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June 2011 Archives

June 30, 2011

The Changing Face (2010) of Probable Cause for Search Warrants in Colorado

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The Colorado Supreme Court recently (in April 2010) revisited what the law requires to create probable cause - that standard of proof necessary to support a search warrant.

By Denver, Colorado Criminal Defense Lawyer - H. Michael Steinberg

Probable Cause

The United States and Colorado Constitutions prohibit issuance of a search warrant without a showing of probable cause supported by oath or affidavit. See U.S. Const. amend IV; Colo. Const. art. II, § 7.

"'Probable cause exists when an affidavit for a search warrant alleges facts sufficient to cause a person of reasonable caution to believe that contraband or evidence of criminal activity is located at the place to be searched.'"

Probable cause is determined by the "totality of the circumstances." Under the Colorado Constitution, the facts supporting probable cause must be reduced to a writing, and so probable cause must be established within the four corners of the warrant or its supporting affidavit.

However, the analysis is not governed by hypertechnical legal rules; rather, a judge must make a "practical, commonsense decision" as to whether there is a fair probability that a search will reveal contraband or evidence of a crime.

Probable cause' itself need not satisfy any rigid, hypertechnical requirements but is a 'practical, nontechnical conception,' involving common-sense conclusions about human behavior."

In People v Scott, the Colorado Supreme Court expanded the "source" of probable cause to allow a judge to "add together" the evidence taken from two separate search warrants to support probable cause for a single search warrant. Scott had challenged the second search warrant as having issued without probable cause. The trial court concluded the affidavit supporting the second warrant was insufficient to establish probable cause and granted his motion to suppress all items collected thereunder except for the modified treadmill found in the garage.

After review, the court concluded that two affidavits could be read together and that the constellation of facts set forth by the two affidavits was a sufficient to provide the judge with a substantial basis from which to conclude that probable cause existed.

H. Michael's Take:

I disagree with the court's conclusions. In the past, where two affidavits have been read together to support a single search warrant, the affidavits incorporated each other by reference to each other.

In this case - the court broadened this rule of law on what it takes to establish probable cause in Colorado.

"Here, though, the affidavit supporting the second warrant does not explicitly incorporate by reference the affidavit supporting the first warrant. Rather, the second affidavit only states that the officers made their observations while executing the first search warrant at Scott's residence. Nonetheless, the observations sworn in the first affidavit clearly informed the ongoing investigation as well as the second warrant request. To force the two affidavits to be considered separately simply because Officer Feeney failed to explicitly incorporate the first affidavit into the second would be to impose hypertechnical requirements on an affidavit's form and constrain the commonsense approach that guides a magistrate's probable-cause determinations."

To read the entire decision see:

http://www.cobar.org/opinions/opinion.cfm?opinionid=7573&courtid=2

Posted by H. Michael Steinberg | | Email This Post

June 29, 2011

Colorado Sex Crimes Possession of Child Pornography Arrests Increas

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In a recent article in the Denver Post - the author brings to light the substantial increase in Colorado Child Pornography case prosecutions.

The number of Colorado prosecutions involving the possession and trading of child
pornography more than quadrupled from 36 cases filed in 2001 to 159 in 2009. While the number slightly decreased in 2010 - the 2011 number of case filings is on the increase.

Child pornography is predominantly found in multiple formats including print media, videotape, film, CD-ROM, or DVD. It is transmitted on various platforms within the Internet including newsgroups, Internet Relay Chat (chatrooms), Instant Message, File Transfer Protocol, e-mail, websites, and peer-to-peer technology.

Many individuals who surf the internet - become trapped in sites that distribute these images -much of the time it is curiosity followed by ignorance - helped along by the immaturity of the internet user. While it is difficult to describe a "typical" child pornography possessor because there is not just one type of person who commits this crime.

In a national study of 1,713 people arrested for the possession of child pornography in a 1-year period, the possessors ran the gamut in terms of income, education level, marital status, and age. Virtually all of those who were arrested were men, 91% were white, and most were unmarried at the time of their crime, either because they had never married (41%) or because they were separated, divorced, or widowed (21%).

With advances in technology the formation of the State of Colorado's formed the Internet Crimes Against Children Task Force in Colorado Springs.

The truth is this - there are innocent victims in these cases. Because of the failings of individuals who - at times do not understand the internet and at others - have no idea how serious a crime this can be.

Once these images are on the Internet, they are irretrievable and can continue to circulate forever. The child is clearly revictimized as the images are viewed again and again. However, the hysteria surrounding this crime sometimes compels the prosecution of the kind of individual who means no harm - but a person who needs assistance in understanding the impact of their actions - if they were intentional.

The search warrants today that are issued in these cases are complex. They encompass media-storage devices from phones to routers to game consoles.

The Rocky Mountain Regional Computer Forensics Laboratory provides professional assistance in analyzing these images using tools provided in large part by federal agencies.

It is not only a Colorado State Crime - these cases are prosecuted at the federal level. It is a federal crime to knowingly possess, manufacture, distribute, or access with intent to view child pornography (18 U.S.C. §2252). All 50 states and the District of Columbia have laws criminalizing the possession, manufacture, and distribution of child pornography. As a result, a person who violates these laws may face federal and/or state charges.

Investigations in recent months have resulted in the prosecutions of police officers, teachers, soldiers and a children's baseball umpire according to the Denver Post.

This is an area that requires not only an experienced criminal defense lawyer - but one who has experience in these kinds of difficult and complex cases.

Posted by H. Michael Steinberg | | Email This Post

June 17, 2011

2011 Colorado Expungement - Sealing Law Is Expanded to Private Background Agencies

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In 2011 the Colorado State Legislature acted wisely in expanding the present law by applying an order of a court to provate AND NOW Public Agencies.

Colorado House Bill 11-1203 applies to the Colorado Criminal record sealing law

Under current law if a court orders a criminal record sealed, each custodian of the record must seal the record. The new law expands the concept of custodian to include a private entity that has custody of the information and provides that information to others as a part of its business.

When a court orders a record sealed, the petitioner - the person seeking the sealing of the criminal record must provide a copy of that order and an electronic notification of the order to any private custodian of the record. When the private custodian - that is - the Private Background Agency - receives a copy of the order for sealing, it is now required to remove each record it has that is subject to the sealing order.

The Law was APPROVED by Governor Hickenlooper on March 29, 2011 and is EFFECTIVE August 10, 2011.

Here is the old law with the new provision in capitals:

24-72-308. Sealing of arrest and criminal records other than
convictions. (1) (c) After the hearing described in subparagraph (II) of
paragraph (b) of this subsection (1) is conducted and if the court finds that
the harm to the privacy of the petitioner or dangers of unwarranted adverse
consequences to the petitioner outweigh the public interest in retaining the
records, the court may order such records, except basic identification
information, to be sealed. Any order entered pursuant to this paragraph (c)
shall be directed to every custodian who may have custody of any part of
the arrest and criminal records information which is the subject of the order.
Whenever a court enters an order sealing criminal records pursuant to this
paragraph (c), the petitioner shall provide the Colorado bureau of
investigation and every custodian of such records with a copy of such order
.
THE PETITIONER SHALL PROVIDE A PRIVATE CUSTODIAN WITH A COPY OF THE
ORDER AND SEND THE PRIVATE CUSTODIAN AN ELECTRONIC NOTIFICATION
OF THE ORDER. EACH PRIVATE CUSTODIAN THAT RECEIVES A COPY OF THE
ORDER FROM THE PETITIONER SHALL REMOVE THE RECORDS THAT ARE
SUBJECT TO AN ORDER FROM ITS DATABASE.

Thereafter, the petitioner may request and the court may grant an order sealing the civil case in which the records were sealed.


24-72-308. Sealing of arrest and criminal records other than
convictions. (1) (c) After the hearing described in subparagraph (II) of
paragraph (b) of this subsection (1) is conducted and if the court finds that
the harm to the privacy of the petitioner or dangers of unwarranted adverse
consequences to the petitioner outweigh the public interest in retaining the
records, the court may order such records, except basic identification
information, to be sealed. Any order entered pursuant to this paragraph (c)
shall be directed to every custodian who may have custody of any part of
the arrest and criminal records information which is the subject of the order.
Whenever a court enters an order sealing criminal records pursuant to this
paragraph (c), the petitioner shall provide the Colorado bureau of
investigation and every custodian of such records with a copy of such order.
THE PETITIONER SHALL PROVIDE A PRIVATE CUSTODIAN WITH A COPY OF THE
ORDER AND SEND THE PRIVATE CUSTODIAN AN ELECTRONIC NOTIFICATION
OF THE ORDER. EACH PRIVATE CUSTODIAN THAT RECEIVES A COPY OF THE
ORDER FROM THE PETITIONER SHALL REMOVE THE RECORDS THAT ARE
SUBJECT TO AN ORDER FROM ITS DATABASE. Thereafter, the petitioner may
request and the court may grant an order sealing the civil case in which the
records were sealed.
SECTION 3. 24-72-308.5 (2) (c), Colorado Revised Statutes, is
amended to read:

Posted by H. Michael Steinberg | | Email This Post

June 16, 2011

Colorado Hit and Run Laws Providing Incentive to Flee the Scene - May Change

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A Recent Denver Post article points out an anomaly in the law

" End incentive for fleeing scene of a bad accident"

The scenario is this. Intoxicated driver gets into an accident. Realizes that if he or she stays at the scene and calls the police as the law requires - they will be charged with DUI.

They make the decision to leave the scene

This is the rub. Without reaching the moral aspect of this decision - the police are put in a very difficult position as the evidence of what occurred most often leaves with the suspect.

The article in the post lists several incidents involving injuries in hit and run accidents.

"
A 31-year-old man was arrested in Pueblo after fleeing the scene of an accident that injured three people. Police suspect he was driving under the influence of alcohol. And a 10-year-old in west Denver miraculously escaped injury this month when he was hit by a car that was speeding down South Irving Street. The driver never stopped. Those are just a few of the most recent high-profile hit and runs."
At present -- the Colorado law can charge the individual - if they can identify that person as the driver of the suspect car - with what is commonly referred to as "Hit and Run."

It is true. A "hitch" in the laws "actually creates an incentive to flee an accident if the driver is drunk"

If an idividual stays at the scene and there are injuries to the victims of the accident... the charge will be Vehicular Assault - a Class 4 felony.

Not only is that charge much more significant than the misdemeanor Hit and Run charge -(if that charge can be proven) - it is a crime that is identified under the law as a "strict liability" cirme - meaning that other than identifying the driver as intoxicated - there is no legal defense to the crime.


H. Michael's Take

Prosecutors often take a very hard line in these cases... seeking prison if they can prove their case. This "no prisoners" approach to prosecuting these cases in the already impossibly harsh political environment for DUI prosecutions has actually made fleeing the scene of a serious DUI accident a "logical alternative" to accepting responsibility for one's actions.

If the public perceived more compassion in these unintended accidents - the fear driven decision to leave the scene would no longer seem to be the "only way out."

To Read more: see the Editorial: End incentive for fleeing scene of a bad accident - The Denver Post http://www.denverpost.com/opinion/ci_18131397#ixzz1OmZC7c69

Posted by H. Michael Steinberg | | Email This Post

June 15, 2011

Colorado District Attorney Has Exposure for Overstepping Her Power and Authority

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A Weld County Colorado prosecutor will face a civil lawsuit for money damages as a result of abusing her power in the prosecution of a college student for publishing a column know as the "Howling Pig".

Deputy District Attorney Susan Knox violated Thomas Mink's constitutional rights in 2003 when the DA approved a search warrant Minks Greeley, Colorado home where Mink lived with his mother.

"Ms. Knox violated Mr. Finks' Fourth Amendment right to be free from unreasonable searches and seizures," said well known and respected Judge Lewis Babcock in his 11 page opinion.

Mink, an English major at the University of Northern Colorado, published the newsletter and website in one of the finest traditions of the First Amendment. Mink's crime? poking fun at a college finance professor.

In his dismissal opinion, Judge Babcock said that Prosecutor's do NOT have unbridled power to intrude on dismissing Knox's claim that her status as a government official meant she was not liable,

Babcock ruled that 'because Mink's activities were satire and protected by the First Amendment, Knox could not have reasonably believed the articles in Mink's publication stated actual facts about Peake (the professor and target of the satire), and she could not have believed that a crime was committed.'

The court limited the DA's power to a good faith exercise of that authority.

H. Michael's Take

This ruling will send shock waves throughout Colorado and the nation. I was a DA for 13 years - and time and again, I witnessed prosecutors lose touch with the kind of power they wield.

Every suspect was a "dirtbag," ever defendant was a liar, every person charged with a crime needed to be punished for their actions no matter what the mitigation or the reasons for their actions.

It became clear to me that the "cloud" of authority DA's carry around them often distorts their thinking and their perception.

This ruling should send a message to them that complete blanket immunity is no longer the case for their actions - they will be held accountable for their decisions.

It is a good thing for the powerful to know there is a limit to their power. HMS

Posted by H. Michael Steinberg | | Email This Post

June 3, 2011

The Changing Face of White Collar Crime - Lengthy Sentence in Identity Theft Case in Colorado

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On June 3, 2011 - a women from Lakewood Colorado learned today she would be sentenced to 20 years in prison for her role in an Identity Theft Ring.

She eceived the 20-year prison sentence for taking part in the theft of more than $100,000,00

Teresa Marie Porter was the leader of the identity theft ring. The invesitgation shouwed that the ring was in the metro area from October 2009 through August.

Sometimes in large scale corruption cases the DA will use a grand jury indicted to iindict - (to charge) - the case. The grand jury has the power to subpoena witnesses and conduct an invesitgation at the direction of the DA. That was done in this case by the Jefferson County Grand Jury.

The Defendant was originally charged 82 felony counts including racketeering, identity theft, theft, criminal impersonation and providing false information to a pawnbroker.

District Court Judge Phil McNulty sentenced Porter to a total of 20 years in prison - (the DA had " capped" the sentence at 48 years.)

H. Michael's Take

In recent years = there has been a dramatic increase in this tyupe of Colorado Identyty theft. The sentences in these case -- because of the imp[act they have on the average citizen - have become increasingly harsh and swift.

This kind of organized "ring" will use stolen personal and financial information, including Social Security numbers, to open credit accounts in jewelry stores. They then can, and in this case, did purchase thousands of dollars of high-end pieces on credit, pawning the property for cash.

The firm of Colorado Criminal Defense Lawyer - H. Michael Steinberg has extensive experience in all categories of Colorado White Collar and Identity Theft Criminal defense

If you've been contacted by the police, be smart, exercise your right to remain silent, and call us at 303-627-7777.

Posted by H. Michael Steinberg | | Email This Post

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