The testimony usually goes like this – 

"Now officer, as you observed the defendant’s driving that night, did you see anything that caused you to believe he might be operating under the influence of some intoxicant?"

"I did.  He was weaving all over the place, crossed the yellow line and the white lines, and almost hit another officer who happened to be nearby."

And you know what happens next – that "testimony" is taken as the God’s honest truth and the resulting confession and/or seized contraband is coming in as evidence against the defendant.  Unless, that is, there is some other evidence that proves the officer’s stop and resulting seizures were not as he or she has testified.  Imagine a priest in the back seat, who can come in and testify that he was reciting the rosary at the time and the car traveled in a perfect line and the poor officer is just mistaken.  Could happen.  And if it does – is the evidence (confessions, seized dope, whatever) admissible?

The usual answer is that evidence seized as a result of an illegal search is excluded, and cannot be used at trial. That general rule is already subject to more exceptions than there are holes on a golf course, but last month’s Supreme Court ruling in Herring vs. US has some arguing that the exclusionary rule may be on its last legs.  May be – but it is not gone yet.

The point of excluding evidence that is not seized lawfully is to stop the police from disregarding the constitutional protections afforded an accused person.  When I represent police officers charged with crimes they KNOW the law.  They understand the need to have a warrant based on probable cause or circumstances that take the case outside the warrant requirement.  They get it – that constitution thing is important!  So now the Supremes have weighed in and taken another look at the exclusionary rule and its 100 years of operation in the courts.  In it’s summary form here is what happened in Herring:

Officers in Coffee County arrested petitioner Herring based on a warrant listed in neighboring Dale County’s database. A search incident to that arrest yielded drugs and a gun. It was then revealed that the warrant had been recalled months earlier, though this information had never been entered into the database. Herring was indicted on federal gun and drug possession charges and moved to suppress the evidence on the ground that his initial arrest had been illegal. Assuming that there was a Fourth Amendment violation, the District Court concluded that the exclusionary rule did not apply and denied the motion to suppress. The Eleventh Circuit affirmed, finding that the arresting officers were innocent of any wrongdoing, and that Dale County’s failure to update the records was merely negligent. The court therefore concluded that the benefit of suppression would be marginal or nonexistent and that the evidence was admissible under the good-faith rule of United States v. Leon, 468 U. S. 897.

So the "good faith" exception saves the day, no particular benefit to be derived by Herring or society as a whole because the authorities were only negligent.  Notably, negligence is NOT a basis for a civil rights case generally, so in that sense the ruling is consistent with civil law.  But is this the beginning of the end for the exclusionary rule? Chief Justice Roberts advocated the elimination of the rule when he worked for President Reagan as a staff lawyer.  We likely know where he stands – get rid of it!  It’s a waste of time and not fair.  Guilty men have gone free!  

First – it almost never happens that way.  The number of times that guilty men or women have been set free by  the exclusionary rule is simply not that big. Has the rule helped to reduce constitutional violations by police officers?  I am not sure, but most in the criminal arena will answer depending on their position.  As sworn defense types we recite the party line- "of course it has.  Without that rule the cops would run amok!"  OK – maybe not.

So is the rule on the way out or is this case not really that important?  After all, the decision really rests on an exception – good faith.

The decision was 5 – 4, so it may be that the exclusionary rule, as a federal requirement, is in real jeopardy, if something happens to one of the four "liberal" justices.  Remember that Kennedy joined the majority – well – whichever side he is on is almost always the majority.  Most states have statutes and decisions applying the rule based on state law, so each state might take some time to decide the issue if the Supremes ever get rid of the rule.  Remember – the safest course IF YOU OR A LOVED ONE OR A FRIEND OR SOME GUY YOU MET ON THE STREET is being asked about criminal conduct – is to follow Miranda – say nothing.  And ask to see the warrant before they search.

 So the last time we talked I told you to keep silent, but what if you talked? What if you told the nice detective that you bought the drugs from your source in El Paso, who just happens to take delivery across the Rio Grande from "Phillipe" and his brother.  Well my friend – you’ve got trouble.  Trouble. With a capital T and that rhymes with G and that stands for GUILTY!  Usually. Suppose however that the cops went "Slumdog Millionaire" on you before you confessed, having hooked you up to a 12-volt and leaving you all shaking and unconscious.  What then?

The first rule in confessions is they must be freely and voluntarily given. That’s what the constitutions (state and federal) require.  Now I have never seen the car battery trick except in the movies, but I have seen plenty of bruises and heard plenty of stories about coercion.  Not all are true, and if the officer promises to help you and take your story to the prosecutor, that is not coercion. Usually we are talking beatings, sleep deprivation, yelling and screaming, perhaps the "rubber hose," before a statement is coercive enough to get it bounced here.  Promises and inducements may do it, but not usually.  And the  cops can lie to you to get you to confess – no problem there.  Despite what you may hear, not many statements are thrown out for this reason.

The second rule is that a confession may be excluded from evidence at trial if you were not read your Miranda rights BEFORE you told them you stole the car or sold the drugs – BUT ONLY if you are in custody and subject to interrogation.  Custody is usually pretty easy – if you cannot leave, whether they have "arrested" you or not, you are in custody.  Favorite custodial settings include the police station, investigation room, police car or down on your knees with an officer over your head yelling that you may not move.  Now, what is interrogation? Questioning intended to elicit an incriminating response.  Like – "Leroy, where did you get all that heroin?" Seriously. 

This short explanation is not intended to cover all the possibilities, as there are EXCEPTIONS to the rules that exclude some statements.

So what do you do when you have answered the questions? Get a good lawyer.  He or she can review what happened, give you advice, file motions to suppress and maybe keep the statements out of evidence.  Not every confession gets into evidence, but it is so much easier for the lawyer if you simply do not talk.

It is early on a Sunday morning and I am in my office working.  Sometimes this happens – I wake up and after fifteen or twenty minutes I know that I am not going back to sleep, so off I go to do a little work. Today I am listening to a tape recorded "interview" by a detective.  The suspect is charged with a sex crime.  The officer has been nice and comforting along the way – taking his time to eke information out of the defendant – and in the end the defendant has sealed his fate.  He has told the officer that he fell in love with a minor, and that of course led to sex, and that will lead ultimately to a criminal case.  Sex crimes are in the news here lately, as a prominent local business man is currently on trial for having a sex party with two minors.  I am not going to talk about his case – I did that under oath as a witness last week – but the question of just when it is permitted to have sex with a minor is frequently one I deal with.  The answer is – drum roll please – NEVER!  That’s right friends and neighbors, not ever.

The law in Idaho FORBIDS a minor  from consenting to sexual contact.  Simply stated: a minor (someone under eighteen) cannot legally consent to any sexual contact.  Idaho Code § 18-1508 prohibits "lewd conduct" with a minor under 16 years of  age.  Penalty – LIFE.  And truly they mean it.  You may not go to prison for life (you might), but your life will forever be changed if convicted.  In addition to prison, sex offender treatment, victim restitution and lawyers fees, there is also a requirement that you REGISTER as a sex offender under Idaho Code § 18-8301 et. seq.  If the victim of the crime is 16 or 17, it is still a crime if you (as the defendant) are more than five (5) years older than the victim (Idaho Code § 18-1508A), and the maximum term of imprisonment is twenty-five (25) years.

So if you are being investigated for any sex crime remember that the investigators are playing for keeps.  Here are my top three rules if you are under investigation for any crime:

1.  Guilty or innocent you cannot talk your way out of the investigation, so shut up!  Remember that little "you have the right to remain silent" talk BEFORE the nice officer gets you the coffee.  Sure, you may be guilty and there may be a time to confess, but don’t do so at the station to the officer who says he just wants to "get your side" so it can be included in his report to the prosecutor.  WAIT. Breathe deeply and tell him you do not want to make a statement.  There will be plenty of time to spill your guts later.

2.  The prosecutor is not your friend.  I know prosecutors, and like many of them. They are almost always believers in what they are doing, sometimes to a fault. The same is true of most defense lawyers.  Heck, my daughter is a prosecutor.  But as one of my clients says, prosecutors are just cops with nicer suits.  They are there as the state’s lawyer in a case in which your liberty is very much at risk. Do not expect a break from the prosecutors.  They may decide that you are a nice person but that will not be enough to  convince them to "overlook" your indiscretion and dismiss the case.

3.  You know that money you saved for a rainy day? Get it out and buy the best lawyer you can afford because "it’s pouring" outside.  Again this week I had the call from a young woman who is looking for an appellate lawyer because her husband is on his way to the big house.  Who was his lawyer, I ask. He had a public defender, she says. "We decided to wait and see how the trial went before spending our own money." Bad call. That public defender may have been great, but he also may have had 60 – 80 cases he was managing.  Money buys time – which is why I am here at 6:00 am on a Sunday morning.  Time is the difference between winning and losing, sometimes. Sometimes there is nothing the best lawyers can do to get you acquitted.  For example – if you are guilty of doing whatever they are investigating. But your money can buy that lawyer’s time and effort to review the documents, learn the case, get to know you and your life and convey "you" to a judge or jury.  I may not be the right lawyer for your case, but somewhere there is a lawyer who will work for you – maybe just to lessen the time you face – hire the best lawyer you can afford.

There you have it – back in the saddle again and now it’s time to get back to work.  Next time – what do we do about the confession?

 So it’s time to look back at the past year or so and consider how our clients did when they pushed their cases to trial.  The names have been changed to protect … you know the drill.  Simple pleas without reductions are not included.

State vs KA – Lewd Acts with minor under 15 dismissed, pled guilty to child endangerment. OK – not a straight up win in the "NOT GUILTY" sense, but our client will not have to register as a sex offender, and should be able to get this case further reduced after serving his probationary time.

State vs WA – domestic violence dismissed, misdemeanor battery charged and client entered the domestic violence court. 

State vs MR – NOT GUILTY – aggravated battery.

State vs FA – NOT GUILTY – medicaid fraud.

State vs CL – MURDER charges DISMISSED at prelim hearing, case proceeded to trial on involuntary manslaughter. Client found guilty of involuntary manslaughter and sentenced to 120 days as condition of probation.

US vs PK – NOT GUILTY of conspiracy to traffick in counterfeit goods, but guilty of selling counterfeit goods (t-shirts). Client spent 30 days in confinement as condition of his probation.

State vs DW – Client found NOT GUILTY of Manslaughter.  The charge went to trial after the court DISMISSED the MURDER charges initially brought by the state.

State vs CS – Felony DUI case proceeded to trial, client had BAC of .24 / .26 (ouch!). Tough case for us but client wanted his day in court, found guilty.

State vs MA – NOT GUILTY of malicious injury to property.

US vs EO/JO – cases not indicted, alleged real estate and banking fraud.  Imagine this – we actually had one of them give testimony before a federal grand jury!

Over all, not a bad year. Every case is different, so if you want to discuss your case, give me a call.

J Taylor writes: "I picked your site because I want a good unbiased answer on referrals and/or help."

Thanks for the vote of confidence J Taylor. Part of the idea behind this site is just that – if we can’t handle your case we may be able to point you in the direction you need to find the right lawyer. All of this reminds me of something my Dad once told me – you cannot possibly know all the law! It’s true. I do not think any lawyer can really be competent in every area. In our own area of the state there are lawyers who, until recently claimed that they were the leading authorities on everything injury. You know the ads – "bit by a dog, hit by a truck, run over by a speeding drunk driver? You’re in luck! Its the litigation lottery and you’re our next contestant!" Last night I saw their television advertisement and it turns out that they have expanded into bankruptcy and criminal defense. Criminal defense?! I have never seen any of these lawyers in COURT. You remember COURT don’t you? Where real trial lawyers work? Sorry about the rant but this is crazy – lawyer advertising is largely a huge scam. Need a good lawyer for your case? Go back and read my post on the Five Questions You MUST Ask Before Signing That Retainer. And in the mean time, J Taylor – your answer is coming by email.

 So here we go again – another Case o’ the Week from the Ninth Circuit Blog deserves our attention. Headlines: Prosecutor’s Mis-statements Result in Overturned Death Penalty.  But not here, in Idaho. The case is out of Nevada, and the issue was whether statements made by the prosecutors in voir dire and sentencing violated the Defendant’s 6th and 14th amendment due process rights. Apparently the prosecutors told jurors that even if they gave the Defendant a "life without the possibility of parole" sentence, he might still be released. Survey says – do it all over again and don’t say stupid stuff like that again! Does this mean that Mr. Sechrest, the convicted killer, is going free? Not hardly! It simply means that the State must re-sentence him. Could he again be sentenced to death? YES. But that’s the thing about due process – it has to have some meat on that bone to keep the playing field something close to level.  You can find out more about the Sechrest case here where the decision is available for your review. 

What does this have to do with your case? Everything! You have the right to a fair trial. If that trial is not fair, if the government does not play by the rules, an appellate court may be called upon to decide whether you received the "process" you were "due." But by far the best message I can give you if charged with a crime – get the best lawyer you can afford. Your life and liberty hang in the balance. Check out our prior posts on questions to ask the attorney you are thinking of hiring by searching under the category Assistance of Counsel, and call me if you need help finding just the right lawyer for your case. It may be me – or it may not. Either way I am happy to talk to you.

 There is news today out of Utah that five Blackwater Security Guards have been charged in the firefight that left 14 Iraqis dead and others wounded in a 2007 Baghdad attack. They have been ordered to appear in Washington in January, where they will enter pleas of not guilty. As a former JAGC officer, I get the need to hold accountable those responsible for war crimes, but this is wrong. These Security Guards are all former military service members who were offered more money to fight as mercenaries in Iraq. They likely made ten times as much money to do the same work, but this time they did so without the benefit of the law of war. And who decided that we should fight the Iraq war by proxie? The same leaders who have lacked the will to put enough military service members in the field to do the job. Ranting? OK, a little – but I have been contacted by a former Blackwater Security Guard (not yet indicted) and I have empathy for their plight. They were there to provide security – a job that is ordinarily reserved for military police. The government now has left these men hanging – and charged them with crimes. I say support them.  Got a different opinion (no matter how wrong)? Let’s hear it.

 Just how busy are Idaho’s law enforcement officers this time of the year?  As my Dad used to say, "busier than a one-legged man at a butt kickin’ contest." The Idaho Statesman reports that Idaho DUI arrests have doubled over the past five years, the average number of arrests has risen to around 600 per year, and of those, half will be repeat offenders. So let’s talk about what you should do if you are stopped and asked to take the breathalyzer. If you refuse the breath test there will not be a "record" of your BAC level, which might make it more difficult to convict you in a criminal trial, but it will also result in the Department of Transportation suspending your license, absolutely (as in no driving at all) for a year. That year runs in addition (or consecutive) to any suspension imposed by the court in a criminal case, if one is brought. And then there is the mindset that anyone who refuses is likely guilty. Jurors always consider your refusal, even if they tell your lawyer they will not. If you do take the breathalyzer test, there are consequences too – most importantly – there will be some record that can be used as evidence against you at trial – no matter what the BAC level actually is. If you blow above .08 DOT will suspend your license for 90 days, the first 30 absolute. And of course at trial the prosecutor will have a "per se" case, that is a case in which the proof of a BAC above .08 violates the law, leaving you to attack the BAC, the Breathalyzer and perhaps the way the sample was collected. If the level is above .20, the enhanced DUI provisions of the law apply, likely making your punishment greater if you are convicted.  So should you take the test? My general answer is yes – unless you are so incredibly drunk that you will certainly blow above the .20. But if you are that drunk, you probably won’t be sufficiently aware enough to refuse the test.  

The key here is simple – there must be proof that you were driving under the influence or driving above .08 – and if you blow above .08 – well that case is easier to prove than a "no blow." If you blow below the .08, you won’t get charged, but you will not know your BAC level unless you blow. Then there is the problem of the blood draw – if you refuse to blow there may be circumstances that entitle the officer to require you to submit to a blood draw. So there is no easy answer here.

If you blow or don’t blow and get arrested, pull out the wallet and hire the best Idaho criminal defense lawyer you can afford. There is just too much riding on this to do it yourself. And BEFORE you hire any lawyer, check out my article here on what to ask that lawyer who wants to handle your case.

Remember – that nice prosecutor wants to take away your driving privileges and send you to jail. DUI cases are not easy to win as a defendant, so the best advice is to NEVER DRINK AND DRIVE. Failing that advice, check out my prior report on how the deck is stacked against you if you are charged with driving under the influence of alcohol or drugs (click here).  

Got a question about DUI? Send me a comment OR CALL NOW TO DISCUSS YOUR CASE.

I love to check out the "Case o the Week" over at the 9th Circuit Blog to see just what little gem of a case makes the grade – and this week the Court did not let me down. At issue – what does possession mean? In United States v. Nevils, __ F.3d __, 2008 WL 4937030 (9th Cir. Nov. 20, 2008), the Court of Appeals had to decide whether the Appellant’s conviction for possession of a gun would stand in the face of his claim that he had not knowingly possessed the firearms. Sounds like the usual stuff – cops chase some other guy into an apartment complex in a high crime area. They see Nevils through an open door, sleeping on a couch. Leaning against his leg – a gun. In his lap – another gun. Also present and unaccounted for – baggies of dope and ecstasy. Only weeks before Nevils had unfortunately been arrested for a parole violation, associating with known gang members. Hey, these things happen! Once Mr. Nevils awoke (surrounded by the cops), he protested his innocence: “I don’t believe this sh.. Those m….rf….rs left me sleeping and didn’t wake me.” At his trial, Nevils produced evidence (including a witness other than himself) that he had gone to a party, got so drunk he passed out, and his "friends" had taken him home and left him on a couch to sleep it off.  The witness testified that the drugs and guns were NOT there when they left Nevils, passed out in the apartment. Implication? The SODI defense (Some Other Dude Did It) – which the jury rejected in favor of a finding of guilt. Not so fast Tonto – that possession of the gun has to be knowing and voluntary. This is no big surprise really, but put this case in context. A trial judge gets reversed for not granting that Rule 29 motion. (For a description of one of my cases last summer in which a judge GRANTED a Rule 29 motion for judgment of acquittal go here).  The decision puts it this way:

“On this record, we hold that the Government failed to produce evidence that would have allowed a rational jury to infer knowing possession beyond a reasonable doubt. It may be natural to assume that somebody must have possessed the weapons because they were there, but the Government did not offer sufficient evidence to prove that the ‘somebody’ was Nevils.”

Think about this decision in the context of other cases charging possession – like possession of drugs, or stolen property.  The case reminds us that innocent possession is not enough, the proof that is required for conviction goes beyond allowing for the probability that you knew, there must be proof that you knew what you possessed. As our friends at the 9th Circuit Blog remind us:

The case is a must-read for “knowing” possession drug and gun cases. The decision rejects “mere presence” and Nevils’ “general character and history as a gang member” as sufficient evidence for the “knowing” mental state (despite the fact the gun was in his lap!)

So go check it out here! Read it and weep prosecutors – we shall not go quietly into that dark night.