The arresting officer testified Kyle’s pickup drifted four or five distinct times. The vehicle did not

cross either the center line or the fog line at any time. The arresting officer described the drifting which he observed as slow and gradual. While on a four lane street, Kyle’s pickup moved from the left lane to the right lane and Kyle did not signal the lane change until the pickup was halfway into the right lane.

The Court of Appeals first noted that when there are two or more lanes going in the same direction, a turn signal is not required when changing lanes. It then noted that Kyle’s changing lanes was done “in a safe and unremarkable manner, without any indication that the driver did not ascertain that it was safe to make a lane change.”

Finally, the Court noted that despite what law enforcement testified about Kyle’s driving. “The

videotape (from the police car) does not support the assertion that the pickup drifted four or five distinct times. The Troge vehicle never crossed the center lines or shoulder lines, and the videotape does not reveal any violations of the rules of the road. The videotape shows the truck changed lanes in a safe and unremarkable manner. The vehicle proceeded through several controlled intersections, moved into a right-turn-only lane, and executed a right turn at a controlled intersection without incident. The videotape reveals no weaving or erratic driving. We do not believe an objective person watching the videotape for the first time would have a reasonable suspicion that the driver of the pickup was under the influence.”

Since there was no reason to stop Kyle’s pickup, nothing from the traffic stop or the breathalyser results is admissible.

This does not mean that law enforcement can never use failure to use a turn signal when changing lanes as a reason stop a vehicle. In another case decided the same day, the first sentence is “A Waukee police officer stopped a vehicle…after (the driver) failed to use his turn signal while changing lanes.” There is no other discussion about this, so we have no way of knowing why this was not an issue.

The Kyle Troge case is remarkable because Kyle showed no real evidence of being under the

influence of alcohol despite failing the breathalyser test. Most people would not be able to do

that. But, this does mean that if the reason given for the stop is a “changing lanes” or “weaving within their lane” you need to view the videotape from the police car to see if the alleged bad driving is really that bad.

In two recent cases, the Iowa Court of Appeals has ruled on what the right to make telephone calls means and what is a violation of the right to make telephone calls. In one case STATE OF IOWA v. SHAUN MICHAEL SHAFFER the police refused to let the Defendant make additional calls to try to find an attorney and the court ruled the refusal was proper and the breathalyser results were admissible and in the other, STATE OF IOWA v. BRANDEE RAE PETTENGILL, when law enforcement terminated a telephone conversation between the Defendant and her father and did not inform her she could make another call, the Court of Appeals reversed the conviction and suppressed the breathalyser results.

In the Shaffer case, Shuan Shaffer was allowed to make calls to two different friends, one call to a cousin, and one call trying to get an attorney. In addition, Shaun received a call on his cell phone while in jail and the arresting officer also made a telephone call for Shaun trying to locate an attorney. When Shaun then asked for a phone book to try and find the attorney’s telephone number, the officer refused and told Shaun he had to make a decision about taking the test.

The Court of Appeals ruled that Shaun’s rights were not violated and the test results were admissible. Their reasoning was that Shaun had the opportunity to talk to several people and made several attempts to contact an attorney. The fact he was not able to talk to an attorney does not mean his rights were violated. Also, the court makes a point of finding that Shaun appeared to be using his phone calls in an attempt to run out the two (2) hour time period for taking the breathalyser and that his attempts to find an attorney were not made “in good faith”.

Brandee Pettengill was arrested and called her father. As it was very late at night and as her father had taken a sleeping pill, it took awhile for him to answer the telephone and awhile for him to focus on what Brandee was telling him. Brandee was told several times by law enforcement to focus the conversation on whether or not she should take the breathalyser test. After talking with him for 15 minutes, the police hung up on the father. Brandee was not told she could make another call. She also had 47 minutes left on the two (2) hour time limit for taking the breathalyser. Because of these factors, and because the trial Judge relied on the breathalyser results to find Brandee guilty, the Court of Appeals suppressed the breathalyser results and ordered a new trial.

In THE MARRIAGE OF RENEE M. TRIMBLE AND JOHN A. TRIMBLE, the custodial parent (Renee) moved with her children to a new home four hours away. The non custodial parent (John) took a new job that would allow him to maximize his visitation with his children.  The new job paid significantly less than his old job did and John went to court to try and lower his child support. John’s request to lower his support was denied by the trial court and the Court of Appeals.

The Trimble court found that John’s reduction if income was voluntary and thus not sufficient reason to reduce his child support. When John appeal the trial court’s ruling, he argued that his job change was not voluntary but was due to his desire to have as much time with his children as possible. The Court of Appeals in upholding the trial court never ruled if Johns change of jobs was voluntary or not. In fact, the Court of Appeals said his argument might be correct. However, the Court of Appeals ruled that since John testified that he expected his income to rise in the future; the reduction he in income he had experienced was not permanent and so there was no change in circumstances justifying a modification. One other point the Court of Appeals and the trial court found was that before John quit his job he never asked Renee if they could change the visitation pick up and drop off times to accommodate his work schedule. Although this is only mentioned in passing, the fact that it is mentioned at all is significant. It appears the fact that John maybe could have kept his old job if he tried working with Renee to accommodate, but did not even try, worked against him.

However, Bradley Smith was able to get his child support set at a lower rate even though he quit his job to take one that paid $8,000.00 less per year in the case IN RE THE INTEREST OF BRADEN JAMES VASKE. Brad worked a job at a plant that was on a 24 hour rotating shift. The new job’s hours were eight to five and one that “allowed him to use his college degree”. It also allowed him more time to be with his child. For those reasons and some medial problems that may have been tied to working a rotating shift, the Court of Appeals upheld using the lower income when calculating support.

One difference between the two cases was that Trimble was a modification of previously ordered support and Smith was the initial determination. Also, there were no comments in the Smith case that Brad had done anything that was unreasonable or had not taken an action that could have avoided the problem, unlike John Trimble.

Is there a lesson in all of this? Probably many, but, I think one lesson that can be taken away is always take the high road and take the extra step to resolve the problem before turning to the courts. Being reasonable may not get you anywhere with your ex and by itself it is not enough to win a case; but, it never hurts to show the judge that you tied to do the right thing and the other side was unreasonable.

It is standard law enforcement procedure to tell a suspect being questioning that it is better to tell the truth (confess). However, if law enforcement says that by confessing the suspect will get a reduced charge or lesser punishment, then they step over the line and any “confession” made after that is inadmissible. In STATE OF IOWA v. MATTHEW DELMAR PIES, law enforcement went over that line and the Iowa Court of Appeals reversed Matthew’s conviction for Burglary and suppressed his “confession”.

While being questioned, Matthew was told by law enforcement “I am offering you an option here to come clean and lessen the charge…” and “If you want to help yourself you are going to talk to try and lower this penalty down a bit” The bottom line is that law enforcement was making it seem that if Matthew confessed he would be charged with theft rather than burglary. The court found that Matthew’s confession was made under the influence of a long prison sentence versus the promise of easier treatment if he confessed. This made the confession involuntary and the court of appeals suppressed its use.

By the way, Matthew was charged and convicted of burglary despite what he was promised.

There are a couple of really important points to take away from this. First, if law enforcement claims they have enough evidence to convict you and still want you to confess, that usually means they don’t have enough and they need your confession to make their case. Don’t give them that help. If law enforcement has everything they need to convict you, why do they need to get you to confess? Be polite but refuse to talk to law enforcement.

Second, law enforcement often promises that they will put in a good word to the county attorney (prosecutor). That, in and of itself, is not stepping over the line, but, this sort of promise means nothing. It is the county attorney who makes the final decision on what you will be charged with, not law enforcement. It is not uncommon to be arrested for one crime and be charged by the county attorney with a different crime. It is also the county attorney who makes the final decision on what sentence to ask for if there is a conviction; law enforcement’s “good word” is only one of the factors they consider.

Confession may be good for the soul but remember “confess and be hanged”.

That is exactly what happened in IN RE: The Marriage of Shellie Ann Bangs and Cori Lee Bangs. Here, the value of Cori’s 401(k) dropped between the trial date and when the judge issued his decision. Cori asked the court to use the reduced value of 401(k) used instead of the value it had at trial. The trial judge refused and the Court of Appeals upheld the judge’s refusal; stating:

In this case, we find no reason to depart from using the date of trial as the date of valuing the 401(k) account. As the district court found, the value of this asset is “subject to daily changes in the stock market.” Had the opposite occurred and the 401(k) account increased in value, the value would still be established as of the date of trial. Furthermore, other assets may have decreased in value over this time, such as the real estate. Had the district court reopened the record, it would have either revalued one asset in isolation or allowed the parties to essentially relitigate the values of all the marital assets as of a new date. One benefit of using the date of trial to fix the value of assets is to avoid asset valuation from becoming a moving target. Therefore, we find the district court did not abuse its discretion in denying Cori’s motion to reopen the record.

Near the time the couple separated, Barbara took some $39,000.00 of marital (joint) money without Richard’s permission or even knowledge. The trial court awarded Richard credit for one-half (½) of the money Barbara took. The Court of Appeals in IN RE THE MARRIAGE OF BARBARA BUDELIER AND RICHARD BUDELIER reversed the trial judge and ruled Richard was not entitled to any of the money Barbara took. In doing so, the Court of Appeals found:

Eighteen months lapsed between the time of the separation when Barbara took the additional marital cash and the time of trial. The money was no longer an asset to be distributed, as the court found that the money Barbara used was for “legitimate living expenses.” There was no allegation in the record that Barbara had dissipated, hid, depleted or diverted this cash, other than to use for her own living expenses during the pendency of the dissolution. The court did find Richard had diverted 2007 farm income, attempting to hide this marital asset from Barbara; the income was imputed back to Richard and considered in the distribution of assets. In addition to using the money for living expenses, the record indicated Barbara used the money for repair and improvement to the rental properties, thereby increasing the value of those assets, which were then valued as of the date of trial and subject to division. As there is no proof of any inappropriate dissipation of the cash, the court should not have considered this spent marital asset to reduce the equalization payment.

It is important to remember that each divorce case is unique and slightly different facts, or even the same facts presented a different way could change the outcome of a different case. Also, it is worth noting that the Court of Appeals made a point of Richard trying to hide assets from Barbara. While not explicit in the ruling, one has to wonder if Richard was being punished for “not playing by the rules”.

 Because the outcome of possession cases are determined by each case’s facts and because the opinion is very well written, I copied most of the decision here rather than give you my analysis of it.

Dale Shorter appeals his conviction following a jury trial of possession of cocaine base. The following facts are supported by the evidence presented at trial: At about 5:15 p.m. on January 14, 2008, a team of law enforcement officers executed a search warrant at the home of Robert Randolph. As officers got close to the front door they heard someone yell that the “cops are here.” Officer Michael Greenleaf was the first to enter the residence. He observed Shorter “run from [the] hallway and duck into a bedroom.” Shorter was found in the northeast bedroom of the residence. After the residence and its occupants were secured, the officers searched the premises. Officer Matthew Allers found a plastic bag in the toilet containing crack cocaine. The bathroom was off the hallway about five or six feet from the door to the northeast bedroom.

Debbie Cole and Limmie Brown were called as defense witnesses at trial. Cole testified that she lived at the Randolph residence in the northeast bedroom, which she shared with Les Broom. She stated she was in her bedroom the day of the search. Cole further testified that Shorter had come to the house and asked for Broom. According to Cole, Shorter was sitting on the bed in the northeast bedroom waiting for Broom to return when the officers entered the residence.

Limmie Brown testified that she was at the Randolph residence on the day of the search. She testified Shorter asked for Broom and then went directly to the northeast bedroom when he arrived at the residence. Brown testified that Shorter was in the bedroom talking to Cole when the police arrived.. That count charged Shorter with possession with intent to deliver cocaine base.

Unlawful possession of a controlled substance requires proof that the defendant: (1) exercised dominion and control over the contraband, (2) had knowledge of its presence, and (3) had knowledge that the material was a controlled substance. Possession can be either actual or constructive. Actual possession occurs when the controlled substance is found on the defendant’s person. Constructive possession occurs when the defendant has knowledge of the presence of the controlled substance and has the authority or right to maintain control of it.

Our supreme court discussed the concept of constructive possession. The court stated:

…Constructive possession is all that is necessary and occurs when the accused maintains control or a right to control the narcotic; possession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and another.

…If the premises on which the drugs are found are exclusively accessible to the accused and subject to his use, possession or control, knowledge of their presence on such premises . . . coupled with his ability to maintain dominion and control . . . may be inferred.

…Knowledge of the drugs, as well as of their presence . . . may be shown by the conduct, behavior and declarations of the accused.

The court further noted: [W]here the accused has not been in exclusive possession of the premises but only in joint possession, knowledge of the presence of the substances on the premises and the ability to maintain control over them by the accused will not be inferred but must be established by proof. Such proof may consist either of evidence establishing actual knowledge by the accused, or evidence of incriminating statements or circumstances from which a jury might lawfully infer knowledge by the accused of the presence of the substances on the premises.

The court also observed that where circumstantial evidence alone is relied on for an essential element of a possession charge, “the circumstances must be entirely consistent with defendant’s guilt, wholly inconsistent with any rational hypothesis of his innocence, and so convincing as to exclude any reasonable doubt that defendant was guilty of the offense charged.” Proof of opportunity of access to the place where contraband is found will not, without more, support a finding of unlawful possession.

For the reasons that follow, we do not believe the evidence presented at trial rose to the level necessary to convict Shorter. The house searched by the police did not belong to Shorter, and he did not live there. Shorter arrived at the residence approximately one-half hour before the police approached the home to execute the warrant. Police were aware there was drug activity in the home before Shorter arrived. Both Cole and Brown testified Shorter went into the northeast bedroom upon his arrival to wait for Les Broom, and that he was there when the police arrived. No direct evidence was presented at trial to establish Shorter had possession of the cocaine base prior to the raid. The drugs at issue here were not in plain view. No officer observed any items being thrown into the toilet during the search by Shorter, or any other person. No one observed Shorter in the bathroom. The evidence does not establish how long the drugs had been in the toilet. The officers were not able to testify that the water was swirling or that the tank was filling when the drugs were discovered. No fingerprints were found on the outer bag or any of the smaller plastic bags. Shorter made no statements acknowledging a connection to the drugs. Others in the house were in motion in the home when the police arrived and could have thrown the drugs in the toilet.

After Judge Rosenbaum gave his final approval for the settlement, the lawyers for the objectors asked him to award them some $225,000 in attorneys fees. The objector’s attorney’s claimed that they influenced the Judge and led him to reduce the class-counsel’s fee request, and therefore helped save the class the $40+ million.

Judge Rosenbaum denied awarding the objecting attorneys any fees at all, stating:

The remoras* are loose again. The Court has received a motion from attorneys Edward Siegel, Edward Cochran, Stuart Yoes, and Scott Browne (styling themselves “Objectors’ Counsel”), seeking an award of fees. Their motion is emphatically denied.

Those objecting to a class action settlement are not entitled to a fee award unless they confer a benefit on the class. . . . These objectors have contributed nothing. Instead, in a pleading which may charitably be described as disingenuous, Objectors’ Counsel argue they assisted the Court in finding class counsel’s fee request unreasonable. They claim their efforts convinced the Court to reduce class counsel’s fee from $110 million to $64.8 million. They have the temerity to suggest they are the ones who saved the class $45 million in attorney fees, entitling them to a six-figure fee of their own.

Their suggestion is laughable. If the Court may be permitted an egregious paraphrase of Winston S. Churchill: Seldom in the field of securities litigation was so little owed by so many to so few. Objectors’ Counsel make “outlandish fee requests in return for doing virtually nothing.” In re Cardinal Health, 550 F. Supp. 2d at 753. And nothing is the quantity of assistance they have provided to the Court and the class. Their goal was, and is, to hijack as many dollars for themselves as they can wrest from a negotiated settlement. Objectors’ eight-page-long, two-week-late pleading presented no facts, offered no law, and raised no argument upon which the Court relied in its deliberation or ruling concerning class counsel’s motion for fees. Indeed, the Court expressly rejected the lion’s share of objectors’ arguments directed to the use of paralegals and contract attorneys.

Accordingly, the Court holds, as a matter of fact and law, objectors have conferred no benefit whatsoever on the class or on the Court. Objectors’ Counsel are entitled to an award equal to their contribution . . . nothing.

Alimony may be used to compensate a spouse who leaves the marriage at a financial disadvantage.

There are three types of alimony—traditional, rehabilitative, and reimbursement. . Traditional alimony is “payable for life, or for so long as the spouse is incapable of self-support.” Rehabilitative alimony is “a way of supporting an economically dependent spouse through a limited period of re-education or retraining following divorce, thereby creating incentive and opportunity for that spouse to become self-supporting.” Reimbursement alimony “is predicated upon economic sacrifices made by one spouse during the marriage that directly enhance the future earning capacity of the other.”

IN RE THE MARRIAGE OF JAMES MICHAEL PAUL AND BRANDY LEE PAUL

Brandy was employed at Amana Manufacturing at the time of their marriage, and Jim was pursuing a college degree. Brandy paid a portion of his student loans. She cashed in her pension with her employer to pay the wedding expenses (about $7000), and to forward a down-payment on their marital home. Brandy worked while Jim was obtaining his college degree, and for a few months until he found a job. When Brandy became pregnant, the couple agreed that she should remain in the home to care for their children.

This marriage is not short by any means. Thirteen years is a generous portion of one’s early adulthood. Each are in their mid-thirties. Jim was a student in college at the time of their union and presently boasts a college degree, while Brandy has only a couple of semesters of college credit. The educational level of each party at the time of marriage and at the time the action is commenced is a factor to be considered.

Brandy will need a few years to earn a degree, or, in the alternative, several years of experience in some employment to attain a plateau where she can responsibly care for herself financially. The feasibility of the party seeking maintenance becoming self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage, and the length of time necessary to achieve this goal is also a factor in setting alimony. Jim has a rewarding position in a positive profession that appears to be stable, earning over $70,000 annually; Brandy was out of the job market for years, returning to the workforce with varying results and was unemployed at the time of the dissolution.

The earning capacity of the party seeking maintenance, including educational background, training, employment skills, work experience, length of absence from the job market, responsibilities for children under either an award of custody or physical care, and the time and expense necessary to acquire sufficient education or training to enable the party to find appropriate employment are also factors to be considered in awarding alimony.

The dissolution court awarded Brandy alimony in the sum of $500 per month for ten years, commenting that, “Brandy will have the opportunity to complete her degree and obtain employment that will provide income to her that will allow Brandy to live a lifestyle reasonably equivalent to that during the marriage.”

The second case was IN RE THE MARRIAGE OF TRACY ALAN HOWELL AND LISA ANN HOWELL, where the Court stated: In our review, we believe an award of spousal support is necessary to do equity in this case. Lisa and Tracy’s marriage lasted eleven years. During the parties’ marriage, Lisa’s career and earning capacity were put on hold while she took on a care giver and housekeeper role for the family and Tracy acted as the main breadwinner. Lisa’s staying at home benefitted the family and enabled Tracy to steadily increase his income. Although Lisa reentered the workforce in 2005, she has continued to earn significantly less than she did prior to the parties’ marriage. The district court imputed Lisa’s income at $23,868 for purposes of calculating Tracy’s child support obligation. In contrast, Tracy now earns close to $90,000 including overtime and bonuses.

For the foregoing reasons, we believe this case falls within the category of cases where an award of spousal maintenance is needed to achieve equity. A number of the factors set forth in Iowa Code section 598.21A support such an award, including the length of the marriage, Lisa’s relative earning capacity, her length of absence from the job market, her responsibilities for the children, and the feasibility of her becoming self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage. Simply stated, when Lisa and Tracy married each other, they were at the same income level; now, due to the marriage and their children, Lisa earns about one-fourth of what Tracy earns. Thus, this is the kind of case where alimony is appropriate. However, we do not feel it is necessary to award alimony until the youngest child turns eighteen, as requested by Lisa. Upon our review, we grant Lisa alimony in the amount of $800 per month for seventy-two months.

In State v. O’Dell, the defendant was stopped for routine traffic violations.  Because of the very cold weather, the officer asked the defendant to sit in the front of the patrol. While in the patrol car, the officer smelled alcohol on the defendant and asked him if he had been drinking.  The defendant admitted he had just come from a bar.  The defendant was not given his Miranda warning before being questioned.  In these circumstances, the court held that the defendant was not custody and the defendant’s statement that he just came from a bar was admissible.

In  State v. Blair, a statement by an investigator to the defendant, while the defendant was in jail, that the defendant would “have a weight lifted from his shoulders” if he told what happened was not a promise of leniency and allowed the statements made by the defendant afterwards to be admitted.

Bottom line; it is almost always best not to discuss anything, whatsoever, about what happened with law enforcement unless you have your attorney present.  Most attempts to explain what happen end badly and only serve to get you in worse trouble then before.