Tuesday, September 30, 2014

Two Court Opinions SMASHING the Land Patent Tax Avoidance Argument

You can bet that the losers in these Appeals (see below) whined and complained that the courts are unfair.  But these FOOLS tried to argue that Land Patents gave them reason not to pay property tax.

Note that state laws require people to record land conveyances, so in case you think you don't need to recorded land conveyed to you by patent, imagine what happens if a dispute arises over ownership.

Florida Statute 695.01 Conveyances and liens to be recorded.
(1) No conveyance, transfer, or mortgage of real property, or of any interest therein, nor any lease for a term of 1 year or longer, shall be good and effectual in law or equity against creditors or subsequent purchasers for a valuable consideration and without notice, unless the same be recorded according to law; nor shall any such instrument made or executed by virtue of any power of attorney be good or effectual in law or in equity against creditors or subsequent purchasers for a valuable consideration and without notice unless the power of attorney be recorded before the accruing of the right of such creditor or subsequent purchaser.
(2) Grantees by quitclaim, heretofore or hereafter made, shall be deemed and held to be bona fide purchasers without notice within the meaning of the recording acts.
(3) A lien by a governmental entity or quasi-governmental entity that attaches to real property for an improvement, service, fine, or penalty, other than a lien for taxes, non-ad valorem or special assessments, or utilities, is valid and effectual in law or equity against creditors or subsequent purchasers for a valuable consideration only if the lien is recorded in the official records of the county in which the property is located. The recorded notice of lien must contain the name of the owner of record, a description or address of the property, and the tax or parcel identification number applicable to the property as of the date of recording.
History.ss. 4, 9, Nov. 15, 1828; RS 1972; GS 2480; RGS 3822; CGL 5698; s. 10, ch. 20954, 1941; s. 8, ch. 85-63; s. 2, ch. 2013-241.

Here are the Losing Land Patent arguments...

http://www.leagle.com/decision/2006639168OhioApp3d471_1587
http://law.justia.com/cases/minnesota/court-of-appeals/2004/opa031218-0427.html


CALLISON v. HUELSMANNO. 05CA-29.

168 Ohio App.3d 471 (2006)
2006-Ohio-4395

CALLISON, Treasurer, Appellee, v. HUELSMAN et al., Appellants.

Court of Appeals of Ohio, Second District, Miami County.
Decided August 25, 2006.
Conran L. Huelsman, Janet Huelsman, and Edward B. Huelsman, for appellants.

GRADY, Presiding Judge.

{¶ 1} This is an appeal from a final judgment for foreclosure and order of sale of real property.

{¶ 2} Defendants-appellants, Conran and Janet Huelsman, own the real property located at 7290 South Peters Road in Tipp City. Defendants paid taxes on the real property in 2000 and 2001, but have not paid real property taxes since. On January 19, 2005, plaintiff-appellee, Lydia Callison, Treasurer of Miami

[168 Ohio App.3d 473]
County, commenced an action against defendants for foreclosure of liens outstanding on the property for delinquent real estate taxes. Defendants filed an answer and affirmative defense based on a notice of declaration of land patent published in a local newspaper.

{¶ 3} On May 26, 2005, defendants filed a motion to dismiss the foreclosure action based on the lack of a contract and a reservation of rights pursuant to the Uniform Commercial Code. The trial court overruled defendants' motion. Defendants filed a motion for summary judgment on July 5, 2005, but their motion was overruled as untimely because the June 10, 2005 deadline the court had set for filing motions for summary judgment had passed.

{¶ 4} A trial was held on July 21, 2005. The trial court, on July 26, 2005, issued a decision finding that plaintiff had a good and first lien on defendants' real property. In addition, the trial court stated that a judgment of foreclosure and order of sale would issue. Defendants filed a notice of appeal on August 5, 2005. The trial court entered its judgment entry and order of sale on November 14, 2005. Pursuant to App.R. 4(C), we shall treat defendants' August 5, 2005 notice of appeal as having been filed immediately after the November 14, 2005 final judgment and order.

ASSIGNMENTS OF ERROR

{¶ 5} Contrary to the requirements of App.R. 12(A) and 16(A), defendants have failed to identify assignments of error for this court to review. Moreover, defendants' appellate brief is largely a recitation of incomplete thoughts and citations. We will not scour the record looking for every possible error that may have occurred in the trial court proceeding. Rather, we will address the three general arguments raised in defendants' brief.

{¶ 6} First, defendants argue that the trial court lacked subject-matter jurisdiction to grant the relief requested because defendants did not contract with or request a privilege from the state of Ohio. This argument is misplaced. The power to tax does not come from a contract. "It is elementary that the power and right to tax, for any reason, rest with the government, whether that government be federal, state, or municipal in character. The power and right to tax give rise to the power and right to collect and police that tax." S.S. Kresge Co. v. Bowers (1965), 2 Ohio St.2d 113, 116, 206 N.E.2d 905.

{¶ 7} The foundation of the state's taxing authority is in Section 1, Article II, of the Ohio Constitution, which confers general legislative power upon the General Assembly. Haefner v. Youngstown (1946), 147 Ohio St. 58, 68 N.E.2d 64. R.C. 5709.01(A) provides: "All real property in this state is subject to taxation, except only such as is expressly exempted therefrom." R.C. 323.12(A) requires

[168 Ohio App.3d 474]
that "[e]ach person charged with taxes shall pay to the county treasurer the full amount of such taxes on or before the thirty-first day of December * * *." R.C. 323.121 provides for penalties if payments are untimely.

{¶ 8} Section 4(B), Article IV, of the Ohio Constitution provides that the courts of common pleas shall have "original jurisdiction over all justiciable matters * * * as may be provided by law." R.C. 2305.01 confers on the courts of common pleas original jurisdiction in all civil cases in which the sum or matter in dispute exceeds the exclusive original jurisdiction of county courts. Further, once tax payments are untimely, R.C. 323.25 provides that the county treasurer shall enforce a resulting lien for real property taxes owed in a civil action for the sale of such property, in the court of common pleas and in the same way in which mortgage liens are enforced. Consequently, the trial court had subject-matter jurisdiction to hear and determine the claims for relief in plaintiff's action.

{¶ 9} Second, defendants argue that they should not have to pay real property taxes because their land is protected by a federal land patent. They cite no relevant authority for this proposition. The Tenth District Court of Appeals rejected similar arguments in Jokinen v. Lake Cty. Bd. of Revision (Feb. 25, 1988), Franklin App. No. 87AP-713, 1988 WL 24438. In Jokinen, the Board of Tax Appeals affirmed a decision of the Lake County Board of Revision that had ordered a decrease in the valuation of the appellant's property. On appeal, the appellant argued that the Board of Tax Appeals lacked jurisdiction because his property was protected by a federal land patent and that his property was not subject to taxation because he did not agree to be taxed by the state of Ohio.

{¶ 10} Rejecting the appellant's arguments, the Tenth District held: "The general grant of legislative power in Section 1, Article II, of the Ohio Constitution clearly includes the right to impose taxes. Pursuant to the state's inherent taxing power, the legislature passed R.C. 5709.01(A), which provides `[a]ll real property in the state is subject to taxation, except only such as is expressly exempted therefrom.' There is no exemption from real estate taxes simply because the property sought to be taxed is located in an area which was once subject to a land grant from the United States to the state of Connecticut as part of its western reserve lands. Appellant, by virtue of owning property located in the state of Ohio, is subject to taxes passed pursuant to R.C. 5709.01." Id. We agree with Jokinen that a federal land patent does not excuse a real property owner's legal obligation to pay taxes.

{¶ 11} Finally, defendants cite sections 1-103 and 1-207 of the Uniform Commercial Code as additional authority excusing their failure to pay real property taxes. These provisions of the Uniform Commercial Code have been adopted by the General Assembly and are contained in R.C. 1301.03 and 1301.13. However, the Uniform Commercial Code, as adopted by the General Assembly,

[168 Ohio App.3d 475]
applies to commercial transactions, not to governmental actions that impose a duty to pay real property taxes. Consequently, these provisions are irrelevant to the present matter and do not support defendants' decision to stop paying real property taxes.

{¶ 12} The error assigned is overruled. The judgment of the trial court will be affirmed.

Judgment affirmed.

FAIN and DONOVAN, JJ., concur.





County of Steele, Respondent, vs. Phillip Brase, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1218

 

 

County of Steele,

Respondent,

 

vs.

 

Phillip Brase,

Appellant.

 

 

Filed April 27, 2004

Affirmed

Robert H. Schumacher, Judge

 

Steele County District Court

File No. C202667

 

 

Douglas L. Ruth, Steele County Attorney, 303 South Cedar, Owatonna, MN 55060 (for respondent)

 

Phillip Brase, 9853 West Highway 14, Waseca, MN 56093 (pro se appellant)

 

            Considered and decided by Willis, Presiding Judge; Schumacher, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

ROBERT H. SCHUMACHER, Judge

            This is an appeal from summary judgment in a delinquent-tax proceeding in which appellant Phillip Brase contested the validity of taxes assessed against his realty.  The district court granted summary judgment in favor of respondent County of Steele and ordered rule 11 sanctions against Brase.  Brase challenges the grant of summary judgment.  We affirm.

FACTS

Brase owns approximately 345 acres of land in Steele County, Minnesota.  On February 1, 2001, a notice listing delinquent taxes owed for tax year 2000 on Brase's land was filed with the Steele County District Court Administrator.

On April 15, 2002, Brase filed a document titled "Notice of Objection to Taxes and Penalties on Real Property owned by Phillip Brase" with the Steele County District Court Administrator.  Brase argued the tax levied against his realty violates the Minnesota Constitution, Article 1, Section 15, prohibiting feudal tenures and violates a land patent created by the United States government.  He declares he is a "holder of . . . legal titles, or Land Patents, of the above mentioned parcels" and "does not recognize any superior government to whom any 'duty' or 'tax' is due."  He further states:  "Any so-called tax upon this land would have to be voluntary" and he is "not volunteering any tax."

During the litigation process, Brase served interrogatories and requests for admissions on numerous county officials.  Citing State v. Elam, the district court disallowed these requests, finding they were not calculated to lead to the discovery of admissible evidence because they did not address the three defenses allowed in a delinquent-tax proceeding.  250 Minn. 274, 289, 84 N.W.2d 227, 232 (1957) (holding three defenses allowed in delinquent-tax proceeding include whether property was exempt from taxes, whether taxes have been paid, and whether there are jurisdictional objections to delinquent-tax proceedings).

On April 23, 2003, the district court granted summary judgment in favor of the county.  Citing chapter 279 and Elam, the district court again identified the available defenses in a delinquent-tax proceeding and found Brase had failed to allege any available defense.  Furthermore, the court acknowledged Brase's arguments that "taxation violates the Minnesota Constitution, Article 1, Sec. 15, prohibiting feudal lands" and "the United States Government has created a land patent which precludes taxation of the property" and determined neither was valid under existing law.

On April 23, 2003, the court also ordered Brase to appear at a hearing "to show cause why he has not violated Minnesota Rule of Civil Procedure 11."  The incorporated memorandum of law provided:

Mr. Brase's arguments before this Court are baseless and without merit.  Mr. Brase's arguments are not warranted by existing law and are frivolous.  His arguments in no way argue for the extension, modification, or reversal of existing law.  Many of Mr. Brase's submissions are without evidentiary support.  Many of his allegations are for an improper purpose, such as to harass or unnecessarily delay or needlessly increase the costs of litigation.  For these reasons, the Court requests an order to show cause hearing to determine appropriate sanctions.

 

On May 28, 2003, Brase personally appeared and participated in the hearing.  By order filed June 26, 2003, the district court imposed a sanction of $1,000 or 100 hours community service.  The court explained the basis for the sanction stating, in part, that (1) Brase's discovery requests lacked legal merit and were submitted solely to annoy, embarrass, and create undue burden and expense on the county; (2) Brase raised no material factual disputes and therefore summary judgment was appropriate; (3) Brase raised issues that were not related to the three defenses allowed in the proceeding and engaged in legal analysis that was unsound and illogical, including counter claims that the county misappropriated tax funds and trespassed on his property; and (4) the court was concerned that Brase would continue to pursue similar claims and that other individuals would attempt similar litigation.

D E C I S I O N

1.         "On an appeal from summary judgment, we ask two questions:  (1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law."  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  No genuine issue of material fact exists "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party."  DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (quotation omitted).

            Under chapter 278, anyone having a right, title, or interest in property may initiate proceedings regarding assessed property taxes on or before April 30 in the year the tax becomes payable.  Minn. Stat. § 278.01, subd. 1 (2002).  Under this chapter, a person may raise the defenses including unequal assessment, payment, exemption, and illegal levy of tax.  Id.  "No defense or objection which might have been interposed by [a chapter 278 proceeding] shall be interposed in delinquent-tax proceedings except the defense that the taxes levied have been paid or that the property is exempt from the taxes so levied."  Minn. Stat. § 278.13 (2002).

A delinquent-tax proceeding arises under chapter 279 and is commenced by the  county auditor filing with the district court a list of properties on which taxes are delinquent.  Minn. Stat. § 279.05 (2002).  "Any person having any estate, right, title, or interest in . . . any parcel of land embraced in such list as published . . . may file with the court administrator of the district court an answer setting forth a defense or objection to the tax."  Minn. Stat. § 279.15 (2002).  The Minnesota Supreme Court in Elam discussed the relationship between chapters 278 and 279 and held that section 279.15, because of the language in section 278.13, is repealed insofar as it permits one to assert defenses other than the land is exempt from taxation, the taxes have been paid, or jurisdictional defect.  250 Minn. at 281, 84 N.W.2d at 232.

            Here, Brase did not pay 2000 property taxes as they became due in 2001 and his property was, accordingly, included on the delinquent-tax list filed with the district court.  This action commenced a delinquent-tax proceeding under chapter 279.  Brase filed an answer setting forth his defenses and objections.  He argued that the property tax levied violates the Minnesota Constitution, Article 1, Section 15, prohibiting feudal tenures, and that the United States government has created a land patent, which precludes taxation of the property.  Brase argues the Elam interpretation of section 279.15 is no longer controlling because the legislature has since revised section 279.15 and did not change the statute's language to comport with the holding in Elam.  Therefore, Brase contends, the defenses he raised are allowed by law and the district court erred in granting summary judgment in favor of the county.  We disagree.

After the supreme court in Elam interpreted section 278.13 and held that section 279.15 only allowed for three defenses, the legislature reenacted section 279.15, altering the language of the statute only slightly.  Compare Minn. Stat. § 279.15 (stating person "may file with the court administrator of the district court an answer setting forth a defense or objection to the tax or penalty") with Minn. Stat. § 279.15 (1957) (stating person "may file with the clerk of the district court an answer, verified as a pleading in a civil action, setting forth his defense or objection to the tax or penalty").  The language of section 278.13 remains the same as that which was interpreted by the Elam court.

In interpreting statutes, courts presume the legislature acts with full knowledge of previous statutes and existing case law.  Pecinovsky v. AMCO Ins. Co., 613 N.W.2d 804, 809 (Minn. App. 2000), review denied (Minn. Sept. 26, 2000).  Moreover, it is presumed that "[w]hen a court of last resort has construed the language of a law, the legislature in subsequent laws on the same subject matter intends the same construction to be placed upon such language."  Minn. Stat. § 645.17(4) (2002).

Thus, under the rules for statutory interpretation, the legislature has presumptively adopted the supreme court's interpretation of section 279.15 and Elam remains controlling precedent.  See, e.g., State v. Newman, 538 N.W.2d 476, 478 (Minn. App. 1995) (stating that "after the supreme court ruled that a BB gun could be a firearm under the aggravated robbery and mandatory minimum sentence statutes, the legislature has reenacted the criminal statutes without giving 'firearm' another definition and, thus, has presumptively adopted the supreme court's definition"), review denied (Minn. Nov. 30, 1995).  Brase did not raise an available defense.  The district court did not err in entering summary judgment.

2.         In the alternative, Brase appears to argue in his brief to this court, that the defenses he raised before the district court did comport with the defense of exemption  "even if the word 'exempt' is not mentioned."  Property that is exempt from tax is defined under Minn. Stat. § 272.02 (2002).  Exemption from property-tax liability is strictly construed and is an exception to the general rule that all property is presumed taxable.  Skyline Pres. Found. v. County of Polk, 621 N.W.2d 727, 731 (Minn. 2001).  Parties seeking exemptions bear the burden of proof.  Id.

Brase was put on notice in the district court's pretrial order dated February 20, 2003, of the three defenses available to him, including the defense of exemption from tax.  Brase was also informed that his legal arguments prior to the court's pretrial order did not comport with the available defenses.  Brase did not thereafter argue that his property was exempt from tax as defined by section 272.02 or that the two defenses he raised otherwise satisfied the exemption defense.  Thus, to the extent Brase may be arguing on appeal that his property is exempt from tax, he failed to raise this argument before the district court and is precluded from doing so on appeal.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (holding this court will generally not consider matters not argued and considered in court below).

          3.       A district court's decision on a motion for rule 11 sanction is reviewed under an abuse-of-discretion standard. Uselman v. Uselman, 464 N.W.2d 130, 145 (Minn. 1990).  Rule 11 allows the district court, on its own initiative, to enter an order "describing the specific conduct that appears to violate Rule 11.02 and directing . . . [a] party to show cause why it has not violated Rule 11.02."  Minn. R. Civ. P. 11.03(a)(2).  "If, after notice and a reasonable opportunity to respond, the court determines that Rule 11.02 has been violated, the court may, . . . impose an appropriate sanction."  Minn. R. Civ. P. 11.03.  When imposing sanctions, "the court shall describe the conduct determined to constitute a violation of this rule and explain the basis for the sanction imposed."  Minn. R. Civ. P. 11.03(c).

Brase argues the district court's procedure in imposing sanctions was flawed.  Brase contends the order to show cause did not contain a description of the specific conduct that violated rule 11, the district court determined sanctions should be imposed prior to providing notice and a reasonable opportunity to respond, and the conduct determined to constitute a violation was not properly described.  We disagree.

The record shows the district court's order of April 23 directed Brase to show cause why he had not violated rule 11 and stated the conduct that appeared to violate the rule.  An order to show cause hearing was held, Brase appeared, and Brase provided his reasons at the hearing for why the court should find he had not violated the rule.  Finally, the district court's June 26 order explained the basis for the sanctions imposed.  We conclude the district court properly proceeded under rule 11.03.

Furthermore, the court's memorandum to the April 23 order, which provides, "the Court requests an order to show cause hearing to determine appropriate sanctions," is at most an inadvertent error.  The order itself demonstrates the court's clear understanding of the proper procedure, providing Brase should appear at a hearing to show he had not violated rule 11 prior to determining whether sanctions should be imposed.  See Bloom v. Hydrotherm, Inc., 499 N.W.2d 842, 845 (Minn. App. 1993) (stating, "[i]n addition to their burden to show error, appellants have the burden on appeal to demonstrate that the trial court error caused them prejudice), review denied (Minn. June 28, 1993).

Brase, citing Uselman, further argues that notice was not provided to him as early as possible and therefore precluded him from the opportunity to correct his conduct.  464 N.W.2d at 143.  Contrary to Brase's contention, the district court did warn him in a memorandum of law incorporated with the court's pretrial order of February 20, 2003, which provided:

In this case, Mr. Brase challenges the requirements to pay [property tax].  In proceedings under Minn. Stat. § 279.01 et. seq., there are essentially three defenses.  These defenses are: whether the property is exempt from taxes, whether the taxes have been paid, whether there are jurisdictional objections. . . .  In reviewing the legal arguments and the affidavit submitted by Mr. Brase, the court concludes that the discovery questions have nothing to do with the proper legal defenses which can be raised in these proceedings.  They are not calculated to lead to the discovery of admissible evidence, and they involve irrelevant matters.

 

Under Radloff v. First Am. Nat. Bank of St. Cloud, N.A. this is an appropriate level of warning.  470 N.W.2d 154, 159 (Minn. App. 1991) (concluding district court's orders provided ample warning of possibility of rule 11 sanctions for failing to dismiss baseless causes of action even though orders did not make explicit warning of sanctions), review denied (Minn. July 24, 1991).

Finally, Brase argues the district court's findings of fact are not supported by the evidence and contain erroneous statements.  The court imposed sanctions finding, in part, that Brase acted in bad faith in pursuing the defenses he raised.  The existence of bad faith that triggers the statutory sanction is an issue of fact, which is best determined by the district court.  State Bank of Young Am. v. Fabel, 530 N.W.2d 858, 863 (Minn. App. 1995) (citing Uselman, 464 N.W.2d at 145), review denied (Minn. June 29, 1995).  The record shows Brase was warned that the defenses he was pursuing did not comport with the legal defenses allowed under Elam.  The record further shows that after this warning Brase did not change his strategy to comport with the legally viable defenses available to him.

Affirmed.







--

Bob Hurt            Blog 1 2   f  t  
2460 Persian Drive #70
Clearwater, FL 33763
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Sunday, September 28, 2014

Driving without insurance, registration, or license - thanks, Ralph, for a clearer understanding

Ralph Winterrowd 2nd, of Alaska, proved in court that if you drive without a license, registration, or proof of financial responsibility, cops don't violate your rights by stopping you, asking for or demanding to see those items, and continuing to question you until they release you or take you into full legal custody.   Well, Ralph didn't prove it, but the Appellate Court opinion did.

Attorney Larry Becraft has posted the text of this appellate opinion on his web page regarding "Destroyed Arguments" or "Dead Issues" in order to help well-meaning patriots understand the idiotic nonsense (that means in violation of common sense) paytriots for profit and other myth mongers try to spread through their teachings.  Larry hopes (and so do I) that publication of these destroyed arguments (destroyed in courts of law by judges' written opinions, of course) will dissuade patriots of common sense from pursuing courses of action that they should know in advance will lead them into trouble with the law.  By trouble I mean monumentally wasting time, money, and other resources trying something doomed to fail from the outset, with the result of paying fines and/or doing jail time. 

Patriot, PLEASE DON'T DON'T follow Ralph's example. Common sense tells you (for instance) that you will suffer if you stab yourself in the hand with a sharp knife. If you get a hair-brained idea that you can violate common sense and get away with it, DO YOUR LEGAL RESEARCH FIRST, and consult a COMPETENT attorney before embarking on a legal adventure that could land you in prison or cause you to pay fines. 

Patriot, PLEASE REMEMBER that, from a practical standpoint, the law means what the highest court of competent jurisdiction in your territory SAYS it means.  If you don't agree with that, and you can't take it to the Supreme Court, you are dealing with a political issue needing a political solution

And that shows why I encourage All patriots to
  1. Learn the constitution and its implications;
  2. Learn the law;
  3. Verify the law and constitution meanings by reading related court opinions;
  4. Consult a competent attorney for clarification;
  5. Become disposed to using the law;
  6. Become skilled at organizing others for political action when judges and politicians go rogue and violate their oaths to support the Constitutions;
  7. Remain true to your own oath or affirmation to support the Constitutions;
  8. Hold public officers accountable for loyalty to their oaths to support the Constitutions.
Remember above all that you cannot know the public officer violated the Constitutions if you haven't read, studied, and understood them yourself.  To get started in your project of learning what the Constitution means, read the annotated version which shows US Supreme Court opinions on the meanings.
For more destroyed arguments, see Larry's web page:  http://home.hiwaay.net/~becraft/deadissues.htm. You might drop him a line to show him your appreciation for his legal research. 

Also visit http://constitution.org, Jon Roland's reference site.  You'll find a ton of info there.  Send Jon a thank-you note too, and a donation.


--------------------------------------------------------------------------------------------------------------------------------------------------------------------------

WINTERROWD v. MUNICIPALITY OF ANCHORAGE, 139 P.3d 590 (Alaska App. 2006)

Ralph Kermit WINTERROWD 2nd, Appellant, v. MUNICIPALITY OF ANCHORAGE,

Appellee.

Nos. A-9233, A-9234.

Court of Appeals of Alaska.

June 23, 2006.

Rehearing Denied July 26, 2006.


  Appeal from the District Court, Third Judicial District, Anchorage, Jennifer K. Wells, Magistrate.

  Ralph Kermit Winterrowd 2nd, in propria persona, Knik, for the Appellant.

  Rachel Plumlee, Assistant Municipal Prosecutor, and Frederick H. Boness, Municipal Attorney, Anchorage, for the Appellee.
Page 591

  Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

                                 OPINION

  MANNHEIMER, Judge.

On January 3, 2004, and again on October 11, 2004, Ralph Kermit Winterrowd 2nd was stopped for speeding. On both occasions, the police asked Winterrowd to produce his driver's license, his vehicle registration, and proof of motor vehicle insurance.

During the January 3rd traffic stop, Winterrowd produced his driver's license, but he did not produce his registration or proof of insurance. Instead, Winterrowd invoked his privilege against self-incrimination and his right to the assistance of counsel under the Fifth Amendment to the United States Constitution. Because Winterrowd did not produce proof of motor vehicle insurance, he was cited for violating Section 09.28.030(B)(1) of the Anchorage Municipal Code (failure to carry proof of motor vehicle insurance).

During the October 11th traffic stop, Winterrowd produced his driver's license, but he did not produce his vehicle registration or proof of insurance. Again, Winterrowd invoked his Fifth Amendment privilege against self-incrimination and right to counsel. This time, Winterrowd was cited for failing to produce proof of motor vehicle insurance upon the demand of a police officer, AMC 09.28.030(B)(2), and for failing to carry motor vehicle registration, AMC 09.52.020.

These three charges were jointly adjudicated in a single bench trial in the district court. At his trial, Winterrowd argued that, because he was subjected to a seizure of his person within the meaning of the Fourth Amendment, and because he thereafter invoked his privilege against self-incrimination and his rights to silence and to the assistance of counsel under the Fifth Amendment, he could not be penalized for failing to produce the documentation that the officers asked him for. The district court rejected this argument and found Winterrowd guilty of all three offenses.

Winterrowd now appeals his convictions, renewing the constitutional argument that he presented to the district court.

Winterrowd is correct that a motorist who is subjected to a traffic stop is "seized" for Fourth Amendment purposes. However, not all Fourth Amendment seizures amount to "custody" for purposes of Miranda v. Arizona.[fn1] That is, not all Fourth Amendment seizures trigger the Fifth Amendment rights to silence and to the assistance of counsel recognized in Miranda.

We addressed this point of law in McNeill v. State, 984 P.2d 5 (Alaska App. 1999):

  Generally, in determining whether a person is in   custody for Miranda purposes, a court must ask   whether, "under the circumstances of the police   interaction with the suspect, . . . a reasonable   person [would] have felt free to break off the   interrogation and, depending on the location, either   leave or ask the police to leave". [quoting Long v.   State, 837 P.2d 737, 740 (Alaska App. 1992)] . . .   This wording suggests that Miranda warnings will be   required whenever a person is "seized" for   Fourth Amendment purposes, but that is not the law. The   cases applying Miranda recognize that there are   some Fourth Amendment seizures of temporary duration   — most notably, routine traffic stops and other   investigative stops — in which Miranda warnings are   not required, even though the person is temporarily   in custody and the police can properly ignore a   request that the officers depart and leave the person   alone.

McNeill, 984 P.2d at 6-7 (emphasis omitted), citing Berkemer v. McCarty, 468 U.S. 420, 439-440, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317 (1984) (holding that Miranda does not apply when a motorist is subjected to roadside questioning during a routine traffic stop); Blake v. State, 763 P.2d 511, 514-15 (Alaska App. 1988) (holding that police officers are not required to give Miranda warnings during an investigative stop unless and until the initial stop ripens into "custody" as that term is defined in Miranda jurisprudence). See also Wayne R. LaFave, Search and Seizure: Page 592 A Treatise on the Fourth Amendment (4th ed. 2004), § 9.3(b), Vol. 4, pp. 367-377.

In his reply briefs, Winterrowd asserts that he is not attempting to raise a Miranda issue. Instead, Winterrowd asserts, he is relying on the Fifth Amendment rights to silence and to the assistance of counsel that the law gives him apart from Miranda. But in roadside encounters like the ones in these cases, there is no Fifth Amendment right to silence or to counsel apart from situations of custodial interrogation as defined in Miranda jurisprudence. See State v. Garrison, 128 P.3d 741, 747 (Alaska App. 2006) (holding that, because the defendant was not in custody for Miranda purposes, the police could continue to question him despite his arguable request for an attorney).

Because Winterrowd's traffic stops did not constitute "custody" for Miranda purposes, the police could continue to ask Winterrowd to produce his vehicle registration and proof of insurance even after Winterrowd invoked his Fifth Amendment rights to silence and to the assistance of counsel — because those rights did not apply in Winterrowd's situation.

The remaining issue is whether Winterrowd, by invoking his privilege against self-incrimination, could lawfully refuse the police officers' demands that he produce his vehicle registration and proof of insurance. The answer is "no": motorists have no Fifth Amendment right to refuse authorized police requests for production of their vehicle registration and proof of insurance.

See Larkin v. Hartigan, 250 Ill.App.3d 969, 189 Ill.Dec. 630, 620 N.E.2d 598, 602 (1993) ("There is nothing unconstitutional about requiring a vehicle owner to verify [that] his insurance sufficiently meets all legal requirements."); People v. Goodin, 257 Mich.App. 425, 668 N.W.2d 392, 395-96 (2003) (motorists have no Fifth Amendment privilege to refuse to produce their driver's license, registration, and name and address).

Accord: State v. Adams, 181 Ariz. 383, 891 P.2d 251, 253-54 (App. 1995); State v. Melemai, 64 Haw. 479, 643 P.2d 541, 545-46 (1982); People v. Lucus, 41 Ill.2d 370, 243 N.E.2d 228, 230-31 (1968); People v. Samuel, 29 N.Y.2d 252, 327 N.Y.S.2d 321, 329-330, 277 N.E.2d 381, 386 (1971); Lamb v. State, 488 P.2d 1295, 1296-97 (Okla.Crim.App. 1971); Commonwealth v. Long, 831 A.2d 737, 747-750 (Pa.Super. 2003); State v. Smyth, 121 R.I. 188, 397 A.2d 497, 499-500 (1979); Banks v. Commonwealth, 217 Va. 527, 230 S.E.2d 256, 257-59 (1976).

See also California v. Byers, 402 U.S. 424, 427-434, 91 S.Ct. 1535, 1537-1540, 29 L.Ed.2d 9 (1971) (holding that hit-and-run statutes that require motorists to produce identification do not violate the Fifth Amendment).

For these reasons, the district court's judgments are AFFIRMED.

[fn1] 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).




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Bob Hurt            Blog 1 2   f  t  
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