Category Archives: Motions

Is there a perjury routine at suppression hearings?

An appellate court case out of Florida came pretty damn close to getting it right last week. It read like a home run for the defendant and for citizens everywhere, but by the time all was said and done, it was merely a long fly ball.

Ruiz v. State involved the issue of an alleged illegal search and seizure. Two police officers testified that Ruiz gave consent to search his apartment. Ruiz testified that he didn’t. Typical hearing; two different stories. It’s up to the judge to determine who to believe and we know how that goes. The problem with Ruiz is that the police officers’ story doesn’t make any sense. On paper, it simply is not believable.

Right away you know the opinion is going to be a good one. The first sentence tells us we are in for a ride:

This case is a paradigm for a type of case that is common in our courts, where “consent” to a search is found under objectively questionable circumstances.

Here is the short version of the officers’ testimony.

They “nonchalantly” approached Ruiz on the street and “calmly” asked his name. He told them his name was Freddie and that his identification was upstairs in his apartment. He offered to take them up there if they wanted to see it.  They wanted to see it.  Ruiz led them up to his apartment and “motioned” the officers to come inside.  The police officers saw a scale and some cocaine residue in plain view. They arrested Ruiz and he told them about some cocaine hidden in a shaving cream can and some “weed” hidden in his dresser drawer.

Does that sound believable?

The defendant’s story was a little different.

Ruiz was on his way back from the store when three officers stopped their vehicle in front of him, jumped out with their guns drawn, and told him not to move.  Ruiz did not think he was free to leave.  One officer frisked him and asked for his identification.  Ruiz said he did not have any identification and  the police  said  they  would  arrest  him  if  he could  not  produce  some identification.  Ruiz said that his identification was in his apartment.  The officers escorted him to his apartment.  After he opened the door, the officers went inside and searched through everything.  Ruiz did not give the officers permission to enter his residence.

This case is a great illustration of what is typically wrong with suppression hearings.

Cases like this one call into question the fairness of some trial court proceedings.  On  the  pages  of  the  record,  the  story  told  by the police  is  unbelievable—an anonymous informant  gives  incriminating information;  police  surveillance  uncovers  no criminal  conduct;  the defendant  is  “nonchalantly” and “casually” approached by the police on the  street;  the  defendant  cooperatively  leads  the  police  back to his apartment to obtain his identification and invites the police inside, where a detective sees contraband  in plain view, a fact certainly known  to  the defendant when he issued  the  invitation; after his arrest,  the defendant tells the police about all the hidden drugs in the apartment.

That’s pretty strong language: the story told by the police is unbelievable.

Unfortunately, the court affirmed the trial judge’s refusal to suppress the drugs: If believed, the detectives’ testimony supports the ruling.

Whoever wins at the trial level is almost always assured of victory at the appellate court. This is especially true if the issue is consent. The reason is that the appellate court is going to defer to the lower court for findings of fact. That makes sense because the trial judge gets to look at the witness and is therefore, in a better position to judge credibility.

I have yet to find a case where the appellate court reversed under this standard. If unbelievable is not enough, I’m not sure what it would take.

H/T: @kreyes

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Filed under Fourth Amendment, Motions

Polygraph on Trial in Conway

The title of this post is the headline of an article in the Horry Independent today.

Parties in a homicide by child abuse case coming up in Horry County Court in March are waiting to see if their case will be a “keystone” one in the state of South Carolina.

One of the attorneys involved in the case has asked that polygraph results be admitted into the case and after hearing two days of testimony on the issue, Circuit Judge Larry Hyman is considering the issue.

The South Carolina Supreme Court has consistently held the results of polygraph examinations are generally not admissible because the reliability of the tests is questionable. The results have been held inadmissible because they didn’t pass the standards for scientific analysis under Rules 702 and 403, SCRE and the Jones factors.

Two days of expert witness testimony. For this case, the defense wants the results admitted; the prosecution doesn’t. What about the next case? What happens if the roles are reversed? It is the proverbial slippery slope.

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Filed under Jury Trials, Motions, Science and Technology

Traffic Court Judge Reprimanded for Appearance of Bias

The New York State Commission on Judicial Conduct reprimanded a Village Court Justice for delaying the disposition of traffic court cases based on the police officer’s schedules according to the Legal Profession Blog. The opinion is here.

The judge held court based on the availability of the police officer. If the officer wasn’t working on the day of court, the judge simply continued the case. His rational behind his policy was to cut down on overtime payments to the officers and thereby save the town some cash. As you can probably guess, this resulted in a huge backlog of pending cases. Over a five year period there were over 500 unresolved cases and some were as old as five years and five months. The majority of the cases, however, were two to three years old.

The judge may have had good intentions, but his conduct was improper nonetheless.

[The judge’s] blanket policy of scheduling cases solely on the officers’ schedules created a bias and/or the appearance of bias in favor of the police department…

I bet it did create the appearance of something.

This case has some pretty bad statistics in it. We can, however, learn something from it in our practice. First, I want to point out that Village Courts are similar to our Municipal and Magistrate Courts in South Carolina. Second, I think the important part of the case is the appearance of bias more so than the actual delay.

Fortunately for us, our magistrate and municipal judges have always been pretty fair with motions for continuances. However, if a police officer is not available he’s not available and the case shouldn’t be put off indefinitely.  The judge should never grant a continuance unilaterally. The defendant’s proper response is a motion to dismiss for failure to prosecute.

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Filed under Motions, Trial Practice