In an opinion released early this week the Supreme Court of the United States has yet again ruled against protecting individuals rights and has given law enforcement even more power to harass and torment the masses. The case referred to is Heien v. North Carolina, and the summary of the case is as follows:
“The Court affirmed the decision of the Supreme Court of North Carolina. The Court held that the police officer’s mistake of law was reasonable and there was a reasonable suspicion justifying the stop under the Fourth Amendment. The police officer stopped the car for having only one working brake light and in a subsequent search the officer found cocaine. However, North Carolina law requires only a single functioning brake light.”
Unlawful Search and Seizure
The starting point for a case like this is the Fourth Amendment to the United States Constitution which gives individuals the right to be “secure in their persons, houses, papers, and effects” and protects individuals from unlawful searches and seizures. Due to the Fourth Amendment law enforcement must have a reasonable articulable suspicion of illegal activity to pull someone over on the roadway and initiate a traffic stop. What this means is that a cop can’t just pull someone over because they feel like it, they must be able to point to some evidence of why they think the individual in the vehicle is breaking the law.This seems like an easy enough rule that is aimed at protecting citizens from unlawful police intrusions but of course that is not the reality of things. The difficulty with this rule is there are not safety measure to insure that law enforcement are telling the truth, for example, an officer can state that the individual was ‘following too close'; committed an ‘unlawful lane change’, ‘failed to yeild’, or they can simply state that the individual was ‘speeding.’ Any of these excuses for pulling someone over are valid and almost entirely impossible to prove the validity thereof. So in practice what this rule means is that if a cop really wants to pull someone over because they look ‘suspicious’ or because they’re of a certain racial class, then all they have to do is make up some offense that they believe they are committing.
Mistakes of Fact and Law
Moving on from the possibility of dishonest law enforcement, there is the next gray area of mistake. What happens if the officer simply makes a mistake about what he thought was a violation of the law and once he has the individual stopped he realizes his mistake? There are two possible mistakes here, the first is a mistake of fact, and the second is a mistake of law. The issue of mistake of fact was handled by the Utah Supreme Court in State v. Morris in which the court determined that when a law enforcement official makes a mistake of fact upon which a traffic stop is based then the office is to advise the individual of the mistake. The important part however is that the court stated that law enforcement can still request license and registration and can still extend the stop based on newly obtained reasonable suspicion even though the original basis for the stop was a mistake. The example of this from the Morris case is that the officer thought the vehicle was not registered but after the stop was conducted he realized there was a temporary tag on the back window.
A mistake of law on the other hand is when a law enforcement official thinks an action is illegal when it is in fact not illegal. This is what SCOTUS encountered in Heien v. North Carolina. The officer in that case pulled over an individual because the person had a brake light out, however, the law of North Carolina only requires one brake light, so the individual was not doing anything illegal. In the past a mistake of law was not sufficient to provide reasonable suspicion but now under SCOTUS’ new decision a mistake of law is allowed if it was a reasonable mistake. Reasonable of course is a very flexible term and it will most likely be determined on a case by case basis but the main takeaway from this should be that officers are no longer required to know the law as well as they should to be able to get passed the Fourth Amendment. Sadly, the idea of being protected from unlawful searches and seizures is starting to appear more and more like an overly idealistic and Utopian theory that we will never truly enjoy.
If you are convicted of felony, either a state or federal felony charge, you lose certain rights going forward including the right to own firearms. The felony gun ownership laws in Utah are very harsh. The question then arises, what happens to your firearms in the event you are convicted of a felony. Can you sell them? Trade the firearms? Transfer the firearms to a family member? Currently the law in Utah, along with most other states, and the federal law state a felon simply cannot be in possession of a gun. The law doesn’t necessarily require felons turn over their weapons upon the filing of felony charges against them. Nor does the law expressly prohibit a felon from selling a gun rather than handing them over to law enforcement. Nonetheless, local prosecutors and the U.S. Attorney’s Office have routinely routinely requested courts order felons turn over their weapons as a part of their probation or pre trial release. Additionally, individuals charged with a felony often have their firearms confiscated at the time of the arrest, even if the felony charges were non violent and/or did not involve any weapons. Defendants in cases all over the country have sought court orders allowing them to transfer their weapons or sell them to third parties and courts have issued conflicting opinions on the matter. However, the United Supreme Court has finally decided to resolve the issue by taking up the case of Henderson v. United States, U.S. Supreme Court, No. 13-1487.
Henderson v. United States
Tony Henderson was a former United States Border patrol agent who was convicted of distributing marijuana. As a result of his conviction, he lost the right to possess a firearm. Following his case, Mr. Henderson sought to transfer ownership of his weapons to family members. He owned a considerable amount of firearms, 19 total firearms ranging from rifles and shotguns to handguns and related accessories. Mr. Henderson filed a motion with the circuit court asking the judge to permit him the opportunity to sell his guns or transfer ownership to his wife. The judge denied his motion. Mr. Henderson appealed and the 11th Circuit Court of Appeals also denied his request. Mr. Henderson appealed to the U.S. Supreme Court who agreed to hear the case which case as quite a shock to many in the legal community. The case will be deciding in the upcoming term of the Supreme Court and many expect the court to find in favor of Mr. Henderson.
Felony Charges in Utah
We have dealt with numerous felony charges in Utah in which the prosecutor’s office sought to keep firearms of those convicted and or sought orders requiring defendants to hand over all their firearms. In one recent case, the prosecutor would not agree to any plea bargain which did not permit their office to keep the defendant’s firearms. Many police departments take these weapons and sell them keeping the proceeds for the slush fund of the department. In our opinion this practice needs to stop. We are hoping the Supreme Court in this Henderson case sets a clear precedent allowing felons to sell their weapons as opposed to confiscating for their own benefit.
Entering a guilty plea to a crime can have immigration consequences.
Recently the Utah Court of Appeals addressed whether an attorney was deemed to have given ineffective assistance of counsel to a non-U.S. citizen. In State v. Aguirre-Juarez, the defendant plead guilty to one count of attempted identity fraud, a class A misdemeanor. She had allegedly used a fake green card, an alien registration number that didn’t belong to her, and someone’s social security number.
Her attorney was able to work out a plea option where one count would be dismissed and she would plea guilty to one reduced count. Under the Immigration and Nationality Act, any alien convicted of a crime of moral turpitude “for which a sentence of one year or longer may be imposed” can be deported. The defendant’s attempted identity fraud conviction was a class A misdemeanor which carries jail time of up to one year, which would make it fall squarely within the purview of the INA language above. The defendant’s attorney was aware of this and thus was able to get the court to sentence his client to only 364 days, with most of that sentence being suspended. This took her outside the INA one -year language. She agreed to the deal and expressed that she understood her conviction could have immigration consequences.
The problem arose when after the fact it was discovered that another provision of the INA prohibits an individual convicted of a crime of moral turpitude and sentenced to incarceration for six months or more from being able to be readmitted to the United States. Apparently neither defense counsel nor the prosecutor were aware of this. Defendant appealed claiming that her attorney should have known about this and she was entitled to an attorney who was aware of this provision of the INA.
In determining whether the defendant’s attorney had provided ineffective assistance of counsel the court addressed whether (1) the attorney’s performance was deficient and (2) whether the attorney’s performance prejudiced the defendant. The Court of Appeals addressed only the second prong and found that she was not prejudice because even if she had been sentenced to less than six months she still would not have been able to re-enter the United States because of yet another provision of the INA prevents “any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure . . . a visa, other documentation, or admission into the United States or other benefit provided under this Act.” The Court found this section of the INA would apply to defendant because she sought to gain employment in the United States (a benefit to which she was not entitled) through fraud. Thus, the defendant could not show prejudice and her claim was denied.
Last month was officially the first month where a limited use medical marijuana in Utah license could be obtained by a few select patients in the state. So how many medical marijuana cards were issues in July? Only 11 total licenses were obtained. Compare these number to other states such as California, Nevada, and other western neighbors and it is easy to see Utah is barely providing any medical use marijuana at all. The medical marijuana laws in Utah only currently allow individuals with severe epilepsy to possess cannabis extract oil. Medical marijuana in Utah is currently not legal for any other use or in any other form. Legislation on this issue successfully passed this year when several mother’s of epileptic children and their support came forward pushing for a bill. Half of the cards issued by the state were for child patients. This is a good step in the right direction but Utah still has quite a ways to go in opening up the medical uses of cannabis.
Distribution Still not Permitted
Utah’s law is so limited and narrowly tailored, it doesn’t even permit pharmacies or doctors to distribute the cannabis oil. Rather, patients sill have to obtain the oil from another state, the license only allows them to possess it. The current major supplier of the cannabis oil is located in Colorado. There is a waiting list to obtain the oil, and that list is growing. Therefore, patients in Utah are having a tough time getting any oil even if they have successfully obtained their medical marijuana card. There is a growing demand for the cannabis oil and it doesn’t look like the supply is going to be able to meet the demand anytime soon. Patients hoping for medical marijuana in Utah may be left without for some time.
Future of Medical Marijuana in Utah
Change in drug policy often takes time so many patients are holding out hope the laws will become even more relaxed when it comes to the medical use marijuana. Many are already calling and planning for continued legislation building on the foundation previously set in this area. Additionally, just this year the Justice Department has relaxed enforcement of the federal laws on simple marijuana possession. Utah it seems may follow but surely the changes here will be slow and gradual. Don’t expect full blown medical marijuana use similar to California any time soon.
The Importance of the Jury Trial and Voir Dire
Voir dire is part of the jury selection process.
The jury trial is a right over which many lives were lost in the founding of this country. It is a mechanism to protect individuals against an oppressive government. Think about how different things would be if an individual charged with a crime could then be tried by a government bureaucrat instead of a number of different individuals from his community. Juries can protect people from false allegations by the state. It is another check and balance on state power.
Juries, however, are not infallible. They are composed of people who have their own biases and prejudices. While it is impossible to remove those biases and prejudices from members of the jury, the law has developed to permit lawyers and judges to ask prospective jurors a series of questions to determine if any particular juror carries with him a preconceived notion that could interfere with is rendering a fair judgment in the case. This questioning process is called voir dire, which is a term loosely based on a Latin phrase which means to say the truth and which is conducted during the jury selection process.
Rules Governing the Voir Dire Process
Because voir dire only occurs in the trial court, the trial court judge has a lot of flexibility on how he runs the process. Nonetheless, there are several rules that the judge must follow. If the trial judge violates any of those rules his decision can be reviewed by an appellate court judge under an abuse of discretion standard. See Alcazar v. University of Utah Hosps. & Clinics, 188 P.3d 490.
As discussed in the recent State v. Alvarez case: Generally,the trial court is afforded broad discretion in conducting voir dire, but that discretion must be exercised in favor of allowing discovery of biases or prejudice in prospective jurors. The key inquiry is whether, considering the totality of the questioning, counsel was afforded an adequate opportunity to gain the information necessary to evaluate jurors. If the trial court’s decision to exclude the question about juror embarrassment substantially impaired Defendant’s right to the informed exercise of peremptory challenges, it is reversible error.
So the entire purpose of voir dire is to allow the lawyers to evaluate the prospective jurors and to do so in a way that allows the lawyers to be able to make informed conclusions about each prospective juror.
Only certain officers are trained in determining whether someone is under the influence of drugs.
When people think about impaired driving most people think of the typical alcohol-induced DUI, but drugs are involved in almost as many impaired driving cases. There are some tests that have been developed specifically to detect the involvement of drugs in an impaired driving case. The test is called a drug recognition evaluation or DRE. There are 12 basic steps that a certified DRE law enforcement officer will go through to determine if someone is impaired by drugs.
- Breath Alcohol Test – This is the first thing a DRE officer will do to determine a suspect’s BAC. This will help determine whether alcohol is the culprit in the driver’s impairment.
- Interview of the Arresting Officer – The DRE officer will interview the arresting officer as soon as possible to gather what the arresting officer witnessed.
- Preliminary Examination – This is a physical examination to determine the physical signs of impairment.
- Eye exam – This includes three different examinations include the horizontal gaze nystagmus (HGN – also used to determine the presence of impairment by alcohol); the vertical gaze nystagmus (VGN); and lack of convergence.
- Psychophysical Tests – This includes four different tests: (1) The Romberg Balance test; (2) the walk-and-turn test; (3) the one leg stand test; and (4) the finger to nose test.
- Vital Signs – drugs can affect the vital signs in a number of different ways and the vital signs can tell the trained officer what types of drugs may be in the suspect’s system.
- Dark room – The officer tests how the eyes react to light.
- Muscle Tone – This involves probing the muscles of the arms to determine the rigidity or flaccidity of the muscles.
- Look for Injection Sites - The officer will inspect the suspect for injection sites to see if he had been using needles to inject drugs into his system.
- Suspect’s Statements – The officer will then interview the suspect in attempt to gather incriminating statements from him.
- Documenting Opinion – The officer will then document his opinion as to the impairment of the suspect and which drugs may be the cause for impairment.
- Toxicology – A chemical test, such as a blood test, will be performed to determine the presence of controlled substances in the blood.
The Deseret News reports yesterday that a woman in Salt Lake got upset at a man who lived in the apartment beneath her because he complained that she was being too noisy. Rather than quiet down, the woman decided to get angry at him, so she grabbed a samurai sword and took a swing at him, slicing his arm. She was arrested and potential charges of attempted murder are being considered.
The case is notable because of the fact that the dangerous weapon was a samurai sword. It’s not every day that someone gets attacked like that.
National Public Radio (“NPR”) ran a very interesting story this morning about the rise in court fees and the corresponding rise in defendants serving jail time because they were unable to pay their court ordered fines, restitution, or other related costs of probation. The whole story can be read here. NPR’s investigation into the costs associated with the criminal justice system spanned all 50 states and was conducted over a year long period. NPR’s investigation turned up some notable facts including the following:
- 43 states allow defendants to be billed for public defender services.
- 41 states charge inmates for room and board in jail and prison. This is true in Utah and referred to as the “pay to stay program.”
- 44 states charge defendants for private probation and parole supervision services. This is true in Utah where almost all defendants on supervised probation pay the costs associated therewith.
- All states except Hawaii charge the defendant a fee for any electronic monitoring.
In Utah, Defendants get billed at almost every step of the process, from the time they are arrested they have to pay a bail amount, court fines, costs of assessments, classes, counseling, probation fees, jail fees, and the list goes on. It is no wonder why so many defendants default on their court ordered financial obligations and get hung up in the system. Many Defendants are ordered to serve jail time as a result of their inability to pay fines or other court imposed financial obligations.
Too Poor to Pay Fines?
The U.S. Supreme Court in 1983 ruled you could not be sent to jail if you were too poor to pay court fines and fees. The case was Bearden v. Georgia in which the court also concluded a defendant who fails to pay court fines and fees could only serve jail time as a result if that Defendant in fact had the money to pay and willfully refused to do so. Despite this long standing precedent, many courts, including those in Utah are routinely sending defendants to jail who are unable to pay court fines, fees, restitution, or other court orders financial obligations. Often this means the person loses what little employment they have further sending them down the rabbit hole.
Ending the Practice
At Utah Defenders we are committed to ending the practice of sending defendants to jail who cannot pay their court fines or fees. If you are in this situation and would like to speak with a Salt Lake Criminal Defense Attorney please call us anytime.
Computer Crimes on the Rise
We are seeing an interesting trend in Utah: people are hacking into their employer’s, partner’s, friend’s, ex-lover’s, ex-spouse’s Facebook accounts, email accounts, and other social media outlets in an effort to get revenge on them. In doing so they rarely realize that what they are doing is illegal and has serious consequences. Most people are lucky because they get away with it, mainly because the ex decides not to report it to law enforcement. For those who are not so lucky, they may have to deal with police, courts, fine, and even jail.
Unauthorized Access of Another’s Email and Social Media Can Be A Felony
Utah makes it illegal to access or attempt to access another’s computer, computer software, computer data, etc. or he otherwise modifies, damages, destroys, or discloses such computer data can be charged with as low as a class B misdemeanor or as high as a second degree felony. The degree of crime all depends on how much damage was caused by the unauthorized access. Anything over $5,000 in damages is a second degree felony; anything less than $500 is a class B misdemeanor.
For example, let’s say that you work in an office and you have been given access to the company’s Facebook page. You get fired by a boss who has been nothing but disrespectful to you. You get home and in a fit of anger login to the company’s Facebook page and post something to embarrass that boss. The boss doesn’t like it and calls the police. Now not only are you having to deal with having lost your job you have the police knocking on your door wanting to ask you some questions. The evidence stacks up against you and now you have felony charges against you for computer crimes, you get arrested, booked into jail, have to make bail, and now you have to go to court to defend against the charges.
We one of the few firms that actually has significant experience in this realm of the law so give us a call for a free consultation if you have been charged with a computer crime.