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Cobb County's "Drug Whisperer"

Cobb County police are arresting people who are stone cold sober for DUI by marijuana.

http://www.11alive.com/news/investigations/the-drug-whisperer/437061710

The goal of Drug Recognition Expert "training" isn't to weed out drivers under the influence of drugs.  It is to provide a pseudo-scientific excuse to arrest people and convince juries to convict.  

For example, a DRE-trained police officer will say that twitchy eyes indicates drug use, but will not say that a lack of twitchy eyes contraindicates drug use.  Talking quickly is a clue, but so is talking slowly.  Too much eye contact is a clue, but so is too little.  Slurring words is a clue, but so is over-articulating your words.  Fidgeting is a clue, but so is not moving enough.   Are you too cooperative?  That's a clue.  Are you argumentative?  That's a clue.  

In other words, everything is a "clue" and nothing is a contrary clue.  The officer begins with the presumption of guilt and uses his "training" to build a case.

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3rd Circuit Holds 1st Amendment Right to Record Police

Wholly distinct from the Due Process right to record police, the 3rd Circuit Court of Appeals has held that citizens may assert a First Amendment right to do so as well. 

http://www2.ca3.uscourts.gov/opinarch/161650p.pdf


UCLA Professor Eugene Volokh sums it up here. 

 

 

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John Oliver on Civil Forfeiture

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Prohibition is Power

Prohibition is Power

My criminal justice clients sometimes ask my opinion on why the government likes to prohibit and regulate things that don't seem to do much social harm.  The most common example is marijuana, but there are all sorts of government regulations that don't seem to serve much of a purpose.  

But ALL government regulations serve the same purpose of giving the government more power.  Here's a quote from Ayn Rand's "Atlas Shrugged" (1957) where Dr. Ferris is explaining to Hank Reardon why the government wants to regulate his business and others as much as possible:  

“Did you really think we want those laws observed?" said Dr. Ferris. "We want them to be broken. You'd better get it straight that it's not a bunch of boy scouts you're up against... We're after power and we mean it... There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What's there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced or objectively interpreted – and you create a nation of law-breakers – and then you cash in on guilt. Now that's the system, Mr. Reardon, that's the game, and once you understand it, you'll be much easier to deal with.” 
 
― Ayn Rand, Atlas Shrugged 
 
Prohibition doesn't need a reason.  Prohibition IS the reason. Criminalizing marijuana provides police with a reason to stop, frisk and arrest people.  It's no different than making about everything you do on the road a traffic violation of some kind so that the police have an excuse to pull you over anytime they want.  Police really don't care if one of your three tag lights aren't working.  They just want to use that as an excuse to pull you over and interrogate you for something else (DUI, drugs, etc..).  It's a facade, and everyone knows it.
 
For the client, here's what that means:  If you think you're going to go to court and say, "But Judge, it's no big deal.  Why does the government care about these things?" and have your case dismissed, you're wrong.  Government writes and selectively enforces laws for reasons that the average person on the street never understands.
 
NEVER go to court without a lawyer.
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F*ck The Police, She Said

Last year, Cobb County Police arrested Amy Barnes for using profanity at them.  As I mentioned in a previous blog post, while using profanity or profane gestures at the police is a bad idea, it's not a crime. (It is one of Steakley's Golden Rules that just because something is Constitutional does not mean it is a good idea.) 

Ms. Barnes stood her ground on Free Speech principles.  She had the Constitutional right, she asserted, to express her extreme dissatisfaction with the local law enforcement authorities. To vindicate herself, she was willing to face trial, a jury, and the risk of a wrongful conviction. Fortunately, it did not have to go that far.

The outcome:  

Amy Barnes admits to making obscene statements Easter Sunday 2012, when she saw two Cobb County police officers questioning a burglary suspect about 7 p.m. on Austell Road. As she was riding by on her bicycle, Barnes said, among other things, “F— the police,” and “police suck,” [her attorney Cynthia] Counts said, calling the statements “a protest of police abuse.”

“Upon hearing her statements, the officers left the suspect to pursue Ms. Barnes, who they stopped and arrested,” said Counts. The burglary suspect got away. Barnes was arrested and taken to jail, charged with one count of disorderly conduct under O.C.G.A. § 16-11-39(a)(4), which bars “without provocation” the use of “obscene and vulgar and profane language in the presence of a person under the age of 14 years which threatens an immediate breach of the peace.”

The police justified this charge by alleging that a child was present when Barnes made her statement, Counts said.

“After hearing testimony from two officers and viewing a video of the incident taken from a camera in one of the officer’s cars, the judge concluded that the officers simply took issue with what Barnes had said and were determined to arrest her,” Counts said.

Clayton also concluded that the alleged presence of the child was “inconclusive” and “irrelevant,” because, “the mere presence of children does not transform the defendant’s statements into ‘fighting words.’”

“Her criticism of the police was certainly caustic, but criticizing the police and other public officials is a basic right,” Counts said. “Certainly, the police cannot arrest someone for disrespecting them by the use of a curse word.”

Ken Hodges and Alex Bartko of Rafuse, Hill and Hodges also defended Barnes, saying her “First Amendment rights were clearly violated by the arrest and prosecution.”

Hodges, a former prosecutor, said, “It is a travesty that Ms. Barnes spent 23 hours in jail, including six hours in solitary confinement. She should also not have had to spend the last year awaiting vindication. The officers should have thicker skin. There was no reason to arrest a woman on a bicycle who presented no threat.”

 

 A couple of thoughts:  It's not only police officers who should have thicker skin.  We all should. 

 The attorney who won the case for Barnes was Cynthia Counts, who also points to a NY case where "the bird" directed at police was considered free speech as well, so this case isn't outside normal court rulings.  On the contrary, I think Cobb County State Court Judge Melodie Clayton did exactly the correct thing.

 That all being said, allow me to remind you of the Steakley Golden Rule that says that just because something is Constitutional - protected by law, protected by free speech - that doesn't mean it's a smart thing to do.

 UPDATE:  Ms. Barnes settled her case for $100,000.   So maybe it wasn't such a bad idea to do what she did.  

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Recordings Cut Both Ways

Recordings Cut Both Ways

It difficult to make an argument against recording police-citizen encounters.   As I've said before, no one has anything to fear from it if they aren't doing anything wrong.  And as I've written about, there may be a Constitutional right to do it anyway, even if the police object.

More and more police departments are jumping on the bandwagon.  Here is a good example of how recordings can save an honest officer from baseless claims

 

Albuquerque Police Department union president Stephanie Lopez said in a statement to KOB, “The desire to frame officers for wrongdoing is a growing issue facing officers every day. We believe that the public should be held accountable for filing false reports against police officers. These incidents can be very damaging to an officer’s career, so we hope that this individual and others face appropriate consequences for their malicious actions.”

 

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Why Do Innocent People Confess?

Here's a long, thorough look at some of the reasons behind false confessions.  Let me reiterate that if people would just refuse to talk to the police at all, a false confession wouldn't be a possibility.  That's one of Steakley's Golden Rules.

On the other side of the equation, law enforcement agencies should adopt policies requiring the recording of interrogations whenever possible.

Full Article

After decades of resistance, even the FBI has finally agreed to start recording interviews.

 MORE:

False Allegations, Arrests, Confessions and Convictions

Another Top 10 Reasons to Remain SILENT

FBI To Finally Start Recording Interrogations

List of False Confession News

Top Ten Ways to Damage Your Criminal Case

Famous False Confession Cases

False Confessions Plague Criminal Justice System With Wrongful Convictions and Wrongful "Guilty" Pleas

Don't Talk To The Police - EVER!

 

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FBI To Finally Start Recording Interrogations

Most people are shocked to learn that the FBI has until this year refused to record investigations.  By not recording investigations, a jury will hear only the FBI agent's summary of what was said, not what was actually said, and that is how the FBI liked it. 

But things change.  The FBI says they will now start recording interrogations "when possible."   Now if only state and local law enforcement would follow suit, we would all be better off.

More here, and here.

Forbes has a long piece here.

MORE:

Don't Talk To The Police - EVER!

False Confessions Plague Criminal Justice System With Wrongful Convictions and Wrongful "Guilty" Pleas

Famous False Confession Cases

Top Ten Ways to Damage Your Criminal Case

List of False Confession News

Why Do Innocent People Confess?

Another Top 10 Reasons to Remain SILENT

False Allegations, Arrests, Confessions and Convictions

 

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Georgia Taxpayers Cough Up $700,000 For Police Mischief

Georgia taxpayers will be shelling out almost three-quarters of a million dollars for the wrongful arrests (malicious prosecution) of some Morrow restaurant workers, reports the Fulton Daily Report. And it's not the first time that this officer has cost the taxpayers to open their wallets:

The city of Morrow has paid $700,000 to settle a malicious prosecution suit stemming from a midnight police raid during which a restaurant manager and her fiancé, an attorney, were handcuffed and jailed for nearly three days after being charged with nearly two dozen code violations.

The citations were all eventually dismissed but the raid, part of an alleged "campaign of harassment" against Cheerleaders Sports Café, was successful: The club never reopened following the arrests.

The settlement, reached late last year, was the last of three involving a now-departed police detective whose flawed arrests cost the city's insurer at least $950,000. One of the other two cases settled for $250,000, and another case—in which the insurer represented the officer, not the city—settled confidentially.

Police generally enjoy something called "qualified immunity" which means they are personally immune from most suits.  When they have to pay, it's not the police officers themselves that pay up; it's the taxpayer.  Thus, police have little personal incentive to behave.  They have "no skin in the game," to put it another way.  Some sort of limited liability for wrongdoing - even if capped at a single year's salary - would probably work to reduce problems like this case and save taxpayers millions of dollars.

At least one federal circuit has stepped in the right direction.

More mischief:

Cops Raid Home; Find Fruit

 

 

 

 

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List of False Confession News

Here is a great collection of recent news, articles and examples of false confessions, which continue to plague the system. 

http://www.pbs.org/wgbh/pages/frontline/the-confessions/false-confessions-and-interrogations/

Here are some earlier posts on the issue:

Famous False Confession Cases

False Confessions Plague Criminal Justice System With Wrongful Convictions and Wrongful "Guilty" Pleas

The Sad Case of Lester Eugene Siler

Top Five Reasons To Say NO To A Police Search

FBI To Finally Start Recording Interrogations

Why Do Innocent People Confess?

Another Top 10 Reasons to Remain SILENT

False Allegations, Arrests, Confessions and Convictions

 

 

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Know Your Place, Citizen

Law enforcement is quick to post mugshots of people they arrest, even when those people are later found not guilty. But what happens when an arrestee posts a picture of the officer?  Well, that gets removed by court order.  Know your place, Citizen.   While the ACLU hypocritically refuses to advocate the Second Amendment, at least they will still fight for the First Amendment.

http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/03/31/you-cant-put-a-video-of-me-online-im-a-police-officer/

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Alpharetta Pol Beats DUI

An Alpharetta official has beaten a DUI, reports the AJC

ALPHARETTA, Ga. —
An Alpharetta city councilman has been acquitted on charges he drove drunk with his son in his car.
 
Channel 2’s Mike Petchenik was the only reporter in the courtroom Friday when Judge Patsy Porter handed down her decision. 
 
She ruled the officer who arrested Michael Cross didn’t have probable cause because he didn’t witness Cross driving erratically and because he detained Cross first, then asked questions later.
  

But here is the important part: 

Martin said Cross refused to take a breath test or submit to a state-issued blood test, but that he believed Cross’ “manifestations” were consistent with someone driving under the influence.

The government does everything it can to convince you and me to take these tests, even threatening to suspend our driver's license when we don't.  But when a cop, or attorney, or politician get accused of DUI, they usually refuse the tests.  So should you.

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Popular Mechanics' "Top Ten Tips to Avoid Speeding Tickets"

Popular Mechanics' "Top Ten Tips to Avoid Speeding Tickets"

Popular Mechanics magazine has posted their "Top Ten Tips to Avoid Speeding Tickets."  Of course, my favorite is #4:

Keep quiet. Diamond says to present your license and registration and insurance card, and that's it. "You don't have to answer [anything] else—you have to say you're asserting your right to stay silent, or 'Please speak to my lawyer.' Do it in a polite way, nice and respectful. Antagonists get the most tickets. There are no warnings for a**holes." 

It's good reading and generally good advice.    Enjoy.

Top Ten Ways to Damage Your Criminal Case

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More People Are Recording The Police

More People Are Recording The Police

Recording police-citizen encouters favor the people who play by the rules and disfavors those who don't.  There are plenty of good police officers who have nothing to fear because they carry out their job with professionalism.  But then there are the ones that prefer to not be recorded because they fear being held accountable.  Those are probably the ones who need recorded the most.

For example, would you expect police harassment for washing your car in your driveway?  Most people wouldn't.  Most people wouldn't even believe it possible, but thanks to modern technology we see that it is

In the movies, when police come calling, the ordinary citizen has two options: quake or pull out a gun.

In recent time, however, people have realized that they have a third, quite potent option: the cell phone.

They know that if they can film the experience, disbelief will have to be suspended, because the evidence is all too clear.

The latest example of a seemingly innocent man encountering a peculiar visit from a policeman comes from Long Island.

What the filmed evidence seems to show is a policeman wandering onto the man's private driveway and suggesting that it's illegal to wash his car there.

This is a subject I've addressed before.  I think you can record the police in any public space so long as you don't interfere with their job.  I also think that you have a Constitutional right to record your conversations even in a private place when you are the suspect.   Read more below:

Recording Conversations in Georgia

Will They Ever Learn? (Cont'd)

$25,000 For Woman Arrrested For Recording Police

Mistrial for Cop Accused of Recording Judge in Maryland

County Pays $645,549 To ACLU For Unconstitutional Prosecutions

Half of Americans Now Have Smartphones

CopBlock.org Founder Adam Mueller Appeals Convictions

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NC Court of Appeals Allows Arrest by HOA

I have previously noted the quasi-law-enforcement entities that are private homeowner association (HOA) security forces.  Now it seems the NC Appeals Court has weighed in on the issue, but on the side of the HOA: 

Rental cops hired by homeowners associations (HOA) can conduct traffic stops that would be unconstitutional if performed by an actual police officer, according to a ruling handed down last week by the North Carolina Court of Appeals. A three-judge panel took up the case of Frederick Lloyd Weaver Jr, who was stopped on April 20, 2012 by an armed security guard employed by Metro Special Police and Security Services. The HOA for the Carleton Place townhomes near the University of North Carolina at Wilmington contracted with Metro for security services.

North Carolina allows armed guards to wear police-like uniforms with badges, carry guns and drive cars with flashing red and white light bars. Qualifying for the security guard position requires four hours of classroom instruction and a day on the range.

Four hours in the classroom and a day at the range certainly doesn't compare to what a real police officer has to go through.

I stand by my earlier post that blurring the lines between who is and isn't endowed with state authority is a bad idea that will cause all sorts of problems.  Citizens need to know who is and isn't an officer, who does and doesn't have arrest powers, and who can and can't pull them over.  To blur those lines causes confusion and will encourage abuse. 

Hopefully, the NC Supreme Court will overrule this decision.

 

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Maryland v. King and DNA Sampling at Arrest

Maryland v. King and DNA Sampling at Arrest

In a 5-4 decision, the US Supreme Court has ruled in Maryland v. King that the police can collect DNA samples from people arrested for "serious crimes."  The New York Times reports:

The federal government and 28 states authorize the practice, and law enforcement officials say it is a valuable tool for investigating unsolved crimes. But the court said the testing was justified by a different reason: to identify the suspect in custody.

“When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody,” Justice Anthony M. Kennedy wrote for the majority, “taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.”

Justice Antonin Scalia summarized his dissent from the bench, a rare move signaling deep disagreement. He accused the majority of an unsuccessful sleight of hand, one that “taxes the credulity of the credulous.” The point of DNA testing as it is actually practiced, he said, is to solve cold cases, not to identify the suspect in custody.

But the Fourth Amendment forbids searches without reasonable suspicion to gather evidence about an unrelated crime, he said, a point the majority did not dispute. “Make no mistake about it: because of today’s decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason,” Justice Scalia said from the bench.

I think Justice Scalia is correct.  The first thing law enforcement will do is lower the definition of "serious crime" as low as possible so that they can DNA sample as many people as possible.  The DNA will remain on file in some database even if the case is dismissed, just like records of arrests often linger for the rest of a person's life.  

Article here.

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Will They Ever Learn? (Cont'd)

Two Omaha police officers are facing serious charges because of their reaction to being legally recorded by a bystander, reports KMTV.

Former officer James Kinsella will be charged with felony tampering with evidence, and two misdemeanor charges of obstructing governmental operations and theft by unlawful taking.

Former Sgt. Aaron Von Behren will face misdemeanor charges of accessory to a felony and obstructing governmental  operations.

Both officers as well as two others involved in the incident have been fired from the police force.

A YouTube video that KMTV Action 3 News first aired on March 21st shows a police officer taking down Octavius Johnson during a dispute over parking near 33rd and Seward.

His brother, Juaquez Johnson was recording the incident near the curb when officers chased him into his house.

The police captured Juaquez and apparently destroyed the video.  It has never been found.  So while the police were able to run down Juaquez, steal his phone, and destroy the evidence, they failed to notice the guy across the street who was also recording the scene from inside his home. 

These officers have lost their careers and may lose their freedom because they didn't want to be recorded in a public place.  They successfully captured and destroyed the recording they knew about, but they failed to notice the guy across the street. 

All of the officers in this department need to be educated about the right of citizens to record the goings-on of police officers in public places, as well as how costly it can be when the police infringe upon this right.  And of course, A Due Process Right To Record Police should be required reading. 

Related:

The Sad Case of Lester Eugene Siler

$25,000 For Woman Arrrested For Recording Police

Some Cops Never Learn

For Georgia cases, see Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000).

 

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Open Carry of a Firearm Isn't PC to Detain, Says 4th Circuit

Open Carry of a Firearm Isn't PC to Detain, Says 4th Circuit

In a good federal case for open carry of firearms, the 4th Circuit holds that the open carry of a firearm, alone, does not constitute probable cause to detain someone absent some other evidence that the person is engaged in criminal activity. 

Gun rights are civil rights, from right there in the Bill of Rights beside freedoms of Speech, Press, Expression, Religion, etc.   Anyone who considers themselves defenders of the Bill of Rights (like the ACLU claims) and individual freedoms should applaud this ruling.  But don't hold your breath for the normal civil rights crowd to cheer.  When guns are the issue, some people want to pretend the Second Amendment doesn't exist.

Note, however, that Georgia is NOT an open carry state, so this may not help Georgia residents directly.  Don't carry openly in Georgia without a weapons permit. 

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Half of Americans Now Have Smartphones

Half of Americans Now Have Smartphones

Apparently we are at the 50% mark of citizens that have smartphones (mostly iOS, Android, and Windows).  I imagine almost all of those telephones have the ability to record audio and video in better quality than digital cameras could just a few years ago. 

With the rise of cameras in everyone's pocket, I anticipate we will see more and more conflict between citizens who want to film the police and the police who do not wish to be filmed.  As a general rule, anyone can film anything in public, so long as they aren't causing a problem by doing so.  Your rights to film in public do not includ the right to film from the middle of the street at rush hour, for example. 

For my work and thoughts on the issue, look here and here.   As always, if you find yourself in a bind because you recorded an officer, give us a call.

Some Cops Never Learn

The Sad Case of Lester Eugene Siler

CopBlock.org Founder Adam Mueller Appeals Convictions

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CopBlock.org Founder Adam Mueller Appeals Convictions

CopBlock.org co-founder Adam Mueller was convicted of felony wiretapping in connection with recorded calls to school and police officials about the arrest of a student at Manchester High School West in New Hampshire.  He has appealed to the New Hampshire Supreme Court

This shouldn't even be a crime.  His biggest problem, though, was that he made the horrible mistake of representing himself: 

Ten days after his August trial, he mailed a motion to the court, seeking to have the verdict set aside or reversed, the charges dismissed with prejudice, the conviction vacated and his release ordered, or, alternatively, a new trial ordered and the remaining sentence stayed. He argued he had been confined in jail, without access to legal materials, and that is why he hadn't filed the motion sooner.

The prosecution objected to the motion and the judge denied it, saying it was not filed within the required seven days and that Mueller himself had requested immediate sentencing after the verdict was returned, and Mueller is an "experienced pro se litigator and knows the rules."

The fact that he has been in court before doesn't mean he "knows the rules" or that he's a lawyer.  Rather, this is a good example of how just because someone represents themselves, it doesn't mean that the court will bend the rules to accomodate them.  He seems like a smart guy and smart guys often convince themselves that they can sit through a Law & Order marathon and then go try their own case to a jury.  That's not how it works. 

Representing yourself is always a bad idea. Worse, this guy may have had a Constitutional claim that he failed to raise and is now likely prohibited from raising. (See my Washington University Law Review article on the subject of recording the police with Professor Glenn Reynolds of Instapundit.com)

 

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