Happy Thanksgiving

Today, I want take time to wish each and every one of you a very special and joyous Thanksgiving day. No matter how meager it may seem, be thankful for what you have, for there are those who have much less.

Rights, Warrants, and Consent

Getting back on track in this series, we left off a couple of weeks ago about to discuss rights, warrants and consent.

To start this topic, which we will only brush the surface, consider where these rights are memorialized. I say memorialized intentionally because the founders believed these rights are inherent, that is we are born with them. They are memorialized in the 4th Amendment to the Constitution of the United States. Every state Constitution has its own version of this amendment. The Amendment states the every person has the right to be secure in their persons, places and effects against unreasonable searches and seizures. Further that no search nor seizure shall occur except by a warrant issued by a judge on a showing of probable cause particularly describing the place to be searched or the person or thing to be seized.

So the Constitution has very specifically defined how these rights are to be protected. You can read the actual Amendment and you will notice there are no exceptions to its requirements.

There is an anecdote I once heard that Justice Oliver Wendell Holmes was asked why there were no Supreme Court cases on the 4th Amendment. He supposedly stated that the Amendment was so direct in its pronouncement and so clear in its prohibitions that no such case were ever necessary. Today there tens if not hundreds of thousands of cases on the 4th Amendment.

Oddly, there is only one case which gets the bulk of criticism. That is the “exclusionary rule”. This rule arose from the U.S. v. Weeks case in 1913 and was later found applicable to state cases in Mapp v. Ohio. This rule states succinctly, if the police illegally obtain the evidence then it is inadmissible in court against the accused. The criticism is that it may let the guilty escape conviction by keeping out evidence which could prove guilt. But the criticism is short sighted and misses the bigger issue. The critics would permit official illegal conduct to prevail against the citizen. If the government is to be the bearer of the mantle of justice then it must play by the same rules as it holds its citizens. When the government becomes the law breaker there must be some accountability and the Supreme Court in those cases found exclusion as the mechanism to do that. Unfortunately, since Mapp was decided in 1961 there has been a large scale retreat from its mandate and there have been several attempts to eliminate the rule altogether.

On the other hand, many cases have given the police greater lattitude to search and seize without consulting a magistrate or judge before doing so (the term police is used generically and includes all types of law enforcement agents state or federal) . Some such “exceptions” are the “automobile exception”, “officer safety exception”, exigent circumstances exception”, “officer probable cause belief exception” and finally consent.

Yet, like the exclusionary rule, none of these exceptions appear in the Amendment. These are judge made exceptions. They expand the powers of the police in ways not envisioned nor permitted by the Constitution.

Of these exceptions the only one you as the citizen have at your disposal is consent. Because of its extensive use by the police, it is the one you are most likely to encounter if you have a police contact. However, it will probably be presented to you in a most casual manner, which disguises its intent and scope. Borrowing from the anti-drug use campaign, Just Say No. The most frequent application of the consent request is to motorists stopped for some trivial traffic violation. After being advised they are only getting a warning, the questioning shifts to the contents of the car or other vehicle. Whether there is anything illegal in the vehicle and can the officer “take a quick look”. This search has nothing to do with the alleged traffic violation and every driver and passenger should Just Say No. At the point of being asked for consent you are legally free to go, as you should have already been given your license, registration and insurance documents back. Tell the officer to have a nice day and leave.

I say that, especially if you are innocent of any illegal activity. We do not live in a police state where we need permission to go about our normal lives. Do not take the bait that “if you have nothing to hide”. That is a phony analogy. Ask the officer if you can come watch him and/or his wife bath, if they have nothing to hide. That hyperbole demonstrates the irrelevance of the “nothing to hide” bait, its not about hiding its about your rightful privacy and an invasion without cause by the police.

So, in summary, the police legally need a warrant according to the Constitution, can get by sometimes on one of the court made exceptions or get your consent. Never give up a right needlessly. These are your rights, use them or lose them. Be safe and be aware.

Presumption of Innocence

I am going to alter what I stated I would discuss this week and save that to next week. This week I want to discuss a concept which has been much maligned over the last several years, especially on talk radio, as a legal fiction and something which need not be honored in “real” life. That concept is the “presumption of innocence.”

Our criminal legal system has only three parts. First is the prosecution. Second is the defense. Finally, is the court.

The defendant while involved is not a direct participant, unless the option of defending one’s self pro se is exercised. The alleged victim is not a participant though also involved. This moniker of victim is itself a misnomer at the early stages of the prosecution. The correct term would be “complaining witness” or simply “witness”. A criminal prosecution is NOT between the complaining witness and the defendant. A criminal prosecution is an action brought by the state or federal government against an individual.

If you are charged with a criminal offense the law presumes you are not guilty. This presumption endures throughout the prosecution. The burden of proof never shifts to the defendant. Yet the use of the term victim erodes that presumption. People claiming “victim” status, of late, have been heard to complain that their rights are less than the defendant’s. But this is as it should be. These persons are not being prosecuted by the government for something they are presumed innocent. The prosecutor is not the lawyer for the complaining witness.

The prosecutor is the lawyer for the power of the state or federal government. The prosecutor does not file any criminal charge in the name of the complaining witness. Indeed, the charging document may not even name the complaining witness in its text.

Someone many years ago, mistakenly, decided to equate privileges to which the complaining witness may be entitled to the Constitutional rights of a defendant. As a result Oklahoma passed a “Victm’s Rights” measure which provided the “victims” of criminal offenses with certain information during the prosecution. That law is still in full force and effect in this state.

Now a California billionaire has decided to change the Constitutions of several states, including Oklahoma. He has spent $900,000.00 dollars to enforce his will on the Constitution of Oklahoma. SQ 794 will alter the State Constitution in ways that have not been explored or explained. There has been no discussion as to why the current law is inadequate to the task of providing the information it mandates.

Preemptively the current law is, therefore, adequate in the absence of any criticism of any deficiency. The question has been passed in other states and is under challenge for violation of federal constitutional provisions. Montana has declared it un-Constitutional there. Other states are attempting to repeal the measure and its exorbitant costs.

At a practical level, if you are charged with an offense which you did not commit, you want an objective prosecutor weighing the matter. You do not want the person accusing you of being the final arbiter of your fate. This state question appears to give the ability of the “victim” to disapprove any disposition of the case. Private citizens should not wield such power in a criminal case. We recently watched a spectacle play out in Washington over allegations of prior conduct by an appointee. Those who have previously ridiculed the presumption of innocence were suddenly fully on board with that concept. As it was not a criminal prosecution there were no “victim’s rights” applications were involved. But “what if”? Should you be charged, and the prosecutor decided to dismiss the case, would you want the accuser to be able to block that independent professional decision? The accuser (victim) can even withhold evidence of the defendant’s innocence by refusing to be interviewed.

Finally, if you were charged and tried and found not guilty as the law requires, then this person is not a victim. This state question attempts to alter your rights as a citizen. There are no explanations of how to restore your altered rights under this state question. How do we make whole that which this state question would remove? What are the risks of proceeding with bad prosecutions to placate a vocal complaining witness; placing the innocent in greater jeopardy because it is easier than dismissing the case.

AS always these are your rights, protect them. We do not need to change the current law. Changing a Constitution is even more serious and should never be done for light and transient reasons, even one’s which sound good on the surface. YOUR rights to Due Process are in grave jeopardy in this question.

It is a dangerous position to question “victim’s rights” but because each of us is potentially a defendant which should always question such proposals with clear eyed skepticism and act with great reserve.

Law Enforcement Agent Promises

Last time I left the discussion of law enforcement agent promises to a later day. To keep these musings in some reasonable sequence it is a good time to engage in that dialogue.

Most have seen the various television cop shows where the detective makes some sort of deal with the arrestee to get the confession or other information. Sometimes the detective leads the person to believe that which is not true. But the TV character is usually the lead actor and as such he must have personal integrity and stops short of outright lying to the “perp”.

Most people are ill-equipped to handle an interrogation or as they are euphemistically called today an interview. Today’s police or, more broadly, law enforcement interviews are not the type generally depicted in movies or on television. They prey on a persons emotions, doubts and fears primarily. Plus, there may be out right lying about knowledge, evidence or other incriminating matters to get the person to make the statements desired. Courts have held that it is permissible for law enforcement to lie to people to get information as an acceptable form of investigative technique. Some common examples are the pretense of having all that is needed and giving the person a chance to save themselves. The pretense of being a friend to the person and the statements made will help that person either avoid charges or will get a better sentence. The assertion the agent “will go to bat” with the prosecutor or the judge for the benefit of the person. Another “oldie but goodie” is commiserating with the person, that is, pretending to have empathy with them and understanding what they did, just explain it a little more. One of my favorite techniques is the “brother in law” scenario. In this instance the investigator just happens to have a brother in law who was in the same situation as the person being interrogated. The investigator explains how he talked to his brother in law and the brother in law “came clean” admitted to his offense and the investigator was able to significantly help the brother in law.

Except this was all a lie there was never such a brother in law. Another ploy, is the “We can end this today, if you talk to me.” The inference is the investigation will stop and there will be no further jeopardy for the person, if they just admit to the acts desired by the agent.

So, with all of this arrayed against you, what do you do? The answer to this is as obvious as it is simple. You exercise your rights under both the 5th and 6th Amendments to the Constitution. First, you state that you are exercising your right to remain silent under the 5th Amendment (you must phrase it this way). Merely refusing to talk will not accomplish your legal goal, which is to not have your silence used against your interests. Second, you excercise your right to have an attorney of your choice (preferably) to counsel with you before any questioning. We have a small sign in our office library which states, “You have the right to remain silent, we suggest you consider it.” When there is an investigation into a criminal offense you should more than consider it, you should exercise it. The examples above are real. They are all statements which were used to get the person to make incriminating statements.

Remember these are your rights and you must be the one to exercise them. Next time we will talk about your rights, warrants and consent.

Until then,

Your rights use them or lose them.

Federal Prosecutions

This week let me focus on specifically federal prosecutions, as that is the focus of my practice and an area unfamiliar to most people.
Starting with, “Once upon a time” federal cases were reserved for the most serious violations of law with far reaching implications. The celebrated FBI “Ten Most Wanted” list with names like Capone, Gotti or Bulger. Cases involving counterfeiting of U.S. Currency. Cases which involved espionage, such as that depicted in the Tom Hanks film, “Bridge of Spies”. The Cali or Medellin drug cartels all conjure images of federal investigations and prosecutions. But how do these cases get started?

Unlike the majority of state cases, which are discovered in process and arrests made immediately. Or where there is an offense, say a murder or burglary and a brief investigation results in arrest of the defendant. Federal cases tend to be more deliberative, though not always.

The initiation of a federal prosecution can be a coordinated effort between the law enforcement agency (FBI, DEA, HSI etc.) and the Office of the United States Attorney. Specifically, an Assistant United States Attorney (AUSA) will coordinate with the case agent. The case agent is the lead investigator on the case which may have multiple other agents or even multiple agencies. Federal investigations may easily take months or in some cases years to bring to the point of being ready to file charges or colloquially prosecute.

During that investigatory time many things may be happening. There is usually some sort of surveillance of specific locations, especially in major drug cases. Often this surveillance is conducted by placing clandestine cameras in locations which give direct view of the subject home or business. Small and unobtrusive these cameras run 24 hours a day. Sometimes physical surveillance is conducted by aircraft, either helicopters or airplanes which are specially equipped to record visual and/or audio. In the case of such aircraft they also are able to use thermal imaging and detect heat signatures of vehicles recently driven or persons walking outdoors. There is debate as to whether the aircraft employ “Stingray” devices to ping or spoof cell phones, this is routinely denied. However, it is also known that certain agreements require the denial of such use as was discovered in a district court case in the District of Columbia.

Another frequently used investigation tool is referred to simply as a Title 3. In federal criminal prosecutions that refers to the interception of telephone calls by government agents. Without getting into the mechanics of obtaining the authorization, a federal court grants a warrant to make the interceptions. Once the warrant is obtained the target telephone number is then recorded every time it is used to have a conversation. The content of the calls is then divided into relevant or non-relevant, that is, talk which is pertinent to the investigation and that which is not. Such recordings can run into the hundreds of hours before a case is ever filed.

During this investigatory period, however long it may take, the government is amassing evidence and making records of the investigation for later use. Sometimes these are FBI 302s or DEA 6s which are reports of investigation and may contain a variety of information.
The government may “recruit” persons to assist in the investigation through arrests and “cooperation agreements” with the arresting agency. These generally need to be approved by the AUSA to have value later in the prosecution of that individual. Getting into such issues as government agent authority to make deals, promises and assurances is a topic for later.

So, for now, remember they are your rights, use them or lose them. Every encounter with law enforcement has the potential for arrest, be polite be courteous but be aware. Exercise your Constitutional rights to remain silent and to have counsel present.