Well, it's St. Patrick's Day, again; and what better time to remind all those planning to enjoy their green beer and Irish whiskey to be sure they also have a sober ride home following the revelry. The fact is, at least here in the Garden State, no good time goes unpunished. With the continuing battle against drunk driving, you can be sure that the state patrol, as well as county and local police agencies will have their officers plying the roadways and looking for drivers who can't seem to follow our state's traffic laws. We say this because, as New Jersey drunken driving defense attorneys, we know that the law does not allow a police officer to stop a motorist solely on the hunch that he or she may be intoxicated. A hunch is not a legitimate reason to stop a motorist, regardless of whether or not that a driver is inebriated or otherwise impaired by alcohol or some other substance. Even if a motorist is under the influence of beer, wine, hard liquor, doctor-prescribed meds or illicit drugs, such as marijuana or cocaine, a patrolman can only stop a vehicle if he has observed a traffic offense or some other type of motor vehicle violation. Naturally, it doesn't take much to initiate a traffic stop. Drifting into another lane, however briefly, could trigger a traffic stop, was can exceeding the speed limit or making an illegal turn. Whatever the situation, if a driver has been drinking prior to the traffic stop, there could be a DWI arrest waiting for him just around the corner. And if charged and subsequently convicted, there could be hundreds or thousands of dollars in fines, court fees and statutory penalties. As we said, it's best not to tempt fate on this favorite of Irish holidays and leave the driving to a teetotaler.

No, we're not leaving. We're expanding, in a way. One of the reasons I've been short on blogging the past month is that I've been busy designing and creating a new version of... [[ This is a content summary only. Visit my website for full links, other content, and more! ]]

Edwin Ernesto Rivera Gracias, a national from Salvador, was named on the FBI's Ten Most Wanted Fugitive list Thursday, in connection with the murder of a Colorado man was on Thursday. Gracias is accused of killing 69-year-old Richard Limon in...

As a kid, Christmas was a big deal. I couldn't wait for those gifts. Sure, I was guilty of a little house snooping, Nancy Drew style. But my parents were always one step ahead, and I never caught a glimpse of the unwrapped packages. Even as adults, we can get a little anxious for packages to arrive. That's especially true of our friends that await drug shipments. To them, it's like Christmas, all over again. No, I don't know this from personal experience, but after defending criminal cases for 20 years, you start to see patterns in behavior. Today we're going to review one of my favorite cases involving the possession of a controlled substance. The principles of law we're reviewing today apply to all drug cases in the State of Florida, fyi. In the case of State v. Snyder, Snyder knew his friend Parker had some drugs being delivered via the postal service, so he decided to join in the fun. 635 So.2d 1057 (Fla. 2nd DCA 1994). Like giddy little kids, Snyder and Parker went to pick up Parker's package full of drugs from the post office. They couldn't wait to do some lines of, in this case, methamphetamines. So, why wait till you get home? They took the package back to their car, butsted it open, and Parker created a few lines for the friends to share...The reason Snyder is a "favorite" case of mine is because the case clarifies many points that prosecutors don't want to hear. [Yes, this is the second time I've mentioned this case, but we're coming at it from a slightly different angle today.] Back to the story. So, Snyder is ready to do a line of Parker's drugs, but the cops show up before the two friends ever have a chance to snort the drugs up their noses. Now, because Parker offered a hit of his drugs, Snyder admitted to police that he was ready to do a line of meth. The problem is, Snyder never got his chance. You see, his friend Parker was the owner of the drugs. His friend Parker was the recipient of the package full of meth. So, Snyder was only going to get to "possess" the meth so long as his friend Parker would let him. As chance would have it, the police arrived before he ever got his chance. Thus, Snyder's criminal defense attorney filed a Motion to Dismiss based upon lack of facts to establish constructive possession (more on what that means later).

We were contacted this very morning (Sunday- yes we see clients on Sundays) by a poor guy that was stopped while driving his truck because his fender was hanging too low. Deputy Doughnut smelled alcohol on his breath and demanded the fields (which you do not have to perform). Following the fields, which the accused thought went well, the accused was arrested. At the police station he blew a .06 and was charged with DWI, (driving while impaired). He has two questions: 1. How can I be arrested for DWI while blowing under the legal limit of .08? 2. Did my number get lower as a result of exhaling or breathing out my nose and mouth? As we know from my numerous earlier posts on the subject, you can and will be arrested even for blowing a low blood alcohol number. The legal limit advertised on TV and road signs is .08, that is a governments dirty little secret. The cops don't give a hoot about the number because they know they can get you anyway! If you blow a .04-.07 or lower, they can and will arrest you; particularly if you exhibit weird behavior such as driving erratically, or poor field tests (which you should not be doing) or acting strange or showing other signs of impaired coordination. One's BAC (blood alcohol content) is a great tool for the police and courts to convict you of DUI, but in the absence of .08 BAC number, the cops simply look for other behavior that supports their witch hunt. Poor performance on the field tests is more then adequate to support that endeavor. Robinson & Associates DUI Firm has been called upon to defend all numbers in DWI cases and we win the overwhelming majority of such cases. However, I remember years ago in Carroll County with a recently retired judge, we had a .06 case and the client was under 21 so the judge must have thought he would use the experience as a learning lesson for that young man and he convicted the client of the DWI charge despite the low BAC. In my 20 years experience that is the only case that comes to mind that we have not been able to beat on a low number. But nonetheless, the clients are still charged, lawyers have to be retained, the case needs to be tried, the client is put through the emotional ringer, etc.

The next to last panel at the Yale Law School's March 2nd Location Tracking and Biometrics Conference was related to biometric identification and its implications for privacy in the hyper-connected world of the 21st century. Moderated by Wired magazine contributing editor Noah Shactman, the panel arguably was the creepiest of the day, with truly surreal implications for personal privacy. The panel featured Georgetown law professor Laura Donohue, Jennifer Lynch from the Electronic Frontier Foundation, NYU Ph.D candidate Travis Hall, a postdoctoral fellow from Carnegie Mellon named Ralph Gross, and Alvaro Bedoya, who is an aide to Minnesota Sen. Al Franken. Here's a summary from my notes:Biometrics then and nowShachtman opened the discussion by pointing out that the use of biometrics for identification dates at least to 2,400 years ago, when the Chinese used hand prints and thumbprints on official documents. In the mid-19th century, the British East India Company used them to authenticate documents and track prisoners (in the aftermath of the Indigo Revolt, 1859-1861). The first use of fingerprints in modern criminal case, he said, occurred in in Brazil.The US government has funded biometrics research from ear lobes to body odors as potentially unique, personal identifiers, many of which can be used from a distance. Some 31 states (including Texas, see Grits' discussion from 2004 here, here and here) use facial recognition with DMV photos. The Department of Justice has a database with fingerprints of 130 million people.Biometrics have three characteristics which make them useful for identification: They are immutable, readily accessible, and individuating. Those characteristics, though are a source of both benefits and problems. Notably, while biometrics are individualized, your computer turns them into ones and zeroes, meaning they can be electronically captured. Biometrics data can be gathered from a distance in public settings on a mass scale and monitored continuously, telling more about a person than just their identity. It's one thing, said Schactman, to get a fingerprint or DNA swab upon arrest. But today telescopes can capture an iris scan from 1,000 meters away. Thus setting the stage, we turn to the panelists:Game changer: Remote identification, 'multimodal' biometrics Georgetown law professor Laura Donohue described how the recent "technological leap" into the 21st century has created a "statutory gap" and a "constitutional abyss." (See her related law review article.) Kraft Foods is in talks with Facebook, she said, so that a commecial kiosk identifies you through facial recognition to tailor individualized marketing. In Las Vegas, there's a billboard that analyzes your age and gender to market different products to different people (these are also proliferating in Japan). According to Donohue, there were 633 facial recognition patents issued between 2001 and 2011 compared to just a handful the decade before. She identified four emerging trends:Move to multimodal biometrics. Pairing fingerprints with iris scans, DNA.Pairing of biographic information and biometrics.Interoperable databasesCollapsing distinction between law enforcement, homeland security and national security.The FBI sees multimodal biometrics as a key law enforcement tool of the future, hoping to fuse contextual, biographical and biometric information in connected databases. E.g., facial recognition at political rallies can identify people who were at multiple rallies and checked against a "Repository of Individuals of Special Concern" (RISC). These functions are also being privatized. The company Rapback lets employers submit their employees' biometrics, which it then gives to the FBI and is notified in return of the employee's criminal and in some cases civil activities. The service could even notify an employer, she said, when an employee is spotted at a political rally if it's caught on film.Historically biometrics were used for immediate, one-to-one identification: Fingerprints identified someone booked into the jail, or an iris scan let them enter a secure corporate facility. But now many biometrics can be matched remotely and instead of one-to-one matching, can to one-to-many, potentially wiping out any remaining vestiges of privacy in public spaces. The dynamic of biometrics use is changing, said Donohue, along the following axes:One-to-one vs. one-to-many.Close up or at a distanceCustodial detention vs. public spacesNotice or consent vs. noneA one time, limited occurrence vs. continuous and ongoing manner.On the statutory side, the laws "have not grappled with new technology." And on the constitutional front, the focus in US v. Jones (finding the placement of a location tracking device on a car was a "search") on the physical intrusion of placing a tracker on a car ignores the growing array of tracking technologies like remote biometrics that require no physical intrusion. One could read Jones as including a "shadow majority" of justices endorsing the "mosaic theory" that holds continuous tracking over time violates one's reasonable expectation of privacy, but there are other cases, she said, that blur that distinction.Immigration enforcement driving interoperable government databasesNYU's Travis Hall discussed biometrics, interoperability and immigration reform, with a particular focus on the FBI and the Department of Homeland Security's "Secure Communities" program, where people arrested on state and local criminal charges are matched with federal immigration databases to check for immigration violators and people for whom a criminal offense might itself be an immigration violation under the terms of their visa. Defense Department and Department of Justice databases don't talk to each other, he said, but they communicate indirectly through the Department of Homeland Security. The United States has a "federated system," said Hall, with four main biometric databases that after 9/11 all began to share data directly or indirectly. Fingerprints from federal, state and local arrestees are uploaded to the FBI which sends them to DHS to check for immigration violators. That way, DOD and intelligence agencies end up with access to data from state and local law enforcement activities. At first, Secure Communities was pitched to the states as an opt-in program and only 13 states signed up to be notified of immigration violators in their jails. Then, when Illinois and Boston tried to opt out, the feds said "no, you can't."What's the problem? The lines between criminal and civil enforcement mechanisms are becoming blurred, said Hall. Immigration status is often not static but "fuzzy," making bright-line enforcement under Secure Communities problematic. This blurring of criminal and civil enforcement mechanisms could also have unforeseen consequences down the line in areas of law completely unrelated to immigration. (I found myself wishing he'd given more hypotheticals about what that might look like.) With the advent of mobile biometrics, immigration agents can perform fingerprinting and iris scans in the field that instantly connect up to all the above-mentioned federal databases. (See an EFF white paper by Jennifer Lynch on the conjunction of biometrics and immigration enforcement.)The expansion of immigration-related biometrics may impact youth eligible under the DREAM Act (or the administrative equivalent announced last year by President Obama), which states that applicants must demonstrate "good moral character." Applicants go through background checks and must give up their biometrics in order to qualify for provisional status, a process that's resulted in an "entrenchment of surveillance tools." In order to be lenient on “the good guys,” he said, government needs surveillance on everyone to identify bad actors.Facebook as Big BrotherIn an earlier panel, 9th Circuit Presiding Judge Alex Kozinski pointed out that in the Katz case in which SCOTUS first articulated the concept of a "reasonable expectation of privacy," the court based its interpretation of Mr. Katz's expectations in large part on the anachronistic fact that he closed the door to the wiretapped phone booth - an factor that appears quaint in the modern age of cell phones. Sen. al Franken's aide, Alvaro Redoya, said that today, "the phone booth door is very much open." He added that "the future is now," and "this is a big deal."We shouldn't just be concerned about the Minority Report scenario where advertising is funneled to us based on remote identification, he said. Now your driver's license, passport and Facebook account are all connected to facial recognition applications.Facebook is honing its facial recognition software through its tag suggestions program, which presently is active everywhere but Europe where privacy laws prevent its implementation. On the back end, Facebook makes a "faceprint" they can match like a fingerprint. When your friends upload pictures, they are prompted, "would you like to tag" the people in them. The company has rolled this out on an "opt out" basis, meaning they're gathering faceprint data unless you've specifically declined to participate. The average person has 53 photos on their Facebook page, he said. Assuming a 60% non-participation rate (which is probably way too high), the company would have a faceprint for one out of 20 people on the planet. Assuming a 20% opt-out rate, which is perhaps more realistic, Facebook has pictures of one out of 10 humans in their facial  recognition system. Every time Facebook suggests, "is this so-and-so?" and asks if you want to tag them, and you say "no, it's not that person," the company improves their algorithm. Essentially, Facebook has crowd-sourced refinement of its system. Facebook does not promise they won't sell information to third parties. There are scenarios with real person to person (P2P) harms. In early 2010 an Israeli company rolled out Click App, a facial recognition system which Facebook purchased last year. Someone hacked it and figured out you could download pictures from Facebook and use it as a private facial recognition system.Prof. Donohue had earlier described how the FBI had developed facial recognition technology to scan individuals at political rallies, identifying everyone who had attended two or more events. Redoya said the events in the FBI's example were from Obama and Clinton political rallies. In all states where such facial recognition technology has been rolled out, he said, it's a crime to block a sidewalk, for example, so it's easy to find a law enforcement justification for its use in such settings. Your faceprint remains roughly the same between ages 20 and 50, he said.In Katz, the Supreme Court considered it important that the phone booth door was closed. But every time you walk outside you knowingly expose your face to the public, Redoya observed. Unless the law catches up to that sort of functionality, those sorts of outdated distinctions will obliterate personal privacy. Privacy in the age of augmented realityCarnegie Mellon's Ralph Gross discussed "Privacy in the age of augmented reality" (see an FAQ) having conducted experiments analyzing the convergence of public self-disclosure in social networks, improvements in facial recognition accuracy, cloud computing, "ubiquitous computing," and "statistical re-identification" of de-identified data The results, he said raise the question of whether in an era of "augmented reality" we have finally reached “the end of anonymity”?Combining publicly available social network data and off-the shelf facial recognition technology, Gross and his fellow Carnegie Mellon researchers downloaded images from Facebook and then from dating service websites, trying to match them. One out of 10 dating-site members could be identified, he said. A second experiment set up cheap webcam and asked students to let them take three photos from different angles. They could identify one out of three subjects, not just from their profile pictures but also from tagged images.Even more disturbing was Gross' success at predicting social security numbers (!). Think for a moment: How many times have you given out the last four digits of your social security number as an identifier for online services? Have you ever thought about what happens if the other five digits could be inferred from public records? For 27% of subjects on Facebook, Carnegie Mellon researchers could guess the first five digits of their Social Security Number within four attempts. In other words, their algorithm could come up with four guesses and one of them was right 27% of the time. So starting with a photo and using information of Facebook, it's possible to guess those first five digits around a quarter of the time. Over time and with more data, that algorithm could become even more robust.Gross said modern facial recognition technology can go from an anonymous face to matching it to a presumptive name, then get online information, demographics, their friends, and potentially predict their social security number and credit score, not to mention their political and sexual orientation. This could all be done, he said, "in real time with a smart phone app. The implications are staggering and include:Faces as conduits between online and offline data.The emergence of personally predictable informationThe rise of visual, facial searchesDemocratization of surveillance, andSocial network profiles as Real IDsWhen your face can be connected to so much information about you, it essentially becomes your ID.  Today's technology has reached the stage where such capability is no longer purely the domain of science fiction but a real-world scenario which courts and legislatures have yet to address.Location data as biometrics: You are where you goEFF's Jennifer Lynch spoke about "location data as biometrics." To my mind, the takeaway from her presentation was "you are where you go." The same thing can't be in two places at the same time and two different things can't occupy the same place, said Lynch, so by its nature location data is individualizing.Cell phones generate staggering amount of location data totaling 600 billion transactions per day worldwide, data which frequently shared with third parties in volume and in real-time and constitutes a significant potential new market for cell-phone carriers. Your movements quickly reveal where you spend your time, when, and with whom, as well as what's typical and what's not. Though cell-tower data is "de-identified," she said, once you know all that information, "re-identification" - i.e, figuring out who is who - is a somewhat trivial technical feat (as Ralph Gross had earlier demonstrated).The more cell-phone towers and antennas that exist, the more precise location tracking by cell phones becomes. Using a site called AntennaSearch, Lynch found that there were 74 cell towers and 529 antennas within four miles of the Yale Law School. (Running the same search for Grits' own home in Central East Austin, I found 145 towers and 675 antennas within a four mile radius.)A young German politician named Malte Spitz sued his cell phone company for all his location data and partnered with a newspaper to produce an amazing graphic tracking his movements for six months. The graphic includes not just his location but how many phone calls and text messages he received and sent, also linking the data to his Facebook and Twitter timelines to add context, creating a stunning diary of his life. Given the foibles of human memory, it shows your cell-phone carrier (and by extension any government agency or third party that accesses that data) in some ways may know more about your life than you do.Following in his footsteps, so to speak, Lynch tracked herself for a month on with a Google program called “Latitude” that records everywhere you've been. Nothing earth shattering - she mostly went from home to office to her kid's school, with an occasional trip to a store or other destination - but really it's the mundane data that identifies you and provides the most information about who you are and how you live your life. Location data combines and amplifies all the problems with biometrics, said Lynch.Aren't biometrics 'awesome'? Wired editor Noah Schactman interjected to ask the panel, "Isn't the idea of your face as universal recognizer awesome?" It would make passwords useless, he said, since someone can't hack your face in the way you can hack a password. Not true, said Lynch, noting that Japanese kids hack cigarette machines with facial recognition tech by holding up magazine ads of older people. (Grits wrote in 2005 that, for that very reason, biometrics make terrible passwords. To a computer your fingerprint, iris scan or facial structure are just ones and zeros which are easily replicable.)Travis Hall pointed out that, while we live just one life, there are "siloed" aspects to everyone's existence. New technology breaks down those silos in ways that people don't want broken down. Identity in one context may be open, but can now be linked to other contexts in ways that people would prefer remain closed. Prof. Donohue added that, for that reason, there's a public or social harm from long-term storage of this information. New guidelines allow the National Counter Terroism Center to retain personal information about non-suspects for five years instead of 180 days, generating an ever-more detailed and robust data set about individuals over time.One-to-one biometrics are not as big a problem compared to "one to many" apps. It's one thing to verify identity of an individual and another to identify strangers from a crowd, especially in an era when cameras are so ubiquitous.During the Q and A, Chris Soghoian pointed out that there are dating websites for people from specific religions, people with particular STDs, gay people, etc., asking if the data could all be scraped and dumped into some sort of uber-database. Gross replied that it may or not be legal to do that - most likely it would violate the sites' terms of service - but technologically, we're at a point where it can be done. Hall pointed out that the "real problem" with data analytics is that "you don't know you're being tracked.'Judge Kozinski:stepped to the questioners' mic to ask about the implications of the NSA's “Solar Wind” project in Utah - a data processing facility where information accessed by intelligence services may be churned through at an astonishing 4 terrabytes per second. "Can they apply these technologies to all that data?" he wondered, essentially answering his own question. I'm not sure many people in the room had considered that. There was a moment of stunned silence as everyone took in the implications, before Prof. Donohue pointed out that such massive data processing capacity was especially a problem when combined with indefinite data retention.Another questioner asked, "Can you opt out of information being shared?" The answer is sometimes. Your cell phone, for example, must ping the nearest tower periodically so it can receive phone calls. Android phones, it was pointed out, automatically link phone numbers you dial to your Google contacts list. Could there be an automatic opt in instead of opt out? Sure. But it's not required, and in practice people opt in via terms of service agreements they never read.Travis Hall observed that the "persistence of data is astounding."  Data has long shelf life. In Europe there is an ongoing debate about the “right to be forgotten.” As it turns out, it's very had to be forgotten. Engineers having trouble comprehensively deleting even a single photo.For the most part, unlike the politician from Germany, you have no right to review records the government keeps about you, Hall observed, especially for data gathered under national security authority. Schactman pointed out that, ironically, Al Quaeda members may be the only people not being tracked in the government's biometric databases.See prior, related Grits posts from the conference: Cell phone tracking by government: How it's doneOn the Fourth Amendment implications of location trackingSecrecy and federal court dockets: On the nuts and bolts of authorizing government surveillanceBypassing the telecoms: 'Stingrays' allow direct government phone surveillance with little oversight  Video, resources from location tracking conference

With spring breakers in town it might come as no surprise that a  Clearwater criminal defense lawyer was recently asked about the penalties for possession of a small amount of marijuana in Florida. Drug laws in Florida are surprisingly harsher than in many other states, which unfortunately can ruin much more than just a Tampa Bay, Florida vacation for those who come for sunshine, adventure and fun.Marijuana or Absinthe? In Florida if an officer pulls over a car for a traffic infraction such as speeding, the officer must have permission to search the car unless he has a search warrant. But if nosey officers smell marijuana, then they are allowed to search a vehicle or even your home for drugs. Which doesn't quite explain how officers smelled a strong odor of marijuana in one of my pending cases, but somehow in searching the car found no pot, but pills and methamphetamine. The explanation the officers used in the police report was that surely vast amounts of marijuana must have been in the car recently. Officers who lie under oath about smelling marijuana should be fired from Tampa Bay police departments then investigated for perjury.Here are details of punishment for marijuana possession in Florida:Possession of 20 grams or less is a misdemeanor punishable by a maximum sentence of a year imprisonment with maximum fine of $1,000. Possession of more than 20 grams is a felony punishable with a maximum sentence of 5 years imprisonment and a maximum fine of $5,000.On top of this a first time marijuana possession in Florida also leads to a two year driver's license revocation even if the incident did not involve use of a vehicle, which is oddly more than the Florida punishment for a first time DUI of a one year Driver's License suspension with the likelihood of be given a hardship license. Florida has very harsh penalties for possession or sale of enough marijuana to trigger trafficking in marijuana with minimum mandatory sentences as can viewed in Florida's Drug Statutes.If you or someone you care about has been arrested for sale or possession of drugs such as marijuana in Tampa Bay, Florida you need an effective Clearwater drug defense attorney who will find the best solutions for you.

  In the federal case of the United States of America versus Napoleon Bustamante, Mr. Bustamante was convicted of illegally reentering the United States, making a false statement in a passport application, and making a false statement in an application for supplemental security income benefits. His convictions centered around the prosecutor’s accusation that Bustamante was not a United States citizen.   In order to prove that accusation at trial, the prosecutor introduced into evidence a document purporting to be a transcription of Bustamante’s birth certificate from the Philippines.   Mr. Bustamante appealed his convictions, and the court of appeals reversed his convictions because the introduction of the document purporting to be a transcription of his birth certificate violated Bustamante’s right to face his accusers as guaranteed to him by the Confrontation Clause contained in the Sixth Amendment to the U.S. Constitution.   The Confrontation Clause guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him."  The United States Supreme Court has held that this guarantee prohibits the admission of testimonial statements of a witness who does not appear at trial unless the witness is unavailable to testify and the person on trial has had a prior opportunity to cross-examine him.   The court of appeals in Bustamante’s case ruled that the document purporting to be a transcription of Bustamante’s birth certificate from the Philippines was an affidavit testifying to the contents of the birth records of the Filipino city in which Bustamante was born and was functionally identical to the live, in-court testimony that an employee of the Filipino government office might have provided.  Furthermore, that document was created for the purpose of the Air Force investigation into Bustamante’s citizenship and was made under circumstances that would lead an objective witness to reasonably believe that the statement would be available for use at a later trial.   Therefore, the admission into evidence of this document at Bustamante’s trial violated his right to confront his accusers because he did not have a prior opportunity to cross-examine the person who created it.  

Volokh Conspiracy: My View of How the Fourth Amendment Should Apply to Searching A Cell Phone Incident to Arrest by Orin Kerr: The lower courts are divided on whether the Fourth Amendment permits the police to search a cell phone discovered on a person incident to arrest without first obtaining a warrant. I have a very short essay (5 pages) on this issue that is the Foreword for a forthcoming symposium on law and technology appearing in the Harvard Journal of Law & Public Policy. The essay is Foreword: Accounting for Technological Change. Here’s the abstract: This short essay considers how the Fourth Amendment should apply to the search of a cellular phone seized incident to arrest. It argues that the storage capacity and type of evidence stored on a cell phone justifies a departure from existing Fourth Amendment doctrine. Under United States v. Robinson, 414 U.S. 218 (1973), the Fourth Amendment always permits a full search of a person and property on his person at the time of arrest. This essay argues that the Supreme Court should reject that standard for searches of digital storage devices. Instead, the Court should adopt the standard introduced in Arizona v. Gant, 556 U.S. 332 (2009), for searching an automobile incident to arrest.

Should anyone who talks to a child be arrested as a potential sex offender? Who knows what their intent really is when they talk to a child?3-17-2013 New York: PLATTSBURGH — Assemblywoman Janet... [[This,an article summary.Please visit my website for complete article, and more.]]

3-17-2013 Nebraska: The Judiciary Committee heard testimony March 13 on a bill meant to restrict certain sex offenders from living near parks. The state’s Sexual Predator Residency Restriction... [[This,an article summary.Please visit my website for complete article, and more.]]

Thanks for staying tuned to the WhiteCollarCrimeProf Blog- we're back in full force now, with another book sent off to the press. More to come about this project down the road. Your readership is appreciated. (esp)

A judge recently struck down an effort to ban the sale of large, sugary drinks in New York City, but the whole ordeal has prompted a myriad of discussions involving obesity in America. Los Angeles Social Security Disability Attorney Vincent Howard of HOWARD LAW knows that while obesity in and of itself is not considered a disabling condition, a person who is considered obese may in fact be eligible for benefits under certain conditions. While there is no specific criteria for qualification involving a person with obesity, the fact is, obesity may be either the cause of some qualifying condition or it may be a symptom of a qualifying condition. Interestingly, this wasn't always the case. The Social Security Administration at one time recognized obesity as a disabling condition, provided certain weight and height requirements were met and that it was severe enough as to be accompanied by other ailments, including high blood pressure, congestive heart failure, chronic poor circulation and arthritis. However, today you would primarily be judged on the severity of whatever that accompanying condition, though your weight would most assuredly be a factor in the ultimate decision. The medical definition of obesity is complex, but most basically, it's a chronic accumulation of excessive body fat. Adults who have a body mass index of between 25 and 29.9 are considered overweight. Adults who have a BMI of 30 or higher are considered obese. Adults who have a BMI of 40 or higher are considered to be morbidly obese. Despite what some may think, it's not simply a matter of a person eating too much and not exercising enough, though it's true that can certainly be a factor. It's sometimes referred to as obesity syndrome. More than we realize, our genes and family history may play a large role in whether we become obese, as do certain health conditions, such as Chushing's syndrome, having an underactive thyroid or polycystic ovarian syndrome. Additionally, certain medications, such as anti-seizure pills or antidepressants, may slow the rate of metabolism, causing excessive weight gain. Also, someone enduring emotional issues, such as depression, may overeat. Lack of sleep, also, has been identified as a contributing factor to obesity. Someone with a sleep disorder may find themselves also battling the bulge as well. People who have been diagnosed with morbid obesity in particular are at high risk of diabetes, hypertension and cardiovascular disease. In applying for disability benefits, obesity may certainly be considered as a factor - even a primary one - for the reason you are unable to meet the basic work requirements for walking, sitting, standing, crouching, kneeling, bending, balancing or lifting. However, our disability lawyers would urge our clients to explore the full scope of their medical condition, as any accompanying conditions will serve to bolster your chances. You want to demonstrate that your obesity and accompanying conditions are causing you a significant level of impairment that will prevent you from working. For example, a person who is suffering from heart disease yet who is of a normal weight may have a lesser shot at obtaining benefits than an individual with the same disease who is also morbidly obese.

The defendant in U.S. v. Darden was charged with obstructing commerce by robbery and brandishing a firearm in connection with two robberies. In the first underlying incident, an armed robbery of a Tampa, Florida convenience store, the gunman fled without apprehension. In the second incident Darden was shot by the pursuing store clerk. In the second incident Darden was apprehended and admitted to the robbery. Charged with both robberies, Darden went to trial placing the defense counsel in the position of having to vigorously defend against both robbery charges or concede guilt as the second robbery to save credibility in defending Darden against the first robbery. Apparently without consulting Darden, his counsel chose the latter. At trial, Darden's attorney conceded the evidence was enough to convict of the second robbery, but not enough for a guilty verdict on the first robbery. The attorney argued that by charging Darden with both robberies, the government was trying to "buy a verdict and get one free." After his convictions were affirmed on appeal, Darden brought a 2255 collateral challenge claiming ineffective assistance of counsel arguing that under the Supreme Court's decision in U.S. v. Cronic, the decision to concede guilt on one of the two charges without consulting his client was presumptively prejudicial. In Cronic the Supreme Court held that if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing," prejudice is presumed, making unnecessary the 2-step analysis in Strickland v. Washington, which requires that the defendant show 1) deficient performance by counsel and 2) the deficiency caused substantial prejudice to the case. The issue facing the 11th Circuit was to determine whether the defense counsel failed entirely to subject the government's case to meaningful adversarial testing. In other words, whether to analyze Darden's ineffective assistance claim under Strickland or under Cronic. The 11th Circuit held that Cronic did not apply and Darden would have to show he suffered substantial prejudice by his counsel's failure to consult with him about the trial strategy. The defense mounted a viable defense by strategically conceded guilt on one charge in order to order to more credibly advance the defendant's case the other count. Though this issue had yet been addressed in the 11th Circuit, other circuits have found that conceding guilt is a viable tactic in order to lead the jury towards leniency on the charges and to argue later for a lighter sentence. The court found that Cronic applies only where defense counsel "entirely fails" to subject the case to "meaningful adversarial testing." The district court had found no prejudice, even if there was deficient performance by not consulting with Darden, in view of the overwhelming evidence of Darden's participation in the second robbery. The result for Darden would have been the same even without defense counsel's concession of the second robbery.

Texas state senators from the Red River to the Rio Grande Valley say law enforcement should seek a warrant to get location tracking information from cell-phone carriers. Okay, really it's just two state senators so far: State Sen. Craig Estes in the final week of bill filing dropped SB 1088 requiring law enforcement to get a warrant to gather cell-phone location data. The bill is essentially similar to Sen. Juan "Chuy" Hinojosa's SB 786 and state Rep. Bryan Hughes' HB 1608 except that it does not include the annual public reporting in those bills.Noted a blog post from the Texas Electronic Privacy Coalition, "That both Republican and Democratic Texas state senators filed legislation to require a warrant for cell-phone location orders speaks volumes about the developing bipartisan consensus that location privacy deserves protection." Coupled with HB 3164 by Stickland requiring a warrant for emails older than 180 days (see prior Grits coverage), the Legislature this session will consider legislation that would significantly bolster Texans' Fourth Amendment rights in the digital age. Hughes' HB 1608 has so far garnered 69 joint and co-authors, with more likely to sign on next week, so there exists significant bipartisan support for the warrant requirement in both chambers. If these bills pass, it would put the Lone Star State at the forefront of electronic privacy protections nationally.

Everyone knows that DWI laws make it illegal to drive while under the influence of alcohol or drugs. There's a very clear line for measuring how much alcohol drivers are permitted to have in their system before they are deemed legally intoxicated, 0.08 percent. Something that would surprise many people in Missouri is that, in the state, you can be charged with Driving Under the Influence of Drugs (DUID) if your driving is impaired, regardless of the amount of drugs found in your system at the time of your arrest. No such clear line exists. According to Section 577.010 of the Missouri Revised Statutes, a driver is considered guilty of driving while intoxicated if he or she drives while under the influence of alcohol or drugs. The legal limit for a DWI for alcohol is 0.08, but for drugs, no specific limit exists. Instead, any amount of drugs that impairs your driving is enough for a DUID conviction. The potential penalties for a DUID conviction are exactly the same as they are for a standard DWI in Missouri. The law says that those convicted of either crime are eligible for up to six months in prison and can be ordered to pay a fine of up to $500. Both crimes also involve the loss of driving privileges. Interestingly if you enter a plea of guilty to driving under the influence of drugs you most likely will lose your license for one year under Missouri Abuse and Lose Law. What's so maddening about the Missouri law is that it is so arbitrary, making no attempt to define what actually is dangerous, impaired driving. It's possible that in Missouri a driver may have smoked marijuana a week before being pulled over and had a couple of beers but be under the legal limit of 0.08, but under this law he can be charged for DWI because he will likely test positive for the metabolite of THC (this is what THC becomes as it is broken down in the body). The same thing goes with other drugs as labs in the state are designed to detect drug metabolites, not the drugs themselves. Prosecutors typically don't take the time or have the knowledge to properly interpret the lab results properly. Typically if a person is charged with Driving Under the Influence of Drugs they will need to hire a toxicologist or other experts to help in their defense. The only good thing to say about the law is that it has one caveat that prevents it from being applied too broadly by police officers. Officers in Missouri still have to have probable cause to believe that a driver was operating a vehicle under the influence before they can ask you to take a test to determine your level of intoxication. If you've had a run in with the law and find yourself in need of a Missouri DWI defense lawyer capable of aggressively protecting your interests, contact our St. Louis DWI law firm today at (314) 863-0500. Source: "Missouri Drugged Driving," published at NORML.org. See Our Related Blog Posts:SR-22 Insurance after a Missouri DWI - Select Insurance TeamWill Missouri move towards mandatory ignition interlock devices for DWI offenders?

IDAHO STATE POLICE NEWS RELEASE - generated by our News Release ListServer DO NOT REPLY --------------------------------------------------------------------------- IDAHO STATE POLICE NEWS RELEASE District 4 Patrol 218 West Yakima, Jerome, ID 83338-5904 (208) 324-6000 Fax (208) 324-7897 For Immediate Release: 3/17/2013 3:45 p.m. Please direct questions to the District Office On March 17, 2013, at approximately 7:38 a.m., Idaho State Police investigated a single vehicle crash on the westbound lanes of Interstate 84 at milepost 173, near the US93 / I84 junction. A 2001 Ford Mustang, driven by Kevin Tamme, age 24 of Filer, was merging onto the westbound lanes of travel, when he lost control due to weather conditions. Tamme's vehicle rolled on its top into the median. Tamme and his passenger, Heidi Jackson, age 29 of Twin Falls, were transported to St Luke's Magic Valley. It is unknown if both occupants were wearing their seatbelts. -------------

The South Florida Sun Sentinel publishes the editorial, "Fix on death row appeals falls short." Here's an extended excerpt: State Rep. Matt Gaetz, R-Fort Walton Beach, wants voters to change the Florida Constitution to reduce the time death-row inmates have...

Free legal answers from attorneys - I have a bad habit of not opening my mail right away and letting it pile up on my kitchen table. So I missed the letter

Maryland Governor Martin O'Malley writes about his state's decision to repeal the death penalty in a recent Politico opinion editorial. He writes: "Between 2000 and 2011, an average of 5 death row inmates were exonerated every year. In Maryland, between 1995 and 2007, our state's reversal rate for the death penalty was 80 percent.Improving public safety is the most fundamental responsibility of our government. The death penalty does not make us stronger or more secure as a people. It is expensive, ineffective, and wasteful as a matter of public policy; it is unjust as historically applied; and its imperfections can and do result in the occasional killing of innocent people." On Friday, March 15, Maryland became the sixth state in six years to repeal the death penalty in favor of life imprisonment without parole. Eighteen people have been exonerated through DNA testing after serving time on death row. Kirk Bloodsworth, one of these 18 men, was instrumental in helping to build consensus for the legislation. Read the full opinion editorial. Read a blog by Innocence Project Co-Director Barry Scheck about the growing movement to end capital punishment. Read more about Kirk Bloodsworth.