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April 25, 2016

What is Illegal Search and Seizure - Can the Police Really Do That?

(Image Credit: Wikipedia.org)

Most people are aware of the Fourth Amendment of the United States Constitution which protects them from illegal search and seizures. They may not, however, understand all the practical aspects of that right. 

Police officers in the state of Mississippi—or in any state—are not allowed to search a person, their home or their car. Anything resulting from an illegal search cannot be seized. There must be a very convincing belief that the suspect has committed a crime, or that a specific place holds evidence of that crime,in order for probable cause to exist.

That being said, unfortunately, illegal search and seizures are fairly common. Far too often, police officers conduct what they know to be an illegal search and seizure, on the chance a judge won’t throw out the illegally obtained evidence.

What is a Reasonable Expectation of Privacy?

We have a reasonable expectation of privacy in the following areas (meaning there must either be a warrant to search or a compelling reason to believe evidence of a crime has been committed or evidence of that crime can be found in a specific location):

  • The trunk or glove box of your car;
  • A public telephone booth, once the door is shut, (although there are few public phone booths left);
  • Our luggage, if it is not transparent;
  • Our office at work;
  • Our home (apartment, condo, hotel room), and
  • Our vehicle.

Do Police Officers Need a Warrant?

A warrant is generally necessary any time law enforcement wants to search a suspect, the suspect's house or the suspect’s car. In order to obtain a warrant, a judge must be presented with compelling evidence of probable cause. 

There are certain exceptions to the requirement for a warrant. If a police officer has a compelling reason to believe evidence is about to be destroyed by a suspect in one of those protected places, the officers may have legal justification to enter the suspect’s home, searching and seizing pertinent evidence.

The main examples in which the police may not need a search warrant include:

  • Consent—any time a person allows the police to search his or her house, car or person, no warrant is necessary;
  • Emergencies—If the police are pursuing an armed suspect into a neighborhood, it may not be necessary for them to have search warrants to enter the homes, as the fleeing suspect could be putting others at risk;
  • Plain view—anything which is in plain view does not require a search warrant, or
  • Searches incident to arrest - Once a person has been placed under arrest, a search of the person and his or her immediate surroundings for weapons is allowed.

Items which are in plain view can include such things as:

  • Drugs or a weapon on the seat of a vehicle;
  • Trash which has been placed at the curb for collection;
  • Public places such as a restaurant;
  • Areas in a business which are open to the public, 
  • A bloody area which can be seen through a front window of a home.

Tagged: Civil Rights

April 09, 2016

What You Need to Know About MS Criminal Record Expungements: Part Two

Expungements are a complicated process, and they can be confusing. In our previous article, What You Need to Know About MS Criminal Record Expungements: Part One, we talked about felony expungements and how the process may differ according to whether or not the convict is of legal majority. In this second installment, we’ll go over the basics of misdemeanor expungements.

Tagged: Civil Rights, Criminal Law, expungement, Legal question

March 22, 2016

Current Events: Apple Security vs. the FBI

If you’ve turned on the news lately, you’ve probably seen the debate being stirred around the Apple vs. the FBI case.  But, you may be wondering what all of the fuss is about.  Well, simply put, it’s a matter of security vs. privacy and just how far you can push those boundaries without blurring them.

What would you think if the FBI were able to force Samsung to turn on the video camera in your smart TV?  What if they could force Google to deliver a “security update” to your Internet browser that’s actually a bug sent to spy on you, transmitting all of your passwords and private information back to the FBI?

All of this sounds like the premise to a Tom Cruise, sci-fi flick, but in fact, this is what’s at stake when it comes to Apple vs. the FBI.  If Apple loses its fight with the US government, these sci-fi scenarios could become reality, threatening the security of all Internet users.

Tagged: Civil Rights, Criminal Law, technology

December 29, 2015

What is Malicious Prosecution?

When someone is wrongfully charged and prosecuted for a crime, what are the consequences? We're fortunate to live in a nation that provides extensive protection for our personal liberties. Where malicious prosecution is concerned, there are two particulars that you should know about:

Tagged: Civil Law, Civil Rights, Criminal Law, Personal Injury

November 10, 2015

What Constitutes Police Brutality (and Other Forms of Police Misconduct)?

Although police brutality is an age old problem, it has only been in recent years that we've seen such extensive media coverage surrounding the issue. There have been a number of notorious cases, but most of those have been extreme and not an accurate representation of the most common types of police brutality that occur. This type of incident doesn't necessarily need to have such a severe outcome in order to be valid grounds for a lawsuit. If there have been any injuries or emotional harm sustained as a result of an officer's behavior, then the victim should speak with an attorney right away.

Tagged: Civil Rights, Legal question, Police brutality

December 19, 2013

Duck Dynasty fans ask: "What Happened To the 1st Amendment Jack?"

By now I'm sure you've heard about the anti-gay comments made by Duck Dynasty start Phil Robertson. The popular A&E series follows the every day life of the Robertson clan and has drawn a huge nationwide following, none bigger than in huntin' happy Mississippi.

By all accounts, the Robertsons appear to be good people. They are funny, fiercely patriotic and above all else they do not hide behind the fact that they are Christians. It's easy to see why many in the South are drawn to this family.

However, Phil's comments in the GQ magazine interview are not sitting well with some. Here's what Phil was quoted as saying:

"It seems like, to me, a vagina -- as a man -- would be more desirable than a man's anus. That's just me. I'm just thinking: There's more there! She's got more to offer. I mean, come on, dudes! You know what I'm saying? But hey, sin: It's not logical, my man. It's just not logical." Later, when asked what is sinful, he replied: "Start with homosexual behavior and just morph out from there. Bestiality, sleeping around with this woman and that woman and that woman and those men."

As a result of these comments, A&E decided to suspend Phil from the show indefinitely. Now his followers are in an uproar. I've seen many on social media claim that this is a violation of the First Amendment. "This is America, you ought to be able to say what you want" is the general comment.

Mr. Robertson, just like any other American, is protected by the First Amendment. However, the First Amendment only protects our freedom of speech from Government intrusion: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." (The First Amendment applies to States as well although all states have similar provisions in their constitutions.)
Although it's a little out of the topic of this blog, not all speech enjoys first amendment protection. Governments can pass laws which punish speech which is "lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words-those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." Chaplinsky v. State of New Hampshire, 315 U.S. 568, 571-572 (U.S. 1942). The ironic part of all of this is if Phil Robertson made these same comments 50 years ago his comments may have been construed as being "lewd and obscene" and subjected him to being arrested. Thank your local ACLU for expounding our rights to say "vagina" and "anus" without fear of reprisal. But that's a blog for another day.

A&E is not the Government and they don't have to abide by the First Amendment. They are Mr. Robertson's employer. Mr. Robertson's "rights" with A&E are governed by whatever contract he has with them. It's no different that the relationship that anyone of us has with our employers. The Government may not be able to restrict your First Amendment rights but your boss sure can.

Tagged: Civil Rights

July 31, 2013

Using Federal Law to Stand Up to School Bullies in Mississippi

As summer winds down and the start of yet another school year is around the corner, I thought it would be a good idea to blog about school bullying and what can be done to protect your child. Bullying in school is nothing new. I can vividly remember an ABC Afternoon Special entitled "Psst Hammerman's After You!" in which a smaller student was being bullied by a larger student. (As an aside, it seems like my generation who went to school from the mid 70's through mid 80's learned all of our valuable life lessons from ABC's Afternoon Specials. We learned about sex, drugs, divorce, you name it. Our parents got off easy. Where are the Afternoon Specials now that I'm a Dad!. I digress). In the end, the smaller student stands up to Hammerman, gets his nose bloodied but earns the respect of the bully and is left alone. Well, we all know that doesn't happen in real life.

Recently the nation has been besieged by horrible stories of bullying, some of which end tragically. Take the lesbian student in Mississippi, Destin, who was allegedly bullied by not only the students but teachers and faculty as well. Destin ended up leaving school. My heart dropped when I read the story of beautiful little Phoebe Prince who took her own life after being constantly bullied by "mean girls" at school. Reportedly the school's teachers and administration was well aware of the bullying but did not take steps to end it.

There are other stories. You may have even been bullied as a kid. I know I was. I talk to my son about it as well. But what can we as parents do if our child is being bullied?

The first thing you need to do is recognize the difference between simple teasing and bullying. As we all know, children (and adults) will tease one another from time to time. In the 80's if you were a guy and didn't wear a Member's Only jacket with a Polo or Izod shirt underneath, Levi's (or similarly "cool" jeans") and Addidas/Fila/Nikes/Converse/Reeboks then you were opening yourself up to teasing. I'll never forget when my Mom bought me a "Braggin' Dragon" shirt. Dang thing had a freakin' dragon breathing fire right where the Izod alligator normally resided. You try wearing that around my school and think you won't get teased a little.

As a parent, we don't like anyone messing with our kid but we need to teach our kids to deal with something like fashion faux paux on their own.

Mississippi enacted an "Anti Bullying" law in 2010. In fact, every state except Montana now has similar legislation. Bullying is defined by Mississippi law (37-11-67) as "any pattern of gestures or written, electronic or verbal communications, or any physical act or any threatening communication, or any act reasonably perceived as being motivated by any actual or perceived differentiating characteristic, that takes place on school property, at any school-sponsored function, or on a school bus, and that:

(a) Places a student or school employee in actual and reasonable fear of harm to his or her person or damage to his or her property; or
(b) Creates or is certain to create a hostile environment by substantially interfering with or impairing a student's educational performance, opportunities or benefits. For purposes of this section, "hostile environment" means that the victim subjectively views the conduct as bullying or harassing behavior and the conduct is objectively severe or pervasive enough that a reasonable person would agree that it is bullying or harassing behavior."

If you fee that your child is being bullied to the extent they are in danger of physical harm then you need to act ASAP. You obviously need to address the teacher(s) but the most important persons to advise are the Principle (or whomever is over students) and the Superintendent. I would suggest setting up a meeting and also sending a follow up letter expressing your concerns. Much of today's bullying is done electronically or on social media. Be sure to save these items so that you can share them with the school.

Under State law, schools are now required to have training and policies designed to prevent bullying. However, we are finding that the policies may be there but the implementation of those policies is lacking as is the training. So what you find are stories like Destiny and Phoebe, children who just wanted to go to school and get and education but were instead subjected to bullying which no one would stop.

What can you do if the bullying persists? You can file a lawsuit. A school that fails to respond appropriately to harassment of students based on a "protected class" (race, sex, national origin) may be violating one or more civil rights laws enforced by the Department of Education and the Department of Justice, including:

Title IV and Title VI of the Civil Rights Act of 1964 Title IX of the Education Amendments of 1972 Section 504 of the Rehabilitation Act of 1973 Titles II and III of the Americans with Disabilities Act Individuals with Disabilities Education Act (IDEA)

In other words, school districts can be liable under the law if they ignore severe harassment that prevents a student from getting an education.

Obviously filing a lawsuit is an extreme measure but some schools are slow to respond or don't respond. They need to be held accountable when they are put on notice that one of their students is being subjected to bullying and they do nothing to help.

Tagged: Civil Rights

June 26, 2013

Court Defends Journalist's First Amendment Rights

Although the First Amendment protects citizen-journalists' rights to photograph and record law enforcement officers in a public setting, officers continue to harass and even arrest citizens for exercising these rights. The First Amendment grants Americans the freedom to document, whether through print, photography, or film, public officials carrying out their duties in the public sphere. However, there have been several instances recently in which journalists have been arrested for photographing or recording officers behaving inappropriately. Do you see the problem here? Public officials, who are paid by the government to perform certain civic duties, are not only verbally harassing citizens exercising their First Amendment rights, but also physically harming and even arresting these individuals.
Four Circuits have already affirmed the rights of citizen-journalists to photograph public employees performing their jobs in a public setting. Recently, a journalist in Maryland filed a Complaint in Maryland District Court, claiming relief for being physically assaulted and unlawfully arrested by the local police. Garcia, the citizen-journalist who filed the Complaint, was accosted by officers when he was discovered photographing a separate incident nearby. However, Garcia did not begin photographing the police officers until he became aware of the excessive force used by these officers in making the arrests in the initial incident.
In Garcia's Complaint, he cites evidence of his beating at the hands of local police officers and his subsequent unlawful arrest. Not only did these officers prevent Mr. Garcia from exercising his First Amendment right to photograph police activity in a public setting, but the officers also took the film from his camera prior to making the arrest. The officers never returned this film. Garcia's Complaint even notes a correlation between the surge of police misconduct toward citizen-journalists in recent years, and the increasing popularity of websites such as YouTube, which hosts countless user-submitted videos documenting such police misconduct. Perhaps these officers, aware that Garcia potentially had photographic evidence of their misconduct, did not want their actions to end up in the media spotlight, like countless other documented episodes of police brutality.
As long as citizen-journalists are peaceful, and maintain a safe distance so as not to interfere with the arrest, their rights to document police activity, and that of other public officials, are strictly-protected. Accordingly, the local police department which employed these officers had a media relations policy that encouraged peaceful working relations with news media. The policy even stated that officers should treat the media as "invited guests" on crime scenes, rather than public nuisances, as Mr. Garcia was treated. This media relations policy encouraged the media to document newsworthy crime scenes, even noting that media should be granted greater access to the scene than other members of the public. The policy intended for media to be present at newsworthy incidents, believing their presence would portray the officers in a positive light for performing their duties satisfactorily. However, these particular officers clearly did not follow their department-wide media relations policy.
Citizen-journalists are encouraged to document the activity of police and other public officials to create more transparency in the federal government. Police misconduct in a public setting should be exposed. On the same note, positive acts of police and other public officials should also receive just as much publicity. Instead of accepting responsibility for their actions, and allowing Garcia to photograph the arrest, certain officers let their emotions get the best of them, knowing that Garcia had potentially-incriminating evidence of the officers' excessive use of force in the initial arrest which sparked this incident. These officers abused their power, turning Garcia's perfectly-legal actions against him.
Prior to his arrest, Garcia was not disturbing the peace, and he kept a reasonable distance from the officers. He did not interfere with the initial arrest in any way whatsoever. Garcia's only mistake was photographing these officers in a compromising position. If Garcia had not noticed these officers acting inappropriately, however, these officers would not have taken issue with his photography at all. Garcia was punished for performing his civic duty; for documenting what he believed to be excessive force used by the police. He did not behave inappropriately, nor did he behave in a disorderly manner. He was simply exercising his First Amendment right. Public officials performing official duties should expect their actions to be recorded while in public. How else would these officials be held accountable for their actions? Officials certainly do not object to being photographed when they behave admirably. Consequently, the right of citizen-journalists, and all Americans, to photograph police and other public officials performing their duties in a public setting, will always be upheld, as long as these reporters do not interfere with the arrest, or behave in a disorderly manner.
As this case illustrates, your First Amendment rights are fiercely-protected. If you believe your First Amendment rights have been violated, do not hesitate to call the skilled attorneys as Coxwell & Associates today. To learn more about Civil Rights cases, please visit our website.

Tagged: Civil Rights, Police brutality

June 25, 2013

"Permeating" a Vehicle Deemed Unconstitutional Search

In U.S. v. Taylor, the U.S. District Court for the Southern District of West Virginia recently held that the police strategy of "permeating" a vehicle, prior to a drug dog sniffing the vehicle for drugs, constitutes an unreasonable search under the Fourth Amendment. Permeating a vehicle, or entering the suspect's vehicle without a warrant and tampering with the controls, involves turning the vehicle "on", rolling up the vehicle's windows, and adjusting the air conditioning to blow odors from the inside of the vehicle to the exterior, so the drug dog can more easily sniff out illegal drugs. This process of tampering with the interior mechanisms of the vehicle increases the likelihood that the drug dog, sniffing the exterior of the vehicle, will pick up the scent of any illegal drugs inside the vehicle. Since this search was performed without a warrant, and these officers did not have probable cause to search Taylor's vehicle, the judge found the officers' permeation unconstitutional. The officers' entry into the suspect's private automobile, to gather evidence they otherwise would have been unable to obtain lawfully, constituted an unreasonable search under the Fourth Amendment.

Although permeation has become a fairly common practice in many jurisdictions across the country, this West Virginia court found the practice unconstitutional. The court relied on two recent U.S. Supreme Court decisions to make this ruling: U.S. v. Jones and Florida v. Jardines. In Jones, the Supreme Court determined that placing a GPS device on the suspect's private property (his vehicle), without a warrant, was not only trespassing, but also constituted an unreasonable search under the Fourth Amendment, since this device was used to collect information about the suspect for over a month before his arrest. In Jardines, the Supreme Court upheld the Court's decision in Jones, finding that a police officer could not enter a suspect's porch, which was held to be an extension of the person's home, with the intention of conducting a search of the property without a warrant. Since the officer brought a drug dog to the porch for the purpose of carrying out a warrantless search, the Court held that the officer performed an unreasonable search under the Fourth Amendment.
When permeating a vehicle, the officer unlawfully enters the suspect's vehicle without probable cause. The officers entered Taylor's vehicle for one reason: to "stack the deck" against him by making it more likely the drug dog sniffing the exterior of his car would be able to detect the smell of illegal drugs, if any were hidden inside the car. The West Virginia court recognized the unconstitutionality of this practice, and stood up for Taylor's civil rights. As the Jones opinion notes, the government may not trespass, or physically enter private property, to collect information about suspects, without a warrant or probable cause. Doing so constitutes an unreasonable search under the Fourth Amendment. Because the officers physically entered the suspect's private property without a warrant, and performed an unlawful search of his vehicle, Taylor's constitutional rights were violated. Thus, physically entering private property without a warrant, to aid in the search of a suspect's property, is unlawful under the Fourth Amendment.
If you, or a loved one, have fallen victim to an unlawful search, please contact the skilled attorneys at Coxwell & Associates today. To learn more about civil rights litigation, please visit our website.

Tagged: Civil Rights, Traffic Stops

February 04, 2013

A Civil Rights Hero Turns 100

Rosa Parks would have been 100 today. She passed away in 2005. When Ms. Parks refused to give up her seat on that bus on December 1, 1955 I don't think anyone realized what a profound impact she would have on what we now recognize as Civil Rights. Ms. Parks refused to give up her seat to a white person and was arrested for violating the segregation laws known as "Jim Crow Laws". After her arrest, African Americans organized a boycott against bus companies led by a young preacher by the name of Martin Luther King, Jr. The boycott lasted 381 days until the United States Supreme Court ruled that the Jim Crow laws were unconstitutional and that buses were to be desegregated. Ms. Parks' refusal to give up her seat sparked a civil rights revolution.

But how did the case get to the United States Supreme Court or even find its way to the court system? The NAACP legal team decided to use the Civil Rights Act, 42 U.S.C. 1983, to file suit against the the Mayor of Montgomery, Alabama W.A. Gayle. (Ms. Parks was not a Plaintiff in the civil suit. Instead, the NAACP selected five other African Americans who had also been discriminated against on the buses.) 42 U.S.C. 1983 was originally enacted in 1871 to help the Federal government combat KKK attacks on African Americans. Ulysses S. Grant signed the bill into law. The law was later changed to allow private citizens to sue states, cities, or counties for money damages or injunctive relief.

The strategy paid off as the Alabama federal district court ruled inn June 1956, that "the enforced segregation of black and white passengers on motor buses operating in the City of Montgomery violates the Constitution and laws of the United States," because the conditions deprived people of equal protection under the Fourteenth Amendment. The court further enjoined the state of Alabama and city of Montgomery from continuing to operate segregated buses. The case was appealed all the way up to the United States Supreme Court but they refused to overturn the district court's decision.

The Civil Rights Act can be used by any citizen (white, black, etc.) when their rights have been violated by the State. Over the past 18 years, I have filed numerous civil rights lawsuits alleging police brutality. My very first civil rights case was in 1995 against the City of Jackson. Our client's teenage son was killed while being arrested for a misdemeanor. He was unarmed at the time. We were able to obtain a $2.1 million verdict for the family in federal court. The 5th Circuit Court of Appeals subsequently affirmed (ruled in our favor) the verdict. The City of Jackson, just like the City of Montgomery, appealed all the way to the United States Supreme Court but to no avail. We not only were awarded the $2.1 million but our attorneys fees and costs had to be paid by the City of Jackson as well.

Tagged: Civil Rights, Police brutality