PRIVACY EXPECTATIONS

Reasonable Expectation of Privacy

One of the core protections given under our Constitution is the right to privacy. Our forefathers wanted to be left alone. At least from government intrusion. With the inception of police cameras at every intersection and the watchful eyes of the Patriot Act many ask - where do I have an expectation of privacy?

Inside your home is usually a place where one expects privacy. But what about the trash can you sit on your street corner? What if you your spending the night at a friends house - do you have an expectation of privacy in your overnight bag?

The landmark case of privacy come from 1967 in U.S. v. Kantz.  Mr. Kantz was conducting his illegal business while talking on a pay phone. Remember this is 1967 so the pay phones were the type that you closed the door behind you type. (Jeez, has anyone seen one of those lately??). The FBI got wise to this and put a listening device outside of the booth and recorded Mr. Kantz conversations. This was done without any type of wiretap search warrant.

The Court ruled that Mr. Kantz does have a reasonable expectation of privacy in that phone booth. The test adopted by the Court was 1. has the suspect manifested an expectation of privacy and 2. Is society willing to accept that expectation as reasonable?.

What about my two examples? Yes, an overnight guest has a reasonable expectation of privacy. However, there is no reasonable expectation of privacy in your garbage you sit outside for the garbage man. Here are my favorite examples of privacy decisions:

• Suspect standing in doorway  - no expectation of privacy

• Bank records - no expectation of privacy

• Dog sniff outside of vehicle - no expectation of privacy

• Prison Cell - umm yea, some guy actually thought what he said in a prison cell is private....

• School Children - DO have expectation of privacy

• Thermal Imaging - Police can not peer into your house with infra red cameras detecting heat patterns.

• GPS Vehicle Tracking - This one was just decided recently. No the police cannot attach a GPS system to your vehicle without first obtaining a warrant.

And one I unfortunately hear often - “umm I was inside my house talking to my friend and the cops recorded it. Thats an invasion of my privacy.” But not if your friend is an undercover narcotics officer... 

DUI - Presumptions of intoxication

All 50 states have a law in effect that allows for a presumption to be drawn at a predetermined amount of blood alcohol level (BAC). In Tennessee the current BAC to trigger this presumption is .08% BAC.  The purpose of this presumption is to ease the burden on the State to prove that the person was actually “under the influence”. 

So in layman's terms if a person submits to a chemical test and that test was administered correctly the jury is to presume the defendant was under the influence if the BAC is .08% or greater. Many legal scholars are concerned with the wording of such laws in fear that any “presumption” other than the presumption of innocence is improper.  Many courts use the term “inference” when charging a jury on this issue. 

In any event, the presumptions created by the statute are rebuttable. This means that if you can show that the test was somehow faulty or that the person was not “under the influence” then the jury is free to disregard this presumption. 

For example, if during cross examination the person who took the blood from the defendant could not remember where he stored the blood for several hours,a jury could reject the presumption that the blood was an accurate account of the defendant’s BAC. A much more difficult rebuttal to the presumption would be to prove that even though the BAC was over .08% the defendant was not under the influence. In fact, there is some reliable evidence that a person who is .10% BAC will have no impairment in reaction time.(See Lane Baylor’s article - Effects of Ethanol on Human Fractionated Response Times)

If the defendant submits to a chemical test and the results are above the legal limit, the State will normally charge DUI as well as a DUI per se. These are two separate charges but if a defendant is convicted then the charges will merge into one conviction.  BUT since the two charges contain different elements to prove, you can actually be found NOT GUILTY of DUI and have a hung jury on the DUI per se and then be retried on the DUI per se without any type of double jeopardy implications. 

Probable Cause

You’ve probably heard it on the tv shows – A cop has to have “probable cause” to arrest. But what is probable cause and why is it so important? The best definition of probable cause that I have heard is:

“There must be probable cause to believe the particular person committed or is committing a particular offense”

The probable cause test is an objective one. Subjective intent is irrelevant. So subjective good intent will not be a sound basis for probable cause nor will subjective bad intent be the basis to void probable cause.  Since the definition of probable cause is relatively vague each case must be evaluated on a case by case basis using a totality of circumstances test. Hearsay is allowed in a probable cause determination. However, the Court’s will look at where the hearsay came from. For example, was the hearsay from a criminal informant or a citizen? 

Often a stumbling block for first year law students or rookie cops is that probable cause is NOT needed to effectuate a stop or to detain a person. A cop only but need to have “reasonable suspicion” that a crime has or is about to occur to initiate a vehicle stop or to halt someone. 

Finally, why is probable cause so important in arrests? Both the United States and Tennessee Constitutions provide against unreasonable search and seizures. The Tennessee Constitution goes a bit further to state that “general warrants, whereby an officer may be commanded to search suspected places, without evidence of the fact committed, or to seize any person or person not named, whose offenses are not particularly described and supported by evidence, are dangerous to liberty and ought not to be granted”

So our very own constitution warns us against warrantless arrests that do not have the prerequisite probable cause in that such arrest powers are dangerous to our liberty. 

DUI: Scary new laws for 2012

There were new laws that went into effect on January 1, 2012 that relate to blood alcohol testing. 

• If you have a prior conviction for DUI and you are stopped and the officer has probable cause to believe that you are DUI then a BLOOD TEST will be taken from you. OR
• Even if you have no prior DUI (or any other charge for that matter) and the officer has probable cause to believe you are DUI and you have a child under age 16 in the vehicle with you then a BLOOD TEST will be taken from you. 

I realize that DUI is a horrible crime that destroys lives. But I also am well aware that thousands of citizens are wrongfully accused of DUI each year. When did we stop living in a free society? Under this new law a blood test will be taken from you even over your objection. You can literally be strapped down to a hospital bed and have your blood forcibly removed from your body. This is done without any type of search warrant or independent judicial review. Its all left to the opinion of the officer making the arrest. 

A person who made one bad mistake when they were 22 and got a DUI can now be stopped and suspected of DUI when they are 52 and have no option to refuse a blood test.  

Even better, take a person, with no criminal record what so ever, who wants to take their 15 year old son to pizza hut after his big soccer  game where the son scored the winning goal. At dinner you have one beer and as you leave your spouse tells you to drive because they are having a headache. On the way home you drop your watch and swerve your car a bit while picking up your watch from the floorboard. An officer stops you, smells your breath, and concluded that you are probably DUI based upon his observations. Under the new law you will be FORCED to go to the hospital and have your arm stabbed with a needle and your blood drawn for analysis. 

Im sure that some will say that the cops are never wrong in their opinions of who is and is not DUI. There is no sort of reasoning or argument that can persuade those of this limited mentality so I won't waste our time addressing it. However, there will be those that believe that a blood test will only exonerate the innocent so this law is a good thing. We must remember that these so called blood tests are not infallible. There are a million things that can cause a blood test to have inaccurate readings. Please see my other blog posts on this topic. 

There will always be overzealous cops who charge the innocent and there will always be screwed up lab results. What concerns me more than both of those is the loss of freedom associated with this law. The inability to not be able to say - no, you cannot force my blood from its veins.  Prior to this law you could refuse and lose your license and possibly face other penalties. But under this new law there is no option - you will have your blood drawn from your veins. 

Is this the way to really combat DUI? or is it merely the knee jerk reaction from legislators to interest groups such as MADD and Federal DUI grants? Shouldn't we be educating our officers on how to detect DUI's or provide more DUI enforcement officers? Should we try to educate the DUI offender as to the seriousness of his actions BEFORE they get behind the wheel? Is whittling away at our freedoms and forcing blood out of our veins the best answer to our problems? Those who remain still will never feel the chains that bind them...

Thoughts??

Immigration Hotline - Why its important for all of us in Sevier County

The Immigration Customs Enforcement Agency (ICE) has created a hotline for anyone who believes that they are being illegally detained as a result of their questioned United States citizenship. This hotline operates 24/7.  Why is this an important step in protecting citizens in Sevier county? You may say "I am a white/black/native american who speaks perfect english and give no indication of being other than a United States citizen -this surly wouldn't be of any interest to me right??"


Wrong. Let me give you a true example of what can potentially happen to you in Sevier County and why having this number may save you an extended stay in jail.


This year 3 black women were stopped by SPD and questioned because they fit the profile of a shoplifter. No person observed these women stealing anything.  Store employees contacted the police because the women were acting suspicious. Interestingly, the suspicious actions were actions the police told the store employees to be looking for in shoplifters.


The women were detained by SPD and asked to produce I.D. When the women stated that they did not have I.D. on them they were told that they could be held for up to three days without being charged with a crime to determine their citizenship.  There was nothing to indicate that these women were anything but United States citizens.


When questioned under oath the officer stated that the law allowing a 3-day detention was "T.C.A." meaning Tennessee Code Annotated. The prosecutor nor the Judge could find such a statute in the Tennessee Code.


I do not know if this remains a practice in Sevier county but I urge each of you to keep this ICE number handy just in case you are ever stopped without your I.D. and hauled off to jail for your citizenship to be confirmed.


The ICE hotline number is (855) 448-6903

DUI: Asleep at the wheel = crime?

Oh if I had a dollar for every time I have been posed this question - “I left a bar and after I drove a mile or so I realized I shouldn’t be driving. I pulled into a parking lot, turned off my car and went to sleep. A cop comes by, wakes me up, and charges me with DUI. Can they do that?”

Under this fact pattern they most certainly can. The accused need only be in “physical control” of a motor vehicle to meet the requirements of a DUI. In State v. Lawrence the defendant was found asleep inside a truck in the drivers seat. The engine was off and the keys were in his front pocket. Mr. Lawrence’s conviction was upheld by the Court of Appeals who stated that the vehicle was capable of being immediately placed in motion.

In a similar case, State v. Turner, two good ol boys were observed by the police staggering across a bar parking lot. They get in the vehicle and turn on the ignition but never moved the car. Cop charges Mr. Turner with DUI. Mr. Turner’s defense was that he and his buddie were just waiting in the car for his nephew to come and pick them up. The engine was turned on just to stay warm. The nephew came to court and testified that he was in fact on his way to pick up Mr. Turner.  Unfortunately, Mr. Turner’s conviction was upheld by the Court of Appeals who found that Mr. Turner was in “physical control” of the vehicle. 

 It appears that the Courts look closely at where the defendant was in the vehicle as well as the location of the car keys. While it might not save you from a DUI arrest or even a DUI conviction, if you must pull off to the side of the road to “sleep on off” then you might want to consider getting in the back seat and putting the keys far far away from the vehicle. 

What about if the vehicle has been rendered inoperable  - say a flat tire?  I intend to address that issue in my next DUI blog. Stay tuned!

Immunity from Arrest

Remember that Lethal Weapon movie where the villain did whatever he wanted because he had diplomatic immunity? Yea that was a classic but is diplomatic immunity real?

Before we get to that, there is limited immunity for arrest for non-diplomats. For example, members of the General Assembly have immunity under the Tennessee Constitution Article II § 13. They can still be arrested for treason, a felony, or breach of the peace and this immunity only applies during session of the General Assembly or traveling to and fro.  Members of the National Guard also have the same immunity as the General Assembly but such immunity only applies when engaged in military duties (See T.C.A. 58-1-226). 

But what about the guy from Lethal Weapon??  Ok,ok,  the good ol United States Constitution does  provide for immunity for (ding ding) members of Congress. It also provides for immunity for diplomats of a foreign nation.  I don’t see that in the Constitution you say! Look at the fine print under Article 1 § 6.  The Federal Statute provided for broader immunity for the staff and family members under 22 U.S.C.A. §254(d).

But wait before paying up that $10 bet to your lethal weapon fanatic buddie. It doesn’t work exactly like the movies let on. First of all, the diplomat can still be prosecuted under the laws of its home country for acts committed in the United States. Not to forget the immunity applies to the Country not the diplomat himself. A foreign country can waive its immunity and the diplomat can then be charged under U.S. law. This actually happened back in 1997 when a diplomat drove drunk and killed a 16yr old girl. From what I understand he is serving up to 21 years in federal prison. 

Why would we allow immunity like this? Simply put - we want our diplomats treated with the same protocols. Some of our laws are strange and go against long standing traditions of some of our diplomats. For example having multiple wifes or sex with a willing 12 year old in many countries is completely legal and moral. We would hate to think of sending one of our diplomats to a foreign country and him be sentenced to 40 years of hard labor because he smoked a cigarette in a public place right?

Its not a perfect system but overall I believe it works pretty well. In any case it makes one heck of a great movie theme!