The Cell Phone, Second-Degree Robbery and the Mugshot

This post examines a decision from the California Court of Appeals – Second District: People v. Estrada, 2016 WL 4729515 (2016).  The court begins by explaining that Jose Raul Estrada

appeals from a judgment entered after he pleaded no contest to receiving stolen property (California Penal Code, § 496, subd. (a)) and possession of methamphetamine (California Health & Safety Code, § 11377, subd. (a)), and a jury found him guilty of second degree robbery (California Penal Code § 211) and also found he used a handgun during the robbery (California Penal Code § 12022.5, subd. (a)). After finding a prior prison term enhancement allegation to be true (California Penal Code § 667.5, subd. (b)), the trial court sentenced him to eight years and eight months in prison.

People v. Estrada, supra.

On appeal, Estrada argued, among other things, that the trial court judge erred “in admitting into evidence his mugshot photograph from his current arrest and a detective's testimony regarding how law enforcement identified him as a suspect”. People v. Estrada, supra.

The Court of Appeals began the substantive part of its opinion by explaining that, in his appeal, Estrada argued that the trial court judge erred, among other things, “in admitting into evidence his mugshot photograph from his current arrest and a detective's testimony regarding how law enforcement identified him as a suspect”.  People v. Estrada, supra. It also went on to explain that

[a]n information charged Estrada with second degree robbery (count 1), receiving stolen property (count 2), and possession of methamphetamine (count 3). Before trial on the robbery count and the firearm use enhancement alleged in the information, Estrada pleaded no contest to counts 2 and 3. The trial court continued sentencing on counts 2 and 3 until after the trial.

People v. Estrada, supra.

The Court of Appeals went on to explain why, and how, the prosecution arose:

The robbery victim, Octavia Clemons, testified she was waiting at a bus stop in Pasadena about 6:30 a.m. on May 18, 2014, when a man (later identified as Estrada) stole her cell phone. Clemons identified Estrada in court at trial as the man who robbed her. She was not acquainted with Estrada prior to the robbery.

Clemons was using her cell phone when Estrada approached the bus stop on a bicycle. He stood face-to-face with her, straddling his bicycle, and asked to borrow her cell phone. She agreed, and he started providing a phone number for her to dial. After changing the digits of the phone number, he demanded, `Bitch, give me your phone or I am gonna blast you right here.’ He lifted his shirt, revealing what appeared to Clemons to be the black handle of a nine-millimeter handgun tucked into his waistband. Clemons had seen nine-millimeter handguns on other occasions prior to the date of this robbery. She felt afraid, believing Estrada would fire the gun. Estrada snatched the cell phone from her hand and ordered, `Don't fucking turn around or I am gonna fucking blast you, bitch.’ He left on his bicycle.

Clemons rode the bus for about five minutes to the next stop, then walked the half-mile to her home. She dialed 911 and provided a description of the man who had robbed her. The jury heard an audio recording of the 911 call. Officers responded to her home and interviewed her.

Later that day, Clemons requested that her wireless provider disconnect the service to the cell phone Estrada stole. She purchased a new cell phone and activated it, using the same phone number. `All night,’ she received calls on her new phone from people asking to speak with `Jose’ (Estrada's first name) or `Stalker’ (Estrada's admitted nickname). Clemons photographed the incoming call log on her new cell phone and provided the photos to the police.

In the evening after the robbery, Clemons accessed the social media Web site Facebook and was reviewing user profiles, when she observed a photograph of the man who had robbed her. She took `screen shots’ of the Facebook photographs and provided them to the police.

People v. Estrada, supra.

The opinion then explained how local police found and arrested Estrada:

Detective David Duran, the investigating officer on this case from the Pasadena Police Department, testified at trial that he conducted a `records check,’ using the name Jose and the birth date associated with the Facebook profile Clemons provided. The results of his search included photographs depicting the same person pictured in the Facebook photographs. Duran circulated a `wanted persons flier’ with Estrada's photograph and `his last known address.’ Officers arrested Estrada at that address on July 7, 2014.

Detective Duran interviewed Estrada on the day of his arrest, after Estrada waived his Miranda rights. Estrada told Duran he had used the nickname `Stalker.’ Duran asked if Estrada recognized one of the phone numbers from Clemons's incoming call log. Estrada identified the number as Alma Reyes's phone number. Reyes was present with Estrada when he was arrested.

People v. Estrada, supra.

At his trial, Estrada

presented an alibi defense through testimony from his former girlfriend/ mother of his son. She stated Estrada was sleeping in the room he rented in Highland Park around 6:30 a.m. on May 19, 2014 (the same time as the robbery), when she arrived to bring him food.

People v. Estrada, supra.

The opinion then outlines what else happened at Estrada’s trial and thereafter:

Prior to reaching a verdict, the jury submitted a question to the trial court, stating, `In the event that the jury reaches a verdict on one charge but cannot on another, what happens with the result of the case?’ The court responded, `Do your best to reach a verdict/decision on the charge and allegation. Do not be concerned with the procedure or what happens afterward.’ The jury also submitted a request for transcripts of Clemons's cross-examination and defense counsel's closing argument. The court provided a read-back of Clemons's cross-examination and informed the jury it would not hear a read-back of argument because that is not evidence.

The jury found Estrada guilty of second degree robbery and found true the enhancement allegation that Estrada personally used a handgun in the commission of the robbery (§ 12022.5, subd. (a)).

Estrada waived his right to jury trial on the prior prison term enhancement allegation set forth in the information, and the trial court found true that he had served a prior prison term within the meaning of section 667.5, subdivision (b). The trial court sentenced Estrada to eight years and eight months in prison: the midterm of three years for robbery (count 1), plus a consecutive four-year term for the firearm use enhancement and a consecutive one-year term for the prior prison term enhancement; and a consecutive term of eight months (one-third the midterm) for receiving stolen property (count 2) after the pretrial no contest plea. On count 3 for possession of methamphetamine, to which Estrada also pleaded no contest, the court imposed a one-year concurrent term.

People v. Estrada, supra.

The Court of Appeals then took up Estrada’s argument concerning the admission of his “mugshot.” People v. Estrada, supra.  It explained that

[o]ver Estrada's Evidence Code section 352 objection, the trial court allowed the prosecution to introduce Estrada's `mugshot’ or booking photograph for purposes of depicting Estrada's appearance at the time of his arrest. Apparently his hair was longer by the time of trial, a point he conceded in making his objection. Estrada argued the photograph was `very prejudicial’ because (1) it was titled `mugshot,’ (2) he appeared to be `glowering and angry’ in the photograph, and (3) his overall appearance had not changed sufficiently by the time of trial to warrant the photo's introduction. The court overruled Estrada's objection (and later admitted the photograph into evidence), finding the evidence was more probative than prejudicial.

During direct examination, Detective Duran described the photograph as a `booking photograph of Mr. Estrada’ and testified the photograph accurately depicted Estrada's appearance on the date of his arrest in this case. We review the trial court's admission of evidence for abuse of discretion. (People v. Johnson, 61 Cal.4th 734, 767) California Court of Appeals – Fourth District 2015) [`The admission of photographs lies within the trial court's discretion and will not be disturbed absent an abuse of that discretion’].)

People v. Estrada, supra.

The court began its analysis of Estrada’s objection by explaining that he

contends the trial court abused its discretion in admitting the mugshot photograph into evidence because (1) it revealed he had a prior criminal record, (2) it removed the question of identity from the jury, (3) it was not relevant to any material issue at trial, and (4) it was cumulative because Clemons, the victim, already had identified Estrada as the robber before the prosecution introduced the photograph. We reject each of these arguments.

The mugshot photograph did not disclose Estrada's prior criminal record to the jury. As the trial court explained in overruling Estrada's objection to this evidence, `This is the booking photo from this case. I mean, they [the jurors] know he was arrested. He is here in court. He was arrested and charged.’ (Compare People v. Cook (1967) 252 Cal.App.2d 25, 29 [error to admit mugshot taken seven years before trial, indicating the defendant had a prior criminal record].)  Estrada notes there are three different identification numbers on the photograph (an `FCN,’ a `CII,’ and an `OCA’ number), but he does not explain how these numbers would have revealed his prior criminal record to the jury.

The fact the mugshot photograph identified Estrada by name does not mean it removed the question of Estrada's identity as the robber from the jury. The mugshot, coupled with Detective Duran's testimony, merely identified Estrada as the man arrested for the robbery of Clemons. It was for the jury to decide if Estrada, in fact, was the man who had committed the robbery.

People v. Estrada, supra.

The Court of Appeals went on to explain that the

mugshot photograph was relevant to the material issue of identity. Clemons provided the police with copies of photographs she had obtained from Facebook, depicting the man she claimed had robbed her. The purpose of the mugshot was to show the jurors Estrada's appearance at the time of his arrest so they could compare his appearance with that of the man in the Facebook photographs. Because Estrada's hair was longer at the time of trial, the mugshot presented a more accurate comparison. (See People v. Peralez (1971) 14 Cal. App. 3d 368, 377 [p]olice photograph of the defendant taken at the time of his arrest `was relevant to the identity of the [defendant] because of the change in his appearance between the time of booking and the time of trial’.)

Estrada asserts the mugshot photograph constituted cumulative evidence because the prosecution introduced the Facebook photographs and Clemons identified Estrada as the robber in court, before the prosecution introduced the mugshot. We disagree. The mugshot photograph was the only evidence depicting Estrada's appearance at the time of his arrest—less than two months after the crime—that the jury could compare to the Facebook photographs Clemons obtained the same day as the crime, and which she claimed depicted the robber. The trial occurred more than nine months after the crime, and Estrada's hair had grown longer.

People v. Estrada, supra.

The Court of Appeals then articulated its ruling on the issue of whether the trial court judge acted properly in admitting the mugshot:

The trial court acted within the bounds of its discretion in admitting into evidence the mugshot photograph. The probative value of the photograph—Estrada's appearance closer in time to the crime—was not `substantially outweighed by the probability that its admission [would] (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.’ (California Evidence Code § 352).  

Regardless of whether the trial court erred, we would not reverse Estrada's conviction because it is not reasonably probable the jury would have reached a result more favorable to him absent the mugshot photograph. (People v. Watson (1956) 46 Cal.2d 838, 836; People v. Carter (2005) 36 Cal.4th 1114, 1170-1171 [`Under the Watson standard, the erroneous admission of a photograph warrants reversal of a conviction only if the appellate court concludes that it is reasonably probable the jury would have reached a different result had the photograph been excluded’].)

Clemons unequivocally identified Estrada in court as the man who robbed her. Other substantial evidence corroborated her identification (e.g., the fact a woman who was present with Estrada at the time of his arrest made multiple calls to Clemons's cell phone number after Clemons reported her cell phone stolen). We have no reason to believe the jury based its true finding on the firearm use enhancement on its response to the mugshot rather than Clemons's testimony regarding her observation of a gun, as Estrada suggests.

People v. Estrada, supra.

For these and other reasons, the Court of Appeals held that the

judgment is modified to reflect the sentence the trial court imposed on count 3, possession of methamphetamine, a violation of Health and Safety Code section 11377, subdivision (a): a one-year concurrent term. In all other respects the judgment is affirmed. 

People v. Estrada, supra.

(If you're wondering whose mugshot is included with this post, it's Al Capone.)

The Fourth Amendment, the Search and Seizure of Personal Electronic Devices and “Remote Deletion”

This post examines a case from the Court of Appeals of Oregon: State v. Friddle, 2016 WL 4784106 (2016).  The court begins the opinion by explaining that Ronald Wesley Friddle

appeals an amended judgment of conviction for unlawful possession of more than one ounce of marijuana, Oregon Revised Statutes 475.864(2), assigning error to the denial of a motion to suppress (marijuana) evidence discovered during the execution of a warrant authorizing the seizure and forensic examination of the contents of personal electronic devices. 

State v. Friddle, supra.

As courts usually do, the Court of Appeals began the substantive part of its opinion by explaining how, and why, the prosecution arose:

Around midnight on December 16, 2012, defendant and his then-girlfriend, W, had an altercation at defendant's home in Grants Pass. Oregon State Police Trooper McClendon responded to a call about the altercation and spoke to W, who was no longer at defendant's home, about the incident. W told McClendon that she and defendant had had a heated argument and that, as she tried to leave the home with her belongings, defendant had punched her in the face—`[j]ust clocked me.

W also told McClendon that, at some point during the altercation, before defendant punched her, he `probably hit record.’ In a follow-up interview, W elaborated on that comment. As recounted in McClendon's affidavit in support of the warrant application, W told him that

`[defendant] kept a security system at his residence * * *. [W] said the system allows [defendant] to access his cameras from his cell phone and see a live feed of the house. [W] explained to me one time while [defendant] was working, [W] turned one of the cameras to face the wall. [W] said when [defendant] found out about this he was angry. [W] told me there was a camera facing the area in which the assault took place and believed there was a possibility the assault was captured on the security system.’

McClendon subsequently spoke with defendant, who acknowledged that he had struck W but said that he had done so only in self-defense, as he was trying to block one of W's punches. Defendant told McClendon that he `had recorded the whole conversation’ with W, and, when asked, allowed McClendon to listen to `the audio’ on a cell phone. That recording captured a screaming argument, laced with profanities, as well as sounds of glass breaking, `a struggle,’ and `a loud thud,’ which McClendon believed was a punch.

State v. Friddle, supra.

The opinion goes on to explain that the

trial court issued a warrant authorizing the seizure from defendant's residence of `[a]ny’ `cell phones,’ `[c]omputers,’ `[s]ecurity system,’ `recorders,’ or `[t]ablets (Ipad, Kindle, etc.)’ owned or operated by defendant and the examination of such items `for evidence of the crime of Assault II.’

McClendon and other officers executed the warrant at defendant's residence. Before doing so, however, McClendon had taken defendant into custody at the Oregon State Police patrol office in Grants Pass and, at that time, had seized from defendant's person the same cell phone on which defendant, in December, had played the audio recording of the incident with W.  In the living and office areas of defendant's house, the officers found and seized `a couple cell phones,’ two cameras from the security system, and defendant’s computer and hard drive. Thereafter, in defendant's garage, the officers found a gun safe large enough to hold cell phones, recording devices, cameras, and computer hardware. Inside the safe was the marijuana (93 grams) that was the subject of the criminal drug possession charge on which defendant was convicted—and the object of the motion to suppress.

State v. Friddle, supra.  If you would like to see a completed application for a federal search warrant, you can find one here.

The Court of Appeals then outlined the arguments Friddle made in his motion to suppress evidence and the ones the prosecution made in response:

[i]n moving to suppress, defendant argued, alternatively, that the search of the safe was unlawful because (a) the search warrant was facially overbroad, and (b) in all events, the opening of the safe, after McClendon and the other officers had recovered the other items from defendant's person and home, exceeded the scope of the warrant, because, at that point, there was no reasonable likelihood that items described in the warrant would be found in the safe.

With respect to the first contention—which is the only challenge that defendant raises on appeal—defense counsel asserted that the combination of W's statements to McClendon about the security system, including defendant's ability to access that system via his cell phone, and defendant's playing of the audio recording of the altercation on his cell phone did not substantiate probable cause that any recording, or any other evidence of the alleged assault, would be found on any of defendant's electronic devices other than that particular cell phone and the security system:

`There's nothing in the affidavit * * * there's no[t] even [any] allegation by Trooper McClendon that there's any reason to believe that there's any other recording than what's on the phone.

“ * * * * *’

`[T]here's no factual basis in the [affidavit] to believe that there was anything other than these two things. No I-pads, no other cameras, nothing else. There was an isolated incident that was, that happened over a period of a few minutes. There were these two systems that perhaps had evidence.’

State v. Friddle, supra.

As this site explains, the

text of the Fourth Amendment imposes a requirement that search warrants `particularly describe’ the places to be searched and the property to be seized. This means that a warrant must authorize officers to search only in the specific places described in detail, and to seize only the specific items of enumerated property for which probable cause is set forth in the supporting affidavit. The U.S. Supreme Court describes this rule:

`General warrants, of course, are prohibited by the Fourth Amendment. The problem posed by the general warrant is of a general, exploratory rummaging in a person's belongings. The Fourth Amendment addresses the problem by requiring a 'particular description' of the things to be seized. . . .As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.’ (Andresen v. Maryland)

The prosecution responded to Friddle’s overbreadth argument by asserting that

the warrant was not overbroad, because it related solely to `electronic evidence that the defendant already made Officer McClendon aware of that existed’—which, in turn, `leads an officer to know that there might be additional evidence related to this crime on X, Y, and Z piece of evidence or on other electronic means.’

State v. Friddle, supra. 

Getting back to the opinion, the Court of Appeals then explained that the trial court judge

denied the motion to suppress. In so ruling, the court began by observing, `Trooper McClendon's affidavit could in part be described as something of a generic assertion of the relevance of cell phones to criminal activity and persons who engage in criminal activity.’ The trial court further noted that, although an officer's `training and experience’—related representations could certainly be material to the assessment of probable cause, the parties had not `cited to any case that specifically reviews the language of the current warrant or anything close to the substance and extent of the affidavit presented in this case.’

The court reasoned that, although McClendon's generalized representations regarding criminal suspects' use of electronic devices might be insufficient to substantiate probable cause, the circumstance that defendant had, in fact, used his cell phone to access and store a recording of the altercation was decisive: `Here, the police had concrete proof that the defendant had a cell phone and that he had used it in the manner that the trooper's training and experience had taught him to be the case.’ Consequently, and concomitantly, the trial court reasoned that the `same or similar may be applied to * * * the kinds of recording devices or storage devices, and the number of computers or storage devices that computers may have or are related to computers,” as well as to “multiple cell phones.’ Accordingly, the court concluded that the warrant was not invalid as overbroad.

Thereafter, defendant entered a conditional guilty plea, and this appeal from the consequent judgment of conviction ensued.

State v. Friddle, supra. 

In his appeal, Friddle made only one argument as to why his conviction should be reversed:

On appeal, defendant assigns error only to the denial of the motion to suppress. His sole appellate contention is that the predicate warrant was invalid as unconstitutionally overbroad, because, defendant asserts,

`it permitted a wholesale search of defendant's home for any cellular phones, computers, security systems, recorders, or tablets when the affidavit in support of the search warrant provided probable cause for the search of only two items: defendant's cellular phone and defendant's home surveillance system.’

(Emphasis in original.) Accordingly, defendant asserts, the search of the gun safe, which yielded the marijuana, was unlawful, as undertaken during the execution of an invalid warrant.

The state remonstrates that the warrant application affidavit established that `defendant was capable of remotely accessing his security video footage from a smart phone or other internet-connected electronic device.’ That, in turn, the state posits, established probable cause to seize and examine the contents of all of the electronic devices described in the warrant `both in order to obtain a copy of the recording and to prevent defendant from destroying it.’

In that regard, the state contends that, because the evidence sought `was the non-tangible, digital video recording of defendant's physical altercation with [W]’ and because the affidavit substantiated defendant's ability to remotely access that data, the seizure of the security system and of the cell phone defendant used to play the audio recording for McClendon did not `necessarily guarante[e] access to the sought-after video recording.’

State v. Friddle, supra. 

The Court of Appeals then explained that in its decision in State v. Mansor, 2016 WL 4014079 (2016), it noted that the “particularity requirement” of the Fourth Amendment

`implicates two analytically distinct, but frequently practically intertwined, concepts. First, the warrant, as supplemented by any attached or incorporated supporting documents, must so clearly describe the place to be searched and the items to be seized and examined that officers can, with reasonable effort, ascertain that place and those items to a reasonable degree of certainty. Second, the warrant must, to the extent reasonably possible, be drawn in such a way as to preclude seizures and searches not supported by probable cause.’

State v. Friddle, supra (quoting State v. Mansor, supra).

The Court of Appeals then began its analysis of the issue in this case, explaining that the

probable cause assessment is, in turn, circumscribed by the contents of the warrant application affidavit(s).See State v. Reid, 319 Or. 65, 71, 872 P.2d 416 (1994) (`[A] warrant may not authorize a search that is broader than the supporting affidavit supplies probable cause to justify.’). . . . Here, because the warrant authorized the seizure and forensic examination of the contents of personal electronic devices, those devices are deemed, for purposes of the particularity requirement, to be `more akin to the “place’ to be searched than to the ‘thing’ to be seized and examined.’ State v. Mansour, supra. Concomitantly, `that requires that the search of that “place” to be limited to the “thing(s)”—the digital data—for which there is probable cause to search.’ State v. Mansour, supra. Thus, our review reduces, ultimately, to whether the warrant application affidavit substantiated probable cause for the forensic examination of the contents of each of those “places”—that is, of `any’ cell phones, computers, and electronic tablets owned or operated by defendant located at his residence (emphasis added).

State v. Friddle, supra. 

The Court of Appeals then explained that in State v. Williams, 270 Or. App. 271, 349 P.3d 616 (2015),

we summarized the controlling standard of probable cause:

`When evaluating the sufficiency of a search warrant affidavit, our task is to determine whether the affidavit alleged sufficient facts to permit a neutral and detached magistrate to determine that seizable evidence probably would be found at the place to be searched. That standard requires an affidavit to do more than allege facts that support a mere suspicion that evidence will be found; even a well-warranted suspicion does not suffice. Rather, the standard of probability requires the conclusion that it is more likely than not that the objects of the search will be found at the specified location.’

State v. Williams, supra (internal citations and quotations omitted) (emphasis added); see also State v. Verdine, 290 Or. 553, 557, 624 P.2d 580 (1981) `“[A] suspicion, no matter how well founded, does not rise to the level of probable cause’).

State v. Friddle, supra. 

The court then explained that

[a]pplying that standard here, we conclude, as amplified below, that the warrant application affidavit did not substantiate probable cause that evidence of the alleged assault—specifically, recordings of the altercation—would be found by way of forensic examination of various devices included in the warrant, including all computers and electronic tablet devices at defendant's residence that he owned or operated. We further conclude that the state's alternative contention—viz., that the seizure of all such devices was necessary to forestall potential `remote’ deletion of recordings of the altercation stored on other electronic devices—is not cognizable on this record as an alternative basis for affirmance. Accordingly, the warrant was invalid, and the search of the gun safe, which yielded the marijuana, was unlawful.

State v. Friddle, supra. 

The Court of Appeals then returned to the content of the affidavit used to obtain the warrant:

We note at the outset—and defendant does not dispute—that the affidavit does establish probable cause with respect to the seizure and forensic examination of defendant's home security system, based on W's statements to McClendon, . . .  and of the cell phone, with the specifically identified phone number, on which defendant played for McClendon the audio recording of the altercation. The critical, disputed nexus, however, is between the content of the affidavit and the other electronic devices included in the warrant. Specifically, does the affidavit substantiate not merely a `well-warranted suspicion,’ State v. Verdine, 624 P.2d 580 (Oregon Supreme Court 1981), but a probability—that is, that it was `more likely than not,’ State v. Williams, 349 P.3d 616 (Oregon Court of Appeals 2015)  (emphasis added)—that an examination of the contents of those devices would disclose evidence of the alleged assault?

The warrant application affidavit discloses only two possible bases for such a circumstantial inference. The first is McClendon's general `training and experience’—based representation that `subjects involved in criminal activity regularly use cellular telephones and cellular telephone features, i.e., text-messaging, photos, recordings (audio and video) etc., to record and store photos, audio recordings and video recordings of their crimes.’ See 281 Or. App. at 133, ––– P.3d at ––––. The second is the uncontroverted circumstance that defendant did, in fact, access and store an audio recording of the altercation on a cell phone identifiable by a specific phone number. That representation and that circumstance are insufficient, individually and collectively, to establish probable cause to seize and examine the contents of the other personal electronic devices.

State v. Friddle, supra. 

The court took up the issue of McClendon’s “training and experience”,

seconding the trial court's characterization of McClendon's `training and experience’—based representations as `generic.; In that regard, we note that the affidavit's only description of McClendon's professional training and experience was that he had served as a state police trooper for three years and had participated in `no less than 50 investigations’ involving `person-to-person’ crimes. Nothing in the affidavit describes any training relating to personal electronic devices and their contents as evidence in criminal investigations or any specific personal professional experience pertaining to such matters. In this context, and given the proliferation of applications for warrants authorizing the forensic examination of the contents of electronic devices, an admonition bears reiteration:

`In the context of statements regarding training and experience, * * * we must not only ensure that the officer's knowledge is connected to the facts of a particular case; we must also examine the knowledge itself. The phrase ‘training and experience,’ in other words, is not a magical incantation with the power to imbue speculation, stereotype, or pseudoscience with an impenetrable armor of veracity.’

State v. Daniels, 234 Or.App. 533, 541, 228 P.3d 695, rev. den., 349 Or. 171, 243 P.3d 70 (2010); accord State v. Holdorf, 355 Or. 812, 829, 333 P.3d 982 (2014) (`We emphasize that a police officer's training and experience, as relevant to proving particular circumstances, is not presumed based solely upon a police officer's employment status’).

State v. Friddle, supra. 

Finally, the Court of Appeals took up the prosecution’s

alternative rationale—viz., that seizure of defendant's other personal electronic devices was justified as essential to preclude potential `remote’ deletion of any evidence stored in the surveillance system or the cell phone on which defendant had played the audio recording for McClendon. That contention is raised for the first time on appeal: The state did not advance such a contention in opposing suppression before the trial court—which is unsurprising, given that the only references in the warrant application affidavit to such potential “tampering” or deletion were in the context of seeking authorization to seize and search data stored on remote servers to forestall destruction of that evidence. . . .

We decline to consider the state's belated contention. That contention is legally and factually problematic in that it implicates matters not addressed (again, unsurprisingly) in the warrant application affidavit. For example, can suspects engage in `remote’ destruction of evidence on one or more of their personal electronic devices (or stored on servers) by using a device other than their own? Or, even assuming the state's premise that seizure of all of a suspect's electronic devices is necessary to forestall such “remote” destruction of evidence on other devices (or servers), how does that justify forensic examination of the contents of all of the devices? Even putting aside those aspects, however, the state's novel proposition has potentially profound systemic implications that have been completely unexplored on this record.

Accordingly, we decline to review that contention. See State v. Kolb, 251 Or.App. 303, 311–12, 283 P.3d 423 (2012) (emphasizing that appellate court's consideration of an alternative basis for affirmance `is a matter of prudential discretion and not compulsion” and declining to address the state's “belated and still-cursory’ alternative basis for affirmance of denial of suppression because, regardless of whether the trial court record might have been affected if that contention had been raised in opposing suppression, `the fact remains that to address that contention meaningfully would require us, in the first instance—without legal record development or any real assistance from the parties—to decide difficult, nuanced, and systemically significant issues’).

State v. Friddle, supra. 

The Court of Appeals therefore held that the

search warrant was invalid, rendering the search of the gun safe unlawful. Accordingly, the trial court erred in denying the motion to suppress.

State v. Friddle, supra. 

“Youthful Indiscretion,” Tweets and Terroristic Threats

This post examines a recent opinion from the Court ofAppeals of Minnesota:  State v. Rund, 2016 WL 4162925 (2016).  You can, if you are interested, read more about the facts in the case in the news story you can access here.

The Court of Appeals begins its opinion by explaining that

[i]n this sentencing appeal, the state challenges the district court's imposition of a 365–day stayed sentence for respondent's terroristic-threats conviction. The record supports the district court's determination that the offense was a result of youthful indiscretion and thus less serious than the typical offense, justifying the one-day downward durational departure from the presumptive sentence. 

State v. Rund, supra.

The court went on to outline the facts in the case and explain why, and how, Rund came to be charged with making terroristic threats.  State v. Rund, supra.

At approximately 1:30 a.m. on February 4, 2015, respondent Harrison William Rund, then 19 years old, was pulled over by a state-patrol officer and ticketed for driving 68 miles per hour in a posted 60–mile–per–hour zone. Rund later admitted to having a history of problems with the state-patrol officer who gave him the ticket, but at the time of the offense Rund had no previous criminal offenses. Rund went home, `had a little bit to drink,’ and started talking to a friend on Twitter. During the Twitter discussion, Rund got `a little more heated’ and `started saying things that I shouldn't have said.’ In a single tweeting incident, Rund posted the following threatening statements to his friend that hashtagged¹ the St. Paul Police and the St. Paul Police Federation:

dude its f*d up im getting so pissed out here literally thinkin about just startin to hunt and kill cops.

f*k you st paul police im gonna kill 5 police officers today.

im lookin for Zelda boi and whichever trooper pulled me over lastnight gave me a ticket for goin 68 in a 60.

f*k the @St.PaulPoliceFdn they don't call me the cop killer for no reason.

Throw a grenade in the room, watch all the coppers ka-boom.

State v. Rund, supra.

The opinion goes on to explain that the

last tweet references a song lyric and includes a photo of St. Paul police officers.

The next day, police apprehended Rund as he arrived home after school and work, and he was charged with making terroristic threats, a felony. Against the advice of counsel, Rund gave a complete confession to police, waived all trial rights, and entered a straight guilty plea to the charge. At his plea hearing, Rund admitted that what he did was wrong, and that he abhorred his conduct. He said, `I don't think people should be able to say these things, and that's why, one of the reasons I am here and not taking it to trial and stuff, because I think it was wrong, and people shouldn't be let off if they say things like that.’

He also expressed remorse about frightening any police officers, saying:

`[I]t wasn't my intent, you know. I think if you scroll through my old Twitter, I think just about everything on there was not serious, you know. Whether I was talking crap to Jose Canseco, you know, I mean, everything on there I kind of looked at it as kind of a joke, and I just took it way too far.’

State v. Rund, supra.

The opinion also points out that Rund

worked with a psychologist for about a year and a half after he committed the offense, and at sentencing the district court judge referenced a letter he had received from the psychologist stating that Rund had made significant progress in the management of his mood and no longer needed any treatment. Rund also sent a letter of apology to the law-enforcement officers and a letter of remorse to the district court. Rund testified at sentencing that he no longer uses alcohol. Rund called his offense `really stupid,’ and said he was `really sorry,’ `kn[e]w what [he] did wasn't right,’ and `kn[e]w that it's a big deal and shouldn't be taken lightly,’ but he also said that the offense did not `reflect[ ] who I am.’ At the time of sentencing, Rund was going to school full time and working 15–20 hours per week.

State v. Rund, supra.

The court went on to explain that

[d]efense counsel moved for a downward durational departure for three identified offense-related reasons: Rund's remorse, Rund's intoxication, and the use of social media to commit the crime, the last of which defense counsel argued made the offense not a `standard terroristic threats case.’ Consistent with the sentencing guidelines, the state sought a stayed felony sentence of a year and a day, with Rund to serve 60 days in jail as a condition of probation.

The district court considered offender- and offense-based arguments at sentencing. The district court judge referred to Rund as a `young person who is going through a very tough time,’ but said that the offense had `sparked you to take a good, hard look at not only your drinking but your psychological issues, and you have addressed those.’ The judge referred to the offense as `less onerous’ because of Rund's age and mental state, and his lack of intent to `make a planned attack,’ and said that imposition of a felony sentence would not be `in the best interests of society.’ Over the state's objection, the district court imposed a stayed 365–day sentence and placed Rund on probation for three years, one year longer than the probationary term provided for by law. The district court also required Rund to serve a 120–day jail sentence, twice the duration sought by the state. Minnesota Statutes § 609.135, subd. 2(c) (2014) (stating that a probationary term for a gross misdemeanor offense `shall be for not more than two years’). The state appealed.

State v. Rund, supra.

The court began its analysis of the issues and the law in the case by explaining that

[h]istorically, it is the state's function to investigate and determine charges for criminal conduct, and it is the district court's function to exercise discretion in imposing a sentence. `At one end of t[he] spectrum, bringing charges and plea bargaining, the discretion rests almost entirely with the prosecutor. At the other end of the spectrum, [in] the imposition of the sentence ..., the discretion rests almost entirely with the court.’ State v. Streiff, 673 N.W.2d 831, 836 (Minnesota Supreme Court 2004).

The state challenges the district court's decision to impose a sentence that constitutes a one-day downward durational departure from the presumptive sentence. `The district court must order the presumptive sentence provided in the sentencing guidelines unless substantial and compelling circumstances warrant a departure.’ State v. Pegel, 795 N.W.2d 251, 253 (Minnesota Court of Appeals 2011) (quotation omitted). Substantial and compelling circumstances are those that make the case atypical. Taylor v. State, 670 N.W.2d 584, 587 (Minnesota Supreme Court 2003). The district court has discretion to decide whether to depart at sentencing, and this court will reverse only if the district court abused its discretion. State v. Pegel, supra.

State v. Rund, supra.

The court went on to point out that the

presumptive punishment for Rund's conviction of terroristic threats is a felony sentence. Minnesota Statutes § 609.713, subd. 1 (2014) (permitting sentence of `not more than five years’). A `felony’ is defined as `a crime for which a sentence of imprisonment for more than one year may be imposed.’ Minnesota Statutes § 609.02, subd. 2(2014). A `gross misdemeanor’ is defined as `any crime which is not a felony or misdemeanor.’ Minnesota Statutes § 609.02, subd. 4 (2014). But when the district court imposes a gross-misdemeanor sentence on a felony offense, the law deems the conviction a gross misdemeanor. Minnesota Statutes § 609.13, subd. 1(1) (2014). The imposition of a gross-misdemeanor sentence for a felony conviction with a presumptively stayed sentence is a downward durational departure. State v. Bauerly, 520 N.W.2d 760, 762 (Minnesota Court of Appeals 1994) (ruling that imposition of a 365–day gross-misdemeanor sentence on a felony theft conviction with a presumptive guidelines sentence of 366 days constituted a downward durational departure), review denied (Minnesota Supreme Court Oct. 27, 1994).

State v. Rund, supra.

The Court of Appeals then explained that

[s]entencing factors specific to the offender can support a dispositional departure, but they cannot be used to support a durational departure. State v. Peter, 825 N.W.2d 126, 130 (Minnesota Court of Appeals 2012) (enumerating offender-related factors such as remorse, clean record, offender's youth, family support, and offender's ability to obtain education and employment), review denied (Minnesota Supreme Court Feb. 27, 2013). Offense-related factors, however, can support a durational departure. State v. Peter, supra. On a motion for a durational departure, the district court must examine `whether the defendant's conduct was significantly more or less serious than that typically involved in the commission of the crime in question.’ State v. Cox, 343 N.W.2d 641, 643 (Minnesota Supreme Court 1984).

State v. Rund, supra.

The court went on to explain that the “record” in this case

demonstrates that the district court relied on both offender- and offense-related factors in imposing the durational departure. To the extent that the district court weighed Rund's remorse in departing, it was improper to do so under the facts presented. Lack of remorse may be used to justify a durational departure, but only if the `remorse is directly related to the criminal conduct at issue and made that conduct significantly less serious than the typical conduct underlying the offense of conviction.’ State v. Solberg, __ N.W.2d __, 2016 WL 4051620 at *6 (Minnesota Supreme Court July 27, 2016).  Rund's remorse for his crime occurred after its commission and did not alter the seriousness of the crime itself. Further, the second ground argued by defense counsel for departure, Rund's voluntary intoxication, does not make him less culpable. See Minnesota Sentencing Guidelines 2.D.3.a.(3) (2014) (specifically excluding `[t]he voluntary use of intoxicants’ as a factor to be considered at sentencing); State v. Cizl, 304 N.W.2d 632, 634 (Minnesota Supreme Court1981) (stating that a defendant's voluntary intoxication at the time of the offense may not be used to justify a downward departure).

State v. Rund, supra.

The court went on to explain that,

[b]ut `a single mitigating factor may provide a substantial and compelling reason to impose a downward durational sentencing departure if it shows that the defendant's conduct in committing the offense of conviction was significantly less serious than that typically involved in the commission of the offense in question.’ State v. Solberg, supra. The district court concluded that the offense was committed in a less serious manner than the typical terroristic-threats offense. This is an offense-related factor that was permissible for a durational departure. On the seriousness of the offense, the sentencing judge said,

`I don't think you had the intent to do it. You didn't have a gun. You weren't going out to try to search where they live. You weren't going to make a planned attack. You just wanted to send a tweet out to affect as many people as you can, and that worked. As far as taking steps to follow up, you had no intention.’

State v. Rund, supra.

The opinion then points out that the

sentiment expressed by the district court is supported by the fact that some of Rund’s tweets were quotes of inflammatory song lyrics or were references frequently used in gangster rap. The use of language that expresses approval of violence against police, while disturbing in this case, may not indicate actual intent to `kill a cop’ and may merely constitute a protest against police conduct. See, e.g., Rob Hustle ft. Bump, Call the Cops (Youtube 2014); N.W.A., F[-]k tha Police, on Straight Outta Compton (Andre Young, Antoine Carraby 1988). Defense counsel also argued that terroristic-threats crimes typically involve either making threats face-to-face or sending them in the mail, both of which demonstrate greater intent and more serious conduct than was shown by Rund. Rund's conduct, made with use of a hashtag on social media, was more like a taunt than a threat. See, e.g., Elonis v. United States,135 S.Ct. 2001, 2012 (2015) (reversing federal conviction for making threatening communications based on offender's statements posted on the Facebook social media website, when the evidence was insufficient to prove that the offender intended to issue a threat or knew that the communication would be viewed as a threat); Elise Moreau, 10 Types of Internet Trolls You'll Meet Online http://webtrends.ab out.com/od/Internet–Culture/tp/10–Types–of–Internet–TrollsYoull–Meet–Online.htm (noting the phenomenon of internet `trolling’ in which individuals `deliberately tr[y] to disrupt, attack, offend or generally cause trouble within the [internet] community by posting certain comments, photos, videos, GIFs or some other form of online content’).

The terroristic threats statute under which Rund was convicted includes a broad range of conduct and a broad range of intent. The crime is defined as `threaten[ing], directly or indirectly, to commit any crime of violence with purpose to terrorize another ... or in reckless disregard of the risk of causing such terror.’ Minnesota Statutes § 609.713, subd. 1. The intent element of the offense includes either intent to do the act or reckless conduct that results in the act. Minnesota Statutes § 609.713, subd. 1. The prohibited conduct thus includes direct threats made with the purpose to terrorize as well as indirect threats made recklessly that result in causing terror. Minnesota Statutes § 609.713, subd. 1.

State v. Rund, supra.

The court went on to explain that,

[g]iven the broad spectrum of prohibited conduct and broad range of intent included in the definition of the offense, we cannot conclude that the district court abused its discretion by weighing this case against others of its kind and concluding that Rund's offense was less serious than the typical offense. The district court's determination of Rund's lack of intent is clearly supported by the record, including Rund's testimony that he used Twitter jokingly but that his conduct got out of hand in this instance. The district court's statement that Rund `did not intend to do it’ is supportive of its conclusion that Rund's conduct demonstrated only recklessness and not specific intent to terrorize. Such conduct meets the definition of the crime but is also reflective of an `internet sensibility’ of social-media users who rely on alter-egos to express hostile thoughts and invective that are not intended to leave the social-media arena. While this conduct might be actionable under the law, it is not as serious as other terroristic-threats offenses.

This court has affirmed a district court's exercise of discretion to impose a downward durational departure when the conduct of the offender did not involve the typical crime for which the offender was sentenced. State v. Bendzula, 675 N.W.2d 920, 924 (Minnesota Court of Appeals 2004). In Bendzula, this court affirmed the district court's downward d urational departure in sentencing on a controlled-substance crime where the offender was less culpable than the typical offender. State v. Bendzula, supra. There, this court stated, `Because the [district] court in this case dealt with the departure issue both deliberatively and thoroughly, and because the court adequately identified considerations favoring its downward departure that were both atypical and substantial, we must defer to its judgment.’ State v. Bendzula, supra.

Similarly here, we uphold the district court's exercise of its sentencing discretion where the offense is less onerous than the typical offense; our ruling is consistent with the equitable goal of the sentencing guidelines to punish offenders who have committed similar conduct by imposing similar sanctions on them. State v. Bendzula, supra (noting that the sentencing `guidelines expressly enlarge the [district] court's discretion when assessing reduced culpability and determining a downward departure’).

We affirm the district court's imposition of a one-day downward durational departure from the presumptive sentence but modify Rund's sentence to reduce the three-year probationary term to two years, the limit provided for by law. See MinnesotaStatutes § 609.135, subd. 2(c).

State v. Rund, supra.

One of the Court of Appeals Judges dissented, explaining, in brief, that

I would reverse. The district court abused its discretion, and this court errs by holding that, so long as one isn't really `going to make a planned attack’ to carry out his apparently credible threat to blow up five specific police officers in a specific agency on a specific day, he has a `substantial and compelling’ reason to receive a substantially lower sentence because he has established that his is a less-than-typical threats case. If this multiple-specific-cop-killing threats case really is so exceptionally less serious than the `typical’ threats case, what must that case look like?

State v. Rund, supra (Ross, J., dissenting) (emphasis in the original).