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The Stolen Car, the Abandoned Cell Phone and Privacy

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After Adrian Samalia was convicted of possessing a stolen motor vehicle in violation of Washington state law, he appealed.  State v. Samalia, 2015 WL 968754 (Washington Court of Appeals 2015).  The court begins its opinion by explaining how the prosecution arose:Yakima Police Officer Ryan Yates was on patrol when his vehicle license plate reader indicated he had passed a stolen vehicle. Yates confirmed the vehicle was stolen by radio and then followed the vehicle that stopped shortly thereafter. The driver got out of the vehicle and faced towards Yates. The driver would not obey Yates' command to get back in the vehicle and fled. Yates pursued the male driver but he got away.Yates returned and searched the car, partly to help identify the driver. He found a cell phone on or in the center console. Not knowing who the phone belonged to, he called some phone numbers found in the cell phone's contacts section. He spoke to Deylene Telles who agreed to meet him.…

Florida Supreme Court throws out 70-year sentence for Jacksonville teen

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The state Supreme Court this month tossed out a 70-year sentence given to a Jacksonville boy who was 14 at the time he committed an armed robbery.  The defendant, now 20, will have to be resentenced, as will likely hundreds of defendants across the state who received similar lengthy sentences, according to a report in the Florida Times-Union. The defendant was arrested in 2009 for shooting a gas station owner, the newspaper reported. The boy pleaded guilty to attempted first-degree murder and armed robbery. Both are first-degree felonies with possible sentences up to life in prison. The boy in this Jacksonville Juvenile Crimes Case was sentenced to 70 years in prison. The Supreme Court ruled that the 70-year sentence for a teen was essentially a life sentence, and that went against the intent of a previous U.S. Supreme Court ruling. That decision banned life sentences for juveniles charged with any crime other than murder. When juveniles are sentenced to life in prison, a…

Clemency Sought for Prominent Florida DUI Manslaughter Convict

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It's been nearly six years since a prominent Lake County man was arrested for DUI manslaughter for the death of a 61-year-old motorcyclist returning home from Biketoberfest in Daytona Beach on his Harley-Davidson. Nearly four years into a 10.5-year prison sentence after pleading guilty to the second-degree felony, the defendant is seeking a second chance through a request for clemency from the Florida governor. The strategy could be effective for this particular individual, who was well-known and connected with his community. He served as a coach and umpire in local youth baseball games, served as master of ceremonies for the annual Teacher of the Year banquet and was recognized for a myriad of good deeds. When he was convicted, those who know him say all of that should have counted for more, and the judge should have granted more leniency. The family of the victim, unsurprisingly, disagrees, and have vowed to fight any attempt to reduce defendant's sentence.

Supreme Court takes up a replacement juve LWOP retroactivity case from Louisiana

Thoughts on Preparation for a Federal Criminal Sentencing

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This blog is probably not what you think it will be. 6:00 AM  , San Diego California…… As I go over my notes, my black cat is never far from my side.  He knows the ritual by now…….I get up and stare out the window.  And then I go out to the Jacuzzi for a half an hour.  And I think and mentally prepare. In three hours, I will be standing in my suit at the podium in front of the District Court Judge.  I would like to think that my words will make a difference.  I am told often by the judges that they do.  More than just the law, I want to feel who the client really is and to be able to and be able to share that with the court– the good mother, wife, and  good person she is who simply made one bad mistake because of severe  financial stress. The federal sentencing law says that the court must take into consideration not only the Guideline Table, but “the nature and characteristics of the…

Oklahoma Sex Offender Registry Removal

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Perhaps the harshest penalty associated with conviction of a sex crime is the sex offender registration that follows. Once a person has served any prison time, if sentenced to such, he or she must register as a sex offender for a period of time ranging from 15 years to life, depending upon the crime of which he or she was convicted. In some cases, a person received no prison time for his or her conviction, but still must register for life. The stigma associated with conviction can be difficult to bear. On a recent Oklahoma City metro area neighborhood Facebook page, a resident quickly notified other neighbors that a “new sex offender moved into the neighborhood.” Another neighbor pulled his picture from the Oklahoma Sex Offender Registry website and posted it, along with his name and address, on the page. One neighbor commented she looked up his registration and said, “He’s charged with second degree rape which I looked up and it is a little ambiguous…

The So-Called "ISIS Hacking Division"

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Many media outlets, including the New York Times reported Saturday that ISIS has released the names and addresses of 100 service members on a website and urged followers to find and kill them. It's far from certain this release has any official... [[ This is a content summary only. Visit my website for full links, other content, and more! ]]

What is the True Cost of a First-Time California DUI?

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You may have seen the billboards a couple years ago warning motorists that a DUI can cost a person up to $16,000 total. I suspect that it has gone up since then. People have asked me whether this figure is accurate and what they can actually expect to spend after a first-time California DUI conviction. So let’s do the math. Now I don’t say this next thing because I’m an attorney who is trying to solicit clients, but rather I’m saying it as an attorney who knows what to expect from the court process. Hire a lawyer. Attorneys have gone through three or more years of a law school, passed the unbelievably rigorous bar exam, and eventually become licensed to practice law in California for a reason. That reason is to go to court for people. Don’t think you can do it on your own. Having said that, attorneys can cost between $1,000 and $10,000 depending on who they are, what their reputation is, and what their experience is. You can do your own math based…

What Is Illegal Use Of A Minor In Nudity-Oriented Material Or Performance (O.R.C. 2907.323) In Cleveland?

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Defense Lawyer For Illegal Use Of A Minor In Nudity-Oriented Material Or Performance In Cleveland In Cleveland, it is a crime to photograph or transmit images of a minor in a state of nudity unless you are the child’s parent, or the material is part of a bona fide artistic, medical, scientific, educational, religious, governmental, judicial, or other proper purpose, and the minor’s parent or guardian provides written consent. Violation of Illegal Use of Minor in Nudity-Oriented Material or Performance (O.R.C. 2907.323) is a felony that includes several parts. For instance, the statute also makes it a crime for parents or guardians to consent to the photographing of a minor for uses that are not bona fide proper purposes. Finally, possessing or viewing material showing a minor in a state of nudity is a crime, unless the minor is your own child, or the material in question is part of a bona fide proper purpose to which the parents or guardians have consented. …

Minnesota Criminal Records Could Soon Move Online

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The Minnesota Supreme Court appears poised to move forward with a plan to put the majority of court records online. Currently, if you want to view a person’s criminal complaints or pending lawsuits, you have to go down to the courthouse, and you typically have to pay money to get a printout of the document. The Minnesota Supreme Court wants to move these documents online in hopes of making past criminal convictions more transparent. The move to put criminal cases online wouldn’t be revolutionary, as many states have already made these records accessible online. One such state is Wisconsin, who has a relatively easy and extensive database of statewide circuit court cases. Minnesota Supreme Court Justice Lorie Skjerven Gildea said the court will issue its decision “in due course,” but also noted the law should aspire for openness and transparency. Not All Agree Not surprisingly, not everyone is on board with making past convictions…

Withhold of Adjudication

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Erin Steele, 21, of Pompano Beach, who shot and killed her ex-boyfriend Justin Holt, 22, in 2013, has been given seven years probation on a plea bargain. Steele, Holt, and some friends had been practicing with an unloaded pistol, which a friend later loaded. Steele later picked up the pistol, aimed at Holt, and fired, killing him. Steele said that she did not know it was loaded, and there was no evidence that the shooting was intentional. Steele pleaded guilty to manslaughter with a firearm. The terms of the plea deal include seven years probation for Steele with the first year under house arrest, one hundred hours of community service, and random drug testing. She may apply to end the probation after five years. If Steele violates the terms of her probation, she faces a ten to thirty year prison sentence. Withholding Adjudication After finding a defendant guilty or after a guilty plea, the court must decide whether to adjudicate the offender guilty or to withhold…

The Day I Served A Warrant!

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The Day I Served A Warrant! At the end of my second year of law school, I did an internship at the Meigs County Prosecuting Attorney's Office.  I learned a great deal about criminal law, police procedure and had my first real taste of what it would be like to be an attorney. Near the end of my internship I was told that a wanted felon was spotted near a house.  I was also made aware that there were guns suspected to be in the house.  Meigs County Sheriff James  Soulsby formed a massive team of deputies to go to the house and arrest the suspect.  I was given the rare opportunity to "attend" the serving of the warrant.  I was provided a jacket (too small) with the word "SHERIFF" emblazoned on the back and clear instructions not to interfere with anyone or anything. The sheriff told everyone that they were to be safe and make sure no one (which included the suspect) got hurt.  It was a solemn, serious speech, not the…

A Snapshot Of Two Proposed Laws

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Via the Chron, Texas Representative Jason Villalba (R-Dallas) has introduced House Bill 2918, which would make it a crime for private citizens to photograph or record police: “within 25 feet of them a class B misdemeanor, and those who are armed would not be able to stand recording within 100 feet of an officer.” Villalba contends that while citizens have a right to photograph cops, his bill has no constitutional implications as he’s not preventing them from doing do, but just adding some definition to what constitutes interfering with police: “(My bill) just asks filmers to stand back a little so as to not interfere with law enforcement.” Meanwhile, Colorado Rep. Joe Salazar, a Democrat from Thornton, has introduced House Bill 15-1290, which: would impose up to $15,000 in civil penalties if a law enforcement officer seizes or destroys a citizen’s recording or interferes with someone trying to film them. The Colorado bill…

Why Don’t We Think Ramos Did It?

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Suppose hypothetically speaking that a six-year old child disappeared without a trace in lower Manhattan in 1979. Suppose further that there are two suspects in this disappearance. One is a mentally diminished man who worked at a local deli just a few blocks from where the boy lived. This man has several psychiatric issues and has a very low IQ, but has no history of violence either before or after the event. Suppose this man went on to live a somewhat normal life in which he raised a family in New Jersey. Suppose there is absolutely no allegation that he ever harmed anyone ever other than this one time where he brutally murdered a six-year old boy. Suppose the other suspect is the boyfriend of the boy’s babysitter. Suppose this person is a known child molester who was twice convicted of molesting children, one who was six and one who was eight. Suppose the suspect with no record, but who has an IQ of approximately 70 spent multiple hours with detectives off camera…

Woman Arrested for Allegedly Smearing Dog Feces on Neighbor

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A 57-year-old woman was arrested Wednesday after she allegedly smeared dog feces on a neighbor whose pet had defecated in the woman’s yard. The woman was charged with battery on a person 65 years or older and was released Thursday from the Palm Beach County Jail on her own recognizance. Both the women live at the Woodfield Country Club. According to an arrest report, the woman’s 67-year-old neighbor was walking her dog when the animal defecated on the woman’s lawn. The neighbor told Boca Raton police that the woman came out of the house screaming. The neighbor said she was trying to pick up after her dog with a plastic bag, but stopped when the woman began yelling at her. The neighbor apparently told the woman to clean it up herself. The neighbor then claims the woman grabbed a plastic bag, scooped up the feces and ran after her. She then allegedly smeared the feces on the neighbor. According to reports, when police arrived, the neighbor had feces on her hands…

Should prison terms end once criminals seem "too old" to recidivate?

Court Finds No Third Amendment Violation After Police Occupy Home

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Over at the Volokh Conspiracy, Ilya Somin writes about a recent ruling by a federal district court that police officers did not violate the Third Amendment when they entered the plaintiffs' home and stayed there for several hours while staking out the plaintiff's neighbor. The court's opinion can be found here.The Third Amendment prohibits soldiers from being quartered in homes during times of peace without the homeowner's consent. I blogged about this particular case back when it was filed in 2013. In that post, I noted that I did not think that the lawsuit would succeed because the police officers were not "quartered" in the home. They merely stayed in the home for several hours while conducting an investigation of a neighbor.But the district court did not even get that far, as it ruled that the Third Amendment did not apply to the officers' actions because they were not "soldiers" under the Third Amendment. While the court…

Rape Culture, Finally Defined

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A while back, I asked for a definition of “rape culture.”  It wasn’t that I was being deliberately difficult, but it was one of the fuzzy phrases thrown back at anyone who questioned anything about the alleged epidemic of sexual assault and rape.  If the reason was “rape culture,” then it was critical to know what that meant. One reaction that comes with regularity, and the anger that suggests that anyone who doesn’t grasp and embrace it is, by definition, the scum of the earth, is the phrase “rape culture.”  It’s a catch-all justification for feminists, and spit at people as if no further explanation is needed.  If one doesn’t “get” rape culture, it’s proof of their misogyny. Not only do I not get it, but I didn’t really know what it meant as it was being thrown my way.  I may be thick, but it wasn’t part of my worldview. Unsurprisingly, there was no…

Justices Kennedy and Breyer urge Congress to reform "broken" federal criminal justice system

Can I Get Arrested for Kidnapping My Own Child?

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To many people, the idea of being arrested for kidnapping their own child sounds shocking, bizarre, and even laughable.  However, parental kidnapping is a valid criminal allegation — and it’s no joke for the defendant.  On the contrary, this is an extremely serious charge which can result in a felony conviction, a permanent criminal record, and even life in prison.  In this blog entry, criminal defense attorney Darwin Overson will explain the legal consequences, your possible defenses, and the differences between kidnapping and interfering with child custody. Parental Kidnapping vs. Custodial Interference Utah’s legal term for parental kidnapping is child kidnapping.  It’s important to distinguish between child kidnapping, which is always treated as a high-tier felony, and custodial interference, which is usually graded as a misdemeanor. Child kidnapping is addressed by Utah Criminal Code…
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