(An unpublished opinion is not binding as precedent but may have persuasive value in court.)

People v. Cage

Approximately 1:45 a.m., the defendant failed to use a turn signal when changing lanes and later twice drifting across the road, led the officer to suspect the defendant was operating while intoxicated, and therefore, allowed to properly stop the vehicle.

However, after the officer observed the defendant’s driving, he pulled into a driveway until the officer passed by his location. The officer turned around and saw the defendant had left the driveway and was going in the opposite direction.

The defendant then turned in another direction and as the officer’s vehicle caught up with him, the defendant turned onto a dead-end street. The officer signaled for the defendant to stop and he initially complied. When the officer opened his door, the defendant drove away. He then stopped his car, fled on foot, and then disappeared.

The officer relayed his description to a dispatcher for a BOL broadcast to area police agencies. Another officer heard the BOL. Approximately 3:20 a.m., another officer saw an individual matching the defendant’s description in an area about a mile from where the defendant left his car. The officer asked the individual to approach and they talked. The officer eventually detained the defendant and the original officer identified him.

A search of the defendant resulted in the discovery of a key fob and tag listing the vehicle license plate, year, model, and color. The key was recovered from the vehicle.

The defendant argued the police did not have a reasonable suspicion or probable cause to stop him. However, the court disagreed, and held that the defendant told the second officer there were outstanding misdemeanor warrants for him, which the officer confirmed, thereby, giving him a reasonable basis for detaining the defendant.

The case was affirmed. People v. Cage, case no. 278672, released August 26, 2008.

People v. Whisman

The defendant lost control of his vehicle and crashed into a drainage ditch. A trooper responded to the crash and observed him walking in the road a short distance from the scene. After contact with the defendant, the trooper smelled the odor of intoxicants on his breath and noted his speech was slurred.

The defendant admitted to the trooper he drank alcohol earlier. Based on his admission, the trooper had the defendant performed dexterity tests, and then the trooper administered a PBT test on the defendant. The trooper arrested the defendant. The defendant’s blood was drawn, and his BAC was 0.14.

The defendant claimed he did not drive while intoxicated, but rather drank after the crash. The court disagreed with the defendant and held that, reviewing the evidence in the light most favorable to the prosecution, the defendant’s rising BAC level did not exclude the possibility he was intoxicated at the time of the crash.

The court further held the evidence at trial could warrant a rational trier of fact to find the defendant was operating a motor vehicle while intoxicated. The evidence was sufficient to support his conviction.

The case was affirmed. People v. Whisman, case no. 278771, released August 26, 2008.

People v. Smith

The Court held that the evidence in the bench trial supported a reasonable inference the defendant had knowledge of the gun beneath his seat and had access to it, and thus, the verdicts of guilty on the CCW and felony-firearms charges were consistent with the evidence presented.

The defendant argued that the trial court entered inconsistent verdicts by acquitting him of the felon in possession charge, but convicting him on the CCW and felony-firearm charges. The trial court explicitly found the defendant possessed a firearm, however, there was no evidence to support the felon in possession charge. The only testimony during trial about a prior felony was the defendant showed a prison ID card when stopped by the police.

Based on the lower court’s record, it was not plain error to acquit the defendant on the felon in possession charge. Even though he was found to be in possession of a firearm, his acquittal on the felon in possession charge was proper because the remaining elements of this charge were not satisfied.

The case was affirmed. People v. Smith, case no, 278399, released August 19, 2008.

People v. Walsh

Since there was no reasonable suspicion required for the officers to approach and question the occupants of the parked car, the trial court did not err when it reversed the district court’s order dismissing the defendant’s possession of marijuana charge.

During an early morning patrol, two officers observed the driver’s occupied car parked on a public street. One of the officers approached the driver, who stated he and his occupants were just “hanging out”. The officer smelled marijuana in the car and asked the occupants if they possessed it. The driver did not have any contraband on him, but nonetheless, he was placed in the patrol car. Another officer spoke to the defendant who was in the rear passenger seat.

The officer asked the defendant if he had marijuana, and the defendant said “yes”. He removed a plastic bag of marijuana from his pocket and handed it to the police officer. Thereafter, he was arrested.

The defendant argued that an investigatory stop occurred when the officers approached the park car, and there was no reasonable basis for the stop, and therefore, the evidence should be suppressed.

The court disagreed, and stated that the officers approached the car seeking voluntary cooperation through non-coercive questioning. The defendant voluntarily revealed his bag of marijuana. By consenting to the questioning, the defendant waived protections against unreasonable search and seizures.

Therefore, no reasonable suspicion was required to approach and encounter the occupants of the car.

The case was affirmed. People v. Walsh, case no. 283366, released August 14, 2008.

People v. Tyler

The court of appeals rejected the defendant’s challenges to the validity of the traffic stop. The defendant argued that the initial traffic stop, which resulted in the search of the defendant and his motorcycle, was not valid because although he was told he was speeding, the police officer allegedly did not give this information to the dispatcher when reporting the traffic stop. On the other hand, the officer testified the reason for the stop was the defendant was “going 65 in a 55 mile an hour zone.”

The defendant claimed People v. Ferency was applicable because the initial stop was for speeding. However, the charges eventually brought against the defendant were related to the weapon found during a search after the stop. He was never issued a citation for speeding. The prosecutor never attempted to admit evidence of the readings from the officer’s radar device. The Court ruled since the defendant was not tried for speeding, he was not entitled to the protections of Ferency.

The case was affirmed. People v. Tyler, case no. 276769, released July 29, 2008.

People v. Soares

The trial court abused its discretion in granting the prosecutor’s motion to exclude evidence of the victim’s use of marijuana at the time of the crash. The victim was driving his motorcycle on a road when an SUV, driven by the defendant ran the stop sign at a high rate of speed, causing the victim’s motorcycle to collide head-on with the side of the defendant’s SUV.

The defendant was injured in the crash. The victim was killed. The defendant’s BAC two hours later after the crash was 0.06, which could be extrapolated to mean his BAC was between 0.07 and 0.09 or higher at the time of the crash. It was later determined the victim was also speeding and based on a blood test, he had smoked or otherwise ingested marijuana.

Defendant argued the victim’s operation of his motorcycle approximately 9 or 10 mph over the speed limit while marijuana was in his system, constituted gross negligence acting as superseding cause of the crash causing the victim’s death. The Court of Appeals agreed.

The court of appeals stated that ‘the trial court should have permitted the evidence to go before the jury because it was “clearly relevant” to the issue of whether the defendant’s negligence caused the victim’s death.

The defendant’s convictions of OWI causing death and manslaughter were reversed and remanded for a new trial. People v. Soares, case no. 273333, released July 24, 2008.

People v. Willis

Two police officers were on patrol when they were dispatched to assist other officers responding to a report of shots fired. As they were driving along, they saw the defendant riding a bicycle south on a street, and the bicycle was not equipped with any lights.

The officers started to follow the bicyclist. They pulled beside him and, after an officer identified himself as a police officer, they asked him to stop. The defendant got off his bicycle, and he ran from the police. As he ran from the police, he was clutching his right pocket.

On of the officers pursued the defendant, detained him, and patted him down. The other officer, thereafter, asked him if he had “anything he shouldn’t have” and the defendant stated “he had a gun in his right coat pocket.” The officer removed the gun from his pocket.

The defendant contended the police lacked reasonable suspicion to stop him. The court ruled that because “the civil infraction provided a legitimate reason to stop the defendant, the fact that the officers may have had additional reasons which, if isolated, would not justify a stop, is irrelevant.”

The defendant’s convictions of felon in possession, felony firearm-second offense, and CCW were affirmed. People v. Willis, case no. 278739, released July 15, 2008.

People v. Branner

The lower court did not err in relying on the preliminary examination testimony and police reports, rather than conducting an evidentiary hearing, to decide defendant's motion to suppress the evidence seized from his vehicle where he stipulated to the use of the preliminary examination testimony and police reports to decide the motion.

The court rejected his claim the information supplied by the Criminal Informant (CI) did not justify the stop and search of his vehicle. According to the police reports and testimony, the decision to stop defendant's vehicle was based on information received from a CI before the stop.

In light of the nature of the CI's information, the CI's past history of reliability, the fact the police were able to independently confirm the accuracy and reliability of many of the details provided by the CI, and defendant's suspicious conduct at the gas station, the court held "the police had a reasonable basis for believing" defendant was involved in drug activity.

The case was affirmed. People v. Branner, case no. 275911, released June 17, 2008.