Search and Seizure

Civil Asset Forfeiture: No Conviction Required

President Trump has apparently come out in support of what has become one the most unfair and controversial practices of law enforcement agencies: Civil seizure and forfeiture of assets.

The original intent of seizure and forfeiture laws when first established was creating a tool for law enforcement to punish big time drug cartels and organized crime by taking assets gained through their illegal activities.

The original intent of seizure and forfeiture laws when first established was creating a a tool for law enforcement to punish big time drug cartels and organized crime by taking assets gained through their illegal activities.

On it’s face, the original intent makes sense. Take away the ill-gotten gains of professional criminals.

Civil Asset Forfeiture has since become a veritable smorgasbord of gluttony used by law enforcement agencies– especially those in budget conscious small communities– to finance their own departments at the expense of average citizens who may or may not be guilty of a crime.

Yes, you read that correctly.

Civil Asset Forfeiture is not the same as assets seized as a part of a criminal investigation, and has absolutely nothing to do with being convicted of anything.

Cars, boats, computers and of course cash, can be seized based on connections to criminal activity. But these seizures typically occur when someone is actually charged with criminal activity, and forfeiture comes only after a conviction.

Even if someone is found not guilty, the return of seized property can often be problematic when considering storage fees and the simple passage of time.

Of more concern are situations involving no criminal charges at all, ie: Civil Asset Forfeiture.

Example:

Your band is returning home after a big money gig. You are holding $5000 cash and get pulled over on the way home. The officer performs a search, finds the cash and asks where you got it. You explain that you were just paid for a show, but the officer decides he doesn’t believe you and confiscates the cash. Now, you must go to court to prove the money was legally obtained.

Or maybe you’re a young hip hop artist who has been saving up $10,000 from your job for the past 3 years so you can drive to Los Angeles and record in your buddy’s fancy studio. You get pulled over somewhere along the way, the cash is discovered and is subsequently confiscated, leaving you broke in the middle of nowhere and having to prove that the money was legally obtained. Not as easy as it sounds, either.

If the money was saved in a coffee can on the nightstand, and not withdrawn from a savings account, there is no way to prove where that money came from, even with payroll records. Just saying you saved it up is not enough to convince a judge the money was not ill-gotten.

So they keep the money.

These situations are far more common than most people realize, and are a gross perversion of a law that was originally intended to punish actual big-time criminals like drug cartels, not the general public. (The average civil forfeiture amount is $8000– hardly an amount one would associate with a drug cartel.)

President Trump is wrong to suggest these laws do not need to be reformed.

 

 

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Patrick NightingaleCivil Asset Forfeiture: No Conviction Required
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“Trash Pulls” and the Fourth Amendment

A “Trash Pull” is a technique employed by law enforcement where they literally go through a suspects garbage, looking for potential evidence of criminal activity or to verify the identification of the residents via “indicia of residency” such as utility bills, etc.

Law enforcement does not need to procure a warrant in order to search anyone’s garbage.  Law enforcement does not even need to demonstrate “reasonable suspicion.”

Garbage containers, bags, etc., are right out on the street, ie; public space.  The Supreme Court has held that garbage cans constitute “abandoned property” and the individual loses any privacy interest or standing to challenge the search.

Anything from a call to police from a neighbor alleging illegal activity, to inclusion in an ongoing criminal investigation can trigger a trash pull.

A mere hunch is sufficient to justify a trash pull.  Hearsay, rumor and innuendo can be enough to pique an Officer’s interest in one’s trash.

Anything incriminating the police find can be used by law enforcement to secure a search warrant for the premises to which the trash originated from.

One common misconception regarding a trash pull is law enforcement needs to find something in the trash that ties it to a specific person or persons at the residence in question, such as mail or a utility bill containing names and the address. This is false. The issue is whether the trash pull leads law enforcement to have probable cause to believe the residence contains contraband.

A person of interest to law enforcement need not actually rent the property in question, and may not even receive any mail there at all. They could simply be sleeping on the couch at their buddy’s home.

Marijuana growers beware!

One of the biggest mistakes someone with even a small marijuana grow operation can make is to throw out anything associated with growing marijuana– leaves, root balls, even something as innocuous as light fixtures, ballast boxes, etc– with their usual garbage, which can then be used to secure a search warrant for the premises. I have seen this situation come back to haunt people more times than I care to remember.

The bottom line is, trash placed on a public street or sidewalk is not protected under the Fourth Amendment of the United States Constitution.

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Patrick Nightingale“Trash Pulls” and the Fourth Amendment
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Score one for the Fourth Amendment – United States Supreme Court holds independent showing of reasonable suspicion required to prolong traffic stop to conduct narcotic investigation.

criminal lawOn April 21, 2015, the United States Supreme Court issued its Opinion in Rodriguez v. United States, 575 U.S. ____ (2015).
Justice Ginsberg delivered the majority Opinion. At issue was whether a police officer could “extend” a traffic stop in order to conduct a canine sniff for narcotics.
In Rodriguez, the defendant was stopped for a traffic violation. After issuing the citation and checking Rodriguez’ license the officer asked for permission to conduct a canine sniff. Rodriguez demurred and was detained for seven to eight minutes until a canine unit arrived. The canine alerted to contraband and Rodriguez was federally indicted for methamphetamine. In denying defendant’s Motion to Suppress, the District Court held that the Fourth Amendment intrusion was “de minimis” as it was limited to a few minutes.
Rodriguez appealed arguing that the continued detention was illegal absent an independent showing of reasonable suspicion pursuant to Terry v. Ohio, the landmark Supreme Court decision that defined citizen police interactions as either mere encounters, investigatory detention or custodial arrest.
Relative to the latter two, the Supreme Court established the need for a showing reasonable suspicion and probable cause, respectively.
The Supreme Court acknowledged that law enforcement does have a legitimate interest in keeping public roadways safe. It analogized the routine traffic stop to a Terry stop requiring only a showing of reasonable suspicion. An investigating police officer may detain the driver for a period of time sufficient to determine whether or not a violation occurred and to issue a citation. It also recognized Illinois v. Caballes which held that a canine sniff during a lawful traffic stop was permitted.
But existing precedent was silent on the issue of whether a separate and distinct showing of reasonable suspicion was required to continue the detention in order to facilitate the canine sniff.
The Court drew a distinction between the “ordinary inquiries incident to [the traffic] stop . . . . (such as) checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance” and a canine sniff “aimed at “detecting evidence of ordinary criminal wrongdoing.” It noted that even the Government conceded characterization.
The Court held that prolonging a routine traffic stop beyond the ordinary purposes therefore in order to facilitate a canine sniff, even if limited in duration to a few minutes, required an independent showing of reasonable suspicion.
The Supreme Court’s holding is consistent with Pennsylvania appellate law. In Commonwealth v. Reppert the Superior Court of Pennsylvania held that once the basis for a traffic stop was concluded a police officer must demonstrate reasonable suspicion to continue the detention.
Police, of course, are under no obligation, legal, moral or otherwise to advise a driver of these finer points of search and seizure jurisprudence. An educated and informed citizenry may not be the most convenient for law enforcement, but the Framers of the Constitution knew from bitter experience that a person must be free from unwarranted search and seizure and enshrined that right in the Fourth Amendment of the United States Constitution.
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Patrick NightingaleScore one for the Fourth Amendment – United States Supreme Court holds independent showing of reasonable suspicion required to prolong traffic stop to conduct narcotic investigation.
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Prison for Pot: No Laughing Matter

sentencing guidelinesJust saw a satirical piece on the internet, designed to look like an actual news story, claiming Colorado was going to release all their prisoners incarcerated on marijuana related charges. It looked real enough to have to be debunked by legitimate sources. And I thought, for someone sitting in prison for weed, that’s not funny at all.

Being an attorney based in a large metropolitan area like Pittsburgh, I do regularly see the injustices that occur in the War on Drugs. I also spend much time traveling western Pennsylvania, representing clients in less urban environments.  Very often, drug offenses become magnified in the minds of citizens in these outlying districts. It’s not uncommon to read of a drug bust in cities like Philadelphia and Pittsburgh, but it’s pretty shocking when it’s a small community far from the big city.

Judges are often less tolerant in those cases, which often results in harsher sentences. Bear in mind, these sentences are perfectly legal. There is just a tendency to forbear less in those communities than in a big city, where these cases have become ‘run of the mill’ stories in the news. A Prosecutor in a big city is more likely to work with a defense attorney in reducing charges, penalties, etc., if for no other reason than expediency. The courts are so jammed with drug cases, the system often has no choice but to acknowledge the true state of the Drug War: We can’t afford it.

As an advocate for the legalization of marijuana, it’s troubling to find the vast majority of those, “Drug Arrests”, involve a drug that’s so harmless, it’s actually legal in 5 states AND the United States Capitol, Washington, DC.

Look, this has become a problem on epidemic proportions.

The damage done to individuals, and worse still, entire families, because of unnecessary prosecution of otherwise law abiding, hard working, tax paying citizens, is criminal in itself.

In fact, Congress, in one of it’s more rational moments, has begun to look at seizure and forfeiture laws, enacted as a tool for law enforcement in the War on Drugs, as being just that; A legal criminal enterprise offering profit incentives to local police to arrest otherwise harmless citizens, in too many instances with no court verdict needed to keep item seized. Cars, boats, homes are seized because someone was caught growing some pot. That’s it. No violence, no robbery, just some pot.

According to United Nations estimates, global consumption of opiates, cocaine and marijuana increased by 35 percent, 27 percent and 9 percent, respectively, between 1998 and 2008.

People want to get high, on all sorts of drugs, both naturally occurring and man-made. There’s no getting around it. It’s bad enough that certain drugs already create hazards in one’s life without the community making it impossible to ever recover from getting caught.

2014-03-06-OffendersDrugTypemostof2013For those sitting in prison over marijuana offenses, the situation has become beyond frustrating, as they watch states, one after another, legalizing the plant they are in prison for growing, selling, and even just possessing. For attorneys, prosecutors, Judges and police, marijuana charges are more trouble than they are worth, yet we still see people being sentenced to jail, in many cases because the laws on the books have failed to keep up with the times.

 

2014-03-06-Screenshot20140306at3.09.08PMBetween October 2012 and September 2013, 27.6 percent of drug offenders were locked up for crimes related to marijuana, followed by powder cocaine (22.5 percent), methamphetamine (22.5 percent), crack cocaine (11.5 percent), heroin (8.8 percent) and other (7.2 percent), according to the Sentencing Commission.2014-03-06-Screenshot

As the number of people convicted of drug offenses has gone up, the federal prison population has increased — almost 790 percent since 1980, when there were only about 25,000 inmates, according to a 2012 Congressional Research Service report. Today, there are more than 215,000 inmates in federal prison, the BOP reports.

If it’s just about the money raised from fines, the system is even more flawed, as the cost of incarcerating individuals on drug charges far exceeds the revenue generated from fines. Especially when a large portion of those expected ‘revenue fines’ are dependent upon those who can least afford it– the poor and minorities.

It’s time to take a realistic approach in the failed War On Drugs. It’s a waste of money, time, law enforcement resources, and lives, and that’s no laughing matter.

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Patrick NightingalePrison for Pot: No Laughing Matter
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[VIDEO] How Miranda Warnings Really Work

 

Miranda Warning Information – Have your Rights been Violated?

In a perfect world, nobody would lie. Everybody would tell the truth 100 percent of the time. Of course, this is not the case now and never will be in the future.

As a United States citizen, we grow up believing in the police force and the good that they bring to the streets. If arrested, however, many people begin to think differently. They wonder if the police are always telling the truth. They wonder if they are being lied to or exploited in some fashion.

One of the most common questions is as follows:

When am I entitled to Miranda warnings?

Unfortunately, the answer to this question is not always simple. In other words, there is some “gray area” that can make things difficult on both the person being arrested as well as the arresting officer.

It is important to note that not every interaction with the police requires that Miranda warnings be given. This is a common misconception.

Before we go any further, let’s take a closer look at the Miranda warning:

  • You have the right to remain silent.
  • Anything you say or do may be used against you in a court of law.
  • You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future.
  • If you cannot afford an attorney, one will be appointed for you before any questioning, if you wish.
  • If you decide to answer any questions now, without an attorney present, you will still have the right to stop answering at any time until you talk to an attorney.
  • Knowing and understanding your rights as I have explained them to you, are you willing to answer my questions without an attorney present?

Every jurisdiction in the United States has its own regulations that dictate what the police must say to the person being arrested. With that in mind, the six points above are commonly used.

Police are only required to recite the Miranda warning if you are subject to a custodial interrogation. In short, this is when a police officer is asking questions after you have been arrested for a crime. For example, don’t expect to have this warning read to you for a moving violation.

What happens if statements are obtained by the police that violate the Miranda warning?

In this case, the information may not be permissible during a criminal trial for the crime for which you are accused.

If you feel that your Miranda rights have been violated, contact a professional criminal defense lawyer at PKN Law for a free consultation.

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Patrick Nightingale[VIDEO] How Miranda Warnings Really Work
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Search and Seizure in Pennsylvania – Know your Rights

Most people are aware that the Fourth Amendment to the U.S. Constitution protects them from unreasonable searches. This includes searches of their property as well as their person. Along with this, police officers are prohibited from making unlawful arrests, also known as seizures.

Despite the fact that this sounds straightforward, the law associated with search and seizure is anything but that. As a United States citizen, it is important to know your rights down to every last detail. This includes:

  • What the law requires of police
  • The definition of probable cause
  • The rights of the citizen
  • How evidence can be used in the court of law
  • Details related to search warrants

What can the Police do? What can’t they do?

United States citizens are entitled to their privacy. That being said, there is a limit to that privacy – and this is where things can get confusing, even for law enforcement officials who should know better.

On both the state and federal level, authorities are permitted, with justification, to search your home, car, or person in an attempt to find and seize illegal items, crime evidence, or stolen goods.

Things that the Police can do:

  • Under the Fourth Amendment, police can engage in reasonable search and seizure. In this case, the word “reasonable” means that the police must be able to show that a crime has likely occurred. Note: in some cases, the police must first obtain a search warrant from a judge.
  • Police have the right to search and seize items in the event that there was no “expectation of privacy.”
  • Police are permitted to use first hand information and tips from others to justify the search of a property.
  • Police are permitted to search your property without a warrant if given consent.
  • When being placed under arrest, police are permitted to search your person.

Things that Police cannot do:

  • Police are not entitled to perform a search without a warrant if there is a reasonable expectation of privacy.
  • Police are not permitted to use evidence from an illegal search to subsequently find additional evidence.
  • If evidence was illegally obtained, it cannot be used against you in court. This is known as the exclusionary rule.
  • Police must have reasonable suspicion that your vehicle contains illegal items, stolen goods or criminal evidence before searching.
  • Police are not permitted to stop you and “pat you down” unless there is reasonable suspicion that you have been involved in a crime.

What Power does a Search Warrant give Police?

With a search warrant, police have the legal authority to enter a property without the permission of the owner. The warrant lists the places the police are allowed to search as well as the type of evidence they are permitted to collect. For example, if the warrant allows the police to search the bedroom for illegal drugs and weapons, the search should be confined to this area only.

Have you been a victim of illegal search and seizure? If so, contact the professionals at PKN Law to learn more about your rights and to schedule a free consultation aimed at helping you prepare an impactful defense against criminal accusations.

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Patrick NightingaleSearch and Seizure in Pennsylvania – Know your Rights
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