January 2019

DATE: JANUARY 2019

I. FOURTH AMENDMENT

A. TERRY STOP EXCEPTION TO WARRANT REQUIREMENT DOES NOT APPLY WHEN OFFICER SUSPECTS PERSON “MIGHT” COMMIT CRIME: Appellant was convicted of being a felon in possession of a firearm after police responded to a 911 call from a woman who feared for her safety and that of her infant child, because an unknown intoxicated man with a gun, Appellant, was in her apartment. Upon their arrival, police found Appellant asleep on the couch, patted him down while he slept, and found a handgun. Police chose not to wake Appellant before securing the handgun to remove the threat that he may act erratically. The officers did not suspect criminal activity or intend to arrest anyone in the apartment before patting down Appellant.
Appellant argues police unreasonably searched and seized him and also challenged the district court’s denial of his motion to remove a juror for actual bias. The Court of Appeals found Appellant was entitled to a new trial on the juror issue, but held that the pat-frisk was reasonable under the warrant requirement exception recognized in Terry v. Ohio, 392 U.S. 1 (1968). The Supreme Court affirms the Court of Appeals, agreeing Appellant is entitled to a new trial because of the presence of an actually biased juror, but finding the pat frisk of Appellant valid, instead, under the emergency aid exception to the warrant requirement.
It is well-settled that a pat-frisk for weapons is a search under the Fourth Amendment. In considering whether an exception to the warrant requirement applies the search in this case, the Supreme Court notes that the Court of Appeals found the Terry pat-frisk exception applies when an officer has reasonable suspicion that a person “might” commit a crime. However, Terry is clear that the exception applies when police suspect an individual is “about to” commit a crime. Nevertheless, there was no suspicion of any crime or intent to make an arrest in this case.
The Supreme Court next distinguishes between the community caretaker exception and the emergency aid exception. The court notes that, while some federal and other state courts have applied the community caretaker exception in a broader context, the case which first recognized the exception, Cady v. Dombrowski, 413 U.S. 433 (1973), addressed routine administrative searches of vehicles taken into police custody, or, in Minnesota, “inventory searches.” Such searches are “totally divorced” from officers’ criminal investigation and law enforcement roles. The emergency aid exception, on the other hand, involves the need to protect or preserve life or avoid serious injury. Police need reasonable grounds to believe an emergency is at hand and some reasonable basis to associate the emergency with the area or place to be searched.
Because the U.S. Supreme Court has never applied the community caretaker exception outside of the automobile context, the court refuses to do so here. However, it does find the emergency aid exception applicable. Responding officers were objectively motivated by the need to assist the caller and prevent serious injury due to the presence of an unsecured handgun in the possession of a sleeping, intoxicated individual. Officers also had a reasonable basis to associate the emergency with the object of the search, Appellant. They had no way of addressing the exigency without risking harm to themselves or others than to act as they did, that is, search Appellant and secure the handgun before waking Appellant. Thus, the pat frisk of Appellant did not violate the Fourth Amendment. Justin Stephen Ries v. State, No. A16-0220, 920 N.W.2d 620 (Minn. Dec. 5, 2018).

B. STOP OF CAR FOR CRACKED WINDSHIELD LAWFUL ONLY IF REASONABLE SUSPICION THAT CRACK LIMITED OR OBSTRUCTED VISION: Appellant was charged with and convicted of DWI and violating a driver’s license restriction after being pulled over for a cracked windshield and not wearing a seatbelt. Minn. Stat. § 169.71, subd. 1(a)(1), prohibits a person from driving a “motor vehicle with… a windshield cracked or discolored to an extent to limit or obstruct proper vision.” Thus, the question is whether a stop can rest on the appearance of a crack alone, regardless of the extent of the crack. The Court of Appeals says, “no.”
The qualifier, “to an extent to,” in the statute indicates not every cracked windshield constitutes a violation. To stop a vehicle for a cracked windshield, the officer must have reason to suspect the extent of the crack limits the driver’s vision. Here, the record shows only that Appellant’s windshield was cracked and nothing more regarding the extent to which it affected Appellant’s vision. This is not enough to validate the stop of Appellant’s vehicle.
However, the officer did have reasonable suspicion to stop Appellant for a seat belt violation, as the officer testified he based the stop not only on the windshield crack but also his observation that Appellant was not wearing a seatbelt, a violation of Minn. Stat. § 169.686, subd. 1(a). Thus, Appellant’s convictions are affirmed. State v. James Wilmar Poehler, No. A18-0353, N.W.2d , 2018 WL 6442313 (Minn. Ct. App. Dec. 10, 2018).

II. CRIMINAL PROCEDURE

A. DEFENDANT DOES NOT FORFEIT RIGHT TO CHALLENGE FOR-CAUSE RULING BY FAILING TO USE PREEMPTORY CHALLENGE: The parties do not dispute that one juror at Appellant’s trial was biased, but the State argues that Appellant should have used a preemptory challenge to remove the juror. For-cause challenges and preemptory challenges are addressed in Minn. R. Crim. P. 26.02. Nothing in this rule provides that a party forfeits the right to challenge the district court’s for-cause ruling by not using an available preemptory challenge to remove the juror. The court declines to read such a requirement into the rule. The court holds that Appellant did not forfeit his right to challenge the district court’s denial of his motion to remove Juror 18 for cause by not using a preemptory challenge to remove the juror. As the State concedes Juror 18 was actually biased, Appellant is entitled to a new trial. Justin Stephen Ries v. State, No. A16-0220, 920 N.W.2d 620 (Minn. Dec. 5, 2018).

III. CRIMINAL SEXUAL CONDUCT

A. MINN. STAT. § 609.342, SUBD. 1(H), REQUIRES PROOF OF SEXUAL PENETRATION: Appellant sexually abused a 10-year-old for several months, including touching her inappropriately and engaging in genital-to-genital contact. Appellant never sexually penetrated her. Appellant was charged with and convicted of first- and second-degree criminal sexual conduct, but Appellant challenges the sufficiency of the evidence to support his first-degree conviction, arguing the statute of conviction, Minn. Stat. § 609.342, subd. 1(h), requires proof of sexual penetration, which the State concedes it did not prove.
The Supreme Court notes that the statute expressly uses the words “sexual penetration” in defining the crime. The statute’s plain language requires the State first prove the defendant engaged in one of the two categories of prerequisite conduct (sexual penetration or bare genital-to-genital contact with a person under 13), then prove one of the seven “following circumstances” set forth in subdivision 1(a) through 1(h) existed. The two steps are independent inquiries.
In this case specifically, the State had to prove that (1) Appellant had a significant relationship to the complainant, (2) the complainant was under the age of 16 years of age at the time of the sexual penetration, and (3) the sexual abuse involved multiple acts committed over an extended period. The State did not prove penetration as required by the statute. State v. Juan Manuel Ortega-Rodriguez, No. A17-0450, 920 N.W.2d 642 (Minn. Dec. 5, 2018).

IV. CONDITIONAL RELEASE

A. COURT HAD JURISDICTION TO REIMPOSE MANDATORY CONDITIONAL RELEASE TERM IF AUTHORIZED WHEN IMPOSED AND DEFENDANT DOES NOT HAVE CRYSTALLIZED EXPECTATION OF FINALITY IN SENTENCE LACKING CONDITIONAL RELEASE TERM: Appellant pleaded guilty in 2009 to failing to register as a predatory offender and was sentenced to 15 months in prison. The district court failed to include the statutorily mandated conditional release term, but amended its sentencing order three months later to include the ten-year conditional release term, without a jury finding or Appellant admitting his risk level status. While serving his conditional release term in 2015, Appellant moved the district court to vacate the conditional release term based on State v. Her, 862 N.W.2d 692 (Minn. 2015) (constitution requires that determination of status as risk-level-III offender be made by jury) and Reynolds v. State, 888 N.W.2d 125 (Minn. 2016) (defendant may challenge conditional release term via motion to correct sentence under Minn. R. Crim. P. 27.03, subd. 9).
At a resentencing hearing, Appellant moved to terminate the proceedings and vacate the conditional release term because the original complaint did not reference his risk level designation. The State moved to amend the complaint, but the district court denied the motion and terminated the proceedings, finding no question for the jury to consider because the complaint did not allege Appellant was a risk-level-III offender. The district court issued a second amended sentencing order stating there was no conditional release period. Based on State v. Meger, 901 N.W.2d 418 (Minn. 2017) (Her does not apply retroactively), filed subsequently, the State moved to reconsider. The district court issued a third amended sentencing order, reimposing ten-year conditional release term.
The Court of Appeals reads the Supreme Court’s remand instructions in Her and Meger to suggest that the district court does not lack jurisdiction to impose a lawful conditional release term even when the defendant has otherwise completed the terms of imprisonment and supervised release. It also rejects Appellant’s argument that the district court’s jurisdiction ended when it removed the conditional release term. As Her is not retroactive, Appellant’s period of conditional release was authorized when it was first imposed. Thus, the district court had jurisdiction to reimpose the legal and mandatory conditional release term.
The court also distinguishes cases in which the defendants were not on notice that conditional release was mandatory terms of their sentences. Here, the complaint referred to conditional release as a penalty, Appellant’s sentence was amended to include a conditional release term less than three months after the original sentencing hearing, and conditional release was lawfully imposed while Appellant was still imprisoned. Meger’s ruling that Her did not apply retroactively and the State’s motion for reconsideration challenging the order vacating conditional release prevented Appellant from having “a crystallized expectation of finality in a sentence that did not include a conditional-release term.” State v. Michael Allen Franson, No. A18-0539, N.W.2d , 2018 WL 6442707 (Minn. Ct. App. Dec. 10, 2018).