Sunday, May 29, 2011

Sacrificing Freedom for Security

It's the Memorial Day holiday which means it is another "No Refusal Weekend" for law enforcement across the state and country.

"No refusal" simply means that should you find yourself stopped, under suspicion of DWI, and then arrested for same, despite your refusal (however polite and well articulated) to provide a breath or blood test at the invitation of law enforcement, your blood will be forcibly drawn from your body.  Where unauthorized by statute (the taking of a blood sample despite an accused's refusal is permissible in some cases), police will obtain search warrants from judges who have volunteered to be awakened at all hours of the night this weekend for this specific purpose.

 My very real fear, conjured by these political/law enforcement campaigns, is that our country is willing to sacrifice our liberty and freedoms for a temporary sense of security.  This is not a new fear.  After all, it was Benjamin Franklin who said, "Those who desire to give up freedom in order to gain security will not have, nor deserve, either one."
As May draws to an end The Patriot Act is again a major focus in Congress. Three provisions of the Patriot Act are expiring at the end of this month.  For almost ten years now the Patriot Act has given the government too much leeway to pry into our private lives.  While I have no doubt that the original purpose of the Patriot Act was to protect our country (and what person, by the way, could vote against something called "The Patriot Act" without severe criticism from the fear driven majority), that Act has curtailed our constitutional freedoms for which so many died. 

Take some time this Memorial Day and think for a moment about what it was for that so many of our countrymen sacrificed and continue to do today. If you know a veteran, say thank you.  Educate yourself about the provisions of the Patriot Act, contact your congressman, and remember, no matter what they call it, you can still refuse.  Just because the police get a search warrant doesn't mean it's over - they have to do everything procedurally and constitutionally correct...

Thursday, May 19, 2011

How Definite is the 4th Amendment's Line at the Entrance of Your Home?

In 1980, 31 years ago, the United Supreme Court clearly said

"The Fourth Amendment has drawn a firm line at the entrance to the house.  Absent exigent circumstances, that threshold may not be reasonably be crossed without a warrant."

Payton v. New York, 455 U.S. 573 (1980). This week, with its opinion in  Kentucky v. King, the Supreme Court made that line much less firm.  Kentucky v. King, No. 09-1272 (May 16, 2011).

In King police followed a suspected drug dealer to an apartment complex. They smelled marijuana outside anapartment door, knocked loudly, and announced their presence. As soon as the officers began knocking, they heard noises coming from the apartment.  The officers announced their intent to enter the apartment, kicked in the door, and found respondent and others.  (incidentally, and unfortunately for Mr. King, none of these people were the original drug dealer the police were following) The police saw drugs in plain view during a protective sweep of the apartment and found additional evidence during a subsequent search.

Circumstances qualify as “exigent” when there is an imminent risk of death or serious injury, or danger that evidence will be immediately destroyed, or that a suspect will escape.  However, there's an exception to the exception; it's called "the police-created exigency exception."  Police cannot create or manufacture the exigency themselves for purposes of contravening the warrant requirement.  That was Mr. King's (losing) argument in this case (that the police created the exigency themselves). 

While Mr. King lost, the US Supreme Court has some strongly worded "advice," in dicta, for citizens in its recent opinion.  So take heed, know, and exercise your constitutional rights:
"When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do. And whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak. Cf. Florida v. Royer, 460 U. S. 491, 497–498 (1983). (“[H]e may decline to listen to the questions at all and may go on his way”).When the police knock on a door but the occupants choosenot to respond or to speak, “the investigation will havereached a conspicuously low point,” and the occupants “will have the kind of warning that even the most elaborate security system cannot provide.” Chambers, 395 F. 3d, at 577 (Sutton, J., dissenting). And even if an occupant chooses to open the door and speak with the officers, the occupant need not allow the officers to enter the premises and may refuse to answer any questions at any time.  Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances search that may ensue."

So King leaves us to wonder, as Justice Ginsberg does in her dissent

"How 'secure' do our homes remain if police, armed with no warrant, can pound on doors at will and, on hearing sounds indicative of things moving, forcibly enter and search for evidence of unlawful activity?"

Thursday, May 12, 2011

We Don't Have Debtor's Prisons in this Country!

I was court appointed to represent a client back in 2010 on 5 misdemeanor charges.  The orders appointing me indicated that I was appointed without reimbursement, meaning that my client was so poor that he was not ordered to pay the court back for my representation.  The cases were disposed on October 1, 2010, and he was released from jail having fully discharged his sentence on October 27, 2010.

Earlier this month, May of 2011, 6 months after the case is totally over, my client calls me and tells me that there are 5 warrants for his arrest for his failure to pay court costs!?  We don't have debtor's prisons in this country!

So, I immediately started researching and preparing Motions for Recall of Capias Pro Fine Warrant for Issued for Non-Payment of Indigent Court Costs.  I am very happy to report that the judge waived all court costs and recalled all of the warrants that had previously been issued for my client's arrest for his inability to pay the court costs.  He was never arrested on these warrants, thank goodness.

I am very proud of him for standing up for his constitutional rights rather than just ignoring the warrant notices or laying out time that the judge ordered but that is completely unconstitutional.  Today has been a good day in Denton for my client and our constitution!

Thursday, May 5, 2011

Up and Running!

I'm all moved in at my new office at 1409 North Elm Street and am up and running!  Starting my own practice is a long dream being realized!  I'm so happy to be sharing space with Richard Gladden, the foremost scholar on all things James Cannon; Doran Sauer, one of the newest members of the bar; and Joann Gulley the best paralegal ever!  We're happy to serve you.  Come by and check it out!