Colorado Criminal Lawyer Blog

New Colorado Drug Bill SB 12-163 - Reducing Penalties Deserves Our Support

Tue, 01 May 2012 15:44:20 -0700

A new Colorado Drug Crime Law is winding it's way through the Colorado State Legislature. SB 12-163 if passsed by the Senate and signed into law by the governor, would reduce the penalty for possession of four grams or less of certain drugs from a class six felony to a class one misdemeanor, according to a weekly legislative report from Colorado Counties Incorporated.

The penalty for possession of more than four grams of certain drugs would be reduced from a class six felony to a class four felony under the bill's provisions.

The bill appropriates the savings from the reduction in the criminal penalties to substance abuse treatment programs. The department of human services will develop a trauma-informed substance abuse treatment and best practices training program. The bill requires a post-enactment review after two years that addresses the impact of the bill on jails and the amount of funding for jail-based treatment.

The Bill's Legislative Intent is clear and intelligently written:

SECTION 1. Legislative declaration. (1) The general assembly hereby finds and declares that:

Colorado drug policy and public safety would be improved by better differentiating between drug offenders who are primarily users and addicts and those more serious offenders who engage in the crimes of distribution, manufacturing, and trafficking of drugs.

For those drug offenders who are primarily users and addicts, focusing efforts and funding on supervision and treatment in the community would be a more effective use of resources than the current system of escalating punishments that often result in a prison sentence.

H. Michael's Take

This bill has many attackers -- the Colorado Sheriffs who believe it will mean the reduction in the level of offense will crowd the jails, the anti-decriminalization of drugs folks - who believe this will be the start of a "slippery slope" leading to the end of the so called "war on drug" and many others.

My position is that this is a "spot on" attempt to address the realities of a limited amount of money to spend on the "war" and the need to better and more intelligently reasoned approaches to drug use. The dealers and importers of these drugs remain untouched. For the rest of us -- it demonstrates the compassionate understanding of a State that has some wise folks at the helm.

For more information about this bill CLICK HERE

The Absolute Power of Prosecutorial Discretion - Trayvon Martin and The Politics of Charging A Criminal Case

Sun, 15 Apr 2012 19:55:58 -0700

The Duty to Due Justice

What every criminal lawyer knows - defense or prosecutor - is simple. Within the criminal justice system, the prosecutor (DA), not the judge - not the jury - and certainly not the criminal defense lawyer - has the most power.

In other forms of our government - there is a balance of power - checks and balances are written into both the State of Colorado and United States Constitutions by our forefathers. Not so in the criminal justice system. That system was taken almost wholesale from British Empire.

That system: the investigation, the decision to arrest (in this case), the charging decision, the plea bargaining decision, (and with mandatory sentencing laws which remove a judge's discretion at sentencing), the sentencing decision .. ALL rest with the discretion of the DA.

So when the special prosecutor in Florida's Martin case decided to charge George Zimmerman with second-degree murder this week in Sanford this week, politically - she may have won the praise from Martin's supporters across the nation in the short term .. know better. Those of us that spend our lives in the "system" - know that - at least on the evidence we have been given to date - are very skeptical.

The legal standard to make an arrest - probable cause - is just above the lowest standard of evidence in the criminal justice system. Just above "reasonable suspicion," that quantum of evidence necessary to make an automobile stop - is well below the standard of "proof beyond a reasonable doubt,"

Beyond a reasonable down is the quantum of evidence necessary to obtain a conviction at trial. In my opinion probable cause should NEVER be the basis for making an arrest unless additional evidence is known to the prosecutor sufficient for a prosecutor to believe, in good fatih, that s/he could obtain a conviction at trial.

Once an person has been arrested and then charged, the defendant will find it necessary to retain expensive legal representation or, if s/he can't afford it (and there aren't many people who can pay for representation on a murder charge), request a public defender.

It also means iat least temporary incarceration, and can also mean thousands of "wasted" and precious dollars used to post bond to obtain freedom from incarceration during the pending prosecution.

After a charge is made - a preliminary hearing follows on the heals of the arrest - in Colorado - within 30 days. While a judge may dismiss the case at the preliminary hearing - this almost never happens. That is because, believe it or not, the quantum of proof at a PH is - again probable cause - or what is also known as a preponderance of the evidence. Furthermore - and just as unbelievably, the evidence must be interpreted in the light most favorable to the prosecution.

What that means is this... the judge - if there is a direct 50:50 conflict in the evidence MUST find for the prosecutor's theory of the evidence presented. .. That is one hell of an advantage to the Government.

While the American Bar Association's Standards for Criminal Justice advises that a prosecutor shouldn't prosecute a case in which he doubts the defendant's guilt, .. if he believes there's enough evidence to establish probable cause, the ABA guidelines state that it's ethical to pursue a conviction.

H. Michael's Take

Before a prosecutor should request the arrest of an individual - under any and all circumstances - the prosecutor should believe in his or her case - must be convinced that a jury will find the suspect guilty beyond a reasonable doubt. If a prosecutor has a reasonable doubt concerning the guilt or innocence of a person charged, particularly in a serious felony matter, that case should never be charged. Finally, if all the prosecutor has as evidence in a case he or she is being pressured to charge a suspect - is the minimum quantum of evidence to make an arrest, probable cause, unless new evidence is located - or uncovered - that suspect should remain free.

Life Sentences in Colorado Sex Offender Cases Go Too Far - Return Discretion To The Trial Judges

Thu, 12 Apr 2012 23:08:04 -0700

The recent conviction and mandatory life sentence of Broomfield High School wrestling coach Travis Masse demonstrates why the 1998 Colorado Lifetime Sex Offender Supervision Act goes too far.

A jury convicted the 29-year-old former teacher Tuesday of sexual assault on a child by someone in a position of trust, determining that he had sexual contact with the student on three occasions after the two exchanged sexually explicit text messages. There was no evidence that the relationship was anything but consensual - to the contrary there was no evidence of force.

As an experienced Colorado Criminal Defense Lawyer - I have discussed this law with many other practicioners - on both sides of the issue. There is considerable agreement among these men and women that Colorado sex-offender sentencing laws, which are the toughest in the nation, take away the primary justification for the election and periodic review of our judges - the responsibility for sentencing those convicted of crime.

The Colorado Sex Offender Sentencing system should be returned to a sentencing scheme - like almost all other crimes - that places on judge's shoulders the responsibility to make the diffcult calls.

The District Attorney determines how to charge criminal cases. If the DA adds enhancers such as the Position of Trust label and Pattern of Abuse allegation to the sex crime charged - and there is a conviction - across the board - without distinguishing one case from another - it means a mandatory life sentence for the defendant,... a judge loses complete control of the sentencing decision.

This must end.

Drug Crimes in Colorado - The Hidden Compassion Of Colorado's "In Need Of Treatment" Statute

Wed, 11 Apr 2012 06:24:01 -0700

Once in a great while, the Colorado State Legislature gets it right. Addiction is a disease and compassion is the treatment. Many years ago in Colorado, a law was enacted that gives the judge in a case more power than the prosecutor in drug USE cases. The law, printed below, conveys the authority on a Colorado Judge to find a defendant to be "in need of treatment."

Upon making that finding, the Court can trump the prosecutor's power and create what is commonly known as a deferred judgement plea bargain - even over the objection of the prosecutor. Upon successful completion of the deferred judgement, usually meaning drug rehabilitation programs, thelaw mandates the dismissal of the case. It is then eligible to be sealed immediately!

Here is the Law:

Unlawful Use of a Controlled Substance (18-18-404)

(a) Except as is otherwise provided for offenses concerning marihuana and marihuana concentrate in sections 18-18-406 and 18-18-406.5, any person who uses any controlled substance, except when it is dispensed by or under the direction of a person licensed or authorized by law to prescribe, administer, or dispense such controlled substance for bona fide medical needs, commits:

(I) A class 6 felony, if the controlled substance is listed in schedule I or II of part 2 of this article;
(II) A class 1 misdemeanor, if the controlled substance is listed in schedule III, IV, or V of part 2 of this article.

When any person is found guilty of a violation of subsection (1) of this section, after trial or upon a plea of guilty or nolo contendere, the court shall conduct an investigation to determine whether or not the defendant is:

(a) Addicted to a controlled substance;
(b) In need of treatment for the use of a controlled substance; or
(c) Dependent on a controlled substance.

If the court determines that the defendant is addicted to, a person in need of treatment for, or dependent upon a controlled substance, the court may declare the defendant a person in need of treatment, and the court, without imposing sentence and with the consent of such person, shall suspend further proceedings, shall order the person to participate in a treatment program, and shall order such other reasonable conditions for such person as it may require for such period, not to exceed four years, as the court may prescribe. Upon any violation of a condition of the treatment order, the court may impose sentence and proceed as otherwise provided by law.

The court, in its discretion, may dismiss the proceedings against such person and discharge him or her from treatment before the expiration of the period prescribed for the treatment. If, during the period of this treatment, such person does not violate any of the conditions set forth by the court, the court, upon the expiration of such period, shall discharge such person and dismiss any further proceedings against him or her. Such discharge and dismissal shall not be termed a conviction for the purposes of disqualification or disapproval imposed by law upon conviction of a crime, including the penalties prescribed by law for second or subsequent convictions or for any other purpose.

In addition to any other penalty imposed by this section, upon each conviction, entry of plea of guilty or nolo contendere, or receipt of a deferred sentence for a nonfelony violation of this section or adjudication as a delinquent for an act that would constitute a nonfelony violation of this section if committed by an adult, any driver's permit or minor driver's license held by the offender shall be suspended as provided in section 42-2-127.3, C.R.S.

Colorado Is A No Duty To Retreat State - But Martin Case Would Receive Different Treatement - Prosecuted First - No Immunity

Sat, 24 Mar 2012 08:34:26 -0700

As a result of the tragic and incomprehensible shooting of 17 year old Trayvon Martin in Florida -- much attention has been centered on Florida's No Duty To Retreat Law. The truth is Colorado has a caselaw version, (not a statutory or legislatively passed) version of the law for many years. In the case of Idrogo v. People decided by the Colorado Supreme Court in 1991, the Court held that that:

"an innocent victim of an assault is not bound to retreat before using deadly force when the use of such force is reasonable under the circumstances." The principle that you have no duty to retreat applies regardless of the level of force you employ to defend yourself.

Wihle there is always a requirement that the amount of force used be appropriate under Colorado law, one must be in fear of imminent serious bodily injury or death before one can use deadly force to defend themselves. But a person who is in fear of serious bodily injury or death need not retreat before using deadly force.

The law is codified in part under the affirmative defense to a charge of unlawful use of force in CRS 18-1-704.

The affirmative defense of self-defense is found at section 18-1-704, 8B C.R.S. (1986).

That statute states, in pertinent part, as follows:

(1) ... a person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for that purpose.

(2) Deadly physical force may be used only if a person reasonably believes a lesser degree of force is inadequate and:

(a) The actor has reasonable ground to believe, and does believe, that he or another person is in imminent danger of being killed or of receiving great bodily injury....

Where Colorado DIFFERS from Florida is in the grant of immunity under the No Duty To Retreat Doctrine. Colorado ONLY offers immunity from prosecution (as opposed to raising the affirmative defense of self defense at a trial) in the so called Make My Day Case.

The "Make My Day" statute creates certain additional rights of self defense. Section 18-1-704.5, C.R.S. provides that the occupant of a dwelling is justified in using any degree of physical force against a person who has unlawfully entered the dwelling, if the occupant reasonably believes that the intruder has committed, is committing or is about to commit a crime in addition to the unlawful entry and also reasonably believes that the intruder might use any physical force against any occupant.

The Colorado Make My Day Law goes further than other forms of self defense by providing for immunity from prosecution (as well as from civil liability) rather than merely establishing an affirmative defense. Section 18-1-704.5, C.R.S. provides that the occupant of a dwelling is justified in using any degree of physical force against a person who has unlawfully entered the dwelling, if the occupant reasonably believes that the intruder has committed, is committing or is about to commit a crime in addition to the unlawful entry and also reasonably believes that the intruder might use any physical force against any occupant.

Florida's self-defense law has eliminated a citizen's duty to retreat before
using deadly force to confront an attacker AND the law includes a similar Make My Day provision that grants "immunity" from prosecution or civil suit if a person is deemed to have acted in self-defense, though lawmakers did not clearly specify exactly who bestows the immunity.

H. Michael's Take:

Colorado's Make My Day law makes sense to me. Also known as the so called "Castle Doctrine" the grant of immunity arises from a family protecting itself from intruders into their home. Our nation has always placed the home as the ultimate bastion of privacy - both for search warrant purposes and for arrest warrant requirements. It is a place where we have a constitutionally protected right to feel safe.

The extension of the Make My Day law, taken out of the home and onto the "street" - exists in one form or another in over 23 states. Colorado has taken a more intellegent and tempered response to the No Duty To Retreat Doctrine - and has, over the years, averted the problems we are now seeing in Florida in the Zimmerman case.

In Colorado Mr. Zimmerman would have been arrested - THEN he would have the right to raise self defense as an affirmative defense against the charge of Second Degree Murder...and a jury would decide if his actons were justified. That makes sense to me.

New 2012 Juvenile Crime "Direct FIle" Law Deserves Our Support

Mon, 19 Mar 2012 20:06:57 -0700

As a new law compelling the District Attorneys of Colorado to turn over to Colorado Judges the decision to file criminal cases against adults in adult or juvenile court - is winding it's way to the Colorado Governor's desk.

This bill deserves our support.

At present The decision to try a 14, 15, 16 or 17-year-old as an adult in each case is made by one person -- a District Attorney. District Attorneys are not required to follow any guidelines and do not have to document how they made their decision. There are no checks and balances and no hearing before a judge. Prosecutors generally make decisions about whether to "direct file" children within 72 hours.

The new law - the Direct File bill, HB12-1271, sponsored by Rep. B.J. Nikkel (R-Loveland) and Rep. Beth McCann (D-Denver) passed through the House today on a vote of 45-20.

The bill strengthens due process for children who have been charged with crimes. This bill would let a judge decide whether a child of 14 or 15 years old should be prosecuted in adult court. For those 16 and 17-year olds, prosecutors would still be able to file to adult court, but the decision would be subject to judicial review. That bill will now move to the Senate. A big congratulations goes out to the Colorado Juvenile Defender Coalition for their leadership on this important piece of legislation

One never knows when our own children may be impacted by a young Colorado DA's irresponsible decision. You should contact your Colorado State Legislator and get behind this excellent law

2012 Important Bill To House Juveniles - Charged As Adults - With Other Juveniles Progresses

Sat, 03 Mar 2012 08:38:50 -0700

A very important bill that deserves our support - is now in the Colorado state legislature. The Bill mandates that Juveniles who have been charged as adults have a right to a hearing to determine whether they will be housed with other Juveniles in the juvenile detention center or in the adult jail facility.

Here is the BIll

HB 12-1139: Juveniles Charged as Adults Should be Detained in Juvenile Facilities

On January 20, 2012, Rep. Claire Levy and Sen. Lucia Guzman introduced HB 12-1139 - Concerning a Pretrial Detention of Juveniles Prosecuted as Adults.

The bill prohibits a juvenile who is to be tried as an adult from being held in an adult jail or pretrial facility unless the district court, after a hearing, finds that an adult jail or pretrial facility is the appropriate place of confinement for the juvenile. The bill sets forth a list of factors the district court must consider in making its decision.

The CBA Legislative Policy Committee voted to support this legislation. The bill has cleared the House and is assigned to the Judiciary Committee. The bill is scheduled for Committee review on Monday, February 27 at 1:30 p.m.

Please support his bill.

Ignorance Of New Law - No Defense to "Spice" Synthetic Marijuana Prosecutions In Colorado

Wed, 29 Feb 2012 19:29:43 -0700

As a result of some major publicity by a local television station and their investigation of certain types of so called synthetic marijuaua in 2011 - the Colorado State Legislature introduced and passed legislation to outlaw the manufacture - sale and even the possession of the synthetic substance.

Since the enactmenton of the law on July 1, 2011 - synthetic cannabinoids have been illegal to sell in Colorado. Substances like "Spice" and "K2" are known to act like marijuana but are created with synthetic chemicals.

The products were - and apparently still are - sold at various retail outlets and gas stations in Colorado.

In a report in the Denver Post last summer a spokesperson for certain Colorado Drug Task Forces confirmed that law enforcement was taking a slow approach to enforcing th new law.

"We need to enforce the law, but we also want to be responsible and not play a 'gotcha' game with people that are inadvertently selling this and they just don't know better."

But that is changing.

Recent Arrest In Denver Focuses on Gas Station Owner

As a result of a recent arrest of a gas station owner and employee - who sold spice to the public and also to high school students at East High School - the public was reminded of the alleged dangers of spice by the state legislator who introduced the law - Mike Kopp:

"Synthetic cannabinoids ....(spice) "behave substantially differently in a person's brain, and it absolutely should be seen as a controlled substance. There's a charade that has taken place, and frankly, it's a pretty dangerous one, where spice is sold as incense. But it's sprayed with any of five different kinds of chemicals. The odd thing is, none of these chemicals add any odor whatsoever. The only thing they do is serve to produce a high that has landed kids in the hospital with violent hallucinations."

Here Is The New Spice - K2 Law in Colorado

18-18-406.2. Unlawful distribution, manufacturing, dispensing, sale, or cultivation of synthetic cannabinoids or salvia divinorum.

(1) It is unlawful for any person knowingly to:

(a) Manufacture, dispense, sell, or distribute, or to possess with intent to manufacture, dispense, sell, or distribute, any amount of any synthetic cannabinoid or salvia divinorum;

(b) Induce, attempt to induce, or conspire with one or more other persons, to manufacture, dispense, sell, distribute, or possess with intent to manufacture, dispense, sell, or distribute, any amount of any synthetic cannabinoid or salvia divinorum; or

(c) Cultivate salvia divinorum with intent to dispense, sell, or distribute any amount of the salvia divinorum.

(2) A person who violates any provision of subsection (1) of this section commits a class 5 felony.

(3) Notwithstanding the provisions of subsection (2) of this section, a person who violates any provision of subsection (1) of this section by dispensing, selling, or distributing any amount of any synthetic cannabinoid or salvia divinorum commits a class 4 felony if the person:

(a) Dispenses, sells, or distributes the synthetic cannabinoid or salvia divinorum to a minor who is less than eighteen years of age; and

(b) Is at least eighteen years of age and at least two years older than said minor.

(4) As used in this section, "dispense" does not include labeling, as defined in section 12-22-102 (16), C.R.S.

Source: L. 2011: Entire section added, (SB 11-134), ch. 261, p. 1139, § 2, effective July 1, 2011
.
Editor's note: Section 5 of chapter 261, Session Laws of Colorado 2011, provides that the act adding this section applies to offenses committed on or after July 1, 2011.

Accused In Colorado Sex Crime Case Acquitted Based In Large Part On Poor Police Investigation

Thu, 09 Feb 2012 19:36:45 -0700

Former Greeley police officer Daniel Shepherd was found not guilty by a Colorado jury on February 8, 2012.

What makes this case so important - is that the jury looked at the "he said - she said" nature of the allegations - found both sides had lied or covered up - so they did what jurys are supposed to do - they focused on the absence of forensic evidence that would have pointed the way to the truth. This time - because of the incompetence of the police - there was none

In the words of one juror - who clearly got it right:

All we had to go on was their testimony," Sanchez said. "And we couldn't believe either of their testimonies, with her inconsistencies and previous claims, and he lied throughout most of the (investigation).

" But our job is guilty versus not guilty, not guilty versus innocent."

According to the Greeley Tribune who tracked the story - the investigation leading to the trial and acquittal - took eleven months "Eleven months of hell."

The alleged victim had accused Shepard of unlawful sexual contact of a then 19-year-old woman, after he ordered her to leave a party March 13, 2011.

H. Michael's Take

The jury system worked. When left with pure contradictory testimony - the jury placed the burden of proof squarely where it belonged - on the state of Colorado

As one juror put it "All we had to go on was their testimony,...and we couldn't believe either of their testimonies, with her inconsistencies and previous claims, and he lied throughout most of the (investigation)."

Evidence that could have conclusively proven the innocence of the accused - was never preserved - the alleged victim's clothing was never collected and tested - DNA from and other possible evidence that could have been extracted from a SANE examination and rape kit - was never obtained.

The Greeley police department, in not collecting the relevant evidence - denied the accused the benefit of evidence that could have led the District Attorney to dismiss the charges.

"Clearly, there were errors made at the start of the case, and that made the detectives work harder," said the Greeley Police Department . "This is one of those investigations where I'd say, while very good work was done, it certainly wasn't perfect."

This is the kind of case that should be studied by all Colorado Criminal Defense Lawyers.

This is the kind of case that restores one's faith in the criminal justice system and in the good common sense of the jury - the great equalizer.

GPS Tracking Shut Down By Supremes

Thu, 02 Feb 2012 06:13:02 -0700

In a unanimous but confusing decision issued by the United States Supreme Court last week - the justices held that a 28 day use of a GPS tracking device paced on a suspects vehicle without the benefit of a search warrant - is unconsitutional.

The confusing part? Scalia did not hold that a warrant was always necessary. Walter Dellinger, who represented the Defendant Antoine Jones at the Supreme Court, said the decision means that any use of GPS technology by law enforcement without a warrant "would be a risky undertaking."

Justice Antonin Scalia wrote majority opinion stating that it was the attachment of the device that violated the Fourth Amendment's protection against unreasonable searches and seizures.

"We hold that the government's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a 'search,' " Scalia wrote.

This issue now is the future -- the Court limited it's holding to the fact of the case and refused to write a clear rule that law enforcement could use for guidance under different circumstances.

The justices - raising clear questions of other technologies equally intrusive wrote in separate opinions, of the sweeping changes technology has brought to society that do not involve government intrusions.

"In the course of carrying out mundane tasks," Sotomayor wrote, Americans disclose the phone numbers they dial, the URLs they visit, "the books, groceries and medications they purchase."

Alito wrote of toll booths that record a motorist's travels, cars that come ready to broadcast their locations and 322 million wireless devices in use nationally.

H. Michael's Take

What is most certainly going to happen at this point is that the States -- picking up on the Court's reasoning will most likely find that the long term use of survelliance devices - of any kind - are suspect - and that the actions of law enforcement in tracking citizens using these kinds of technologies will be presumed unconstitutional.

Colorado State Legislature and School Districts Attempt A More Rationale Approach To Colorado Juvenile Criminal Law and School Discipline in a Post Columbine World

Thu, 19 Jan 2012 15:28:56 -0700

A recent article in the Denver Post finally addresses the most recent attempts by Colorado Schools - hopefully to be followed by the Colorado State legislature - to reverse years of Zero-Tolerance policies in Colorado's Public Schools and in the Courts.

Last year in December - another excellent article in the Denver Post quoted a Magistrate Kent Spangler, a Fort Collins Judge, who had this to say:

"Kids won't gain a respect for the law, for their parents, for teachers, for rules in general if they're told 'You're wrong! You messed up!' and don't take the time to get at the root of the problem,"

As an experiencd former Colorado Front Range Career Prosecutor -DA and now a Colorado Crimiinal Defense Lawyer - I am always impressed by judges who take the time to "teach" individuals before them about the law and the impact of their acts on their families, the victims, or society. Judge McGahey in Denver, Judge Ollada and Benze in Arapahoe County, and the list goes on and on.

Colorado has some of the best and most caring judges in the nation in my opinion.

Zero Tolerance policies - enacted after the so called Summer of Violence in the 1980's and following the Columbine Case - were and continue to be mindless - knee jerk reactions to complex problems. Juveniles have little life experience to fully understand the nature of their actions and the laws need to address those more difficult underlying issues.

The vast majority of crimes committed by juveniles ultimatley involve alcohol and low level drug offenses- - both of which are typically minor offenses in the criminal justice system.

The exposure of these kids in the juvenile justice system will have the kind of impact that is difficult to measure.

"These kids aren't monsters. They're kids! Sure they've gotten a little off track but you can't write them off. You have to show them what they're worth- appeal to their intellect- and when they start to believe they can do better, they will," said Spangle

In an article by Kevin Simpson - Kevin highlights the debate - "that the well-intentioned pendulum swing toward zero tolerance (after Columbine) resulted in a loss of perspective -- something he saw illustrated in his jurisdiction by the 2009 suspension of a Cherry Creek School District student for bringing non-functioning, drill-team rifles to school in her car."

H. Michael's Take

The task force addressing a revamping of Colorado's Juvenile Code - needs our support - to take a more rational view of the Colorado Juvenile Justice System - New statewide legislation - taking a reasoned approach to the complex issues behind juvenile crime - is what we need today.

Hurrah for the pendulum swing - let's hope it continues it's swing away from the Post-Columbine zero tolerance approach. Sen. Linda Newell, D-Littleton, who has introduced Senate Bill 46, regarding the revamp of school dicipline laws - is on the right track.

Florida Supreme Court Closes the Door on Dog Sniff Search

Wed, 11 Jan 2012 19:04:37 -0700

In an important case decided recently by the Florida Supreme Court -- the Court held that a dog sniff at the front door of a private residence was an illegal search... thus shutting the door to an expansion of the use of the "dog sniff" tool to invade the privacy of the home of the average citizen.

In Jardines v Florida, the police conducted a warrantless "sniff test" by a drug detection dog at Jardines‟ home and discovered live marijuana plants inside. The trial court granted Jardines‟ motion to suppress the evidence, and the State appealed.

An important point of law from the decision - says it all -

At the very core‟ of the Fourth Amendment „stands the right of a man to retreat
into his own home and there be free from unreasonable governmental intrusion.‟ "

Here is the heart of the decision:

On the scene, the procedure involved multiple police vehicles, multiple law enforcement personnel, including narcotics detectives and other officers, and an experienced dog handler and trained drug detection dog engaged in a vigorous search effort on the front porch of the residence. Tactical law enforcement personnel from various government agencies, both state and federal, were on the scene for surveillance and backup purposes. The entire on-the-scene government activity--i.e., the preparation for the "sniff test," the test itself, and the aftermath, which culminated in the full-blown search of Jardines‟ home--lasted for hours.

The "sniff test" apparently took place in plain view of the general public. There was no anonymity for the resident

The court reasoned that this sniff went too far -- that the dog sniff at the scene of a traffic stop is one thing -- but to conduct a search under these conditions - was a violation of the fourth amendment.

Again - and most importantly - we can see the court's reasoning:

Further, if government agents can conduct a dog "sniff test" at a private residence without any prior evidentiary showing of wrongdoing, there is nothing to prevent the agents from applying the procedure in an arbitrary or discriminatory manner, or based on whim and fancy, at the home of any citizen. Such an open-ended policy invites overbearing and harassing conduct. Accordingly, we conclude that a "sniff test," such as the test that was conducted in the present case, is a substantial government intrusion into the sanctity of the home and constitutes a "search" within the meaning of the Fourth Amendment. As such, it must be preceded by an evidentiary showing of wrongdoing.

Congress Eyes Abuse of Informants - May Pass Law To Stem Abuse

Sat, 07 Jan 2012 06:04:56 -0700

The use of informants has always been a bane to the enforcement of the War on Drugs in the United States. Informants seeking to help themselves often serve up questionable unvetted "intel" that results in major injustice to those later investigated and arrested on less than accurate information. Lives are destroyed.

After a country wide scandal involving crimes committed by so called FBI informants, U.S. Representative Stephen F. Lynch (D-MA) has introduced important new legislation that would require federal investigative agencies to report their informants' serious crimes to Congress. H.R. 3228,

If passed - and it should be - The Confidential Informant Accountability Act, would require the FBI, the DEA, Secret Service, ICE and ATF to report every six months to Congress all "serious crimes" committed by their informants, whether or not those crimes were authorized.

"Serious crime" is defined as any serious violent felony, any serious drug crime, or any crime of racketeering, bribery, child pornography, obstruction of justice, or perjury. The bill prohibits the disclosure of informant names, control numbers, or any other personal information that might permit them to be identified. Under the U.S. Attorney General's Guidelines, the FBI is already required to disclose its informants' crimes to federal prosecutors.

Dismissed DUIs in Colorado Underscore Need to Investigate Lead Police Officer's Credibility

Mon, 26 Dec 2011 21:35:01 -0700

Recently in Mesa County Colorado on the Western slope of Colorado, the District Attorney's office was forced to dismiss eight criminal cases in light of credibility questions surrounding a former Colorado State Trooper.

Because of the impact of the lead officer's testimony in a DUI caae, the District Attorney's officer is reviewing hundreds more cases that are expected to be dropped in the coming weeks.

The tropper - Donald Moseman, stepped down from the State Troopers Office in December after a departmental investigation.

The cases that have been dismissed are all drunk driving misdemeanor cases that had Moseman as the sole witness for the prosecution but additional cases in additional areas are also subject to the same scrutin .

The result of this action has led to a demand by Colorado Defense Lawyers in the area to turn over the contents of Moseman's internal affairs investigation, and it is expected that a judge will compel the department to turn over those records so that the judge could perform a private review to determine if there was material in that file that is relevant to these cases

This kind of material is called Brady Material and is considered directly exculpatory or potentially exculpatory evidence therefore the District Attorney is required by Colorado Law to turn over material bearing on the credibility of their primary witness.

The Grand Junction Sentinel reproted that:

"A letter dated Dec. 5 that was sent to Hautzinger by State Patrol Major Barry Bratt said an internal investigation found Moseman "displayed bias" in cases involving drivers suspected of being impaired by drugs or alcohol. The letter said Moseman submitted reports that "were a combination of reports from prior arrests and the current arrest, resulting in reports which contained wrong or conflicting information." "

Colorado Supreme Court Cases Enhances Penalty for "Pattern Type" Sexual Assault Cases C.R.S. 18-3-405.3.

Sun, 25 Dec 2011 13:54:33 -0700

A new Colorado case issued by the Supreme Court of Colorado clarifies the law in Colorado in Sexual Assault on a Child Cases where there are multiple instances of conduct constituting a pattern. The decision allows for consecutive sentences for each act notwithstanding the fact that there has been a single victim.

Colorado's sexual assault statutes authorize the possibility of greater punishments for sexual crimes against children that are committed "as a part of a pattern of sexual abuse."

Two cases, "Colorado v. Simon" and "Colorado v. Tillery" were consolidated for the Supreme Court's review in that they both involve interpretation of Section C.R.S. 18-3-405.3. The common issue presented by these cases was whether the statutory provisions and principles of double jeopardy permit only one class 3 felony conviction and sentence for a single "pattern" of abuse that comprises two or more incidents of sexual assault, or whether each separate act of sexual assault that composes a single "pattern" of abuse which may be elevated to a class 3 felony.

In "Simon," one division of the court of appeals held that section 18-3-405.3(2)(b) and double jeopardy principles prohibit the trial court from entering multiple class 3 convictions and sentences for Simon's ten counts of sexual assault on a child by one in a position of trust, where those acts composed a single pattern of abuse against one victim.

In "Tillery," a different division of the appellate court disagreed with the reasoning in "Simon." Finding no double jeopardy violation, the court upheld Tillery's class 3 convictions under 18-3-405(2)(d).

Upon review, the Supreme Court held that these statutes unambiguously allow each separately charged incident of sexual assault to be elevated to a class 3 felony, where each incident is committed as part of a pattern of sexual abuse. Furthermore, the Court held that these statutes, construed according to their plain language, do not violate the double jeopardy protection against multiple punishments under either the U.S. or the Colorado Constitution

Court Summary of the Case

December 19, 2011

No. 09SC665 - People v. Simon & No. 09SC1043 - Tillery v. People - Criminal Law - Sexual Assault on a Child, and Sexual Assault on a Child by One in a Position of Trust, as a Part of a Pattern

The supreme court holds that sections 18-3-405(2)(d) and 18-3-405.3(2)(b) unambiguously allow each separately charged incident of sexual assault on a child, or sexual assault on a child by one in a position of trust, to be elevated to a class 3 felony, where each incident is committed as part of a pattern of sexual abuse. The supreme court further holds that these statutes, construed according to their plain language, do not violate the double jeopardy protection against multiple punishments under either the U.S. or the Colorado Constitution.

The supreme court therefore reverses the court of appeals' decision in People v. Simon, Case No. 09SC665, reinstates Simon's ten class 3 felony pattern convictions and sentences, and remands to the court of appeals for consideration of the remaining issue raised by Simon on appeal. The supreme court affirms the court of appeals' decision in Tillery v. People, Case No. 09SC1043, and remands with directions to return the case to the trial court for resentencing in accordance with the court of appeals' decision.