Recent Blog Entries

New Technology That Invades Your Privacy

Law enforcement agencies are always trying to be on the cutting edge of technology to assist in investigations and tracking suspects. The latest development is a cell site simulator, commonly known as “StingRay.” Other names associated with this technology include KingFish, IMSI catcher, triggerfish and digital analyzer. The StingRay typically is the size of a briefcase. The device mimics a carrier’s cellphone towers and forces all cellphones in the area to communicate with it as if it were the cellular tower. With this device, law enforcement can locate, interfere with, and intercept communications from cell phones and other wireless devices.

The information that is available from a cell site simulator is staggering. The device is hooked up to a laptop computer and law enforcement can use the information to determine the phone’s precise location using triangulation. Furthermore, these devices are capable of capturing the content of communications, such as voice calls and text messages. Since the device forces all wireless devices in the area to connect, the information intercepted includes that of unintended targets.

Despite the clear intrusion of privacy this device allows, law enforcement agencies do not need to get permission from the cellular carriers prior to utilizing the StingRay. More troubling is the fact that most law enforcement agencies are not obtaining a warrant. Furthermore, the agencies that do attempt to obtain a search warrant disguise the request using a modified pen register or trap-and-trace orders. Trial court’s that are not aware of this technology typically grant these orders not realizing the true intentions of law enforcement and the level of intrusion the order allows.

Law enforcement agencies are going through great lengths to protect these devices and their use. Typically police officers refuse to answer questions regarding the apparent use of the system claiming that the matter is one of national security or that they are prohibited from disclosing based upon a nondisclosure agreement that the manufacturers require. Prosecutors are also attempting to protect the information by dismissing charges or agreeing to a reduced charge when defense attorneys begin challenging the use of the StingRay.

To effectively attack the unconstitutional use of this technology, defense attorneys first need to be aware that this system exists and is commonly being used by law enforcement. Second, defense attorneys need to carefully review the discovery and look into how law enforcement obtained certain information. If such review raises a red flag for the attorney, depositions should be scheduled to closely analyze whether such device was used. If a defense attorney can identify that this technology was used, a good result for the client will likely follow.

Written by:
SCOTT KING GROUP
Russell W. Brown, Jr.
Attorney At Law
9211 Broadway
Merrillville, IN 46410
219-769-6300

Posted: 9/30/2015

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Study Shows Racial Disparity in Vehicle Searches

A recent article in the Chicago Tribune discussed a 2013 study conducted by the ACLU regarding traffic stops in the State of Illinois. The results of the study showed that, in Chicago, African American and Latino motorists were more than four times more likely to have their vehicles searched after providing consent during traffic stops than white motorists, even though officers found contraband in the vehicles of twice as many white drivers. Statewide, the study showed that African American and Latino drivers were almost twice as likely as white drivers to have their cars searched during traffic stops. However, White motorists were 49 percent more likely than African American motorists to have contraband found during a search and 56 percent more likely when compared to Latinos.

The study further showed that there was racial disparity in the use of drug sniffing dogs. During the same time frame (2013), African American motorists were 55 percent more likely than white motorists to be subjected to having a dog sniff their care, even though white motorists were 14 percent more likely than African Americans to be found with contraband during these searches. Latino motorists were more than twice as likely to having their car subjected to a dog sniff, while white motorists were 64 percent more likely than Latino motorists to get caught by dogs with contraband. Based on the results of the study, the ACLU seeks to ban the use of consensual and dog searches for automobiles. While this study only focused on the State of Illinois, Indiana also faces the same issues. In a recent case, when granting a motion to suppress, the judge saw through the officers attempt to justify his actions and stated off the record that my client was pulled over for “DWB” (Driving While Black).

As I have emphasized in previous posts, knowledge is the most powerful weapon against unlawful police invasion. Both the United States and the Indiana Constitution require a search warrant, supported by probable cause, prior to the search of property. However, both Federal and State law have carved out exceptions for automobile searches. One exception is consent. If, during a lawful traffic stop, the police officer obtains consent from the driver of the vehicle, then he does not need probable cause prior to searching the vehicle. To best combat law enforcement’s use of this exception, we all need to remember the phrase we learned as a child regarding using tobacco and drugs: “Just Say No!” There is no law in the United States that requires someone to give consent to law enforcement to search their vehicle or any other property for that matter.

Another exception provided by law is if the police officer has probable cause to believe there is contraband contained in the vehicle. Many factors are considered when determining whether probable cause exists. Some factors the courts have used include: 1) the odor of marijuana, 2) officer seeing contraband in “plain view” through the window, 3) a tip corroborated by other evidence, 4) contradicting answers to officer’s questions, and 5) the alert by a trained narcotics detecting canine. However, a traffic stop cannot be unreasonably delayed for the sole purpose of the police to secure a drug sniffing dog to conduct an open air sniff around the exterior of the vehicle. The police must have reasonable suspicion that driver or occupants of the vehicle are engaged in criminal activity or that criminal activity is afoot. Reasonable suspicion is a lower standard than probable cause, but courts have held that the officer’s determination that he has reasonable suspicion must be supported by evidence and it requires more than just a “mere hunch.” One cannot defeat an officer’s determination for probable cause or reasonable suspicion on the side of the road. However, besides handing on officer a driver’s license and registration, a driver or occupant of a vehicle does not have to answer any questions asked by the officer. This may help defeat the officer’s determination of probable cause or reasonable suspicion in court.


Written By:
SCOTT KING GROUP
Russell W. Brown, Jr.
Attorney At Law
9211 Broadway
Merrillville, IN 46410
219-769-6300

Posted: 9/15/2014

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Right to Remain Silent

Right to Remain Silent

“You have the right to remain silent anything you say can be used against you in the court of law.” This phrase has been the staple to any criminal defendant protected by both the United States and Indiana constitutions. As discussed in my previous blog post, the United States Supreme Court in 1966, with what has been a hallmark decision Miranda v. Arizona, limited this right to apply only when a defendant is in custody and is being interrogated by the police. Nearly fifty (50) years later, the United States Supreme Court has again chipped away at the right of a criminal defendant to remain silent.

In Salinas v. Texas, the United States Supreme Court held that a defendant who police subject to noncustodial questioning without giving the Miranda warning, cannot rely on the Fifth Amendment unless he/she expressly invokes it. In layman’s terms, if a witness remains silent in the face of noncustodial questioning, the prosecution can, at trial, introduce his/her silence as substantive evidence of his/her guilt. Based upon this decision, the prosecutor can argue that the defendant must be guilty because he/she remained silent instead of cooperating and speaking to police. Furthermore, the police do not have to inform the witness of his/her right against self-incrimination.

The Practical Effect

Salinas profoundly affects all stages of the criminal process, including investigation and trials. Not only are police officers not required to give any warnings for a noncustodial interrogation, Salinas allows a police officer to “accurately state the law” to witnesses. That is, an officer can tell a suspect, who is not in custody, “suspect, I want to ask you some questions and if you do not answer my questions, then the prosecution at trial can argue to the jury that an innocent man would have answered questions.” Furthermore, police officers are now encouraged to conduct noncustodial questioning of a suspect, after they already have probable cause to arrest him, knowing that he/she will rarely assert the privilege and that anything else he does, whether he speaks or remains silent, can be used against him.

The most troubling effect is that Salinas allows the prosecution to argue to the jury that the defendant’s pretrial silence is substantive evidence of guilt. Jurors will likely be inclined to agree with the prosecutor’s assertion that silence is evidence of guilt, which will pressure defendants to take the stand to offer an explanation for their silence.

The Remedy

Salinas holds that silence can only be used against a defendant who did not expressly assert his right to counsel during the interrogation. Therefore, the criminal defense bar needs to educate their clients and the public as a whole about their rights. When questioned by a police officer regarding your potential involvement with a crime, DO NOT merely remain silent. Instead, say I want to speak with an attorney. I encourage you to share this information with friends, family, neighbors and acquaintances. The more people that know, the more we can protect our constitutional rights.

Written by:
SCOTT KING GROUP
Russell W. Brown, Jr.
Attorney At Law
9211 Broadway
Merrillville, IN 46410
219-769-6300

Posted: 3/25/2014

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OWI/DUI Defense

OWI/DUI Defense

I was driving to the office the other day and felt like I was on a slalom course trying to avoid the potholes. I was weaving back and forth inside my lane and crossed the center and fog lines multiple times. Despite the fact that it was 7:00 in the morning, I began to wonder if a police officer observed what appeared to be erratic driving, would he pull me over for suspicion of operating while intoxicated.

A police officer has the right, under the Fourth Amendment of the United States Constitution, to initiate a traffic stop if he has reasonable suspicion that a criminal act has occurred or is about to occur. Through my experience, an allegation that the driver was weaving or swerving within his lane or crossed the center and fog lines is a common reason an officer uses to initiate a traffic stop. (Some other reasons are traffic infractions and equipment failures). However, a court will look at surrounding factors to determine whether the weaving was due to the driver being impaired or whether the weaving was due to some other legitimate reason.

Some factors the court will consider are the weather and road conditions. This would include potholes and whether the stretch of road where the weaving was observed was straight or had curves. In addition, the court will look at the time of day, whether there was repeated swerving, whether the swerving occurred over a period of time or distance, and whether the driver overcorrects when returning to the proper lane of travel. If the court determines that these other factors explain the driver’s conduct, then the officer did not have reasonable suspicion to stop the vehicle. If the officer did not have a legal justification for initiating the traffic stop, then any evidence obtained from the traffic stop should be excluded from trial. It is important to note that the analysis of whether reasonable suspicion existed is fact sensitive and is analyzed on a case by case basis.

Written by: SCOTT KING GROUP
Russell W. Brown, Jr.
Attorney At Law
9211 Broadway
Merrillville, IN 46410
219-769-6300

Posted: 2/4/2014

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When are you required to talk with police?

Think back to the last time you were pulled over by a police officer or approached by a police officer in public. Did you immediately become nervous? A nervous reaction is common when people are required to interact with law enforcement officers, regardless of whether or not they are obeying the law. Police officers understand that many people have this reaction and they use it to their advantage. In addition, many people think that they have to talk to an officer and answer their questions when asked. This article is intended to shed some light on the rights of citizens when it comes to encounters with the police.

When Does Miranda apply?
I have recently had many conversations with clients who complained that the police never read them their "rights". In Miranda v. Arizona, the United States Supreme Court held that a person must be informed of the right to remain silent and to an attorney, and that what he says may be used against him any time law enforcement officers question a person who has been taken into custody or otherwise deprived of his freedom of action in any significant way. These are now commonly referred to as "Miranda warnings." Miranda warnings are only required if the defendant is in custody and subject to interrogation. "In custody" is not synonymous with handcuffs. A person is "in custody" for purposes of Miranda if a reasonable person in similar circumstances would believe he is not free to leave. Typically the officer must exhibit some physical force or show of authority to restrain the liberty of the person. Therefore, if the police do not restrain the liberty or exert some physical force or show of authority, the courts look at the interaction as a consensual encounter. In addition, if a defendant is merely arrested and not questioned by police, then the Miranda does not apply. If a defendant is questioned without being properly advised of his rights, the remedy is that any statements made cannot be admitted into evidence.

There is no obligation to talk with police
There is no law that requires a person to talk to police or assist in their own investigation. Many people understand that they have a right not to testify against themselves during trial; however, do not understand that this right extends to talking with police. The law only requires a person to provide identification, when requested by police. A person does not have to answer any other questions. Typically when an officer performs a traffic stop, he/she will ask the driver a serious of questions. The officer will compare those answers to the information they may already have and make a determination of whether there is reasonable suspicion to believe the driver of the vehicle is engaged in unlawful activity. If the officer believes reasonable suspicion exists, then the officer can legally detain the driver to further investigate. This includes having a K-9 unit perform an exterior sniff of the vehicle to detect the presence of narcotics. However, if reasonable suspicion does not exist, then the officer cannot detain the driver longer that what is reasonably necessary to complete the purpose of the traffic stop. A police officer cannot use silence or refusal to ask questions to satisfy the reasonable suspicion requirement. Therefore, if the person does not answer questions, then the likelihood of the officer finding reasonable suspicion significantly decreases.

Written by:
SCOTT KING GROUP
Russell W. Brown, Jr.
Attorney At Law
9211 Broadway
Merrillville, IN 46410
219-769-6300

Posted: 11/12/2013

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NSA Leaks Information to Local Law Enforcement

There have been many stories reported, thanks in part to the now infamous Edward Snowden, about the scope of NSA’s surveillance programs. When first reported, the NSA and the Whitehouse were quick to reassure the American people that the scope of the surveillance was limited to matters of national security. Therefore, many people may think that the NSA leaks were a matter of foreign policy. However, the NSA’s surveillance programs are being used by the Drug Enforcement Agency (DEA) to investigate domestic crime, primarily drug offenses.

According to Reuters, as reported in the Huffington Post and the Washington Post, the DEA has a secret unit called the Special Operations Division (SOD). The SOD obtains information from intelligence intercepts, wiretaps, informants and a massive database of telephone records and shares said information with local law enforcement agencies to help them launch criminal investigations of Americans. The law enforcement agents are directed to conceal how the investigations truly begin and are further trained to “recreate” the investigative trail to effectively cover up the originating source. This process is referred to as “parallel construction.”

An example of “parallel construction” would be that the SOD contacts local or state police and directs them to pull over a certain vehicle traveling on the interstate. The police would then conduct a routine traffic stop and find an excuse to have a drug dog search it. After an arrest is made, the officers would pretend that their investigation began with the traffic stop, not with the SOD tip.

So how can American’s be protected? Decades ago the United States Supreme Court decided two cases that provide protections to defendants in a criminal case. One was Roviaro v. United States, 353 U.S. 53 (1957) which held that the government must disclose the identity of an undercover witness if it will help the defendant prove he’s not guilty. The other case was Brady v. Maryland, 373 U.S. 83 (1963) which held that the prosecution must turn over all exculpatory evidence to the defendant and failure to do so is a violation of due process.

Even though the government has an affirmative duty to turn over the above referenced evidence, prosecutors may not know that the NSA was involved. Therefore, it is important for defense attorneys to drill down the source of the investigation to establish whether or not the NSA or SOD was involved. If revealed, the information may lead to an opportunity for defendants to challenge the admissibility of the evidence obtained based on a violation of their constitutional rights.

The impact of the NSA’s involvement in ordinary domestic criminal investigations is yet to be seen.

Written By:
SCOTT KING GROUP
Russell W. Brown, Jr.
Attorney At Law
9211 Broadway
Merrillville, IN 46410
219-769-6300

Posted: 8/27/2013

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Federal Discovery

DISCOVERY IN FEDERAL CRIMINAL CASES: THE JENCKS ACT

The term “discovery” in legal parlance refers to the process by which both sides in a case obtain evidence that their opponent intends to use during trial. In the arena of federal criminal cases, the government and defense are so obligated principally under Rule 16 of the Federal Rules of Criminal Procedure and a statute enacted by Congress in 1957 commonly referred to as the “Jencks Act.” (18 U.S.C. §3500) In essence, the Jencks Act provides that the government does not have to provide the defense with pre-trial statements by government witnesses until after such witness testifies on direct examination at trial. While, in my experience, the government typically provides such statements before the trial begins, it is not unusual for the defense to receive them as late as the Friday before a trial beginning the following Monday. I have spent a fair number of weekends prior to trial reading; collating and attempting to digest hundreds of pages of statements that I first saw at the close of business on a Friday. Obviously, this practice places the defense at a tactical and strategic disadvantage for trial, but it also, in my view, compromises a defense attorney’s ability to provide complete and adequate pre-trial advice to a client as to the risk/reward of a trial versus a plea agreement. In light of two relatively recent U.S. Supreme Court decisions that have extended a criminal defendant’s Sixth Amendment right to effective assistance of counsel to the pre-trial plea negotiation process (Lafler v. Cooper, 132 S.Ct. 1376, 1384 (2012) and Missouri v. Frye, 132 S.Ct. 1399, 1407 (2012)) I am of the view that government discovery practices that are based in whole or part on the Jencks Act violate that Constitutional right.

The background of the Jencks Act is steeped in the fervent anti-communism philosophy prevalent in America in the 1950’s. In this era where Hollywood artists; academics and others, including the U.S. Army, were under suspicion and investigation by the likes of Senator Joe McCarthy and the House Un-American Activities Committee, Clinton Jencks, a New Mexico labor union leader, was prosecuted by the government for making a false statement when he filed a required affidavit with the National Labor Relations Board certifying that he was not a communist. At his trial, the government presented two paid informants who had given statements to the F.B.I. that Jencks participated in Communist Party activities. The district judge refused his lawyer’s request that the government produce those statements; Jencks was convicted and on appeal, the Supreme Court reversed his conviction holding that he was entitled to the production of all oral and written statements by government witnesses related to their testimony at trial. (Jencks v. United States, 353 U.S. 658 (1957)) In a rare display of alacrity, Congress passed the Jencks Act by September 2, 1957 in response to that decision and it has defined the government’s obligation to provide witness statements ever since, despite numerous challenges in courts and substantial criticism in legal circles.

It is my view that the extension by the Supreme Court of the right to effective assistance of counsel to pre-trial plea negotiations presents an opportunity for a renewed challenge to the wisdom of continuing to permit the government to invoke the provisions of the Jencks Act and not provide critical evidence to the defense until the eve of trial, a time when, in many districts, it is too late to negotiate a plea agreement. It is inconsistent with any objective notion of fairness to, on the one hand, grant a defendant a Constitutional right to have an informed, competent attorney represent and advise him or her as to the relative merits of a plea agreement versus a trial and, on the other, permit the government at its sole discretion to withhold evidence (witness statements) that is arguably as crucial a category of evidence for counsel to investigate and assess as any other in an effort to provide effective advice and counsel.

Finally, balancing the government’s interest in non-disclosure against the defendant’s said right tips the scale decidedly in the defendant’s favor. In the relatively unusual circumstance where complete pre-trial disclosure to the defense could jeopardize the government’s or an individual’s security interests, a district court can fashion appropriate, case-specific safeguards. Continuing to permit the government to invoke the Jencks Act in most cases solely for the tactical advantage at trial that it achieves is unconscionable.

To address this issue, I have filed a motion to compel discovery, specifically witness statements, in one of my cases in the Northern District of Indiana. To date, it has been denied by the assigned magistrate and is pending review by the assigned district judge. If the ruling stands, I plan to appeal that ruling to the 7th Circuit Court of Appeals and will update any progress.

By Scott King
Scott King Group
Barrister Court
9211 Broadway
Merrillville, IN 46410
www.scottkinggroup.com

Posted: 7/17/2013

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State Passes New Expungement Law

INDIANA LEGISLATURE PASSES NEW EXPUNGEMENT LAW

In the mist of revamping the entire criminal code, the Indiana legislature has also revamped, in favor of a defendant, the laws regarding expunging a conviction. House Enrolled Act Number 1482 is set to take effect July 1, 2013, offering many citizens who have been convicted of a crime the opportunity to expunge that conviction. Any person who was arrested and that arrest did not result in a conviction, or the conviction was vacated on appeal can petition the court to seal the arrest records. Sealing said records prevents anyone, except for a criminal justice agency, from accessing said records without an order from the court. Furthermore, any person who was convicted of a misdemeanor, may petition the court after five (5) years from the date of said conviction. If the person meets the statutory requirements, the court SHALL grant the petition for misdemeanor and D felony convictions. The law also allows for a person who was convicted of a more serious felony to petition the court; however, the decision becomes discretionary (“may”) and not mandatory (“shall”) by the court. Finally, the law allows for multiple convictions to be expunged in a single petition. The attorneys at Scott King Group are well versed in this new legislation. If you have been convicted of a crime and are having difficulties finding a job because said conviction continues to appear on background checks, contact Russell Brown at Scott King Group for a free consultation to determine whether this new law applies to you.

Scott King Group
9211 Broadway
Merrillville, IN 46410
219-769-6300

Posted: 5/29/2013

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