Drug Possession
Theft Crimes including petty larceny and grand larceny
Traffic Matters
Monday, July 26, 2010
OH12: Officer approached car from which he saw furtive movements and then smelled marijuana
OH12: Officer approached car from which he saw furtive movements and then smelled marijuana: "
An officer saw defendant’s SUV parked behind a bar and saw furtive movements when the occupants saw the officer. He drove up on them shining his police car lights. He could smell marijuana smoke, and that was justification for a search of the car. State v. McMullen, 2010 Ohio 3369, 2010 Ohio App. LEXIS 2856 (12th Dist. July 19, 2010).* This is the reasonable suspicion, for which there is no articulable basis of a crime:
[*P2] Officer Scott Johnson of the Trenton Police Department was on patrol in the evening hours of March 27, 2009, when he pulled into the parking lot of Whitey's Bar. According to Johnson's testimony at the motion to suppress hearing, upon pulling into the parking lot, he noticed a parked SUV that was occupied by multiple people. When Johnson saw that some of the people in the vehicle were making furtive movements, he approached the SUV in his police cruiser and turned on his spotlight. Once Johnson shined his light into the vehicle, he noticed the front passenger 'ducking underneath the dashboard' and that his head came up and down.
[*P3] Johnson also noticed that a 'considerable' amount of smoke was coming from the vehicle and that the passengers continued to make furtive movements. At that point, Johnson exited his cruiser and approached the vehicle. As he walked closer, he saw some of the passengers bend over and put their hands down in the seat, and also noticed that the smoke coming from the vehicle smelled of 'raw burnt marijuana.' Johnson saw three people sitting in the back and two in the front of the vehicle, and continued to see smoke coming from the back corner.
So, if no furtive movements on seeing the police the stop was unjustified? This just is not reasonable suspicion.
"Despite Public Right to Take Photos, Police Are Camera-Shy and Worry About Pix of Buildings
Despite Public Right to Take Photos, Police Are Camera-Shy and Worry About Pix of Buildings: "In theory, citizens have a constitutional right to take photographs in public places, under most circumstances. In practice, in a post-Sept. 11, 2001 world, doing so may well get you questioned by police if your subject is a public building or police themselves. And if you assert your rights, the situation could escalate, according to the Washington Post. While several jurisdictions say they plan to provide more training to security officers to help them determine what is and isn't appropriate, the problem continues. Among those who have recently complained about overly aggressive intervention is a retired oceanographer who says he…
"
"
Saturday, July 24, 2010
Just how "free to leave" are you?
Just how "free to leave" are you?: "
Defendant’s traffic ticket took 17-20 minutes. He was free to leave, and the officer asked for consent, which defendant first hesitated about and the officer clarified, and he consented. United States v. Mohammed, 2009 U.S. Dist. LEXIS 129055 (M.D. Fla. June 29, 2009).*
Defendant’s traffic ticket took 16 minutes. As he was walking back to his car, he was asked for consent, which he gave. United States v. Cruz-Guzman, 2009 U.S. Dist. LEXIS 129013 (M.D. Fla. May 21, 2009).*
One could say that the defendants here were just stupid for consenting, which might be only a little true. Instead, I believe all these type cases involve the officer exploiting every motorist’s legal need to cooperate during a traffic stop, which his hardly ever discussed in the cases. While the officer may say the defendant is free to go, the defendant doesn’t necessarily know it even if the officer tells him he can go but then re-engages him in conversation. At that point, the defendant has to believe that his permission to leave has been revoked. Just how truly “free to leave” are you when the officer keeps talking? “He said I could go but now obviously I can't because he's asking questions.” How “free” is that?
This is truly exploitation of a fiction in both fact and the law, and it is sorely disappointing to read this cases with the officer exploiting the motorist to keep talking to get consent or reasonable suspicion. You'd have to read the case law to know you were free to leave, and who does that except us lawyers?
""Drivers on Prescription Drugs Are Hard to Convict"
"Drivers on Prescription Drugs Are Hard to Convict": "The story is in the New York Times: The issue is vexing police officials because, unlike with alcohol, there is no agreement on what level of drugs in the blood impairs driving. The behavioral effects of prescription medication vary widely,..."
Thursday, July 22, 2010
Tattoos not testimonial, court says
Tattoos not testimonial, court says: "
“Body, unity, love, lust and soul.” If it sounds like a modern marketing campaign, it is. It represents the five-point star of the Bounty Hunter Bloods street gang.
Gang member Gary Toliver sports some of these values as body art. Police took pictures of his eight tattoos after his arrest in 2008, and the photos were introduced at his Norfolk federal trial on racketeering and related charges.
Toliver, a/k/a Lil Gary, said photos of his tattoos violated his Fifth Amendment right against self-incrimination. In an unpublished opinion, the court said tattoos are a physical trait, like his voice or handwriting, and are not testimonial. Nor did an agent’s testimony interpreting the tattoos violate the Sixth Amendment Confrontation Clause, the court said.
The decision upholding Toliver’s convictions offers a chilling tutorial in gang life.
The panel traced the origins and present-day outlines of Norfolk’s BHB. Established in the early 1990s by an “Original Gangster” from New York, the gang allegedly controls Norfolk neighborhood “chapters” led by “generals.” Generals command “young gangsters” or “little homies.”
The most common way to join the BHB is “to shoot a 31.” The applicant stands in the middle of BHB members in a five-pointed star formation, and submits to a 31-second beating by current gang members. Members also can be “blessed” in and “women, called rubies, can be ‘sexed in,’ by having sexual intercourse with five members of the gang.”A gang leader estimated up to 400 members in the BHB at the time of trial, mostly teenagers, but some as young as nine.
At regular chapter meetings, members were encouraged to “represent their flag” and to engage in fundraising through home invasions, robberies and sales of narcotics. Little homies who refused to “put in work” might have to shoot a 31 again. The 31-second fight also is cited in a Portsmouth case decided the same day by the Virginia Court of Appeals. Little homies get “G Checked,” challenged by an older member on gang protocol.
The tattoos, hand signs, lingo and dress code all “serve to brand the gang, both within its membership and to rival gangs and the public,” the panel said.
By Deborah Elkins
Middle-Class Dilemma: Can’t Afford Lawyers, Can’t Qualify for Legal Aid
Middle-Class Dilemma: Can’t Afford Lawyers, Can’t Qualify for Legal Aid: "Lawyers are just too expensive for many people needing legal help, a law professor says. “You can hardly find a lawyer who charges less than $150 per hour, which is out of reach for most people,' University of Southern California law professor Gillian Hadfield tells the Wall Street Journal. At the same time, people who can’t afford lawyers make too much money to qualify for legal aid. Most aid groups serve those at or below the poverty line, and budget cuts are forcing the organizations to turn away more people, the story says. The newspaper cites a survey of nearly…
"
"
Monday, July 19, 2010
Sunday, July 18, 2010
Juvenile Convictions Aren’t Child’s Play
The consequences of "adjudications of juvenile delinquency" are severe. If a juvenile is adjudicated delinquent for a crime that would be a felony if committed by an adult it saddles that kid with the label “FELON” for the rest of his life. If a juvenile 14 years of age or older at the time of the offense is adjudicated delinquent on the basis of an act which would be a felony if committed by an adult, all court records, except any social history, mental health records, shall be open to the public and shall be retained by the court. Va. Code § 16.1-305. In short, the juvenile felony adjudications will not be expunged...ever.
The bit of good news for a juvenile adjudicated delinquent of an adult felony is that the juvenile will not be deprived of his civil rights as it would for an adult convicted of a felony. Va. Code § 16.1-308. Be aware, however, the felony adjudication will bar the juvenile from purchasing a firearm later in the juvenile’s adult life.
The juvenile adjudicated delinquent of an adult felony will have to provide a DNA sample that will be maintained at the Central Criminal Records Exchange. Va. Code § 16.1-299.1.
The juvenile will further be required to submit fingerprints and photographs when arrested and maintained at the CCRE. Va. Code § 16.1-299. If the juvenile, of any age, is convicted of a felony or adjudicated delinquent of an offense that would be a felony if committed by an adult, copies of the fingerprints and a report of the disposition will be forwarded to the CCRE.
Fortunately, it’s not quite as dire if a juvenile is adjudicated delinquent of a crime that would be misdemeanor if charged as an adult. The records of a juvenile charged with an adult misdemeanor are not open to the public. Only a few, specific people have access to the records. Va. Code § 16.1-305. Be aware, however, that Va. Code § 16.1-299 requires that fingerprints and photographs be forwarded to the CCRE. While release of the information held by CCRE related to a juvenile charged with an adult misdemeanor is strictly limited, it does still exist in law enforcement records.
Yet one more bit of fortune exists when a juvenile is charged with a misdemeanor instead of a felony. Va. Code § 16.1-306 requires the clerk of the juvenile and domestic relations district court to destroy all files and records related to any proceeding concerning a juvenile when the juvenile reaches the age of 19 years and five years have passed since the date of the last hearing. There are a few exceptions to this, such as DUI related offenses. The records related to a juvenile adjudicated delinquent of an adult felony will not be expunged. The court is supposed to notify the juvenile of his rights related to the expungement of the juvenile record at the dispositional hearing. When the records are destroyed, the “violation of law shall be treated as if it never occurred.” All references must be deleted and the court, law-enforcement officers, agencies, and the person may reply to any inquiry that no record exists.
The bit of good news for a juvenile adjudicated delinquent of an adult felony is that the juvenile will not be deprived of his civil rights as it would for an adult convicted of a felony. Va. Code § 16.1-308. Be aware, however, the felony adjudication will bar the juvenile from purchasing a firearm later in the juvenile’s adult life.
The juvenile adjudicated delinquent of an adult felony will have to provide a DNA sample that will be maintained at the Central Criminal Records Exchange. Va. Code § 16.1-299.1.
The juvenile will further be required to submit fingerprints and photographs when arrested and maintained at the CCRE. Va. Code § 16.1-299. If the juvenile, of any age, is convicted of a felony or adjudicated delinquent of an offense that would be a felony if committed by an adult, copies of the fingerprints and a report of the disposition will be forwarded to the CCRE.
Fortunately, it’s not quite as dire if a juvenile is adjudicated delinquent of a crime that would be misdemeanor if charged as an adult. The records of a juvenile charged with an adult misdemeanor are not open to the public. Only a few, specific people have access to the records. Va. Code § 16.1-305. Be aware, however, that Va. Code § 16.1-299 requires that fingerprints and photographs be forwarded to the CCRE. While release of the information held by CCRE related to a juvenile charged with an adult misdemeanor is strictly limited, it does still exist in law enforcement records.
Yet one more bit of fortune exists when a juvenile is charged with a misdemeanor instead of a felony. Va. Code § 16.1-306 requires the clerk of the juvenile and domestic relations district court to destroy all files and records related to any proceeding concerning a juvenile when the juvenile reaches the age of 19 years and five years have passed since the date of the last hearing. There are a few exceptions to this, such as DUI related offenses. The records related to a juvenile adjudicated delinquent of an adult felony will not be expunged. The court is supposed to notify the juvenile of his rights related to the expungement of the juvenile record at the dispositional hearing. When the records are destroyed, the “violation of law shall be treated as if it never occurred.” All references must be deleted and the court, law-enforcement officers, agencies, and the person may reply to any inquiry that no record exists.
Never Agree to be Interviewed by the Police
Never Agree to be Interviewed by the Police: "
"
An law school professor and former criminal defense attorney along with a former police officer tells you why you should never agree to be interviewed by the police.
Monday, July 12, 2010
Restoration of Firearm Rights
Va. Code § 19.2-308.2 prohibits a person who has been convicted of a felony from possessing or transporting a firearm. Likewise, if you were adjudicated delinquent as a juvenile 14 years of age or older at the time of an offense of murder, kidnapping, robbery by the threat or presentation of firearms, or rape you cannot possess a firearm. In addition, any person under the age of 29 who was adjudicated delinquent as a juvenile 14 years of age or older at the time of the offense of a delinquent act which would be a felony if committed by an adult, other than murder, kidnapping, robbery by the threat or presentation of firearms, or rape cannot possess a firearm.
You may, however, have your right to possess a firearm restored. The prohibition to possession a gun in Virginia under Va. Code 18.2-308.2 does not apply to a felon who has had his "political disabilities" removed by the Governor pursuant to Article V, Section 12 of the Virginia Constitution provided the executive order granting the pardon or restoring the person's civil rights contains no express conditions limiting the reinstatement of the person's right to ship, transport, possess or receive firearms. However, when you apply to the Governor's office for a restoration of civil rights, the rights that will be restored are limited to the right to register to vote, hold public office, serve on a jury, and serve as a notary public. The restoration of rights does not restore the right to possess a firearm.
To restore the right to possess a firearm, a felon must petition the appropriate circuit court pursuant to Va. Code §18.2-308.2. To regain state firearms privileges, a felon may apply to the Circuit Court of his residence for a permit to possess or carry a firearm. The court "in its discretion and for good cause shown" may grant the petition. While the Governor has the authority to restore state firearms privileges expressly by a pardon or though restoration of political rights, he does not customarily do so.
For purposes of determining whether or not a felon is eligible to possess a gun under federal law, the predicate felony conviction is determined under the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside, or for which a person has been pardoned, or has had civil rights fully restored is not a predicate felony conviction for purposes of lawfully possessing a firearm. Felonies, for purposes of understanding whether or not a felony conviction prohibits firearm possession under federal law, does not include certain business and white collar crimes.
Under 18 U.S.C. § 921(a)(20), a crime punishable by imprisonment for a term exceeding one year does not include any Federal or state offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or any state offense classified by the laws of the state as a misdemeanor and punishable by a term of imprisonment of two years or less.
Misdemeanor crimes of domestic violence present a unique issue. Because it is a misdemeanor, there is no denial of state civil rights nor is there a restriction on the possession of a firearm. It appears the only remedy that may available in cases of misdemeanor domestic violence convictions is to seek a pardon. Recently, however, the Fourth Circuit decided that the Virginia statute defining assault and battery would not necessarily be a misdemeanor crime of domestic violence under federal law. As a result of the decision in this new case, it may be, in certain cases, that a loss of one's right to possess a firearm cannot be denied by the federal government.
Under federal law, a person who is prohibited from possessing, shipping, transporting, or receiving firearms or ammunition may make application to the Attorney General for relief from the disabilities imposed by Federal laws. The Attorney General may grant such relief if it is established to his satisfaction that the circumstances regarding the disability, and the applicant's record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest. A person whose application for relief from disabilities is denied by the Attorney General may file a petition with the United States district court for the district in which he resides for a judicial review of such denial.
There's a problem with this scheme, however. The Attorney General delegates the review of the restoration petitions to the Bureau of Alcohol, Tobacco and Firearms (BATF). Since 1992, Congress, in its annual appropriations, has explicitly barred BATF from expending funds to investigate or act on applications by individuals. Consequently, BATF has not been processing applications. The U. S.Supreme Court has held that BATF inaction on applications does not constitute a "denial" under the law thus an applicant cannot go on to the federal court to seek judicial review to regain their firearm privileges. For the time being, a federal felon's sole option is to seek, and hope for, a presidential pardon.
You may, however, have your right to possess a firearm restored. The prohibition to possession a gun in Virginia under Va. Code 18.2-308.2 does not apply to a felon who has had his "political disabilities" removed by the Governor pursuant to Article V, Section 12 of the Virginia Constitution provided the executive order granting the pardon or restoring the person's civil rights contains no express conditions limiting the reinstatement of the person's right to ship, transport, possess or receive firearms. However, when you apply to the Governor's office for a restoration of civil rights, the rights that will be restored are limited to the right to register to vote, hold public office, serve on a jury, and serve as a notary public. The restoration of rights does not restore the right to possess a firearm.
To restore the right to possess a firearm, a felon must petition the appropriate circuit court pursuant to Va. Code §18.2-308.2. To regain state firearms privileges, a felon may apply to the Circuit Court of his residence for a permit to possess or carry a firearm. The court "in its discretion and for good cause shown" may grant the petition. While the Governor has the authority to restore state firearms privileges expressly by a pardon or though restoration of political rights, he does not customarily do so.
For purposes of determining whether or not a felon is eligible to possess a gun under federal law, the predicate felony conviction is determined under the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside, or for which a person has been pardoned, or has had civil rights fully restored is not a predicate felony conviction for purposes of lawfully possessing a firearm. Felonies, for purposes of understanding whether or not a felony conviction prohibits firearm possession under federal law, does not include certain business and white collar crimes.
Under 18 U.S.C. § 921(a)(20), a crime punishable by imprisonment for a term exceeding one year does not include any Federal or state offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or any state offense classified by the laws of the state as a misdemeanor and punishable by a term of imprisonment of two years or less.
Misdemeanor crimes of domestic violence present a unique issue. Because it is a misdemeanor, there is no denial of state civil rights nor is there a restriction on the possession of a firearm. It appears the only remedy that may available in cases of misdemeanor domestic violence convictions is to seek a pardon. Recently, however, the Fourth Circuit decided that the Virginia statute defining assault and battery would not necessarily be a misdemeanor crime of domestic violence under federal law. As a result of the decision in this new case, it may be, in certain cases, that a loss of one's right to possess a firearm cannot be denied by the federal government.
Under federal law, a person who is prohibited from possessing, shipping, transporting, or receiving firearms or ammunition may make application to the Attorney General for relief from the disabilities imposed by Federal laws. The Attorney General may grant such relief if it is established to his satisfaction that the circumstances regarding the disability, and the applicant's record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest. A person whose application for relief from disabilities is denied by the Attorney General may file a petition with the United States district court for the district in which he resides for a judicial review of such denial.
There's a problem with this scheme, however. The Attorney General delegates the review of the restoration petitions to the Bureau of Alcohol, Tobacco and Firearms (BATF). Since 1992, Congress, in its annual appropriations, has explicitly barred BATF from expending funds to investigate or act on applications by individuals. Consequently, BATF has not been processing applications. The U. S.Supreme Court has held that BATF inaction on applications does not constitute a "denial" under the law thus an applicant cannot go on to the federal court to seek judicial review to regain their firearm privileges. For the time being, a federal felon's sole option is to seek, and hope for, a presidential pardon.
Saturday, July 10, 2010
Pre-Written DUI Arrest Reports
Coming soon to a police department near you. Pre-written reports for a DUI arrest.
Restoration of Civil Rights
If you were convicted of a felony, restoring your civil rights is the first door to get through to obtain a pardon and to have your right to possess a firearm restored. The restoration of rights restores the rights to vote, to run for and hold public office, to serve on juries and to serve as a notary public. Restoration of rights does not include the right to possess or transport a firearm or to carry a concealed weapon.
Restoring your civil rights begins with the Governor’s office. The eligibility requirements for restoration of rights by the Governor of Virginia:
The applicant must be a resident of the Commonwealth of Virginia or have been convicted of a felony in a Virginia court, a U.S. District court or a military court.
The applicant’s sentence must be completely served.
The applicant cannot be under any supervised probation and parole for a minimum of two years for a non-violent offense or five years for a violent felony or drug distribution, drug manufacturing offense, any crimes against a minor, or an election law offense.
The applicant must have paid all court costs, fines, penalties, and restitution.
The applicant cannot have any pending misdemeanor or felony charges.
The applicant cannot have had a driving while intoxicated charge in the five years preceding the application.
The applicant cannot have any misdemeanor convictions and/or pending criminal charges for two years preceding the application for non-violent felonies or five years for a violent felony or drug distribution, drug manufacturing offense, any crimes against a minor, or an election law offense.
The Director of the Department of Corrections is required to provide to any person convicted of a felony notification of the loss of his civil rights and of the processes to apply for restoration of civil rights and of voting rights. The notice is required to be given at the time the person has completed service of his sentence, period of probation or parole, or suspension of sentence. Va. Code § 53.1-231.1.
The application for restoration of civil rights is submitted to The Secretary of the Commonwealth Office, which will conduct a criminal history and DMV record check. An applicant will receive notice of the Governor’s decision within 60 days from the time an application is considered complete. If the petition for restoration of rights is denied, you may reapply after a one-year period.
There’s another interesting avenue to get to a restoration of civil rights, and that’s using Va. Code § 53.1-231.2. Va. Code § 53.1-231.2 allows persons convicted of non-violent felonies, except certain drug-related offenses and election fraud, to petition a circuit court for approval of a restoration of voting rights. This petition to the circuit court is merely to restore voting rights, but can then be used as a stepping stone to the restoration of all civil rights lost upon conviction of a felony. In this statute, the General Assembly has established standards for identifying felons who may qualify for restoration of their eligibility to vote. The court's function is limited to making a determination whether a petitioner has presented competent evidence supporting the specified statutory criteria, and a court's approval or denial of a petition, and transmittal of its order to the Secretary of the Commonwealth completes this statutory process. The court's order does not constitute the rendering of an advisory opinion because the order adjudicates only the issue of the sufficiency of the evidence in support of the statutory criteria and does not state an opinion whether the Governor should restore the civil rights of a petitioner.
It is important to know that if a circuit court denies a petition filed under the statute, that denial does not affect a convicted felon's constitutional right to apply directly to the Governor for restoration of the petitioner’s civil rights. Filing a petition in the circuit court is not a requirement before applying to the Governor.
Restoring your civil rights begins with the Governor’s office. The eligibility requirements for restoration of rights by the Governor of Virginia:
The applicant must be a resident of the Commonwealth of Virginia or have been convicted of a felony in a Virginia court, a U.S. District court or a military court.
The applicant’s sentence must be completely served.
The applicant cannot be under any supervised probation and parole for a minimum of two years for a non-violent offense or five years for a violent felony or drug distribution, drug manufacturing offense, any crimes against a minor, or an election law offense.
The applicant must have paid all court costs, fines, penalties, and restitution.
The applicant cannot have any pending misdemeanor or felony charges.
The applicant cannot have had a driving while intoxicated charge in the five years preceding the application.
The applicant cannot have any misdemeanor convictions and/or pending criminal charges for two years preceding the application for non-violent felonies or five years for a violent felony or drug distribution, drug manufacturing offense, any crimes against a minor, or an election law offense.
The Director of the Department of Corrections is required to provide to any person convicted of a felony notification of the loss of his civil rights and of the processes to apply for restoration of civil rights and of voting rights. The notice is required to be given at the time the person has completed service of his sentence, period of probation or parole, or suspension of sentence. Va. Code § 53.1-231.1.
The application for restoration of civil rights is submitted to The Secretary of the Commonwealth Office, which will conduct a criminal history and DMV record check. An applicant will receive notice of the Governor’s decision within 60 days from the time an application is considered complete. If the petition for restoration of rights is denied, you may reapply after a one-year period.
There’s another interesting avenue to get to a restoration of civil rights, and that’s using Va. Code § 53.1-231.2. Va. Code § 53.1-231.2 allows persons convicted of non-violent felonies, except certain drug-related offenses and election fraud, to petition a circuit court for approval of a restoration of voting rights. This petition to the circuit court is merely to restore voting rights, but can then be used as a stepping stone to the restoration of all civil rights lost upon conviction of a felony. In this statute, the General Assembly has established standards for identifying felons who may qualify for restoration of their eligibility to vote. The court's function is limited to making a determination whether a petitioner has presented competent evidence supporting the specified statutory criteria, and a court's approval or denial of a petition, and transmittal of its order to the Secretary of the Commonwealth completes this statutory process. The court's order does not constitute the rendering of an advisory opinion because the order adjudicates only the issue of the sufficiency of the evidence in support of the statutory criteria and does not state an opinion whether the Governor should restore the civil rights of a petitioner.
It is important to know that if a circuit court denies a petition filed under the statute, that denial does not affect a convicted felon's constitutional right to apply directly to the Governor for restoration of the petitioner’s civil rights. Filing a petition in the circuit court is not a requirement before applying to the Governor.
MD: Continuing stop without RS required suppression
MD: Continuing stop without RS required suppression: "
Defendant’s continued stop lacked any reasonable suspicion, and the search suppressed. Nervousness alone is not enough. King v. State, 2010 Md. App. LEXIS 111 (July 7, 2010)*:
Lacking here, however, is any reasonable articulable suspicion that the occupants of the car were engaged in any criminal activity. Thus, the seizure was not reasonable. After conducting illuminated visual sweeps of the vehicle by search light and flashlight, Officer Chindblom observed no indication of criminal activity. Conversations with the four occupants revealed nothing constituting articulable suspicion of criminal activity. Neither McBride’s nor King’s perspiration or nervous appearance, alone, was enough to suggest criminal wrongdoing. [citation omitted] The officer did not smell any odor of illicit drugs. He did not observe any drug paraphernalia or, prior to the seizures of the sedan’s occupants, any weapons. A license check did not return anything unusual. Continued questioning merely produced multiple assertions that the occupants were not engaged in illegal activity.
This police-citizen interaction morphed from a legal encounter that was properly concluded into a second “stop” that was not justified by reasonable articulable suspicion. The Fourth Amendment violation occurred prior to McBride’s exiting the vehicle and the discovery of the gun. The State does not argue that the later voluntary consent to a search of the car cured the prior violation. The suppression motion was improperly denied.
Applying Rochin’s shocking the conscience test, the arrest of the plaintiff wasn’t. Fourth Amendment reasonableness discussed but not applied on these facts. Smith v. Bortner, 2010 Md. App. LEXIS 112 (July 7, 2010).*
"Monday, July 5, 2010
Sealing a Criminal History
Virginia Code § 19.2-392.2 provides the skeleton of what it takes to be eligible for an expungement. The final disposition of the case must be acquittal, nolle prosequi, or “the charge [was] otherwise dismissed.” "Otherwise dismissed” is the disposition that typically is in the gray area where you may, or may not, be eligible for an expungement.
“Otherwise dismissed” means that your charge was dismissed by the court because you were truly innocent. If a defendant pleads guilty to the charge or if the court found evidence sufficient to find the defendant guilty, but the court deferred its judgment so that the defendant could, perhaps, pay restitution or complete substance abuse counseling, you would likely not be eligible for expungement. Dismissal of a case following a plea of no contest would similarly render a defendant ineligible for expungement.
Assuming you are eligible for the expungement, a petition is filed with the circuit court. After you complete the remaining requirements, there will be a hearing where you may have to show that you deserve to have your record sealed. You may have to personally testify or call witnesses to testify on your behalf. For example, you may have to tell the court how the charges on your criminal history negatively affect your ability to find employment. It may also be that you have been denied a a security clearance necessary to your job. Perhaps you may want to have your employer testify that your criminal history hinders your ability to execute your job.
A court may then order your criminal history expunged and require that law enforcement no longer disseminate the information that was expunged.
“Otherwise dismissed” means that your charge was dismissed by the court because you were truly innocent. If a defendant pleads guilty to the charge or if the court found evidence sufficient to find the defendant guilty, but the court deferred its judgment so that the defendant could, perhaps, pay restitution or complete substance abuse counseling, you would likely not be eligible for expungement. Dismissal of a case following a plea of no contest would similarly render a defendant ineligible for expungement.
Assuming you are eligible for the expungement, a petition is filed with the circuit court. After you complete the remaining requirements, there will be a hearing where you may have to show that you deserve to have your record sealed. You may have to personally testify or call witnesses to testify on your behalf. For example, you may have to tell the court how the charges on your criminal history negatively affect your ability to find employment. It may also be that you have been denied a a security clearance necessary to your job. Perhaps you may want to have your employer testify that your criminal history hinders your ability to execute your job.
A court may then order your criminal history expunged and require that law enforcement no longer disseminate the information that was expunged.
Subscribe to:
Posts (Atom)