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.
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.
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.
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.
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.
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.
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. Randolphthat 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.”
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.
Both Aspen newspapers are running stories on the overall drop in the number of police arrests. It appears that the report is based on numbers from only the Aspen Police Department. One would assume that the Pitkin County Sheriff’s stats would be fairly similar.
Of note is the drop of Aspen DUI arrests to a 10-year low. It will be interesting to compare all these numbers in a couple years to truly see the impact (or lack thereof) of Amendment 64 in legalizing marijuana.
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.
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 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.
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.