Monday, January 25, 2016

When does a traffic stop go too far? Rodriguez v. United States 135 S.Ct.1609

You are pulled over on the side of the road.  Your face is flush, your palms are sweaty, you're terrified.  You made a mistake and you have drugs in your car.  The officer looks you over and starts to write you a citation.  Maybe its for speeding or failing to signal a lane change but at this point you don't care.  "Just give me the ticket and let me go."  You try to keep your calm but you're scared to death, the officer issues you a ticket or maybe even a warning.

Then he starts to get inquisitive.  Asks you where you are going?  Have you been in this area before? He has a hunch..  He may even ask you if you have drugs in the car or if he can search?  You're wondering, "I thought you just pulled me over for speeding...What's with all the questions?"  Why is this guy holding you up?  It seems you were free to go but now you're not.

He's illegally detaining you and the Supreme Court agrees.  If you find yourself in this situation you need to seek the advice of a criminal defense attorney.  The difference between a felony conviction and a outright dismissal of all charges is often a motion just like the one that was granted below.




­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­IN THE DISTRICT COURT OF (Omitted) COUNTY, KANSAS
CRIMINAL DIVISION
_________________________________
STATE OF KANSAS                               
                                                                       
                        Plaintiff,                            
            vs.                                                  
                                                                                  Case # Omitted
(Omitted)                                                    
                                                                                   Hon. Omitted
                        Defendant.                        
_________________________________
                                                               
MOTION TO SUPPRESS

COMES NOW, Brandan Davies as council of record for the defendant (Omitted) in the District Court of (Omitted) County Kansas as to the charge in the aforementioned case, and hereby moves to suppress any and all evidence obtained as a result of an unlawful detention and subsequent unlawful search and seizure of defendant’s property on (Omitted), 2015, in (Omitted) County, Kansas.
In support of said Motion, defendant alleges and states as follows:

FACTUAL STATEMENT

            On (Omitted) at approximately 10:00 a.m. the defendant was traveling on his way to Lawrence in the area of Interstate 35 and Marshall Road in (Omitted).   The defendant was approached by a (Omitted) County Sheriff’s vehicle based on the allegation that defendant had failed to signal.  The (Omitted) County Sherriff’s office was conducting a drug check lane ruse in that same area.  
The officer stopped the vehicle and the officer ran routine checks on the defendant’s vehicle and made contact with the defendant.  The officer questioned the defendant and had the defendant exit his vehicle and sit in the passenger seat of the officer’s patrol vehicle.  The officer wrote a warning ticket to the defendant and continued to question him. 
During the time period when the officer was writing the warning ticket the officer noted that the defendant had “a very dry mouth, his voice was shaky, a vein in the side of his neck was pulsing, defendant was extremely nervous and was possibly involved in criminal activity.”   The officer told the defendant he was free to go and let the defendant exit the patrol vehicle.
            When the defendant reached the door of his vehicle the officer again approached the defendant to ask more questions.  The officer again asked the defendant about his travels and the defendant gave the same answers he had previously given.  The officer observed the same nervous behavior as before.  The officer asked the defendant if he had any drugs in the vehicle on two separate occasions.  The defendant answered “no” to both inquiries. 
The officer asked for consent to search the vehicle and the defendant stated he did not give consent. The officer then informed the defendant that he was being detained while the officer made contact with a drug K9 to do an air sniff of the vehicle.  After the officer detained the defendant he admitted to having marijuana in the vehicle.

ARGUMENT AND AUTHORITIES

Defendant asserts the sheriff’s deputy violated the constitutional rights of the defendant when he conducted an illegal search and seizure of defendant’s vehicle.  A warrantless search by a law enforcement officer is per se unreasonable under the Fourth Amendment to the United States Constitution unless the State can fit the search within one of the recognized exceptions to the warrant requirement. State v. Stevenson, 299 Kan. 53, Syl. ¶ 1, 321 P.3d 754 (2014). Those recognized exceptions are: probable cause plus exigent circumstances, consent, stop and frisk, search incident to a lawful arrest, inventory searches, the emergency doctrine, plain view or feel, and administrative searches of closely regulated businesses. State v. Johnson, 297 Kan. 210, 223, 301 P.3d 287 (2013). 
In the instant facts, the State will undoubtedly argue that the search fit within the probable cause plus exigent circumstances exception to the warrant requirement.  Presumably the State will argue that the admission by the defendant that “he did have marijuana in the vehicle,” paired with the fact that the vehicle was mobile and the evidence could have been easily destroyed if the officer took the time to properly apply for a warrant, would squarely fit this search into the “probable cause plus exigent circumstances” exception.  The defense agrees that if the admission was legally obtained the warrantless search would probably fit within the exception.  However, the admission to possession of marijuana by the defendant was the product of an illegal detention by the officer and therefore should be suppressed and all evidence derived from that admission including the search of the defendant’s vehicle should be suppressed as well. 
The detention in this case was the type of “prolonged detention” that is specifically forbidden by the Fourth Amendment to the United States Constitution and the United States Supreme Court has already decided a case directly on point and analogous to the case at hand.  In Rodriguez vs. United States, 135 S. Ct. 1609 (2015), the defendant was the subject of a traffic stop in which drugs were obtained.  In Rodriguez, the officer prolonged a routine traffic stop without reasonable suspicion in order to conduct a drug sniff by a K9.  In Rodriguez, the court held that,
A routine traffic stop is more like a brief stop under Terry v. Ohio, (citation omitted), than an arrest.  Its tolerable duration is determined by the seizure's “mission,” which is to address the traffic violation that warranted the stop, Illinois v. Caballes, (Citation omitted) and attend to related safety concerns. Authority for the seizure ends when tasks tied to the traffic infraction are or reasonably should have been completed. The Fourth Amendment may tolerate certain unrelated investigations that do not lengthen the roadside detention, Johnson, (citation omitted) (questioning); Caballes, (dog sniff) (citation omitted), but a traffic stop “become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission” of issuing a warning ticket, id., at 407, 125 S.Ct. 834.
Rodriguez v. United States, 135 S. Ct. 1609, 1611, 191 L. Ed. 2d 492 (2015). (Emphasis added)

In this case, the officer prolonged the stop past the original mission of issuing a traffic warning without reasonable suspicion in the same manner as the officer in the Rodriguez case.  We look to the standard an officer must meet to detain an individual to be clear on the matter.  To detain a motorist an officer must have “specific and articulable facts and rational inferences drawn from those facts [gave] rise to a reasonable suspicion” of criminal activity. U.S. vs. Werking, 915 F.2d 1404 at 1407. An officer's “inchoate and unparticularized suspicion or ‘hunch’ ” is insufficient to give rise to reasonable suspicion. United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989); Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968).  The articulable facts must actually give credence to the officer’s suspicions, “[s]ome facts must be outrightly dismissed as so innocent or susceptible to varying interpretations as to be innocuous.” Lee, 73 F.3d at 1039; Reid v. Georgia, 448 U.S. 438, 441, 100 S.Ct. 2752, 2754, 65 L.Ed.2d 890 (1980).  Cited in United States v. Wood, 106 F.3d 942, 946 (10th Cir. 1997).  
            Here in the instant facts there are no specific and articulable facts and rational inferences drawn from those facts that give rise to a reasonable suspicion that the defendant was involved in criminal activity.  We simply have a traffic stop in which an officer finds a nervous person, issues a warning to that person then allows them to leave.  At that time the “mission” of the officer, to issue a traffic warning, was completed.  The officer obviously did not have reasonable suspicion the defendant was involved in criminal activity while he was in the officer’s vehicle or immediately thereafter because the officer did not detain him at that time, the officer told the defendant that he was free to leave. 
The officer then approaches the vehicle and reengages the defendant, asks him the same series of questions of which the defendant gave the same answers.  The officer then asks the defendant two times if he is in possession of drugs of which the defendant answers “no.”  The officer asks if he can search the vehicle and the defendant says no.  The officer then tells the defendant he is not free to leave.  Absolutely nothing had changed from the time the officer originally detained the defendant on the traffic stop and then released him, to the second time the officer detained the defendant except that the officer no longer had a reason to detain the defendant.  No articulable fact giving rise to reasonable suspicion that the defendant has involved in criminal activity was presented between the first lawful detention and the second unlawful detention.  The only articulable fact the officer is relying on to establish reasonable suspicion to detain the defendant the second time is the “nervousness” of the defendant.   Nervousness alone is not enough to establish reasonable suspicion. “While nervousness may also appear as a factor in many traffic stop cases, we have never held that by itself it creates a reasonable suspicion of criminal activity.” State v. DeMarco, 263 Kan. 727, 737, 952 P.2d 1276, 1283 (1998). 
Pursuant to K.S.A. 22-3216, and for the sake of brevity of this motion the defense has attached State vs. Chapman, 23 Kan. App 2d 999, (1997) and United States vs. Wood, 106 F.3d 942, (1997) to this motion.  Each of these two cases are directly on point with fact patterns nearly identical to the facts presented in this case, in which both courts found that the evidence seized was the product of an illegal detention.
CONCLUSION
            “The ‘exclusionary rule’ prohibits the admission of the ‘fruits’ of illegally seized evidence, i.e., any information , object, or testimony uncovered or obtained directly or indirectly as a result of the illegally seized evidence or any leads obtained therefrom.  This exclusionary principle is known as the “fruit of the poisonous tree doctrine’” State v. Canaan, 265 Kan. 835, 840 (1998). In this case the deputy illegally detained the defendant and in doing so obtained evidence he used to illegally search the defendant’s vehicle.
            WHEREFORE, the defendant requests, all evidence obtained as a result of the search, including without limitation any statements by defendant, be suppressed pursuant to the "fruits of the poisonous tree doctrine".  Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 44 (1963); see also, State v. Childers, 222 Kan. 32, (1977).

                                                                                    Respectfully submitted,


                                                                                    COPLEY ROTH & WILSON


                                                                                   
______________________________
                                                                                    Brandan Davies  S.Ct. # 24737
                                                                                    7500 College Blvd
                                                                                    Suite 700
                                                                                    Overland Park, KS 66210
o: 913-732-3014
                                                                                    f: 913-451-9501
                                                                                    e: brandan@crwlawyers.com 



Wednesday, January 6, 2016

Lawyer at Copley Roth and Wilson gets largest Truck accident settlement in Missouri in 2015.

The widow of a 64-year-old man who died in a truck collision settled a wrongful death suit for $11.6 million, according to her attorneys. The collision occurred on a Missouri interstate highway near a construction zone where traffic had slowed due to congestion, said Jason P. Roth of Copley Roth & Wilson in Overland Park, Kansas. The truck driver collided with the rear of the decedent’s vehicle at highway speed, with no evidence of braking or any evasive maneuver, the plaintiff alleged.

Extensive discovery revealed the truck driver was recently promoted to a salaried office position where he was not regularly driving a truck, Roth said. Under federal regulations, a driver of a truck cannot drive after working in any capacity for 70 hours in a period of eight consecutive days without 34 hours off duty. The plaintiff alleged that at the time of the collision the driver had been on duty for more than 70 hours.

The plaintiff also raised concerns regarding the truck driver’s physical qualifications to drive a truck. The truck driver weighed more than 400 pounds, and discovery in the case revealed the driver had been found at risk for sleep apnea but the company failed to follow up on the numerous warning signs regarding the driver’s physical qualifications, Roth said.  Roth said that with the history of excessive daytime sleepiness, likelihood of untreated sleep apnea, and driving a truck in excess of his allowable hours of service, the truck driver likely fell asleep at the wheel.

Shortly before the scheduled depositions of the trucking company’s experts, the company agreed to settle for $11.6 million. The trucking company also indicated it would discontinue its practice of using salaried office workers to intermittently drive trucks and re-evaluate its program regarding driver health and physical qualifications, Roth said.



An attorney for the defendant declined to comment.

Monday, July 6, 2015

Live in Kansas? What's the new law for 2015? Conceal Carry changes and more.

Here is the release the line officers get about the new laws in Kansas.  It is supposed to be a top 10 list.  But they only have 5 things on it...

1. Concealed Carry 
(Full summary of firearms law changes at: http://tinyurl.com/Ks2015FirearmsSummary)

a. Criminal Law Change The concealed carry criminal statute now only applies to persons under the age of 21. Persons age 21 or older can carry a concealed firearm unless they are prohibited by state or federal law from possession of a firearm. Read the bill explainer. KSA 21-6302. (Effective July 1, 2015. SB45§3; 2015 Session Laws, chapter 16)

b. Permits Not Required In general, the permit process, while optional, is still in place and most requirements for obtaining the permit are unchanged. Many Kansans will still want to have a permit because there will be no reciprocity to carry in other states without it and many liability insurance companies will not insure persons without permits. There are many technical amendments throughout these statutes removing references to requiring a permit. Read the bill explainer. KSA 75-7c03, 75-7c04, 75-7c05. (Effective July 1, 2015. SB45§8, 9, 10; 2015 Session Laws, chapter 16)

c. Permit Holders Do Not Have To Reveal Permit To Law Enforcement The amendments to KSA 75-7c03 (b) provide even if the person chooses to have a CCH permit they are not required to have it on their person when carrying concealed in Kansas, nor are they required to show it to law enforcement or to even reveal to law enforcement that they have one. The provision stating law enforcement can verify a person has a permit through DMV records or by the license number is also stricken. It is unclear if we will lose the ability to verify a permit or not, but I am guessing we will. Read the bill explainer. KSA 75-7c03. (Effective July 1, 2015. SB45§8; 2015 Session Laws, chapter 16)

d. NICS and III available roadside There is general confusion about what records or systems we can access to determine if a person is “prohibited by state or federal law” to possess a firearm. This is especially true of roadside access.

i. III can be ran for roadside investigations. The purpose code “F” is used when the III request is related to a firearm investigation and an incident number, case number, or dispatch record number must be entered as well. Note that III will not provide you with mental health commitment and other critical information especially from other states.

ii. NICS is now being made available to Kansas law enforcement, but by federal law is restricted to use only when we are “releasing” a firearm in our custody to a person. So if you legally have a firearm in your possession, even roadside, you may run a NICS check through KCJIS. Follow your local legal advice on when you may take a firearm into your possession during a stop, this is a critical decision point and a very fine line with developing case law.

iii. I have compiled the current federal law, federal regulations, and state law establishing the prohibitors into a document available at: http://tinyurl.com/2015FirearmsProhibitors

2. Alcohol Related 

a. ABC Regulation Enforcement After a state Court of Appeals Case in 2014, violations of the Liquor Control Act observed and reported by local law enforcement have been unenforceable by the ABC. New law requires local law enforcement to serve notice on the licensee or their representative on premise at the time of the violation. ABC will have a single form available for law enforcement use to report these violations to both the business and to the ABC. Or you can use your own form if it meets the requirements for information and service to the licensee. The ABC will be putting a law enforcement page on their website with forms and other information. (http://www.ksrevenue.org/abc.html). Read the bill summary. Amends KSA 41-106. (Effective July 1, 2015. HB2223§2; 2015 Session Laws, chapter 82)

b. “Bring Your Own Booze” for non-licensed businesses Businesses not licensed by the ABC are allowed to permit consumption on their premises when those consuming bring their own liquor. Aimed at businesses such as Art Studios and Cigar Shops, but the bill is very broad and covers nearly any business not licensed by the ABC. The consumption is limited to 9AM to midnight and there can be no cover charge or charge for being allowed to consume alcohol. These businesses are not subject to regulation or penalty by the ABC, and there is no right to entry for law enforcement as exists for licensed premises. The ABC will be putting a law enforcement page on their website with a related form and other information. (http://www.ksrevenue.org/abc.html) Read the bill summary. Amends KSA 41-719. (Effective July 1, 2015. HB2223§17; 2015 Session Laws, chapter 82)

c. Powdered Alcohol The sale or serving of any form of powdered alcohol by a licensee is prohibited. Possession is not prohibited in these statutes. “Powdered alcohol” is alcohol prepared in a powdered or crystal form for either direct use or for reconstruction in a nonalcoholic liquid. All alcohol, including powdered, is covered by the Liquor Control Act. Read the bill summary. Creates a new statute. Amends KSA 41-102 & 41-2640. (Effective July 1, 2015. HB2223§3, 4, & 5; 2015 Session Laws, chapter 82)

3. Scrap Metal Theft 

The Scrap Metal Theft Reduction act is implemented under the Office of Attorney General and is an extensive overhaul of the approach to metal theft in Kansas. State licensing of all scrap metal dealers is required effective January 1, 2016, a state database of scrap metal transactions will be created with implementation by July 1, 2016, and the AG has full investigatory, regulatory, and enforcement authority over administrative violations of the act. Violations of the act by scrap metal dealers will no longer be criminal, but instead civil penalties may be assessed through the AG. Existing local scrap metal licensing, registration and regulation will be null and void. Existing statutes, with some amendments, become part of the act. There are also several criminal law additions and amendments made including prima facie evidence of intent to permanently deprive by using false identification or removing the materials from the county in which they were taken; the creation of a new crime of aggravated criminal damage for damage caused by the taking of the regulated metal; and allows business records of scrap metal dealers to be used in preliminary hearings without testimony as to authenticity. Read the bill summary. Amends KSA 21-5804, 21-5813, 21-6604, 21-6804, 50-6,109, 50-6,110, 50-6,111, 50-6,112a, 50-6,112b and 50-6,112c. Repeals KSA 21-6604c and 50-6,112. (Effective July 1, 2015. HB2048; 2015 Session Laws, chapter 96)

4. New Commercial Driver’s License Codes 

Seven new CDL endorsement and restriction codes are added: “E” – no manual transmission in a commercial motor vehicle (CMV); “O” – no tractor-trailer; “M” – no class A passenger vehicle; “N” – no class A or B passenger vehicle; “Z” – no full air brake in CMV; “K” – for intrastate only; and “V” – for medical variance. Existing Codes are: ‘‘H’’–authorizes the driver to drive a vehicle transporting hazardous materials; ‘‘L’’– restricts the driver to vehicles not equipped with airbrakes; ‘‘T’’–authorizes driving double and triple trailers; ‘‘P’’–authorizes driving vehicles carrying passengers; ‘‘N’’–authorizes driving tank vehicles; ‘‘X’’– represents a combination of hazardous materials and tank vehicle endorsements; ‘‘S’’–authorizes driving school buses. The new codes brings Kansas into compliance with federal requirements. Read the bill summary. Amends KSA 8-8,135. (Effective May 14, 2015. HB2090§4; 2015 Session Laws, chapter 49)

5. Vehicle Registration Expiration: Letter of Renewal

A receipt for vehicle registration renewals completed by internet or mail serve as proof of renewal and the lack of the decal during the first ten days after the expiration date will not result in conviction. In essence, we should handle these the same way we handle no DL on person cases. If a citation is issued during the ten day period, the receipt can be shown to the court and the charge will be dismissed. Officers should consider if a citation is appropriate if a vaild receipt is presented at the time of the stop. This only applies when the actual renewal took place prior to expiration of the registration plate. Read the bill summary. Amends KSA 8-142. (Effective July 1, 2015. HB2013§3; 2015 Session Laws, chapter 47)

Wednesday, May 20, 2015

How to testify in Court. Tips that will make it easy and pain free.

This comes up often in my practice. I am talking with a defendant in a criminal case or an ancillary witness that is going to testify in court, and they want to know what to expect. Often people are scared, nervous, and downright terrified of testifying in court. Generally, if you are going to be called to testify your lawyer and you have sit down and talked about what you will be asked. Most lawyers will prepare you properly and start you off with easy questions to help you get comfortable. At those early stages testifying should be easy. You know what your lawyer is going to ask and you know he or she is on your side and won't try to trip you up. But then comes the cross examination. The time where the other lawyer is going to get up and ask you questions you may not be expecting. The time where the other lawyer may try to make you look dishonest or an outright liar. This is the part people fear. Here are some easy steps to help you survive a cross examination.

1. Keep your answers short and to the point. Don't expound on something when you aren't asked to. Don't use 50 words when 5 will do. The more you talk the more chance you give the lawyer cross-examining you to twist your words.

2. Don't be scared to recant on small things. People make mistakes in their memory. That is ok. If you say there were five people at the party and then later remember there were actually 6 or 7. Correct yourself. When you refuse to recant a small mistake it will cast doubt on everything else you say.

3. Stick to your guns on the issues that matter and tell the truth. If you saw something, heard something or witnessed something tell it to the fact finder. Don't let the person cross-examining you put words in your mouth.

4. Be matter of fact, don't hedge. You are there because your words matter, so say them with confidence.

5. Never, not even for one second, think you are smarter than the lawyer that is cross-examining you. Remember you are on the lawyer's turf. He or she has spent alot of time thinking of what they will ask you and crafting their questions. You are answering on the fly from memory. The odds are in their favor. Just because a lawyer is asking you easy questions doesn't mean they aren't trying to set a trap for you in the end. It is common for a lawyer to "play dumb" to get you committed to a certain story, only to then later bring up all the mistakes in that story. Remember, I'm not saying that all lawyers are smarter than you, I'm just saying you are on their turf and they know the rules. It's their job to be better at talking than you.

6. Tell the truth. Testifying is not a game; it is not a you vs. them. There are not winners and losers. There are only people that tell the truth and people that lie. If you tell the truth, (win, lose or draw) you will know you did the right thing.

Friday, August 8, 2014

Legal Talk -When do the cops have to read me my rights?

The cops didn't read me my rights... So obviously my case will get dismissed. Think again.

This question comes in my office at least once a week. A person accused of a crime will come in on an initial consult with a smile on their face. They can't wait to tell me that there case is going to get dismissed and they don't need my help because, "The cops never read me my rights when they arrested me." Only to be seriously let down when I explain to them, that the cops don't have to and most likely won't read them their rights.

Crickets....Crickets... It's true.



Miranda rights don't have to be read to a person, and Miranda didn't create any new rights. All Miranda vs. Arizona  did was create an obligation on law enforcement to inform a person of their already existing rights.  Miranda vs. Arizona 86 S. Ct. 1602. (1966).  The right to counsel and the right to not incriminate yourself are in the bill of rights. The amendments to the constitution, specifically amendment 5 and amendment 6.

Amendment #5
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment #6
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Those rights came from the constitution, not Miranda vs. Arizona.

The Miranda warning requires that when a police officer is going to interrogate you and you are in "custodial interrogation" he or she must read you the following warning if he wants to use your admissions against you in the prosecution of your case.  The officer must inform you that you have the right to remain silent, anything you say may be used against you.  You have the right to an attorney during questioning.  If you can not afford an attorney one will be provided for you.  That is it.

When this comes all comes into play is after a person has been arrested, and hired a lawyer.  If the person made an incriminating statement to the police and wasn't given a Miranda warning then his/her lawyer will try to suppress the statement and keep it out of evidence.  During this process the lawyer will claim that the defendant was in "custodial interrogation."  The court will then have to determine if the person was in custodial interrogation and thus should have been issued the Miranda warning.  The court will consider the following factors.

1. When and where the interrogation occurred;
2. How long the interrogation lasted;
3. How many police officers were present;
4. What the officers and defendant said and did;
5. The presence of actual physical restraints on the defendant or things equivalent to actual restraint such as drawn weapons or a guard stationed at the door;
6. Whether the Defendant is being questioned as a witness or as a suspect;
7. How the defendant got to the place the interrogation took place
8. What happened after the interrogation.

-State of Kansas vs. Karin Mortin, 286 Kan. 632 (Kansas 2008)

If a court finds after considering these factors that a defendant was in custodial interrogation and should have been given a Miranda warning, but did not get the warning.  The incriminating statement should be suppressed and not allowed as evidence.  Now that alone will not get a case dismissed it will only suppress the incriminating statement and possibly any evidence derived from that statement.  That's it.

Many times even if a statement is suppressed the case can still go forward.  For example, If a person shoplifts from a store and is caught on video with the item in their possession.  Then is arrested and during a custodial interrogation admits to the theft.  Even if the person wasn't given the Miranda warning and their lawyer ultimately gets the statement suppressed because of the Miranda violation.  The state will still have the video of the person stealing and the seizure of the stolen merchandise off the defendant as evidence.  In this fact pattern, the State could still prosecute the defendant and would still likely get a conviction, even without the statement.

So the long and short of it is...Not being given your Miranda warning is Not a get out of jail free card.

To be clear,  a Miranda warning doesn't have to be given when...

1. You are voluntarily interacting with the police. If you are free to leave then a Miranda warning doesn't have to be given.

2. You are in custody but not being interrogated.

3. You are making admissions when no law enforcement officer is questioning you.

Remember, Cops don't want to read you your rights.  They don't want to inform you that you don't have to talk to them.  Cops will skate around the rules.  Common ways that cops try to do this are as follows:

1. A cop will just start asking you questions.  If a cop asks you questions don't answer.  Ask the Cop if you are free to leave.  If they say yes then leave.  If they say no, then they need to give you your Miranda warning because you are most likely in custodial interrogation.  Ask if you are free to leave and then leave.

2. A cop will call you on the phone.  They will tell you a complaint has been filed and they want to give you a chance tell your side of the story.  Don't fall for it.  What they really want you to do is provide them with evidence that they can use against you.  It is nearly impossible to be in custodial interrogation if you are on the phone.  On the phone = not in custody.  No custody means no Miranda Warning.

3. Police will talk to you at the scene, they will tell you that you are not under arrest and that they will give you the opportunity to give a written statement if you want to tell your side of the story.  You know,. "for the file."  Don't fall for it.  If your not under arrest your probably not in custody, ergo, you don't have to be given the Miranda warning.  They will use your statement against you.

Lastly, and probably most important of all.  KEEP YOUR MOUTH SHUT!  Many times the police won't have enough evidence to arrest someone or prove their case against someone until they get the suspect to start talking and incriminating him/herself.  The number one rule of staying out of trouble is, don't tell on yourself.  aka.  Keep your mouth shut.

Thursday, July 24, 2014

Legal Talk - When can a cop ask you for identification?

Cops love to overstep their bounds and trample on your rights.  Some people choose to just do what they are told and let the cops tell them what to do.  Some people choose to "go along to get along."  If that isn't you, if you want to exercise your rights when confronted by "the man," then this article is for you.  The "go along to get along" folks may say,

Well why are you doing that?  Why are you being difficult? You haven't done anything why don't you just do what the cops ask? They are just doing their job, stop being so difficult.

To the "go along to get along" folks.

The liberties of our country, the freedom of our civil Constitution, are worth defending at all hazards; and it is our duty to defend them against all attacks. We have received them as a fair inheritance from our worthy ancestors: they purchased them for us with toil and danger and expense of treasure and blood, and transmitted them to us with care and diligence. It will bring an everlasting mark of infamy on the present generation, enlightened as it is, if we should suffer them to be wrested from us by violence without a struggle, or to be cheated out of them by the artifices of false and designing men. -Samuel Adams


For the people that are tired of the intrusion, who are tired of the people who weren't cool in high school and are are now in a uniform wielding the sliver of power they have over everyone. Here is what you can do. Exercise the rights you have.


When you have an interaction with a police officer and they ask you to identify yourself, here are your legal rights. Remember, there is a point that we need to clarify before we get started.  Producing 
identification and identifying one’s self are two different things.  To clarify, producing identification means providing a law enforcement officer with a physical object that identifies who you are.  Identifying yourself can be a simple communication of your first and last name.


When do you have to give your license to a police officer?

You are only required to produce your actual physical driver’s license in two separate scenarios.

1.         You are the driver in a motor vehicle that is pulled over in a checkpoint that comports with Brown v Texas  443 U.S. 47 (1979) and more specifically State vs Deskins,  234 Kan. 529 (Kan. 1983) 

(Remember the police have to stop everyone not just random stops of individuals)

The applicable test:
[A] weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.” Brown v. Texas, 443 U.S. at 50–51, 99 S.Ct. at 2640–2641.

The factors that are considered in determining if a specific instance is satisfied by the test.
Numerous conditions and factors must be considered in determining whether a DUI roadblock meets the balancing test in favor of the state. Among the factors which should be considered are:

(1) The degree of discretion, if any, left to the officer in the field;
(2) the location designated for the roadblock;
(3) the time and duration of the roadblock;
(4) standards set by superior officers;
(5) advance notice to the public at large;
(6) advance warning to the individual approaching motorist;
(7) maintenance of safety conditions;
(8) degree of fear or anxiety generated by the mode of operation;
(9) average length of time each motorist is detained;
(10) physical factors surrounding the location, type and method of operation;
(11) the availability of less intrusive methods for combating the problem;
(12) the degree of effectiveness of the procedure; and
(13) any other relevant circumstances which might bear upon the test. 

Not all of the factors need to be favorable to the state but all which are applicable to a given roadblock should be considered.  State v. Deskins, 234 Kan. 529, 541, 673 P.2d 1174, 1185 (1983)

2.         If you are driving a motor vehicle and you are pulled over by a law enforcement officer and there is at least articulable and reasonable suspicion to believe that the driver or a passenger in the motor vehicle was engaged or had engaged in criminal conduct. Brown v Texas  443 U.S. 47 (1979)  This instance is better explained in Delaware vs. Prouse  99 S. Ct 1391. (1979)

“Except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment.Delaware vs. Prouse  99 S. Ct 1391. (1979)

*Note: This rule may be expanded slightly in US vs. Hensley 469 US. 221. (1985).  Only if the stop originated from a stop and inquiry in reference to wanted person in which the officer believes that the occupant of a vehicle was a person depicted on wanted poster. 

When do you have to tell an officer your name?

It depends on the circumstances.  An officer can always ask you your name.  But just because they ask doesn’t mean that you have to answer, you are only obligated in certain scenarios.  Additionally, in some instances even if he/she does have the right to ask and the requirements are met that would require you to answer the state may have no mechanism to prosecute you even if you refuse to identify yourself.

Complicated right?  This is the only time you are obligated to identify yourself other than the two scenarios listed above in which you must provide a physical identifying document.

You only have to identify yourself when the officer is stopping you because he or she has reasonable suspicion that you may be involved in criminal activity. Hiibel vs. Nevada, 124 S. Ct 2451. (2004)   You also can still refuse if you have a reasonable belief that identifying yourself will incriminate you in a crime.

Now that being said, there is some wiggle room here.  To date 23 states have passed “stop and identify” laws. These laws allow an officer to stop anyone and ask them to identify themselves.  The other 27 or so have not passed a similar law.  However, The Hiibel ruling overrides any of the text in the stop and identify laws, so they all have that qualification.  As to the other 27 states, even if you meet the Hiibel requirements and would otherwise be required to identify yourself, but still refuse, the state might not have a way to prosecute you.  But I’ll leave that up to the prosecutors to figure out.  My guess is they would charge a person whom refused with obstruction or a like or similar charge.

If you have made it this far you have figured out that the most important questions to answer in determining if you have to identify yourself is…

“What is Reasonable suspicion?” And..

“How will I know if an officer has reasonable suspicion to believe that I may involved in criminal activity?”
  
Well that isn’t exactly clear.  The Supreme Court has tried to give guidance as to what “reasonable suspicion” means.  The guidance they give is limited, essentially, they say it’s a case by case basis.  Here is the quote.

"Articulating precisely what 'reasonable suspicion' and 'probable cause' mean is not possible. They are commonsense, non-technical conceptions that deal with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. As such, the standards are not readily, or even usefully, reduced to a neat set of legal rules." Ornelas v. U.S., 517 U.S. 690. (1996)

So how do you know if an officer has reasonable suspicion to believe that you may involved in criminal activity, and thus you are required to identify yourself?  That’s easy.  Ask the officer if you are free to leave.  An officer can only detain you if they have reasonable suspicion based on objective facts, that you are involved in criminal activity. Brown v. Texas, 443 U.S. 47. (1979)  If they don’t have reasonable suspicion then you are free to leave and thus don’t have to identify yourself.
 If an officer says you are free to leave you have won the battle.  Leave.  Let them bother the "go along to get along" folks.

Wednesday, July 16, 2014

Overland Park DUI lawyer talks about what to do when you are pulled over for a DUI.

If you ever find yourself on the side of the road in Kansas accused of a DUI, you'll wish you watched this video. This will walk you through the decisions you will have to make and give you the best chance of beating a DUI charge.  The best advice is always don't drink and drive.


If you are charged with DUI please call our office at 913-732-3014 to speak with a DUI defense attorney today.