Articles Posted in Constitutional rights

police-search-768x512-1-300x200What is an illegal stop?

If the police illegally stop you, then there is a chance your case could be thrown out! The problem is that the police can stop you for so many things. In order for a stop to be legal, the police only need articulable suspicion that a crime or traffic infraction has occurred. That means the list of reasons the police can use to justify a stop is very long. You can be stopped for anything from improper tinted windows to driving one mile per hour over the speed limit.

Once you are stopped for any legal reason, if the officer finds more evidence of a totally different crime, such as an odor of alcohol or slurred speech, then the investigation can turn into something completely separate from the reason for the stop. You could be stopped for going 5 miles per hour over the speed limit and then it could turn into a drinking and driving investigation.


Do Police Have to Read You Your Rights?

Police have an obligation to read you your Miranda warnings before conducting a custodial interrogation. An interrogation means that the questions are designed to elicit an incriminating response. Meaning, routine questions such as what your name is, your address, and your date of birth are not considered to be interrogative. However, arrests can occur without a reading of Miranda as long as no incriminating questions are being asked of you. But, if police choose to interrogate you at any time after arresting you, your rights must be read to you before any questioning occurs.

In addition to being interrogated, you also must be in police custody in order for the Miranda laws to apply. Custody means that your freedom of action must be deprived in some way. Maine courts have traditionally held that an interrogation is custodial if a reasonable person in your shoes would have felt that he or she was not at liberty to end the interrogation and leave. Being in custody may mean that you are in handcuffs, in a police cruiser, at the police station, or other similar scenarios where you are not free to leave at your own will. But ultimately, there are many factors that are considered by courts in determining whether you were truly in police custody, which is why consulting with an attorney can be important.

supreme-court-300x237This week the Supreme Court, in United States v. Jones, ___ US ___ (2012), decided that placing a GPS on a person’s car and tracking to movements is a search that requires a warrant.  This is an important decision for several reasons.  First, changes in modern technology make it easier for government to intrude on our privacy.   Second, it made it clear that there are two ways to analyze when a search warrant is needed.  Third, it shows that the Court may change its views of the Fourth Amendment as technology becomes more invasive of our privacy.

The facts were that Mr. Jones was suspected of drug dealing.  Drug agents got a warrant to place a GPS on his car by a certain date in Washington, DC.  They did not put the GPS on the car as specified in the warrant.  Instead, they found the car in Maryland and put the GPS on the car after the warrant date.  They tracked every move his car made for four weeks.  Using the GPS information agents found evidence that arguably tied Jones to drugs and money.  They charged him in a drug trafficking conspiracy.

Jones moved to suppress the evidence (prohibit the government from using it at trial.)  He argued that placing the GPS on his car was a search, and that the search was illegal without a warrant.

supreme-court-300x237We had a rare win in a DUI case from the United States Supreme Court.  Last week the Court decided that the Confrontation Clause of the Constitution really means what it says – that a witness against a criminal defendant must testify in open court and look the defendant in the eye.  It’s about time.

Mr. Bullcoming was charged with DUI in New Mexico.  The government sent a sample of his blood to the state lab.  The lab tech tested it and said Mr. Bullcoming’s blood-alcohol level was over the limit.  He filled out a form that said that and signed the form.  Mr. Bullcoming asked for a trial at which he could face his accusers.

When the case came for trial the lab tech had been put on “unpaid leave.”  No one knows if it was because of incompetence, poor job performance, some sort of conflict, or any number of other things that can result in being put on unpaid leave.  Apparently the tech was still around.  The state could have called the tech as a witness, but decided not to.

checkpoints-DUI-300x225A while ago I commented that roadblocks are a very poor way to catch DUI drivers.  Police can stop a thousand citizens at a roadblock without catching a single impaired driver.

Proof of that is the March 25-26, 2011, roadblock on the corner of Collier Avenue and Riverside Drive in Lake Elsinore, California.  Police said this was a high DUI area.  They stopped 1,358 vehicles and questioned the people in them.  One hundred and fifty three of those people we hauled out and made to do roadside tests in public.  Police managed to arrest exactly ONE person for possible impaired driving.  One.  Pretty impressive, huh?

They checked everyone’s license.  Some cars had more than one person.  Two thousand people or so?  The lucky ones were held for only a few minutes.  153 unlucky people were made to perform roadside gymnastics while their friends and neighbors drove by and watched.  152 of those people passed those gymnastics.  They charged one person, so maybe one failed.  Maybe he didn’t fail.  Maybe they needed to keep one so they could say they caught someone.

roadblock-300x225New Year’s Eve is in two days.  The radio and papers are full of stories of DUI checkpoints.  If that doesn’t make you mad, you don’t understand DUI checkpoints.

DUI checkpoints do not make us safer. Nationally, out of 1000 drivers stopped, only three are arrested for DUI.  Police officers on regular patrols watching for erratic drivers are ten times more effective than DUI checkpoints.  If police are at checkpoints they are not on regular patrols and they are not catching drunk drivers.

So a thousand drivers are stopped.  Every one one of those drivers who has even one drink is hauled out of the car and made to perform roadside gymnastics to prove they are OK to drive.  Responsible drinkers are made to walk the line and balance on one foot in front of their neighbors.  That’s a pretty big intrusion into your liberty and mine.

judges-300x200The second big change in Maine DUI laws was changing when an OUI becomes a felony.
It used to be that a fourth DUI in ten years was a felony.  Now a third offense in ten years is a felony.  The maximum penalty jumps from 364 days in jail and a $2,000 fine, to five years in prison and a $5,000 fine.

Felony convictions also affect civil rights and jobs.  A felon cannot serve in the military.  In many states a felon cannot vote or hold political office.  Many employers will not hire felons.  Before we take away these rights we better be very sure the person should be a felon.

The biggest problem I see with this change is in the poor quality of prior convictions used to support the felony charge.  Many, if not most, of the prior convictions the government uses are unconstitutional.  That is a big cost in a country that prides itself on liberty and personal freedom.

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