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Invisiblejohnm214
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Re: Ask a defense attorney [Re: Enlil]
    #16540890 - 07/16/12 06:02 PM (11 years, 6 months ago)

Quote:

Enlil said:

That's true of the federal possession laws as well, at least with Schedule 1 and 2 drugs, but I've never heard of a prosecution for it.  I'm sure it has happened, but that had to be a prosecutor with a chip on his shoulder and/or a personal vendetta.




Wow, could you or anyone else cite a law like this?  Seems entirely unreasonable, as the defendant has the burden of proving his drug was legal per license/prescription anyways if its scheduled (aren't the statutes generally written so that the license/prescription is only an affirmative defense?).


This is absurd, you have to keep a ziplock bag they give you the drugs in on your person?  I guess if I get a prescription I should ask for two vessels, one for storage and one to take with me, as I wouldn't take everything with me in case of theft or police being pricks.

Enlil, if you're interested and have the time, I'd be pleased to know of any mistakes or suggestions regarding the frequently asked questions at the top of this forum I wrote.  I tried to mainly use actual decisions, but it can be hard to make sure everything stated is actually good law still (or maybe was even somewhat false at the time of the decision).  I've read a number of cases where judges make broad proncouncements that are obviously unjustified.  Seems they sometimes make pronouncements that are entirely unjustified (and shouldn't have any reason to think they were justified making given the case not raising the collateral issues at all).


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Re: Ask a defense attorney [Re: Diploid]
    #16610491 - 07/29/12 11:50 AM (11 years, 5 months ago)

Quote:

Enlil said:

The record company isn't a "credit reporting agency" under the FCRA, so they aren't subject to all of the accuracy and dispute laws that exist for credit reports.  Most likely, you only have a suit in general libel for a false statement that tends to hurt your reputation...only question is:  Is it really a false statement to claim that you've been convicted?  This is a tough sell in court, imo.





They are (or were, unless the law changed recently) in many cases.  It turns on what the purpose of the provision of information was.  If it was something for personal, consumer, application, like a job, then they are bound by the law.  Of course, if the cops use it to investigate you or something like that, then no, but generally it comes up in job applications, and those are usually FCRA credit reports.

Quote:

The term “consumer report” means any written, oral, or other
communication of any information by a consumer reporting agency bearing on a
consumer's credit worthiness, credit standing, credit capacity, character, general
reputation, personal characteristics, or mode of living which is used or expected to be
used or collected in whole or in part for the purpose of serving as a factor in
establishing the consumer's eligibility for[...]
(b) employment purposes




FCRA sec 603(d)(1)

Quote:

Enlil said:
The bigger issue is whether the site would be willing to turn over such information without a warrant...I'm confident that shroomery wouldn't turn anything over without one...but you never know...





The admins have said such things before (with the exception of malicious attacks on the site), but it seems like most sites and organizations are willing to just give the government whatever they ask for.  eBay brags about how they'll give any law enforcement agency who asks any information they have, even stuff that isn't publicly visible.  Apparently there are people out there who think its a good thing that a site "cooperates with the authorities".  How absurd.

Quote:

Diploid said:
You are missing the whole point. You are willing to cooperate but not able due to forgetting something.

And you're missing my whole point too. That will not fly if the judge believes you are lying about forgetting the password. It may be plausible on a computer you put in the closet last year and haven't used since, but not on your laptop you're carrying with you. Judges aren't stupid.

As for the airport scenario, it was taken from a recent case where a cop saw a guy looking at kiddy porn on his laptop then conveniently "forgot" his password. The judge called bullshit. Guess where he's spending quality time right now?




Depending on the circumstances, you may be able to avoid a criminal contempt conviction, though, if you can create enough doubt.  Of course, that won't stop them from jailing you for a good long while, but eventually they'll have to give it up.  Is the guy in the airport actually charged with criminal contempt?  (not that the papers are high enough quality to know in most cases, the reporting on legal and scientific matters is abysmal).



I'm really getting tired of the moral panick over child pornography.  Just like the war on drugs, its used to justify all manner of ridiculous crap- of course they never exclude the laws to child pornography, so it ends up screwing everybody.  I really fail to see the problem if some pervert has dirty pictures- it seems silly to think that in itself is a crime.


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Re: Ask a defense attorney [Re: KEEPYOURAIDSAWAY]
    #16613084 - 07/29/12 08:31 PM (11 years, 5 months ago)

Quote:

bushrat said:
enlil defends child rapists. so he obviously doesnt care if some guy is looking at pictures of little kids getting fucked or posing sexually.





How does that follow?  I'm sure he defends a number of assholes, so what? 

Either you believe in an adversarial system (with appropriate checks), or you don't.  If you don't, you're going to have to explain how to safeguard the law and check the governmental and adjudicator's power.  There simply isn't any decent alternative that I can tell.

As soon as you grant the government, or anyone, the right to just summarily dispose of the "bad people" you grant them the right to determine who they are.  Its not that I'm per se opposed to just disposing of horrible people, its that there's no way to determine who they are and safeguard the rights of the rest of the people without a robust adversarial process founded on law.


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Re: Ask a defense attorney [Re: Seuss]
    #16695531 - 08/13/12 08:01 PM (11 years, 5 months ago)

Quote:

Seuss said:
> FYI, in case you're not aware, you should never check a USPS DCN on their web site using TOR.

I've got a package coming to me from the US.  As soon as I get the tracking number, I will start nailing it with TOR and report back if the package was opened / inspected.  I'll do the same thing next time I send something to the US, but that happens a lot less frequently.




Awesome Seuss- some shroomery research.



Enlil:  I had a general question regarding securing objects (say small amounts of drugs, like a baggy of marijuana) against search in a motor vehicle to the extent possible.  A big problem besides obvious probable cause things would seem to be terry stops- I read a case where some guy was arrested or detained, handcuffed, and in the back of a cruzer, and the cop opened a locked trunk, found a gun, and the search was ruled legal via Terry as an officer safety issue- I guess the guy could have broken the handcuffs, broken the cruzer door, broken open the trunk, got the gun, and shot the officer.  This was not a search incident to arrest or inventory or anything like that.


My thoughts, when people asked me, was that a small locked container that you don't physically have the ability to open and which is too small to easily hold a gun could be placed in a trunk and provide reasonable protection against warantless searches.  What do you think?

If you couldn't physically open the box at the time, couldn't even access it without leaving the car, and there was no warrant, it would seem hard to justify doing anything other than impounding the car/box and applying for a warrant.  What do you think?


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Re: Ask a defense attorney [Re: Enlil]
    #16696004 - 08/13/12 09:44 PM (11 years, 5 months ago)

Quote:

Enlil said:
As far as I know, the SCOTUS has never upheld a terry frisk of a locked trunk...but that could change at any time...

Keep in mind that terry isn't limited to guns...if the container is small enough that it couldn't hold a weapon of any kind..then it probably can't be broken open for a terry frisk.




Ok, I was mistaken, I conflated my idea (locked small container in locked trunk) with the actual case.

The case was as described, but with the gun in a locked glove box and the defendant inside a cruiser.


   
Quote:

More problematic is whether there is reason to believe that a suspect "may gain immediate control" of a weapon in a locked glove box, particularly when the suspect is in the patrol car, detained by a police officer, while another officer looks in the glove box of the suspect's car....

    If Defendant had broken away from the officers, obtaining a gun from inside the glove box would have taken only a moment more than obtaining a gun from anywhere else within the passenger compartment. To be sure, the tasks of getting a key and unlocking the glove box would delay Defendant somewhat; but a suspect who is able to break free of officers detaining him could also seize the keys, and the suspect may have another means of entry to the glove box, such as a key that would not be detected during a proper frisk or a weapons search of the vehicle. Furthermore, Defendant would have access to the gun at the conclusion of the encounter, assuming that he was only issued a citation and not arrested.




http://ca10.washburnlaw.edu/cases/2004/03/03-5115.htm


What do you think of this rational to allow the search of the glove box?  Seems pretty absurd to me.  It seems this is how these searches expand to ridiculous lengths: a general exception to warrant requirements is made: danger to the officer.  Then it gets ratcheted up case by case till suddenly a guy in police custody needs to have his car's locked glove box searched because he might break out of the police car, steal the keys to the glovebox from the police, open the door, unlock the glove box, open the box, take out the gun, and then threaten the cops.


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Re: Ask a defense attorney [Re: Enlil]
    #16811241 - 09/08/12 01:33 PM (11 years, 4 months ago)

Quote:

Enlil said:


As far as having a client who admitted to me that they are guilty...if they do that, I can't put them on the stand. 





Why not?  They can still testify about other matters, correct?  And other things he's not guilty of, yes?  I'm sure its still a disaster in cross when the prosecutor asks about the incident in question, but there's no ethical issue unless you know he's lieing or going to lie, yes?

A good attorney I saw told me straight up:  "this isn't like TV, I don't care what you did or didn't do: I"m not your friend, and I'm not here to comfort you.  If you tell me you did something, I can't put on a witness that says you didn't.  So, tell me what you think the cops will allege, and only answer the questions I ask".




Quote:

They testify in "narrative" form...meaning they just tell their story and get cross examined by the prosecutor.





How is that ethical?  Sounds like not having an attorney at all, and a clear signal to the judge and the prosecutor and any astute jury member that you don't believe that shit either.  Sounds more unethical than suborning perjury to me.


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Re: Ask a defense attorney [Re: sonamdrukpa]
    #16917649 - 09/26/12 10:05 PM (11 years, 4 months ago)

Its not a US Constitutional issue.  The requirement is that they be impartial, not your peer.


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Re: Ask a defense attorney [Re: GuruBushHippie]
    #16956113 - 10/02/12 11:39 PM (11 years, 3 months ago)

Quote:

GuruBushHippie said:
Shit just went down. A dude who was up at my place for my neighbor's party got his car stuck in a ditch and called AAA. It attracted attention from other older neighbors who then called the cops. The dude got arrested on the grounds of DWI, but the cops never actually saw him operating the vehicle, nor did anyone admit to him having done so. Can they actually convict him of a DWI on the basis of just being drunk and being the owner of the car?




I can almost guarentee he did admit to driving the car.  This is always the way it turns out here.


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Re: Ask a defense attorney [Re: GuruBushHippie]
    #16956337 - 10/03/12 12:31 AM (11 years, 3 months ago)

Quote:

GuruBushHippie said:
Quote:

johnm214 said:
Quote:

GuruBushHippie said:
Shit just went down. A dude who was up at my place for my neighbor's party got his car stuck in a ditch and called AAA. It attracted attention from other older neighbors who then called the cops. The dude got arrested on the grounds of DWI, but the cops never actually saw him operating the vehicle, nor did anyone admit to him having done so. Can they actually convict him of a DWI on the basis of just being drunk and being the owner of the car?




I can almost guarentee he did admit to driving the car.  This is always the way it turns out here.



yea they probably beat it out of him.





Or, more commonly so far as I've seen, lied to him and said they didn't care, or that they'd charge him with murdering a slew of children if he didn't come clean, or they get him to say something and they 'elaborate' in the police report to describe a full confession.


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Re: Ask a defense attorney [Re: Enlil]
    #16978697 - 10/06/12 04:12 PM (11 years, 3 months ago)

Enlil, where is this mens rea requirement derived from?  The sources I looked at some years ago suggested there was no clear agreement that such was required under the US constitution.  IS this a state issue your discussing?

Anyways, I've read a number of cases describing such seizures, and they usually have an anticipatory warrant granting permission to search only after the package is delivered.  This makes sense to me since they would have probably cause that drugs are then in the house- whether its enough for a conviction wouldn't seem particularly relevant to the warrant thing, and since everbody just confesses anyways, it probably doesn't come up so much.


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Re: Ask a defense attorney [Re: Diploid]
    #16998352 - 10/09/12 01:53 PM (11 years, 3 months ago)

Quote:

Diploid said:
So I was riding my bike around the University of Miami campus this morning and noticed several UM Police driving around. I was wondering how that works. How does a private organization have an actual private police department (not security guards) that can arrest people and even shoot them like any other cop?

This is from their web:

The University of Miami Police Department (UMPD) adherers to the philosophy of Community Policing. Community Policing is a direct expression of our mission statement. Our police officers are an integral part of the campus, a place where our students, visitors, faculty and staff feel safe.

UMPD is a professional law enforcement agency that actively works to maximize the quality of life on the Coral Gables campus through proactive community policing efforts and continuous crime prevention programs.

All University Police Officers are State of Florida Certified, sworn and empowered through the City of Coral Gables. UM Police Officers patrol the campus, respond to emergency and non-emergency calls for service, enforce laws (including traffic), conduct criminal investigations, and carry out other law enforcement related activities.


Can anyone create a personal police department equally empowered to enforce the law as a municipal police department?





Generally no.

In my state the legislature passes a bill that grants the entity the authority to form a police department.  The public universities just hte same as the private.


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Re: Ask a defense attorney [Re: Alan Rockefeller]
    #17058489 - 10/18/12 10:30 PM (11 years, 3 months ago)

Quote:

Alan Rockefeller said:
Quote:

Stonehenge said:
It might be a good idea to have one or two of those fake cams mounted in your car with the little red light always on.





That's a good idea if the cops in your area like to pull shady shit.  I have been pulled over hundreds of times, and the cops have always played by the books.





Seems like they have two modes: normal and perp mode.  If you fall into their perp profile they get upset and start letting their ego direct their actions.


With me this generally happens after you refuse to let them search your car, though I've never seen them "loose it", just get upset, threaten you, and get a drug dog which I'm pretty sure they used as a pretense to search a car that had no plausible reason for having drug odors.  Then they fuck up your expensive textbooks and tell you "your lucky, we could take this car and tear it apart to find the drugs, but we're going to let you go this time".

I now keep an audio recorder in case of jackasses, but haven't had cause to use it yet.  After I stopped working at night I never got pulled over any more.  Apparently I drive much better in the day :whatever:


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Re: Ask a defense attorney [Re: Enlil]
    #17085658 - 10/23/12 01:48 PM (11 years, 3 months ago)

Quote:

Enlil said:
Quote:

Diploid said:
But being fair to the defendant at the expense of being unfair to the witness is no solution.




It is a good solution.  Forcing someone to testify is never "fair" to the witness.  On the other hand, the law must balance the equities involved.  On one side, you have a defendant who has his long-term freedom (or life) on the line...the other side of the scale is the witness' momentary freedom and comfort on the line.  When balancing those, the balance has to tip in favor of giving the defendant a fair trial. 

The witness is free to yell outside on the courthouse steps before and after testifying...He can say what he believes to be the whole truth...we're only talking about curtailing his speech in a very specific way for a very limited period of time.

Also, I have never seen a witness sworn in with an oath containing the phrase "the whole truth" except on TV and in the movies.





How often do you get people refusing to swear?  I know some protestant sects regard it as stupid, as you should be honest anyways, and swearing to god is akin to taking his name in vain.  The religious aspect of it would likely be a problem for buddhists, atheists, and perhaps polytheists.


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Re: Ask a defense attorney [Re: Enlil]
    #17091462 - 10/24/12 10:31 AM (11 years, 3 months ago)

Quote:

Enlil said:
Quote:

Anonymous said:
Enlil, during my WI class J felony drug (THC) trial, my lawyer told me that after convicted, any further possesion, even minor, can and will be upgraded to a felony.
Can you comment further on this? I don't know if he was scaring me, or telling me the truth.

I don't often have anything on me, but on occasion I will go on "a roadie" with buds in the car, etc.
My lady knows this and will claim possesion of bud if needed, since she's the heavy bud smoker and has a clean record.
Thanks.



Yes, a second conviction is a felony regardless of how much you possess.  The smart thing would be not to possess weed any longer.  Counting on your friend to claim possession is not a great idea.  First, even if she does, you can still both be in possession...and you'll be charged with a felony.  Second, People don't always do what they say they're gonna do.  This is particularly true in situations of high stakes.





And then, after she is questioned alone, she admits to "taking the fall".  And then, after he is told she's going to be doing a year in jail for obstruction and possession, he admits to lieing about it being hers and admits to possession.

Then they both get charged with obstruction of justice.  Fun times all around- what could go wrong?


When there's multiple people cops always divide and conquer. "Your friend allready told us everything, your going to do time for lieing about this and wasting our time if you don't come out with it now".  Boom, ready made convictions, confessions and additional charges.


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Re: Ask a defense attorney [Re: Anonymous #9] * 1
    #17273659 - 11/24/12 12:53 PM (11 years, 2 months ago)

Quote:

Anonymous said:
If someone like a stupid girl goes to my landlord and says she has been trying to contact me but i never answer and she says she is worried something might of happen then could she get the landlord to come inside my APT and see if I'm inside hiding?

Or would the landlord have to suggest that if she really thinks something bad has happened to me then she must call the 911 because he can't just go and open up my door because I'm ignoring that girl hehe.





I don't think you are asking what you actually want to know.  I don't think you particularly care whether this landlord or cop woudl violate a law in doing this, but really want to know if you could suppress the evidence they find upon inspection.

Its a common problem in this forum that people make presumptions and premise their questions on those presumptions and then ask meaningless questions (in this case, I suspect you presume that if the inspection is illegal then the fruits are suppressed).

In the case of the landlord, there's pretty much no likely scenario which would result in suppression unless he was acting on direct instructions of the state for some state purpose, and that's not going to be proven.  In the case of the cop, if they can actually show they thought there was an emergency, they can enter.  So far as I've seen, they generally get away with this unless they confirm their isn't an emergency and then later continue searching once the justification has evaporated.  In general it seems very difficult to get credible emergency searches like this suppressed from the cases I've read, though I'd be curious what Enlil says.


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Re: Ask a defense attorney [Re: Enlil]
    #17376173 - 12/11/12 06:34 PM (11 years, 1 month ago)

Quote:

Enlil said:
Quote:

Diploid said:
So I've been indicted for a serious crime. I'm defending myself pro se. Now I need to subpoena some paperwork and petition the court for a writ of mandamus for other evidence I can't otherwise get access to.



You can petition the court for a writ at any time...even when you're not involved in a case. 

You can't issue a subpoena because you're not an officer of the court.  You can, however, have the clerk issue you as many subpoenas as you need.  They routinely issue blank, stamped and signed subpoenas to pro se litigants.




In my experience the clerks are idiots and incompetents and you have to file a motion to get the court to order them to follow the friggen law/rules of procedure.  Then there's a big stink, everything is delayed, and eventually the clerk is told to follow the law.

Its absurd.


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Re: Ask a defense attorney [Re: Enlil]
    #17429445 - 12/21/12 07:41 PM (11 years, 1 month ago)

What are the rules in your area about talking to jurors?  I assume you can do what you want after the trial, or maybe only if they approach you? 

Have they ever come up to you with input?  Just curious.

Do jurors really go for that emotional  bullshit I always see in televised trials where the prosecutor seems to assume if the jury is mad/horrified at the crime they'll find no reasonable doubt exists?  I always thought it was insulting to the juror's intelligence to have a prosecutor act personally offended or hype up disgusting parts of the crime when the question is whether the defendant is guilty rather than whether the crime sucked.  From talking to someone recently who served on a civil jury, however; I'm not so sure anymore.  The crap he said the other juror's were saying in deliberations was pretty disapointing- openly ignoring the law/their duty in favor of enacting social policy, et cet.


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Re: Ask a defense attorney [Re: Enlil]
    #17559294 - 01/16/13 08:51 PM (11 years, 13 days ago)

Quote:

Enlil said:
I don't know Canadian law, but in the United states, a landlord can't give consent to search the tenants unit. The landlord could call the cops and that information could be used to get a warrant, however...but that's not generally gonna happen on the same day.

Whether that would be true in Canada, I don't know...the above analysis draws upon the constitution, statutes, and common law.  I wouldn't begin to know where to check Canada's law on the matter.





From what I've seen, Canada has weaker exclusionary law for illegal searches than the US.  I know very little, but the cases I've seen suggest there's a substantial "public interest" balancing that basically allows the court to make up their own law and decide whether the person should be prosecuted with illegally obtained evidence or not.  This is fantastic given that innocent people have very little remedies against such searches and guilty people have only an exclusionary motion in most cases.


Anyways, this tennant crap is probably provincial law anyways, and the ontario statute I've looked at provides no criminal immunity at all. 

I wonder if the police could get away with an illegal search in this case in the US by claiming it was inevitable that they would have discovered the drugs anyways with or without the illegal search due to the landlord's cooperation.


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Re: Ask a defense attorney [Re: Celestial Traveler]
    #17571412 - 01/19/13 02:24 AM (11 years, 10 days ago)

Who cares?  You could probably do relatively well in that ratio while screwing your clients by getting them long ass sentences at trial on the off chance of acquittal.  Such stats would seem to favor decisions that don't serve the client.


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Re: Ask a defense attorney [Re: Enlil]
    #17965983 - 03/16/13 08:30 PM (10 years, 10 months ago)

Quote:

Enlil said:

Having said that, MJ is still illegal in every state in this country with or without a medical card...





Yep, and fornication is illegal in some states.  Given that those states don't enforce the fornication law, could it be a reasonable search/seizure to get a warrant to investigate fornication and just so happen to find some cocaine in the target's bedroom?

I don't know, but I doubt that a sham like that would work regardless of what the statute says.  I would think it to be unreasonable to search on evidence detailing a purported crime that you don't enforce.  As the states don't prosecute federal marijuana laws (and in point of fact the federal government doesn't generally prosecute possesion cases either to my knowledge outside of federal enclaves), I would think this is a similar situation to the fornication search warrant.


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