What you say (and don't say) can be used against you in Court.

We have all heard the suspect in cop movies being told that "any thing you say will be used against you in court". This information that the police tell suspects comes from the landmark case of Miranda. These warnings are referred to as "Miranda warnings" and include the right to an attorney as well as your constitutional protections under the 5th amendment.

Nearly all of us have heard of Miranda but have you heard of Salinas v. Texas?? Salinas is a very recent case heard in the United States Supreme Court and vastly undermines your right against self incrimination.  The focus point of the Salinas case is  - If you choose to not talk to the police, can your silence be used against you?

In short, Salinas was asked by the police to come down to the police station to answer some questions about a murder. Salinas goes down to the station and answers a few  non accusatory questions. Then when the cops ask Salinas if his gun would match the gun in the murder. Salinas didn't answer, just hung his head and did not answer any further accusatory questions.

The case ultimately goes to trial and the prosectors and cops focus on Salinas silence when asked the accusatory questions. The prosecutor tells the jury that innocent people don't act like that. Salinas's defense objects adamantly to Salinas silence being admitted into the trial. The evidence was admitted into the trial and Salias was ultimately found guilty.

The United States Supreme Court found that since Salinas didn't expressly inform the cops of his invoking his 5th amendment rights then the silence was admissible.  What does this mean for the lay citizen? A person being questioned by the police must invoke their constitutional rights if they are not going to answer any questions. This means that saying "i don't want to talk to you (police)" may not be enough. You should affirmatively state that you are invoking your constitutional rights.

Remember though, that Salinas voluntarily went to the police station for questioning. The case would probably have been much different if Salinas was already under arrest and then remained silence. There could be a multitude of situations where Salinas's silence would have been inadmissible.

Why do I feel that this case is such an injustice? I see the silence as possibly hiding the guilty of a crime. However, there is also other possibilities that silence could represent. Salinas could not have understood the question or he could have simply been remaining silent to cover for the true killer whom he knows. Neither of which makes Salinas guilty of murder.  I have put together a form to give to police to assert constitutional rights. If you would like a copy of my form feel free to email me and I will get that to you.

Questions and Comments are encouraged...

Filming the Police

On May 15, 2010 Chris Sharp recorded the Baltimore Police Dept. forcibly arresting his friend.  BPD seized Mr. Sharp's cell phone and immediately deleted the recording. Come to find out, BPD was actually following their own department policy to seize and delete recordings by citizens of their police in action. Mr. Sharp filed a  federal lawsuit which prompted the the United States Justice Department to issue a formal letter stating their opinion on the citizenry filming the police. 

Below are excerpts  from the DOJ letter to the BPD. If you or a loved one have been seized or have had a camera or other property seized by law enforcement after filming the police contact our office at 865.774.5515

DOJ - Dept of Civil Rights Division - May 14, 2012

Recording governmental officers engaged in public duties is a form of speech through which private individuals may gather and disseminate information of public concern, including the conduct of law enforcement officers.2 See, e.g., Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011)

First Amendment principles” and federal case law “unambiguously” establish that private individuals possess “a constitutionally protected right to videotape police carrying out their duties.”); Smith v. Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) 

The right to “[g]ather[] information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting ‘the free discussion of governmental affairs.’” Glik, 655 F.3d at 82 (citing Mills v. Alabama, 384 U.S. 214, 218 (1966)).

Courts have also extended First Amendment protection to recordings taken on private property, including an individual filming police activity from his or her home or other private property where an individual has a right to be present. See Jean v. Massachusetts State Police, 492 F.3d 24 (1st Cir. 2007)

Because recording police officers in the public discharge of their duties is protected by the First Amendment, policies should prohibit interference with recording of police activities except in narrowly circumscribed situations. More particularly, policies should instruct officers that, except under limited circumstances, officers must not search or seize a camera or recording device without a warrant. In addition, policies should prohibit more subtle actions that may nonetheless infringe upon individuals’ First Amendment rights. Officers should be advised not to threaten, intimidate, or otherwise discourage an individual from recording police officer enforcement activities or intentionally block or obstruct cameras or recording devices.  

A person may record public police activity unless the person engages in actions that jeopardize the safety of the officer, the suspect, or others in the vicinity, violate the law, or incite others to violate the law. See, e.g., Chaplinsky v. New Hampshire, 315 U.S. 568, 573 (1942)

See, e.g., Duran v. City of Douglas, Arizona, 904 F.2d 1372, 1377-78 (9th Cir. 1990) (individual who was “making obscene gestures” and “yell[ed] profanities” at an officer engaged in conduct that “fell squarely within the protective umbrella of the First Amendment and any action to punish or deter such speech—such as stopping or hassling the speaker—is categorically prohibited by the Constitution.”).

Occupy Protesters - Right to assemble?

Whether you agreed with the Occupy Protester's on their salient points did you agree with their right to peacefully assemble as petition the government for their grievances?
During the Nashville Occupy protests Gov. Haslam ordered the arrest of dozens of protesters for being on public property. These arrests were ultimately found to be illegal arrests. The magistrate found that no law existed prior to the protests and that targeting the protests for being on public property AFTER they began protesting was improper.
Well the Governor  has fixed that. SB 2508/HB2638 was signed by Governor Haslam on March 9, 2012 making it illegal to camp on public property. This vague and over broad legislation severely limits rights of freedom of speech and assembly.
I can see our forefathers fighting in the cold winters at Valley Forge so that someday the people of this nation can speak freely against their government without fear of recourse,,,,between the hours of 10:30am and 4:00pm M-F.

DUI: ENTRAPMENT - THE COPS MADE ME DO IT

I know I haven’t even started the first sentence and you are already thinking - whaaaattt?? But lets pose a hypothetical situation:

Say you and your pals are partying it up at say a big wedding reception. You have no intentions of driving anywhere and are consuming copious amounts of alcohol. You make a move on the hottest bridesmaid there and she seems very interested. That is until her MMA star boyfriend notices your affections to his baby momma. Long story short - everybody ends up in the parking lot for some good ol fist-a-cuffs.  Of course it doesnt take the cops long to show up to break up a great fight where you were doing a great job blocking his punches with your face.  The cops separate everyone and find out MMA star has a warrant. Cops cant put both of you in the same car and kinda want to cut you some slack soooo the cop tells you to get in your car and get out of there.  You kinda stand there dumb struck and the cop says - “thats an order -get in your car and get out of here!” You follow the cops orders. You get in your car, adjust the mirrors, fasten your seat belt, put about 7 pieces of gum in your mouth, and put the car in gear. Only you are too drunk to realize you have the car in reverse and not forward so you back into the cops cars. So what do you think?? Have you been entrapped to the crime of DUI??

Believe it or not a looser based fact pattern occurred in New Jersey. The defendant claimed entrapment by the police and that he never intended to drive anywhere. But alas, as my previous blogs have pointed out - DUI has no mental state requirement. You either did it or not, your state of mind is almost irrelevant. 

A similar defense is the one of duress. Some defendants claim this when someone is deathly sick and they claim they HAD to drive them to safety or to a hospital. A recent Tennessee case allows defendants to submit for the jury to hear the duress claim but it is ultimately up to the jury to buy it or not.

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.