A Timely Blog Post By Another Criminal Defense Attorney: “Most people accused of a crime are treated like criminals, that’s why we fight to protect your rights and keep you out of jail.”

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My good friend and top-notch criminal defense attorney Chuck Peterson just posted the following to his blog: “Most people accused of a crime are treated like criminals, that’s why we fight to protect your rights and keep you out of jail.” After reading the post, I couldn’t agree with Chuck more, that’s why in the “About” page in this blog I touch on the fact most people accused of a crime are treated as though there is a “presumption of guilt.” Kudos to Chuck for touching on the important topic of the “presumption of innocence.” It’s a shame not all criminal defense attorneys treat the presumption as it should be treated – with the utmost respect.

As an aside, you may be wondering why I am putting Chuck’s post on my blog. The simple truth of the matter is this: When I see someone posting on a topic I believe is important, I want to do everything I can to make sure my readers see it – even if it is pointing out what another criminal defense attorney is saying. Do I want your business? Sure. Do I truly believe I would be your best option for a multitude of criminal defense matters including defense of DUI/DWI and drug and fraud charges? Absolutely. At the end of the day, however, I believe you are entitled to the absolute best fit for your criminal defense needs. If you wind up retaining another attorney, so be it…so long as your rights are protected and the government is held to its burden.

Can I Move To Suppress Evidence Of An Illegal Search Of A Car? Do You Have “Standing”?

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I participate in various forums, such as Avvo, where citizens can ask general questions of lawyers. I find this an efficient way of answering legal questions for people in Idaho and around the country. A question came across the other day about whether a person could move to suppress evidence of an illegal search of his girlfriend’s car. The post began like this: “I was pulled over for having a headlight out in my girlfriend’s car. She was the passenger!” Additional  facts provided were: “When I was out of the car the officer asked if he could search the vehicle! I told him no because it wasn’t my vehicle.” The owner of the car eventually consented to a search of it. Of course, drugs, scales and paraphernalia were found. Presumably the individual is now subject to criminal charges.

The search of a vehicle implicates the Fourth Amendment to the United States Constitution, which Fourth Amendment:

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.

There are many exceptions to the warrant requirement of the Fourth Amendment. In the context of a vehicle search, Of course, the consent to search is one of the exceptions.

Unfortunately for the driver who posted the question, he simply does not have standing to challenge the search of the vehicle. He cannot seek to suppress the evidence found.

In State v. Bordeaux, the Idaho Court of Appeals provided a nice summary of this area of the law:

Generally, only the owner of a vehicle has standing to directly challenge an illegal search. Idaho courts have consistently held that a passenger in a vehicle subject to an allegedly illegal search generally does not have standing to object to the search of the car. A passenger who has no proprietary interest in the vehicle lacks a reasonable expectation of privacy, and therefore, standing to challenge a search where the driver has consented. The rule is well established that in order to assert standing to suppress evidence, the individual seeking suppression must demonstrate some proprietary interest in the premises searched or some other interest giving a reasonable expectation of privacy.  The individual’s rights must have been infringed. These rights are personal and a claim may not be asserted vicariously that the government has invaded a third party’s privacy rights. Id. Where a passenger fails to make a showing of a legitimate expectation of privacy, his Fourth Amendment rights have not been violated.

In the factual scenario posted by the driver of the vehicle, he stated it was his girlfriend’s car. Additionally, when law enforcement asked him for consent to search the vehicle, the driver disavowed any ownership interest and, thus, any reasonable expectation of privacy in the car.

Search and seizure law is highly technical and a proper analysis and argument which leads to suppression of evidence is a big win for defendants. If you have a case involving the search and seizure of evidence, you need a good criminal defense attorney.

 

Sentencing is Where it’s at in Federal Court

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I had a sentencing in federal court today. My client was charged with obtaining cough medicine with fraudulent prescriptions and received  a “middle of the Guideline sentence” of nine months in prison. He has been locked up since December 15, 2016, and so, will have to serve an additional 3+ months before his release.

In my experience, a large portion of federal prosecutions end with a guilty plea and, so sentencing is where it’s at in federal court. As I was preparing for sentencing today, my research led me to actual data to back up my experience.

Under the federal sentencing guidelines, “simple drug possession” includes: §2D2.1 – Unlawful Possession, Attempt and Conspiracy; §2D2.2 – Acquiring a Controlled Substance by Forgery, Fraud, Deception, or Subterfuge; and §2D2.3 Operating or Directing the Operation of a Common Carrier Under the Influence of Alcohol or Drugs. According to the United States Sentencing Commission, charges amounting to “simple drug possession” are almost always settled by a guilty plea in the Ninth Circuit (the circuit Idaho is in). When I say “almost always,” I mean in more than 99 cases out of 100! As this table – Guilty Pleas and Trials in Each Primary Offense Category FY 2016 – shows, in 2016, in the entire Ninth Circuit, there were 1,489 cases charged under the “simple possession” guidelines. Of those, only 1, went to trial. That’s a minuscule 0.067%.

In order to be a successful federal criminal defense attorney, you need to know the lay of the land, recognize when a plea is in the best interests of your client, and know how to prepare and argue effectively for your client in the sentencing proceeding. It is most likely where you’ll be able to do your client the most good.

Michael Flynn is “Taking the Fifth”…You Should Too.

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Today we learned from Karoun Demirjian of the Washington Post that “Retired Lt. Gen. Michael Flynn, the former national security adviser under President Trump, refused to comply with a Senate Intelligence Committee subpoena….” Frankly, if you are being investigated for a crime, you’d be smart to follow Ret. Lt. Gen. Flynn’s example of invoking his right to remain silent.

The Fifth Amendment to the United States Constitution provides: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” The bolded language is what’s important here.

Many of my clients think talking with law enforcement and trying to “tell their side of the story” without an attorney present is a good idea. Frankly, they are always wrong. Law enforcement will utilize various techniques, including out-right lies, to get people to incriminate (provide harmful information about) themselves. By the time I get the case, my client’s own words often “seal the deal” for the government.

Some say “taking the Fifth” demonstrates your guilt. This is simply not so. Relying on the protections of the Fifth Amendment to the United States Constitution is something the Founders of this country believed to be an appropriate protection against the government. It is your absolute right to not speak with law enforcement. Your refusal cannot be used against you.

If you are, or believe you might be, being investigated it is in your interest to not speak with police until you have obtained the services of a qualified attorney to advise you. Call me if you’d like representation in this situation. Trust me, you are better off getting legal help now than after you have cooked your own goose.

Prosecutor Agrees: Improperly Suggestive Photo “Lineup” Should Not Be Used.

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Today was supposed to be a hearing on my Motion to Suppress Unconstitutionally Suggestive Photographic Identification. Surprisingly, the prosecutor agreed my motion was correct and we agreed he would not use the out-of-court identification in an upcoming burglary trial. He also agreed not to have the witness conduct an in-court identification of my client as the individual in surveillance video of a robbery.

The Motion was based on the Idaho Supreme Court’s decision in Wundermann v. State. There the Court identified the factors to be considered in suppressing an out-of-court identification. The key is “reliability.”

In order to determine whether  an identification is reliable, the Court considers these factors: “(1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the criminal; (4) the level of certainty demonstrated at the identification; and (5) the length of time between the crime and the identification.”

In my case, the owner of the business gave a general description of the person she observed on the video. The owner then got “still captures” (think a single frame) of a video feed and reviewed them. She initially said she thought the person in the frame was named “Vicki.” The police officer believed the person was Vicki’s sister “Michelle” and told the owner of Michelle’s existence and the fact she is Vicki’s sister. The owner  proceeded to search Facebook for pictures of Michelle. There was no evidence the person had ever heard of Michelle before the police mentioned her.

My argument was because the police officer directed the identification of Michelle, it was unconstitutionally suggestive. Apparently the prosecutor agrees. We have stipulated to “suppress” the identification.

Trial in this case is in June. I’ll be sure to post an update following the trial to let you know how it all turned out.

If you are interested, here is a link to my memorandum laying out my argument. 2017-04-28 Memorandum in Support of Mtn to Suppress Photographic Identification

Introduction – Hello World!

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I’ve decided to begin writing a blog to provide information about criminal law and associated issues as well as to provide helpful information to you if you are ever charged with a crime. There are many issues which are “case specific” meaning that, although a general post here may give you information, a more detailed review of the facts and circumstances of your particular issue is necessary. The posts on this blog will, hopefully, be a starting point for you. It is also my goal to provide current general information from the world of criminal defense and my criminal defense practice. I know there are many attorneys out there, I hope the information provided here is useful to you.