Category Archives: traffic

Legal news updates 1-15-2013

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New York: Second Amendment and Legislative Process Assaulted in Albany Late Last Night
Just before midnight and within minutes of the bill text becoming available to the public, the New York Senate passed radical anti-gun legislation late last night.  Without any committee hearing or testimony, without public comment or even proper legislative procedure, anti-gun Governor Andrew Cuomo

Obama willing to use executive orders on guns
Lawmakers and other officials said that the president could use a public event as soon as Wednesday to signal his intention to engage in the biggest Congressional fight over guns in nearly two decades, focusing on the heightened background checks and including efforts to ban assault weapons and thei

Delaware: Gov. Markell wants private sale ban
The National Rifle Association issued a statement saying Markell was less interested in protecting children from gun violence than in pushing an anti gun agenda. The group noted that the Delaware Constitution affirms the right for a person to bear arms “for the defense of self, family, home and Stat

Mayor Bloomberg urges federal gun control
New York Mayor Michael Bloomberg is calling for federal gun control reforms.Bloomberg outlined his proposals Monday at the Johns Hopkins Bloomberg School of Public Health at a summit on reducing gun violence.

Kopel: Arming the right people can save lives
Everyone knows the terrible litany of gun violence: Columbine High School, Virginia Tech, Ft. Hood, Tucson, the Cinemark movie theater in Colorado, the Sikh temple in Wisconsin, Sandy Hook Elementary School.Here are some examples you may not have heard about: Pearl High School in Mississippi; Sulliv

North: Preserving the Second Amendment
The constitutional controversy created by the Obama administration also has backfired for those who sought to demonize the NRA as an extremist, fringe organization. Since the Biden task force was formed, more than 100,000 of our fellow citizens have joined the NRA, bringing membership to more than 4

CA11: Plaintiff’s planned violent crime justified force to arrest him; no excessive force
Federal officers arresting defendant were alleged to have used excessive force. Plaintiff was arrested as he was planning a violent felony, and taking the proof most favorably to him, the force here was not unreasonable considering what the officers knew when he was arrested. Williams v. Bauer, 2013

OH2: Failure to corroborate anonymous CI but for one public detail was a complete failure of PC
Information from the anonymous informant was not verified, except for one piece of personal information that was obvious. Therefore, issuance of the search warrant lacked probable cause. This was a fundamental violation of state law, therefore the Fourth Amendment, and suppression was required. Defe

N.D.Okla.: When a consent search of the home is involved, differences in the testimony of the officers was too much to bear
The government bore the burden of proof on consent to search defendant’s house, and it failed. While the officers were otherwise credible, the discrepancies in their versions was too much to tolerate when a search of the home is an issue. United States v. Starks, 2013 U.S. Dist. LEXIS 4985 (N.D. Okl

UT: Livestock inspector could enter open field
A state livestock inspector’s entry into an open field to inspect defendant’s cattle was into an open field and did not violate any rights of trespass under Jones. State v. Lamb, 2013 UT App 5, 2013 Utah App. LEXIS 8 (January 10, 2013): [*P16] We agree that the Fourth Amendment does not protec

TN: “48 hour hold” for investigation is an arrest requiring probable cause
The Memphis P.D.’s practice of a “48 hour hold” for investigation is an arrest requiring probable cause. This court has criticized it before. Here, they had probable cause for defendant’s arrest, and his confession to murder was otherwise voluntary. State v. Cox, 2013 Tenn. Crim. App. LEXIS 18 (Janu

New law review article: “DNA Profiles, Computer Searches, and the Fourth Amendment”
Catherine W. Kimel, DNA Profiles, Computer Searches, and the Fourth Amendment, 62 Duke Law Journal 933-973 (2013). Abstract: Pursuant to federal statutes and to laws in all fifty states, the United States government has assembled a database containing the DNA profiles of over eleven million citize

Biden Says, “Critically Important to Act” on Guns–Opens Door to Executive Action
The Obama administration is seeking to institute a far more sweeping gun-control agenda than simply reinstating the failed  Clinton bans on “assault weapons” and “high-capacity” magazines.

Biden Says, “Critically Important to Act” on Guns–Opens Door to Executive Action
The Obama administration is seeking to institute a far more sweeping gun-control agenda than simply reinstating the failed  Clinton bans on “assault weapons” and “high-capacity” magazines.

Connecticut: Weston Board of Selectmen Want to Ban Most Tools for Self-Defense—This Includes Slingshots and Compound Bows!
The Weston Board of Selectmen is currently pursuing an extremely restrictive ordinance that would severely infringe on your Second Amendment rights, subject Weston residents to egregious fines for possessing lawful items under state law, and inhibit your inherent right to self-defense.

NRA ‘disappointed’ after Biden meeting
Vice President Joe Biden said Thursday that he will deliver his recommendations on reducing gun violence to President Barack Obama by Tuesday, perhaps including universal background checks for purchases and forbidding certain types of high-capacity magazines.

NRA accuses White House of ‘attack’ on 2nd Amendment rights
The National Rifle Association said Thursday it was “disappointed” by its meeting Thursday with Vice President Biden, accusing the Obama administration of using the time to “attack the Second Amendment.”

Statement From the National Rifle Association of America Regarding Today’s White House Task Force Meeting
Fairfax, Va. – The National Rifle Association of America is made up of over 4 million moms and dads, daughters and sons, who are involved in the national conversation about how to prevent a tragedy like Newtown from ever happening again.  We attended today’s White House meeting to discuss how to kee

Biden says Obama could use executive orders to restrict guns
Vice President Joe Biden said on Wednesday the White House plans to act quickly to curb gun violence and will explore all avenues – including executive orders that would not require the approval of Congress.

Prosecutor to look into TV incident
The decision on whether anyone should be prosecuted after “Meet the Press” host David Gregory appeared to hold a high capacity ammunition magazine on national television now belongs to the District’s Office of the Attorney General, authorities said Tuesday.

New York: More gun control sought by Gov. Cuomo
Mr. Cuomo is a possible 2016 presidential contender who is seeking to elevate his stature among Democrats base nationally, after a much praised victory on same sex marriage in his first year in office. His push for enhanced gun control even drew praise from Cardinal Timothy M. Dolan of New York, in

New Jersey: Bill would require psych tests for all applicants for firearm permits
Individuals seeking a permit to buy firearms in New Jersey would have to submit results of a psychological evaluation before they could buy a gun, under a bill introduced yesterday in the Legislature by West New York Assemblywoman Angelica Jimenez.

NYT Editorial: “Sneaky Apps That Track Cellphones”
NYT Editorial: Sneaky Apps That Track Cellphones: A perversion of smartphone technology called “stalking apps” — precise, secretive trackings of the movements of cellphone users — is increasingly a matter of national concern, particularly for domestic abuse victims. No less threatening is the routi

Sen. Feinstein suggests national “buyback” of guns

CA6 is troubled by 3 weeks of constant video surveillance of backyard under Jones but finds it harmless
The Sixth Circuit is troubled by three weeks of constant video surveillance of defendant’s backyard by a pole camera in light of Jones and its trespass holdings. “We are inclined to agree with the Fifth Circuit that ‘[t]his type of surveillance provokes an immediate negative visceral reaction.’” Nev

TN: DNA profile in John Doe arrest warrant was particular for Fourth Amendment and tolled SOL
A woman lawyer was the target of a home invasion at aggravated attempted rape in 1994 in Nashville. She struggled with the assailant who beat her head, and she bit off a piece of skin on his finger, spitting it under the bed. He left. In 2000, a DNA profile was run on the piece of the finger, and th

E.D.Pa.: Even disregarding a misleading paragraph in the SW application there was still PC
Officers conducted a protective sweep and saw ammunition in plain view. They also had enough to seek a search warrant, and they did, including the reference to the ammunition. There was a misleading paragraph in the affidavit. Excising it and the reference to the ammunition, there was still probable

E.D.Pa.: Car subject to search for PC could be moved before the search for safety purposes
The search of defendant’s car was justified by the automobile exception with probable caues or the search incident doctrine although the car was moved before the search to the police station. Defendant was stopped on a street, and a crowd had begun to form. It was within the officers’ discretion to

Asa Hutchinson on CNN’s State of the Union
Asa Hutchinson on CNN’s State of the Union - December 23, 2012

CA6: Fourth Amendment does not require question about DL before asking about drugs
There is no constitutional requirement that the officer ask for DL before asking about drugs. Defendant here was found to have consented to a search of his vehicle. United States v. Cochrane, 2012 U.S. App. LEXIS 25980, 2012 FED App. 0416P (6th Cir. December 20, 2012)*: To the extent that Defendant

OR: State can’t rely on standing on appeal if it doesn’t raise it at suppression hearing
The state could not rely on lack of standing to support admission of the product of the search where it did not raise it at the suppressing hearing. State v. Jepson, 2012 Ore. App. LEXIS 1525 (December 19, 2012).* Defendant was on probation and in custody, and his consent was not coerced even thoug

Legal updates for 12-7-2012

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OH: An individual subject to an arrest warrant does not forfeit all expectations of privacy from illegal arrest
An individual subject to an arrest warrant does not forfeit all expectations of privacy from illegal arrest. State v. Gardner, 2012 Ohio 5683, 2012 Ohio LEXIS 3089 (December 6, 2012): [*P1] In this appeal, we consider whether an individual who is the subject of an outstanding arrest warrant forfei

CA4: Where there’s PC, officers telling the defendant they believed he had child pornography on his computer was exigency to seize it
Telling a person that he’s the target of a child pornography investigation creates exigency to seize his work computer so he won’t destroy what’s on it. Here, the officers told defendant they had probable cause against him. United States v. Brown, 2012 U.S. App. LEXIS 25012 (4th Cir. December 6, 201

DE: Criminal impersonation arrest during traffic stop supports SI
Defendant was arrested for criminal impersonation for giving false name, address, and DOB to officer during a traffic stop, and that supported his search incident. Stafford v. State, 2012 Del. LEXIS 622 (December 4, 2012). Validity of consent issue is not one normally appealable by the state in Ark

MI: Defendant’s revocation of his consent did not make the officers’ presence unlawful
Defendant’s revocation of his consent did not make the officers’ presence unlawful for purposes of his resisting arrest prosecution. People v. Kodlowski, 2012 Mich. App. LEXIS 2440 (December 4, 2012).* There was [apparently] probable cause for plaintiff’s arrest and the impoundment of his car, so h

E.D.N.C.: Defendant staying at friend’s house on house arrest had no REP in their storage room
Defendant was staying at a house on house arrest, and he did not have a reasonable expectation of privacy as to its storage room to which he had a key. He did not have exclusive access to it, and others came and went. United States v. Gardner, 2012 U.S. Dist. LEXIS 171927 (E.D. N.C. August 9, 2012).

D.S.D.: Wrong house number on SW was a correctable error where right house was searched
The wrong number for the address of defendant’s place (“34” not “32”) was not a constitutional error. The correct color was shown, and the officers made certain that they entered the correct house when they got there by rechecking with other sources. United States v. Running Shield, 2012 U.S. Dist.

Kansas: Topeka City Council Repeals Ban on Loaded Handguns in Vehicles
On Tuesday, the Topeka City Council voted unanimously to overturn its outdated prohibition against carrying loaded handguns in your vehicle.  In a 10-0 vote, Mayor Bill Bunten and nine city council members furthered Kansas’ strong tradition of Second Amendment support by bringing the Topeka in line

BATFE Taking Comments on “Sporting Purposes” Exemption to “Armor Piercing Ammunition” Law Until Dec. 31
The Bureau of Alcohol, Tobacco, Firearms and Explosives is taking public comments on its website until December 31, with regard to how it should determine what types of projectiles meet the “sporting purposes” exception to the federal “armor piercing ammunition” law. At this time, the question cente

Anti-Hunters Want You Labeled as a Domestic Terrorist
Being an integral part of America’s remarkable wildlife restoration success story is, at times, a thankless job, but having some animal “rights” fanatics petition the White House to label us as “domestic terrorists” for our efforts is something new altogether.  These anti-hunting zealots state that

Outrage of the Week: Sports Columnist Likens NRA to KKK
Sportscaster Bob Costas’ misplaced anti-gun rant during the halftime of NBC’s broadcast ofSunday Night Football has received considerable media coverage and has been roundly criticized for interjecting politics into a what should be an entertainment program (please see related story above). Much le

Bob Costas Uses Half-Time “Commentary” to Bash American Gun Owners
As most of you know, NBC sportscaster Bob Costas has deservedly come under fire for his latest “sports commentary,” offered up to unsuspecting viewers on  this week’s “Sunday Night Football” half-time segment.   Blaming the tragic murder-suicide committed by Kansas City Chiefs linebacker Jovan Belch

SSRN: “To Be Secure: The Forgotten Words of the Fourth Amendment”
SSRN: To Be Secure: The Forgotten Words of the Fourth Amendment by Luke M. Milligan: The Fourth Amendment of the U.S. Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated..

N.D.Iowa: Dog sniff at apartment door validly supported search warrant
A drug dog alerted at defendant’s apartment door, and this supported a search warrant. The court declines to follow Jardines v. Florida, 73 So.3d 34 (Fla. 2011), cert. granted, 132 S. Ct. 995 (2012), despite the fact it was argued a month earlier [and would thus come down any day now], instead follo

CA6: Clearly erroneous explained again
Crediting the officers’ testimony that defendant consented to a patdown that produced a sawed-off shotgun was not clearly erroneous. United States v. Oldham, 2012 U.S. App. LEXIS 24686, 2012 FED App. 01227N (6th Cir. November 28, 2012). Clearly erroneous explained: The district court did not commit

FL2: Search of school bookbag without reasonable suspicion of anything
The juvenile had an early meeting with her school counselor, and, after the meeting, she had to leave her bookbag because of a school rule against bookbags in the hallway. Four times during the day she came and asked for access to the bookbag which was denied. Based on that, the counselor decided to

Ohio Plain Dealer: “Keep DNA evidence private”
Ohio Plain Dealer: Keep DNA evidence private by Jonathan Witmer-Rich and Brendan Heil: On Nov. 1, the Ohio Supreme Court issued a startling — and unnecessary — opinion eroding DNA privacy for Ohio citizens. The court held that the Fourth Amendment does not protect an individual’s personal DNA pro

CA9: Govt failed to prove exigency for warrantless entry
The box delivered to defendant had a beeper inside that was supposed to emit a continuous tone when it was opened. It malfunctioned and continued to emit a continuous tone before it left police custody. There were no exigent circumstances justifying a warrantless entry into defendant’s dwelling to s

CA7: Govt failed to prove exigency; its theory was speculative
Government failed to prove its theory of protective sweep. It’s argument essentially put the burden on the defendant to prove that the protective sweep was unjustified, and that’s wrong. Also, the government’s waiver of an opportunity to put on additional proof of exigency before the Magistrate Judg

MD: Suppression judges act like appellate judges and shouldn’t second guess PC
A suppression hearing judge sits like an appellate judge in determining the adequacy of the showing of probable cause. The suppression judge improperly second guessed the probable cause here, and the suppression order is reversed. State v. Johnson, 2012 Md. App. LEXIS 146 (November 30, 2012) (Moylan

GA: Arrest for obstruction didn’t support SI under Gant
Defendant was arrested for obstruction, and the search of his truck after he was handcuffed was invalid under Gant. Hargis v. State, 2012 Ga. App. LEXIS 1028 (November 29, 2012). The court credits the officers’ testimony that defendant spontaneously admitted to having a gun on him after a brief enc

D.D.C.: SW for robbery proceeds not stale just because a wily robber might dispose of the proceeds
Defendant’s claim that the AUSA’s signature on warrant papers is constitutionally meaningless even if it was true. Similarly, the fact the affidavit was signed on one day before one judge and the warrant issued on another day before another judge does mean anything. The information about a robbery i

CA2: Motorcycle checkpoint shown justified by special needs
A motorcycle checkpoint program in New York State was shown to be justified by special needs. Wagner v. Sprague, 2012 U.S. App. LEXIS 24542 (2d Cir. November 29, 2012) [but this is a memorandum opinion with no facts]. The government justified a protective sweep of defendant’s house by showing his h

OR: Automobile exception only applies to vehicles, not the occupants
The automobile exception applies to vehicles, not their occupants, and the state confesses error based on United States v. Di Re, 332 U.S. 581, 586-87 (1948). State v. Freeman, 2012 Ore. App. LEXIS 1356 (November 7, 2012). Defendant was seized by being ordered by loudspeaker to come out of the hous

MD: Violation of state SCA not subject to exclusion for lack of standing in provider information
The state violated the Maryland Stored Communications Act, similar to the federal Stored Communications Act, in obtaining cell phone provider created information about his account by a state subpoena served out of state. He has no reasonable expectation of privacy in that information, so the evidenc

W.D.Wash.: Franks reckless disregard shown
Franks “reckless disregard” was shown in a wiretapping case. Here, the issue was the government’s claim they could not use additional GPS devices in exhausting other investigative techniques, and then actually did after that. United States v. Hamilton, 2012 U.S. Dist. LEXIS 169290 (W.D. Wash. Novemb

D.Ariz.: Use of a pole camera for surveillance from off property not a violation of REP
Surveillance of comings and goings to defendant’s apartment with a pole camera does not constitute a “trespass” under Jones. United States v. Brooks, 2012 U.S. Dist. LEXIS 168738 (D. Ariz. November 28, 2012): Additionally, as argued by the Government, despite a block wall that could potentially act

Gun Owners Enter the Fight of Our Lives
The NRA has been saying all along that Barack Obama would unleash an assault on our Second Amendment freedoms if he won a second term. It sure didn’t take long for him to prove us right.

Illinois: Federal Court Upholds Right to Keep and Bear Arms and Awards the NRA $125,000 in Attorney’s Fees
On September 26, 2012 the United States District Court in the Northern District of Illinois awarded the National Rifle Association (NRA) $125,000 to reimburse it for attorney’s fees spent winning a lawsuit against the City of Chicago over a Chicago firearm ordinance on behalf of NRA member Shawn Gow

Legal updates for 12-3-2012

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N.D.Iowa: Dog sniff at apartment door validly supported search warrant
A drug dog alerted at defendant’s apartment door, and this supported a search warrant. The court declines to follow Jardines v. Florida, 73 So.3d 34 (Fla. 2011), cert. granted, 132 S. Ct. 995 (2012), despite the fact it was argued a month earlier [and would thus come down any day now], instead follo

CA6: Clearly erroneous explained again
Crediting the officers’ testimony that defendant consented to a patdown that produced a sawed-off shotgun was not clearly erroneous. United States v. Oldham, 2012 U.S. App. LEXIS 24686, 2012 FED App. 01227N (6th Cir. November 28, 2012). Clearly erroneous explained: The district court did not commit

FL2: Search of school bookbag without reasonable suspicion of anything
The juvenile had an early meeting with her school counselor, and, after the meeting, she had to leave her bookbag because of a school rule against bookbags in the hallway. Four times during the day she came and asked for access to the bookbag which was denied. Based on that, the counselor decided to

Ohio Plain Dealer: “Keep DNA evidence private”
Ohio Plain Dealer: Keep DNA evidence private by Jonathan Witmer-Rich and Brendan Heil: On Nov. 1, the Ohio Supreme Court issued a startling — and unnecessary — opinion eroding DNA privacy for Ohio citizens. The court held that the Fourth Amendment does not protect an individual’s personal DNA pro

CA9: Govt failed to prove exigency for warrantless entry
The box delivered to defendant had a beeper inside that was supposed to emit a continuous tone when it was opened. It malfunctioned and continued to emit a continuous tone before it left police custody. There were no exigent circumstances justifying a warrantless entry into defendant’s dwelling to s

CA7: Govt failed to prove exigency; its theory was speculative
Government failed to prove its theory of protective sweep. It’s argument essentially put the burden on the defendant to prove that the protective sweep was unjustified, and that’s wrong. Also, the government’s waiver of an opportunity to put on additional proof of exigency before the Magistrate Judg

MD: Suppression judges act like appellate judges and shouldn’t second guess PC
A suppression hearing judge sits like an appellate judge in determining the adequacy of the showing of probable cause. The suppression judge improperly second guessed the probable cause here, and the suppression order is reversed. State v. Johnson, 2012 Md. App. LEXIS 146 (November 30, 2012) (Moylan

GA: Arrest for obstruction didn’t support SI under Gant
Defendant was arrested for obstruction, and the search of his truck after he was handcuffed was invalid under Gant. Hargis v. State, 2012 Ga. App. LEXIS 1028 (November 29, 2012). The court credits the officers’ testimony that defendant spontaneously admitted to having a gun on him after a brief enc

D.D.C.: SW for robbery proceeds not stale just because a wily robber might dispose of the proceeds
Defendant’s claim that the AUSA’s signature on warrant papers is constitutionally meaningless even if it was true. Similarly, the fact the affidavit was signed on one day before one judge and the warrant issued on another day before another judge does mean anything. The information about a robbery i

CA2: Motorcycle checkpoint shown justified by special needs
A motorcycle checkpoint program in New York State was shown to be justified by special needs. Wagner v. Sprague, 2012 U.S. App. LEXIS 24542 (2d Cir. November 29, 2012) [but this is a memorandum opinion with no facts]. The government justified a protective sweep of defendant’s house by showing his h

OR: Automobile exception only applies to vehicles, not the occupants
The automobile exception applies to vehicles, not their occupants, and the state confesses error based on United States v. Di Re, 332 U.S. 581, 586-87 (1948). State v. Freeman, 2012 Ore. App. LEXIS 1356 (November 7, 2012). Defendant was seized by being ordered by loudspeaker to come out of the hous

MD: Violation of state SCA not subject to exclusion for lack of standing in provider information
The state violated the Maryland Stored Communications Act, similar to the federal Stored Communications Act, in obtaining cell phone provider created information about his account by a state subpoena served out of state. He has no reasonable expectation of privacy in that information, so the evidenc

W.D.Wash.: Franks reckless disregard shown
Franks “reckless disregard” was shown in a wiretapping case. Here, the issue was the government’s claim they could not use additional GPS devices in exhausting other investigative techniques, and then actually did after that. United States v. Hamilton, 2012 U.S. Dist. LEXIS 169290 (W.D. Wash. Novemb

D.Ariz.: Use of a pole camera for surveillance from off property not a violation of REP
Surveillance of comings and goings to defendant’s apartment with a pole camera does not constitute a “trespass” under Jones. United States v. Brooks, 2012 U.S. Dist. LEXIS 168738 (D. Ariz. November 28, 2012): Additionally, as argued by the Government, despite a block wall that could potentially act

Gun Owners Enter the Fight of Our Lives
The NRA has been saying all along that Barack Obama would unleash an assault on our Second Amendment freedoms if he won a second term. It sure didn’t take long for him to prove us right.

Illinois: Federal Court Upholds Right to Keep and Bear Arms and Awards the NRA $125,000 in Attorney’s Fees
On September 26, 2012 the United States District Court in the Northern District of Illinois awarded the National Rifle Association (NRA) $125,000 to reimburse it for attorney’s fees spent winning a lawsuit against the City of Chicago over a Chicago firearm ordinance on behalf of NRA member Shawn Gow

M.D.Ala.: Way cash was packaged supported reasonable cause it was possessed for acquiring drugs
Claimant admitted smoking marijuana two hours before his traffic stop as an explanation for the smell of marijuana in the car. He admitting having cash, but when it was found there was more than he admitted and it was packaged strangely. That was reasonable suspicion of use of the money for drug acq

OH2: Not being on the rental car paperwork and not knowing renter was RS
The officer had reasonable suspicion to continue the stop where defendant and his passenger were in a brand new rental car, neither was on the paperwork, and they didn’t know the name of the renter. State v. Jalloh, 2012 Ohio 5314, 2012 Ohio App. LEXIS 4636 (2d Dist. November 16, 2012). Because dig

NY: Defense needs to seek the inventory policy rather than just complain testimony was vague
The officer did not produce the inventory policy and testified vaguely to it. Since the defense did not ask for it, the court can’t say the inventory was unconstitutional. The inventory itself will not be micro-managed by the courts. “The inventory here, while not a model, was sufficient to meet the

Washington: “No Shooting” Ordinance to be Considered in Island County Tomorrow
Tomorrow,November 21, at 2:15 p.m., the Island County Board of Commissioners will hold awork session at which they will discuss an unnecessary “no shooting” ordinance. Commissioner Angie Homola, who lost her bid for re-election, is pushing this measure that would facilitate the imposition of shootin

Virginia: Page County Board of Supervisors to Defy State Law and Consider Restrictive Noise Ordinance
Today, November 20 at 7:00 pm., the Page County Board of Supervisors will hold a public hearing to consider a proposed noise ordinance which would amend the current law, Chapter 81, Noise, in its entirety. The proposed prohibitions contain an exemption for formal or informal sport shooting, but woul

D.S.C.: Getting out of vehicle and pushing bag under car was considered abandonment
Defendant got out of a vehicle with a bag and set it down on the ground. He pushed it under the vehicle, but not far. The court concludes that the bag was abandoned by this action. United States v. Davis, 2012 U.S. Dist. LEXIS 162396 (D. S.C. November 14, 2012): Two possible inferences can be drawn

Why The Glass-Steagall Myth Persists [Forbes.com]
The definitive history of the financial crisis remains to be written. But one thing is for sure: it shouldn’t be written by those who have a quasi-religious conviction that the freedom to pursue profits is the cause of all the world’s problems, and that government regulation is the unfailing el

Ohio: Comprehensive Pro-Gun Reform Legislation Remains Stalled
Election season has concluded and Ohioans are fortunate to have elected and re-elected numerous pro-gun candidates who will lead the state in protecting our Second Amendment rights during the 2013-2014 legislative session.  However, our legislative agenda for this year is not complete. House Bill 49

OH2: Smell of burning marijuana and seeing some during knock and talk justified entry
Officer doing a knock and talk smelled burning marijuana coming from the house, and he could see marijuana on the coffee table. His entry to preserve the evidence was reasonable since the defendant knew that the officers knew it was there. State v. Miller, 2012 Ohio 5206, 2012 Ohio App. LEXIS 4558 (

OH2: Validity of judge’s appointment can’t be challenged by attacking search warrant
The alleged defective appointment of a judge to replace one who died cannot be attacked in a criminal proceeding challenging a search warrant the judge issued. The general rule is that the legality of the judge’s appointment must be tested in quo warranto and not by collateral attack in a criminal p

WA: Gant applies to all pending cases
Gant is retroactive under the Washington Constitution and applies to all nonfinal cases. State v. Louthan, 2012 Wash. LEXIS 745 (October 25, 2012). Defendant’s postconviction claim of unsworn affidavits for search warrant is shown to be false. Johnson v. State, 2012 Fla. LEXIS 2276 (November 8, 201

D.Neb.: Merely talking to a parked motorist was not a seizure
Officers talking to a motorist parked in a Lexus in a high crime area to watch out was not a seizure. The officer walked around the car and saw the butt of a gun, but it turned out to be a BB gun. United States v. Mahr, 2012 U.S. Dist. LEXIS 161000 (D. Neb. October 22, 2012): Taking the “position t

GA: Cell provider’s voluntarily relinquishing records in a recent double homicide was no ground to suppress
Georgia law limits access to cell phone records, and a double murderer was at large and the police were tying desperately to locate him. There is a statutory suppression remedy, but the telephone company turned them over voluntarily when asked by the police, in good faith. This obviated the suppress

D.Mont.: Defendant had standing in a mailed package even though the return address wasn’t his
Defendant had standing to challenge the search of a mailed package even though the return address was not his name. United States v. Gardenier, 2012 U.S. Dist. LEXIS 160030 (D. Mont. November 7, 2012): The parties do not dispute that Gardenier sent the package, even though the return label read “Je

Illinois: Cook County Commission Changed Date of Budget Hearing and Today Approved a Punitive Tax on your Second Amendment Rights
Today, the Cook County Board of Commissioners held a Special Board Meeting and approved the misguided and onerous tax on firearms purchased in Cook County (previously reported on here).   This procedural move put the vote a week earlier than scheduled, as it was supposed to take place next week on N

SCOTUS grants cert in Maryland DNA case
The Supreme Court granted cert in Maryland v. King today. Chief Justice Roberts had previously granted Maryland a stay pending decision on cert. Issue: Whether the Fourth Amendment allows the states to collect and analyze DNA from people arrested and charged with serious crimes.

Grassroots Alert: Vol. 19, No. 45 11/09/2012

Obama Administration Endorses New U.N. Arms Trade Treaty Negotiations
Just as NRA warned would happen, following the election, the Obama administration has moved forward with its plans to support a United Nations Arms Trade Treaty. On Wednesday November 7, the U.S. Mission to the U.N. made clear its support for renewed ATT negotiations, casting a vote in favor of reso

Contact Your U.S. Senators and Urge Their Support of S. 3525, the “Sportsmen’s Act of 2012″
When Congress reconvenes on November 13, one of the first items the U.S. Senate could vote on is S. 3525, “The Sportsmen’s Act of 2012.”  S. 3525 is an essential piece of legislation focused on the expansion and enhancement of hunting, recreational fishing and shooting on federal public land.

No Longer Camouflaging Their Agenda, Anti-Gunners Start Gun Ban Plans
Any attempt by the anti-gun elite to hide their agenda has officially gone by the wayside.  Recent electoral history had taught the gun control crowd to camouflage their intentions during the campaign season, and then wait for an opportune time to act.  That tactic now appears to have run its course

A Special Debt of Gratitude
In this week’s alert, we observe two important days in our nation.  Election Day always reinforces how lucky we are to live in a country where “we the people” can choose our elected leaders and have a voice in how we are governed.

2012 Election Recap
The dust is still settling from Tuesday’s voting, but one thing is clear:  NRA-ILA’s 2012 election effort was one of the most sophisticated and targeted endeavors in our history.  Though President Obama was able to secure a second term, pro-gun voters did turn out to the polls in significant numbers

NJ: While cell phone records were inproperly obtained, that did not lead to the discovery of the victim’s body, so it should not have been suppressed
Defendant’s cell phone records were improperly obtained by a flawed process, but the inevitable discovery doctrine supported the finding of the victim’s body after the finding of the murder weapon, so the body would not be suppressed. State v. Smith, 2012 N.J. LEXIS 1065 (October 25, 2012): We turn

GA: Officer’s discovery seatbelt was buckled did not constitutionally mandate ending stop
Defendant was stopped for a seatbelt violation, but the officer found that the seatbelt was tucked under the arm and was legal. The stop being initially lawful, the officer was not obligated to end the stop and let the defendant go immediately. Davis v. State, 2012 Ga. App. LEXIS 872 (October 23, 20

CO: A pat down solely for officer safety was unreasonable
A pat down solely for officer safety was unreasonable. People v. Berdahl, 2012 COA 179, 2012 Colo. App. LEXIS 1734 (October 25, 2012): [*P27] Nevertheless, the trial court appears to have applied a bright-line rule that an officer can conduct a pat-down search whenever he or she has an obligation

New book: The Supreme Court and the Fourth Amendment’s Exclusionary Rule by Tracey Maclin
Boston U. press release: “A celebration of the publication of The Supreme Court and the Fourth Amendment’s Exclusionary Rule by Tracey Maclin, Professor of Law,” Monday, October 29, 2012: Boston University School of Law is delighted to celebrate the publication of The Supreme Court and the Fourth A

Grits for Breakfast: “Houston hearing honed in on use of drones by law enforcement”
Grits for Breakfast: Houston hearing honed in on use of drones by law enforcement: Grits wishes I could have attended yesterday’s hearing in Houston of the US House Judiciary Committee’s Subcommittee on Crime on domestic use of unmanned drones by law enforcement, but James Pinkerton at the Houston

Grassroots Alert: Vol. 19, No. 43 10/26/2012

With “Supporters” Like This, What Amendment Needs Enemies?
Yesterday, in a New York Daily News commentary, Rep. Carolyn McCarthy (D-N.Y.) paraphrased President Obama’s most insincere campaign talking point with a direct quote from Brady Campaign propaganda, saying “You can support the Second Amendment” by imposing “common sense” gun control laws. In particu

Whistleblower Sues Time, Inc. Over “Fast and Furious”
We reported recently that a key “Fast and Furious” whistleblower, John Dodson had called on Fortune Magazine to retract a story on the scandal that the Department of Justice Inspector General’s report showed to be full of inaccuracies.

With Just 11 Days Until Election Day, Make Sure You’re “All In!”
In 11 days we will go to the polls in what will almost surely be the most important election of our lifetimes.  We all know that a second term for President Barack Obama would threaten the rights of gun owners in numerous, far-reaching ways.  In last Tuesday’s presidential debate, President Obama sa

With Election Day Looming, Gun Controllers State Their “Case”
There are only 11 days remaining before this year’s elections and gun control supporters haven’t had a novel idea since we can’t remember when, so longtime gun control advocates Dan Webster, Jon Vernick and Steve Teret of the (New York City Mayor Michael) Bloomberg School of Public Health at Johns H

CA7: Strip search of jail employee was reasonable when search of his person and car came up empty and they had reason to believe he would smuggle drugs into the jail
A jailer was reasonable subjected to a strip search at work based on credible reports he would be bringing cannabis into the jail. His car was stopped and it and his person would be searched. Since drugs weren’t found in those searches, reasonable suspicion thus existed for an employee strip search.

N.D.W.Va.: Defendant did not consent to what officer was doing without asking by defendant merely not speaking
Defendant neither did nor said anything that qualified as consent. Implied consent from his failure to object when the officer was doing something anyway was not consent. United States v. Harvey, 2012 U.S. Dist. LEXIS 153511 (N.D. W.Va. October 25, 2012), R&R 2012 U.S. Dist. LEXIS 153474 (N.D. W

SeattlePI.com: “Irate crowd greets Seattle Police drone plan”
SeattlePI.com: Irate crowd greets Seattle Police drone plan / Aircraft with cameras get harsh reaction in Central District by Casey McNerthney: Seattle police may use remote control drones during future investigations, and a crowd that gathered Thursday night in the Central District was furious abo

CA2: Violation of state jurisdictional law not Fourth Amendment issue
Violation of state jurisdictional law and federal policy re customs officers and state law was irrelevant under the Fourth Amendment. United States v. Wilson, 2012 U.S. App. LEXIS 22212 (2d Cir. October 25, 2012): The district court concluded that the vehicle stop violated the Fourth Amendment bec

Volokh.com: “Magistrate Judge Denies Court Order Application for Cell Tower Dumps”
Volokh.com: Magistrate Judge Denies Court Order Application for Cell Tower Dumps by Orin Kerr: The decision is In re U.S. ex rel. Order Pursuant to 18 U.S.C. Section 2703(d), 2012 WL 4717778 (S.D. Tex. September 26, 2012) (Owlsey, M.J),, and it rejects an application under the Stored Communications

OH12: Informant communicating with cop during drug transaction with defendant was RS
Reliable informant who was communicating with defendant about drugs provided reasonable suspicion. State v. Dennis, 2012 Ohio 4877, 2012 Ohio App. LEXIS 4278 (12th Dist. October 22, 2012).* Driving too slow and not staying in one’s lane justified a stop. State v. Roetzel, 2012 Ohio 4898, 2012 Ohio

computerworld.com: “Fighting unconstitutional stingray phone surveillance that tracks innocent people”
computerworld.com: Fighting unconstitutional stingray phone surveillance that tracks innocent people by Darlene Storm: Let’s say you have your cell phone with you, even if you are not talking or texting, otherwise minding your own business, innocent of being suspected of any crime … but hey your

NJ.com: “N.J. Supreme Court wrestles with privacy issues in cellphone, GPS case”
NJ.com: N.J. Supreme Court wrestles with privacy issues in cellphone, GPS case by Anthony Campisi: Justices of the state Supreme Court wrestled Monday with drawing new privacy protections in a world where police can engage in the sophisticated tracking of suspects using the most ubiquitous of devic

NACDL at the National Press Club for the Florida dog sniff cases is on C-SPAN
From NACDL: NACDL’s October 23 Program (this morning) at the National Press Club — Entrusting the Fourth Amendment to the Dogs: Canine Evidence and the Constitution (Introductory Remarks, NACDL President Steven D. Benjamin; Ilya Shapiro, Senior Fellow in Constitutional Studies, Cato Institute; Mar

12-year-old girl defends herself from home invader, The Oklahoman, Oklahoma City, Okla. 10/19/12
12-year-old Kendra St. Clair was at home alone in Durant, Okla. when a man began banging on the front door. Frightened, Kendra called her mother at work, who told her to retrieve a .40-caliber pistol and to hide in the bathroom closet. Kendra complied, and after calling 911, heard the criminal break

NRA vs. Bloomberg
The National Rifle Association (NRA) has been saying for the past two years that President Obama would ban guns if given a second term. Mr. Obama had been careful to pretend otherwise until last week’s debate, when he let slip his intention to ban certain types of firearms. That has sparked a renewe

Lawmakers demand update on ‘Fast And Furious’ personnel
Two Republican lawmakers investigating the botched gun trafficking operation known as Fast and Furious say they aren’t finished yet.In a letter obtained by NPR, Sen. Charles Grassley, R Iowa, and Rep. Darrell Issa, R Calif., are demanding an update on personnel actions taken by the Bureau of Alc

Canada: National gun owner database lives on despite registry repeal, angering some
Seven months after the federal long gun registry was repealed in every province but Quebec, a small but vocal faction of gun owners is feeling deeply betrayed by the Conservative government.A registry of gun owners — if not their specific weapons — remains in force under federal licensing provisio

Private arms in Vietnam
With robbers increasingly resorting to violence, city residents with no confidence in the police are arming themselves in self defense.

CA11: Handcuffing on the ground at gunpoint not necessarily an arrest
Taking defendant from his car at gunpoint and handcuffing him on the ground was reasonable under the circumstances, and it did not rise to the level of an arrest. United States v. Salas-Garcia, 2012 U.S. App. LEXIS 21995 (10th Cir. October 22, 2012): By contrast, the officers in this case acted rea

GA: Evading DUI roadblock with abrupt movement RS
Defendant’s dodging a DUI roadblock with an abrupt furtive movement was reasonable suspicion for a stop. Stinson v. State, 2012 Ga. App. LEXIS 856 (October 18, 2012).* Defendant’s father gave his name to the FBI as possibly radicalized in Yemen, and what the FBI learned about him through that inves

E.D.Mo.: Pre-Jones GPS was not suppressed because of the officers’ good faith
Pre-Jones GPS was not suppressed because of the officers’ good faith. United States v. Robinson, 2012 U.S. Dist. LEXIS 151257 (E.D. Mo. May 24, 2012): In light of the Supreme Court’s opinions in Knotts and Karo, as interpreted and applied by the Ninth Circuit in Pineda-Moreno, the Seventh Circuit i

Reason.com: “Little-Known Device Raises Big Fourth Amendment Implications”
Reason.com: Little-Known Device Raises Big Fourth Amendment Implications: On Friday, EFF and the ACLU submitted an amicus brief in United States v. Rigmaiden, a closely-followed case that has enormous consequences for individuals’ Fourth Amendment rights in their home and on their cell phone. As t

IN: Leaving turn signal on alone not evidence of impairment
Accidentally leaving one’s turn signal on is not evidence of impairment, without more. Killebrew v. State, 2012 Ind. App. LEXIS 528 (October 19, 2012).* Failure to argue to the trial court that the lineup was based on unlawful detention waived the argument for appeal. State v. Rucker, 2012 Ohio 486

Time to Read Ayn Rand? [PJMedia.com]
If you want to understand the ideas of one of today’s most important thinkers—and enjoy a moving literary experience—there’s no better time to read Atlas Shrugged than right now. This essay was published at PJMedia.com. Read it here.

Oklahoma gun owners looking forward to new carry rules
Senate Bill 1733, signed by Gov. Mary Fallin on May 15, amends the Oklahoma Self Defense Act to allow the open carrying of a firearm with a license and a few restrictions. After the bill goes into effect on Nov. 1, the more than 140,000 Oklahomans with a handgun license will no longer be required to

Philadelphia: City published personal information of some gun owners
Lawrence isn’t a violent felon or a stickup artist with a lengthy rap sheet. He’s not a drug dealer holding down the corner with a Glock tucked in his waistband, or a straw purchaser selling guns to street thugs.He’s a Philadelphia church pastor and a robbery victim who routinely carries large sums

Cal.6: Defendant’s detention was unreasonable; his only matching characteristic of the assailant was being the same race and in same public place a week later
Defendant was stopped at the San Jose light rail station around midnight for allegedly resembling one of two Black males who were suspected of committing a sexual battery a week earlier at noon. After he provided a false ID, he was arrested and cocaine base was found. The court finds that the descr

NC: No answer at front door knock and talk doesn’t justify going to back door
Officers conducting a knock and talk got no answer at the front door, and they went around to the back where there was no path. There was no justification for going to the back door, and the view of marijuana plants in the back is suppressed. State v. Pasour, 2012 N.C. App. LEXIS 1201 (October 16, 2

VI: Unlawful arrest doesn’t deprive court of jurisdiction to try the case
Defendant’s stop was valid but arrest for a misdemeanor that didn’t happen in the presence of the officer was invalid, but that does not require suppression of the observations he was under the influence nor prevent the prosecution. People v. Norton, 2012 V.I. LEXIS 49 (Super. Ct. October 15, 2012).

E.D.Pa.: PC as to car overcomes Gant
Probable cause for defendant’s arrest for drugs justified a search of the car under the automobile exception, an exception to Gant. United States v. Davidson, 2012 U.S. Dist. LEXIS 150513 (E.D. Pa. October 19, 2012).* Substantially corroborated information from a citizen informant provided probable

CA11: No standing in another person’s drug house
Defendant’s asserted standing in the house searched was because he had drug money in the safe. It was somebody else’s place used for cocaine production. This was governed by Carter. United States v. Rivera-Pabon, 2012 U.S. App. LEXIS 21725 (11th Cir. October 18, 2012).* Defendant was stopped for a

NE: Defendant’s succeeds in showing IAC on failure to move to suppress
Defendant succeeds in showing that the justification for the traffic stop, a cracked windshield, did not support it. A mere cracked windshield is not a traffic offense because the driver’s view is not obstructed. Also, it did not indicate that the vehicle had been involved in an accident. Therefore,

LATimes: Manson follower lawyer-client recordings from 1969 subject of search warrant or court order now stayed
LATimes.com: Manson follower’s tape recordings off limits to LAPD for now (posted 10/18): A federal judge in Texas has blocked a request by the Los Angeles Police Department to review recordings of a key Charles Manson follower and an attorney made decades ago. The tapes are of Manson follower Ch

CA4: Officers had reasonable cause to believe defendant at home for entry under Payton
Officers had reasonable cause under Payton to believe that defendant was hiding in his own house. The SWAT team showed up for a misdemeanor arrest because of defendant’s 100 prior arrests and numerous convictions for violent crime. After a lot of looking, he was found hiding in a return air duct und

D.S.D.: No reasonable expectation of privacy in the cell phone of another in the defendant’s possession
There is no reasonable expectation of privacy in the cell phone of another in the defendant’s possession. United States v. Clinton, 2012 U.S. Dist. LEXIS 150171 (D. S.D. October 4, 2012): Clinton’s mere possession of the cell phone, without more, is insufficient to establish a Fourth Amendment rig

E.D.Mo.: Gang officers can conduct a traffic stop; pretext argument fails
The fact the Chicago police officers were gang officers and not working traffic did not mean that they were constitutionally prohibited from conducting a traffic stop. Therefore, the pretext argument fails on that ground. United States v. Elkins, 2012 U.S. Dist. LEXIS 148668 (E.D. Mo. September 25,

S.D.Fla.: Lesson about specificity motions to suppress; inspecific motion held against defendant’s credibility on the search
The court finds the defendant consented after an illegal search of his luggage. (Why is important, and this is an important lesson.) United States v. Jimenez, 2012 U.S. Dist. LEXIS 148699 (S.D. N.Y. October 10, 2012) (Judge Swain): Jimenez admitted at the hearing that he assented to Veloz’s request

S.D.Ill.: Threat to get a warrant was not spurious, so consent valid
Defendant’s consent to entry after repeated efforts to get consent during a knock-and-talk at a hotel room was still valid. They had probable cause, and the threat to get a search warrant was not spurious. United States v. Taylor, 2012 U.S. Dist. LEXIS 148244 (S.D. Ill. October 16, 2012).* Courts s

CA2: Rare federal habeas win on Fourth Amendment
The state court’s upholding a lineup as not a product of a Fourth Amendment violation was found to be an unreasonable application of Supreme Court precedent justifying habeas relief. The case cites and credits a wealth of material about the vagaries of eyewitness identification. Young v. Conway, 201

Grassroots Alert: Vol. 19, No. 42 10/19/2012

Louisiana Governor Bobby Jindal Endorses “Yes on 2″!
Louisiana Governor Bobby Jindal stands with the National Rifle Association and expresses his support for Amendment 2 to the Louisiana Constitution to protect the gun rights of Louisiana citizens.  Read his reasons for strengthening protections to your fundamental Right to Keep and Bear Arms in this

Outrage of the Week: UK Retailer Caves to Anti-Hunting Extremists
In late August, the radical UK-based animal rights group, Animal Aid, launched a campaign to force British bookstores and newsstands to relegate hunting and shooting publications to the top shelf of magazine racks and prohibit their sale to anyone under the age of 18. In a press release, Animal Aid

2012 Firearms Law Symposium a Great Success
The 2012 “Firearms Law & The Second Amendment Symposium” was held on Saturday, October 13, 2012, in Philadelphia, PA. Sponsored by The NRA Foundation, the annual symposium focused on recent developments in our nation’s courts regarding the Second Amendment, as well as topics that c

Pennsylvania: Legislature Fails to Act on Important Firearms Preemption Legislation
Despite the fact that nearly fifty local governments have enacted illegal gun control ordinances in violation of the current state firearms preemption law, the Pennsylvania Legislature failed to act on important reform legislation that would have addressed this problem.

Wisconsin: Join NRA and other pro-freedom groups for food and fellowship in Green Bay
Join NRA and other pro-freedom groups for food and fellowship in Green Bay, as we make calls and organize our efforts to support pro-gun candidates.

The Biggest Threat in an Obama Second Term
There are many ways a second term for President Barack Obama threatens the rights of gun owners.  He wants to bring back the 1994 semi-auto ban; his administration has already imposed an illegal registration scheme on certain rifle sales; and there is no way to know how far he would go to use his ex

Obama Calls for Gun Bans, But “Nanny B” Wants More
In Tuesday’s presidential debate, President Obama said that he supported a ban on “assault weapons” and implied that he supports restrictions on “cheap handguns” too.  No surprises there. As detailed on www.GunBanObama.com and www.GunBanFacts.com, Obama supported banning both types of firearms and m

22-year-old woman defends herself against armed home invaders, NBC DFW, Dallas, Texas 10/18/12
A 22-year-old woman was at home alone in Dallas, Texas when a pair of home invaders, at least one of whom was armed, kicked in the front door. After retrieving a gun, the woman spotted the criminals as they were headed to the second floor of the house. The woman opened fire on the home invaders, str

NRA’s new offensive against Obama
Chris Cox on CNN discussing the danger Barack Obama poses to Second Amendment rights.

Louisiana: Gov. Jindal on gun rights
This November, I am proud to join the National Rifle Association in support of Amendment 2 to the Louisiana Constitution to protect the gun rights of law abiding citizens, let me tell you why.

New Mexico parks consider respecting Right-to-Carry
The state is considering allowing people who have a license to carry concealed guns to bring their weapons into New Mexico state parks.

Right-to-Carry permit holders speak out at CU-Boulder gun forum
A University of Colorado discussion about guns on campus changed course Wednesday as at least a half dozen people in the audience identified themselves as students with concealed weapon permits and defended their right to bring firearms to school.

Alabama: Legislators file bills to allow employees firearms in vehicles
Legislation has been pre filed in the Alabama House and Senate that would prevent employers and property owners from establishing policies that would prevent workers from transporting and storing firearms and ammunition in their vehicles.

Chicago’s Cook County wants tax on bullets to pay for healthcare
If approved by the Cook county commission, the nation’s third most populous county could be the first major metropolitan area in the nation to impose a tax as a form of gun control.

Law Offices of Kevin M. Smith, P.A.

Surly doesn’t win trials!

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I’ve known some very nice people. I’ve also known some rather surly characters. Some of the nice ones were (and are) successful. Some not so successful. The same thing can be said about the surly types. Donald Trump seems really nice, and he’s also really rich. Steve Jobs, sadly, appears to have been pretty surly when he didn’t like someone’s ideas. He was also really rich. So, if wealth is what you want, you can get it being nice or surly.

But I’ve discovered something over my years as a prosecutor and defense attorney. Jurors don’t like surly. They adore nice.

This week I am in the midst of another jury-trial heavy phase of my law practice. I’ve had 10 jury trials in the last twelve months. That’s more than you’d imagine. Most lawyers are lucky (or cursed, depending on their attitudes…surly?) to be in jury trial once every three months, so this has been a remarkably litigious year for my clients and me. I had a trial two weeks ago…NOT GUILTY! And another this week…NOT GUILTY! (Both were DUI trials, by the way.) I have another coming up the middle of December (I’m prosecuting for a municipality then, so will be going for a guilty verdict!). These last two trials taught me something very valuable. As I said above, Jurors don’t like surly.

Here’s what happened. In the first trial the deputy was surly from the get go (the incident was recorded on video). I can’t share details due to attorney-client privilege, but let’s just say that nature called and the deputy put the call on hold, even though there were clear extenuating circumstances that should have compelled him to be nice and allow the defendant to avoid embarrassment. In fact, shoot forward two weeks, and that’s exactly what the nice deputy did for the other defendant. After that first trial’s NOT GUILTY verdict, the prosecutor and I talked to the jurors. They unanimously did not appreciate the attitude (meanness/surliness) of the deputy. Fortunately for the defendant, not only was he mean in the field, but he had a really cocky, know-it-all attitude on the witness stand. The defendant, on the other hand, took the stand and was very humble and nice, and talked and walked as well then as the night of his arrest. Still, it was clear that had the deputy been nicer the outcome might have been different.

I’m happy he was surly.

Now for this week’s trial. That deputy was courteous and nice to the defendant on the night of her arrest (it was recorded on video, too). There were other circumstances there that I believe compelled the jury to find her NOT GUILTY (e.g., the video showed ok though not perfect driving through a construction zone, and she wore 5-inch high heels and didn’t have coordination issues when not performing “unnatural human acts”), but the comments from the jurors were night and day compared to the previous trial. They had nothing negative to say about the latter deputy’s attitude. They did think that what he saw on the video was different than what they saw (credibility?), but didn’t focus on him being a jerk like the other trial.

They thought the first deputy was a jerk. The second was “just doing his job.”

As my grandmother put it, “you can catch more flies with honey than vinegar.” So true. Officers who are courteous and polite with defendants and jurors tend to be more persuasive during jury deliberations even though they never enter the jury room.

By the way, I’ve adopted a combative attitude with witnesses in the past. This accomplishes two things. One, it puts the witness on the defense and he will likely weasel his way around the question. Two, it makes jurors hate me, which is not good for the client. Nice is a much better examination style. Nice attorneys get more helpful answers and endear themselves to juries (or at least don’t tick them off!). Hence, “what’s good for the goose (witness) is good for the gander (attorney).” If I’d been perceived as a jerk in these trials it would have likely cancelled out the officers’ surliness and the clients might have lost.

So there it is. Average, everyday people (including engineers, teachers, counselors, salesmen) prefer nice. If they prefer nice, so should we. So let’s be nice. It’s a really good time of year to adopt such an attitude.

If you find yourself in need of representation in a domestic, criminal, traffic, estate planning, or business matter, call me at 316-262-2331. Two NOT GUILTY verdicts in a row! I’m on a roll and would love to help you, too.

Copyright © 2012 Kevin Mark Smith

Legal updates for 11-16-2012

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Victim of Stalking? Know Your Legal Options
Stalking is very scary for the person being stalked, but it’s not always easy to know what to do to make it stop. The term stalking is somewhat overused, especially when it refers to “Facebook stalking,” which generally involves behavior that’s not illegal. Under most states’ laws, stalking is defin…

Prevent Black Friday Lawsuits: 5 Retail Tips
In recent years, Black Friday has become associated with severe discounts, amazing deals, and shopper stampedes. You may recall that people have literally been trampled to death when stores open their doors, as MSNBC has reported. If you fail to follow some basic Black Friday safety tips, you could…

LGBT Workplace Equality On the Rise: Report
If you’ve ever wondered how your employer stacks up in terms of fair and inclusive LGBT workplace policies, the Human Rights Campaign has a way to measure that. The HRC’s 2013 Corporate Equality Index is out, and it rates some of the nation’s largest businesses on their policies and practices……

How Not to Get Hurt in a Black Friday Stampede
Black Friday sales are a bargain shopper’s dream, but every year there are reports of people injured or even killed in Black Friday stampedes, the website Ranker reports. Shopping after Thanksgiving is as much a tradition for some families as turkey and stuffing. But to make sure everyone comes back…

BP to Plead Guilty in Oil Spill Case; Civil Settlement Pending
It’s been more than two years since the Gulf of Mexico oil spill, and BP has finally reached a settlement with prosecutors. The London-based company has agreed to plead guilty to 14 criminal charges including manslaughter, and will pay $4 billion in fees and fines over the next five years,……

Zoning Law Changes Allow for Backyard Cottages; Some House Parents or Grown Children
Real estate listings have long touted in-law apartments for aging parents, but there’s a new option available in many cities. Zoning law changes are paving the way for backyard cottages that can house parents or grown children, the Associated Press reports. The dwellings are being built for other ….

BP agrees to record criminal penalty in Gulf of Mexico oil spill
Attorney General Eric Holder Jr. announced Thursday a record criminal punishment of $4 billion in fines and penalties against London-based BP PLC, stemming from the Deepwater Horizon explosion and oil spill that occurred off the coast of Louisiana in 2010. The criminal fine itself was $1.25 billion…

Wells Fargo Report Offers More Bad News for Large Firms
The drumbeat of bad financial news continued for the legal industry Thursday, as yet another survey of large law firms showed demand for their services essentially flat and revenue growth for 2012 likely to fall short of last year’s single-digit gains. The findings also suggest that more firms than …

Howrey Trustee Moves to Squash Proposed Class Action Targeting Former Firm Partners
The trustee overseeing Howrey’s Chapter 11 case moved Thursday to squelch a proposed class action targeting former partners of the defunct firm. The suit claims 302 former Howrey partners owe money to the firm’s unsecured creditors based on a bankruptcy code provision that would make those attorneys…

Women’s Initiatives Need Focus and Money, Says NAWL Report
Virtually all big firms have women affinity groups, but how effective are they in helping women catch up with their male counterparts in pay and leadership positions? Until they’re better funded and more strategic in their goals, they won’t gain much ground, says a new report that the National …

Judge Rejects Whistleblower Claim that Lipitor Marketing Violated Industry Guidelines
A federal judge has dismissed a former Pfizer employee’s claim that the company illegally promoted the cholesterol drug Lipitor for off-label uses, ruling that while Pfizer’s marketing of the drug may have violated certain industry guidelines, the company didn’t engage in fraud. He noted that …

FTC Approves $2.3B Merger Between Hertz and Thrifty Rental Car Companies
The Federal Trade Commission announced on Thursday that it has approved the $2.3 billion merger of Hertz Global Holdings and Dollar Thrifty Automotive Group, but will require the divestiture of Hertz’s Advantage Rent A Car plus the rights to operate 29 Dollar Thrifty airport locations.

In first year of Dodd-Frank Whistleblower Program, SEC receives more than 3,000 tips
During the first full year of the Dodd-Frank Whistleblower Program, the Securities and Exchange Commission received tips from all 50 states and 49 other countries, resulting in 143 enforcement judgments and orders issued during fiscal year 2012 that potentially qualify as eligible for a …

New patent suit arises between two options exchanges previously locked in litigation
The Chicago Board Options Exchange has filed a $525 million lawsuit against the International Securities Exchange for allegedly infringing three of its patents. Meanwhile, a consolidated case initially launched by International Securities over its patent for an “automated exchange for trading …

HBR Survey Sees Upward Trend for In-House Lawyer Compensation
Despite a still-sputtering economy, compensation for in-house counsel is on the rise, in marked contrast to the scenario of a couple years ago. Seventy-nine percent of companies responding to a recent HBR Consulting survey said pay for in-house counsel went up modestly, while 19 percent said …

Jury Quickly Convicts Online Pharmacy Operators
Defense attorneys in the latest trial against operators of an online pharmacy took a chance and put two of their clients on the stand. But on Thursday, after just one day of deliberations, a federal jury returned guilty verdicts against all three defendants, including a physician, for illegally ……

Former SEC Assistant Inspector General Sues Agency for Defamation
A former assistant inspector general for investigations at the Securities and Exchange Commission has sued the agency for defamation, alleging SEC officials smeared him in the press after he disclosed misconduct by employees including his former boss, H. David Kotz.

Grappling With Mixed Signals From the Ninth, Judge Considers Facebook Settlement
For the second time, lawyers for Facebook asked a federal judge on Thursday to sign off on a $20 million settlement in a class action over its “Sponsored Stories” advertising feature. The new settlement includes cash for claimants, up to $10 per individual, and deletes a “clear sailing” provision …

Judge Not Ready to Nix Patent Claims in NPE’s Suit Against Yahoo!
A U.S. magistrate judge in Delaware has recommended against dismissing claims by non-practicing entity Pragmatus AV LLC that Yahoo infringed patents relating to methods of instant messaging. Yahoo had argued that Pragmatus’ patented methods involve multiple parties acting together and that Pragmatus…

FFRF Challenging Pastors’ Free Speech | One News Now
One News Now: “Well, I think this is just further evidence that groups like Freedom From Religion Foundation or Americans United for Separation of Church and State are trying to use the Johnson Amendment in the tax code as a tool of intimidation to silence and censor churches,” contends Erik Stanley…

Do elections indicate the death of the Christian Right? Not so fast.
Mark J. Rozell and Clyde Wilcox at the Washington Post: The Democratic triumph of this year could certainly be followed by disaster for the party in 2014 or 2016. What the Christian Right learns from this election and how it reconstitutes itself going forward will have a big impact on its future and…

The courts and public opinion: Klarman examines the legal fight for same-sex marriage
Emily Newburger at Harvard Law School:  Michael Klarman’s scholarship has focused on the effect that court rulings have on social reform movements. He argues that when courts get ahead of public opinion, political backlash often follows. That’s what he found in an earlier book he wrote on race and …

No more funding bias at Texas A&M | Alliance Defending Freedom
Texas A&M University has agreed to revise its student organization funding policy in the wake of an Alliance Defending Freedom lawsuit filed after officials denied funds to a conservative student group while approving funds for other groups.

Age Discrimination v. Generational Divide
Is it ageist to tell old people that they’re too old? Continue reading »Follow Above the Law on Twitter or become a fan on Facebook.Tags: Age Discrimination, Ageism, Baby Boomers, Discrimination, Old People, Pennsylvania, State Judges …

Non-Sequiturs: 11.15.12
* Everyone wants to know who Obama will appoint to the high court during his second term as president. Our very own David Lat chimed in with his suggestions on this panel of notable Supreme Court watchers. [BuzzFeed Politics] * “If you are writing a biography and either you or your subject are …

In Canada, a ‘watershed’ religious freedom win | Baptist Press
Baptist Press: In what appears to be a final victory for the pastor, according to Alliance Defending Freedom, Alberta’s highest court affirmed in October Boissoin’s right to publicly express his religious views. “Public expression should not be censored simply because the views expressed are unpopul

Pastors and Churches Facing Persecution – Are We Next? (Video) | Nathan Cherry at EngageFamilyMinute
Nathan Cherry at EngageFamilyMinute: Is America on a path to see churches denied “charity” or “non-profit” status for its specific doctrines? Will we see the day when our buildings are bull-dozed in front of us because the government doesn’t approve? These might sound like far-fetched ideas that …

Tennessee Church Fights for Tax Exemption | Citizen Link
Citizen Link: Alliance Defending Freedom Senior Legal Counsel Erik Stanley said churches shouldn’t be treated differently than other entities. “It’s a widely known fact that churches across America effectively use facilities such as gyms and bookstores for clear religious purposes and are exempt …

UNFPA’s Crass Debasement Of “Human Rights”
Turtle Bay and Beyond: Parroting UNFPA’s talking point, news stories on the UN’s family planning agency’s annual report focus on the claim that contraception is a human right. The media seem unconcerned that UNFPA has no authority to declare anything a human right, and rather naive in not seeing the…

UK: MPs call for PM to keep marriage tax break promise
Christian Institute: A group of MPs are urging David Cameron to keep his commitment to introducing a tax break for married couples.

‘Pollster raps PM over claims public supports gay marriage”
Christian Institute: Mr Hawkins said the level of agreement that marriage should stay as it is, varies between 55% and over 70%.

Group Targets California’s Mt. Rubidoux Cross
CBN (includes video): An iconic cross on a mountain in California has come under fire. The religious symbol has stood on Mount Rubidoux in Riverside for more than 100 years. Now the Freedom From Religion Foundation wants the cross removed and is threatening to sue the city if it doesn’t take it down…

Sifting Through the Wreckage | George Weigell at NRO via EPPC
George Weigell at NRO via EPPC: It takes a certain kind of people, living certain indispensable virtues, to make the market and democracy work so that justice, prosperity, and human flourishing are the net results of freedom. That elementary truth–recognized by the Founders, ignored by the newly …

From Biglaw to Boutique: Departure Memos
Small firm columnist Tom Wallerstein on why you shouldn’t underestimate the importance of the farewell email. Continue reading »Follow Above the Law on Twitter or become a fan on Facebook.Tags: Biglaw, Boutique Law Firms, Departure Memo, Departure Memos, From Biglaw to Boutique, Small Law Firms, …

Not All DUI Arrests Are Legal: 5 Notable Cases
Driving while intoxicated is illegal in all 50 states, but unfortunately some drivers get ensnared in an unlawful DUI trap rather than a legitimate arrest. In the vast majority of cases, police only arrest DUI suspects when they have clear evidence of intoxication. But there are some cases in which.

5-Hour Energy Cited in 13 Deaths: FDA
Those tiny 5-Hour Energy drinks may pack a bigger punch than you think: They’ve been cited in 13 death reports over the past four years, according to the Food and Drug Administration. In addition, 5-Hour Energy has also been mentioned in 90 filings with the FDA that involved serious injuries……

Man Protecting His House From Fire Gets Police Taser Shot in the Back
Through the years I have come across all kinds of unexpected reasons why people have found themselves on the wrong end of a police Taser (here and here, for example). This week’s reason for an unexpected Tasering: trying to use a garden hose to fight a fire that is threatening your house. Of …

DOJ Announces Charges in Business Opportunity Fraud Cases
The Justice Department announced Thursday that it filed charges against the operators of seven schemes that allegedly lured hundreds of consumers into spending millions of dollars on fraudulent business opportunities. “Operation Lost Opportunity” included companies that claimed individuals could …

GOP leaders back West’s call for recount
Washington Times: The Republican Party of Florida is backing Rep. Allen West’s call for a recount of all early votes in St. Lucie County, saying it would be “unconscionable” not to answer lingering questions about the results — which show Mr. West trailing Democratic challenger Patrick Murphy.

The Best Law Firms for LGBT Lawyers
Of the 145 firms that participated in the Human Rights Campaign’s survey, 71 received perfect scores. Absolutely fabulous! Continue reading »Follow Above the Law on Twitter or become a fan on Facebook.Tags: Biglaw, Civil Rights, Cleta Mitchell, Corporate Equality Index, Deena Fidas, Foley & Lard…

Cornyn blames GOP Senate losses on primary wins of weak ‘ideologically pure candidates’
San Francisco Chronicle: In a frank interview with POLITICO, Cornyn ascribed part of the blame to himself and the GOP campaign committee for dropping the ball in an election that looked promising for the Republican Party at the onset. Ultimately, though, he attributed the losses in winnable states, …

Mass. among 23 states where adultery is a crime, but rarely prosecuted
Boston Globe: In most of those states, including New York, adultery is a misdemeanor. But in others — Massachusetts, Idaho, Michigan, Oklahoma, and Wisconsin — it is a felony, though rarely prosecuted. In the armed forces, it can be punished severely, although usually in combination with greater …

Utah: Feds can keep ownership of Obamacare, rejects exchange
Utah Pulse: “If they (the federal government) want to take ownership of this (exchange), they take ownership,” said Lockhart, who was just re-elected to another four years as speaker by her new 61-member House GOP caucus. “We’ll have to play in these areas – the courts may tell us. But they (federal…

Sotomayor: Nominees face tough scrutiny
LoHud.com: Supreme Court nominees never again get the kind of attention that comes during the confirmation process, Justice Sonia Sotomayor said Monday in a question-and-answer session with law students.

San Francisco: Nudists sue to stop supervisors’ vote on nudity ban
San Francisco Chronicle: A group of nudists on Wednesday filed a lawsuit in federal court seeking to stop the San Francisco Board of Supervisors from passing an ordinance next week that would ban nudity in the city. The supervisors are set to vote Tuesday on a proposal by Supervisor Scott Wiener …

Quote of the Day: Sorry, Dean, Those Bar Results Are ‘For Real’
What does Cooley Law’s dean have to say about the school’s abysmal summer bar passage rates in Michigan? Continue reading »Follow Above the Law on Twitter or become a fan on Facebook.Tags: Bar Exams, Cooley Law, Cooley Law / Thomas M. Cooley Law School, Don LeDuc, Law School Deans, Law Schools, …

BP to Pay Record $4.5B Criminal Fine Over 2010 Oil Spill
BP PLC has reached a settlement Thursday with the Justice Department in which the company will pay $4.5 billion and plead guilty to 11 felony counts of misconduct or neglect of ships officers charges related to the Deepwater Horizon explosion. The penalty far exceeds the $1.3 billion fine Pfizer for…

Judge Finds 742-Page ‘Stew’ Irrelevant to Unsealing Issues
Former Wilson Elser partner Richard Lerner and attorney Frederick Oberlander, who are under investigation for criminal contempt, have been ordered by a federal judge to show cause why they should not be sanctioned for flooding the court with a “vexatious” and “oppressive” 742-page “documentary stew”…

“Evangelicals struggle to stay relevant in Republican politics”
Ralph Z. Hallow at the Washington Times: Evangelicals are “fighting an uphill battle of demographics” on issues such as gay marriage, Focus on the Family President Jim Daly told the Los Angeles Times after the election.

Atheist Group Sues Over Religious Electioneering
AP: The lawsuit also refers to “Pulpit Freedom Sunday,” a national event on Oct. 7 in which more than 1,500 pastors endorsed a candidate from the pulpit and then sent a record of their statement to the IRS, hoping their challenge would eventually end up in court. The Alliance Defending Freedom, a …

“GOP-led States Start Warming Up To Health Care Law” | AP
AP: From the South to the heartland, the once-solid wall of Republican resistance to President Barack Obama’s health care law is cracking.

Texas Supreme Court OKs Do-it-Yourself Divorce Forms
Houston Family Law Blog: Big news out of the Texas Supreme Court for would-be-divorcers. The Texas Supreme Court issued a 5-3 decision allowing standardized “do-it-yourself” divorce forms for lower income couples who have trouble paying the fees of Texas divorce lawyers, reports The Dallas Morning ….

Ireland: “Eilís Mulroy: Pro-choice side must not hijack this terrible event”
Independent.ie: The question that needs to be asked is: was Ms Halappanavar treated in line with existing obstetrical practice in Ireland? In this kind of situation the baby can be induced early (though is very unlikely to survive). The decision to induce labour early would be fully in compliance …

Redefining marriage doesn’t redefine freedom for clerks | Alliance Defending Freedom
Alliance Defending Freedom is advising officials responsible for issuing marriage licenses in Maine, Maryland, and Washington that they do not have to violate their faith or conscience by personally issuing licenses to applicants who are of the same sex.

Foundation’s Forgivable Loans to U of Texas Law Profs Draw Fire; Former Dean Got $500K
A program of forgivable loans used to supplement the salaries of some law professors at the University of Texas and a former law dean lacks transparency and should be ended, the general counsel for the UT System and the state attorney general’s office have recommended. Although legal, the loans, …

New Partner Watch: Does Cravath’s Bumper Crop Bode Well for Biglaw Bonuses?
How many new partners did Cravath name this year — and what might this suggest about bonuses? Perhaps you know some of these fine folks? Continue reading »Follow Above the Law on Twitter or become a fan on Facebook.Tags: Biglaw, Cravath, Cravath Swaine & Moore, Cravath system, David J. Perkins, …

The Abolition of Man-and-Woman: On Marriage, Grammar, and Legal Strategy
Michael W. Hannon at Public Discourse: Preserving marriage as a union of man and woman is bound to fail unless we address the true point of contention in the marriage debate, one completely ignored by even the best legal advocates for redefining marriage: the question “what is marriage?”

Pennsylvania Judges Claim Mandatory Retirement Violates Equal Protection Clause
Dechert LLP: Six Pennsylvania judges filed a lawsuit today in Harrisburg claiming that a provision of the Pennsylvania Constitution, which mandates all Pennsylvania justices and judges retire at the end of the calendar year in which they turn 70, violates their rights under the Equal Protection and …

Republicans Split on Judicial Nominees: Some in GOP want to confirm more of president’s nominees
Roll Call: Hatch’s position, however, is not shared by all his Republican colleagues. The list of stalled nominees includes several who have the strong backing of their home-state Republican senators. Sens. Susan Collins of Maine and James M. Inhofe of Oklahoma, for example, are pressing for confirm…

Will Supreme Court answer monks’ prayers?
Washington Post: Shortly before 123 million voters picked a president, 38 Louisiana monks moved the judiciary toward a decision that could change American governance more than most presidents do. The monks’ cypress caskets could catalyze a rebirth of judicial respect for Americans’ unenumerated …

Harkin nominates women for 8th Circuit
Des Moines Register: U.S. Sen. Tom Harkin, D-Ia., has nominated two Iowa women to replace retiring Judge Michael J. Melloy on the 8th U.S. Circuit Court of Appeals. The names submitted to President Barack Obama are . . .

Florida ends funding discrimination against Christian college | Alliance Defending Freedom
Florida education officials have agreed to a settlement that will allow students at Kissimmee’s Florida Christian College to participate in a state grant program open to students at other religious and non-religious schools.

AK: State high court hears appeal on taxation of same-sex couples
Peninsula Claion (AP): Last year, a superior court judge ruled same-sex couples are entitled to the same senior citizen and disabled veteran property tax exemptions as married couples, saying a constitutional amendment defining marriage as between one man and one woman doesn’t trump equal protection…

Great American Smokeout Inspires Lawyers to Share Stories, Encourage Others to Quit
Continuing a tradition that began in the 1970s, the American Cancer Society is promoting the Great American Smokeout on Thursday, in an effort to raise public awareness about the health dangers of cigarettes and encourage those who smoke to give up the habit, for at least this one day. Among those …

We’ve Already Mocked Michigan Law’s Secret Society, Now It’s Time to Mock Their Law Fraternity
What kind of insane initiation stunts can you look forward to if you join Phi Delta Phi at Michigan Law? Continue reading »Follow Above the Law on Twitter or become a fan on Facebook.Tags: Bad Ideas, Fraternities and Sororities, Fraternity, Law Schools, Michigan Law, Michigan Law School, Phi Delta P…

BP Says It Will Pay $4.5B to Resolve Federal Criminal and Securities Allegations
Updated and corrected: BP has announced it will pay $4.5 billion to resolve federal criminal and securities allegations in connection with the Gulf oil spill. The company will pay $4 billion over five years in a settlement with the U.S. Justice Department and $525 million over three years to resolve…

Liberty Counsel Launches the Tenth Annual “Friend or Foe Christmas Campaign”
Liberty Counsel: Today Liberty Counsel is launching its tenth annual “Friend or Foe Christmas Campaign,” pledging to be a “Friend” to those who recognize Christmas and a “Foe” to those who censor it.

FFRF Sues IRS Over Non-Enforcement of Electioneering Restrictions On Churches
Religion Clause Blog: The Freedom From Religion Foundation yesterday announced that it has filed suit in a Wisconsin federal district court against the Internal Revenue Service challenging its failure to enforce against churches and religious organizations the electioneering restrictions applicable …

Nevada court won’t force mentally disabled woman to have abortion | Alliance Defending Freedom
A Nevada court Wednesday refused to force a mentally handicapped woman to undergo an abortion against her and her parents’ will.

Appeal Planned In Case Upholding Religious Instruction In Australian State’s Schools
Religion Clause Blog: The Australian reports today that parents will appeal a decision handed down last month upholding the Special Religious Instruction program in the public schools in the Australian state of Victoria. Religious bodies offer 30 minutes per week of classes.

Christian Employee’s Title VII Objections To Ramadan Accommodation Dismissed
Religion Clause Blog: In Ross v. Colorado Department of Transportation, (D CO, Nov. 14, 2012), a Colorado federal district court dismissed a Christian employee’s Title VII claims for hostile work environment, failure to accommodate, discrimination, and retaliation. Plaintiff complained that his …

Dutch Hospital To Lead Organ Trafficking Probe
AP: Medical and police authorities are launching a major international probe into the illegal trafficking in human organs for transplants, to help clamp down on the crime, one of the researchers said Thursday.

Irish Doctors Seek New Abortion Law After A Death
AP: Pressure is mounting in Ireland for the government to draft a law spelling out when life-saving abortions can be performed following the death in the hospital of a pregnant woman who was denied an abortion.

School Bus Monitor Caught Choking Autistic Boy
A Florida school bus monitor faces criminal charges for allegedly choking and tormenting an autistic child throughout the boy’s 45-minute ride home. The entire incident was caught on tape. It started when the 13-year-old boy wet his pants on the bus, reports the New York Daily News. The school bus..

Jeff Gordon: Criminal Charges Possible for Crashing into Bowyer?
Jeff Gordon apparently intentionally crashed his car into Clint Bowyer during the Sunday Phoenix NASCAR race. With seven laps remaining, Bowyer reportedly clipped Gordon, causing Gordon to slide hard into the wall, reports Yahoo! Gordon was black-flagged by NASCAR which meant that he was ordered to …

Voice of Elmo Accused of Sex with Underage Teen
Voice and puppeteer of Sesame Street’s beloved Elmo, Kevin Clash, has been accused of having sex with an underage boy. Clash has been placed on a leave of absence from the children’s show. In the meantime, he has denied the underage sex claims and his accuser has reportedly lawyered up…….

Copy Me Maybe: Carly Rae Jepsen Sued by Ukranian Singer
Pop star Carly Rae Jepsen is being sued by a Ukrainian singer/rapper named Aza who claims Jepsen stole her song to create “Call Me Maybe.” Aza is filing her lawsuit in Los Angeles, and claims that Jepsen’s song is a direct ripoff of her song “Hunky Santa,” reports TMZ. The…… Continue reading …

Louisiana Death Row Inmate Sues DOJ Over Access to Records
A death row inmate is suing the U.S. Justice Department with the hope of acquiring documents that he claims will help prove his innocence in a shooting that left a police officer and two others dead in 1995 in New Orleans.

LBW Brain-Teaser of the Day: Two Drunk Driving Arrests at Same Exact Time?
Here is your LBW brain-teaser of the day: Question: On November 4, 2012, a man was arrested for two separate drunk driving incidents at two completely different locations, by the same officer. Both incidents occurred at 1:08 a.m. The man did not have a time machine — how did this happen? …

Legally Themed Halloween Costume Contest Winner
Our costume contest winner is… Continue reading »Follow Above the Law on Twitter or become a fan on Facebook.Tags: Contests, Halloween, Halloween Costumes, Holidays and Seasons, Reader Polls, Ruth Bader Ginsburg, We heart Ruth Bader …

Judge Dismisses Alumni Lawsuits Against Two Chicago Law Schools
A judge has dismissed class-action lawsuits against two Chicago law schools by graduates who alleged that they were tricked into attending by the schools’ misleading post-graduation job prospects. Cook County, Ill., Circuit Judge Mary Mikva, in a pair of rulings Friday, threw out the alumni suits …

Quote of the Day: Of Course The School’s Mission Is to Move Up in the Rankings (and Make Money in the Process)
What’s a law school’s mission, aside from making money and moving up in the rankings? Continue reading »Follow Above the Law on Twitter or become a fan on Facebook.Tags: Arizona State Uni­versity Sandra Day O’Connor College of Law, ASU Law School, Douglas J. Sylvester, Douglas Sylvester, Law School …

October Lawyer of the Month: Bruno Mars Lyrics in Practice
Who won October’s Lawyer of the Month competition? Let’s find out! Continue reading »Follow Above the Law on Twitter or become a fan on Facebook.Tags: Contests, good samaritans, James Baber, Law Schools, Law Students, Lawyer of the Day, Lawyer of the Month, Reader Polls, Seton Hall Law, Seton Hall …

Drilling fight takes unexpected turn
With permits finally in hand to drill exploratory wells on the Alaskan Outer Continental Shelf, Royal Dutch Shell has launched a pre-emptive strike, filing three suits against 13 environmental groups and asking the court to pronounce the permits valid up front. It’s an unprecedented move, and if it …

The Practice: Turning Down Biglaw
Brian Tannebaum has turned down a Biglaw job three times, but if the opportunity arises, he doesn’t think you should pass it up… Continue reading »Follow Above the Law on Twitter or become a fan on Facebook.Tags: Biglaw, Brian Tannebaum, Money, Small Law Firms, The Practice …

Study Finds Big Differences in Federal Criminal Caseloads, High Numbers for Border Courts
A new study of criminal sentencing in federal courts has found big differences in caseloads, with border courthouses in Texas and New Mexico doling out the highest number of sentences. The study by the Transactional Records Access Clearinghouse found the average caseload varied from a low of 147 …

Spyfall: We’re Making A Federal Case Out Of An Affair, Again
I didn’t know we were living in a world where a ‘social planner’ could get the FBI to start investigating you… Continue reading »Follow Above the Law on Twitter or become a fan on Facebook.Tags: David Patraeus, Department of Justice, FBI, Jill Kelley, Paula Broadwell, Sex Scandals, Skyfall …

Sonia Sotomayor and Sesame Street (Part Deux): Be a Lawyer, Not a Princess!
Justice Sotomayor tells little girls that being a princess isn’t a viable career option. But is being a lawyer a viable option these days? Continue reading »Follow Above the Law on Twitter or become a fan on Facebook.Tags: Job Searches, Kids, SCOTUS, Sesame Street, Sonia Sotomayor, Supreme Court, …

You Hit An EMT? Yeah You Know Me!
A Brooklyn prosecutor has been accused of assaulting an EMT. What might have provoked the alleged attack? Here is one theory. Continue reading »Follow Above the Law on Twitter or become a fan on Facebook.Tags: Amberlamps, Brooklyn, Brooklyn ADA, Brooklyn Bridge, Brooklyn DA’s Office, Charles Hynes, …

Supreme Court to Hear Another Case Involving an Arbitration Clause Barring Class Actions
The U.S. Supreme Court has agreed to hear an appeal by American Express contending a federal appeals court has created a “sweeping, unwritten loophole” in federal arbitration law. The ruling by the New York-based 2nd U.S. Circuit Court of Appeals allowed retailers to pursue a class action lawsuit …

Inside Straight: Identifying Dangerous Employees
How do we train employees about corporate policies, legal requirements, compliance issues, and the like? Here are some insights from in-house columnist Mark Herrmann. Continue reading »Follow Above the Law on Twitter or become a fan on Facebook.Tags: Advice, Compliance, Corporate Compliance, Human …

Marauding Lawyers Spur Fears in Pakistan
Lawyers in Pakistan received widespread notice when their protests led to reinstatement of the nation’s chief justice and called attention to an atmosphere of lawlessness in the country. Now some of the lawyers are part of the problem, the Washington Post reports. “In a nation where the rule of law …

Morning Docket: 11.12.12
* With Eric Holder questioning his job, and Deval Patrick dining at the White House, perhaps we’ll see our second black attorney general. Or not, because one of the Governor’s aides says he’ll continue his reign as a Masshole. [Washington Times; Buzzfeed] * When it came to sanctions for discovery …

Supreme Court to Decide if Police Can Take DNA from Suspects Arrested for Serious Crimes
The U.S. Supreme Court on Friday agreed to decide whether police can collect DNA samples without a warrant from suspects arrested for serious crimes. The case pits privacy rights against public safety, report the Wall Street Journal Law Blog, the Los Angeles Times and the Associated Press. At issue …

Anonymous Blog Comments Snag Another US Prosecutor; Suit Cited ‘Superfluous Spacing’ as Clue
A New Orleans federal prosecutor who was second in command to U.S. Attorney Jim Letten has been demoted after admitting she posted anonymous comments on a newspaper website. Letten announced the demotion of First Assistant U.S. Attorney Jan Mann on Thursday, the New Orleans Times-Picayune and the …

Grassley Wants Judiciary to Detail Fiscal-Cliff Spending Cuts, Derides ‘Chicken Little Mentality’
U.S. Sen. Charles Grassley, R-Iowa, isn’t letting go of Maui. The senator had criticized the San Francisco-based 9th U.S. Circuit Court of Appeals for holding its annual conference in Maui, and now he’s citing the trip as an example of travel spending that could be cut in the event significant …

Sotomayor Returns to Sesame Street with Career Advice that Includes Definition of the Word
Would-be princesses got some sobering news when Justice Sonia Sotomayor appeared recently on Sesame Street. It’s time to think about a real career, they learned. Sotomayor defines the word “career” in an exchange with Abby, described by Time as a “pink, perky, uber-feminine character.” When Abby …

3 Criminal Laws That Cops Hate to Enforce
No matter what you think about cops, you have to admit it’s a tough job to enforce criminal laws — especially laws that some view as a waste of precious time and resources. Ever been curious about what kinds of crimes police dislike enforcing the most? A recent Forbes guest…… Continue reading …

Don’t Break the Law When Hiring Holiday Help
With holiday shoppers set to give retailers a boost, ’tis the season for hiring temporary employees. While you may only need holiday workers for a short period of time, you still typically need to comply with the same employment laws for these temporary workers as you would for full-time employees..

Top 3 Space Heater Injury Risks
It’s getting chilly outside, and for many that means it’s time to break out the space heater to keep you and your family warm. But be careful, as space heaters can potentially cause injuries. Space heaters, including wood stoves, contributed to 32 percent of home heating fires and 79 percent……

Copyright © 2012 Law Offices of Kevin M. Smith, P.A.

Legal updates for 10-27-2012

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NJ: While cell phone records were inproperly obtained, that did not lead to the discovery of the victim’s body, so it should not have been suppressed
Defendant’s cell phone records were improperly obtained by a flawed process, but the inevitable discovery doctrine supported the finding of the victim’s body after the finding of the murder weapon, so the body would not be suppressed. State v. Smith, 2012 N.J. LEXIS 1065 (October 25, 2012): We turn

GA: Officer’s discovery seatbelt was buckled did not constitutionally mandate ending stop
Defendant was stopped for a seatbelt violation, but the officer found that the seatbelt was tucked under the arm and was legal. The stop being initially lawful, the officer was not obligated to end the stop and let the defendant go immediately. Davis v. State, 2012 Ga. App. LEXIS 872 (October 23, 20

CO: A pat down solely for officer safety was unreasonable
A pat down solely for officer safety was unreasonable. People v. Berdahl, 2012 COA 179, 2012 Colo. App. LEXIS 1734 (October 25, 2012): [*P27] Nevertheless, the trial court appears to have applied a bright-line rule that an officer can conduct a pat-down search whenever he or she has an obligation

New book: The Supreme Court and the Fourth Amendment’s Exclusionary Rule by Tracey Maclin
Boston U. press release: “A celebration of the publication of The Supreme Court and the Fourth Amendment’s Exclusionary Rule by Tracey Maclin, Professor of Law,” Monday, October 29, 2012: Boston University School of Law is delighted to celebrate the publication of The Supreme Court and the Fourth A

Grits for Breakfast: “Houston hearing honed in on use of drones by law enforcement”
Grits for Breakfast: Houston hearing honed in on use of drones by law enforcement: Grits wishes I could have attended yesterday’s hearing in Houston of the US House Judiciary Committee’s Subcommittee on Crime on domestic use of unmanned drones by law enforcement, but James Pinkerton at the Houston

Grassroots Alert: Vol. 19, No. 43 10/26/2012


Federal Court Wrongly Upholds Ban on Young Adults’ Handgun Purchases
The NRA is deeply disappointed in Thursday’s ruling by the Fifth Circuit U.S. Court of Appeals, which upheld the federal law that bans dealer sales of handguns to law-abiding adults between the ages of 18 and 20.

With “Supporters” Like This, What Amendment Needs Enemies?
Yesterday, in a New York Daily News commentary, Rep. Carolyn McCarthy (D-N.Y.) paraphrased President Obama’s most insincere campaign talking point with a direct quote from Brady Campaign propaganda, saying “You can support the Second Amendment” by imposing “common sense” gun control laws. In particu

Whistleblower Sues Time, Inc. Over “Fast and Furious”
We reported recently that a key “Fast and Furious” whistleblower, John Dodson had called on Fortune Magazine to retract a story on the scandal that the Department of Justice Inspector General’s report showed to be full of inaccuracies.

With Just 11 Days Until Election Day, Make Sure You’re “All In!”
In 11 days we will go to the polls in what will almost surely be the most important election of our lifetimes.  We all know that a second term for President Barack Obama would threaten the rights of gun owners in numerous, far-reaching ways.  In last Tuesday’s presidential debate, President Obama sa

With Election Day Looming, Gun Controllers State Their “Case”
There are only 11 days remaining before this year’s elections and gun control supporters haven’t had a novel idea since we can’t remember when, so longtime gun control advocates Dan Webster, Jon Vernick and Steve Teret of the (New York City Mayor Michael) Bloomberg School of Public Health at Johns H

CA7: Strip search of jail employee was reasonable when search of his person and car came up empty and they had reason to believe he would smuggle drugs into the jail
A jailer was reasonable subjected to a strip search at work based on credible reports he would be bringing cannabis into the jail. His car was stopped and it and his person would be searched. Since drugs weren’t found in those searches, reasonable suspicion thus existed for an employee strip search.

N.D.W.Va.: Defendant did not consent to what officer was doing without asking by defendant merely not speaking
Defendant neither did nor said anything that qualified as consent. Implied consent from his failure to object when the officer was doing something anyway was not consent. United States v. Harvey, 2012 U.S. Dist. LEXIS 153511 (N.D. W.Va. October 25, 2012), R&R 2012 U.S. Dist. LEXIS 153474 (N.D. W

SeattlePI.com: “Irate crowd greets Seattle Police drone plan”
SeattlePI.com: Irate crowd greets Seattle Police drone plan / Aircraft with cameras get harsh reaction in Central District by Casey McNerthney: Seattle police may use remote control drones during future investigations, and a crowd that gathered Thursday night in the Central District was furious abo

CA2: Violation of state jurisdictional law not Fourth Amendment issue
Violation of state jurisdictional law and federal policy re customs officers and state law was irrelevant under the Fourth Amendment. United States v. Wilson, 2012 U.S. App. LEXIS 22212 (2d Cir. October 25, 2012): The district court concluded that the vehicle stop violated the Fourth Amendment bec

Volokh.com: “Magistrate Judge Denies Court Order Application for Cell Tower Dumps”
Volokh.com: Magistrate Judge Denies Court Order Application for Cell Tower Dumps by Orin Kerr: The decision is In re U.S. ex rel. Order Pursuant to 18 U.S.C. Section 2703(d), 2012 WL 4717778 (S.D. Tex. September 26, 2012) (Owlsey, M.J),, and it rejects an application under the Stored Communications

OH12: Informant communicating with cop during drug transaction with defendant was RS
Reliable informant who was communicating with defendant about drugs provided reasonable suspicion. State v. Dennis, 2012 Ohio 4877, 2012 Ohio App. LEXIS 4278 (12th Dist. October 22, 2012).* Driving too slow and not staying in one’s lane justified a stop. State v. Roetzel, 2012 Ohio 4898, 2012 Ohio

computerworld.com: “Fighting unconstitutional stingray phone surveillance that tracks innocent people”
computerworld.com: Fighting unconstitutional stingray phone surveillance that tracks innocent people by Darlene Storm: Let’s say you have your cell phone with you, even if you are not talking or texting, otherwise minding your own business, innocent of being suspected of any crime … but hey your

NJ.com: “N.J. Supreme Court wrestles with privacy issues in cellphone, GPS case”
NJ.com: N.J. Supreme Court wrestles with privacy issues in cellphone, GPS case by Anthony Campisi: Justices of the state Supreme Court wrestled Monday with drawing new privacy protections in a world where police can engage in the sophisticated tracking of suspects using the most ubiquitous of devic

NACDL at the National Press Club for the Florida dog sniff cases is on C-SPAN
From NACDL: NACDL’s October 23 Program (this morning) at the National Press Club — Entrusting the Fourth Amendment to the Dogs: Canine Evidence and the Constitution (Introductory Remarks, NACDL President Steven D. Benjamin; Ilya Shapiro, Senior Fellow in Constitutional Studies, Cato Institute; Mar

12-year-old girl defends herself from home invader, The Oklahoman, Oklahoma City, Okla. 10/19/12
12-year-old Kendra St. Clair was at home alone in Durant, Okla. when a man began banging on the front door. Frightened, Kendra called her mother at work, who told her to retrieve a .40-caliber pistol and to hide in the bathroom closet. Kendra complied, and after calling 911, heard the criminal break

NRA vs. Bloomberg
The National Rifle Association (NRA) has been saying for the past two years that President Obama would ban guns if given a second term. Mr. Obama had been careful to pretend otherwise until last week’s debate, when he let slip his intention to ban certain types of firearms. That has sparked a renewe

Lawmakers demand update on ‘Fast And Furious’ personnel
Two Republican lawmakers investigating the botched gun trafficking operation known as Fast and Furious say they aren’t finished yet.In a letter obtained by NPR, Sen. Charles Grassley, R Iowa, and Rep. Darrell Issa, R Calif., are demanding an update on personnel actions taken by the Bureau of Alc

Canada: National gun owner database lives on despite registry repeal, angering some
Seven months after the federal long gun registry was repealed in every province but Quebec, a small but vocal faction of gun owners is feeling deeply betrayed by the Conservative government.A registry of gun owners — if not their specific weapons — remains in force under federal licensing provisio

Private arms in Vietnam
With robbers increasingly resorting to violence, city residents with no confidence in the police are arming themselves in self defense.

CA11: Handcuffing on the ground at gunpoint not necessarily an arrest
Taking defendant from his car at gunpoint and handcuffing him on the ground was reasonable under the circumstances, and it did not rise to the level of an arrest. United States v. Salas-Garcia, 2012 U.S. App. LEXIS 21995 (10th Cir. October 22, 2012): By contrast, the officers in this case acted rea

GA: Evading DUI roadblock with abrupt movement RS
Defendant’s dodging a DUI roadblock with an abrupt furtive movement was reasonable suspicion for a stop. Stinson v. State, 2012 Ga. App. LEXIS 856 (October 18, 2012).* Defendant’s father gave his name to the FBI as possibly radicalized in Yemen, and what the FBI learned about him through that inves

E.D.Mo.: Pre-Jones GPS was not suppressed because of the officers’ good faith
Pre-Jones GPS was not suppressed because of the officers’ good faith. United States v. Robinson, 2012 U.S. Dist. LEXIS 151257 (E.D. Mo. May 24, 2012): In light of the Supreme Court’s opinions in Knotts and Karo, as interpreted and applied by the Ninth Circuit in Pineda-Moreno, the Seventh Circuit i

Reason.com: “Little-Known Device Raises Big Fourth Amendment Implications”
Reason.com: Little-Known Device Raises Big Fourth Amendment Implications: On Friday, EFF and the ACLU submitted an amicus brief in United States v. Rigmaiden, a closely-followed case that has enormous consequences for individuals’ Fourth Amendment rights in their home and on their cell phone. As t

IN: Leaving turn signal on alone not evidence of impairment
Accidentally leaving one’s turn signal on is not evidence of impairment, without more. Killebrew v. State, 2012 Ind. App. LEXIS 528 (October 19, 2012).* Failure to argue to the trial court that the lineup was based on unlawful detention waived the argument for appeal. State v. Rucker, 2012 Ohio 486

Time to Read Ayn Rand? [PJMedia.com]
If you want to understand the ideas of one of today’s most important thinkers—and enjoy a moving literary experience—there’s no better time to read Atlas Shrugged than right now. This essay was published at PJMedia.com. Read it here.

Halbrook: Louisianans’ right to bear arms needs more protection
Amendment 2 will strengthen the Louisiana Constitution to ensure that such abuses never recur. It states: “The right of each citizen to keep and bear arms is fundamental and shall not be infringed. Any restriction on this right shall be subject to strict scrutiny.” The courts say the existing guaran

Oklahoma gun owners looking forward to new carry rules
Senate Bill 1733, signed by Gov. Mary Fallin on May 15, amends the Oklahoma Self Defense Act to allow the open carrying of a firearm with a license and a few restrictions. After the bill goes into effect on Nov. 1, the more than 140,000 Oklahomans with a handgun license will no longer be required to

Philadelphia: City published personal information of some gun owners
Lawrence isn’t a violent felon or a stickup artist with a lengthy rap sheet. He’s not a drug dealer holding down the corner with a Glock tucked in his waistband, or a straw purchaser selling guns to street thugs.He’s a Philadelphia church pastor and a robbery victim who routinely carries large sums

Cal.6: Defendant’s detention was unreasonable; his only matching characteristic of the assailant was being the same race and in same public place a week later
Defendant was stopped at the San Jose light rail station around midnight for allegedly resembling one of two Black males who were suspected of committing a sexual battery a week earlier at noon. After he provided a false ID, he was arrested and cocaine base was found. The court finds that the descr

NC: No answer at front door knock and talk doesn’t justify going to back door
Officers conducting a knock and talk got no answer at the front door, and they went around to the back where there was no path. There was no justification for going to the back door, and the view of marijuana plants in the back is suppressed. State v. Pasour, 2012 N.C. App. LEXIS 1201 (October 16, 2

VI: Unlawful arrest doesn’t deprive court of jurisdiction to try the case
Defendant’s stop was valid but arrest for a misdemeanor that didn’t happen in the presence of the officer was invalid, but that does not require suppression of the observations he was under the influence nor prevent the prosecution. People v. Norton, 2012 V.I. LEXIS 49 (Super. Ct. October 15, 2012).

E.D.Pa.: PC as to car overcomes Gant
Probable cause for defendant’s arrest for drugs justified a search of the car under the automobile exception, an exception to Gant. United States v. Davidson, 2012 U.S. Dist. LEXIS 150513 (E.D. Pa. October 19, 2012).* Substantially corroborated information from a citizen informant provided probable

CA11: No standing in another person’s drug house
Defendant’s asserted standing in the house searched was because he had drug money in the safe. It was somebody else’s place used for cocaine production. This was governed by Carter. United States v. Rivera-Pabon, 2012 U.S. App. LEXIS 21725 (11th Cir. October 18, 2012).* Defendant was stopped for a

NE: Defendant’s succeeds in showing IAC on failure to move to suppress
Defendant succeeds in showing that the justification for the traffic stop, a cracked windshield, did not support it. A mere cracked windshield is not a traffic offense because the driver’s view is not obstructed. Also, it did not indicate that the vehicle had been involved in an accident. Therefore,

LATimes: Manson follower lawyer-client recordings from 1969 subject of search warrant or court order now stayed
LATimes.com: Manson follower’s tape recordings off limits to LAPD for now (posted 10/18): A federal judge in Texas has blocked a request by the Los Angeles Police Department to review recordings of a key Charles Manson follower and an attorney made decades ago. The tapes are of Manson follower Ch

CA4: Officers had reasonable cause to believe defendant at home for entry under Payton
Officers had reasonable cause under Payton to believe that defendant was hiding in his own house. The SWAT team showed up for a misdemeanor arrest because of defendant’s 100 prior arrests and numerous convictions for violent crime. After a lot of looking, he was found hiding in a return air duct und

D.S.D.: No reasonable expectation of privacy in the cell phone of another in the defendant’s possession
There is no reasonable expectation of privacy in the cell phone of another in the defendant’s possession. United States v. Clinton, 2012 U.S. Dist. LEXIS 150171 (D. S.D. October 4, 2012): Clinton’s mere possession of the cell phone, without more, is insufficient to establish a Fourth Amendment rig

E.D.Mo.: Gang officers can conduct a traffic stop; pretext argument fails
The fact the Chicago police officers were gang officers and not working traffic did not mean that they were constitutionally prohibited from conducting a traffic stop. Therefore, the pretext argument fails on that ground. United States v. Elkins, 2012 U.S. Dist. LEXIS 148668 (E.D. Mo. September 25,

S.D.Fla.: Lesson about specificity motions to suppress; inspecific motion held against defendant’s credibility on the search
The court finds the defendant consented after an illegal search of his luggage. (Why is important, and this is an important lesson.) United States v. Jimenez, 2012 U.S. Dist. LEXIS 148699 (S.D. N.Y. October 10, 2012) (Judge Swain): Jimenez admitted at the hearing that he assented to Veloz’s request

S.D.Ill.: Threat to get a warrant was not spurious, so consent valid
Defendant’s consent to entry after repeated efforts to get consent during a knock-and-talk at a hotel room was still valid. They had probable cause, and the threat to get a search warrant was not spurious. United States v. Taylor, 2012 U.S. Dist. LEXIS 148244 (S.D. Ill. October 16, 2012).* Courts s

CA2: Rare federal habeas win on Fourth Amendment
The state court’s upholding a lineup as not a product of a Fourth Amendment violation was found to be an unreasonable application of Supreme Court precedent justifying habeas relief. The case cites and credits a wealth of material about the vagaries of eyewitness identification. Young v. Conway, 201

Grassroots Alert: Vol. 19, No. 42 10/19/2012


Louisiana Governor Bobby Jindal Endorses “Yes on 2″!
Louisiana Governor Bobby Jindal stands with the National Rifle Association and expresses his support for Amendment 2 to the Louisiana Constitution to protect the gun rights of Louisiana citizens.  Read his reasons for strengthening protections to your fundamental Right to Keep and Bear Arms in this

Outrage of the Week: UK Retailer Caves to Anti-Hunting Extremists
In late August, the radical UK-based animal rights group, Animal Aid, launched a campaign to force British bookstores and newsstands to relegate hunting and shooting publications to the top shelf of magazine racks and prohibit their sale to anyone under the age of 18. In a press release, Animal Aid

2012 Firearms Law Symposium a Great Success
The 2012 “Firearms Law & The Second Amendment Symposium” was held on Saturday, October 13, 2012, in Philadelphia, PA. Sponsored by The NRA Foundation, the annual symposium focused on recent developments in our nation’s courts regarding the Second Amendment, as well as topics that c

Pennsylvania: Legislature Fails to Act on Important Firearms Preemption Legislation
Despite the fact that nearly fifty local governments have enacted illegal gun control ordinances in violation of the current state firearms preemption law, the Pennsylvania Legislature failed to act on important reform legislation that would have addressed this problem.

Wisconsin: Join NRA and other pro-freedom groups for food and fellowship in Green Bay
Join NRA and other pro-freedom groups for food and fellowship in Green Bay, as we make calls and organize our efforts to support pro-gun candidates.  

The Biggest Threat in an Obama Second Term
There are many ways a second term for President Barack Obama threatens the rights of gun owners.  He wants to bring back the 1994 semi-auto ban; his administration has already imposed an illegal registration scheme on certain rifle sales; and there is no way to know how far he would go to use his ex

Obama Calls for Gun Bans, But “Nanny B” Wants More
In Tuesday’s presidential debate, President Obama said that he supported a ban on “assault weapons” and implied that he supports restrictions on “cheap handguns” too.  No surprises there. As detailed on www.GunBanObama.com and www.GunBanFacts.com, Obama supported banning both types of firearms and m

22-year-old woman defends herself against armed home invaders, NBC DFW, Dallas, Texas 10/18/12
A 22-year-old woman was at home alone in Dallas, Texas when a pair of home invaders, at least one of whom was armed, kicked in the front door. After retrieving a gun, the woman spotted the criminals as they were headed to the second floor of the house. The woman opened fire on the home invaders, str

NRA’s new offensive against Obama
Chris Cox on CNN discussing the danger Barack Obama poses to Second Amendment rights.

Louisiana: Gov. Jindal on gun rights
This November, I am proud to join the National Rifle Association in support of Amendment 2 to the Louisiana Constitution to protect the gun rights of law abiding citizens, let me tell you why.

New Mexico parks consider respecting Right-to-Carry
The state is considering allowing people who have a license to carry concealed guns to bring their weapons into New Mexico state parks.

Right-to-Carry permit holders speak out at CU-Boulder gun forum
A University of Colorado discussion about guns on campus changed course Wednesday as at least a half dozen people in the audience identified themselves as students with concealed weapon permits and defended their right to bring firearms to school.

Alabama: Legislators file bills to allow employees firearms in vehicles
Legislation has been pre filed in the Alabama House and Senate that would prevent employers and property owners from establishing policies that would prevent workers from transporting and storing firearms and ammunition in their vehicles.

Chicago’s Cook County wants tax on bullets to pay for healthcare
If approved by the Cook county commission, the nation’s third most populous county could be the first major metropolitan area in the nation to impose a tax as a form of gun control.

New Law Review Article: “‘Eyephones’: A Fourth Amendment Inquiry into Mobile Iris Scanning”
New Law Review Article: “‘Eyephones’: A Fourth Amendment Inquiry into Mobile Iris Scanning” by Christopher Rutledge Jones, 63 S.C. L.Rev. 925 (2012): MORIS, or Mobile Offender Recognition and Information System, is a small device that attaches to a standard iPhone and allows a user to perform mobil

ATTENTION New Mexico Concealed Handgun Licensees: Update on Important Rule Change Allowing Concealed Carry in State Parks
Yesterday, the State Parks Division of the New Mexico Energy, Minerals and Natural Resources Department held a public hearing to accept input on proposed amendments to Section 19.5.2.21 of the New Mexico Administrative Code, which includes a removal of the current ban on concealed handgun licensees

Illinois: Proposed Cook County Budget Will Penalize Gun Owners By More Than Doubling The Cost Of Ammunition
Today, Cook County Board President Toni Preckwinkle announced a 2013 budget plan that will penalize, through taxation, all purchases of firearms and ammunition in Cook County.  If adopted, this proposal would impose a tax of a nickel per bullet and $25 for each firearm purchased, ultimately amountin

CA6: Violation of state S&S law irrelevant to Fourth Amendment analysis
Any failure of state officials to comply with state search and seizure of arrest law is meaningless in federal court under the Fourth Amendment. Here, Tennessee law required an original and two copies. One was missing. United States v. Beals, 2012 U.S. App. LEXIS 21389, 2012 FED App. 0360P (6th Cir.

HI follows minority rule on inevitable discovery
Hawai’i reaffirms it follows the minority view of inevitable discovery and concludes that an unlawful search incident could not be justified as inevitable discovery of a coming jail inventory search of the person because it was speculative that the contraband would have been found then. State v. Rod

E.D.La. avoids PC on CSLI warrant, deciding only GFE applies
Without determining the merits of probable cause for cell site location information, the court applies the good faith exception alone. United States v. Hardrick, 2012 U.S. Dist. LEXIS 147940 (E.D. La. October 15, 2012): Because this Court holds that the good-faith exception to the exclusionary rule

Stand Your Ground Task Force Hears From Second Amendment Leaders in Jacksonville, FL
Yesterday, the Governor’s Task Force on Citizen Safety and Protection, commonly called the “Stand Your Ground Task Force” met for presentations by Second Amendment Organizations: National Rifle Association, Unified Sportsmen of Florida and Florida Carry, Inc.  In the previous Task Force meetings, pr

Vietnam vet detains home invader, WITI Milwaukee, Wis., 10/16/12
After going to bed early, a homeowner in Kenosha County, Wis. was awakened around 8:30 p.m. by a suspicious noise. The homeowner retrieved a .22-caliber pistol, went to investigate and found a burglar in his basement. The homeowner shouted to the home invader, “I got a weapon. It’s loaded. I’m prepa

NRA sharpens political attack on Obama
The NRA, which endorsed Republican presidential nominee Mitt Romney earlier this month, has been very vocal about trying to defeat Obama in November.”Some gun owners took Obama at his word four years ago, when he said he wouldn’t take their guns away,” said Chris W. Cox, executive director, NRA’s In

NRA seizes on Obama’s support for gun ban
The National Rifle Association, jumping on President Obama’s new and firm support for a Clinton style assault weapons ban, is stepping up its attack on the president in Ohio, Virginia, Florida and Wisconsin with a new “we told you so” theme.

Obama’s big gun slip
President Obama is in a fix over firearms. He needs to win undecided voters in the swing states to be re elected, but these areas are largely pro gun. So after years of trying to dodge the issue, Mr. Obama let it slip in Tuesday’s presidential debate that he’d push a gun ban in a second term. It’s a

Obama comment stirs up gun-ban opponents
The National Rifle Association is using President Obama’s favorable reference to the assault weapons ban as a pro Mitt Romney rallying cry to gun owners in swing states.During Tuesday night‘s second presidential debate at Hofstra University in Hempstead, N.Y., the president “gave law abiding hunters

Chicago official proposes bullet tax
Cook County Board President Toni Preckwinkle will submit a budget proposal Thursday that calls for a tax of a nickel for each bullet and $25 for each firearm sold in the nation’s second largest county, which encompasses Chicago.

Louisiana could strengthen gun rights
Louisiana would have the strongest gun rights law in the United States if proposed constitutional amendment No. 2 wins voter approval Nov. 6.“The right to keep and bear arms is a fundamental right. It deserves the highest protection of law,” said state Sen. Neil Riser, R-Columbia, proposition sponso

Business Insider: “Two Supreme Court Cases About Dogs May Profoundly Impact Americans’ Privacy”
Business Insider: Two Supreme Court Cases About Dogs May Profoundly Impact Americans’ Privacy by Michael Kelley: On Oct. 31, the U.S. Supreme Court will hear two cases from Florida about drug-sniffing dogs that will either affirm or weaken the constitutional privacy rights of Americans. Rulings f

NYTimes.com: “First Plaintiffs Testify in Federal Challenge to Police Stop-and-Frisk Policy”
NYTimes.com: First Plaintiffs Testify in Federal Challenge to Police Stop-and-Frisk Policy by Joseph Goldstein: Charles E. Bradley stood outside his fiancée’s fifth-floor apartment at about 5 p.m., the agreed-upon time, and began drumming on the door, he testified Tuesday, re-creating the sound in

The Columbia Science and Technology Law Review: The Fourth Amendment in the Digital Age
The Columbia Science and Technology Law Review: The Fourth Amendment in the Digital Age by Min Choi: In the old days – and even now, as Occupy Wall Street exemplifies – people took to the streets to protest. But as technology evolved, new forms of demonstrations appeared. One such form is hacking t

Wayne LaPierre: Obama will go after guns if he wins
NRA Executive Vice President Wayne LaPierre appeared on Fox Business’ Varney & Co. to warn American gun owners of the threat a second term for Obama poses to the Second Amendment.

Obama would seek to revive semi-auto ban
Democratic President Barack Obama and Republican presidential candidate Mitt Romney engaged in a rare tussle over gun control on Tuesday, and Obama opened the door to pushing for a ban on assault weapons if he wins a second term.

Ex-justice urges next Congress and president to restrict the Second Amendment
Former Supreme Court Justice John Paul Stevens demonstrated the importance of America’s upcoming presidential choice as he spoke Monday to the Brady Campaign to Prevent Gun Violence. Justice Stevens told the assembled gun grabbers of the urgent need for Congress to adopt laws restricting the right t

Issa statement on DOJ’s assertion that Court does not have jurisdiction in ‘Fast and Furious’ legal action
Today, Oversight and Government Reform Committee Chairman Darrell Issa issued the following statement on the Justice Department’s request for dismissal of legal action requiring the production of subpoenaed documents related to Operation Fast and Furious.

Florida: Gun rights advocates testify before task force
Former National Rifle Association president Marion Hammer told the task force that there is no need to change the law. But she said recommendations were needed to make sure the law is applied and interpreted consistently.”The law codified the right to self defense that most people believe are in pla

UK: No shooting magazines for sale to under-14s
Country sports enthusiasts are furious at a decision by Britain’s biggest newsagent to ban children from buying shooting magazines after a campaign by animal rights activists.

E.D.Mo.: Wiretap provided RS for continuing stop
Officers had reasonable suspicion for defendant’s stop and continuing it based on wiretap information well before the stop. His consent thereafter was voluntary. United States v. Elkins, 2012 U.S. Dist. LEXIS 148668 (E.D. Mo. September 25, 2012).* Defendant’s Franks challenge fails–there were two o

OH2 reverses three
Officers did a knock-and-talk at defendant’s girlfriend’s house where defendant was spending the night. The trial court erred in holding the defendant lacked standing as an overnight guest, and the case is remanded for reconsideration of the motion to suppress. State v. Winston, 2012 Ohio 4743, 2012

M.D.La.: Consent to search of driver doesn’t extend to passenger’s luggage
Defendant was in a car with another that was stopped by the police, and the driver gave consent to search. The driver’s consent did not apply to separate luggage in the car that belonged to the passenger, and the officer told defendant that the driver consented so he was searching. The passenger’s s

E.D.Mo. declines to follow majority rule: No Davis good faith for GPS
Disagreeing with the majority of cases and following the minority view, the Davis good faith exception is not applied to pre-Jones GPS use. United States v. Robinson, 2012 U.S. Dist. LEXIS 147793 (E.D. Mo. October 15, 2012): But I do not read Davis that broadly, and do not agree that the Davis good

D.Neb.: No right to be arrested at the earliest possible time
Defendant has no right to be arrested only at the earliest possible time. Officers can watch and let the situation develop to see what else happens. United States v. Davis, 2012 U.S. Dist. LEXIS 145849 (D. Neb. September 21, 2012)*: Law enforcement officers had informant information indicating the

Michigan Legislature Returns Tomorrow for One-Day Session and Continues to Delay Vote on Pro-Gun Bills
As previously reported here by the NRA-ILA, the Michigan State Police is still trying to defeat House Bill 5225, legislation that would eliminate the state handgun “permit-to-purchase” and registration requirements in Michigan.  This important legislation is currently pending consideration by the st

Colorado: CU Leadership Meeting About Your Gun Rights Tomorrow!
University of Colorado at Boulder (CU) officials will be meeting for a second time to discuss how the state Supreme Court ruling in March will apply to on-campus policies. The Supreme Court clearly and decisively ruled that the University’s gun ban was in violation of the Colorado concealed carry la

70-year-old woman scares off home invader, The Register-Herald, Beckley, W.V. 10/12/12
A 70-year-old woman was asleep in her Fayette County, W.V. home, when she was awakened by her burglar alarm. After arming herself with a .38-caliber revolver, the woman went to investigate. When she found the burglar, the criminal punched her in the face. The woman responded by firing at the home in

S.D.Ga. adopts Fourth Amendment de minimus standard
Extending a stop by a minute for other questions was not a Fourth Amendment violation (adopting the de minimus standard, without calling it that). United States v. Burrows, 2012 U.S. Dist. LEXIS 146695 (S.D. Ga. October 11, 2012). A brief handcuffing during a stop just for the frisk and then unhand

D.Nev.: No standing to challenge GPS on car
Defendant did not own or was driving the vehicle on which the GPS device was placed, so he lacked standing to challenge the GPS placement. United States v. Smith, 2012 U.S. Dist. LEXIS 147866 (D. Nev. July 24, 2012). Defendant’s house was subjected to a search warrant for multiple burglaries, and a

GA: Thermal imaging is not a proper basis for a search warrant under state law, but PC otherwise exists
A thermal imaging warrant violated Georgia state law because search warrants can only be for “tangible evidence.” There was, however, plenty of probable cause for a search of the house based on everything else known before that, so the search would not be suppressed. Brundige v. State, S11G1821 (Ga.

CU-Boulder to host second campus forum on Right-to-Carry
Top University of Colorado leaders will hold a town hall meeting Wednesday afternoon to hear concerns from faculty, staff and students in light of a Colorado Supreme Court ruling that struck down the school’s gun ban.The event will be from noon to 1 p.m. Wednesday in the Aspen Rooms in the Universit

Mississippi: DeSoto supervisors refine firearms ordinance
DeSoto County supervisors Monday continued to refine a proposed firearms ordinance governing a new recreational parks and greenway system, and the board continued a public hearing on the proposal to Nov. 19.

Justice Dept. seeks dismissal of House suit seeking documents on Operation Fast & Furious
The Justice Department on Monday night sought dismissal of a lawsuit by a Republican led House committee demanding that Attorney General Eric Holder produce records about the botched law enforcement probe of gun trafficking called Operation Fast and Furious.

Virginia: Franklin County Board of Supervisors to Consider Repeal of Restrictive Gun Ordinance
Tomorrow, October 16 at 6:00 pm., the Franklin County Board of Supervisors will hold a public hearing to consider the repeal of an ordinance banning firearms at music and entertainment festivals in the county. 

It’s now a crime to exercise your 4th and 5th Amendment rights

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Starting July 1, 2012, Kansas DUI law took a dramatic turn for the worse. Benjamin Franklin said “Those willing to sacrifice freedom for security deserve neither.” The most heinous change in the law compels me to modify this somewhat. “Those willing to sacrifice unalienable rights for safety deserve neither.”

So what is the change that has me so incensed? First, consider what the DUI statutes prohibited before. See K.S.A. 8-1567. If you drove a motor vehicle when your blood/breath alcohol content was over, .08, you were guilty of a DUI. If you drove while under the influence of alcohol and/or drugs to the degree that you were incapable of safely operating a motor vehicle, you were guilty of DUI. The latter were for those under the influence of drugs or where a blood/breath alcohol test was unavailable or perhaps taken too long after the person drove the vehicle.

These laws make sense. They don’t require a person to waive their constitutional rights to prosecute. You could be deathly silent throughout the investigation, but as long as the officer can testify as to how bad your driving was, or how loopy you were acting, as well as other indicators being present such as odor of alcohol, bloodshot eyes, slurred speech, bad coordination, etc., you could be prosecuted. The State would have to prove “beyond a reasonable doubt” that you committed the crime.

Now all the prosecutor needs is “probable cause” to believe you were under the influence of alcohol, which is a much lower standard than “beyond a reasonable doubt,” and that you merely refused to take a breath/blood test. See Senate Bill 60, signed by Governor Brownback June 2012. Without the test, the refusal is enough to prosecute. As far as PC is concerned, it’s a very low burden. One person might find PC present merely based on a smell of alcohol and perhaps coordination issues that are related to the person’s unique health condition, such as muscular dystrophy. Another not even that much, a smell alone with a little weaving. Hence, it’s almost a non-issue. If the officer says he thought alcohol might be involved, the prosecutor will get past this small hurdle. If a person refuses, BAM, a strict liability offense without any intent element at all.

There are two amendments to the United States Constitution that apply.

The 6th Amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The 5th Amendment provides that no person may be “compelled in any criminal case to be a witness against himself.”

This new law makes it a crime to withhold evidence that requires a warrant to obtain. See, e.g., State v. Jones, 279 Kan. 71, 106 P. 3d 1 (2005) (holding that breath test is invasive search that requires probable cause to obtain). Hence, if you demand that the police obtain a warrant, they can move on, charge you with a pseudo-DUI, and use your refusal as strict liability proof that you were driving under the influence…all because you exercised your constitutional rights to (1) demand a warrant, and (2) not incriminate yourself.

Want to guess why this legislation was pushed through? Judges didn’t like being awoken at night to sign off on search warrants to force blood tests of DUI suspects. Thus, to keep from inconveniencing judges we can now be prosecuted for exercising our unalienable rights. Maybe this will get overturned on appeal…BY JUDGES WHO DON’T LIKE GETTING AWOKEN AT NIGHT TO SIGN SEARCH WARRANTS. Hmmm.

 

If you make it home, you better get inside it FAST!!!

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In State v. Dugan, No. 106152 (Kan. App. Ct. May 4, 2012), the court considered whether an officer is in hot pursuit when she is merely following up an erratic driver complaint. Specifically, does such suspicion of DUI justify sticking her foot under a closing garage door to force it open after the defendant is safe and sound inside it? Without more facts and observations (such as the officer actually witnessing such erratic driving), the answer is no.

The rights secured in the Fourth Amendment are at their zenith when governmentagents attempt to enter a person’s home. Except in carefully circumscribed situations, law enforcement officers violate the Fourth Amendment if they enter a dwelling without either a search warrant for the premises or an arrest warrant for a resident they reasonably believe will be found there. Those limited instances permitting warrantless entry generally require government agents to have probable cause coupled with particularized, exigent circumstances to breach the constitutional sanctity of a private residence. Ibid. at Syl. 3.

So what does this mean? I’ve represented clients who were followed all the way to their driveways, got out of their cars, and began walking to the front doors only to have officers shout for them to stop. Will this affect these types of cases? No. However, if you make it all the way inside the house before the officer is near and refuse to answer the door when he knocks, your facts  will probably invoke Dugan’s holding. Granted, more incriminating evidence such as the civilian whose car you slammed into following you all the way to the house might constitute sufficient exigent circumstances for the officer to force his way inside the house. In fact, this serves to bolster the report that led to the so-called hot pursuit. More indicias of reliability.  Simply put, there must be more incriminating obserations and reliability factors than those alleged in Dugan.

One final point on this case. There are dozens of cases in Kansas and other jurisdictions that make it clear that an officer cannot stop a car based merely on allegations contained in an anonymous tip. Such info does justify an officer getting behind your vehicle, but until the officer sees independent evidence of erratic driving or a separate traffic law violation, he cannot stop you.

Summary of DUI suspension law in Kansas

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DL PENALTIES

Pursuant to K.S.A. 8-1014, the suspension and restriction of driving privileges for test refusal, test failure or an alcohol or drug related conviction are as follows:

REFUSAL                         FAILURE                          FAILURE (BAC .15+)

  Suspend Restrict Suspend Restrict Suspend Restrict
FIRST 1yr 1 yr 30 days 180 or 1yr[1] 1 yr 1 yr
SECOND 1yr 2 yrs 1 yr 1 yr 1 yr 2 yrs
THIRD 1yr 3 yrs 1 yr 2 yrs 1 yr 3 yrs
FOURTH 1yr 4 yrs 1 yr 3 yrs 1 yr 4 yrs
FIFTH + 1yr 10 yrs 1 yr 10 yrs 1 yr 10 yrs

A CDL holder will be disqualified from operating a CMV for 1 year on a first conviction of K.S.A. 8-1567 or for a test refusal or test failure when operating a noncommercial vehicle.  K.S.A. 8-2,142(a)(2)(A) and (B).  A person is disqualified for life on a second or subsequent  occurrence of any offense identified in K.S.A. 8-2,142(a) “arising out of two or more separate incidents”.  K.S.A. 8-2,142(c).

Pursuant to K.S.A. 8-1013(b)(2), “For the purpose of determining whether an occurrence is a first, second or subsequent occurrence: (A) “Alcohol or drug-related conviction” also includes entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging commission of a crime described in subsection (b)(1), including a diversion agreement entered into prior to the effective date of this act; and (B) it is irrelevant whether an offense occurred before or after conviction or diversion for a previous offense.”

[1] Pursuant to K.S.A. 8-1015(b)(1): On and after July 1, 2011, through June 30, 2015:

(A) Except as provided in subsection (b)(1)(B), when a person has completed the suspension pursuant to subsection (b)(1)(A) of K.S.A. 8-1014, and amendments thereto, the division shall restrict the person’s driving privileges for 180 days to driving only a motor vehicle equipped with an ignition interlock device.

(B) When a person has completed the suspension pursuant to subsection (b)(1)(A) of K.S.A. 8-1014, and amendments thereto, the division shall restrict the person’s driving privileges for one year to driving only a motor vehicle equipped with an ignition interlock device if the records maintained by the division indicate that such person has previously: (A) Been convicted of a violation of K.S.A. 8-1599, and amendments thereto; (B) been convicted of a violation of K.S.A. 41-727, and amendments thereto; (C) been convicted of any violations listed in subsection (a) of K.S.A. 8-285, and amendments thereto; (D) been convicted of three or more moving traffic violations committed on separate occasions within a 12-month period; or (E) had such person’s driving privileges revoked, suspended, canceled or withdrawn.