Natty Shafer Law

Utah lawyer for criminal and immigration cases

Tag Archives: Utah criminal lawyer


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Warrant Exceptions: Search Incident to Arrest

Most laypeople are vaguely aware that warrants allow police officers to search private belongings or property, and lack of a warrant can make a search illegal and render any evidence obtained inadmissible in court. However, there are so many exceptions to the warrant requirement that an officer can often find an exception. It sometimes seems as though the warrant requirement is no requirement at all. Today, I’m writing about one of those exceptions: the search incident to arrest.

When an officer arrests a person, the officer can search a person’s body to check for weapons or contraband. The rationale has been that officers need to protect themselves and they need to preserve evidence. The exception has a fairly long history. As Professor Orin Kerr showed, it goes back to at least 1914 and probably earlier. It is pretty well settled that officers can search everyone they arrest and the area within arm’s reach of the arrestee.

The problem comes with changes in technology and how intrusive such searches can be. We are in limbo as to whether or not police officers can search a person’s cell phone after an arrest. A police officer is allowed to remove the cell phone from someone they arrest, but are they allowed to open the cell phone and search for possibly incriminating evidence? A cell phone makes a poor weapon. Once an officer has removed it from a person’s possession, there is no threat of it harming the officer or of the arrestee deleting evidence. Unfortunately, the Supreme Court has not ruled on the issue of search incident to arrest recently, and lower courts are left analogizing new technologies to dissimilar objects from past rulings. Different courts are split on the issue. Neither the Utah Supreme Court nor the Tenth Circuit Court of Appeals have yet weighed in on the issue.

In United States v. Robinson, a 1973 case, the Court said that an officer could search a man’s pocket, which contained a crumpled up cigarette packet with heroin inside. As a result, some courts such as the California Supreme Court, have held that a cell phone on a person’s body is subject to search. A police officer, after a lawful arrest, can examine all of a phone’s contents without a search warrant.

It is not just the guilty who should be worried about this type of intrusion, either. Innocent people do get arrested, and there is a lot of personal information on a cell phone. I don’t know about you, but if an officer were so inclined, he could find a lot of embarrassing but not illegal information on my phone. I would not want a stranger poking around my text messages, call logs, appointment calendar, and pictures. Some people have even more sensitive information on their phone such as sensitive emails or trade secrets on their business phone.

Fortunately, there are other courts that have ruled differently, such as the Florida Supreme Court, and recognized that the rationale for this warrant exception does not apply to cell phones. Once an officer has taken a phone, the need to protect evidence or the officer’s safety is gone.

Until there is a ruling in Utah, it wouldn’t hurt to password protect your cell phone.


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Public Defenders in Utah

The Salt Lake Tribune had an opinion piece earlier this week that highlighted the need and problems with the public defender system in Utah. According to the article, 48 states fund and supervise the process for ensuring representation for the indigent. Utah is one of the two states that do not. Each county devises its own system for people who cannot afford their own lawyer. Many counties spend as little as possible on public defenders, meanwhile providing ample resources to their prosecution departments.

In Gideon v. Wainwright, the Supreme Court held that state courts are required to provide counsel in criminal trials for people who cannot afford a lawyer. Earlier this year, we celebrated the 50th anniversary of Gideon, but still Utah does not have a statewide system for defending the indigent.

It really is important that everyone be given a proper attorney and trial. It would be hard to overstate how important it is to have a competent attorney who has the time to dedicate to an individual case. Everyone in Utah should let their representatives know that they do not approve of the current situation.


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Prosecutors with Weak Cases

One the frustrating things about being a defense attorney is the presumption that prosecutors only bring cases when they are sure the defendant is guilty. Unfortunately, prosecutors just do not spend a lot of time pondering whether each individual defendant is guilty. Now an interesting study from earlier this year found that one of the predictive factors in having a case later overturned was the prosecutor having had a weak case. The study compared the overturned convictions with what they called “near misses,” or cases where an innocent defendant was indicted but released before a conviction. (To determine that the near misses were actually innocent, the study examined the evidence to see if the person was actually innocent.) Overall in the near misses, the prosecutors actually had stronger cases. This is counterintuitive as we usually expect weaker cases to be dismissed sooner and stronger cases to have a higher chance of conviction.

To explain this phenomenon, some explanations are more charitable than others. Among the more generous interpretations are that prosecutors, realizing the weakness of their case, prepare for trial better, or that this is merely a failing of the human mind. Prosecutors who indict in spite of a weak case must first convince themselves of the correctness of their position. That internal conviction “translates” well with jury, and the jury convicts because of the confidence of the prosecutor. A less generous interpretation is that prosecutors with weak cases take active measures to illegally withhold evidence from the defendant. They become so committed to proving the defendant’s guilt that evidence potentially exonerating the defendant is discounted. In some of the cases the study examined, the prosecutor failed to turn over exculpatory evidence.

Other possible explanations the study highlighted are that prosecutors might behave differently when they have a weak case. While the police and the prosecutor are still investigating, they often realize they need to shore up weak aspects of their case. In some of the overturned convictions, the prosecutor used a lineup based on a merely passing resemblance to the victim’s description of the perpetrator; some victims feel compelled to select someone out of a lineup, but once a victim chooses someone they are unwilling or unable to tackle the idea they may have made a misidentification. In some cases, the prosecutor used a snitch to provide corroborating testimony. (The word “snitch” has a specific use in terms of testimony. It refers to someone who is not an eyewitness, but that supposedly gets an accused person to confess or corroborate all or part of the case against them. For myriad reasons, such testimony is extremely unreliable. Often, a snitch will receive compensation in the form of a reduced sentence or better living conditions in exchange for testimony. Unfortunately, juries often give snitches too much credence.) These actions have the effect of confirming a prosecutor’s incorrect hunch about a case, and people love when their hunches are confirmed.

This is just one of the many reasons that defense attorneys frequently remind juries to hear all the evidence and evaluate it on its own terms. Prosecutors frequently are wrong, and, as this study suggests, sometimes more likely to obtain a conviction when a case is weaker. That is why juries must actually listen to the evidence presented and uphold their duty to find a defendant guilty only when they are guilty beyond a reasonable doubt.


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Juries Rarely Hear about Eyewitness Unreliability

There is a pretty big problem with alerting a jury about how unreliable eyewitness testimony is: the expense of hiring an expert witness. A defendant could agree with everything a prosecutor asserts except the identity of the perpetrator, but the defendant is going to need someone to testify about eyewitness unreliability.

Anything a lawyer says during opening or closing arguments needs to be supported at some point during the trial; a lawyer cannot just assert during closing arguments that eyewitnesses are extremely unreliable. To allow the jury to hear that information, a lawyer needs a witness, and it has to be an “expert witness.” The Utah Rules of Evidence, which are based on the federal rules, say that any witness testifying on scientific or specialized knowledge, and not on “the witnesses’s perception” (what they personally saw or heard), must be certified as an expert.

Expert witnesses are paid for their time, both in preparing for trial and they day of the trial. If they have to travel, it is normal to pay for travel expenses and food. How much an expert is paid depends a bit on their specialty. Rare specialties and specialties in which a person could be making a pretty good salary outside of court are paid more. Experts on eyewitness unreliability would fall into the “rare” category and are paid accordingly.

This has the compound effect of compromising their integrity in the minds of the jurors. When experts testify, they are routinely asked about the payment for testifying. Many are paid more than $100 an hour, and the jury may conclude the expert will say anything for that much money. Many lawyers decide it is not worth the price to tell the jury, especially if there are other arguments in favor of a not guilty verdict, and other defendants cannot afford the price regardless.


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It Didn’t Happen That Way

If there were a piece of scientific evidence that had a 30% failure rate, we would not let it into court. Polygraphs, which have been shown to be accurate between 90 and 95% of the time, are inadmissible. The justice system has decided that juries will give too much weight to the information. Yet eyewitness testimony, in study after study, has shown to have high error rates, but is not only let into court, it is frequently the determining factor in a jury’s decision.

The rules of evidence are quite complicated. The central rule is that the evidence has to be relevant. After that, most rules are designed to keep juries from letting the wrong factors determine their decision. In other words, the evidence is relevant, but due to human nature, a jury either will not hear it at all or a judge must carefully limit the evidence in order to prevent that particular piece of evidence from being the only thing a jury considers.

Studies have shown there is no correlation between how confident a witness is and how accurate their memory actually is. But a confident witnesses is a more believable witness, so prosecutors encourage witnesses to state a high degree of certainty to a jury.

Most people overestimate their own ability to remember things, and likewise overestimate other people’s memories. False memories tend to accord to our philosophy and world view. As a recent slate article put it, “The scary part is that your memories have already been altered. Much of what you recall about your life never happened, or it happened in a very different way. Sometimes our false memories have done terrible things. They have sent innocent people to jail.”


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Prosecutorial Discretion, Part 2: Plea Bargaining in the Modern Justice System

Part 1: Introduction

Justice is unbalanced.
Photo by “Frachet“

The modern day practice of prosecutors is to charge a defendant with every charge that could apply, and then drop several charges during the plea bargaining phase. It was not always so. Until about 1970, plea bargaining was a rare occurrence in the United States. When people were charged with crimes, prosecutors were expected to prove them before a jury. There were exceptions, of course, but sooner or later they had to go before a jury and make a case. This kept them in check. The more crimes charged, the more preparation to be done for a trial. Including weaker charges would allow defense lawyers to focus on those charges and suggest they were overzealous. Prosecutors probably care a little too deeply about their win/loss record for each charge in their jury trials. (They look at it like baseball stats, in a way.)

In 1970, the Supreme Court gave its explicit blessing to plea bargaining. Article III of the Constitution provides, “The trial of all crimes, except in cases of impeachment, shall be by jury.” Many legal experts were of the opinion that plea bargaining was unconstitutional. In Brady v. United States the Court said that plea bargaining is acceptable as long as the pleas are “knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” The number of cases resolved through plea bargaining jumped and kept on growing so that few cases make it to trial now. Today, prosecutors regularly agree to drop one or more charges in exchange for a plea, and judges have no problem with this.

This period of plea bargaining has also coincided with a systematic increase in prison or jail sentences. Legislators have decided that they want to be “tough on crime” so that sentences are about three times as long as they were fifty years ago. Combine this with an explosion in the number of crimes that are on the books and a person can be facing a very long sentence, indeed. As a result, many defendants feel coerced into taking a plea. Some prosecutors threaten to bring further charges or prosecute friends and family, if a defendant does not take a plea offer.


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Marijuana Use in Colorado or Washington; Ticketed in Utah

Live marijuana plant
Photo by Khalid Mahmood

A few weeks ago, voters in Colorado and Washington approved ballot initiatives that legalized smoking or otherwise consuming marijuana. In a few weeks, people 21 or older will be able to buy up to an ounce of marijuana for recreational use. While I have no personal objections to marijuana use, there are a few things to keep in mind before you plan a day trip from Utah to Colorado, or book a flight to Seattle.

First, marijuana use is still illegal under federal law, and the laws in Colorado and Washington don’t change that. Local law enforcement officials should be enforcing the laws of their states and not the laws of the national government, but it is still possible for federal agents to arrest a suspect and prosecute them in federal court. The punishments for federal crimes tend to be stiffer than the ones states impose. If you only purchase the small quantities that will be legal under Colorado and Washington law, you are unlikely to catch the attention of federal agents, but there is always the chance you will be an unlucky person snagged in a larger drug bust.

Second, you could get a DUI conviction here in Utah, even if you are no longer high or otherwise impaired. This can be shocking for many people to discover they can be prosecuted for something that did not affect their driving. THC—the active ingredient in marijuana—leaves behind small molecules in the blood that are detectable for up to two weeks. Anyone caught is subject to a DUI under Utah Code 41-6a-517, sometimes called a “metabolite DUI.” The punishments for a metabolite DUI are slightly different from a traditional DUI, but you’re still going to be facing some serious consequences, including the suspension of your driver’s license for 4 months.

That is not to say that you have no case if you are accused of a metabolite DUI. Police officers must have a reason for pulling you over, and must follow proper procedures before obtaining a blood sample. Inexperienced or careless officers often make mistakes or ignore constitutional rights. Having an attorney fight for you is the best way to get the best possible outcome for your case.


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Video Evidence Is Invaluable

More and more police cruisers in Utah are equipped with dash cams. Not every city in Utah has them, but almost every Utah Highway Patrol cruiser does. Each city varies a little on when they record. Some record all the time, others only when police officers turn it on, and others turn on automatically when the police sirens or emergency lights are engaged.

For me and my clients, I prefer if the recording is always active. There’s no chance of someone intentionally turning it off or forgetting to turn it on. Cameras that wait until a police officer turns on the emergency lights offer too little too late; a jury or judge can never see what caused the officer to pull someone over. Often a client in a DUI or drug possession type case contends that the police officer was never justified in pulling them over in the first place. People accused of driving under the influence are not often trusted by judges so when they say that they were not speeding or weaving, their testimony is given little credit. Incidentally, dash cams do not always work in the defendant’s favor, and they corroborate what the police officer reported. In those situations, the dash cam is valuable, because there is concrete evidence that everything the police officer is saying is true, and I can push for a defendant to take a plea instead of wasting time or money pursuing the case further.

The quality of the pictures continues to get better. It is likely that most people have seen dash cam footage on news broadcast or news magazines and had difficulty telling what is happening in the video. The low resolution, grainy videos give officers license to describe a video however they want. The officer can say, “It’s difficult to see, but right there, the defendant swerves.” All the judge or jury can see is a couple of taillights moving along the road, and the officer gets the benefit of the doubt.

High resolution videos today are better, and combined with microphones on many officers’ belts, we know exactly how a conversation between a suspect and an officer transpired. Even at night, the better cameras today clearly show the lanes, street signs, and other obstacles. Juries can clearly see that an officer is lying, or at least embellishing. Often an officer uses jargon in their police report. Almost every DUI report mentions a few things: the person smelled strongly of alcohol, they stumbled, they spoke slowly and slurred their speech. While we still can’t smell what the officer smells, the tapes sometimes show a lack of stumbling or drunken speech.


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“But I’m Innocent; I Don’t Need a Lawyer”

One of the more frustrating sentiments I encounter is the notion that innocent people do not need a lawyer. I see two major problems with the sentiment. First, the police and the prosecutor do not have special abilities to recognize who is innocent and who is guilty. Second, it presupposes that only guilty people ever get put on trial. Let us take a moment to examine each of these misconceptions.

The first misconception puts a bit too much faith in police and prosecutors to spot and recognize the truth. They are only human. They are also dependent on the process working correctly, despite being overworked and underpaid.

The police, most of the time, do not personally witness crimes and they have to rely on outside witnesses. Sometimes those witnesses are simply wrong, but some also lie to the police. (Many accused people are shocked that the police are unable to see a witness is lying.) Even when the police do personally witness crimes, they are susceptible to errors of perception and judgment. The police then write a report about what they saw and what they were told. Ideally, police reports are descriptive, accurate, and complete. Often the reports are full of jargon, containing the buzzwords they think the prosecutor wants, while leaving many important facts out. A prosecutor then relies on these reports in deciding who and what to charge. In Utah, prosecutors usually do not speak to witnesses, including the police, until it is time for trial or a suppression hearing.

The second misconception is a symptom of the first: it presupposes that prosecutors always know the truth and therefore if someone is on trial, that person is guilty. Most Americans are familiar with the concept of “innocent until proven guilty,” but jury surveys suggest people often ignore this central part of our justice system. Despite being told that they must weigh all the evidence, a majority of jurors decide to issue a guilty verdict simply because someone is on trial.

Jurors think that prosecutors only go forward with cases where the prosecutor is absolutely sure the defendant is guilty. Unfortunately, prosecutors do not have that much time to dedicate to individual cases. They spend a little time looking over the case file, and maybe a few minutes speaking to the witnesses, but not much more. And due to the high turnover in many offices, a different prosecutor than the one that initially decided to file charges or who appeared at arraignment may conduct the trial. In such a system, prosecutors have little time to ponder whether a defendant is actually guilty or innocent.

In many ways, people who believe they are innocent are prone to making their cases worse. They do not see the problem with talking to the police and believe they can convince the police of their innocence. If the police have arrested you, they already think you are guilty. Also, there are so many crimes now that it is easy to admit to doing something illegal. You are not going to talk them into believing you are innocent and you may even add new charges. The innocent, most of all, need a lawyer.


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Demystifying Miranda

There are many misconception about the Miranda warnings police officers are supposed to give suspects after an arrest. Television and movies have done a pretty good job of educating the public about what they say, but a pretty poor job of educating the public about when they are required and what happens if an officer doesn’t give a Miranda warning. Unfortunately, this means that the average person thinks they know exactly what the warnings require, but in all likelihood, they do not. Let’s take a look at each item, one at a time.

You’ve almost certainly heard the Miranda warnings at some point in your life. In Miranda v. Arizona, the Supreme Court laid out the information that a warning needs to contain: 1) a suspect has a right to remain silent; 2) that anything a suspect says can and will be used against them in court; 3) a suspect has the right to an attorney during questioning; and 4) if the suspect cannot afford an attorney, one will be appointed for them. Police departments and individual officers can vary the wording a little, but that basic information must be conveyed, and the suspect has to understand the information. That’s simple enough and your average person knows this already.

It a bit more complicated to determine when they are required. Some people I’ve encountered believe they are required whenever someone is arrested and others believe the police have to give them whenever they want to question a suspect. Neither of those things are true. The truth is that the police must give Miranda warnings when they want to question a suspect they have already arrested. If no one is under arrest or the police have no intention of questioning anyone, then the warnings aren’t required.

Just to be clear, Miranda warnings are only required when a suspect has been arrested and the police want to question them.

The thorny issue is when someone is actually under arrest. Obviously, if the police handcuff you and tell you that you’re under arrest, then you’re under arrest. But sometimes courts will find that someone was under arrest even though the police had not formally arrested the suspect at the time. This is done to keep officers honest so they can’t interrogate a suspect they were going to arrest anyway. To determine this, the courts will look at many factors, such as whether a reasonable person would feel they could leave. That’s why it’s a good idea whenever a police officer is questioning you to ask if you are free to leave.

Finally, let’s discuss the remedy. Many people are also under the mistaken notion that if someone wasn’t read the Miranda rights, then the case will be dismissed. This almost never happens. Instead, statements made to the police after arrest but before a Miranda warning are inadmissible in court. Often a prosecutor will build a case without using the incriminating statements, or the prosecutor will move forward with a lesser charge.