Seawell & Buckmelter, PC Attorneys at Law

Supreme Court Rules Police Use of GPS Tracking Device Violates Fourth Amendment

malcolms — Mon, 23 Jan 2012 22:23:05 +0000

January 23, 2012

WASHINGTON (Reuters) – The Supreme Court ruled on Monday that police cannot put a GPS device on a suspect’s car to track his movements without a warrant, a test case that upholds basic privacy rights in the face of new surveillance technology.

The high court ruling was a defeat for the Obama administration, which had argued that a warrant was not required to use global positioning system devices to monitor a vehicle on public streets.

The justices unanimously upheld a precedent-setting ruling by a U.S. appeals court that the police must first obtain a warrant to use a GPS device for an extended period of time to covertly follow a suspect.

The high court ruled that placement of a device on a vehicle and using it to monitor the vehicle’s movements was covered by U.S. constitutional protections against unreasonable searches and seizures of evidence.

There are no precise statistics on how often police in the United States use GPS tracking in criminal investigations. But the Obama administration told the court last year it was used sparingly by federal law enforcement officials.

The American Civil Liberties Union rights group hailed the ruling as an important victory for privacy. “While this case turned on the fact that the government physically placed a GPS device on the defendant’s car, the implications are much broader,” Steven Shapiro of the ACLU said.

“A majority of the court acknowledged that advancing technology, like cell phone tracking, gives the government unprecedented ability to collect, store, and analyze an enormous amount of information about our private lives,” he said.

SUSPECTED DRUG TRAFFICKER

The case began in 2005 when police officers went to a public parking lot in Maryland and secretly installed a GPS device on a Jeep Grand Cherokee used by a Washington, D.C. nightclub owner, Antoine Jones.

Jones was suspected of drug trafficking and the police tracked his movements for a month. The resulting evidence played a key role in his conviction for conspiring to distribute cocaine.

The appeals court had thrown out Jones’s conviction and his

life-in-prison sentence, and ruled prolonged electronic monitoring of the vehicle amounted to a search.

All nine justices agreed in upholding the appeals court decision, but at least four justices would have gone even further in finding fault not only with the attachment of the device, but also with the lengthy monitoring.

In summarizing the court’s majority opinion from the bench, Justice Antonin Scalia said attachment of the device by the police was a trespass and an improper intrusion of the kind that would have been considered a search when the Constitution was adopted some 220 years ago.

The administration argued that even if it were a search, it was lawful and reasonable under the Constitution. Scalia said his opinion did not decide that issue and some more difficult problems that may emerge in a future case, such as a six-month monitoring of a suspected terrorist.

Joining Scalia’s opinion were Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Sonia Sotomayor.

Sotomayor wrote separately to say the case raised difficult questions about individual privacy expectations in a digital age, but said the case could be decided on narrower grounds over the physical intrusion in attaching the device.

LONG-TERM MONITORING

Justice Samuel Alito wrote a separate opinion that Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan joined. He wrote that he would have decided the case by holding that Jones’s reasonable privacy expectations were violated by long-term monitoring of his vehicle’s movements.

Alito said in recent years many new devices have emerged that track a person’s movements, including video surveillance in some cities, automatic toll collection systems on roads, devices on cars that disclose their location, cell phones and other wireless devices.

“The availability and use of these and other new devices will continue to shape the average person’s expectations about the privacy of his or her daily movements,” he wrote.

One law professor said those four justices were clearly concerned about the potential impact of new technologies and believed extended monitoring likely required a warrant so law enforcement should “be on the safe side and get a warrant.”

“This is an indication that there are justices who are recognizing that privacy norms are shifting but the fact that people’s lives take place increasingly online does not mean that society has decided that there’s no such thing as privacy anymore,” said Joel Reidenberg, a law professor at Fordham University in New York.

The Supreme Court case is United States v. Antoine Jones, No. 10-1259.

(Reporting By James Vicini; Editing by Will Dunham)

Supreme Court expands Sixth Amendment — Effective counsel must advise of immigration consequences of plea bargain

malcolms — Tue, 22 Jun 2010 18:07:52 +0000

On March 31, 2010 the United States Supreme Court greatly expanded the Sixth Amendment rights of the criminally accused. In Padilla v. Kentucky, 599 U.S. ____ (March 31, 2010), the Court held that an attorney failed to provide effective or competent representation of a non-citizen when he failed to advise his client that his guilty plea would likely result in his deportation from the United States. In fact, the attorney advised his client that because he had been in the country so long, he didn’t have to worry about the immigration consequences. As a result of this attorney’s bad advice, the Supreme Court put into serious question the validity of many guilty pleas entered based on erroneous or faulty advice of counsel concerning immigration or ICE consequences.

In its opinion, the Supreme Court noted that “because the drastic measure of deportatiton or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes, the importance of accurate legal advice for noncitizens accused of crimes has never been more important.” The court further noted that “Counsel who possess the most rudimentary understanding of the deportation consequences of a particular criminal offense may be able to bargain creatively with the prosecutor in order to craft a conviction and sentence that reduce the likelihood of deportation, as by avoiding a conviction for an offense that automatically triggers the removal consequence.”

While it is clear that the decision in Padilla v. Kentucky requires counsel to advise a noncitizen of immigration consequences to a proposed plea agreement, it may in fact go far beyond that narrow issue and significantly expand the duty of counsel to other collateral consequences of a given plea bargain. At Seawell and Buckmelter, PC, a Colorado Criminal Defense firm, we stay abreast of the law so that we may provide you with the best possible represenation. If you or someone you know has entered a guilty plea under bad advice about the consequences of that plea, come make an appointment with us so we can help make sure your rights are protected.

When do I need legal representation?

malcolms — Wed, 09 Jun 2010 16:52:46 +0000

Frequently I receive calls from individuals seeking my services after they’ve tried to handle the initial proceedings representing themselves. Many times these individuals have already entered guilty pleas and as a consequence have forfeited nearly all of their rights to contest the charge. Many times when such individuals represent themselves they enter into plea agreements without any appreciation for the consequences of such pleas. Convictions for criminal offenses can have life-long consequences. Once you have, for example, a domestic violence conviction you may not be able to rent a house or apartment and you will certainly lose your right to own, purchase and possess firearms. It is very difficult to undo guilty pleas and convictions after they have been accepted and entered by the court. For that reason, it is imperative that before you enter a plea you have the assistance of competent and effective counsel.

Competent counsel will be able to evaluate the merits of your case and will identify defenses and other matters in mitigation. Effective counsel will know whether the plea bargain being offered is even a good deal. There are so many instances where plea bargains offered to someone representing themselves are far worse than the plea bargain I have been able to negotiate on behalf of my clients in similar cases.

If you are charged with a criminal offense, the time to consult with an attorney is before you accept any plea agreement from the District Attorney. At Seawell and Buckmelter, PC, we will ensure that your rights are protected and that you receive the best possible outcome whether it is derived through a plea bargain or through a “not guilty” verdict at trial. In these difficult financial times, effective legal services can be costly and difficult to afford. However, if you compare the sever and adverse impact on your rights, reputation, good character and employability from a criminal conviction to the cost of competent and effective legal services you will appreciate that a good lawyer is a sound investment. Before you make a potential life-long mistake by going at it alone, take the time to give us a call and set up an appointment so we can discuss what Seawell and Buckmelter can do for you.

Governor Ritter signs Criminal Justice Reform Bill

malcolms — Wed, 26 May 2010 17:17:00 +0000

Governor Ritter Signs Drug Sentencing Reform Bill

                         Flanked by Rep. Priola, Sen. Steadman, Rep. Waller, Sen. Morse, Rep. Levy, Sen. Newell, and Sen. Hudak

In a historic moment for criminal justice reform, Governor Bill Ritter signed ten bills into law at a signing ceremony this afternoon. Included in these, were three of CCJRC’s priority bills HB 1352 (drug sentencing reform), HB 1360 (reducing revocations for technical parole violations) and HB 1374 (new statutory parole guidelines). A big thank you goes out to all of the legislators who sponsored and supported all of this legislation.

Other bills signed into law include:

HB 1338 expands judicial discretion to allow the court to sentence someone to probation even if s/he has two or more prior felony convictions, excluding certain violent offenses.

HB 1347 which increases the minimum jail term required for repeat drunk driving convictions.

HB 1373 repeals the mandatory consecutive sentencing required for a conviction for escape, unless the escapee is on “inmate status.”

HB 1413 increases the minimum age from 14 to 16 years that would allow the district attorney to “direct file” charges against a juvenile in adult court, except in cases where the defendant is charged with murder or a sex offense.

SB 54 which requires a school district to provide educational services during the school year to a juvenile being held, pending charges as an adult, in a jail within the school district.

HB 1081 relocates the money laundering crime from the Controlled Substances Act to the fraud statute.

HB 1277 makes it a crime for an employee or a volunteer to have any sexual activity with a juvenile who is an inmate in a detention facility or community corrections program.

Tomorrow, Governor Ritter is also scheduled to sign into law SB 189 which authorizes county health departments to develop syringe exchange programs.

http://blogs.westword.com/latestword/2010/05/bill_ritters_baby_steps_toward.php

What leads to DUI or DWAI convictions for people charged in Criminal Court after being stopped and ticketed by the police?

malcolms — Mon, 08 Feb 2010 16:20:05 +0000

What leads to DUI or DWAI convictions for people charged in Criminal Court after being stopped and ticketed by the police?

Frequently, when someone learns that I’m a criminal defense attorney with extensive experience in defense of Driving Under the Influence (DUI) cases, I’m asked a many questions about all aspects of DUI cases including: arrests, prosecutions, defense and sentences. Very often, I’m asked about what type of evidence leads to people getting convicted of DUI or DWAI. People ask me questions about stops by the police, what suspects say that harm their case, what they should not have said, the arrest, roadsides, PBT’s, blood tests, breath tests, DMV consequences and, of course, the process in criminal court and possible sentences. There are a wide variety of issues to consider in DUI and DWAI cases and each case has its own unique set of variables. This blog will address what leads to people getting convicted of DUI cases in criminal court.

One of the main things I see that leads to DUI or DWAI convictions, is that Defendants, after they have been pulled over, either through their words or physical conduct or both, turn themselves into the District Attorney’s best evidence. The DA is frequently in the advantageous position of using the Defendants words and conduct against themselves. In defending people against DUI charges, often the biggest problem we have to deal with in a case is the Defendant’s own words of physical actions.

What evidence do people commonly create to be used against themselves after they have been pulled over by the police on suspicion of DUI? It almost always starts with people making the decision to ignore their right to remain silent and talk to the police. On many, if not most cases, Defendants reportedly decide to make statements to the police officers that come back to haunt them. The right to remain silent is a right that each and every one of us has under the United States Constitution. You are allowed to exercise that right! When a suspect decides to talk to the police about their predicament after being pulled over, those words they speak can be used against them in Court (Issues surrounding Miranda advisements in this traffic stop context will be addressed in a forthcoming blog post). Defendants should keep quiet. It’s a Constitutional right to do so. The examples of people ignoring this advice are plentiful. First, on almost every single case we see in our office, the Police Officer reports that a suspect had “bloodshot, watery eyes, slurred speech and an odor of an alcoholic beverage”. I think it’s fair to say that phrase appears in 99% of all DUI police reports. So when a Defendant speaks to the police, they can almost be guaranteed that the Officer’s report will say that they did so with “slurred speech” and, that while they were speaking the Officer could “smell the odor of an alcoholic beverage”. In addition, on too many occasions to count, Defendants are reported to have said, “I only had two (or three, or four) drinks tonight”. I once had a case in which a defendant was stopped while driving and the police suspected he may have been drinking. They asked him to perform roadside sobriety maneuvers, which he refused. He also refused to answer the officer’s insistent questions about whether he had consumed alcoholic beverages. He was subsequently arrested and asked to complete a chemical test of his blood. He agreed and as the EMT was preparing to draw his blood for a chemical analysis he exclaimed “you all are going to find out that Budweiser comes in red.” From the DA’s perspective, that’s the best confession ever. Most cases don’t have such colorful and unique confessions, but many if not most have statements by the accused which are detrimental to their cases. These statements are almost always used in Court by the DA. What could these Defendants have said instead that would not have created evidence against themselves? They could have simply said, “Respectfully, I’m electing to remain silent” or “I’m not willing to answer your questions.” Those statements cannot be used against a criminal defendant and no judge will let those statements be used against a criminal defendant charged with DUI.

As criminal defense attorneys, the second area we almost always see in which Defendants frequently give the police and prosecutors evidence to use against them is when suspects decide to voluntarily try to complete roadside sobriety maneuvers. In Colorado, roadside sobriety maneuvers are considered a search. Because they are a search, they can only be performed upon probable cause (which doesn’t make practical sense in the roadside circumstance – the officers are unlikely to MAKE a suspect attempt roadsides involuntarily) or upon a suspect voluntarily consenting to the search and attempting the roadside maneuvers. That’s why in nearly every case the officer will ask “Sir, would you voluntarily agree to the performance of some roadside maneuvers so I can make sure you’re safe to drive home?” The officer may have already decided that a suspect is going to be arrested for DUI, but before doing so, he wants to gather more evidence to be used in the prosecution. If the officer gains voluntary consent from a suspect, and the suspect tries to do the roadsides, that is very likely to result in evidence to be used against the Defendant it Court. To make matters worse, it is evidence that is based on the officer’s subjective evaluation of the Defendant’s performance on the roadsides and only in rare circumstances is there video evidence available to evaluate the officers’ subjective judging of the suspect’s performance. Suspects do not have to consent to doing the roadside maneuvers and most would be better off if they had not done so. Remember, the whole purpose of the roadsides is to gain evidence against a suspect. Suspect’s have a choice and do not have to consent to this search.

Someone might ask whether there are circumstances where a person suspected of DUI elects to consent to the roadside maneuvers and passes them, thereby avoiding arrest and criminal prosecution. I’m sure there are instances out there were individuals have done well on their roadsides and been allowed to drive home, but I’d wager they are very few and far between. Anecdotally, I’ve only heard of this occurring a couple of times during the last 17 years. On the other hand, I’ve seen roadside sobriety maneuvers used as evidence against a Defendant thousands of times.

What about providing the police evidence by taking the blood or breath test? Testing can become an issue twice in a person’s encounter with the police investigating a DUI or DWAI. The first time is on scene when officers may ask a suspect to take a Preliminary Breath Test (PBT). The PBT is a little device about the size of a cell-phone. A Defendant is not required to take this test – it is voluntary. Unfortunately, suspects often don’t understand that it is voluntary and take it thinking they have no choice. The other test is the test that is required under the Express Consent Statute. This test is almost never taken at the scene of the stop. It is taken at a secondary location. If it is a breath test that is chosen, it will be conducted on a device about the size of an old typewriter. If it is a blood test that is chosen, it will be conducted either at a hospital, fire station, or some other location to which a phlebotomist can respond. It is almost always ill advised for Defendants’ to consent to the completion of a portable breath test (PBT) of breath alcohol during the roadside maneuvers. Frequently, clients will tell me that they thought they had to take the PBT test. They don’t. However, with the evidential breath or blood test which Colorado law says you are obligated to complete when an officer has probable cause to believe you are DUI or DWAI, refusing to take that test brings possible severe consequences through the Department of Motor Vehicles (also known as the Department of Revenue). If a suspect refuses that test, and loses the DMV hearing on the matter, they will be subject to a one year loss of license without any provision for driving during that year on their first refusal. It gets longer if it is a second or third refusal.

While taking the evidential breath or blood test is, technically speaking, another example of Defendants providing evidence against them, in this case, it is most always better that they did take the test given the severe consequences for refusing the test. The consequences of refusing are so severe, that taking the test is almost always the better decision. However, under Colorado law, if a suspect takes a test and the result is above a .170 the law requires that driver have an interlock or blow device on their vehicle for two years after reinstatement of the license. In addition, if you BAC is at or above a .200 you will have to serve a mandatory 10 day jail sentence if convicted.

While both tests provide evidence against a Defendant, which test should a suspect take? It is almost always better to take a blood test. In Colorado, law enforcement is required to take two vials of your blood – one for the Department of Health to test and one for you to submit to your own independent lab for testing. So you get a second opinion of the testing procedure, which you do not get with a breath test. Also, with a blood test, it takes several weeks for the results to come back giving you precious time to figure out how you are going to fight the loss of your license with the DMV.

If you have any questions concerning a DUI or DWAI, please don’t hesitate to contact the Denver Criminal Attorneys at Seawell and Buckmelter, PC. We will aggressively represent you in your DUI or DWAI case.

Vince Buckmelter

Seawell & Buckmelter, P.C.

7887 East Belleview, Suite 820

Englewood, Colorado 80111-6023

Office (303) 297-3200

Cell (303) 881-6426