Category Archives: Law

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.

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.

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.

Increased Fines for Truckers on Indy Pass

Aspen truck drivers of extended tractor-trailers will likely be facing major fines for driving up Indy Pass after the Colorado State Senate votes on a proposed bill in a few days. If a vehicle is over 35 feet long, the fine would be $1,000. The amount increases to $1,500 if the vehicle blocks traffic.

As Pitkin County Sheriff Joe DiSalvo is reported to have said before the Senate Transportation Committee yesterday, truck drivers often disregard restrictions over mountain passes because the fines are less than the savings in gas and time. When I worked in the Eagle County DA’s Office, we frequently saw truckers from companies like Fed-Ex unsuccessfully running the gauntlet up Vail Pass. There were so many closures of Vail Pass from jackknifed semis during the winter that they raised the fines and employed other restrictions to make sure truckers could safely make it over. While I-70 and Vail Pass are not without their problems, the issue of stalled semi-trucks has been reduced significantly.

More information about the proposed Indy Pass bill can be found here.

Letter to Town of Basalt

The Aspen Daily News has a story today on the revised demands of the Workers for Justice and Diversity in Basalt. Yesterday I posted WJDB’s official statement.

The letter I wrote yesterday to the attorney for the Town of Basalt, Tom Smith, is below in its entirety. One thing to note is that I am ethically prohibited from contacting Town Manager Mike Scanlon or others at Town Hall directly because they are represented parties.

Tom,

It is disheartening to read in the Aspen Daily News today that the Town has decided to punish our clients for hiring an attorney. There is no ethical, moral or legal principle to support the Town’s refusal to speak with our clients. The glaring problem with that strategy is that Section 16-418 requires relocation assistance regardless of whether a resident is represented by legal counsel. If the Town refuses to pay our clients, then 45% of their homes will need to be replaced.

As I’ve repeatedly said and wrote, we’re not a law firm that shoots first and aims later. We do not want to file a lawsuit against the Town or the Roaring Fork CDC. However, there are a number of legal issues that arise because of the Town and the CDC’s own actions. For example, there is a potential claim of promissory estoppel for our clients. And there is also a possible ex post facto issue with Section 16-418 that we have yet to fully examine. That said, we have held off on drafting a complaint with the hopes that the Town would work with us. The below assumes that the Town will realize its mistake in cutting off communication with our clients and work with us to find a solution for this unfortunate situation.

First, Fidel Castillo and Maribal Canas have mobile homes that can be moved. The rest of the residents are in trailers that, for various reasons, cannot be relocated. We look forward to working with the Town to find vacant land for Fidel and Maribal, and proper alternative housing for the rest. As you know, Section 16-418 has a presumptive formula. To date, the Town has taken the position that there can be no deviation from that formula. However, that position is not supported by the language of Section 16-418.

The value of the home, whether it can be moved and who pays for the relocation or demolition of a home are certainly relevant factors. They aren’t the end of the analysis. The Town Council can consider “unusual circumstances” that justifies additional compensation. See, e.g., Section 16-418(b)(1)(B). We are in the process of putting together our reasons why each resident deserves additional compensation, but as a general matter, we can say that these reasons will include being elderly and having a more difficult time moving, having children of school-age, having long-term ties to the Pan & Fork, having larger families that make moving to suitable other housing difficult, and other similar circumstances. Those reasons are separate from the issue of whether they were promised alternative/replacement housing that has yet to come to fruition. The very fact that these persons have made the determination to seek legal representation and to let the Town know that they do not believe the formula to be sufficient may constitute “unusual circumstances” in and of itself.

You have previously stated in the paper that the Town has a moral, ethical and legal obligation to treat our clients the same as previous residents who have already relocated. Your statement is contradicted by the Town’s statements that they recognize that each individual has their own particular circumstances. It is also contradicted by the Town’s position as stated in today’s Aspen Daily News. As a practical matter, it makes no sense to treat each person the same, not least of all because the persons that previously accepted relocation assistance may have done so without full knowledge of their other options. From our view, getting this matter resolved in a cooperative fashion will require an acknowledgement by the Town that they need to view each resident as a person and not just part of an arbitrary equation.

Second, all of our remaining clients have children that are currently in school. One of our chief concerns for these children is that the threatened eviction on April 1 comes at a time when school will not yet be out of session. Switching to another school that late in the year will unnecessarily inflict a severe hardship or even potential impossibility on these children’s ability to maintain their all-important education. Certainly, when the Town signed the construction contracts for April 1, it knew or should have known that it would have severely adverse impacts on these children. For this reason, we request that, at the very least, the Town agree in writing to extend the leases or to refrain from attempting eviction procedures until Friday, June 13, 2014, which is 9 days after the end of the school year. This will give these children and their families sufficient time to first concentrate on their education and then prepare for moving, if they must move at that point. We also believe that this school-year issue raises issues of “unusual circumstances” that could be addressed through the dictates of the ordinance.

As repeatedly stated, both in this missive and elsewhere, we do not want to engage in needless litigation and truly hope to work with the Town. However, in the event that our clients are forced to fight their evictions, one key component of that battle will be the school issue. Regardless of whether litigation is necessary, the court of public opinion will likely not look too kindly on the Town’s decision to evict children during the school year.

As you are aware, in any action under the Mobile Home Park Act (including attempted eviction), the prevailing party is entitled to attorneys’ fees and costs.  Given that our clients will have compelling defenses to an eviction action, including an equitable or promissory estoppel theory and based on the issues raised by interruption of the school year, the Town will have to consider its potential exposure to fees and costs. It is our understanding that the Town paid a significant amount of attorneys’ fees for its battle with the Aspen Times; we hope the Town does not make the same mistake twice and waste funds that would otherwise be used for affordable housing or relocation assistance. Of course, none of that will be necessary if we can find common ground and help these people move in a fair and timely manner.

Third, I have a number of concerns with the attached “Weekend Update” from Mike Scanlon. The suggestion that any of my clients or I are unwilling to work with the Town is inaccurate. If anything, your lack of response to my overture to settle last week and combative correspondence indicate that it is the Town that refuses to work with my clients for no other reason than they question the Town’s methodology. Moreover, Scanlon says that the residents will be offered less because they have hired us. That statement is puzzling because, as noted above, there is nothing in Section 16-418 or the leases you provided or elsewhere that supports offset. If you have support for the concept of offset, please let us know.

Contrary to the representations that Mr. Scanlon made to the Aspen Daily News and you appear to have made to the Town Council, litigation is the last resort for our clients and would only be necessary if the Town remains as inflexible as it appears to us. Cooperation and compromise are two-way streets and right now we feel that we are walking the wrong way down your one-way street. As appearances may be deceiving, please let us know if we are reading the situation incorrectly.

Most concerning is the disconnect between Mike Scanlon’s statement that he would stake his professional reputation on getting our clients into affordable housing and the Town’s commensurate refusal to reduce that promise to writing. As you know, a promise need not be in writing and we believe that Mr. Scanlon’s statement to that effect (and others like it, either in the press, in Town Council meetings, or directly to our clients) constitutes a promise, the breach of which is actionable.

Again, since we want there to be no confusion, it is not our first or even second intention to engage in litigation. On Friday, I asked you to provide me the contracts for Jose Ramos. We are trying to advise him of what he’s signing so he can do what the Town wants: voluntarily leave the Pan & Fork. It is completely illogical for the Town to now refuse to work with us to help Mr. Ramos move. We hope the Town will reconsider it’s position so that at least Mr. Ramos and his family can start a new chapter in their lives.

In sum, our representation of WJDB is centered on one principle: to make sure that our clients are being treated fairly and are given the best help possible under the circumstances, whether monetary or otherwise. You and the Town appear to view our involvement as a threat, but our presence should not be concerning to the Town unless the Town is attempting to act in an untoward manner. By failing to consider alternatives, the Town is creating an issue where one need not exist.

We understand that the position of the Town is that no promises were made to our clients regarding affordable housing. Our clients certainly do not agree with this position, but perhaps that is beside the point for the moment. The Town is acting in a way that is consistent with a promise to provide affordable housing or relocation assistance. If we can capitalize on that momentum  and work together to determine solutions that meet the disparate needs of our clients, we will be able to avoid conflict and move forward in a way that is beneficial to everyone.

Best, Ryan

What You Can and Cannot Say in Court

I was in court the other day on several criminal cases. One involved a dispute between neighbors. Both people were charged by the police. My client received a favorable plea offer of a deferred judgment and was there to take responsibility for an unfortunate event. The case will be dismissed in a year if he jumps through a few hoops. He simply wants to move on with his life and was happy with the plea bargain.

In contrast, the other neighbor refused to accept the same plea offer and set his case for trial. He happened to be at court on the same day with his criminal defense lawyer and stood up during the sentencing hearing to rant about how my client had gotten off easy. He thought my client was completely at fault for the incident. His decision to address the Court offers a lesson in what statements can or cannot be used at trial.

Photo Credit to Ken Lopez at A2L Consulting
Speak No Evil

We have all heard the Miranda warning a hundred times on television: “Anything you say or do may be used against you in a court of law.” As a former prosecutor for 2.5 years in Eagle County, I can safely say that “may” is better read as “will.” Generally, anything a suspect says or does that suggests guilt will be repeated over and over again by the prosecutor. Statements by suspects are often the biggest issue in criminal trials. Prosecutors love them; criminal defense attorneys try to spin them. Going back to an earlier post, admissions are almost always the “boogers” or “warts” in a case for a person accused of a crime. George Zimmerman’s recent trial is a case in point.

Aren’t statements made by a defendant hearsay? No. Pursuant to Colorado Rule of Evidence 801(d)(2), a statement made by a defendant is not hearsay when it is used against him by the prosecution. For example, when a guy is pulled over in Aspen for a DUI and says, “I was at the Belly Up for a concert and had a few drinks,” his admission that he drank will most definitely be used against him at trial. The caveat to the rule is that the admission will not be admitted as evidence if the statement was illegally obtained by the police officer. That is because of the doctrine known as the “fruit of the poisonous tree,” which is a whole subject unto itself.

However, statements made while negotiating a plea bargain are generally inadmissible under Rule of Evidence 408. If a Vail criminal defense attorney is discussing a case of domestic violence with the Eagle County prosecutor and admits that his client hit the victim, it is extremely unlikely that statement will come in at trial.

There are exceptions to that rule on settlement discussions. A 2007 amendment to Rule 408 allows statements in a criminal case made by a defendant negotiating with a public officer in a separate civil case. A prime example would be a defendant admitting he had been drinking in Aspen during his DMV  revocation hearing. That admission would likely be used against him if he later went to trial with his Aspen DUI lawyer. But the general policy of the Colorado law is to encourage people to discuss settlement — whether it be in a criminal case, civil lawsuit or a divorce — openly and candidly. The same principle applies to discussions in mediation.

How do Rules 810(d)(2) and 408 apply to the neighbor case above? Easy. The neighbor admitted a number of things happened. He admitted that he damaged my client’s property. That may open him up to a new charge of criminal mischief. Whoops. He also said that he grabbed my client. That supports the existing charge of third degree assault. Whoops again. He essentially boxed himself into a very specific and detailed story about what happened. If he takes the stand at his own trial, the prosecutor will hold him to that story.

Furthermore, court proceedings are recorded. The prosecutor will undoubtedly get a transcript of exactly what the neighbor said and have it ready in his back pocket for trial. If the neighbor strays at all from his earlier statements, the prosecutor will question his credibility through impeachment. Those inconsistencies can add up with a jury, especially in Aspen and Vail.

There was little to be gained from the neighbor’s rant in court. He could have simply told the judge that he disagreed with the favorable plea bargain and sat down. A lot was lost. If he follows through with his plan to go to trial, he may learn the hard way what you can and cannot say in a Colorado court.

The X Factor for X Games Aspen

The X Games started last night in Aspen. There will be plenty of news on ESPN and the local Aspen papers about the results. What will likely be glossed over, however, are the stories of attendees who get in trouble while they’re here in the Roaring Fork Valley.

Aspen Ice Sign

On one hand, recreational marijuana has changed the legal landscape for those visiting Aspen this year. Undoubtedly, many will flock to the local pot shops as part of the burgeoning marijuana tourism industry. The Aspen Daily News is running a story today about the TSA seizing 36 ounces of marijuana edibles at the airport. It’s a sexy story because it’s new; we typically associate drug busts at airports with Pablo Escobar, cocaine, guns and violent drug lords. One could argue that the new X factor for X Games Aspen is weed.

On the other hand, Aspen law enforcement officers will likely be dealing with incidents related to a different X factor at this year’s X Games: alcohol. Last year there were 114,500 fans at the Winter X Games. Hotels in Aspen will be at max capacity.  Although RFTA is responsive to the demand for transportation down-valley to Basalt, Carbondale and Glenwood Springs, a number of people will make a poor decision and get behind the wheel after drinking too much. Aspen DUI lawyers will be called to represent those arrested for drinking and driving. I’ve written about DUIs before. It is legal to drink and drive in Colorado – it is a matter of degree. The amount of alcohol consumed, as well as the time between drinks, will be X factors for Aspen DUIs.

In addition to DUIs, there will likely be an increase in assaults in Aspen. Arguments that otherwise would be brushed off by sober people will lead to physical fights and a night in the Pitkin County Jail. Husbands and wives, boyfriends and girlfriends, and friends out for a fun night will step over the edge into the criminal world because they’ve had a bit too much to drink. Their judgment will be clouded. They will make a costly mistake. If that mistake involves two people who are or used to be in a romantic relationship, they’ll have to navigate the tricky implications attached to domestic violence. Again, the X factor will likely be alcohol.

Aspen locals will tell you that a disproportionate number of attendees at the Winter X Games are teenagers. Getting away from mom and dad for a party weekend is a right of passage. However, picking up a MIP in Aspen can have significant consequences down the road for college and driving plans. Those charged with a MIP should consult with an Aspen lawyer on the collateral damage from picking up a ticket for underage drinking. Unlike Aspen DUIs or assaults, the amount of alcohol will not be a X factor for a MIP – it is a strict liability offense in Colorado. If a person is under the age of 21, they cannot legally drink alcohol unless a specific exception exists. Officers will request a minor to submit to a portable breath test (PBT) for alcohol.

The Winter X Games is a shot in the arm for the local economy. There is cause for celebrating the extension of the X Games remaining in Aspen through 2019. However, the X factor determining whether a fan visiting Aspen will have a great time watching amazing athletic feats versus spending time in jail and going to court will likely pivot on alcohol. Be safe out there. Be smart. Please drink in moderation. Otherwise you may be calling an Aspen lawyer like me to get you out of a criminal case.

How to Win (and lose) a Trial

I was in trial recently and it’s always helpful for me to write down a few thoughts for future reference. Below are some random musings on how to win or lose a trial.

  1. There is a wart or booger in every case – the bad fact or law that is driving the case to trial. Instead of running away from weaknesses in a dispute, a good trial attorney will directly confront the wart/booger and strategically figure out a way to mitigate its impact. This requires a solid relationship between an attorney and his client. If the client doesn’t trust her attorney, they will revert to their natural inclination to avoid or deny weaknesses in their case. A witness that admits they were wrong in one instance, gains credibility for when they say the booger in their case doesn’t really matter. In contrast, a party that simply ignores or denies the other sides argument will come across as unbelievable, ignorant and selfish.
  2. Controlling the narrative of the case is critical. If a case goes to trial it’s because two or more sides disagree about the key facts and law involved. Each side has a story to tell. Whatever party controls the narrative is more likely to win. If a trial lawyer is able to dictate the issues discussed during trial, it steers the focus away from the wart or booger referenced above. Thinking deeply about the a compelling theme and clearly articulating a party’s story is fundamental in controlling the narrative.
  3. Technology matters. I now use an iPad in every trial or hearing. The TrialPad app has revolutionized how evidence is presented. Using an Apple TV, I wirelessly linked into the court’s audio/video system. It’s a slick setup. With TrialPad, I’m able to blow up documents, highlight key sections, and compare documents side by side. It is engaging, quick and easy. During this most recent trial, the opposing attorney dropped his exhibit notebook twice. Papers went flying everywhere, he exclaimed, “Shit!” which likely made it onto the record, and it was cumbersome for everyone to switch back and forth between paper exhibits. People today expect videos, charts and professional presentations.
  4. Organizing the closing argument first drives everything else. As a DA, I learned the importance of thinking about what I wanted to say in my closing argument and then working backwards. I typically create a basic slideshow (PowerPoint or Keynote) with the applicable law and key evidentiary points.  This process is intertwined with developing a theme and narrative for the case. The evidence I want to bring in – whether it be on direct or cross examination – is driven by my closing argument. My opening statement and theme are driven by my closing argument. Everything is driven by the closing argument. There’s no point in asking a question or introducing a document if it doesn’t support a point made in closing.
  5. Researching legal issues in advance is necessary. The best evidence in a case is usually derived from the other side. Especially for trials to a judge, knowing the applicable law cold is essential. In my recent trial it was evident that the opposing attorney hadn’t done his homework. His client admitted to a number of key things on cross-examination  without understanding the implications. Only after my closing argument did opposing counsel and his client appreciate the significance of a seemingly innocuous admission on cross.
  6. Checklists are helpful. An issue in this trial was attorneys fees. In a divorce, a party may be awarded all or part of their attorneys fees from the other party under C.R.S. 14-10-119. There are necessary elements that must be proved to obtain an award of fees. We were at the end of the trial, everyone was tired, and the opposing Aspen lawyer made a critical mistake – he forgot to ask his client how much fees were owed. Realizing his mistake after he rested his case, the lawyer pleaded for the court to allow him to ask a few more questions. The court allowed him to do so, but stated he was only considering it for a limited purpose. It remains to be seen whether the Aspen attorney made a $50,000+ mistake, but a checklist for what evidence was needed would have likely prevented such a gross oversight.

The above is obviously not an exhaustive list of what it takes to win or lose a trial; each case warrants special consideration. The bottom-line is that trials require a lot of thought and preparation. If a lawyer or party thinks they can “wing it,” they’ll likely be in store for an unpleasant surprise.