Foggy Road

TN Supreme Court Extends Police Powers

This past Thursday, February 11th, the Tennessee Supreme Court issued two opinions, State v. Smith (http://www.tncourts.gov/courts/supreme-court/opinions/2016/02/11/state-tennessee-v-linzey-danielle-smith) and State v. Davis (http://www.tncourts.gov/courts/supreme-court/opinions/2016/02/11/state-tennessee-v-william-whitlow-davis-jr) , making it easier for officers to justify a traffic stop.

In State v. Davis, Mr. Davis was observed, by Officer Jerry Massey, crossing the center double yellow line several times. The road Mr. Davis was driving on was a curvy two lane road without shoulders. Officer Massey pulled Mr. Davis over and discovered signs that Mr. Davis was intoxicated. Mr. Davis’s attorney attempted to suppress the evidence of DUI claiming that the Officer did not have reasonable suspicion or probable cause to pull Mr. Davis over. The trial court denied the motion and ultimately Mr. Davis plead guilty to DUI and then challenged the stop by appealing the denial of the suppression motion to the Court of Criminal Appeals. The Court of Criminal Appeals and the Tennessee Supreme Court upheld the trial court’s decision.

I believe that most people would agree that crossing the center yellow line several times is a good reason to be pulled over. As a criminal defense attorney, I can understand the need to investigate a driver who is unable to stay in their lane.

State v. Smith is a different story all together. In State v. Smith, Ms. Smith was observed by Trooper Chuck Achinger drift over towards the shoulder of I-65 as she was entering a big swooping curve. Ms. Smith crossed the fog line with both of her right tires by less than six inches and then as Ms. Smith came out of the curve, she twice corrected and drifted towards the fog line again almost crossing it; all of this occurred in less than half a mile. Then Trooper Achinger followed Ms. Smith for two or more miles, observing no other traffic violations. Trooper Achinger then pulled Ms. Smith over and discovered evidence of DUI. Ms. Smith’s attorney filed a motion to suppress which was denied by the trial court, Ms. Smith plead guilty to DUI, and then appealed the trial court’s ruling. Both the Court of Criminal Appeals and the Tennessee Supreme Court upheld the conviction.

This really doesn’t seem like a terrible ruling. As I stated before, we all want safer roads. The problem that I have is that the Court fails to acknowledge or grasp the power they just gave law enforcement. In State v. Smith, the Court stated that “We emphasize that our decision in this case is not intended to provide law enforcement officers with ‘carte blanche’ to seize motorists every time they see a vehicle cross a fog line.” However, that is exactly what they have done.

Regardless of what the Court believes the effect of their ruling in State v. Smith will be, this ruling gives officers far more power to pull people over to “investigate” traffic infractions. Because now an officer won’t have to worry about an attorney suppressing evidence gathered from an unconstitutional stop.

Of course no officer will ever use this as an excuse for a stop after the stop has resulted in the discovery of other criminal activity. Drive safe everyone because it is now open season for law enforcement.

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The 10 Day Rule: A Rule Without a Remedy

Almost every time I’m in general sessions (typically 5 days a week) I hear an attorney ask that a case be dismissed because the State has failed to bring a victim/witness to court to testify against the accused. When the judge challenges them, the attorney usually responds stating that “the case has to be dismissed, it’s the law,” or the “Tennessee Constitution requires that the case be dismissed because the State did not bring a victim.” Both statements are, unfortunately, incorrect.

In general session, when the defendant is in custody, the State has 10 days from the date of arrest to get their victim/witness to court to testify in a preliminary hearing; and 30 day when the defendant is on bond. The accepted practice, in Davidson County, is that the case will be dismissed if the State cannot produce a victim/witness within the ten day/thirty day timeframe. But where does this rule come from? The Tennessee Rules of Criminal Procedure, Rule 5 states in part, that: “…The magistrate shall schedule a preliminary examination to be held within ten days if the defendant remains in custody and within thirty days if released from custody…” Tennessee Rules of Criminal Procedure 5(c)(B). This might be the most misunderstood rule in Tennessee criminal law.

Though the Rule seems straight forward, it really isn’t. Defendants are left unsure of what to expect because the Rule does not specify what will happen if the hearing is not scheduled within the timeframe. In Davidson County, this Rule has come to mean that a defendant’s case will be dismissed when the State cannot produce a victim/witness to testify against the accused within ten days of their arrest. And in the case of a defendant who is on bond, the judge will usually dismiss the case against them when the State cannot produce a victim by the third setting (Settlement, trial, and one continuance requested by the State).

But the question is; if the State cannot produce a victim, is a dismissal of the case required? In short, no. However, since the local practice in Nashville is to dismiss the case when there is no victim/witness present, it is a common belief that the law requires the cases to be dismissed. Unfortunately this is not true. The Tennessee Rules of Criminal Procedure mandate that there shall be a preliminary hearing scheduled within the specified ten day/thirty day timeframe, but the Rule is silent on any remedy when a preliminary hearing is not scheduled within the allotted time.

So what does this mean to people accused of a crime? It means that a dismissal is not guaranteed. No matter what people are saying in jail, or what has happened in the past. The judge is not required to dismiss the case.

Hiring an experienced attorney will increase the chances of having a case dismissed when the State cannot bring a victim/witness to court to testify. In order to increase the likelihood of a dismissal, we will check to see if/when subpoenas were served on a victim/witness, we will speak with the District Attorney about their communication with the victim/witness, we will speak with the victim/witness coordinator about their communication with the victim/witness, and we will see how many times the case has been set for hearing. When the judge calls the case during docket call, we will inform the judge of everything we know about the previous settings, and then request a dismissal of failure to prosecute. This isn’t a guaranteed dismissal, but when the attorney is as prepared as we are, with all the information, the likelihood of a dismissal is significantly improved.

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Does Anyone Even Review this Legislation? Problems in Crime Designations

Here we are, the modern era. We have advances in technology beyond what anyone could imagine. We have medical treatments for anything and everything including successful treatments for cancer, and AIDS. Why can’t the legal system keep up? Right now, despite the fact that we can show that marijuana can treat symptoms from anxiety to pain (and is being used, with amazingly successful results, to get people off heroin and practically every other illicit drug), a single joint in your pocket is the equivalent of beating your wife. Both are A misdemeanors, punishable for up to 11 months and 29 days in jail. The third time someone gets caught with a joint, they will be charged with a felony; beating your wife three times does not result in a felony. The only real difference is that once someone is convicted of domestic assault, they can never own a gun again.

This system cannot stand. We have lumped together people with these indiscriminate, ridiculous laws that do not even come close to encompassing the reality of the crime. You can do the same amount of time for selling a gram of heroine as you can for dragging a person into a back alley and raping them. If you get pulled over, in front of a church, at 3:00am with a half gram of cocaine, you can actually be sentenced to MORE time than you can for raping someone! This disparity cannot be accounted for. I am not saying that one is a crime and one is not, but the shameless way in which the legislation treats them as though they were equivalent is ridiculous. The law as it stands right now, threatening someone with a gun and actually shooting them is the exact same. The truth is that few of these crimes have anything in common.

I have clients who served time for stabbing, shooting, raping, and robbing people. However by far the people who are incarcerated for the longest are all drug related. I understand that drugs can be, and often are a problem. By no means do I deny that drug addiction plagues our society. However, the damage is primarily inflicted on the user, so why when other people commit crimes, which cause clear, direct damage to others, are they punished so much less than a person whose addiction plagues only themselves?

My answer is that legislation is hot button driven. Elected officials, Politicians, only push for legislations that will get them elected and reelected to office. What do the voters want to hear? Felons can’t vote. So it’s easy, rally your voter base around a cause, and make it so that those who suffer under the weight of your legislation cannot vote. That means those with drug addiction problems and drug dealers (who almost exclusively get into dealing because of a personal drug addiction) won’t have the ability to oppose the legislation. People will get caught with drugs, people will commit violence within the home, and people will drive without a license. At some point, someone within the legislature needs to look and say that these and innumerable other offenses need to be assessed, reclassified, and the punishment needs to fit the crime.

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Courtroom tips that matter

This is another one of those blogs that shouldn’t have to be written, but after the last couple days in court, it clearly does. Spending every weekday in court, I get to see and conduct a lot of hearings. All kinds. Anything from preliminary hearings to petition for post conviction relief. After months of watching other attorney’s clients during hearings, I realize that people just don’t know how to act in their own best interest. I cannot emphasize enough, you have to be your own best advocate! I am your attorney, I will do everything in my power and under the law to defend you and your rights, but I cannot dress you, and I cannot make you behave in court. The judge sees it, the district attorney sees it, everyone sees it, and it is hurting you! What, specifically, am I talking about?

I was watching a preliminary hearing where the victim accused her boyfriend of assaulting her. Throughout the entire direct examination of the victim (this is when the state puts their witness on the stand asking them questions so they can tell their story), the defendant was scoffing out loud at almost every statement. He shook his head so much and for so long I found it amazing that he could even stand up without falling over. He tried to talk at least three times during the testimony. When he was told to be quiet, he would tell his attorney that she was lying (he literally said it after every other word that came out of the victim’s mouth). The most amazing part of this entire show was that his attorney never said a word to him.

Before every hearing, I sit down with my client and go over what they need to do and not do during the hearing. Here is what I tell them:

  1. Do not react to anything the witnesses say,
    1. Do not scoff,
    2. Do not shake your head,
    3. Do not even acknowledge that they are in the courtroom.
  1. If you have any questions, write them down (I always provide my client with paper and a pen), if I can and should ask them I will,
  2. Do not talk to the witness,
  3. Do not talk to the judge, and
  4. If you have trouble with any of this, just look forward,

Remember, the judge is the one who rules on all the objection, decides how much leniency I get with my lines of questioning, determines whether there is probable cause to bind a case over, and determines whether to increase or lower a bond. Most people wouldn’t want to annoy the judge or make them mad and hurt their chances of a favorable outcome. But that is exactly what will happen for being disrespectful.

You have THE RIGHT to remain silent!

freeEver wonder why the police are required to start with “You have the right to remain silent?”  BECAUSE YOU DO!!!

If you could be in trouble, you should refuse to answer any questions regarding a crime you are suspected of committing; leave the talking to your lawyer.

You do not have to speak to the police. In fact, speaking to the police can only hurt you. 

You literally do not have to answer any questions the police ask! The best answer you can give is, “Respectfully officer, I do not have to answer that question.

If you feel the need to respond, respond with: “Am I free to leave?” Ask that after every question the officer asks.

 

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How to Deal With Police

You have the right against unreasonable search and seizures.

You have the right to not be harassed by the police.

There is one thing you can count on: The police will lie to you. They will intimidate you into consenting to a search and/or making a statement that will be used against you. Do you know how to protect those rights?  Do you know how to prevent the police from violating your privacy?

This blog-series is going to teach you how to handle police interactions, within your legal rights, and how to protect your rights regardless of how intimidating the police are.

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Police Interrogations

Ask yourself. Have you ever met anyone who was question by police about a crime who walked away saying, “Man, I just convinced that police officer that I was innocent.” In all my criminal practice I have never met anyone who could make this claim and I would wager neither have you.

Key things to consider about police interrogation.

First, consider why the police officer is interrogating you. It is because they believe a crime occurred and that you are involved. If they truly believed you were innocent why would they interrogate you? They are neither unbiased nor neutral. They have formed an opinion based on their experience, training, and various other factors. Before the first word exits their mouth they have made a determination that you are guilty or at the very least, involved. You will not change that opinion, so why try? Furthermore, even if you are innocent why give them an opportunity to twist your words? You have nothing to gain and everything to lose!

Second, police officers are trained in the art of interrogation. They are great at it. If you find yourself feeling like “man this big dumb cop is so stupid I can just talk myself out of this,” know for sure that you are being played. Most police officers are intelligent, well educated, and thoroughly trained. They can and will lie to you. Avoid any question or statement designed just to get you to start talking. Don’t start. It’s that simple. Once they get you talking, whatever information they get can be used against you.

Finally, police officers do not have the authority to make you an offer. If they say they can, they are lying. District Attorneys make offers, not police officers. All a police officer can do is tell the District Attorney that you cooperated. Out of countless negotiations and meetings with District Attorneys, never have I encountered a DA who was lenient as a result of such cooperation.

What should anyone who is questioned by the police do? It is quite simple. SILENCE!! It is your right as an American. Do not waive it. Do not just hope that you will be the one person in a million who talks their way out of the situation. You are entitled to shut up. Embrace it, shut up. The only word that should ever exit your mouth is “attorney.”

Sample question and answer.

Police Officer: Have you murdered anyone today?
Answer: attorney

Police Officer: Well, I just want to hear your side of the story.
Answer: attorney

Police Officer: Do you know if it is supposed to rain later?
Answer: attorney

It truly is that simple.