Uncategorized

Think Before Dialing 911

pittsburgh criminal defenseSo you’ve got a top notch security system at your home. Any problems, it automatically calls 911, the police, etc. Pretty great, unless you have an illegal grow operation in your basement, or maybe just a penchant for leaving your cocaine laying around in plain view from last night’s festivities. Even something as simple as a weed pipe carelessly left in view on the coffee table can open a can of worms once a 911 emergency response is filed. It will be followed up on.

In the case of a home security alert, the Police will definitely respond. Even in a ‘normal’ 911 call, most cities require both police and paramedics to respond. Once 911 is called, the police have pretty much free reign to come into a home and give it a visual once over. Depending on the nature of the call, they may even go further, especially if there is suspected weapons or drugs. Once they see something, like that pipe on the table, they have probable cause. By calling 911, you have basically invited them into your home and that pipe, or that odor of weed, or that meth lab smell, is gonna make them suspicious.

Frankly, if you’re in that kind of business, your home security system might be better off dialing the Bada Bing Strip Club office line than the Police, if you know what I mean.

Things you should never say to your significant other during an argument, especially if you have an illegal grow operation, might include, “Go ahead and call the cops! See if I care. I didn’t do anything wrong!”

Whoops.

In the heat of the moment, you may have both forgotten about your gardening hobby, and now you have about 10-15 minutes to tear it down and remove all the evidence. Not likely.

How about a property dispute that escalates until you mention your 12 gauge shotgun, at which point the other party decides to call the police?

Fighting with the neighbors, leaving your yard unattended until it becomes a nuisance property, an overly loud dog… there are countless ways to get caught doing something illegal in your own home, but the worst is when you call the police on yourself.

I have a client that refers to the moments before calling 911 as, ‘Cleanup on Aisle 13’– Taking a minute to look around and making certain nothing is left in view that you don’t want to be seen.

Marijuana may be a harmless drug, but it’s still illegal in Pennsylvania, and unfortunately, it can be quite harmful when it comes to the justice system.

This is an example of where an attorney is absolutely required to go over the procedures and make certain everything was done by the book. That pipe on the table makes that job a lot harder.

So next time you feel the need to call 911, and it’s not an actual life-or-death situation, think it over first. Calling the Police during an argument often leads to a situation far worse than the argument.

No comments
Patrick NightingaleThink Before Dialing 911
read more

Policing for Profit: Property Seizures Reconsidered

sentencing guidelinesDuring the Hey Day of the War on Drugs, the federal government began seizing the assets of suspected drug kingpins as a way to hit them where it hurt: Their wallets.

Assets purchased with the profits of drug sales (boats, cars, homes, etc.) were seized by the government when they made an arrest. Some assets, like vehicles for transporting drugs, or computers, for example, often played a direct role in the criminal activity. Records were found on hard drives tracking activities, financial activity via the computer supporting the case, all basically seized in the name of gathering evidence.

Other assets like bank accounts, were frozen and seized, as was any cash found at the time of the arrest. The IRS would get involved (just because your income is illegal doesn’t mean Uncle Sam doesn’t want his cut) and basically, the purpose was to A: weaken a drug kingpins financial ability to fight the charges and B: offer a form of compensation to the authorities as a reimbursement of sorts for their investigative costs.

This started at the federal level, but quickly ‘trickled down’ to local law enforcement agencies, and that’s where it all started to go wrong.

Suddenly, every police department in the country was able to seize assets that in many cases, amounted to far higher dollar values than their investigations cost. This led to a profit, which was then used not just to reimburse, but to expand their own assets.

And it got worse. Because the laws allow for seizure without a conviction, police and local politicians soon realized they could actually fund themselves at the expense of people who had never faced a trial, never been convicted of a crime.

And to top it off, the laws were so loosely written, they didn’t even have to bring charges to trial, and they were still able to keep what they seized. In other words, they could completely drop the charges and refuse to return the items.

Another tactic is to charge exorbitant fees for “storage”, so by the time the process played out, it would require a ludicrous amount of money to get back one’s own property, even though there was no conviction, or the charges were dropped altogether.

A recent article I read talked about a small town in Mississippi which has funded their police department 100% through seizures, purchasing advanced police gear that a small town would never actually need, but man, that tank is soooo cool! And what cop doesn’t enjoy playing with an AK-47 or cruising around in a $50,000 Dodge Charger?

Here in Pennsylvania, over $100 million has been seized by police over the past ten years, and used by local governments with absolutely no oversight from anyone. They simply decided to charge someone and take their stuff, whether or not they were guilty didn’t matter at all. Being suspected of a crime was enough.

If they were wrong, oh well. Sorry about that. We’re dropping the charges and keeping your stuff.

And they can use the money from sale of the seized items to buy anything they want. New cruisers, boats, funding for social activities labeled as police functions. Every day became Christmas.

Of course, people had the right to attempt to sue to get their property back, but the costs are more often than not quite prohibitive. In the end the exasperated citizen feels lucky to walk away without going to jail.

That is hardly justice.

State Sen. Mike Folmer (R-Lebanon) hopes to change this situation by introducing a Civil Asset Forfeiture Bill– an attempt to reform the process and eliminate some of the abuses.

Under the proposed legislation, law enforcement officials would still have the authority to seize property stemming from crime-related activity, but they would have to successfully convict owners to have the property permanently stripped.

It provides a layer of review by an elected official, the district attorney or the attorney general, and will go a long way to preventing some of this abuse that has caused the legislation to be filed.

The bill  also prohibits police departments from keeping the money from seized assets, and would first be used for restitution to any victims of the crime, or added to the state’s general fund if restitution doesn’t apply.

Although Dane Merryman, executive director of the Pennsylvania Chiefs of Police Association, agrees with the conviction aspect of the bill, he said his organization strongly opposes the money leaving the districts from which it was seized.

But that is at the heart of the matter.

Local departments should not be left to indiscriminately administer and spend these funds with no oversight from the state at all. It is a recipe for abuse.

By depositing these monies in a state general fund, it could be distributed evenly, where it is needed most. It could be used for programs that help the communities where, say, drug crime is highest. It could be applied to educational efforts and community programs, not just getting cops cool new cars and high tech weaponry.

Under SB 869, any ambiguities within the law will favor the owner. This is not the case with the current law, and leads to some departments taking advantage of the system, leaving innocent people with little or no recourse to get their property back. It almost encourages abuse.

We now have a situation where law enforcement departments are incentivized to act without due process. They have a reason to go out and find these assets, because they get to keep them.

Let’s hope the State Judiciary Committee, where the Bill is now under consideration, will see fit to endorse this much needed reform.

 

 

No comments
Patrick NightingalePolicing for Profit: Property Seizures Reconsidered
read more

Women and Children First

Pennsylvania criminal justiceSometimes it gets tough, working in courtrooms for many years.

Seeing so much of the bad things people do to one another every day. There’s no doubt about it, sometimes it gets to me.

When cases directly involve children, it can be especially hard to detach oneself, especially being a parent myself. What parent doesn’t have the constant fear of their children being hurt? Tragically, that hurt often comes from the parents themselves.

This is often a real problem in family court, where issues such as custody can literally tear families apart in ways no court verdict can repair.

The fight between parents obviously affects their children, but there are times when it goes beyond the pain of separation. The children themselves become weapons the parents hurl at each other with studied precision, cutting each other in ways only they, with their former intimacy, can know will really hurt the other. The tragic result is the children are no longer witnesses, they begin to feel they are the cause.

Violence perpetrated by one or both parents against the other can scar a child for life, even impacting their ability to maintain healthy relationships in their own lives.

Child abuse comes in many forms, both physical and emotional. The ability to trust is built upon a child’s parents. It breaks my heart when I see that trust being manipulated in a grudge match between warring parties. I know how much that can impact a child and their future. I’ve seen it too many times.

It is even worse when I know the children are witnessing violence between the parents.

Although there are women who get violent, the majority of such cases involve men battering women. To me, hitting a woman is an unthinkable act, but my experience tells me there are many men who see it otherwise.

We see, in our popular culture, many instances where men actually get away with such behavior. Think of the Baltimore Ravens player throwing a knockout punch to his fiance’ in a public elevator. That does not bode well for the future happiness of their family, should they choose to have one. And yes, they reconciled, so it’s entirely possible.

And therein is a main frustration for the court system– women who recant allegations of abuse, even when that abuse is evident to all involved. Many women have been battered to the point of complete subservience to their abuser. Others act out of the fear that they do not have the means to support themselves, or their children, on their own. They go back to their abuser because they fear losing their children. But the children end up being caught in a perpetual cycle of violence, despite the good, yet misguided, intentions and desires of the Mother.

There comes a point where every woman says, “Enough!” It is inevitable almost 100% of the time. Yet, too often, it comes after much damage has already been done to the children a Mother is trying to protect.

It would be wonderful if I could say I have a fool proof method of getting out and getting back on one’s feet. I don’t.

I do know there are many organizations ready to assist someone who has come to that moment of decision, in the hope that perhaps knowing there are options, is the best place to start, so I’m listing a couple of links to resources available for women who need to get out now.

Womens Center and Shelter of Greater Pittsburgh

This website has a listing of area shelters:
Pittsburgh PA Womens Shelters Transitional Housing

Emergency Shelter Programs, Allegheny County

 

No comments
Patrick NightingaleWomen and Children First
read more

Half-Truths and Outright Lies

statecapitolSitting through the SB3 testimony of medical ‘professionals’ from the Pennsylvania Medical Society, while they denied even the existence of the LUDICROUS amount of research studies done regarding medicinal marijuana, was too much to take.

Rather than get myself all worked up again refuting the drivel they had the unmitigated gall to utter, in the state capitol no less, I am sharing the following link, which is also an organization of medical professionals.

Lies, Damned Lies and the Pennsylvania Medical Society

No comments
Patrick NightingaleHalf-Truths and Outright Lies
read more

Patrick testifying at the State Capitol in Harrisburg. Hearing on SB 3, Medical Marijuana, February 25, 2015.

Patrick testifying at the State Capitol in Harrisburg. Hearing on SB 3, Medical Marijuana, February 25, 2015.

Patrick testifying at the State Capitol in Harrisburg. Hearing on SB 3, Medical Marijuana, February 25, 2015.

No comments
Patrick Nightingale
read more

Policing the Police

 

speedy trial PAFerguson, Eric Garner, riots, murder charges against police in New Mexico, videos flooding the internet of police beating people…

It’s been in the news so frequently, it’s becoming alarming. Police Brutality.

It’s undeniably frustrating to see these stories of abuse of authority piling up. This isn’t about any particular case. This is a systematic problem.

My blood boils when I read these stories in the news. Not just because of the obvious problem of a civil rights violation, or even my genuine disgust seeing violence perpetrated on any person in general, but a deeper problem: A complete disregard for a sacred oath, resulting in an unpardonable violation of the public trust.

If the average citizen feels they cannot trust those who have voluntarily agreed to uphold the law for all, then who can they trust?

As a former prosecutor, I was justifiably held to a higher standard than one might apply to the average citizen. The public had put their trust in me to act in the name of justice. The public has a right to expect, nay, demand, public officials be accountable for their actions and set a higher standard.

This is true of all public officials, but more than any other, it applies to the police. Why? Because as much as any particular politician or elected official pisses you off, or acts in ways you disapprove of, they cannot legally shoot you.  A politician can’t cuff you, knock you to the ground and choke you to death on a public street, with cameras recording it, no less, and expect to have any chance to get away with it.

Officer of the Court

That is the legal designation of all attorneys, prosecution or defense. Defense attorneys are held to the same standards of conduct as their elected counterparts. The difference is a defense attorney is beholden only to their client. It is their sworn duty to defend that client to the very best of their ability, but they were not elected, nor are they retained (for the most by part) by elected officials or those charged with the public trust, the obvious exception being the role of a public defender. Those same standards of conduct become imperative if the system is truly functioning as it should.

Elected?

If one views local government realistically, we see that it would be impossible to hold public elections for every single police officer, building inspector, etc. This is the responsibility of those we elect, particularly the Mayor of a city and the council members, etc. They are there to represent US. We, the people, have hired them to do the job.

It disturbs me greatly to see police officers turning their backs on a Mayor who is willing to admit that the buck stops here, and he is personally concerned that the public trust he was elected to represent, is not being served.

Even more disturbing to me is the revelation that our elected officials are using police like tax collectors, forcing them to meet quotas like used car salesmen and undeniably adding unnecessary stress and anxiety to an already stressful job. It’s no wonder police become edgy.

Frankly, I believe this is an issue that the police union needs to address. It is an unfair practice to citizens and police officers alike. It forces officers to act like robots instead of human beings. In my career on both sides of the courtroom, I have dealt with many officers and found the vast majority of them to be dedicated and professional, but I’ve also encountered some who need to take a few anger management classes.

One of Us

Forgive my sense of humor, but, farts are funny. Anyone will tell you, hearing someone rip one in church, is funny. Unless it’s you. Or maybe, your husband or kid or elderly parent did it. Suddenly, you’re drowning in embarrassment. You didn’t do it, but your brother did. And that’s just a fart.

Imagine being a cop and your partner, a person who has had your back in life or death situations, is kicking the shit out of a suspect. Maybe you step in and get them to back off, but now what?

Would you testify against your brother or sister?

What if your brother had been going through a rough time in his marriage or maybe has a sick kid or just has so much to deal with… you get the point. Cops are people, too, and they have a bond amongst their own that is absolutely natural and even necessary. I’m suggesting that any meaningful change has to come from within. Police have to stand up for themselves and say, “We are not here to make up for the budget shortfall. We are here for a higher purpose.”

Who among us has not, at some point, been so stressed we very well might be able to shoot someone over a parking space? Now imagine having a gun and a badge that allows you to make some judgment calls in this arena.

Frankly, I’m impressed that more police aren’t over the edge. It is a testimony to something we all need to remember: They are expected to do a job most of us don’t want and they actually, for the most part, do a pretty good job of it.

Why do I say all this? Because, if you do get arrested, there are some things you absolutely need to keep in mind.

#1. “They didn’t read me my rights.”

The fact you are aware of your rights enough to know they are supposed to read them to you is pretty much an admission you already know your rights. Sad but true.

However…

You still have those rights. You have the right to remain silent. You have the right to an attorney. You have the right to refuse to answer any questions without your attorney present- no matter what they tell you. Here’s the problem: Unless you actually have an attorney, you fall into a kind of grey area, legally speaking. A public defender is not really, ‘your attorney’. They are there to ensure you get some representation in court, but you can’t call them from a holding cell and expect them to do anything in a timely fashion. They are pretty over-worked, to put it mildly.

 

#2 No one likes being told how to do their job.

Telling a cop you know your rights in a belligerent manner is not a promising start. Treat them with some respect. You’d be surprised how much it helps. I have one client in particular who has had several run ins with law. He actually retains me because he’s told police, politely, that I am his attorney and it helped. In fact, it actually kept them from taking him to jail once over an address discrepancy between his ID and what he stated his current address to be. Although I’d like to think I’m respected within the law enforcement community, I also know that my client was respectful and cooperative. He did not tell the police about his rights, he exercised those rights with respect for the law.

In today’s society, it is more likely than ever that you or someone you know will get arrested. DUI has become very common and impacts everyone, rich or poor, old and young. If you want to see a true cross section of America, attend a DUI class. Marijuana is commonly used and despite it being legal in several states, it’s still illegal in Pennsylvania. Even those who attend protest marches run an increased risk of arrest. Many times the police are ‘just doing their job’, yet too often, a combination of behavior from the protestors and the stressful nature of police work collide with tragic results, even when the initial ‘transgression’ isn’t all that serious to begin with.

We cannot expect police to be superhuman machines, nor can police expect every citizen to just obey in every situation. Everyone needs to take a step back, take a deep breath, and think about the humanity of all this.

One of the most difficult things to balance within myself, as a defense attorney, is my respect for the law versus my desire for justice. They are, tragically, not always one and the same. It is the same for police officers. Our politicians need to stop treating them like slot machines and instead support them in being role models and people we as a society can trust, and look up to.

 

No comments
Patrick NightingalePolicing the Police
read more

This Is About Saving Lives

Once again, we are forced to fight for kids in need of treatment. Real treatment, in which every possible option for their recovery is available to a physician.  Being an experienced Criminal Defense Attorney, I can tell you I wouldn’t want an accountant or a doctor handling my trial if I was one of my clients. I would want the very best professional expert in the law available.  Shouldn’t medicine be left up to doctors, and not politicians? Are we really willing to play politics with the lives of sick kids?

This is only one example of the human cost of this madness.

We simply cannot understand the “reefer madness” mentality expressed by some members of our state’s Grand Old Party, exampled in the above Pittsburgh Post-Gazette article. The medicinal marijuana bill pending before the PA State Senate enjoyed widespread bipartisan support and is sponsored by one of the Senate’s most conservative members, Sen. Mike Folmer. With 85% of Pennsylvanians supporting medical marijuana one has to ask just how out of touch with their constituents is the House GOP leadership. Every day Pennsylvanians suffer while their fellow Americans in one of the 22 medical marijuana states have access to safe treatment options, treatment options for which our citizens can be arrested and incarcerated.

Once again, I have traveled to Harrisburg to speak before the state senate committee on the issue of Medicinal Marijuana. Click Here to view the testimony.

PA Senate Medical Marijuana Hearing 06/10/14

No comments
Patrick NightingaleThis Is About Saving Lives
read more

Reduced Penalties for Possession of Marijuana Possible in PA

Being an active part of the fight for sane, realistic Marijuana laws, this comes as good news for those of us on the front lines. It’s also good news for the countless citizens who experience needless and unnecessary arrests for possession in Pennsylvania each year.

A Pennsylvania Senator intends to introduce legislation in the coming days to reduce marijuana possession penalties.
The proposed measure would make the possession of small amounts of marijuana a summary offense for a first and second offense. Under present law, possession marijuana is classified as a criminal offense, punishable by arrest, criminal prosecution, a $500 fine, up to 30 days in jail, and a criminal record. Passage of this proposed measure would reduce marijuana possession penalties to a fine only.

Read the Full Article Here.

 

No comments
Patrick NightingaleReduced Penalties for Possession of Marijuana Possible in PA
read more

PA Supreme Court: Warrantless Vehicle Searches Okay

The PA Supreme Court, in Commonwealth vs. Gary,  has reaffirmed that the “automobile exception” is a permissible exception to the warrant requirement.

This was PA law until the “automobile exception” was overturned by Com. v. White in, I think, 1997.

The 4th Amendment as interpreted by the United States Supreme Court recognizes the “automobile exception” to the warrant requirement.

Both PA and federal law require an independent showing of probable cause to search. In other words, the police officer can’t search you merely because they have probable cause to stop you for speeding. And police are generally free to seek consent to search.

Here’s the Court’s Opinion:

http://www.pacourts.us/assets/opinions/Supreme/out/J-5-2013oajc%20-%201017924602181959.pdf?cb=1

But, what if you are just a passenger in the vehicle?
Com. v. Gary (the new case) does not change the law with respect to patting down a driver or passenger. The “Terry Frisk” analysis set forth in Terry v. Ohio remains the law in PA. However, if contraband is found inside of a vehicle the driver and/or passengers may be arrested and then searched incident to arrest.
The “wingspan” doctrine permits police to search any area within the “wingspan” of a person they are arresting. In other words, if contraband is within the reach of another person in the vehicle, they, too, can be charged.
Otherwise, an officer can only “search” a person incident to arrest or with consent. Police use the phrase “pat down for officer safety” but that doesn’t exist in the law. To pat someone down for weapons requires “articulable facts that the individual is armed and dangerous.”
If you, or someone you know, is navigating these rough legal waters, we can help. Call us and schedule a consultation.
No comments
Patrick NightingalePA Supreme Court: Warrantless Vehicle Searches Okay
read more