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You be the Judge…criminal law edition!

September 22, 2012

When I was a kid I used to love the “you make the call” segments on Monday Night Football. For those of you who aren’t football fans, “you make the call” was a segment where they would show a play involving either a close call, or an obscure rule at the beginning of a commercial break, and they would challenge the viewers to become the officials and identify the correct call. Then at the end of the commercial break they would come back and tell everyone the correct answer.

I really wish that they still did this segment – this season especially. Given the current state of the officiating with the replacement refs, I bet we could come up with some real gems. But I digress.

I just read a decision that I love. It came down earlier this year, but I hadn’t heard about it until now. Anyway, I want to do a “you make the call” with this decision, because as a criminal defense attorney, I find myself arguing the minority point of view far more often than I think I should. It usually happens when a case involves the infringement of a defendant’s Constitutional rights to things like freedom from unreasonable search and seizure, or the right to remain silent. I wonder if people see things differently than I do because they are more likely to side with the arguments of police officers, and prosecutors, and assume that defendants “probably did it” – so whatever Constitutional rights they should have shouldn’t allow them to go free on a “technicality”. [as an aside, I’d be real real careful about referring to our Constitutional rights as a “technicality”…but that’s just me I guess]

Anyway, my thinking is that if I put you all in the Judge’s seat, that you can look at things more objectively. At then end, I’ll tell you what the Judge decided – although, as I’ve already said that I loved the decision, so you can probably figure out which side I’m going to come down on. (rats, I’ve foiled my own strategy to elicit your objective assessment!)

So here’s what happened: police get a tip that an individual is engaging in criminal activity – specifically, the buy, sell, and trade of controlled substances. They have no other evidence that this is actually occurring. And I won’t bore you with the law of unreasonable searches because I’m not concerned with the technical Constitutional legality of this police action – as much as I am concerned with the substance, meaning, and future implications of what they’ve done. I other words, you don’t need a law degree to decide whether what the police did here is out of line.

What they did was show up at the house where said illegal activity is alleged to have taken place (this all happened in Flordia, by the way – although I can tell you from personal experience that things similar to this happen in every state, all the time) and they lie in order to gain access to the house. The defendant’s mother answers the door, and they tell her an absolute fib that they are investigating a 911 disconnect, and they want to look around in her house in order to ensure her safety. (yes, prey on the unsuspecting mother’s fear, classy) Predictably, mother allows police to enter the house and they proceed to search and find more evidence of illegal activity.

So, you make the call. Is it ok for law enforcement to lie in this way in order to obtain evidence? Well the Judge said, NO! And here is a link to the order.

And, lest you should think this is an isolated incident, it’s not. It even has a name, its called a “knock and talk” – it’s even standard curriculum for second year law student. (of course, a knock and talk doesn’t have to include police lying…and I think that’s the very point. Knock and talk all you want guys, just don’t tell lies to people to fool them into consenting to searches!)

I see this sort of thing literally all the time in my DUI defense practice. (You can find a link to my Salt Lake City DUI attorney website here) In the case of DUIs it happens with field sobriety tests and portable breath tests. You are not required to submit to field sobriety tests, or portable breath tests. But the cops don’t ask your permission, they tell you to get out of the car and blow into the device. They know that you rely on the honor of their position of authority, and assume that you have to obey them, unless they tell you that you have a choice…and they use that knowledge against you.






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