blog

The Smell of Weed is Probable Cause- and why that's a problem

Tue, 05 Feb 2013 09:43:17 -0600

Chesapeake (VA) police officer, Barrett Ring, claims that he can come up behind cars, open his vent and smell burnt marijuana coming from the car in front of him.

Testimony from preliminary hearing transcript:

Public defender Atty Matt Taylor: "Officer Ring, your testimony was that you're driving down Battlefield Blvd., and you smelled marijuana in the area?"
Off. Ring: "Yes sir, We drive our patrol vehicle with the vents on, pulling air from the outside in, directly into our faces. Commonly, we'll be behind vehicles that somebody in the vehicle's smoking marijuana, and we can smell it clear as day. We typically wait until there's no other vehicles in the area so that we can centralize it to whatever vehicle has it at the time."

You can read more about that case here.

If you think that's an isolated incident, you'd be wrong. Police officers in Sarasota, Florida apparently made it into a business model, claiming to smell a closed baggie of unburnt marijuana tucked in an individual's sock, while the police cruiser passed the offender's car going the other way at 35 mph! You don't have to be a defense lawyer to detect the smell of BS in that one! And the officers testified that their superiors were aware of and condoned the practice.

The status of the law is that if police officers catch the smell of marijuana, they have probable cause to search you or your car. If you happen to be a law abiding citizen and not a reefer-smoking criminal (not you, Oregon and Colorado) then you might be saying, "Well, the marijuana was there anyway, so don't smoke weed and you won't have to worry about it." Of course, you'd be assuming that all police are honest and don't just act on hunches or manufacture the "odor" of pot as a means of getting to what they just know is already there.

Try this on one for size, it's from here in Texas (we do it bigger here). Two women pulled over for tossing a cigarette out the car window. DPS trooper insists he smells pot so he can search the car. No marijuana. So he gets another female trooper to body search the women, inside bras, under breasts, and yes, in both body cavities, right there on the side of the highway. Don't believe it? It's on video. And here's the real live lawsuit. Bet it's real to those troopers now.

So that's the trouble. You could be very unlucky driving around in your car illegally smoking weed and get caught. Or, you could just be driving around in your car and have your car torn apart, get searched, have whatever cash you have confiscated, and get humiliated, just because an officer is Positive he'll find something. Like if you're not white, or white with tattoos, or if it's really late, or if you have a Phish sticker on your bumper, or act nervous, or are "not from around here." I personally know of a case where an officer took $1500 from a guy who looked like a potsmoker but wasn't doing anything more than driving while dreadlocked. He was told it would be at the police station if he wanted to try and get it back. When his lawyer contacted a supervisor, they said go ahead and send him down to pick it up. His lawyer demanded a personal return to his office, which happened, but by a different cop. No harm no foul, right. Right, unless it happens to be you. And that's why it's a problem. For everybody.

What are jurors really thinking in a trial?

Wed, 16 Jan 2013 20:47:16 -0600

Well it's been a while, but it took humor to break me out of the blog doldrums I was in. Cheers to humor, we don't get enough of that in this business. Don't get me wrong, criminal lawyers do have a sense of humor. But it's most often kept in the professional circles, much as I imagine paramedics, firefighters, or morticians joke amongst themselves. In professions where things often don't end pleasantly, finding the lighter side of things can make it easier to keep plugging along. What else you gonna do?

So, jury trials and jurors brains... what in the world can go through their minds during such a serious event? Most jurors have never sat through a trial, much less a long complicated one, and it's often their first time seeing a criminal courtroom. The judge and lawyers do their best to captivate them, feeding them Powerpoint and in-car police videos, but they're certainly not taking in everything that comes out of our mouths. We know that's true because Texas allows us to speak to jurors after the trial is over. But one thing is for sure... they may not follow the paths we try to provide them, but they do notice a lot of things that we never intend.

As a result, we remind clients (defendants) that they are being watched by the jury, like a bride at a wedding. I tell them it's like the hot girl at the bar, nobody's looking directly at her, but everybody is watching. No eye rolling, no noserings, etc., and it goes for the lawyers too. I know lawyers with sleeve tattoos, but they cover them with long sleeves in front of the jury. Keep them on point, don't invite them to be distracted. So when I came across this article in Austin's "the Onion" paper, I couldn't help but chuckle because it's real to me, even though it's a parody. Who knows, maybe it's only funny to lawyers, but it got me writing again. Who wants to read serious stuff all the time anyway? Good to be back, enjoy the quick read.

Partially Faded Hand Stamp Undermining Everything Prosecutor Says

Jurors in one state TRULY get to decide cases (and why that's news)

Tue, 03 Jul 2012 21:13:02 -0500

After a long absence from writing, I finally found a current event significant enough to sit down and blog about, and it's not Obamacare. Like a lot of other people, for a while I ended up making the best use of my liberal arts degree (Psych/Soc) by waiting tables and bartending. I was lucky enough to end up in my current career, where trying to understand the minds of people plays a large part of my daily activities, particularly in jury trials.

In my practice, I often have people come to me who have been charged with some offense that they disagree with. Sometimes I see a flaw in their reasoning (no you can't break the nose of somebody who won't leave your house party), but every now and then a case comes up where I think the person did something that, although technically illegal, was not unreasonable under the circumstances. A good example would be a cancer patient who was caught smoking pot, or the guy who shot a man he caught sexually assaulting his daughter. In each case, the police do their job by taking them in while the dust settles. After that, the decision of whether to charge the person with a crime or not rests in the hands of the prosecutor. As you might guess, prosecutors don't always agree with my assessment of a case, but the reality is that they wield an awful lot of power in society, and the effects can be far-reaching for those people who are charged. The other reality is that there are some prosecutors who are bent on obtaining convictions for public image, or have standing "office policies" with regard to certain offenses, or are simply not mature enough to understand the effect a conviction may have on a person's life (I recall a young female prosecutor in her twenties refusing to budge on a pot case because she wanted to "teach my 40-something year old client a lesson"). Please, just, (sigh...)

In these situations, the ultimate remedy for any citizen is the jury trial. In the words of Thomas Jefferson, "I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." Now to lawyers that's an overused quotation, but the point is that every man has the right to have people, and not judges, decide their cases. It is one of the shelters from tyranny and overzealous prosecution that can arise when the government itself runs the entire show. Jurors, as it turns out, may question authority, and make the final call. And, to boot, being convicted by a jury of citizens is easier to swallow than some pronouncement by a judge (i.e., "the man").

And now to the point... Jurors have historically wielded the power to render the verdict as they see fit. In any of the above scenarios, a juror (or all of them) may decide NOT to convict based upon the perceived fairness of the case. This is so even if the facts are proven by the prosecution, and there's not a thing the judge or anyone else can do about it. It's basically the local society making the call on the type of behavior they will tolerate, even if it technically violates a law, and it's called "jury nullification." They get to vote their conscience. And if there are eleven who want to convict but only one who says nope, well that's good news for the defendant. But here's the rub...you're not allowed to TELL them they have that power. How you like that? Not ever, not in any state. Except New Hampshire.

New Hampshire just signed into law that jurors may be informed of their right to decide cases based on their concept of societal "rightness," regardless of the state's "proof." That's right, Live Free or Die, as the state motto says. In practice it may be less than a bombshell, because both prosecutors and judges will no doubt pound the jurors with their duty to follow the law as instructed by the judge, so they may not feel they have any choice. Still, you can tell 'em. You can tell them. (that was on purpose). In Vermont, where I used to do trials, there is Rule 48(b) which allows judges to dismiss in the interests of justice. Still, that's judges. New Hampshire has one-upped you on this one, Vermont, and the rest of you big states as well. Don't be scared of your people. As I sit here, I hear fireworks starting to go off in the distance, and I can't imagine a nicer outcome for such an occasion. Happy Independence Day, New Hampshire.

Here's a link to some real journalism on the subject, instead of bloggy chatter. There are plenty more in the Google for you who are interested in such discussions. See it at Reason.com NH Jury Nullification. We also posted a nice article on jury nullification from the New York Times not too long ago on our Facebook page. Happy reading, and Happy 4th of July to all!

Austin Bars with most DWI arrests 2011

Mon, 07 May 2012 09:43:25 -0500

I got a phone call from an out-of-Stater last week about our old blog post- the Austin Bar DWI list from 2010. While talking, I realized that we had neglected to post (or see, lol) the list from 2011. Not that there's that much difference, but we do have an appearance from Antone's as well as the Yellow Rose. As before, it has more to do with the area and time you're driving than any other factor. If you're driving home from happy hour at the Dog & Duck Pub at 5 p.m., you're a lot less likely to get arrested than leaving Oilcan's at 3 a.m. Here's the top 20 Austin DWI arrest bars for 2011, according to Fox Austin

Kung Fu Saloon

J Black's

Rain

The Ranch

Molotov

Thirsty Nickel

Oilcan Harry's

Sherlock's Baker St

Blind Pig Pub

Key Bar

Shakespeares

The Yellow Rose

Kiss & Fly

Antones

Cedar Street

Dizzy Rooster

Dogwood

Third Base

Weirdos

512 Bar; Barbarella; Barcelona; Chuggin Monkey; Jackalope; La Preferida; Lavaca Street Bar; Parish (these bars tied for #20)

Keep in mind that in Austin, getting stopped late at night after a few drinks gives you a pretty good chance of going to jail, no matter what bar you're coming from. Driving after responsible drinking is not against the law, but it won't keep the police from pulling a potentially dangerous driver off the road. Let's be safe out there. But if you do catch yourself in a situation where you need an Austin jail release be dure to have our number handy 512.236.0505.

Top 10 Dos and Don’ts for DWI cases in Texas

Mon, 02 Apr 2012 21:04:33 -0500

Every time I meet with a new client on a DWI case, I am reminded of all the different things I think people should know about DWI, and what they actually know. The State spends a great deal of money to give you the impression that you have no rights or choices when you are suspected of DWI. In reality, every citizen still maintains valuable rights vital to the defense of a DWI charge. Beyond rights, there are a number of things everyone should commit to memory in case they are ever charged with DWI. Think this doesn’t apply to you? Even if you drink responsibly, drive, and get pulled over, more likely than not you will be arrested. Whether the charge sticks is another question, and the following simple rules can go a long way toward making sure it doesn’t. With that in mind, I offer the following top 10 dos and don’ts for DWI cases in Texas:

1. Do - Be polite.

Remember, you are on camera from the moment you see the lights of the patrol car. Every word you utter and action you take is recorded, and will be fodder for the prosecuting attorney. Many of the officers here in Travis and Williamson County are NOT patient, and NOT sensitive to the situation. Make sure any jury that ultimately sees your video identifies with you and not the officer. I can assure you that most jurors have not cussed at, belittled or minimized police officers. First and foremost, make sure you pass the attitude test.

2. Don’t – Ask to be allowed to go home.

“But, I live just right over there. Can I just get a cab?” The answer will always be no. The officer will never get in trouble for arresting you, but absolutely will if he or she lets you go and disaster happens. On top of that, you have to remember that as soon as the officer saw you operating your car in a public place, the offense was committed. They are not making the arrest to prevent a future crime, they are arresting you because they believe the crime already occurred. We have represented clients that were stopped as they were parking their car in a parking space in their own apartment complex. As hard as it may be, resist the urge to ask, because it is not happening.

3. Do – retain all of your rights.

Your rights are valuable, and they are YOURS. When is the last time you were stopped for speeding, but pulled out of the car and interrogated about where you have been, where you are going, what you have had to eat, what you have had to drink, etc., etc? If you hear these questions, it is because you are under suspicion of DWI. Like all instances in which you are under suspicion of criminal activity, you have the right to remain silent. You have the right not to incriminate yourself. If you want the questioning to stop, ask the officer if you are free to leave, and if you are not, stop answering their questions.

4. Don’t – Do field sobriety tests.

Imagine you are in school, and given the opportunity to take a test. The outcome of this test may very well derail your future plans. You then find out that there is no way to pass the test, and there are no correct answers. Now also imagine that if the teacher is giving you this test, his or her training suggests your have most likely already failed. Would you take it? If you have gotten to the point of performing field sobriety tests, more likely than not, you are already going to jail. Do not help them by providing evidence. Do not believe it when the officer says that he “just wants to make sure you are ok to drive.”

5. Do – Request a hearing to save your license.

In Texas, DPS will initiate a separate legal proceeding in an attempt to suspend your license for failing to provide a breath sample or for providing a sample over the legal limit. Suspension of your license is not automatic, and you have the right to a hearing to contest it. Some lawyers may try to suggest that this is not an important aspect of your defense. Some lawyers will waive this hearing. Bad idea. The hearing gives you an opportunity to get copies of the evidence from the State, much of which is the same evidence that will be admissible against you in the DWI prosecution. Also, the officer must make himself available to your lawyer for cross examination, and his testimony is recorded. We have had numerous instances where different copies of police reports materialized, or officers offered testimony contrary to their report. All of this can be used to impeach the officer at trial.

6. Don’t – Fall asleep in the patrol car.

Nothing says drunk like falling asleep on the way to jail. You have be very drunk or very unaffected by being in the back of a police cruiser if you can fall asleep. Neither bodes well for your case. Wake up, man!

7. Do – Take down all your Facebook party pics.

Facebook is not just for you and your friends anymore. Prosecutors and judges have profiles, too. I know that spring break trip was epic, but pictures of you taking shots may very well mean the difference between getting your DWI dismissed or not. While the case is pending, you are being scrutinized. Make sure you give them nothing to hold against you.

8. Don’t - Blow!

This appears to be one of the most widely held correct beliefs about DWI. Nevertheless, we have clients that come in, even with a second or subsequent DWI, and they have provided a sample. There simply is no logical reason to do it. The only way you avoid a license suspension is by providing a breath or blood sample below the legal limit, but even then you are not going to be allowed to go home. By the time you provide your breath sample, you have already been arrested, and nothing will change that. Additionally, the State will likely still prosecute that case with a sample below the legal limit.

9. Do – Be an active participant in your defense.

Your lawyer (hopefully) wasn’t present during your DWI. Make sure you take the time to help prepare your defense. Did you really only have 2 drinks that night? If so, then bring your lawyer your credit card receipts. Bring your buddies from that evening in to be witnesses. Make yourself aware of the State’s evidence, and help your lawyer to identify strengths and weaknesses in the case.

10. Don’t – Go through the process uninformed.

The consequences of a DWI are so extensive, you just simply cannot work your way through the process blindly. For example, are you a pilot? Do you know the consequences of a DWI conviction or license suspension on your pilot's license? Are you aware of surcharges? What if you are a teacher, lawyer, or doctor? The point is that the consequences of a DWI are far reaching. What you need is the ability to explore all of these potential consequences with your lawyer. The last thing you want is to believe you have put the process behind you only to have it haunt you in the future.

We are Austin DWI Lawyers, and we enjoy defending people accused of driving while intoxicated. If you enjoyed this post, please pass it along to others. You may build your own Karma by helping someone else avoid a DWI conviction too!

Why you should hire a Trial Lawyer to handle your DWI or criminal case

Thu, 22 Mar 2012 20:21:00 -0500

For years, I have privately held a theory about how I think people choose a lawyer to represent them in a criminal case or DWI. It's not flattering, but it is what it is... I think it's like choosing a dentist. You don't really want to have to go, but you can't ignore it, so what do you do? You pick one and you go see them, and if they don't completely turn you off, you go ahead and hire them because you're clueless and they seem smart enough (and you don't want to have to see another one). The thought just kills me, but I still go to that same dentist and I have no idea if his work is great or awful, but I think he's all right. Just like lawyers, they're all expensive so how do you know if you should pay a premium or is a cheaper one just as good? Here's my perspective, for what it's worth. I'm not going bargain hunting when I look for a dentist, or an electrician, or a babysitter, or anything Important. A criminal charge is just not something you can afford to skimp on, not in this job market, in this age of electronic data, and certainly not if you have plans for your future. If you are charged, you should look for a trial lawyer, even if you don't even think you would go to a jury trial yourself.

So a little clarification, there are many kinds of lawyers. Some do transactions, mediations, divorces, you name it. Some areas of law are adversarial, meaning someone on the other side is trying to beat you, like criminal law, family law, or civil litigation. These cases can go to trial, but over 95% settle without one. Trials sometimes happen when the sides won't or can't agree on a reasonable resolution, or sometimes because one side can't afford a negative result like a DWI conviction. (Sometimes it's even because someone is plain old innocent, if you can wrap your head around that.)

In a criminal case, a trial is YOUR right to tell your story to a jury of complete strangers, and have them decide on guilt or innocence. So your lawyer should be a nice guy on the front end, but I want you to feel confident that he has your back when the chips are down. Believe me, there are a million ways to resolve a case, but what if it doesn't? Are you ready to see your lawyer go to work or just get worked? So then the question becomes, how can you know who's a trial lawyer and who isn't? A good question is this, "Mr. Lawyer, when was the last trial you were in?" You can do variations on it, but you get the idea. Some won't miss a beat, and some will wiggle and squirm. And I'll even give you this- if you discover your lawyer used to be a prosecutor or worked in a public defender's office, then you're off to a good start because those folks get thrown into the fire early and often. If you learn they used to do personal injury law or worked for a big firm you might want to go back to our example question again.

So to wrap this up, I'm not really trying to say that you have to get a trial lawyer because your case is likely to go to trial (they almost never do)- you may think it's a waste of time and money if it's not likely to happen. So here's the real dirt on this. Lawyers in the courthouse know each other, both prosecutors and defense. Among themselves, prosecutors know which defense lawyers are fearless about taking a case to trial, and who is just not ever trying a case. Let me give you an example of a hypothetical DWI case, we'll begin with no-trial lawyer:

Defense attorney- Mr. Prosecutor, how about cutting my guy a break on this case, he's not a bad guy.

Prosecutor- No.

That's where it stops, because the prosecutor knows it's never going to trial. Not ever.

Now we'll try again with a trial lawyer:

Defense attorney- Mr. Prosecutor, how about cutting my guy a break on this case, he's not a bad guy.

Prosecutor- No.

Defense attorney- Ok, then let's throw it in front of a jury and see what they think.

Prosecutor- Well why don't we keep trying to continue to work it out?

And that's how the trial lawyer's client got a better resolution on his case.

It's Official- No Refusal for Austin Mardi Gras 2012

Fri, 17 Feb 2012 19:49:07 -0600

I KNEW it!! Here they come again with their shiny needles, the better to stick you with! Well, I can't say it's any surprise. I mean, APD does so many no refusal weekends (or blood warrants, as others say) that it's like keeping up with your relatives' birthdays. Let's see, New Year's, Super Bowl weekend, so now Mardi Gras. Interesting that Valentine's Day is still sacred, I suppose they don't expect a lot of people driving around drunk. So drink up, lonely people, you own Valentine's!

In all seriousness, it goes without saying that it is Never a good idea to drive after drinking. If you need proof, try playing a driving video game after having a few, grab the kids' MarioKart and go to town. It's rough. Better yet, try playing one of the games where things are trying to kill you. But play it after drinking a couple of rounds and what happens? You get killed a lot. It's because alcohol turns you into an ox. And that's why you shouldn't be in control of a large metal object on wheels in public unless you really know what's going on. Especially since Austin arrests more DWI's per capita than any other major Texas city. A lot more.

Speaking of what's going on, this no refusal Mardi Gras Austin is of the extended variety, because Mardi Gras is an extended party that can't be contained by the weekend alone. So APD will be brandishing needles out till Fat Tuesday! So lets keep our shirts on, shall we? Beads or not. Because if you get stopeed for DWI in Austin, you will be on video with your silly feathers and face paint, and that's the insult added to the injury of that needle sticking you in the arm.

Just so we're clear, if you are out partying and get stopped, refuse, refuse, refuse! And don't let them coerce you into compliance with "well, if you don't submit, then we'll just get a warrant to draw blood..." That's an effort to get you to say "well, in that case..." It's coercion with beads on, don't be fooled. Make it clear that you do not agree to give a sample, and get it on the record. If you submit, then it's evidence. If you refuse, then I still have something to fight about on your behalf, and may be able to get it thrown out. There's a reason things like roadblocks and routine blood draws haven't been passed by the legislature, it's because the general public doesn't really like them. It's not to say that it's not for a worthy purpose, but there has to be a line somewhere, and for many it's a needle. Anyway, based on past no-refusal events, more than 20 people will get it this extended weekend. If one of them happens to be you or a friend, we're happy to help out. Just give us a call, 512 236 0505.

2012 Great Texas Warrant Roundup is coming to your town!

Thu, 09 Feb 2012 20:02:55 -0600

Well just as regular as the rodeo in this state, and on February 25, 2012, it's time again for the coordinated Texas Warrant Roundup! For those of you who take care of all your business, good for you- the rest of you should really look up the info on your traffic tickets. And clear up that old bond forfeiture and check for county warrants too. Get squared up with your child support payments, or your driver license surcharges. Because the roundup is coming for you. I foresee a lot of scurrying, and a lot of laying low. Just remember that those guys sometimes come EARLY in the morning before last night has fully worn off! And whatever you do, don't be drawing any any attention to yourself out in public!

In a nutshell, the Texas Warrant Roundup is a concentrated effort, with cooperation from entities statewide, to share information with each other whether they be a large city or a tiny town. The warrant roundup will continue for a few weeks after the start date, and you could be arrested at your home, your job, or in your car! Here's an announcement from the City of Lakeway, just west of Austin, describing the event, and how they would prefer you handle your affairs so they don't have to drive you back into town where the jail is. Many of the participating towns and courts have installed incentive plans (besides just staying out of jail) like reduced fees for coming in early, or extended payment plans to make it easy. Just so they get their money, you know. Jail has a way of making people get up and take action.

As of this writing, there are 276 entities who are signed up to participate, spanning from one end of Texas to the other. Most of them are what you would expect like municipal courts, Justices of the Peace and some Police Departments, cities, etc. But also hidden in there are a few big hitters like the entire municipal court system of Houston (thousands of warrants alone), a county court (Midland), and the Texas Attorney General's Office. Here's a complete list of the towns/courts/police departments participating, as updated on the Austin Municipal Court website today.

If you DO find that you have a warrant, please contact us to see how we can help clear it up before the big roundup. We are more than happy to double-check, and answer whatever questions you may have about the entire process. The biggest difference will be having the ability to deal with the warrant on your own terms (mostly) rather than being arrested in front of your co-workers or kids. Give us a call at 512 236 0505, we're happy to help.

Vermont inmates pull an ingenious prank

Sun, 05 Feb 2012 20:53:48 -0600

Please give yourself a moment to read something short simply for pleasure. It's fluff, and I only include it becuse it happened in the county where I used to practice in Vermont. Who knows, I could have even represented the mystery prankster once. Here's to the Northwest State Correctional Facility in Franklin County, Vermont, nestled in the northeast corner of Lake Champlain. Way to represent! Good to see prison doesn't completely destroy your sense of humor.

In Vermont, the prison system employs prisoners to do certain things for the state. l always heard about license plates, but the inmates from St. Albans, Vermont, also made stationery and the decals that go on the State Police cruisers. The decals show the Vermont State Police crest, which is a variation of the State Seal, which includes, of course, a spotted cow. In an ingenious prank, it seems a number of them went out about four years ago with a pig as one of the spots on the cow (with reference to the slang derogative of calling cops "pigs").

It's estimated that the decals were produced in 2008 or 2009 and have been attached to about thirty police cruisers over time, including some in the Burlington area. Sadly, all of the decals will now be removed, but it was funny while it lasted.

See below:

Vermont State Police Decal

Feds go Commando on White Collar Internet Criminals Overseas

Tue, 31 Jan 2012 18:37:27 -0600

I don't really have a distinct angle on this story, I just find it fascinating. It has ties to white collar crime, the internet, New Zealand, copyright, the Department of Justice and FBI, the film and music industries, Hong Kong, Kim Kardashian, Bob Bennett, Kanye West, and on and on... but that's what makes it so good. What also makes it compelling is the darkness of it, a perfect study in what it's like when the Feds decide you are worth pursuing and put their weight behind getting you.

On January 20th at around 6:30 in the morning, a raid was conducted at a rural mansion near Auckland, New Zealand. 76 law officers and two black helicopters descended upon the residence where a certain Kim Dotcom resided. Mr. Dotcom retreated into the residence, triggering a set of electronic locks and everntually locking himself in a "safe room" until authorities were able to disarm the devices. He reportedly was found within arms reach of a sawed-off shotgun. Mr. Dotcom is filthy rich because he was the founder of a website called MegaUpload, a file-sharing site that enables people to transfer large files to one another over the internet (files that are too large to be email attachments). Sometimes it's music, pictures, movies, porn, whatever you need. The problem is, while lots of that stuff is legit, a lot of it is also copyrighted, counterfeited, or pirated. So the motion picture and recording industry folks are losing a lot of money to the people who use MegaUpload. Of course, the people who were transferred all that data on the site are all over the world and may or may not have any resources... ol' Dotcom has loooooots of money, and that makes you popular. Popular as in, I'd have given you a link to MegaUpload, but it's GONE. Well that's not entirely true, here just see for yourself...MegaUpload.

So how does this all tie together? Well, the cops in the raid were local Kiwi cops, but the request had come from the US Department of Justice and FBI. Seems some of the servers MegaUpload LEASED were in Virginia, and that's all she wrote. Lesson to self: don't be someone the Feds want. And let's not forget this is a white collar case, this copyright infringement with helipcopters. They nabbed him, his art and 25 or so cars (including a $400k Rolls Royce), cut up his panic room, all his New Zealand bank holdings, nine other properties in New Zealand including a total of around 32 million pounds, and then seized another $42 million of suspected criminal assets in Hong Kong, where the entity is based. Then they announced that all the user data on MegaUpload's servers may summarily be deleted now that they got all the information they need. There's a few million happy customers for you. (Update: the delete date has been held off for two weeks as of this writing). Dotcom, or Schmitz as his name used to be, is in custody awaiting extradition to the US as you read this.

That's all juicy but to me the most interesting part is representing the guy. We defense lawyers get a kick out of representing someone who is publicly reviled or unlikeable, especially when the media takes the ball and runs with it, skewing the public opinion right out of the gate. This is the sexiest little white collar case in recent history, and he was at least smart enough to hire Bob Bennett, the lawyer who helped President Bill Clinton through the Monica Lewinsky scandal. Our hero is best described as a large, lumpy nerd, about six foot six, near 300 lb. range, often referred to as an "internet pirate" or "Dr.Evil." Don't get me wrong, he's filthy rich but he's also a convicted criminal for credit card fraud and other crimes in Germany, and is flamboyant (his cars, including a '59 convertible pink Cadillac, several high end Mercedes, Maseratis, the Rolls, etc. had license plates reading HACKER, GUILTY, STONED, POLICE, and GOD). He did manage to pass New Zealand's strict residency fitness requirements, with a little help from a $5 million charitable donation, but was ultimately determined unfit to actually purchase property in the nation, which forced him to rent the $18 million mansion.

There are other interesting twists in the case too. As it turns out, there are some people in New Zealand that found the whole raid a bit "disquieting" as reported in a New Zealand Editorial column. Oh, those Kiwis, so understated! I tihnk they were likely referring to more than just the noise from the black helicopters at dawn. And as it turns out, Mr. Dotcom once put out a $10 million reward for Osama Bin Laden (one can only wonder how the Feds would have proceeded if he had gotten Bin Laden first- fortunately, with OBL out of the way it wasn't an issue)- so it's not entirely surprising that he would fled into a saferoom when black copters descended on his residence at dawn, or that he had a sawed off shotgun in there too, although as it turns out it was still in a gun safe, with the key in the lock. And it's not the entire world against Dotcom either- in fact there were plenty of authorized uses for the service (pssst...Austin) like enabling musicians or bands to store or transfer music files amongst themselves or submit to labels, producers, or venues. The website even enjoyed the endorsement (and likenesses) of Alicia Keyes and Kanye West, and Kim Kardashian.

So now we have celebrities, ridiculous cash, and a corporate supported prosecution in a society accustomed to file sharing. You know, I'll tell you a secret. I bought a used CD at Cheapo last week, it was Jeff Buckley. Then I loaded it into my Itunes before giving it away to a friend who had never heard it. Now that's pure evil, but I been doing this a long time, even back in the days of cassette tapes. But what if I instead wanted to give it to my cousin Adrian in Colorado, via the internet? Some would call that evil AND criminal! It's maybe no coincidence that Wikipedia and other sites recently protested the proposed SOPA and PIPA legislation by shutting down their sites- the hacker group Anonymous responded to the Megaupload prosecution by jamming up the Dept. of Justice website as well as that of the Recording Industry Association of America. Just you wait, they'll make a great movie about this whole deal!... until then, stay out of Big Brother's gaze and keep an eye on those helicopters.

No police GPS tracking without a warrant, Supreme Court says

Mon, 23 Jan 2012 20:31:12 -0600

Aaaaaah, you should get up in the morning and take a deep breath of that FREEDOM that the Supremes just dished out today!! It's hard to recall the last time that this Court (the same one that says corporations are "people") ruled unanimously in favor of civil liberty instead of some institution, in this case, law enforcement. That's right, all NINE of them. Of course they didn't all agree for the same reason, but they dovetailed into unison where it counted. My married readers will understand.

For a brief history on this case (we did a blog post on it here in order to set up the follow up article you are now enjoying), it centered around a man whom the police believed was dealing drugs. They were very suspicious, but not sure enough to go ask a judge for a warrant to put a GPS tracker on the car, which is what they really wanted. So they did it anyway (note: that's the COPS, not your angry teenager). And they left it for a while, tracking the owner's travel routes, stops, and destinations. And then a while longer, for four weeks. So the million dollar qusetion was whether or not the government secretly planting a GPS on someone's car and tracking their whereabouts for four weeks was an unreasonable search.

Fortunately for ALL of us the Court unanimously agreed that it surely was an unreasonable search under the facts presented. Five iustices thought the act of physically attaching the GPS on the car was an invasion of physical property rights by the government. The other four agreed in the end judgment but instead focused on the driver's expectation of privacy as the heart of the case, that monitoring a person's every move for four weeks with a device was excessive. That's a highly simplified version of the full picture of who agreed on what isssues, and the issues themselves, but you can get the point. You can read the whole opinion here if you need that kind of detail, like which camp Scalia was in, you know...

OK now go ahead and exhale that big breath of freedom from earlier. Also stop reading now if you love magic and jelly beans. Because while the opinion tells you that the Supreme Court (some of them) don't want the government attaching new equipment on your car (which I appreciate, don't get me wrong), it does not tell you what they think about being tracked with stuff you may already have on you, like your cell phone, IPAD, or your NorthStar system. And while it's good that monitoring someone for four weeks is clearly excessive, they specifically declined to say just how long was too long. So how about two weeks? In reality, it doesn't give a lot of guidance about where the Court would fall under any other circumstances at all. Can't wait until I get a client with exactly that fact scenario, boy I will knock that one out of the park!

If you're still intrigued, you can check out a reader-friendly article on the case from USA Today.

More reason not to give a DWI breath sample in Texas

Tue, 03 Jan 2012 09:48:43 -0600

This is actually old news, but I've started seeing some of these lately so it's relevant. Back in September the legislature passed a new law affecting DWI's, for enhancement purposes. As things were, all regular DWI first offenses were class B misdemeanors, which carried a maximum punishment of 180 days in jail and up to a $2000 fine. In their wisdom, the legislature decided that if a DWI breath test is done (or blood) and the result is .15 or over, the charge will now be a class A misdemeanor, which doubles the max penalties from a class B. So your new exposure is a year in jail and $4000 fine.

So I guess the question is, what are they trying to train us to do? Obviously it sounds like the intent was to prevent people from driving while heavily intoxicated (twice the limit and over). In my practice, those people are typically experienced drinkers whose tolerance allows them to function, like someone in the service industry. Alternatively, they are often inexperienced drinkers who had no intention of getting as inebriated as they did. While young or inexperienced drinkers may not know what to do when asked for a dwi breath sample, by and large the experienced ones have a clue, and they're not blowing in the machine.

Oddly enough, every time police are consulted about dwi stops, they insist that drivers give a breath sample. They want you to believe that if you just blow into the machine and it comes up below .08 that you somehow get a free pass. Do you actually believe that nonsense? Do you think there's a reason that every time a politician, or officer, or judge gets pulled over, they refuse to give a breath sample? It's because they don't ask you to give a sample until after you're cuffed and in the back of the police car. At that point, do you really think they're going to release you if you blow .07? After they've had you standing on one leg and doing the walk-and-turn test on video? No. They already have the evidence they need, and all the breath test accomplishes is to give the jury something else to look at if they're not quite sure.

So what bad thing happens when you refuse to give a breath sample? Your driver's license gets suspended for 180 days instead of 90. That's it. Shaking in your boots, right? And you can get an Occupational Driver's License to cover the suspension, so it's not truly a hard suspension at all. Guess that'll teach you. It's always a bad idea to drive under the influence, but if you've had anything to drink and are behind the wheel, remember- when asked for a breath sample (or blood) refuse, refuse, refuse!!

Can Police Really Put a GPS Tracker on my Car?

Thu, 08 Dec 2011 10:02:02 -0600

And from the outset here, I want to clarify that I'm talking about without a warrant- no probable cause at all, just wanna see what you're up to. So if you've got nothing to hide then why would you care? Seriously, it's not even on the inside, you'll never even know it was there...

If you live in the western US (CA, NV, HI, OR, WA, ID, AK, MT or AZ) then you are fair game, according to your laws. Last year the Ninth Circuit Court of Appeals ruled that it was not illegal for DEA agents to enter Juan Pineda-Moreno's driveway to install a GPS tracking device on his vehicle, despite not seeking a court's permission to get a warrant. They then tracked his Jeep's movements over several days and linked him to a marijuana grow, for which he was convicted. CNN covered it here.

On the other hand, if you live on the east coast, it's a different story. Washington D.C. Nightclub owner Antoine Jones had a GPS tracker installed on his Jeep by FBI and DC Police. He was monitored for a month, and followed into Maryland where police found large amounts of cocaine and cash. The federal appeals court for the DC circuit ruled that the GPS tracker in that case was NOT permissible, and reversed the decision of the trial court (who had sentenced him to life in prison).

When there is a split between circuits on an issue (federal appeals courts giving opposite answers for an issue) the ultimate answer lies with the United States Supreme Court, should they accept it. In this case, the Jones case from DC was picked up by the Supremes. The case was argued recently before the Supreme Court, and a ruling is expected in Spring of 2012 to clarify the law for the rest of the nation. CNN covered the case in an article here.

The case balances some heavy issues. On the one side, it's not all that different from an investigator just following someone around for several days and keeping an eye on them to see what they're up to. No probable cause or warrant is needed to do that, but many people feel differently about having a GPS tracker (or anything else) put on their car without their knowledge or permission. It's bad enough that anyone can head down to a store and buy a GPS tracker to follow whomever they wish, but it feels worse when it's the government. In the meantime, you might want to go to Spy Exchange (or your local spy shop) and pick up a bug finder or scrambling device, which they also sell to combat the tracker. Never hurts to hedge that bet by covering both sides.

Physically forced blood draw DWI finally makes its appearance

Mon, 19 Sep 2011 19:12:05 -0500

Fortunately it DIDN'T happen in Austin, at least not yet. This only slightly stale news story comes to us from Wyoming, a shade more conservative than Austin by most accounts. I apologize in advance for not disclosing in the title that this incident did not actually occur in Texas, but it's a hot enough issue so it's bound to come up.

Wyoming has recently passed a statute allowing police to get warrants for blood if they can establish probable cause for DWI. This is similar to the situation we have in Texas, including a streamlined process where a magistrate can be contacted almost immediately by the police who relay observations in support of a blood warrant. Wyoming's new law went into effect on July 1st, and 30 days later Cheyenne's police got into their first (dare I say?) rodeo with a driver who didn't care about the state's search warrant. In the end, 5 Cheyenne police officers were able to pin him down and get the needle in his arm for their DWI evidence. And when pressed on the issue, the Chief of Police appeared to push it off on the court: "The judge is essentially ordering us to obtain blood from this person," stated Chief Brian Kozak, "so we are going to get that."

My problem is with that "essentially" part, and it's why I don't like forced blood draws. There are a lot of people out there who don't like the idea of the government ordering you to submit to a blood draw, much less one where five cops restrain and stick you while the chief videos it with his cell phone. According to the arresting officer, the accused repeatedly yelled "I'm gonna make you break the needle off in my arm!" Chief Kozak also reportedly heard the defendant repeatedly state that he was continuing to fight because the longer he fought, the less intoxicated he would become. Seriously? So even after he accidentally admits being intoxicated, you still felt it necessary to get that blood by force? Oooooh, that's right, the court ordered it.

Here's a thought- let the court hold him in contempt. Or come up with a charge for interfering with the (court ordered) duties of the police? Oh, that's right, you did charge him for interfering with the police. So there's an extra misdemeanor that sounds flattering. Still not enough to keep from sticking the guy? Is there no other way to prove intoxication besides forcefully withdrawing your blood? Like maybe digital video from the police cruiser that shows him crossing white lines and nearly colliding with the sidewalk, as the officer alleged? Is it too much to assume the cruisers have video in Wyoming? (I'll tell you a secret- it's a hell of a lot easier for the cops to convict without it.) Can the officer not testify to all of that, the other five officers and the chief holding his video camera phone? Is it too much to assume a jury can figure out when someone is intoxicated without blood evidence?

Enough sidetrack, here's the article from Wyoming.

Different Standards for Austin DWI Suspects?

Tue, 21 Jun 2011 06:03:37 -0500

I'm sad that the Statesman beat me to the punch, but glad to see I wasn't the only one annoyed by the Austin Police Chief's involvement in the dismissal of radio host Jeff Ward's DWI. According to a Statesman article last night, it looks like now the Austin Police Union is a bit irritated as well. Let's review: high profile radio host is stopped for DWI, but he knows Chief Acevedo, who is a frequent guest on his show. Host has his fiancee call the Chief on cell phone from the scene of the stop, and then the Chief accepts a call from him at the jail. Chief reviews Ward's case with police brass, then personally calls the County Attorney's office to point out problems with the case. Ward was arrested Thursday night, and County Attorney declines to prosecute the case by Monday morning. Case closed.

Frankly it's hard to find a pretty angle to see this from. The police union's beef is in the appearance of special treatment afforded to Ward, and the Chief's personal involvement. Acevedo says it was handled using standard department protocol, just like any other high-profile DWI stop of a high profile official, celebrity, or athlete. That means it was reviewed by the chain of command and submitted to the County Attorney's office. According to Acevedo, the only thing that makes this case notable was that the County Attorney decided not to prosecute it.

No, what reeeally makes it notable is that there IS a protocol for high-profile cases at all. According to Acevedo, the police department regularly reviews some DWI videos at random to check on the soundness of arrests. What's apparently NOT random is the review of ALL cases where the defendant is "high profile," or could otherwise draw attention to the department's actions. For all of you people who are not "high profile," that's a problem! If you're Joe Schmoe with a good video, the police are not reviewing it. They're writing up their report and the video, and sending it over to the County Attorney to file the charge, and that happens to over 7000 people in Travis County every year (and that's just DWI's). So what happens when Good Video Joe calls up the Chief from jail on a Thursday night? Any guesses? Doesn't he deserve to have the Chief call over to the prosecutor's office and point out the weaknesses in the case? I have to admit, I have never seen a cop point out ANY weaknesses in a case. Never mind that the County Attorney is a lawyer who can spot issues in his sleep, and the Chief's job is law enforcement. What makes it even more ironic is that if it had been just one night later, during the APD's "no-refusal" initiative for the ROT Rally, Ward would have gotten a needle stuck in his arm, like it or not. And you'd never guess who's 100% in favor of blood warrants and more "no-refusal" weekends... just what the hell is going on?

Austin Radio Host has unique DWI arrest

Thu, 16 Jun 2011 06:29:57 -0500

Recently in Austin, a local radio personality was stopped for speeding and subsequently arrested for DWI. Jeff Ward was pulled over Thursday evening after emceeing an event at the downtown Austin Hilton. He admitted to having one beer at the event, and was asked to perform a Field Sobriety Test to determine if he was driving while intoxicated. After performing the tests, he was asked to take a DWI breath test, which he refused (these Austin criminal defense lawyers advise you to do the same). Based on the officer's observations and judgment, the Austin Police Officer arrested Mr. Ward for DWI and took him to jail. Again, this is Thursday evening.

Now here's the best part. You can see the video here Austin DWI video.

So Ward gets a trip to jail, but as of Monday (four days later) his case is dismissed. Actually more than that, the Austin County Attorney's Office declined to prosecute the case, saying they believed there was insufficient evidence to support the charge. This is after Austin Police Chief Acevedo called the County Attorney's office to express some concerns about the evidence in the case. Seriously? There must be more to it? Well, I suppose that's true...

According to the Statesman, as Mr. Ward is being arrested, on the scene of the stop, he has his fiancee call Chief Acevedo directly on the cell phone, and then Ward called Acevedo himself from the jail booking facility. The two are familiar because Chief Acevedo is a frequent guest on Ward's radio show. He said Acevedo scolded him for not taking a breath test, but Acevedo himself later called Travis County Attorney David Escamilla to point out weaknesses in the case, because it was "high profile." Well, done, and done... everybody go home, nothing to see here. While you're chewing on all this, you should also review the Statesman article about high rates of DWI dismissals in Travis County. I'll have more posts in the near future about some of the issues raised by Ward's not-so-unique experience of being arrested on little evidence, as well as his very unique experience of having the police chief help dispose of his case.

Are blood warrants becoming the norm in Austin DWI enforcement?

Sat, 11 Jun 2011 10:09:19 -0500

Summer is here, and it's time for the motorcycles to come rolling into Austin again for the ROT Rally! For those new to town, the Republic of Texas Biker rally brings some 40,000 extra folks (and their bikes) for some cruising and good times in the ATX. Not that it's that far out of the norm, but South Congress will be covered in motorcycles, tattoos, leather, and some good live music. These Austin criminal defense lawyers are here to tell you it's not all fun and games, because DWI enforcement is something else in Austin.

Along those lines, the Austin Police Department has issued another "no-refusal" DWI weekend to cover the festivities. "No-refusal" weekends, what we refer to as "blood warrant" weekends, are when the Austin Police keep a magistrate available around the clock to sign warrants for blood draws in DWI cases. They used to be novel- it turns out a lot of people don't like the idea of the government sticking needles into peoples' arms. Aside from the whole "Big Brother gone too far" ideology, it appears there are also a hell of a lot of people who just plain don't like needles. These "blood warrant" weekends started a few years back on holidays where a higher volume of alcohol consumption was expected- New Year's Eve, July 4th weekend, Labor Day, etc. Over the last few years, the police have been adding other occasions to the tab, to include Memorial Day weekend, Mardi Gras, Halloween, the Super Bowl, and now, for the first time, the ROT Rally.

Under this trend, it's slowly becoming the norm to have the State sticking needles into folks' arms. Don't be shocked in a few years if some new "no-refusal" dates are added. How about every Texas home football game weekend? Or maybe the Travis County Fair and Rodeo weekend? Or how about just every weekend, since people seem to generally drink more then? And for happy hour during the weekdays... that should cover it. You might want to buy stock in Johnson & Johnson, or whoever it is that makes needles. Either that or those little round band-aids they give you.

Austin Criminal Defense Lawyers on the move!

Thu, 26 May 2011 19:05:06 -0500

Tillman Braniff is now on Rio Grande!

We appreciate the people who come to us for help with their legal needs, and encourage them to get to know us. In that spirit, take this as an invitation to come say hello and see the new place!

Our office has relocated to downtown Austin, in the area nestled between the court buildings, the University of Texas, and the ACC Rio Grande campus (known to some as the old original Austin High School). There is also a moontower over there, but that's a better Austin story for another post. We've settled into a freestanding grey WWII era house with a slightly rusted tin roof. It has three offices, two of which are full (more on that later...) and shining hardwood floors. We're anxious to invite all clients/friends/peers to drop by, see the new place, and get to know your Austin Criminal Defense Lawyers. Here's the formal information:

Tillman Braniff, PLLC
1405 Rio Grande Street
Austin, TX 78701
512 236 0505

Mardi Gras 2011 Sees Austin Police Out for Blood Again

Tue, 08 Mar 2011 20:17:45 -0600

Once again, the Austin Police Department raised the ante on drunk drivers by initiating TWO no refusal nights over this Mardi Gras week. As announced in the Blotter on March 3, police stationed a magistrate at the DWI processing BATBUS from 9 pm to 5 am on Saturday night, March 5.

This "No-refusal" initiative, becoming a tradition in Austin lately, means that officers can ask the judge for a search warrant to draw blood if a suspect refuses to submit a sample. If the judge finds probable cause (and let's just say it doesn't take much) then police have a sample drawn whether you like it or not. Yes, with a needle in your arm.

On Saturday night, police collected nine (9) breath tests and fourteen (14) blood draws, TEN of which were taken from people involuntarily pursuant to a search warrant. (Source: Daily Texan ) That means almost half of the DWI samples obtained on Saturday night involved sticking someone with a needle. I'm sure this is gaining popularity with the public as much as it is with the DWI task force, right?

To top it off, that's not the end of it! APD generally announces these in connection with holidays associated with drinking (Super Bowl, New Year's Eve, Halloween, Memorial Day, etc.). This time, the Saturday was just tacked on because it preceded Fat Tuesday (tonight), so they got a double whammy. As of this writing, the magistrate has been sitting on duty for about an hour. I guess this will only be warning to our Twitter followers, sorry for the late notice. As it stands right now, you might just start planning on staying home for the festive holidays, to be followed by staying home for nice dinners with wine, and watching your live music at home on TV instead of at a venue where alcohol is available. Drive at your own risk, or face the needle.

QRAY3ZYHXU3Y

Top 10 Non-Obvious Ways to Get Arrested

Mon, 28 Feb 2011 21:19:59 -0600

If you’ve had a few drinks or have some weed in the car, here are
some careless things to avoid. It could save you a trip to jail.

1. Speeding- Nothing is more likely to get you pulled over than speeding. These Austin criminal defense lawyers can’t overstate how many DWI and Possession of Marijuana cases start with a traffic stop for driving too fast. Once the officer is at your car window, the smell of alcohol or marijuana combined with your appearance make you an easy target for arrest. Always, ALWAYS watch your speed.

2. Driving without headlights at night- When you’re leaving a bar or restaurant in the city, the streets are often well-lit enough that it may not occur to you to turn on your lights. If other drivers are flashing their lights at you, be sure to check your own.

3. Driving without seatbelt fastened- This one usually happens in the daytime. You may not think officers would make a traffic stop for this alone, but the author has been popped for this twice in recent history, even once early in the morning on the way to court.

4. Overdue inspection or car registration- This one is as simple and avoidable as they come. The trouble is it’s on your windshield, facing out, so the police can see it better than you. Keep in mind that police can check your registration by simply running your license plate.

5. Wrong way on a one-way- This is a killer in Austin, even if you live here (and something to watch when you’re in an unfamiliar city). Downtown areas and college campuses are full of crazy one-way streets. Don’t be distracted by your booming stereo, which brings us to #6...

6. Car stereo too loud- Doesn’t matter if you’re driving or parked, if your stereo thumps, you want to keep your windows up or you‘re asking for police attention. And no, it doesn’t matter if you listen to rap or bad country, city ordinances just prohibit it being played too looooouuuud!!　

7. Defective Equipment- Includes the obvious driving with a headlight out, as well as overlooked things like taillights or brake lights. Even less obvious, you may not even realize there’s a light for your license plate. If any of them are out, you may find other lights behind you.

8. License plate covers- Most people don’t realize that Texas law prohibits anything that “obstructs” your license plate, and how loosely that word is interpreted. Most common are those school alumni license frames that barely obstruct words along the edge. Not likely to entice a stop unless cops just feel you’re suspicious and have no other reason to pull you over. Swallow your school pride and get a sticker.

9. Failure to signal a turn or lane change- You see it all day every day, but if you do it at night you’re asking for a traffic stop. Another example of one that probably doesn’t amount to much unless you’re already under suspicion for weaving or having your stereo up too loud. And if you turn on your signal after you're at the intersection, well, that's an offense too. Who woulda thought?

10. Window tint too dark- Yes, there is a law about how deep and dark your tint can be. Here’s the logic: If the police can’t see what you’re doing in your car, they may pull you over to see what you’re doing in your car.