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When Your Business Receives a Subpoena Duces Tecum

A subpoena duces tecum is a formal legal document instructing the recipient to produce certain identified documents, computer files, or other physical items.

Virginia Code § 16.1-89. Subpoena duces tecum; attorney-issued subpoena duces tecum.

A judge or clerk of a district court may issue a subpoena duces tecum pursuant to the terms of Rule 4:9A of the Rules of the Supreme Court of Virginia except that such subpoena may be directed to a party to the case as well as to a person who is not a party.

Typically, a party to criminal or civil litigation serves this type of subpoena on a non-party in order to identify information helpful to the litigant’s case. There are various other types of subpoenas, such as witness subpoenas, that are not discussed here.

Running a business is difficult and time consuming even in the best of times, so receiving a subpoena can understandably cause stress and confusion to a business’s officers and employees. This post discusses a few of the basic issues associated with a subpoena duces tecum. This post is not exhaustive, however, so always contact your attorney immediately upon receiving a subpoena.

Initial Considerations

First, review the subpoena carefully to determine what is requested, who requested it, and the deadline to respond. Regardless of how you plan to respond, immediately issue a litigation hold to relevant employees to ensure that the requested documents or materials are not destroyed. Though it sounds like common sense, do not simply disregard the subpoena or put it at the bottom of your to-do list. Ignoring a subpoena can result in contempt of court and monetary sanctions.

Written Objections

Second, consider how to respond. Just as a business should not ignore a subpoena, nor should it automatically comply without question. Under certain circumstances a business should object to a subpoena. There are both procedural and substantive potential objections. Some procedural bases for objections include improper service, service after the discovery deadline, and unreasonable response time. Possible substantive grounds for objections may include:

Relevancy: Information requested should be relevant to the subject matter of the underlying litigation and reasonably calculated to lead to the discovery of admissible evidence.

Undue burden and expense: Compliance with a subpoena would cause an undue burden or expense to the producing party.

Lack of possession, custody, or control: The responding party does not possess, actually or constructively, the requesting documents, nor are the documents within its custody or control.

Trade secrets and confidential business information: If a subpoena seeks documents that contain sensitive business information the business can object. If the requesting party demonstrates a substantial need, however, then production of such information may ultimately be required under the limits of a protective order.

Confidential personnel information: If an individual’s personal confidential information is contained in a requested document, the business should immediately notify such person of the request. The business may be able to object, or the person whose information is to be produced may have to object. Notably, certain statutory requirements apply when an individual’s medical records are requested

Privileges: In addition to the well-known attorney-client privilege, there are other privileges that may render a subpoena objectionable. For example, health care records made in connection with quality or peer review matters carry a special privilege.

Written objections must be served on the requesting party or attorney within a certain period of time after service. Failure to object within such timeframe may result in waiver of any objections. After serving timely written objections, the requesting party may move the court for an order to compel production. A court will not issue an order to compel unless the moving party has first made or attempted to make a good faith effort to resolve the matter with the other party. After a good faith effort at resolution by the parties, the business also has the option to move the court for a protective order to limit production. It should be noted that when a business makes written objections to a subpoena, it can still comply to the requests for which there are no objections, if there are any.

Motion to Quash or Modify

A business may also decide to make a motion to quash or modify the subpoena based on the same grounds listed above. A motion to quash or modify must be timely and it also requires that the parties first confer or attempt to confer in good faith to resolve their differences. Upon a motion to quash, the court may grant, deny, or modify a subpoena.
Finally, there are many considerations and pitfalls involved in responding to a subpoena duces tecum. Small businesses served with a subpoena should conduct a step-by-step analysis of the subpoena from both a procedural and a substantive perspective. An attorney could be invaluable to this process and should be consulted immediately to help protect your business.

If your business has any questions about serving or receiving a Virginia subpoena duces tecum, contact our office.


Ask yourself these four questions before hiring a litigation attorney

Preparing for your consultation with a litigation attorney

Picture of Litigation Attorney Consulting with Client

As an experienced Litigation Attorney, I am often asked a question which seems simple but isn’t: “Do I have a case?” Unfortunately, the answer to this is always complex. It is dependent on what happened, how you will prove it, what you want if you win, and whether it’s economically worth it to pursue a lawsuit. People often pick up the phone and start calling attorneys before they have these basic questions answered in their heads. They shouldn’t. Having the answers to these questions will help you explain your side and help the litigation attorney evaluate whether you “have a case.”

1. What happened?

The first thing you need to get clear in your mind is what exactly happened. This is the part that actually is pretty simple. Were you assaulted? Did you pay someone to build a deck and they did a bad job? Were you in a car accident? Whatever it was that happened, try to remember the details and write them down. And don’t just think about the event itself, try and remember what led up to the problem and what occurred after. If you have a written account, you can provide that to any litigation attorney that you consult.

2. How will you prove it?

An experienced litigation attorney knows that the old cliché that there are two sides to every story is true. If you’re considering suing, you need to think about what the other party is going to say as well as your side of the story. Also think about how you’re going to prove your side. Will there be objective evidence or will it be your word against theirs?

I always ask potential clients what evidence there might be to support their claim. Perhaps there are text messages, emails, or cashed checks. Nowadays, it is increasingly common for there to be audio or video recordings. If the dispute is primarily over a contract, then it should be obvious that a copy of the signed contract is a necessity. These things are important because they are objective. If the documents are proven to be real (or “authenticated” in legal terms), then there is little dispute about what they say. And they let a judge or jury come to a conclusion on their own.

If there isn’t objective evidence, then the case is simply your word against theirs. Although this type of case is easy to bring into court–because there is very little evidence to present–it is harder to win.

3. What do you want if you win?

It’s surprising, but people often don’t have an answer when I ask them what they would want if they win their lawsuit. Usually they just say “money.” That’s a given, of course. But the real question is, why do you think you’re entitled to money? Sometimes the answer is obvious. Other times, it isn’t. For example, if you paid a contractor to build a deck for you and they took your money and ran then you’d want the full amount back. But if they built a deck that you weren’t satisfied with you might not want a full refund. You might want them to fix the parts you are unsatisfied with.

In some cases, the measure of damages can get murkier. Take an assault and battery case as an example. If someone hit you and you had to go the hospital then they might be responsible for reimbursing you for your medical bills. But are they also required to reimburse you for the pain and suffering that resulted from the assault? Maybe. The amount plaintiffs receive can vary greatly from case to case. Just like the question of whether you win at all, the question of how much you will recover will be based on what you can prove. How will you prove to the judge or jury that you suffered? These are all things that you should think about before consulting with a litigation attorney.

4. Is it worth your time and money to sue?

The final thing you need to think about is whether it is worth your time and money to sue. This is a purely economic question. Litigation costs money and the fees can quickly add up. I tell people quite frankly that if your argument is over a small amount of money, such as anything under $5000.00, then it is almost never worth it to hire an attorney. You should first try to settle the argument with the other party. If you can’t do that, then you can take them to small claims court. In Virginia, small claims court can handle any dispute where the amount of money in issue is less than $5000.00. A helpful pamphlet explaining small claims court procedures can be found here.

If your claim is for an amount greater than $5000.00 then it might be worth it to consider hiring a litigation attorney to handle your case. If you answer these questions for yourself before contacting an attorney, you’ll be well ahead of the game.

– Kirk


Taylor Swift and the Art of Cross Examination

Cross-examination is a key part of any contested trial. Good lawyers—like good song writers—must be good story tellers. Trial lawyers must tell a client’s story within the context and procedures of the trial. The opening statement lays out the story, foreshadowing what is to come. The witnesses and evidence support the story. And the closing statement serves as the “satisfying conclusion.”

By failing to prepare, you are preparing to fail.

When done right, cross-examination can help a lawyer elicit damaging admissions from the opposing party and tell their client’s story. When done wrong, a lawyer can do irreparable damage to their client’s case.

Doing it right requires only one thing: preparation. The lawyer doing the cross-examination must prepare themselves by examining in detail every statement that the witness may have made on the subject in question. Cross-examination questions should be carefully prepared and should not give the witness “wiggle” room to speculate. The goal should be for the cross-examiner to get in and get out.

On the flip side, a good trial attorney will prepare their client for cross-examination by helping them understand and exploit weaknesses in the examiner’s questions.

Cross-examination of Taylor Swift.

A good example of cross-examination gone wrong occurred last week in Taylor Swift’s civil trial in Denver, Colorado. The trial centers around allegations made by Ms. Swift that David Mueller, a Denver area radio host, inappropriately touched her during a June 2013 photo opportunity. Ms. Swift told Mr. Mueller’s employer that he grabbed her butt during the photo opportunity and they fired him.

In 2015, Mr. Mueller sued Ms. Swift claiming that she recklessly ruined his career with the false allegation. Ms. Swift countersued alleging that Mr. Mueller had reached under her dress and grabbed her bottom.

During trial, Ms. Swift was obviously well prepared for the witness stand. During cross-examination, she was able to score several points for her case when the opposing attorney asked some ill-advised questions.

One of Mr. Mueller’s key pieces of evidence was the photo taken during the photo opportunity. Mr. Mueller’s attorney asked Ms. Swift why the photo shows the front of her skirt in place and not lifted up if Mr. Mueller was reaching underneath to grab her butt. Ms. Swift quipped “[b]ecause my ass is located in the back of my body.”

Later, Mr. Mueller’s attorney asked Ms. Swift “how she felt” when Mr. Mueller’s employer fired him after the accusations. Again, she responded well. She explained “I didn’t have a reaction to a strange person I didn’t know losing his job…that was a product of his decisions, not mine.”

Both of these exchanges are great examples of proper preparation. Preparation that paid off. In the first case, Ms. Swift exploited an open-ended question to great effect. In the second, she avoided a victim-blaming question designed to elicit sympathy for Mr. Mueller.

Ms. Swift’s cross-examination helped her tell her story and prevented Mr. Mueller from telling his. We’ll see which side gets its “satisfying conclusion” in the future when the jury returns a verdict.


SCoVA decides important, but somewhat boring, jurisdictional question

In a decision that is of interest to lawyers and probably boring to everyone else, SCoVA held that the filing a notice of appeal does not divest the trial court of its jurisdiction to consider a defendant’s post-trial motion to withdraw a guilty plea under Virginia Code § 19.2-296 in Velazquez v. Commonwealth of Virginia. (PDF of slip opinion available here.)

Mr. Velazquez was charged with computer solicitation of a child in violation of Virginia Code § 18.2-374.3 and attempted indecent liberties with a minor in violation of Virginia Code 18.2-370. During his hearing,he was represented by counsel with the aid of a Spanish interpreter. He signed a guilty plea questionnaire and a written plea agreement. Under that plea agreement, he pleaded guilty to solicitation of a child minor and the Commonwealth agreed to nolle prosequi the charge of attempted indecent liberties. After conducting a “thorough” plea colloquy, the trial court sentenced him to 15 years of imprisonment with 10 years suspended.

Five days later, Mr Velazquez submitted a pro se notice of appeal in the form of a hand-written note. He wrote that he wished to appeal his conviction and its sentence of five years. He explained that even though he had a Spanish interpreter and assistance of counsel they “both spoke very fast” and that he felt he signed the plea deal out of fear and anxiety. He went on to claim that he did not understand he was signing a plea bargain for five years.

Twelve days after that, the trial court entered its order sentencing Velazquez in accordance with the plea agreement. But in light of Mr. Velazquez’s note, the trial court also appointed him new counsel. His new counsel immediately filed a notice of appeal and a motion to withdraw his guilty plea pursuant to VA Code § 19.2-296.

After the motions hearing, the trial court raised the question of jurisdiction on its own. The judge explained that filing a Notice of Appeal perfects the appeal to the Virginia Court of Appeals and once that happens the trial court has no power to render any further decisions.

The Commonwealth, when asked for its opinion on the issue, stated that it believed the manifest injustice rule allowed the trial court to maintain its jurisdiction even with the filing of an appeal. After a brief recess, Velazquez’ attorney argued that the trial court still had jurisdiction to act because there was no statutory prohibition and cited Ghameshlouy v. Commonwealth, 279 VA. 379, 689 S.E.2d 698 (2010)  for the proposition that the notice of appeal did not deprive any other courts of jurisdiction.

Nonetheless, the trial court concluded that it lacked jurisdiction and that, even if it did not, that Velazquez had not shown there was a “manifest injustice” that would merit withdrawal of his plea.

Mr. Velazquez noted his objection and filed his petition with the Court of Appeals which denied the appeal in an unpublished per curiam opinion. Specifically, it held that the trial court was divested of jurisdiction when Mr. Velazquez filed his notice of appeal.

The Supreme Court of Virginia granted Velazquez’ appeal to address the interplay between the filing of a notice of appeal and the motion to withdraw a guilty plea.

The jurisdictional question is, as any attorney knows, a question of law reviewed de novoHenderson v. Ayers & Hartnett, P.C., 285 Va. 556, 563, 740 S.E.2d 518, 521 (2013), Country Vintner, Inc. v. Louis Latour, Inc., 272 Va. 402, 410, 634 S.E.2d 745, 750 (2006). SCoVA explained that filing the notice did not divest the trial court of jurisdiction because the plain language of the rule gives a trial court 21 days from the entry of its final order to consider any motions to withdraw a guilty plea and to set aside the judgement of conviction and permit a defendant to withdraw his plea.

It also noted that the question of when an appellate court obtains jurisdiction over a case is a separate question from whether a trial court loses its jurisdiction over a case. “The fact that an appellate court has obtained jurisdiction over an appeal does not necessarily divest a trial court of all jurisdiction to act upon certain matters.” Particularly when there is an explicit statute or rule that grants authority to act.

In Mr. Velazquez’ case, the motion to withdraw his guilty plea was filed and heard within the 21-day period provided by the statutory rule so the trial court and the Court of appeals erred in holding that there was no jurisdiction to consider the motion.

But SCoVA went on to consider whether Mr. Velazquez had met the manifest injustice test required by the rule and held that he had not. It was not an abuse of discretion to deny the motion because there was a lengthy colloquy on the record which supported a finding that Mr. Velazquez understood the charges and voluntarily entered into the plea agreement. Accordingly, SCoVA affirmed the Court of Appeals decision as the right result for the wrong reason.


Virginia Criminal Process: the Initial Appearance and Arraignment

A criminal charge in Virginia can occur with little advance warning, which means you, as the defendant, are often unprepared and uneducated regarding what is going to happen next. The process can seem as intimidating as the charge.  Complicating matters, the process differs in each jurisdiction; so the information that your friend is telling you based on experience in Fairfax County will be different than your experience in Arlington County or Alexandria City.  Nonetheless, here is a brief overview of the initial process in many Virginia state courts.

Once you are arrested and booked at the police station, you will be taken in front of a local magistrate “without unnecessary delay.”  The magistrate will determine whether you should be released or whether you should be detained.  You should not make any statements about the facts of the case at this point–though you will be tempted to explain your story to obtain your release–because any admissions that you make can be used against you later in court. 

If the magistrate does not release you, then you will be held until you can be taken in front of a General District Court judge.  This should happen within 48 hours of your arrest, but the timeline can be extended particularly when the weekend is part of the delay.  For example, if you are arrested on a Friday evening, and if the magistrate does not release you, then you will not appear in front of a judge until Monday morning. 

Depending on which jurisdiction you are in, the judge may consider whether you should be released on bond at this first appearance.  In other jurisdictions, this first appearance will be limited to the judge informing you of what you are charged with and asking you whether you want a court appointed attorney or whether you plan to hire an attorney.  The court will also likely set the trial date for misdemeanor offenses and the preliminary hearing date for felony offenses.

In either case, you will not be asked to plead guilty or not guilty at this point.  Instead, the focus is on determining who will represent you as counsel, whether you should be released on bail or bond, and when the next hearing will take place.  The hearing happens very quickly, so it is important for you to listen closely, answer the judge’s questions clearly and politely, and remember the dates that the judge announces.  If you are given a court appointed attorney, then the attorney should be in contact with you relatively soon.  If you chose to find private counsel, then it is up to you and your family to secure this representation. 

If the judge grants a secured bond amount, then you will need to post the bond amount in full or work with a bail bondsman to post the bond on your behalf.  Once it is posted, you will be released by the Detention Facility–assuming you do not have an immigration detainer, a warrant in another jurisdiction, or some other limitation on your freedom.

If the judge does not grant bond at this hearing, then you will need to work with your attorney to file a bond motion.  This will be an opportunity for your attorney to argue for your release pending the trial date.  Whether you will be granted bond will turn on a number of statutory factors, which generally take into account the severity of the alleged crime, your risk to the community if released, the risk that you will flee and not appear for a later trial, and other factors such as your prior criminal record.  To give you the best opportunity for a reasonable bond and release, you will need an experienced attorney to represent you through the process. 

These are just a few of the initial hearings that may take place following an arrest since each jurisdiction has different practices. And if you were released on a summons rather than taken to jail, then your process will also vary.  But regardless of which jurisdiction you are in or what you are charged with, you should always contact an experienced attorney as soon as you have your first contact with law enforcement–or as soon as you suspect that you are under investigation.  The sooner you start working with an attorney, the sooner the attorney can help you navigate the different hearings and advocate for your release at the earliest possible opportunity.

Contact the office today to discuss your case.


There is no “Pokemon Go” Defense to Trespassing in Virginia

The recent release of the game “Pokemon GO” has gotten literally millions of people out of their homes and out into public chasing elusive virtual monsters. The game is played using a smartphone and GPS. It generates “Pokemon” (Japanese for “Pocket Monsters”) that can be caught if you travel to their position. Yes, it’s a video game you “play” by traveling to various locations throughout the real world. Judging by the numbers alone, the game is, quite obviously, a big hit. I think that at the very least it’s great to see all these people out and about.

But despite this, there have already been some strange incidents associated with the game. The game can take its players to locations that, while not necessarily “remote”, are still less traveled. There have been incidents of players stumbling across dead bodies; other players report having been robbed while playing the game; and one Canadian lady got so tired of seeing a throng of Pokemon Go players outside her apartment building that she climbed onto her roof and shot at them with a pellet gun.

Given the fact that the game takes players out into public and all around chasing Pokemon, I’m somewhat surprised that I have seen very little coverage about trespassing charges related to Pokemon GO. In Virginia, trespass to realty is a Class 1 Misdemeanor punishable by confinement in jail for not more than twelve months and a fine of not more than $2500.00, either or both. Although trespassing may seem harmless, it is a criminal charge in Virginia.

The Virginia law generally makes it illegal to enter the premises of another after having been forbidden from doing so. Typically this would come in the form of actually being told not to enter the premises (verbally or in writing) or through the posting of no trespassing signs. Pokemon Go players (and anyone really) need to pay special attention to whether they have been told to stay off a particular piece of property or whether there have been posted “No Trespassing” signs around the property posted at “places where . . . they may reasonably be seen.”

Even if there were reasonably posted signs or a verbal warning to stay off of certain premises, however, there are potential defenses to trespassing charges. For example, because the law requires that a person intentionally “go upon” the premises in question a person who got lost and wandered onto property by accident probably would not be guilty of trespassing.

Still, to my knowledge, there has not yet been a case where a trespassing defendant has asserted that he did not intentionally trespass onto property because he was too busy playing Pokemon GO on his smart phone to realize where he was. My guess is that such a defense would be fairly useless given the fact that playing the game requires you to essentially monitor your position in the world via GPS. Nonetheless, in light of the immense popularity of the game, perhaps we’ll have an initial court ruling on the issue in the near future.


SCoVA Addresses Elements of Duress Defense

On July 14, 2016 the Supreme Court of Virginia, in Edmonds v. Commonwealth of Virginia adopted the Court of Appeals’s formulation of the duress defense found in Buckley v. City of Falls Church, 371 S.E.2d 827, 827-28 (1988) and reiterated in Humphrey v. Commonwealth,  553 S.E.2d 546, 550 (2001). To use the defense of duress or necessity, the offender must show:

(1) a reasonable belief that the action was necessary to avoid an imminent threatened harm; (2) a lack of other adequate mans to avoid the threatened harm; and (3) a direct causal relationship that may be reasonably anticipated between the action taken and the avoidance of the harm. Humphrey, 553 S.E.2d at 550.

The case itself addressed the defense in the context of the trial court’s refusal to grant Mr. Edmonds’ withdrawal of his guilty plea. Initially, Mr. Edmonds pleaded guilty to possession of a firearm after conviction of a felony. But after pleading guilty and before sentencing, he got a new attorney. His new attorney filed a motion to withdraw his plea arguing that he took the gun under duress because of a threat of imminent harm to his girlfriend.

According to the stipulated facts, Arlington police responded to a report of a man threatening a woman and saying that he had a gun. When they arrived, they learned that a Mr. Miller, had threatened Mr. Edmonds’s girlfriend with a gun. They then heard a disturbance and saw Mr. Edmonds come running out of an apartment. He was wearing clothing similar to the clothing described by the caller to 911. The Police detained him and they found a loaded handgun on him. Mr. Edmonds then told the police that he was not involved in the disturbance and that he was trying to do the right thing by getting the gun out of the apartment so that Mr. Miller couldn’t access it while he was drunk and angry.

The trial court denied his motion to withdraw the guilty plea and held that the threat of danger was not sufficiently imminent to trigger the duress defense. The Court of Appeals agreed and, in addition, stated that “taking possession of the firearm was not the only way for [Mr. Edmonds] to avoid the threatened harm.”

The Supreme Court of Virginia also agreed and noted that:

The record is devoid of a sufficient proffer of evidence that there was a threat of imminent danger. Numerous questions are left unanswered by the record, including the location of the apartment, where the firearm was actually located, whether [Mr. Miller] even possessed the firearm or knew of the firearm’s location.

Accordingly, it held that the trial judge did not abuse his discretion in denying the motion to withdraw Mr. Edmons’s guilty plea.


Can a Parrot Testify?

Last Thursday in the remote county of Newaygo on the western side of Michigan, Glenna Duram was charged with the murder of her husband Martin Duram. Local police found the couple shot in their house. Martin had been shot and killed and Glenna was shot in the head but still alive. Also inside the home was the couple’s African grey parrot named “Bud.”

This is where it gets interesting. The case has been getting a lot of publicity (see here, here, and here) because the parrot, who is now being taken care of by the surviving family members, appears to be replaying an argument between Glenna and Martin that ends with “don’t f—ing shoot!”

Police records show that the couple had financial problems stemming from gambling and that Glenna had written several suicide notes. (As confirmed by handwriting analysis.) Add all these things up, and it seems like the couple got in an argument, Glenna shot her husband, and then attempted to kill herself. The prosecutor has told the local news station that he “hasn’t ruled out” using the parrot as a witness. Which begs the question, can he?

The answer is, of course, probably not. At least, the bird cannot testify as a witness in the traditional sense. Michigan Rule of Evidence 603 requires that “before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness’ conscience and impress the witness’ mind with the duty to do so.”

This is a pretty standard rule that is repeated in the Federal Rules and in other state’s rules. See, e.g., Virginia Rule 2:603 available here. The rule itself assumes a level of consciousness that, I feel comfortable saying, we haven’t necessarily shown that a talking bird–even one as smart as an African grey parrot–would have. That is, it assumes that the witness can understand the importance of telling the truth in a court of law.

So is it possible to get that evidence before a jury? Maybe, and the expert testimony rules might be the key. Michigan Rule of Evidence 702, like it’s federal counterpart, allows experts to testify if the court determines that their scientific or specialized knowledge will assist the trier of fact to determine a fact in issue. The next rule, Rule 703 states that the “facts or data in the particular case upon which an expert bases an opinion or inference shall be in evidence.”

So what’s needed is an orinthologist (bird expert) that can testify to the habit or ability of African grey parrots to repeat and mimic conversations that they hear. If it’s the case that African grey parrots do tend to repeat conversations they hear–and I don’t know if that’s true since I’m not a bird expert, despite the fact that I have studied bird law–then the prosecutor can begin to make the case that the bird’s “testimony” should be admitted.

In essence, if the prosecutor can use an expert witness to show that the bird is replaying an incident, it observed then the bird can be proffered under the rules as a sort of “living tape recorder.”

Interestingly enough, this isn’t the first time that this has come up. In 1993, a California judge ruled that the spontaneous statements made by a different African grey parrot were not admissible. The difference, I believe, is that in the California case, the attorney simply tried to elicit the statements from the bird without setting up the proper foundation. Hopefully, the prosecutor in the Michigan case won’t make the same mistake.


The Supreme Court opens the door for unfounded police stops

Just two days ago, the Supreme Court of the United States opened the door to widespread unfounded police detentions with its decision in Utah v. Strieff. Justice Sotomayor, in a dissent joined by Justice Ginsburg, put her concerns bluntly and up front. She wrote: “[t]his case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong.” Utah v. Strieff, 579 U.S. ___ (2016) (Justice Sotomayor, dissenting.) Even worse though, the case seems to encourage such behavior.

As the name suggests, the case comes out of Utah. It began with an anonymous tip to the South Salt Lake City Police Department’s drug-tip line. Utah v. Strieff, 579 U.S. ___ (2016) slip. op. at 2. The caller reported simply that there was “narcotics activity” at a particular house. Id. Narcotics detective Douglas Fackrell investigated the house over the course of the next week. Id. He noticed that there were frequent visitors who would come and then leave a few minutes later—a sign of potential drug dealing. Id.

One of the visitors to the house was Mr. Strieff. Officer Fackrell saw Strieff leave the house and then walk to a nearby convenience store. Id. In the parking lot, Office Fackrell detained Mr. Strieff, told Mr. Strieff that he was a police officer, and asked Strieff what he was doing.  Id. The officer then asked Mr. Strieff for his identification card, which Mr. Strieff Provided. Id.

Officer Fackrell relayed Mr. Strieff’s information to the police dispatcher who informed Office Fackrell that Mr. Strieff had an outstanding arrest warrant for a traffic violation. Id. Officer Fackrell arrested Mr. Strieff pursuant to that warrant and then searched him incident to the arrest. (An officer is generally allowed to conduct a search of the person of anyone whom he arrests. See Arizona v. Gant, 556 U.S. 332, 339 (2009).) During that search, the officer found a baggie of methamphetamine and other drug paraphernalia. Id.

At trial for possession of the drugs and drug paraphernalia, Mr. Strieff moved to suppress the evidence because it was derived from the initial stop which he claimed was unlawful. Id.  The state conceded that the officer did not have reasonable suspicion to stop Mr. Strieff (i.e., that the stop was unlawful), but argued that the evidence “should not be suppressed because the existence of the valid arrest warrant attenuated the connection between the unlawful stop and the discovery of the contraband.” Id.

The trial court agreed and admitted the evidence. Id. 2-3. It explained that although the short time between the stop and the discovery of the evidence weighed in favor of its suppression, the valid arrest warrant was an “extraordinary intervening circumstance” and it also “stressed the absence of flagrant misconduct by Officer Fackrell who was coordinating a legitimate investigation of the house.” Id. at 3.

After the trial court refused to suppress the evidence, Strieff entered a conditional guilty plea reserving his right to appeal the decision.

The case made its way to the Utah Court of Appeals, which affirmed the trial court’s decision and then the Supreme Court of Utah, which reversed the decision. The Supreme Court of the United States then took the case to resolve a split on the question of how the attenuation doctrine applies where an unconstitutional detention leads to the discovery of a valid arrest warrant. Id. at 3.

The majority opinion, written by Justice Thomas, affirmed the trial court’s decision to admit the evidence. Justice Thomas first explained that the attenuation doctrine does apply here because attenuation is “not limited to independent acts by the defendant.” Id. at 5. He then went on to analyze the case under the three factors articulated in Brown v. Illinois, 422 U.S. 590 (1975). Id. Those factors are: (1) the time between the unconstitutional conduct and the discovery of evidence; (2) the presence of intervening circumstances; and (3) the purpose and the flagrancy of the officer misconduct.

Although Justice Thomas conceded that the first factor weighed in favor of suppressing the evidence, he explained that the other two factors outweighed the first. With respect to the warrant, he wrote that it was an “intervening circumstance” and noted that it “was valid”, predated Officer Fackrell’s investigation, and was “entirely unconnected to the stop.” Id. Moreover, when Officer Fackrell “discovered the warrant he had an obligation” to execute it. Id.

This part of the opinion is fairly reasonable. The warrant did exist, and the officer did have an obligation to arrest. It’s the next part of the opinion that goes astray.

The majority goes on to say that the officer’s conduct was not flagrant as a legal matter in that there was “no indication that [the] unlawful stop was part of a systemic or recurrent police misconduct.” Id. at 8. While this is true in the sense that it appears there was no evidence that Officer Fackrell was simply walking around checking ID’s for the fun of it, it is a bit disingenuous. At trial, the state conceded that Officer Fackrell did not even have “reasonable suspicion” to stop Mr. Strieff—that is, it conceded that the stop was unlawful.  So Officer Fackrell knew he couldn’t stop Mr. Strieff but did it anyway. His decision to then ask for Mr. Strieff’s credentials and subsequently run a check on them was almost certainly made knowing that he could arrest Mr. Strieff and search him incident to that arrest under Arizona v. Gant if Mr. Strieff had a warrant out for anything. Indeed, since Mr. Strieff had come out of a house that Officer Fackrell was surveilling for drug activity, he probably hoped to find drugs on Mr. Strieff. (Which, of course, he did.)

This is why the case is problematic. It appears to me—though obviously not to the majority—that Officer Fackrell made a calculated gamble to stop Strieff, get his identity, and run a check to see if he had any outstanding warrants. If, under these circumstances, anything that is found during the search made incident to arrest is admissible, then police officers have a strong incentive to continue this type of behavior. Even if the initial stop is unlawful, if a subsequent credential check returns an outstanding warrant the officer can then arrest the person pursuant to the warrant and search them knowing that whatever evidence of criminal activity they find—even if it’s totally unrelated to the arrest warrant—will not be suppressed due to the illegality of the stop.

Under this opinion, law enforcement is in a win-win situation. If they make an illegal stop, and there’s no warrant on the detainee they simply let them go on their way. Most people, at this point, will just be glad to be left alone. On the other hand, if an officer makes an illegal stop based on a hunch and it turns out the detainee has an outstanding warrant—something that is not particularly unusual in many less affluent communities—then the officer has earned an evidentiary bonus round. He can now do a physical search of the detainee incident to the arrest and be assured that whatever evidence he finds will be admitted in court. It’s hard to fathom why an officer wouldn’t do this.

And while Justice Thomas seems to take the optimistic view that the threat of civil suits should be enough to prevent the police from abusing this decision that seems unlikely. The court’s decisions have a huge influence on police behavior. Police departments rightfully train officers to aggressively use tactics that go right up to the boundaries of constitutionality. We should be grateful for this because aggressive law enforcement can save lives. But we should also recognize that this behavior means that is imperative that the courts fashions constitutional boundaries in ways that encourage police to respect citizen’s rights. In Utah v Strieff, the Court failed to do that.


SCoVA affirms grant of Habeas Writ when conviction leads to loss of protected status

In the recent case of Clarke v. Galdamez, a closely split Virginia Supreme Court upheld the grant of a habeas writ to Mr. Galdamez due to his attorney’s failure to correctly inform him of the adverse consequences that taking a guilty plea would have on his immigration status.

The Petitioner, Mr. Galdamez, is a native of El Salvador who was legally in the country under temporary protected status. (A status that US Customs and Immigration Service sometimes extends to nationals of a foreign country when conditions in their home country make it unable to safely return home.) In August of 2013, Mr. Galdamez was involved in a car accident as he pulled out of a parking lot onto a multi-lane road. Mr. Galdamez did not stop, but returned to the scene of the accident before the police arrived.

Mr. Galdamez was charged with felony hit and run, a Class 5 felony with a maximum sentence of 10 years imprisonment and driving while intoxicated. At trial, Mr. Galdamez told his atttorney that his priority was not to lose hisimmigration status in the United States and his attorney negotiated a plea deal. The deal reduced the hit and run from a Class 5 felony to a Class 1 misdemeanor and stipulated a maximum sentence of 180 days incarceration with 170 days suspended on the hit and run and 90 days suspended on the DWI. Mr. Galdamez took the deal.

A few months later, in December of 2013, the Department of Homeland Security notified Mr. Galdamez that his temporary protected status would be revoked as a result of his convictions since federal regulations state that a noncitizen living under temporary protected status forfeits his status if convicted of one or more felonies or two or more misdemeanors.(This was the point of contention; Mr. Galdamez claims that his attorney told him that two misdemeanors arising out of a single incident would not trigger revocation of his status.)

Mr. Galdamez then initiated habeas proceedings in which he alleged that had he been correctly informed of the effect his convictions would have had on his immigration status he would have rejected the plead agreement and taken his court to trial. The habeas court agreed, granted a writ of habeas, vacated his convictions, and remanded the case for further proceedings.

Senior Justice Lacy, sitting in for Justice McCullough, wrote for the four-justice majority that affirmed the habeas court’s actions. She began by establishing that when counsel’s performance with respect to a plea agreement is in issue, a petitioner must establish that “but for counsel’s erroneous advice, the defendant would have rejected the plea agreement and proceeded to trial and that such a choice would be rational under the circumstances.” (quoting Hill v. Lockhart, 474 U.S. 52, 57 (1985).)

The majority then rejected the Government’s argument that any decision to reject the plea agreement could not have been rational as a matter of law because the statute requires a driver who is involved in an accident to “immediately” stop at the scene and Mr. Galdamez admitted that he did not do so. It noted that the Government acknowledged that there were “a number of factual issues that could have been contested at trial.” In particular, the majority focused on the element of hit and run require that the defendant “knew or should have known” that property was damaged in the accident. As Virginia’s high court has previously explained, in order for a driver to be guilty of hit and run they “must be aware that harm has been done; in must be present in his mind that there has been an injury; and then, with that in mind, he must deliberately go away without making himself known.” Herchenbach v. Commonwealth, 38 S.E.2d 328, 329 (Va. 1946).

In his affidavit and his testimony at the evidentiary hearing for the habeas proceedings, Mr. Galdamez testified that he did not know that he was in an accident until he arrived at his destination. When he realized that he must have hit something, he returned to the scene. This was supported by the fact that the “police officer’s estimated damage amount” was low enough that  the majority to declined to find Mr. Galdamez’s testimony inherently incredible.

Applying the deferential standards of review, the majority went on to affirm the habeas grant.

Justice Kelsey, joined by Chief Justice Lemons and Justice McClanahan dissented. Justice Kelsey noted that the “wreck produced an estimated $4000 in damages to [Galdamez’s] vehicle and $2000 in damages to the victim’s vehicle.” And he emphasized that “[i]nstead of stopping to see if the victim was injured, Galdamez fled the scene of the accident and drove to a friend’s house where, by his own testimony, he consumed alcohol. About fifteen minutes later, his friend drove him back to the accident scene where he was later arrested. The arresting police officer described him as ‘obviously drunk.'”

Under these circumstances, Justice Kelsey felt that “a rational jury could not come to the conclusion” that Galdamez did not know he was in an accident because that conclusion “simply defies common sense.” He goes on to later explain that “if a defendant has no viable defense as a matter of law–thus rendering the charge essentially incontestable at trial–it would not be objectively rational to reject a plea bargain . . . .”

This is a close case, but I think the majority gets it right. It’s pretty clear that Mr. Galdamez was given incorrect information and if he’d been given the correct information then he would’ve taken his case to trial. The dissent’s argument, one that is frequently made in cases like this, comes from a point of view that improperly discounts the negative implications of deportation. In essence, it says that if it’s clear he’s going to be convicted then the rational decision is to take the plea agreement. That’s not true in immigration cases like this one.

Assuming that Galdamez truly does not care about the possibility of ten years of incarceration, then the only rational action is to reject the plea agreement regardless of how slim the chances at trial are. This is because taking the plea agreement means a 100% chance of deportation and no matter how slim the chances are at trial they’re better than that.

I think that what makes recognizing this difficult is that we, as Americans, don’t really appreciate how dangerous it is to live in a place like El Salvador. Last year, the Guardian ran a piece in which it noted that El Salvador was the world’s most homicidal place with a mind-blowing average of one murder every hourIn light of that, risking trial might seem a bit more rational.