So, I recently got to read an article about a Missouri Driver who was cited for flashing his headlight to warn oncoming of a speed trap down the road. As is a common practice among motorist, this driver observed a Police Officer on the side of the road checking people's speed with a radar gun. The Driver decided to flash his headlights to oncoming traffic so they would be aware of the Police Officer and ideally would slow down (which is what the police want in the first place, right?). The same police officer ended up pulling this driver over and ticketed him under some obscure local law dealing with flashing lights on certain vehicles.
As is completely and totally appropriate, the Driver has filed suit against the city for violating his free speech rights. As his attorney explained in the article, his conduct of flashing his lights would be no different then stopping into a truck stop and mentioning it to other drivers. The Government is EXTREMELY limited in it's ability to infringe on an individuals' free speech. From the perspective of this Wake County Traffic Attorney, flashing his lights was a form of communication that the State has no justifiable reason to try and deter.
Apparently, this was not the first time an individual was ticketed for flashing his lights. There was a driver in Florida who filed suit in to 2011 for the same reason. Apparently, that case was dropped after that police force issued an order requiring their officers to not issue tickets for someone flashing their lights.
Certainly, it can be frustrating for the Police Officers, when they are attempting to conduct traffic safety patrols and their efforts are thwarted by the public communicating with each other; here's the problem with that position. 1. The Police have A LOT of advantages in their efforts of citing and apprehending individuals for traffic and/or criminal matters. The sheer wealth of knowledge they have with regards to investigating and the requirements to meet standards of proof put the general public at an extreme disadvantage, let alone all of the technology, research, etc. they have at their disposal. 2. A driver flashing their lights hopefully has the effect of causing drivers to slow down, and isn't that really the reason for the police presence on the road in the first place (at least, one of the reasons). Unless, of course, it could be to issue tickets and generate revenue, but certainly that's not the case.
Honestly, all joking aside, this action by the police is disturbing. There was no good reason for the police officer to pull this driver over and issue a ticket. Their conduct, in no way, jeopardized other drivers, and did no violate any laws. The only logical conclusion was to punish this driver, and deter others from the same conduct.
If you are in need of a Wake County Traffic Attorney, the Matheson Law Office would be happy to discuss your case with you and provide you with a Free Consultation. Contact us at 919-335-5291 and we'll go over your case with you.
Showing posts with label Raleigh Criminal Defense. Show all posts
Showing posts with label Raleigh Criminal Defense. Show all posts
Tuesday, July 23, 2013
Tuesday, July 2, 2013
Raleigh DUI Law | Use of 'Fake' Checkpoint Signs
So, recently in the news, I read where police officers in Cleveland, Ohio were using a ruse to try and apprehend individuals who may be driving on the road with drugs in their possession. Having handled many kinds of Wake County Checkpoint Cases, I am aware of the restrictions the Police were operating within and how this little ploy was used to somewhat circumvent restrictions on their ability to randomly stop individuals on the road.
In this particular case, the Police Force posted signs on a busy road indicating that a drug checkpoint with drug-sniffing dogs was ahead. The problem is, there is no such thing as a drug checkpoint. Under restrictions placed by our courts, including the Supreme Court, there are a limited number of reasons police can randomly stop drivers for a checkpoint. In North Carolina, the police are only permitted to utilize checkpoints to investigate for drunk drivers or to check driver's licenses.
So, if they cannot actually set up a 'drug checkpoint' what's the point of putting up signs indicating there is one ahead? Well, within proximity of those signs, police are staked out to see if anyone does a quick U-turn or throws something from their window, which may indicate they are scared of being caught at the checkpoint with drugs. See, since the majority of people do not realize that 'drug checkpoints' are illegal and unconstitutional, they assume the police to be truthful with these signs and act accordingly.
Okay, so this is creative and may not run afoul of the courts precedent that the checkpoint itself is not permitted. However, there are a couple of issues this Raleigh DWI Defense Attorney has with this approach. First, there is something inherently wrong with the police lying to the general public. As disconcerting as it may be to everyone, the truth is police can lie. If they are interrogating you, they can make up facts to try and persuade you to confess. And while I do not approve of those practices, at least it is tailored to suspects. However, by posting false information, in the hopes that individuals will 'show their cards' is something entirely different. I kind of look at this as 'The Boy Who Cried Wolf.' If the public comes to not trust signs posted by the police because they could be lies, what else should the police not trust in the conduct of their police?
My second issue with this approach is there seems to be some inherent risk of some presumed 'reasonable suspicion' based on actions the police may not like. You see, in order to justify a stop, regardless of the circumstances, the State must have articulable reasonable suspicion in order to justify the stop. This is related to the 4th Amendment of the U.S. Constitution which prohibits unreasonable searches and seizures (the exception, of course, are the checkpoints). So, when the police are staked out, looking for anyone who may want to avoid the imaginary checkpoint, or who otherwise may be doing something totally unrelated to the checkpoint, could be stopped because the police are purposefully looking for actions that otherwise may not amount to reasonable suspicion of criminal activity. As was the case with a recent driver stopped during this checkpoint. He reported that he pulled over to the side of the road twice to check his directions and was stopped by the police. It wasn't until the drug dog came and they searched his car did the police realize that he was not transporting drugs and was being truthful when he explained his reason for stopping. This individual was stopped for nothing more then because safety-minded by pulling over before verifying his directions - that does NOT amount to reasonable suspicion of criminal activity.
If you are facing a Wake County DWI Charge and are in need of quality legal representation, contact us at the Matheson Law Office for your free consultation. We will be happy to discuss your legal options and ensure your rights are preserved.
In this particular case, the Police Force posted signs on a busy road indicating that a drug checkpoint with drug-sniffing dogs was ahead. The problem is, there is no such thing as a drug checkpoint. Under restrictions placed by our courts, including the Supreme Court, there are a limited number of reasons police can randomly stop drivers for a checkpoint. In North Carolina, the police are only permitted to utilize checkpoints to investigate for drunk drivers or to check driver's licenses.
So, if they cannot actually set up a 'drug checkpoint' what's the point of putting up signs indicating there is one ahead? Well, within proximity of those signs, police are staked out to see if anyone does a quick U-turn or throws something from their window, which may indicate they are scared of being caught at the checkpoint with drugs. See, since the majority of people do not realize that 'drug checkpoints' are illegal and unconstitutional, they assume the police to be truthful with these signs and act accordingly.
Okay, so this is creative and may not run afoul of the courts precedent that the checkpoint itself is not permitted. However, there are a couple of issues this Raleigh DWI Defense Attorney has with this approach. First, there is something inherently wrong with the police lying to the general public. As disconcerting as it may be to everyone, the truth is police can lie. If they are interrogating you, they can make up facts to try and persuade you to confess. And while I do not approve of those practices, at least it is tailored to suspects. However, by posting false information, in the hopes that individuals will 'show their cards' is something entirely different. I kind of look at this as 'The Boy Who Cried Wolf.' If the public comes to not trust signs posted by the police because they could be lies, what else should the police not trust in the conduct of their police?
My second issue with this approach is there seems to be some inherent risk of some presumed 'reasonable suspicion' based on actions the police may not like. You see, in order to justify a stop, regardless of the circumstances, the State must have articulable reasonable suspicion in order to justify the stop. This is related to the 4th Amendment of the U.S. Constitution which prohibits unreasonable searches and seizures (the exception, of course, are the checkpoints). So, when the police are staked out, looking for anyone who may want to avoid the imaginary checkpoint, or who otherwise may be doing something totally unrelated to the checkpoint, could be stopped because the police are purposefully looking for actions that otherwise may not amount to reasonable suspicion of criminal activity. As was the case with a recent driver stopped during this checkpoint. He reported that he pulled over to the side of the road twice to check his directions and was stopped by the police. It wasn't until the drug dog came and they searched his car did the police realize that he was not transporting drugs and was being truthful when he explained his reason for stopping. This individual was stopped for nothing more then because safety-minded by pulling over before verifying his directions - that does NOT amount to reasonable suspicion of criminal activity.
If you are facing a Wake County DWI Charge and are in need of quality legal representation, contact us at the Matheson Law Office for your free consultation. We will be happy to discuss your legal options and ensure your rights are preserved.
Wednesday, June 26, 2013
Raleigh DWI Attorney | Cost of a DWI in North Carolina
So, recently I was having a discussion with my legal assistant about how much a DWI will cost a Driver and how I believe if more people realized the cost and hassle that comes from them, less people would be willing to risk catching one of these charges.
First, let me be very clear, as a Raleigh DUI Attorney, the more serious ramifications from driving while impaired are very well known to me. The injuries, death, and property damage that can come from an auto accident is very serious and the likelihood of said accident is compounded when introducing alcohol. That being said, most people do not think they will get in an accident ever, so arguing that point may not be as persuasive as what it will mean to their checkbook. So, with that cleared up, let's discuss what can be expected if you are charged and convicted of a DWI.
So, for starters, if charged with a DWI, the headaches come fast and severe. Even in a best case scenario, a Driver can expect they will lose their license for 30 days just for having been CHARGED with a DWI. Now, most driver's are eligible to get a Limited Driving Privilege after 10 days, but that is still 10 days of not driving just for being charged. Additionally, the Limited Driving Privilege requires the Driver to get a Substance Abuse Assessment ($100.00), a certified copy of their driving record ($11.00) and the Privilege itself costs $100.00. After 30 days, the Driver can get their license back, but that also costs $100.00. So, just for starters, at a minimum, a DWI Charge will cost at least $100.00 to get back their license, and potentially another $111.00 for the ability to drive 19 of the 30 days of suspension period.
Now, setting aside the cost of a defense attorney (this particular Raleigh DWI Attorney charges $1,500 for representation of a DWI Charge) let's discuss the absolute best outcome a driver could expect if they were convicted of the DWI (this is working on the assumption they don't fight the charge, in which case, they will definitely want a DWI attorney in their corner). The best possible outcome for a DWI charge in Wake County, and I would assume anywhere else in the other 99 counties of North Carolina, is a Level 5. While a friends, brothers, former boss may have a story about having it reduced to Careless and Reckless, those days have passed. Additionally, North Carolina does not offer a 'First-Offender' DWI or a 'Low Blood/Alcohol Concentration' DWI, all DWI's are subject to the same sentencing structure whether it's your first or fifth or you have a BAC of .08 or .28.
So, a Level 5 DWI carried with a fine of up to $200.00 and normally 24 hours of community service of 24 hours in jail (the Judge can elect to give you more community service or jail, but not less). Most people elect the community service as they don't want to spend the night in jail, however the community service program costs $250.00. With the addition of court costs and various other fines and fees that come with a DWI conviction, a Driver can expect to pay approximately $650.00-$750.00 for a Level 5 Judgment with community service.
In addition to the costs associated with the conviction, there are other costs that come from a DWI Sentence. First, if not already completed, the Driver will be required to complete a Substance Abuse Assessment ($100.00) and follow any recommended treatment. If you have already done the Assessment before for the Limited Driving Privilege, then you will not have to do it again so long as you started treatment within 6 months of the Assessment. The minimum recommended treatment is the Alcohol and Drug Education Traffic School ($160.00) but more intensive treatment may be recommended and cost will go up accordingly. Also with a DWI conviction, the Driver will have their license suspended for 1 year. During that period, the Driver may be eligible for a Limited Driving Privilege, with the same requirements as mentioned before, including the $100.00 cost to the court. Lastly, a DWI conviction in North Carolina allows insurance providers to increase premiums as much as 400% for the following three years. Therefore, an individual that pays $400.00/year can expect to pay $1,600.00 a year for the next three years (or the additional total cost of $3,600.00 over that three years).
It is also worth mentioning that for individuals with a BAC of .15 or above there are added burdens and costs that I won't get into now.
So, needless to say, even without the cost of hiring a Wake County DWI Attorney or DWI Attorney in your area, you can expect an exuberant amount of costs as a result of a DWI charge and conviction.
If you are need of legal representation in Wake county for traffic or criminal charges, please feel free to contact my office for a free consultation at 919-335-5291.
First, let me be very clear, as a Raleigh DUI Attorney, the more serious ramifications from driving while impaired are very well known to me. The injuries, death, and property damage that can come from an auto accident is very serious and the likelihood of said accident is compounded when introducing alcohol. That being said, most people do not think they will get in an accident ever, so arguing that point may not be as persuasive as what it will mean to their checkbook. So, with that cleared up, let's discuss what can be expected if you are charged and convicted of a DWI.
So, for starters, if charged with a DWI, the headaches come fast and severe. Even in a best case scenario, a Driver can expect they will lose their license for 30 days just for having been CHARGED with a DWI. Now, most driver's are eligible to get a Limited Driving Privilege after 10 days, but that is still 10 days of not driving just for being charged. Additionally, the Limited Driving Privilege requires the Driver to get a Substance Abuse Assessment ($100.00), a certified copy of their driving record ($11.00) and the Privilege itself costs $100.00. After 30 days, the Driver can get their license back, but that also costs $100.00. So, just for starters, at a minimum, a DWI Charge will cost at least $100.00 to get back their license, and potentially another $111.00 for the ability to drive 19 of the 30 days of suspension period.
Now, setting aside the cost of a defense attorney (this particular Raleigh DWI Attorney charges $1,500 for representation of a DWI Charge) let's discuss the absolute best outcome a driver could expect if they were convicted of the DWI (this is working on the assumption they don't fight the charge, in which case, they will definitely want a DWI attorney in their corner). The best possible outcome for a DWI charge in Wake County, and I would assume anywhere else in the other 99 counties of North Carolina, is a Level 5. While a friends, brothers, former boss may have a story about having it reduced to Careless and Reckless, those days have passed. Additionally, North Carolina does not offer a 'First-Offender' DWI or a 'Low Blood/Alcohol Concentration' DWI, all DWI's are subject to the same sentencing structure whether it's your first or fifth or you have a BAC of .08 or .28.
So, a Level 5 DWI carried with a fine of up to $200.00 and normally 24 hours of community service of 24 hours in jail (the Judge can elect to give you more community service or jail, but not less). Most people elect the community service as they don't want to spend the night in jail, however the community service program costs $250.00. With the addition of court costs and various other fines and fees that come with a DWI conviction, a Driver can expect to pay approximately $650.00-$750.00 for a Level 5 Judgment with community service.
In addition to the costs associated with the conviction, there are other costs that come from a DWI Sentence. First, if not already completed, the Driver will be required to complete a Substance Abuse Assessment ($100.00) and follow any recommended treatment. If you have already done the Assessment before for the Limited Driving Privilege, then you will not have to do it again so long as you started treatment within 6 months of the Assessment. The minimum recommended treatment is the Alcohol and Drug Education Traffic School ($160.00) but more intensive treatment may be recommended and cost will go up accordingly. Also with a DWI conviction, the Driver will have their license suspended for 1 year. During that period, the Driver may be eligible for a Limited Driving Privilege, with the same requirements as mentioned before, including the $100.00 cost to the court. Lastly, a DWI conviction in North Carolina allows insurance providers to increase premiums as much as 400% for the following three years. Therefore, an individual that pays $400.00/year can expect to pay $1,600.00 a year for the next three years (or the additional total cost of $3,600.00 over that three years).
It is also worth mentioning that for individuals with a BAC of .15 or above there are added burdens and costs that I won't get into now.
So, needless to say, even without the cost of hiring a Wake County DWI Attorney or DWI Attorney in your area, you can expect an exuberant amount of costs as a result of a DWI charge and conviction.
If you are need of legal representation in Wake county for traffic or criminal charges, please feel free to contact my office for a free consultation at 919-335-5291.
Thursday, June 20, 2013
Raleigh DWI Attorney | Silence is NOT Golden for Criminal Defendants
So, recently there was a very important ruling by the U.S. Supreme Court in case that will have far reaching implications for those facing hiring this Wake County Criminal Defense Attorney, as well as the rest of the country. The case in questions, Salinas V. Texas, deals with an individual being questioned by police regarding a homicide. The Defendant in this case was answering questions by the police but elected not to answer one specific question. As a result, his silence was used to convicted him of murder.
In this particular case, Mr. Salinas was being questioned by the police, but was not yet in custody. This is a very important detail due to the fact that had he been in custody, the police would have been required to read him his 'Miranda Warning' prior to questioning him, otherwise his responses, or lack there of, would be inadmissible.
Now, 'Miranda' can be a bit confusing as most people's understanding of this right derives from what they have seen on Law and Order, and that's not accurate. It is very common for those hiring this Raleigh DWI Attorney and Criminal Attorney to think their case is solid because they were not 'Mirandized' but that is just not the case. First, your right to remain silent and your right to have an attorney present for any question is in place regardless of when you are dealing with the police and whether you are in custody or not. Most people do not realize that they are completely within their right to refuse to answer any questions by the police. The second, and often times more confusing, issue with Miranda is exactly WHEN the police are required to inform you of your rights. Even though TV cops always 'Mirandize' Defendants the second they take them into custody, the reality is, that is not required and not often practiced. The point that police are required to inform you of your Miranda rights is when you are in custody AND you are being questioned by police. I'm certain it would seem that just out of convenience, police would simply 'Mirandize' the Defendant when they are being arrested and then they can question them once the Defendant decides whether to invoke those rights or not. The reality is, unfortunately, much more sinister.
Since people believe that, if they are being taken into custody, and have not been Mirandized, that they are safe. At a minimum, most people believe that their statements can't be used, or worse that their whole arrest will be thrown out. Actually, not only will your case not be dismissed because you weren't given your Miranda rights when being arrested, but any 'spontaneous statements' you made after your arrest are admissible in court. 'Spontaneous statements' are things Defendants say, after being taken into custody but without any questioning by the police. Most of the time, these are things said by the Defendant in the back of the cruiser. What's even worse, police know that most people have these misconceptions, and so they intentionally won't 'Mirandize' the Defendant, not ask them any questions, and record anything they say while in custody.
This brings us full circle to the ruling in Salinas v. Texas. The Supreme Court has ruled that a Defendant's refusal to answer a question can be used in their trial as evidence against them. Now, in Salinas' case, it was a 'significant silence' in that he had been answering the questions of the police, except for one question dealing specifically with shell casing at his residence. However, the fact that the court ruled the silence is admissible as evidence can have far reaching impacts in other cases. The State may attempt to argue that any refusal to answer questions is evidence of a guilty conscious, though any defense attorney (including this Raleigh Criminal Defense Attorney) has argued that invoking the right to remain silent is evidences of a guilty conscious, rather it's simply a citizen enjoying the benefit of their Constitutional Rights. From there, what the sitting Judge may do with this objection given the ruling in Salinas is hard to say.
Regardless, what is most important to take away from this recent ruling is 1. invoke your right to remain silent and to have legal representation early and without hesitation and 2. hire a capable defense attorney to represent your interest there after.
In this particular case, Mr. Salinas was being questioned by the police, but was not yet in custody. This is a very important detail due to the fact that had he been in custody, the police would have been required to read him his 'Miranda Warning' prior to questioning him, otherwise his responses, or lack there of, would be inadmissible.
Now, 'Miranda' can be a bit confusing as most people's understanding of this right derives from what they have seen on Law and Order, and that's not accurate. It is very common for those hiring this Raleigh DWI Attorney and Criminal Attorney to think their case is solid because they were not 'Mirandized' but that is just not the case. First, your right to remain silent and your right to have an attorney present for any question is in place regardless of when you are dealing with the police and whether you are in custody or not. Most people do not realize that they are completely within their right to refuse to answer any questions by the police. The second, and often times more confusing, issue with Miranda is exactly WHEN the police are required to inform you of your rights. Even though TV cops always 'Mirandize' Defendants the second they take them into custody, the reality is, that is not required and not often practiced. The point that police are required to inform you of your Miranda rights is when you are in custody AND you are being questioned by police. I'm certain it would seem that just out of convenience, police would simply 'Mirandize' the Defendant when they are being arrested and then they can question them once the Defendant decides whether to invoke those rights or not. The reality is, unfortunately, much more sinister.
Since people believe that, if they are being taken into custody, and have not been Mirandized, that they are safe. At a minimum, most people believe that their statements can't be used, or worse that their whole arrest will be thrown out. Actually, not only will your case not be dismissed because you weren't given your Miranda rights when being arrested, but any 'spontaneous statements' you made after your arrest are admissible in court. 'Spontaneous statements' are things Defendants say, after being taken into custody but without any questioning by the police. Most of the time, these are things said by the Defendant in the back of the cruiser. What's even worse, police know that most people have these misconceptions, and so they intentionally won't 'Mirandize' the Defendant, not ask them any questions, and record anything they say while in custody.
This brings us full circle to the ruling in Salinas v. Texas. The Supreme Court has ruled that a Defendant's refusal to answer a question can be used in their trial as evidence against them. Now, in Salinas' case, it was a 'significant silence' in that he had been answering the questions of the police, except for one question dealing specifically with shell casing at his residence. However, the fact that the court ruled the silence is admissible as evidence can have far reaching impacts in other cases. The State may attempt to argue that any refusal to answer questions is evidence of a guilty conscious, though any defense attorney (including this Raleigh Criminal Defense Attorney) has argued that invoking the right to remain silent is evidences of a guilty conscious, rather it's simply a citizen enjoying the benefit of their Constitutional Rights. From there, what the sitting Judge may do with this objection given the ruling in Salinas is hard to say.
Regardless, what is most important to take away from this recent ruling is 1. invoke your right to remain silent and to have legal representation early and without hesitation and 2. hire a capable defense attorney to represent your interest there after.
Tuesday, June 4, 2013
Wake County Criminal Defense | DNA Swabs of Arrestees
Well, it happened. The Supreme Court has ruled in the case of Maryland V. King where an individual was arrested for an assault charge when his DNA was taken from a swab of his mouth and was used to convict him of an unresolved rape case. While convicting a rapist is certainly good for the public, the broader issue of personal security and Constitutional rights against unreasonable searches leaves this Raleigh DWI Attorney with a heavy heart.
The issue at hand in this case was whether the swabbing of the mouth of an arrestee could be taken without first establishing probable cause to procure this evidence through a 'search.' Now, the State argued that this did not constitute a 'search' in the Constitutional sense but rather that it was more of a booking process like finger printing and photos being taken of arrestees. However, booking procedures are used to ensure identity of the individual they have in front of them. If the person arrested gave a false name at the time of the arrest, the Officers can cross reference the name with a DMV photo and physical description and the finger prints can be verified against any prior finger prints taken from the arrestee and/or the person who's name was given. DNA evidence, on the contrary is very limited in it's ability to verify the identify of the arrestee in that there is no running database of individuals DNA make up in addition to the fact that the testing is expensive makes this argument flawed.
However, regardless of where you may fall on the State's argument, the intrusion involved in this case cannot be understated. The Constitution provides all people in America the protection from unreasonable searches and seizures. For various levels of actions performed by the State, they must meet a 'standard of proof' which will justify an action that would otherwise be deemed unconstitutional. Many people are aware of 'reasonable suspicion' and 'probable cause.' These two standards of proof dictate when a police officer can stop an individual and when they can search that individual, their car, home, etc. These standards of proof are in place to try and prohibit the State from acting without restriction in their pursuit of criminals. We, as the general public, should not live in fear that we will be stopped for no good reason or searched just because. If the State is unable to prove they had reasonable suspicion to stop or probable cause to search, then any evidence acquired as a result of these stops and/or searches is deemed inadmissible. The routine swabbing of an individuals mouth to collect their DNA information of an ARRESTEE is unconstitutional and performed without probable cause.
In our great nation, an individual arrested for a crime enjoys the right of being held innocent until proven guilty. The sheer fact that an individual has been arrested does not, in any way, imply they are guilty of the crime as far as our justice system is concerned. Unfortunately, in our society, the perception is to the contrary and people assume those arrested are in fact guilty, otherwise why were they arrested in the first place. However, after handling hundreds of cases as a Raleigh Criminal Defense Lawyer, I can tell you that innocent people do, in fact, get arrested.
Individuals who are arrested, innocent or not, enjoy the same protection. That protection includes the right which prohibits the State from performing a search without first determining there was probable cause to search. The probable cause must be that it is more probable then not that the individual being searched or the items searched for, are related to the crime for which the individual is being charged or location being searched. A routine swab of arrestees mouths is not with probable cause as the State, in most cases, will struggle in proving that the evidence of the individuals DNA makeup would futher assist them in their prosecution of the individual.
I'm certain that many proponents for this DNA swabbing are excited about the prospect of all the cold cases that may be solved as a result of this not, Supreme Court sanction actions. However, convictions of crimes alone are not enough to justify the State exceeding their reach over our Constitutional Rights. As Justice Scalia pointed out during arguments, a whole plethora of cases could be solved if we set aside standards of proof and allowed the State to proceed without limitations in their detaining and searching of individuals, but that end does not justify the mean.
As a Wake County DWI Attorney and Criminal Attorney, it has been my pleasure to serve as the defense attorney for individuals facing charges in the Raleigh Courthouse. If you are in need of a criminal attorney, contact my office for a free consultation at 919-335-5291.
The issue at hand in this case was whether the swabbing of the mouth of an arrestee could be taken without first establishing probable cause to procure this evidence through a 'search.' Now, the State argued that this did not constitute a 'search' in the Constitutional sense but rather that it was more of a booking process like finger printing and photos being taken of arrestees. However, booking procedures are used to ensure identity of the individual they have in front of them. If the person arrested gave a false name at the time of the arrest, the Officers can cross reference the name with a DMV photo and physical description and the finger prints can be verified against any prior finger prints taken from the arrestee and/or the person who's name was given. DNA evidence, on the contrary is very limited in it's ability to verify the identify of the arrestee in that there is no running database of individuals DNA make up in addition to the fact that the testing is expensive makes this argument flawed.
However, regardless of where you may fall on the State's argument, the intrusion involved in this case cannot be understated. The Constitution provides all people in America the protection from unreasonable searches and seizures. For various levels of actions performed by the State, they must meet a 'standard of proof' which will justify an action that would otherwise be deemed unconstitutional. Many people are aware of 'reasonable suspicion' and 'probable cause.' These two standards of proof dictate when a police officer can stop an individual and when they can search that individual, their car, home, etc. These standards of proof are in place to try and prohibit the State from acting without restriction in their pursuit of criminals. We, as the general public, should not live in fear that we will be stopped for no good reason or searched just because. If the State is unable to prove they had reasonable suspicion to stop or probable cause to search, then any evidence acquired as a result of these stops and/or searches is deemed inadmissible. The routine swabbing of an individuals mouth to collect their DNA information of an ARRESTEE is unconstitutional and performed without probable cause.
In our great nation, an individual arrested for a crime enjoys the right of being held innocent until proven guilty. The sheer fact that an individual has been arrested does not, in any way, imply they are guilty of the crime as far as our justice system is concerned. Unfortunately, in our society, the perception is to the contrary and people assume those arrested are in fact guilty, otherwise why were they arrested in the first place. However, after handling hundreds of cases as a Raleigh Criminal Defense Lawyer, I can tell you that innocent people do, in fact, get arrested.
Individuals who are arrested, innocent or not, enjoy the same protection. That protection includes the right which prohibits the State from performing a search without first determining there was probable cause to search. The probable cause must be that it is more probable then not that the individual being searched or the items searched for, are related to the crime for which the individual is being charged or location being searched. A routine swab of arrestees mouths is not with probable cause as the State, in most cases, will struggle in proving that the evidence of the individuals DNA makeup would futher assist them in their prosecution of the individual.
I'm certain that many proponents for this DNA swabbing are excited about the prospect of all the cold cases that may be solved as a result of this not, Supreme Court sanction actions. However, convictions of crimes alone are not enough to justify the State exceeding their reach over our Constitutional Rights. As Justice Scalia pointed out during arguments, a whole plethora of cases could be solved if we set aside standards of proof and allowed the State to proceed without limitations in their detaining and searching of individuals, but that end does not justify the mean.
As a Wake County DWI Attorney and Criminal Attorney, it has been my pleasure to serve as the defense attorney for individuals facing charges in the Raleigh Courthouse. If you are in need of a criminal attorney, contact my office for a free consultation at 919-335-5291.
Saturday, September 3, 2011
Raleigh DWI Attorney Blog | NY Times Stop-and-Frisk Article
So, not exactly dealing with what the Raleigh DWI Attorney blog normally deals with, this Raleigh DWI Attorney blog entry is dealing with a police stop called the "Stop-and-Frisk." The NY Times Article that peaked my interest can be found here.
The Stop-and-Frisk is a means by which an officer can stop an individual based on "Reasonable Suspension" of some kind of 'criminal activity.' Reasonable Suspension is a very low standard, and though it is commonly used for other stops, particularly a traffic stop, this particular issue is a little different. In a common traffic stop, the officer has reasonable suspicion that a crime has, or is about to be, committed. They can use the same explanation for the Stop-and-Frisk, the big difference is, in a traffic stop, the officer an identify what crime it is they suspect has, or is about to be, committed.
If an officer catches you speeding with a radar gun, they know you have violated a traffic law dealing with exceeding the speed limit. If they run your plates and learn your registration is out of date, they can stop you for driving a vehicle that is not properly registered. For a Stop-and-Frisk, the officer doesn't know specifically what crime is involved, just that the actions of the individuals may indicate some criminal activity.
So, let's back up and explain specifically what a Stop-and-Frisk entails. When an Officer believes they have 'reasonable suspicion' that criminal activity is occurring, they can stop the individual to investigate. Now, the stop, like all stops, is not to last any longer than is necessary to ascertain whether a crime is, in fact, being committed, has been committed, or is about to be committed. Now, I can't say I'm particularly happy with this standard for an officer to interrupt a citizen who may very well be involved in perfectly legal activity. The real big issue comes in with the 'Frisk.' You see, during the stop, if an Officer has some reason to believe the individual is armed, they are permitted to frisk them. During this frisk, the Officer can feel the outer garments of the individual(s). If, during the frisk, they feel something that could be readily identified as contraband, they can seize it, and where necessary arrest the individual.
Now, you may be saying to yourself, "an Officer has a right to ensure their safety in the course of their duty." And, in most instances, I will agree with you. The problem with the Stop-and-Frisk is, the standard is so low for them to justify stopping an individual, they can readily come up with some 'action' on your part which constitutes possible "criminal activity." In fact, the mere fact that you turn and walk away when you spot an officer, or a quick hand gesture (which, supposedly, could indicate the tossing of contraband) is enough.
So, in these instances, the officer has not seen a crime be committed, or a potential crime be committed, just some action which they deem suspicion, in order to justify the stop. Once stopped, they can justify the 'frisk' with any number of reasons. what I am saying is, even though there is a supposed 'standard' that must be met before this Stop-and-Frisk can occur, it is so low, it is paramount to a random Stop-and-Search.
For a history lesson on this topic, it derives from a case called "Terry v. Ohio." It's an interesting case if you have the time to read it. In the mean time, back to the grind.
The Stop-and-Frisk is a means by which an officer can stop an individual based on "Reasonable Suspension" of some kind of 'criminal activity.' Reasonable Suspension is a very low standard, and though it is commonly used for other stops, particularly a traffic stop, this particular issue is a little different. In a common traffic stop, the officer has reasonable suspicion that a crime has, or is about to be, committed. They can use the same explanation for the Stop-and-Frisk, the big difference is, in a traffic stop, the officer an identify what crime it is they suspect has, or is about to be, committed.
If an officer catches you speeding with a radar gun, they know you have violated a traffic law dealing with exceeding the speed limit. If they run your plates and learn your registration is out of date, they can stop you for driving a vehicle that is not properly registered. For a Stop-and-Frisk, the officer doesn't know specifically what crime is involved, just that the actions of the individuals may indicate some criminal activity.
So, let's back up and explain specifically what a Stop-and-Frisk entails. When an Officer believes they have 'reasonable suspicion' that criminal activity is occurring, they can stop the individual to investigate. Now, the stop, like all stops, is not to last any longer than is necessary to ascertain whether a crime is, in fact, being committed, has been committed, or is about to be committed. Now, I can't say I'm particularly happy with this standard for an officer to interrupt a citizen who may very well be involved in perfectly legal activity. The real big issue comes in with the 'Frisk.' You see, during the stop, if an Officer has some reason to believe the individual is armed, they are permitted to frisk them. During this frisk, the Officer can feel the outer garments of the individual(s). If, during the frisk, they feel something that could be readily identified as contraband, they can seize it, and where necessary arrest the individual.
Now, you may be saying to yourself, "an Officer has a right to ensure their safety in the course of their duty." And, in most instances, I will agree with you. The problem with the Stop-and-Frisk is, the standard is so low for them to justify stopping an individual, they can readily come up with some 'action' on your part which constitutes possible "criminal activity." In fact, the mere fact that you turn and walk away when you spot an officer, or a quick hand gesture (which, supposedly, could indicate the tossing of contraband) is enough.
So, in these instances, the officer has not seen a crime be committed, or a potential crime be committed, just some action which they deem suspicion, in order to justify the stop. Once stopped, they can justify the 'frisk' with any number of reasons. what I am saying is, even though there is a supposed 'standard' that must be met before this Stop-and-Frisk can occur, it is so low, it is paramount to a random Stop-and-Search.
For a history lesson on this topic, it derives from a case called "Terry v. Ohio." It's an interesting case if you have the time to read it. In the mean time, back to the grind.
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