Criminal Defense lawyers want to educate public on drones

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Drones are considered efficient tools for law enforcement, but a third of Americans worry that their privacy will suffer if the unmanned devices are used regularly in U.S. skies, according to a poll. Congress has directed the Federal Aviation Administration to come up with safety regulations to clear the way for routine domestic use of the aircraft within three years. (Vanguard Defense Industries via Associated Press)

Criminal defense attorneys are obviously concerned how this new law enforcement policy will be used to conduct warrantless searches and undermine every American’s privacy rights.

#dontbeastatistic

http://m.washingtontimes.com/news/2013/apr/30/defense-lawyers-want-educate-public-drones/

Limit Police Access to Your Home: Protect Your 4th Amendment Rights

     The police often use an technique called “the knock and talk” to make contact with people in their homes, i.e. houses, apartments, dormitories, etc. The technique is pretty much what it sounds like; an officer or officers approach a home, knock on the door and make contact with whomever answers the door. They use this technique in order to investigate supposed criminal activity; it allows them to interview people, observe (see, hear, and smell) the interior of homes from the doorway, and gain consent to enter. In short, a knock and talk is a tool to gather evidence.

     When people learn of this technique, they either act like they don’t care because they feel they have nothing to hide or they express outrage at the intrusion. Regardless of which camp you are in, use the information in this article to protect yourself. Your constitutional rights are only good if you know and use them.

     It is well established that the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Michigan State Constitution protect people from unreasonable searches and seizures. Both provide privacy protections for people’s homes, dwellings, and lodgings. To that end, it is impermissible for the government, which includes the police, to enter, search, or seize anything or anyone in a person’s home, dwelling, or lodging without a search warrant or absent one of the limited exceptions to the warrant requirement, i.e., there is an risk to someone’s life or property, they see, smell, hear something in plain view that they believe to be contraband, or they obtain consent.

     The police use the knock and talk technique because it allows them to obtain information, consent to enter or to search, or to see something in plain view while they are lawfully present. State and Federal courts recognize the knock and talk technique as a valid tool of police investigation, but they also recognize that there are constitutional limits to it. In People v. Froheip, 267 Mich App 692 (2001), the Michigan Court of Appeals indicated that there are constitutional implications to the knock and talk procedure.

“Anytime the police initiate a procedure, whether by search warrant or otherwise, the particular circumstances are subject to judicial review to ensure compliance with general constitutional protections. Accordingly, what happens within the context of a knock and talk contact and any resulting search (and seizure) is certainly subject to judicial review. For example, a person’s Fourth Amendment right to be free of unreasonable searches and seizures may be implicated … where a person does not feel free to leave or where consent to search is coerced…[w]henever the procedure is utilized, ordinary rules that govern police conduct must be applied to the circumstances of the particular case.”  Froeheip at page 699. (Emphasis added).

     The courts conduct this review to ensure that the general protections of the constitution are upheld. Just this past March (2013), the United States Supreme Court addressed the knock and talk technique in the context of  a drug dog sniff outside of a house in the area known as the “curtilage”. Both the majority and the dissenting opinions recognized the constitutional limitations on the knock and talk technique. The court used traditional concepts from property law in reaching its decision.

     Justice Scalia stated that the court has:

“…recognized that the knocker on the front door is treated as an invitation or license to attempt an entry, justifying ingress to the home by solicitors, hawkers and peddlers of all kinds. Breard v. Alexandria, 341 U.S. 622, 626 (1951). This implicit license typically permits the visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave. (Emphasis added). Complying with the terms of that traditional invitation does not require fine-grained legal knowledge; it is generally managed without incident by the Nation’s Girl Scouts and trick-or-treaters. Thus, a police officer not armed with a warrant may approach a home and knock, precisely because that is ‘no more than any private citizen might do.'” Florida v. Jardines, 569 U.S. ____ (2013).

     In the dissenting opinion, Justice Alito also recognized that there are limits on police activity in the context of a knock and talk. He stated:

“Of course, this license has certain [time and space] limits. A visitor must stick to the path that is typically used to approach the front door, such as a paved walkway. A visitor cannot traipse through the garden, meander into the backyard, or take other circuitous detours that veer from the pathway that a visitor would customarily use.”

     Justice Alito cited other cases that supported his conclusion:

  • Robinson v. Virginia (47 Va. App. 533, 549-550 [2006] [en banc] and United States v. Wells (648 F.3d 671, 679-680 [CA8 2011]): where the police exceeded the scope of their implied invitation when they bypassed the front door and proceeded directly to the back yard.
  • State v. Harris (919 S.W.2d 619, 624 [Tenn. Crim. App. 1995]: any substantial and unreasonable departure from an area where the public is impliedly invited exceeds the scop of the implied invitation…

     Those are not the only cases that recognize the time and space limitations on would-be visitors. In State v. Cada, 129 Idaho 224, 233 (1996) the court indicated that as a general matter, visitors cannot come to the front door in th emiddle of the night without an express invitation. “Furtive instrusion late at night or in the predawn hours is not conduct that is expected from ordinary visitors. Indeed, if observed by a resident of the premises, it could be a cause of great alarm.” Cada at 233. In California v. Ciraolo, 476 U.S. 207, 213 (1986), the court stated that the area around the home, known as the curtilage, is “intimately linked to the home, both physically and psychologically,” and is where “privacy expectations are most heightened.” Ciraolo at 213.

     Those above limitations apply to police officers who purport to use the knock and talk technique. When using that technique, they can only do what an ordinary citizen could do when he or she is coming to the door to knock on it and engage you; e.g., approach the home by the front path, knock promptly, wait briefly to be received, and then absent invitation to linger longer leave. They cannot come to your backyard, back door, sidedoor, etc. They must come to the front door. They must knock promptly. They cannot linger about, scouting out your home. After knocking, they can wait briefly. They cannot linger forever or knock repeatedly for a few or even several minutes. Thereafter, if you do not come to the door or otherwise engage them, or if you do engage them but do not invite them to stay or come in, they must leave. Certainly, if you do not invite them in or otherwise give them consent to come into your home, the police have another option. They can get a warrant.

     A client’s mother once told me that deputy sheriff came to her door and asked for permission to search her home for something he believed to be there. She told him know. He told her that if she didn’t, he would just get a warrant and search anyway. She told him to leave and get the warrant. He told her that if she didn’t let him search, that he would stay there and make her life hell until the warrant came. So, she caved. He then claimed that she consented to the search and turned her house upside down.

     Do not give in to the police. Do not let them bully, cajole, or persuade you to give up your constitutional protections. They may ask to come into your home, or your backyard, or wherever. Demand a warrant. They may seem sympathetic, “Hey, it’s cold/rainy/hot/loud outside, can I come in?” Just say no.

     If you are one of those people who have a sign out front on your door, your fence, or in your yard that tells visitors to go to the back or side door, then remember what you are inviting the police to do. Perhaps consider removing it.

You do not have to answer their questions. You do not have to stand in your doorway while talking to them; open your door a crack or don’t open it and talk to them through it. Another option is to go outside and close the door behind you. If a police officer asks you for i.d., it’s ok to say “no” and ask, “do you have some reason to request it?” If a police officer asks you for your name, ask “why do you need it. Do you have some reason to suspect me of committing a crime?” If he or she persists, ask, “am I free to go?”

Is Big Brother Surveilling Your Apple iPhone or iPod?

Is Big Brother watching you?

Two news articles were released today regarding a purported 12 million Apple IDs that were in possession of the FBI, but stolen from them by hackers known as AntiSec. One article is from Forbes magazine; the other is from The Washington Post.

Here are both articles:
1) Forbes

2) The Washington Post

Exercising Your Rights During Traffic Stop

Listen to the exchange between the officer and the rider at :45 to 1:04; it’s a simple, effective way to exercise your right to remain silent. Listen also to the officer’s response. He attempts to scare the rider into submission.

Be polite. Be firm. Exercise your right to remain silent.

Watch video here:
exercising your rights during traffic stop

Police GPS Tracking Okay’d

The U.S. Court of Appeals for the Sixth Circuit says criminals can’t “complain” when police use a device’s features to catch them.

The device feature the police used was the GPS on Skinner’s cell phone.

Read more here: US v. Skinner

New York Law Journal Article about Brady Violations

What are Brady violations? “Brady” refers to a seminal US Supreme Court case from 1963; wherein, the prosecutor withheld evidence critical to the defense of the accused, which resulted in his conviction. See: Brady v. Maryland, 373 US 83 (1963). The accused, Mr. Brady, challenged his conviction – unsuccessfully. However, his case established a core due process principle that the prosecutor cannot withhold exculpatory evidence that is material to the guilt or punishment of a person accused of a crime. Exculpatory evidence is “material” if “there is a reasonable probability that his conviction or sentence would have been different had these materials been disclosed.”Brady evidence includes statements of witnesses or physical evidence that conflicts with the prosecution’s witnesses,and evidence that could allow the defense to impeach the credibility of a prosecution witness.

However, Brady violations continue to this day. The net effect is that people are wrongfully convicted and innocent people suffer imprisonment or worse. “The withholding of information favorable to the accused is abhorrent, as it violates the core principles of Brady, and is contrary to the duty of a prosecutor to seek justice—not merely convictions.” Perhaps if Brady violations didn’t happen this map would look very different.

Read more here: A Personal Reflection on Brady Violations.

Occupation: Drug Dealer?

You have the right to remain silent. Anything you say or do can and will be held against you in a court of law. You have the right to speak to an attorney. If you cannot afford an attorney, one will be appointed for you. Do you understand these rights as they have been read to you?*

Deaundre Barnes kind of knew what the Miranda warning meant when he was arrested for allegedly stabbing a man for interrupting his argument with his girlfriend. According to the Tampa Bay Times article, when he was arrested by the police, Mr. Barnes refused to answer their questions. However, Mr. Barnes didn’t get it all right; he apparently slipped up at one time or another because the article states that he listed his occupation as “drug dealer” on some kind of paperwork. Not a smart move, given that Mr. Barnes is allegedly on drug offender probation.

The substance of Miranda is that you do not have to answer any questions by the police. Anything you say can and will be used against you in court. Many cases that come across my desk involve a criminal defendant who told the police everything. Many times those defendants are surprised to learn that the police are using their own statements against them. “I thought they were supposed to Mirandize me,” is probably the second-most common statement I hear from clients. What those clients didn’t know is that the police are free to ask any questions they want – even lie – to get answers during their interactions with suspects and/or witnesses. It is only when the police arrest someone, or a reasonable person would feel that he or she is not free to leave that the police need to Mirandize someone.

Up until that point, the police can ask any questions they want to – but a person would be a fool to answer them. Simply put, no one is required to answer any of their questions. Instead of answering their questions, a person can respond with “Am I under arrest officer?” Chances are, if the officer wants to make an arrest, he’s already came to that conclusion long before anyone asks him, and nothing a person says is going to change his mind at that point anyway. By asking him, the person being questioned puts the officer on notice that the person knows what his rights are. If the officer responds to the question by stating that the person is under arrest, then it would be perfectly within a person’s right to ask to be Mirandized or to refuse to answer any of his questions, since we all have the right to remain silent. Once a person invokes his or her right to remain silent (something that must be done expressly), the police must stop all questioning, if that person is under arrest. If the officer tells a person that he or she is not under arrest, (understand that this could be a lie) it is still tell important to state that none of his questions will be answered. It is also important to ask politely, “can I go now?” Note: Just because a person is not under arrest does not mean that he or she is immediately free to leave. For example, if someone has been stopped for a blown tail light or for speeding, he or she can’t just drive off until the police officer has completed the traffic stop.

*The wording of Miranda rights vary depending on the jurisdiction, but the substance should remain the same. This one is used by Alaskan State Troopers.

Michigan Criminal Defense Attorney Arrested and Charged with Conspiracy to Commit Perjury

Detroit, MI — Criminal Defense Attorney David Dunn was arrested in Circuit Court Judge Timothy Kenny’s courtroom at the Frank Murphy Hall of Justice on Monday. Mr. Dunn stands accused of conspiracy to commit perjury, witness interference, obstruction of justice, incitement of perjury and solicitation to commit a felony. All of the charges stem from his alleged attempts to convince a witness to commit perjury in a murder trial.

According to this MSNBC article, the Detroit Police and FBI were tipped off and began to conduct surveillance on Mr. Dunn. The article also claims that those agencies recorded Mr. Dunn trying to pay the witness to lie at trial. If convicted, Mr. Dunn could face up to life in prison.

What is perjury? Black’s Law Dictionary, the bible of legal definitions, defines perjury as the act of deliberately making a material statement that is false or misleading while under oath. It is a serious charge that impacts not only Mr. Dunn, but also the criminal defense community on the whole, the courts, and the criminal justice system.

Criminal defense attorneys abhor this kind of behavior. Our job is to seek out the truth and shine a light on it for jurors and judges alike. Often, our job is hard. People lie. They cover it up. They weave lie within lie. They try to hide their wrong-doing, to save face, to hurt someone else, to gain a tactical advantage, to win, or to cast their actions in the best possible light.

Mr. Dunn faces serious charges that could end his career and land him in jail. I do not know Mr. Dunn, personally or professionally; according to his Facebook page, we share 5 mutual friends, but I have never met him. I only became aware of his circumstances through the news media. Many of my colleagues are concerned about the allegations and the corresponding news coverage. It reminds them of a lie in a 2005 drug case that implicated former prosecutor Karen Plant, who was the prosecutor in the case, but also former judge Mary Waterstone, who presided over the case. (See ABA Journal article and The Michigan Lawyer blog). Ms. Plant ultimately pled guilty for allowing a witness to lie during a criminal trial and former Judge Waterstone was on her way to trial back in April of 2011, but I’m not sure what happened with her; nevertheless, her career and reputation suffered greatly. Mr. Dunn could share a similar fate – even if acquitted; if found guilty, he faces up to life in prison.

It’s Only A Misdemeanor…

Criminal cases are never easy. Occasionally, in the hallways just outside the courtrooms, I hear attorneys tell their clients “it’s only a misdemeanor”; as if clients find comfort in those words. However, many clients don’t understand the difference between a misdemeanor and a felony. For some, their arrest and arraignment represent their first contact with the criminal justice system. While, it is true, in the abstract, that felonies carry more severe penalties than misdemeanors, the latter can still drastically impact people’s lives.

Misdemeanors come in many shapes and sizes; some with severe social, legal, and collateral consequences. A good example of a misdemeanor with severe consequences is the recent San Francisco Superior Court’s sentence of a 23 year-old bicyclist for vehicular manslaughter. J. Robert Mortland III, Esq. wrote about it on his blog today. The cyclist ran a red light and struck a 68 year-old pedestrian who was crossing the street with her husband. While, it was only a misdemeanor, the lives of everyone involved changed drastically. If you want to read more about the case and the cyclist’s sentence, visit Mr. Mortland’s blog here. It potentially could have been much more severe. What do you think?

It’s easy to forget about real life drama these days when everyone is talking about the Bachelor and why bachelor Ben Flajnik’s chose Courtney Robertson over Lindzi Cox; or, why Randy Moss gets to sign a new one-year-deal for something he didn’t do, e.g., he didn’t play last year; or even, how JonBenet Ramsey’s father finds shows like “Toddlers and Tiaras” disturbing. Yet, I hope people remember that their lives can change in an instant. All it takes is one missed opportunity, one wrong decision, or one false accusation to bring someone face-to-face with the criminal justice system. Then, reality t.v. or the “Hunger Games” premiere will pale in comparison to their real life drama.

If you’re facing criminal charges, or the police are investigating you for some reason, call an attorney who concentrates his practice in criminal defense. Even if you are only being charged with a misdemeanor; you don’t want to get a one-year-deal for something you didn’t do.

Law Office of Matt Vititoe • www.monroelawyer.wordpress.com • read reviews and endorsements here.

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