The interim chief of police of Columbia, South Carolina, Ruben Santiago, believes you should not be allowed to criticize his department. If you do, you may be subjected to punitive police harassment. Citizen Brandon Whitmer had the temerity to post a comment critical of the police’s recent bust of a marijuana user and suggested that police resources might be better spent pursuing perpetrators of violent crime in other parts of the city rather than “stoners.” Whitmer went on to comment “It’ll be legal here one day anyway,” referring to the marijuana. Police chief Santiago responded, “Thank you for sharing your views and giving us reasonable suspicion to believe you might be a criminal, we will work on finding you.” The clear message is: the police will not tolerate the exercise of your right to free speech, unless they approve of your content. Read more here.
Posts in category Criminal Defense
This is a piece of advice we never thought we would have to give. In addition to the many other things you must consider during an encounter with the police, now you must consider the tension of your butt. Earlier this year in New Mexico, a man was pulled over for allegedly failing to make a complete stop at a stop sign. After the officer asked the man to step out of his car, the officer determined that the man was “clenching his buttocks” and therefore must be hiding drugs in his butt. The officer obtained a warrant and took the man to a hospital where he was subjected to two rounds of x-rays, two internal anal exams, three enemas and a colonoscopy. No drugs were found and the man is suing the police. At no point did the man consent to a search, AND the hospital subsequently billed him for its “services.” Read the gruesome details here and here.
Check out this article which describes how the prosecutor in a Williamson County, Tennessee, criminal case filed a motion asking the Court to prohibit the defense from referring to the government as “the government.” The prosecutor argued in her motion that ”The State believes that such a reference is used in a derogatory way and is meant to make the State’s attorney seem oppressive and to inflame the jury.” In the Defense’s response, attorney Drew Justice suggested, among other things, that if the government cannot be called “the government,” then the Defendant should be called “that innocent man” and defense counsel “Captain Justice” instead. I’ll let you draw your own conclusions.
I first ready this story on Raswstory.com. It was so unbelievable that I had to look a little further and yes, this story is true. Judge Elizabeth E. Coker engaged in inappropriate, unethical ex-parte communication with the prosecution during a criminal trial. Ex-parte means literally “from one party.” In other words, the judge communicated only to the prosecution, and not to the defense attorneys. The judge offered to the prosecution, via text message, suggestions on questions to ask witnesses and and provided other information to “assist” the prosecution in obtaining a guilty verdict. This sounds pretty bad, and really undermines the credibility of the courts, but the judge was not subject to any disciplinary action; she was simply asked to voluntarily resign and has not acknowledged any wrongdoing. As of yet she has not been disbarred.
This is a great hour-long video by phoenix attorney Marc Victor. It goes into some detail about how to conduct yourself during a traffic stop so that you end up alive and safe at the end. That’s no joke – anytime you have an encounter with a police officer, you run the risk of being injured or killed. Below are some bullet points summarizing the highlights from the video, but you should really take the time to watch the video yourself.
- Don’t get pulled over in the first place. There is no upside to a traffic stop, and the downside is unlimited. You could end up dead.
- Keep your hands on the steering wheel.
- Evaluate the police officer: Are they calm, respectful, real “peace officer?” Are they a sneaky officer looking for info to use against you? Are they a brand new officer straight from the academy looking to exert their authority on you?
- Do nothing to excite the police officer with the gun, badge and unlimited backup. Follow directions.
Things you MUST DO during a traffic stop:
- Pull over in a spot where the officer will feel safe. A police chase always ends badly.
- Be prepared to provide license, registration and proof of insurance.
- If the officer asks if you have a concealed firearm, you have to tell them.
- The officer has the right to take possession of the firearm during the traffic stop.
- The officer has a right to order the driver and any passengers out of the vehicle. Don’t argue about it.
Things you should NOT DO during a traffic stop:
- Don’t volunteer information. You do not have to tell the officer where you are going, where you came from, etc.
- Don’t lie. You can refuse to answer, but don’t lie.
- Don’t argue, even when the officer is wrong. You do not have the right to resist even an unlawful arrest.
- Don’t play “games.” In other words, do not engage in field sobriety tests of any sort on the side of the road. Sobriety tests after arrest are a different story.
Things you SHOULD do during a traffic stop:
- Determine when you are free to leave. If it is unclear, ask if you are free to go. If you are free to go, GO!
- Sign the citation. You are only acknowledging you have been served (i.e. you have received a copy of the citation).
- There is no way it can help. In other words, you are not going to talk your way out of getting arrested; it just doesn’t happen. Also, what you say is only admissible at trial if it is offered against you.
- If you are guilty — and even if you are innocent — you may admit your guilt with no benefit in return. By the time of the trial, your own statement to the agents may be the only admissible evidence, don’t give it to them. According to The Innocence Project: “In more than 25% of DNA exoneration cases, innocent defendants made incriminating statements, delivered outright confessions or pled guilty.”
- Even if you are innocent and deny your guilt and mostly tell the truth, you can easily get carried away and tell some little lie or make some little mistake that will hang you.
- Even if you are innocent and only tell the truth, you will always give the agents some information that can be used to help convict you.
- “[O]ne of the Fifth Amendment’s basic functions is to protect innocent men who otherwise might be ensnared by ambiguous circumstances … [T]ruthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker’s own mouth.” Ohio v. Reiner, 532 U.S. 17, 21 (2001) (internal punctuation and citations omitted).
- “Too many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege. Such a view does scant honor to the patriots who sponsored the Bill of Rights as a condition to acceptance of the Constitution by the ratifying States.” Ullman v. U.S., 350 U.S. 422, 426-427 (1956) (footnotes omitted).
- Even if you are innocent and only tell the truth and do not tell the agents anything incriminating, there is still a grave chance that your answers can be used to crucify you if the agents don’t recall your testimony with 100% accuracy.
- Even if you are innocent and only tell the truth and do not tell the agents anything incriminating and your statement is videotaped, your answers can be used to crucify you if the agents don’t recall the questions with 100% accuracy.
- Even if you are innocent and only tell the truth and do not tell the agents anything incriminating and the entire interview is videotaped, your answers can be used to crucify you if the agents have any evidence, even mistaken or unreliable evidence, that any of your statements are false.
Watch this video of Professor James Duane thoroughly explaining how your words will only hurt you.
I was at the Northeast Arizona Superior Courthouse in Maricopa County recently and noticed with some surprise the sign to the left. It had been my understanding that the courthouse was required to provide convenient storage for a weapon rather than requiring a person to return the weapon to his or her vehicle. Confused, I snapped a picture and returned home to look up the statute. Sure enough, A.R.S. 13-3102.01(A) states:
“If an operator of a public establishment or a sponsor of a public event requests that a person carrying a deadly weapon remove the weapon, the operator or sponsor shall provide temporary and secure storage. The storage shall be readily accessible on entry into the establishment or event and allow for the immediate retrieval of the weapon on exit from the establishment or event.”
That statute applies to the courthouse because a courthouse is a “public establishment.” So what’s going on here? The sign does use slightly different language than the statute. For example, the sign says “weapons” and does not list a gun while the statute uses the term “deadly weapon” which is certainly intended to include firearms. The sign does say “No weapons of any kind” though, and certainly a firearm falls under the umbrella of a “weapon of any kind” and therefore the sign is in conflict with the statute.
I did not try to enter the courthouse with a firearm so I cannot say for sure if I would have been required to return a firearm to my car, but it appears that this sign, ordered to be placed by the presiding judge, is intended as an end run around the statute. Perhaps the thought is that the sign’s language is just different enough from the statute that it does not conflict with the statute, but is cleverly worded in such a way as to accomplish what the statute seeks to prevent. Regardless, this sign is not lawful.
I am not advocating here for or against deadly weapons. What I am concerned about is this apparent attempt by the court system to hold itself to a different standard than it holds the citizenry it judges. It is the disappointing concept of “do as I say, not as I do” that in this case does damage to the court’s image of fairness and causes citizens to doubt whether or not the court system will uniformly apply the law.
You MUST INVOKE your right to remain silent. On June 17, 2013, the Supreme Court of the United States decided Salinas v. Texas, which held that a criminal defendant who failed to invoke his right to remain silent waived that right. As a result, at the defendant’s murder trial his silence was used as evidence of guilt. Among other things, the Supreme Court reasoned that because the defendant did no invoke his right to remain silent, he could have been remaining silent for any number of reasons, such as taking the time to concoct a lie or to protect an accomplice. The lesson here is when you are being questioned by police and you want to remain silent, you MUST say to the police, “I INVOKE MY RIGHT TO REMAIN SILENT” or you risk waiving that right with potentially deadly consequences.
Click here to read the full opinion.
What if an outdated, impractical law was being enforced to the letter, even though the law had been declared unconstitutional by the courts? This is a real problem with A.R.S § 28-1595 (C).
A.R.S § 28-1595 (C) essentially requires that anyone, at any time, may be required to show identification to law enforcement upon request, even if they are not driving. This statute effectively criminalizes a failure to carry identification.
Not in America, one might thinks … and the Arizona courts have agreed, in this case.
After having duly considered a challenge to this statute, and in accordance with applicable constitutional principles, the Arizona Court of Appeals declared this statute “unconstitutionally vague” (State v. Akins, 75 P.3d 718, 2003), “because it fails to provide reasonable notice to passengers or others of what evidence of identity is required to avoid violation of the statute.”
While pursuant to A.R.S. § 13-2412, it is a class 2 misdemeanor to refuse to provide one’s truthful name after being advised that refusal to answer is unlawful, when one has been lawfully detained based on reasonable suspicion that one has committed, is committing, or is about to commit a crime, providing one’s true full name is all that is required.
Yet, we have recently discovered that police are still using this statute to arrest and jail citizens, prosecutors are still charging citizens with violating this statute, courts are entering criminal convictions against citizens for violating this statute, and judges are sentencing citizens for these convictions, even though these citizens have committed no crime!
A review of records provided by three local courts showed that at least 65 individuals have been cited or arrested, and at times prosecuted, and even convicted and sentenced or fined, for something that is not a crime in Arizona. It is likely that a more thorough check of the records of the hundreds of courts in Arizona would uncover perhaps thousands wrongfully convicted.
We are pursuing efforts to aid those wrongfully convicted of a non-crime. Kielsky Rike PLLC is providing legal representation to correct these wrongs, clear the records, and pursue restitution. If you or anyone you know has suffered a wrongful conviction of A.R.S § 28-1595 (C) or a similar unconstitutional city ordinances criminalizing the failure to carry identification for non-drivers, you may want to contact Kielsky Rike PLLC.
It is almost unthinkable that in this day and age innocent people may be convicted pursuant to a statute that has been unequivocally declared unconstitutional — yet it continues to happen. The police should know better, but if they make a mistake, the prosecutors should certainly know better, and if they also recklessly ignore the state of the law, well then judges should certainly know better before letting someone be convicted of a non-crime — and still it has happened.
Contact Kielsky Rike PLLC if you may have been victimized by this.