District Court for Barnes County
Post hearing brief Re; Case No. 09-CR-522
It is submitted that Officer Simon had no reasonable suspicion that justified a stop on defendant McLain's vehicle on the night of October 5, 2009. Also, based the facts and law detailed below, we contend that count two of the criminal complaint VIF.C.C. 43 is a lesser included offense of Count three, F.C.C. 51.
A.LACK OF REASONABLE SUSPICION TO JUSTIFY THE STOP AND SEIZURE OF EVIDENCE
Officer Simon, acting on the tip of an anonymous tip, stopped the defendant's car on the night of October 5, 2009 and searched the inside of the car. Such stops, commonly known as Terry Stops, require the police officer to have reasonable and articulable suspicion to stop and interrogate the driver. From the transcript of the call, it is clear that the caller chose to be anonymous and was restrictive in his approach to provide information. The tipper sounded like he was in a hurry and was not articulate in mentioning the details leading to the search by Officer Simon. It is contended that the information by the tipper was hasty and certainly not articulable. The police, in fact, has reason to doubt the veracity of the tip. In Re: Montel, Franklin Court of Appeal held that a mere hunch that criminal activity is afoot is not enough to establish the reasonable and articulable suspicion. Officer Simon's activities leading up to the arrest and search of the victim seems to be based on such a mere hunch. Officer Simon, during his direct admitted that the Oxford Street neighborhood has become infamous for notorious crimes for the last one year and that is lead police to suspect that criminal activity was afoot. However, during cross-examination, he admitted the only crimes reported from the neighborhood before the night in question, were of shoplifting and vandalism, possible misdemeanors. In Re. Sneed, Franklin C. Appeal held that since there was "no testimony that the area was known for drug trafficking." The police did not have reasonable suspicion to stop the defendant.
Further, employing the totality of circumstances test, it was has been held by the Franklin Court of Appeal in Re. Montel, that an anonymous tip "must be corroborated by investigation or independent police observation of unusually suspicious conduct. This corroboration is lacking at the case at bar, Officer Simon did not see anyone in the Red Jeep at the site upon his arrival. Furthermore the defendant came out of Cullen and was not even in the shop-mart parking lot at the time of his arrival. Officer Simon admitted not having observed any traffic violations like speeding once the defendant got into the Jeep. In Grayson, the court found articulable reasons as all the elements of the tip were found to be corroborated. However, the accuracy of the tipper regarding the looks and clothes of the defendant, at best, led to a "tendency to identify a determinate person," yet not "reliable in its assertion of illegality." (Florida vs. J.L.).
It is therefore contended that the facts did not exhibit sufficient indicia of reliability to conduct a stop and search of the defendant, leading to violation of his fourth amendment rights.
B.COUNT TWO OF COMPLAINT AS A LESSER INCLUDED CRIME OF COUNT THREE
Franklin Criminal Code Section 43 and Section 51 define the crime of possession of equipment to manufacture methamphetamine and the manufacture of methamphetamine, respectively. A close comparison of the two said definition reveals that the elements in the crimes are startlingly similar. Both crimes necessitate (i) knowingly commission of crime, i.e. the scienter required is the same (ii) "possession of equipments and chemicals, or both, for purpose of manufacturing (under Section 43) and analogous to the definition of manufacture, which impliedly required the possession of the substance."
In Decker, the court held that same week or transaction, giving rise to two offenses, would require the court to determine if one constitutes a lesser included offense. Here, this requirement is satisfied, as the defendant's arrest and search has led to the allegations of both statutory offenses.
Furthermore, even if the court finds that textual comparison to be somewhat lacking, it must apply the approach taken under State vs. Astor, where comparison of the element of the offense in abstract, the offenses are founded to be so similar that commission of one will necessarily result in commission of the other, and the offenses should be found multiplictious.
Therefore, the state must prove each and every element of the crimes and the fact finder must find the elements to be present in the complaints. However, the court should find these crimes to be multiplictious based on the similarity of elements and the acts they engage to prohibit.
C.RESPONSE TO STATE'S ARGUMENTS
There are a number of issues that were discovered from direct and cross-examination of Officer Simon that puts the State's allegation in bad faith. To begin with, on Court 1, the possession of the required amount of more than 15 gms by the defendant is not ascertainable. The 40 tablets found on the defendant are not even sufficient to produce any significant quantity of methamphetamine. Moreover, even the crime lab tests for marijuana were negative.
Furthermore, the purchase of all the alleged paraphernalia is per se legal and bases the argument set forth above, there is a back of incent on defendant's part to use this paraphernalia for manufacture of methamphetamine. This the scienter required for all the said three crimes is missing.
23rd February, 2010