Riley v. California, Nos. 13-132, Supreme Court of the United States, June 25, 2014. Chief Justice Roberts addressed the issue of whether police may, without a warrant, search the contents of an accused cell phone or smart phone subsequent to arrest. David Riley was stopped by police while driving with an expired tag. A computer check also indicated that Riley was driving with a suspended license. A search of his vehicle incident to arrest revealed to firearms under the hood. He was then arrested with possession of a concealed weapons. Further, some items were found on Riley that associated him with the street gang know as the "Bloods." Police then searched the contents of his cell phone without a warrant. Subsequent search of the phone revealed contacts with other gang members and photos and videos that associated Riley with an earlier drive by shooting.
Frost v. State, A14A0730, Court of Appeals of Georgia, July 15, 2014. Gary Frost was arrested for DUI after striking a gate at his condo complex. After a jury reached a verdict on the two counts of striking a fixed object and open container of alcohol, it was hopelessly deadlocked on the DUI charge. Frost requested the Court receive the verdicts on the two underlying counts that the jury reached a verdict. The Court refused. Defendant filed a plea in bar in former jeopardy on the retrial which the Court denied. The Court of Appeals reversed finding that a jury stated in open court that they had reached verdict which was also evidenced by the jury's notes to the trial judge. Defendant could not be retried on the counts upon which a verdict had been reached. more
Sanders v. State, A14A0142, June 18, 2014. Following a bench trial of a DUI under OCGA 40-6-391(a)(5), Meredith Sanders was found guilty of DUI. She appealed claiming that her Constitutional rights to due process and compulsory process were violated by the failure of Judge Diane Bessen of the Fulton County State Court to grant a continuance to obtain an out of state subpoena for a witness from CMI, Inc in Kentucky to produce the computer source code underlying the random number generator otherwise known as the Intoxilyzer 5000 which is being phased out by the GBI due to reliability concerns. Sanders had previously requested and Judge Bessen had granted a certificate of materiality for an out of state subpoena concerning an out of state witness request under the Uniform Act to obtain the Intox source code. The Kentucky Trial Court had denied the request finding that it was neither material nor necessary, nothing more than a fishing expedition and essentially ignoring the Georgia Trial Court's certicate of materiallity. It should be noted that the manufacturer of the Intoxilyzer 5000 is the largest single employer in the County in Kentucky where the certificate was filed. The Kentucky Trial Court's orders is still under appeal in Kentucky. The Georgia Court of Appeals summarily rejected the Constitutional claims citing Smith v. State, 325 Ga. App. 405, 410, 750 SE2d 758 (2013) and Phillips v. State, 324 Ga. App. 728, 751 SE2d 526 (2013). It should be noted that Smith v. State simply relied on the reasoning in Phillips v. State. Phillips v. State held that because there is no evidence that the source code is Brady material or exculpatory under Brady v. Maryland it is not a Constitutional violation to deny a continuance (what about the right by the Defendant of an in camera inspection of all alleged Brady material by the trial court?); and because source code is not testimonial just like an Intoxilyzer 5000 inspection certicate under OCGA 40-6-392 as in Rackoff v.State, it is not a violation of the confrontation clause or right to confront witnesses call against a defendant which was at least implicitly over-ruled by Bullcoming v. New Mexico. See also, Disharoon v. State, 291 Ga. 45,727 S.E.2d 465 (2012) (Query: what if the certificate of materiality simply asks for a witness from CMI, Inc., the manufacturer of the Intoxilyzer 5000, to testify to the internal workings of the machine which no witness available in Georgia is capable of doing?). I wonder what Justice Scalia would have to say about this? Legal Twister? more
Collins v. State, A14A0304, Court of Appeals of Georgia, June 17, 2014. Camela Noelle Collins was found guilty of DUI Less Safe, DUI Per Se (having a blood or breath level over 0.08 grams within three hours of driving), and failure to maintain lane after a stipulated bench trial. The point of the stipulated bench trial was to allow the Defendant to appeal the Rockdale County State Court's denial of Defendant's motions surrounding the Intoxilyzer 5000 source code including the certificate of materiality to obtain witnesses from CMI, Inc in Owensboro, Kentucky and Constitutional rights that were violated by the fallure to produce the Intoxilyzer 5000 computer source code. The appealed issues involved the DUI per se count which was based on the breath tests. The Court initially found the Defendant guilty and sentenced on the DUI per se and merged the DUI less safe, so Defendant was only convicted on the DUI per se allowing an appeal of the breath test. The Trial Court came back later 20 days later and amended the sentence convicting on the DUI less safe and merging the DUI per se therefore leaving nothing to appeal.
Because the DUI per se was merged appeal was dismissed as moot. You've been punked! Next time just have a jury trial and if the jury finds your client not guilty on the DUI less safe and guilty on the DUI per se then you have a good appeal or get the Trial Court's word that they will only sentence on the DUI per se if you can trust'em. more
Wing v. State, A14A0136, Court of Appeals of Georgia, May 27, 2014. On April 7, 2013, police received a dispatch over the radio from a 911 operator that a car had struck another car parked in a church parking lot. When the Officer arrived at the parking lot he observed a blue car driving away and 3 to 5 by standers pointing at the blue vehicle. The Officer immediately pursued the blue car and initiated a traffic stop. The Defendant Connie Wing was convicted of DUI as a result of the stop. The Defendant had argued that the stop was illegal as there was not investigation that there was even an accident in the first place or violation of law. The Henry County Trial Court in McDonough found that the stop was legal based on Brown v. State, 261 Ga. App. 228,582 S.E.2d 183 (2003), where police were dispatched to a Waffle House after the report of a fight and upon arrival observed a truck leaving with several by standers pointing the truck out to police. more
State v. Criswell, A14A0527, Court of Appeals of Georgia, May 29, 2014. Cristopher Criswell was charged with DUI less safe in Holly Springs, Cherokee County, Georgia and got his case dismissed at a motion to suppress hearing on the grounds that the Police had no reason to come on his property and arrest him. The State appealed and the Georgia Court of Appeals reversed even though the Trial Judge found the testimony of the police was not credible. The Court of Appeals held that they can review the decision de novo of the trial court and not under the clearly erroneous standard in a motion to suppress as to issues of law. This is another of the if there is a video its de novo standard of review cases. Apparently, Matthew Jenkins passed out in front of Criswell's house and when woken up by police told them that he was staying with Criswell. While this was happening Criswell drove up and was observed getting out of his car with poor balance in his driveway. Police approached him to ask if he knew the passed out driver Jenkins. In the process, Criswell was asked to walk down to the street and perform field sobriety tests which he refused and subsequently he was arrested for DUI. The Trial Court found that the Officer's entry upon Criswell's property was a second tier encounter or a police investigatory detention and required articulable suspicion of DUI specifically finding that the Officer could not smell alcohol and see red eyes from 12 to 14 feet away. The Court of Appeals rejected the Trial Court's finding of a second tier encounter and found that a police walking onto private property at 1:43 AM is a consensual first tier police citizen encounter which is no difference than crossing paths on a sidewalk downtown or a delivery man depositing a package or other visitor. I am sure we can expect after midnight UPS delivers and solicitations from Jehovah's Witnesses and Environmental groups at 3 am now that the Court of Appeals has sanctioned this behavior as normal and customary. The Court of Appeals found that the Police need no articulable suspicion to enter property property in the middle of the night as long as they use the driveway and the front walk. The Court of Appeals also found that the Holly Springs Police had articulable suspicion to have Criswell walk down to the street to test for fields after threatening jail if he did not and probable cause to arrest him for DUI based upon the Officers observations of normal driving, bloodshot eyes, alcoholic odor, unsteadiness, confusion, and slurred speech. Compare, Corey v. State where the Georgia Court of Appeals found a DUI arrest in an open garage violated the 4th Amendment from March of 2013. more
Edison v. State, A14A0208, Court of Appeals of Georgia, May 29, 2014. Lise Edison was convicted after a Fulton County Bench Trial of DUI less safe drugs after a bench trial. Edison was observed on July 20, 2008 weaving on the freeway and almost hitting another car. Edision looked sleepy and had droopy eyes and admitted to drinking alcohol earlier in the day and taking a sleeping pill 30 minutes earlier. Edison submitted to DUI Standardized Field Sobriety evaluations and was arrested for DUI and read implied consent rights. She agreed to a breath and blood test. After completing the breath and blood test, the Officer told Eidson that he would not take her to jail and book her in but release her on a copy of charges or tickets if she submitted to a series of Drug Recognition Expert evaluations. Eidson claimed that the offer not to take to jail made the DRE evaluations not inadmissible as being obtained as a result of an offer of a hope of benefit under OCGA 24-3-50 (which provides "[t]o make a confession admissible, it must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury").
The Court of Appeals held that because the Officer only offered to take her home and not to jail which is a collateral benefit as opposed to not charging her with a DUI which would be a material benefit. Further, the Court held that hope of benefit does not apply to not testimonial and not communitive like blood tests and field sobriety tests. more
Carder v. State, A14A0221, Court of Appeals of Georgia, June 4, 2014. Tammy Fay Carder was arrested for DUI, Reckless Driving and driving on the wrong side of the road on August 4, 2008 after crossing over the center line and striking another vehicle killing a passenger while smelling of wine in Forsyth County. She was not charged until three years had passed well over the one year statute of limitations for the Forsyth County DUI and Reckless driving. The Court of Appeals held that the felony charges of vehicular homicide can proceed even after the statute of limitations had run on the misdemeanor charges. See, Leachman v. State, 286 Ga. App. 708 (649 SE2d 886) (2007). The Appellate Court declined Carder's invitation to overrule that case since that decision seems to be well-founded. See also State v. Jones, 274 Ga. 287 (553 SE2d 612) (2001) ("expiration of the limitations period for the underlying felony does not preclude a prosecution for felony murder."). more
Flading v. State, A14A0557, May 22, 2014. John Flading was convicted by a Fulton County jury of DUI less safe and failure to maintain lane after an arrest for DUI in the City of Roswell. The issue on appeal is whether the Agreement to rescind his administrative license suspension of one year for refusing the State's official chemical test by agreeing to plead guilty to DUI which was signed only by his attorney is admissible in his criminal jury trial against him. Flading was only asked to perform the HGN eye test and the Alphabet test. He allegedly showed 6/6 clues on the HGN test and said the alphabet correctly but went two letter past where he was instructed to stop. more