Crime Rate Dropping??

According to the Tennessean, Nashville crime has fallen to its lowest level in thirty-one years.  Though I hate to be a naysayer, I wonder about the reliability of the statistics as reported.  Some of you may already be familiar with COMPSTAT, a statistics based approach to crime fighting employed famously in the fictional Baltimore Police of HBO’s The Wire.  Although I was generally a big fan of that show, I initially laughed at the two-dimensional plot-line involving the police:  A bully police chief fools the city into believing that crime is dropping by manipulating his computer program to spit out the stats he wants, all the while slashing the police budget by focusing resources on arresting street-level dealers (also called users) rather than engaging in real police work, i.e., fully funded, long ranging investigations which would  target high-level traffickers.  I thought the plot was absurd, because I thought no self-respecting city, which I know Baltimore to be, would (a) fall for such a buffoon of a police chief, or (b) give up its real police work to inflate statistics for short-term political gain.

Then I found out that the Metro Nashville Police Department had engaged the COMPSTAT program in its war on crime, which left me wondering where the similarities ended.  If you believe the Nashville Police Chief, and his press release repeated in the Tennessean, Nashville crime is low.  However, this recent New York Times article, in which retired police officers admitted that police officers, and even detectives, manipulated statistics under enormous departmental pressure, makes me question:  is crime really down?  Doesn't feel like it to me.  For a more thorough discussion of the reasons behind a more precipitous crime-rate drop, see Understanding Why Crime Fell in the 1990s: Four Factors that Explain the Decline and Six that Do Not by Steven D. Levitt

United States Supreme Court issues “Miranda” decision.

As the New York Times reported the U.S. Supreme Court has just issued an opinion approving a “watered-down” Miranda warning. In Florida v. Powell a 7-2 majority accepted this warning:

“You have the right to remain silent. If you give up the right to remain silent, anything you say can be used against you in court. You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview.”

The Florida Supreme Court believed that this warning did not meet the standard set by Miranda v. Arizona as it failed to inform the defendant that he had the right to an attorney present during questioning. Justice Ginsburg disagreed, and writing for the majority found that “A reasonable suspect in a custodial setting who has just been read his rights…would not come to the counterintuitive conclusion that he is obligated, or allowed, to hop in and out of the holding area to seek his attorney’s advice. Instead, the suspect would likely assume that he must stay put in the interrogation room and that his lawyer would be there with him the entire time.” Further, reiterating prior precedent: “The four warnings Miranda requires are invariable, but this Court has not dictated the words in which the essential information must be conveyed.”

The danger of this decision is not the slightly different language it accepts—it would appear highly unlikely that the modified warning would lead to large numbers of confessions. However, this opinion opens up a gray area between what a “reasonable suspect” may “assume,” and what a reasonable police officer is required to advise. The danger lies in how far future courts may stretch this gray area, and how reasonable they may expect defendants to be in their assumptions.

Great Search Warrant Case: Single Sale Alone is Not Enough for Nexus

With regularity, search warrants allowing police to search a home after someone engages in a single sale at the home, and nothing more, have been upheld despite arguments to the contrary. The problem, of course, is that that single sale does not indicate whether drugs would be located at the home in the future. Thus, previously, if a houseguest engaged in drug activity at your home, police believed that they had the right to search your home without having any reason to believe drugs were located there. After consistently raising this issue for years, I am thrilled that the Court of Criminal Appeals has spoken on this issue in a case from Division V of the Davidson County Criminal Court. Finally, we have a Tennessee case that supports the proposition that a single sale, with no other facts indicative of drug activity at the location, does not provide the requisite nexus to justify the issuance of a search warrant.

In State of Tennessee v. Robert Lee Archibald, Jr.,2010 WL 521030 (February 12, 2010), the Court of Criminal Appeals affirmed the trial court ruling granting Mr. Archibald’s motion to suppress and stated:

Although the affidavit in this case contained information establishing a nexus between the Defendant's apartment and criminal activity, it contained no information tending to establish how long that nexus would persist. It did not, for instance, contain any facts supporting an inference that the person who sold drugs to the CI was more than a one-time visitor to the apartment. Likewise, it did not establish that the CI observed any drugs other than the drugs he bought. Under these circumstances, we must conclude that the information in the affidavit became stale as soon as enough time had passed for such a one-time seller to leave the apartment.

State v. Archibald, supra, *2.

I am willing to bet that there are cases pending based upon evidence seized as a result of unconstitutional search warrants similar to Mr. Archibald’s. Check your search warrants my friends and file those motions to suppress.

Woo, hoo!!!!

Drug Court Needs YOU

From Nicole Young in Today's Tennessean. Judge Norman's highly successful, unique and revolutionary program is apparently at risk. We cannot put into words how much this program means to our clients.


DC4 drug treatment program may run out of funds

"A highly successful drug treatment program in Davidson County is in danger of having to close its doors because of a lack of funding.

DC4, short for Davidson County Drug Court Developing Character During Confinement, is a sentencing alternative for drug addicts, helping them to overcome their addictions instead of putting them behind bars. It opened 13 years ago, expanding to include a pilot program for methamphetamine users and, later, treatment for mentally ill addicts.

More than $600,000 in federal stimulus funds helped the program meet its $1.7 million annual budget last year. But those funds will soon be gone, said program founder Davidson County Criminal Court Judge Seth Norman.

"We usually get about $500,000 from the state," he said. "I feel certain that we can get some kind of funding from the state this year, but I'm not certain if it will be that much. With the shortage of funds, there is always the threat of us shutting down."

In an effort to stay afloat, Norman is planning a trip to Washington, D.C., next week to drum up support in Congress.

If DC4 closed, all of the inmates housed at the 108-bed facility on County Hospital Road would be sent to prison, where there's no drug treatment.

Eighty-five inmates call DC4 home, and treatment works. Only 35 percent of inmates fail to complete the program and are sent back to prison. Last year, 58 inmates graduated, and more try to get into the program every day, said Jeri Thomas, director of the facility's nonprofit funding agency. Currently, there is a waiting list of 15.

"It's frustrating because I know we have room for everyone," Norman said. "Right now, there are two meth addicts in Bradley County who want to come here, but I can't do that when there's a possibility that we could run out of money in June."

Greetings!

We three lawyers here at Bell, Tennent & Frogge have started this little blog as a way to communicate our passion for representing the accused. To start, here is a list of some questions and answers that come up frequently for us. Enjoy!

Do I need an attorney even if I am innocent?

Yes. The Government, as represented by prosecutors and police officers, is generally in the business of arresting people and obtaining convictions. Despite what they might say, they are generally not in the business of helping you if you are accused of a crime. Some police officers even have special training on "obtaining confessions." They rarely want to hear your side of the story, and if they do, it is because they think it will help them convict you. Sometimes police have even told suspects that a lawyer is unnecessary if someone is innocent, in hopes that the suspect would give them enough information to make a case against the suspect. Always ask to speak to a lawyer before speaking to police.

Can the police just stop me for no reason?

No. The Fourth Amendment to the United States Constitution and its corollary in the Tennessee Constitution forbid unreasonable searches and seizures. Generally speaking, there are three levels of interaction between police and the public: (1) a consensual encounter, (2) a brief investigative stop, or (3) a custodial arrest. A consensual encounter is any interaction in which the suspect consents, like a casual conversation on the street between an officer and a member of the public. For the police to conduct an investigative stop, the police officer must have a suspicion that a crime was or is about to be committed, and that officer's belief must be reasonable. During this investigative stop, if the police also have a reasonable suspicion that the person is armed, the police may "pat-down" the person's clothing to make sure the person is unarmed. Police are not allowed to conduct a full-scale search during this stop. For a full-scale search or arrest, police must either have a warrant or probable cause to believe that a crime was committed and that the suspect committed it.

Are the police allowed to search my car after they give me a citation?

Generally not. A citation is an alternative to an arrest. Technically, when a person is given a citation, they are not under arrest, so the search that goes along with an arrest is not allowed.

Should I get a Public Defender?

If you cannot afford to hire a lawyer, the answer is an unequivocal yes. Because most public defenders work in only one court or jurisdiction, they are often uniquely qualified to give advice about the courts in which they practice. Also, people who become public defenders usually do so because they are highly committed to helping people with limited financial means. Indeed, depending on the jurisdiction, jobs at public defender's offices are often highly competitive, attracting the best lawyers and law students in the country. Unfortunately, however, public defenders are only for people who cannot afford a lawyer, so if you can afford a lawyer and you are being investigated or charged with a crime, you need to hire a lawyer.

Should I take a breathalyzer test?

You should know that if you fail to take a breathalyzer test after the police request one, Tennessee law mandates that your license will be suspended, regardless of whether you are ultimately found guilty of the DUI. If you have not been drinking, taking the test is often the easiest way to show the police that you are not intoxicated. However, machines are not foolproof, and a bad result on a breathalyzer test can sometimes make it very difficult to obtain a good result in court.

The police did not read me my rights. Shouldn't my case be dismissed?

Miranda v. Arizona is a famous case in which the United States Supreme Court held that before a confession is admissible in court against a suspect, (1) the police must have informed the suspect that he has a right to counsel and to remain silent, and (2) that the suspect must have intelligently, knowingly and voluntarily waived those rights. However, this only applies to custodial interrogation. In other words, Miranda only applies to those suspects who are in custody and who are being questioned. It does not protect statements made to private citizens, and it does not apply to statements that are not made in response to questioning. Even if the police violate Miranda, the violation usually only invalidates the statement itself or any fruits thereof, not other evidence that the police obtained independently of the statement.

The victim wants to "drop the charges." Will my case be dismissed?

Prosecutors handle thousands of cases each year, and victims who want to "drop the charges" are not novel. While it is true that lots of cases are dismissed because witnesses fail to appear, it is also true that lots of cases are prosecuted anyway. If a victim tells a prosecutor that he fabricated the charges, the prosecutor might simply not believe the victim and try to proceed anyway. This can be difficult, but not always impossible. If a victim becomes uncooperative, a prosecutor may try to prosecute the suspect without the help of the victim. Often, in domestic violence cases, prosecutors believe that victims don't know what's good for them, and they will try to prosecute cases despite the victim's wishes to the contrary.

Can I get a new judge?

Usually not.