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Is this an illegal search? |
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Question: During a traffic stop, the police officer discovered my registration was suspended and my insurance was lapsed. I was told that my vehicle would be "inventoried" because it was going to be towed. During the 'inventory' a small amount of marijuana and drug paraphernalia were discovered. I was charged with possession with intent to deliver. Was the search illegal?
Answer: It's important to make sure your car is properly registered and insurance paid up. If records showed that your tag or license plate registrations were expired, a police officer can pull you over. Different departments have different policies under these circumstances. Some tow the car, some issue tickets and park the car in a public lot. Once the officer decides to tow the car, he has an "obligation" to look through your car to make note of valuables, which is the reason for the inventory.
Police searches are one of my favorite blogging topics. To read more about this issue, type "don't consent" in the search box on the left.
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Police & your smart phone |
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Police have a love/hate relationship with drivers using smart phones. State lawmakers generally see them as a public danger. Much of the county has passed laws banning their use either as telephones or as messaging devices while the user is driving a car. However, police are relishing the ease of gathering evidence from phone records and tracking people via smart phones.
Because the technology is so new, legal guidelines are not yet in place to protect cell phone users from being tracked by the police. I hope that last sentence shocked you. It should have. Yes, there are NO clear standardized rules governing cell phone tracking. Since all cell phones, when turned on, are connected to multiple cell phone towers via signals, it is quite simple for cell phone services to know approximately where a caller or texter is using a process called triangulation. If a cell phone has GPS turned on, the user’s location can be known with even greater accuracy. Police regularly ask cell phone providers to track suspects via cell phones. Yes, the police need subpoenas to track an individual, but they often request information on all the people that person calls. While the phone industry is happy to help out in an emergency, their
lawyers have real problems with wider tracking, as do I.
There are other methods police use to get information from your phone. In February’s Clark & Towne newsletter I alerted you the decision by the California Supreme Court. That court allows police to search an individual’s cell phone without a warrant, saying defendants lose their privacy rights for any items they're carrying when taken into custody. So far, this is just for California, but it won’t be long before other states consider adopting this policy too. Once the police open your smart phone, they can read all your text messages, see who you’ve called and access any other information you have stored there.
Frankly, I find it frightening that our law makers are so quick to pass laws banning phoning and texting while driving and allowing the
police to search our smart phones, but have yet to pass laws protecting us from being excessively tracked by law enforcement.
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There are more laws curtailing our use of technology in the works. The Huffington Post reports that there are several senators up in arms over an app that shows where DUI checkpoints are. Unfortunately, Georgia allows roadblocks, no matter what you call them -- license checkpoints, road checks-- as long as they are decided upon by a supervisor and meet other criteria. Except for very limited circumstances, the police cannot set up a roadblock for general law enforcement purposes (see if you're wanted), but only for traffic-related purposes (are you wearing your seatbelt? are your kids strapped in? have you been drinking?). Limited purposes would be there's been a murder a mile away, and they're checking passing cars to see if the murderer is hiding in one.
But back to the real story. Remember when kind drivers used to flash their headlights at oncoming traffic to warn them of speed traps or roadblocks? Apps have taken that approach to a new level. Using GPS technology, apps can track a driver's location and point out upcoming speed traps and roadblocks, traffic cameras, school zones, accidents, railroad tracks, speed bumps, and dangerous curves and intersections. Sounds like a brilliant idea to me. Because if I didn't have an app telling me about this, I'd be looking at my phone clicking on an old fashioned maps app to figure out where all the slow traffic is and avoiding problems that way. And that would be distracted driving, which by the way, is against the law (as is texting and driving). It's much faster to have an app process all that information and tell me about it.
Our senators need to stop being so afraid of new technology and trying to block its use. Instead of banning apps (how many rights will that violate?), they need to reconsider just how effective roadblocks are at finding drunk drivers. They need to find a way to write tight laws that keep us safe instead of writing separate laws to cover every possible situation --we already have distracted driving laws. We don't need separate laws banning phone use, app use, texting, or watching tv while we drive. Those all fall under "distracted driving."
If we ban this app, where will it lead? Frankly, I use Google Maps when I'm on a long trip and one of my favorite features shows me where road construction and traffic congestion is. If traffic congestion is caused by a roadblock, I can't tell, but I'm still going to avoid the area. Should all traffic apps be banned then?
Call your senator and call him off!
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A Tea Partyer and His Liberal Lawyer |
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Two years ago, a judge appointed me, David Clark, to represent a man accused of aggravated assault. We don't have a public defender in our county, we have an appointment system. Experienced attorneys are assigned indigent persons and submit a bill to the county after the case is over.
Well, the trial is over and the headline should have read: “Man Gets 8 years for Attacking Obama Supporter, Despite Efforts of His
Liberal Blogger Lawyer.” That's right, I had to defend this self-described “tea partyer,” who destroyed the nose of an Obama supporter with a pool cue.
The jury was sympathetic to the tea party—there were maybe 13 people in the pool who said they supported it and I got almost all of them on the jury—but the photos were horrible and the force used was found to be too excessive to be self defense.
There were some interesting moments during the trial. The victim actually turned down medical care after the incident because he was 25 and didn't have health insurance. While he was on the stand, I kept thinking: “under Obamacare, you can be on your parents policy until you're 26!”
I did not defend my client’s actions by bashing the President; not only would that have been phony for me, it wouldn't have worked. Under Georgia law, there is no jury nullification, and you can't justify a physical attack with a political argument.
All in all, I tried very hard to just be a good lawyer, hold my nose, and leave the politics out of it. Before the jury came back and put my client in jail, my client told me I did a good job. I was satisfied that I had not let my politics infect my obligations as a defense lawyer.
After the trial, I helped out my client’s longtime girlfriend, who was downstairs in another courtroom fighting eviction. I hate seeing
people get kicked out of their homes, even if they are Republicans. As an atheist hippy, of course, I believe in Karma points.
One of my friends pointed out that by losing, I disqualified a Republican voter (convicted felons can't vote). But defense lawyers always feel badly when their clients are sent off to prison, even when they are of questionable political orientation and engage in violence.
I don't know why.
You can read more articles by David Clark on his blog DolphinKazoo.com.
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David Clark's book "101 Ways to Beat a Marijuana Charge in Georgia" is a comprehensive guide to getting out of a marijuana charge in Georgia. Mr. Clark, a former Judge, provides inside tips from his 22 years of experience as one of Georgia's top criminal defense lawyers defending pot smokers. All proceeds benefit Georgia NORML.
Jessica Towne's FREE book "How to Choose a Georgia DUI Lawyer" guides you through choosing an attorney. A criminal defense and trial lawyer for over 22 years, Ms. Towne shows you how to cut through the talk and find the best qualified attorney for your case.