U.S. Supreme Court Issues Major Ruling on Privacy of Cellphones

In what is surely a landmark case, the U.S. Supreme Court unanimously ruled today in Riley v. California that police need a warrant to search the cellphones of people under arrest.

The courts, including here in Colorado, have long allowed warrantless searches in connection with arrests under the auspices of police safety and preservation of evidence. But Chief Justice John Roberts, writing on behalf of the court, reasoned that the amount of data on cellphones protected them from routine inspection.

For more information and a full copy of the decision, click here. This exact issue came up several years ago before Chief Judge James Boyd in an Aspen drug case.

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Wedding Shuttle Driver Gets DUI in Aspen

The below is from the Aspen Daily News. Not good.

Wedding shuttle driver arrested for DUI

A shuttle driver working for Snow Limo taking 15 passengers who had attended a wedding at the Pine Creek Cookhouse on Saturday was arrested for suspicion of driving under the influence, according to the Pitkin County Sheriff’s Office.

Ken Maupin, 53, of Aspen was arrested at 12:31 a.m. on Sunday in the parking lot of the Aspen Chapel by sheriff deputy Bruce Benjamin. According to deputy Jesse Steindler, the passengers sensed that he was allegedly intoxicated. After they witnessed him allegedly speeding, weaving, swerving and driving off the road, they asked him if he was intoxicated. Passengers told police that Maupin’s speech was slurred. They ordered him to stop the bus, which he did, Steindler said. One of the passengers drove the van, with Maupin in it, down Castle Creek Road and eventually called 911 once they were in cell service range. One of the passengers said she saw an empty bottle of alcohol on the driver’s seat, which Maupin allegedly grabbed and tried to leave the scene when they arrived at the church parking lot, but passengers detained him until police arrived, according to Steindler. A passenger reportedly recorded Maupin exiting the bus with her cell phone. No further details were available Sunday evening.

What You Should Never Do if Arrested

Following up an earlier post about what you should do if arrested, the below is a list of things that you should never, ever do if you’re arrested.

  • Do not speak— with anyone.
  • Do not say anything about the incident to the police or cellmates. The police will often put an informant in the cell with you or a cellmate may try to embellish what you say so that they can cut a deal with police.
  • Do not act like a jerk or insult the police or medical staff. Treat law enforcement officers with respect, do not argue, raise your voice, or get belligerent. If you are at the police station under arrest, the district attorney will be the person that determines your future, not the police. Let the police do their job: be nice and be quiet.
  • Do not run from the police for several reasons: first it will not look good in court; second, they will probably catch you; and lastly, once they catch you, the police may get injured tackling you and additional charges may be leveled against you—some of which are felonies.
  • Under no circumstances give the police permission to search anything. They may still search, but make sure it is without your permission.
  • If the police come to your home or apartment, do not let them in unless they have a search warrant. If they have an arrest warrant for you, go outside with the police; otherwise, do not go outside. It may be that they need an arrest warrant to arrest you in your home and, if you go outside, you may be arrested without a warrant. If the police bring you to your home to get clothes, etc., refuse. The police may use this technique to gain entry into your home.
  • Do not admit to drinking or ingesting drugs. Do not admit that you’re coming from a bar or a party. Remember – do not speak.
  • If you’re arrested for DUI, do not say, “I’m a local. How about you just take me home and we forget this happened?” You will look like an asshole. This regularly happens in Aspen or Vail DUIs.

The list above is modified from a post by Peter LaSorsa at the American Bar Association.

What You Should Do if Arrested

When not in trial, criminal defense attorneys spend much of their time trying to mitigate the damage done by a client during their arrest. I frequently see criminal suspects carelessly try to explain their side of the story and unknowingly shoot themselves in the foot.

What should a person do if they are accused of a crime? I’ve modified the list below from the American Bar Association:

Photo credit: Visualize Us
Hear no evil, speak no evil, see no evil
  • Try to remember witness names. Find out their phone numbers, addresses, and other contact information. If you can’t remember their names, try to remember someone’s name who may know them. For example, if you know they are the bouncer at the bar, find out from another person their name and contact information.
  • Remain silent. Remain Silent. Period. The only thing you can accomplish by talking about your arrest is to hurt your case. You have no obligation to speak with the police. The police may try to trick you and will sound like they are your buddies. Do not speak with the police or anyone else. Ask to speak with a criminal defense attorney.
  • Be polite and respectful towards the police but be firm, do not speak.
  • Contact your attorney or ask for one immediately. If the police insist on speaking with you, reaffirm your desire to speak with your criminal defense attorney.
  • Try to remember the badge numbers of any officers you are involved with, as well as their patrol car number(s) and which police agency they are from. Many times there are multiple police agencies responding to a call. For example, there is a difference between the Eagle County Sheriff’s Office and the Avon Police Department.
  • Make sure that your attorney is present for any lineups or testing (such as drawing a blood sample). Demand that your attorney be present.
  • If you are injured, be sure to take photographs of the injuries as soon as possible and get medical attention at once. Make sure to go into detail with the medical staff about the type of injury and cause of injury, including names.

Colorado Felony DUI Bill

A proposed legislative bill to make repeat DUIs in Colorado died yesterday in a Senate committee. I wrote about the proposal here at RKV Law. For more information on the political gamesmanship that led to the bill failing to make it out of the Senate committee, read the Denver Post’s blog post on the subject here.

As it stands, the maximum penalty for a DUI conviction in Colorado is 1 year in jail. Despite the setback for proponents of harsher penalties for Colorado DUIs, a person facing DUI charges should nevertheless seek legal assistance from a skilled DUI defense attorney. This point is especially important for those accused of drunk driving in Aspen, Glenwood Springs or Vail because of the reliance on vehicles for transportation in the mountains.

RKV Law’s Press Release on Super Lawyers Rising Stars List

Attorneys T.J. Voboril and Ryan Kalamaya of local full-service law firm Reynolds, Kalamaya & Voboril, LLC have been selected to the 2014 Colorado Super Lawyers Rising Stars list. Each year, no more than 2.5 percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor.  This is Mr. Voboril’s second consecutive Rising Stars selection and, for the second year in a row, Mr. Voboril is the only attorney named to the Colorado Super Lawyers or Rising Stars list who hails from the Summit and Eagle County region.  Mr. Kalamaya is the only attorney in the Central Rockies named to the Rising Stars list in the family law category.

Included as a Rising Star for business litigation, T.J. is a general civil litigator with considerable experience handling business, homeowners’ association, real estate, construction, and employment disputes on behalf of business entities, organizations, and individuals.  T.J. is also the owner of and mediator for Voice Of Reason Dispute Resolution.  After graduating from Dartmouth College in 2002, T.J. received his law degree from the University Of Virginia School Of Law in 2005.

Named as a Rising Star for family law, Ryan is a trial lawyer. He primarily handles cases involving personal issues – divorce, child custody, complex property valuation, and persons accused of committing crimes.  As a former Eagle County prosecutor, Ryan is well-versed in what it takes to build a successful case.  A varsity baseball player at the University of Virginia, Ryan earned his J.D. in 2007 from the University of Colorado Law School, where he was president of his class.

RKV Law is a firm comprised solely of Colorado Super Lawyers Rising Stars, as Dan Reynolds was named to the list in 2010 for real estate.

For more information, please contact Mr. Voboril at (970) 306-6456 and tj@rkvlaw.com, Mr. Kalamaya at (970) 812-3437 and ryan@rkvlaw.com, or visit rkvlaw.com.

Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys.

Pan & Fork Update

It has been quite some time since my last post. We’ve been rocking and rolling at RKV Law and there simply hasn’t been any spare time to post much here.

Our representation of the Workers for Justice and Diversity in Basalt has concluded. The matter was one of the most rewarding and frustrating cases I’ve dealt with. Much of the communication between our side and the Town of Basalt was done indirectly through the media. We learned of the Town’s positions and offers not directly from the key decision-makers, but from picking up the morning editions of the Aspen Times or Aspen Daily News. That was less than ideal. Moreover, I received a couple of baseless threats from a citizen that simply disagreed with us representing the WJDB.

For all the stress and frustration, the Pan & Fork matter reinforced why I pursued a career as a lawyer in Aspen and Basalt. It was a classic case of David vs. Goliath. I stood in the middle of trailers late at night holding hands with my clients and praying for a fair and just resolution. Every time I left a meeting with the group I was humbled by the grace and humility of my clients. Despite being forced from their homes, they went out of their way to say “thank you” or offer me something to eat or drink. Unlikely supporters like Escobar in Aspen chipped in for an event that raised over $1,600 for the group. It was and invigorating and rewarding experience.

Basalt is changing dramatically. The success of Whole Foods and the Willits area is a double-edged sword. The bump in tax revenues is good for Basalt. The real estate market around Willits is on fire. However, there’s a cost. Several key businesses have left downtown Basalt in favor of Willits. There’s increasing pressure to balance out  Willits with additional, modern amenities in the core area of Basalt. The Pan & Fork Trailer Park is at the heart of that sea change. Only time will tell how everything shakes out.

Supreme Court Delivers 2 Body Blows to Criminal Suspects

The U.S. Supreme Court recently issued two important decisions for criminal defendants. The Supreme Court (1) limited the constitutional protections of the Fourth Amendment that prohibits “unreasonable searches and seizures,” and (2) denied defendants the opportunity to contest seizure of assets intended to pay for their criminal defense attorney’s fees.

First, in Fernandez v. California, the Supreme Court ruled that police can enter and search a house without a warrant if one resident consents and any objecting residents are no longer present.  Previously, the Court held in Georgia v. Randolph that the police could not search a house when one resident objected. The Court clarified that “presence” of an objecting occupant triggers the protections of Randolph. Justice Alito writing for the majority in Fernandez, reasoned that when an objecting resident is removed from the scene, his objection expires.

The result is that officers can arrest an objecting resident — for some bogus charge like disorderly conduct or obstruction of a police officer — and then obtain consent to search the residence from another occupant. As Justice Ruth Bader Ginsburg wrote for the dissent, “Instead of adhering to the warrant requirement [of the Fourth Amendment], today’s decision tells police that they may dodge it.”

Second, the Supreme Court ruled that the federal government may freeze a defendant’s assets even when those assets are to be used for a criminal defense attorney before a case goes to trial. In Kaley v. United States, a saleswoman for Johnson & Johnson, Keri Kaley, was accused of stealing prescription medical devices and selling them with her husband on the black market in 2007.

Kaley anticipated criminal charges and took out a $500,000 home-equity line of credit to pay for the defense of her husband and her. After Kaley was indicted by a grand jury, the prosecution got a restraining order freezing the couple’s assets, including the house and funds from the line of credit, on the theory that the assets were the product of the illegal sale of medical devices. Federal law allows a trial court to freeze a defendant’s assets before trial to ensure property is available for forfeiture if there is a conviction.

Kaley requested a hearing to contest the restraining order. The Supreme Court ruled that she did not have a right to a pre-trial hearing because the grand jury had already found probable cause that she had committed the crime. In doing so, the Court held that the grand jury alone can determine whether there is probable cause and that determination cannot be reviewed by a judge. As her attorney, a law professor that likely took the case pro bono, said after the decision was issued: “I don’t know how I will explain to my students at the University of Miami Law School that the Supreme Court ruled that an innocent client cannot use her own money to hire an attorney to defend her in court.”

For more information on the Fernandez decision, check out Nina Totenberg’s story for NPR.

The Wall Street Journal covered both Fernandez and Kaley. Read more here.

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