5/10/18. Absconding Notice Warrantless Searches Extensions. Victoria Perez. Mecklenburg County Public Defender s Office

Transcription

1 Victoria Perez Mecklenburg County Public Defender s Office Absconding Notice Warrantless Searches Extensions 1

2 Williams (2015) Johnson x2 (2016) Trent (2017) Krider (2018) Melton (2018) D was traveling back and forth between NC and NJ PO was informed that D had been back and forth at his address, but never really lived there D missed several appointments with PO between late June and early July PO and D had several phone contacts between missed appointments D went to PO s office on 7/8/14, and was arrested for PV Probation revoked based on absconding Two main issues: 1. Absconding allegation just re-alleges the other three violations, which are technical in nature 2. Wrong boxes checked on judgment 2

3 Merely calling several technical violations absconding does not suffice to convert the technical violations into a revocable violation vmissed appointments, out of state travel, and unconfirmed residence don t necessarily constitute absconding Check judgments vchecking the wrong boxes doesn t just amount to clerical error D told PO he could not make it to his 9am meeting D asked to reschedule and PO denied his request D missed his appointment PO alleged absconding D was on EM and PO was able to track him at all times The State can t allege absconding when the exact action is a wholly separate (nonrevocable) condition of probation Failure to report as directed This action, without more, doesn t rise to the level of a revocable violation Violation filed 4 days after missed appointment D was on EM the entire time and the PO was able to track his exact whereabouts 3

4 May 2014 PVR alleged: Changing address without permission/notifying PO Failure to report on 3/20, 3/24, and 3/28 Absconding PO had no contact with D for several months D admitted to absconding, with explanation D working out of county; relying on girlfriend to communicate appointments and post payments with $ D gave her D thought he was in good standing When he found out he was in violation, he didn t turn himself in This meets the requirements for absconding D relies on Williams for his appeal Merely allege technical violations COA distinguishes Williams: 1. D moved his residence without notifying PO, willfully avoided supervision for several months, and failed to make his whereabouts known to PO at any time 2. D admitted to absconding 3. D admitted that he didn t turn himself in upon learning of violations 4

5 D reports new address to PO, but not present for subsequent home visit D s very upset wife informed PO that he left with her car and her bank card 11 days later PO revisited the home and wife reported that D still hadn t returned After D missed his next office appointment, PO filed warrant for absconding No contact for almost 1 month Δ testified: He was working in another county on an 8-day painting job Wife had agreed to tell PO D was on a job When he came back he discovered that wife was lying He knew that PO was looking for him He did not attempt to contact PO Distinguished from Williams PO had contact with Williams via several phone conversations and was even able to contact him during his travels to NJ Distinguished from J. Johnson Johnson had contact with his PO and was on a monitor Here: D failed to notify PO of his traveling employment Wife told PO she didn t know where he was PO had no means of contacting D D was not on EM 5

6 Once the State presented competent evidence that D failed to comply with probation, the burden shifted to D to prove through competent evidence his inability to comply with those terms In his testimony, D tried to shift the blame to his wife D admitted that he made no effort to contact his PO, even after learning that PO was looking for him PO visited D s address; D wasn t present, and an unidentified woman advised that he didn t live there State did not establish the identity of this person or her relationship to D 7 days later, PO declared D an absconder After that first visit, PO did not go back to the residence D was arrested nearly 2 months later COA likens this case to Williams (Dissent: Trent) Unidentified woman of unknown relationship to D PO only made one attempt to find D at the residence D met with PO at same residence after arrest 6

7 COA seems to consider what D did AFTER his arrest and before the revocation hearing: Officer Thomas subsequently had regular contact with defendant until his case expired on 2 April 2016 defendant completed substance abuse treatment, held seasonal employment, and made payments toward his arrears D missed appointments on 8/2, 10/4, 10/12, 10/28, 11/2 D met with PO on 10/26 After D missed the 11/2 appointment, PO tried to contact D numerous times (home visits and phone calls) D s phone was disconnected and she was not home PO left messages with D s parents On 11/4, PO filed PVR alleging absconding State relies on Trent COA distinguishes: Trent s wife told PO he d left the residence No indication Melton changed address No contact with Trent for nearly 1 month Melton had seen PO 9 days prior Trent knew PO was looking for him Melton had no idea PO was trying to contact her 7

8 Insufficient evidence that D willfully refused to make herself available The duty of D to keep PO apprised of her whereabouts does NOT absolve the State of its burden to provide competent evidence that D willfully made herself unavailable for supervision Insufficient: merely two days of attempts to locate D only leaving messages with D s relatives With the JRA, the legislature has expressed a clear intent that activation of probationary sentence should only be used as a last resort and after the use of the other tools available Tindall (2013) Johnson (July 2017) Moore (December 2017) McCaster (2018) 8

9 D admitted to using 10 lines of cocaine PVR alleged Not use, possess, control illegal substance Trial court found that D committed a new offense and revoked probation D did not have notice that her probation could be revoked when she appeared at the hearing (15A-1345(e)) PO alleged several technical violations: Report as directed $$ Remain within the jurisdiction Sex offender treatment PO filed addendum 11 days later: Report as directed (missed office appointment) Remain within the jurisdiction (Failed to report after release from custody in VA, thereby absconding) D must be given proper notice Probation may only be revoked for absconding based on violations that allege absconding under 1343(b)(3a) There are no magic words that can be used to confer the trial court with jurisdiction to revoke 9

10 Although the new trespass charge is listed (remain within the jurisdiction left the state and was arrested for trespassing), the State failed to notify D that his probation might be revoked based on his trespassing arrest it was not alleged as a commit no new criminal offense violation under 15A-1343(b)(1) 10

11 PO filed PVR alleging new charges under the other section Not alleged under 15A-1343(b)(1) Trial court revoked probation based on new criminal offense D argues violation of 15A-1345(e): 1. The PVR didn t give adequate notice because it didn t specifically state the condition of probation he allegedly violated 2. The PVR should have listed violation under 15A-1343(b)(1) A statement of the violations alleged refers to a statement of what a probationer DID to violate his conditions of probation It does not require a statement of the underlying conditions that were violated The information in the PVR constituted a statement of the violations alleged because it notified D of the actions he took that violated probation State v. Tindall to the extent that it creates an additional requirement of notice 11

12 Moore actual criminal charges were alleged Tindall D admitted to having used a controlled substance Would completely overruling Tindall create a slippery slope into the ability to revoke probation if a D tests positive for controlled substances? Can this possibly be what the General Assembly intended? **Read the dissent** Wasn t the JRA designed to discourage the further criminalization of addictive behaviors? Does this also overrule C. Johnson? D refused to accept probation After she continued to refuse probation, the judge revoked her probation Defendant argues lack of notice, including a written statement of the allegations 12

13 15A-1345(e) requires prior notice of the hearing and its purpose, at least 24 hours in advance; also requires a statement of the violations alleged: *Purpose of the hearing must be clear **Must be a written statement of the violations How can we handle recalcitrant probationers? 1. Quickly file a PVR for absconding (if they failed to report) and have D waive notice 2. Contempt 3. Remind them that they re going to be supervised anyways Powell (2017) 13

14 Two PO s and several US Marshals conducted searches of seven or eight residences of individuals who were on supervision in a particular area of Catawba County Neither PO was D s PO Weapons were found in the search and D was charged D argued motion to suppress based on regular condition of probation 15A-1343(b)(13): Submit at reasonable times to warrantless searches by a probation officer of the probationer s person and of the probationer s vehicle and premises while the probationer is present, for purposes directly related to the probation supervision, but the probationer may not be required to submit to any other search that would otherwise be unlawful D argued the search was not directly related to the probation supervision 14

15 In 2009, the General Assembly amended 15A-1343(b) to directly related from reasonably related Higher burden on the State State must meet its burden of satisfying the purpose element This search was conducted as part of a joint law enforcement initiative and therefore was not permissible under the statute NC has narrowly tailored this authorization to guarantee that the searches are justified by the State s special needs, not merely its interest in law enforcement: Must be conducted during a reasonable time Probationer must be present during the search The search must be conducted for purposes specified by the court in the conditions of probation It must be directly related to the probationer s supervision State v. Peed (2018) 15

16 4 days before probation expired, the court extended for 12 months consent extension The purpose was to allow D to complete Substance Abuse Treatment During the extended period, D violated and probation was revoked Trial court must have statutory authority to extend probation Here, the extension was based on consent Two allowable purpose for consent extensions: 1. Medical or psychiatric treatment 2. Pay restitution This comes down to statutory interpretation Language of the statute is clear and unambiguous, so the court can t superimpose provisions not included Neither prong of consent statute includes substance abuse program The General Assembly did NOT intend for substance abuse treatment to be synonymous with medical or psychiatric treatment Supported by 15A-1343 which lists substance abuse treatment separately from medical or psychiatric treatment 16

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18 Spring 2018 Probation Case Law Update Outline Absconding o State v. Williams (776 S.E. 2d 741 (2015)) Revocation reversed Merely calling several technical violations absconding does not suffice to convert the technical violations into a revocable violation o State v. J. Johnson (783 S.E. 2d 21 (2016)) Revocation reversed The State can t allege absconding when the exact action is a wholly separate (nonrevocable) condition of probation Failure to report as directed = This action, without more, doesn t rise to the level of a revocable violation o State v. N. Johnson (782 S.E. 2d 549 (2016)) Revocation upheld Distinguished from Williams in that: No contact with PO for several months Defendant admitted to absconding Defendant admitted to not turning himself in after learning of violation o State v. Trent (803 S.E.2d 224 (2017)) Revocation upheld Once the State presented competent evidence that D failed to comply with probation, the burden shifted to D to prove through competent evidence his inability to comply with those terms o State v. Krider (2/20/18) Revocation reversed Distinguished from Trent in that: Unidentified woman at defendant s residence PO only made on attempt to locate defendant Defendant met with PO at same residence after arrest Bonus: Court considers what defendant did AFTER arrest, but before hearing o State v. Melton (2/20/18) Revocation reversed Distinguished from Trent in that: No indication Melton changed addresses Melton reported for appointment with PO only 9 days prior No evidence Melton had reason to know PO was looking for her 1

19 Important notes The duty of D to keep PO apprised of her whereabouts does NOT absolve the State of its burden to provide competent evidence that D willfully made herself unavailable for supervision Insufficient: o merely two days of attempts to locate D o only leaving messages with D s relatives With the JRA, the legislature has expressed a clear intent that activation of probationary sentence should only be used as a last resort and after the use of the other tools available Notice o State v. Tindall (742 S.E. 2d 272 (2013)) Revocation reversed D admitted to using 10 lines of cocaine Trial court found that D committed a new offense and revoked probation D did not have notice that her probation could be revoked when she appeared at the hearing (15A-1345(e)) o State v. C. Johnson (803 S.E.2d 827 (2017)) Revocation reversed Probation may only be revoked for absconding based on violations that allege absconding under 1343(b)(3a) There are no magic words that can be used to confer the trial court with jurisdiction to revoke New trespass charge was listed on violation report as arrested for trespassing Defendant did not receive notice of revocable violation, as it was not alleged as a commit no new criminal offense violation under 15A- 1343(b)(1) o State v. Moore (807 S.E.2d 550 (2017)) Revocation upheld A statement of the violations alleged refers to a statement of what a probationer DID to violate his conditions of probation It does not require a statement of the underlying conditions that were violated o State v. McCaster (2/6/18) Revocation reversed 15A-1345(e) requires prior notice of the hearing and its purpose, at least 24 hours in advance; also requires a statement of the violations alleged: Purpose of the hearing must be clear Must be a written statement of the violations 2

20 Warrantless searches o State v. Powell (800 S.E.2d 745 (2017)) Reversed 15A-1343(b)(13): Submit at reasonable times to warrantless searches by a probation officer of the probationer s person and of the probationer s vehicle and premises while the probationer is present, for purposes directly related to the probation supervision, but the probationer may not be required to submit to any other search that would otherwise be unlawful NC has narrowly tailored this to guarantee that the searches are justified by the State s special needs, not merely its interest in law enforcement: Must be conducted during a reasonable time Probationer must be present during the search Search must be conducted for purposes specified in the conditions of probation It must be directly related to the probationer s supervision Extensions o State v. Peed (2/6/18) Neither prong of the consent extension statute (G.S. 15A ) includes substance abuse program 3