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Is It an Illegal Search for Police to Listen to Calls and Read Emails?

Jul. 11th 2014

Is It an Illegal Search for Police to Listen to Calls and Read Emails?

 A core principle in our laws is that all searches, including those of cell phones, emails, and phone conversations are unreasonable, unless the search or invasion is conducted by a valid warrant. This was upheld in a recent U.S. Supreme Court Decision n Riley v. California.  If police listen to your phone call or read your emails without a valid warrant it is an illegal search. It could also be an illegal search if the information used to support probable cause for the warrant was obtained from an illegal source. Meaning, if the information contained in the warrant is based on an illegal search or illegal eavesdropping, the warrant fails and thus the search and anything found after the search is inadmissible or the government cannot use it against you.

Even in light of the new ruling, there is evidence that law enforcement agencies are disregarding the warrant requirement and conducting illegal searches.  Advances in technologies allow the government to search, listen, and record conversations without leaving much of a footprint this is not to say that the conduct if valid.  It just  means it is extremely difficult to discovery an illegal search. Many police officers justify this illegal search and violation of the Fourth Amendment as getting the “bad guy.”   The problem is this leads to sloppy and lazy police investigation that puts the entire case at issue for dismissal.

Police agencies and prosecutors have obtained legal warrants that resulted in convictions for years without issue.  Thus, the warrant requirement does not prohibit police investigations, arrests, or convictions. It is our protections against unreasonable contact and illegal search by the government. It also protects our First Amendments rights to privacy.

Warrants Requirements

An officer must develop probable cause to believe that continual criminal activity is on going. Based on a sound and legal investigation the officer then presents this evidence to a judge. If a judge believes that probable causes exists to issue a warrant, then the officer may listen in to phone calls, read email, search a cell phone, or computer.

If obtained, a warrant must be specific, limited in scope, name the items to be searched, and based on probable cause otherwise it could result in an illegal search.

What are Your Rights?

You have a Fourth Amendment Right to be free from unreasonable governmental conduct. You have a right to privacy in your things, belongings, and home.   This does not mean all conduct is prohibited but only that which is unreasonable.   The justification for a surveillance policy for the National Security Administration is not extended to all law enforcement agencies. Meaning local cops do not have the right to listen in to phone conversations, read your emails, and/or other surveillance methods. This does not mean to say that it is not happening, what it means is that if it does your rights were violated.

This post seeks to give information on warrants and governmental searches and seizures.   For more information or to discuss your specific case, please contact us directly at (303) 747-4686 or click CONTACT US.

 

 

 

Posted by Laurie Schmidt | in Assault, Uncategorized, warrant | Comments Off on Is It an Illegal Search for Police to Listen to Calls and Read Emails?

Domestic Violence Arrest and Charges in Colorado

Dec. 2nd 2013

Some common defense to domestic violence charges in Colorado

You may think that just because the cops came out and eventually arrested you for a domestic violence related charge that you may not have any defenses available.  After all, the cops came out, took statements, arrested you , and took you to jail.   The cops could not have gotten it wrong, correct?  NOTHING COULD BE FURTHER FROM THE TRUTH.  As a domestic violence defense attorney – there are many outside factors and investigative issues that will affect who is arrested and potential defenses that may be available.  This post is meant to be an informational guide to domestic violence arrests.  For more information or to review your specific case, please contact us directly at (303) 747-4686.

Not a fair and impartial investigation

Once a person calls 911, the information stated in that call is automatically transmitted to the officer BEFORE they arrive on scene.  So, if someone calls and says that a person assaulted them, the officer hears this information and is already thinking that the other party is at fault, even before they arrive. This means that when the officers say, “I’m just trying to see what happened” or get the full story, it is not true.  The officer is simply trying to build a case against the person he or she thinks is at fault – based on the first information they get.  This is before they talk to any witnesses or parties involved.

Officers often do not understand their role or mistaken belief of the law

Many officers will say that any time, regardless of the facts, if the officer responds to a domestic violence call it requires them to arrest someone. This is completely false and just shows that the officer does not understand the law and/or his or her duty in law enforcement.  Often times, the cops will actually apologize for arresting a person – but try to hide behind a statute and police policy that is not understood.  It does not mean that the prosecution will not file criminal charges against you, it means that you will be arrested, spend time in jail, and have to defend the charges.

Reporting party untruthfulness

A person who called the cops could have made up what happened or minimized his/her involvement in the fight – in order to get the other party in trouble and/or arrested. There could be many different motives for this type of behavior ranging from anger, revenge, to gaining an advantage in a custody hearing.  This is not a reason for the government to drop the case against you- even if the other person does not want to press charges.

Self-Defense

Sometimes a defense to the charges is that you acted in defense of yourself, your property, or another person.  This can be a strong defense to the charges and should not be overlooked by your attorney.  This defense can be used if your conduct was to restrain a party from harming themselves or others.

Report party or victim not desirous of prosecution

Often times, when tempers subside, the alleged victim and/or reporting party may not want criminal charges to be filed against the other person.  Even if this wish or want is communicated to the cops and/or prosecuting attorney- charges would most likely go forward.  Many government attorneys feel that any time a person is arrested for domestic violence, he/she must receive a punishment.

Any arrest or charge of domestic violence can be devastating for you and your family.  This is not the time to try and navigate the criminal justice system.  Your future and reputation can be called into question and may be at risk.  Contact a domestic violence attorney to represent you and fight for your vindication.

Thank you for visiting our post on Domestic Violence Defenses – contact us directly for more information at (303) 747-4686 or by clicking here.

Posted by Laurie Schmidt | in arrest, Assault, Domestic violence | Comments Off on Domestic Violence Arrest and Charges in Colorado

Act in Self-Defense in Colorado; but still being charged with a crime?

Jul. 1st 2013

Act in Self-Defense; but still being charged with a crime?

Even if you believe that force, deadly or otherwise, was justified, that does not mean that you will not be charged with the crime.  Many times if the use of force was or was not justified is a question for the jury.  This is what the Zimmerman trial is about, did Zimmerman act in self-defense.  The jury will be asked to make that determination.  That’s why it’s important if officers try to question you regarding an assault, battery, or homicide, you can and should have an attorney present.  This post seeks to educate you on the Colorado Self-Defense Laws.

If you or a loved one are accused of a crime, don’t wait – contact us today for a free consultation at (303) 747-4686.

When Can I legally use Self-Defense

Colorado Revised Statute 18-1-704 allows the use of physical force in order to defend you or another from what is a reasonable belief that the other person will use or has used physical force against you or another person.  The amount of force allowable is what is reasonably necessary under the circumstances.

Deadly force may only be used if you reasonably believe that a lesser amount of force is inadequate and

  1. you or another person is in imminent danger of being killed or suffering great bodily injury OR
  2. the other person is using or appears about to use physical force against the occupant of a dwelling or business establishment while committing or attempting to commit a burglary or kidnapping, robbery, sexual assault, or assault.

Some common misconceptions about the use of self-defense in Colorado:

  1. If the physical force is a result of mutual combat (a fight) self-defense is not an affirmative defense to the charges
  2. The person provokes the other person to use physical force and then claims acted in self-defense
  3. The party claiming self-defense cannot be the initial aggressor

How is Self-Defense Asserted

  1. First a DA will review the investigation done by the officers to determine if the use of force was justifiable or not.  If it is determined by the DA that the use of force was NOT justified under the self-defense statutes, than the person will be charged.
  2. The Affirmative defense of self-defense can be used during a jury trial.  The jury will determine if the person acted reasonable given the testimony that is heard.
  3. If the circumstances show a justification for the use of force; but not enough to use it as an affirmative defense, it may still be considered by a jury.

This is not a general legal concepts.  There are elements and sub-elements to this type of defense, if you or a loved one are being charged with a crime of violence, please contact us directly at (303) 747-4686 or click contact us.

 

 

Posted by Laurie Schmidt | in arrest, Assault | Comments Off on Act in Self-Defense in Colorado; but still being charged with a crime?

Arrested for Felony Assault in Colorado – important information you must know

Jun. 28th 2013

If you are arrested for felony assault in Colorado, there are many questions that you probably have and information that you must know.   Beside facing potential felony charges- you also face a crime of violence.  There is a range of severity in assault charges in Colorado, depending on the facts and circumstances of the incident, you could be charged with a misdemeanor assault or a felony assault.  If the DA will charge you with a felony assault or misdemeanor assault will usually depend on the injuries to the other party and if there is an allegation of weapons.  This post seeks to educate you on Felony Assault charges.

Felony Assault – potential punishment

First Degree Assault – or felony assault charges are typically a class 3 felony.   If convicted of first-degree assault or felony assault, it could be considered a crime of violence and can include mandatory sentencing provisions pursuant to Colorado Revised Statute 18-1.3-406.  This section could require the judge to sentience a person to prison for at least the midpoint but no more than twice the maximum of the presumptive range.  For a Class 3 felony, the presumptive range is 4 to 12 years, which means if the first degree assault or felony assault is labeled a crime of violence you could face 8 to 24 years in prison.

If the first degree assault or felony assault is committed under circumstances that can show the act was performed under a sudden heat of passion, caused by a serious and highly provoking act by the victim, which affected the person accused of the assault and without any delay in provocation and injury is a class 5 felony and not considered a crime of violence.

Felony Assault – collateral consequences

A felony assault conviction has consequences beyond a potential prison sentence.  It can impact your family, your career, your freedom and rights.  A felony conviction may result in a loss of voting rights, guns rights, and potentially parental rights.

Potential Defenses to Felony Assault or First Degree Assault

There are defenses that could be used to defend a felony assault charge.  The most common defense is self-defense or defense of others.  These are very specific defenses – if you can claim self-defense depends on the facts and circumstances of your case.  An experienced criminal defense attorney can review the facts of your case to determine if you can assert self-defense.

There can be situations where a true self-defense argument cannot be claimed, but mutual combat and/or provocation from the victim can be used to defend the charges.

If you or a loved one are accused of felony assault or first degree assault, contact us today at (303) 747-4686 or by clicking here.

Posted by Laurie Schmidt | in arrest, Assault | Comments Off on Arrested for Felony Assault in Colorado – important information you must know