IAC found for failure to argue on appeal a preserved issue that would have prevailed

Defense counsel at trial preserved the issue for appeal that defendant’s jaywalking stop did not justify a frisk for weapons. Appellate counsel overlooked the issue, and defendant would have prevailed on that appeal issue. Taylor v. State, 234 S.W.3d 532 (Mo. App. 2007):

It is possible here, as apparently occurred with Taylor’s appellate counsel, to fail to recognize the significant distinction between this case and a Terry case, which necessarily involves a reasonable suspicion of criminal activity. See United States v. Childs, 277 F.3d 947, 952-53 (7th Cir. 2002) (en banc) (traffic stops based on probable cause are not Terry stops). Nothing about the act of jaywalking suggests that a subject must be investigated for criminal activity, or may be armed and dangerous. “A traffic stop is not investigative; it is a form of arrest, based upon probable cause that a penal law has been violated.” United States v. $404,905.00 in U.S. Currency, 182 F.3d 643, 648 (8th Cir. 1999).

At the 29.15 hearing, Taylor’s appellate counsel stated that, “based on a Terry stop that you can at least stop and question somebody, I thought that, you know, it looked like he was–he’s being stopped, then he volunteered he had the crack pipe.” Counsel said, “I just couldn’t see where I could make an argument.” It is not really clear why counsel thought there was no argument here. Perhaps counsel erroneously thought that jaywalking, a traffic violation, constituted “criminal activity” warranting an investigation and a concomitant frisk. Perhaps more likely, counsel overlooked the fact that the record makes clear that the officers had already informed Taylor they were going to frisk him, and had him up against the police car, with his hands on the police car, when Taylor “volunteered” the information. Whatever the case, the comments of counsel suggest that because Taylor indicated to officers (after they ordered a frisk) that he had a crack pipe, counsel decided there was no argument to be made.

Although counsel was an experienced and able appellate attorney, this decision was seriously and uncharacteristically faulty, and beneath the level of expertise expected from a reasonably competent attorney. Both logic and law would indicate that the justification for the stop and frisk had to exist before the frisk was ordered and Taylor acknowledged having the crack pipe. See David, 13 S.W.3d at 311. Because Taylor volunteered the crack pipe only after the police ordered the frisk, the admissibility of the evidence would rise or fall according to the reasonableness of the frisk under the circumstances.

. . .

A successful appeal on the issue of the lawfulness of the frisk would have effectively excluded all physical evidence and all statements made by Taylor once he was impermissibly seized. A successful appeal of that issue would have left the prosecution with nothing to prosecute and, thus, would have resulted in the dismissal of the charge and the discharge of Taylor.

Eyewitnesses to a boating accident provided officers with information used to stop the defendant in his boat because it was believed he might be in need of assistance. Thus, the community caretaking function applied to the stop. He was charged with felony boating under the influence as a result. Castella v. State, 959 So. 2d 1285 (Fla. App. 4th Dist. 2007):

Instead, the individuals in this case simply indicated that Castella had been involved in an accident, not that he in any way had caused the accident or committed a criminal or boating infraction. As such, rather than investigating criminal activity based on face-to-face interaction with individuals who left as quickly as they came, law enforcement in the present case undertook its public safety function in the wake of a reported tragedy. As such, based on the face-to-face interaction between the individuals and law enforcement officers in this case, fulfillment of a civic duty to provide an eyewitness report of a boating accident, and the exigencies of investigating a possible emergency situation, we conclude that, in light of the totality of the circumstances, the individuals in this case were citizen informants upon whose information the deputies were entitled to rely without further corroboration when stopping Castella’s boat.