Second Amendment: Domestic Violence Misdemeanants Suffer More than Convicted Felons

by Tim Baldwin

The Second Amendment of the United States Constitution protects the people’s right to keep and bear arms. The issue of firearm possession and use was not highly regulated and litigated prior to the 20th century. Since then, state and federal governments have passed many laws regarding the use of firearms. Over the decades, the judiciary has ruled on many issues and explained how the state and federal legislatures may restrict the use of firearms. The judiciary has developed rules of constitutional construction to determine whether laws regulating firearms are constitutional or not. One federal law that has been litigated frequently is 18 USC 922.

Under 18 USC 922, Congress made it unlawful for persons convicted of felonies and misdemeanor domestic violence to own, possess, transport, and ship firearms (see definition of “firearm,” 18 USC 921(a)(3)). However, Congress carved out exemptions to this prohibition in 18 USC 921; namely, where the person has his conviction pardoned, set aside, expunged or had his civil rights completely restored. If the State imposes any restrictions on his right to possess a firearm (e.g. cannot carry concealed), his rights are not fully restored (see discussion below regarding carry concealed permit).

This exemption clause raises a big question, particularly for people convicted of misdemeanor domestic violence (misdemeanants). That issue is this: what if the misdemeanor conviction for domestic violence does not divest or affect the rights of the person? In other words, what happens to the misdemeanant’s ability to “restore his civil rights” when his rights were never divested in the first place?

The misdemeanant can qualify for the exemption clause, but not on the basis that his rights were restored. Instead, he may qualify under the exemption clause only if he receives a pardon, expungement or setting aside of the conviction. These options pose a big problem for the misdemeanant, however, because it is more difficult to get a pardon than it is to restore a person’s rights, and sometimes, expungement and setting aside convictions are impossible.

In many states, a convicted felon’s civil rights are automatically restored once he completes his sentence. For example, Montana’s constitution and statute state that a person whose civil rights are disabled due to a felony conviction has his rights automatically restored once he successfully completes his sentence.

Thus, if a person is convicted of, say, felony theft and he completes his sentence, his rights are automatically restored, and he can apply for a concealed weapon permit or purchase a firearm because his rights are restored and thus, he qualifies for the exemption clause under 18 USC 921.

However, Montana residents need to be aware of this: if the charge for which the person was convicted has an element of committing or attempting to commit one of the following acts, then he cannot obtain a concealed carry weapon permit (CCW) under Section 45-8-321, MCA: intentional homicide, serious bodily harm, unlawful restraint, sexual abuse, or sexual intercourse or contact without consent. This CCW restriction means that such a person convicted of committing one of those acts cannot qualify to own or possess a firearm under federal law, because his firearm rights are restricted. This means his civil rights have not been fully restored, and thus he does not meet the exemption under 18 USC 921.

Going back to the misdemeanant convicted of domestic violence: he cannot have his rights automatically restored because he never lost his civil rights. So, to meet the exemption clause, he must alternatively have his conviction pardoned, expunged, or set aside.

This takes affirmative action to petition the executive branch of the state government to pardon his conviction, or the judiciary branch to expunge or set aside his conviction. This is easier said than done and much more difficult than having one’s rights restored automatically by operation of law.

First, to receive a pardon, the misdemeanant must file a petition with the executive branch (each state has its own process). The governor has discretion on whether to pardon the conviction or not. As one can imagine, pardons are not given arbitrarily. Next, for expungements, the judiciary can do this only if state law permits it. Many states do not permit expunging convictions except in limited circumstances. Finally, to set aside a conviction, there must be some constitutional or legal grounds to request this from the court; for example, the defendant did not enter his plea of guilty “freely, voluntarily and knowingly,” the sentence imposed was illegal or there was some fundamental unfairness. As one can imagine, proving these elements to set aside a conviction is very difficult.

This leaves the misdemeanant with the primary and perhaps only option of petitioning for a pardon. The chances of success with receiving a pardon are obviously lower than the convicted felon who has his rights automatically restored.

This disparity seems fundamentally unfair, but the Ninth Circuit Court of Appeals confirmed that it is constitutional. Here is what the court said in U.S. v. Chovan on the issue.

We rejected Brailey’s argument, concluding that his civil rights had never been “lost” because his misdemeanor conviction had not taken away his “core civil rights”: the right to vote, to sit as a juror, or to hold public office. Because Brailey’s civil rights had never been lost, we reasoned that they could not have been restored. We noted that most other circuits had also concluded that, “where civil rights are not divested for misdemeanor convictions, a person convicted of a misdemeanor crime of domestic violence cannot benefit from the federal restoration exception.” Thus, we concluded that Brailey failed to meet § 922(g)(9)’s civil rights restored exception

United States v. Chovan, 735 F.3d 1127, 2013 U.S. App. LEXIS 23199, 2013 WL 6050914 (9th Cir. Cal. 2013) (citations omitted). The Chovan court continued its analysis of this issue, stating,

Applying rational basis review, we rejected Hancock’s equal protection claim. First, we explained that when Congress enacted § 922(g)(9), it “was aware of the discrepancies in state procedures for revoking and restoring civil rights . . . . [D]isparate treatment of some offenders was the inevitable result of Congress’ decision to ‘look to state law to define the restoration exception.'”  Second, we noted that in addition to the civil rights restored exception, § 922(g)(9) provides “several adequate legal mechanisms” for which both misdemeanants and felons can qualify: “pardon, expungement, and setting aside of convictions.” Viewing the two exceptions together, we found that “Congress reasonably could conclude that felons who had been through a state‘s restoration process and had regained their civil rights . . . were more fit to own firearms than domesticviolence misdemeanants who had not had their convictions expunged or been pardoned.” Id. We therefore upheld the civil rights restored exception under rational basis review as at least “minimally rational.”

Here, we apply Brailey and conclude that Chovan’s 1996 misdemeanor domestic violence conviction did not divest him of civil rights because it did not divest him of the right to vote, the right to serve on a jury, or the right to hold public office. Because Chovan never lost these “core” civil rights, he cannot qualify for the civil rights restored exception to § 922(g)(9). Further, we reject Chovan’s argument that the civil rights restored exception violates the Equal Protection Clause for the same reasons we articulated in Hancock.

(citations omitted).

To recap, a convicted felon (in states were rights are automatically restored upon completion of his sentence) is in a better position to meet the exemption clause under 18 USC 921 than a misdemeanant convicted of domestic violence (in states where the conviction does not divest the misdemeanant of his civil rights). While the misdemeanant may still seek the other exemptions (pardon, expungement, setting aside conviction) if available under state law, the chances of success are less than the automatic restoration of civil rights allowed by some states (e.g. Montana).

For convicted felons who are denied a CCW or purchase of a firearm, the denial may be illegal or unconstitutional, depending on the circumstances. There are ways of challenging and appealing these denials, but they must be determined on a case by case basis.

If you need to consult with an attorney on your gun rights, call Tim Baldwin (406-248-7000) or email him at timbaldwin@outlook.com.

Talk to Witnesses!

by Tim Baldwin

In my career as an attorney, fulfilling the role as both prosecutor and defense attorney, I have been baffled by the number of attorneys who do not take the time to talk to witnesses—not just obvious ones, but ones you discover were never disclosed by police or prosecutors. This lackadaisical approach to discovery is a critical mistake because with witnesses lies the key to evidence that will be presented in your client’s favor. In many cases, it is the difference between guilt and innocence.

Not all witnesses are cooperative. Thus, steps must be taken to secure their testimony for trial. Under Montana law, a criminal defendant has the right to interview relevant witnesses. If the witness refuses to give an interview, the defendant can move for a deposition of that witness. Most witnesses agree to give an interview, but for trial purposes the attorney needs the interview to be audio/video recorded and transcribed. Most witnesses will agree to an audio-recorded interview, but when a witness does not agree and the attorney does not know this beforehand, the attorney may be stuck with an interview in which he cannot prove the witness’s statements at trial. The interview, in that case, may be somewhat worthless except insofar as it gives the attorney information to proceed with further discovery.

To make the most use of his interview, the attorney should have a protocol and procedure to ensure he can obtain a recorded interview of the witness and a transcript for trial. Below is an example of the practice procedures an attorney can take for this purpose.

Witness Interview Procedure in Criminal Cases

1) Identify witnesses to be interviewed, their address, and their phone numbers.

2) Contact witnesses and ask if they are willing to interview at our office (indicate above).

3) Ask witnesses if they have any conditions they would like to assert to give in an interview (e.g., wants the prosecutor present). If conditions imposed, take notes.

4) Ask witnesses if they agree to an audio or video recorded interview.

5) If witnesses do not agree to a recorded interview:

a) schedule a court reporter to be present at the interview; and

b) secure an investigator to be present

6) If witnesses agree to an interview, send a Notice of Interview at their confirmed address indicating date, time, location of interview and anticipated length of interview.

7) If witnesses do not agree to interview:

a) contact prosecutor to schedule interview; and

b) ask prosecutor to confirm whether the witnesses agree to the interview being recorded. If witnesses do not agree:

i) schedule a court reporter to be present at the interview; and

ii) secure an investigator to be present

8) Before interview:

a) calendar for defense attorney to prepare

b) check with attorney about documents needing to be copied for ID purposes in interview

c) confirm with court reporter (if one is needed) his/her presence at the interview

9) After interview:

a) have recording transcribed (if no court reporter present), or order transcription if court reporter present

b) give copy of transcription and recording to opposing counsel

c) Request the prosecutor and/or witness to review the transcript and sign for accuracy

d) File notice of name of investigator and court report to witness list for trial

Using a comprehensive procedure for procuring witness testimony is crucial to being a good attorney. It is not only good practice to interview witnesses, it is also the attorney’s duty. Without knowing what information witnesses have regarding the action at issue, the attorney is likely relying on what the opposing attorney is saying about the facts and issues of the case—and obviously the opposing attorney is not looking out for your client’s interest. Practice right: interview witnesses.

If you need help with your criminal defense case, email Tim Baldwin at timbaldwin@outlook.com.

 

Search and Seizure: Exceptions to Warrant

by Tim Baldwin

In Montana and United States Constitutions, warrantless searches and seizures are per se invalid. However, there are several exceptions to this rule. The recognized exceptions to a warrantless search and seizure follow: (1) exigent circumstances existed; (2) the citizen gave voluntary and knowing consent for the officer to enter, search and seize; (3) the officers obtained evidence in “plain view”; (4) the officers obtained evidence under the Public Caretaker Doctrine; (5) the search was made pursuant to the Defendant’s terms of probation; and (6) the officers obtained evidence under the Inevitable Discovery Doctrine. I will explain each exception briefly.

Exigent Circumstances

Exigent circumstances have been defined as follows.

those circumstances that would cause a reasonable person to believe that entry (or other relevant prompt action) was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of a suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.

United States v. Zermeno (9th Cir.1995), 66 F.3d 1058, 1063 (quoting United States v. McConney (9th Cir.1984), 728 F.2d 1195, 1199, cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984)). Exigent circumstances are not a subjective determination. The officer must have facts to justify a search and seizure under the exigent circumstances exception.

Additionally, Montana law requires that the officers knock and announce their presence before a search. In State v. Hill, the Montana Supreme Court stated,

In Montana, the ‘knock and announce’ rule requires that government agents knock and announce their presence prior to entering an individual’s home without a warrant unless exigent circumstances are present.

Hill, 345 Mont. 95, 102, 189 P.3d 1201, 1207 (2008). The officer must have a reasonable belief to determine whether exigent circumstances exist. And “it is the duty of a court confronted with the question to determine whether the facts and circumstances of the particular entry justified dispensing with the knock-and-announce requirement.” Richards v. Wis., 520 U.S at 394 (1997). If no exigent circumstances and the officer did not knock and announce his presence to search, the officer cannot search person or property without a warrant.

Consent

The Montana Supreme Court has set forth the factors used to determine whether consent was given voluntary and without coercion. It stated the following in State v. Munson as follows.

This test focuses on “the nature of [the individual’s] subjective understanding,” Schneckloth, 412 U.S. at 230, 93 S. Ct. at 2049, which in turn depends on “the characteristics of [the individual] and the details of the interrogation,” Schneckloth, 412 U.S. at 226, 93 S. Ct. at 2047. A number of considerations are pertinent to this inquiry, such as whether the individual was in custody or under arrest at the time consent was requested; whether consent was sought after the search had already been conducted; whether the individual was expressly informed that he or she had the right not to consent to the search; whether the individual was told that a search warrant could be obtained; whether the individual was advised of his or her constitutional rights; the repeated and prolonged nature of the questioning; the individual’s age, education, and intelligence; and whether the individual was threatened or coerced in any manner.

Munson, 2007 MT 222, P51, 339 Mont. 68, 169 P.3d 364, 2007 Mont. LEXIS 403 (Mont. 2007). Where the State cannot prove that consent was given voluntary and knowingly, the officer’s search of that person or property is illegal and must be suppressed.

Along with the rule of consent, the Montana Supreme Court has ruled that, in cases where an officer observes evidence of a person who is in a place of privacy, that person must have knowingly exposed himself to the public for the officer’s observations to be admissible. The Montana Supreme Court said,

[P]ersons have an actual (subjective) expectation of privacy…within the confines of their private homes and enclosed structures and which they do not knowingly expose to the public.

State v. Siegal, 281 Mont. 250, 275, 934 P.2d 176, 191, 1997 Mont. LEXIS 39, 48, 54 Mont. St. Rep. 158 (Mont. 1997); see also, State v. 1993 Chevrolet Pickup, 2005 MT 180, P14, 328 Mont. 10, 15-16, 116 P.3d 800, 804 (Mont. 2005) (“Voluntary relinquishment of one’s interest in an item or one’s control over that item is akin to the legal concept of abandonment”); State v. Wilson, 218 Mont. 359 (Mont. 1985).

If a person does not give voluntary and knowing consent, the officer cannot search without a warrant. And unless a person exposes himself knowingly to the public, the officer’s observations of that person inside a place of privacy are inadmissible.

Plain View Doctrine

The Montana Supreme Court in State v. Lewis, (Mont. 2007) stated the Plain View Doctrine this way:

the plain view doctrine…“allows peace officers, under certain circumstances, to seize evidence in plain view without a warrant.” State v. Loh, 275 Mont. 460, 468, 914 P.2d 592, 597 (1996). If, while a law enforcement officer is lawfully present on an individual’s property, and in the course of his or her lawful presence, the officer discovers evidence in plain view, and if its incriminating nature is “immediately apparent,” then that evidence may be seized and used against the defendant at trial.

Id., 2007 MT 295, P22, 340 Mont. 10, 17-18, 171 P.3d 731, 737 (emphasis added). In short, if an officer is not a place lawfully to begin with, nothing he observes in plain view is admissible. For example, say an officer views illegal drugs on a person’s kitchen counter, but the officer is not in the house lawfully, then the officer’s “plain view” observations are illegal. The officer’s presence must be lawful before his “plain view” is admissible.

Caretaker Doctrine

The Montana Supreme Court described the Caretaker Doctrine this way.

The community caretaker doctrine, like the Terry investigative stop, is a recognized exception to the Fourth Amendment’s and Article II, Section 11’s prohibitions against unreasonable searches and seizures. Lovegren, PP 16-17. This doctrine is operative in cases where law enforcement initiates contact with a citizen not in order to investigate the commission of a crime, but to investigate a potential vehicle accident, or otherwise ensure the safety of citizens.

State v. Graham, 2007 MT 358, P25, 340 Mont. 366, 373, 175 P.3d 885, 890, 2007 Mont. LEXIS 612, 13-14 (Mont. 2007). The Montana Supreme Court has stated further,

once…the officer is assured that the citizen is not in peril or is no longer in need of assistance or that the peril has been mitigated, then any actions beyond that constitute a seizure implicating not only the protections provided by the Fourth Amendment, but more importantly, those greater guarantees afforded under Article II, Sections 10 and 11 of the Montana Constitution as interpreted in this Court’s decisions.

Graham, 340 Mont. at 373, citing State v. Lovegren, 2002 MT 153, 310 Mont. 358, 51 P.3d 471, 2002 Mont. LEXIS 315 (Mont. 2002). If the officer makes contact with a person under the Caretaker Doctrine, he must not be investigating the commission of a crime and must be making contact only to investigate a citizen’s peril. Then, once the officer sees that no peril exists, he must cease his contact. Any evidence the officer observes from the pretense of “caretaker” is illegal and inadmissible.

Probationer

The Montana Supreme Court has explained the general rule of law regarding the search of a probationer this way:

The search of a person may be conducted pursuant to a valid search warrant or in accordance with a judicially recognized exception. Section 46-5-101, MCA. In Montana, a probation officer may search a probationer’s residence without a warrant so long as the officer has reasonable cause for the search. See State v. Roper, 2001 MT 96, P12, 305 Mont. 212, P12, 26 P.3d 741, P12; State v. Beaudry, 282 Mont. 225, 228, 937 P.2d 459, 460-61 (1997); State v. Burchett, 277 Mont. 192, 195, 921 P.2d 854, 856 (1996); State v. Boston, 269 Mont. 300, 305, 889 P.2d 814, 817 (1995); and State v. Burke, 235 Mont. 165, 169, 766 P.2d 254, 256-57 (1988). “The ‘reasonable cause’ standard is substantially less than the probable cause standard required by the Fourth Amendment because of the probationer’s diminished expectation of privacy . . . .” Burchett, 277 Mont. at 195-96, 921 P.2d at 856 (citing Burke, 235 Mont. at 169, 766 P.2d at 256-57, and Griffin v. Wisconsin, 483 U.S. 868, 107 S. Ct. 3164, 97 L. Ed. 2d 709 (1987)). Admin. R. M. 20.7.1101(7) further underscores our precedent by permitting a warrantless search of a probationer’s or parolee’s person, vehicle or residence only “upon reasonable cause.”

State v. Moody, 2006 MT 305, P12, 334 Mont. 517, 521, 148 P.3d 662, 665, 2006 Mont. LEXIS 635, 5-6 (Mont. 2006) (emphasis added). There are many issues that surround these kinds of searches. Suffice it to say, searches may be illegal against a probationer if the search was not conducted by the probation officer, was conducted not according to the terms of the sentence order (e.g. not at the probationer’s home, not his vehicle), and was conducted to investigate a new crime.

Inevitable Discovery Doctrine (IDD)

The Montana Supreme Court has adopted the United States Supreme Court’s definition of the IDD:

It is clear that the cases implementing the exclusionary rule begin with the premise that the challenged evidence is in some sense the product of illegal governmental activity. Of course, this does not end the inquiry. If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means–here the volunteers’ search–then the deterrence rationale has so little basis that the evidence should be received.

State v. Ellis, 2009 MT 192, P54, 351 Mont. 95, 111, 210 P.3d 144, 154-155, 2009 Mont. LEXIS 226, 32-33 (Mont. 2009), quoting Nix v. Williams, 467 U.S. 431, 104 S. Ct. 2501, 81 L. Ed. 2d 377, 1984 U.S. LEXIS 101, 52 U.S.L.W. 4732 (U.S. 1984).

In explaining the IDD the Montana Supreme Court recognized, “inevitable discovery most often applies when the investigatory procedures were already in progress prior to the illegal search.” Ellis, 351 Mont. at 111. The Court in Ellis showed, “evidence seized [that] was not the inevitable product of a legal search already in progress” does not qualify under the IDD. The Court explained the facts for its ruling as follows.

The police who responded to Ellis’s residence had no authority to search any part of his home, much less seize evidence of a crime which he allegedly committed; the officers were not involved in a legal search already in progress when they seized evidence from S.S.’s bedroom and person.

Ellis, 351 Mont. at 111. The Court reasoned that conducting searches where a warrant is needed prevents the State from using any evidence obtained from the illegal search under the IDD. The Court in Ellis used a Ninth Circuit Court of Appeals case to explain its ruling, stating,

In Mejia, the Ninth Circuit Court of Appeals rejected the contention that the inevitable discovery doctrine applied where law enforcement officers had probable cause to conduct a search, but simply failed to obtain a warrant. Mejia, 69 F.3d at 319. In so holding, the Court of Appeals explained that it has never applied the inevitable discovery exception

“so as to excuse the failure to obtain a search warrant where the police had probable cause but simply did not attempt to obtain a warrant. As we stated in Echegoyen, to ‘excuse the failure to obtain a warrant merely because the officers had probable cause and could have obtained a warrant would completely obviate the warrant requirement.’”

Mejia, 69 F.3d at 320 (citing Echegoyen, 799 F.2d at 1280 n. 7; United States v. Johnson, 22 F.3d 674, 683 (6th Cir. 1994)). The Court of Appeals further stated:

“If evidence were admitted notwithstanding the officers’ unexcused failure to obtain a warrant, simply because probable cause existed, then there would never be any reason for officers to seek a warrant. To apply the inevitable discovery doctrine whenever the police could have obtained a warrant but chose not to would in effect eliminate the warrant requirement.

“We are neither free nor willing to read the warrant requirement out of the Constitution. Accordingly, even if we assume that the detectives were in possession of competent evidence showing probable cause at the time of the search, the inevitable discovery doctrine would not justify introduction of the evidence seized without a warrant.”

Ellis, 351 Mont. at 112. Like the Plain View Doctrine, the officers must have been in a lawful search for this doctrine to apply. If the officer did not have a lawful reason to be present or to be searching to begin with, then no evidence discovered as a result of his presence and searching is admissible.

Conclusion

The Montana and United States Constitutions require warrants for searches and seizures, but you can bet that officers and prosecutors will try to use these exceptions where they can. Many times, people do not know their rights in these areas and give them up too eagerly thinking that the officers will help them later. Had these citizens simply reserved their rights, they would be in a much better position. Search and Seizure law comprises the bulk of criminal law. Suffice to say, if you have been charged with a crime and the officers have conducted any searches and seizures, you need to consult with any attorney about your case.

If you have been charged with a crime and need a criminal defense attorney, email Tim Baldwin at timbaldwin@outlook.com.

Know About DUIs

by Tim Baldwin

A DUI conviction can disrupt your life in more than one way, not the least of which is the stress is causes you and your family. Most people do not realize the number of issues that arise in a DUI case. For example, there are stop, search and seizure, consent, and breath test issues. And in many cases, the issues can work favorably for you. That is why you should contact an attorney who practices in criminal law and particularly in DUI cases.

Here are a few things to keep in mind if you are ever stopped and arrested for a DUI:

  1. Consent. When you consent to giving evidence (i.e. making statements, performing field sobriety exercises, giving breath samples) to the officer, you waive your rights to suppress that evidence had you not consented. Keep in mind, Montana law gives the officer the right to ask for your name, driver license, registration and proof of insurance upon a lawful stop. From there, if the officer observes indicators of impairment, he will begin his DUI investigation by asking you usual questions (i.e. have you been drinking? Where are you coming from? etc.). He is seeking evidence to build a DUI case. Eventually,  if the officer believes he has obtained enough facts of impairment, he will ask you to exit the vehicle and perform field sobriety exercises. And then he will ask you to give a breath sample (see below). If you decide you to do not consent to answering questions, performing FSEs, or giving a breath sample, you must inform the officer at that time that you do not consent. If the officer asks you to sign a rights waiver, do not sign if you want to reserve your right not to consent.
  2. Breath Test Before Arrest. Montana law states that every driver who drives on the public ways implicitly consents to giving an officer a preliminary breath test (PBT) where the officer has particularized suspicion that the driver is driving while impaired by alcohol. If you refuse to give a breath sample, your license will be automatically suspended according to the law (with the right of appeal, of course). Keep in mind that the PBT can be used to form probable cause for your arrest but in most cases cannot be introduced as evidence at trial.
  3. Breath Test After Arrest. Montana law also states that every driver implicitly consents to giving a breath test after arrest to determine the blood alcohol content. If you refuse, your driver license will be suspended automatically (with the right of appeal, of course). If you consent to the breath test, the results can and will be used as evidence against you, unless the consent was obtained illegally.
  4. Inference of Impairment. If you refuse to give a breath test after arrest and your case goes to trial, the court will instruct the jury that they may infer from your refusal that you were under the influence. However, the inference is rebuttable; that is, you can rebut that inference.
  5. Actual Control of Vehicle. Montana law does not require that you be actually driving to be convicted of DUI. Rather, you only have to be in “actual physical control” of the vehicle while you were impaired. Thus, if you are in the driver’s seat while impaired with the keys near you for access, you could be arrested and perhaps found guilty.
  6. Evidence. The main evidence the prosecutor uses to convict a defendant of DUI are: (a) the officer’s observations of the driver (i.e. smell of alcohol, watery eyes, slurred speech, FSE, etc.), (b) video and audio of the stop and investigation, and (c) results from the breath test. The less you are exposed to each of those categories, the weaker the DUI case is and the more likely the chances of getting the charge reduced, dismissed or acquitted.

If you have been arrested for DUI, email Tim Baldwin at timbaldwin@outlook.com.

The Difference Between 100 Years in Prison and 12 Months Probation

by Tim Baldwin

I recently represented a Montana citizen whom the state government charged with felony stalking, which allegedly occurred between May 29, 2014 to July 3, 2014. He had an existing restraining order against him (because he “tailgated” her too closely one day), which his wife applied for and obtained from a justice court (not a hard thing to obtain nowadays). When there is a restraining order in place, it makes a stalking charge a felony. My client had a prior felony drug possession conviction within 5 years of this stalking charge, so under Montana law, the government was seeking PFO (“persistent felony offender”) status. This means, if convicted of the stalking offense, my client was facing a maximum of 100 years in state prison with no less than 4 years in prison. His situation was seriously dangerous.

My client had a prior defense attorney represent him. That attorney tried the case at trial before 12 jurors. At end of the trial, 11 of 12 jurors said GUILTY. One juror said NOT guilty, however. He was nearly convicted, but it was a hung jury. Still, the government did not give up prosecution: they wanted a second trial. After this, the prior defense attorney and client had a breakdown in their relationship. This is where I stepped in and began representing my client.

Prior to my representation, the defense attorney did not do many things I thought were necessary and critical for a good defense. For example,

  • the complaining witness had a prior conviction against my client for assault. I wanted to use this as character evidence under Rule 404(a) and (c), Mont. Rules of Evid.;
  • my client’s family law attorney had instructed my client during the time of the alleged “stalking” to take photos of his personal property. This is why my client was “caught” on his property taking pictures, which the complaining witness claimed was “stalking”;
  • a mutual friend of my client and the complaining witness said that the complaining witness told him to tell my client that she had pictures of their children in her vehicle and that he could get them since she would be out of town. Since she claimed he was “stalking” her by going into her car, this witness was important to show she was setting up my client;
  • the government had not disclosed exculpatory evidence, which was needed to defend the client. This included the numbers of time that the complaining witness called the police against my client, but the reports showed that she was either unreasonably paranoid or vindictive;
  • during the first jury trial, the defense attorney did not object to many prosecutor questions that, in my opinion, violated the rules of evidence. I filed a motion in limine to exclude these questions; and
  • all of the witnesses needed to be interviewed, but they weren’t before the first trial.

After I performed these tasks (and more), the court held a hearing on my defense motion to use character evidence against the complaining witness. The court ruled that I could use the evidence if the government elicited testimony or made arguments at trial that my client dominated her in their relationship, which is why she was “scared” of him. This took the wind out of the government’s case in many respects. Then, the Court indicated at the hearing that she was going to grant my defense motion to keep out certain testimony that violated rules of evidence. Again, this took the sting out of the government’s case. In short, the prosecutors’ case had substantially worsened and weakened–by the defense simply discovering the facts and using the law.

What happened next? One week before trial, the government offered to reduce the felony stalking charge to two misdemeanor restraining order violations. My client accepted. So, instead of facing 100 years in prison if convicted at trial, my client pleaded to two misdemeanors, for which he was ordered to be on 12 months unsupervised probation.

The moral of this story is simply this: if an accused expects to get the best result possible, he must hire a defense attorney who

  • is willing and able to work hard;
  • knows how to deal with prosecutors and witnesses;
  • knows criminal and constitutional law;
  • digs deeply into the case;
  • isn’t afraid of taking cases to trial; and
  • knows what to do with the information he learns.

It’s the difference between life in prison and 12 months probation.

For your criminal defense, email Tim Baldwin at timbaldwin@outlook.com.

The Ins and Outs of Sex Sting Cases

by Tim Baldwin

Sex sting operations by police are becoming common today, in all states. The agency that is most responsible for sex sting operations is known the Internet Crimes Against Children (ICAC) task force. Despite how agents for the government might lead the public to believe differently, sex sting investigations do not create “open and shut” cases, and not everyone who gets caught in the police net has a guilty mind. In many instances, the facts and circumstances around sex sting investigations create room for plausible defenses. Unfortunately, many people called for jury duty are unable to be fair and impartial when the allegations are sexual in nature. This is why defense attorneys must look at sex sting cases from every possible defense angle. The following is a brief review of some important issues that may arise in a sex sting case and have significant impact on the case result.

Funding Issues

The federal government funds many state operations, and believe it or not, some rich, private persons are funding state operations as well and even directing where the police should conduct their investigation. In some cases, ICAC sex sting investigations are funded by private persons in large part, as much as 90%. Funding creates defense issues, such as a motive for officers to increase the number of arrests so they can justify asking for more money. It can also create issues concerning the defense of entrapment. Where officers are looking for a person to arrest, they may be inclined to encourage a person to commit a crime so they can effect an arrest quicker.

ICAC Operation Plan

ICAC sex sting operations should have an Operational Plan. The plan is sent to the participants of the investigation, and the participants are supposed to follow the plan. Their knowledge of the plan can and should be tested. The plan sets forth important parts of the investigation, which may prove critical to challenging the government’s practice and procedures. For example, the plan may provide, to name a few:

  • the mission and purpose;
  • list of participants and their duties;
  • arrest scenarios and procedures;
  • the script for undercover officers to follow when conversing with target suspects;
  • evidence collection procedures; and
  • interview procedures

Some prosecutors may be unwilling to provide this plan, even though it is clearly discoverable for various reasons. The prosecutor may claim the plan is confidential or not in the state’s possession. The defense should not accept this answer at face value, but rather push hard to obtain this crucial material to prepare a proper defense. At a minimum, the court should review the materials in camera to determine whether they are discoverable.

ICAC Training

Officers who participate in ICAC sex sting operations should be specially trained for them. Since ICAC sex sting investigations are relatively new and create many due process concerns, a defendant should obtain the training material of officers who have a particular bearing on the defense. For example, if there is an issue of entrapment, the defense needs to discover the training material of the undercover officer who conversed with the suspect to ensure he or she was trained properly and did not contradict the training in this area. Like the operation plan, the prosecutor may claim that this material is irrelevant, confidential, or otherwise not discoverable, but if the training material helps the defense, it must be explored.

Witnesses’ Memory

Witnesses’ memory can be a major issue in a sex sting case because during these investigations, there are many officers coming and going from target locations; undercover officers are making many arrests to “catch a predator”; and many officers do not write reports of their involvement. Since sex sting cases heavily involve the issue of the defendant’s intent (i.e., did the defendant travel with the intent to have sex with a minor, or is there another plausible and reasonable explanation, such as being a vigilante or engaging in a fantasy game), the minutiae of the case are extremely important to present to a jury. Where officers forget the facts of a particular case or confuse one case with another, the defense may have many opportunities to challenge the way the government collected evidence and arrested the defendant. This is important to consider because in a jury trial, the judge will read specific instructions to the jury that concern how well the witness was able to recall the facts of the case. Where officers cannot remember facts or confuse them, the government will have a much harder time proving the charge beyond a reasonable doubt.

Witness Availability

ICAC sex sting investigations are composed of many officers from various state and federal agencies. Many officers do not live in the local area where the investigation took place. Some officers have no expectation of having to stay involved in the case after an arrest is made. They expect the cases will resolve one way or the other without their involvement–they are already thinking of and engaged in other investigations. So, where a defense attorney does due diligence for his client and demands interviews with the witnesses, there will inevitably be officers who do not want to submit to an interview or go to trial to testify. Some officers will display their contempt for defense attorneys who require an interview. As the case nears trial, some officers will express their unavailability or ask the prosecutor not to call them to testify, and when a defendant subpoenas them for trial, some officers will wonder why and ask the defense attorney to explain. These factors play a role in defense strategy because the defense attorney can determine which witnesses will be more credible, which witnesses will be available for trial, and which officers show respect for the rights of the accused to defend against the allegations.

Entrapment

State and federal laws prohibit officers from directly encouraging (i.e., “entrapping”) a person to commit a crime. Sex sting cases present unique opportunities for officers to entrap because the officers’ goal is to converse with a person online undercover and get that person to engage in “Sexual Abuse of Children.” ICAC officers are supposed to be trained specifically on how to avoid entrapment; the operational plan as well as ICAC investigative standards are designed to protect people from entrapment. Entrapment is a defense for a reason: society does not want the government to create criminals by targeting people who are not predisposed to commit crime. This defense is important not only for particular defendants, but for society as a whole.

Discovery

Some prosecutors are very reluctant to share material that could be helpful to the defense. As a rule, the more material the defense has, the easier it is to refute the government accusations. This is why some prosecutors “hide the ball” as much as possible. It is not fair, but it is hard for defense attorneys to challenge it. Of course, the defense does not know what material exists and is not in a position to state what material has not been supplied. So, being able to allege a discovery violation can be difficult because there needs to be a good faith basis in law and fact to file the motion. The defense needs to know that in sex sting cases, some material should always exist. For example,

  • operational plan;
  • operation checklist;
  • ICAC investigative standards;
  • investigative reports;
  • interview recording;
  • audio-video surveillance;
  • email or text of “chatter” conversation;
  • funding application; and
  • search warrants
    • to seize electronic communication with chatter before arrest
    • to search electronic devises after arrest.

Discovery rules are there so the parties know what evidence to present to a jury. Defense attorneys would do their clients a service by not ignoring this.

For your criminal defense, email Tim Baldwin at timbaldwin@outlook.com.

Reasonable Cause to Investigate Crimes: Protect Yourself

by Tim Baldwin

In state and federal jurisdictions, police cannot investigate supposed or perceived criminal activities without reasonable suspicion or cause. If police violate this rule of law and arrest you, you can move the court to suppress evidence and potentially dismiss the action against you. Your rights in this area are powerful protections against arbitrary government power in favor of individual liberty.

However, depending on the judge looking at the issue, “reasonable” cause may be an uphill battle because it is based heavily on the circumstances. A judge who wants to find “reasonable” cause will try hard to find it in the facts. If there are questions of credibility at a suppression or dismissal hearing, this kind of judge will find police credible and find no reason to disbelieve their version of the facts, even if the defendant testifies to the contrary.

This puts you in a position of having to defend yourself before a jury (a risky move), instead of getting the case dismissed pretrial (a safer move). This means that every person confronted with police action should know how to protect himself from police, prosecutors and judges who have the facts and law wrong.

What should you do when confronted by an officer who wants to investigate a crime? The following are basic, yet fundamental ways to respond to the officer. In essence, these are your rights as state and federal citizens.

First, always be respectful to the officer. Even if you are absolutely in the right in a given situation, you will not help yourself by being rude, arrogant and disrespectful to the officer. If the officer does not like you or does not like you invoking your rights, let him be the bad actor, not you. The reasons are many, but there is one heavy reason: if your case goes to a trial or hearing, you want the judge or jury to like you. Credibility is tremendously important in every case. Do not ruin your credibility by looking like a jackass.

Second, know why the officer is making contact with you. In many (if not all) states, the law requires police to inform you of the reason he stopped you. But if he does not inform you, you need to find out yourself.

Either the officer is investigating a crime or not. If he is investigating a crime, you have the right to remain silent. If he is not investigating a crime, you still have the right to remain silent. In either case, you have the right to remain silent. But anytime an officer stops you, you should find out immediately if he suspects you of a crime. Immediately upon a stop, ask him:

Officer, do you suspect me of committing a crime?

If the officer suspects you of committing a crime, he must tell you. If he does suspect you of committing a crime, do not aid the police by answering his questions without an attorney present. Invoke your right to remain silent and ask for your attorney to be present. If police persist to ask questions, continue to invoke your right to remain silent.

If the officer does not suspect you of committing a crime, police have no right to detain you without your consent. This means you have the liberty to leave and not answer any questions. So, find out immediately if police are detaining you. Ask the officer,

Am I being detained?

or

Am I free to leave?

If the officer says you are being detained or you are not free to leave, you may again ask,

What crime do you suspect me of committing?

If the officer informs you that you are not suspected of committing a crime or that you are  not being detained, then you are free to leave.

Third, if the officer informs you that either he suspects you of a crime or you are being detained, invoke your right to remain silent. So, when the officer asks you questions that could be used against you, you may tell the officer,

Officer, since you say you suspect me of a crime or since you are detaining me, I am invoking my right to remain silent and am requesting my attorney be present before I answer any questions.

 

If the officer persists in asking you questions, continue to invoke your right to remain silent and to an attorney. Remember, invoking your right to remain silent can never be used against you at trial, nor is it a basis for arrest. Remember too, never abandon your rights for fear of being arrested. If you are arrested without probable cause, that arrest is illegal. Any prosecution that results is illegal. Your attorney should be able to get the case dismissed.

But even if the case is not dismissed, you have protected yourself and not aided in their prosecution against you by invoking your rights. You will be glad you invoked your rights instead of waiving your rights and giving statements that police and prosecutors would use against you.

Note about traffic stops

As a practical matter, most people are contacted by police during traffic stops, if the officer asks you questions that do not pertain to the reason for the stop, you may handle that situation simply by asking,

Officer, what crime do you suspect me of committing to ask me that question?

For example, if the officer stops you for speeding; approaches your vehicle; introduces himself (Hi, I am officer so-and-so); and tells you the reason for the stop (i.e. I clocked you travelling 55mph in a 45mph zone…Can I have your license, registration and insurance?), he may ask you questions unrelated to that stop, such as,

So, where are going?

or

So, where are you coming from?

or

Who is in the vehicle with you?

or

Are you carrying a weapon?

or

Have you been drinking?

At that point, ask the officer,

Officer, what crime do you suspect me of committing to ask me that question?

If the officer informs you that he does not suspect you of any crime, invoke your right not to answer his questions because, well, the officer has no authority to ask you questions unrelated to the reason he stopped you: he is simply fishing to find information he can use against you.

If the officer informs you that he suspects you of committing a crime, then you have the right not to incriminate yourself: you may invoke your right to remain silent and for an attorney to be present for any questioning while the officer has detained you.

Fourth, never consent to a search. Note: a search includes field sobriety exercises in a DUI investigation. That’s right, you have no obligation to perform field sobriety exercises if an officer suspects you of DUI. Police are trained to make their jobs easier, which means police are trained to get you to talk and consent. Police count on the fact that most people simply talk and consent when asked by police.

Police will likely ask you, do you mind if I search you, your vehicle, home, purse, etc, or something to that effect. In that situation, you may feel you are being pressured or coerced to consent, but  you have the absolute right not to consent, and your refusal to consent cannot be used against you at trial. If police ask for your consent, simply say,

Officer, I do not consent to any searches.

It is simple: do not talk and do not consent. These are your rights. Invoke them.

Conclusion

“Reasonable” cause and suspicion are low standards. Depending on the judge, reasonable cause and suspicion may be a “license” for officers to stop whoever they want and ask whatever questions they wish. This puts many citizens in positions of having to prove their innocence to police. It puts people in a position of having to defend themselves against prosecutors who assume you are lying. It puts people in a position of having to worry about how a judge will rule on legal issues–a judge that favors the government in every scenario and who hates to rule against police and prosecutors.

The fourth and fifth amendments to our federal constitution were ratified by the States because of human nature. Human nature can be dangerous when people in government have the power to destroy other peoples’ lives. The number of biases, prejudices and misconceptions police, prosecutors and judges have against criminal defendants are numerable. Do not put yourself in a position of aiding them. Protect yourself with the knowledge of your rights: you can only benefit from that.

For your criminal defense, email Tim Baldwin at timbaldwin@outlook.com.

Domestic Abuse Allegations: Consider the Source

by Tim Baldwin

A recent video shows a Florida judge holding a complaining witness in an alleged domestic assault in contempt for not appearing at trial after she was served with court order to be present. The judge asked the woman if the allegations she made were true. She said, yes. The judge then asked, so why didn’t you appear for trial? The woman blamed anxiety for her failure to appear. Since the complaining witness failed to appear for trial, the prosecutor could not attempt to prove the charge; the case was dismissed consequently.

So, what reasons are common in domestic abuse cases for a complaining witness not to appear or not to participate in the prosecution?

Many domestic abuse cases originate because a complaining witness calls 911 during or after domestic arguments within a private home. Police arrive to investigate. Under the laws of many, if not all states, the police MUST arrest one of the parties. This normally translates into police arresting the male because of the difference in size and presumption that the male was the aggressor.

I recently handled a case that demonstrates this. There, the woman claimed that my client hit and pushed her without provocation in their home. Multiple police arrived on scene. The police arrested my client after talking to her. Later, at the booking station, one officer interviewed my client while another officer interviewed the complaining witness who maintained that he hit and pushed her without provocation. My client explained to the officer that the complaining witness stabbed him with a pair of scissors twice, once in the arm and once in the chest, and that when she attempted to attack him a third time, he defended himself.

He took off his shirt and showed him his arm to police. Behold, there were puncture marks on his chest and arm. She, on the other hand, had no signs of being assaulted. Guess what, the officer who interviewed the woman told the other officer to arrest my client even before he heard my client’s story. The police let her go free.

When the case was forwarded to the prosecutor, she continued to prosecute my client in spite of what the evidence proved. I tried to get the prosecutor to dismiss the case before trial, but she didn’t. So, we took the matter to a bench trial where I offered evidence of self-defense. Despite the complaining witness giving a story to the contrary (under oath), the judge found my client NOT GUILTY by reason of self-defense, thankfully. Justice was done.

However, in many domestic abuse cases, the physical evidence does not make it easy to determine or prove what actually happened, unlike the case I shared above, which allowed me to prove self-defense. Most cases are his-word-versus-her-word cases. This forces the defendant to choose either to enter into a plea agreement or face the risk of going to trial and being found guilty for something he did not do or for doing something much less than what the accuser claimed. In many cases, the defendant feels his best option is to accept a plea agreement instead of being subject to the maximum penalties by a judge at a sentencing hearing. He chooses the lesser of two evils.

So, why do complaining witnesses make unfounded or exaggerated claims? There are many. For example, the complaining witness:

  • may be a drug addict and unable to perceive and recount reality accurately;
  • is trying to gain an advantage over the defendant in a family law matter, such as child custody or support;
  • is trying to put herself in a better position or light while being investigated by child protective services;
  • feels substantiated only when playing the role of a victim;
  • has post traumatic stress disorder from a previous abusive relationship and responds to any conflict by associating her current partner with the previous abusive partner;
  • has a mental or personality disorder;
  • has a hyper-sensitive personality and exaggerates conflicts;
  • is trying to manipulate or dominate the defendant in their relationship;
  • was the actual aggressor in the dispute and doesn’t want to face cross-examination or lie under oath;
  • is being influenced by other friends or family members who have convinced her to rid herself of the spouse or partner; or
  • is cheating on the spouse and is using the legal system to shift personal responsibility.

In these circumstances, it becomes critically important for the defendant to hire a defense attorney who knows what to look for and how to handle the allegations. This includes knowing how to interview witnesses, prepare applicable defense motions, find and analyze physical evidence and witness statements, work with a private investigator to learn underlying facts of the relationship and personalities at play, dig into the complaining witness’ mental and psychological history, learn of previous false reports made by the complaining witness, and try a jury trial.

Keep in mind: being accused of domestic abuse is no small thing, even if it is a misdemeanor. For example, under federal law, if a person is convicted of domestic abuse by assault, the person loses his federal firearms rights: a subsequent possession of a firearm with that conviction could be prosecuted as a federal felony. Too, being convicted of domestic abuse may prevent a person from being issued a concealed carry permit, hired at a security job, or issued travel or clearance permits. Any person charged with domestic abuse needs to hire the right defense attorney for the job.

For your criminal defense, email Tim Baldwin at timbaldwin@outlook.com.