WV Civil Rights Lawyer

Police Misconduct, Civil Rights Law

Fourth Circuit Open Carry Decision

The Fourth Circuit issued a decision bolstering our 2nd Amendment rights.  The case is styled  USA v. Nathaniel Black, out of the Western District of North Carolina.  Essentially, a guy who was a convicted felon was open carrying a firearm.  He was then seized by police, who were subsequently able to determine that he was not allowed to possess a firearm.  But, was it an unconstitutional seizure since they didn’t know before they seized the guy that he was committing a crime by possessing a firearm?

The 4th Circuit held that it was unconstitutional to seize the man merely because they observed him with a holstered handgun, since they had no reason to believe that he was legally barred from possessing firearms, or that he was engaging in any other illegal activity.  The importance of this decision is that it protects our 2nd Amendment rights.  If it is legal for us to openly carry a handgun, then law enforcement is unable to seize us in order to determine our criminal record, harass us, etc.  The case has all the goodies when it comes to search and seizure case law in the Fourth Circuit (WV, VA, NC, MD).

March 20, 2013 Posted by | Concealed Weapons, Police, Police Misconduct, Searches and Seizures, Self Defense, Suppression, West Virginia Concealed Carry Laws, West Virginia Gun Laws | 3 Comments

New West Virginia Search and Seizure Statute

New legislation has been passed in West Virginia dealing with search and seizure.  It was pushed by the ACLU, who of course were only concerned for minorities having their rights disregarded.  But the fact is that everyone, across the board, has had their rights trampled when it comes to traffic searches and seizures.

It essentially provides that no longer can law enforcement merely testify after-the-fact that the vehicle owner consented to a search of his or her vehicle.  This, by the way, is pretty much the foundation for 80% of criminal prosecutions.  Either people are too dumb/ignorant/naive  to realize that they can say “no” to the officer who is asking to search their vehicle, or the cop just “testi-lies” after-the-fact that consent was given, when in fact it was not.  Who do you think the judge is going to believe, the law enforcement officer, or the guy who had marijuana/concealed weapon, etc. in his car?

Pursuant to this new statute, consent must now be recorded, either in writing through an approved form, or through an audio/video recording.  It must be communicated to the suspect that he or she has the right to refuse the search.  It also provides that he or she can revoke their consent at any time.  Though this may be dicey, because the revocation would not be recorded unless there was a dash cam, or other recorder, recording the audio.  The one exception for the recordation of consent is if there is an issue of officer safety.  Basically, if the cop can articulate some justification for believing there may be some weapon that could potentially harm him or her, then the statute flies out the window.

Remember, states are generally free to provide greater protection of civil liberties than is provided for in the U.S. Constitution (i.e., the US Supreme Court), which West Virginia has done here.  However, states are not free to provide less protection.  Hence, West Virginia could not pass a statute (that would be constitutional) which would allow officers to search vehicles without probable cause or consent.

The statute will take effect January 11, 2011.

Here is the statute:

A BILL to amend of the Code of West Virginia, 1931, as amended, by adding thereto two new sections, designated §62-1A-10 and §62- 1A-11, all relating to searches of motor vehicles by law- enforcement officers; establishing criteria; and requiring rules.

Be it enacted by the Legislature of West Virginia:

That the Code of West Virginia, 1931, as amended, be amended by adding thereto two new sections, designated §62-1A-10 and §62- 1A-11, all to read as follows:

ARTICLE 1A. SEARCH AND SEIZURE.
§62-1A-10. Motor vehicle searches.

(a) A law-enforcement officer who stops a motor vehicle for an alleged violation of a law or ordinance regulating traffic may not search the vehicle unless the law-enforcement officer:
(1) Has probable cause or another legal basis for the search;
(2) Conducts a search for weapons based on an articulation of a reasonable fear for the officer’s safety or the safety of others;
(3) Obtains the written consent of the operator of the vehicle on a form that complies with subsection (b), section eleven of this article; or
(4) Obtains the oral consent of the operator of the vehicle and ensures that the oral consent is evidenced by an audio and video recording that complies with subsection (c), section eleven of this article.
(b) This section takes effect on January 1, 2011.

§62-1A-11. Rules for certain evidence of consent to vehicle search.

(a) To facilitate the implementation of section ten of this article the Director of the Governor’s Committee on Crime, Delinquency and Corrections, in consultation with the Division of Motor Vehicles, shall propose emergency and legislative rules in accordance with article three, chapter twenty-nine-a of this code to establish the requirements for:
(1) A form used to obtain the written consent of the operator of a motor vehicle under section ten of this article; and
(2) An audio and video recording used as evidence of the oral consent of the operator of a motor vehicle under section ten of this article.
(b) At a minimum, the rules adopted under subsection (a) of this section must require the form to contain:
(1) A statement that the operator of the motor vehicle fully understands that the operator may refuse to give the law- enforcement officer consent to search the motor vehicle;
(2) A statement that the operator of the motor vehicle is freely and voluntarily giving the law-enforcement officer consent to search the motor vehicle;
(3) A statement that the operator of the motor vehicle may withdraw the consent at any time during the search;
(4) The time and date of the stop giving rise to the search;
(5) A description of the motor vehicle to be searched; and
(6) The name of each law-enforcement officer conducting the stop or search.
(c) At a minimum, the rules adopted under subdivision (2), subsection (a) of this section must require the audio and video recording to reflect an affirmative statement made by the operator that:
(1) The operator of the motor vehicle understands that the operator may refuse to give the law-enforcement officer consent to search the motor vehicle;
(2) The operator of the motor vehicle is voluntarily giving the law-enforcement officer consent to search the motor vehicle; and
(3) The operator of the motor vehicle was informed that the operator may withdraw the consent at any time during the search.
(d) The Director of the Governor’s Committee on Crime, Delinquency and Corrections shall adopt the rules required by this section no later than December 31, 2010.

NOTE: The purpose of this bill is to provide procedures to protect motor vehicle operators with regard to searches of their motor vehicles by law-enforcement officers.

§§62-1A-10 and 62-1A-11 are new; therefore, strike-throughs and underscoring have been omitted.

April 14, 2010 Posted by | Searches and Seizures, Suppression, Vehicular Crimes | 4 Comments

“Nasty Little Surprises” and “discovery”

Back in July of 2008, I posted about one of Mark Bennett’s posts on “NSL’s” – nasty little surprises.  A NSL is essentially exculpatory evidence which either the prosecution/State has not provided, or which they are completely unaware of.  The point was, since the deck is stacked against you to begin with, why disclose NSL’s which you discover in the course of investigating and preparing for your criminal jury trial?  After all, the chances of us winning to begin with are slim, and much of that is due to the way the system is set up.  If we let the prosecutor on to our theory of the case before our opening argument, he or she will inevitably do everything possible to shoot it down – either by offering deals to slum rats to testify to something different than what they have previously said, or by prepping the investigating officer to pontificating on the subject in such a way as to steal our thunder.  Of course, in a perfect world you should share exculpatory evidence with the prosecution/State so they could dismiss the case.  But that’s not usually how prosecutors work unfortunately.  They want a conviction, they want to win.  Many would rather diffuse your NSL and move ahead with prosecution.

The only problem is that in West Virginia, the defense is obligated to provide “discovery” to the State/prosecutor.

First of all, someone please tell me how that doesn’t violate the 5th Amendment of the US Constitution?  As defense attorney, I represent the defendant obviously.  In the United States, defendants in criminal trials have no obligation to ask even a single question, call even a single witness, or introduce even a single item of evidence.  They have the 5th Amendment right to remain silent.  But the state rules say that if I do call a witness or present evidence, I have to provide disclosure of such before the trial – sometimes by a particular date.

As if the system didn’t make it easy enough for prosecutors already….  If you hear prosecutors talk about trying cases, they make it sound as if they have such a difficult task.  They have to come up with such an enormous amount of evidence, and they have to prove so much….  In reality, being a prosecutor is a piece of cake.  You are set up to win.  In fact, to actually lose a case due to an acquittal in West Virginia, all 12 jurors have to unanimously vote “not guilty.”  With that low of a bar, it’s pretty hard not to win.  And yet, the State has mandated that we cannot ambush prosecutors with some types of NSL’s.

The practice of prosecution is basically preparing for, and conducting, direct examinations.  They’re their witnesses, they’re mostly cops or victims, or people with plea deals that come with a noose around their neck, held by the prosecutor, which require them to do the prosecutor’s bidding, or else.  And they prepare the witnesses and ask open ended questions and check off on their legal pad everything the person is supposed to say.  That’s pretty much it.  As defense attorneys, we engage in guerilla warfare with all of these witnesses.  We almost exclusively cross examine witnesses.  We have to learn, develop and master the art of cross examination.  It is much, much more difficult.  And more unpredictable.

When we call a NSL witness, we reverse the roles and put the prosecutor on defense – something they are not used to.

The “discovery” rules do not mandate that we provide all of our NSL’s to prosecutors.  We have to disclose the names and addresses of any witnesses, though generally not the substance of their testimony (as in civil cases).  Of course the prosecutor is free to have someone contact or interview the person to see what they are going to say.  Unfortunately, sometimes that consists of running criminal background checks on the person, and otherwise investigating the person as if they were a suspect in a crime.  We also have to provide copies or access to any exhibits or tangible evidence we intend on presenting.

The loophole here is in the substance of the witness testimony.  The prosecutor doesn’t necessarily have any idea what I will ask the witness on the witness stand.  He can interview the person before hand, but he may not be able to put 2 and 2 together before I do so for him/her in front of the jury.

I recently revealed some NSL’s to a prosecutor/court/jury during the course of a criminal jury trial.  The prosecutor was upset because I only revealed the identities of the witnesses the day before the trial, and he strenuously asked the judge to “suppress” my witnesses due to failure to comply with discovery rules by disclosing the witnesses well in advance of trial.

There are several problems with this:

(1) I only found these particular witnesses at the last minute, and therefore I could not have disclosed them earlier; (2) The witnesses had exculpatory evidence and law enforcement knew about them in advance, yet failed to disclose them to the defense; (3) If these witnesses had exculpatory evidence, shouldn’t the prosecutor, who’s job it is to see that “justice” is done, also be interested in that information – in finding the truth – and is it ever proper for the prosecution/State to suppress exculpatory evidence from a jury – a jury who is in the process of deciding the fate of a young man who otherwise would have a long, hopefully happy, life to live?

Of course the practical reality also is that, if the court did exclude/suppress these witnesses, it would be per se ineffective assistance of counsel and a mistrial would have to be declared.  So in reality, even if the court sympathizes with the prosecutor, the greater interest is in judicial economy, and no judge wants to declare a mistrial if it can be avoided.  Moreover, no judge wants to invite a reversal if no mistrial is declared and exculpatory evidence is suppressed due to failure of counsel to disclose or provide “discovery.”

When you really think about these things, you come to the realization that this is a scary world we live in.  There are so many damn laws, just about everything is illegal.  And prosecutors can be like dictatorial tyrants.  If they, or law enforcement, want you convicted of something, they will do it.  Only a defender of people – a defender of the constitution – may be able to save you.  And if you have to depend on the public defender or court appointed defense counsel to do this, they may not have the time/motivation/resources to conduct their own investigation and find exculpatory evidence.  The best protection from wrongful conviction is money.  Even if you have to borrow it, do so.  Hire a criminal defense attorney, the best you can afford.  Hire a private investigator.  Fight for your life.

– John H. Bryan, West Virginia Attorney

December 30, 2009 Posted by | Prosecutors, Suppression, Trials | 4 Comments

Interesting Appeal Filed to the West Virginia Supreme Court of Appeals

About a month and a half ago, I mentioned that I was working on a petition for appeal that contained a factual scenario extremely similar to the Arizona v. Gant holding.  Well, it was filed early this month, and now my client has authorized me to post a copy of the filed petition.  I think it contains some interesting legal issues which have yet to be examined in West Virginia, one of which will be the use of Arizona v. Gant as it applies to “inventory” searches in West Virginia.

Additionally, this is an extremely odd case (factually).  And its one of those where the police and the prosecutor really went after the guy and he ended up getting the proverbial “book” thrown at him.  It illustrates the danger of jury trials, and the power of the prosecutor.  If they want you punished, there are enough laws out there that they can bend the facts around, that they can turn you into a felon pretty quickly – not to mention a registered sex offender.  And then they can charge you with multiple counts, basically restricted only by their whim.  The only way to stop them is to appeal.

Also, a H/T to Tom Rist for assisting with the case.

View this document on Scribd

June 24, 2009 Posted by | Appeals, Evidence, John H. Bryan, Searches and Seizures, Suppression, Trials | Leave a comment

Arizona v. Gant

A great opinion recently came down from the US Supreme Court.  The case is Arizona v. Gant.  What law enforcement officers in West Virginia, and elsewhere love to do is this: they pull someone over for a traffic violation, or even an investigatory stop, and they arrest them for a traffic charge, or for some bogus “obstruction” type charge (i.e., he or she failed to put their hands on the steering wheel despite being ordered to do so).  Basically these arrests are an outright lie and are merely meant to allow the officer to search the vehicle.  And they do.  All the time.  If they don’t find anything incriminating, maybe they let the person go.  But if they do, they take them to jail and collect the evidence.

Well now, according to the US Supreme Court, this is unreasonable and therefore unconstitutional.  The original rationale for a search incident to a lawful arrest is officer safety.  The Court reiterated that and confined this type of search to only that concern.  It is now clear that such searches are not reasonable if the suspect is already handcuffed or otherwise detained in the patrol car.  The Court held that “[p]olice may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or if it is reasonable to believe that the vehicle contains evidence of the offense of arrest.  When these justifications are absent, a search of the arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.”

For the past 28 years, police academies across the country have basically taught that it was proper police procedure to search the vehicle at every arrest of a recent automobile occupant, regardless of whether there was any concern of officer safety.  Now we will see how law enforcement agencies across the country can re-train their officers.

This could also affect a great number of pending cases.  For instance, I have one appeal I am working on right now where this exact scenario occurred, and the conviction almost surely would not have occurred without the evidence seized during the “traffic stop arrest.”  Maybe I will get the first West Virginia case based on Arizona v. Gant to the West Virginia Supreme Court of Appeals….

 – John H. Bryan, West Virginia Attorney.

May 1, 2009 Posted by | Appeals, Searches and Seizures, Suppression | 3 Comments

Laws of Search and Seizure in West Virginia

Here is a portion of the materials which I prepared for a continuing legal education seminar which I presented in Charleston, West Virginia a few weeks ago, dealing with some of the “black letter law” of searches and seizures in West Virginia.  But as I emphasized to the audience of mostly-civil litigation attorneys, this is “ivory tower” stuff that doesn’t always make a whole lot of difference in the trench warfare style of litigation that is criminal defense by jury trial.

Arrests

There first must be legal authority to arrest.  There must be a State law authorizing the arrest of a person who commits any particular act (See criminal offenses in the West Virginia Code).  Secondly, if the violation alleged is a felony, the officer must have probable cause to believe that the particular act was committed, and that the person being arrested was the person who committed the particular act, or else the act (whether felony or misdemeanor) must have been committed in the presence of the officer.  The arrest is then effectuated when the officer intends to arrest the person and communicates that intent to the person being arrested, and the person is physically restrained by the officer – either with their hands, through the aiming or discharge of a weapon, or through verbal commands that would lead a reasonable person to believe that he or she was not free to leave.

Arrest Warrants

The officer must submit a written complaint under oath or affirmation to a neutral or detached magistrate or judge, particularly describing the person to be arrested, and setting out the officer’s basis of probable cause to believe that a crime has been committed and that the person sought to be arrested committed the crime. See W. Va. Code § 62-1-1 and 62-1-2; State v. Schofield, 175 W. Va. 99 (1985).  The warrant may be executed (i.e., the person arrested) at any time or place within the state, unless the magistrate or judge restricts the execution to only such times as during which a magistrate is available to conduct an initial appearance. See Rule 4(a) of the West Virginia Rules of Criminal Procedure for Magistrate Courts.  The subject of the arrest warrant may be arrested in his or her own home, regardless of whether there is consent to enter the home.  However, there is a “knock and announce” requirement that officers must comply with, with a few exceptions. See Richards v. Winsconsin, 520 U.S. 385, 387 (1997) and Wilson v. Arkansas, 514 U.S. 927 (1995).  In order to arrest the subject in the home of a third party, the officer must have both an arrest warrant and either the third party’s consent, or exigent circumstances (see below).

Warrantless Arrests

Officers may make warrantless arrests in certain circumstances.  Such arrests are permitted for crimes committed in the presence of an officer, or for any felony for which the officer has probable cause to believe the subject committed.  Probable cause for a warrantless arrest is identical to probable cause required to secure a warrant. See Gerstein v. Pugh, 420 U.S. 103, 113 (1975).  In order to make a warrantless arrest for a misdemeanor, the facts and circumstances within the knowledge of the arresting officer must be sufficient to warrant a prudent man in believing that a misdemeanor is being committed in his presence. Syllabus, Simon v. West Virginia Dep’t of Motor Vehicles, 181 W. Va. 267 (1989).  

A warrantless arrest in the subject’s home must be justified not only by probable cause, but by exigent circumstances which make an immediate arrest imperative. Syl. Pt. 2, State v. Mullins, 177 W. Va. 531 (1987).  The test for “exigent circumstances” is whether the facts would lead a reasonable, experienced police officer to believe the evidence might be destroyed or removed before a warrant could be secured, or whether there is evidence both that the officer was actually motivated by a perceived need to render aid or assistance, or whether a reasonable person under the circumstances must have thought that an emergency existed.” See State v. Cecil, 173 W. Va. 27 (1983).  After the arrest, the subject must be taken “without unnecessary delay” before a magistrate in the county in which the arrest was made. See W. Va. Code § 62-1-5.

Jurisdiction

The arrest must occur within the proper jurisdiction of the arresting officer.  For municipal police officers, the jurisdiction is within the corporate limits of the municipality. See W. Va. Code § 8-14-3.  In some circumstances there may be a “mutual aid agreement” that could extend the jurisdictional range. See W. Va. Code § 15-10-1.  Municipal officers also may arrest suspects outside the municipality if they are within the county or counties in which the municipality is located (as if they were a deputy), if the violations were committed within the municipality – especially in pursuit situations.  Deputy sheriff’s have essentially the same arrest powers as a municipal police officer, except that their jurisdiction is always the county in which they are employed.  State troopers have statewide jurisdiction to make arrests, and can furthermore command any other state, county, or municipal law enforcement officers to assist him or her (under proclamation of the governor).  

Search and Seizure

Amendment IV of the U.S. Constitution provides that “The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.  Article III, Section 6 of the West Virginia Constitution provides for the same protections, almost-verbatim.

Search warrants may be issued by municipal judges, magistrates, and circuit court judges, if they are within the jurisdiction of the location of the items sought to be seized.  Probable cause must be set forth in a written affidavit detailing the probable cause and listing and describing the place to be searched and the items to be seized.  The warrant must be executed by the officer who obtained the warrant within ten days of being issued. See W. Va. Code § 62-1A-4; State v. Clements, 175 W. Va. 463 (1985).

All warrantless searches are per se unconstitutional, but there are several exceptions, one of which is consent. See State v. Buzzard, 194 W. Va. 544 (1995).  Another exception is the “emergency doctrine,” which provides that a warrantless entry into a suspect’s home can be proper where there is an immediate need for assistance in the protection of human life, the search or entry by the officers is motivated by an emergency, rather than by an intent to secure evidence, and there is a reasonable connection between the emergency and the area in question. State v. Cecil, 173 W. Va. 27 (1983).  

Another exception is a search incident to a lawful arrest, which covers the individual’s person and “immediate geographic area under his physical control,” namely for physical safety purposes. See State v. Sugo, 193 W. Va. 388 (1995).  Another exception is the “open fields doctrine,” which excepts areas outside the “curtilage” from the warrant requirement (i.e., land, vacant lots, water). See State v. Lilly, 194 W. Va. 595 (1995).  Yet another exception is the “plain view doctrine,” which holds that if an officer observes what he has probable cause to believe is incriminating evidence or contraband, and if he is legally in a physical location that he is entitled to be, then he may seize any of those items without a warrant.  

Warrantless searches may also be allowed in situations of “hot pursuit,” where the officer is pursuing a suspect with “speed” and with “continuous knowledge of the alleged perpetrator’s whereabouts.”  Items that can be searched or seized includes anything observed while looking for the suspect. See Goins v. James, 189 W. Va. 634 (1993).  However, a warrantless entry into a home still requires that exigent circumstances exist. See State v. Cecil; U.S. v. Shelton, 737 F.2d 1292 (4th Cir. 1984).

Vehicles

Moving vehicles can be stopped if reasonable suspicion exists, and they can be searched if probable cause exists.  Reasonable suspicion requires that an officer articulate facts which provide some minimal, objective justification for the stop.  It has to be something more than an “inchoate and unparticularized suspicion or hunch.”  Probable cause exists when the facts and circumstances as established by probative evidence are sufficient to warrant a prudent person in the belief that an offense has been committed and that the subject committed it.  

Pursuant to the lawful arrest of the driver of a moving vehicle, the passenger compartment of the vehicle may be searched, as well as any open or closed containers in the passenger compartment that are not locked. See New York v. Belton, 453 U.S. 454 (1981).  After an arrest, officers may perform a vehicle inventory of the contents of an arrestee’s vehicle if the vehicle is being legally impounded and the owner of the vehicle is not present or otherwise available to provide for the safekeeping of the vehicle contents.  However there are requirements that must be met. See State v. Goff, 166 W. Va. 47 (1980); State v. Perry, 174 W. Va. 212 (1984); South Dakota v. Opperman, 428 U.S. 364 (1976).

Traffic stops are not considered arrests, unless the driver is detained above and beyond what is necessary to issue a traffic citation or warning, or unless physical force or intimidation is used to detain a driver.  Both drivers and passengers may be ordered out of a vehicle at any time for any reason. See Pennsylvania v. Mims, 434 U.S. 106 (1977).  Officers are not required to inform drivers that they are free to go following the issuing of a citation or warning. Ohio v. Robinette, 519 U.S. 33 (1996).

Pedestrian Stops

Regarding pedestrian stops, usually involving an officer requesting identifying information from an individual, refusal to produce identification may not alone form the basis for an arrest.  Wilmoth v. Gustke, 179 W. Va. 771 (1988).  However, if there is express statutory direction requiring one to do so, or if the officer communicates a specific reason why the information is being sought with respect to official duties of the officer, then the refusal may form the basis for a charge of obstruction under W. Va. Code § 61-5-17(a). State v. Srnsky, 213 W. Va. 412 (2003).

Computers

To search or seize a computer located in a suspect’s home, an officer must obtain a search warrant.  In order to obtain a warrant, there must be a written complaint under oath, as with arrest warrants, which must adequately describe the computer and/or other items to be seized – such as all of the various accessories and drives that may be connected with the computer (i.e., backup or portable hard drives, digital cameras, printers, DVD’s, etc.) and which connects the same to some crime alleged to have been committed.  Proper procedures must be used in disconnecting and dismantling the computer or drives, and should be performed at the direction and instruction of whatever forensic computer examiner will be analyzing the computer, or else data may be lost or destroyed. U.S. v. Simons, 206 F.3d 392 (4th Cir. 2000)

To search or seize computers outside a suspect’s home, i.e., place of employment, the suspect must not have a legitimate expectation of privacy in the computer – it must not be one that society is prepared to accept as objectively reasonable.  Thus, each situation is unique and turns on the specific facts involved, such as whether the office is private or locked, whether the computer is password protected, whether other employees have access to the computer, whether the employer has an applicable computer policy that allows a search, whether the employer monitors computer use.  Law enforcement officers routinely may, and do, obtain subpoena’s for the suspect’s information held by the ISP provider, such as their account information, their “ISP”, address, and website history, for which there is no legitimate expectation of privacy. See U.S. v. Hambrick, 225 F.3d 656 (4th Cir. 2000); Smith v. Maryland, 442 U.S. 735 (1979).

Note:   Please understand that an infinite amount of time was not spent on this material ensuring it’s accuracy.  Thus, there may be mistakes in it.  If you are faced with a specific legal situation, you need to speak with an attorney individually about your particular circumstances.  If you are an attorney, you need to rely on your own research and work product rather than what I have written here.  This is meant merely to be helpful.

 – John H. Bryan, West Virginia Attorney.

April 9, 2009 Posted by | John H. Bryan, Searches and Seizures, Suppression | 2 Comments

“Testilying” an everyday occurrence

Mark Bennett posted a few days ago about the “everyday incident” of cops committing perjury – or as they call it, “testilying.” He stated that:

Not all cops who lie are willing to perjure themselves. Many times cops on the witness stand tell different stories (the truth) than what they had put in their offense reports (lies). Unfortunately, though, most cases never make it to trial (often the lies are too small to be relied upon to affect the outcome), so prosecutors — despite having seen this happen more than I have — rely on offense reports as the literal truth in deciding how to resolve cases. (The lesson to defense lawyers is, of course, not to make that mistake, to listen to your client, and to remember that good things happen when you try cases. Nobody ever got acquitted by pleading guilty.)

I can’t tell you how many times I have cross-examined a cop in a suppression hearing or preliminary hearing, where something completely different comes out of his mouth than what he wrote in his police report. I think that what obviously happens is that the cops do whatever they want initially. They pull the person over on a “hunch,” or search the person or their premises illegally, without regards to mere rules or laws, then they put in their “report” a little white lie – that they received a tip from an undercover informant, or that the person drove erratically, or that the person consented to being searched. This, in their mind, validates the search, stop, or seizure if they found anything incriminating. Then, several months later, they get called to the witness stand, and they fail to review the report, but their memory is not totally in sync with their report.

Cops don’t fear prosecution for perjury because there is almost a 0% chance they will be prosecuted. The cops – or judges for that matter – could care less. The only, only, only situation in which there could be criminal liability imposed on a cop for perjury is if they are caught on tape or under oath, and if it is blatantly intentional. Only if the situation is such that a prosecutor of judge would fear for his or her own job if they fail to act. Otherwise, they will always be given the benefit of the doubt, if not just a shrug of the shoulders.

As a defense attorney, you know they are lying, but there is not much you can do about it other than to contest it and to create a record for your trial or your appeal. As Mark Bennett, said, “nobody ever got acquitted by pleading guilty.”

– John H. Bryan, West Virginia Attorney.

August 19, 2008 Posted by | Police, Police Misconduct, Preliminary Hearings, Prosecutors, Suppression | 2 Comments

The Officially Jaded View of Criminal Defense

At lunch today, I was thinking about my previous post regarding the Charleston cops spotlighting deer, and it hit me. It all boils down to this:

Case in point: Cops have a suspect. Cops go to suspect’s house. Cops do not have a warrant. Cops illegally enter house. Cops look for evidence. Cops interrogate and get statement from suspect. Cops find what they are looking for. Suspect gets attorney. Attorney files a motion to suppress evidence found based on cops’ illegal behavior (warrantless entry of house). Cops lie and say on stand they were given “consent” to enter. Defendant/suspect says he/she absolutely 100% did not give consent to enter house. Defendant’s parents confirm his/her story. Defendant’s parent’s friend confirms the story. Cops cannot provide signed written consent form (yes, they exist). Judge denies motion to suppress, stating that defendant and witnesses have motive to lie, but that the cops have no reason to lie. Defendant takes plea agreement. Defendant goes to jail or on probation. The end. It happens day after day after day. And in the end, what judge cares if they know the person is guilty? Likewise, what do the cops care? If they fail to find evidence, then the apologize and go on their way. If they do find evidence, they show up in court and say the magic words: “consent,” and boom, the judge denies the motion to suppress. And no one cares but the poor sap who was convicted and the defense attorney banging his head against the wall.

Sometimes practicing criminal defense can be an exercise in futility. People think they have all of these constitutional rights… but, when it comes down to it, you only stand a chance if you can stand in front of a jury and, despite everything found by the police and prosecutors, convince them it would be an injustice to convict your client. Your only hope otherwise is to argue a constitutional technicality on appeal, and who wants to do that when they have some control over their destiny through taking a plea deal – especially in West Virginia where you don’t even have a right to an appeal, and even if you get there, the justices are elected through partisan elections (i.e., good luck Mr. Charged-With-Sex-Crime).

– John H. Bryan, West Virginia Attorney.

June 11, 2008 Posted by | Judges, Police, Police Misconduct, Suppression | Leave a comment