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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

January 11, 2012

Florida Supreme Court Closes the Door on Dog Sniff Search

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In an important case decided recently by the Florida Supreme Court -- the Court held that a dog sniff at the front door of a private residence was an illegal search... thus shutting the door to an expansion of the use of the "dog sniff" tool to invade the privacy of the home of the average citizen.

In Jardines v Florida, the police conducted a warrantless "sniff test" by a drug detection dog at Jardines‟ home and discovered live marijuana plants inside. The trial court granted Jardines‟ motion to suppress the evidence, and the State appealed.

An important point of law from the decision - says it all -

At the very core‟ of the Fourth Amendment „stands the right of a man to retreat
into his own home and there be free from unreasonable governmental intrusion.‟ "

Here is the heart of the decision:

On the scene, the procedure involved multiple police vehicles, multiple law enforcement personnel, including narcotics detectives and other officers, and an experienced dog handler and trained drug detection dog engaged in a vigorous search effort on the front porch of the residence. Tactical law enforcement personnel from various government agencies, both state and federal, were on the scene for surveillance and backup purposes. The entire on-the-scene government activity--i.e., the preparation for the "sniff test," the test itself, and the aftermath, which culminated in the full-blown search of Jardines‟ home--lasted for hours.

The "sniff test" apparently took place in plain view of the general public. There was no anonymity for the resident

The court reasoned that this sniff went too far -- that the dog sniff at the scene of a traffic stop is one thing -- but to conduct a search under these conditions - was a violation of the fourth amendment.

Again - and most importantly - we can see the court's reasoning:

Further, if government agents can conduct a dog "sniff test" at a private residence without any prior evidentiary showing of wrongdoing, there is nothing to prevent the agents from applying the procedure in an arbitrary or discriminatory manner, or based on whim and fancy, at the home of any citizen. Such an open-ended policy invites overbearing and harassing conduct. Accordingly, we conclude that a "sniff test," such as the test that was conducted in the present case, is a substantial government intrusion into the sanctity of the home and constitutes a "search" within the meaning of the Fourth Amendment. As such, it must be preceded by an evidentiary showing of wrongdoing.

Posted by H. Michael Steinberg | | Email This Post

December 14, 2011

2010 Changes to Colorado Criminal Law - Police Must Now Advise You of Your Right To Refuse a Search NOT Based on Probable Cause

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A little known law that was quietly signed by the Governor of Colorado in 2010 requires some attention. Here is how it applies. In the past, if a police officer who has NO evidence that you have committed a crime, asks for your permission to conduct a search of your person or your car, he or she did NOT have to advise you that you have the right to refuse said search.

The new law requires the police officer to advise you that you have the right to refuse the search and he - she must obtain your oral or written consent to the search. Furthermore, this new law is critically important as it counters what I would term "the natural intimidation factor" when a police officer requests - based on no evidence - to search you or your car.

Here is a summary of the new law:

HB 1201: Concerning Duties Related to Peace Officer Contacts

Status: Passed the House (37-28) and Senate (35-0) and signed into law on April 29, 2010. It was made effective April 29, 2010

Description: This new law requires that prior to conducting a consensual search of a person, personal effects, or vehicle a peace officer must get either oral or written consent for the search after advising the person that they may refuse.

This new law does not apply to a valid search incident to a lawful arrest or to a search for which there is a legal basis which includes, but is not limited to, searches in correctional facilities, jails, community corrections facilities, mental health facilities or searches of a person on probation or parole by a probation or parole officer when such searches are a condition of supervision.

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

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 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

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

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