BIG U.S. Supreme Court decision on Search & Seizure

Missouri Criminal Defense LawyerIn 1981 the U.S. Supreme Court decided, in the case of New York v. Belton, that if an occupant of a motor vehicle was arrested, the police could search the entire passenger compartment of the vehicle to look for weapons or evidence of a crime.

Under the fourth amendment such a search would normally be considered unreasonable and therefore unconstitutional, unless a search warrant was obtained. Even so, the Belton case has been the rule in Missouri ever since and gave the police an absolute right to search the entire passenger compartment of a vehicle once any occupant of that vehicle has been arrested.

Yesterday, the U.S. Supreme Court in Arizona v.  Gant overruled its 28 year old decision in Belton by holding that the police could not search inside a vehicle, once the arrested person was away from the car, unless they had reason to believe that evidence of the crime might be found in the vehicle.

This is a huge decision.  It is huge because a large proportion of drug arrests occur when the police arrest someone for an unrelated offense such as driving while revoked.  Once the person is handcuffed and placed in the patrol car, the police always return to the vehicle and search the passenger compartment thoroughly.

It will be interesting to see how both police and citizens react to this change in the current search and seizure law.

Citizens may be more likely to step out of their vehicle after being pulled over so as to ensure that they will not have their vehicle searched if they were arrested for some reason.

Search and seizureOne wonders if some police might be tempted to change their current practice of getting suspects out of a vehicle before arresting them. It’s hard to imagine a driver being arrested while still seated in his car and then being commanded to sit still while the officer searches the vehicle around him.  If that were permitted, we might see the police running public service announcements telling drivers to remain in their vehicles when stopped, lest they be attacked by police officers who–misunderstanding the person’s actions-believe they are in danger.

I doubt the courts will permit the police to search vehicles by forcing arrested persons to stay inside the vehicle after arrest. If that is the case, then getting out of your car at a traffic stop would be an unnecessary precaution. It might also serve as a signal to police that evidence of a crime may be in the vehicle.

Another thing we may see is an escalation of vehicles being towed by police after an arrest (for safety reasons, of course). Then the police would thoroughly search the vehicle under what is known as the “inventory” exception to the search warrant requirement.  Click here for “inventory search” explanation.  A driver fortunate enough to be pulled over near a legal parking space may want to take advantage of that opportunity and deny police an excuse to tow the car.

We will have to see how this all plays out.


Come back with a warrant

Dallas cop draws gun to stop family rushing to bedside of dying family member

Here’s a story about a Dallas cop who watched an SUV as it stopped at a red light just long enough to check for traffic before continuing on. Moments later the car–which had its hazard lights blinking–pulled in at a hospital emergency room. The family had been notified that they needed to hurry to the hospital if they were to see the wife’s mother before she died.

The cop immediately drew his gun and held the driver outside the emergency room as the driver begged the cop to write the ticket (for going through the red light) and let him go inside to his family. The cop decided the driver needed an extended attitude adjustment. The driver was NFL Player Ryan Moats, who–while obviously distressed–was unfailingly polite throughout the stop. The cop detained him for fifteen minutes while the family member inside died.

Here is the link with a video: Dallas police: Officer drew gun during traffic stop of NFL player outside hospital


Change would let Missouri police hold suspects twice as long without charges.

When a police officer arrests a person for any criminal offense–whether a misdemeanor or felony–the suspect can be held in jail for 24 hours while police and prosecutors decide whether the person will be charged with a crime. At the end of the 24 hours, the prosecutor must either file a charge or the person must be released.

State Sen. Jack Goodman is considering filing a bill that would increase the 24-hour detention time to 48 hours. Click for  Story: Bill would give prosecutors extra 24 hours to file charges

When I was a prosecutor someone was always trying to get this time expanded. A few years ago the time limit for holding uncharged suspects was increased from 20 hours to 24 hours. Four more hours. Not a real big deal, but it meant having to do less math, so I was for it.

The trouble is that many persons that are arrested get released at the end of 24 hours because there is no case against them or the prosecutor just wants to take a week or two to consider the evidence. This change would mean that a lot of people–who may never be convicted of anything–will be spending most of the weekend in jail.

As far as helping the police and prosecutors, this new law would better allow them to enjoy their evenings and weekends. Sometimes an officer makes an arrest near the end of his shift and he might have to stay late to put together the paperwork for the prosecutor.  If we double the time uncharged suspects could be held, the reports could be completed at a far more leisurely pace.

The truth is that this bill is unnecessary. Twenty-four hours is plenty of time to put together criminal charges without anyone working up a sweat. If police don’t have enough evidence to file charges, they ought not be arresting anyone. That is how it works and it works fine.

While this change not essential, it would help police, prosecutors and judges protect their times of rest and relaxation. I like my free time as much as the next guy, but it’s unfair to the prisoner who sits–unconvicted & uncharged–waiting for someone to read his case and decide whether charges will be filed.


Police Interrogation: No lawyer will save you; you must save yourself

We’ve all seen the cop show where the police are sweating a confession out of the accused and just as the killer is about to admit his guilt, the defense lawyer rushes in and cuts off the interrogation by shouting: “Don’t answer that! This interview is OVER!”

Apparently defense lawyers (like the Terminator) are able to barge into secure areas of the police station anytime they want. Guess what?  This NEVER happens.

When the police arrest someone and want to question them they first must read the suspect his rights as set forth in the US Supreme Court case of Miranda v. Arizona (1966). Most cops will carry a card from which the rights are read:

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to have an attorney present during questioning. If you cannot afford an attorney, one will be appointed for you. Do you understand these rights?

  • Number 1 is good to know, especially when read by a police officer, who–at this particular moment–is not your friend.
  • Number 2 is so blunt and honest it makes me want to cry. Read it again. Notice how “anything you say” can be used against you. So if you tell the truth, they can use that against you. And if you tell a lie–and they later find out–they will use that against you. Consider the meaning of remaining silent. It’s for the best. Just say: “I want to talk to a lawyer first.”
  • Number 3 gets a little tricky. It seems to say that if you ask for a lawyer, they get one in for you. News flash: THEY WON’T. But they have to stop asking questions (which is the main point here).
  • Number 4, like number 3, should not be misunderstood to mean that you will see a lawyer anytime soon. If it’s a Friday night, it would be a miracle if you saw the public defender before next week.
  • Number 5 just says you can confess to all, part or none of the crime. You can stop confessing whenever you want.

Another thing to keep in mind about these rights is that they are the rights of the accused, not his lawyer. If your spouse has hired a lawyer and sent the lawyer straight to the jail, he will not be rushing in to stop the questioning. You will not see him or even know he is in the building until the police are finished with their questions.

That is the bottom line: no suspect is going to talk to a lawyer until the police have finished their questioning (one exception being a DWI-related case where suspect is permitted to call a lawyer, IF THEY ASK TO).

If the police are smart–and many are–they will not let a suspect talk to ANY OUTSIDER until they get everything they can from the suspect. That will happen more quickly if the suspect stops all questioning by asking to talk to a lawyer.

Once the arrest and booking is over and the person is (hopefully) bailed out of jail, the accused will need a lawyer, but the case that is eventually presented to that lawyer to defend may be very different, depending on how well the defendant listened to the Miranda warnings and asserted those rights.

 

Missouri man dies after Taser fired during traffic stop

Suspect Dead After Moberly Police Use Taser

TaserMoberly Police apparently killed a 23-year-old drunk driving suspect with a taser early this morning during a traffic stop. Police Commander Kevin Palmatory said the young man resisted arrest, so the officer used his Taser twice. The suspect died at the scene.

I’m going to go out on a limb and predict that this homicide will be ruled to be justified because the officer was following departmental rules. Perhaps someone needs to look at those rules again. One of these days, a wise police chief will announce that taser use will be limited to situations that would otherwise justify the use of deadly force. If that were the case, this kid would be alive today.

Tasers to be outlawed in Missouri? Well, sort of.

We hear in the news nearly every week how the police have either misused a Taser on somebody or killed somebody with one. Read: Tasers: Safety measure or Electronic attitude adjustment?

There is a bill in the Missouri Senate which –at first glance–I wondered if it might address this problem. But it does not. Sen. Yvonne Wilson is sponsoring Senate Bill 813, which would make ownership, possession or discharge of a taser a felony.

This prohibition would not apply, however, to police and a handful of other persons in legal/security related professions.

For some reason, I don’t feel any better now.


And now this ironic note from our Straining at Gnats and Swallowing Camels Dept

  • In Missouri, you can carry a firearm openly. You can carry it concealed, if you get a permit. You can carry it at home or concealed in your car even without a permit.
  • Now with a knife, you can own and carry one, but not concealed. You can’t get a permit.
  • Finally–if this bill passes–you cannot even own a Taser, let alone use it, even to protect against an intruder in your own home..

Sigh