Wednesday, March 22, 2017

The Suspicious Package, the Cell Phone and the Text Messages

This post examines an opinion from the Court of Appeal ofIdaho:   State v. Billups, 2017 WL 929956 (2017). The court begins, as courts usually do, by explaining how and why the case came about:
A detective responded to a call from a post office after it received a suspicious package for a post office box. The detective inspected the package, which contained a scarf and heroin. The post office employees informed the detective that packages to the addressee were typically picked up by a female soon after the packages arrived. The employees also told the detective that the post office box was registered to both a man and to A.H.—the same female who typically picked up the packages. After repackaging the scarf and removing the heroin, the detective advised the employees to deliver the package as they normally would. The detective further instructed the employees to contact the detective when the package was picked up. That same day, the detective learned a female exited a vehicle that was occupied by another individual, entered the post office, retrieved the package, got back into the vehicle, and relocated to a nearby parking lot. The vehicle was parked by a dumpster for a brief period before leaving the parking lot. The detective initiated a traffic stop and approached the vehicle, where he observed portions of the package and the scarf on the center console. A.H. was the driver, and Billups was the front seat passenger.

The detective called a canine to the scene, and the canine alerted on the vehicle. A subsequent search of the vehicle uncovered the scarf, portions of the package, and a bag on the front passenger seat floor mat. The bag contained A.H.'s driver's license and financial transaction cards, a digital scale with residue on it, and a pay/owe ledger sheet with a reference to `Randall.’ The detective testified that the ledger sheet was utilized `almost as a to-do list of things that the individual wrote or needed to do.’ At this point, the detective had identified the passenger as Randall Billups. The detective instructed law enforcement to search trash bins in the area, and they located the rest of the package. Both A.H. and Billups were transported to the police station for further questioning.
State v. Billups, supra.
The court goes on to note that the
detective read Billups his Miranda rights before questioning. During the interview, Billups confessed he was traveling with A.H. to pick up heroin and planned to help A.H. sell the heroin. Billups gave the detective consent to look through Billups' cell phone, and the detective discovered several text messages containing language consistent with the sale and distribution of drugs. Billups was then formally arrested.

The State charged Billups with felony conspiracy to traffic heroin, pursuant to Idaho Code §§ 37–2732B(a)(6)(B)37–2732B(b)18–1701, and 18–204. Billups filed a motion to suppress all evidence obtained as a result of the illegal arrest, as the evidence was obtained as the fruit of his illegal arrest and interrogation. The district court agreed with the State's argument and denied Billups' motion to suppress. A jury found Billups guilty of the charged offense. Billups appeals from his judgment of conviction.
State v. Billups, supra.
The Court of Appeal then began its analysis of the arguments Billups made on appeal, explaining that
Billups argues the district court erred in denying his motion to suppress. The standard of review of a suppression motion is bifurcated. When a decision on a motion to suppress is challenged, we accept the trial court's findings of fact that are supported by substantial evidence, but we freely review the application of constitutional principles to the facts as found. State v. Atkinson, 128 Idaho 559, 561, 916 P.2d 1284, 1286 (Ct. App. 1996). At a suppression hearing, the power to assess the credibility of witnesses, resolve factual conflicts, weigh evidence, and draw factual inferences is vested in the trial court. State v. Valdez–Molina, 127 Idaho 102, 106, 897 P.2d 993, 997 (Idaho Supreme Court 1995); State v. Schevers, 132 Idaho 786, 789, 979 P.2d 659, 662 (Ct. App. 1999).

Billups contends he was arrested and interrogated without probable cause. Thus, he argues, his incriminating statements and text messages are inadmissible as the fruits of his illegal arrest. In response, the State concedes on appeal that Billups was arrested when he was transported to the police station but probable cause justified the warrantless arrest. Thus, the issue is whether probable cause existed to arrest Billups before he gave incriminating statements at the police station. Whether probable cause exists is a question of law over which this Court exercises free review. Moldowan v. City of Warren, 578 F.3d 351, 396 (U.S. Court of Appeals for the 6th Circuit 2009); State v. Martinez–Gonzalez, 152 Idaho 775, 778, 275 P.3d 1, 4 (Ct. App. 2012).
State v. Billups, supra.
The court goes on to explain that a
warrantless arrest must be supported by probable cause. Maryland v. Pringle, 540 U.S. 366, 370 (2003). Probable cause is the possession of information that would lead a person of ordinary care and prudence to believe or entertain an honest and strong presumption that a person they have placed under arrest is guilty of a crime. See State v. Julian, 129 Idaho 133, 136, 922 P.2d 1059, 1062 (1996). A probable cause showing requires `probability or substantial chance of criminal activity.’ Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983). Probable cause is not measured by the same level of proof required for conviction. State v. Alger, 100 Idaho 675, 677, 603 P.2d 1009, 1011 (1979). Rather, probable cause deals with the factual and practical considerations on which reasonable and prudent persons act. Brinegar v. United States, 338 U.S. 160, 175 (1949)Julian, 129 Idaho at 136, 922 P.2d at 1062. When reviewing an officer's actions, the court must judge the facts against an objective standard. Julian, 129 Idaho at 136, 922 P.2d at 1062. That is, would the facts available to the officer, at the moment of the seizure or search, warrant a reasonable person in holding the belief that the action taken was appropriate. Id. A probable cause analysis must allow room for mistakes on the part of the arresting officer but only the mistakes of a reasonable person acting on facts which sensibly led to his or her conclusions of probability. State v. Kerley, 134 Idaho 870, 874, 11 P.3d 489, 493 (Ct. App. 2000). Moreover, a probable cause inquiry considers the totality of circumstances. Pringle, 540 U.S. at 370.

Billups relies on United Statesv. Di Re, 332 U.S. 581 (1948) to support his argument that the detective lacked probable cause to arrest Billups. In Di Re, the defendant was present during an exchange of counterfeit gasoline ration coupons but did not participate in the exchange. Id. at 583. The exchange occurred in a vehicle between an informant, who sat in the back seat, and the driver. Id. The defendant sat next to the driver. Id. All three men were arrested, and a search of the defendant uncovered counterfeit gasoline ration coupons. Id. The Supreme Court ruled the arrest and search of the defendant was unlawful, reasoning that it was `not convinced that a person, by mere presence in a suspected car, loses immunities from search of his person to which he would otherwise be entitled.’ Id. at 587. Here, too, Billups' arrest was based merely on his presence in A.H.'s vehicle. Besides his presence in the car, nothing tied Billups to the package. Billups' mere presence does not lend itself to an honest and strong presumption that Billups was guilty of any crime. An officer could not reasonably infer, based on the totality of circumstances, that Billups was involved in criminal activity.
State v. Billups, supra.
The opinion goes on to explain that “the State,” e.g., the prosecution
relies on Pringle to support its argument that probable cause existed to arrest Billups, but this reliance is misplaced. In Pringle, the defendant was one of three men in a vehicle when it was pulled over. Pringle, 540 U.S. at 367. The officer searched the car and seized rolled-up cash stashed in the glove compartment directly in front of the defendant and bags of cocaine sitting between the back-seat armrest and the back seat. Id. at 368, 372–73. The United States Supreme Court concluded that it was `an entirely reasonable inference . . . that any or all three of the occupants had knowledge of, and exercised dominion and control over, the cocaine.’ Id. at 372. The officer was unable to single out any one perpetrator because none of the three men admitted to owning the cocaine or money. Id. Thus, the Court ruled, probable cause existed to arrest the defendant. Id. at 374. Here, however, the bag containing the digital scale with residue on it and the pay/owe ledger sheet referencing `Randall’ were located in a bag also holding A.H.'s driver's license and her financial transaction cards. The pay/owe ledger sheet did not necessarily indicate Billups paid or owed anything—rather, it read like a to-do list. Moreover, it was A.H. who picked up the package from the post office, the package was sent to the post office box that was registered to A.H., and A.H. drove the vehicle. A.H. could therefore be singled out. In sum, the totality of circumstances does not demonstrate a probability or substantial chance that Billups was involved in any criminal activity. Accordingly, the detective lacked probable cause to arrest Billups before transporting Billups to the police station for questioning.

Billups' incriminating statements and text messages were the products of his illegal arrest. The exclusionary rule is the judicial remedy for addressing illegal searches and bars the admission or use of evidence gathered pursuant to the illegal search. State v. Bunting, 142 Idaho 908, 915, 136 P.3d 379, 386 (Ct. App. 2006). Thus, pursuant to the exclusionary rule, Billups' incriminating statements and text messages were inadmissible. The State does not argue that in the absence of probable cause, such evidence is admissible. Instead, the State concedes the Miranda warning preceding Billups' statements `would not cure any Fourth Amendment violation that would require suppression of those statements.’ We therefore conclude the district court erred in denying Billups' motion to suppress, and the State concedes any error in admitting the statements is not harmless.
State v. Billups, supra.
The Court of Appeals therefore concluded the opinion by explaining that the
district court erred in denying Billups' motion to suppress because Billups' illegal arrest rendered his subsequent incriminating statements and text messages inadmissible. We therefore reverse Billups' judgment of conviction for felony conspiracy to traffic heroin.
State v. Billups, supra.  The opinion also notes that the two other judges on the Court of Appeals concurred in the opinion and in the result it reaches. State v. Billups, supra.

Monday, March 20, 2017

The Issue of First Impression, Texting and the Fatal Automobile Accident

This post examines a recent opinion from the Supreme Court, Genesee County, New York: Vega v. Crane, 2017 WL 887159 (2017).  The case involved a civil suit brought by Carmen Vega who was
seeking to recover for injuries she sustained in a motor vehicle accident that occurred on December 8, 2012. The Plaintiff's vehicle was struck by a car driven by Collin Ward Crane, who died as a result of injuries he sustained in the accident (herein after referred to as `Decedent’). Plaintiff alleges that the Decedent's girlfriend, Taylor Cratsley, [a named defendant], (herein after referred to as `Cratsley’), was texting the Decedent while he was driving, thus distracting him and causing the accident.

Plaintiff moved for partial summary judgment on the issues of liability and serious injury. These motions were granted against the decedent, his estate and his father and reduced to a separate order, which was granted on December 7, 2016. Cratsley, moved for summary judgment seeking to dismiss the Plaintiff's action against her in its entirety. The Court reserved on Cratsley's motion for Summary Judgment, which now follows.
Vega v. Crane, supra.
The court began the substantive part of the opinion by explaining that
[o]n December 8, 2012, a motor vehicle accident occurred on New York State Route 33 when the vehicle driven by the Decedent struck head-on a vehicle driven by the Plaintiff. The New York State Police investigation concluded that Decedent's vehicle crossed the center line before colliding with Plaintiff's vehicle. Though the accident was unwitnessed, New York State Police investigators concluded that the Decedent most likely was distracted, as there were no signs that Decedent attempted to avoid or take evasive measures to elude contact with the Plaintiff's vehicle.

Upon inspection of the Decedent's vehicle, investigators located a cell phone on the floor of the driver's side, in front of the Decedent and between his legs. The cellular phone, which was significantly damaged, was examined by the New York State Police. Upon inspection, it appeared that the Decedent and Ms. Cratsley were texting before the accident occurred. After recovering the digital information from the Decedent's cellular phone, New York State Police investigators interviewed Ms. Cratsley.

She indicated to the investigators, and subsequently confirmed in her deposition and later an affidavit, that although she was texting the Decedent on the date of the accident, she was unaware that the Decedent was driving at the time they were exchanging text messages. (See Affidavit of Taylor Cratsley, dated November 21, 2016). Mrs. Cratsley added that often, when the Decedent was returning from work, a family member would pick him up and drive him home. She also stated that on the date of the accident, although she was aware he was working, she was unaware if he was driving himself or getting a ride to work. Cratsley testified at her deposition that she never expected nor asked the Decedent to send her text messages or read text messages while driving. None of the text messages produced contradict Mrs. Cratsley's testimony.
Vega v. Crane, supra.
The Supreme Court concluded the introductory part of the opinion by noting that
Cratsley moved for summary judgment, arguing that since New York State does not recognize a duty to control the actions of a third party, there existed no special relationship between Cratsley and the Plaintiff that would give rise to any special duty. Plaintiff opposed the motion, citing New Jersey precedent that establishes a special relationship and resulting duty under similar circumstances.
Vega v. Crane, supra.
The Supreme Court began its analysis of the issue in the case by explaining that the
Plaintiff acknowledges that there is no New York State precedent to establish a duty that would obligate Cratsley to protect a third party, namely the Plaintiff, from harm. Plaintiff submits that the matter before the Court is a case of first impression in the State of New York. However, the Plaintiff maintains that the duty that should be imposed is consistent with the public policy of the State of New York, which has established similar duties to third parties in other cases.

If Plaintiff's argument is entertained, the Court would be forced to engage in a profound re-examination of negligence law that was addressed in Palsgraf v. Long Island R.R., 248N.Y. 339, 162 N.E. 99 (1928)Palsgraf, an oft-cited authority, held that in order to recover for the negligent act of others, a plaintiff must establish duty, standard of care, breach of duty, and proximate cause. Since Palsgraf, New York courts have carefully examined those components to establish negligence and have elaborated on them to justify a recovery for damages.
Vega v. Crane, supra.
The opinion then explains that the
Plaintiff cites to a New Jersey case that establishes liability in circumstances where a person contributes to a driver's distraction that results in an accident that causes injury. In Kubert v. Best, the New Jersey Superior Court, Appellate Division, held that a third party, who had knowledge that the motorist they were texting was driving at a time the parties were exchanging text messages, could be found liable for any resulting damages. 432 N.J.Super. 495, 75 A.3d 1214 (N.J.App.2013).

In Kubert, the Plaintiffs were riding on a motorcycle when a driver crossed the center line and struck them. Both Plaintiffs lost their legs as a result of the injuries they sustained in the accident. Not only did the Plaintiffs sue the driver who struck their motorcycle, but they also sued Shannon Colonna, the party who allegedly was texting the defendant motorist. At her deposition, Colonna testified that she had sent the defendant 180 text messages in less than twelve (12) hours on the day of the accident. Colonna also testified that she did not pay attention to whether the recipient of her texts was driving a car at the time or not.

On motion, the underlying New Jersey trial court granted Colonna summary judgment holding that she had no legal duty to avoid sending text messages to Best even though she knew he was driving. The Appellate Division reversed, though still affirming summary judgment on behalf of Colonna. While affirming that Colonna could not be held liable because of the lack of proof demonstrating she knew Best was indeed driving at the time the texts were exchanged, the Appellate Division concluded that `a person sending text messages has a duty not to text someone who is driving if the texter knows, or has special reason to know, the recipient will view the text while driving. Id. Because the Plaintiffs had failed to establish that Colonna had such knowledge while texting Best, she could not be held liable for the resulting injuries caused by the accident.
Vega v. Crane, supra.
The opinion then returns to the issue in this case, explaining that the
Plaintiff would have this Court adopt the reasoning employed by the New Jersey Appellate Division in Kubert to deny Cratsley's motion for summary judgment. Plaintiff also relies on to Sartori v. Gregoire, wherein the Fourth Department held that a passenger in a vehicle could be held liable for verbally or physically distracting a driver immediately prior to an accident. 259 A.D.2d 1004 (4th Dept.1999). Further, Plaintiff argues that the Restatement (Second) of Torts § 303, which provides, `[a]n act is negligent if the actor intends to affect, or realizes or should realize that it is likely to affect, the conduct of a third person in such a manner as to create a duty not to interfere with the driver's operation,’ applies to the facts present here.

In opposition, Cratsley argues that the Plaintiff's argument stands in stark contrast to established precedent in New York. Cratsley maintains that she had no duty to control the conduct of the Decedent when he was driving. While undoubtedly there are certain circumstances that would establish a third-party duty, Cratsley argues that those facts do not exist here. Cratsley submits that New York law does not place a legal duty upon an individual who lacks control over the third party's actions. Pulka v. Edelman, 40 N.Y.2d 781, 390 N.Y.S.2d 393, 358 N.E.2d 1019 (1976).
Vega v. Crane, supra.
The court goes on to point out that in
Pulka, Plaintiffs sued not only the driver who struck a pedestrian, but also the owners of a parking garage. Plaintiffs argued that the garage owners owed a special duty to surrounding pedestrians. The Court of Appeals found that the garage operators owed no duty for an accident that occurred when a patron exited and struck a pedestrian. Pulka stands for the well-settled principle held that before causation could be examined, a legal duty first must be established.

The Court of Appeals addressed the question of whether owners of the garage owed a duty to pedestrians. The Court of Appeals held that the owners did not owe such a duty, and refused to hold a garage operator liable for the acts of its patrons. Further, the Court of Appeals held that there needed to exist a duty, wherein the garage operator owed a special obligation to a pedestrian from one of its patrons, before liability could be established. Again, the Court held that there existed no special duty.

In fact, the Court held that because of the lack of any special duty between the garage operator and its patrons or between the garage operator and pedestrians, and the lack of any reasonable expectation that the garage operator could control or prevent the negligent conduct of its patrons, no legal duty existed. Id. at 785–786, 390 N.Y.S.2d 393, 358 N.E.2d 1019. Here, the Decedent, his estate and his father simply maintain that `a defendant generally has no duty to control the conduct of third persons so as to prevent them from harming others, even where as a practical matter defendant can exercise such control.’ D'Amico v. Christie, 71 N.Y.2d 76, 524 N.Y.S.2d 1, 518 N.E.2d 896 (1987).
Vega v. Crane, supra.
The court then began the process of articulating its holding in the case, explaining that
[t]he argument advanced by the Plaintiff is unique in New York when considering the established body of precedent on the issues of proximate cause, foreseeability, and duty. While states such as New Jersey, as memorialized in Kubert, advance a different standard, courts in New York have either been reluctant to broaden the principle of negligence law or simply refused to do so.

The principle of negligence law is that in order to impose liability for a negligent act, the act must be the proximate cause of the injury that resulted therefrom. NY Jur.2d, Negligence § 47. In a motor vehicle accident, `an act or omission is a proximate cause of an accident if it was a substantial factor in bringing about the accident. That means if it had such an effect in producing the accident that reasonable men or women would regard it as a cause of the accident.’ Rubin v. Percoraro, 141 A.D.2d 525, 529 N.Y.S.2d 142 (2nd Dept.1988). The injuries or the damages complained of must have been those which might have been foreseen by a person of ordinary intelligence and prudence, although not necessarily in the precise form in which they occurred. Kellogg v. Church Charity Foundation of Long Island, 203 N.Y. 191, 96 N.E. 406 (1911).

The Plaintiff wishes to re-examine the long-standing doctrine of negligence law established in Palsgraf v. Long Island Railroad, supra. Palsgraf has been hailed as `perhaps the most celebrated of all torts cases and one of the best-known American common law cases of all time.’ William Prosser, Palsgraf Revisited, 52 Mich. L.Rev. 1, 1 (1953). Although familiar to the bench and bar, the facts of Palsgraf deserve mention. In Palsgraf, a man who was carrying a package ran to board a departing train. One of the railroad guards noticed the man and attempted to pull him onboard the train. At the same time, another guard pushed him from behind. In doing so, the man dropped a package containing fireworks to the ground. Willis W. Hagen II, Accountants Common Law Negligence Liability to Third Parties, 1988 Colum. Bus. L.Rev. 181 (1988). `An explosion which occurred caused a scale at the other end of the platform to fall on [Palsgraf], who sued the railroad for damages.’ Id. at 201, 96 N.E. 406.

In his majority opinion, Judge Cardozo wrote that the Long Island Railroad was not liable to Palsgraf because it did not owe a duty of care to her. In order to find negligence, the injury to the plaintiff must have been reasonably foreseeable to the defendant. Palsgraf, 248 N.Y. 339, 341, 162 N.E. 99. As memorialized by Judge Cardozo,

[i]n every instance, before negligence can be predicated of a given act, the act must be sought and found a duty to the individuals complaining, the observance of which would have averted the injury. Thus, where the injury to the particular plaintiff is not reasonably foreseeable, the defendant does not have an obligation to refrain from negligent conduct. Since the defendant does not have a duty to exercise ordinary care toward unforeseeable persons, liability for negligence does not result. Id. at 342, 162 N.E. 99.
Palsgraf, supra.
Cardozo held that the defendant could not be liable as he could not have reasonably foreseen a risk of injury to the Plaintiff. As such, the defendant's duty of care did not extend to the Plaintiff. In Palsgraf, the defendant could not have reasonably foreseen that the plaintiff, who was standing at the other end of the platform, would be injured as a result of an explosion caused by a falling package that occurred on the opposite end of the platform. As such, because it was not reasonably foreseeable, no duty of care was owed. Vega v. Crane, supra.
The opinion goes on to explain that
[h]ere, Plaintiff asks to modify this standard to broaden the scope of duty from what should be reasonably foreseeable. In particular, Plaintiff is asking that a party texting a person who could be driving should be held liable for the foreseeable risk that might result from this conduct. Although New Jersey may wish to employ such a departure, this Court declines to do so.

The Plaintiff's approach longs to have this Court adopt a standard that is a significant retreat from established law in this area. While Plaintiff offers a detailed analysis suggesting that there already exists a pad from which to launch this undertaking, much of the precedent cited by Plaintiff can be distinguished and does not support her sweeping conclusion.

Relying on Restatement (Second) of Torts § 305, Plaintiff suggests that New York law could be construed to impose liability on an individual who could or should have known that their conduct might result in harm to an unrelated third party. Referencing Sartori v.Gregoire, Plaintiff maintains that a passenger may be liable for verbally or physically distracting a driver immediately prior to a collision. 259 A.D.2d 1004 (4th Dept.1999). The facts of Sartori are quite different from not only those present here, but from the standard for which Sartori imposes on similarly situated defendants.In Sartori, `the defendant commenced a third-party action against a passenger in her vehicle, alleging that his unwanted sexual advances towards her immediately before she started her vehicle caused her to forget to turn on the vehicle's headlights.’ Id.

The Fourth Department held that

[w]hile a passenger in a car may be liable if he distracted the driver while operating the vehicle immediately prior to the accident, (see, e.g., Collins v. McGinley, 158 A.D.2d 151, 153, 558 N.Y.S.2d 979, appeal dismissed 77 N.Y.2d 902, 78 N.Y.2d 1002; Whalen v. Daugherty, 30 A.D.2d 604, 290 N.Y.S.2d 3, lv denied 22 N.Y.2d 647, 295 N.Y.S.2d 1029, 242 N.E.2d 495) it is undisputed that the third-party defendant had no verbal or physical contact with defendant once she started her vehicle and drove out of the parking lot onto the main road where the accident occurred. Thus, third-party defendant's conduct cannot be deemed a proximate cause of plaintiff's injuries. Id.

Here, Cratsley was not in the vehicle with the decedent as was the case in Sartori, thus depriving her of the first-hand knowledge the defendant in Sartori enjoyed. Therefore, the holding in Sartori is misplaced. Second, Sartori does not address the issue as to whether a third party, who has no knowledge whether a defendant was driving, owes any duty to others. Clearly there is a greater nexus between a driver and a passenger than the scenario that exists here.
Vega v. Crane, supra.
The court also used another case to demonstrate how earlier courts had dealt with similar issues, noting that
[i]n Purdy v. Public Administrator of Westchester County, a resident of a local nursing home, who apparently had use of a vehicle, caused an accident resulting in injury. 72 N.Y.2d 1, 530 N.Y.S.2d 513, 526 N.E.2d 4 (1988). The resident had a medical condition that left her susceptible to fainting spells and blackouts. The plaintiff in Purdy argued that the nursing home and its resident physician owed a duty to prevent the resident from driving or to at the very least warn her of the dangers of driving given her condition to not only the Plaintiff, but an unidentified member of the public. The Court of Appeals recognized that `there exist special circumstances in which there is a sufficient authority and ability to control the conduct of third persons that [have given rise to] a duty to do so.’ Id. at 8, 530 N.Y.S.2d 513, 526 N.E.2d 4. Notwithstanding that, the Court of Appeals declined to find the existence of a special relationship between the defendant and the resident that would require the defendant to govern their conduct for the benefit of the plaintiff. The Court held that neither the nursing home nor the doctor had the `authority or ability to exercise such control over [the resident's] conduct so as to give rise to a duty on their part to protect [the] plaintiff—a member of the general public.’ Id. at 8–9, 530 N.Y.S.2d 513, 526 N.E.2d 4.
Vega v. Crane, supra.
The court went on to explain that
[i]f the theory advanced by the Plaintiff here is adopted, the expansion of liability to individuals who text message would be exponential. Should a Court accept the Plaintiff proposition, a party texting another, regardless of any specific knowledge, could be liable for an injury caused by the party receiving the text messages simply by virtue of the text being sent. In this day and age, where texts are routinely sent to, for example, advise the public of breaking news, that prescriptions are ready for pick up, or to advise that a bill is to be paid, the sender would be responsible for any injuries that could be caused should a driver become distracted by their receipt. With texting being as profligate, the potential expansion as contemplated by the Plaintiff is astronomical.

This Court is not ignorant of the many steps taken by not only this state, but others in the nation, to protect against motorists from texting while driving. While that certainly is not the only issue presented for consideration, this Court does not believe it is the province of a Court to establish a precedent for want of a statute that otherwise has not been considered, let alone approved, by a legislative body. Though many would prefer a Court simply to make law where either a legislative body or executive has failed to do so, this Court does not believe that is its role. It is not the role of the judiciary to sit on high and promulgate what it believes should have been a policy determination made elsewhere. Instead, the courts have deferred to the wisdom, or absence of it, of the legislature in defining what is actionable and what is not. Rosenfeld v. Isaacs, 79 A.D.2d 630, 433 N.Y.S.2d 623 (2nd Dept.1980); Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978). In short, courts are not free to decide what should be founded in statutory authority. This is the realm of the legislature. Simply put, if the legislature wishes to make actionable a third-party's texting to a motorist, notwithstanding their lack of knowledge that the person to whom they are texting is driving, they should do so. This Court refuses to establish this cause of action by judicial fiat.

Accordingly, the motion for summary judgment made by Defendant, Taylor Cratsley, is hereby GRANTED. Defendant shall submit an Order on notice.
Vega v. Crane, supra.

Wednesday, March 15, 2017

Facebook and Attempting To Obtain Property By False Pretenses

This post examines a recent opinion from the Court of Appeals of North Carolina: North Carolina v. Arthiando Lurez Phillips, 2017 WL 899991 (2017). The court begins the opinion, as courts usually do, by explaining how and why the prosecution arose and what happened at the trial court level:
On 17 March 2014, Detective Micah Sturgis with the Cleveland County Sheriff's Office attended a meeting with members from multiple nearby police departments and sheriffs' offices. At the meeting, officers with the Gaffney Police Department reported that several items of Michael Kors inventory, including `purses, pocketbooks, [and] backpacks,’ were being stolen from the Michael Kors Outlet store in Gaffney.

A week later, Detective Sturgis was on his personal Facebook page when he noticed a posting for Michael Kors backpacks for sale on a website called `One Man's Junk,’ which he described as an online `flea market.’ The backpacks, with accompanying photographs, were captioned `Michael Kors Backpacks Startin' at 45,’ and were listed for sale on the site by an individual named R.D. Phillips. This name caught Detective Sturgis's eye because he was familiar with an individual named Arthiando Phillips, the defendant. Because of the reported larcenies of multiple Michael Kors items from the Gaffney store, Detective Sturgis decided to investigate further.

Using a fake name and address, Detective Sturgis created a fake Facebook account and started a conversation with R.D. Phillips, who was later determined to be defendant, in order to discuss the purchase of the Michael Kors backpacks. Detective Sturgis asked, `[c]an you send me pics of the bags you've got or can you get up with me tomorrow morning sometime?’ Defendant replied that he could `get anything from shades to shoes, the MK watches and all.’ Detective Sturgis requested to meet defendant in Shelby at 11:00 a.m. the next morning, 25 March 2014, and defendant agreed to the meeting and provided his phone number.

Detective Sturgis then contacted Sergeant Fitch, a supervisor with the Cleveland County Sheriff's Office, and the two decided to set up an undercover purchase from defendant for one of the Michael Kors bags in order to determine whether it was (1) one of the stolen Michael Kors bags from the outlet in Gaffney, or (2) counterfeit merchandise. Detective Sturgis enlisted Sergeant Fitch's help to set up the undercover purchase because Sergeant Fitch was more familiar and experienced with undercover buy operations of illegal purchases.
North Carolina v. Arthiando Lurez Phillips, supra.
The opinion goes on to explain that on
25 March 2014, Detective Sturgis called defendant and told him his `business partner Tim’ (Sergeant Fitch) would be meeting him. Sergeant Fitch then called defendant to set up the time, date, and location of the meeting for the undercover purchase, and recorded the call. Sergeant Fitch took $50.00 from the sheriff's office special funds account and met defendant at the Walmart on Highway 74 in Shelby. Defendant brought two Michael Kors bags to the meeting, and Sergeant Fitch ultimately purchased one of the bags for $35.00. Defendant never indicated whether the bags were authentic or counterfeit, but according to Detective Sturgis, defendant `used the words `Michael Kors’ and showed a tag on the pocketbook or the book bag as a Michael Kors tag’ in his Facebook post. Afterwards, Sergeant Fitch delivered the bag to Detective Sturgis and later testified that he `knew something was not right, to sell a $400 pocketbook for $45.’

Thereafter, Detective Sturgis contacted counterfeit expert Wayne Grooms, stating

`[b]ased off of looking at the pocketbook, there were some things about the pocketbook that made me believe the pocketbook was a counterfeit pocketbook instead of a true Michael Kors pocketbook. I had worked with Wayne Grooms and the U.S. Customs in a couple of other investigations where we had gotten some counterfeit goods, and there's some telltale signs that I had picked up from other investigations to be able to determine that this one was probably a counterfeit pocketbook at that point. So I wanted Investigator Grooms to take a look at it to verify what I thought.’
North Carolina v. Arthiando Lurez Phillips, supra.
The opinion then explains what happened next with the investigation:
On 1 April 2014, Investigator Grooms spoke with Detective Sturgis regarding the authenticity of the Michael Kors bag, which he determined to be not authentic, based on his experience as a Charlotte-Mecklenburg police officer who had been involved in over 10,000 trademark investigations and been sworn as an expert on counterfeit merchandise in both federal and state courts. The same day, Detective Sturgis met with other officers and planned to meet defendant in the Walmart parking lot for the purchase of additional counterfeit goods. However, defendant did not answer the officers' calls or respond to texts, and so officers went to defendant's residence and conducted a search of the home.

At defendant's residence, the officers found `other counterfeit goods located inside the residence, but it appeared that they were for personal use and not for redistribution.’ During the search, officers also found and seized seven illegal `poker style’ video gambling machines in an outbuilding warehoused on the property. Additionally, defendant indicated to Special Agent Brian Bowes with U.S. Customs, that he purchases `counterfeit merchandise’ from a warehouse on Old National Highway in Atlanta, Georgia called The Discount Mall. Detective Sturgis passed this information along to authorities in Georgia and U.S. Customs.
North Carolina v. Arthiando Lurez Phillips, supra.
As a result, Phillips
was arrested and charged with obtaining property by false pretenses and possessing five or more video gaming machines. On 8 September 2014, defendant was indicted by a Cleveland County grand jury for the same. The cases were consolidated and tried by a jury during the 14 December 2015 Criminal Session of the Superior Court of Cleveland County, the Honorable Gregory R. Hayes, Judge presiding. Defendant entered a plea of not guilty to both charges.

Following the close of the State's evidence, defendant moved to dismiss all charges against him due to insufficient evidence. The trial court denied the motion. Defendant did not present any evidence at trial.

On 15 December 2015, the jury returned a verdict of guilty of attempting to obtain property by false pretenses and a verdict of not guilty of possession five or more video gaming machines. The trial court entered judgment the same day, committing defendant to the custody of the North Carolina Department of Correction for a term of eleven to twenty-three months. Defendant filed written notice of appeal.

On appeal, defendant contends the trial court committed reversible error by denying defendant's motion to dismiss the charge where the evidence was insufficient to support the conviction for attempting to obtain property by false pretenses. We disagree.

North Carolina v. Arthiando Lurez Phillips, supra.

The court went on to explain that

`[t]his Court reviews the trial court's denial of a motion to dismiss de novo.’ State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007) (citation omitted). `Upon defendant's motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied.’ State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000) (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)). `In making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.’ State v. Rose, 339 N.C. 172, 192–93, 451 S.E.2d 211, 223 (1994) (citing State v. Sumpter, 318 N.C. 102, 107, 347 S.E.2d 396, 399 (1986)).

North Carolina v. Arthiando Lurez Phillips, supra.

The opinion goes on to explain that Phillips

was charged and convicted of obtaining property by false pretenses. Pursuant to North Carolina General Statutes § 14-100, our Supreme Court has defined this offense as `(1) a false representation of a subsisting fact or a future fulfillment or event, (2) which is calculated and intended to deceive, (3) which does in fact deceive, and (4) by which one person obtains or attempts to obtain value from another.’ State v. Childers, 80 N.C. App. 236, 242, 341 S.E.2d 760, 764 (1986) (quoting State v. Cronin, 299 N.C. 229, 262 S.E.2d 277, 286 (1980));); see North Carolina General Statutes § 14-100 (2015), 286 (2015). A key element of the offense is that `an intentionally false and deceptive representation of a fact or event has been made.’ State v. Kelly, 75 N.C. App. 461, 464, 331 S.E.2d 227, 230 (1985).

When a defendant is charged with the completed offense of obtaining property by false pretenses, proof that the victim was indeed deceived at the time of the offense is required. See State v. Simpson, 159 N.C. App. 435, 539, 583 S.E.2d 714, 716-17 (2003). However, this Court has previously held that actual deceit is not an element of the crime of attempting to obtain property by false pretenses. See State v. Wilburn, 57 N.C. App. 40, 46, 290 S.E.2d 782, 786 (1982) (`It is not necessary in order to establish an intent, that the prosecutor should have been deceived, or should have relied on the false pretenses and have parted with his property . . . .’ (citations omitted)); see also State v. Dawson, No COA15-420, 2015 WL 7729662 at *2-4 (North Carolna Court of Appeals 2015) (unpublished) (finding no error in the trial court's denial of the defendant's motion to dismiss `where neither clerk was deceived by the counterfeit $100.00 bills and did not part with any property in exchange for [them],’ as the evidence was sufficient to show the defendant's attempt to obtain property by false pretenses, a crime for which `actual deceit’ is not required). Indeed, for attempt crimes, the two elements required are (1) `the intent to commit the substantive offense’ and (2) `an overt act done for that purpose which goes beyond mere preparation but falls short of the completed offense.’ State v. Smith, 300 N.C. 71, 79, 265 S.E.2d 164, 169-20 (1980) (citations omitted).
North Carolina v. Arthiando Lurez Phillips, supra.
The court then took up Lurez Phillips’ next argument, which was that
the evidence fails to establish a false pretense or intent to deceive because defendant did not `actually represent that the bag he offered for sale was an authentic Michael Kors bag.’ We disagree.

In the instant case, the evidence shows that defendant advertised Michael Kors bags for sale for $45.00 on a website titled `One Man's Junk.’ In his statements to Detective Sturgis on Facebook, defendant described one bag as a `Michael Kors bag with tags,’ and included photographs. The evidence in the record also shows that defendant originally purchased the bags from a warehouse in Atlanta (`The Discount Mall’), and sold the bags for only a fraction of their worth, which also helps to establish that defendant knew the merchandise was counterfeit. Sergeant Fitch testified that he made an undercover purchase of one of the bags, paying defendant $35.00, at the behest of Detective Sturgis. Evidence in the record also supports the fact that Detective Sturgis and Sergeant Fitch were suspicious and had knowledge that the bags sold by defendant, including the one Sergeant Fitch purchased, were likely counterfeit. Indeed, Wayne Grooms, the owner of a private investigative firm that specializes in intellectual property investigations dealing with counterfeit merchandise testified at trial that the Michael Kors bag at issue in this case was `not a genuine handbag’: `The label is totally wrong. The way the “MK” is put on the label is wrong. The way the label is attached to the handbag is wrong. The zippers are wrong. The circles are wrong. The material of the pocketbook is wrong.’

Thus, defendant's act of advertising and holding the items out as a particular brand (Michael Kors), even though he knew the merchandise was counterfeit, establishes intent on the part of defendant to deceive undercover officers and other potential buyers. See id. Thus, viewing the evidence in the light most favorable to the State, defendant had the requisite intent to cheat or defraud, an action which was calculated to deceive buyers, and the trial court properly denied defendant's motion to dismiss.
North Carolina v. Arthiando Lurez Phillips, supra.
The court went on to explain that
[w]ith regard to the second element of the attempt offense (overt act), however, defendant, relying on this Court's opinion in State v. Wilburn, argues that `where the evidence presented by the State . . .showed a completed offense, then the evidence [is] insufficient to support a conviction for the attempt[,]’ and therefore, his conviction should be vacated. See 57 N.C. App. at 46, 290 S.E.2d at 786 (citations omitted). Defendant misconstrues the law as stated in Wilburn.

In Wilburn, this Court held that `if property is actually obtained in consequence of the prosecut[ing party's] reliance on the false pretenses, the offense is complete and an indictment for an attempt will not lie.’ Id. (emphasis added) (citations omitted). However, here, the property was not obtained `in consequence’ of Sergeant Fitch's `reliance on the false pretense.’ Instead, the property was obtained as a part of an undercover operation, and the record supports the conclusion that the officers involved in the operation were suspicious and had knowledge that the bag was likely counterfeit. Thus, because Sergeant Fitch was never deceived by defendant's misrepresentation that the bag was an authentic Michael Kors brand bag, the crime was not complete at the time of the sale. Therefore, while the officer did complete the purchase of the counterfeit bag for the purpose of the undercover operation, the officer was never deceived because he did not rely on defendant's false representation, and defendant was only guilty of attempting to obtain property by false pretenses.

Accordingly, where there was substantial record evidence to support that defendant intended to deceive the buyer but fell short of the completed offense because Sergeant Fitch was not deceived at the time of the sale, the State presented sufficient evidence to establish that defendant attempted to obtain property by false pretenses, and the trial court did not err in denying defendant's motion to dismiss.

North Carolina v. Arthiando Lurez Phillips, supra.