The courts punish purposeful crimes more severely than negligent crimes. The difference between first-degree murder (purposeful homicide) and manslaughter (reckless or negligent homicide) can be many years added to a prison sentence.
]]> The Model Penal Code, which is used in most states, defines four "mental states" in terms of intent. Jurors are asked to determine if the person acted in a manner that was purposeful, knowing, reckless or negligent. These are defined as:(A person might also be found to be blameless if there was no intent and no significant risk. This might be the finding in a case involving a truly accidental death.)
Does the average juror understand what each of those terms means? That is the question a group of law professors and psychology professors considered in a recent study entitled "Sorting Guilty Minds." Results from the research are both good and bad.
Even without being told the definition of each term, most jurors were able to distinguish between purposeful, negligent and blameless. But they could not reliably distinguish between knowing and reckless misconduct. The distinctions they made were arbitrary. And even when instructed on the differences between the two terms, the research subjects did no better. In fact, they often gave harsher punishment for reckless conduct than for knowing conduct.
The authors of the study say the inability to distinguish between knowing and reckless conduct suggests that reform is needed, perhaps in the form of improved jury instruction, a redefinition of the categories, or abandoning one of the categories entirely, especially in homicide cases.
Source: "Sorting Guilty Minds," November 14, 2011.
]]>One person recently said this me: "Hey, I understand I am guilty no matter what, right? After all, we are in Utah!"
However, there is much more to it than that, and the Utah Supreme Court has made it clear that simply being near illegal drugs when they are found is NOT enough to support of conviction of guilt.
]]> Here is what that case (State v. Fox, 709 P.2d 316, 318-20) , which invoved Clive and Gary Fox, the Court said the following:"A conviction for possession of a controlled substance with intent to distribute requires proof of two elements: (1) that defendant knowingly and intentionally possessed a controlled substance, and (2) that defendant intended to distribute the controlled substance to another. U.C.A., 1953, § 58-37-8(1)(a)(ii).
"Actual physical possession presupposes knowing and intentional possession. However, actual physical possession is not necessary to convict a defendant of possession of a controlled substance. State v. Carlson, Utah, 635 P.2d 72, 74 (1981). A conviction may also be based on constructive possession. Id. In Carlson, we held that constructive possession exists "where the contraband is subject to [defendant's] dominion and control." Id. However, persons who might know of the whereabouts of illicit drugs and who might even have access to them, but who have no intent to obtain and use the drugs can not be convicted of possession of a controlled substance. Knowledge and ability to possess do not equal possession where there is no evidence of intent to make use of that knowledge and ability.
"To find that a defendant had constructive possession of a drug or other contraband, it is necessary to prove that there was a sufficient nexus between the accused and the drug to permit an inference that the accused had both the power and the intent to exercise dominion and control over the drug. See United States v. Cardenas, 748 F.2d 1015, 1019-20 (5th Cir.1984); United States v. Rackley, 742 F.2d 1266, 1272 (11th Cir.1984); United States v. Davis, 562 F.2d 681, 694 (1977) (Bazelon, C.J., dissenting in part, concurring in part).
"Whether a sufficient nexus between the accused and the drug exists depends upon the facts and circumstances of each case. State v. Anderton, Utah, 668 P.2d 1258, 1264 (1983). Ownership and/or occupancy of the premises upon which the drugs are found, although important factors, are not alone sufficient to establish constructive possession, especially when occupancy is not exclusive. United States v. Davis, 562 F.2d 681, 693 (D.C.Cir.1977). Some other factors which might combine to show a sufficient nexus between the accused and the drug are: incriminating statements made by the accused, Allen v. State, 158 Ga.App. 691, 282 S.E.2d 126, 127 (1981) (defendant told unnamed individual that defendant had $500 worth of marijuana); incriminating behavior of the accused, United States v. Garcia, 655 F.2d 59 (5th Cir.1981) (defendant nodded affirmatively when introduced as owner of cocaine, and remained with drug during negotiations); Francis v. State, Ala.App., 410 So.2d 469 (1982) (defendant slammed door in face of police and ran back into the house yelling, "throw it in the fire"); presence of drugs in a specific area over which the accused had control, such as a closet or drawer containing the accused's clothing or other personal effects, Walker v. United States, 489 F.2d 714, 715 (8th Cir.) (drugs found in closet containing defendant's clothing), cert. denied, 416 U.S. 990, 94 S.Ct. 2399, 40 L.Ed.2d 768 (1974); presence of drug paraphernalia among the accused's personal effects or in a place over which the accused has special control, United States v. James, 494 F.2d 1007, 1030-31 (D.C.Cir.) (drug paraphernalia found in a locked box in defendant's dresser), cert. denied sub nom., Jackson v. United States, 419 U.S. 1020, 95 S.Ct. 495, 42 L.Ed.2d 294 (1974); Petley v. United States, 427 F.2d 1101, 1106 (9th Cir.) (pipe containing marijuana residue found in defendant's duffel bag), cert. denied, 400 U.S. 827, 91 S.Ct. 55, 27 L.Ed.2d 57 (1970). In every case, the determination that someone has constructive possession of drugs is a factual determination which turns on the particular circumstances of the case. Among these circumstances must be facts which permit the inference that the accused intended to use the drugs as his or her own. A conviction for production of a controlled substance requires evidence that the accused knowingly and intentionally produced the controlled substance. U.C.A., 1953, § 58-37-8(1)(a)(i) (supp.1983); see State v. Echevarrieta, Utah, 621 P.2d 709, 712 (1980); and evidence of possession may be part of a circumstantial link in the necessary chain of evidence.
"The evidence as to Gary sufficiently supports his convictions for production of a controlled substance and possession of marijuana with an intent to distribute. Gary owned the property where the marijuana was found. Although he may not have had exclusive control or possession (in a practical non-legal sense) of the premises, his non-exclusive possession and control combined with other incriminating evidence to provide an adequate foundation for the convictions. State v. Anderton, Utah, 668 P.2d 1258, 1264 (1983). Gary owned the house. His occupancy and control was evidenced by the presence of his personal effects in the same room as marijuana, drug-related paraphernalia, and a book entitled Marijuana Grower's Guide. Another room also contained marijuana and drug paraphernalia. Because he was the owner and occupier of the property and because of the manner in which the greenhouses were constructed in proximity to the house, one being accessible only through the house, there is a reasonable inference that he not only knew of the greenhouses and their contents but also had the power and intent to exercise dominion and control over the marijuana located in them, and was responsible for growing the marijuana. Furthermore, there was sufficient evidence that he intended to distribute the marijuana. Where one possesses a controlled substance in a quantity too large for personal consumption, the trier of fact can infer that the possessor had an intent to distribute. State v. Anderton, Utah, 668 P.2d 1258, 1262 (1983). The police found approximately 2,850 mature marijuana plants growing on Gary's property, an amount of marijuana unquestionably too large for personal use.
On these facts the evidence was sufficient to sustain the conviction of Gary Fox of possession of a controlled substance with intent to distribute, and production of a controlled substance.
Because one of the greenhouses was attached to the house and was openly accessible from the kitchen, the trier of fact could reasonably find that Clive Fox knew that marijuana was being grown in the house. However, to prove that he had constructive possession of the marijuana, the evidence must also show that he had the power and intent to exercise dominion or control over the marijuana."
Here is the kicker:
"There is no evidence that Clive Fox had any intent to grow or to possess the marijuana in the greenhouses. While he may have had knowledge of the existence of marijuana on the premises, that is not the equivalent of constructive possession. Indeed, evidence supporting the theory of "constructive possession" must raise a reasonable inference that the defendant was engaged in a criminal enterprise and not simply a bystander. That is, the evidence in its totality must show that defendant's dominion or control over the area must have been such that he in fact intended to exercise dominion and control over the marijuana."
]]>One of the most commonly used FSTs is the Horizontal and Vertical Gaze Nystagmus (HGN) test. Nystagmus is involuntary jerking of the eyes. Utah Prosecution Council, Driving Under the Influence Prosecution Manual (2007), http://www. sentencing.utah.gov/ProsecutionManual/chapter8.pdf.
]]> This movement occurs whenever the eyes move from side to side. When a person is intoxicated, the jerking motion is magnified. Pennsylvannia v. Muniz, 496 U.S. 582, 585 FN 1 (1990). The same is true for Vertical Gaze Nystagmus (VGN). With VGN the officer looks for the jerking motion of the eyes as the suspect gazes up and down.How is the test performed? An officer performs the test by asking a suspect to hold his or her head still. Then the officer directs the person to follow the tip of the officer's pen (or other object) with the person's eyes. The officer looks for three clues in each eye.
First, lack of smooth pursuit. This means that the eyes shake as they move from side to side. This shaking movement of the eye is much more noticeable when a person is impaired.
Second, distinct nystagmus at maximum deviation. When the person's eyes are as far as possible to one side, the officer looks for distinct and sustained jerking movements of the eye. An officer should observe a person's eye at maximum deviation for a minimum of four seconds. Nat'l Highway Traffic Safety Admin., Horizontal Gaze Nystagmus: The Science & The Law, http://www.nhtsa.gov/people/injury/enforce/ nystagmus/ hgntxt.html (last visited Oct. 17, 2011).
Third, the officer looks for onset of nystagmus prior to 45-degrees. This means that before the eyes reach a 45-degree angle while gazing towards the side, the officer looks to see if the eyes have begun jerking.
The officer performing the HGN test should look for each clue individually in both eyes. An officer may observe a total of six clues-three in each eye. Utah Prosecution Council (2007).
The higher a person's blood alcohol concentration (BAC), the greater the likelihood the officer will observe these clues. According to research, the appearance of four or more clues indicate that the person's BAC is greater than 0.10. The test is 77% accurate when four or more of the clues appear. This test is effective because nystagmus is involuntary and unnoticeable by the DUI suspect. Therefore, a person cannot deceive the test. Id.
The attorneys at the Affordable Legal Advocates are experienced DUI defense lawyers. They have handled numerous DUI cases in Utah and understand the correct protocol that every police officer should follow for administering field sobriety tests. Give us a call.
]]>Does the Fifth Amendment apply to FSTs? No, you cannot invoke your Fifth Amendment right against compelled self-incrimination if asked to perform FSTs by a law enforcement officer. Utah Prosecution Council, Driving Under the Influence Prosecution Manual (2007), http://www.sentencing.utah.gov/ProsecutionManual/chapter8.pdf.
]]> Why doesn't my Fifth Amendment right against self-incrimination apply to FSTs? In Utah, and the rest of the country, your Fifth Amendment right against self-incrimination does not apply because evidence obtained from FSTs is non-testimonial. The Fifth Amendment only applies to testimonial or communicative evidence, not physical evidence. "Evidence which is testimonial or communicative is that which reveals the subjective knowledge or thought processes of the subject." State v. Theriault, 696 P.2d 718 (App. 1984).When an officer administers FSTs, the officer obtains evidence based off of his or her observations of the suspect's performance. The officer does not force the suspect to make any self-incriminating statements. The Supreme Court of the United States ruled that physical observations made by an officer during FSTs are physical evidence and not testimonial. Pennsylvannia v. Muniz, 496 U.S. 582 (1990). These observations include speech patterns and muscle coordination. In addition, any incriminating statements a suspect makes while performing field sobriety tests do not require Miranda warnings because such statements are considered voluntary. This is because the responses are not elicited from custodial police interrogation. Utah Prosecution Council (2007).
What about my right against self-incrimination under the Utah Constitution? The Utah State Constitution contains a section that protects an individual's right against self-incrimination. Article I § 12 states: "The accused shall not be compelled to give evidence against himself..." Although this section is phrased differently than the Fifth Amendment of the Constitution of the United States, the Utah Supreme Court has interpreted it as offering the same level of protection as the United States Constitution. Id.
Facing criminal charges in Utah can be a stressful and terrifying experience. However, you do not have to endure it alone. The Utah defense attorneys at the Affordable Legal Advocates will fight for your rights.
]]>Most states have some form of an implied consent law on the books. If you are ever pulled over and suspected of DUI, you should know the law so you can best protect your rights. If you are charged with DUI it's also important that you get an excellent, affordable DUI lawyer such as one from Greg Smith and Associates.
So, what is implied consent? In Utah, the implied consent law states that "[a] person operating a motor vehicle in this state is considered to have given the person's consent to a chemical test or tests of the person's breath, blood, urine, or oral fluids for the purposes of determining whether the person was operating" a vehicle under the influence of alcohol or drugs. (Utah Code Annotated 41-6a-520).
]]> Basically, according to the Utah DUI implied consent law, you consent to submit to a blood, breath, urine or saliva test by merely driving a vehicle on a Utah roadway. Typically, the police cannot conduct a search or take breath/body fluid samples from you without a warrant or your permission. Under Utah's implied consent law, you consent (give your permission) to be tested when you operate a vehicle in the state of Utah. Once an officer suspects that you may be under the influence he can ask you to submit to one or more tests. Blood, urine and oral fluids tests are usually performed at a hospital ordetention center. More commonly, an officer will use a breath-testing device to administer a breath test during a traffic stop.
Under the Utah implied consent law, there are penalties for refusing to submit to chemical tests. It does not matter whether the driver politely refuses or angrily asserts his Fourth Amendment rights. The purpose behind the law is to discourage a suspected DUI motorist from refusing to submit to a chemical test that would reveal his or her blood alcohol content (BAC). In Utah, the officer (not the driver) chooses the method of testing. "A person who has been requested under this section to submit to a chemical test or tests of the person's breath, blood, or urine, or oral fluids may not select the test or tests to be administered." (Utah Code Annotated 41-6a-520).
In Utah, a person may still be penalized under the implied consent law for refusing to cooperate with a chemical test if they submit to one form of testing, but refuse another. "If a peace officer requests more than one test, refusal by a person to take one or more requested tests, even though the person does submit to any other requested test or tests, is refusal under this [law]." (Utah Code Annotated 41-6a-520).
For example, suppose an officer suspects you of DUI and requests a breath and urine sample. Under the
Utah code if you agree to the breath test, but refuse the urine sample you can still be penalized under the implied consent law for refusing to submit to the urine test. Penalties for refusing to submit to a chemical test or tests under the implied consent law may include "revocation of the person's license to operate a motor vehicle, a five or 10 year prohibition of driving with any measurable or detectable amount of alcohol in the person's body depending on the person's prior driving history, and a three year
prohibition of driving without an ignition interlock device." (Utah Code Annotated
41-6a-524).
Simply put, (1) In Utah, the state can suspend your driver's license for 18 months for a first refusal to test and 24 months for a second refusal, (2) you may be forced to pay for, install and use an ignition interlock device, and (3) you could be arrested while driving with any amount of alcohol in your system-whether or not you are impaired. In addition, your refusal to submit to a chemical test may be used as evidence against you in any civil or criminal case arising out of your operation of the vehicle in the time leading up to your arrest. The bottom line is that you should never refuse to submit to a breath, urine, blood or saliva test requested by an officer under Utah's implied consent law because the penalty for refusing to do so is harsh. AAs
Also, as a result of the new legislation your license could be suspended for 36 months if you refuse a breath test and have a previous DUI on your record. Also, If you are under 21 and you refuse to be tested, your license could be suspended for 18 months or until you are 21, whichever is longer.
When stopped by a cop, you have a right to remain silent, but must provide the officer with your driver's license and proof of insurance, and you don't have to submit to a field sobriety test. Also,
you do not have to submit to the portable breath test (PBT) prior to being arrested, but you must take the breath test after you're arrested to avoid a license suspension.
And, of course, your car may be impounded. Utah law prohibits anyone under the age of 21 from drinking even single drop of alcohol, and their car can be impounded even if they are a .01. The owner of a vehicle impounded under the "Not A Drop" law is subject to the same procedure as other "DUI" impounds.
Furthermore, if you are accused of DUI be sure to hire a DUI lawyer from Greg Smith and Associates, who will fight for you and your rights.
]]>What are FSTs? A typical DUI investigation in Utah involves FSTs and a chemical test. In an earlier blog I talked about Implied Consent and chemical tests (blood, breath, urine and saliva samples). According to the Utah Prosecution Council's Driving Under the Influence Prosecution Manual, FSTs "are the tools to aid officers in determining whether a person is impaired by the consumption of alcohol or drugs." (§ 8.1)
]]> What do FSTs test? FSTs are used to test the divided attention of the person being evaluated for DUI. Divided attention is the capacity of an individual to perform more than one task at a time. When a driver is impaired his capacity to divide his attention is reduced. Driving is all about multi-tasking. In addition to operating the vehicle (gas, break, turn signals, etc.) a driver has to be able to read traffic signs and be aware of other vehicles. "Field sobriety tests assess divided attention by requiring the person to complete both physical and mental tasks simultaneously, thereby testing a person's ability to divide attention between two or more tasks." Utah Prosecution Council, Driving Under the Influence Prosecution Manual, § 8.1.How accurate are FSTs? Field Sobriety Tests were standardized and have been regularly used since 1977. The National Highway Traffic Safety Administration (NHTSA) and the Southern California Research Institute (SCRI) tested the effectiveness of FSTs in detecting impaired driving. Officers look for errors or cues while a DUI suspect performs the tests. The more errors or cues in a test, the more accurately an officer can assess the impairment of a driver. Studies have shown that a certain combination of errors and cues during FSTs will accurately predict when a person has a blood alcohol concentration of 0.08 or higher. Utah Prosecution Council, Driving Under the Influence Prosecution Manual, § 8.2.
What types of FSTs are there? Law enforcement officers in Utah use a variety of field sobriety tests when investigating DUI. A person suspected of DUI in Utah may be asked to perform the one-leg stand test, the horizontal gaze nystagmus (HGN) test, the walk-and-turn test, the finger-to-nose test, the finger count test, and the Rhomberg modified test.
I will explain each one of these field sobriety tests in detail in future blog posts. For now, drive safely and remember to call Greg Smith and Associates when you need a quality Utah DUI attorney.
]]>Sometimes even a very "well educated person" can simply outsmart himself when it comes to criminal law matters. For example, just because a person is a lawyer that does not mean they are qualified to step into all legal areas as Mr. Mitrano had to learn the hard way.
]]> You see, according to the Court, back in 2002, Mr. Mitrano was a patent attorney, and was also a licensed engineer. So, he clearly had a ton of schooling behind him, and that can sometimes go a person's head. However, divorce law and criminal law are very different from patent law. Sadly, we often see non-criminal-defense lawyers representing people in court on criminal matters, which we feel can be a huge mistake.The bottom line is this: having a patent law attorney handle a divorce or criminal matter would be like a roofer trying to the job of an electrician. And in this case, Mr. Mitrano simply did not understand the legal wiring, and he really got burned.
As we understood the case, he was ordered by a New Hampshire court to pay weekly child support for his three kids in the amount of approximately $1,400 per week, plus $300 per week toward past medical expenses (over $80,000 per year).
Arguably, Mr. Mitrano wrongly thought (or simply arrogantly brainwashed himself into thinking) that the New Hampshire court simply did not have subject matter jurisdiction, so he could essentially ignore the order. According to the court, up until 2008 he had allegedly not paid any of it (nearly half a million dollars).
Now, just because Mr. Mitrano allegedly owed so much, don't think this can't happen to your loved one. After all, even being past due on a few thousand dollars can be very troublesome in a federal court. Typically, these cases are brought in state courts, but eventually, the feds can get involved, and this lawyer was convicted by a jury of willful failure to pay child support, and he was sentenced to a whopping 24 months in federal prison.
The Court of Appeals upheld the conviction, and said that there was sufficient evidence that he was able to pay and willfully refused to do so. The Court said, "It is not a crime to fail to comply with the statute based on a good faith misunderstanding of its requirements. [However,] mere disagreement with the law, however, is not a defense." Because court after court had told Mr. Mitrano he was wrong (four state courts, and two federal ones), the Court of Appeals felt Mr. Mitrano, a trained lawyer, certainly should have known his arguments were losers, and he should have paid the child support, according to the terms of the New Hampshire order.
Mitrano did not testify at trial. His belief came into evidence through his wife's, Kelly's, testimony. She testified that "[h]e always said he didn't have to pay, that this order is void as a matter of law, and no one agreed with him, but he always said it's void as a matter of law. He didn't say he couldn't pay. He said he doesn't have to pay."
He was wrong, and now he is paying a very severe penalty.
If you are past due on child support, call us immediately, and always pay something, never pay nothing. Frankly, we feel that Mr. Mitrano probably really ticked off the prosecutors in this case, so this may have been a case where they felt they needed to show him that the system was in control, not him. A client will often say, "I want a real bulldog defending me, and I don't want to take any deal! I want a complete dismissal!" Well, Mr. Mitrano acted like a bulldog, and look where he ended up - the pound for human beings. A smart, effective lawyer is better than bulldog any day. When you can win, you should fight like hell. But, when the facts are against you, your attorney needs to help you repent like heavens, so you can avoid getting locked up. The law Mr. Mitrano was convicted on was 18 U.S.C. 228(a)(3).
]]>Most people may be aware of the fact that stiff penalties await those who fail to stay current on their child support obligations in the state of Utah, such as wage garnishments and/or driver's license suspension. However, few may realize that even more serious consequences can result from the failure to remain in compliance with a child support order.
According to the Utah Criminal Code section 76-7-201, a person may be charged with "criminal nonsupport" if he or she "knowingly fails to provide for the support of . . . [a] child, or children when any one of them: a) is in needy circumstances; or b) would be in needy circumstances but for support received from a source other than the defendant's behalf."
Section 76 provides that criminal nonsupport is a class A misdemeanor - which is not something to be taken lightly. However, an individual may be charged with a 3rd degree felony if he or she "has been convicted one or more times of nonsupport, whether in this state, or any other state, or any court of the United states; committed the offense while residing outside of Utah; or commits the crime of nonsupport in each of 18 individual months within any 24-month period, or the total arrearage is in excess of $10,000."
]]> It turns out that not everyone who has been charged with criminal nonsupport in Utah has agreed with this law. For example, in the Utah court case, State v. Johnson (79 P.3d 419) a man living in Utah failed to comply with an Alaska court's child support order and, as a result, was found guilty of criminal nonsupport by a Utah district court.The defendant appealed the district court's ruling and attempted to dismiss the case, arguing that Utah court's should not be able to exercise jurisdiction over someone who has violated an Alaska court order while living in Utah. However, the appellate court disagreed with the defendant and, in so doing, cited to Utah Code Ann. § 76-1-201 which states that Utah has jurisdiction to prosecute criminal offenses that are either committed "wholly or partly within Utah". The court held that the defendant's failure to act when he stopped paying child support constituted a criminal offense committed within the state of Utah. Therefore, the district court's ruling was upheld and the defendant's criminal charges were enforced.
There is hope for those defendants who are charged with this crime. An affirmative defense is available for defendants who are unable to provide support. However, section 76 makes it clear that "[v]oluntary unemployment or underemployment by the defendant does not give rise to that defense."
By Greg Smith and Brett Skidmore
]]>After all, simply being near illegal drugs such as marijuana, meth, cocaine, ecstasy, heroine, etc. in Utah is not a crime. However, there is much more to it than that, and sometimes a person will get convicted for just being at the wrong place at the wrong time.
And Prosecutors can be all over the board in Utah when it comes to how they view such allegations of illegal drug possession and/or intent to distribute. For example, a prosecutor in Salt Lake may not handle the case the way a prosecutor from Ogden, Provo, Moab, Vernal, St. George, or Logan may. If the case gets turned over the feds, the matter instantly becomes a whole lot worse. That is why it is essential to hire an experienced defense team, which is very family with these types of illegal drug possession allegations, and how to properly defend against them such as Greg Smith and Associates, a criminal defense firm.
]]> In these situations, often a car, or something else, is searched and illegal drugs are found, and the police arrest the person who just happens to be near the drugs when they were found. If the person is fortunate, the Utah authorities will not charge with intent to distribute, too, which could raise a simple class B misdemeanor to a felony.Many feel that Utah and other states have very unfair methods when it comes to the prosecutor of illegal drugs. After all, there are traces of cocaine on many American monetary bills, and that makes it so that virtually any American could get charged with illegal drug possession, after all any measurable amount can theoretically be a crime. Let's face it, drugs are everywhere, and so are people, yes, even innocent ones, which makes every person a potential "criminal".
Many defendants in an illegal drug case in Utah invoke their right to remain silent, so all the State has is the fact that drugs were found somewhere near them. Let's assume your name is John, and your car has just been searched, and drugs were found in your seat. You kept your mouth shut. So, does the state have enough to convict you? Well, many jurors would say no way, not a chance, but some jurors would convict you based on that alone, and even of possession with the intent to distribute an illegal drug or substance. The Court of Appeals would say something like this if you appealed.:
'The evidence necessary to support a verdict need not conclusively exclude every other reasonable hypothesis and need not negate all possibilities except guilt. Instead, the evidence only has to reasonably support the jury's finding of guilt beyond a reasonable doubt.' " United States v. Pulido-Jacobo, 377 F.3d 1124, 1129 (10th Cir.2004)
So, it really comes down to the jury. Well, sort of. Courts have also said this:
". . . the Government must prove the defendant: (1) possessed the controlled substance; (2) knew he possessed the controlled substance; and (3) intended to distribute or dispense the controlled substance." United States v. McKissick, 204 F.3d 1282, 1291 (10th Cir.2000).
So, it is by far a slam dunk for the prosecutor.
So, what if drugs are found in your home while you are on vacation? Or what if you are a landlord, and drugs are found in your tenant's home? Here is what Courts say:
"The possession of the controlled substance may be actual or constructive." United States v. Delgado-Uribe, 363 F.3d 1077, 1084 (10th Cir.2004).
"[A] person has constructive possession of an item when he 'knowingly holds the power and ability to exercise dominion and control over it.' " United States v. Lopez, 372 F.3d 1207, 1211 (10th Cir.2004).
So, if a person hid his illegal drugs by burying them deep in the ground, but still had access to them, he would be in constructive possession of them. However, if a person were at a party and illegal drugs were present, but he had no control over then, arguably, he would not be guilty of a thing, even if he knew they were there. This is because he would not have any power or control over them.
Here is where things get a big scary:
"Dominion, control, and knowledge, in most cases, may be inferred if a defendant had exclusive possession of the premises; however joint occupancy alone cannot sustain such an inference." United States v. Mills, 29 F.3d 545, 549 (10th Cir.1994).
So, if you alone live in a home, and drugs are found in that home, it may sort of be assumed that the drugs found there were yours, unless you can show you did not have exclusive possession of the premises. In our view, unless the State can prove that all the doors and windows were locked and fully secured at all times, there is simply no way to prove that a defendant had the exclusive control of the premises. Drugs are very, very easy to plant just about anywhere. After all, if prisons, which are patrolled by drug-sniffing dogs and guards cannot keep drugs off their premises, how is John Q. Public supposed to be able to?
Courts have also said this:
"To prove constructive possession when there is joint occupancy of a vehicle [in other words, two or more people are in it], the government must present direct or circumstantial evidence to show some connection or nexus individually linking the defendant to the contraband. The government must present some evidence supporting at least a plausible inference that the defendant had knowledge of and access to the ... contraband." United States v. Valadez-Gallegos, 162 F.3d 1256, 1262 (10th Cir.1998).
So, at a minimum they should show that the illegal drugs were present, and the defendant knew they were there, and had access to them.
Here is what one jury instruction said in a recent trial involving the possession of drugs and intent to distribute in Utah:
Before you may find the defendant guilty of the offense charged in Count 1 of the Indictment, you must find beyond a reasonable doubt that he possessed a controlled substance.
The law recognizes two kinds of possession: actual possession and constructive possession.
"Actual Possession" is direct physical control, as by holding an object, or keeping it on or around one's person.
"Constructive Possession" is indirect control, as by knowingly having the power to exercise dominion or control over an object although someone or something else may actually be holding it. A person who, although not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over an object, either directly or through another person or persons, is then in constructive possession of it.
In a situation where the object is found in a place (such as a room or car) occupied by more than one person, you may not infer control over the object based solely on joint occupancy. Mere control over the place in which the object is found is not sufficient to establish constructive possession. Instead, in this situation, the government must prove some connection or nexus between the defendant and the object, and must offer evidence supporting at least a plausible inference that the defendant has knowledge of and access to the object.
In addition to knowingly having the power or ability to control an object, the government must prove an act on the part of the defendant by which that power or ability is manifested and implemented, such as an act placing the object within easy reach of the defendant, or an act concealing the object from view.
Merely being present with others who have possession of an object is not "constructive possession." In addition, momentary or transitory control of an object, without criminal intent, is not "constructive possession." You should not find that the defendant possessed the object if he possessed it only momentarily, and either did not know that he possessed it or lacked criminal intent to possess it.
You may find that the defendant "possessed" methamphetamine as the term is used in these instructions if the government proves beyond a reasonable doubt that the defendant had actual or constructive possession of methamphetamine.
Vol. I, Doc. 33 (emphasis added).
United States v. Bowen, 437 F.3d 1009, 1016-17 (10th Cir. 2006)
]]>And if the police then find marijuana or drugs with a drug-sniffing dog, can the defendant get the evidence thrown out of court?
Here is the long answer. Many people that drive on Interstate 80 near Wendover, Tooele, Salt Lake City or Park City, Utah do get pulled over for minor traffic offenses. Many just get written a ticket, then get let go. But, others have their cars searched. And many of our clients feel those searches are totally bogus. This happens to many campers at Utah campgrounds, too. Rule of thumb: while in Utah, never possess marijuana or any other illegal drug because there is a good chance you may get searched, especially if you are on a Utah interstate like I-80.
]]> Officers usually search a car after they claim they "could smell marijuana", and many of our clients claim they were never read their rights. One client said, "Unless that cop had a bionic nose, how could he possibly have smelled the marijuana I had a in a suitcase in my trunk? It was less than a gram!" Many officers get away with this because those who are searched, and are "clean", typically do not sue - they are "just happy to get out of Utah".The police will often search the car for marijuana, cocaine, meth, or other drugs themselves, or have a drug drug-sniffing dog walk around the car. Many of our clients have told us that the dog did not "hit" on anything, but the cop said the dog did, so they got searched anyway. Evidence may be suppressed (in other words, thrown out of court) if that is the case.
Many clients say that they are often told if they cooperate, the cops will "go easy" on them, and just give them a ticket for the drugs. Often this lulls people into thinking the marijuana or drug charge they are facing in Utah is not serious, so they speak freely instead of invoking their right to an attorney and remaining silent.
Many feel that a cop should never say that because it is the prosecutor's job to determine what deal should be struck. But, out of fear, many people agree to being searched, even though the search may have been illegal if they had not given their consent. Some cops may even tell drivers that if they don't consent, the cop will "just get a warrant" - as if the warrant would simply be a rubber-stamp process by the judge.
Remember, it is not the officer's decision if a warrant will be issued, it is the judge's decision, and it is not a foregone conclusion that one would be issued. A cop simply cannot speak for a judge by law. So, if the cop told you what the judge was going to do, that may be a basis to have the evidence against you thrown out of court. A police officer should only give you his guess as to what the judge might do.
Many of our clients swear that they were pulled over "for no reason at all", and then the cops searched their car, illegally claiming they smelled marijuana. This happens all across America, not just Utah. Consider the case of Mr. Franklin, and what the Court said about the search:
Mr. Franklin admitted he did not remember how fast he was going, and got pulled over. An Officer Hall testified that he witnessed Franklin "commit two traffic violations".
The Court said "Hall also had probable cause to search Franklin's vehicle for drugs because he could smell marijuana smoke through an open window as he approached the car. This probable cause determination was bolstered by his use of a drug-sniffing dog, who alerted near the front of the car. A police officer who smells marijuana coming from a car has probable cause to search that car. See United States v. Wimbush, 337 F.3d 947, 951 (7th Cir.2003). And a police officer's use of a drug-sniffing dog around the exterior of a car is not an illegal search under the Fourth Amendment. United States v. Franklin, 547 F.3d 726, 733 (7th Cir. 2008).
So, what exactly does it mean to be free from an unreasonble search?
Recently, the Utah Supreme Court in State v. Martinez said this:
"The Fourth Amendment protects a person's right to be free from "unreasonable searches and seizures." . . . We recognize three levels of reasonable police stops: (1) An officer may approach a citizen at any time and pose questions so long as the citizen is not detained against his will; (2) an officer may seize a person if the officer has an articulable suspicion that the person has committed or is about to commit a crime ...; (3) an officer may arrest a suspect if the officer has probable cause to believe an offense had been committed or is being committed (emphasis added). . . .
"Before a police officer can effectuate such a seizure, he or she "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." . . . ("[I]t is settled law that 'a police officer may detain and question an individual when the officer has reasonable, articulable suspicion that the person has been, is, or is about to be engaged in criminal activity.' ... [T]he officer's suspicion must be supported by 'specific and articulable facts and rational inferences.' " . . . "A peace officer may stop any person in a public place when he has a reasonable suspicion to believe he has committed or is in the act of committing or is attempting to commit a public offense and may demand his name, address and an explanation of his actions." (emphasis added)). Such reasonable, articulable suspicion of criminal activity must be "based on objective facts." . . . However, "an officer is not obligated to rule out innocent conduct prior to initiating an investigatory detention." . . .
". . . The United States Supreme Court has further clarified the term "reasonable, articulable suspicion": The idea that an assessment of the whole picture must yield a particularized suspicion contains two elements, each of which must be present before a stop is permissible. First, the assessment must be based upon all of the circumstances. The analysis proceeds with various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers. From these data, a trained officer draws inferences and makes deductions-inferences and deductions that might well elude an untrained person. . . .
"The second element contained in the idea that an assessment of the whole picture must yield a particularized suspicion is the concept that the process just described must raise a suspicion that the particular individual being stopped is engaged in wrongdoing. ...
"United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981) (emphasis added). In other words, "some minimal level of objective justification for making the stop" is required-a level that "is considerably less than proof of wrongdoing by a preponderance of the evidence." United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (internal quotation marks omitted).
. . . [P]olice officers can rely on a dispatched report in making an investigatory stop," as long as "the dispatched report contain[s] articulable facts to support a finding of reasonable suspicion." . . . (determining police broadcast contained "other sufficient information ... and 'articulable facts' ... to support at least a 'reasonable suspicion' "). When the dispatched report is based on a call from an eyewitness, the officer is entitled to rely on that report so long as it contains sufficient articulable facts and the witness is reliable. . . .
"[The police must have "some minimal level of objective justification for making the stop." See United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989).
Pulling a person over when nothing illegal has happened is not constitutional under most circumstances.
]]>Here are the facts that the court gave:
"On April 22, 2003, the brother and the mother of Lance Horvath called police officers to report that people were smoking marijuana inside Mr. Horvath's trailer, which was located on his mother's property. When officers arrived about forty minutes later, the brother reported that he had personally observed people in the trailer smoking marijuana and warned that, although Mr. Horvath was away at the time, he kept guns in his trailer and had threatened to use them against the police.
At trial, the court denied Ms. Duran's motion to suppress the evidence found in the warrantless search. The court of appeals reversed, holding that although the odor of marijuana to which the officers testified gave rise to probable cause for a search, it did not create exigent circumstances that would justify their warrantless search of the trailer."
The Utah Supreme Court said:
"We decline to grant the aroma of burning marijuana a place on an exclusive, limited roster of exceptions to the requirement that a warrant be secured before a lawful search can occur. The Fourth Amendment to the United States Constitution guarantees "[t]he right of the people to be secure in their ... houses ... against unreasonable searches and seizures." As the United States Supreme Court has stated, "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." United States v. U.S. Dist. Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972).
"Accordingly, "searches and seizures inside a home without a warrant are presumptively unreasonable," even when officers have probable cause to search. Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)."
State v. Duran, 2007 UT 23, 156 P.3d 795, 797
By Greg Smith, esq.
]]>Can a person be legally insane one moment, then the next moment suddenly become legally sane? The Utah Supreme Court thought so in the 1999 case State v. Herrera where the defendant, Tomas Herrera, murdered his ex-girlfriend and attempted to shoot and kill his ex-girlfriend's mother and little brother.
When a trial was held on the matter, a psychiatrist, who had evaluated the defendant, stated to the court that Mr. Herrera suffered from schizophrenia that caused him to experience hallucinations. The psychiatrist asserted that, at the time of the murder, Mr. Herrera believed the Mafia had replaced his ex-girlfriend with a "nonhuman double" and, therefore, when the defendant shot the victim, he believed he was actually shooting something that was not a human being.
]]> For one to be found guilty of murder in the state of Utah, it must be demonstrated that the actor "intentionally or knowingly caused the death of another" (Utah Code 76-5-203(2)(a). However, if a defendant kills another, and he is then determined to have been insane at the time of the homicide, he could be found not guilty of the offense. Utah law could provide that the required mens rea, or criminal intent, could be lacking in this type of scenario.In Mr. Herrera's case, the court ruled that the insanity defense would apply in his situation because the defendant did not intentionally or knowingly shoot a human being because of the hallucinations he was experiencing. As a result, the court sentenced the defendant to be committed to the Utah State Hospital for the murder charge. If you think that's a good thing, you may want to think again. The State Hospital can keep a person indefinitely.
However, the psychiatrist also stated to the court that, in his opinion, when Mr. Herrera was shooting at the mother and brother of the murder victim, he was fully aware of the fact that he was attempting to kill two human beings. Based on this testimony, the court ruled that Mr. Herrera was not insane while committing attempted murder, even though his attempts to kill the two family members were carried out immediately after he had murdered his ex-girlfriend when he was deemed to be insane.
Therefore, the trial court ruled that Mr. Herrera was guilty two counts of attempted murder.
Mr. Herrera appealed the trial court's decision, arguing that the Utah law which establishes the insanity defense was unconstitutional. He contended that prior to 1983, Utah law allowed for the insanity defense to be used when it was determined that a defendant failed to appreciate the wrongfulness of his actions or was unable to conform his conduct to the law. In fact, the psychiatrist even expressed to the court that had this older law still been in effect, the insanity defense would have been available for the defendant.
This case eventually made its way before the Utah Supreme Court who examined the constitutionality of Utah's current insanity defense statute. The Supreme Court held that the law was not unconstitutional and that the trial court's rulings were to be upheld. As a result, Mr. Herrera was required to serve two concurrent terms of imprisonment of one to fifteen years for attempted murder.
]]>The Supreme Court has set forth a relatively clear standard to govern when an officer can or cannot do something.
The Supreme Court set forth the standard of "reasonable suspicion" in Terry v. Ohio. The standard was explained well by the United State Court of Appeals, Tenth Circuit, in Amundsen v. Jones. This case focused on when an officer can conduct field sobriety tests.
By Kyler Ovard
]]> 1. Can an officer do anything he wants if he has reasonable suspicion to make a stop?No. A valid Terry stop requires two things. First, the officer's actions to stop an individual need to be "justified at the stop's inception". For an officer's stop to be justified the officer must have a "reasonable suspicion, based on specific articulable facts, that a crime has been, or will be committed." So, this means that an officer cannot just stop an individual because he wants to talk; he needs more than that.
Second, the officer's conduct after the stop must be "reasonably related in scope to the circumstances that justified the interference in the first place." So, if an officer has a valid reasonable suspicion, that does not mean that he can ask you about anything-his questions and actions must be focused on what created the "reasonable suspicion." A practical application of this would be an officer asking an individual to step out of the car to perform field sobriety tests when he pulled the individual over for having a burnt out tail light, and did not smell alcohol. Such actions by the officer would exceed the scope of the stop.
2. Does an officer have reasonable suspicion, if he witnesses an automobile swerving in and out of traffic lanes, to conduct field sobriety tests?
Yes. The Tenth Circuit has held on several occasions that weaving in and out of lanes is "reasonable suspicion of driving under the influence". The court has held:
See United States v. Hunnicutt, 135 F.3d 1345, 1347-48 (10th Cir.1998) (holding that an officer's observations of a vehicle weaving between the center line and the shoulder line four to five times over a distance of approximately five miles created reasonable suspicion that the driver was under the influence); United States v. Botero-Ospina, 71 F.3d 783, 785 (10th Cir.1995) (holding that observations of a driver swerving from the outside lane, straddling the center line, and then swerving back to the outside lane gave rise to a reasonable suspicion that the driver was driving under the influence); United States v. Rodriguez-Pando, 841 F.2d 1014, 1017 (10th Cir.1988) (holding that a car that "mov[ed] from side to side," "left the paved portion of the road," and "weaved over the center of the road" created reasonable suspicion of driving while intoxicated). We have also held that drifting onto the shoulder twice creates reasonable suspicion of driving under the influence. United States v. Ozbirn, 189 F.3d 1194, 1199 (10th Cir.1999).
The practical application of the case law is that if an officer witnesses a vehicle swerving to the level indicated in the case law, and does not smell any alcohol, he still can conduct field sobriety tests.
3. Does any amount of swerving give an officer reasonable suspicion to conduct field sobriety tests?
No. The Tenth Circuit said the following: "There are limits, however, on the extent to which weaving can serve as a factor creating reasonable suspicion of driving under the influence. For instance, an isolated incident of crossing into another lane will not ordinarily create reasonable suspicion of driving while impaired."
The Tenth Circuit also said: "Nor will weaving within a lane, without more, ordinarily create reasonable suspicion of driving under the influence."
The Tenth Circuit has taken a reasonable approach to the creation of reasonable suspicion. The Tenth Circuit concluded that most people do not drive as their driver's ed teacher taught them to at all times. The Tenth Circuit articulated this thought by stating the following:
"Indeed, if failure to follow a perfect vector down the highway or keeping one's eyes on the road were sufficient reasons to suspect a person of driving while impaired, a substantial portion of the public would be subject each day to an invasion of privacy."
An officer does need much to have reasonable suspicion to stop an individual and perform field sobriety, however, they do have rules that they have to play by.
By Kyler Ovard
]]>Everyone has probably heard of self defense, and probably understands what it means. The general understanding is most likely something along the lines of: It was okay for me to hit the guy because he hit me first, and he was coming to hit me again.
There is another legal doctrine in Utah that gives someone a free pass to break the law that is not as widely known about as self defense, it is called: legal compulsion, and it essentially means that a person committed the elements of a crimes, but only committed them because he or she was forced against their will do so.
]]> Legal Compulsion in Utah is defined in Utah Code § 76-2-303. The section states:(1) A person is not guilty of an offense when he engaged in the proscribed conduct because he was coerced to do so by the use or threatened imminent use of unlawful physical force upon him or a third person, which force or threatened force a person of reasonable firmness in his situation would not have resisted.
(2) The defense of compulsion provided by this section shall be unavailable to a person who intentionally, knowingly, or recklessly places himself in a situation in which it is probable that he will be subjected to duress.
(3) A married woman is not entitled, by reason of the presence of her husband, to any presumption of compulsion or to any defense of compulsion except as in Subsection (1) provided.
Legal compulsion, in straight terms, means that if you are coerced to do an illegal act, by threat of harm, then you are not criminally liable for criminal act.
1. What does the case law say?
The Utah Court of Appeals in State v. Ott, citing, State v. Tuttle, put forth two elements that are required to be able to assert the defense of legal compulsion. The elements are:
1. the defendant must be faced with a specific, imminent threat of death or serious bodily injury, and 2) there is no reasonable legal alternative to violating the law.
So, legal compulsion is not a slam dunk. There has to be immediate threat, and no reasonable alternative to not breaking the law. The court continued by addressing what is required for the immediate threat requirement:
"the Utah Court has stated that "a threat directed to some indefinite time in the future is not an imminent threat" for purposes of the defense of compulsion."
The good news is that the law recognizes that there are situations were a person broke the law, but, it wasn't their fault. However, there must immediate harm, and no other reasonable alternative to breaking the law.
]]>So, often, a case will come down to the definition of a word, and a jury must decide what the plain and ordinary meaning of that word is. For example, assume you are accused of running a red light. The law says that you must be "in the intersection" before the light turns red, or your are guilty. Some people think half the car must in the intersection. Others, say, nope, if even one inch of the front of the car has passed the white line, you are in the intersection.
Have you ever been to the four-corners area of Utah, Colorado, Arizona and New Mexico? If so, you probably stood in the four states at the same time by just touching your toe on the spot where all the states met.
]]> This is why it is KEY to look up all words in a statute, and see how they can be applied. Because the legislature does not define most of the words that make up our laws, courts will look to a variety of sources for assistance. One such source is similar terms in different statutory sections. For instance, a court could look to a child welfare statute's definition to assist in defining a term in the criminal statute. The Florida Court of Appeals faced just such a situation in Burke v. State, 48 So.3d 943 (2010).In December of the year 2010 the Florida Court of Appeals reversed and remanded a Florida Circuit Court child abuse conviction.[1] The question on appeal was whether the evidence presented in the circuit court trial was sufficient to support a child abuse conviction. In particular, the appeals court had to determine if the evidence presented was sufficient to support the physical or mental injury component of the child abuse statute.
In Florida, a person can be convicted of criminal child abuse if they "knowingly or willfully abuse a child without causing great bodily harm, permanent disability or permanent disfigurement to the child." The statute describes child abuse as the "intentional infliction of physical or mental injury upon a child;" or "an intentional act that could reasonably be expected to result in physical or mental injury to a child."[2] However, the criminal statute does not adequately describe the extent of harm the child must suffer in order to support a child abuse conviction. Many of the terms used in Florida's child abuse statute are not defined. Because of this, Florida's Courts look to the child welfare statutes for guidance in defining the terms used in the criminal child abuse statute. Specifically, harm to a child's health or welfare can occur when a person inflicts or allows to be inflicted upon the child physical, mental, or emotional injury. In determining whether harm has occurred, the following factors should be considered in evaluating any physical, mental, or emotional injury to a child: "the age of the child; any prior history of injuries to the child; the location of the injury on the body of the child; the multiplicity of the injury; and the type of trauma inflicted." Such injury includes, but is not limited to willful acts that result in, for example, "sprains, dislocations, or cartlidge damage."[3] We run into the same types of issues right here in Utah, so it is important to have your attorney look at them all, and know how a court is going to define a word.
When the Florida appeals court considered the criminal statute, they, fortunately for the person accused, decided that the law required something more than mild or passing discomfort. They said, the defendant's acts of twisting the boy's arm, pressing him against his knee and holding him by the hair did not result in an injury or "harm" as described in the child welfare statute. The Court said the boy claimed only that his hair was injured, but he did not explain what that injury might be. None of the other witnesses mentioned his hair, and no one stated that his arm was even bruised. Simply, the State's evidence was insufficient to establish a physical injury.
The court went on to say the same was true for the "mental injury" component of the criminal statute.[4] They said the child welfare statute defines mental injury to a child as "an injury to the intellectual or psychological capacity of a child as evidenced by a discernible and substantial impairment in the ability to function within the normal range of performance and behavior.[5] They said, the boy was shaken-up and frightened by his father's behavior. However, the State presented no evidence that the incident resulted in an impairment of the boy's ability to function within the normal range of performance and behavior. Simply, the State's evidence was insufficient to establish a mental injury.
So, you can see why it is not a good idea to represent yourself. There are tests and definitions that the public may be totally unaware of.
Call Greg Smith and Associates of you have any questions.
[1] Burke v. State of Florida, 48 So.3d 943 (2010)
[2] Section 827.03(1), Florida Statutes (2007)
[3] Section 39.01, Florida Statutes (2007)
[4] Section 827.03(1), Florida Statutes (2007)
[5] Section 39.01(41), Florida Statutes (2007)
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