Happy Independence Day

As we start this week, in which we will celebrate the 242nd birthday of this country, let me clean up some issues and matters since the last post.

First, the U.S. Supreme Court held that police need a warrant to search your cell/smartphone for historical data which could be used to track your prior movements. This case is consistent with the prior case of Riley v. California, which was also authored by Chief Justice John Roberts, the vote was 5-4 but the Gorsuch dissent indicates that he might be a 6th vote in the right circumstances.

Oklahoma passed the medical marijuana question by an impressive margine. The question arises what is the state of gun ownership if you have a medical marijuana card? I would say that merely possessing some card or prescription for the possession would not be a problem per se. However, this state question does not remove the federal prohibition on such possession. Also should a person be a regular user of marijuana then they would be prohibited from the possession of any firearm or ammunition under federal law.

Finally, I want to say a word about theOklahoma Criminal Defense Lawyers Association, Criminal Defense Institute which was held last week. I was privileged to do a presentation for a large group of assembled lawyers from across the state. I taught on the topic of state court issues which can result in federal criminal gun prosecutions.

I was honored to receive the Jack Dempsey Pointer, Jr., Champion for Justice Award as the Association’s 2018 selection.

Why your rights are important

The other day, I posted the news article about my recent victory in the appellate court. For my purposes here, the appellated decision comes at a most opportune time considering the discussions I have posted to this point. Consider the traffic stop posts. This case is an example of how cooperation can be manipulated into you being prosecuted and having your property seized, even if you have done nothing wrong. In this case, the traffic stop was for failing to signal a lane change long enough (100 feet). No ticket was ever written for this alleged violation. Some cultures in our country do not have a tradition consistent with European banking practices and are more comfortable handling financial transactions among themselves. All of this is perfectly legal and no criminal conduct is implicated. For example, Zerkin (a fictional person of non-descript ethnicity) wants to start a business, so the community bands together and pools their resources. The community may be spread across several states in this fund raising. Zerkin is told there has been a collection made and he can pick up his business funds at Moneyville, State of Joy. He drives there, picks up his investment funds and starts to return home. On the return trip Officer Ever Vigilant stops him for a minor traffic infraction because he has an out of state license plate. He is warned about the violation and about to be released, when the “take a quick look” question is posed. Zerkin not fearing for having done anything illegal says, “Sure”. He watches as the “quick look” turns into seats being removed and placed on the roadside. This is not what he envisioned, but it is what happens. His investment funds are found and he is accused of possessing drug proceeds. He had hidden the money to protect himself against robbery or theft if someone broke into the car and rummaged around. Zerkin is now in the world of the criminal justice prosecution. He doesn’t use drugs. He had no drugs on him and none were found in the car. Later, Officer Vigilant testifies that he has no knowledge of Zerkin ever being involved in any drug transactions and cannot said specifically where the mone came from. He admits that he has no facts which support the violation of any drug law. The criminal case against Zerkin gets dismissed but the state continues to keep his property and makes him fight to get back what should have never been taken to begin with. The property was kept on no probable cause, no articulable basis, just the whim of the officer to seize and the capriciousness of the state to keep it.

This is the nature of the current application of seizure and forfeiture laws in this country. The state, through these laws, can sit by the side of the road, stop travelers and seize anything believed of value without the slightest fear of retribution.

This cautionary tale is based on facts. It demonstrates the reasons for the warnings whch I put in the prior posts. Again, if stopped, be polite but business like. Provide the required documents. Do not be enticed into a seemingly “friendly” conversation — it isn’t — with the officer it is business. Do not consent to a search. If the officer has probable cause he does not need your consent. Do not consent to wait for a drug dog. If the officer persists in you not leaving — you have been seized and that is a 4th Amendment issue. Do not attempt to explain the law to any officer on the side of the road.


Do you have time for a couple more questions?

We left our hapless driver last time about to get out of the police vehicle and is confronted with a question, “Do you have time for a couple more questions?” Frequently the driver is half out when this is asked. Not wanting to appear “uncooperative” most drivers will say “Yes” or “Okay”. These are the first wrong answers. You have your license and insurance/registration in your hand. The purpose of the stop has been concluded and you are free to leave. Then say, “No I do not.” And then leave. If you say, “Yes”, then you have just agreed to make this a consensual situation, in other words, you are now volunteering to be there and talk to the officer. Any thing you say can and will be used against you. This is not general conversation, the officer is fishing for something he can claim gave him probable cause to search. Next will come the question about the items you may have in your car, SUV etc., and whether the officer can “take a quick look”. Again the answer should be “NO”. YOU should then terminate the conversation and leave.
Many of you may be thinking, if I have nothing in the car — why not let him “take a quick look”? First because this is a search without probable cause and he is going to detain you for how ever long it takes him to really search your vehicle. If you have luggage it can be removed, if you have other items you may be seeing them set on the side of the road. Once you consent he may call for a drug dog to be brought to the scene and this alone may take 15-20 minutes to get there.
Others may be thinking, if I refuse it will look suspicious. That is also wrong headed. We have a Constitutional right not to be searched except on probable cause and that right is worthless if you do not exercise it.
Currently 29 states have some form of legalized marijuana law. Oklahoma does not. The fact that it is legal somewhere else does not prevent prosecution if it is possessed in Oklahoma. Depending on quantity, the charge could be possession with intent to distribute which cares a more harsh punishment than simple possession. This is just one example.
In the end, exercise your rights. Do not consent to a search, do not consent to any conversation beyond that necessary to conduct the traffic stop. Be polite, be pleasant but do not be fooled into thinking this is anything but business for the officer. The officer cannot legally detain you for the purpose of getting a dog to the scene after the traffic stop is finished, without some articulable probable cause, according to the Supreme Court. These are your rights — USE THEM.

The Trivial “Traffic Stop”

This week let’s look at one of the more common situations which I encounter in my practice — the trivial “traffic stop”. I used the word trivial intentionally. This is not the ordinary speeding or reckless driving stop, which generally are valid. By trivial I mean a stop which is technically legal but used for other purposes than traffic management. One of the key aspects of such trivial stops is the assurance at the beginning of the stop that no ticket will be issued. The stop itself is generally for some obscure violation like crossing an edge line or following too close (without a collision or other traffic reaction) or changing lanes without signaling long enough (yes you must signal for not less than 100 feet before changing lanes).
So, if there is no ticket, why do these occur? They are investigatory and interdiction traffic stops. The point is to get you to talk to them so they may develop probable cause to search your vehicle. The officer has the legal right to request that you present your license and insurance verification card. Rarely in Oklahoma is anyone asked about registration. If asked, it is the white page you get at the time of purchasing your sticker or new plate and generally you throw it in the glove box and forget about it.
The officer is entitled to ask you about matters unrelated to your reason for being stopped. These include travel plans, destinations, hotel usage, persons you will be visiting etc. He/she is looking for responses which can be characterized as inconsistent. The officer is not being friendly, he is being friendly to get you to talk so he can search. Don’t take the bait. Be pleasant but the officer is working and this is not a social gathering. You have the right not to talk to them about such extraneous matters as where you are going or where you are coming from.
Eventually, you will be given your Warning ticket and your license and insurance will be returned. You are now free to be on your way — but wait next comes the ubiquitous “Do you have time for a couple more questions?”
NEXT TIME — how you answer that question is going to determine your immediate future and possibly your freedom.

Initial contact non-custodial

Continuing our discussion of the initial contact non-custodial (i.e., not under arrest) interrogation, let’s look at some of the tactics you might be facing. There is a lot of truth to the good cop/bad cop maxim. Sometimes this can be the same person. Often a person will be presented a situation in which the detective or agent will present themself as the only hope for you. This is false and is designed to get you to believe that the illusory relationship exists so you will make the incriminating statements sought by this interrogator. Also note that I use the term interrogation and interrogator not the law enforcement preferred “interview”. YOU are not being interviewed you are being interrogated. This is not a job interview but law enforcement attempting to get enough evidence against you to charge you with a crime. An interrogator has no authority to promise you any benefit from talking to them. More common is the vague promise, the “I can help” without saying what that help actually is. It is a crime for you to lie to law enforcement, it is called “obstruction”. Remember it is not a crime for them to lie to you. If they lie to you and you make ill advised statements then you will suffer those ill effects. The bad cop is less likely today than the good cop, threats and predictions of dire consequences for not talking to them have largely disappeared in favor of the “be your friend” approach.
Finally, don’t be misled by the “your just a witness” ploy. I have represented several individuals who began as “just witnesses” and ended up defending against charges when the target case fell apart. I recently represented a person in this “witness or defendant posture” being pressured by the FBI. He retained me and I provided him the tools he needed and the representation to make the FBI go away. He was never charged. I provide clients a form titled Assertion of Rights which, among other things, directs law enforcement to not talk to my client but to call me. I then tell them we are not talking to them in most instances.