Recently in Police Misconduct Category

August 18, 2013

United States Supreme Court Asked To Decide How Far Police Can Go In Searching Cell Phone At Time Of Arrest

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Cell phones - 91% of us have them. Cell phones are a modern marvel defying most of us to com close to fully understand how they function. They are truly highly complex "mini computers" containing vast amounts of personal information that should remain private and well away from the eyes of law enforcement.

Recently the United States Supreme Court has been asked - in the case of Riley vs California - to set the standard for searches "incident to arrest" involving the seizure - but much more importantly - the search of the contents of cell phones.

A petition to the Supreme Court asks the court to clarify whether - and under what conditions - law enforcement may access the massive amounts of personal information on all of our cell phones without a search warrant.

In Riley - the police in the State of California made an legal arrest and "incident to that arrest" seized a cell phone. Officers searched the contents of the cell phone twice. Officers searched the phone at the scene of the arrest, and then again several hours later, at police headquarters.

Why Is This An Issue?

I submit that the better reasoned authority holds that a search of a cell phone violates the Fourth Amendment unless it is performed with a warrant or under an exception to the warrant requirement such as an exigency otherwise justifying the search.

The accepted reasoning for permitting a warrantless search - to this point - has been what has come to be known as the Fourth Amendment's search-incident-to-arrest doctrine. This doctrine permits the police to search a cell phone whenever the phone is "immediately associated with [the arrestee's] person" at the time of the arrest.

The Chimel Test

Until now the legal framework for analysis of the "search-incident-to-arrest exception" to the Fourth Amendment warrant requirement was based on the vase of Chimel v. California, 395 U.S. 752 (1969). In Chimel the United States Supreme Court held that in order to "seize weapons and to prevent the destruction of evidence," the Fourth Amendment permits police officers to search "the arrestee's person" and "the area into which an arrestee might reach" while being arrested.

Since Chimel - many other cases have broadened this holding including the case of United States v. Robinson, 414 U.S. 218 (1973). In Robinson a search of a crumpled cigarette package found on the defendant's person during his arrest - which could not have contained a weapon of course - was lawful and such searches do not depend on "the probability in a particular arrest situation that weapons or evidence would in fact be found" and that "[i]t is the fact of the lawful arrest which establishes the authority to search."

Enter Cell Phones

The Supreme Court's search-incident-to- arrest jurisprudence" was based on a thinking that is now decades old and well before the digital era. Today - the genius of cell phones provide access to a vast amounts of highly personal data, and these devices are far from the physical containers addressed on the post Chimel cases. Today individuals carry exponentially larger quantities of personal information on their person than they ever could before the creation of cell phones.

At the time of the traditional search incident to arrest -eith the push of a button - private and confidential information such as medical records, banking activity, and work-related emails become assessable.

Millions of Arrests And Searches Incident To


In 2010 alone, there were nearly 11.5 million total adult arrests. Most of these arrests were based on the most minor of legal infractions such as a violation of a traffic code offense. Nearly all of these arrests - the arresstee carried a cell phone. An answer to this question - can the police search a cell phone at the time of a routine arrest..is critical.

In Colorado - the answer is ambiguous at best. Our Colorado courts have split the reasoning in a way that satisfies no one. Here is a LINK to a recently written article I drafted on this subject.

The Search of Cell Phones In Colorado At The Time Of Arrest

H. Michael's Take

The Fourth Amendment Prohibits Searching The Digital Contents Of A Cell Phone Incident To Arrest.

The Fourth Amendment establishes 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 . . . ."

While our forefathers could never have dreamed of the technical advances we have seen in the last two centuries - we are charged with trying to understand how they would have viewed such advances. When a cell phone is securely in police control the Chimel exception should not apply.

The reasoning makes no sense. The privacy issues that arise from the search of a cell phone make makes such a search - absent a warrant unreasonable. The search-incident-to-arrest exception requires a search to be "'reasonably limited' by the 'need to seize weapons' and 'to prevent the destruction of evidence.'"

In the recent decision of Arizona v. Gant the United States Supreme Court said this:

"If there is no possibility" that the arrestee could gain access to a weapon or destroy evidence, "both justifications for the search-incident-to-arrest exception are absent and the rule does not apply." Arizona v. Gant, (2009).

At the moment police officers separate an arrestee from his phone, there is no longer any risk that he might destroy digital evidence on the phone. The officer - at that moment - has three options to preserve the contents of the phone and apply for a search warrant:

1. He can turn off the phone.
2. He can put it in airplane mode.
3. Or he can place it in an inexpensive bag that prevents any signals from entering or escaping.

The measure of the constitutionality of a governmental search has always been 'reasonableness.'"

The 2001 United States Supreme Court case of United States v Knights ends the issue - at least for me - it said that the reasonableness of a search is determined 'by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate government interests.'"

June 19, 2013

United States Supreme Court Allows Introduction Of Pre-Arrest - Pre- Custodial Silence - Miranda Does Not Apply

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On June 17, 2013 the United States Supreme Court - in Salinas v. Texas - took a step back from the protections accorded by the Fifth Amendment's Right To Remain Silent.

The Facts of Salinas:

Salinas - before being placed into custody - answered questions posed by a police officer in a homicide investigation. At the time he answered the questions he was not under arrest. Among the questions was a comment by the officer about the potential ballistics match as regards casings found at the scene.

Salinas
answered the officer's questions to that point but "balked" silently at the ballistics comment. While he did answer almost all of the officers' questions, he refused to answer or even respond to the police officers question - regarding whether the shotgun casings found at the scene would match his gun. Instead - his reaction - one of nervousness - was used to persuade the jury he was guilty.

He was convicted and is serving a 22 year sentence.

The Argument On Appeal

Salinas appealed and argued that his silent reaction was not speech but rather protected silence under the 5th Amendment. Which guarantees that '[n]o person . . . shall be compelled in any criminal case to be a witness against himself.'"

The Supreme Court Says NO Protection For "Pre-Custodial " Silence

The Court held that the use of Mr. Salinas's silence at the scene as an inference of his guilt at trial did not violate his 5th Amendment rights.

The new rule overturns a case that was almost 50 years old - Griffin v. California. That case was overturned. The old rule was that neither the prosecution nor the trial court may comment upon the silence of an accused a as an inference of guilt.

Today - after Salinas - remaining silent when the police ask damaging questions - is not the same as claiming a right to remain silent. Prosecutors may use a suspects silence against the suspect at the trial. The rule now requires an affirmative claim to the Fifth Amendment's right to remain silent. Simply remaining silent - during an otherwise voluntary exchange with the police is now - not enough.

"A witness's constitutional right to refuse to answer questions depends on his reasons for doing so, and courts need to know those reasons to evaluate the merits of a Fifth Amendment claim,"

In that one statement the Supreme Court rejected Salinas' argument that, because suspects do not know the law, their silence should be understood as a Fifth Amendment plea.

Colorado Criminal Defense Lawyer - H. Michael Steinberg's Take On The Case:

The dissent in the case makes the most sense to me. Justices Breyer, Bader Ginsburg, Elena Kagan, and Sonia Sotomayor joined together to argue that the rule should be that courts should examine all of the specific circumstances of an individual's encounter with police to decide whether, in fact, that person's silence was an attempt to claim the Fifth Amendment right.

Miranda Rights Not Implicated

The famous Miranda case involved a man held against his will at the police station. This case involved a man who had voluntarily gone to a police station where he was questioned by the police. The distinction is important. In Salinas - the Court held that since Salinas while in the police station was not under arrest or otherwise in custody, Miranda was not implicated.

Not a good day for the preservation of our constitutional rights....

April 26, 2013

Colorado Miranda Rights Law - AfterThe Boston Bombing - What Is The Law In Colorado On Miranda?

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By Colorado Criminal Defense Lawyer - Attorney - Colorado Miranda Rights Law - H. Michael Steinberg


Colorado Miranda Rights Law is sometimes not only internally complex but is ever evolving for law enforcement since the original Miranda decision so many years ago.

Understanding the application of the Miranda decision - the imposition of the advisement and issues surrounding the waiver of your Miranda rights requires a close look at the law and what constitutes a valid waiver of those rights.

In 2009 - the Colorado Supreme Court issues its ruling in People v. Clayton. The rule was stated in that decision - clearly - if a waiver of Miranda is knowing, intelligent, and voluntary, then it is then valid.

The Facts Of Clayton

The relevant facts are that Clayton was advised on the way to the station of his Miranda rights after he had been arrested. He waived those rights - blurted out a statement not in response to a questions and was asked to wait until they all arrived at the police station before making his statement.

At the station, Clayton met Detective Losasso, who again advised him again of his rights, reading them from the standard Miranda warnings form used by most police officers.

After Clayton reiterated that he understood his rights, Losasso presented a written copy of the Miranda rights for Clayton to sign as a waiver. Clayton moved to sign the waiver but then hesitated, asking, "what do you mean talk to us?" and further stated, "I mean, I have no problem, it's just, you said this could be used against me in court." The Detective responded that this was his opportunity to "tell his side of the story."

Clayton then asked to call his mother to ask her if he should sign yes or no. The Detective said there was no telephone and that the decision of whether to waive his rights and give a statement was "up to you but, you know, if you don't want to sign it, that's your right."

Clayton then chose to sign the waiver and told his side of the story - essentially incriminating himself in the felony charge. While he claimed self defense - his version was not believed by the jury and he was convicted.

Colorado Miranda Rights Law - What Is An Adequate Advisement of Your Miranda Rights?

and:

When Is A Waiver Of Your Miranda Rights Involuntary and the Product of Police or Other Government Coercion?

Colorado Miranda Rights Law - The Restatement of the Law

Analysis of the validity of a Miranda waiver must begin with "a two-part step analysis."

First, the judge must determine whether the defendant was adequately warned of his privilege against self- incrimination and his right to counsel;

and

Second, the judge must determine whether the defendant knowingly, validly, and voluntarily waived these rights.

Important Point - The police who are doing the questioning have no obligation to inform a suspect of the possible subjects of an interrogation or the facts and circumstances which may be pertinent to his or her decision to talk to police.

The Waiver - A waiver of your Miranda rights is involuntary only if the police induce the waiver through actual coercive conduct

A waiver of Miranda rights resulting in a confession or inculpatory statement is considered to be involuntary only if coercive governmental conduct, whether physical or psychological, played a significant role in inducing the defendant to make the confession or statement.

What Does Involuntary Mean?

A suspects decision is not involuntary because it is unwise, or may prove unwise in hindsight.

Miranda was never intended to help a suspect make a good decision - it only protects defendants against government coercion leading them to surrender rights that are protected by the Fifth Amendment; it goes no further than that."

What About The Phone Call?

While Colorado law CRS §16-3-402 creates a statutory right to call one's family at the earliest possible time after an arrest, that rule is NOT constitutional. A violation of that rule does not create the right to have evidence suppressed as would certain constitutional violations - such as a Miranda violation.

A waiver need only be knowing, intelligent, and voluntary, - if it is - it is valid. Even if Clayton was denied his right to a phone call - that is not the kind of police conduct that would render his waiver involuntary. The "social pressure to cooperate with police" is not the kind of coercion that violates the Miranda rule.

Finally - the extreme nature of the suppression of evidence is not within the judge's power to punish the one phone call rule.

Colorado Miranda Rights Law

February 9, 2012

Accused In Colorado Sex Crime Case Acquitted Based In Large Part On Poor Police Investigation

Former Greeley police officer Daniel Shepherd was found not guilty by a Colorado jury on February 8, 2012.

What makes this case so important - is that the jury looked at the "he said - she said" nature of the allegations - found both sides had lied or covered up - so they did what jurys are supposed to do - they focused on the absence of forensic evidence that would have pointed the way to the truth. This time - because of the incompetence of the police - there was none

In the words of one juror - who clearly got it right:

All we had to go on was their testimony," Sanchez said. "And we couldn't believe either of their testimonies, with her inconsistencies and previous claims, and he lied throughout most of the (investigation).

" But our job is guilty versus not guilty, not guilty versus innocent."

According to the Greeley Tribune who tracked the story - the investigation leading to the trial and acquittal - took eleven months "Eleven months of hell."

The alleged victim had accused Shepard of unlawful sexual contact of a then 19-year-old woman, after he ordered her to leave a party March 13, 2011.

H. Michael's Take

The jury system worked. When left with pure contradictory testimony - the jury placed the burden of proof squarely where it belonged - on the state of Colorado

As one juror put it "All we had to go on was their testimony,...and we couldn't believe either of their testimonies, with her inconsistencies and previous claims, and he lied throughout most of the (investigation)."

Evidence that could have conclusively proven the innocence of the accused - was never preserved - the alleged victim's clothing was never collected and tested - DNA from and other possible evidence that could have been extracted from a SANE examination and rape kit - was never obtained.

The Greeley police department, in not collecting the relevant evidence - denied the accused the benefit of evidence that could have led the District Attorney to dismiss the charges.

"Clearly, there were errors made at the start of the case, and that made the detectives work harder," said the Greeley Police Department . "This is one of those investigations where I'd say, while very good work was done, it certainly wasn't perfect."

This is the kind of case that should be studied by all Colorado Criminal Defense Lawyers.

This is the kind of case that restores one's faith in the criminal justice system and in the good common sense of the jury - the great equalizer.

February 2, 2012

GPS Tracking Shut Down By Supremes

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.

December 26, 2011

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


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." "

August 19, 2011

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


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.

August 10, 2011

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

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."


October 23, 2010

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

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...

August 6, 2010

The Shame of Winning at All Costs

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