper’s questions went beyond the defendant’s travel plans and were not reasonably related to the traffic violation. The consent to further questioning and to a search were obtained only after another a trooper had arrived at the scene with a narcotics detection dog. This was not sufficiently attenuated from the unconstitutional detention to be voluntary. Consequently, the evidence of the marijuana should have been suppressed.
LITIGATION TIPS
Courts are divided on the issue of how far the Fourth Amendment allows a police officer to go in asking a motorist who has been stopped for traffic offenses questions that are unrelated to the stop. Most courts have addressed the issue and concluded that the Fourth Amendment limits the scope of the traffic stop based on probable cause in the way that the fourth Amendment limits the scope of an investigative detention to those police activities reasonably related to the underlying justification for the stop. See Terry v. Ohio, 392 U.S. 1 (1986). This agreement generally occurs, however, as to the kinds of police activities reasonably related to the stop for traffic violations. For further information in this regard, see Tarantino, “A Change in Travel Plans? When A Routine Traffic Stop Becomes A Criminal Investigation,” 20 DWI Journal: Law & Science 9 (September 2005).