The police made a warrantless entry based on speculation of exigency. Their knowledge of actions in the home showed nothing out of the ordinary, too. State v. Tate, 2012 Tenn. Crim. App. LEXIS 1035 (December 17, 2012).
“Upon consideration of all which, the undersigned finds that from a totality of the evidence presented to Magistrate Elbon, there was ‘a fair probability that contraband or evidence of a crime’ would be found in the residence and attached building.” Accordingly, the SW affidavit was not so lacking that the good faith exception did not apply. United States v. Collins, 2012 U.S. Dist. LEXIS 178068 (N.D. W.Va. December 17, 2012).*
The occupants were suspected of being involved in a robbery from information from a CI. Their stop was for a loud exhaust, and the occupants had differing explanations of where they were going, they were nervous, and one had a knife. One was a convicted felon, and that was probable cause to search the glove compartment for a weapon. United States v. Hendrickson, 2012 U.S. Dist. LEXIS 178167 (D. Vt. December 17, 2012).*
TN: Exigency for warrantless can't be based on exigency
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NY: Police can't query for guns without RS there might be one
During a traffic or pedestrian stop, an officer in New York must have reasonable suspicion to ask about whether a weapon is possessed. Officers already have the power to order occupants out of a car. People v. Garcia, 2012 NY Slip Op 08670 (N.Y. December 18, 2012):
... Moreover, the rule of Mimms and Robinson already guards against the unique danger of a partially concealed automobile occupant by allowing the officer to order occupants out of a car and readily observe their movements. Indeed, Mimms and Robinson place automobile occupants in the same position as pedestrians vis-à-vis police officers; the People's proposed rule, on the other hand, would create disparate degrees of constitutional protections based on an individual's mode of transport. Finally, by sanctioning, in the interest of safety, a suspicionless inquiry into whether the ocupants of a stopped vehicle have a weapon, we may open the door to less precise inquiries with potential to raise significant privacy concerns. We decline to introduce uncertainty into this area of the law when it is not necessary to do so. Whether the individual questioned is a pedestrian or an occupant of a vehicle, a police officer who asks a private citizen if he or she is in possession of a weapon must have founded suspicion that criminality is afoot.
See Court Limits Questioning of Motorists by the Police in the NYT.
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Petty Thefts in Los Angeles Spike During Xmas. Santa (and the Police) Are Watching…
Statistical analyses of petty theft in Los Angeles paint a pretty grim holiday picture.![santa-petty-theft-los-angeles.jpg]()
According to the National Retail Federation, 95% of all retail stores (that’s 19 out of every 20 stores) falls victim to petty theft during the Yuletide season: that’s a spike of 30% over normal crime rates.
The diversity of petty theft schemes is literally too large to catalog. Some cases are relatively simple: A thief might snatch a purse left in a shopping cart unattended or take a “five finger discount” at a candy shop or convenience store. Some items are more prone to be stolen than others. Games, shoes and apparel tend to be big targets. Sometimes “odd ball” items can also be targeted. For instance, as we covered earlier this year, Tide detergent apparently is a commonly pilfered item. Thieves steal the Tide and then resell it on the black market.
Some theft crimes are motivated by economic desperation. Some are motivated by the desire to make mischief. Sometimes people steal to resell items in order to have money to purchase gifts for their friends and family. That may sound twisted, but that’s a common situation, as well.
If you stand accused of a minor theft charge in Southern California, however, you need to take your situation extremely seriously.
First of all, the penalties for conviction of even a minor misdemeanor can be pretty intense. You may have to spend some time in jail, pay restitution, attend mandatory classes or parole, etc. These punishments can then have secondary negative effects. You might be expelled or suspended from school, for instance, or fired from your job. You might also face humiliation, economic consequences, and certainly a ruined holiday season. Beyond that, a petty theft conviction can essentially “tag” you as a criminal offender and thus make any subsequent (or co-current) charges that much more significant.
For instance, let’s say you stole some electronics out of a Santa sack at the mall and got arrested and convicted of petty theft. Next year, you and your friends try the same act, and you get caught again. So now you face a second petty theft charge within a two-year period. Given that you're now a recidivist offender, prosecutors can technically hit you with a felony count. If convicted, you could be forced to spend over a year of your life behind bars!
That won’t necessarily happen to you, but it could, and the quality of the Southern California criminal defense you put up can hugely impact your punishments, both present and potential future ones. The team here at the Kraut Law Group would be happy to help you develop a strategy to battle your current charges and rectify problems in your life that might be leading you to get in trouble with the law.
Get in touch with ex-prosecutor and Harvard Law School educated Attorney Kraut to unravel your legal mess and redeem this holiday season.
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According to the National Retail Federation, 95% of all retail stores (that’s 19 out of every 20 stores) falls victim to petty theft during the Yuletide season: that’s a spike of 30% over normal crime rates.
The diversity of petty theft schemes is literally too large to catalog. Some cases are relatively simple: A thief might snatch a purse left in a shopping cart unattended or take a “five finger discount” at a candy shop or convenience store. Some items are more prone to be stolen than others. Games, shoes and apparel tend to be big targets. Sometimes “odd ball” items can also be targeted. For instance, as we covered earlier this year, Tide detergent apparently is a commonly pilfered item. Thieves steal the Tide and then resell it on the black market.
Some theft crimes are motivated by economic desperation. Some are motivated by the desire to make mischief. Sometimes people steal to resell items in order to have money to purchase gifts for their friends and family. That may sound twisted, but that’s a common situation, as well.
If you stand accused of a minor theft charge in Southern California, however, you need to take your situation extremely seriously.
First of all, the penalties for conviction of even a minor misdemeanor can be pretty intense. You may have to spend some time in jail, pay restitution, attend mandatory classes or parole, etc. These punishments can then have secondary negative effects. You might be expelled or suspended from school, for instance, or fired from your job. You might also face humiliation, economic consequences, and certainly a ruined holiday season. Beyond that, a petty theft conviction can essentially “tag” you as a criminal offender and thus make any subsequent (or co-current) charges that much more significant.
For instance, let’s say you stole some electronics out of a Santa sack at the mall and got arrested and convicted of petty theft. Next year, you and your friends try the same act, and you get caught again. So now you face a second petty theft charge within a two-year period. Given that you're now a recidivist offender, prosecutors can technically hit you with a felony count. If convicted, you could be forced to spend over a year of your life behind bars!
That won’t necessarily happen to you, but it could, and the quality of the Southern California criminal defense you put up can hugely impact your punishments, both present and potential future ones. The team here at the Kraut Law Group would be happy to help you develop a strategy to battle your current charges and rectify problems in your life that might be leading you to get in trouble with the law.
Get in touch with ex-prosecutor and Harvard Law School educated Attorney Kraut to unravel your legal mess and redeem this holiday season.
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TX - Female cop (Kellie Helleson) performs cavity search on two women during traffic stop by David Farrell, should be in prison and on the sex offender registry for life! This is sexual assault!
Original Article12/18/2012
Two Texas women are suing after state troopers subjected them to a humiliating and invasive 'roadside body cavity search' that was caught on video.
Female trooper Kellie Helleson is seen in the footage aggressively searching the private parts of [name withheld], 38, and her niece, [name withheld], 24, in front of passing cars.
The women, who claim the trooper used the same rubber glove for both of them, were initially stopped by Helleson's colleague David Farrell on State Highway 161 near Irving after he saw one of them throw a cigarette butt out the window.
- And if one had a disease, this officer could've spread it to the other. Yeah, I hope they win in court!
Farrell can be heard in the disturbing video questioning the pair about marijuana though he failed to find any evidence of the drug in the vehicle.
However, he requested the women be searched after allegedly claiming they were 'acting weird.'
The lawsuit states he then tried to 'morph this situation into a DWI investigation,' according to the Dallas Morning News. 
[name withheld] passed a roadside sobriety test and the women were given warnings for littering.[name withheld] said Helleson irritated an anal cyst she suffers from during the search, causing her 'severe and continuing pain and discomfort.'
The suit said: '[name withheld] was overwhelmed with emotion and a feeling of helplessness and reacted stating that Helleson had just violated her in a most horrific manner.'
The two women are also suing the director of the Texas Department of Public Safety, Steven McCraw, who they claim ignored previous complaints about 'unlawful strip searches, cavity searches and the like.'
The [name withheld]' lawyer Scott H. Palmer said the shocking incident, which was filmed on one of the trooper's dash-mounted cameras, was a roadside 'sexual assault.'
He said the Texas Rangers investigated his clients' complaints but failed to take any action against the troopers.
'You can see what's happening clearly,' he told the Dallas Morning News of the video. 'No one's ever seen the likes of this. We can't let them get away with it.'Video Link© 2006-2012 | Sex Offender Issues
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Driving Privileges, Part IV.
The law in Ohio provides for limited driving privileges when you are under a suspension for a DUI. You are eligible for privileges after any hard suspension time. Once eligible, you can get privileges for the following reasons: Occupational, Educational, Medical, and Vocational. Part 4 of this blog series is devoted to clients who ask [...]
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Untreue: Dreieinhalb Jahre Freiheitsstrafe für ehemaligen Schatzmeister der Grünen
Der frühere Schatzmeister der Brandenburger Grünen musste sich vor dem Landgericht Potsdam wegen gewerbsmäßiger Untreue verantworten. In den Jahren 2010 und 2011 soll er rund 274.000 Euro aus der Parteikasse veruntreut haben. Nun sprach das Landgericht Potsdam das Urteil. Der Mann muss für dreieinhalb Jahren ins Gefängnis. Die Staatsanwaltschaft forderte eine Haftstrafe von drei . . . → Read More: Untreue: Dreieinhalb Jahre Freiheitsstrafe für ehemaligen Schatzmeister der Grünen
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Driving Privileges, Part IV.
The law in Ohio provides for limited driving privileges when you are under a suspension for a DUI. You are eligible for privileges after any hard suspension time. Once eligible, you can get privileges for the following reasons: Occupational, Educational, Medical, and Vocational. Part 4 of this blog series is devoted to clients who ask [...]
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As Long As Your Car Is Stopped Anyway
<font style="FONT-SIZE: 12px" face="arial">The theory underlying the law enforcement panacea in <a href="http://www.law.cornell.edu/supct/html/95-5841.ZO.html">Whren v. United States</a>,
approving of pretext automobile stops, is that no one can drive any distance without breaking a traffic law. Thus, if a cop follows a car long enough, he'll have justification to stop it and,
well, have his way.Since a cop's claim that you swerved across a line, failed to signal or drove 3 miles over the speed limit is more than sufficient cause to stop, ...</font>
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Reckless Driving in Culpeper
If you’re facing a Culpeper reckless driving ticket, you need to talk with an experienced traffic defense lawyer who can help you handle the case. You have options. Video Transcription Hello. My name is Andrew Flusche. I’m a Virginia traffic and misdemeanor attorney. If you’re facing a reckless driving charge in Culpeper County, Virginia, you [...]
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Stuttgart-21: Massives Vorgehen gegen Demonstranten führt zu Streit in der Regierungskoalition
In der Rot-Grünen-Regierungskoalition in Baden-Württemberg gibt es erneut Ärger aufgrund der Stuttgart-21-Demonstranten. Die Grünen kritisieren vor allem das massive Vorgehen der Staatsanwaltschaft gegen die Demonstranten und zweifeln an der Verhältnismäßigkeit selbigen. Dabei steht vor allem der Justizminister Rainer Stickelberger (SPD) im Fokus der Kritik. Die Ermittler haben unter anderem bei einem Beamten des Landeskriminalamts . . . → Read More: Stuttgart-21: Massives Vorgehen gegen Demonstranten führt zu Streit in der Regierungskoalition
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PoliceOne:com: "Video: Women file suit over 'painful' roadside cavity search"
PoliceOne:com: Video: Women file suit over 'painful' roadside cavity search | Officers stated the women were acting strange and suspected marijuana was involved by Eric Nicholson, The Dallas Observer
DALLAS, Texas — On July 13, Angel Dobbs was driving her boyfriend's car north down the George Bush Turnpike when they were pulled over by state troopers. The troopers said they had spotted Dobbs throw a cigarette butt out the window.
According to a lawsuit filed by the Dobbs yesterday in federal court, the traffic stop soon took a different turn. One of the troopers, David Ferrell, took Angel Dobbs to a roadside field, where he peppered her with questions that quickly transitioned from general queries about where the pair was headed and to more pointed questions about whether they were transporting marijuana. He did the same with Ashley Dobbs. Both denied having any weed.
. . .
According to the lawsuit, Hellson's gloved hands went inside Dobbs' sweatpants and probed both front and back. Dobbs suffers from a skin condition called hidradenitis suppurativa that made the whole thing particularly painful. Without changing her gloves, Hellson performed an identical search on Ashley Dobbs, the suit claims.
When Angel Dobbs told Farrell she felt violated by the search, which had happened on a public roadway in full view of passersby, he told her it was justified by the odor of marijuana, which made it clear that "someone is a daily smoker in that car," according to the suit.
I filed a suit like this about 20 years ago in Arkansas involving a male strip searched on the side of a U.S. highway. The answer was a reasonable offer of judgment.
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Florida Supreme Court to Hear DUI Breath Machine Appeal Next Year
The Florida Supreme Court has delayed a hearing until early next year on the issue of whether the maker of the only state-approved breathalyzer machine must turn over evidence showing how it works. ![beer4.jpg]()
Fort Lauderdale DUI attorneys know this ruling could impact the future of a huge number of DUI cases - both past and pending.
The Intoxilyzer 8000 is a machine that is used by law enforcement to test the blood alcohol content level of a suspected drunk driver. It purports to measure this amount through breath samples.
But problems with calibration method of the Intoxilyzer 8000 have been known for years. However, lower courts have typically ruled that defense attorneys could not compel the out-of-state manufacturer, CMI Inc., to hand over the software showing exactly how it comes up with the figures it does.
If defense analysts had access to this software, they would no doubt find inherent problems with its process, leading to a potential suppression of all blood alcohol content measurements in DUI cases where the machine was used. That is a huge number of cases.
Just consider some of the problems that have already cropped up with the machine: In 2010, an estimated 40 percent of the Intoxilyzer 8000 results tested by the state were discovered to be incorrectly measuring breath volumes. The machines were recording volumes of breath in the range of 10 to 15 liters. Problem is, the maximum human lung capacity is five liters.
One analyst who examined the machine in the course of a DUI case in Venice found that in addition to recording breath volumes that are impossibly high, the machine also was recording unrealistically high blood-alcohol numbers - to the point where scores of defendants were blowing BACs that surpassed three times the legal limit of 0.08 percent.
The one being considered by the state supreme court is Meinken v. State of Florida et al. It's a case out of Daytona Beach, and three other similar cases out of the same area with the same issue are being lumped in to the hearing that will take place before the high court. The hearing was originally scheduled for this month, but has now been pushed back to February.
All of these cases challenge the accuracy of the test. But specifically, they say that a ruling by the 5th District Court of Appeals barring the defense from obtaining the machine software is incorrect because it conflicts with earlier rulings compelling other out-of-state companies to comply with such requests. A trial judge had previously granted the defense request, only to have the appellate court quash that order.
A ruling in favor of the defense in this case could mean even more DUI arrests will be successfully challenged on the basis of inaccurate BAC readings. Already, the 12th Circuit state attorney's office, which covers the Sarasota area, decided not to use the results from the Intoxilyzer in about 100 cases last year.
The Florida Department of Law Enforcement had even admitted back in 2010 that some of the machines had problems, but said those have been pulled from use, fixed and are now back in circulation and being used with reliable accuracy.
We wouldn't count on it. And neither should you. This is just one more reason why simply pleading guilty should not be an option.
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Fort Lauderdale DUI attorneys know this ruling could impact the future of a huge number of DUI cases - both past and pending.
The Intoxilyzer 8000 is a machine that is used by law enforcement to test the blood alcohol content level of a suspected drunk driver. It purports to measure this amount through breath samples.
But problems with calibration method of the Intoxilyzer 8000 have been known for years. However, lower courts have typically ruled that defense attorneys could not compel the out-of-state manufacturer, CMI Inc., to hand over the software showing exactly how it comes up with the figures it does.
If defense analysts had access to this software, they would no doubt find inherent problems with its process, leading to a potential suppression of all blood alcohol content measurements in DUI cases where the machine was used. That is a huge number of cases.
Just consider some of the problems that have already cropped up with the machine: In 2010, an estimated 40 percent of the Intoxilyzer 8000 results tested by the state were discovered to be incorrectly measuring breath volumes. The machines were recording volumes of breath in the range of 10 to 15 liters. Problem is, the maximum human lung capacity is five liters.
One analyst who examined the machine in the course of a DUI case in Venice found that in addition to recording breath volumes that are impossibly high, the machine also was recording unrealistically high blood-alcohol numbers - to the point where scores of defendants were blowing BACs that surpassed three times the legal limit of 0.08 percent.
The one being considered by the state supreme court is Meinken v. State of Florida et al. It's a case out of Daytona Beach, and three other similar cases out of the same area with the same issue are being lumped in to the hearing that will take place before the high court. The hearing was originally scheduled for this month, but has now been pushed back to February.
All of these cases challenge the accuracy of the test. But specifically, they say that a ruling by the 5th District Court of Appeals barring the defense from obtaining the machine software is incorrect because it conflicts with earlier rulings compelling other out-of-state companies to comply with such requests. A trial judge had previously granted the defense request, only to have the appellate court quash that order.
A ruling in favor of the defense in this case could mean even more DUI arrests will be successfully challenged on the basis of inaccurate BAC readings. Already, the 12th Circuit state attorney's office, which covers the Sarasota area, decided not to use the results from the Intoxilyzer in about 100 cases last year.
The Florida Department of Law Enforcement had even admitted back in 2010 that some of the machines had problems, but said those have been pulled from use, fixed and are now back in circulation and being used with reliable accuracy.
We wouldn't count on it. And neither should you. This is just one more reason why simply pleading guilty should not be an option.
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Tacoma Child Porn Charges Filed Against Former Capital Playhouse Director
The former interim director of Capital Playhouse in Olympia is now formally facing more than a dozen charges of possessing child pornography, according to local media reports.![stampoffinger.jpg]()
Our child pornography defense lawyers understand this case might never have surfaced, were it not for an odd episode in which the the director disappeared for two days.
It happened this past summer.
According to the Nisqually Valley News, the 52-year-old, who was a long-time employee of the playhouse, went missing from his Olympia home in late July. His family, frantic, contacted police to make a report.
Investigators searching for clues as to where he might be were given permission by his family members to search his home computer. There, detectives found a series of angry e-mails that had been sent to him by a former employee whom he had recently fired. Thinking there might be more to this lead, detectives continued to scour through the missing man's computer files. Eventually, they allegedly found more than 150 images of child pornography. These were reportedly of suspected minors, male and female, between the ages of 10 and 14 who were engaged in sexual acts with one another and with adult males.
Two days after he had been reported missing, the defendant dialed 911 from a payphone. Paramedics arrived to find the disheveled man dehydrated, disoriented, wearing only pajamas - no shoes. He was transported to a local hospital, where he told detectives he had no memory whatsoever of the previous two days. He told them he wasn't able to sleep in the middle of the night, so he went to his vehicle in order to play some music. He said he didn't want to wake up his niece and nephew, who were staying with him at the time. The next he remembered, he was waking up under a bush two days later.
He was subsequently arrested, and when questioned by detectives, allegedly told them he had accessed pornography from both his home and work computer, but that any images depicting children he had viewed on accident. In searching the defendant's work computer, detectives allegedly discovered about two dozen images of pornography, with just three of those involving minors.
Although the case originated in Thurston County, officials had requested that Pierce County Prosecutor's Office take the case, as the Thurston prosecuting attorney's wife was also a long-time employee of the playhouse, and their children had been involved in multiple productions.
Detectives, this time armed with a warrant, again combed through the defendant's computer, and allegedly discovered that 17 pornography sites had been accessed, with nine of those currently involved in active criminal investigations for suspected child pornography.
He was formally charged late last month with 14 counts of possession of depictions of minor engaged in sexually explicit conduct, which is defined in RCW 9.68A.070. Under this statute, this is a class B felony, punishable by up to 10 years in prison and a $20,000 fine - for each individual count. That would mean he could spend the rest of his life in prison.
In this and other similar cases, having an attorney who is experienced in handling these complex cases is critical. The approach a lawyer takes to a case like this might vary, but challenging the search and admissibility of evidence gathered without a warrant will certainly be among the options.
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Our child pornography defense lawyers understand this case might never have surfaced, were it not for an odd episode in which the the director disappeared for two days.
It happened this past summer.
According to the Nisqually Valley News, the 52-year-old, who was a long-time employee of the playhouse, went missing from his Olympia home in late July. His family, frantic, contacted police to make a report.
Investigators searching for clues as to where he might be were given permission by his family members to search his home computer. There, detectives found a series of angry e-mails that had been sent to him by a former employee whom he had recently fired. Thinking there might be more to this lead, detectives continued to scour through the missing man's computer files. Eventually, they allegedly found more than 150 images of child pornography. These were reportedly of suspected minors, male and female, between the ages of 10 and 14 who were engaged in sexual acts with one another and with adult males.
Two days after he had been reported missing, the defendant dialed 911 from a payphone. Paramedics arrived to find the disheveled man dehydrated, disoriented, wearing only pajamas - no shoes. He was transported to a local hospital, where he told detectives he had no memory whatsoever of the previous two days. He told them he wasn't able to sleep in the middle of the night, so he went to his vehicle in order to play some music. He said he didn't want to wake up his niece and nephew, who were staying with him at the time. The next he remembered, he was waking up under a bush two days later.
He was subsequently arrested, and when questioned by detectives, allegedly told them he had accessed pornography from both his home and work computer, but that any images depicting children he had viewed on accident. In searching the defendant's work computer, detectives allegedly discovered about two dozen images of pornography, with just three of those involving minors.
Although the case originated in Thurston County, officials had requested that Pierce County Prosecutor's Office take the case, as the Thurston prosecuting attorney's wife was also a long-time employee of the playhouse, and their children had been involved in multiple productions.
Detectives, this time armed with a warrant, again combed through the defendant's computer, and allegedly discovered that 17 pornography sites had been accessed, with nine of those currently involved in active criminal investigations for suspected child pornography.
He was formally charged late last month with 14 counts of possession of depictions of minor engaged in sexually explicit conduct, which is defined in RCW 9.68A.070. Under this statute, this is a class B felony, punishable by up to 10 years in prison and a $20,000 fine - for each individual count. That would mean he could spend the rest of his life in prison.
In this and other similar cases, having an attorney who is experienced in handling these complex cases is critical. The approach a lawyer takes to a case like this might vary, but challenging the search and admissibility of evidence gathered without a warrant will certainly be among the options.
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NC: Even a mistake of law can be reasonable without violating the Fourth Amendment
Even a mistake of law can be reasonable without violating the Fourth Amendment, following United States v. Martin, 411 F.3d 998 (8th Cir. 2005). State v. Heien, 2012 N.C. LEXIS 1003 (December 14, 2012):
We find the Eighth Circuit's reasoning to be more compelling. To begin, that rationale seems to us, as it did to the Eighth Circuit, to be consistent with the primary command of the Fourth Amendment—that law enforcement agents act reasonably. See Delaware v. Prouse, 440 U.S. 648, 653-54, 99 S. Ct. 1391, 1396, 59 L. Ed. 2d 660, 667 (1979) (noting that the purpose of the Fourth Amendment "is to impose a standard of reasonableness upon the exercise of discretion by government officials, including law enforcement agents, in order to safeguard the privacy and security of individuals against arbitrary invasions" (footnote call number, citations, and internal quotation marks omitted)). An officer may make a mistake, including a mistake of law, yet still act reasonably under the circumstances. As stated above, when an officer acts reasonably under the circumstances, he is not violating the Fourth Amendment. So long as the officer's mistake of law is objectively reasonable, then, the Fourth Amendment would seem not to be violated. Accordingly, requiring an officer to be more than reasonable, mandating that he be perfect, would impose a greater burden than that required under the Fourth Amendment.
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CA5: Burning a dead man's car to coverup murder was Fourth Amendment violation
Aside from other crimes, a NOPD officer’s burning a dead man’s car to cover up murder during the aftermath of Katrina was a civil rights violation, too. United States v. McRae, 2012 U.S. App. LEXIS 25670 (5th Cir. December 17, 2012):
This case tells one of the nightmarish stories that arose from Hurricane Katrina in 2005—the physical devastation, human diaspora, and struggle of the City to maintain some semblance of law and order, and, in the chaos, a horrific failure of law enforcement. The case also demonstrates again the axiom that a cover-up, with its domino effect, begets more tragedy than the crime. It indeed presents a grim vignette within the larger Katrina story, told here in terms of legal consequences.
The three appellant former policemen were convicted in the same trial—conducted from November 8 to December 9, 2010—largely on separate facts but all arising from the death of one citizen, Henry Glover. Thus, this opinion will set out the facts and the issues raised on appeal in three separate parts.
. . .
Importantly, the second superseding indictment charged McRae with seizing Tanner's car by burning it. McRae contends that he cannot have seized the car by burning it because the car had already been seized at that point: the car had been moved twice on the school property, and driven away from the school before it was burned. He argues that Tanner's possessory interest in the car had therefore already suffered meaningful interference. The government responds that the burning was merely the culmination of a course of conduct, all of which constitutes an unreasonable seizure. [This is reviewed for plain error.]
Although McRae's position is eminently logical, we do not think that the district court, in entering judgment based on this conviction, committed any error that is beyond reasonable dispute. Assuming that it is error to regard the burning of the car as a seizure, the error is not plain because the law neither clearly nor obviously limits the meaning of seizure to the initial moment of dispossession.
McRae correctly observes that some circuits, with respect to the seizure of property, limit the meaning of seizure to initial dispossession. See Lee v. City of Chicago, 330 F.3d 456, 466 (7th Cir. 2003); Fox v. Van Oosterum, 176 F.3d 342, 351 (6th Cir. 1999); United States v. Jakobetz, 955 F.2d 786, 802 (2d Cir. 1992). But at least one other circuit defines the seizure of property more broadly, to include a course of conduct that interferes with possessory interests. See Presley v. City of Charlottesville, 464 F.3d 480, 487-89 (4th Cir. 2006). McRae does not point to any precedent in this circuit staking a position in this split, and we are not aware of any. "Because this circuit's law remains unsettled and the other federal circuits have reached divergent conclusions on this issue . . . [McRae] cannot satisfy the second prong of the plain error test—that the error be clear under existing law." United States v. Salinas, 480 F.3d 750, 759 (5th Cir. 2007).
With respect to seizures of the person, rather than property, the law is equally unclear, and the lack of clarity further undermines a contention of plain error in this case. We know that seizures of the person do not end at the initial moment of seizure. See Graham v. Connor, 490 U.S. 386, 394-96, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). How long the seizure of the person goes on, however, is not defined with precision in our circuit, and it is a question that divides other circuits. See Brothers v. Klevenhagen, 28 F.3d 452, 455-57 (5th Cir. 1994); Valencia v. Wiggins, 981 F.2d 1440, 1443-44 (5th Cir. 1993). The imprecision in describing the temporal quality of seizure in the context of seizures of the person discredits any argument that it is clear or obvious that a seizure is over at the moment of initial dispossession in this context—that is, seizure of property.
[Because of plain error review:] We hold that it is neither clear nor obvious that McRae's burning of Tanner's car could not constitute an unreasonable seizure under the Fourth Amendment, and we therefore affirm his conviction under count four of the second superseding indictment.
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OH12: Factor in consent here was defendant was not a “newcomer to the law”
Defendant’s consent was found valid on the totality, and factor to consider is that the defendant is not a “newcomer to the law.” State v. Smith, 2012 Ohio 5962, 2012 Ohio App. LEXIS 5112 (12th Dist. December 17, 2012).*
Defendant’s stop for reckless driving was justified on the facts, so his identity as an illegal is not suppressed. United States v. Rosas-Herrera, 2012 U.S. App. LEXIS 25593 (4th Cir. December 13, 2012).*
There was probable cause on the totality for the seizure of cash from the front seat of defendant’s car. He was on a known drug corridor driving a rental car he was not authorized to drive, with a prior drug conviction, going to a town where he had no address to meet somebody. United States v. Julian, 2012 U.S. App. LEXIS 25356 (11th Cir. December 12, 2012).*
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Alabama Ignition Interlock Law Continues to Confound Authorities
Amid calls by the National Transportation Safety Board to enact a strict nationwide policy that would mandate ignition interlock devices for all persons convicted of DUI, officials in Alabama have yet to determine how to enforce the law already on the books. ![bottletops.jpg]()
Birmingham DUI defense attorneys know that Alabama was the last state in the nation to enact ignition interlock laws, requiring them for those convicted of a second or subsequent DUI offense. First-time offenders could potentially be required to have the devices installed if their blood-alcohol level is measured at higher than 0.15 percent or if they have a minor under the age of 14 in the car at the time of arrest or if the crash injured another person or the driver refuses a sobriety test.
The NTSB is urging Congress and/or states to take action and require the device for all offenders, including those who have only been arrested once. Additionally, the agency is pushing for alcohol detection devices to be manufactured standard in all new vehicles, a measure that is unlikely to take hold anytime soon.
The Alabama law only applies to people arrested for DUI after Sept. 1, 2012. The devices are essentially in-car breathalyzer machines that are affixed onto offender's dashboards. The offender, once their license is reinstated and all fines paid, would for a period of time have to breathe into the machine before the vehicle would start. A BAC of higher than 0.02 percent would render the vehicle unable to start.
Once the vehicles starts, there are "rolling retests" that require additional samples throughout the trip, which is intended to cut down on incidents of fraud (i.e., having a sober person blow into the machine for you so the car will start).
If failures are recorded on the devices, the judge can order you to keep the device for a longer period of time.
The machines cost about $100, not including installation and monthly maintenance and calibration costs. All of this has to be paid by the offender - and this is in addition to whatever penalties you have already incurred as a result of your arrest or conviction.
But although the law was formally enacted in September, not many people have been sentenced to use them. In fact, the majority are those who have moved to Alabama after being sentenced to use the device in another state.
Part of the problem is many police agencies say state authorities have yet to give them instructions for training or enforcement regarding the device. Plus, there are some strong legal arguments that threaten to abolish the program.
For example, who can be held responsible if the device malfunctions? What if the device's accuracy - which has been called into question before - is challenged in court?
For these reasons, Alabama judges have been hesitant to order defendants to have the devices installed.
There is the possibility that the legislature could review the law again early next year to make changes.
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Birmingham DUI defense attorneys know that Alabama was the last state in the nation to enact ignition interlock laws, requiring them for those convicted of a second or subsequent DUI offense. First-time offenders could potentially be required to have the devices installed if their blood-alcohol level is measured at higher than 0.15 percent or if they have a minor under the age of 14 in the car at the time of arrest or if the crash injured another person or the driver refuses a sobriety test.
The NTSB is urging Congress and/or states to take action and require the device for all offenders, including those who have only been arrested once. Additionally, the agency is pushing for alcohol detection devices to be manufactured standard in all new vehicles, a measure that is unlikely to take hold anytime soon.
The Alabama law only applies to people arrested for DUI after Sept. 1, 2012. The devices are essentially in-car breathalyzer machines that are affixed onto offender's dashboards. The offender, once their license is reinstated and all fines paid, would for a period of time have to breathe into the machine before the vehicle would start. A BAC of higher than 0.02 percent would render the vehicle unable to start.
Once the vehicles starts, there are "rolling retests" that require additional samples throughout the trip, which is intended to cut down on incidents of fraud (i.e., having a sober person blow into the machine for you so the car will start).
If failures are recorded on the devices, the judge can order you to keep the device for a longer period of time.
The machines cost about $100, not including installation and monthly maintenance and calibration costs. All of this has to be paid by the offender - and this is in addition to whatever penalties you have already incurred as a result of your arrest or conviction.
But although the law was formally enacted in September, not many people have been sentenced to use them. In fact, the majority are those who have moved to Alabama after being sentenced to use the device in another state.
Part of the problem is many police agencies say state authorities have yet to give them instructions for training or enforcement regarding the device. Plus, there are some strong legal arguments that threaten to abolish the program.
For example, who can be held responsible if the device malfunctions? What if the device's accuracy - which has been called into question before - is challenged in court?
For these reasons, Alabama judges have been hesitant to order defendants to have the devices installed.
There is the possibility that the legislature could review the law again early next year to make changes.
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Massachusetts Holiday Driving - Be a Responsible Party Host
With all of the holiday cheer, it's easy to forget about the responsibility you have if you're throwing a party at your home or work.
In Massachusetts, a party host, and even employers hosting holiday parties, can be held liable in cases where a guest is in an accident after consuming alcohol at an event. ![nKa9gQK.jpg]()
Our Boston drunk driving accident attorneys understand that many of these accidents occur after a celebration at a bar, restaurant or private party. In these cases, hosts are held responsible in ensuring that guests are not over-served and those who are underage are not served at all. If any of this happens and an accident results, party hosts can be held responsible for vehicle repair costs, medical bills, wrongful death and lost-work wages.
Party Hosting Tips:
-Make sure that the designated drivers and the underage attendees have plenty of nonalcoholic beverages.
-Ask all of your guests to plan ahead and to designate a sober driver before the festivities kick off.
-After a couple of hours, stop serving alcohol beverages. This is especially important a few hours before your party ends.
-Look through your guest list before sending out invites. Make sure you know who is a responsible drinker.
-Consider hiring a bartender instead of allowing guests to serve themselves. This will help to have the alcohol consumption monitored.
-Make sure you've got Massachusetts cab company phone numbers handy!
-Allow intoxicated guests to sleep over at your house.
-Try to get guests to sign a Safe and Sober Pledge before partying. You want to make sure everyone has a plan before busting out the alcohol.
-Try to figure out some fun games or activities to do at your party. This will help to take the focus off of drinking.
-Stay alert and considerate of your guests. Remember you have responsibilities as a party host.
Dram Shop and Social Host Liability Laws in Massachusetts:
-Vendor liability for intoxicated adults: Yes.
-Vendor liability for intoxicated minors: Yes.
-Social host liability for intoxicated adults: No.
-Social host liability for intoxicated minors: Yes.
Under current liquor law, if a dram shop serves or sells to someone who is clearly intoxicated, they can be held liable if that person causes an accident -- most commonly a drunk driving car accident. If you have fallen victim to these circumstances, you may be able to file a claim against the driver and the dram shop establishment or party host that served the alcohol. Hiring an experienced law firm is key in these incidents, as we can help to not only provide stern representation, but can also help to conduct a thorough investigation to establish liability in a dram shop claim.
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Our Boston drunk driving accident attorneys understand that many of these accidents occur after a celebration at a bar, restaurant or private party. In these cases, hosts are held responsible in ensuring that guests are not over-served and those who are underage are not served at all. If any of this happens and an accident results, party hosts can be held responsible for vehicle repair costs, medical bills, wrongful death and lost-work wages.
Party Hosting Tips:
-Make sure that the designated drivers and the underage attendees have plenty of nonalcoholic beverages.
-Ask all of your guests to plan ahead and to designate a sober driver before the festivities kick off.
-After a couple of hours, stop serving alcohol beverages. This is especially important a few hours before your party ends.
-Look through your guest list before sending out invites. Make sure you know who is a responsible drinker.
-Consider hiring a bartender instead of allowing guests to serve themselves. This will help to have the alcohol consumption monitored.
-Make sure you've got Massachusetts cab company phone numbers handy!
-Allow intoxicated guests to sleep over at your house.
-Try to get guests to sign a Safe and Sober Pledge before partying. You want to make sure everyone has a plan before busting out the alcohol.
-Try to figure out some fun games or activities to do at your party. This will help to take the focus off of drinking.
-Stay alert and considerate of your guests. Remember you have responsibilities as a party host.
Dram Shop and Social Host Liability Laws in Massachusetts:
-Vendor liability for intoxicated adults: Yes.
-Vendor liability for intoxicated minors: Yes.
-Social host liability for intoxicated adults: No.
-Social host liability for intoxicated minors: Yes.
Under current liquor law, if a dram shop serves or sells to someone who is clearly intoxicated, they can be held liable if that person causes an accident -- most commonly a drunk driving car accident. If you have fallen victim to these circumstances, you may be able to file a claim against the driver and the dram shop establishment or party host that served the alcohol. Hiring an experienced law firm is key in these incidents, as we can help to not only provide stern representation, but can also help to conduct a thorough investigation to establish liability in a dram shop claim.
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NC: Claim that officer to sense nervousness in driver while driving next to him was rejected
Stop was without justification; how could officer tell occupants of a car were nervous along side of them? This is no more than an "unparticularized suspicion or hunch." State v. Canty, 2012 N.C. App. LEXIS 1448 (December 18, 2012).*
Based on the testimony at the suppression hearing, a handyman had been given apparent authority to consent to an entry so that the police could enter on a knock-and-talk. Defendant then consented to a search. Briggs v. State, 2012 Ark. App. 692, 2012 Ark. App. LEXIS 812 (December 12, 2012).*
The officer stopping defendant’s car saw marijuana seeds and stems and a cut open cigar. He asked if there was more and it was produced. This was probable cause for a more intensive search under the automobile exception. State v. Carmichael, 2012 Ohio 5923, 2012 Ohio App. LEXIS 5103 (9th Dist. December 17, 2012).*
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Ottawa Teen Arraigned on Attempted Murder Charges
17-year-old Eric Ortega of Park Township was recently arrested on attempted murder charges. On December 17, Ortega was arraigned on charges of assault with intent to murder in the stabbing of his 32-year-old roommate, whose name was not mentioned in news reports. Ortega allegedly stabbed the victim in their Ottawa County apartment. His arraignment was before Judge Susan Jonas in Holland District Court, who set Ortega's bond at $750,000. The altercation took place on Friday evening, December 14, at approximately 11:30 p.m.
Following an argument inside the apartment, the victim was repeatedly stabbed in the neck and chest area, suffering life-threatening injuries according to news sources. Lt. Mark Bennett of the Ottawa County Sheriff's Department stated that the victim was at Spectrum Health Butterworth Hospital, where he was said to be in critical condition. He was initially taken by ambulance to Holland Hospital, and later airlifted to Spectrum. Another roommate of the two men who attempted to stop the attack sustained minor injuries as well.
Ortega fled before deputies arrived at the scene of the stabbing, and was located the next morning at a relative's home; he is being charged as an adult according to the Holland Sentinel.
Michigan assault with intent to commit murder lawyers know that because Ortega is charged as an adult, he will face severe penalties if convicted. Those convicted of attempted murder may face any number of years in prison, or even life behind bars according to the Michigan Penal Code 750.83. It is a tragedy when an individual of such a young age is sentenced to a lifetime in prison. While it is not true in every situation, individuals are often charged with serious crimes when they were acting in self defense.
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