Thursday, May 29, 2014


There was a TV show at some point called Reaper.  No.

No I'm thinking of something else.  Hold on.

Dead Like Me.

That was it.

You know what that show failed to do?  It was all "being death is a job and you have a boss and quotas and shit."

But really being death also requires a lot of paperwork.  A shit ton.

It's weird after a while.  I was just in court, pleading A not guilty.  Meanwhile, B was entering his denials on his probation violations, he was in A's position 5 months ago.  Also, C is here for sentencing and I can already see the writing on the wall- I'll get probation from the judge, but a retained is right around the corner.

The circle of prison.  It moves us all.  Through despair and hope.  Through faith and love.  Till we find our place, in some dark prison cell.  It's the circle, the circle of prison.

Meanwhile, as professional, what was it they called me in Apocalypse Now.. Grocery Clerk.  As professional Grocery Clerk, I shuffle the paper.  I shuffle so that the circle may be whole.  I shuffle for you all.  Amen.

Monday, May 26, 2014

Court of Appeals Adopts Truthiness, Hates Your God

To a great extent it has always been the rule in the courtroom that the police officer lies by making what he knew at the time he acted sound more in line with the law.  They're trained to do so.

Every once in a while they forget or can't, and the motion to suppress is granted and the case goes away.

The Court of Appeals has apparently decided that judges are allowing this to happen far too often.  So they released the mind-numbing State v. Perez-Jungo opinion.

This was the law:

An investigative detention is permissible if it is based upon specific articulable facts which justify reasonable suspicion that the detained person is, has been, or is about to be engaged in criminal activity. Terry v. Ohio, 392 U.S. 1, 26 (1968).

Old law, sorta.  Well known from law school.  In this case, cop thinks car abandoned, goes to check it out and whoa, not abandoned.  So.  Ok.  Then comes the next legal nugget, again, pretty well understood and understandable:

Thus, the length and scope of the initial investigatory detention may be lawfully expanded if there exist objective and specific articulable facts that justify reasonable suspicion that the detained person is, has been, or is about to engage in criminal activity. State v. Gomez, 144 Idaho 865, 869, 172 P.3d 1140, 1144 (Ct. App. 2007).

So if cop then saw the occupant of the car had a needle in his arm, he could go on asking questions.  That didn't happen here.  And so the law got weird:

Just as with probable cause to search a vehicle, reasonable suspicion does not require a belief that any specific criminal activity is afoot to justify an investigative detention; instead, all that is required is a showing of objective and specific articulable facts giving reason to believe that the individual has been or is about to be involved in some criminal activity.

The Court claims this is true of probable cause for searches as well, and that various other courts agree with them.  No.  Not really.  They all spoke to the fact that you don't need "direct evidence" of a particular crime.  In other words, facts that support an officer being suspicious of a number of different crimes are good enough- such as the smell of marijuana.  So no one has ever said you don't need to be able to articulate what kind of criminal activity you think is going on.  Because that just sound like guess-work.  And cops are not allowed to rely on a hunch.

So what incredible fact pattern produced this horrific law?

The circumstances known to the officer here provided reasonable suspicion to believe that some criminal activity was afoot.The officer testified that, after the concerns justifying his initial contact with Perez-Jungo had been resolved, he suspected that Perez-Jungo might be involved in impaired driving or illegal drug activity.  Specifically, the officer came upon Perez-Jungo's vehicle parked on a gravel road in a remote area late at night. Although this was insufficient alone to create reasonable suspicion, officers are not required to ignore the suspicious nature of relevant surrounding circumstances, such as location or time. See, e.g., Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (noting that police may consider location, even when not in a high-crime area, when determining if reasonable suspicion exists); State v. McAfee, 116 Idaho 1007, 1010, 783 P.2d 874, 877 (Ct. App. 1989) (agreeing that “unusual activities at unusual hours” can contribute to establish reasonable suspicion, but noting that citizens do not become prospective detainees because they lawfully drive and park late at night). The officer also observed that Perez-Jungo had bloodshot, glassy eyes. Again, the presence of bloodshot and glassy eyes is not alone sufficient to provide reasonable suspicion. Grigg, 149 Idaho at 364, 233 P.3d at 1286. However, it nonetheless supports suspicion of both intoxication and illegal drug activity. See State v. Sheldon, 139 Idaho 980, 985, 88 P.3d 1220, 1225 (Ct. App. 2003) (noting that glassy, bloodshot eyes not caused by alcohol consumption can contribute to reasonable suspicion of illegal drug activity). 

So what do we have?  A Latino (gasp!) in a car in a remote location on a gravel road late at night with bloodshot, glassy eyes. (Chief Judge Gutierrez signed of on this piece of shit opinion, so we have to assume the obvious racism was.. lost on him?) (P.S. Judge Melanson, the author, is a really nice guy, but I don't think much of his legal prowess in criminal matters and I see a pattern in his cases of siding with the state, although not as bad as one of his fellow judges.)

Did I mention racism?  Here comes the piece de resistance:

Finally, the officer observed a Santa Muerte statuette on the dashboard of Perez-Jungo’s vehicle. The officer testified that, based on his training and experience, Santa Muerte is a patron saint for drug traffickers.

Oh yes my friends.  Santa Muerte.  Patron Saint of Drug Traffickers!  Oh no wait, she's the center of what is often described as a cult with millions of members, tens of thousands living in the USA, one that is at odds with the Catholic Church and the authorities and thus attractive to many members of the working class.

So now we know why Gutierrez could give less of a shit.  Santa Muerte is, tis true, associated with a lot of criminality.  But moreover, she's an embarrassment to every good Catholic, like our Chief.

In a footnote, the Court says they will not hear argument on why that statute couldn't be used as reasonable suspicion.  That argument would most certainly have been the First Amendment.  Who knows if this was raised below or not.  The Court has a point to make, and it won't be dragged into recognizing that what it is doing is making a mockery of constitutional protections.

The opinion then ends with one more illogical claim: that if the officer thought Perez-Jungo was under the influence, it made perfect sense to question him and look around with a flashlight for ten minutes till other cops arrived who I guess had better eyesight and spotted the cocaine just sitting there in the car.  Because that's how you prove a guy is under the influence.  Questioning and looking around at the inside of his car.  Not field sobriety tests, which as we now know, are meaningless anyway.

Saturday, May 10, 2014

Reality Testing

As I've said before, DUI jurisprudence is a post-apocalyptic wasteland where nothing good can live.  This is in part because of the reality of DUIs.  Once an officer stops a car, the law in Idaho says he needs reasonable suspicions you're under the influence to force a blood draw.

But this isn't about that.  This is about probable cause to think a person is driving at .08.  The Court of Appeals finally ripped away the final vestiges of weird that are Field Sobriety Tests and held that frankly, we don't need them:

Hunter had driven several blocks without headlights. The officer who stopped Hunter could smell the odor of alcohol coming from the open driver-side window and Hunter told the officer he had been drinking. This officer also observed nystagmus in Hunter’s eyes. The female passenger appeared to be heavily intoxicated. Once Hunter exited the vehicle, Officer Gibson could smell the odor of alcohol coming from Hunter. The officer observed that Hunter’s eyes were glassy and bloodshot. Hunter told the officer that he was coming from a bar and that he had consumed three vodka tonics that night. Hunter failed the HGN test, scoring the maximum points allowed. Officer Gibson later confirmed the HGN results by administering the test for a second time. Hunter also swayed during the one-leg-stand test. Finally, Officer Gibson had specialized training in DUI cases and had conducted several hundred DUI investigations. Though Hunter did not fail each of the field sobriety tests, the remaining information was sufficient to supply probable cause. This is especially true because I.C. § 18-8004(1)(a) establishes a per se alcohol concentration violation. An individual who has become more tolerant to alcohol may not exhibit the same observable functional impairment at the per se legal limit as others. Thus, under the totality of circumstances, an officer is not required to ignore other indicia of intoxication when an individual partially performs well on field sobriety tests. 
Because Officer Gibson had probable cause to arrest, the breath alcohol evidence recovered after the arrest should not have been suppressed.

What do you say to that?  Other than, well, ok.  FSTs are dead.  You don't need them to breath test, and even if you take them all and pass them all, you still lose.  Why?  Because .08.  It's an arbitrary number picked for no fucking reason by assholes, but that's the law.  It's rational enough for the courts, because DUIs are bad.  Picking this bullshit number is, if not to prevent dangerous driving by punishing those who drive dangerously, good for scaring everyone into not driving with much alcohol in them, which after all, if you reach a certain level, could be bad.  Why not just say no to driving with alcohol in you at all?  Hell, they could if they want, says the Court.  

If you want to fight these cases, learn about the evidentiary testing.  That is going to be all that is left soon.  And those fights are going to be expensive if we can force the courts to acknowledge that it's not good enough to just leave us with cross examination.  Our clients need their own damn experts.  Someone with an iota of independence has to be present, it can't just be the cops and their machine and the assholes that make billions off shoddy science and human suffering.

Monday, May 5, 2014

Third Party Doctrine and How Stupid People Plan to Ruin America

You may have heard that the Supremes are planning to give the thumbs up to cops going through your smartphone.

You may also have heard that the NSA collects all our info and runs searches and we're all supposed to be cool with it because WE ALREADY GAVE THAT INFORMATION AWAY ANYWAY I MEAN SHIT.

They've been doing it for years in Idaho.  Which is pretty weird because we don't even believe in the Third Party doctrine.

Prof. Kerr and the ever batshit crazy Stewart Baker at the Volokh conspiracy are huge fans of the Third Party Doctrine, establish years back in a case called Smith v. Maryland and said that if you give info to another person it isn't secret anymore.  Thus, when you make phone calls, that info goes to a phone company, and now you have no expectation of privacy.  Because you wanted those phone employees to know, and expected them to make a shrine to you, gathering your calls and thinking of you each time they lovingly look over it.

Idaho said "that's the stupidest fucking thing I've ever heard."  "No seriously.  Are you all fucking high?"  And we have State v. Thompson and we don't have to deal with that kind of bullshit.  You need a warrant to get phone records in this state.

So given that we don't even have this, you read the arguments for the Third Party Doctrine which include such gems as "you should know better, person making phone calls or using the internet" and "but without this, how will the government know when it needs a warrant?" and you think, "Bu-wah?"

These are pretty easy things to answer.  First, who gives a crap if I "gave" data to a massive company that does not, nor should anyone expect it to, read my emails, google searches, and phone calls?  Hell, if anything, I kind of assume whatever relationship I have with these people requires them NOT to read my things.  But that's not right, because they use machines that read it, compile it, and give advertising on that basis, so like, clearly it's all good.  Really?  Because a machine made to do advertising reads what I do I'm supposed to think nothing I do online is private?  Who are these idiots?

The even stupider argument, which apparently Prof. Kerr is a big fan of, is "where do we draw the line?"  Look, you goon, it's not like we fight a revolutionary war so we could cry like babies over how the government just doesn't know when to run its requests by a judge.  GET A WARRANT.  When in doubt GET A WARRANT.  What happened to the preference for warrants?  I know you worked for the DOJ, Prof Kerr, but why not try on being a thinking rational person?  You think the Fourth Amendment's demand for reasonable searches and seizures doesn't apply because the government isn't seizing anything or searching anything that isn't public?  Dream on asshole.

The very fact that the police are fighting with such inane arguments to do what they are doing without oversight from the judicial branch should FREAK EVERYONE THE FUCK OUT.  Period.

Rant for the day is done.