Downward Departure for Substantial Assistance Without a Government Motion? YES!

Ripples from the splash made by the U. S. Supreme Court's decision in Koon v. United States, 518 U.S. 81 (1996) have now reached one of the government's most jealously guarded tools: (virtualy) unfettered discretion in whether a defendant can receive a downward departure for substantial assistance.

Prior to Koon, almost every Circuit interpreted U. S. Sentencing Manual Guideline Section 5K1.1 (1997) to deprive district courts of authority to depart downward based upon substantial assistance in the absence of a government motion. Then came Koon, in which the Supreme Court sanctioned the use of downward departures based upon "non-prohibuted" sentencing factors which the applicable Guideline does not already take into account, or, if already taken into account, are present to an exceptional degree.

Now the D. C. Circuit Court of Appeals has ruled, in reliance upon Koon, that because substantial assistance without a government motion is not a prohibited factor, an is not adequately considered by the Guidelines, the district court does have authority to depart downward for substantial assistance even in the absence of a government motion under Section 5K1.1 In Re: Sealed Case, ___F.3d___, (No. 97-3112, D. C. Cir., July 24, 1998).

"Have Stopped, Will Frisk"

When a law enforcement officer lawfully stops a motorist, may he conduct a frisk of the motorist to search for weapons? Not unless the circumstances, taken as a whole, warrant a reasonable belief that criminal ctivity is afoot, or that the motorist is armed and dangerous. The question is, what circumstances will warrant such a belief.

In State v. Pearson, ___ N. C. ___, No. 165PA97 (May 8, 1998) the North Carolina Supreme Court said nervousness, a slight odor of alcohol, and variance in statements between the motorist and his passenger is not enough. The Court distinguished the case from State v. McGirt, 122 N.C.App. 237, 468 S.E.2d 833 (1996), aff'd per curium, 345 N.C. 624, 481 S.E.2d 288, cert. denied, ___U.S.___, 139 L. Ed.2d 121 (1997), which held that it was lawful for an officer to frisk a motorist who had been removed from his vehicle when the officer knew that the motorist was a convicted felon who was under investigation for cocaine trafficking. The Court in Pearson also held that the motorist's acquiescence when the officer told him he would frisk him does not amount to "consent."

"Have Stopped, If Can't Frisk, Will Sniff?"

Since nervousness and inconsistent statements from a motorist and his passenger are not enough to justify a frisk of the motorist, are they enough to justify bringing a trained narcotics dog over to sniff the exterior of the motorist's car? In State v. Falana, ___N.C. App.___, (No. COA97-1144, June 16, 1998) the North Carolina Court of Appeals said no. In reliance upon the North Carolina Supreme Court's opinion in State v. Pearson, ___N.C.___ (165PA97, May 8, 1998) the Court held that after a lawful stop, once the officer is satisfied that the motorist is not impaired and would otherwise be free to leave, the driver's nervousness and inconsistent statements are not enough to detain the motorist further, even if the drug sniffing dog is already at the scene waiting in the back of the officer's car. One wonders if now officers will have their drug dogs accompany them to the driver's window every time they stop a motorist.

"Look into My Eyes..."

For years North Carolina law enforcement officers have administered a roadside test on suspected drunk drivers called the horizontal gaze nystagmus test. The test involves the involuntary rapid movement of the eyeball when the subject is impaired by alcohol. District Court Judges and Superior Court juries routinely heard evidence of how the test confirmed the arresting officer's suspicion of appreciable impairment.

The North Carolina Supreme Court now says not so fast. In reversing a DWI conviction, the Supreme Court announced in State v. Helms, ___ N. C. ___, No. 468PA97 (July 9, 1998) that the HGN test is a scientific test requiring expert testimony as to its reliability. The court said the State must lay a proper foundation at trial for the admission of the HGN test results. This means that the officer must establish his expertise to explain the correlation between intoxication and nystagmus, and must then be subject to cross-examination to test the validity and reliability of the HGN test. The Supreme Court went on to note that there are at least thirty-eight things other than alcohol intoxication which are known to cause nystagmus. Hmmm...

Failure to File Tax Returns - "Can't We Handle This Civilly?"

� Federal Returns

Experienced criminal tax practitioners have long been aware of the IRS's voluntary compliance policy, pursuant to which the Service declines criminal prosecution in many cases in which the taxpayer comes forward and discloses noncompliance before being contacted by a criminal investigator. One of the often overlooked requirements of the policy, however, is that the taxpayer must either pay or make bona fide arrangements to pay the applicable taxes and penalties. United States v. Tenzer, 127 F.3d 122 (2nd Cir. !997), contains an excellent discussion of the history of the policy

� North Carolina Department of Revenue

Many criminal practitioners are unaware that the Criminal Investigation Division of the North Carolina Department of Revenue also follows a voluntary compliance policy. While it would be difficult to obtain judicial enforcement of application of the policy, the CID views genuine voluntary compliance as something to be encouraged, and consequently rarely pursues criminal prosecution in those cases.

Supreme Court Retreats from Pearson

The fight against pretextual traffic stops along North Carolina's interstate highways took a major turn in 1999 when the North Carolina Supreme Court unloaded a double-barrel shot against defense arguments that the practice was unconstitutional. In State v. McClendon, 350 N>C> 630, 517 S.E. 2d 128 (July 23, 1999), affirming, 130 N.C. App. 368, 502 S.E. 2d 902 (1998), the Supreme Court held:

1. As long as the law enforcement officer has a lawful reason for stopping a motorist (here, speeding 7 m.p.h. over the speed limit and following too closely) his stop of the vehicle does not violate Article I, Section 20 of the North Carolina Constitution, even if his real purpose in stopping the vehicle was to investigate for illegal drug possession. In so holding, the Court adopted the United States Supreme Court's reasoning in Whren v. United States, 517 U.S. 806, 135 L. Ed. 2d 89 (1996) which held that police action related to probable cause should be judged in objective terms, not subjective terms.