Monthly Archives: September 2008

West Virginia Man Charged with Assault after Farting on Officer

There are some things that need no explanation.  I think in this situation, the headline speaks for itself.

According to the criminal Complaint, the accused, Cruz, was originally pulled over for driving without headlights. He failed a field sobriety test and was brought back to the police station, where he was given a breathalyzer test and was fingerprinted.

According to the police, Cruz “lifted his leg and passed gas loudly on (Patrolman) Parsons… then fanned the air with his hand in front of his rear.”

Seriously? I wonder what he would have been charged with if he had given the officer a dutch oven? Attempted murder? This is rediculous!

Read the complaint here.

Border Searches of Laptop Computers

Believe it or not, but the 9th Circuit Court of Appeals recently upheld warrantless searches of people’s lap top computers by Department of Homeland Security Agents at the border.  Under the decision, Agent had unbridled access to search laptop computers of people entering the United States regardless of whether they believed the individual had committed, was committing or would be committing a crime.  In legalese we call that type of search one without “reasonable suspicion” or “probable cause.” It seems, however, that Congress is trying to better define the searches.

A new bill introduced to Congress last week reportedly limits the Department of Home Security, Customs and Border Patrol agents when searching your laptop, external hard drive or mobile device.

“I was deeply concerned to learn about the lack of protections individuals’ have when their electronic equipment is randomly seized,” Rep. Loretta Sanchez (D-CA), who introduced the bill, told Ars Technica. “With the passage of the Border Search Accountability Act of 2008, Americans will be able to travel with more peace of mind knowing that their data will be further protected and that there are stringent accountability measures in place for safeguarding their personal information.”

Unfortunately, the Bill does not make the searches more difficult to conduct. The 9th Circuit Judges noted that precedent already allows searches of 1) briefcases and luggage, 2) a purse, wallet, or pocket, 3) papers found in pockets, and 4) pictures, films, and other graphic material. They had no hesitation to extend it to lap top computers.  There were attempts to limit the decision to the protection of the territorial integrity of the United States. While such searches would not appear to be legal within the country, courts have long recognized the government’s right to “protect its territorial integrity” by controlling the material passing across its borders.

I’m having a difficult time with this. The Patriot Act was passed to obstruct terrorism but i have seen prosecutors bootstrap that law onto cases where there wasn’t even a breath uttered about terrorism. I wouldn’t doubt an ambitious prosecutor’s efforts to use the 9th Circuit case to justify a search within the territory.

For those of you traveling abroad … leave the lap top at home.


The Defense Zzone … Criminal law at its finest

In an effort to save time and maximize hits, I have combined my parter Lia Fazzone’s blog, The Defense Zzone with mine.  So, periodically you might see wonderful criminal law tidbits looking for your attention.  Issues covered by the blog are Crimianl Law, Constitutional Law, 4th Amendment, Evidence and Trial Issues.  Some recent posts from her blog are listed below.  Take a look and stay tuned for more criminal law related posts.


State v. Tyrell

Oh wow! There are some things in this legal profession that just beg to be made public. I have to thank my good friend Marc Randazza for bringing this case to my attention.

The case is the State of Florida v. James Tyrell where Tyrrell is appealing his conviction of misdemeanor battery. riginally he was charged with three counts of sexual battery on a person twelve years of age or older, all second degree felonies. The facts presented by the government are fairly typical of a sexual assault case. But the crux of this case, and the issue that makes it unique is that Tyrell raised two defenses at trial. The first was that he had a very small penis, thus it likely didn’t cause the injuries complained of by the victim. And, second that the victim had caused her injuries herself with “aggressive use of a dildo.” Apparently at trial, Tyrell tried to get the victim to produce her dildo and consent to a dildo lineup. At trial, on July 23 and August 2, 2004, “the trial court ordered the victim to produce the sex toy and/or dildo discussed in her depositions within 15 days.” However, she never produced it.

On appeal, Tyrell argues that his

“right to due process and right to confront witnesses” was violated because the state did not produce the items that were the subject of the July 23 and August 2 orders. However, it was the victim, not the state, who was ordered to produce. The defense never moved to hold the victim in contempt for failing to turn over the dildo and medical records; there was no showing that the state possessed the items and withheld them from the defense. At trial, the victim described the dildo and explained in detail how she used it. Even if there was error in the court’s ruling about the dildo, the error was harmless. The jury did not need to see the actual dildo to understand the testimony or the nature of the defense.

Wow! I need to give credit to the victim who put her personal life out in the open. It can’t be easy talking about the subjects she was exposed to.

All in all, the orders of the trial court were affirmed and Tyrell’s conviction was upheld. You can read the Appeal here:Florida v. Tyrell

A Cop’s Opinion isn’t Expert Opinion

As I promised, I was going to give you an update to the story below about entrapment and how it was affecting a trial I was just involved in. And that event is still to come. However, equally as important is to give you a little taste of my trial and how I wanted desperately to convince the judge in this trial to keep out a police officer’s opinion that my client was involved in a drug deal. To give you a little bit of a background (please note that the names have been changed to protect the legally challenged), the Investigator asserted in his report that

“At approximately 8:30 p.m., [the] Investigator drove past [my client] in the parking lot. This male looked towards the Investigator and nodded his head several times. [The] Investigator has participated in undercover narcotic operations in this area for a year and half, and has completed nearly thirty (30) crack cocaine transactions. [The] Investigator has learned through training and experience that street level narcotic dealers will nod and waive at passing vehicles and pedestrians in an attempt to attract potential customers.”

Yes, I know what you are thinking. You need to turn yourself in for narcotics dealing, and you didn’t even know it. To quote Patrick from Spongebob Squarepants “I didn’t even know I was an alien.” And these are the officials we have entrusted to our streets. Careful as to who might be watching the next time you try to get someone’s attention.

Obviously, I saw an opportunity to pounce on this investigator (figuratively of course) and file a motion to keep his speculative and unsupported (lame man’s) opinion to himself at trial. I never got the opportunity but, here’s what I was ready to argue (please note that because this was a Colorado case, I was applying Colorado law. Please don’t think for a moment that this analysis applies in every state, or even in federal court, or that it would even fly again here in Colorado. Hire a good lawyer first) :

Under Colorado law, opinion evidence is expert testimony and is now determined by Colorado Rule of Evidence 702 and its applicable case law. The Colorado Supreme Court has determined that C.R.E. 702 and 403 represented a better standard for determining the admissibility of scientific evidence than the general acceptance test set forth in Frye v. United States, 293 F. 1014 (D.C. Cir. 1923). People v. Shreck, 22 P.3d 68 (Colo. 2001). The Shreck Court noted that this is due to the fact that the flexible approach represented by the Rules considers a wide range of issues. The Shreck Court noted that the approach set forth in the Rules was to be applied to all scientific evidence and not limited to the novel scientific evidence previously governed by the standards set forth in Frye v. United States, 293 F. 1014 (D.C. Cir. 1923.) Pursuant to 702 and 403, the focus of a court’s inquiry should be to determine: (1) the reliability of the scientific principles as to which the witness is testifying; (2) the qualifications of the witness to opine on such matters; and (3) the usefulness of the testimony to the jury in understanding the evidence or to determine a fact in issue. Id.

As further modified under Masters v. People, 58 P.3d 979 (Colo. 2002), the Shreck four step analysis requires 1.) the opinion and the knowledge on which the opinion is based be reasonably reliable; 2.) the expert is qualified to give the opinion; 3.) the testimony will assist the jury, and 4.) the probative value is not outweighed by the danger of unfair prejudice or other trail concerns of Rule 403. The Colorado Supreme Court also recognized that factors mentioned by other courts may be pertinent, including: (1) the relationship of the proffered technique to more established modes of scientific analysis; (2) the existence of specialized literature dealing with the technique; (3) the non-judicial uses to which the technique are put; (4) the frequency and type of error generated by the technique; and (5) whether such evidence has been offered in previous cases to support or dispute the merits of a particular scientific procedure. See Shreck, 22 P.3d 68.

Furthermore, in applying C.R.E. 702 to determine the reliability of the evidence, the court should consider a wide range of factors, including those set forth in Daubert v. Merrell Dow Pharaceuticals, Inc., 509 U.S. 579, 593-94 (1993). Under Daubert, the Supreme Court enumerated a non-exclusive list of “scientific validation factors” a court might consider to wit: (1) whether the technique can and has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the scientific technique’s known or potential rate of error, and the existence and maintenance of standards controlling the technique’s operation; and (4) whether the technique has been generally accepted. Daubert, 509 U.S. 579.

In the present case, the scientific determination that “[the] Investigator has learned through training and experience that street level narcotic dealers will nod and waive at passing vehicles and pedestrians in an attempt to attract potential customers” is not evidence or testimony that the finder of fact should be allowed to consider as testified to by the Investigator due to the lack of scientific reliability under Daubert, Shreck, and the subsequent cases. This expert statement is not backed by any proof, peer review, publication or otherwise scientific research and application. Moreover, the Investigator is not qualified to make this statement as fact or present it as evidence within any degree of scientific certainty. The Investigator’s opinion as to this fact is not sufficiently reliable to be used by the finder of fact to determine the underlying issue in this case.

And what I really wanted to tell the judge:

Not to mention, it’s just damn silly as hell.

Daredevil sues NYC landmark for thwarting jump

I just had to bring this to everyone’s attention. Professional stunt jumper, Jeb Corliss, was thwarted from leaping off the 86th floor observation deck of the Empire State Building. He is suing the famous New York landmark, claiming its employees endangered his life. (Read the story).

But its not the fact that he is suing the Empire State Building that has me interested in this story. It’s the fact that the judge threw the criminal case out. According to this MSN article, “[he] has jumped from the Eiffel Tower, the Golden Gate Bridge and the Petronas Towers in Malaysia”, and that in this particular instance he was arrested and charged by New York prosecutors with reckless endangerment — a felony. But, it turned out, there is no law in New York that makes it illegal to jump from buildings. In January 2007, a city judge ruled that Corliss had not acted recklessly and had broken no laws.

Too funny! If he broke no laws, why was security keeping him from his jump? This will be interesting to follow…

Read the full story

Topless Woman Lured Perverts in Police Sting

Of course, the headline has all the appeal of a tantalizing catch to get you all interested in this story. But I have to admit, this is really a disturbing story from a defense attorney perspective. Seriously, don’t these officers have anything better to do than arrest people for doing nothing wrong? I think the cops involved just wanted to see their cohort topless in the park. This really ticks me off!

According to an ABC story ran late last December,

Robin Garrison, an off-duty 42-year-old firefighter, was walking in Berliner Park in Columbus, Ohio, in May when he saw a woman sunbathing topless under a tree.
He approached her and they started talking and getting comfortable, the woman smiling and resting her foot on his shoulder at one point.

Eventually, she asked to see Garrison’s penis; he unzipped his pants and complied.
Seconds later, undercover police officers pulled up in a van and arrested Garrison; he was later charged with public indecency, a misdemeanor, based on video footage taken by [the officers] … (Source)

I can appreciate the police’s efforts to thwart crime. According to the article,

Law enforcement officials say that such sting operations are an extremely effective means of lowering crime rates and stopping the criminally minded before they commit worse offenses. From early 2006 to the spring of 2007, there were 160 citations for public indecency in the city, according to an investigation by 10TV News. (Source)

But what has the world come to when we have to trick people into committing crimes? I cannot possibly imagine that this firefighter had any predisposition to show this naked female his penis until she asked.

And what’s even more outrageous about this is that it’s not only happening in Ohio like this case, it’s happening in New York. Apparently, “in New York City, nearly 300 people, many of whom had no criminal record, have been snared this year through the NYPD’s Operation Lucky Bag, in which undercover officers leave a wallet, iPod or cell phone in a subway station and wait to see who picks it up.”

Now give me a little time, as I am in the process of preparing a jury trial where entrapment will be used as a defense. Once that’s all said and done, I’ll have a little more time to dedicate to educating you all on entrapment.

Pole Dancing Instructor Denied Permit to open Business

Every now an then, imperialistic small-town governments bite off more than they can chew.  I think this is a good example.  The New York Times is reporting that Stephanie Babines, 30, was denied a permit to open a dance studio in Adams Township, PA. Apparently,two years ago, Ms. Babines began offering instruction in pole dancing, power lap dancing, salsa and other forms of dance and fitness in peoples’ homes and in rented space in a dance studio at night and on weekends.

However, in March, the Adams Township code enforcement officer, Gary Peaco, denied her occupancy permit, ruling that her studio was an adult business and was illegally within 1,000 feet of a bar and a residential area. The A.C.L.U. has sued to overturn that decision. (Source)

Mr. Peaco said he had reached his decision after noticing the black and pink color scheme of Ms. Babine’s Web site — — and the high-heeled shoe in her logo. ARE YOU KIDDING ME?

In addition, Mr. Peaco testified that even though the dance instruction did not involve nudity and there would be no audience, the dance styles were “provocative” and involved sexual “innuendo.” OH MY GOD! The Steve Buscemi character from I now Pronounce you Chuck and Larry must have been based on this guy.

Dancing styles that were provocative and involved sexual innuendo? Imagine that! I guess that there will be no tango, rumba, merengue and salsa in Adams Township.

This reminds me of a movie…

… Somebody call Kevin Bacon!

(Read the NYT story here)

Judge for yourself…police and protestors clash

I know there are always two sides to a story.  But the actions in this clip from the DNC last week seem a little disproportionate. You decide on your own.