The Speaker of the House is cleared of misappropriation charges leading to widespread rioting and charges of corruption.
Yeah, that Speaker. Whom did you think I was talking about?
13 February 2004
Minnesota begins to cave to federal bribery and its Senate passes a bill which would make the DUI BAC .08.
12 February 2004
Why in the world would a medical examiner "fak[e] an attack in which he was wrapped head to toe in barbed wire, strapped with a homemade bomb around his neck and bound to window bars in his office"?
And why would the prosecution continue to use him as a witness - even on the day of his indictment?
And why would the prosecution continue to use him as a witness - even on the day of his indictment?
"Defense lawyer Mark Geragos will try to convince the judge in the Scott Peterson double-murder case Wednesday that global positioning technology is inaccurate and unreliable."
It worked pretty dang good for us when I was in the Army. At night, in the featureless Saudi desert we ended up in the right place when the LT used it and we all know how dangerous a Lieutenant with a compass is.
It worked pretty dang good for us when I was in the Army. At night, in the featureless Saudi desert we ended up in the right place when the LT used it and we all know how dangerous a Lieutenant with a compass is.
11 February 2004
A Week in the Life of a Criminal Defense Lawyer: (Last Week)
Monday: No trials. I go over to the courthouse and while I'm discussing something with another lawyer I see one of my former clients getting pretried for statutory burglary, abduction, and grand larceny. His immigrant parents are there and they don't understand anything that's going on. I take them out to a conference room and after some back and forth they seem to understand what's going on. Afterwards I go back to my office and put the finishing touches on a brief for a suppression issue. Late in the afternoon the client's father comes to my office. Figuring that he's a hard working guy with a family I quote him a rock bottom price. He pulls out a wallet stuffed with hundred dollar bills and counts out my fee (and leaves much more in the wallet). Oh well . . . that's what I get for not trying to be a money-grubber.
Tuesday: Another day with no trials. I drop off some papers at the courthouse and then go visit clients at the jails. One of my clients has bonded out but not bothered to come see me. The client whose parents hired me the day before has already been shipped to the regional jail so I take a couple of hours to travel out there. The only thing of note that happens (which I can talk about) is that the jail sends the wrong person out to talk to me. I look up through the glass and the guy's the right ethnic group but he's not my client. When I tell him this he laughs, tells me that the guards can't tell their names apart, and says he'll go back down and get my client sent up. He leaves and in about 10 minutes my client arrives.
Wednesday: In the morning I go to court and my client pleads guilty to possession of cocaine. That was supposed to happen. What wasn't supposed to happen was that when I got to court I found out my client had been violated by pretrial services for testing positive and skipping a few drugs screenings. After a pretty little bit of tap-dancing the judge agrees to let my client stay on bond until his sentencing (with more intense supervision).
In the afternoon I go off to the US Attorney's office in Richmond to get copies of all the papers in my client's file and the files of his co-defendants. The AUSA I'm dealing with is a pleasant enough guy but it was kind of a weird meeting. Apparently because he has back problems he doesn't sit in his office. Therefore, the whole time I'm sitting comfortably he was standing on the other side of his desk. It wasn't intimidating or anything; I just felt like I was being a little rude sitting there while the poor guy had to stand. Altogether, substantively it was an unremarkable meeting. Although, I must say that when the third person told me about their 99+% conviction rate I had to use a lot of willpower to keep from pointing out why.
Thursday: In the morning I go to court to make sure my client has actually been extradited to Kentucky to face his third strike (he has). Then, while waiting for an 11:00 bond hearing a guy just walks up to me in the hall and hires me on the spot to represent him in a DUI set for later this month. At 11:00 I go in and argue a bond hearing for the client whose parents hired me Monday. It was bad. My client was clearly the least culpable of the three co-defendants but during the hearing the prosecutor alleges that it was preplanned, that a gun might have been involved, and that my client confessed. The judge denies any bond. Afterwards while I am explaining what happened to his parents both pretty much disintegrate when they realize that the prosecution is alleging a gun and that the prosecutor is saying that Client confessed.
In the afternoon I go to court with a client who is accused of a couple check cashing charges and a charge of bringing drugs into the jail. When I tried to negotiate with the prosecutor I got told she was lucky they weren't bringing several more charges because the drugs she brought into the jail were 4 different types of class I or II drugs. Consequently, Client pleads guilty on the charges as they stand. As Client is leaving the courthouse with her mother, I hear Mother tell Client, "Pshshssst. That lawyer is terrible. He hasn't done anything for you."
All in all, this day stinks.
Friday: The morning goes pretty well. I get one client's felony embezzlement changed to a misdemeanor with only 4 weekends in jail and my second client's driving with a suspended license gets changed to driving without a license so that his license is not suspended again (he got it back before trial). Afterward I am standing around with a couple other lawyers in the hall talking when a really hot looking young woman walks by wearing clothes that are a little on the tight side. Being the male chauvinist pig that I am, she catches my attention. As I watch, she walks up to the courtroom door. She looks in the glass window at the (male) judge. She reaches up and pushes her breasts up and in and pulls the top of her blouse open a few inches more so that even more cleavage is showing. Then she opens the door and goes into the courtroom. Unfortunately, I wasn't able to stick around and see if it helped her any with the judge.
Half a hour after leaving the courthouse, during lunch, the mother of a client who had been recently assigned to me calls. She had also called while I was in court but I had only gotten that message once I left the building (for some reason the judges just aren't all that fond of cell phones in the courthouse). Thankfully, she had the decency to let me call her back when I got back to my office. However, once we have the conversation it does not go well. She wants her child to get therapy while he is in jail. For the umpteenth time I have to explain to a parent that the jail just isn't going to provide for that service and for the umpteenth time a parent gets mad at me about something over which I have no control ("That's just not going to be an acceptable answer!"). So I, being the good lawyer that I am, punt. Mother has told me that the kid threatened suicide to her several times since being locked up. I call the jail and tell a lieutenant about the client's future threat to harm himself and possibly others (I'm obligated to do that anyway). Then I try to lean on him a little to get some sort of promise that a psychologist will meet with client. The lieutenant finds it all pretty humorous but, pursuant to jail policy, he won't promise anything other than that Client will be taken care of. I call mother back and tell her this (which I had told her would be the result prior to the call) and it placates her for the moment. Who knows what will happen this week when she realizes that the jail really isn't going to give her child expensive medicine or provide ongoing psychological treatment? I feel sorry for parents who are stuck in these situations but there is rarely anything I can do for them.
The rest of the afternoon is pretty quiet. One client drops by to discuss his upcoming showcause during Friday open office hours and another doesn't show up for a 5 p.m. appointment but there's nothing too shocking about that.
Monday: No trials. I go over to the courthouse and while I'm discussing something with another lawyer I see one of my former clients getting pretried for statutory burglary, abduction, and grand larceny. His immigrant parents are there and they don't understand anything that's going on. I take them out to a conference room and after some back and forth they seem to understand what's going on. Afterwards I go back to my office and put the finishing touches on a brief for a suppression issue. Late in the afternoon the client's father comes to my office. Figuring that he's a hard working guy with a family I quote him a rock bottom price. He pulls out a wallet stuffed with hundred dollar bills and counts out my fee (and leaves much more in the wallet). Oh well . . . that's what I get for not trying to be a money-grubber.
Tuesday: Another day with no trials. I drop off some papers at the courthouse and then go visit clients at the jails. One of my clients has bonded out but not bothered to come see me. The client whose parents hired me the day before has already been shipped to the regional jail so I take a couple of hours to travel out there. The only thing of note that happens (which I can talk about) is that the jail sends the wrong person out to talk to me. I look up through the glass and the guy's the right ethnic group but he's not my client. When I tell him this he laughs, tells me that the guards can't tell their names apart, and says he'll go back down and get my client sent up. He leaves and in about 10 minutes my client arrives.
Wednesday: In the morning I go to court and my client pleads guilty to possession of cocaine. That was supposed to happen. What wasn't supposed to happen was that when I got to court I found out my client had been violated by pretrial services for testing positive and skipping a few drugs screenings. After a pretty little bit of tap-dancing the judge agrees to let my client stay on bond until his sentencing (with more intense supervision).
In the afternoon I go off to the US Attorney's office in Richmond to get copies of all the papers in my client's file and the files of his co-defendants. The AUSA I'm dealing with is a pleasant enough guy but it was kind of a weird meeting. Apparently because he has back problems he doesn't sit in his office. Therefore, the whole time I'm sitting comfortably he was standing on the other side of his desk. It wasn't intimidating or anything; I just felt like I was being a little rude sitting there while the poor guy had to stand. Altogether, substantively it was an unremarkable meeting. Although, I must say that when the third person told me about their 99+% conviction rate I had to use a lot of willpower to keep from pointing out why.
Thursday: In the morning I go to court to make sure my client has actually been extradited to Kentucky to face his third strike (he has). Then, while waiting for an 11:00 bond hearing a guy just walks up to me in the hall and hires me on the spot to represent him in a DUI set for later this month. At 11:00 I go in and argue a bond hearing for the client whose parents hired me Monday. It was bad. My client was clearly the least culpable of the three co-defendants but during the hearing the prosecutor alleges that it was preplanned, that a gun might have been involved, and that my client confessed. The judge denies any bond. Afterwards while I am explaining what happened to his parents both pretty much disintegrate when they realize that the prosecution is alleging a gun and that the prosecutor is saying that Client confessed.
In the afternoon I go to court with a client who is accused of a couple check cashing charges and a charge of bringing drugs into the jail. When I tried to negotiate with the prosecutor I got told she was lucky they weren't bringing several more charges because the drugs she brought into the jail were 4 different types of class I or II drugs. Consequently, Client pleads guilty on the charges as they stand. As Client is leaving the courthouse with her mother, I hear Mother tell Client, "Pshshssst. That lawyer is terrible. He hasn't done anything for you."
All in all, this day stinks.
Friday: The morning goes pretty well. I get one client's felony embezzlement changed to a misdemeanor with only 4 weekends in jail and my second client's driving with a suspended license gets changed to driving without a license so that his license is not suspended again (he got it back before trial). Afterward I am standing around with a couple other lawyers in the hall talking when a really hot looking young woman walks by wearing clothes that are a little on the tight side. Being the male chauvinist pig that I am, she catches my attention. As I watch, she walks up to the courtroom door. She looks in the glass window at the (male) judge. She reaches up and pushes her breasts up and in and pulls the top of her blouse open a few inches more so that even more cleavage is showing. Then she opens the door and goes into the courtroom. Unfortunately, I wasn't able to stick around and see if it helped her any with the judge.
Half a hour after leaving the courthouse, during lunch, the mother of a client who had been recently assigned to me calls. She had also called while I was in court but I had only gotten that message once I left the building (for some reason the judges just aren't all that fond of cell phones in the courthouse). Thankfully, she had the decency to let me call her back when I got back to my office. However, once we have the conversation it does not go well. She wants her child to get therapy while he is in jail. For the umpteenth time I have to explain to a parent that the jail just isn't going to provide for that service and for the umpteenth time a parent gets mad at me about something over which I have no control ("That's just not going to be an acceptable answer!"). So I, being the good lawyer that I am, punt. Mother has told me that the kid threatened suicide to her several times since being locked up. I call the jail and tell a lieutenant about the client's future threat to harm himself and possibly others (I'm obligated to do that anyway). Then I try to lean on him a little to get some sort of promise that a psychologist will meet with client. The lieutenant finds it all pretty humorous but, pursuant to jail policy, he won't promise anything other than that Client will be taken care of. I call mother back and tell her this (which I had told her would be the result prior to the call) and it placates her for the moment. Who knows what will happen this week when she realizes that the jail really isn't going to give her child expensive medicine or provide ongoing psychological treatment? I feel sorry for parents who are stuck in these situations but there is rarely anything I can do for them.
The rest of the afternoon is pretty quiet. One client drops by to discuss his upcoming showcause during Friday open office hours and another doesn't show up for a 5 p.m. appointment but there's nothing too shocking about that.
10 February 2004
In India they take their cheating on school tests so seriously that they are willing to get into a battle with police over it.
Disturbing:
If the federal prosecutor is running an investigation "limited to learning more about one person who had tried to scale a security fence at an Iowa National Guard base in a protest a day after [an anti-war] forum" why is he seeking "details about the forum's sponsor - its leadership list, its annual reports, its office location - and the event itself"?
Look, I disagree with these people's message but they have a right to say it without government interference. The reason given just doesn't justify the actions taken.
Addendum:
Eugene Volokh commented on this yesterday.
As far as it goes, I don't think the federal prosecutor was trying to stifle dissent. I think he was being heavy-handed out of habit. It is seldom that anyone checks federal prosecutors other than themselves even if they go overboard because no one, and I mean absolutely no one, can afford to put things in front of a judge or jury in the federal system. It's just plain stupid in most every case to go to trial when the mandatory minimum on four charges carries 40 years and a plea would probably get it down under 10 - maybe as low as 5. About the only time I've seen anything federal end up at trial is if the feds dip into something so minor that they really shouldn't be messing with it or the Defendant is being really, really stubborn (guilt or innocence no longer plays a role when the scales are so unbalanced and judges are relegated to clerkdom for the federal prosecutors). The prosecutor was probably really surprised when he stepped over the line this time and somebody hit him on the nose with a rolled up newspaper. There remain two questions. First, will he back off for a while, wait for the political furor dies down and then proceed? Second, would a court reign him in from what appears to be a fishing expedition? The facts as explained in Volokh aren't the same as in the NYTimes but then again (as I vaguely remember from long ago science and economics courses) correlation does not mean causation. There needs to be something more before you start issuing subpoenas - you can't get there by if's and assumptions.
If the federal prosecutor is running an investigation "limited to learning more about one person who had tried to scale a security fence at an Iowa National Guard base in a protest a day after [an anti-war] forum" why is he seeking "details about the forum's sponsor - its leadership list, its annual reports, its office location - and the event itself"?
Look, I disagree with these people's message but they have a right to say it without government interference. The reason given just doesn't justify the actions taken.
Addendum:
Eugene Volokh commented on this yesterday.
As far as it goes, I don't think the federal prosecutor was trying to stifle dissent. I think he was being heavy-handed out of habit. It is seldom that anyone checks federal prosecutors other than themselves even if they go overboard because no one, and I mean absolutely no one, can afford to put things in front of a judge or jury in the federal system. It's just plain stupid in most every case to go to trial when the mandatory minimum on four charges carries 40 years and a plea would probably get it down under 10 - maybe as low as 5. About the only time I've seen anything federal end up at trial is if the feds dip into something so minor that they really shouldn't be messing with it or the Defendant is being really, really stubborn (guilt or innocence no longer plays a role when the scales are so unbalanced and judges are relegated to clerkdom for the federal prosecutors). The prosecutor was probably really surprised when he stepped over the line this time and somebody hit him on the nose with a rolled up newspaper. There remain two questions. First, will he back off for a while, wait for the political furor dies down and then proceed? Second, would a court reign him in from what appears to be a fishing expedition? The facts as explained in Volokh aren't the same as in the NYTimes but then again (as I vaguely remember from long ago science and economics courses) correlation does not mean causation. There needs to be something more before you start issuing subpoenas - you can't get there by if's and assumptions.
09 February 2004
08 February 2004
It's embarrassing when your police station is broken into and sensitive case files are stolen. It must be mortifying when it happens for the second time in two years.
I understand the father's grief and his desire to lash out at someone but cooler heads need to prevail. Almost everyone who has fines imposed falls behind in paying them. Usually this is because they just don't have the ability to pay the fines. Not paying fines is not an indicator that someone is going to do something as depraved as it appears this man did.
"A mother was sentenced to more than 17 years in prison Thursday for letting an Illinois man molest her daughter in their St. Louis home in exchange for cash."
And she deserves every last second of it.
And she deserves every last second of it.
A police officer is fired and found guilty of assault and battery because he tackled a man who he had been chasing - after the guy stopped.
The miracle of it is that we don't have more police act in this manner. It has got to be tough keeping yourself in check when you chase some guy over a distance and then catch up to him with your adreneline still pumping. Cudos to the officers who do.
The miracle of it is that we don't have more police act in this manner. It has got to be tough keeping yourself in check when you chase some guy over a distance and then catch up to him with your adreneline still pumping. Cudos to the officers who do.
07 February 2004
If you have "four white tigers, three gold tigers and a cougar" there's a distinct possibility that the jury might convict you of owning dangerous wild animals.
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WordPerfect v. Word
Years ago I typed a wordprocessing program into my Commodore 64 and saved on my trusty, lightning fast 1541 (what an amazing improvement over tape). Along with an ahead-of-its-time dot matrix printer which emulated typeset Thus began my use of wordprocessing. When I switched from my C-64 to a PC (an evil day) I messed around with a number of wordprocessors before settling on WordPerfect. When Word entered the market I got it free on at least one computer and tried it but it was a far inferior product so I let it be.
A month or so ago I looked around my office to find the CD for Wordperfect in order to install it on a computer. It had disappeared. Being an enterprising sort I got on the internet looking for new wordprocessors and found AbiWord and OpenOffice.org. Both worked fairly well but neither would convert my old .wpd files. So I went out looking for the newest version of WordPerfect and could not find one at any of the local electronic or software stores. A little taken aback, I looked around and saw scads of Word packages for sale. I had been thinking of switching to Word anyway because everyone else has and no matter how many times I try to get people to use .rtf they just won't so there are always conversion problems when I get a document from someone else. Anyway, it's been years, Microsoft has surely made the interface better, fixed the old text manipulation problems, and developed a solid import/export feature for files from other wordprocessors. Surely . . .
NO, it has not. Today was the first day I tried to use it for anything significant and I swear the old wordprocessor I had for my C-64 was better than this cruddy wordprocessor. The pull down tables are still counterintuitive. Annoying lines pop up under all sorts of text as I write, indicating that I am doing something wrong and I cannot figure out what the program is upset about. The cut and paste feature is terrible; it keeps making me cut more than I intend to. This is a problem I remember from years ago in the first versions - there is no excuse for it still being in the program. The conversion of .wpd documents suuuucks. It is far worse than the conversions WordPerfect does of Word docs. Even when I go through the trouble to save my .wpd documents in .rtf and then import them into Word there tend to be some formatting errors. When I don't convert to .rtf first (usually because of graphics which .rtf loses) the documents come out terribly. The words are all there and some of the formatting sticks but the graphics come out green and purple. I should have known better. I think I'm going to have to make a trip to the CompUsa on the other side of Richmond because it was where I bought my last WordPerfect and if anybody has the program it should.
For the life of me I don't know why everybody has switched to this sub-standard program (other than Microsoft's exercise of monopolistic powers to muscle superior products out of the way). If you are starting out I suggest that you go get OpenOffice.org's program for free. It'll make your life easier as everyone is using documents saved in .doc format now and the program seems to actually be better than Word. As for me, I suspect I'll stay with Wordperfect until the company is finally driven under.
Checked today's mail and found a brochure advertising this CLE. Yeah, sure, I've got $2K which I can blow - I'll be right there.
More on fees:
Previously I have blogged about articles in the Richmond paper and the Washington Post concerning the shameful caps on pay for the defense of indigents imposed by the Virginia Legislature.
Bryan Gates, over at I respectfully dissent, lays out how the North Carolina system works and suggests a solution which I suspect would lead to drastic pay raises for all of us doing criminal work.
John Hays, writes to suggest that perhaps a strike would be in order much as has occurred in this article. In Virginia criminal law circles this has been suggested more than once. However, I believe such an action would fail for several reasons. There is no centralized criminal defense organization powerful enough to pull it off, the Legislature could care less if the courts are closed for a day, well connected small, local firms would never risk their position in the eyes of the judges by allowing their attorneys to do something like this, and those of us that are single practitioners doing criminal law and relying on court appointed work to keep the doors open are even less in a position to risk it. I don't have a war chest. If I skip court for a day when I have 2 or 3 cases scheduled it hurts me in the near term because I have to keep churning in order to pay the bills - in the long term it could be an absolute disaster as the judges stop giving me cases and assign them to lawyers they can trust to come to court.
There is a story which has floated around among Defense attorneys for some time now - I have no idea whether it is apocryphal or based in reality. A few years back a criminal defense lawyer challenged the constitutionality of Virginia's caps as part of his defense in some criminal matter. This agitated a local judge so much that shortly thereafter, during pretrials (official judicial notification of charges & assignment of lawyers), he looked down from his bench and pointedly asked the attorneys sitting there waiting to be appointed to indigent defendants if anyone had problems with the fees paid to court appointed attorneys because he wouldn't want to assign cases to people who didn't think they would get paid enough for their work. Of course, not a single one of the attorneys said a word because they all knew it would preclude them from ever getting court appointed work again.
Previously I have blogged about articles in the Richmond paper and the Washington Post concerning the shameful caps on pay for the defense of indigents imposed by the Virginia Legislature.
Bryan Gates, over at I respectfully dissent, lays out how the North Carolina system works and suggests a solution which I suspect would lead to drastic pay raises for all of us doing criminal work.
John Hays, writes to suggest that perhaps a strike would be in order much as has occurred in this article. In Virginia criminal law circles this has been suggested more than once. However, I believe such an action would fail for several reasons. There is no centralized criminal defense organization powerful enough to pull it off, the Legislature could care less if the courts are closed for a day, well connected small, local firms would never risk their position in the eyes of the judges by allowing their attorneys to do something like this, and those of us that are single practitioners doing criminal law and relying on court appointed work to keep the doors open are even less in a position to risk it. I don't have a war chest. If I skip court for a day when I have 2 or 3 cases scheduled it hurts me in the near term because I have to keep churning in order to pay the bills - in the long term it could be an absolute disaster as the judges stop giving me cases and assign them to lawyers they can trust to come to court.
There is a story which has floated around among Defense attorneys for some time now - I have no idea whether it is apocryphal or based in reality. A few years back a criminal defense lawyer challenged the constitutionality of Virginia's caps as part of his defense in some criminal matter. This agitated a local judge so much that shortly thereafter, during pretrials (official judicial notification of charges & assignment of lawyers), he looked down from his bench and pointedly asked the attorneys sitting there waiting to be appointed to indigent defendants if anyone had problems with the fees paid to court appointed attorneys because he wouldn't want to assign cases to people who didn't think they would get paid enough for their work. Of course, not a single one of the attorneys said a word because they all knew it would preclude them from ever getting court appointed work again.
06 February 2004
A recent motion filed by yours truly (All names changed):
(A) Facts: Ms. Smith was pulled over by Officer Jones on suspicion of driving under the influence (Transcript page 5 line 21-21; hereinafter 5:21-22). Once pulled over, Ms. Smith and a passenger were required to exit the car by another police officer (6:7 - "Officer Friendly had them exit the vehicle"). Officer Jones noticed nothing unusual about Ms. Smith and did not smell the odor of alcohol (9:17-22). Officer Jones did not perform any field sobriety tests on Ms. Smith (8:8-10).
While running Ms. Smith's driver's information through DMV, Officer Jones brought her dog forward and had it check Ms. Smith, the truck, and the passenger (6:15-19). The dog reacted to Ms. Smith in a manner which Officer Jones, relying on her training and experience, interpreted as a reaction to a woman menstruating (6:20-7:5 & 10:19-25). The dog did not alert to the truck (7:12-14). The dog alerted to the passenger (7:10-12) but when searched the passenger had nothing illicit on his person (7:15-20). The passenger stated that "he had been around somebody smoking marijuana earlier during the day" (7:20-21). The officers then searched the truck and found contraband (8:16-20). Officer Jones then approached Ms. Smith and told her that she was to be searched and if she had anything on her person to hand it over prior (9:1-5). Ms Smith handed over contraband from her pocket and gave information leading to discovery of further contraband (9:6-10).
(B) Burden: At a hearing on a defendant's motion to suppress, the Commonwealth has the burden of proving the challenged action did not violate the defendant's constitutional rights. Russell v. Commonwealth, 33 Va.App. 604 (2000)(citing Simmons v. Commonwealth, 238 Va. 200, (1989).)
(C) Defendant was seized: Initially, the seizure of Ms. Smith by Officer Jones in order to investigate a possible DUI was a valid investigatory stop. Arguably, when the officers required Ms. Smith to exit her vehicle it may have been out of concern for officer safety. The officer recognized that Ms. Smith was not drunk and therefore did not perform a single sobriety test. Thereafter, the only valid reason the officers had to hold Ms. Smith was to check her license pursuant to Va. Code sec. 46.2-104. Clearly, "the exercise of police power pursuant to Code § 46.2-104, the act of requiring a person who has been operating a motor vehicle upon the public highways to produce an operator's license, is a restraint upon the individual's freedom of movement and constitutes a seizure of the person.". Brown v. Commonwealth, 17 Va. App. 694, 697 (1994); see also Piggot v. Commonwealth, 34 Va.App. 45, 49 (2000)(by taking a person's identification an officer implicitly commands that person to stay).
Even had the officer returned Ms. Smith's driver's license - a fact not in evidence - no reasonable person would feel free to leave an encounter wherein two officers and a police dog were present, she was required to leave her vehicle, she was never told she could leave, the officers brought a dog forward to scan her for drugs, the officers scanned and physically searched a passenger from her truck for drugs, and the officers searched her truck without so much as a by-your-leave. "Various factors have been identified as relevant in determining whether a seizure has occurred, including the threatening presence of a number of police officers, the display of weapons by officers, physical contact between an officer and a citizen, an officer's language or tone of voice compelling compliance, the retention of documents requested by an officer, and whether a citizen was told that he or she was free to leave." Harris v. Commonwealth, 266 Va. 28, 32 (2003) see also Reittinger v. Commonwealth, 260 Va. 232 (2000)(even if officer tells driver he is free to leave, a reasonable person would not believe he is free to leave in the presence of two officers and one requests to search his vehicle).
It is clear that at no time prior to her arrest was Ms. Smith involved in a consensual encounter with the officers.
(D) Violations of the Fourth Amendment to the Federal Constitution:
(1) Holding the Defendant longer than necessary to complete purpose of initial stop and a brief check of papers.
Once the justification for the stop evaporates a search of either the vehicle or the body is not justified. Thompson v. Commonwealth, 16 Va. App. 478 (1993). Additionally: "When the driver has produced a valid license and proof that he is entitled to operate the car, he must be allowed to proceed on his way, without being subject to further delay by police for additional questioning. Any further detention for questioning is beyond the scope of the Terry stop and therefore illegal unless the officer has a reasonable suspicion of a serious crime." U.S. v. Rusher, 966 F.2d 868, 876 (4th Cir. 1992)(citing Florida v. Royer, 460 U.S. 491 (1983), United States v. Brignoni- Ponce, 422 U.S. 873(1975), & United States v. Guzman, 864 F.2d 1512, 1519 (10th Cir.1988)).
Once Officer Jones realized there was nothing wrong with Ms. Smith, she could only hold Ms. Smith for the very short time necessary to check her license and registration. Once the papers were presented continued possession of the papers to undertake a radio check of their validity is an unconstitutional seizure of the driver unless there is something facially wrong with the papers leading to reasonable suspicion requiring such a check. Richmond v. Commonwealth, 22 Va.App. 257 (1996).
(2) Holding the Defendant in order to use a dog to check her for drugs.
Even were the continued seizure of Ms. Smith during a suspicionless radio check of her papers constitutional, it is common knowledge that officers carry portable radios for these checks ("While a check is being run - - and of course as we know, our officers have the radios right there with them and they can do that right outside the car." (20:19-21 - Deputy Commonwealth Attorney Burger)). There is no evidence that there was any problem causing a delay in what otherwise should have been a very short radio call to verify the veracity of Ms. Smith's paperwork.
Without any indication of possession of drugs, at this point the officer brought a dog forward to perform a search of Ms. Smith, her truck, and the passenger. This clearly extends the stop beyond that which is necessary to conduct a radio check of Ms. Smith's license and registration. It turns the encounter into a seizure for the purpose of searching the person of Ms. Smith and her passenger as well as her vehicle. It is clear that detaining someone without reasonable suspicion for the purpose of searching their person with a drug dog is unconstitutional. United States v. Foreman, 269 F.Supp.2d 683, 687 (E.D.Va. 2003)(even if a dog sniff is not a search, holding a person for a sniff without reasonable suspicion is an unconstitutional seizure); see also Horton v. Gross Creek Independent School District, 690 F.2d 470 (5th Cir 1982)(The Fourth Amendment applies with its fullest vigor against any intrusion on the human body and a dog sniff is unconstitutional "when there is no individualized suspicion"); & United States v. Kelly, 302 F.3d 291 (5th Cir 2002)(dog sniff of a person, as opposed to an object, is a search); B.C. v. Plumas Unified School District, 192 F.3d 1260 (9th Cir 1999)(adopting the 5th Circuit's rationale in holding that dog sniffs of a person are searches).
(3) Searching the vehicle without probable cause.
Even were continued seizure to accommodate a scan by a dog constitutional, the results of the scan do not provide the probable cause required to give the officers the carte blanche to search the passenger compartment allowed by New York v. Belton, 453 U.S. 454 (1981). In fact, the dog had given the truck a pass, not indicating in any way the presence of drugs. No probable cause had been developed as to Ms. Smith; in the officer's professional judgement the dog had not indicated drugs on her person. No probable cause had been developed in the person of the passenger; a search revealed no drugs on his person. While the requirements for a warrantless search of a person's vehicle have been whittled down, the officers must still at least have probable cause. Maryland v. Dyson, 527 U.S. 465 (1999). The police officers had direct knowledge of an indication from the dog that no drugs were present in the truck. The officers didn't state that they smelled an odor from drug use or saw any suspicious items in plain view at any time during the stop. They had previously found no drugs in the scan of Ms. Smith and the actual physical search of the passenger. There were no facts in the officers' possession which could possibly have risen above mere suspicion that "maybe they were smoking [marijuana] in the vehicle" (21: 10-11 - Mr. [Burger]). This guesswork clearly falls far short of probable cause.
Defendant's Brief for Motion to Suppress
(A) Facts: Ms. Smith was pulled over by Officer Jones on suspicion of driving under the influence (Transcript page 5 line 21-21; hereinafter 5:21-22). Once pulled over, Ms. Smith and a passenger were required to exit the car by another police officer (6:7 - "Officer Friendly had them exit the vehicle"). Officer Jones noticed nothing unusual about Ms. Smith and did not smell the odor of alcohol (9:17-22). Officer Jones did not perform any field sobriety tests on Ms. Smith (8:8-10).
While running Ms. Smith's driver's information through DMV, Officer Jones brought her dog forward and had it check Ms. Smith, the truck, and the passenger (6:15-19). The dog reacted to Ms. Smith in a manner which Officer Jones, relying on her training and experience, interpreted as a reaction to a woman menstruating (6:20-7:5 & 10:19-25). The dog did not alert to the truck (7:12-14). The dog alerted to the passenger (7:10-12) but when searched the passenger had nothing illicit on his person (7:15-20). The passenger stated that "he had been around somebody smoking marijuana earlier during the day" (7:20-21). The officers then searched the truck and found contraband (8:16-20). Officer Jones then approached Ms. Smith and told her that she was to be searched and if she had anything on her person to hand it over prior (9:1-5). Ms Smith handed over contraband from her pocket and gave information leading to discovery of further contraband (9:6-10).
(B) Burden: At a hearing on a defendant's motion to suppress, the Commonwealth has the burden of proving the challenged action did not violate the defendant's constitutional rights. Russell v. Commonwealth, 33 Va.App. 604 (2000)(citing Simmons v. Commonwealth, 238 Va. 200, (1989).)
(C) Defendant was seized: Initially, the seizure of Ms. Smith by Officer Jones in order to investigate a possible DUI was a valid investigatory stop. Arguably, when the officers required Ms. Smith to exit her vehicle it may have been out of concern for officer safety. The officer recognized that Ms. Smith was not drunk and therefore did not perform a single sobriety test. Thereafter, the only valid reason the officers had to hold Ms. Smith was to check her license pursuant to Va. Code sec. 46.2-104. Clearly, "the exercise of police power pursuant to Code § 46.2-104, the act of requiring a person who has been operating a motor vehicle upon the public highways to produce an operator's license, is a restraint upon the individual's freedom of movement and constitutes a seizure of the person.". Brown v. Commonwealth, 17 Va. App. 694, 697 (1994); see also Piggot v. Commonwealth, 34 Va.App. 45, 49 (2000)(by taking a person's identification an officer implicitly commands that person to stay).
Even had the officer returned Ms. Smith's driver's license - a fact not in evidence - no reasonable person would feel free to leave an encounter wherein two officers and a police dog were present, she was required to leave her vehicle, she was never told she could leave, the officers brought a dog forward to scan her for drugs, the officers scanned and physically searched a passenger from her truck for drugs, and the officers searched her truck without so much as a by-your-leave. "Various factors have been identified as relevant in determining whether a seizure has occurred, including the threatening presence of a number of police officers, the display of weapons by officers, physical contact between an officer and a citizen, an officer's language or tone of voice compelling compliance, the retention of documents requested by an officer, and whether a citizen was told that he or she was free to leave." Harris v. Commonwealth, 266 Va. 28, 32 (2003) see also Reittinger v. Commonwealth, 260 Va. 232 (2000)(even if officer tells driver he is free to leave, a reasonable person would not believe he is free to leave in the presence of two officers and one requests to search his vehicle).
It is clear that at no time prior to her arrest was Ms. Smith involved in a consensual encounter with the officers.
(D) Violations of the Fourth Amendment to the Federal Constitution:
(1) Holding the Defendant longer than necessary to complete purpose of initial stop and a brief check of papers.
Once the justification for the stop evaporates a search of either the vehicle or the body is not justified. Thompson v. Commonwealth, 16 Va. App. 478 (1993). Additionally: "When the driver has produced a valid license and proof that he is entitled to operate the car, he must be allowed to proceed on his way, without being subject to further delay by police for additional questioning. Any further detention for questioning is beyond the scope of the Terry stop and therefore illegal unless the officer has a reasonable suspicion of a serious crime." U.S. v. Rusher, 966 F.2d 868, 876 (4th Cir. 1992)(citing Florida v. Royer, 460 U.S. 491 (1983), United States v. Brignoni- Ponce, 422 U.S. 873(1975), & United States v. Guzman, 864 F.2d 1512, 1519 (10th Cir.1988)).
Once Officer Jones realized there was nothing wrong with Ms. Smith, she could only hold Ms. Smith for the very short time necessary to check her license and registration. Once the papers were presented continued possession of the papers to undertake a radio check of their validity is an unconstitutional seizure of the driver unless there is something facially wrong with the papers leading to reasonable suspicion requiring such a check. Richmond v. Commonwealth, 22 Va.App. 257 (1996).
(2) Holding the Defendant in order to use a dog to check her for drugs.
Even were the continued seizure of Ms. Smith during a suspicionless radio check of her papers constitutional, it is common knowledge that officers carry portable radios for these checks ("While a check is being run - - and of course as we know, our officers have the radios right there with them and they can do that right outside the car." (20:19-21 - Deputy Commonwealth Attorney Burger)). There is no evidence that there was any problem causing a delay in what otherwise should have been a very short radio call to verify the veracity of Ms. Smith's paperwork.
Without any indication of possession of drugs, at this point the officer brought a dog forward to perform a search of Ms. Smith, her truck, and the passenger. This clearly extends the stop beyond that which is necessary to conduct a radio check of Ms. Smith's license and registration. It turns the encounter into a seizure for the purpose of searching the person of Ms. Smith and her passenger as well as her vehicle. It is clear that detaining someone without reasonable suspicion for the purpose of searching their person with a drug dog is unconstitutional. United States v. Foreman, 269 F.Supp.2d 683, 687 (E.D.Va. 2003)(even if a dog sniff is not a search, holding a person for a sniff without reasonable suspicion is an unconstitutional seizure); see also Horton v. Gross Creek Independent School District, 690 F.2d 470 (5th Cir 1982)(The Fourth Amendment applies with its fullest vigor against any intrusion on the human body and a dog sniff is unconstitutional "when there is no individualized suspicion"); & United States v. Kelly, 302 F.3d 291 (5th Cir 2002)(dog sniff of a person, as opposed to an object, is a search); B.C. v. Plumas Unified School District, 192 F.3d 1260 (9th Cir 1999)(adopting the 5th Circuit's rationale in holding that dog sniffs of a person are searches).
(3) Searching the vehicle without probable cause.
Even were continued seizure to accommodate a scan by a dog constitutional, the results of the scan do not provide the probable cause required to give the officers the carte blanche to search the passenger compartment allowed by New York v. Belton, 453 U.S. 454 (1981). In fact, the dog had given the truck a pass, not indicating in any way the presence of drugs. No probable cause had been developed as to Ms. Smith; in the officer's professional judgement the dog had not indicated drugs on her person. No probable cause had been developed in the person of the passenger; a search revealed no drugs on his person. While the requirements for a warrantless search of a person's vehicle have been whittled down, the officers must still at least have probable cause. Maryland v. Dyson, 527 U.S. 465 (1999). The police officers had direct knowledge of an indication from the dog that no drugs were present in the truck. The officers didn't state that they smelled an odor from drug use or saw any suspicious items in plain view at any time during the stop. They had previously found no drugs in the scan of Ms. Smith and the actual physical search of the passenger. There were no facts in the officers' possession which could possibly have risen above mere suspicion that "maybe they were smoking [marijuana] in the vehicle" (21: 10-11 - Mr. [Burger]). This guesswork clearly falls far short of probable cause.
More on indigent defense in Virginia:
Most of my income comes from court appointed work; theoretically, this is paid at $90 a hour but the caps listed above usually make the pay rate irrelevant. The fees definitely need to be fixed because the caps are at the very least half of what they should be. Because of the pay scale I do have to take a certain amount of cases to make ends meet. However, I have never urged someone to plead guilty just so I can move on to the next case - that insinuation is just plain insulting. In fact, I have gone to trial several times when I knew the trial would lead to a significant loss of money. Anytime someone wants a jury and he's charged with less that three felonies I know that a large portion of my time will be gratis. If the trial is complex I know that a lot of time will be gratis even if there are 5 or 6 felonies. Other attorneys do the same thing. Yesterday I was speaking to a fellow attorney who has put already put 20 hours into a non-capital murder trial (capped at $1096) and she hasn't even had the preliminary hearing yet.
What are the effects of these low pay scales? In my case it means I don't have a secretary or an accountant. I spend a lot of time doing by rote paperwork (typical discovery motions, etc.) and trying to keep on top of the business. I also spend large amounts of time in court or at jails. This means that my clients don't get any kind of handholding. I contact them when there is some significant occurrence in their case. They can come by and see me on any Friday during my open office hours (2-5pm). Other than that there isn't a whole lot of contact. I'm doing the necessary legal work in their case; I just don't tell them over and over that I am.
The pay for court-appointed criminal lawyers in Virginia has risen by $12 a case in the past 32 years. And Virginia is one of only two states with a mandatory cap on fees paid to defense attorneys -- and those fees are the lowest in the nation.And you know what this report will accomplish? Absolutely nothing. As the article recognizes, reports like this have been published periodically for 30 years in Virginia and we've seen one raise in the fees paid defense counsel The Legislature even refuses to fully fund that - the statute states I get $120 for misdemeanors but the Legislature only funds $112 (same situation exists for felonies). The only chance that this changes is if the courts step in. Even then I think it will have to be some sort of intervention by the federal courts. I still remember sitting at a CLE as our former Chief Justice said in a lecture that the pay may be low but it doesn't seem to have any effect on the representation he sees before his Court (I hope nobody needs an explanation as to the fact that the problem occurs at a much lower level).
. . . . .
The report cites the "crushing caseloads" of public defenders, who often have little or no training before being assigned hundreds of criminal cases. And it attacks the state's Public Defender Commission for not fighting more vigorously for funds, equipment and training for its offices across the state, calling its efforts "timid."
"Indeed, it seems the Commission has taken pride in the repeated battle cry that it can provide representation to indigent defendants cheaper than court-appointed counsel," the report states. And with Virginia's court-appointed lawyers already the most poorly paid, "how effectively can either public defenders or court-appointed attorneys represent their clients?" the report asks.
. . . . .
Better pay for court-appointed lawyers would allow them to spend more time preparing for cases, defense advocates say, and discourage them from urging their clients to plead guilty. Lawyers handling felonies with a potential prison sentence of 20 years or more, including most murders, are paid a maximum of $1,096. Those representing defendants charged with crimes that carry sentences of fewer than 20 years have a cap of $395. Misdemeanors and juvenile cases are capped at $112. The average pay to a court-appointed Virginia lawyer is $245.
Most of my income comes from court appointed work; theoretically, this is paid at $90 a hour but the caps listed above usually make the pay rate irrelevant. The fees definitely need to be fixed because the caps are at the very least half of what they should be. Because of the pay scale I do have to take a certain amount of cases to make ends meet. However, I have never urged someone to plead guilty just so I can move on to the next case - that insinuation is just plain insulting. In fact, I have gone to trial several times when I knew the trial would lead to a significant loss of money. Anytime someone wants a jury and he's charged with less that three felonies I know that a large portion of my time will be gratis. If the trial is complex I know that a lot of time will be gratis even if there are 5 or 6 felonies. Other attorneys do the same thing. Yesterday I was speaking to a fellow attorney who has put already put 20 hours into a non-capital murder trial (capped at $1096) and she hasn't even had the preliminary hearing yet.
What are the effects of these low pay scales? In my case it means I don't have a secretary or an accountant. I spend a lot of time doing by rote paperwork (typical discovery motions, etc.) and trying to keep on top of the business. I also spend large amounts of time in court or at jails. This means that my clients don't get any kind of handholding. I contact them when there is some significant occurrence in their case. They can come by and see me on any Friday during my open office hours (2-5pm). Other than that there isn't a whole lot of contact. I'm doing the necessary legal work in their case; I just don't tell them over and over that I am.
Overstating the gang problem.
The problem with the primary source for this article's argument is that he has shown that local law enforcement can handle the problem: "L.A. recently made headlines by cutting its murder rate by 22 percent from the previous year." The claim that cracking down is moving street gangs to other nearby locales is not easily believable. Street gangs are almost always tied to a territory where the members live and are not all that mobile.
The problem with the primary source for this article's argument is that he has shown that local law enforcement can handle the problem: "L.A. recently made headlines by cutting its murder rate by 22 percent from the previous year." The claim that cracking down is moving street gangs to other nearby locales is not easily believable. Street gangs are almost always tied to a territory where the members live and are not all that mobile.
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