Assets, such as the luxury goods taken by the Marshals Service, can be seized if the government believes that the property was used or resulted from the commission of a crime. Those goods are held until after the suspect's guilt or innocence is determined. If the suspect is found guilty, the government can keep the goods and sell them for profit. If the suspect is cleared of any criminal charges, the property must be returned.
Seizing assets through the asset forfeiture process has turned into a profitable business for the government, especially during the economic downturn. But the program was not created with the intention of generating revenue; those involved say that the program is an important crime deterrent.
]]> The Marshals Service is responsible for supervising the forfeited assets seized through the Justice Department's Asset Forfeiture Program. Overall, the Marshals Service currently oversees almost 18,000 forfeited assets, ranging from machinery, boats, cars and airplanes, to houses, artwork and furs. The sum of these forfeited items is believed to be worth around $3.9 billion.Deterrent or not, the asset forfeiture program does raise a few interesting concerns.
State and local police benefit from the program, frequently receiving a portion of the goods they helped confiscate. In fact, in 2010, the Marshals Service seized nearly $1 billion in, over half of which was shared with local law enforcement agencies. Because the local agencies often making the busts often end up benefiting monetarily, some wonder whether law enforcement tends to be overzealous at times, seizing property that was not been involved in any crime.
One attorney noted that he had seen that happen with a client. The jewelry of the client's wife was seized under the guise of an asset forfeiture, despite the fact that she had obtained the jewelry long before the marriage and years before any suspected criminal activity began.
Related resource: Detroit Free Press, "Marshals Service shares loot forfeited from criminals," 2/27/12.
]]>Antoine Jones, who has battled drug charges in court since 2007, previously sued the government for warrantless searches police officers conducted in his apartment and a building he leased.
This suit was filed prior to his 2008 conviction for conspiracy to distribute cocaine. That conviction was overturned by an appellate court in 2010 and eventually went before the Supreme Court, which upheld the appellate court's ruling that the GPS tracking violated Jones' Fourth Amendment rights.
]]> After the 2008 conviction, a federal judge dismissed Jones' suit against the government and the ruling was upheld on appeal. More recently, a D.C. circuit judge said Jones still might have a case due to the fact that the dismissal of his suit was based on an earlier judgment that was later reversed by the Supreme Court.Any attempt Jones might make at reopening the civil case will be countered by the U.S. Attorney's Office for the District of Columbia, which has plans to take Jones to court for a third time. He will be retried for his alleged involvement in a cocaine trafficking ring, but this time without the evidence provided by the improper search and seizure procedure (the warrantless GPS tracking). Without that evidence, his case presented at court could be drastically different from the last time he was criminally prosecuted.
Jones remains in jail despite the Supreme Court's January ruling that his Fourth Amendment rights had been violated. Prosecutors have succeeded in keeping Jones in jail as they prepare the latest round of charges against him. Through his attorney, Jones said he will not accept a plea bargain deal from the government.
Source: Wall Street Journal, "Star of GPS Case May Have a Lawsuit," 3/6/12.
]]>According to the court documents, supervisors have implied that during a 30-day period police officers must make at least 15 summonses, one arrest and two street stops.
A color coding system is used to keep track of officer "productivity." The lawsuit alleges that the system is used to track quotas, but the New York Police Department denies that a quota system is in place. They say they are allowed to establish minimum productivity guidelines for officers and claim that the color-coded system is only used to measure the efficiency of their officers.
]]> But the reality is that this color-coding system is producing hostility and causing bitter relationships between officers. Officers who do not meet the quota requirements are punished with poor evaluations, inferior assignments and denial of overtime and leave requests. And because of the pressure being placed on them to being productive, police officers may be making poor decisions when pulling people over and stopping people on the streets.A police quota system - implied or not - has many negative consequences for New York residents. If police officers need to meet quotas, New Yorkers may be arrested for dishonest reasons: speeding tickets and citations for driving while intoxicated (DWI) may be handed out unjustly only to meet the quotas.
Depending on how the lawsuit plays out, it may open the door for those arrested or ticketed in the Bronx to challenge their convictions and citations.
Source: New York Times, "Bronx Police Precinct Accused of Using Quota System," 2/23/12.
]]>The Supreme Court decision stemmed from a lawsuit involving a nightclub owner who was suspected of drug trafficking. Police placed a GPS tracking device on his car and left it there for 28 days. They did not obtain a search warrant. The nightclub owner sued, alleging that his privacy rights had been encroached with the warrantless search.
]]> The government tried to argue that planting the GPS device on his vehicle did not constitute a search. However, the Court ruled that the police trespassed upon the man's property when they placed the tracking device and therefore it was a search. The GPS tracking helped police find a stash of money and drugs, which ultimately lead to the man being convicted of drug possession. He was sentenced to life in prison. This sentence, however, was overturned on appeal after it was determined that the evidence used to convict him was only obtained as a result of the warrantless GPS tracking device.Despite the Supreme Court ruling, however, police are not necessarily required to obtain a search warrant before placing a GPS tracking device on a vehicle in every single case. The Court implied that a warrant is required if the tracking is for a long period of time, but did not say anything about short periods of time. GPS tracking may still be considered a "search," but as long as police have reasonable suspicion or probable cause to think a suspect is involved in criminal activity, GPS tracking may be done for a short period without a warrant.
Groups like the American Civil Liberties Union (ACLU) are very happy about this decision. Stephen R. Shapiro, the ACLU Legal Director, says this decision shows that the Court is prepared to consider the rising problem of technology allowing government and law enforcement more ways to collect data and intrude into people's private lives.
Source: NPR.org, "Supreme Court Rules Police Need Warrant For GPS Tracking," 1/23/12.
]]>This trend is the snorting or smoking of "bath salts." No, these are not exactly the bath salts that many people use in their bathtubs to relax. These bath salts - marked "not for human consumption" - were relatively easy to get: Prior to the ban, they were available for purchase in places like shopping malls and gas stations for as little as $20 a package.
]]> Sold with brand names like X2 and Vanilla Sky, these bath salts are commonly flavored and allow adults and youths who snort or smoke them to experience an immediate reaction - increasing their popularity even more. Several of the manufacturers of bath salts have infused them with leaf-like products, effectively turning it into "legal marijuana."The effects of the drugs have been largely reported to be psychiatric. A number of users have reported to local poison centers in New York and other cities and states that the high felt from these is immediate. People have also reported hallucinations, suicidal thoughts and very high levels of energy and aggression. Some users have even died not long after using them.
The alleged dangers of bath salts combined with their increasing popularity have led the DEA to enact an emergency ban. Many think this temporary ban will become permanent.
Now that a number of states and the DEA have banned bath salts, people that possess them, retailers that sell them and manufacturers that make them can all be subject to arrest, jail time and fines. In cases of large-scale production, possession or distribution, the DEA also has authority to seize assets it determines were derived from the sale or possession of illegal drugs.
Thus, the consequences of possessing, manufacturing and selling bath salts are severe-these penalties are no doubt designed to prevent the severe harms that these drugs can cause.
Related Resource: The Coloradoan, "They're called BATH SALTS and they're deceptively lethal," 12/24/2011.
]]>The former assistant football coach claims no wrongdoing on his part and denies taking part in any child molestation. As part of his defense, an attorney and a private investigator have been hired. Penn State's former head football coach, Joe Paterno, has also hired a criminal defense attorney, although he has yet to be charged with anything. Several administrators were charged with lying to a grand jury and failing to report suspected abuse, and other university personnel continue to be scrutinized. A former FBI investigator has been appointed to oversee the board of trustees' investigation into the sex scandal.
The numerous investigations and the heightened scrutiny on the college have taken a toll on university students as reporters and news vehicles continue to swarm the campus. Although students, faculty and administrators would prefer the story to simply disappear, it does not appear this will happen any time soon.
]]> But the wider impact the sexual abuse allegations have had is on universities and schools across the nation. An increasing number of states, spurned by the increased awareness of the Penn State sex scandal, are taking a second look at child sex crime laws - including New York.The federal government is also reevaluating sex crime legislation. Some of the proposed state and federal-level changes include the following:
Although child sex crimes may have been slightly overlooked in the past, in the future this will no longer be the case. The Penn State scandal has been a catalyst for increased scrutiny on the occurrence of child sex crimes and the quality of current legislation.
Related resource: PennLive.com, "Penn State pines for normalcy amid sex abuse scandal."
]]>In August 2010, with the passage of the Fair Sentencing Act, Congress changed the disparity in minimum sentences for crack charges and powder cocaine charges. Previously, those charged with crack possession faced much stricter minimum sentences than those charged with powder cocaine possession. If convicted of possession or distribution of 5 grams of crack cocaine, one would receive a minimum of 5 years in prison. To receive that same amount of time for possession or distribution of powder cocaine, someone had to have 500 grams -- a difference of about 100 to 1, when looking at the punishment based on weight.
]]> Earlier this summer, the U.S. Sentencing Commission decided to retroactively apply these reduced crack penalties. As of November 1, more than 12,000 individuals currently serving time for sale or possession of crack are eligible to ask for a reduced sentence.Under the new guidelines, many of these inmates' sentences will be reduced by about three years. Based on the Sentencing Commission's calculations, about 15 percent of the eligible inmates (1,800) have already served enough time and will be eligible for immediate release.
The reduced sentences are not automatic, however. Each case will have to be reviewed by a judge in order to determine whether early release would present a danger to the community.
While inmates across the nation will be affected by these new sentencing guidelines, the Eastern District of Virginia is believed to have the largest number of current inmates that might be released early -- over 800 people.
Source: CNN.com, "New rules slashing crack cocaine sentences go into effect," 11/1/11.
]]>The underlying case, Florence v. Board of Chosen Freeholders of Burlington County, involved a New Jersey man who was arrested in 2005. He was picked up in error for an outstanding warrant -- a warrant that should have been dropped after he paid a delinquent fine. He was actually processed in two separate county jails. During the route processing, he was strip searched not once, but twice.
Once he was freed, he sued, claiming that his Fourth Amendment right against unreasonable search was violated. The federal district court agreed, but the appellate court reversed, finding that routine strip searches were based on safety for the general prison population. The man petitioned the nation's highest court for review, arguing that police should only strip search arrestees if they have a reasonable suspicion that the arrestee is hiding something. Absent that suspicion, he argued, strip searches are a "significant intrusion on individual privacy and individual dignity."
]]> During oral arguments, Justice Kennedy pointed to the importance of protecting "the individual dignity of the detainee." But at the same time he noted that county jails can be dangerous, so it is important to screen arrestees for weapons before placing them in cells with other prisoners -- even if they were only arrested for a minor offense. "You don't know who these people are. You arrest them for traffic, and they may be some serial killer," said Kennedy.Justice Sotomayor didn't agree with Kennedy, saying that most studies show contraband being snuck in by guards and during visits and not during intake.
Taking a more historical approach, Justice Scalia said that such strip searches were a standard practice and it wasn't considered an invasion of privacy in the 18th century.
It is unlikely that the Supreme Court will issue a ruling on the case before next summer. But the impact of the ruling will affect how arrestees -- particularly for minor offenses like traffic tickets -- are processed in county and local jails across the nation.
Source: "Supreme Court mulls danger, dignity in strip-search case"
]]>The Department of Justice and other law enforcement agencies seized over $2.5 billion last year in asset forfeitures. The purpose of forfeiture laws is to take apart criminal enterprises and remove "ill-gotten gains" from alleged criminals. But, as pointed out by the Wall Street Journal, the government may have too much power to seize those assets.
]]> Laws granting government agencies power to seize assets have doubled in the last 20 years -- from 200 in the 1990s to almost 400 today.In fact, most alarming is that some of those laws allow assets to be seized without criminal charges even being filed against the asset owner. When this happens, the asset owner can challenge the forfeiture in court, but that can often prove difficult for those that do not seek help from an experienced attorney.
Last year, 1,800 of these asset forfeitures were challenged in federal court.
In addition to the power to seize assets of those who have not even been charged with a crime, another alarming fact noted by the Wall Street Journal is that the federal government can share money from seized assets with local and state agencies. In 2010, $500 million in seized funds were given to local law enforcement agencies to use at their discretion. This, in effect, basically incentivizes local law enforcement officers to seize first and ask later.
Related resource: Wall Street Journal, "DOJ's Expanding Power to Seize Assets Sparks Concerns."
]]>Wanting to be helpful, several in the room pipe up with descriptions. But as everyone began to describe what they noticed about the intruder, a theme emerged: no two descriptions were exactly alike. This exercise only further supports numerous studies that approximately one in every three eyewitness identifications are wrong.
]]> In the recently published book, "Convicting the Innocent," a law professor took a closer look at DNA exonerations. Of 250 people who had been wrongfully incarcerated and were later exonerated by their DNA, 190 of their convictions relied on inaccurate eyewitness testimony.Because over 75,000 criminal investigations involve eyewitness identifications each year, a 33 percent error rate -- resulting in wrongful convictions -- raises more than a few eyebrows. This time, it has raised the eyebrows of the Supreme Court of the United States (SCOTUS). On the docket for November, the Supreme Court will take a closer look at what the Constitution has to say about the use of eyewitness evidence.
The last time the Supreme Court looked at the issue was in 1977. Since then, more than 2,000 studies have been conducted on the accuracy of eyewitness testimony. Collectively, these studies have established the danger of basing a criminal conviction solely on what an eyewitness believed he or she saw.
Yet, juries are often persuaded by eyewitness testimony; Hollywood capitalizes on this feeling in courtroom dramas, delivering a strong message of guilt from someone sitting on the stand and pointing to the defendant, declaring, "It was him!" According to one brief submitted to the Supreme Court on this matter, "research shows that juries tend to 'over believe' eyewitness testimony."
While SCOTUS will not be hearing the matter November, their decision could potentially impact the way that many criminal cases are tried. If eyewitness testimony is not seen as favorably as, say, DNA evidence or videotape footage, then it will be more difficult for the prosecution to prove their case and overcome the presumption of innocence.
Regardless of how the Court rules, hopefully the message sent to juries will reiterate the importance of looking at all of the evidence and not relying too heavily on evidence proven to be inaccurate -- such as eyewitness testimony.
Source: New York Times, "34 Years Later, Supreme Court Will Revisit Eyewitness IDs," 8/22/11.
]]>As of earlier this week, only 14 states had "substantially implemented" the sex offender registration provisions of the Adam Walsh Act, known as the Sex Offender Registration and Notification Act (SORNA). Under the law, registration is required for more categories of crimes, and the registration period is increased for a number of offenders. SONRA also required certain juveniles to become registered offenders.
The overall goal of the act was to create a national public registry, but based on the small number of states and territories in line with the Act's requirements, it appears that it will still be some time before the goal becomes a reality.
]]> States are encountering challenges in trying to implement the requirements. For some, it is a matter of the costs not outweighing the benefits. Others have faced a number of legal challenges. Texas, for example, has estimated that it will cost over $38 million to put the registry in place, and the 10 percent cut in federal funding will is only $1.4 million, so it does not make sense for the state financially to make all of the changes.Ohio adopted the law in 2007 and quickly found itself facing years of litigation, with over 7,000 cases filed in challenge of the law.
Additionally, there are questions about how effective sex offender registries actually are. Do they lure the public into a false sense of security while, in reality, only destabilizing sex offenders?
Only time will tell as to whether the Adam Walsh Act accomplishes its goals, and precisely what long-term effect the Act will have on those convicted of a qualified sex offense.
Source: 5 years later, states struggle to comply with federal sex offender law
]]>And the numbers do reveal a disproportion: 50.6 percent of those stopped were black, compared to 33.4 percent Hispanic, 9.2 percent white, and 3.7 percent Asian. Given that 33 percent of New York City residents are white, 29 percent are Hispanic, 23 percent are black and 13 percent are Asian, the numbers of those stopped are not reflective.
Stop-and-frisk searches occur when law enforcement officials confront a suspicious person, conduct a pat down (searching for weapons) and question the individual. While officers do not have to have a warrant to stop and frisk an individual, they do have to have a reasonable suspicion that the individual may be involved in illegal activity before making a stop.
]]> In the first three months of this year, officers from the NYPD filed 183,326 "stop, question and frisk" reports. That number is considerably higher than the first three months of 2010 and of those stopped, only 12 percent were arrested or charged - which was a smaller percentage than during the same period last year.The NYPD counters the claims of civil right advocates by pointing out that those stop-and-frisk actions are not guided based on population demographics, but rather based on the descriptions of criminal suspects. They stop individuals who match descriptions of criminal suspects, in hopes that they can reduce the city's crime rate.
But critics still point to the fact that only 15 percent of stops were made based on suspect descriptions. The executive director of the New York Civil Liberties Union is concerned that abuse of stop-and-frisk tactics is harmful to innocent New Yorkers. She noted, "This practice seriously undermines the quality of life for people of color in New York City, particularly in the poorest, most vulnerable neighborhoods."
]]>If an officer has probable cause or reasonable suspicion to believe that a crime has been committed or is about to be committed, then the officer can search you and your car. But the officer must have evidence that you could be armed, dangerous or involved in illegal activity. Absent probable cause or reasonable suspicion, the only other way an officer can legally search your car is if you, the owner, give permission.
]]> When an officer asks for permission to search your car you have the right to say no. You may think, "Well, if I had nothing to hide, then I should say yes." But you do not have to. Without probable cause or reasonable suspicion, officers have to get a warrant in order to search your car. And most officers will not go through the trouble and time it takes to obtain a warrant.So, if you are stopped and asked if your car can be searched, feel free to politely stand your ground, state that you are invoking your Constitutional rights and decline the request to search your vehicle.
And, the good news for New Yorkers is that individuals are protected even further. New York state court decisions have established that officers should not even ask for consent to search a car unless they have reasonable suspicion of criminal activity. If an officer is asking you to search your car - follow up so that you are clear: is it a request to search your car or are you being ordered away from your car because the officer has reasonable suspicion or probable cause?
If it is the latter, then step away from the car and do not say anything. It also may be in your best interest to contact an attorney. If it is the former, do not feel compelled to consent.
]]>Most of the defendants allegedly collected benefits for employment-related injuries they claimed kept them from working when in reality they were quietly holding jobs on the side. The worst of the charges could bring up to seven years of jail time.
In simplified terms, the prohibition on committing workers' compensation fraud means you can't make any false statement in any aspect of procuring or maintaining insurance, or of making a claim. Workers' compensation fraud is an expensive problem for insurance companies, employers and the government.
]]> Workers can commit fraud in ways like collecting benefits when faking or exaggerating injuries, lying about whether injuries are work related or claiming they are not able to work when they actually are. For example, in the recent arrests one suspect allegedly had collected $10,000 in workers' compensation benefits while able to operate a ceramics supply business.Employers can also commit workers' compensation fraud by, for example, falsifying proof of required insurance coverage, submitting false information on an application for workers' compensation insurance, or otherwise faking business records such as by adding or taking someone off a policy. Finally, insurance carriers can also be guilty of such fraud in claims reporting or processing.
What if You Are Targeted?
If you suspect or know you are under investigation as an employer or employee for workers' compensation fraud, or if you have already been charged, you should immediately seek legal counsel to protect your rights and begin to build your defense. You could be at risk of criminal penalties, and very real damage to your reputation and ability to obtain employment in the future.
In most situations the law considers it fraudulent not only to affirmatively provide false information, but also to keep quiet about a material fact. Depending on the violation, you could be charged with either a misdemeanor or felony under New York law. You could also be subject to civil restitution and fines.
Related resource: New York Sting Nets 13 Arrests for Workers' Comp Fraud
]]>During an 11 month investigation, state and local police seized over seven kilograms of heroin, $45,000 in cash, a gun and drug packaging materials. Seven kilograms of heroin is the equivalent of 160,000 hits and has an estimated street value of $3.5 million.
With the help of undercover agents and wiretaps, authorities dismantled the Bronx to Buffalo heroin pipeline and arrested three men on drug charges that they believed were the distribution network's leaders. The bust represented the largest of its kind in Buffalo history.
]]> In a 51 count indictment, the 15 individuals face charges including Criminal Sale and Criminal Possession of a Controlled Substance (class A and B felonies), Operating as a Major Trafficker, and conspiracy to commit those crimes.Under New York state law, a heroin possession conviction can result in up to seven years in jail with a fine of up to $50,000. While a conviction for selling heroin generally results in a prison term of 10 to 15 years, New York's 2009 Operating as a Major Trafficker statute can result in a sentence of life in prison. The three men arrested in the drug bust face this most serious of penalties.
In federal court, first time drug possession carries a punishment of one year in prison and a $5,000 fine. The second possession offense doubles both the prison time and fine. As for selling heroin, a first time conviction can result in up to 15 years in prison and a $25,000 fine. Again, a second sale offense doubles both the prison time and fine from the first offense.
If you face drug charges, whether for possession or sale, you may face serious consequences. Because your future hangs in the balance, contact an experienced criminal defense attorney to discuss your case and your rights.
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