The Fourth Amendment to the Constitution was a response to the British government’s abuse of writs of assistance. These writs served as a general type of search power allowing British soldiers to go onto any property without cause. Any place could be searched at the whim of the holder, and searchers were not responsible for any damage they caused, thereby putting anyone who held such a writ above the law. The Fourth Amendment engrained a unique principle of free people [Read the full post. . .]
The Erosion of the Fourth Amendment
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Beste Jurablogs 2014
Regelmäßige Leser der Strafakte werden es schon bemerkt haben: Mit einem eigentlich nicht zu übersehenem roten Banner wird hier seit gestern auf die Abstimmung zu den besten JuraBlogs 2014 hingewiesen, die vom Kartellblog gestartet wurde. Für die Strafakte als „Newcomer“ unter den JuraBlogs ist es schon eine Anerkennung, überhaupt für diese Wahl vorgeschlagen worden zu […]Original: Beste Jurablogs 2014
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Pennsylvania Supreme Court Rejects Search of Automobile
The Supreme Court of Pennsylvania recently reviewed a case involving “live-stop” procedures. A police Corporal in Harrisburg, PA initiated a vehicle stop after the defendant was observed entering the flow of traffic without using a turn signal. The vehicle, driven by the defendant, pulled over and came to rest with the passenger side tires close to the curb so that the vehicle was not blocking traffic or causing a safety hazard. The defendant was found to be driving under a suspended license and without the required emissions sticker.
The defendant was placed under arrest and the Corporal initiated the inventory policy of the vehicle because the vehicle was to be towed under a “towing policy” of the police department. The defendant indicated that his friend drove a tow truck and could take possession of the vehicle. The Corporal eventually searched the trunk of the vehicle discovering two guns.
After review, the Supreme Court of Pennsylvania held that the Corporal had no basis to tow the defendant’s vehicle since it was not blocking traffic or creating a safety hazard. Therefore a search of the vehicle for inventory purposes was improper and the evidence of the weapons was to be suppressed.
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Trial Priority for DWI Cases and Motions to Dismiss
Deep in the statutory woods of the law allowing the seizure of motor vehicles driven by certain impaired drivers is a provision setting trial priority for the underlying criminal charges. G.S. 20-28.3(m) requires that district court trials of impaired driving offenses involving forfeiture of motor vehicles be scheduled on the arresting officer’s next court date […]
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New law review article on facial recognition technology
Kirill Levashov, Note: the Rise of a New Type of Surveillance for Which the Law Wasn't Ready, 15 Colum. Sci. & Tech. L. Rev. 164 (2013):
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What Should I Do if I am in a Car Accident in South Carolina?
If you are in an accident the first feeling you have is usually one of panic. It is a very nerve wracking experience and can be very disorienting. However it is important to know what to do if you are in an accident. A good habit is to keep your insurance card and registration […]The post What Should I Do if I am in a Car Accident in South Carolina? appeared first on .
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"Are there no limits on Second Amendment rights?"
The title of this post is the title of this new entry by Lyle Denniston at the "Constitution Daily" blog of the National Constitution Center. After I reprint some excerpts, I will explain why I see more limits on Second...
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D.Minn.: A warrant to seize DNA includes the ability to test it.
Defendant’s motion to suppress to prevent DNA testing of a sample taken from him to match to a firearm already seized is denied. All that’s required in the Eighth Circuit is there be a connection alleged between the two. A warrant to seize DNA includes the ability to test it, and the warrant is not contested. United States v. Spight, 2013 U.S. Dist. LEXIS 182743 (D. Minn. December 19, 2013):
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Watch Your Driving Pattern - officers are standing by to stop you for no real reason!
The roads are slick out there these days. So slick that our "driving patterns" may provide just the "suspicion" needed to stop and check to see whether we have been drinking and driving. I have some experience with this over the past few weeks - and in two cases, charges of driving under the influence (DUI) have ultimately been reduced.
In the first case, officers at a one-car rollover accident found a prescription medication in the crumpled skeleton of a small sedan and concluded that the driver must have "over-corrected, gone out of control and rolled into the median" because he was under the influence of a prescribed medication. They came to this conclusion without the benefit of any test, and charged him with DUI.
Their real "proof" of impairment was his speech. After rolling his car and having been taken by ambulance to a hospital, he "seemed confused." Did they consider the fact that he had suffered a concussion and serious injuries? No. Was there any proof that he had taken the meds recently, or in an amount that would interfere with his ability to drive? No. But charge him they did, and now his record will forever reflect that he was a defendant in a criminal case charging him with DUI.
Come on - let's use a little common sense. How about not presuming that everyone who rolls his car on slick roads must be drunk or using some medication to excess. Cops and prosecutors should be able to apply their own life experiences to situations such as this one and admit that sometimes a roll-over is just a roll-over.
In the end a prosecutor decided to reduce the charge to careless driving. Had we gone to trial, my client was was headed for an acquittal. After all - there was absolutely no proof that the driver had been under the influence of any medication. The driver was out the time and expense of dealing with the baseless charges, but that did not really seem to matter to the officer or the prosecutor.
Here's the bottom line: any "driving pattern" that looks careless - like sliding around a frozen corner, or not fully stopping before entering a road from a parking lot - can be the basis to stop you, and "check" on your sobriety.
And even if officers do not find evidence that alcohol has impaired your driving, beware that lack of common sense.
Consider the facts of a local case related to me yesterday: an employee who is sick and headed home for some couch time drives out of a parking lot to be stopped for "swerving." This happens in the afternoon - so the automatic probable cause for driving after midnight will not apply. Employee has not been drinking and is not under the influence of anything more than influenza. Officer says employee must be on some medication. Employee insists he is sick and asks to go to the ER. Cop insists on a blood draw - to "prove" that he is right and this driving fool must be intoxicated and on something. Officer performs field sobriety tests and arrests employee, who is booked and has to bond out and hire a lawyer.
And all of this without so much as any evidence that employee is operating his car under the influence of anything. Employee will spend hours of time and a thousand bucks or more to prove his innocence.
This is not the way the law is intended to work.
Police officers should not stop you "just because." They should not be trained to assume anyone who swerves is under the influence. And we should not have to prove our innocence. They should treat us like they would want to be treated if stopped for no real reason.
So be careful out there. Watch your driving pattern. Be patient with officers who insist you are wrong because your day will come. But if you are innocent - insist on preserving your rights.
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Mayor Indicted for Allegedly Submitting False Documents to Lender
Mayor Eldridge Walker is facing charges following indictment by a Sharkey County, Mississippi, Grand Jury for his alleged role in submitting false documents to Federal Home Loan Bank. The Mayor of Rolling Fork, Mississippi, was arrested by investigators with the Attorney General’s Consumer Protection Division following indictment by the Sharkey County Grand Jury on two […]
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Monmouth County DWI Defense: Exploring Various Aspects of a Typical Drunken Driving Arrest
Being stopped by a New Jersey State Police officer or local cop for a traffic offense can be unnerving enough for most people without the added concern of being arrested for DWI. As Garden State drunken driving defense lawyers, my firm is all too aware of the emotions that can come to the surface when faced with a summons for driving under the influence. Often frightening, and certainly unsettling, the experience of being taken into custody is only overshadowed by the potential financial impact that a DWI or drug DUI conviction can have on an individual or his family.
The state of New Jersey has long since banned plea bargaining as a common avenue to having a drunk driving charge dismissed or downgraded. Because of this, many people might wonder why they should even consider retaining a DWI attorney at all. First and foremost, an experienced legal expert can look for flaws in the state's case, which can range from the way the police officer conducted the traffic stop prior to the DWI arrest, to the procedures followed or skipped after the driver submitted to a breathalyzer device in order to determine his or her blood-alcohol concentration (BAC).
When asking why one should hire a lawyer for a DWI or drug DUI defense, it may be more important to ask what the secret to success is when it comes to avoiding a conviction. At the very least, someone accused of driving drunk should contact a qualified professional to determine if fighting a drunk driving summons would be fruitful or if a downgrade is possible. In our experience, identifying any potential issues that may undermine the state's ability to prove the DWI-DUI offense is a key objective when discussing a defendant's options going forward.
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Road Closure on US95 near 467
IDAHO STATE POLICE NEWS RELEASE - generated by our News Release ListServer
DO NOT REPLY
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Idaho State Police
Regional Communication Center - North
615 W Wilbur Ave
Suite A
Coeur d'Alene, Idaho 83815
Please direct questions to the appropriate District Offices
District 1 (208) 209-8620 Fax (208) 209- 8618
District 2 (208) 799-5150
--------------------- PRESS RELEASE -----------------------------
DATE: 01/09/2014 TIME: 7:43 AM LOCATION: US 95 @ 467
ASSISTING AGENCIES: Bonner County
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INCIDENT NARRATIVE: US 95 will be closed in both directions for an undetermined amount of time due to a crash at mile post 467.
DSP INITIALS AHR
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Miranda rights and questioning: when it applies – part 2 of a series
In part one, I discussed what the law of the 1966 Miranda decision requires when a person is being questioned by police. In this part, I’ll explain when the police are even required to read your rights. First – Custody The whole decision of the Miranda case dealt with custodial interrogation. That means that the police are [...]
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Der NSU-Prozess als Film
Am 6. Mai 2013 begann in München der größte Strafprozess in Deutschland seit der Wiedervereinigung. Eine Frau und vier Männer werden beschuldigt, die terroristische Vereinigung NSU gegründet oder unterstützt zu haben — eine rechtsradikale Gruppe, die 10 Menschen ermordet, zwei Sprengstoffanschläge verübt und 15 Raubüberfälle begangen haben soll. Das Verfahren wird voraussichtlich mehr als zwei […]Original: Der NSU-Prozess als Film
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Overcriminalization and tort reform: No easy choices for conservatives
Yesterday, Grits attended a panel at the Texas Public Policy Foundation's annual Policy Orientation (a multi-issue conference sponsored by a conservative think tank in Austin) on the topic of "Overcriminalization." Attendees were treated to one of the more productive, frank discussions of the topic among ideological conservatives I've run across, maybe ever.Shannon Edmonds of the Texas District and County Attorneys Association said the fundamental problem is that the Texas Legislature is "addicted" to creating new crimes and boosting penalties for existing ones, joking that, “Admitting you have an addiction is the first step on the road to recovery.” Since 2005, he said, the Texas Lege has created 233 new crimes, by his count:'05: 49'07: 50'09: 40'11: 53'13: 41TDCAA doesn't include in that count new ways to commit old offenses or so-called "enhancements" that merely increased penalties. These are all activities that were legal before and illegal now - an average of 47 new items per session. After Texas revamped its Penal Code in 1993, there were 160 enumerated crimes on the books, Edmonds told the audience. Today, there are around 225 crimes in the Penal Code, said Edmonds, and more than 1,500 in other parts of the law. The Occupations Code alone now contains more crimes than did the entire Penal Code 20 years ago. If you want less government, Edmonds told the crowd, the Legislature can't keep giving the government more and more things to do.Paul Larkin of the Heritage Foundation aptly noted that "overcriminalization" has several components, occurring when there are too many laws, when laws have too severe a penalty, as well as when the state uses criminal law as a regulatory device. In many cases, he said, the state has criminalized behavior that historically society has not considered "blameworthy," often to protect "rent-seeking activity." In essence, he argued, one way to enlarge the scope of your business is to make it a crime for other people to compete with you.Larkin suggested four, related responses aimed at reducing overcriminalization. 1) Don't pass new criminal laws. 2) Cull unnecessary statutes. 3) Only criminalize "willful" behavior, buttressing the concept of mens rea, or criminal intent. And finally, 4) allow a mistake of law to be raised as a defense in situations where no reasonable person would know a particular act is a crime. For example, he said, everyone knows you can't rob, rape, murder, but not everyone knows what items they throw in the trash may qualify as hazardous waste.Problem is, society still needs ways to disincentivize disposal of hazardous waste. That essentially leaves two options: Regulatory enforcement and civil litigation, both of which conservatives traditionally have railed against with even more fury than "overcriminalization."State Rep. Bryan Hughes, while acknowledging that, in the tort-reform era, he was “wandering off into traffic,” proposed what he called a “wonderful solution” to overcriminalization problem: Bolstering rights under the 7th Amendment to the US Constitution to sue over torts in civil court. Regrettably, there was no one in the room from Texans for Lawsuit Reform to rebut that suggestion, which incidentally was echoed by TDCAA's Edmonds. I'd have loved to hear their reaction to the idea.There's a certain historical symmetry to the notion of reinvigorating private litigation to reduce overcriminalization. It's a relatively modern concept that, as Edmonds put it, crime victims get "free lawyers," which we call "prosecutors." Under 18th century English common law, as noted by David Friedman, "Prosecution of almost all criminal offenses was private, usually by the victim. Intermediate punishments for serious offenses were strikingly absent" and there were "no public officials corresponding to either police or district attorneys." Though by 1820 most US states had some form of public prosecutor, "privately funded prosecutors constituted a significant element of the state criminal justice system throughout the 19th century," historian Robert Ireland has written. Indeed, he noted, there is evidence that railroad companies hired some of the prosecutors who secured the conviction of Frank James for murder and train robbery.Certainly the modern practice of having public prosecutors employed by the state evolved for good reasons: For example, public prosecutors are (supposedly) bound to presume a defendant innocent until proven guilty, while private prosecutors were paid to assume the defendant guilty and seek a conviction. But when we're talking about crimes lacking mens rea - essentially torts that have been criminalized - the legacy of private prosecution may still have value. That's especially true in instance where criminal law is used to bolster rent seeking activities and/or commercial interests. Arguably, some of these "offenses" should be handled by private attorneys in civil courts.Rep. Hughes offered an anecdote showing how the use of criminal law in commercial disputes can distort justice, describing a constituent of his named “Brenda” who bounced a check for $410 in 2004. She was prosecuted, appointed a state-paid defense lawyer, and received deferred adjudication probation, which required payment of probation fees, fines, etc.. In 2008 she lost her job, quit paying her probation fees, and stopped attending required meetings with her probation officer. Her probation was revoked and she was sentenced to 18 months in state jail, Hughes said. The irony, though, was that over course of her sentence she had paid thousands of dollars in probation fees to the state, but none of the money went to the business to whom she bounced the check. (The use of prosecutors' bounced check divisions is particularly insidious when they're employed on behalf of payday lenders, a topic The Texas Observer has explored and this blog has deplored.)The conservative movement, though, has a fundamental dilemma if they hope to address overcriminalization. Promoting "tort reform" has been a huge source of campaign funds for conservative candidates, who have also historically fought new regulations on behalf of business-oriented constituents. However, that doesn't stop other, more numerous constituents from looking to government for "justice" when they've been wronged, which is why such regulations end up in the criminal code instead of being enforced by regulatory bodies or resolved through civil lawsuits.Panel moderator Vikrant Reddy mentioned the absurdist Politifact fact check of a Grits for Breakfast claim that there are eleven different felonies in Texas you can commit with an oyster. (Politifact said it was "mostly true" because it might be 16, or seven, depending on how one counted them.) All those oyster laws are items that could and should be handled more effectively either through regulations or in civil court. (Most of them have never been prosecuted.) But when conservative politicians reflexively oppose business regulation and neuter the civil courts, people are going to seek redress somewhere. However absurd and ineffectual, creating new criminal laws allows politicians to claim they're "doing something," even it it's mainly symbolic.When Republicans were the minority party, they could advocate "less government" as a general meme on all fronts and no one thought much about it. But now that they control all three branches of Texas state government, when the public seeks redress of their grievances by the government, politicians can't say "no" to everything. Sue in civil court? No, we'll limit damages through tort reform. Regulation by state agencies? No, it would make businesses inefficient. So if conservatives also want to fight "overcriminalization," what means are left for government to respond to the concerns of constituents? Incumbent politicians don't get to just tell them, "Sorry, you're screwed." Not if they want to stay in office.I agreed with almost everything said yesterday about overcriminalization, but in the end conservatives are confronted with hard choices. Government would surely be "smaller" if more disputes were handled in civil than criminal courts. But going that route would inflame powerful constituencies. The principled path is seldom the easiest one.MORE: See quotes culled from yesterday's event on the Right on Crime Twitter feed.
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Just Security: Can We Do Without National Security Letters?
Just Security: Can We Do Without National Security Letters? by Julian Sanchez:
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WaPo: Utah lawmakers quietly roll back asset forfeiture reforms
WaPo: Utah lawmakers quietly roll back asset forfeiture reforms by Radley Balko:
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Politico: Feds try to block NSA plaintiffs
Politico: Feds try to block NSA plaintiffs by Josh Gerstein:
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Same Person. Different Attire.
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Why Answer?
Nils Jansen, The Idea of Legal Responsibility, O.J.L.S. (forthcoming, 2014) available at SSRN.Anthony SebokProf. Nils Jansen’s new article, The Idea of Legal Responsibility, is an ambitious work of tort theory. Jansen engages some of the most basic questions of private law. The article’s rewards are found on two levels. First, the argument it propounds—that responsibility in tort can be usefully (if not exclusively) framed in terms of restitution– is intriguing and offers another take on corrective justice. Second, the [...]
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