Erickson Scherff, LLC News: February 2013

Monday, February 4, 2013

Assistance of Counsel for Probation Proceedings

Assistance of Counsel for Probation Proceedings

Most people understand that a criminal defendant has a constitutional Due Process Clause right under the Sixth and Fourteenth Amendments to the right of counsel. However, some fail to recognize that the right of counsel extends to probation proceedings. See State v. Galaviz, 101,084, 2012 WL 6720627, at *5-7 (Kan. Dec. 28, 2012). The right to counsel includes the right to conflict-free counsel. Id. at *7.

Jose Galaviz was placed on probation after pleading guilty to two charges, but 15 months after sentencing violated the conditions of his probation. Id. at 2. In his probation revocation proceeding, Galaviz was appointed an attorney to represent him. Id. at 2. Galaviz’s appointed attorney had also previously served as the guardian ad litem for the victim of one of Galaviz’ crimes. Id. at 1.

On appeal from his probation revocation, Galaviz argued that he was denied his right to effective assistance of counsel because his attorney’s position as the guardian ad litem of the victim created a conflict of interest. Id. The Supreme Court of Kansas found that Galaviz’s probation revocation could not be automatically reversed because a timely object to the concurrent representation was not made. However, Galaviz could seek reversal by demonstrating in a post conviction proceeding that the conflict of interest affected the adequacy of the attorney’s representation.

Ultimately the court found that the record on appeal was insufficient for determining whether the conflict of interest affected the attorney’s adequate representation. Id. at *18. Thus, the court reversed the Court of Appeals affirmation of the district court’s determinations to revoke probation and remanded the case to determine the nature of the conflict of interest, and whether the conflict requires reversal of the probation revocation. Id. at 19.

If you any questions concerning attorney conflicts of interest, contact Lindsey Erickson or Dionne Scherff, LLC at www.ericksonscherff.com for counsel.

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Unconstitutional Search

Unconstitutional Search

The Fourth Amendment of the Constitution protects persons against “unreasonable searches and seizures.” If a police officer has lawfully stopped (i.e. seized) a person and then conducts a search, the issue become whether the search was reasonable in relation to the stop. Specifically, courts must consider whether the search as conducted was reasonable in scope or consent was freely and voluntarily given for the search. State v. Spagnola, 289 P.3d 68, 73 (Kan. 2012).

In June of 2007, Officer Jones lawfully stopped Shuan Spagnola when he failed to stop for a stop sign. Id. at 70. When pulling his vehicle over, Spagnola drove the car “onto the curb and into a grassy area next to the curb and then back off of the curb before coming to a complete stop.” Id. Additionally, before approaching Spagnola Jones witnessed him reach down towards the car console – “suggesting the presence of a weapon and danger to law enforcement.” Id. at 70, 73. Jones then asked Spagnola to exit the vehicle and for his consent to search his pockets, which Spagnola gave. Id. at 71. Jones found baggies in zipped pocket that contained methamphetamine. Id.

The Kansas Supreme Court found that Jones had legitimately stopped Spagnola when he violated the law by not stopping at the stop sign. Id. at 73. Moreover, the court found that Jones reasonably prolonged the stop because he had reason to believe Spagnola was impaired and had a weapon. Id.

However, the court found that Jones’s thorough search of Spagnola’s pockets was unreasonable and a thus a violation of Fourth Amendment protections because a warrantless search for weapons on a person must be limited to a pat-down of the outer clothing. Id. at 74.

Furthermore, in regards to consent, the court held that Spagnola could not have possibly given free and voluntary consent for the search of his pockets – as is required – because “standing with his back to the offices, with his hands behind his back and his fingers interlaced… was not a posture or an environment in which it can be said that consent was voluntarily given free from coercion.” Id. at 76.

If you any questions regarding a search resulting from a traffic stop, contact Lindsey Erickson or Dionne Scherff, LLC at www.ericksonscherff.com for counsel.