Raising Constitutional Issues in a DUI/Criminal Case

Posted by Chris Morales on Tue, Nov 24, 2015 @ 08:00 AM

Evidence gathered during a DUI traffic stop can sometimes be excluded from trial, if the officers have violated the search and seizure rules that stem from the Fourth Amendment.

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Tags: California, San Francisco, charge, trial, DUI, evidence, search and seizure, traffic stop, defense, police, rights

How Judges Set Bail

Posted by Chris Morales on Fri, Nov 13, 2015 @ 07:10 AM

Judges set bail based initially on a "bail schedule," but they can raise or lower the amount, based on the circumstances of the case.

Judges ordinarily set a bail amount at a suspect’s first court appearance after an arrest, which may be either a bail hearing or an arraignment. Judges normally adhere to standard practices (for example, setting bail in the amount of $500 for nonviolent petty misdemeanors). However, judges can raise or lower the standard bail, or waive bail altogether and grant release on the defendant's "own recognizance," or O.R., based on the circumstances of an individual case.

(For related information, see Can you appeal a judge's bail order?)

Defendants do not need a lawyer to to arrange for bail. They can either post cash bail personally, or phone a bail bond seller and arrange for a bond. Relatives or friends can come to a jail or court and post cash bail for an arrested person or purchase a bond from a bail bond seller.

Factors That Influence Bail Amounts

In addition to the seriousness of the charged crime, the amount of bail usually depends on factors such as a defendant’s past criminal record, whether a defendant is employed, and whether a defendant has close ties to relatives and the community.

Judges may legally deny bail altogether in some circumstances. For example, if another jurisdiction has placed a warrant (hold) on a defendant, a judge is likely to keep the defendant in custody at least long enough for the other jurisdiction to pursue its charge. And bail may be denied to a defendant who is likely to flee the jurisdiction before the case concludes.

Example: Rosie Olla is arrested and charged with managing a large prostitution ring. Rosie is a naturalized American citizen born in Spain, and her family still lives in Barcelona. While searching Rosie after her arrest, the police found that she was carrying a passport and $5,000 in cash. Under these circumstances, a judge will probably be very reluctant to set bail for Rosie. Her family background and the fact that she was carrying a passport and a large amount of cash suggest that Rosie may flee to Spain if she is released on bail. Unless Rosie can explain to the judge why she was carrying the passport and cash, and can also demonstrate strong ties to the local community, a judge is likely to deny her request for bail.

Bail Schedules

In many areas of the country, defendants can post bail with the police even before they are brought to court for a bail hearing or an arraignment. Many jails have posted bail schedules, which specify bail amounts for common crimes. An arrested defendant can obtain release immediately after booking by paying the amount of bail set forth in the jailhouse bail schedule. Bail schedules can vary considerably according to locality, type of crime, and residency.

As a general rule, bail for offenses classified as felonies is five to ten times the bail required for misdemeanors. The more serious and dangerous the crime, the higher the amount of bail is likely to be. As a general rule, a jailhouse bail schedule is inflexible. The police will not accept bail other than as set forth in a schedule; suspects wanting to pay less must go before a judge.

As an alternative or in addition to jailhouse bail schedules, some areas have duty judges. A duty judge is available to fix bail over the phone, without the necessity for a formal court hearing. Like a jailhouse bail schedule, using a duty judge is an option for arrested persons who are anxious to bail out of jail before going to court.

Police Practices That Affect Bail Amounts

Unfortunately for many suspects who want to bail out of jail quickly, the police tend to arrest suspects for the most serious criminal charge that can possibly be supported by the facts at their disposal. For instance, the police may treat possession of a small amount of marijuana (a misdemeanor in most states) as an arrest for possession of marijuana with intent to sell (a felony in all states). Even though such a charge will almost certainly be reduced to a misdemeanor later in the case, it is a felony for the purposes of the bail schedule, and bail will be set accordingly.

This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.

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Tags: defendant, judge, arrest, criminal record, suspect, misdemeanors, petty, bail, crime, police

Is it legal to secretly audio record the police?

Posted by Chris Morales on Wed, Nov 04, 2015 @ 10:30 AM

Almost all courts confronted with the issue have decided that the First Amendment gives you the right to record an officer in public while he is performing his duties. But laws in some places prohibit people from recording officers surreptitiously (or secretly).

(For more about the right to record, and for more on its limitations, see Recording the Police: Legal? To learn about lawsuits against police related to recording activities, see Can you sue the police if they stop you from recording them?)

Whether the conversation the officer is having is the kind of “private” oral communication that would trigger a state’s wiretapping, electronic surveillance, or eavesdropping laws depends on the situation, and on the courts’ interpretation of the relevant law.

“Private" generally conveys that the conversation is intended only for those involved in the conversation or who hold a confidential relationship with the speaker, or that the conversation is otherwise not open or in public. On the other hand, the fact that communications are made in public doesn’t necessarily mean they aren’t private. (State v. Flora, 68 Wash. App. 802 (Div. 1 1992).)

The following are situations where a court found that a law enforcement officer didn’t have a reasonable expectation that his conversation was private. As such, the citizen’s recording didn’t constitute a crime under the relevant wiretapping, surveillance, or eavesdropping law.

  • An officer was talking loudly in a public park on a radio through an open window of his patrol vehicle. (Johnson v. Hawe, 388 F.3d 676 (9th Cir. 2004).)
  • Officers were searching a car on the shoulder of a busy public highway with the doors open, talking audibly (whether they thought others could hear them or not). They were taking no care to make their statements private. (In this case, the court was influenced by the public status of officers performing their duties in public, stating that police do not generally have a reasonable expectation of privacy when interacting with suspects.) (Hornberger v. Am. Broad. Companies, Inc., 351 N.J. Super. 577 (App. Div. 2002).)

Whether you may lawfully record the police depends on the circumstances and the law in your jurisdiction. One court might find that it was legal to secretly record the police under a particular set of facts, while another might come to a different conclusion. If you plan to record officers, you may want to consult a lawyer. Certainly do so if you’ve been arrested or prosecuted, even if not for recording. A knowledgeable lawyer will be able to explain your jurisdiction’s laws, give you advice, and protect your rights.

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Tags: legal rights, audio, confrontations, court, law enforcement, record, limitations, crime, police, records

Where the Police Can Look When Your Roommate Consents to a Search

Posted by Chris Morales on Mon, Oct 26, 2015 @ 11:40 AM

Police need a warrant before they can search a home, unless an exception to the warrant requirement applies. One such exception is consent: If someone with control over the property agrees to a police search request, the subsequent search is legal. Someone with “control” over the property includes a resident of the home, but not someone who is clearly a momentary visitor. (For more on guests, see Ignorance Isn’t Bliss: When Police Search a Home With Only a Guest’s Consent.)

But even when it’s clear that someone has authority to consent to a police search, that person doesn’t necessarily have authority to allow the police to search all parts of the home. This issue frequently arises with roommates, who might share certain areas of the home but not others (such as their bedrooms). When police come knocking at the door and find only one cotenant or roommate home who readily invites the officers in to take a look, is the consent sufficient? If so, what is the scope of that invitation? Where, exactly, can the police search? 

Police Searches When Only One Roommate Consents

The police can enter a home when only one occupant of several is present and consents—the agreement of any other occupant isn’t needed. For example, if college students Alex and Brian share an apartment and the police ask to enter when only Alex is home, his consent is all that’s needed to make their entry legal.

To learn about what happens when there's conflicting consent, see If my roommate tells the cops they can come in, but I tell them they can’t, can they?

One Roommate Consents: Where May the Police Search?

In general, the police may search all parts of the home that the person who gave consent uses. So, they can search any part of the premises the consenting party occupies (such as that person’s private room) and any areas of the home where all roommates or tenants have access. Shared areas generally include places like the living room and kitchen.

Importantly, though, the police generally cannot search the private room or belongings of a person who, either present or not, did not grant consent. To determine whether the police may search a specific part of a home, courts evaluate whether the person who granted consent has access and authority over it. To return to our example of Alex and Brian, the police would not have authority to search Brian’s bedroom, if that room were his alone and not one Alex had use of.

When only one roommate has granted consent for the police to perform a search, courts often look at the relationship and understanding between the roommates to decide how much of the home the police were authorized to examine. For example, searching an entire residence would be justified if the roommates were romantic partners—the assumption is that no areas of the home were off-limits to either partner. But if the residents are simply roommates or cotenants and one doesn’t have permission to use or access another’s bedroom, then that bedroom is off-limits. On the other hand, if Alex and Brian, starving students that they are, can afford only a one-bedroom apartment, then the bedroom and closet that they share means that the consent of one will probably permit the police to search the shared space.

With almost all search issues, the issue is as much how the circumstances reasonably appeared to the police as it is whoactually has access to and uses what in the home.

Private Belongings

The considerations that dictate whether the police may search certain areas of a home also apply to items within the residence. Even if a roommate consents, the police cannot search a closed bag or suitcase of another occupant unless the consenting roommate has access to that item as well. (For a related issue, see Can a host give consent for a search of a guest’s belongings?)

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Tags: Criminal Defense, consent, search, Warrant, legally, attorney, police

How can I find out if the prosecution is hiding helpful evidence?

Posted by Chris Morales on Thu, Oct 22, 2015 @ 01:00 PM

Prosecutors don’t have to actively search for or follow every lead that might lead to information that could help a defendant. But they do have to turn over information that’s favorable to the defense, even if the defense doesn’t ask for it. Defendants are therefore left in the potentially tenuous position of relying on the opposition to help them out, at least to a certain extent. They and their attorneys frequently have the concern (valid or not) that prosecutors have wrongly withheld helpful information. The question is: What, if anything, can they do about it?

The Search for Helpful Information

Though they have an ethical duty to achieve justice, not just to obtain convictions, prosecutors in an excess of zeal may fail to voluntarily reveal favorable information—that is, information that’s either exculpatory or impeaches the prosecution’s case in some way. Defendants should always be alert to the possibility that exculpatory information exists. Defense counsel may learn of it in one of the following ways:

  • by finding a reference to helpful information in a document that the prosecution already turned over, or
  • by actively investigating the case—for example, asking witnesses and police officers who are willing to talk whether they know of any information that might support the defense version of events. Defense attorneys and their investigators may take this tack before, during, and even after trial (in the latter instance, with an eye toward appealing a conviction).

Access to Police and Prosecution Files?

To defendants’ disappointment, neither they nor their attorneys are entitled to rummage through law enforcement documents and objects in search of favorable evidence. However, defense attorneys can file pretrial motions asking a judge to force a prosecutor to give the defense access to police and prosecution files, or at least to review such files and determine whether the defense is entitled to them. Judges won’t allow defense attorneys to go on “fishing expeditions”—rather, the defense must usually show in advance that there's a good chance the information is subject to discovery.

Consult Your Attorney

If you face criminal charges and have an attorney, consult with that lawyer as to how to make sure that the prosecution has turned over all mandated discovery. If you don’t have a lawyer, get one. Only an experienced criminal defense attorney can explain and navigate the ins and outs of the discovery process to make sure you have all the evidence you’re owed.

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Tags: defendant, prosecutors, attorney, criminal, defense, charges, police

Police Conduct and Emotional Distress

Posted by Chris Morales on Mon, Oct 19, 2015 @ 09:00 AM

Whether you can sue for emotional distress caused by law enforcement depends on the circumstances.

Anyone who has had a bad experience with the police—even one not resulting in physical injury—has probably wondered whether there is any remedy. Many want to know whether they can sue. The answer to that question, as with so many legal queries, is, “It depends.” (For information on a related topic, see How much force can officers use during an arrest?)

Generally, citizens can (successfully) sue the police for infliction of emotional distress in one of two instances, when an officer:

  • intentionally or recklessly acts in a way that causes emotional injury or
  • causes emotional distress through a negligent act.

But if the court determines that the conduct was within the scope of the officer’s law-enforcement duties, that officer is generally immune (and can't be held liable).

Intentional Infliction of Emotional Distress

Someone alleging that an officer intentionally caused emotional distress must show that:

  • the officer’s conduct was extreme and outrageous
  • the officer acted intentionally or recklessly, and
  • the conduct caused severe emotional distress.

Extreme and outrageous conduct

Conduct is extreme and outrageous when it goes beyond all possible bounds of decency; it is behavior that society won’t tolerate. Conduct qualifies as extreme and outrageous when it would cause a reasonable person in a similar circumstance to suffer extreme emotional distress; it must be more than annoying, offensive, or humiliating.

Courts decide whether conduct is extreme and outrageous on a case-by-case basis. The court may consider whether:

  • the officer knew that the plaintiff was particularly susceptible to emotional distress
  • there was a pattern of conduct or an isolated incident, or
  • the officer was in a position of power (as officers often are).

In one federal case, for example, a woman offered support to her husband, who was under arrest and being interrogated for themurder of her three-year-old daughter. The detective who heard her offer of support yelled at her that her husband killed the child and that the husband never loved her or her daughter. The officer was in a position of authority and the mother was particularly susceptible to emotional distress at that time. The conduct was sufficiently extreme and outrageous for an intentional-infliction-of-emotional-distress claim. (Fox v. Hayes, 600 F.3d 819 (7th Cir. 2010).)

Intentional or reckless

Extreme and outrageous conduct is actionable if the officer either intended to cause or recklessly disregarded the likelihood that the conduct would cause emotional distress. Conduct that is simply mean, spiteful, or uncaring isn’t sufficient.

For example, in another federal case, an officer was attempting to arrest a suspect for passing checks on a closed account. The officer allowed the suspect’s mother to go into the house and retrieve bank records proving that the account wasn't closed. When she attempted to show the documents to the officer, he told her that she shouldn't interfere in police business and threw her against a car, injuring her neck and back. The court held that the officer’s conduct was outrageous and done with the virtual certainty that emotional distress would result. (Thomas v. Frederick, 766 F.Supp. 540 (W.D. LA. 1991).)

Severe emotional distress

Emotional distress is severe when

  • a reasonable person in the same position as the plaintiff would be unable to cope with or endure it, and
  • the plaintiff’s reaction isn’t unusual.

Intensity and duration are factors courts consider in determining whether distress is severe; it's not severe if it is slight or short-lived.

For example, in yet another federal case, the plaintiff sued for intentional infliction of emotional distress due to being beaten and pepper-sprayed by police. But weight loss, embarrassment, confusion, and one visit to a psychologist didn’t show emotional distress that was sufficiently severe. (Vincent v. Prince George's County, MD, 157 F. Supp. 2d 588 (D. Md. 2001).)

Negligent Infliction of Emotional Distress

Citizens can also sue police officers when the latter cause emotional distress negligently, rather than intentionally or recklessly. The extent of emotional harm required depends on the jurisdiction.

But in order for there to be potential liability for negligently caused emotional distress, the officer must owe a “duty of care” to the citizen. In other words, the court will consider whether the officer had some kind of special relationship with the plaintiff that’s distinct from the general police responsibility to the public at large.

For example, in a Louisiana case, a rape victim sued a sheriff for the emotional distress she suffered when the evidence in her case was mistakenly destroyed before a suspect had been arrested. The court held that the duty to preserve evidence goes to the general public. Law enforcement doesn’t owe any special duty to protect an individual from the misplacement or mistaken destruction of evidence(Dennis v. Wiley, 22 So.3d 189 (La. App. 1 Cir. 2009).)

Physical Injury

Ironically enough, some states require physical injury for emotional distress suits. This injury might be directly caused by the officer’s conduct or a physical manifestation of emotional suffering.

Courts are more likely to require physical harm in negligent infliction of emotional distress cases. But even if it’s not required, physical harm resulting from emotional distress, such as ulcers, headaches, or a miscarriage, will make it easier to prove the case.

In one case, the plaintiff claimed to have been assaulted during an arrest on a college campus. The court rejected the emotional distress claim because there was no evidence of physical symptoms resulting from distress. The only physical injuries suffered were from the assault, not the emotional trauma the plaintiff claimed to have experienced. (Godette v. Stanley, 490 F.Supp.2d 72 (D. Mass. 2007).)

Consult a Lawyer

If you’re wondering whether you have a viable lawsuit against the police, consult an experienced attorney. Only such a lawyer can properly analyze the merits of your claim and the potential defenses for the police and government.

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Tags: Enforcement, officer, plaintiff, defense, police, lawyer

Invoking Your Right to Remain Silent

Posted by Chris Morales on Fri, Oct 16, 2015 @ 11:30 AM

Do you ever have to say something in order to invoke your privilege against self-incrimination?

You’ve seen it time after time on primetime television police shows—cops slapping the cuffs on a “perp” and reading him his rights: “You have the right to remain silent. Anything you say can and will be used against you in a court of law.” And so on. Believe it or not, this ubiquitous arrest scene presents a rare instance in which Hollywood stays true (for the most part) to the laws of criminal procedure. Indeed, the (in)famous case of Miranda v. Arizona requires that law enforcement officers advise arrested suspects of certain rights, including the option of saying nothing. ((1966) 384 U.S. 436.) Miranda, which derived from the Fifth Amendment privilege against self-incrimination, also triggered the practice of officers telling arrestees that:

  • what they say can be used against them in court
  • they have the right to consult with a lawyer
  • a lawyer can be present during questioning
  • a lawyer will represent them free of cost if they can’t afford but want one, and
  • if they decide to answer police questions, they can stop the interview at any time.

(This article focuses on the privilege against self-incrimination for suspects who are out of custody. To read about the prosecution using the silence of someone who's under arrest, see Miranda and Post-Arrest Silence.)

When Must the Police Advise You of Your Rights?

Officers must provide Miranda warnings whenever they interrogate someone who is in custody. “Interrogation” includes not only express questioning, but also any words or actions that police officers should know are reasonably likely to elicit an incriminating response. Being “in custody” describes a situation in which a reasonable person in the suspect’s shoes would not feel free to leave.

The corollary of Miranda warnings is that the prosecution cannot use a suspect’s silence as evidence of guilt in a court of law—otherwise the warnings would be meaningless. But, the law doesn’t require interrogating police officers to “Mirandize” someone who isn’t technically “in custody.” As a result, police officers routinely question suspects after carefully letting them know that they are not under arrest and are free to leave—that way, officers don’t have to provide Miranda warnings. Even in that situation, though, suspects’ silence was sacrosanct: Prosecutors couldn’t use it against them at a later trial. That is, until somewhat recently.

You Can’t Be Silent if You Want to Be Silent

In a closely contested 2013 decision, the United States Supreme Court held that prosecutors can, under appropriate circumstances, point to an out-of-custody suspect’s silence in response to police questioning as evidence of guilt. (Salinas v. Texas, 133 S. Ct. 2174 (2013).) According to the Court, the prosecution can comment on the silence of a suspect who:

  • is out of police custody (and not Mirandized)
  • voluntarily submits to police questioning, and
  • stays silent without expressly invoking his Fifth Amendment rights.

The only way to prevent the government from introducing evidence at trial of the suspect’s silence is to explicitly invoke the right to say nothing. In other words, without being warned by the police or advised by a lawyer, and without even the benefit of the familiar Miranda warnings (which might trigger a “I want to invoke my right to be silent!”), the interviewee must apparently say words to the effect of, “I invoke my privilege against self-incrimination.”

(To read about an earlier Supreme Court decision on silence before arrest, see Can a prosecutor use pre-arrest, pre-questioning silence to “impeach” a defendant?)

In the case that led to this new rule, a police officer who was investigating a murder asked the suspect (and eventual defendant), who was not then in custody, a series of questions over the course of an hour. The officer did not Mirandize the suspect. The suspect answered the questions, but hesitated when the officer asked whether a ballistics test would prove that the shell casings at the crime scene matched the suspect’s gun. He fidgeted for a bit and didn’t answer the question; the officer then moved on to additional questions that the suspect answered. Prosecutors then charged the suspect with murder. At trial, they argued that his reaction to the officer’s shell-casing question suggested his guilt. The Court ruled that this argument by the prosecutors was proper—the defendant had not clearly indicated that he intended to assert his Fifth Amendment right when asked about the shell casings.

What to Say to Invoke the Right to Silence

The 2013 Supreme Court decision raises weighty questions, such as whether it’s reasonable to place the onus of asserting constitutional rights on everyday people, most of whom have never cracked the spine of a criminal procedure or constitutional law book. The more practical question is what, exactly, an out-of-custody person must say to inquisitive police officers in order to effectively claim the right to silence. Courts have indicated that they should make clear that they are invoking their Fifth Amendment privilege against self-incrimination. That way their subsequent silence cannot be mentioned at trial.

(The ACLU advises people about what to do and say when stopped by law enforcement, noting that in some states, if the police ask you to identify yourself, you must give your name.)

Situations Vary

The U.S. Supreme Court has the final say on the meaning of the federal Constitution, but state courts can interpret their own constitutions to provide greater individual freedom. The law on silence and self-incrimination may vary from one state to the next. That variation is one of many reasons it's critical to have legal representation when facing criminal charges.

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Tags: defendant, incrimination, trial, court, police, rights, Miranda

The Public Defender in a Criminal Case

Posted by Chris Morales on Mon, Oct 05, 2015 @ 10:00 AM

Public defenders are paid by the government, but they work for you.

Most criminal defendants are legally indigent and can't afford to pay for an attorney. On the other hand, the state can't legally prosecute indigents unless it provides them with an attorney. To satisfy this requirement, many states have set up public defender offices. Typically, each local office has a chief public defender (who may be either elected or appointed) and a number of assistant public defenders ("P.D.s"). P.D.s are fully licensed lawyers whose sole job is to represent indigent defendants in criminal cases. Because they typically appear in the same courts on a daily basis, P.D.s can gain a lot of experience in a short period of time.

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Tags: defendant, judge, prosecutor, criminal case, public defender, appointed, attorney, police

Can you sue the police if they stop you from recording them?

Posted by Chris Morales on Fri, Sep 11, 2015 @ 09:20 AM

You may be able to sue, but you won’t necessarily win. If an officer unlawfully arrests you for recording her, you may be able to bring a deprivation of civil rights action against her under 42 U.S.C. § 1983 (“section 1983”), a federal law called “Civil action for deprivation of rights.” Your claims might be for violation of something like your First Amendment right to record and your Fourth Amendment right against unlawful arrest.

Courts have consistently held that the First Amendment gives you the right to record—whether through photographs, or video or audio recording—officers in public while they perform their duties. (For much more on this right, including limitations, seeRecording the Police: Legal?)

“Clearly Established” Right

In many instances, an officer violates your First Amendment rights by stopping you from recording her—hence the possibility of a section 1983 lawsuit. (There may be other grounds for a lawsuit, whether under federal or state law—see below.)

To complicate matters, though, an officer can’t automatically be found liable for stopping you from recording, or for arresting or otherwise harassing you for recording. For a successful lawsuit under section 1983, the court must find that the First Amendment right to record is “clearly established.”

This “clearly established” requirement means the court would have to find that recording is a First Amendment right that’s sufficiently clear. It’s sufficiently clear if a reasonable officer would understand that arresting someone—for violation of a wiretapping law, for example—violates the right to record. (In some states and situations, however, secretly recording an officer might actually violate a wiretapping-like law. See Is it legal to secretly audio record the police?)

Difference in Interpretation

Courts don’t entirely agree on whether the right to record an officer in public is “clearly established.” This means that, in some jurisdictions, an officer may be protected against being sued for violating your First or Fourth Amendment rights.

Some courts have ruled that a First Amendment right to openly record police officers' public performance of their duties is clearly established. (Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011); Johnson v. Hawe, 388 F.3d 676 (9th Cir. 2004).) To these courts, the First Amendment trumps wiretapping, electronic surveillance, and eavesdropping laws that might appear to make recording an officer illegal.

Other courts have found that the right to record is not clearly established. They note, for example, that the United States Supreme Court hasn’t ruled on whether there is an unrestricted First Amendment right to videotape an officer during a traffic stop. (Kelly v. Borough of Carlisle, 622 F.3d 248 (3d Cir. 2010).)

Qualified Immunity

If the right is not “clearly established,” an officer has “qualified immunity,” which is, essentially, a protection for public officials against lawsuits for things they do in their official capacity. Qualified immunity provides public officials with “breathing room to make reasonable but mistaken judgments." It shields them from civil liability for actions that do not violate clearly established rights. Clearly established rights are rights a reasonable officer would have understood. (Stanton v. Sims, 134 S. Ct. 3 (2013); Gericke v. Begin, 753 F. 3d 1 (1st Cir. 2014).)

Some wiretapping laws are unclear. Suppose there's an unclear law leading an officer to honestly and reasonably—but mistakenly—believe he can arrest a person for recording as a violation of a wiretapping law. That officer may be protected from liability if he enforces the arrest. For example, he might be immune from liability for a Fourth Amendment violation of false arrest. (See Matheny v. County of Allegheny Pa., 2010 WL 1007859 (W.D. Pa. 2010); this isn’t a “reported” opinion, but it shows how a court might approach the issue.)

Incentive to Stay in the Dark?

Some commentators worry that the state of the law might provide certain police departments incentive to keep officers intentionally "uninformed" of the First Amendment right to record. The departments’ theory would be that, by keeping officers in the dark, they can claim the right wasn’t “clearly established,” which might trigger qualified immunity for officers who violate the right to record. (Radley Balko, “How ‘good faith’ creates bad policy,” The Washington Post, May 22, 2014.)

Talk to a Lawyer

If you feel law enforcement has violated your right to record police, you may have a civil rights claim under 42 U.S.C. § 1983—whether against an officer, the officer’s department, the city, or some other entity. (Perhaps you were unlawfully handled or arrested for recording an officer, or your recording device or recordings were unlawfully seized or confiscated.) As discussed above, however, the officer may be immune from suit. That said, there may be other grounds for a lawsuit—perhaps provided by state law or arising from something else the officer did while infringing your right to record.

It’s important to contact an attorney knowledgeable in civil rights law to give you advice and protect your claim. And you should consult a criminal defense lawyer if you face criminal charges.

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Tags: violates, illegal, recording, courts, immunity, police, violate, action

Searching Your Home After an Arrest

Posted by Chris Morales on Fri, Sep 04, 2015 @ 09:20 AM

When you're arrested in your home, a limited search by the police is permissible.

Police may search the person arrested and the area within that person’s immediate control. Immediate control is interpreted broadly to include any place a suspect may lunge to obtain a weapon. If the alleged crime is particularly violent, or if the police have reason to believe other armed suspects may be in the residence, the police may do a protective sweep to search any place such accomplices may be hiding. Also, while they are making a lawful arrest or protective sweep, the police may typically search and seize anything that is in plain view and appears to be related to criminal activity.

Looking for Accomplices

Police officers can make protective sweeps following an arrest (Maryland v. Buie, U.S. Sup. Ct. 1990). When making a protective sweep, police officers can walk through a residence and make a cursory visual inspection of places where an accomplice might be hiding. For example, police officers could look under beds and inside closets. To justify making a protective sweep, police officers must have a reasonable belief that a dangerous accomplice might be hiding inside a residence. If a sweep is lawful, the police can legally seize contraband or evidence of crime that is in plain view.

Example: Police officers have warrants to arrest Fox and Mulder for armed bank robbery. Fox and Mulder live together in a house. Officers Spock and Kirk stake out the house and arrest Fox coming up the driveway. With Fox in custody, Officer Spock goes into the house to conduct a protective sweep. Spock goes into a bedroom, lifts up a mattress and seizes a gun hidden between the mattress and the box spring. Witnesses later identify the gun as the one used in the bank robbery. Spock did not lawfully seize the gun. Because Fox and Mulder lived together, Fox was arrested outside the house, and they were suspected of committing a violent crime together, Spock probably had the right to make a protective sweep to look for Mulder. However, although Spock had a right to look under the bed, Spock had no right to lift up the mattress because nothing suggested that Mulder might be hiding between the mattress and box spring. After making sure that Mulder wasn’t in the house, the officers should have secured the house and gotten a search warrant.

Searching Guests in a Home

Police sometimes search not only the arrested person, but guests who are also present. Whether such a search is legal depends on why the guests are there. If they are there for purely social reasons or to spend the night, they are probably protected against unreasonable searches and seizures to the same extent as the homeowner or tenant. However, if the guests are there for a brief commercial transaction or an illegal purpose and are not staying overnight, then they do not have the same privacy rights as social overnight guests and may not be able to successfully challenge a police search that took place in their host’s home (Minnesota v. Carter, U.S. Sup. Ct. 1998).

Example: Mark hosts a weekly poker game at his apartment. One night the game included his neighbor Bobby. After a neighbor complained about a strange smell coming from Mark’s apartment, the police arrived and, although they didn’t have a warrant, searched the premises. In a cabinet in the bathroom, they found a baggie of illegal drugs belonging to Bobby. Bobby is arrested and charged with possession of illegal drugs. Bobby cannot exclude the drugs from evidence. As a temporary guest, Bobby has no privacy right in Mark’s apartment. 

 This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.

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Tags: arrest, search warrant, protective sweep, crime, police, permissible