Friday, September 23, 2016

On Hugs and Crossing that Line

During the protests in Charlotte this week, this man made the news for giving free hugs. To police officers. Suited up in riot gear. In front of his boys, too!


What's this have to do with criminal defense?  Here it is:

This man crossed that line. The line separating protester and police and he did it to show kindness and compassion to the latter. In doing so, he took a lot of heat from some of his fellow protesters. "How do you hug those people?" or "Don't you know those people are bad for society?". He had to know those criticisms would be coming, but he did it anyway.  Why? I suppose because he thought it might do some good in a world too quick to label one cause good, and another evil.

As a criminal defense attorney, we also cross a line of sorts every day. We cross the line into court rooms, jail cells and crime scenes with compassion and a determination to defend those who society has marked for separation.  In doing so, we take heat from our neighbors, friends, and 3rd cousins we don't like very much anyway.  "How do you defend THOSE people?" they ask incredulously. Or, "I could never defend someone who I know is guilty." they state unequivocally. We know those questions are inevitable.

But we do this work anyway. Hopefully it does some good in a justice system intent on prematurely labeling one person good, and another evil.

Tuesday, September 13, 2016

Finding the Smelly Fish: Pre-Arrest Police Investigative Detentions

As everyone knows, Police officers investigate crimes and those suspected of committing them.  They determine who the bad guys are and they bring those bad guys to justice. But how do they determine who the bad guys are when it is not obvious that a crime is being, or has been committed? How does a police officer look into something that they think smells fishy without making a full on arrest? Since people don't usually wear shirts that boldly say "I'm a bad guy committing a crime", police often must detain those they suspect of criminal activity to further investigate.

A pre-arrest detention is a term I use to refer to an interaction between you and a police officer wherein the officer has stopped you to further investigate activity deemed suspicious. In other words, they think something fishy is going on and want to look deeper. But can an officer really detain you in any way without first having probable cause to arrest you? Yes. Yes they can.

These pre-arrest, pre-probable cause, what is making that fish smell type interactions really come in two flavors:

1. Consensual Encounter

The first pre-arrest detention is actually not legally a detention at all. It is an interaction between a citizen and an officer that is consensual on the part of the citizen. What does this mean?
It means that, as long as the officer has the right to be in the physical location where the encounter occurs, they apply no physical force or make no show of force to effectuate the encounter and a reasonable person in your position would feel free to disregard them and go about your business they can talk to you about anything under the sun. Courts have held that, even when an officer is in uniform with their gun in its holster and an active radio active on their shoulder, this sort of casual encounter is not a detention for 4th Amendment purposes.

So, who cares? You should. So long as your interaction with an officer remains a casual encounter, your 4th Amendment right against unreasonable search and seizure does not apply.

Suppose you are standing in line at a Walgreens in front of a uniformed police officer about to buy some cold medicine.  The officer asks you what the cold medicine is for and you blurt out that the cold medicine is for your Meth kitchen.

At your future trial for the attempted manufacturing of Meth, that statement would be used against you. This detention was a casual encounter because the officer had a right to be in the Walgreens and you were free to leave at any point.  You are afforded no 4th Amendment protections here because you are not seized under the law.
Moral of the story: If a cop casually asks you what the cold medicine is for, the answer should always unequivocally be "for a cold".

2. Investigative Detention, i.e. the Terry Stop

An investigative detention occurs when police stop you because they suspect that you are involved in criminal activity and they detain you so that they can investigate.
A Terry Stop is more intrusive than a consensual encounter because you are seized. How do you know you have been seized? When you or any other reasonable human in your shoes would not feel free to leave because the officer has physically restrained you or ordered you to stay put. Once this happens, unlike consensual encounters, your 4th Amendment right to be free from unreasonable searches and seizures attach!

What makes a Terry Stop reasonable? To be reasonable, the officer initiating the stop must have reasonable suspicion based upon articulable facts that you are involved in criminal activity.  Just what level of suspicion is, or is not, reasonable has been defined and re-defined by state and federal courts across this land. We know it is something less than probable cause, but something more than an officer's hunch. Once a Terry Stop is initiated, the officer may pat you down for weapons and detain you for as long as necessary to confirm or dispel their suspicion.

Refer to the Walgreens scenario above, only this time imagine that, instead of outing your Meth production business, you pay for the cold medicine and go into the bathroom.  The officer follows you into the bathroom, shows you his badge, identifies himself as an officer, and orders you out of the bathroom for questioning. Once outside of the bathroom, the officer sees a bulge in your coat pocket so he pats you down for weapons only to find a rather large baggie of methamphetamine instead.

In this scenario, your 4th Amendment rights attach the minute he confronts you in the bathroom, shows his authority as an officer and orders you outside for questioning because a reasonable person in your position would not feel free to leave. As such, the officer would need reasonable suspicion based on articulable facts that you were involved in criminal activity at the time he confronted you for the detention to be reasonable.  If the detention was reasonable, the baggie of Meth he finds would not be suppressed and could be used against you at trial. If it was unreasonable, they would.

Based only on the facts I have given you in this example, that officer likely did not have suspicion that was reasonable. But, police officers aren't dumb. They know some criminal defense attorney like myself will later be scrutinizing the reasonableness of their suspicion and so the facts are not usually this straight forward. If the officer testifies that he was suspicion because you fit the description of a known Meth manufacturer, that you were sweating bullets in December out of nervousness, that this particular Walgreens was in an area known for its Meth manufuacturing problem, and that he called in to the state pseudoephedrin registry and discovered you bought excessive amounts of pseudoephedrin in the preceding month, a judge would find his suspicion was reasonable.

If you or someone you know has been arrested for a crime that arose from a pre-arrest investigative detention, contact a criminal defense attorney to determine if the particular facts and circumstances surrounding your seizure were legal under the 4th Amendment.

Free Criminal Defense Information


As a criminal defense attorney, I field questions about Criminal Defense and DWI law everyday from clients, other lawyers, friends, family and tire kickers looking for free legal information.

The law in this country is weird.  On the one hand, if the law exists on the books, you as a citizen are deemed to have notice of that law and are required not to break it.  But if that is true, why do people like myself need to spend 3 years and hundreds of thousands of dollars just to understand and correctly apply it?  Have you ever tried to read a statute? It's like a different language.  Even worse, ever tried to buy the book in which the statutes are written? Unless you've taken out a second mortgage, probably not.

If the law expects every day people to just know it, then I believe it should be accessible.  With this blog, I will do what many in this profession think to be unforgivable - give away legal knowledge.*  Lawyers don't own the law, the people do.  So, when I come across a topic relevant to criminal defense that I feel may be of interest to the people, I will give my two cents on it here.  For everyone to see.
*Keep in mind, while the content I provide here is meant to be informative, no criminal defense blog can substitute talking to a real criminal defense attorney about your specific case.