In a decision that must have come as a surprise to a district court judge and two separate panels of the Court of Appeals who thought otherwise, a unanimous Minnesota Supreme Court held in consolidated cases in State v. Lopez that defendant brothers were not required to register as predatory offenders; in the process, the Court articulated new limits on the reach of the predatory offender registration statute.
The Brothers Lopez were charged with aiding and abetting 1st degree controlled substance crime, and aiding and abetting kidnapping. Early in the proceedings, Gabriel Lopez moved to dismiss the kidnapping charge against him for lack of probable cause. His motion was denied. The state eventually dismissed the kidnapping charges against both brothers. They had separate stipulated facts bench trials on the controlled substance charges. Each was convicted. No mention of the supposed kidnapping was made in the stipulations underlying their convictions.
A tale of two tales
Everyone agrees that the brothers sold methamphetamine to a confidential informant in April 2006. The informant paid $600 for $900 worth of meth; he agreed to make up the $300 later. How you characterize what happened next depends on which court’s opinion you’re reading. Both Court of Appeals opinions, found here and here, duly repeat the informant’s claim that, ten days later, the Brothers Lopez forced him to drive to their home, where they confined him and his juvenile friend in a garage until he made arrangements to pay the debt. The Supreme Court opinion authored by Justice Magnuson describes these same facts in a manner that evokes the grammatical equivalent of the raised eyebrow. The Court makes selective use of quotation marks to describe the informant’s claim that he was “being held hostage” (just like this). The Court spends three paragraphs describing statements by the juvenile that contradict and discredit the informant’s account; the existence of this exculpatory evidence was not even hinted at in the Court of Appeals opinions. Finally, the Court chooses to support an observation about the low factual threshold required to show probable cause with this quotation of authority: “Cf. Illinois v. Gates, 462 U.S. 213, 245, n.13 (1983)(‘[I]nnocent behavior frequently will provide the basis for a showing of probable cause.’).” It sure looks to me like the Justices thought the kidnapping allegations were hokum. How else would they tell us that, except as they have here?
Minn. Stat. § 243.166 requires a person to register if he was “charged with” an enumerated predatory offense and was “convicted of or adjudicated delinquent for that offense or another offense arising out of the same set of circumstances.” Because Gabriel Lopez contested probable cause in the trial court, he preserved his challenge to the application of the statute’s first prong, the “propriety of the charge.” On this point, the Court ruled against Lopez. It held that, even though the juvenile later gave an exculpatory statement, and even though the kidnapping charge was eventually dismissed, the district court did not err in concluding at the time the motion was brought that the charge was supported by probable cause.
“One ‘same set’ “
Thus to the main issue: did the drug crime “aris[e] out of the same set of circumstances” as the kidnapping charge? In Gabriel Lopez’ case, the Court of Appeals said “arising out of” was “open-ended”; it permitted “consolidation of offenses for broadly-related conduct.” Not so, said the Supreme Court. The Court of Appeals reads the statute “more broadly than its language permits.” Though the predatory offense charge and conviction need not be “identical,” it is not sufficient that they arise from “related circumstances” or that they share a single “related circumstance.” They must arise from “one ‘same set’ ” of circumstances. They must be “sufficiently linked in time, location, people, and events to be considered the ‘same set of circumstances.'”
Applying this test to los Lopez, the Court held that the drug convictions did not arise out of the same set of circumstances as the kidnapping charges. The Court noted that the “stipulated record” shows “at most” one single common circumstance–the payment of the drug debt. No evidence about the events surrounding the kidnapping was necessary to establish the brothers’ culpability for the drug sale. The kidnapping was alleged to have occurred ten days later, in a different place, involving a “slightly different” group of people. “Under the plain language of the statute,” the Court concluded, “a predatory offender registration requirement may not rest on so tenuous a link[.]”.
1. The Court makes clear that it views itself as doing nothing more nor less than articulating a test that effectuates the plain language of the registration statute (“[w]e find the answer to the issue in this case in the text of the statute”; the lower courts “read the statute more broadly than its language permits”; “the legislature did not choose” to require registration in related offenses). Nonetheless, I think it likely that this decision is going to have real frisson. The approach taken by the trial court and the Court of Appeals seems not at all atypical. In my experience, the charged/convicted offense analysis in the trial courts has tended to be mechanical and the decision, capacious. The Court tells us in Lopez that the function of the “arising out of ” clause is to “limit[ ] the number of defendants who might be forced to register.” It seems entirely likely, now, that it will actually have that effect.
2. This case was smartly litigated in the trial court. The decision to exclude any mention of the kidnapping from the stipulated facts in the controlled substance trial brought the registration issue into high relief, situating it most advantageously for appellate review. It is a strategy that someone might want to copy in the future.
3. One need not question the Court’s own explanation for its holding to be struck by the disdain with which the Court discusses the kidnapping allegations. But there will doubtless be occasions when, no matter how spurious the allegations or discredited the complainant, the “same set of circumstances” analysis will not work to shield a deserving defendant from registration. I am imagining, for instance, a domestic assault situation in which the complainant adds unfounded allegations of more or less contemporaneous false imprisonment, kidnapping or criminal sexual conduct. Let us say the prosecutor in such a case has decided to dismiss the registration offense because she learns additional facts which lead her to question whether it occurred. Would the parties’ stipulation, prior to the dismissal, that any probable cause has evaporated be sufficient to ward off the registration requirement? Should the defendant have an opportunity prior to the dismissal to ask the court to make a finding that probable cause is gone?