Natty Shafer Law

Utah lawyer for criminal and immigration cases


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The Official Name of Presidents’ Day

Or is it President’s Day or maybe Presidents Day? As Hendrik Hertzberg explained a few years ago, it’s none of the above:

Ever since 1968, when, in one of the last gasps of Great Society reformism, holidays were rejiggered to create more three-day weekends, federal law has decreed the third Monday in February to be Washington’s Birthday….Just to add to the Presidential confusion, Washington’s Birthday is not Washington’s birthday. George Washington was born either on February 11, 1731 (according to the old-style Julian calendar, still in use at the time), or on February 22, 1732 (according to the Gregorian calendar, adopted in 1752 throughout the British Empire). Under no circumstances, therefore, can Washington’s birthday fall on Washington’s Birthday, a.k.a. Presidents Day, which, being the third Monday of the month, can occur only between the 15th and the 21st. Lincoln’s birthday, February 12th, doesn’t make it through the Presidents Day window, either.

So I hope you enjoyed Washington’s Birthday (Observed).


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Permanent Residents Can Legally Change Their Names

It’s incredible, but 11 years later, and even judges irrationally invoke September 11 as a means to enact their own agendas. A New Jersey parent requested, under New Jersey state law, to change the name of his daughter from “Honghong Zhan” to “Michelle Zhan.” According to the New Jersey appellate court, the judge denied the request, “without citing any specific statutory provision or case law” because “the federal ‘Immigration and Naturalization Control Act’ pre-empted state law on the issue of name changes, and stated his view that for security reasons, ‘the Country needs to identify who [is] here under the names that they have.'” However, as the appellate court noted in its reversal of the lower court, the name change process creates a paper trail of the name change.

Utah has a similar law to the New Jersey rule. Utah Code §42-1-1 through §42-1-3 and §77-27-21.5(20) governs name changes for Utah residents, and there is no requirement that the petitioner be a citizen of the United States. Unless the name change is requested for an illegitimate reasons—such as to avoid debts or commit fraud—residents of Utah are free to change their names. As Eugene Volokh noted, name changes can help immigrants Americanize, if that’s what they desire.


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Police Questions You Need to Answer

When you encounter a police officer, most of the questions he asks, you are not required to answer. This post is going to focus on the few questions that you need to answer. The rules vary a little from state to state, but the same general rules apply. In almost every state, including Utah, you need to provide police with your name and identification if you are involved in a traffic stop. You also need to provide proof of insurance. You can invoke your right to silence for all other questions, and if you haven’t been formally arrested police are not going to volunteer that you can remain silent.

Many states, including Utah, also have what are called “stop and identify” laws. If you are found loitering, or if an officer has reasonable suspicion that you are in the process of committing a crime, the officer may demand your name. If you are in one of the states with a stop and identify law, you are required to truthfully answer. Either refusing to answer or lying to the officer can lead to criminal punishment.

The Supreme Court has not recognized any other situations where the government can require citizens to answer police questions. After an officer’s initial questions establishing your identity, you should invoke your right to silence.


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Voluntary Police Questioning

Sometimes, police officers may want to question you before they arrest you. Such “voluntary” questioning can be problematic for a suspect because police do not need to give you a Miranda warning until arrest. However, the government will still use any incriminating statements made before arrest in court. The government does not have to provide an attorney for indigent individuals, and those that could afford an attorney might not realize they really should have one.

It’s a common misconception that anything said before a Miranda warning is inadmissible. For example, here in Utah, a friend of mine was with a group of people on a school playground late at night drinking alcohol. When someone spotted the police, everyone scattered. Some time later, an officer saw him on the street and asked him if he was among the people who had been drinking. My friend said that he was. When he represented himself in a Utah court, his admission was the key evidence against him. He tried to tell the judge that the officer never gave him a Miranda warning, but, of course, the judge didn’t care because he hadn’t been arrested when he said it. And my friend is the son of a (non-criminal) attorney.

It’s important that anyone detained by the police ask if they are free to leave. Police can only detain a suspect for a short time—not much more than the average traffic stop—before a judge will conclude that the suspect was in custody, and thus under arrest. When police officers say you are free to leave, you should take advantage of their offer. To circumvent Miranda, police will sometimes tell suspects that they are free to leave when they really aren’t. Judges are skeptical that questioning occurred under voluntary conditions, if, for example, the police arrest you immediately after you decide to leave. Courts examine whether the questioning constituted “custodial interrogation,” and the fact that someone was not formally arrested does not necessarily mean that police do not have to give Miranda warnings.

Suspects who haven’t been formally arrested need an attorney just as much as someone who has. As I previously mentioned, it is paramount that you speak to an attorney if you are in custody.


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Eyewitness Testimony and its Problems


The front of the TRAX train has lifted onto the curb

I took the above pictures last night at my regular TRAX train stop. At the station, I talked to a number of people who were on the train when the truck and the train collided. These eyewitnesses all said pretty much the same thing: the guy in the red truck ran a red light and got hit by the train; the truck spun around and smashed into the concrete; and the train driver slammed on the breaks.

That sounded like a convincing eyewitness description of what happened until I dug a bit deeper. Everyone I talked to, when I asked if they saw the accident as it happened or if they only felt it, said that they only felt the accident. One guy said he was reading when it happened and just felt the train slam on its brakes. And from personal experience, I can’t see the traffic lights when I’m sitting on the train. How did everyone come to the conclusion that the truck ran a red light?

There’s two possible explanations for this consensus of what happened, despite few having actually watched it. 1) Everyone was passing along information they got from one of the few people who actually witnessed it. 2) Everyone was doing a lot of “gap filling” in their knowledge of what happened. They took what they knew to be facts and made assumptions about what happened. These two explanation are not mutually exclusive and actually reinforce one another. The gaps in our knowledge are most easily filled through information from other people. But it’s entirely possible that no passengers saw the truck run the red light and everyone is relying on gap filling, and groupthink was convincing each person of the correctness of this narrative.

Most of the time, there’s nothing wrong with gap filling or using second-hand information; such mental processes help us function. Unfortunately, people are very poor about remembering where they actually acquired a piece of information. Once our brains come to accept something as fact, we completely forget that we didn’t actually see the train colliding with the car. Instead, we remember the event around the narratives we have each formed in our heads. Also, memory is affected by retelling, but we rarely tell a story in a neutral fashion. People add emotion and subtle details to the narrative to help it arrive at a conclusion.

This can be a big problem for lawyers who need to question witnesses weeks or even years after an event. Witnesses will tell the juries that they saw the truck run the red light, when they really didn’t, and they are not necessarily being untruthful when they do that. They really think they saw the accident the way they recount.

There isn’t an easy solution to the memory problem. The more we learn about memory, the more we learn how fallible it is. Eyewitness testimony has an appropriate place in our court system, but that testimony should be buttressed with scientific evidence.


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Off Topic: Super Bowl Still Using Roman Numerals

Sunday is Super Bowl 46, but the NFL insists on calling it “Super Bowl XLVI.” What’s up with that? I’m sure this was very avant-garde back in 1969, the year of Super Bowl 3, which was the first time the NFL called it the “Super Bowl.” Super Bowls 1 & 2 were contemporaneously called the “AFL–NFL World Championship Game” and retroactively renamed.

Anyway, it’s no longer cute, NFL, and I refuse to play along. Everyone else should give it a try. It’s liberating.


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Mormons’ Views on Immigration Less Friendly Than Their Church’s

You wouldn’t know it from hearing Mormon politicians discuss their views on immigration, but their church, The Church of Jesus Christ of Latter-day Saints, has a fairly pro-immigration stance. Mitt Romney, during a January Republican presidential candidate debate, said he favors “self-deportation,” which he described as making it difficult for undocumented aliens to find work, so they return home. Russell Pearce, also a member, was one of the sponsors and main advocates of Arizona’s strong immigration law. (Pearce has since been voted out of office through Arizona’s recall election procedures.) Jason Chaffetz, Utah’s U.S. Representative for the 3rd congressional district, has also been a vocal opponent of immigration.

The LDS Church, which includes a large number of immigrants among its members, has a friendlier stance. When Utah was passing its own immigration law last year, church officials decided to endorse the bill, after they ensured that the bill included “guest worker” permits to allow undocumented aliens with jobs to stay in the United States. The LDS Church also released a number of explicit statements in favor of allowing some undocumented workers to stay.

So why the dichotomy between official church position and some of its most prominent politicians? Any thoughts would be appreciated.


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More on the GPS Case

Professor Orin Kerr made an interesting point over at The Volokh Conspiracy: the Supreme Court did not explicitly state that police officers need a warrant to attach a GPS device to a car. On Monday’s post I said that police will need a warrant, but the Court’s decision stops short of stating that. The Court said that the GPS device constituted a “search,” which generally requires a warrant, but there are so many exceptions to that rule that lawyers frequently get them mixed-up.

However, in practicality, the police really will need a warrant. Neither prosecutors nor police officers are going to risk losing otherwise good evidence just to test the state of the law. It may be a few years before the Court resolves this issue definitively.


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Talking to the Police

Theoretically, people have the right not to talk to police. I say “theoretically” because there are many situations where that is neither possible nor practical, but for this post, I’ll focus on the times where you might not want to talk to the police and you have the realistic choice not to do so.

The most frequent scenario where you will encounter a police officer is during a traffic stop. If you think there’s a chance that the officer will let you off with a warning, you’re best off just politely cooperating with him. But assuming you want to fight the ticket or if there’s a chance he will find evidence of other crimes in your car, you don’t have to answer his questions. The first question an officer asks you, usually, is, “Do you know why I pulled you over?” An officer who asks this wants you to admit to a traffic violation, and also he wants you to start a “voluntary” conversation with him. Hand the officer your license and registration and politely tell him that you are not going to answer any questions. After he has taken your license and registration, ask if you are free to go. This makes it clear that you are not consenting to stay.

Also, he is likely to ask you if you mind if he looks around in your car. You can say, “no.” Police officers are not being polite when they ask you for permission to do something; they need your consent.

If you live in a urban or suburban area, police may come to your home to investigate a noise complaint. That can be anything from domestic violence to a raucous party. Officers commonly ask if it’s “okay” if they look around your home. You have the right to say, “no.” Even if you have nothing illegal to hide, I wouldn’t let officers look around my house for the same reason I lock my doors: I don’t want strangers going through my home.

Another common situation where you are likely to encounter the police is if you happen to be nearby when a crime has been reported in a public place, such as a fight in a bar. It’s entirely likely that you’ll want to cooperate with the police, but you may have legitimate reasons not to. Obviously, if you are at all connected to the crime, don’t answer any questions. You shouldn’t run away, but calmly ask the officer if you are free to leave. If you aren’t under arrest, she has to let you go. Always ask if you are free to go if you don’t want to answer questions.


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Supreme Court Wary of Newfangled Technology

In a case decided last week, United States v. Jones, the Supreme Court said that police need a warrant to attach a GPS device to your car and track everywhere you go for an extended period of time. The decision is most surprising for its unanimity—all nine of the justices agreed that the police needed a warrant—although the Court split on the reason why.

Generally speaking over the last couple decades, the Court has given law enforcement leeway to do what they want. In this case, though, the Court ruled that the police trespassed onto Antoine Jones’ property—his car—in order to attach a GPS device; the trespass was a “search” and required a warrant. In the past, the Court has rejected the argument that a trespass is a search.

Justice Scalia wrote the Court’s opinion, but he joined six other justices in rejecting that notion in a 1987 case. Apparently, hopping multiple fences, standing on private property, and shining a flashlight into a barn is perfectly okay for law enforcement, but attaching a GPS device to a car parked in a public parking lot is an unacceptable trespass. Personally speaking, a tiny GPS device attached to my car is way less intrusive than having multiple officers run around on my fenced-off property. I don’t think there is a way to reconcile these two cases. The Court just doesn’t trust new technology.

The Court has shown its reservations with new technology before. For example in Kyllo v. United States the Court reversed a drug conviction because the government used a thermal imaging device, without a warrant, to look at Danny Lee Kyllo’s home. The thermal imaging device in use didn’t reveal much private information. It just showed inchoate, shapeless blobs of heat. But the Court didn’t trust the newfangled device and said the government needed a warrant to use it.

Last week’s decision is good news for those of us concerned about privacy. The Court hinted it may have ruled the same way even if the police never attached a GPS device to Mr. Jones car. Because of advancing technology, the day may soon come where everyone can be tracked endlessly, without a trespass ever occurring. The company Google is nearly there right now, and if private citizens can do it, the government won’t be far behind.