Articles Posted in Constitutional Issue

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Justice John Roberts and the conservative Supreme Court of the United States of America strikes again. In an 8 to 1 decision written by Chief Justice John Roberts the court held that evidence gleaned from an otherwise illegal search and seizure can be used against the defendant if the stop was based on good faith. This is a horrible precedent to set for an already strained American people who are sick and tired of law enforcement overstepping their boundaries and in some cases making fatal decisions which go unanswered the courts.

While this decision does not rise to the level of law enforcement killing suspects and police not being indicted, it does further offer the police a wide net to work with because evidence that was formerly obtained as the result of an illegal search and seizure was considered tainted and not usable in court; but as a result of this decision it appears that such evidence, if obtained under the color of law, even though mistaken will be permitted to be used against the defendant.

The decision in Heien v. North Carolina involves a case out of North Carolina in which a police officer pulled the defendant over because his right brake light was out and the officer mistakenly believed that give a basis for a lawful stop. In North Carolina only one brake light is required to operate the vehicle and the officer was mistaken on the basis for the stop. As a result of the illegal stop, the defendant consented to a search of his vehicle which resulted in the location of CDS in the trunk. Counsel for the defendant subsequently attempted to suppress the illegal drugs as a result of an illegal stop. The trial court denied the argument, the North Carolina Appellate Court suppressed the evidnce and the Supreme Court of the United States has now held that despite the stop being illegal, if the stop is done in good faith, subsequently obtained evidence can still be utilized against the defendant.
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In Ferguson, Missouri, there is a tragedy following a police shooting. Michael Brown is shot to death while walking down the street. Evidently the police told him to get out of the street and Brown thought better of that. There was a confrontation with the police officer which escalated and the officer felt that he needed to reach for his service weapon and moments later a black man lay dead in the street. This gives new meaning to “driving black in America”. Now “walking black in America” is a life threatening issue as well.

Not saying that Michael Brown was a good person mind you; he was an imposing young man who moments earlier evidently stole something from a local merchant. When confronted by the merchant, Brown pushed the merchant out of the way and exited the store. The cop was unaware of that situation at the time of the shooting.

The larger issue is white officer on black defendant and the use of deadly force and the next bigger issue is law enforcement and the court’s continual erosion of our Constitutional rights. Now this officer should have been trained in when and how to use deadly force, I am sure that would not include when a large black male refuses to get out of the street, or even if an altercation ensued, that is not license to use deadly force, even if the kid is going to kick your a…. all over the street. That’s when you need to call your partners in blue.
Also, don’t the cops out that way have tasers?

My concern however is not the specifics of this particular case. I am more concerned with law enforcement and the high court’s continued erosion of the people’s protections against the system, against state authority. In this case, an unarmed shooting, but in other cases, like DUI checkpoints for example the police can stop cars for no reason. Recently, in Navarette v. California, the United States Supreme Court, in a 5-4 decision made matters dramatically worse.
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An important privacy issue has been brewing of late. In these days of eroding Constitutional protections and important issue has developed that has to do with privacy and your mobile phone following an arrest. The police, in their unending battle to fight crime and lock up the bad people have taken to invading person’s privacy upon arrest by shamefully foraging through a defendant’s mobile phone looking for incriminating text messages, illegal pictures, contacts with known criminals, etc. Law abiding folks and those that appreciate our Constitutional protections in this country, as eroding as they may be, have been putting up a fight.

The important issue of mobile phone security/privacy made its way to the Supreme Court of the United States where the justices recently ruled on whether a person can expect some level of privacy regarding their phone contents upon arrest. On a side note, these smart phones do have locking mechanisms to keep prying eyes out so if one did wish to stay private it seems it might be a good idea to utilize such security features, and it is still a good idea despite the Court’s favorable ruling.

I digress, the Court actually found for the little guy in this decision, and decided that folks do have a recognizable privacy interest in their phones and if “the man” wishes to pry inside the digital enclave of a collar’s phone, they actually have to secure a search warrant to do so. This is good news because most arrests, like DUI for example, would not yield probable cause for a search warrant to issue and therefore the contents of one’s phone should remain private. Conversely, if a defendant was arrested for drug distribution for example, there very well may be probable cause for the cops to get a search warrant for that phone. Thus, the Supreme Court’s opinion in this case does recognize privacy and does the right thing to protect Joe citizen. If the cops have a legally cognizable need to search a phone they have a legal mechanism to do so, but they cannot willy-nilly go through the phone of every person they arrest for jaw walking, driving with suspended tags, or even DUI.

Since most people have private personal information on their phone, saying banking info for example, it is always a good idea to implement as much security on the phone as possible to keep prying eyes out, even police eyes and possibly even police eyes with a search warrant. I wonder how they get into the phone even with a warrant if the owner does not give them access to the password to the phone. So, if your privacy is important to you, and there are things that warrant security and privacy on your phone, even in light of this favorable opinion of the Court, it is always a good idea to secure your phone with a complex password and not to leave it vulnerable to prying, nosy eyes.

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The Supreme Court of the United States has spoken in their decision in Navarette v. California; again they have significantly limited the reach and protection of the 4th Amendment to the Constitution that protects all good citizens (and no so good), in this country. Up until this recent recent decision by the hight Court, motorists were protected from unreasonable searches and seizures by over zealous police and law enforcement. That is, the police needed more then a hunch to stop a car, they had to have, at a minimum, reasonable articulable suspicion; that typically translated into the cop actually witnessing an act of wrong doing. Thus, if an citizen eyewitness to a driving infraction saw something specious, said witness could call it in to the police but the cops would still have to corroborate the tip by witnessing some bad driving for themselves prior to pulling the suspect over. This layer of additional surveillance protected the public from unreasonable police conduct and from an X-spouse or jilted girlfriend causing a legal problem to get back a the target of their prior affection.

Unfortunately, this has now changed as a result of the decision in Navarette. Now, when a 911 tipster calls in a possible DUI driver and provides the police ample information to corroborate the incident, ie. where the driver is, time of day, what they say, etc., the police are not free to utilize this information as the basis for a legal stop- without anything more! Now, thanks to this opinion, the police no longer have to follow the vehicle and observe an infraction themselves. In this case, the cop actually did follow the suspect for 5 minutes and was unable to see any further traffic infractions and therefore should not have been permitted to effectuate the stop. This officer however, made the stop and the driver was found subsequently guilty based upon the tipster alone. The stop in this case made it all the way to the Supreme Court and was up held with Justice Thomas writing the opinion for the Court supported by Roberts and Kennedy.

As far as the narrow purview of DUI detection is concerned, such an opinion may find support in the general public, but it is wise to bear in mind with conservative opinions like this that we are all seriously effected when the 4th Amendment is continuously eroded by the Court. Now anybody can make a 911 call and with a few scant details the police are actually free to stop a car and interrogate the driver with no first hand knowledge. Thus, if a mother turns around to scald a unruly child and momentarily leaves her lane of travel, and that is called into the police, without more, the police are free to stop that car and exercise their police powers. What a freaking disaster!

Justice Scalia, writing the dissent for the Court had the following to say:

Law enforcement agencies follow closely our judgments on matters such as this, and they will identify at once our new rule: So long as the caller identifies where the car is, anonymous claims of a single instance of possibly careless or reckless driving, called into 911, will support a traffic stop. This is not my concept, and I am sure would not be the Framers’, of a people secure from unreasonable searches and seizures. I would reverse the judgment of the Court of Appeal of California.

This dissent recognizes what has long been the law of this land for over 200 years; what has been the bed rock of protecting the citizenry from the police machinery. The Court with a stroke of its pen has single handedly minimized if not nullified the law of the land and simultaneously exposed the motoring public to capricious and erratic law enforcement activity.

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One of the cornerstones of the U.S. Constitution, the one we hear the most about is the 4th Amendment to the U.S. Constitution. That is the one that says the people shall be free from unreasonable searches by the Government, ie., the people shall be secure in their persons, places, houses and effects and no warrant shall issue in the absence of probable cause. This critical legal right, conceived from our founding fathers of this great nation, has been the cornerstone of American jurisprudence and continues to be the bane of prosecutors nationwide Every single day in this country cases are thrown out court because evidence is offered by the Government that was not legally obtained. The same holds true in DUI arrests in Maryland and throughout the country.

In the context of DUI and DWI arrests, the police need to have a legal basis to stop a car. Before the cops have the opportunity to exaggerate their reports by using boilerplate language copied from one report to the next, they first have to dream up a legally recognizable basis to stop a car. Now, in all honesty, that isn’t too difficult to do. The cops can stop a car for practically any reason at all, something as minor as a burnt out license plate light. And if they don’t immediately see a basis to stop your car, they can even make one or force the issue. For example, they can come right up on your bumper and stay there until you speed up over the limit, or change lanes without a blinker, then they have a legal basis to stop you. It ain’t tough and cops know that!

Interestingly however, in North Carolina there was a recent case where the cops boldly didn’t even bother to make anything up, they admitted they had no legal basis to stop a woman’s car, and the Court of Appeals in Carolina supported this baseless stop under “community care.” Apparently the woman hit an animal in the road and kept on driving. The cops evidently saw this but could not put their finger on any bad driving, or driving violations. They didn’t even bother to use the time honored, ride the bumper until she does something illegal protocol; they just stopped her and then moved into phase two, cut and paste a report with the proper DUI buzzwords and the rest is history.
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My 24 year old client was charged with Manslaughter when it was alleged that he was weaving/speeding in traffic and rear ended a car in Anne Arundel County. The case was pending for nearly one year. The witness statements and the physical evidence did not support these callous and baseless accusations.

Thanks in part to shoddy police investigation combined with selective investigative techniques, ie. taking statements from those witnesses that support the police theory and steering clear of witnesses that did not support the police theory, the Jury remained unmoved by the Government’s pleas for justice for the deceased victim.

The Government put on it’s one day case and the defense put on its witness for approximately 10 minutes and rested the case. The defendant did not even need to testify. 3 hours later (including lunch breach) the jury came back with a NOT GUILTY verdict on Manslaughter and Reckless driving, the most serious charges. The jury found the defendant guilty of minor traffic offenses like speeding and negligent driving; he received a $500 fine.

The laws in this state support a manslaughter finding where a victim dies and the defendant is found to have operated his car in a grossly negligent or wanton and reckless manor. While this sounds reasonable, the Government is contorting this standard to achieve convictions and cases where they should not be.
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A very important and favorable decision was recently released by the Circuit Court in Carroll County, Maryland. The opinion was the culmination of many DUI cases which utilized drug recognition testimony (DRE) to assist in the conviction of drivers thought to be impaired by drugs, as opposed to alcohol.

DRE evidence is seriously sketchy evidence offered by the State and garnered by members of the local police department that are known as DRE’s. The individuals are “trained” in about one week to identify persons that are under the influence of drugs by looking at their eyes, taking their pulse, feeling their skin, listening to them speak, possibly asking them to engage in roadside gymnastics (Field Tests) and various other methods. The most important of which is asking them “what drugs have you recently taken?” After that last question, miraculously the police DRE comes up with a diagnosis of what drug the defendant is on.

Needless to say, this DRE testimony is largely a huge bucket of crap and up to this point, too many judges and or juries have been bombarded with this garbage science and charged with the responsibility to convict Defendants. Part of the DRE examination is similar to the field sobriety tests which defendants are called upon to perform late night on the roadside; also a huge load of crap and perhaps now more eyes will be opened to this junk evidence and perhaps more courts will exclude the evidence.

The Carroll County Court held a lengthly hearing on the matter hearing from many experts on both sides of the fence. All the best was brought to bear by both the State and Defense. The Court, after considering the case for an extended period of time and hearing from all the experts came up with the only logical conclusion possible, this DRE evidence is crap and should not be allowed to persuade our juries. It will be interesting to see if Maryland’s higher Courts are called upon to review the matter, which would only further crystalize this wonderful and long awaited opinion. For more information see State of Maryland v. Brightful, et al. http://

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I have written about DUI arrest quotas before, they are illegal. Quotas are when the police brass tells the rank and file police officers that they are to apprehend X number of traffic/dui offenders over a given period of time. If the cops do what they are told, they can be rewarded with anything from advancement to bonuses to time off etc. If they fail to meet their quota then bad things can happen, like retraining (think Cold War Russia).

The police routinely deny utilizing quotas stating that they are illegal (wink), which in fact they are according to Maryland Law. The basis for a stop and arrest is supposed to be purely one of probable cause of a crime, not one based in motivation of the police officer to achieve something of value for doing his job.

It seems that Howard County law enforcement (in this instance the Howard County Police Chief allegedly) got their/his hand stuck in the old cookie jar. Judge Hantman, sitting on the Howard County District Court bench heard the matter of a female driver that was stopped for speeding. According to Court documents, she had a .17 BAC and was charged accordingly. However, it appears that the police and the brass, acting allegedly in some part as a result of a Federal Grant, were given quotas to meet. This is a no-no. The brass knows this and the police know it too. Now, thanks to the enviable Honorable Judge Hantman, the police know that the Courts are watching, and that the Judges are not just going to go along with business as usual. Ie. Wink wink, arrest everybody and keep up numbers up, even if they were driving below the speed limit and have a .04 BAC. (which does happen).
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The 4th Amendment to the United State’s Constitution says “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated…” This amendment, part of the Bill of Rights, made applicable to the individual states through the 14th amendment Due Process clause as established by the Supreme Court in Mapp v. Ohio, 367 U.S. 643 (1961), says that citizens shall not be stopped in their cars, or otherwise without probable cause or reasonable suspicion to believe that a crime has been committed. This law was upheld by the Supreme Court in Delaware v. Prouse where the Supreme Court held the 4th Amendment right to privacy outweighed the states desire to stop cars to check driver’s licenses and registration cards.

However, the Supreme Court modified its position in the decision of Michigan v. Sitz where it held that the prohibition of stopping an automobile in the absence of probable cause was outweighed by the desire to eradicate drunk driving on our streets. The Justices voted 6-3 in favor of allowing the “DUI Exception” to the Delaware v. Prouse opinion.

Maryland has also visited this particular issue in the case of Little v. State 479 A.2d 903 (1983). The Court ruled that roadblocks were legal in Maryland because of the State’s important need to stop drunk driver’s on Maryland streets; however, the Court did recognize certain procedural requirements that must be satisfied in order to make a roadblock lawful. If a roadblock fails to meet procedural requirements, then the resulting arrest is illegal and the case will be won or dismissed in Court, such is what happened to my client this week in Baltimore County District Court. Case dismissed, details follow….
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In my prior DUI post on this topic I was explaining that the criminal justice system for some reason treats DUI suspects differently and with less privilege, than a murder suspect. This is of great concern to the DUI bar for many reasons. The most important of which was already discussed, that is, we can not permit an erosion of constitutional rights in the name of convenience of prosecution. This ideology takes us down a scary and slippery slope which we as Americans have never permitted, so why permit it in DUI cases?

I must say the degree of enthusiasm and the extent to which the government machine is willing to sacrifice our legal rights strikes me as rather ironic when considering the large variety of people who actually get charged with DUI cases. That is, the very law makers who seek to limit your rights and place the iconic letter on your back are also the law breakers. Starting with a certain former President, charged with DUI, police officers, prosecutors, law makers, countless congressional representatives, doctors, lawyers, and Indian chiefs. A Google search on the topic would reveal countless DUI cases involving any group, for example today, July 4th, 2007 the Chicago Tribune has a piece on a police deputy stopped for suspicion of DUI and wouldn’t you know it, there was a prosecutor in the car with him. The story continues that they were processed and released without charges. Whoops, somebody forgot to charge the police deputy with DUI, how could that happen? Now everybody involved is suspended and it’s all being reviewed for procedural errors which they admit occurred.

How about the Delaware State Representative who was pulled over in December 2006 and flashed his legislative I.D. card and was released without charges by two Ocean City Maryland police officers-whoops. It’s just more than ironic, perhaps hypocriticalthat everybody wants to hammer the DUI suspect, limit their rights, convict as quickly as possible until it happens to somebody in the spot light or somebody with authority, then it’s time to drop charges, run the other way, and turn the other cheek.

Not concerned about your rights yet? Alright. You are driving home from dinner on Friday night, wife and family in the car. You are driving perfectly because you not impaired. You had a glass of wine with your dinner, maybe two. You are herded into a police sobriety checkpoint or road block which is set up on the road you take home. After sitting in a backed up traffic line for 5-10 minutes while the cops engage each driver in conversation, it is your turn. You are not concerned because you are not drunk. Good evening Sir- have you had anything to drink tonight? Your heart jumps into your throat, you know you are not drunk or impaired so you answer truthfully, a couple of glasses of wine with dinner. Sir can you please pull over to the side for field sobriety tests…. guess what? Unless you are a gymnast you are going to jail right now, in front of your wife and children who are horrified. You are going to be charged with a DUI, you have to hire a lawyer, go to court, complete an alcohol class, be on supervision and pay all kinds of money for lawyers and, you guessed it, government fees and fines.

Why? You only had two glasses of wine at dinner, you were driving fine how could this happen? Heck after taking you to the station you only blew a .06 which is below the legal limit of .08. What happened? Well in today’s climate nobody gives a darn. If you admit to drinking alcohol you will be stopped and asked to do field exercises. If you perform those exercises, you will undoubtedly fail them because they are foreign to you and you are nervous and scared. Once that happens, you are going to be charged no matter what, whether you blow a .04, .08 or more. I know because I see it every day. I had a lady involved in a serious single car accident who blew a .04, she had wine with her Mother over lunch. She was charged. I got her off the charge, but she still had to go through all the emotional turmoil and expense of the process.

The point I want to advance here is that 1) this can easily happen to any person any time no matter who they are- unless you just do not consume any alcohol and more importantly 2) this should not happen at all and here’s why…..
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