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February 2, 2012

GPS Tracking Shut Down By Supremes

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In a unanimous but confusing decision issued by the United States Supreme Court last week - the justices held that a 28 day use of a GPS tracking device paced on a suspects vehicle without the benefit of a search warrant - is unconsitutional.

The confusing part? Scalia did not hold that a warrant was always necessary. Walter Dellinger, who represented the Defendant Antoine Jones at the Supreme Court, said the decision means that any use of GPS technology by law enforcement without a warrant "would be a risky undertaking."

Justice Antonin Scalia wrote majority opinion stating that it was the attachment of the device that violated the Fourth Amendment's protection against unreasonable searches and seizures.

"We hold that the government's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a 'search,' " Scalia wrote.

This issue now is the future -- the Court limited it's holding to the fact of the case and refused to write a clear rule that law enforcement could use for guidance under different circumstances.

The justices - raising clear questions of other technologies equally intrusive wrote in separate opinions, of the sweeping changes technology has brought to society that do not involve government intrusions.

"In the course of carrying out mundane tasks," Sotomayor wrote, Americans disclose the phone numbers they dial, the URLs they visit, "the books, groceries and medications they purchase."

Alito wrote of toll booths that record a motorist's travels, cars that come ready to broadcast their locations and 322 million wireless devices in use nationally.

H. Michael's Take

What is most certainly going to happen at this point is that the States -- picking up on the Court's reasoning will most likely find that the long term use of survelliance devices - of any kind - are suspect - and that the actions of law enforcement in tracking citizens using these kinds of technologies will be presumed unconstitutional.

Posted by H. Michael Steinberg | | Email This Post

December 26, 2011

Dismissed DUIs in Colorado Underscore Need to Investigate Lead Police Officer's Credibility

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Recently in Mesa County Colorado on the Western slope of Colorado, the District Attorney's office was forced to dismiss eight criminal cases in light of credibility questions surrounding a former Colorado State Trooper.

Because of the impact of the lead officer's testimony in a DUI caae, the District Attorney's officer is reviewing hundreds more cases that are expected to be dropped in the coming weeks.

The tropper - Donald Moseman, stepped down from the State Troopers Office in December after a departmental investigation.

The cases that have been dismissed are all drunk driving misdemeanor cases that had Moseman as the sole witness for the prosecution but additional cases in additional areas are also subject to the same scrutin .

The result of this action has led to a demand by Colorado Defense Lawyers in the area to turn over the contents of Moseman's internal affairs investigation, and it is expected that a judge will compel the department to turn over those records so that the judge could perform a private review to determine if there was material in that file that is relevant to these cases

This kind of material is called Brady Material and is considered directly exculpatory or potentially exculpatory evidence therefore the District Attorney is required by Colorado Law to turn over material bearing on the credibility of their primary witness.

The Grand Junction Sentinel reproted that:

"A letter dated Dec. 5 that was sent to Hautzinger by State Patrol Major Barry Bratt said an internal investigation found Moseman "displayed bias" in cases involving drivers suspected of being impaired by drugs or alcohol. The letter said Moseman submitted reports that "were a combination of reports from prior arrests and the current arrest, resulting in reports which contained wrong or conflicting information." "

Posted by H. Michael Steinberg | | Email This Post

August 19, 2011

New Law In Colorado Compels Police to Advise You of Right to Refuse Search of You or Your Vehicle

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Just a quick FYI and a reminder. A new law passed in Colorado requires the police - in the absence of a legal right to search your vehicle - prior to conducting a consensual search of your effects or your vehicle of a person - to inform the person that they are being asked to voluntarily consent to a search and that they have the right to refuse.

The targeted "searchee" must provide oral or written consent.

Again this requirement does not apply to searches conducted under other valid exceptions to the wsearch arrant requirement.

Posted by H. Michael Steinberg | | Email This Post

August 10, 2011

The So Called "Secure Communities" Program Has Unintended Consequences for the Victims of Illegal Domestic Violence Arrests

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A relatively new Department of Homeland Security's (DHS) Program called "Secure Communities" is having an unintended impact and should be stopped.

Several states have sought to withdraw from the program because the program "traps" unintended victims of false domestic violence arrests in its grasp.

The Program compels the recording of the fingerprints of everyone booked into local police custody -- even if they have been the subject of illegal or wrongful arrests such is often the case in Colorado for misdemeanor domestic violence charges.

In many of these cases the police are compelled to dismiss the charges - however the fingerprints are still forwarded to DHS to check the falsely arrested person's immigration status.

Many times the VICTIMS of domestic violence are wrongfully arrested by the police - who cannot decide whom to charge. Often the wrong person is arrested leaving it up to the DA to decide what to do with the case.

"One such person was Isaura Garcia is a 20-year-old mother living in Los Angeles who endured three years of domestic violence before calling 911, seeking protection from her abusive boyfriend. After the police arrived, they questioned her about her immigration status, then arrested her and sent her fingerprints to federal immigration authorities. Stunned, Isaura fainted. At the hospital, a doctor found bruises on her body and identified her as a victim of domestic violence, and no charges were filed against her."

Simply because she had been arrested, Isaura's fingerprints were submitted to immigration officials and she was placed into deportation proceedings. Immigration and Customs Enforcement (ICE) only terminated her proceedings after the ACLU of Southern California drew public attention to her case.

The program had fundamentally good goals when it was started in 2008, Secure Communities was billed as program aimed at deporting "serious criminal offenders."

Now, four years in, ICE's own statistics show this is far from the truth. The majority of people deported under the program since its inception -- 60 percent -- have had only misdemeanor convictions (such as traffic violations or municipal code violations), or have done nothing wrong at all.

There has been widespread opposition to the program from across the political spectrum.

The result has been a built in disincentive to contact the police by a population that needs to build more trust with law enforcement. The program - as one blogger put it "undermines public safety by deterring immigrants from contacting local police when they are victims or witnesses of crime.

In short - this program - like many other Governmental programs meant well - and has - as the most recent television program puts - "Broke Bad."


Posted by H. Michael Steinberg | | Email This Post

October 23, 2010

Police Show Complete Ignorance of 4th Amendment Search and Seizure Protections - Result? Death... and Indictments

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A grand jury in Mesa County has indicted two Colorado state troopers in the fatal shooting of a man in his home earlier this summer.

Troopers Ivan Lawyer and Kirk Firko were indicted Thursday on counts of criminal trespass and criminal mischief. Lawyer was additionally indicted on counts of criminally negligent homicide, second-degree assault, illegal discharge of a firearm and prohibited use of a weapon.

The shooting happened after troopers were called to an accident at 7:40 p.m. July 20, near the intersection of Glade Park Road and South Broadway in Grand Junction.

According to the indictment, callers had reported that a pickup pulling a trailer and a Jet Ski had crashed into a yard and three intoxicated individuals were trying to leave.

When troopers arrived, the truck, trailer and Jet Ski were parked a short distance away.

"Both officers believed time was of the essence to secure a chemical test for purposes of securing evidence for driving while under the influence," according to the indictment.

Lawyer and Firko knocked on the door of the suspects house but no one answered. Lawyer looked through the window, with a flashlight, and was able to see a man in the home who matched the description of the driver of the truck.

According to the indictment, the man in the home, Jason Kemp, told the troopers that they could not enter without a warrant.

As Firko attempted to detain two men who had escaped through a back door, Lawyer tried to break open the front door. The indictment states that Lawyer was afraid Kemp had already had time to grab a weapon.

With his gun drawn, Lawyer kicked open the door. As Lawyer looked in the door he saw "the darkness of Kemp" standing along the door, and saw Kemp "lift and extend his arm upward as if he was pointing a gun," but could not actually see Kemp's hands.

Lawyer said he saw a flash and believed he himself had been shot, but then realized he had shot Kemp.The single gunshot wound to the chest killed Kemp, despite Lawyer's efforts to perform CPR. Kemp was not armed.

H. Michael's Take:

This case - more than any other I have read about recently - points up the poor training of some of the police officers in Colorado. The constitutional violations in this case are outrageous and I am certain a civil law suit will follow soon. The needless death in an investigation of what amounts to drunk driving and some minor property damage symbolizes the need for officers to understand when breaking in doors is justified and when an arrest and search warrant is required.

Read more about the rights of the police to enter your home on my websites...

Posted by H. Michael Steinberg | | Email This Post

August 6, 2010

The Shame of Winning at All Costs

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Colorado detective charged with perjury

DENVER -- Fort Collins Police Lt. James Broderick, the lead detective in the Tim Masters murder investigation, was on Wednesday indicted by the Larimer County Grand Jury on eight counts of first-degree perjury, The Denver Post reports.

Broderick is accused of concealing evidence that would have helped Masters at his 1998 trial, at which he was found guilty of the 1987 murder of Peggy Hettrick. The conviction was overturned in 2008 when DNA evidence pointed to other suspects.

Weld County DA Ken Buck is handling the case against Broderick in his role as special prosecutor for Larimer County

Weld County DA Ken Buck is handling the case against Broderick in his role as special prosecutor for Larimer County.

Tim Masters was sentenced to life in prison after being convicted for murder - after spending nine years in prison, he has been exonerated by DNA evidence and the detective from his case - Lt. Jim Broderick - is being prosecuted for perjury:

Masters, who served nine years of a life sentence after his 1998 arrest in Peggy Hettrick's murder, has said he hopes Fort Collins and Larimer County will finally acknowledge that he was railroaded.

The city and county have paid Masters a combined $10 million to settle a civil rights lawsuit related to the conviction, but they painted the payouts as business decisions rather than reparations.

"I am anxious to see if the leadership in Fort Collins will finally publicly admit my incarceration was a mistake or if they will continue this charade that their people did nothing wrong," Masters said in a statement provided by his attorneys. . . .

. . . Among the charges in the indictment are that Broderick intentionally lied about an FBI profile used to support Masters' arrest, shoeprints found at the crime scene, a fellow investigator's crime scene observations and his own degree of participation in the case.

The prosecutors that put Tim in prison have since been rewarded by being elected as judges - Jolene Blair and Terry Gilmore.

Although the city and county have paid out $10 million, they still admit no wrongdoing.

H. Michael's Take:

It should come as no surprise that a police officer would lie to obtain a win. Those of us on the inside of the system -- myself as a former career DA (prosecutor) and the entire defense bar, understand the mindset of "winning at all costs" along with the pressures on young prosecutors to earn their stripes. This case is the tip of an enormous iceberg whose size and depth will most likely never be wholly revealed.

What the case does, however, is highlight deficiencies in the criminal justice system that lead - every day- to injustice. My compliments to my old friend David Lane.. a true champion of due process ..

Here is the Colorado Law on the crime of perjury:

Perjury in the first degree consists of making a materially false statement under oath in the course of an official proceeding. While perjury in the second degree involves a false statement, it does not involve an official proceeding. False swearing is a catch-all for any materially false statement that does not fall under perjury in the first degree or perjury in the second degree. Perjury during official proceedings is most commonly associated with the sworn testimony of a witness in court.

Perjury in the first degree is a Class 4 felony, perjury in the second degree is a Class 1 misdemeanor, and false swearing is a Class 1 petty offense H

Posted by H. Michael Steinberg | | Email This Post

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