Tag Archives: seizure

US DOJ Announces Policy Change on Seizures, Limits Sharing with Local Cops

US Attorney General has announced that the Department of Justice will stop allowing local and state police from using Federal law to conduct seizures and forfeitures of property. More than $3 billion in property have been seized since 2008 in a program known as equitable sharing. According to the Washington Post: A Justice official, who spoke on the condition of anonymity in order to discuss the attorney general’s motivation, said Holder “also believes that the new policy will eliminate any possibility that the adoption process might unintentionally incentivize unnecessary stops and seizures.”

Agencies are still allowed to seek forfeitures under State laws. Florida has pretty broad forfeiture statutes. Florida authorities have and will continue to seize property, even after warrantless searches where no drugs or contraband are found. This just means the Federal Government decided to stop assisting and encouraging these and other local authorities.

From the Washington Post, via code3.jalopnik.com

More on the Police Practice of Seizing Property

Yesterday I discussed the growing practice of property forfeitures by law enforcement- even when there is not evidence to support an arrest, and how those seizures can be challenged. I was inspired by a video from John Oliver’s This Week, Tonight, that posted on Huffington Post. Yesterday, Forbes.com and Yahoo did their own article, also referencing the John Oliver video. Their article is worth a read, as well. And here is a link to the John Oliver bit, if you’ve got 15 minutes:

 

What Can You Do If Cops Take Your Stuff, Even If You Didn’t Commit a Crime

Law enforcement forfeitures are on the rise across the country. Cops see forfeiture as an easy way to enhance their bottom line, or to pick up some toys that they can’t otherwise get approved in their budgets. And in many State’s, the agency that does the forfeited often gets to keep the majority of the property seized, which sadly can incentivize some law enforcement agencies to be too aggressive in their seizure policies. The more they grab, the more they get to keep, and that’s a recipe for abuse of the system, especially because it is difficult to for people to fight the forfeitures. We’ve talked about the risk of abuse before on Crimcourts. John Oliver recently did a great take on the issue on “This Week, Tonight,” which is worth the 15 minutes to watch.

However, it is not impossible to fight a forfeiture. You have a right to challenge a forfeiture in court, and should talk to an experienced attorney right away. Cops will attempt a forfeiture even when the evidence doesn’t support it. They will claim a suspicion that a crime is being committed, based on their ‘training and experience’, and presumptively seize the property. However, a hunch isn’t enough to prove the case in court. The must demonstrate criminal activity by a preponderance of the evidence, and convince a jury of it. If the cops do try to seize your property, you should definitely exercise your right to fight the forfeiture.

Florida actually provides several different stages of challenging a forfeiture, and there are time considerations, which mean you should retain an attorney to help you as soon as possible. First, there are several technical filing requirements the state must follow before a forfeiture will be granted. The person who’s property is being seized has a right to a preliminary hearing, that means if they state is holding your property, they must demonstrate to a court why they should be permitted to hold it. And finally, the person has a right to make them prove their case to a jury at trial, and all of the defenses available on a criminal charge can be argued, as well as some particular to seizure cases. It can be a long, arduous process, but one that may be fruitful to follow through on.

If your property has been seized, you should contact me or another expereinced attorney right away.

Criminal Law  Attorney Spencer Cordell https://www.facebook.com/crimcourts

Criminal Law Attorney Spencer Cordell
https://www.facebook.com/crimcourts

A Lee County Deputy is Taking Heat for Snatching a Phone / Video

This hit the news a few weeks ago, but it recently came to Crimcourts’ attention. The YouTube video of the Fox 4 story is now up to more than 50,000 views, and multiple stories on PINAC, a blog dedicated to exposing government abuses of photographers.

Phone Footage, from Fox4.com

Phone Footage, from Fox4.com

A man, who doesn’t want his name released for fear of retaliation, was pulled over by LCSO deputies. He says he has been pulled over many times by law enforcement. He was lawfully carrying a firearm, and informed deputies as much. Deputies used a K-9  to conduct a a sniff (a “free-air search”) around the vehicle, and the dog reportedly alerted to possible contraband, though nothing was ever found. After he was pulled out of the vehicle, he decided to record deputies while they were conducting the search. One of the deputies approached him, said that he didn’t want him calling anyone, and took the phone out of his hand.

Before I continue, let me make it clear. The man was well within his rights to record the deputy. He was not doing anything unlawful. Attorney David Shestokas, who was quoted in the Fox story, is absolutely correct. The PINAC blog I mentioned above is dedicated to protecting the rights of individuals to record law enforcement. The Sheriff’s Office has acknowledged this on their Facebook page. Thanks to the proliferation of smart phones and other recording devices, we all get to be government watchdogs. Government officials often don’t like citizens watching over their shoulders.

The Sheriff’s Office has responded in a couple of ways to the media, and social media scrutiny, from this incident. Sheriff Scott wrote a response to Fox 4 reporter Liza Fernandez, which is posted in their online story about the incident. Subsequently, LCSO released a press release to “set the record straight” about the incident. I encourage you to read everything in full to better understand the incident. Bascially, LCSO argues 2 grounds to justify the seizure of the man’s phone, both centering on officer safety concerns. 1. That the phone may have been used to summon other people to the scene, and 2. That the cell phone may have been a firearm in disguise.

First, the deputy says on tape that his specific concern was that he didn’t want the man to call other people. That does not give him the right to take the phone. While the man may have been lawfully detained, and the deputies have have had cause to search his vehicle, they did not have a right to seize his phone, even temporarily. If this were sufficient justification, every time cops pulled somebody over, they could seize their phone. Nope. More than that, since he wasn’t under arrest or in custody, he would be allowed to call somebody. Moreover, he would have an absolute right to call an attorney, had he chose to do so. The seizure of the phone raises Sixth Amendment concerns in addition to First Amendment concerns. Also, the excuse utterly fails because the man wasn’t calling anyone, he was recording the search.

Secondly, the excuse that the cell phone could have been a gun is thin. The deputy on the video doesn’t think it was a gun, he expresses the other concern, that it would be used for a call. Fox 4 prety thoroughly broke down the concern over cell phone guns in their investigative piece. That said, if the deputy had a concern that it was a gun, WHICH HE DID NOT, that concern would not have justified taking the phone and turning off the recorder. IF there was a legitimate concern, such concern only would have justified briefly taking the phone to see if it was a gun. ‘What, oh… your taping on a smart phone which is clearly not a weapon. Sorry, he’s your phone back.’ Frankly, it is misleading to suggest the deputy took the phone because it could have been a weapon, because he is on tape stating otherwise.

The LCSO press release correctly points out that there are limitations and exceptions when law enforcement may legitimately seize a phone or to restrict recording. The irony is that NONE OF THE LISTED REASONS WERE PRESENT. Recording did not threaten the officer or interfere with his duties. The recording did not violate the law. The deputy was not holding it to obtain a warrant, nor did it hold evidence of a crime. In fact, the deputy limited the evidentiary value by turning a recorder off. Finally, there was no exigent circumstance (e.g. imminent danger or destruction of evidence) to support seizing the recording.

The individual in this case does not make himself more sympathetic by not being up front with the officers about his business. He should not have said anything, he is within his rights not to speak, but not to provide false information. However, that’s a red herring, because his lack of candor did not justify the seizure of the phone. David Shestokas suggests that it may have been a battery for the deputy to take the phone. I submit that the definition of theft in Florida includes temporarily depriving someone the use or benefit of their property.

The deputy was not legally justified to seize the phone, even if he gave it back after he completed his detention. Also, there is a Second Amendment concern with this encounter, because the deputies seized his firearm, albeit temporarily, to check to see if it was stolen. The fact that someone is lawfully carrying a weapon does not give the cops grounds to seize it. The fact that is getting lost in this whole debate is that the stop itself looks like a profiling and/or harassment stop. Why did deputies call in the dogs for a stop sign violation, unless they were playing a hunch on this guy? There might be more going on, but the actions sure look shady.

What I’d like to see in this circumstance is when somebody turns on a recorder, that a law enforcement officer says something like:  ‘Great! You can tape the encounter to see that I am legally justified.’ As it is, it’s troublesome that a minority of deputies (and officers) in Lee County have video recorders in their vehicles. It would increase the confidence in law enforcement if more citizen encounters were recorded. It would take guesswork out of hearings in the courtroom if there were more recordings. On the whole, recordings would help prosecutors, because motions to suppress would not be challenged on the word of the accused. This guy says he was being harassed, but a video could show that deputies were acting properly. I’m afraid this incident will encourage cops to grab phones all the time on some BS claim. However, I hope that our local law enforcement uses this as a teaching moment that people have a right to record, and that videos can be good for everyone, law enforcement included. You have nothing to worry about… unless you have something to hide.

Original Fox4 Story

British Authorities Accused of Intimidation for Detention of Journalist’s Partner

We covered the detention in the U.K. of David Miranda, the partner of a Guardian journalist who has been involved in the Edward Snowden leak. Now the British authorities are fending off tough questions about the detention, and a lawsuit has been filed to declare the action illegal. It should be noted that Miranda has not been charged, or even accused of any wrongdoing. However, he was detained, questioned, and threatened with incarceration over a period of eight hours by British law enforcement authorities.

NYPD’s Stop and Frisk Practice Challenged in Class-Action Suit

Right now the NYPD is on trial for civil rights violations for their stop and frisk policies. The question at trial is whether the police department unfairly targeted minorities for unlawful detentions and searches. Under the Constitution, we are protected against unreasonable searches and seizures from the government. Police are allowed to stop and pat people down (known as Terry stops) if they have probable cause to believe they are committing, are about to commit, or just committed a crime. Just because someone is a young man who happens to be a minority is not legal justification to detain otherwise innocent citizens.

nypdThe plaintiffs are claiming not only did the City frequently stop people without justification, but that they specifically targeted young, male minorities to stop and frisk without justification, strictly due to their age and race. The evidence is not merely anecdotal; among the witnesses that have testified include police officers who have indicated that there were quotas placed on them to issue citaions. The officers have brought in recordings from meetings with superior officers that appear to include specific directives to  target young male minorities. Officers have testified under oath that kids were being stopped for no reason. Plaintiffs have testified to being targeted multiple times without justification.

It is an affront to our Constitution that police officers would be so caught up in making arrests that they would step on the rights they are sworn to protect. The mindset in some law enforcement officers is that there are bad guys out there, and they are justified in what they do if they are pursuing those bad guys. However, except in circumstances outlined under law, it is inappropriate to infringe on the rights of many (perhaps a high percentage of the 5 million that have been stopped in the last decade) . Any stop that is not based on reasonable suspicion of actual criminal activity is a violation of someone’s constitutional rights. If it is proved that the NYPD deliberately ignored people’s rights through their policy, they are wrong, and should have to pay. That is the only remedy to prevent such illegal practices in the future.

The irony is that such policies may create greater challenges for law enforcement officers. The more innocent people who get harassed, the greater the distrust and resentment of law enforcement grows among citizens. That leads to greater difficulty in future enforcement efforts. The NYPD is vigorously fighting the allegations, saying their actions are lawful, and the city is safer than it has been in decades.

Perhaps, in light of the evidence, they should be scrutinizng their own policies. The money spent fighting the lawsuit bight be better spent hiring a PR firm to advertise a new NYPD that fights to protect the Constitution, and uses that as a springboard to rebuilding their relationship with the people they are sworn to protect. Admittedly, that would require admitting they did something wrong, which is harder for politicians than spending public money to defend themselves in court. It is much easier for politicians to claim to be tough on crime than to be perceived as not backing their police department, and bad cops go on hurting the reputation of the whole department, and cops everywhere.

Thanks to Aaron for alerting me to this story.

Brian Bigelow Arrest Update

Earlier, Crimcourts reported on the arrest of former county commissioner Brian Bigelow, and speculated that improper police action may lead to him beating the charges. I was relying on the NBC-2 story that indicated the officers blocked-in his vehicle when they first made contact with him. I have obtained a of the booking report filed by Fort Myers police, and the arresting officer claims that his vehicle did not impede Mr. Bigelow’s vehicle from leaving. To do so would demonstrate a clear detention and certainly create an illegal seizure issue. It is convenient that the cop put the exact language in his report that sounds like his actions are following the law! (My BS detector is on alert.)

Brian Bigelow

Brian Bigelow

However, the cop then indicates that Mr. Bigelow entered the vehicle and “attempted” to leave, and officers ‘made contact’ with he and his passenger. If he attempted to leave, and was prohibited from doing so by officers, a detention still exists. That’s a stop, plain and simple, and it is clear from the language of the officer’s report. The officer tries to say that he was acting suspiciously… but leaving to avoid contact with officers is not suspicious activity. The courts have repeatedly upheld that citizens have a right to avoid officer contact. Mr. Bigelow immediately requested a supervisor because he felt he was being harassed, and he may have a good case.

The officers also charged him with Loitering and Prowling, which is frequently a catch-all charge cops use to justify arresting someone when they don’t have a real case. For an L&P to be sustained, there has to be some real prowling-type activity, and it simply is not present in this case. Mr. Bigelow was picking up his friend who lived in that complex. He was lawfully parked in an apparently marked stall. That is clearly not an L&P situation, and again, his harassment complaint seems to have merit. Cops can’t just go around stopping and detaining people and making up their justification. Imagine if you were in your friends driveway, and suddenly a bunch of cops came up and started ordering you around. Assuming they didn’t find drugs in your pocket and throw you in jail, you’d be marching down to the police station to complain about being harassed. Mr. Bigelow still holds a strong chance of beating these charges based on the unlawful search and seizure by Fort Myers police.