Utah v. Strieff – can police now stop and search you without probable cause?

In Utah v. Strieff, decided June 20, 2016, the U.S. Supreme Court apparently decided that incremental erosion of our Fourth Amendment rights was not fast enough and has now given the green light for police to stop and search individuals without probable cause.  Justice Sotomayor in her dissent explains the effect of this decision without mincing words:

The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights. Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant. Because the Fourth Amendment should prohibit, not permit, such misconduct, I dissent.

The case is about the exclusionary rule – when the state violates a person’s constitutional rights, often the only practical remedy and the only thing that deters police from future similar misconduct is the exclusion of the evidence.  Basically, when the police cheat and take shortcuts that violate the Constitution’s protections, they don’t get to reap the benefits by using the evidence they found.

In this case, the Court held that when an officer illegally detains a person without probable cause, finds contraband, and also learns (after the illegal detention) that the person has an outstanding warrant, the evidence found is admissible and the exclusionary rule does not apply.  The officer in this case received an anonymous tip that there was drug activity at a house, watched the house, and saw Strieff leaving the house.  As Strieff walked away through a nearby parking lot, the officer detained him, asked him what he was doing at the house, discovered drugs on his person, and also discovered that Strieff had unrelated outstanding warrants.

The Court acknowledges that the officer did not have probable cause to detain and search Strieff.  The Court also acknowledges that the officer would not have found the drugs or the outstanding warrants but for the officer’s unconstitutional detention.  The majority opinion then goes on to perform some incredible legal acrobatics to justify their decision not to exclude the evidence found.

The exclusionary rule can apply to 1) primary evidence found as a direct result of the officer’s illegal search and seizure; and 2) evidence found later that would not have been found but for the officer’s illegal search – the “fruit of the poisonous tree.”  There are exceptions to the exclusionary rule: 1) the independent source doctrine (evidence obtained from a separate source independent of the officer’s illegal search is admissible); 2) the inevitable discovery doctrine (the evidence would have been found anyway even if the officer had not conducted the illegal search); and 3) the attenuation doctrine (the connection between the illegal search and the discovery of the evidence is remote or there is an intervening circumstance).

The Court reasons that, although the warrant was unconnected to the illegal detention, once the officer found the warrant he then had an obligation to arrest Strieff.   “A warrant is a judicial mandate to an officer to conduct a search or make an arrest, and the officer has a sworn duty to carry out its provisions.” United States v. Leon, 468 U. S. 897, 920, n. 21 (1984) (internal quotation marks omitted).”

The Court then finds that if the officer has an obligation to arrest the person, then the person will have to be searched, therefore the inevitable discovery doctrine applies.  The Court has created a new rule with this case – if a person has an outstanding warrant, then the fact that the warrant exists will excuse the officer’s misconduct and evidence obtained illegally will not be be excluded.

The Court naively explains why the officer’s conduct was at most negligent, and it was not flagrant or purposeful misconduct.  This is an absolutely ridiculous statement – on the face of it, and relying on the facts admitted in the Court’s opinion, the officer purposefully stopped and searched a person that the officer knew he did not have probable cause to stop and search.  They can’t credibly say it was not purposeful or flagrant.  What they are really saying is, “we know the officer broke the rules, we know the officer violated this person’s constitutional rights, and we are ok with it because the ends justify the means.”

Clearly, once the officer found the warrant he was under an obligation to arrest the person.  And the person then would have to deal with the subject of those outstanding warrants.  But that does not excuse the officer’s conduct.  Knowing that the officer will not be disciplined or reprimanded for his conduct and knowing that the officer cannot be successful sued for his conduct, there is nothing left to deter the officer’s conduct but the exclusionary rule.

The Court implies that the threat of civil liability will be sufficient to prevent police from making unconstitutional searches hoping to find outstanding warrants – this is either incredibly naive or simply dishonest.  Civil liability is not a deterrent to police, because police know that the courts will protect them, as this Court did.  It is difficult and often impossible to bring a civil action against police for constitutional violations.  In some cases it is because the courts have made it difficult or impossible with the myriad of rules that have been created to prevent citizens from suing the government, and in other cases it is a matter of damages.  No lawyer will file a lawsuit based on a constitutional violation where there is no physical injury and where drugs were ultimately found.

You might think that police simply would not violate the rules, or that if they did their departments would take action to sanction those officers.  You may think that departments provide training to their officers to ensure they do not commit constitutional violations.  The reality is that there will be memos circulating in police departments based on this case, and this case will be incorporated into police training – not to encourage the officers to respect the Constitution but to teach them how to get around the Constitution with the Court’s apparent approval.

Police can now stop anyone that they want with or without probable cause, and if they find an outstanding warrant they will be forgiven and the case will go forward.

 

 

Online Dating Scam

Recently I have been getting a lot of phone calls about an online dating scam.  I wanted to make everyone aware of what is going on.

I have heard a few different versions.  It begins on an online dating site, such as Plenty of Fish.  A guy begins talking to a “female” who claims she is 18 years old.  They exchange phone numbers and start texting.  The female will then say she is 17 years old and eventually say she is 16 years old.  During the texting, the “female” will encourage the guy to send nude photos or “she” will send nude photos of “herself.”

Once photos are exchanged, a “dad” or “private investigator” will contact the man.  In one version I have heard that the “dad” called saying his daughter tried to commit suicide because of the man.  He will say she is in the hospital, and he will attempt to get money for the hospital bill.  In this version, the “dad” will say not to send a check because he doesn’t have a bank account, so he will only accept a money order.

In another version, the “dad” will contact the man and say he will go to the police unless there is something the man can do about it.  This “dad” will say that he is going to make sure the man goes to jail for this unless the man can help.  Once again, he will encourage the man to give him money.

In another version, and one I myself got involved in, a “private investigator” will call the man and say he is under investigation for conduct with a minor.  These scammers will use real names of investigators in South Carolina.  I have already heard of them using one investigator’s name in Horry County and another investigator’s name in Lexington County.

In helping one man, I confirmed with the Lexington County Sheriff’s Department that this man was not under any type of investigation.  In fact, the investigator these scammers were pretending to be that day was in a murder trial all day as a witness.

I spoke with the real investigator’s boss at the Lexington County Sheriff’s Department that day.  He said this is something happening all across the United States.  This was not his first time hearing about it either.  He said these scammers are overseas, but they are using local numbers to call these men.  I had noticed in this situation the phone numbers had an 803 area code, which is the area code for Lexington.  Unfortunately, there was nothing the officer could do to help with this being overseas.

I was thinking of some tips that people could use when dealing with this situation to figure out if it is a scam or if you are actually under investigation.  One thing is that they are using the term “private investigator.”  Police departments do not have “private investigators.”  They are simply investigators.  Two, they will not take a check for payment and claim to not have a bank account.  With that, a police department is not going to ask for payment to make an investigation go away.  On the other side, if he is claiming to be the “dad,” who doesn’t have a bank account these days? Most people do, so that should be a red flag as well.  Three, ask the investigator to spell his name, and then look up that investigator on the police department’s website.  I have seen them spell the name wrong, and that should be a huge red flag. A person would never spell their own name wrong.  Finally, do not pay them.  If you are unsure as to whether it is a scam or you are actually under investigation, call a criminal defense attorney.

Lastly, and probably most importantly, can a man or woman be under investigation for talking with a 16 year old and sharing nude photos? Well, in South Carolina the age of consent is 16 years old.  However, the man could be arrested and charged with contributing to the delinquency of a minor (South Carolina Code 16-17-490).   That is why I, and I’m sure many other defense attorneys, are getting these phone calls.  These men are scared, and any type of criminal charge with a minor can ruin someone’s life.  I am sure many men have even paid these scammers to avoid it.

I encourage everyone to be cautious when online dating.  Make sure you know the laws in your state when it comes to age of consent and other statutes such as the contributing to the delinquency of a minor here in South Carolina.  If you are under investigation, contact a criminal defense attorney in your area.  If you are being scammed, remember the tips I mentioned above.

U.S. v. Robertson (4th Cir.) – consent or submission?

In U.S. v. Robertson, decided December 13, 2013, the Fourth Circuit Court of Appeals held that a defendant, who responded to an officer’s request for consent to search by remaining silent and placing his hands over his head, did not consent to the search but rather was submitting to what he perceived as the officer’s command.

A number of officers approached a group of black men at a bus stop, looking for two black men wearing white shirts that may have just been involved in a fight.  An officer searched Robertson (who was not wearing a white shirt), found a pistol on him, and charged him with felon in possession in federal court.

The Fourth Amendment prohibits unreasonable searches and seizures.  Searches without probable cause are presumptively unreasonable, unless the person consents to the search.  The government has the burden of proving consent.  The Court outlines factors to consider when determining if consent was given:

Relevant factors include the officer’s conduct, the number of officers present, the time of the encounter, and characteristics of the individual who was searched, such as age and education. Lattimore, 87 F.3d at 650. Whether the individual searched was informed of his right to decline the search is a “highly relevant” factor. Wilson, 895 F.2d at 172.

Despite the District Court’s characterization of the officer’s testimony as credible and Robertson’s as not, the 4th Circuit reverses and bases their ruling solely on the testimony of the officer.  The Court finds that Robertson’s actions were not “voluntary consent to a request,” but rather they were “begrudging submission to a command.”  There were numerous officers around the bus shelter where Robertson was approached, including 3 patrol cars and 5 uniformed officers with guns.  Robertson watched the other people in the bus shelter “get handled” by the other officers.  The officer’s first question was accusatory: “do you have anything illegal on you?”

Robertson remained silent and did not respond, at which point the officer waved him forward and asked to conduct a search.  Robertson’s exit was blocked by the officer and the officer did not inform Robertson that he had a right to refuse the search.  The Court finds that these circumstances effectively communicated to Robertson that he was not free to leave or to refuse the search – it appeared that his options were 1) submit to the search; or 2) resist the search; and Robertson sensibly chose to submit.

This case is a reminder to take a hard look at the circumstances involving alleged consent to search – particularly if the defendant remained silent and the officer proceeded without a verbal acknowledgement of consent to search.  Even when the defendant does give verbal consent, it is worthwhile to take a hard look at the circumstances – consent is not valid if it is not voluntary, and in a situation such as that described in Robertson, the consent arguably would not have been valid even if it was verbal, because, under the circumstances, it was not voluntary.

Another common example of invalid consent is when the officer obtains consent to search on the side of the road during a traffic stop – if there is no reasonable suspicion for a continued detention and the original purpose of the traffic stop has been completed, the officer has launched a second detention (a second “Fourth Amendment event”) and, without reasonable suspicion to further detain the person, the consent is invalid (see, e.g. State v. Williams 351 S.C. 591, 571 S.E.2d 703 (Ct. App. 2002); State v. Pichardo, 367 S.C. 84 (Ct. App. 2005)).

State v. Sawyer – DUI – non-compliance with videotape requirement

State v. Sawyer, decided June 4, 2014, is the latest in a line of DUI cases where the S.C. Supreme Court re-affirms Suchenski and enforces the mandatory videotaping requirements of South Carolina’s DUI/ implied consent laws.  The Court held that “a videotape from the breath test site that lacks the audio portion of the reading of Miranda rights and the informed consent law did not satisfy the requirements of S.C. Code Ann. § 56-5-2953(A)(2) (2006).”

The common thread in City of Rock Hill v. Suchenski and the cases that follow is simple and it is consistent – if the officer does not comply with the mandatory requirements of  56-5-2953, the remedy is dismissal unless the arresting officer submits a sworn affidavit setting forth a valid reason for the non-compliance that complies with the language of the statute.  No video, no audio on the video, Miranda is not shown on the video, FST’s are not shown on the video (under the current statute), video begins later than activation of the blue lights – it doesn’t matter what the non-compliance is, if it is listed in 2953 and it is mandatory, and there is no valid affidavit per the statute, dismissal is an appropriate remedy.

On the other hand, under another line of DUI opinions (see State v. Huntley, 349 S.C. 1, 562 S.E.2d 472 (2002)), procedural violations that are not mandatory in the statute do not necessarily result in dismissal, but the defendant must show that he/she was prejudiced by the error.  Statutory language that uses terms such as “shall” or “must,” such as the videotaping requirements listed in 2953, are mandatory and are not governed by Huntley.  The State argues that defects in the videotape go “to the weight of the evidence, not it’s admissibility -” but the Supreme Court holds, consistently with Suchenski and other DUI opinions, that strict compliance with 2953(A) is a prerequisite for admissibility, unless an exception applies from 2953(B).

In Sawyer, there was no audio for the Datamaster room recording.  The Datamaster operator, who was not the arresting officer in this case, submitted an affidavit stating that the audio was not operating due to “exigent circumstances,” pursuant to 2953(B).  The circuit court in this case suppressed all evidence related to the breath test, including the video, any mention of the test, and the results of the test.  The Court of Appeals affirmed the suppression, and then the Supreme Court affirmed again in this opinion.  The Courts found that there were no exigent circumstances (exigency means an emergency, or something requiring immediate attention, and in this case the state didn’t even know about the audio malfunction for months), and that the wrong officer submitted the affidavit anyway – the statute says the “arresting officer” may submit an affidavit, not the datamaster operator.

Brevard County Judge John Murphy

I saw this last month but, well, I’ve been away from the keyboard for a few months now.  The video below shows a Brevard County, Florida, public defender in the courtroom with Judge John Murphy.  The public defender tells the judge he is not waiving his client’s right to a speedy trial, Judge Murphy gets pissed off, the judge takes the public defender into a back hallway and attacks him, then comes back out alone, without the public defender, and attempts to get the public defender’s client to waive his right to a speedy trial without his attorney.

The judge has not been charged with assault and it does not appear that he will, and he has not lost his job.  According to the chief judge, Murphy will take a leave of absence and seek anger management counseling.

The fight erupted after Weinstock refused to waive his client’s Sixth Amendment right to a speedy trial, apparently causing scheduling problems.

“You know, if I had a rock I would throw it at you right now – stop pissing me off, just sit down, I’ll take care of it,” Murphy said to Weinstock.

“You know I’m the public defender,” Weinstock countered. “I have a right to be here and I have a right to stand and represent my clients.”

An emotional Murphy sneered, “If you want to fight, let’s go out back and I’ll just beat your ass,” after which the two men left the courtroom. Loud smacking noises could be heard and a man – identified as Murphy in the police report – shrieked, “Do you wanna f-ck with me?”

Murphy then returned to the bench to applause from a shocked audience.

Gideon has more on Fightin’ John Murphy here, and Judge Kopf at Hercules and the Umpire has two short blog posts blaming the public defender for getting himself beat up by the judge.  Apparently he was “told by someone with a background in such things that: ‘[Judge] Murphy is one of the calmest guys around . . .'”  Also, the “career PD is an ankle biter.”

There’s undoubtedly some history between the two, and the video posted on Gideon’s blog shows a hearing or two prior to the one that blew up, where the public defender is again insisting on not waiving his client’s speedy trial rights.  The public defender is being obstructionist, is refusing to waive his clients’ rights, and is not being particularly nice about it.  In short, he is doing his job, which probably comes as a shock to judges or prosecutors who are used to attorneys waiving their clients’ rights and making the process easier for everyone.

I respect the fact that judges have a hard job, and I do not envy them in the least.  Different people are looking to you to maintain order, to run the court’s docket efficiently, to preserve the rights of defendants, to preserve the rights of victims, and through it all to maintain a calm and patient demeanor.  It’s a high standard, but necessary. In today’s courtrooms in the United States, there is never an acceptable excuse for a sitting judge to verbally or physically attack a litigant or attorney unless it is in self defense or defense of others.  Worse than the verbal and physical attack, is that the judge came back out, after getting rid of the defense lawyer, and tried to get the public defender’s client to waive his speedy trial without his attorney, which shows the judge’s motivation and his disregard for the rights of defendants in his courtroom.

https://www.youtube.com/watch?v=BCe8D3TSFGk

Isolated incidents

My wife is working on a sociology degree.  In one of her classes, she is working on a project where she is supposed to highlight a community issue where a “fallacy” exists.  She chose to look at police misconduct, and the fallacy that she chose to highlight is the notion that, wherever police misconduct occurs or is alleged, it is an “isolated incident” and therefore there is no systemic problem.

She is complaining that there is no database or website that she could find with reliable statistics, so she researched newspaper articles where police misconduct was alleged in South Carolina, within the past 3 years only, and drew a map showing the allegations by county, to illustrate why the “isolated incident” excuse is a fallacy:

Download the PDF file .

Her map includes only incidents that were reported by the news media, and it does not include all incidents that were reported by the news media, because she was more concerned with showing how many counties it spans rather than creating an all-inclusive list.  The incidents on her map only go back three years.  Some involve officers that were charged with crimes, and they are innocent until proven guilty.  Others may involve officers that were not charged with a crime, that were disciplined, or that were not disciplined by their departments.  All are credible reports of misconduct, however.

The only way I know of to track allegations of misconduct is through the media reports, which certainly only contain the tip of the iceberg.  At one time, the National Police Misconduct Reporting Project was the most reliable collection of media articles nationwide, released daily.  Ironically, it was more reliable when one individual was in charge of publishing the statistics, but it appears to be useless/severely under-reporting since it was taken over the CATO institute.  I can only compare to the media reports in South Carolina, but they miss most of them.

 

Walker v. State – PCR granted where defense counsel failed to investigate alibi witness

In Walker v. State, decided March 19, 2014, the S.C. Supreme Court upheld the circuit court’s grant of post-conviction relief (PCR) to the applicant where defense counsel failed to investigate and interview a potential alibi witness.

The applicant had been convicted of criminal sexual conduct 1st degree and kidnapping, based on allegations that he had kidnapped a woman at a convenience store, held her captive and sexually assaulted her.  The applicant stated that, although he had been at the gas station on that day, he spent the night with his girlfriend’s home that night.  Trial counsel did not contact or interview the girlfriend, although trial counsel’s notes referenced her as a person that needed to be interviewed.

The girlfriend testified at the PCR hearing that no-one had contacted her and she did not know what had happened until she was contacted by PCR counsel, and that, although she could not testify as to the exact dates in question, she spent every weekend with the applicant up to the time he was arrested.  The Court found that, had the girlfriend testified at trial, there was a reasonable probability that the outcome would have been different.

The Court distinguishes Glover v. State, where an alibi witness would have testified that Glover was in Florida at 8:00 am, and the crime was committed at 8:30 pm the same day.  The drive from the location of the crime to the location in Florida was approximately 6 and a half hours, which means, if the jury believed the alibi witness, it still would not have precluded the defendant’s having committed the crime.  In Walker’s case, if the jury had believed that Walker was with the girlfriend the night of the alleged crime, it would have been physically impossible for him to have committed the crime.

Counsel has a duty to conduct an independent investigation, which means contacting and interviewing any alibi witnesses proffered by the defendant.  Failure to contact potential witnesses to determine if their testimony would help the defendant is not reasonable, and if the testimony would have resulted in a reasonable probability that the outcome would have been different, PCR should be granted.

Ex Parte Shurling – no prior approval, no attorney fees

In Ex Parte Shurling, decided April 9, 2014, the S.C. Supreme Court denied approximately $30,000.00 in attorney fees to two attorneys who were appointed to represent a client charged with murder, assault with intent to kill, criminal conspiracy, possession of a weapon during a violent crime, and possession of marijuana, because the attorneys did not obtain an order pre-approving the amount of their attorney fees.

South Carolina authorizes attorney fees in the amount of $40/hour out of court and $60/hour in court, up to a total of $3500.00 for appointed felony cases, including murder.  The same statute authorizes $500.00 in expenses, only if it is pre-approved.  This may seem like a lot of money to a layperson, but the truth is most law offices lose money at $40.00 an hour, taking into consideration their overhead, office staff, expenses, and paying clients whose cases they are not working on, or whose cases they miss completely because they are in a week long murder trial.

In this case, the attorney obtained a funding order that pre-authorized attorney fees of $100.00/hour (closer to a reasonable rate and closer to what federal courts pay), up to $15,000.00.  She just did not go back and get another funding order to increase the amount once she had reached the $15,000.00 limit.

On the one hand, all they had to do was go back and get a new order increasing the amount of attorney fees allowed.  Of course, one would have to keep careful track of their hours, anticipate when the limit is about to be reached, and then stop work on the case until a judge authorizes the increase.  On the other hand, if the amount of work that went into defending the client through trial was reasonable, then it was reasonable.  Its reasonableness doesn’t depend on whether the attorney has the foresight to have a judge pre-approve the attorney fees.

Denying an attorney payment for work they have already completed, based on their failure to get pre-approval, seems kind of shitty, to put it bluntly.  The state needs money, so indigent defense uses any excuse they can find to not pay the attorneys who work defending indigent clients.  Our state does not value attorneys who defend indigents.  Our legislature does not value them.  Our courts do not value them.  Our Office of Indigent Defense does not value attorneys who defend indigents.  Or the rights of indigents, for that matter.

Last year, the Commission on Indigent Defense moved to a system of conflict attorneys to save the state even more money.  Attorneys who volunteer for the conflict attorney contracts will get appointed cases at a flat rate of $900 per case, no matter the type case – drug possession, drug trafficking, armed robbery, murder, plea or trial, a flat rate of $900 per case.  How many attorneys can afford to shut down their office and try a murder case for $900?

We are guaranteed the right to counsel, not the right to counsel of our choice and not the right to the best counsel.  If we are asking the state to pay for our defense, we take what they give us, right?  Of course, we are guaranteed the right to effective assistance of counsel.  If we are convicted and we think we got the shaft, we can then file an action for post-conviction relief, alleging ineffective assistance of counsel, and we will get another appointed attorney to handle our PCR claim, one who has volunteered for a contract to handle PCR’s for a per-case flat rate.

 

Question and Answer

Just in case Google did not have the answer you were looking for, I am here to help.  Some search terms that brought people to Trial Theory in the past month:

rules and regulations on pretrial gps monitoring in south carolina – there are no rules governing when a gps monitor can and cannot be ordered as a condition of bond.  As a result, some magistrates and municipal judges will order it at random.  If it’s a non-violent crime, and there is no victim to protect, such as in drug cases, it doesn’t make sense to put someone on gps monitoring as a condition of bond.  If you are charged with a General Sessions level offense, you can automatically move in the Circuit Court to amend the conditions of your bond, and you have a good chance of getting the ankle monitor off it you’re charged with a non-violent offense.  If not, you can re-file the motion once every six months, or whenever there is a change in circumstances.

private prisons cheap labor – Prison labor amounts to forced slavery, and is booming business for the government and private corporations.

ineffective assistance of counsel did not convey final plea offer – if counsel does not convey a plea offer to the client, it can be grounds for post-conviction relief.  The courts can’t force the prosecutor to make the offer again once the case is remanded, although, in fairness, the prosecutor should.

what motivates criminal law – Society’s need to stop people from committing crimes, to protect us from one another, and to prevent vigilante justice?

how long does disorderly conduct stay on record first offense in south carolina law in 2014 – If it’s the only conviction on your record, it can be expunged after 3 years – it’s not automatic, you will have to take action to get it expunged.

duis money making machines – for government, for MADD money, for police departments, and for attorneys.  Everyone wins financially, except the guy who got arrested.

how do i win a failure to appear – show up in court?  Seriously, if it’s a failure to appear at roll call and it’s the first time it’s happened, your attorney may be able to get the bench warrant lifted.  Talk to an attorney before turning yourself in.

the hand of one is the hand of all” theory south carolina – it’s another way of saying “accomplice liability.”  Some police think that this means if you are there, you are also guilty – not true.  The elements include 1) you are present; 2) you know what’s happening; and 3) you take some action to participate in it.  Mere presence is never enough to convict a person.

counsel should not waive preliminary hearings – I agree.  Your case could be dismissed at a preliminary hearing.  If it is, the solicitor’s office can still get an indictment, but they don’t always.  Even if it’s not dismissed, it’s your best chance at getting testimony from the arresting officer before trial, at a point where he has not been prepped for testimony – if the testimony is helpful, your attorney can get a transcript made to use later.  On a related note, the Horry County public defenders office is no longer waiving their clients’ preliminary hearings, and from what I’ve seen they are doing a good job with them.

proscutor knows cop is lying – results on case – I suppose it depends on the prosecutor, doesn’t it.  1) prosecutor calls cop out and informs the court that cop lied, maybe case is dismissed or the jury is informed (not likely); 2) prosecutor says nothing, argues the false testimony to the jury, and defendant is convicted; or 3) most likely – you say the cop is lying, but the prosecutor knows no such thing; likely the prosecutor would say you are the one lying.

sc cdv 1 girlfriend and boyfriend both arrested – what if you both plead the Fifth Amendment and they have no witnesses?  What about that?  Anyway, get attorneys now.

i was sentenced to the youthful offender act does my record still show up – yes.  But – five years after the completion of your sentence, if you have no other convictions, you can get your record expunged.

when u make a statement why do some people say nothing – some people have sense.  Or read my blog.

in a drug case can county attorney withhold evidence til trail – in a perfect world, when the prosecutor produces evidence on the eve of or morning of trial, the evidence is excluded or the case dismissed, depending on the egregiousness of the violation.  In the real world, the Court will probably allow the evidence in, tell the defense that there is no prejudice, since you have the evidence now, and allow the case to go forward and the evidence to be presented.

i got arrested but not convicted for cdv in sc, can i buy a handgun? – they might make you wait until the case is over, but the answer is yes you can.

 

how much does it cost to get expungement in sc per charge – if an attorney is handling it for you, it depends on the attorney and the complexity of the expungement.  The court costs vary, depending on whether the charges were dismissed (no court costs) or whether it was a conviction that now qualifies for expungment.

i was arrested for cdv in 2009 in lexington, sc when can i have it expunge? If there was no conviction, you can have the arrest expunged at any time.  If you were convicted, it can be expunged after 5 years if there are no other convictions on your record.

lie detector test pro’s and cons – Just don’t do it.  Law enforcement uses the polygraph as an interrogation tool.  The test is not reliable.  It is so unreliable that it is never admissible in court.

can i buy a gun in south carolina if convicted of cdv 10 years ago – no you cannot.  But, if you have no other convictions on your record, you can get the CDV expunged from your record.  If you do have other convictions on your record, you can apply for a pardon – a pardon restores your civil rights, including the right to own a firearm and to have a concealed carry permit.

are former prosecuters good lawyers? Yes.  No.  Being a former prosecutor does not make someone a better defense attorney, in my opinion.  That being said, I know some former prosecutors who are excellent defense attorneys and I would trust them with my own case.  I know many more who are terrible, who see their clients as dollar signs, and who see their job as helping you to plead guilty.

adam reposa contempt – never a dull moment with Mr. Reposa.  He’s a lawyer.  Also, Don’t be a jerk-off.  Oh, and don’t drive drunk.

my lawyer didnt go to a hearing and now i have a bench warrant – it may be that your lawyer didn’t go to the hearing, I don’t know, but you probably have a bench warrant because you didn’t appear, not because your lawyer didn’t appear.  Not apologizing for the lawyer, it may be he or she sucks and its their fault.  But courts don’t issue bench warrants unless you missed a court date yourself.

what is a roster meeting in court – ostensibly, it’s a day when the attorneys and prosecutors set a trial date.  The judge or the clerk goes down the list, calls the names of each defendant, and they pick the date.  Depending on what court you are in, it could instead be a day when the prosecutor leans on you to get you to plead guilty, or it could be a day when your prosecutor disappears into a back room to discuss your case with the prosecutor.

bobby g lockdown crime – Yeah.  That’s right.  I’m a lawyer.

 

 

S.C. Police Misconduct Update

News reports in the past month:

Two Bluffton officers were suspended after a bar fight; one allegedly pulled a gun another person in the bar.

A North Charleston police officer who is also a substitute teacher was charged with assaulting a student.

A North Myrtle Beach K-9 officer was charged with DUI in his patrol car.  As of the date of article, he was not terminated, but instead was placed on desk duty.

A Gaffney police officer pled guilty to felony DUI with great bodily injury and was sentenced to 3 years home detention and probation.

A City of Columbia police officer was arrested and charged with CDV/ criminal domestic violence.

A Cherokee County Detention Center nurse was charged with first degree sexual misconduct with an inmate of a correctional facility, accused of having oral sex with an inmate.

Two people were killed following a high speed chase by a Darlington County Sheriff’s deputy – their car flipped over and the deputy crashed into it.  Although I may include deaths caused by police chases here, I want to point out that it is not necessarily misconduct on the part of the officer involved – in my opinion the problem with police chases lies with departmental policy and the departments’ failure to explore alternatives to high speed chases, which is reflected in their policies.  If the deputy is following his department’s policy, he may be doing nothing wrong.

A Lexington County woman has released a home surveillance video that shows a Lexington County Sheriff’s Department detective entering her boyfriend’s home as she sleeps on the living room sofa, then walking through the home, searching through her cell phone, and touching her breast before waking her up to tell her he is looking for her friend “on grounds of child support.”  The Sheriff’s department says that the detective was “serving civil papers at the proper residence,” but the woman says her boyfriend does not have children.  Also, since when do detectives serve warrants for child support?  Most, if not all, Sheriff’s departments have a warrants division with uniformed officers that serve warrants – they do not send detectives to serve child support warrants.  The detective was fired, but the Lexington County Solicitor’s Office declined to prosecute him.