The Supreme Court’s Protection of Person, Place, or Thing

In January, the Supreme Court released a decision relating to the placement of a GPS-based tracking device on a private citizen's vehicle. The device was placed there by the FBI and Washington, D.C. authorities in connection with a drug distribution investigation. The opinion, authored by Justice Scalia, has some interesting points, which we discuss below.

U.S. v. Jones₁, holds two interesting points of note for fans of Supreme Court trivia. The first is the unusual group of Justices who banded together to form the majority. Justice Scalia, well-regarded as one of the most conservative justices, was able to convince Justices Kennedy, Thomas, and Sotomayor to join in his opinion, as well as Chief Justice Roberts. While the concurrence of Roberts and Thomas is not unusual for an opinion authored by Scalia, Kennedy has often been viewed as a more "moderate" Justice. The outlier, of course, is Justice Sotomayor, who is fairly viewed as more favorable to progressive constitutional interpretation than Justice Scalia. Sotomayor also filed a concurring opinion, where she discusses her concerns about the majority opinion's applicability to electronic-only surveillance.

The second "fun fact" in Jones is that Scalia included his view of Fourth Amendment legal theory with the more modern interpretation found in Katz v. United States₂.Scalia's majority opinion is based in what constitutional scholars refer to as "originalism." Originalists read the Constitution and its amendments, and try to determine what was originally meant by the drafters of the document itself. At the opposite end of the spectrum are those who believe the Constitution is meant to be read as it applies to modern life and its unique challenges. Sometimes termed "constructionism," this school of thought was famously summarized by Al Gore in March of 2000, when he stated:

"I believe the Constitution is a living and breathing document and that there are liberties found in the Constitution such as the right to privacy that spring from the document, itself, even though the Founders didn't write specific words saying this, this, and this, because we have interpreted our founding charter over the years and found deeper meanings in it, in light of the subsequent experience in American life of the last 211 years of our republic..."

One unique aspect of Jones is that Scalia borrows from both originalist and constructionalist points of view in crafting his opinion. This blend of old and new is what makes U.S. v. Jones such an important case for the public. The Fourth Amendment guarantees the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." The originalist view of this language, as detailed by Justice Scalia, based the application of the Fourth Amendment in property: "Consistent with this understanding, our Fourth Amendment jurisprudence was tied to the common-law trespass, at least until the latter half of the 20^th Century."₃ Yet Katz and its progeny clearly pronounce that "the Fourth Amendment protects people, not places."₄

Scalia's opinion provides, to some degree, a neat integration of both camps. In placing a physical device (the GPS monitor) into the physical confines of Jones' automobile (one of his "effects," or possessions), the government had violated the "common-law trespass" element of the Fourth Amendment. But there remains a problem with trying to apply an originalist theory of "trespass" an application of satellite tracking of an automobile. Scalia recognized this, and the public's interest in having a right to privacy of our "effects" or chattels, including automobiles.

The long-term effects of Jones are unclear, as the four justices who did not join in the majority wrote their own opinions questioning whether "the installation and use of the GPS device" is one issue, as Scalia presented, or two₅. But the immediate effect is a marriage of both the historical and modern readings of the Fourth Amendment. Regardless of your stance on constitutional interpretation, that's a result we think you can appreciate.

_{1.US v. Jones, 565 U.S. (2012) 2. Katz v. United States, 389 U.S. 347, (1967). 3. Jones, 565 U.S.. 4. Katz, 389 U.S. at 351 (emphasis added). 5. Jones, 565 U.S., (Alito, J., concurring in judgment).}

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My Karma Ran Over My Dogma

About a year ago, we did this post about our client Cesar Medina, who sued West Valley police officer Jared Cardon for using excessive force during a traffic stop. Although the public comments were largely in favor of Cesar, we lost this case after a jury trial. We, along with many others, felt like justice had not been done.

Verdicts like this reinforce the common idea that police officers are incapable of being wrong. While most police officers are good people who are working hard to protect us, this misconception allows some officers to abuse their power and violate the constitution. What is even more frightening is that this was not the only time Cardon had been in trouble. He had been sued prior to the Cesar Medina case, and then he was sued again after our case.

Recently, however, things took a turn for the better. Last May, after our lawsuit against the West Valley City Police Department, Cardon shot at a suspect fleeing a hit and run incident. Cardon insisted that the suspect was driving directly towards him, and he shot at him in self-defense, even though witnesses claimed that the driver was trying to avoid the officer. Forensics supported this point as well.

Finally, the District Attorney’s office decided to investigate the incident. In finding the use of deadly force unjustified in that case, D.A. Sim Gill said:

“That’s not to say that the deadly force can’t be justified. No one wants to use deadly force unless absolutely necessary and called upon, but when you use that force and you don’t have the facts to justify what you did then you have to be held responsible.”

As a result of the investigation, Cardon was charged criminally, and resigned from his job as a police officer. Although this happened too late to help Cesar, at least future residents and visitors to West Valley do not have to worry about having their rights violated by Cardon.

(Deseret News Article)

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How Do I Know If I Have a Personal Injury Case?

If you have been injured, you might find yourself needing an attorney. Before you pick up the phone and start calling around, you might want to take a look at these helpful tips to see if you have a personal injury case.

First and foremost, you must have an injury. This may seem obvious. Although the legal definition of the word “injury” is a harm or damage, Utah law requires more for a personal injury case. In order to have a case, your injury must have needed at least $3000 dollars worth of medical treatment, OR it has to be permanent (i.e. scarring, disfigurement, disabling).

You must have been injured by someone else. In order to have a case, someone else has to be responsible for your injuries. Examples of this include: if you were in a car accident where you were a passenger in the car; if you were in a car accident as a driver, but did not cause the accident; or if you were a pedestrian hit by a car. In those cases, you can usually bring a lawsuit against the person who caused your injury and recover your damages.

Your actions can’t have caused your injury. To win your case in Utah, you have to be less than 50% to blame for your injury. Often times juries will look at how responsible you were for your injury before deciding on a verdict or deciding on the amount to award the plaintiff. One example of this is if you were turning left at a green light and an oncoming car hit you. Even if the car was speeding up to get through the yellow – or red – light (we have all seen this guy), you have the responsibility to yield to oncoming traffic. In this case, you could be considered to have more than 50% of the blame for the accident.

Your actions did not cause your injury or further injure you. When you have a lawsuit, one of the things your attorney will need to do is prove that the accident that you were in actually caused your injury. This can be very hard to do, for example, if you claim you were injured in a car accident but then decided to go skiing the next day and fell. In a case like this, it would be difficult to separate what injuries came from which event.

If you are still not sure if you have a personal injury case, feel free to call us at 801-533-0222 for a free review of your case.

SykesInjuryLaw.com

What to Look For In a Good Attorney

When you have been in an accident or have had a medical procedure go horribly wrong, it can change your life. You may not be able to work or do the things you love. You may have expensive medical bills to pay. You may be looking for a lawyer to help you get the money you need to pay these bills and make up for your injuries. Choosing a lawyer can be a big decision, and a very important one. Here is a guide to help you pick a lawyer:

First off, the don’ts. There are a lot of things that can be misleading when you are looking for an attorney. The attorney may promise big settlements, or fast results. A lot of attorneys have a catchy slogan or a flashy commercial. None of these things really mean that the attorney or law firm is good.

So what should you look for?

Look for an attorney that has experience in your type of case. You probably wouldn’t ask a chef to take your wedding photos. Similarly, you wouldn’t want to ask a bankruptcy attorney to handle your injury case. If you have been injured, you need to hire a personal injury attorney. It may even get more specific than that; some personal injury attorneys, like Bob, are well known for their work in specific areas, like brain injuries.

Look to see if they care. By the time you start talking to an attorney about the details of your case, you should be able to tell if the attorney seems invested in your cause. A good attorney will ask lots of questions about your case so that they will be able to argue your cause. They will also listen intently, answer any questions you have, and explain things that only seem to make sense to lawyers. Overall, they should appear to have your best interest at heart, trust your gut when it comes to this.

A good attorney is honest with you about your case. Sometimes the truth can be hard to hear, especially when it has a great impact on your life. However, a good attorney will tell you the hard-to-hear facts about your case; they will be completely honest with you about what things might be hard to prove and how much your case is worth. While this might be a little distressing, you can take comfort in the fact that the attorney is going to be honest with you on everything, if they are willing to be honest on the things that are harder to hear. You can also know that they would not have taken your case in the first place unless they truly believed in you and your cause.

When in doubt, ask for references. This is just a good rule anytime someone refers you to another person or service. That means that they were probably happy with them. When you are looking for a lawyer, it is always a good idea to start with family and friends to see if they used anyone in the past that they liked. Also, it is a good idea to ask other attorneys for references. If an attorney doesn’t feel comfortable handling your case because it is not the kind of work they do (see do number 1), then they will refer you to the person they think will best be able to handle it. Lawyers will not refer you to other lawyers that they do not think are good lawyers or think are untrustworthy.

If you keep these things in mind when looking for a lawyer, you will be able to get the representation you deserve.

SykesInjuryLaw.com

Why You Should Never Agree to a Police Search

A lot of times in our work in civil rights, we hear a lot of stories about unlawful searches. What is intriguing are people’s reactions to these cases. Often times, people are under the misconception that agreeing to a search will make things easier for them in the long run. In reality, agreeing to a search can cause a lot of trouble even if you have nothing to hide. This article by Scott Morgan explains why:

Do you know what your rights are when a police officer asks to search you? If you're like most people I've met in my eight years working to educate the public on this topic, then you probably don't.

It's a subject that a lot of people think they understand, but too often our perception of police power is distorted by fictional TV dramas, sensational media stories, silly urban myths, and the unfortunate fact that police themselves are legally allowed to lie to us.
It wouldn't even be such a big deal, I suppose, if our laws all made sense and our public servants always treated us as citizens first and suspects second. But thanks to the War on Drugs, nothing is ever that easy. When something as stupid as stopping people from possessing marijuana came to be considered a critical law enforcement function, innocence ceased to protect people against police harassment. From the streets of the Bronx to the suburbs of the Nation's Capital, you never have to look hard to find victims of the bias, incompetence, andcorruption that the drug war delivers on a daily basis.

Whether or not you ever break the law, you should be prepared to protect yourself and your property just in case police become suspicious of you. Let's take a look at one of the most commonly misunderstood legal situations a citizen can encounter: a police officer asking to search your belongings. Most people automatically give consent when police ask to perform a search. However, I recommend saying "no" to police searches, and here are some reasons why:

1. It's your constitutional right.
The 4th Amendment to the U.S. Constitution protects us against unreasonable searches and seizures. Unless police have strong evidence (probable cause) to believe you're involved in criminal activity, they need your permission to perform a search of you or your property.
You have the right to refuse random police searches anywhere and anytime, so long as you aren't crossing a border checkpoint or entering a secure facility like an airport. Don't be shy about standing up for your own privacy rights, especially when police are looking for evidence that could put you behind bars.

2. Refusing a search protects you if you end up in court.
It's always possible that police might search you anyway when you refuse to give consent, but that's no reason to say "yes" to the search. Basically, if there's any chance of evidence being found, agreeing to a search is like committing legal suicide, because it kills your case before you even get to court.
If you refuse a search, however, the officer will have to prove in court that there was probable cause to do a warrantless search. This will give your lawyer a good chance to win your case, but this only works if you said "no" to the search.

3. Saying "no" can prevent a search altogether.
Data on police searches are interesting, but they don't show how many searches didn't happen becausea citizen said no. A non-search is a non-event that goes unrecorded, giving rise to a widespread misconception that police will always search with or without permission.
I know refusing searches works because I've been collecting stories from real police encounters. The reality is that police routinely ask for permission to search when they have absolutely no evidence of an actual crime. If you remain calm and say no, there's a good chance they'll back down, because it's a waste of time to do searches that won't hold up in court anyway.

4. Searches can waste your time and damage your property.
Do you have time to sit around while police rifle through your belongings? Police often spend 30 minutes or more on vehicle searches and even longer searching homes. You certainly can't count on officers to be careful with valuables or to put everything back where they found it. If you waive your 4th Amendment rights by agreeing to be searched, you will have few legal options if any property is damaged or missing after the search.

5. You never know what they'll find.
Are you 100 percent certain there's nothing illegal in your home or vehicle? You can never be too sure. A joint roach could stick to your shoe on the street and wind up on the floorboard. A careless acquaintance could have dropped a baggie behind the seat. Try telling a cop it isn't yours, and they'll just laugh and tell you to put your hands behind your back. If you agreed to the search, you can't challenge the evidence. But if you're innocent and you refused the search, your lawyer has a winnable case.
Remember that knowing your rights will help you protect yourself, but no amount of preparation can guarantee a good outcome in a bad situation. Your attitude and your choices before, during, and after the encounter will usually matter more than your knowledge of the law. Stay calm no matter what happens, and remember that you can always report misconduct after things settle down.
Finally, please don't be shy about sharing this information with your friends and family. Understanding and asserting your rights isn't about getting away with anything, and it isn't about disrespecting police either. These rights are the foundation of freedom in America, and they get weaker whenever we fail to exercise them.

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