Recently in Fourth Amendment Category

November 30, 2013

Renown Prosecutor Jailed, Accused of Evidence Tampering

A defendant convicted of a crime must face law enforcement officers, prosecutors, and the criminal justice system as a whole. One individual in the face of the state or federal criminal system is not a fair fight, especially when a prosecutor tampers with evidence to obtain a conviction. In Texas, a former D.A. is now facing criminal punishment for failing to turn over exculpatory evidence. This is a case that highlights the potential corruption in the state when prosecuting crimes. Defendants should be wary, that they may not just be facing charges, but a system that is stacked against them.

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When building a case, law enforcement officers will be collecting evidence to be used against you even before you are charged with a crime. In addition to evidence presented by law enforcement officers, prosecutors will also investigate to find evidence to be used against you. As a defendant, you need an independent advocate who can challenge this evidence and even out the playing field. Our Washington D.C. violent crimes defense attorneys are experienced in the investigation and defense of crimes. We will take a strategic approach to protect your rights and minimize charges and penalties in your case.

According to national news reports, a former Texas D.A. who was once named 1995 Prosecutor of the Year, has been sentenced to 10 days in jail for criminal contempt. He has been charged with tampering with evidence and hiding evidence that would have been favorable to the defendant in a 1986 murder trial. The defendant was accused of killing his wife and even though he was innocent, the prosecutor violated a court order when he denied having any favorable evidence to the defendant. The prosecutor lied, even though he had several witnesses that would have been able to provide exculpatory evidence on behalf of the defendant.

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August 31, 2013

"Consensual" Police Encounters Often Anything But, Report Says

It's been more than four decades since the U.S. Supreme Court ruled that police must have some reasonable, articulable suspicion that a person is committing, has committed or is about to commit a crime in order to briefly detain and search that person.

However, D.C. criminal defense attorneys recognize that the one major loophole in the law is something called a "consensual encounter." That is, if an officer doesn't have reasonable suspicion upon which to stop you, there is nothing stopping that officer from asking you to "voluntarily" engage in a conversation.
But there is a fine line between voluntary and involuntary where officers are concerned, and a new study published in the Florida Coastal Law Review indicates that "consensual police encounters" are almost always less consensual than they may appear on the surface.

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August 12, 2013

D.C. Defense Lawyers Explain Your Fourth Amendment Rights Regarding Unreasonable Search

Recently, several reels of dash camera footage have surfaced on public video hosting sites revealing Texas police officers taking extreme measures in searching women reportedly suspected of marijuana possession.
Our D.C. criminal defense attorneys understand that in both instances, the police officers stopped the women for relatively minor offenses - one for littering and the other for speeding. It does not appear, at least based on court records and the videos, that there was any probable cause to suspect these women were in possession of marijuana in the first place.

And yet, the officers in both cases subjected the women to full cavity searches in roadside stops. The searches, performed by gloved, female troopers, reportedly happened in broad daylight in full view of passing vehicles. The videos are graphic and show the officers probing inside the women's genitalia, all the while threatening that they will find the drugs.

Drugs were not found in either incident.

The women have since filed civil lawsuits in federal court, alleging these actions are unconstitutional. Their cases appear quite solid.

First of all, even if the officers had reason to suspect the women were in possession of marijuana, such searches are incredibly invasive and inappropriate - not to mention likely Fourth Amendment violations against unreasonable searches. While officers tend to be given a wide latitude in searching a person's vehicle, personal searches of this nature cross the line. Even if the officers had found something, it's likely that such evidence would have been suppressed in court on the basis that these searches are illegal.

Similar allegations out of Milwaukee a few years ago resulted in the discipline of eight police officers there. Those officers were accused of conducting genital searches on suspects when they had no legal authority to do so.

Another case out of Florida recently involves a woman who was ordered by a male trooper to lift her shirt and bra up over her breasts - exposing herself to passing traffic - in order to ensure she wasn't hiding drugs in her bra. She had been stopped for a non-functioning headlight. No drugs were found.

In the Texas cases, the women were not asked for consent. Rather, they were ordered to submit.

One of those officers involved has since been charged with sexual assault and fired from her position.

There are reports that such actions are widespread in Texas. We haven't heard of anything similar taking place here in D.C., but we do know that when it comes to roadside searches, many people are unaware of their basic rights.

The Fourth Amendment of the U.S. Constitution is very clear: "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 idea is to protect your privacy and freedom from arbitrary invasions. The courts have interpreted this in different ways with regard to traffic stops.

Basically, an officer can ask you at any point to search anything. By the same token, you have the right to say no. That is true whether we're talking about your vehicle, the property inside your vehicle or your own person. If the officer does not have probable cause, that is where it should end.

If you refuse a personal search, the only reason an officer would be allowed to pat you down without probable cause would be to ensure his or her own safety. For example, if there was suspicion that you were armed with a concealed weapon.

The bottom line is that anytime a roadside search is conducted on your person or property, you should question it. Even if officers do find something in those searches for which to arrest you, if the search wasn't proper, that evidence should be suppressed and it's likely the case against you would be tossed.

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December 2, 2011

Supreme Court Hears Argument on Warrantless GPS Monitoring in U.S. v. Antoine Jones

As you can see every day, technology continues to become more and more advanced and sophisticated. Cell phones are almost a necessity for many, the Internet is accessible anywhere at anytime, and traveling has been made easier with global positioning satellite services.

GPS is found in many devices, including cell phones and gadgets that provide maps for people on the go. The recent case of a Washington, D.C., man who was tracked by the FBI in a Washington, D.C., drug case has gone to the United States Supreme Court because of alleged police misconduct. Washington, D.C., criminal defense lawyers have seen instances where overzealous police work leads to a violation of rights. In many cases like that, the charges get dropped when the evidence is suppressed.
In the United States vs. Antoine Jones case, the FBI tracked the man through a GPS device for four weeks without a warrant. A Washington, D.C., appeals court ruled that his drug conviction, and subsequent life sentence, should be overturned because of a violation of his Fourth Amendment rights.

Every person has a right to avoid unlawful search and seizure. Under the Fourth Amendment, a person can't be subjected to the police barreling in without a warrant or a reason to enter. This applies to vehicles and businesses, too. This important protection ensures that police don't overstep their bounds when conducting an investigation.

In this case, Jones was monitored with a GPS device for a month by agents who didn't have a warrant to do so. They also didn't have permission to install a GPS device on his car in the first place. The tracking and later arrest led to a 2008 conviction on a charge of possession and distribution of more than 50 kilograms of cocaine.

In arguing before the Supreme Court, attorneys for the government relied on old cases that dealt with the right to privacy. Justices argued, though, that technology has changed dramatically in the last 30 years. GPS devices allow police to track people much more easily today.

Justices also were concerned that ruling against Jones in this case could open up every citizen in the United States to monitoring without a warrant. Jones' lawyer argued that private information was seized by authorities while they used the GPS device. The government doesn't have the right to steal information from citizens, he argued.

This isn't just an issue with the FBI, however. Local law enforcement agencies use the devices during investigations as well. This should be concerning for all citizens. If police have the right to attach GPS devices to your vehicle without reason, that's essentially the same concept as them being able to knock down your door for no reason and start rummaging through the house.

This would be a major hit to everyone's Fourth Amendment rights and a continued assault on the privacy of citizens throughout the country. For people charged with a crime, it would allow police more access to your personal affairs and potentially create more evidence in a criminal case. Stay tuned.

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May 4, 2011

Can the Police Lie When Interrogating a Suspect in Washington, DC? : On the "Mobile Gun Scanner"

gun scanner1.jpgAs a Washington, DC criminal defense attorney, I often hear from clients who have confessed to some illegal activity or given the police consent to search a car or vehicle, or even his or her home without a warrant or probable cause. It may seem strange that while almost everyone who has ever watched TV or seen a movie can recite a Miranda warning by heart, very few people actually use that right and remain silent. Many people also know that the cops can't search a car or house with a warrant or probable cause. The only reason the police ask for consent is because they can't do a search a without it. So why are these people talking and giving consent to search? One common reason is that police sometimes lie to suspects.

I was sitting with a client charged with carrying a pistol without a license (CPWL) at the DC Central Detention Facility (jail) reading a Metropolitan Police (MPD) report to him, and asked why he gave his consent to search his car. He said, they told him that the already used their "mobile gun scanner" and knew there was a shotgun in the car. He tells me that everyone in jail knows about the mobile gun scanner. He then asked me if I knew what the mobile gun scanner was, and I told him that I do, it's a lie police tell to suspects to trick them into searching their car. The vehicle scanners which actually exist, as pictured above, are far from the handheld version imagined by the police.

If you are ever stopped by the police in the police in Washington, DC and they ask for permission to search to car, you can say no. You don't even have to give them a good reason. If you been arrested and read your Miranda rights and they say that they you can tell them your side of the story, and that they are just trying to help, they are probably lying to you, or you wouldn't be in handcuffs or shackled to an interview room floor at the Third District Station.

April 27, 2011

Washington, DC Police Officer Pleads Guilty on Burglary Charges: On Confidential Informants

hidden_microphone.jpgIn a previous post, I wrote about the arrest of a DC police officer. Following up on this story, the Washington Post is now reporting that DC Metropolitan Police (MPD) Officer, Jennifer N. Green, has agreed to plead guilty to charges of attempted second-degree burglary. According to reports, the Internal Affairs unit set up a meeting between Green and an informant at the Macombo Lounge. The two planned a burglary at a DC residence that was supposed to contain a lot of cash and drugs. Green supposedly said that she didn't want the drugs, but could use the money. Using her police issued radio to monitor law enforcement activity in the area, Green and the informant pulled up to the apartment and the informant took a crowbar and went into the apartment. He returned with $1,050 in marked bills, and counterfeit crack cocaine. Green took $600 from the informant. She drove back to her apartment where she was arrested.

As a Washington, DC criminal defense lawyer, one of the common things I discuss with my clients is whether the police had a confidential informant (CI), or were just very lucky. Sometimes the police will put the existence of the CI in the police report, and other times they will strongly deny it no matter how obvious it may be.

While this can be used as part a good defense to a DC felony charge, the plain truth is that anyone can be a police informant, and according to the law, you assume the risk that the person you are talking to is working for the police. This is especially true once you have been arrested. Police cruisers may have microphones in them to record all conversations. A person at the district station, Central Cell Block (CCB), or DC Jail may be an informant. Your phone may be tapped. It is for this reason that I tell all of my clients not to discuss their case with anyone except me. It is best not take any chances with your constitutional rights.

April 5, 2011

Contempt of Cop: A Washington, DC Jury Finds Police Failed to Correct Improper Disorderly Conduct Arrests

Police.jpgAccording to a recent story on WTOP, a Washington, DC jury found that police failed to correct unlawful arrests for disorderly conduct. This case was filed by a woman arrested in front of a 7-Eleven for cursing at police. The jury awarded the plaintiff, Lindsay Huthnance, $97,500 for her illegal arrest and harsh treatment by police in jail. Her attorneys argued that she was actually arrested for "contempt of cop." In other words, she was arrested for disorderly conduct in DC because she was rude to police.

As a Washington, DC criminal defense attorney who handles disorderly conduct charges, I think it would be helpful to look at the definition of this charge in relation to offensive language. Under the DC Criminal Code, it is unlawful to:

"Direct abusive or offensive language or gestures at another person (other
than a law enforcement officer while acting in his or her official capacity) in a manner likely to provoke immediate physical retaliation or violence by that person or another person."

The purpose of this law appears to be that of preventing a fight or assault from occurring as a result of offensive language or gestures. Police officers are specifically excluded from this statute. They are trained to respond calmly to offensive language, and it should not be likely that the officer will respond in a violent manner. While this is not always the case, the jury found that Huthnance was arrested unlawfully by the police. As her lawyers argued, she was arrested for contempt of cop. Some people may be tempted to ask what the big deal is. To those not familiar with the criminal justice system, spending a night at the Central Cell Block (CCB) under 300 Indiana Avenue can be a pretty traumatic experience.

Despite the outcome of this case, if you have been arrested and charged with a crime in DC, it is best to be polite to the police and let your lawyer deal with any police misconduct in court.

February 7, 2011

Big Brother is Watching - on New Cameras Complements of the Washington, DC Metro Police

Red Light Camera.jpgWashington, DC motorists are well aware of the recent increases in traffic enforcement cameras located throughout the District. There are more than 30 cameras that allow the police to mail speeding tickets and red light violations to the registered owner of a vehicle. If you would like to see the location of these red light cameras, they are posted on the MDP website.

What may come as a surprise to DC residents is that the MPD is also planning on installing crime surveillance video cameras like those used in Baltimore and frequently featured on HBO's The Wire. These cameras can be remote controlled by the police and can be used to see what is happening in target neighborhoods. They also have sound detectors capable of detecting gunshots and honing on the source. What may come as a bigger surprise is that the feed from these video cameras, along with some privately owned security cameras, is being uploaded to state and federal monitoring systems so that agencies can monitor activity in multiple cities.

The use of these cameras present some issues that Washington, DC criminal defense lawyers may face in court. The Fourth Amendment of the US Constitution protects citizens from unreasonable searches. There are some questions as to whether the police can use a camera to look into the window of a private residence and charge the owner with a crime based upon what they see.

January 19, 2011

Follow-Up: Arizona Man Arrested on Gun Charges in front of the National Mall in Washington, DC Receives Probation

sniper_rifle.jpgAs I discussed in a previous post, James Patock of Arizona was arrested on gun charges on November 4, 2010. Patock was living in his mobile home that was parked in front of the Air and Space museum in Washington, DC. Police saw weapons inside the vehicle and performed a search and found a pistol, ammunition, and two rifles. Patock was charged with various gun charges and plead guilty to attempted carrying a pistol without a license and possession of an unregistered firearm in D.C. Superior Court. He was sentenced to one year in prison with that sentence suspended if Patock complies with the terms of his probation.

One of the major issues faced by DC gun charge lawyers is the harsh penalties for this type of crime in the DC Code and that fact that it is hard to dispute whether the defendant was in possession of firearms. The best defense often comes in the form a motion to suppress evidence. If it can be shown that police did have probable cause to search for the weapons, then they generally will be excluded from evidence. If the prosecution cannot introduce the gun or ammunition into evidence, then the prosecution will basically have no choice but dismiss the charges.

The Fourth Amendment to the Constitution gives every citizen the right to be protected from unlawful search and seizure. It is important to remember that a charge is not a conviction and there is a lot that can be done to help prevent a prison sentence so that you can get on with your life.

January 12, 2011

On Motions to Suppress When Facing Drug Charges in Washington, DC

541px-Crack_street_dosage.jpgIn every drug case I have handled, there is one thing in common: my client was arrested, and drugs were seized by the police. The police seem to think they caught the defendant red-handed, and it's an open and closed case. They are often wrong.

The most important thing a Washington, DC drug charge lawyer can do for a client is conduct a thorough investigation of all of the events leading up to the arrest. If the police did not have probable cause to stop a suspect, then they cannot conduct a search because the US Supreme Court has held that anything that follows an illegal stop is generally inadmissible because it is a "fruit of a poisonous tree." The unlawful stop is seen as a poisonous tree, and all evidence that it yields is also "tainted" and thus inadmissible in court.

Sometimes a DC Metro Police officer may have a valid "pretext" for stopping a suspect, but that does not automatically give them the right to do a full search. For example, if the officer can give a decent reason that they suspect a person is a danger to public safety, they can stop a suspect and do a quick pat-first of the outside of the person's clothing. This is called a "Terry Stop." They may not have probable cause to conduct a full search such as taking a pack of cigarettes out of a coat pocket and then looking for crack cocaine or heroin in the wrapper. If the suspect is in a car, they do not have the right to search the entire car, open the glove compartment, or open the trunk without probable cause. If the police ask if you have anything they should know about, or if they have permission to search you or your property, you have the right to say no. You don't have to give them any reason for saying no, and you should not worry if it makes you look suspicious. If they search you and find drugs or a weapon, then you are going to look guilty either way.

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December 30, 2010

The Controversial Full Body Scanners Now Used at Washington-Reagan National Airport and the Fourth Amendment

Tech_millimeter_wave.jpgThere have many been many recent news stories about the controversy surrounding the use of new full body scanners at Washington-Reagan National Airport. If you haven't flown recently, upon arriving at security, the United States Transportation Safety Administration (TSA) assigns passengers to one of several lines. Some of these lines lead to standard metal detectors and others lead to a full body scanner as pictured alongside this post. These scanners, actually called a millimeter wave scanner or backscatter x-ray scanner, are glass booths with a probe that can see through your clothing and present an image to a TSA agent. Passengers and civil rights groups have complained about the invasion of privacy of what amounts to basically taking nude photos travelers. While people are upset to some extent, most Americans are willing to allow an intrusion into their privacy if it can prevent another 9/11. The TSA has claims that you can opt-out of being subjected to a full body scanner in and instead receive a pat frisk. A pat frisk is the physical search of your person by an officer in a similar manner to when a suspect is arrested to make sure they have no drugs, guns or other weapons before taken into custody. At the airport, it is done to make sure the passenger does not have any contraband that could be used in a hijacking.

As a criminal defense lawyer in Washington, DC, I don't expect to get too many calls from suspected terrorists, being stopped by TSA carrying plastic explosives. What now seems likely, is people being arrested for possession of drugs like marijuana, cocaine, or heroin, that was detected by the full body scanners. According to recent reports, the machines are not as good as detecting explosives molded to a person's body, or hidden a body cavity, as the TSA had hoped, but they are very good at finding a small plastic bag of marijuana, or a glassine baggie of heroine in a passenger's underwear.

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November 9, 2010

Washington, DC Woman Charged with Animal Cruelty When Police Discovered a Live Goat in her Trunk at a DUI Checkpoint

179902_goat (2).jpgAccording to a recent story in the Berks-Mont News, a Washington, DC resident was driving to a Goat BBQ after picking up a live goat from a farm in Bedford, VA. She and four passengers were stopped at a random DUI checkpoint when police discovered the goat. Authorities measured the temperature in the trunk at 94 degrees and charged the driver with Animal Cruelty. There have been many complaints related to the BBQ's cancelation. The goat is now living on a farm in Virginia.

I'm not really sure what there is to say about this story but I suppose I will talk a little about DUI checkpoints. The Fourth Amendment to the US Constitution is the primary source of law on protection from being searched by the police without probable cause. The actually text is as follows:

"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."

This basically means that the police cannot randomly search someone's person or property without probable cause and a warrant. This was created to protect us from the type of random searches that the British authorities regularly conducted during colonial times. While the language of the Fourth Amendment seems pretty clear, the US Supreme Court has allowed for warrantless searches in certain situations. For example, if the police are responding to an emergency and believe you have a weapon, they can search you in the interest of public safety without first getting a warrant. They can also search you when you are arrested because they justify it in the interest of the officer's safety.

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September 28, 2010

There's Nothing to See Here Folks: Maryland Judge Dismisses Charges Filed Against Air National Guard Sgt. For Videotaping His Own Traffic Stop in the DMV Area

In April of this past year, a Maryland state trooper pulled over Maryland Air National Guard Sgt. Anthony Graber for speeding on his motorcycle. The plain clothes trooper who exited his unmarked car with his gun drawn was unaware that Graber was recording the traffic stop on a helmet-mounted video camera. After receiving his ticket, Graber posted the video on You Tube. You can see the video yourself if you click on the play button above this post.

Several days after Graber posted the video, the Harford County State's Attorney filed felony charges against Graber alleging that he had violated the state's wiretapping statute. This week a Maryland judge dismissed the wiretapping charges on grounds that the police have no reasonable expectation in their official communications.

At this point you may be wondering what a helmet camera has to do with wiretapping. Wiretapping generally conjures up images of secret microphones hidden in lamps and police sitting in a van outside a mafia social club, and while that does happen, the law may actually address any audio or video recordings of conversations.

The purpose of these laws is to prevent the secret recording of seemingly private conversations without a warrant. Some states allow for the secret recording if at least one party to the conversation knows about the recording. This is called a "one party consent" jurisdiction. The theory behind this is that whenever you speak to somebody, you assume the risk that the other person may be recording the conversation. It was under this type of system that Colorado police were able to secretly record basketball player, Kobe Bryant, during a 2003 sexual assault investigation.

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