Month: September 2014

Can My Case be Dismissed Because the Officer took Too Long?

Can My Case be Dismissed Because the Officer took Too Long?

A traffic stop should be reasonably short, but often drivers are subjected to what may seem like hours of detention. Sitting behind the wheel interminably with a cop’s spotlight pointed directly in your side view mirror, you may feel like something unlawful is going on.

A police officer may hold a driver during a traffic stop, unfortunately there is no ruling as to how many minutes or seconds is permissable.

Here are some of the principles that can determine how long is too long for a traffic stop:

You can not be Unreasonably Prolonged

The U.S. Supreme Court has never given a bright-line rule with regard to how long a traffic stop can last. However you must remember that a lawful stop can become unlawful “if it is prolonged beyond the time reasonably required to complete the initial mission,”  see Illinois v. Caballes in 2005.  This means that when a cop pulls you over for a traffic stop, the officer must have some reasonable suspicion that you’ve committed a traffic or criminal offense.

Once the stop is accomplished (i.e., your car is pulled over), then the officer must investigate the offense or issue a ticket for that offense within a reasonable timeframe.  For example, if you are caught failing to stay in one lane and get pulled over, a police officer may not detain you for longer than is reasonably necessary to investigate that traffic offense — unless there is new evidence of a crime that turns up during the stop. (i.e. the officer smells alcohol eminating from your vehichle.)

The Nevada Supreme Court found in 2013 that detaining a driver after issuing a traffic warning (in order to accomplish a drug sniff) was an unreasonably long detention.

Can My Case be Dismissed Because the Officer took Too Long?

If the Officer has Probable Cause he/she May Conduct More Investigation

While a detention under reasonable suspicion must be limited in time and scope to investigating or executing the offense initially observed, an officer may prolong a traffic stop if new evidence provides probable cause for arrest or search.

For example, if an officer stops a vehicle for running a red light, smells marijuana wafting from the driver’s seat, and sees signs of intoxication from the driver, then that may provide probable cause to search the driver for marijuana and/or perform field suubriety tests. And these investigation steps may prolong an ordinary traffic stop for a bit longer than usual.

These are just a few of the factors that courts may use to determine whether a traffic stop took too long. If you feel like you were kept unreasonably long at a traffic stop, contact our office for a free consultation today.

Can My Case be Dismissed Because the Officer took Too Long?

What Criminal Defense Attorneys Do

What Criminal Defense Attorneys Do?

What Everyone Else Thinks Criminal Defense Attorneys Do

We are “innocent until proven guilty.”  This certainly stands true in criminal defense.  The important thing to note is that many of our clients are innocent, and we are trying to help prove it.   Admittedly, some clients are guilty, and don’t attempt or desire to hide it.  Those client’s, however, aren’t trying to get away unscathed, they are trying to make amends and get on with their lives.  From a moral perspective, Stevens & Gailey, P.C. isn’t trying to litter the streets with criminals, but trying to get just and fair deals for our clients and not destroy their lives due to a mistake.

Why Criminal Defense Attorneys Do What They Do

Many of our clients believe cooperating with the police means they will get a better deal in the end.  It is imperative to know that sometimes people say things that will lead to their conviction or admit guilt, regardless of whether or not they are truly guilty.  Many people are intimidated into saying things that they don’t mean or aren’t true.  Often times, detectives will pretend to be your friends stating everything will be ok or easier if the individual just confess.  This is completely legal, by the way.  Other times, detectives will interrogate suspects and say what they feel is necessary to get them to admit guilt, regardless of whether or not the information they are feeding you is true.  This is also legal.

For me, from a moral perspective, we at Stevens & Gailey, P.C. are trying to help prevent confusion within the legal system.   When a client comes in and admits they are guilty, they aren’t asking our attorneys to get them off with no reprocussions; they are asking our attorneys to help them right their wrongs.  Many are aware of the reality that they will have to pay a fine, do community service, or in extreme cases, serve jail-time.  These clients, however, are very aware and have accepted the fact that this is the case, and our attorney’s don’t hide the probability of these outcomes.

The best way to defend yourself is to know your rights.  To know your rights, you have to understand the law.  The problem is that there is so much law – both federal and state –  that unless you’ve studied the law significantly, there is no way for you to truly understand it.   That is why our attorneys are here

Poaching in Utah Criminal Defense

As the Fall hunting season begins: hunters beware!

If asked most hunters would say Poaching is “to kill any animal when you had no right to”.

The common sense definition of poaching makes sense, unfortunately the Utah Code is not so cut and dry. Utah criminal law has variying degrees of mens rea or mental levels of culpability that can lead to a criminal conviction. They are as follows: 1) intentionally, 2) knowingly, 3) recklessly, and 4) negligently.  See (Utah Code § 76-2-101(1)(b)(i) ).

Poaching in Utah Criminal Defense
Poaching in Utah Criminal Defense

People generally tend to think that if they did not intend for something to happen, or did not mean for a specific result to occur, then they should not be found guilty. However, do not be fooled, Utah law, is not written in such a way.

Under the Wildlife Resources Code of Utah § 23-20-3 states, in part, that:

(1) Except as provided in this title or a rule, proclamation, or order of the Wildlife Board, a person may not:

(a) take protected wildlife or its parts;

(b) collect, import, possess, transport, propagate, store, donate, transfer, or export protected wildlife or its parts;

(c) take, possess, sell, purchase, barter, donate, or trade protected wildlife or its parts without having previously procured the necessary licenses, permits, tags, stamps, certificates of registration, authorizations, and receipts required in this title or a rule, proclamation, or order of the Wildlife Board;

(d) take protected wildlife with any weapon, ammunition, implement, tool, device, or any part of any of these not specifically authorized in this title or a rule, proclamation, or order of the Wildlife Board;

This statute is basically a catch all, and allows for prosecution even when a Utah hunter did not intentionally break the law. An individual can even be prosecuted under this section if they made an honest mistake as to their location (thinking they were on a different tract of land).

The statute is allowed to catch ‘honest mistakes’ because of paragraph (3)(b). The paragraph says: “does so with criminal negligence as defined in Subsection 76-2-103(4). § 76-2-103(4) says:

“With criminal negligence or is criminally negligent with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise in all the circumstances as viewed from the actor’s standpoint.”

A hunting example of criminal negligence would be if a hunter, who has a Utah hunting license, thought he was on land he could shoot the animal and was actually 5 feet off the land. Even though the hunter did not intend to take an animal illegally (poach), and had a license, he could be prosecuted under § 23-20-3.

Hunters, be careful. Know your location before you pull the trigger. Because, even though you have a license, and do not have the intent to take an animal unlawfully “It was an honest mistake”.  You could still be prosecuted for an honest mistake, or in the eyes of Utah law, criminal negligence.

Source: Utah State Legislature, “Title 23 Utah Criminal Code Chapter 20 Section 3,” accessed on Sept. 19, 2014

How long can prosecutors wait to file sex crime charges in Utah?

How long can prosecutors wait to file sex crime charges in Utah?

Under Utah laws, this question depends on the specific charges that are brought against a person. Under Utah Code section 76-1-301, many sex crimes — including aggravated sexual assault, sexual abuse of a child, forcible sodomy, rape and others — have no time limitations. This means that prosecutors can bring charges against a person any time after the commission of an alleged crime. Assault chargesCriminal defense attorney salt lake city

Under Utah code section 76-1-302, however, many other felonies have a four-year limitation, while misdemeanors have a two-year limitation. Forcible sexual abuse and incest have eight-year limitations. However, in order for the eight-year limitation to apply, the alleged crime must have been reported within the first four years after it was committed.

How long can prosecutors wait to file sex crime charges in Utah?

As you can see, these limitations are complex and vary based on the specific charges brought against a person. Therefore, this post cannot provide specific legal advice about a particular case. Instead, people facing criminal charges for sex crimes need to seek the guidance of an attorney. Attorneys in ogden utah

With the right help, people can understand the specific charges against them, whether prosecutors can bring the charge and what the potential defenses to the charge might be. This knowledge can help people fight the charges and avoid penalties.

Source: Utah State Legislature, “Title 76 Utah Criminal Code Chapter 1 General Provisions,” accessed on September 19, 2014

How long can prosecutors wait to file sex crime charges in Utah?

Common Facts about Police Search and Seizures

When are police considered “searching” during an investigation?

In general, a court will ask two questions to conclude whether a police investigation turned into a search.  First, the court will ask if the person whose home or property were being investigated/searched expected a degree of privacy. Next, the court will ask if that expectation of privacy was reasonable.  This question is answered in the light of society, meaning the question revolves around whether society would recognize some sort of privacy in the matter in question.

For an investigation to turn into a search, a court must conclude that the investigation impinged or intruded upon a person’s “legitimate expectation of privacy.” This is found when the answer to the above two questions is yes. If either question can be answered in the negative, meaning that the person being search either did not have something to keep private, or if the expectation of privacy was not reasonable, then there was no search.

Is my private property really that private?

Property that is within your house or on your property is generally considered to be private. If the police have to enter onto your property in order to get a look at the evidence or other property that they wish to use in court, they generally have to have a search warrant to do so. However, there are certain situations, like stopping suspects from destroying evidence, in which police can search and seize your property in your home without a warrant. This is because the situation itself demands prompt action by the police.

If you consent to an officer searching your home, however, you waive any right to challenge a warrantless search later on. Additionally, if an officer is on your property for a legitimate reason (perhaps pursuing a felon), any contraband that is in plain sight of the officer is fair game to be seized, even without a search warrant.

The police told me they have a search warrant, what is it and what did they need to do to get it?

A search warrant is a judicial order issued by a judge or magistrate that gives permission and authorizes the police or other law enforcement agency to conduct a search of a location or person and to seize any evidence of a criminal offense. The search warrant is addressed to the person to be searched or to the person who owns the premises to be searched and informs the addressee that the judge issuing the warrant has found it reasonably likely that certain evidence may be found there.

Generally speaking, police officers or other law enforcement agencies must apply for a search warrant before conducting a search of the person or premise in issue. If any search is conducted in the absence of a search warrant, it is presumed to be unreasonable and will likely be ruled an illegal search and seizure. If a challenge to such a search is made, the police or parties conducting the search will have to explain and justify their reasons for conducting a search, as well as explain why a warrant was not issued before the search.

The police must normally make a minimum showing to the judge issuing the search warrant in order for the judge to make the decision to grant the order. Police have to show the judge that:

  • Probable cause exists that a crime has occurred, and
  • Evidence or contraband linked to that crime will more than likely be found in a certain location on the property or person at issue.

What powers do police get when they have a search warrant?

A search warrant gives the police the legal authority to enter a premise without permission of the owner to search for the evidence listed in the warrant in the places authorized by the warrant. For example, if the search warrant allows the police to search the bathroom of a home for illegal drugs, then the police should confine their search to the bathroom.

There are certain exceptions to this search warrant rule which routinely allow police to conduct a wider-spanning search than allowed by the search warrant, however. In general, police can search beyond the scope of the search warrant in order to ensure their own safety as well as the safety of others. In addition, police can search widely to stop the destruction of evidence, look for evidence beyond the scope of the original search warrant because their initial search revealed that there may be additional evidence in other locations on the property, or to find more evidence based upon what is in plain view.

Some examples may clarify these points. If the police have obtained a warrant to search the garage of a house, they may walk through the home in order to get to the garage to conduct their search. If, on the way to the garage to look for drugs, the police hear toilets flushing upstairs, the police may broaden their search in order to check the bathrooms for illegal drugs that are likely being flushed down the drain. Or, a search of a dining room may be expanded to the kitchen if police hear a gun being loaded by the refrigerator.

Lastly, and it should be emphasized, the police can seize evidence that is in plain view if the police are there for a legitimate reason. For example, if, on their way to search the garage, the police see four bags of marijuana sitting on the coffee table, the police can seize the drugs.

Are search warrants required for every search?

As you may have guessed from reading above, the answer to this question is no not every search is an illegal search and seizure in the absence of a warrant. Here are some of the main examples in which police or other law enforcement agencies do not need a search warrant to conduct a search:

  • Consent. If the police show up at your door and ask you if they can come inside to search for drugs and you consent to the search, then the police do not need a warrant.
  • Emergency. If the police’s search is in an emergency situation, then they may not need a search warrant. For example, if the police are pursuing an armed suspect that has disappeared into a small neighborhood, they may not need a search warrant to search any of the homes there because the suspect is putting the residents at risk.
  • Searches incident to arrest. After a person has been arrested by the police, the law enforcement officers may conduct a search of the person and his immediate surroundings for weapons that may be dangerous to the officers or others.
  • Plain view. Police do not need a search warrant to seize evidence that is in plain view of a place where the police are legally authorized to be.

My landlord/roommate gave the police permission to search my belongings – was this an illegal search and seizure?

Generally speaking, the person in charge of an area has the power to give permission to the police to search the area. So, if you share an apartment with a roommate, your roommate probably has the power to give permission to the police to search common areas in the apartment, like the living room or the kitchen, but not your personal bedroom.

Likewise, your landlord cannot give permission to the police to search any part of your apartment, except places like a communal common area, like a washer/dryer room in an apartment building. However, you should keep in mind that it is not an illegal search and seizure if the police search your apartment without any permission if they feel that the search is an emergency.

During a traffic stop, can the police search my car and frisk me?

In general, the police are allowed to search and frisk you if they have a reasonable suspicion that you are armed during a traffic stop. This is not an illegal search and seizure. In addition to frisking for weapons, the police can also pat you down for contraband material, like drugs. A recent Supreme Court ruling altered the laws that allow a police officer to search a car after a traffic stop. The Court ruled that a search of the passenger compartment of a car is only allowed if either:

  • The driver/arrestee is within reaching distance of the passenger compartment at the time of the search (meaning that the police cannot search your can if you are arrested in the back of the squad car), or
  • It is reasonable to believe the vehicle contains evidence of the offense of arrest (meaning the police cannot search your car for weapons unless they arrested you for a violent crime or illegal weapon possession).

Source: “Search and Seizure Law“, accessed Septeber 12, 2014.

New Filing Deadlines for Divorces

There are a few basic rules you should know and keep in mind when calculating deadlines, as the Utah rules have changed as of May 1, 2014.

When to Start?

First, you should know when the time period begins, ie. what day will you count as day “one.”  The Utah Rules of Civil Procedure Rule 6 states “exclude the day of the event that triggers the period.”  For example, if you were to file a Complaint on Monday, you would begin counting on Tuesday, if you are served with a Complaint on Wednesday you should start counting on Thursday.

What about Weekends & Holidays?

When you are counting the days you should count every day, including Saturdays, Sundays and legal holidays.  This is a new this year.  Prior to this change, for some deadlines weekends were not included – THIS IS NO LONGER TRUE.

Additionally, if the time period ends on a weekend or legal holiday, move your deadline to the next day that is not a weekend or legal holiday.  For example, if you were counting 21 days after being served and the 21st day was on a Sunday, the deadline would actually be Monday.

Most of the time, the deadline to file something is midnight for electronic filing or mailing (postage stamp), but if you are not filing electronically and are filing by hand then you must file by the time the clerk’s office is scheduled to close.

What about Delayed Mail?

If you receive any pleadings by regular mail under Rule 5(b)(1)(A)(iv) then 3 more days are added to the end of your deadline for your time to respond.   If you send a pleading by mail, remember that the other side will be adding 3 days to the end of their deadline. For example, if you received a motion that is to be heard before a judge in the mail, then you have 14 days plus 3 more days before your response would be due.

Does it matter whether I am in front of a Judge or a Commissioner?

Pursuant to the new rules, deadlines for Judges and for Commissioners are different.  You must find out from the court – “Who will be sitting at the hearing?” If the court does not know – assume it is the judge, OR look to the Utah Rules of Civil Procedure Rule 7Rules 26 and 26.1, or Rule 101 to determine whether a judge or commissioner will be hearing the pleadings.

If the pleading is going to be heard by a judge, then you count forward, as described above. For example, if you file a Motion for Summary Judgment to  be heard by the Judge on Monday.  The opposing side will have 14 days to respond under Rule 7, and counting forward 14 days this would be a Monday also, unless it’s a holiday (then move to Tuesday). If the opposing party fails to file a response by Monday, 14 days later, then the response would be untimely.  Most of the time, you will be counting forward – Complaints and Petitions are considered before the judge.

However, commissioners count days for deadlines backwards.  In other words, ONLY WHEN A HEARING HAS BEEN SCHEDULED can you know the deadlines.  For example, if you file a Motion for Temporary Orders, you should also call the commissioner’s clerk to set a hearing so there will be a deadline for the opposing party to respond.  If the hearing is set for Friday the 25th of July, Rule 101 says that for commissioners, the due date for the opposing party to respond is 7 days in advance of that hearing. So, do not count the Friday of the hearing; begin Thursday as day “one” and count backward 7 days. In this case, that would be midnight the 18th of July, also a Friday. Note, that if the date you land on when counting is a holiday, you move in the SAME DIRECTION you were counting to the next non-weekend, non-holiday day. In this case if Friday the 18th were a holiday, the due date is now July 17th for the other party’s response – NOT Monday the 21st.

If you have any questions please feel free to contact or schdule a consultation with one of our attorneys.