A Delicate Balance

 

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The militarization of the police has been a hot topic recently due to terror attacks in Orlando and the shootings in Dallas and Baton Rouge. The police response to Orlando and Dallas made the police no longer look like police, but soldiers. They look like soldiers on a battlefield equipped with body armor, Kevlar helmets, sniper rifles, grenade launchers, armored vehicles, and the list goes on and on. Their appearance is far from the modest, uniformed, friendly peace officer that comes to mind. This uneasy evolution in the appearance of the police is not driven by a sinister need to militarize and oppress the population; rather it’s driven by the need to deal with the evolution of the threats they face.

Law enforcement has to walk a very narrow road when it comes to the gear and equipment they use. When a police officer is responding to a call looking like a soldier in Afghanistan, it makes us uneasy. We want our police to be safe, but we want them to look like police. They have to balance appearance and safety, and that can be difficult in today’s environment.

It would be easy to discount and criticize the militarization of the police without putting it in context. Most police officers like their role as police officers and not as soldiers here to keep order. They recognize that we can mostly govern ourselves. But, there are segments of society that take advantage of the low profile, relatively friendly nature of the police. When this happens, we depend on the police to be able to deal with these threats. In the Pulse nightclub shooting the police went from dealing with an active shooter situation to a hostage situation to a terrorist attack in the span of a few short hours. The police needed multiple tools and options to deal with that situation to quickly resolve it. We expect them to be able to stop a terrorist attack. We want them to track suspects that target police officers and apprehend them. We want the bad guy to get caught. Our American sense of justice is offended when drug traffickers and cartel members can operate with impunity because they can fight the police. However, after they are caught, we want peace and calm to resume with our regular uniformed police officer minding the streets.

Perhaps then the balance doesn’t reside exclusively with the police. We as citizens need to balance our tolerances for how the police conduct themselves and how we want them to look while doing it. A mutual understanding is needed. We need the police to understand that they can’t roam the streets with M-16s and armored vehicles on a daily basis and the police need us to understand that if they are to do their job safely and efficiently, sometimes an M-16 and an armored vehicle does the trick. It is important to remember that our police are our neighbors, and they are like us. They do not want to live in a police state anymore than the rest of us.

John Kruse practices criminal defense at the Reed Law Firm in Clermont, Florida.

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NO MORE SPAM FOR ME, THANKS….

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As you can imagine, our law firm is frequently called upon to give out helpful advice to consumers who are suffering from exposure to spam (unsolicited electronic communications, not the delicious deli treat….) We got the bright idea to collect the best free advice available on the web and pass it along to our readers. This information comes from so many sources on the web that we felt an individual credit was inadequate and so we simply thank all of the helpful bloggers out there who contributed to this blog; and you know who you are…So, here we go!

  1. Never make a purchase from an unsolicited email. By making a purchase, you may be encouraging future spam. Spammers will sell and re-sell your email address to any others that wish to buy them. You may encourage even more junk email. Worse still, you might end up the victim of a fraud. If you do not know the sender of an unsolicited email, simply delete it.
  2. Don’t use the preview mode in your email viewer. Many spammers can track when a message is viewed, even if you don’t click on the email. The preview setting effectively opens the email and lets spammers know that you are receiving their messages. When you check your email, try to decide whether a message is spam on the basis of the subject line only. Remember, spam may contain malware that damages or compromises your computer when the email is opened. Further, some malware will use your computer’s own collection of email addresses of your family, friends, and colleagues to send its code to them masking itself as an email from you. Make sure to use the bcc setting when adding the email addresses of people who have entrusted you with their email addresses to your emails.
  3. Don’t overexpose your email address. Avoid the following: a) Posting to mailing lists that are archived online, b) Submitting your address to online services with questionable privacy practices. c) Exposing your address publicly on social networks. d) Using an easily guessable address based on first name, last name and company. e)Not keeping your work and personal email separate
  4. Use email filtering software at your email gateway. You should run email filtering software at the email gateway to protect yourself from spam as well as email-borne spyware, viruses and worms.

Here is a look at some of the top spammers in the world! https://en.wikipedia.org/wiki/List_of_spammers

 

 

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Hobby Trojan Horse

The SCOTUS’ recent 5-4 decision in Burwell v. Hobby Lobby Stores, Inc. has stirred up public outcry, but most reviewers feel that political ideologues have created this controversy to serve their own agendas. In the majority opinion, Justice Alito held that certain requirements imposed by the Patient Protection and Affordable Care Act (PPACA) concerning contraceptives should not apply to “closely held” corporate entities whose owners’ religious affiliations prevent them from approving the purchase, existence, or use of same. So why do some pundits and lay people believe that the decision has hampered their rights to acquire these contraceptives on their own, outside of their employment? Why do some people view this decision as a slight against women by a paternalistic band of conservative justices?

pillsThe decision refers to “closely held” corporations, or corporate entities where more than half of the shares are owned by fewer than five individuals. This includes most start ups and small firms in the U.S., as well as Hobby Lobby. According to Justice Alito, requiring the owners of small corporations to obey the contraceptive mandate of the PPACA violates those owners’ rights under the Religious Freedom Restoration Act (42 U.S.C. § 2000bb). Under this section, even laws that don’t specifically deal with religious matters may still possibly result in a violation of the right to the freedom of religious practice sanctified by the Bill of Rights, specifically Amendment I. For such laws, the state must provide a compelling reason for their necessity, and the resulting incursion on religious freedom, something which was not done by the PPACA. However, by restricting their ruling to small businesses, the SCOTUS has indirectly stated that larger employers, the so-called “corporations” that some feel run the country, are not exempt from the law as stated. So the impoverished employees of Wal Mart, for example, will still have access to employer provided healthcare that includes coverage of contraceptives.

For this reason, I find it hard to view this decision as a major infringement on women’s reproductive rights. If the Court had ruled that women should not be given access to contraceptives entirely, then I would object to the ruling as an unjustified overextension of state power. By calling this a slight against women and a step backwards in progressive politics, dissenters are in fact claiming that their perceived right to government subsidized healthcare trumps the right to the free practice of religion of their employers. Unfortunately for them, one is seen as derived from the hubris of the state and the other a natural and, dare I say, inalienable right protected by the Constitution.

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A Reasonable Result

The SCOTUS has entered its ruling in the cases of Riley and United States today. If you read our post from April, or are otherwise familiar with these cases, you know they have to do with whether law enforcement must obtain a warrant before searching the digital contents of an arrestee’s smart phone. In an overwhelming 9-0 vote, the SCOTUS answered with a resounding “yes”.

passcode-lockDespite claims by California and U.S. law enforcement, the SCOTUS found that digital data does not pose any risk to officer safety, and should not be considered justified under a trilogy of previously decided cases dealing with searches incident to arrest. Concerns raised about suspects’ ability to wipe or encrypt data were dismissed as well, and countermeasures such as powering off the phone or the use of Faraday bags until such time as a warrant could be obtained were encouraged. Just as a warrantless romp through the rooms and drawers of a private residence was found unconstitutional in California v. Chimel, so also must be a warrantless romp through the digital nooks and crannies of a smart phone.

 

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The Devil in the Details

During the so called “Great Recession” (c. 2006-2009) our firm filed over 500 bankruptcy cases in Florida’s Middle District. During this time, I became aware of the fact that many of our clients who had applied for and received lines of credit with Best Buy were unaware that the contracts they signed gave the store a security interest in all of the items purchased with that line of credit (see example below or click here).

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For example, say you bought a $1,500 flat screen TV with your Best Buy credit card and were in the process of paying off the balance when you were forced to file bankruptcy. While you may be able to discharge the credit card debt, Best Buy retains a secured interest in the TV. At this point, most people wouldn’t have a problem offering to finish paying for the electronics they purchased on credit, however, often times problems would arise where clients had disposed of or transferred the products to another party, e.g., sold their digital camera to a friend before they were finished paying off the charge. You can see how in the latter case someone might be reluctant in agreeing to pay for goods they no longer had in their possession.

What this illustrates is the importance of understanding the terms of any contract you sign in the course of conducting your personal affairs. Read the terms carefully and if you don’t understand them, consult an attorney. Contracts should not be misleading or overly difficult for the average person to understand. Unfortunately, in many cases, they can be which requires signers to be vigilant and ask questions. If a person offers you a contract but is unwilling to explain its terms in plain English, DO NOT SIGN IT.

 

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Smartphones and the Future of the Fourth Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (Amendment IV)

The SCOTUS has just finished hearing arguments in the cases of Riley v. California and United States v. Wurie, two cases which both deal to varying degrees with the same question: Does a police search of cell phone records without a warrant constitute a violation of the Fourth Amendment?

In United States the state has taken the position that, since the 18th-century, it has been standard practice for police officers to conduct full searches of arrestees “including the examination of objects, containers, and written material,” that the Court’s rulings since 1914 have supported categorical search authority, and that a potential danger exists that if unlocked smartphones are not searched right away officers may not be able to recover the information they contain.

The Petitioner in Riley argues against this line of reasoning stating that “smartphones contain truly massive quantities of information – ‘the equivalent of [carrying in one’s pocket] the cabinets, desks, bookshelves, and bureaus in an 18th-century home,’ Br. of ACLU 6, as well as one’s entire office, library…random thoughts and wonders, and collections of medical, financial, and consumer records.” Further, that the state has intentionally interpreted applicable case law in a way that expands its search authority in ways never intended by the Court, and that there exist other acceptable means whereby police can ensure the data on the smartphones they recover is preserved (e.g., Faraday bags, placing the phone in “airplane mode”, et al.).

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Several interested parties have weighed in on these cases, most notably the Cato Institute, American Civil Liberties Union (ACLU), and the Electronic Frontier Foundation (EFF).

In its amicus briefs, the Cato Institute argues against the precedent of an “expectation of privacy” (Katz v. United States, 389 U.S. 347 (1967)) typically cited in these types of cases, and instead favors a close interpretation of the intention of the Founders and the specific wording of Amendment IV itself. Cato argues that the case law relevant to this issue often improperly conflates the meaning of the terms “search” and “seizure” when describing what law enforcement personnel do upon making an arrest, i.e., it views them as one and the same. Further, a smartphone is properly considered an “effect” under Amendment IV, and the files stored on them are “papers” distinct from the phone itself, which becomes a sort of digital filing cabinet.

In a similar fashion, the EFF has argued that because smartphones contain sensitive information that people formerly kept elsewhere (i.e., not on their person), the “search-incident-to-arrest exception” offered by the state is not applicable and cannot be used to support categorical search authority. The ACLU concurs that warrantless search of smartphones “undermines fundamental Fourth Amendment principles.” The ACLU demands a rule prohibiting such searches as opposed to previously accepted approaches which are considered vague and overreaching.

While the final outcome of Riley and United States remains unclear, what is clear is that these cases are a harbinger of the digital future that has arrived at our stoop and has, often without our knowledge or explicit consent, entered our lives in very invasive ways. But we should continue to have faith in the versatility of our founding documents and the profound minds wherein they originated, for while these individuals may not have been able to envision a world where many can conduct the business of everyday life—balancing their checking account, filing their taxes, updating their families about their current affairs, transferring money to friends, setting appointments with and transmitting medical information to physicians—all while riding a subway train to work, the promulgation of the Bill of Rights, and specifically Amendment IV, is evidence that they were certainly aware of the dangers present in allowing state authorities too much leeway in peering into citizens’ personal affairs.

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Breaking News! Straight from the Criminal Department of THE REED LAW FIRM.

The US Supreme Court recently released their opinion in Navarette v. California, 572 U.S._____ (2014).  It seems that the interest of public safety triumphs over individual freedoms again.

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Around 4 in the afternoon, a driver on Highway 1 in California called 911 to report that a silver Ford F-150 with license plate 8D94925 ran her off the road near mile marker 88. The whereabouts of the suspect vehicle were unknown, however, California Highway Patrol was notified. Officers spotted the vehicle on the highway near mile marker 69. Officers followed the vehicle for about 5 minutes before executing a traffic stop. Officers discovered bales of marijuana in the bed of the truck. The driver, Navarette, and his passenger were arrested and charged with transporting marijuana.

Navarette challenged the stop as a violation of the Fourth Amendment. The Court ruled, 5-4, that the traffic stop based on an anonymous tip did not violate the Fourth Amendment based on the totality of the circumstances because the officer had reasonable suspicion that the driver was intoxicated.

The dissent in this case is fascinating because it points out the problems of anonymous tips, specifically 911 calls, that have previously sunk prior cases. It also points out that the police took a report of irregular or hazardous driving and turned it into reasonable suspicion of DUI requiring a traffic stop. The practical application of this is that anyone can call and report an actual or fabricated careless or momentarily reckless driver and that will be interpreted as a drunk driver requiring the police to stop, detain, and investigate the driver without any verification of the anonymous caller’s story.

The police had an opportunity to verify the caller’s account, but their observations did not reveal any legal reason to conduct a traffic stop. Their reasoning came solely from the 911 caller. The court has potentially given the police a way to conduct a traffic stop despite any evidence to support a traffic violation as long as they are relying on information from an anonymous caller who says the “right” things.

Anonymous tips have always been treated with caution by law enforcement and the courts because of the inherent unreliability of the tips. Anonymous tips are measured by the courts by their inherent reliability only after the fact. This case reinforces the notion that the totality of the circumstances prevails, and gives the benefit of the doubt to the police instead of the people.

The police should be given the benefit of the doubt when it is warranted. They have to act in high stress situations and lawyers and judges should not always second guess those decisions. But this situation was factually different than those scenarios when the police must make a decision. The police were able to observe the truck on the highway for 5 minutes with no indication of intoxication or traffic law violation. Yet, the police were allowed to stop, detain, and search the vehicle.

The Court identified the totality of the circumstances as the basis for the reasonableness of the stop based on the anonymous tip so it is reasonable to think that this decision may be limited only to these specific facts. Sadly, that is not likely. Law enforcement is more aggressive and proactive than ever in seeking out criminal activity and they continue to seek ways to do so. This case aids them and allows them to detain citizens despite any evidence of wrongdoing

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The Zombie Apocalypse!

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Marketing ploy or real possibility? A short search of the internet shows that people all over the country are sleepwalking, driving, eating, dying, and even killing all without any memory of what they are doing. They are “Ambien Zombies”, and they are real.
Ambien, or Zolpidem as it is also known, is a commonly prescribed sleep aid. It causes people to frequently sleep walk, sleep talk, eat while sleeping, and drive while sleeping. While it may be embarrassing to wake up with crumbs all over you, or have your spouse ask you about a conversation you had with them in the middle of the night, it is certainly not dangerous, or criminal. But driving while on Ambien may be both.

A growing number of people have been arrested for driving while under the influence of Ambien. Florida law states that a person may be convicted of driving under the influence if they are in actual physical control of a vehicle and have a breath or blood alcohol level above .08 or under the influence of any controlled substance listed in chapter 893, Florida Stautes. Zolpidem is not listed in chapter 893. So does that mean if you are arrested while taking Ambien you’re in the clear? Not so fast.

If an individual follows the doctor’s advice while taking Ambien, then that is certainly a defense that can be used. That along with other evidence (like a .000 reading on the Intoxilyzer) may be used to defeat a guilty conviction. However, if it can be proven that the individual did not follow the prescription, either by consuming alcohol or taking more than the prescribed dosage, then a prosecutor might get a guilty conviction on a DUI charge.

It is important to remember that laws are sometimes slow to adapt to the times. Science and culture are always ahead of the law. The science of sleep aid and the cultural acceptance of such medication have advanced to a place well ahead of the legal regulations concerning them. It is not inconceivable, and indeed expected, that at some point the legislature will take up this issue of sleeping medication.

The Reed Law Firm stands ready to aggressively defend those who are charged with driving while taking Ambien or any other charge for that matter. The Reed Law Firm hopes everyone will follow the label on their prescriptions and leave the zombies to Hollywood. After all, zombies aren’t real, right?

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“Those Who Forget the Past are Condemned to Repeat it”*

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Recent news has drawn the attention of the news media and the political cognoscenti to the great state of Texas, where a local judge has ordered a hospital to untether a young mother from life support, despite the fact that she is carrying a child into the third trimester of pregnancy.  While the implications of this decision are enormous as a matter of Texas law, the effects in Florida are only a matter of casual conversation.  This news item is instructive, however, of our own similar story of national attention; recall the regrettable tale of Terri Schiavo, the St. Petersburg area woman who was caught between her parents and her husband in a battle to determine her post-mortem directives.

The crisis, you will recall, came to a head in mid-2005 when the utterly forgettable then-Senate Majority Leader Bill Frist came down to Florida to visit with Ms. Schiavo.  I use the word “visit” in the loosest sense of the word, because Ms. Schiavo was deemed by her physicians to be in a persistent vegetative state, kept alive only by artificial ventilation and nutrition.  Perhaps incredibly, Senator Frist stated categorically that Ms. Schiavo was “alive” and that he could perceive something of her consciousness by looking into her eyes.  The crux of the conflict was between her parents, who wanted her alive, however artificially, and her husband, who wanted her to die naturally.  The reason this nightmare scenario even came to pass was because of the unfortunate timing of her passing.

Terri Schiavo was the victim of a complete cardiac shutdown in 1990 that put her in a coma and kept her in that persistent vegetative state when she was a mere 27 years old.  Like most 27-year-olds, Terri did not have any written plans regarding the disposition of her health and assets in the event that she died or was near death.  She designated no health care surrogate.  She had no living will.  She didn’t grant anyone power of attorney.  She had no last will and testament.  From the time her husband filed his petition to terminate her life until she finally passed away, seven years had elapsed, owing to the numerous petitions filed in state and federal court.  Had she validly executed health care directive paperwork, her tragic personal story would not have become a years-long legal fiasco.  The Reed Law Firm is happy to take on the important task of handling your “end-of-life” preparation, even if your end-of-life seems quite far off into the future.  When we consider the story of Terri Schiavo, it is important to remember another favorite adage: “There’s nothing gained from putting off till tomorrow that which you can do today.”

*Quote attributed to George Santayana

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Okay, So Now You Want to Buy a Car

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Some weeks ago, my daughter-in-law decided to buy a car to replace the “old reliable” she had been driving for the last couple of years. The “old reliable” was a pitch black Mercury Sable with 200k+ miles on it. So, you know, it was due to fall apart at any moment. Upon revealing her intentions, she was immediately assailed by a variety of helpful folks giving her much homespun wisdom on the topic.  I added my voice to the group, but later, I thought that this might actually be a good blog topic. After I realized that this topic has been very widely discussed, I then decided to proceed anyway and I gathered up enough reliable information for a good start. So, here goes…

The first important question that I came up with was why replace your existing car? (Just kidding…) How do you intend to pay for your car? This is an important question since it will no doubt affect the decision making process. If you intend to pay cash for your vehicle and do not absolutely have to obtain a new vehicle, then I strongly suggest you consider attending a private auction of repossessed vehicles. These auctions occur on a regular basis and careful bidders are usually rewarded.  Most auctioneers display the auction vehicles in advance and bidders have sufficient time to look up the values of each item on the NADA website, KBB website, or any other trusted source.    Often, one finds cars is relatively good condition and the winning bid is rarely more than the market value of the vehicle, and more often, it is considerably less.  (I suggest you bring a three-day temp. tag with you which can be obtained from the local tag agency for $10 or so since most auctions require you to drive your “prize” off the lot once you have paid for it.  You will have to pay tax on the title transfer so consider that cost when bidding).

If you prefer the dealerships, then familiarize yourself with the available inventory each dealer has. Pay a visit and bring a reliable friend, but DON’T BRING your purse or wallet! You are just looking…the less time you have to think between shopping and buying the more likely you are to make a mistake.  If you are looking for a foreign car, go to a domestic car dealership and look at its trade-ins (You can bet they want to move those ASAP). Likewise, if you want a domestic, go to a foreign car dealer (same rule applies in reverse).  Remember: the less attractive the color of a car, the more savings may be obtained in the deal.

If you are going to finance your purchase, then give your local bank a try first.  Look at and make a note of the retail values of the cars you wish to buy. Put a loan amortizer app on your phone.  Run a copy of your own credit reports (which can, once yearly, be obtained for free from www.annualcreditreport.com) and look ‘em over. If there are mistakes on the reports, bring those to the attention of the credit reporting agencies so they can be removed. Mistakes are expensive! Then, take your reports, last six months of pay stubs, tax return from last year (or W-2), and have your bank loan officer look them over.  First advise the bank loan officer to not run your credit until after the two of you have discussed likely terms of the loan.  Most bank loan officers can discuss potential loans and their terms without running your credit.  This will allow you to use your amortizer app  to see what your expected car payment will be before you go any further.  If your bank officer declines, then get up and leave. There are other banks (and you may consider moving your banking business to them as well). Once you have a good idea of the terms of the loan, then you may wish to seek “pre-approval” of your potential financing.  Banks are different, but sometimes pre-approval will result in the bank giving you a conditional check for the loan that is good for thirty days for use at the car dealership.  If you do not use the check and return it to the bank, the loan never occurs.  Once that is accomplished, then you may compare the conditional deal you made with the bank with the various financing offers that you will hear at the dealerships.  WARNING: make sure to be clear with the car salesman and/or finance manager that YOU DO NOT WANT THEM TO RUN YOUR CREDIT until they have told you all the terms of the potential financing and you have double-checked their offers with your amortizer app. Make sure you will have an affordable monthly payment if you have decided to go with the dealership’s financing partner and not use your bank check.  Do yourself a favor and try to keep your monthly car payment at, or below, approx. 20% of your gross monthly income.  The exquisite agony of dealing with a car salesman is too intense of a topic to include in this blog so, if there is general interest out there, I will handle that topic at another time.  Happy Hunting!

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