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Natty Shafer Law Video on Renewing DACA

The video below briefly explains the process for renewing Deferred Actions for Childhood Arrivals.

 
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Posted by on July 9, 2014 in Immigration Law

 

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Cell Phones Are Private, Supreme Court Says

The United States Supreme Court issued a ruling today which requires law enforcement officers to obtain a search warrant for most searches of a cell phone. While the Court left open the possibility of officers conducting a cell phone search during “exigent circumstances,” the ruling in Riley v. California means officers cannot casually peruse cell phones.

The ruling was unanimous, which is a bit of a surprise for me, but this is a pretty big victory for champions of privacy rights. Often the Court refuses to protect the rights of those accused of crimes, but cell phones have becomes so ubiquitous that the Court could not ignore that cell phones are now among our most personal possessions. “Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse,” the Court said.

Many phones now contain more personal information than anyone has in any one location, including our homes. As the Court said, cell phones are not just phones. “The term ‘cell phone’ is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone.”

This ruling does necessarily guarantee that police officers will never look through your phone, but it does make such evidence generally inadmissible during criminal court proceedings. Anyone who has been subjected to a cell phone search should contact a lawyer about various options.

You can read my previous posts on the subject of cell phone searches here and here.

 
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Posted by on June 25, 2014 in Criminal Law

 

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Standard Operating Procedure

The home of former Utah attorney general Mark Shurtleff was the subject of a search warrant earlier this week, as various law enforcement agencies investigate alleged wrongdoing. Shurtleff accused the agents of “Dirty Harry” tactics on a local radio broadcast yesterday.

Shurtleff’s accusations are short on specifics, but what he does describe is not out of the ordinary. The officers were armed and wearing body armor. Shurtleff says they took his children’s computers and the memory cards from his wife’s camera, and that they trashed his house. It is standard operating procedure for law enforcement officers to be armed while on duty, and they are not careful about keeping a house orderly and clean when executing a search warrant. They confiscate anything that could hold relevant information such as computers or memory cards.

“I think if they’ll do that to me, with my entire life and career in service to law enforcement and public safety, they’ll do it to anybody,” he said. In today’s world, having a search warrant executed on one’s home is traumatizing. Imagine if Shurtleff had come to this realization when he was in a position to do something about it.

 
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Posted by on June 4, 2014 in Criminal Law

 

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When the ‘War on Drugs’ Affects the Wealthy

NPR reported today that U.S. Customs and Border Protection’s Office of Air and Marine Operations will alter its policy that has led to private aircraft pilots being searched, sometimes at gunpoint, by law enforcement officers.

How Customs and Border Protection (CPB) will alter its policy is not yet clear. Currently, CPB operate a tracking center, which monitors privately operated flights. They look for patterns that suggests drug transportation, such as taking an alleged drug route or flying in a manner that evades radar. When they find suspicious activity, CPB can alert law enforcement at the flight’s destination. Unfortunately, various law enforcement officials have used that information to aggressively search the planes of anyone suspected.

Tom and Bonnie Lewis love to fly airplanes so much that they live in a residential airpark near Fort Worth, Texas, where their garage is a hangar.

Two years ago, they packed their bags, loaded them into the airplane, and took off for Nashua, New Hampshire, to visit their daughter and her family. Mid-route, they stopped at an airport in Frankfort, Kentucky, to refuel and spend the night, when they noticed that a small jet had landed directly behind them, with no radio communication.

Four federal agents shouldering assault rifles scrambled out of the jet and surrounded the Lewis’s little two-seater plane, asking for IDs.

“Asking where we’d been, basically checking us out,” says Tom Lewis. “It didn’t take them too long to figure out they had grandma and grandpa that were taking a trip to New Hampshire to visit the grandkids.”

When the Constitution conflicts with the aims of the War on Drugs, the Constitution frequently loses. CPB acknowledges that in 68% of the cases this year where law enforcement was notified, no illegal activity was found. The NPR story quotes Eddie Young, a deputy assistant commissioner at CPB, as saying, “A 32-percent success rate is not bad in the law enforcement community.” That Mr. Young could soberly make that defense of the old policy is more than a little appalling. For the innocent 68%, the trauma of being searched at gunpoint is apparently an acceptable cost of the War on Drugs.

Assuming the policy is in fact changed, it will be because most pilots are more wealthy and influential than the average citizen. Most people just have their complaints ignored when law enforcement officers violate civil liberties.

 
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Posted by on May 28, 2014 in Criminal Law

 

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Deferred Action Fee Exemption

Most applications for a deferred action cost $465 (which includes an $85 biometric fee), but for some, it may be possible to avoid paying those fees. USCIS is careful to say that they do not offer a “fee waiver” for deferred action applications, but instead only offers a “fee exemption.” The difference probably does not matter to the average person. In effect, it means that instead of submitting the usual fee waiver form, each applicant sends a letter explaining the reason they believe they are eligible for an exemption, along with documentation to support the claim. Such documentation should include proof of annual income along with other documents proving the specific exemption.

The applicant then waits for approval of the exemption, and then, after approval, submits the application for a deferred action along with the exemption letter from USCIS.

There are three stated reasons that a person may be granted a fee exemption for a deferred action and all of them require that the applicant earn less than %150 of the U.S. poverty level, which is recalculated each year.

    1. The applicant is under 18 years of age and homeless, in foster care, or otherwise lacking any family support.
    2. The applicant suffers from a serious chronic disability and consequently cannot care for themselves.
    3. The applicant, at the time of the request, accumulated $25,000 or more in debt in the past 12 months as the result of unreimbursed medical expenses for themselves or an immediate family member.

Anyone who qualifies for an exemption is in a desperate situation. Some attorneys would be willing to accept your case pro bono or at a discounted rate, and it would be worth talking to attorney to make sure it is done correctly.

 
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Posted by on May 20, 2014 in Immigration Law

 

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Renewals for Deferred Actions for Childhood Arrivals

Immigrants who successfully applied for the Deferred Action for Childhood Arrivals (DACA) program soon after it went into effect in August 2012 will soon have their paperwork expire. The terms for both the deferred action and the accompanying employment authorization document are for 2 years. That means the first approvals will expire in late summer and early fall. USCIS is in the process of designing the renewal paperwork for deferred actions.

First, the bad news. It appears the filling fee is going to remain the same. It will cost $465 to file, regardless of whether someone is renewing or applying for DACA the first time. Applicants will also have to submit the same three forms that were submitted the first time: I-821D, I-765, and I-765WS.

Now, the good news. Applicants will not have to resubmit the supporting documentation. Only a handful of documentation should be necessary for applicants who have had no new criminal charges and have not been in any removal proceedings over the last 2 years. Also, USCIS is assuring immigrants that most applications will be processed in under 120 days (about 4 months).

It is worthwhile for applicants to prepare in advance, resubmit their paperwork, and ensure that there is no interruption in their eligibility to work.

 
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Posted by on May 15, 2014 in Immigration Law

 

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Court Will Soon Clarify Cell Phone Searches

Tomorrow, the Supreme Court is scheduled to hear oral arguments in two cases that will decide the extent law enforcement officers can search a person’s cell phone after an arrest. I have written about this issue before, and about how much sensitive data most people keep on their cell phones. Once the Court issues its ruling, we will know where whether our cell phones are really private.

People put embarrassing and deeply personal information on their cell phones, but most data files do not relate to criminal acts. The couple depicted in the commercial below probably would not want anyone looking through their cell phones. If the Court allows it, police departments will routinely copy all the information from seized cell phones and upload it to a database for permanent storage. Government officials could peruse the data whenever it suits them.

The capabilities of cell phones allow for nearly unlimited personal information to be stored. Some smartphones now hold 64 gigabytes of data. Right now, phones have enough space to store thousands of personal emails, pictures, videos, and text messages simultaneously, and data storage capacity increases each successive year.

If the Court rules that an arrest does not necessarily justify a search of a suspect’s phone, the police will still have the option to request a warrant. With electronic warrants, it is possible to issue a search warrant within a couple of minutes. The importance of this is that you have a neutral judge deciding whether there is probable cause to search the phone. Otherwise, we will have police officers fishing for evidence for each person they arrest, and the private lives of everyone will be a little less private.

 
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Posted by on April 28, 2014 in Criminal Law

 

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Anonymous Tip? Enough for a Traffic Stop

A Supreme Court decision came out today, and it now appears the police can pull over anyone with just an anonymous tip. The case, Navarette v. California, involved a tip from an unknown caller describing the truck and license plate of the defendants.

The driver in this case drove perfectly, at least while the police observed. An anonymous caller alerted 9-1-1 dispatch that a truck had allegedly run her off the road. Concerned about possible drunken driving, police located the truck and followed it for five minutes, but they failed to observe a single traffic violation. It is extraordinarily difficult to drive perfectly for five minutes. The police usually can find a traffic violation to pull over a vehicle, but they did not find a single reason. They pulled over the car anyway. But the Court said that is fine.

This should concern anyone who drives or rides in a car. The Court has put the threshold for pulling over someone at a very low point. Someone can now identify your car and allege some sort of traffic violation, and you may be pulled over. This gives license for anyone with a grudge to use the police to harass. Jilted exes, disgruntled coworkers, or stalkers need to allege something, and the police can make a traffic stop, and detain the unfortunate victim. The Court’s rationale hinged on the fact that 9-1-1 calls can be traced, but if no one is motivated to investigate, callers will remain anonymous.

 
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Posted by on April 22, 2014 in Criminal Law

 

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Sorcery and the Law

You think it’s just memorizing a bunch of spells and throwing them at him, like you’re in class or something? The whole time you’re sure you know there’s nothing between you and dying except your own—your brain brain or guts or whatever…

—Harry Potter, chapter 15, Harry Potter and the Order of the Phoenix

Most people have a decidedly magical view of lawyering. Speak the right Latin phrase and—presto!—the judge rules in your favor. A police officer fails to give you a Miranda warning and—abracadabra!—the charges are dismissed.

The law is magic.

Lawyers are wizards.

People ask me for ways to handle their own case. For myriad reasons, this is a bad idea, but the biggest reason is that most people have no idea what to expect in court. They do not even know the reason for their next court date, let alone what they are supposed to do once they get there. They say, “if you just told me what to do, I’ll save myself a lot of money and you can save yourself the the hassle.” If only it were so simple. This is the simplistic view that Harry Potter says people have about magical duels. There is more to lawyering than just muttering a Latin incantation to a judge, and nothing is simple once you get to court.

In truth, it would be easy to give a naive client a plan A for when they get to court, but they will also need a plan B, C, and D. Whenever the client is throwing “incantations” about the law, the other side is throwing them right back at you. Anyone unprepared will lose a case that they could have won. Nearly any case can be lost through bad lawyering. There are many rules of the courtroom that are not forgiving to the uniformed. For example, if someone fails to object in a timely manner, the law considers the objection waived. Miss a crucial objection and it will sink the case and its appeal, too. Knowing how and when to make objections is something that takes years of study and practice.

People often think that because they are innocent they do not need a lawyer. A proper resolution to a criminal case can take months or even years. This is no less true for those who have a good case for defense and are factually not guilty of the crime. There is no way to quickly teach someone how to fight a case.

People think they can show up to the arraignment, and (Perry Mason style) the judge will see how wronged they have been, and the charges will be magically dismissed. Even if you have a good issue for suppression, you have to know when and how to raise the issue. In my experience, laypeople are bad at even identifying issues for suppression and do not know what will happen even if they win. Sometimes, a prosecutor can proceed with charges without the piece of suppressed evidence.

For so many reasons, it is best to hire a lawyer. Let them do their magic and fight the battle for you.

 
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Posted by on April 17, 2014 in Criminal Law

 

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Bootleg Video Renews Debate about Cameras in Supreme Court

On ongoing debate among Supreme Court observers concerns whether or not the Supreme Court should allow cameras into the Court. “Debate” might not be the right word since no one seems to be making a strong case for the opposing argument. The consensus among observers is that the Court should allow cameras, and the Court seems not to care. It just quietly continues to forbid cameras in the courtroom.

Last month a youtube video emerged (shown below) which appears the be the first video of the Court in session. This has rekindled the old argument. Professor Erwin Chemerinsky is the latest to take up the mantle. His argument essentially is that open government proceedings are a necessary part of a functioning democracy.

I cannot disagree with Chemerinsky, but this will likely decrease the public’s estimation of the Court. For the most part, the way the Court operates is a mystery. Most decisions are ignored, but occasionally there is an important case that catches the public’s interest. At those times people seem to care most about the outcome of the case and not necessarily about the reasons the Court made its decision. Idealistic notions about the Court will end once everyone sees the behavior of individual justice. It is only a matter of time until a justice is lampooned on late night television for an impolitic jab made during oral arguments.

That is not to say that I am necessarily against cameras in the courtroom. Perhaps the public could use a little healthy distrust of the Supreme Court.

 
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Posted by on March 19, 2014 in Miscellaneous Legal

 

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