Wednesday, September 6, 2017

Missouri lawyer David Shuler refuses to answer questions about my nephew's DUI case, suggesting David did a lousy job of defending a family member


Blake Shuler
Missouri lawyer David Shuler (my brother) has refused to answer questions about his handling of a case in Clever, MO, that left my nephew with a criminal record he does not deserve, under the law.

Perhaps David's reticence is understandable because the record indicates he did a piss-poor job of representing a member of his own family.

Cops pulled over Blake Shuler after allegedly observing his vehicle cross the center line a couple of times. An incident report shows that Blake failed three field-sobriety tests and was arrested on suspicion of driving while impaired. Blake agreed to take a breathalyzer test at Clever City Hall, and that came back negative for alcohol. At that point, Blake had proven to be innocent of the charge against him, and he and his passenger should have been allowed to depart, by law. But a second officer -- while Blake was at City Hall -- conducted a search of the vehicle, apparently without consent. That turned up marijuana and paraphernalia, and Blake wound up facing drug-related charges.

Probably wanting to keep the whole incident from his parents, Blake decided to plead guilty without legal representation. Somehow, David Shuler (my lawyer/brother) got involved and managed to get the guilty plea withdrawn, but Blake still wound up with a guilty plea of "peace disturbance," even though the record shows he did not disturb the peace in any way. (Blake's parents are Paul and Gaye Ann Shuler, my brother and sister-in-law, of Willard, MO; Paul is a radiology tech at Mercy Hospital Springfield, while Gaye Ann works at O'Reilly Auto Parts.)

It's undisputed that Blake proved he was innocent of driving under the influence of alcohol. As for the possibility that Blake was "driving while high," well, the cops apparently did not test for that. Perhaps their small-town department did not have ready access to the necessary tests, but it seems likely they could have arranged such testing via the Christian County Sheriff's Office. But they didn't, so alcohol was the only issue, and Blake's breath test came back negative for that.

The obvious question, then: What in the hell were the Clever cops doing searching the vehicle? The answer is: "They shouldn't have been." Here's the relevant law, from a previous post:

The United States Supreme Court (SCOTUS) found in Rodriguez v. U.S. (2015) that "a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore, “become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission” of issuing a ticket for the violation."

The Rodriguez court goes on to hold that extension of the stop beyond its traffic-violation purpose is lawful only if officers have a "reasonable suspicion" that additional criminal activity is associated with the vehicle. From the opinion: 
"We granted certiorari to resolve a division among lower courts on the question whether police routinely may extend an otherwise-completed traffic stop, absent reasonable suspicion, in order to conduct a dog sniff. . . . [W]ithout additional reasonable suspicion, the officer must allow the seized person to depart once the purpose of the stop has concluded.”

The dog sniff in Rodriguez produced more than 50 grams of methamphetamine, and the driver was charged with intent to distribute. But SCOTUS found the purpose of the stop involved an officer's observation that Rodriguez had driven on the shoulder of the road. Did the officers have reasonable suspicion of any other criminal activity, beyond the traffic violation? In other words, was there any reason to suspect there were drugs in the vehicle, justifying extension of the stop and a search of the vehicle via a dog sniff?

SCOTUS noted that the district court found "the dog sniff in this case was not independently supported by individualized suspicion" and vacated the Eight Circuit's judgment, sending the case back to lower courts for further proceedings consistent with its opinion. In essence, SCOTUS found that Rodriguez and his passenger should have been allowed to depart once the traffic warning was written.

The incident report in Blake's case shows there was no "individualized suspicion" of anything improper beyond the traffic incident. Officers apparently did not see or smell anything that made them suspect drugs might be present. In other words, they had no grounds to search the vehicle -- and that means the search was unlawful under the Fourth Amendment to the U.S. Constitution. (Incident report is embedded at the end of this post.)

David Shuler
Why didn't Blake's lawyer challenge the search, to help ensure his client didn't walk away with a criminal record he should not have? To put it simply, why didn't David Shuler fight for his client, a member of his own family? We put that question, and others, to David and received this response:

I am sorry, but I am not able to give you any information.

Here are the questions I posed to David, via an e-mail sent on August 8:

David:

I have a few questions about the Blake Shuler case in Clever, MO:

(1) Did you challenge the search of Blake's vehicle? I haven't yet found case law directly on point, but it seems questionable that cops would take him to city hall and administer a breath test that proved he was innocent of driving while impaired -- but they proceeded to search his vehicle anyway, while he was gone and apparently didn't give consent. (Note: This question was posed before I found information about the Rodriguez case.) Police reports indicate Blake was proving his innocence on the "suspicion" of DUI charge, while they searched his vehicle and came up with drug material to charge him with something anyway. Smells funny from here. Seems to me the second cop jumped the gun by searching the vehicle. If he had waited a few minutes for the test results, he would have learned Blake was innocent of the charge and there was no probable cause to search. Why weren't Blake and his girlfriend sent on their way, with no charges?

(2) Did you challenge the field-sobriety tests? My understanding is these often are conducted improperly and get false results. The police report says Blake failed three tests, but it doesn't say what they were or what pointed to him failing them. It's sort of "trust me" police work, but police aren't the most trustworthy people around, as perhaps you are aware.

(3) The record indicates Blake pleaded guilty to "peace disturbance." Why? I see nothing in the reports that indicate he was loud, disrespectful, or disturbed the peace in any way.

I've read the record thoroughly, and it appears Blake was proven innocent of DUI, was the victim of a dubious search, and pled guilty to something he didn't do? Is that an accurate assessment of what happened?

Yes, that is an accurate assessment of what happened, and it shows David Shuler did a lousy job of representing his client. Blake Shuler proved his innoence on the alcohol charge, and the cops' own incident report shows he did not disturb the peace. But Blake wound up with a criminal record because his lawyer failed to challenge a clearly unconstitutional vehicle search.

If I were in David's shoes, I wouldn't want to answer questions about this case either.





21 comments:

Anonymous said...

If I were the lawyer for a client who pled guilty to something he didn't do, I wouldn't want to answer questions about it either.

Anonymous said...

Your nephew probably doesn't realize he's been screwed.

legalschnauzer said...

@12:36 --

You're probably right. I doubt Blake understands what happened to him -- unless he reads my blog, which he should. As should all right-thinking 'Mericans.

Anonymous said...

O'Reilly Auto Parts? I go there all the time. Your sister-in-law sells auto parts? Sounds like my kind of gal.

legalschnauzer said...

O'Reilly has stores all over the country, I think. Their HQ is here in Missouri. I think she works in corporate office, accounts payable. She still might be your kind of gal, though. Who knows?

Anonymous said...

Sounds like your brother was doing this one "pro bono," so he didn't put much effort into it.

Pickle said...

I'm sure your brothers must be delighted about your coverage on this topic.

legalschnauzer said...

Pickle:

Hah! You are probably right, although I don't know what (if anything) they think about it. If you stay in journalism very long, you learn quickly not to worry too much about those kinds of things.

Anonymous said...

You make a note in question #1 that, "Note: This question was posed before I found information about the Rodriguez case", yet you made mention of Rodriguez in reference to Lt. Dehart's traffic stop on April 22, 2015. Blake's incident report was dated in March of 2016. So, I have to question why you were unaware of Rodriguez when you sent the questions to your brother. Of course the stop wasn't extended unreasonably, so Rodriguez wouldn't apply. Did the officer have consent of the girlfriend, did the officer search incident to an arrest, did he see the drugs while standing outside the vehicle? Truth is, you don't know and that creates a problem. You can't say that just because your brother doesn't want to answer your questions, then he must be hiding something. It is just as likely that Blake and David know something you don't and don't want to talk to you about it. That is their right.

Anonymous said...

If I were your brother, I would not have given you any reply at all. You are obviously a total nutcase.

legalschnauzer said...

@4:54 --

1. David gave no substantive reply, other than to say he wasn't going to reply, so the two of you are in the same boat. Not sure why you see his response as different from what you would have done.

2. People throw terms like "nutcase" around so much, that I'm not sure they even know what the term means. I'm always amused to learn that an individual who claims someone else is a "nutcase" voted approvingly for Donald Trump. Anyway, out of morbid curiosity, what makes me not just a nutcase, but a "total nutcase." I wrote something you disagree with? That's all it takes? You think the search on Blake Shuler's vehicle was proper? How do we not know you aren't a "total nutcase," and you are just projecting that image onto me? I can't wait to find out.

legalschnauzer said...

!. Do you remember the name and holding of every U.S. Supreme Court case you've ever read about? I don't, so the possible application of Rodriguez case to the little matter in Clever, MO, did not occur to me at first. When I started researching the issue of extended traffic stops, up popped Rodriguez, and I thought, "Hey, this case sounds familiar," and it was. But I hadn't completed my research at the time I wrote the e-mail to David -- and I say that in the second sentence of the e-mail, so I'm not sure why you have a question about it. Maybe you have a phonographic memory, and I don't.

2. We've had this same conversation before, so I'm not sure why you keep writing back to claim Rodriguez doesn't apply when it clearly does. The SCOTUS opinion is not just about extension of a stop, it's about lacking reasonable suspicion to conduct a search. The opinion holds: "[W]ithout additional reasonable suspicion, the officer must allow the seized person to depart once the purpose of the stop has concluded.” That didn't happen with Blake. The opinion further holds: "the [search] in this case was not independently supported by individualized suspicion" and vacated the Eight Circuit's judgment. The search in Blake's case was not "independently supported by individualized suspicion" either, so it was unconstitutional.

3. This isn't complicated stuff. Your argument that Rodriguez doesn't apply, which you've made over and over, simply does not hold water. I would suggest you try actually reading the opinion. If you have read it, you need to read it again.

4. You claim I don't know about certain possibilities? Actually, I do know because I've read the incident report. It makes no mention of an officer seeing drugs, or a girlfriend giving consent, etc. You act like I'm just guessing, but I'm going word-for-word by the incident report -- using the officers own words. And they say nothing about any of your imagined scenarios.

5. I didn't say David is hiding something. I said it's understandable that he doesn't want to address questions because the record shows his client wound up with a criminal record for something he didn't do -- and I would say that's pretty poor lawyering, when the search clearly was unconstitutional -- based on the words of the cops who conducted it.

6. My concern is that David knows something Blake doesn't know. Lawyers keeping stuff from their clients is very common. I know that Blake got royally screwed, and I doubt he fully understands that. He probably thinks David did him a favor, and the record and the relevant law suggest that isn't the case.

7. I agree that David and Blake have every right not to take questions, and I've never suggested otherwise.

8. Bottom line: You are wrong about "Rodriguez." Until you come to grips with that, your comments on this matter will remain deeply flawed.

Anonymous said...

If David Shuler, or any real lawyer, had gone to Clever, MO, and threatened a federal lawsuit about an unconstitutional vehicle search, the municipal judge, the police chief, the cops . . . they all would have soiled themselves. It also would have pissed off the entire law enforcement community -- and maybe quite a few lawyers -- and David wasn't willing to ruffle those feathers.

He sold his nephew down the river to maintain his nice cozy place in the courthouse tribe.

Anonymous said...

That cops only searched Blake's vehicle while he was away raises concerns about the drugs being planted. They might not have been planted in this case, but that concern is a reason why the vehicle owner/driver should always be present while the car is searched. Also, cops are not above stealing items of interest during a search.

If I were taken for a breathalyzer and then returned to find my car had been searched, you could bet I would raise holy hell. But I'm a 40-plus male, and Blake appears to be about 20. The cops just took advantage of a young guy and his date.

It's extremely poor form to take the driver to another location and then search his vehicle. That alone should have been grounds for releasing Blake from all charges. This should have been an easy case for your brother -- if he cared at all about his nephew -- but he didn't want to put forth the effort.

legalschnauzer said...

@6:47 --

Points well taken and stated. Funny you should mention the possibility of theft when cops search while the vehicle owner is at another location. The Clever police chief has been charged with helping his brother steal some $27,000 from the nearby city of Miller, MO.

http://www.news-leader.com/story/news/local/ozarks/2017/08/25/clever-miller-police-chief-brothers-worked-together-steal-city-money-troopers-say/602337001/?cookies=&from=global

Perhaps Clever officers would be better trained if their own chief wasn't so busy stealing money himself.

Anonymous said...

I have read the case and understand it very well. You seem to think it was a question about a search, but it wasn't. It was a question about unreasonable extension of the stop without reasonable suspicion. They actually had probable cause to search Rodriguez's car because of a dog sniff that alerted on the car. The problem is they extended the stop to long to get the dog there. It wasn't reasonable to have him detained when the stop should have been over. And I remembered the fact that you wrote an article about it and did a quick search on your blog to verify. So if I had written an article myself, I'm pretty sure I would have remembered it too. At least Rodriguez almost fits your original post about it, even though no judge would rule handing you a court paper with the warning was an unreasonable extension. The incident report says it was located, but without more information we don't know how it was located. Maybe it was an unconstitutional search, but you can't rule out the others. Of course you can't admit that it may have been a legal search because you can't admit your biased against the police. If you weren't biased maybe you would write something like, "I believe there is a strong likelihood that the search was unconstitutional, but without more details it's hard to say." You also seem to forget that Blake's girlfriend was still with the car. Or did she disappear from the scene. The report doesn't mention where she went so let's assume aliens abducted her.

legalschnauzer said...

@9:36 --

Still clueless, as usual -- and I sense that's never going to change. Just one example of your cluelessness is this statement: "They actually had probable cause to search Rodriguez's car because of a dog sniff that alerted on the car." There is nothing in Rodriquez that says that, and there is nothing about probable cause; the standard is "reasonable suspicion," and the trial court found there was no reasonable suspicion. The appellate court failed to review that issue, so SCOTUS sent the case back for determination on that issue. You can't even get the basics right.

As for the DeHart situation, you have no idea what a judge might rule. And extension of time was not the only issue there. A traffic stop cannot be extended, even for one second, absent reasonable suspicion of criminal activity related to the vehicle. DeHart's own actions show there was no suspicion of criminal activity. We were going to the frickin' library -- a known den of criminal activity. Again, your lack of understanding about the law is glaring; it should, however, qualify you to be a cop.

I don't have to hem and haw about whether it was lawful search because I did the leg work to get the incident report, and it shows it was unlawful. You don't like what the law says, and you don't like what the incident report says, so you claim I'm biased against cops.

I guess you support the Clever PD chief who is charged with stealing public funds? What's his name, Randall Bruce? You support alleged thieves, I presume?

As for Blake's girlfriend, she wasn't the driver, she didn't own the vehicle, and she wasn't charged with anything . . . so, why does her presence around the vehicle matter?

It's clear now that you are one of these types who makes excuses for corrupt cops. That explains your refusal to read, learn, and understand. Thanks for outing yourself.

Anonymous said...

@9:36 --

You don't know the meaning of the word prejudice. It is to pre-judge, it's "preconceived opinion that is not based on reason or actual experience."

I read this blog regularly, and I know its author has plenty of experience upon which to base his opinions about cops. That's not prejudice; it's sound judgment, based on first-hand knowledge.

Anonymous said...

The breathalyzer coming up ZERO doesn't not prove your nephew was not DUI. He was probably high. And no, police do not release impaired drivers after they "pass" the alcohol breath testing phase. They cannot legally or in good conscience release a driver they know to be impaired by something. The officer used the Field Sobriety Test to conclude that Shuler's nephew was impaired by something. The breath alcohol test just showed that he wasn't impaired due to alcohol. Probably pills and weed.

legalschnauzer said...

@10:25 --

Thanks for one of the funniest comments I've ever read. I notice you provide zero citations to law to support your claims, and that surely is because there is no law to support your claims. Drivers are detained because cops "know" they are impaired by something? Drivers are detained because they "probably" are impaired by pills and weed, although cops can't even provide probable cause of such impairment? That you apparently wrote this comment with a straight face, shows you must be one of the most ignorant people on the face of the planet.

Let me guess? You're a lawyer. Hah!

legalschnauzer said...

@10:25 --

BTW, if you had bothered reading the incident report, you would have seen the last sentence in the next-to-last paragraph:

"I told Schuler (sic) he was free to leave, and he exited the scene."

I'll be darned, they let him go, even though they "knew" he was impaired, "probably" on pills and weed. And you claimed, by law and as a matter of conscience, they couldn't do that. The record shows they did exactly what you said they couldn't do.

Need something to fill up that empty space between your ears? Hah!