Monday, July 28, 2014
Washington Court: DUI Blood Sample Test Requires Warrant
Police in Washington state may not skip the constitutional requirement to obtain a warrant before sending a blood sample from a drunk driving suspect to a lab for analysis. The state Court of Appeals last week came to the conclusion in the case of Jose Figeroa Martines, who crashed his SUV on State Route 167 on June 20, 2012.
Washington State Trooper Dennis Tardiff arrested Martines because he had been seen driving out of control prior to the crash, and he smelled of alcohol. Trooper Tardiff obtained a warrant to extract a blood sample, but the warrant did not say anything about testing. The sample was tested anyway, and Martines had a blood alcohol content of .12 along with the presence of Valium. Because of a prior conviction, Martines was charged with felony driving under the influence (DUI).
Martines appealed on the grounds that there was no reasonable suspicion to test his blood for the presence of drugs. The three-judge appellate panel went a step further and said it should not have been tested for anything at all without a warrant. State prosecutors insisted that blood is an item, no different from a piece of clothing, that is "seized," and once the state has it legally, it can test it at any time. The three-judge panel rejected the idea that blood is just an ordinary item.
"Blood is not like a voice or a face or handwriting or fingerprints or shoes," Judge Mary Kay Becker wrote for the panel. "The personal information contained in blood is hidden and highly sensitive. Testing of a blood sample can reveal not only evidence of intoxication, but also evidence of disease, pregnancy, and genetic family relationships or lack thereof, conditions that the court in Skinner referred to as 'private medical facts.'"
Because blood is different, the court held, a warrant is required before it can be "searched" just as a warrant is needed for it to be "seized." The judges explained that the warrant requirement limits a police officer's discretion and protects the driver's privacy from an unrelated fishing expedition.
"Where the state has probable cause to suspect driving under the influence, the requirement to obtain a particularized warrant for blood testing will prevent the state from rummaging among the various items of information contained in a blood sample for evidence unrelated to drunk driving," Judge Becker wrote. "For example, when a blood sample is obtained in the course of investigating driving under the influence, the state may not -- without further warrant -- use the sample to produce a DNA profile that can be added to government data banks."
The court pointed out that it would have been easy for the trooper to ask the judge to include a test as part of the warrant that was issued. The judge would have narrowed the testing to items related to the DUI incident.
A copy of the decision is available in a 620k PDF file at the source link below.
Source: Washington v. Martines (Court of Appeals, State of Washington, 7/21/2014)
Sunday, July 27, 2014
Ohio, France, Germany: Traffic Cameras Disabled
Vigilantes blew up a speed camera in Ennepe-Ruhr-Kreis, Germany. Der Westen reports that the device on the B226 will not be replaced.
In Milan, Italy, peaceful protesters from the Northern League covered up a speed camera with a cardboard box on the Via Enrico Fermi on Monday, La Repubblica Milano reported. A large warning sign read, "Slow Down, Pisapia will fine you," referring to Milan Mayor Giuliano Pisapia.
In Greenwich, Ohio, vigilantes have been twisting the speed camera owned and operated by the for-profit vendor Optotraffic, preventing the devices from generating tickets, the Norwalk Reflector reported.
In Normandy, France, vigilantes covered the front of a speed camera with fluorescent yellow and orange paint on Friday, Ouest France reported. The automated ticketing machine had been issuing tickets on the RD579 in Ouilly-le-Vicomte. In Haute-Loire, vigilantes disabled the speed camera on the RD103, according to Le Progres. In Garlan, the speed camera on the D786 was set on fire on Thursday. A similar attack took place on July 7 in Daoulas on the RN165, Le Telegramme reported.
Friday, July 25, 2014
Wisconsin Supreme Court Upholds Driving Away From Cop At Window
When Wisconsin police officers knock on the window of a car and motion to roll down the window, the state Supreme Court said in a 5 to 2 ruling that the motorist is free to ignore the cop and drive away.
"Although we acknowledge that this is a close case, we conclude that a law enforcement officer's knock on a car window does not by itself constitute a show of authority sufficient to give rise to the belief in a reasonable person that the person is not free to leave," Justice David T. Prosser wrote for the majority.
The justices argued in the context of the December 25, 2011 incident in which Grant County Deputy Sheriff Matthew Small knocked on the window of Daniel A. Vogt who was parked with the engine running in the Riverdale Park parking lot the village of Cassville at 2am. It was 37 degrees at the time. Vogt had done nothing illegal, but Deputy Small thought it was suspicious that Vogt was in the parking lot of a park that had closed at 11pm.
Deputy Small stopped behind Vogt's car with his headlights on, but his overhead red and blue lights off. He walked up to the car and saw Vogt in the driver's seat and Kimberly Russell in the passenger seat. He testified that he would have let Vogt go had he driven off because he "had nothing to stop him for."
Vogt did not drive off, because he thought he could no do so without hitting the deputy. He believed that he had no choice but to comply. Once the window was down, Deputy Small smelled alcohol and noticed Vogt's speech was slurred. This led to Vogt's arrest for driving under the influence of alcohol (DUI). The court's majority argued that the initial interaction was voluntary.
"The objective of law enforcement is to protect and serve the community," Justice Prosser wrote. "Accordingly, an officer's interactions with people are not automatically adversarial. A court's 'seizure' inquiry into one of these interactions must examine the totality of the circumstances, seeking to identify the line between an officer's reasonable attempt to have a consensual conversation and a more consequential attempt to detain an individual."
Because the deputy did not have his emergency lights activated, the majority believed a reasonable innocent person in the same situation could have driven off while the officer knocked at the window. The majority refused to speculate what would have happened to Vogt had he actually driven away. The dissenting justices said the majority position was absurd.
"The world of legal decisions does not reflect the real world," Chief Justice Shirley S. Abrahamson wrote. "No reasonable person I can imagine would feel free to drive away under the circumstances of the present case when the officer knocked on the car window and instructed the person to roll down the car window. A reasonable person would be concerned that driving away could be viewed as violating some law that governs obstructing an officer, disobeying an officer, or fleeing."
A copy of the decision is available in a 270k PDF file at the source link below.
Source: Grant County v. Vogt (Wisconsin Supreme Court, 7/18/2014)
Thursday, July 24, 2014
Canada: Lawmakers Consider Seizing Cars Over Guns
Anti-gun activists in Ontario, Canada are looking to confiscate cars illegally carrying handguns. Liberal Party Member of Provincial Parliament Mike Colle proposed legislation yesterday to add firearms possession to the "anti stunt racing" provisions of the traffic code that allow vehicles to be confiscated on the word of an officer who says they were speeding.
Within 24 hours of passage of the last extension of seizure powers in 2007, Ontario police raised up to $470,000 in ticketing and towing fees. Colle's proposal would impose a much higher fine of up to $10,000 on anyone convicted for the first time of illegally possessing a handgun in an automobile. Canada does not recognize the right to keep and bear arms or the right to due process.
"If a police officer believes on reasonable and probable grounds that a person has committed an offense under subsection (1), the officer shall request that the person surrender his or her driver's license; and detain the motor vehicle until it is impounded," Colle's proposed bill states. "There is no appeal from, or right to be heard before, a vehicle detention, driver's license suspension or vehicle impoundment."
Only about a dozen judges and high-level politicians have been issued "authorization to carry, type 3" permits that allow the carrying of a handgun, concealed or openly, for self-defense. Handguns that are legally owned may only be transported from one place to another with an "authorization to transport" permit from Ontario's chief firearms officer. Traveling to a shooting club with a legally owned handgun without such a permit is an offense in Ontario.
"Our present laws are weak and ineffective when it comes to dealing with people caught driving with illegal handguns in their motor vehicles," Colle said in a statement. "It is almost impossible for our police officers to get any kind of conviction under the Federal Criminal Code for anyone found to have an unlawful handgun in their vehicle."
If someone convicted under the bill is driving a car that belongs to someone else, the vehicle owner cannot get his car back or recover losses without filing a lawsuit against the driver.
A copy of the legislation is available in a 250k PDF file at the source link below.
Source: Prohibiting Driving with Unlawful Handguns Act (Ontario, Canada Legislative Assembly, 7/23/2014)
Wednesday, July 23, 2014
Texas Motorist Wins $77,500 After Traffic Cops Steal Cash
Police in Estelline, Texas are sorry they ever pulled over Laura Dutton. The 64-year-old woman was stopped on November 28, 2012 as she was returning from a trip to Amarillo on US Highway 287. Police Officer Jayson Fry, the city's lone officer, was manning a speed trap a few feet away from the sign marking the speed limit drop when she passed through Estelline.
Officer Fry says she was doing 61 MPH in a 50 MPH zone. He pulled her over, issued a ticket and asked if he could search her truck. She refused.
Officer Fry said he "smelled marijuana" so a drug dog was called in, and when the K-9 arrived thirty minutes later, it alerted. Dutton had no drugs, but she was carrying $31,000 in cash, the bills wrapped up as they had come fresh from the bank. She had recently earned the sum from the sale of 12.9 acres of land in Van Zandt County.
Despite the explanation, Officer Fry grabbed the cash and arrested Dutton, who had no criminal record of any kind, for "money laundering." Officer Fry handed the money over to Estelline City Manager Richard Ferguson.
Two months after the money had been taken from her, the charges were finally dropped and $29,640 returned to Dutton. In addition to the $1400 stolen from her by the city, Dutton was out $1050 in fees she had to pay to get out of jail the day after her arrest. She was never reimbursed for the travel expenses she incurred to get her money back.
Dutton decided to fight with a federal lawsuit challenging the city of Estelline for setting up a government almost entirely funded by speed traps. In 2012, speeding tickets generated 90 percent of the municipal budget. She argued that the marching orders for its officer was "go out there and get me some money" through the use of seizures.
When Dutton complained about the stolen money, the city did not investigate and all video tapes related to the arrest and the deposit of the money were "not saved." US District Judge Mary Lou Robinson reviewed the evidence and last month denied Officer Fry's assertion of immunity. She prepared the case to go to trial.
"There is sufficient evidence in this record for a jury to return a verdict in plaintiff's favor on her unconstitutionally prolonged detention/wrongful arrest/wrongful seizure claim," Judge Robinson wrote. "No reasonable officer would have arrested a suspect solely because his drug dog, certified or not, hit upon drug odors or drug residue on circulated cash."
Realizing there was no chance of surviving before a jury, Officer Fry's lawyers decided to settle the case last week for $77,500.