Rarity: Habeas corpus granted on a IAC Fourth Amendment claim where the Indiana Court of Appeals was found to have unreasonably applied the Fourth Amendment in finding that defense counsel was not ineffective for not addressing defendant’s pro se issue that the search of his wheelbarrow was unreasonable. It was unreasonable to conclude that defendant would not have prevailed on the search issue. [A really interesting case.] Gentry v. Sevier, 2010 U.S. App. LEXIS 4030 (7th Cir. February 26, 2010):

As explained above, the record reflects that the searches performed by the officers at the scene of Gentry’s arrest were unconstitutional and there is thus no indication that a motion to suppress evidence resulting from such searches would have been futile. See A.M. v. Butler, 360 F.3d 787, 795 (7th Cir. 2004) (stating that “[i]f there was no underlying constitutional violation, a motion to suppress would have been futile and counsel could not be viewed as ineffective for failing to present such a motion”). We recognize that trial strategies are generally left to the discretion of counsel and second-guessing strategic decisions in hindsight will generally not be a meritorious basis to find ineffective assistance of counsel. See, e.g., Smith v. Gaetz, 565 F.3d 346, 352-53 (7th Cir. 2009). However, in this case, the decision by Gentry’s trial counsel not to seek to suppress evidence based on a violation of Gentry’s Fourth Amendment rights is beyond the pale of an objectively reasonable strategy. The application of the fundamental principles of Fourth Amendment case law to Gentry’s situation should have been apparent to his trial counsel. The record does not indicate that any strategic benefit would have been accorded to Gentry by his trial counsel’s failure to seek the suppression of the evidence. Gentry even brought the suppression issue to the attention of his counsel by filing a pro se motion to suppress and yet, even then, his counsel failed to attempt to suppress the evidence. Gentry has shown that he received ineffective assistance of counsel and that he suffered prejudice. The record does not reflect what evidence could have been used to convict Gentry excluding the garage door opener, the identities of the residents, the stolen items and the evidence found in the wheelbarrow. We conclude that the Court of Appeals of Indiana unreasonably applied Strickland v. Washington, 466 U.S. 668 (1984) to the facts in this case.

. . .

For the above stated reasons, we conclude that the Court of Appeals of Indiana unreasonably applied federal law when the Court determined that the evidence concerning the search of the wheelbarrow was admissible and held that Gentry’s counsel’s performance did not fall below an objective standard of reasonableness.

WASHINGTON (AP) — Police told Van Chester Thompkins he had a right to remain silent, and so he did.
But his silence meant he never officially told officers he wasn’t going to talk, and so they kept interrogating him. A couple of hours later, Thompkins implicated himself in a murder.
Several Supreme Court justices indicated Monday they were going to let that confession stand, saying suspects should tell police that they want to be silent to take advantage of that Miranda right.
“Why don’t we have just a clear rule: You are read your rights; if you don’t want to be questioned, all you have to say is ‘I don’t ant to be questioned’?” Justice Antonin Scalia said.
But other justices saw problems with that rule, saying police should have known that Thompkins didn’t want to cooperate by his lack of cooperation. “It’s at least arguable that his silence indicated he wished to remain silent,” Justice John Paul Stevens said.
This case is another example of the high court’s recent struggle to clearly define Miranda rights, which have been litigated since they first came into being in 1966. The courts require police to tell suspects they have the right to remain silent and the right to have a lawyer represent them, even if they can’t afford one.
Thompkins was arrested for murder in 2001 and interrogated by police for three hours. At the beginning, Thompkins was read his Miranda rights and said he understood.
The officers in the room said Thompkins said little during the interrogation, occasionally answering “yes,” “no,” “I don’t know,” nodding his head and making eye contact as his responses. But when one of the officers asked him if he prayed for forgiveness for “shooting that boy down,” Thompkins said, “Yes.”
He was convicted, but on appeal he wanted that statement thrown out because he said he invoked his Miranda rights by being uncommunicative with the interrogating officers.
The Cincinnati-based appeals court agreed and threw out his confession and conviction.
But Michigan Solicitor General Eric Restuccia told the justices that Thompkins waived his right to be silent by answering questions from the police.
After two and a half hours of interrogation, Thompkins answered three questions, said Justice Stephen Breyer: “One, do you believe in God? Yes. Two, do you pray to God? Yes. Three, have you asked God for forgiveness for shooting the boy? Yes.
“OK,” Breyer said. “So, where did he waive it?”
“When he answered those questions,” Restuccia said.
Thompkins’ lawyer, Elizabeth Jacobs, told the justices they should say that police should stop all interrogation if they don’t get the suspect to say that he wants to talk. If they don’t, police will keep suspects in interrogation rooms and badger them until they talk, she said.
But what, Chief Justice John Roberts asked, if a police officer asked a suspect if he wants to remain silent, and he doesn’t say anything?
“Then he is not cooperating, he is not waiving his rights, it’s not voluntary. Take him back to the cell, that’s it,” she said.
“What you are saying then,” asked Justice Ruth Bader Ginsburg,” is the defendant never has to invoke his right?”
“There is no clearly established law that says that he has to assert his right to remain silent,” Jacobs said.
The court will rule later on this year.
The case is Berghuis v. Thompkins, 08-1470.

If you work for the government and use a government provided Blackberry, can the government read your text messages? The 9th Circuit says “no”, and the Supreme Court today granted certiorari.

The case revolves around a police officer who used his government provided Blackberry to send hundreds of personal messages to his wife, his girlfriend and another officer, many of which were sexually explicit. The police department, during a review of officers that routinely exceeded their monthly character limit on the devices, obtained copies of the text messages from the service provider. The 9th Circuit called it an unreasonable search under the the 4th amendment. The Court now has to decide whether or not the officer had a reasonable expectation of privacy in the messages.

Sen. Frank Lautenberg, D-N.J., is sponsoring legislation to the Congress that would require a national mandate for ignition interlock use in all convicted DUI offenders.   Ten states already have mandatory ignition interlock requirements for all DUI offenders, and most have mandatory use for repeat offenders or high level offenders. The national law would withhold federal transportation funds from and state that does not adopt the law within 6 months. Lautenberg unveiled the plan during one of the most dangerous weeks on the roadways.
New Jersey, surprisingly, is not one of the states mandating ignition interlock usage. Instead, the devices may be requested by a judge as part of an offender’s sentencing after the offender has served a full license suspension.  Lautenberg is backing up his recommendation with facts from The Centers for Disease Control and Prevention staying interlock devices reduce the occurrence of repeat arrests by 73%. The Insurance Institute for Highway Safety also supports the mandatory use requirement.
The American Beverage Institute is opposed to the measure, saying it takes the power out of the hands of each judge to determine an appropriate punishment based on the severity of an individual crime. The ABI also asserts MADD’s ultimate goal will be to have the devices in all cars, a goal the ant-DUI activist group denies having.  Though somewhat surprisgin, Lautenberg’s proposal does look like another bill that went through a House subcommittee for federal highway funding earlier this year. Even if the bill does not pass at this point, it appears the trend is moving in the direction of mandatory ignition interlock devices nationwide.

When “I do” becomes “I don’t” married couples face agonizing emotional and financial quandaries. What do we do with the kids, the house, the dog, the boat, etc. How do we divide up our investments, retirement accounts, real estate, etc? But, what about the business owner going through a divorce? What are the consequences to your business during this time? Your business may be a professional practice (medical, legal, real estate) or retail (restaurant, store) either type may be negatively affected by the divorce if you do not take the necessary precautions.

Business owners going through the big “D” are often blindsided to find out their business may be at stake during divorce proceedings. This is true even if you owned the business prior to the marriage and your better-half never assisted you with or had any interest in your business. If your business was created during the marriage the court will probably find that your spouse has some monetary interest in the business whether or not he or she even knew what type of business you ran. The phrase “time is money” has never hit so hard seeing as while you are married your time is considered a marital asset. If you used that time to work on your business, you are using a marital asset to run your business, and so the marriage may acquire an interest in the business.

Texas being a community property state, entitles your spouse to one-half of the value of your business if started during the marriage. A business started during marriage with joint funds, is community property in Texas. A business that was already running or was created with separate funds is more complex, since the community interest may involve joint funds used to expand the business and any appreciation attributed to that contribution. If both spouses played a role in the operation, the contribution of each person must be considered. Even if no joint funds are contributed, a marital interest may exist and should be reviewed by a family law attorney. The key elements to determine whether the property is community or separate are: the source of funds for the startup business, the date of marriage, the date of valuation due to divorce, and the contribution of each spouse to the business.

read the full article >>

With summer heating things up, it is time to head to the coast to cool down, but do not try to get there too quickly or you may end up spending more on your weekend getaway than you planned. Everyone has been pulled over for speeding a time or two (or three or four), but a simple, speeding ticket can have major consequences. The National Highway Traffic and Safety Administration cites speeding as a factor in one-third of all crash-related fatalities and Texas is cracking down by adding traffic cameras on the road ways and adding surcharges on top of already hefty fines. What do you do? Don’t speed.

If you do speed and get caught, fight the ticket because a $100 ticket could cost you more than $2000 if your insurance company gets a hold of it. Most major insurance companies raise your premiums after just one ticket. For example, assume you are paying around the nation average rates of $800 annually for liability, collision, and comprehensive coverage. Your insurance company may offer a 25% good driver discount so you would pay only $600. One speeding ticket could mean around a 25% increase from the base premium, which is a $200 increase or $600 over three years on the base premium – good bye good driver discount, hello surcharges. First, find what your driving records looks like by requesting a copy of your driving record from the Department of Public Safety (DPS) at:
http://www.texasonline.state.tx.us/NASApp/txdps/TXDPSLicenseeManager.

Make sure it is accurate and report any inaccuracies to DPS. Could you be facing a suspension if you receive another ticket? Call DPS (512-424-2600) to answer your questions and then call your insurance company to see what another ticket would mean to your rates. What they say may help get the lead out your foot.

read the full article >>

Long gone are the days when the bartender says, “How about one for the road?” A drink with friends after work can turn into the biggest financial quandary one may ever face. Driving while intoxicated offenses are at the forefront of America’s legal system. Whether considered driving while intoxicated (DWI) or driving under the influence (DUI), the bottom line is DWI’s are expensive.

A fine is just the start of what you will pay for an intoxication conviction. Insurance rates increase, legal bills surmount, alcohol treatment, and licensing fees can push the cost into five figures. A DWI conviction is a financial disaster. Not considering the extreme humiliation and hassle a DWI has a horrible effect on your wallet your professional future.

A veteran San Antonio Police Officer explained: “If I pull you over and you have the odor of alcohol on your person especially between the hours of 10pm and 4am on Th ursday through Sunday, I don’t care who you are I am placing you under arrest. It’s not worth the risk.” The road side stop is embarrassing and dangerous enough by performing tests on a busy highway in the dark, but now you are in handcuffs, in the back of the police vehicle. It is time to make that dreaded phone call. Bail costs can range from $150 to $2,500 for a first offense, but can increase to $100,000 or more depending on the seriousness of the offense.

Driving privileges are highly affected from a DWI arrest. Towing your car from the scene can cost you from $100 to $1,200. “If you get a DWI conviction, it will likely affect your insurance rates for (at least) the next three to five years,” says a local USAA insurance agent. You may be moved to a high risk section of the department or may be dropped altogether. You will have to keep your nose clean, no traffic tickets or fender benders for at least five years to bring your rates down to the low premiums you once enjoyed. The cost of the insurance nightmare - $5000 or more.

read the full article >>