Courtroom Weekly: From police to parental rights

February 21, 2013

by: the State Court Staff

Parents, drivers, smokers and farmers go to court

Courtroom Weekly The latest and greatest in court cases around the nation In this issue... Featured case News from Alabama News from Arizona News from Iowa News from West Virginia

Featured case Not using a turn signal leads to valid search and seizure in a residence in Ohio   Court: Ohio Second District Court of Appeals On February 15, the Ohio Second District Court of Appeals ruled that the warrantless entry by police officers into the home of a driver who failed to signal a turn was valid. The police used a battering ram to enter the home of Jeffrey Lam after he failed to use a turn signal while driving. The police officers involved had interacted with Lam previously and knew that his license had been suspended multiple times. Though the turn signal violation was a minor misdemeanor under Ohio law, the officers pursued Lam to his home, where he entered the residence and locked the door. Lam refused to allow the police entry; as a result, the police used force to enter the home. The officers then cited police safety as a reason to conduct a search, during which they discovered drugs. Jeffrey Lam's brother, Timothy Lam, was subsequently arrested and convicted based on the evidence seized during that search. His motion to suppress the evidence was denied by the Montgomery County Court of Common Pleas during his trial. Writing for the majority, Judge Jeffrey Froelich indicated the judges were unhappy with their ultimate decision: “ "Although we are bound by supreme court precedent, we have reservations about permitting police officers to chase a suspect who is known to have committed only a minor traffic violation and to forcibly enter into his house, in the absence of exigent circumstances. This may be the unusual situation where legal reasoning has plunged off the slippery slope or where the exceptions have swallowed the rule." ” Timothy Lam was given a potential path to appeal to the Ohio Supreme Court, as the opinion here "called on the state Supreme Court to overturn the precedent" established by Middletown v. Flinchum. Decided in 2002, Flinchum extended the hot pursuit doctrine to misdemeanors. Traditionally, the hot pursuit doctrine allowed for the warrantless entry of the home of a suspect police are actively pursuing on suspicion of a felony.

News from Alabama Appeals court tosses murder conviction of man who threw children off bridge   Court: Alabama Court of Criminal Appeals The Alabama Court of Criminal Appeals threw out the 2009 death sentence for Lam Luong, who was convicted of killing four small children and throwing them off a bridge. The court remanded the case for a new trial after determining that the surrounding publicity made a fair trial in Mobile, where the crime took place, impossible. Three of the children were Luong's own: Hannah, age 2; Lindsey, age 1; and Danny, who was 4 months. Three-year-old Ryan, Luong's step son, was also killed. The bodies were found along coasts in Alabama, Mississippi and Louisiana. Autopsies indicated that the children were alive when thrown off of the 80-foot Dauphin Island bridge into the Mississippi Sound. According to his wife, Luong was addicted to crack cocaine. The appeals court ruled that Luong received an improper trial since all 12 jurors had prior knowledge of the case. The court stated, “ It is clear that publicity surrounding the murders completely saturated the Mobile community in 2008...Luong was denied his constitutional right to an impartial jury." ” The court explained that Luong's attorneys should have been allowed to question the jurors about their knowledge of the case prior to the trial. Additionally, the court ruled that the trial judge should have allowed a video to be presented to the jury in which a police officer simulated the crime by dropping four sandbags off of the bridge. The trial judge also erred, the court stated, in refusing $7,500 to the defense team to travel to Vietnam, from which Luong had immigrated, to investigate his childhood.

News from Arizona Arizona Court of Appeals rules marijuana users able to get DUI even if not impaired   Court: Arizona Court of Appeals The Arizona Court of Appeals' ruling on February 13th focused on two chemical compounds found in blood and urine of marijuana users. One compound is known to impair a driver's senses and a second compound that does not. The second compound, while not impairing the user, still stays in a person's system up to weeks after smoking and is detectable in a blood/urine test. The ruling by the Court of Appeals says that Arizona law applies to both chemical compounds and that as long as marijuana is detectable in your system you can be prosecuted for driving under the influence, even if the person is not actually impaired. This decision overturns an earlier ruling that stated it didn't make sense to prosecute someone for being under the influence when there is no evidence of impairment.

News from Iowa Farmer liable for guest's injury during educational tour   Court: Iowa Supreme Court According to a ruling issued on February 15 by the Iowa Supreme Court, farmers who choose to host educational tours for members of the public are not shielded from liability by a 1967 state law intended to promote recreation on private lands. In 2010, Kimberly Sallee filed a negligence suit against dairy farmers Matthew and Diana Stewart. Sallee had served as a chaperone on her daughter's kindergarten class trip to the Stewarts' farm, and broke her wrist and her leg when she fell through a hole in the floor of a hayloft where the Stewarts were letting the children play. The hole had been covered by hay bales, which Matthew Stewart had tested before the children arrived, but the bale over the drop gave way when Sallee stood on it. Sallee's case was originally dismissed by a district court judge, who found that the Stewarts were immune from liability under a 1967 law barring suits against landowners who allow the public onto their property for "recreational uses" like hunting, hiking, or snowmobiling. This holding was reversed by the Iowa Court of Appeals, which agreed that the Stewarts were shielded from liability as landowners by the 1967 law, but found that they could still be sued in their capacity as tour guides, provided it could be proven that they had acted improperly in that capacity. In the supreme court's 5-2 holding, Justice Brent Appel agreed that Iowa's 1967 law is intended to promote outdoor activities, and wrote that horseback riding and "nature study," which the students engaged in at the Stewarts' farm, may have been covered by the law. However, he wrote that, “ "it is difficult to characterize frolicking in a hayloft as part of a guided tour of an improved barn on a dairy farm as nature study within the meaning of the statute...The district court erred to the extent it held that Sallee was engaged in nature study at the time of her injury." ” In dissent, Justice Edward Mansfield wrote that the law was designed from its inception to encourage farmers to offer access to and recreational use of their lands. He wrote that the court's decision "turns [the] law upside down." Sharing Justice Mansfield's concern is the Iowa Farm Bureau Federation, which believes that exposing farmers to liability in cases like this may jeopardize educational tours during which the public has the opportunity to learn about farming and agriculture.

News from West Virginia West Virginia mother loses all parental rights   Court: West Virginia Supreme Court The mother of a missing three-year-old has lost all rights to her remaining six children. Lena Lunsford is a mother of seven. In 2011, her three-year-old daughter, Aliayah, went missing. The authorities have had no success in the search for the girl. Lunsford has been imprisoned for the past eight months serving an unrelated sentence for welfare fraud. A state hearing took place in the 26th Circuit Court (Lewis County) in May of 2012 to determine the custody of Lunsford's children going forward. The presiding judge ultimately agreed with those arguing on behalf of the state that, "there can be no assurance that the other children in the home can be safe in their parents' care." This ruling terminated the parental rights of Lena and Ralph Lunsford. Ralph is the father of most of Lena's children, but is identified as Aliayah's stepfather. Lena challenged this ruling, and her case was taken up by the West Virginia Supreme Court. With the support of an unidentified father of one of the children, and welfare workers from West Virginia's Bureau for Children and Families, the Supreme Court upheld the lower court's ruling, denying Lena and Ralph any further access to their children. In the year and a half since Aliayah's disappearance, both Lena and Ralph have at times "vaguely accused" one another in regards to her disappearance. In their decision, the Supreme Court noted that the circuit court judge from the May 2012 hearing found that, “ "...the parents had more knowledge about A.L.'s whereabouts than they revealed but refused to provide that information to the court." ”

See also

• Courtroom Weekly