FACTS:

A cop pulled over the defendant Rodriguez for a minor traffic violation. He checked Rodriguez’ license and registration, then issued Rodriguez a warning ticket. After concluding the reason for the stop, he asked Rodriguez for permission to walk his drug-sniffing dog around the car. Rodriguez refused, so the cop made him wait 7-8 minutes until a backup officer arrived. A drug dog then sniffed the car and drugs were found. Rodriguez was convicted.

HELD:

The Supreme Court threw out the conviction, noting that an officer’s job during traffic stops typically includes only those issues involved in the safe operation of a motor vehicle: checking for a valid operator’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance. The court held a dog sniff is not part of an officer’s “traffic mission.”

Unless the officer has a reasonable and fact-based suspicion that further criminal activity is afoot, he may not prolong the stop beyond that time necessary to complete the traffic investigation. In Rodriguez’ case, the legal traffic stop ended the moment Rodriguez was handed his warning ticket.

The court also made it clear that it did not matter whether the dog sniff occurred in the middle of the stop or at the end. A valid stop ends and the illegal detention begins either:

1. as soon as the investigation concludes; or
2. as soon as it ought to have been concluded, which ever comes first.

The cop cannot extend the length of the detention–whether during or after the stop–unless he has additional evidence of a crime.  Even if the delay is very brief, any continued detention is considered illegal.

A lawyer can hold just so much law in his or her head, so what really happens is that he is constantly learning how he broke the law and didn’t even know it. The rest of you are breaking it all the time, too, but you never realize it until you get caught.

I was researching the disposal of animals (some guy had dumped a load of carcases in a ditch) when I was horrified to realize I’d recently committed the crime of burying our family cat (which had died, of course) in my back yard, complete with a paint-lettered tombstone. It turns out you can’t bury your dead cat (or hamster or even a goldfish) unless it is 50 feet from the property line and 300 feet from the neighbors house. Section 269.020, RSMo. That was a little tough to do in my neighborhood.

And I may be breaking other laws without knowing it. Did you know that you’ll pay a $100 fine if you allow any musk thistle to go to seed on your property? Section 263.190, RSMo.

I’ve got a little wooded section at the back of my yard. I don’t go down there much, but even if I did, I don’t know what a musk thistle looks like. [FLASH UPDATE: I googled the musk thistle and that’s one in the picture]

Have you moved since you renewed your driver’s license? If the Department of Revenue drew your name from a hat and sent you a letter last summer demanding that you prove you have insurance, you may have missed that letter. Sp you didn’t respond. By now, of course, your license is suspended. If you get caught driving, you will be arrested, handcuffed like the criminal that you are, and taken to the county jail. The punishment is 48 hours to a year in jail and a year-long revocation of your license. The law can be tough.

Of course sometimes the law pretends to be tougher than it is.

How often do we hear that law enforcement is going to “crack down” on drivers not wearing their seat belts? They make it sound as if they will be watching for you and pulling you over if you don’t wear your seatbelt. It’s all bogus, as they well know. They can’t pull you over and ticket you for it in Missouri unless you commit some other traffic offense. Every year, the highway patrol spends the whole spring trying to get the mandatory seat belt law passed and then spends the rest of the year pretending that they succeeded.

If you’ve been told to fear “wildlife checkpoints” on public highways during deer season, it’s just more propaganda. Law enforcement cannot (without reasonable suspicion) pull you over to check if you have an illegal deer in the back.It makes you want to laugh and cry. They cleverly make you think you are a lawbreaker to get you to do what you don’t have to do. Meanwhile, you are probably committing five other offenses you’ve never heard of.

It won’t be long now before the legislature is back in the saddle, ready to amuse and alarm us with dubious proposals against openly selling baking soda, motorcycle stunt driving and other horrors. I will keep you posted when the time comes.

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Senate bill 613, known as the SECOND AMENDMENT PRESERVATION ACT is moving forward

Key provisions are:

Declares invalid all federal laws or orders that infringe on the federal and state right to keep and bear arms. Such infringments would include confiscation, taxing, registering, tracking, selling and trading of firearms, ammunition or accessories.

 – No law enforcement officer or agency may enforce such infringing federal laws and they may be sued by Missouri citizens whose rights are thereby violated. Attorney’s fees and costs are paid by the loser of such lawsuit. The defendant cannot use governmental immunity as a defense. The violator may be arrested and charged with a Class A misdemeanor. This  is effective on August 28, 2017, or upon the passage of any federal law that curtails the right to keep and bear arms or upon the passage of similar laws in at least four other states.

– The bill permits open-carrying of a firearm by persons holding a concealed carry permit in all political subdivisions in the state. It also forbids the disarming or restraint of any persons carrying a handgun except where there is a reasonable suspicion of criminal activity. No political subdivision may outlaw the otherwise legal use of a firearm in the defense of persons or property.

– Provides for the training and designation of school teachers or administrators as armed “school protection officers.”

– There is also a provision that no health care professional may be required by law to inquire if patients own firearms, or to document or notify authorities of such ownership, unless by court order. [Bill modified 01/27/2014:  no longer prohibits doctors from documenting ownership status, but it does require written permission to disclose that information]

– Lowers the age to obtain a concealed carry permit from 21 to 19.

– Makes possession of a firearm a felony for any person illegally present in the state.

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Passage of this (or a similar) bill seems likely and if the governor signs (or his veto is overridden), this will create a confrontation with federal law enforcement agents who heavily count on the cooperation of local law enforcement.

The threat of state prosecution may not thwart federal agents, but it will give pause to any Missouri law enforcement agency or officer thinking about assisting federal efforts to enforce federal firearms laws. For an overview of Missouri Weapons offenses, see Chapter 571 of the Missouri Revised Statutes.

I will happily accept any critique or notice of typos.

• In the past, the law prevented anyone from getting more than one limited driving privilege permit within a five year period. There is now no limitation to the number of limited privileges one may obtain. Section 302.309.3(6). Eligible persons may receive a limited driving privilege if their license is revoked for failure to submit to a chemical test (usually a breath test), but they must complete the first 90 days of the revocation and obtain a certified ignition interlock device.
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• Persons under a five or ten year license denial may now petition the court for a limited driving privilege without a waiting period. The court must grant a limited driving privilege to any person who otherwise is eligible, has filed proof of installation of a certified ignition interlock device, and has had no alcohol-related enforcement contacts since the contact that resulted in the license denial. [Note that any person with a felony DWI conviction will still be denied a limited privilege under section 302’309.3(6)(b), unless issued by the DWI court.]
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There are also some other changes coming on March 3, 2014. One of those will allow first time DWI offenders a restricted driving privilege so they may drive to work [or to school, or to attend a SATOP program] during the 30 day suspension period.  Currently, they are not permitted to drive at all during that 30 days. Drivers will have to install an ignition interlock device to take advantage of this provision.

Many lawyers used to advise their clients that if they were asked to take a breath test, they should refuse the test unless it was a first offense DWI where no personal injuries were involved. This was because a first offense DWI conviction will result in a 90 day suspension of a driver’s license, but anything more serious often involves a revocation of a year (or more) as well as heavier criminal punishments. In those more serious cases, it seemed smart to refuse the test and deny the police the proof of one’s blood alcohol level (which could easily make the difference in getting a conviction).

While prosecutors have long had the power to get a search warrant to take a sample of a suspect’s blood and determine his blood alcohol that way, it was seldom done, except in felony cases. For prosecutors it involved getting themselves and a judge out of bed in the middle of the night to draft and sign a search warrant.

Things have changed over the last several years as the legislature, prosecutors and pressure groups like MADD (Mothers Against Drunk Driving) have pushed for tougher prosecution. These days, obtaining search warrants for blood has become routine in any DWI case where the driver refuses to give a breath test. This development has subjected the suspected drunk driver to a triple whammy if he refuses the breath test:

• First, the police still get their blood alcohol level to use against the defendant in court (courtesy of the search warrant)

• Second, the state still revokes his driver’s license for a year because he did–after all–refuse the test (not to mention causing a prosecutor and a judge to get out of bed).

• Third, the prosecutor gets to tell the jury what a jerk the driver was for refusing the test.

Considering this result, one must carefully consider before refusing to take a breath test. I tell clients that if they refuse, the cops will take their blood anyway, and then . . . the triple whammy. I suppose there is always the chance that blood sample will be lost, or otherwise screwed up. Or the test result could get misplaced, but I wouldn’t bet money on any of those things happening.

I should mention that the cops must allow a suspect 20 minutes to call a lawyer for advice on whether to blow–if the suspect asks for it. All my lawyer friends and I may–or may not–be up waiting for that 2:00 a.m. phone call. Needless to say, being intoxicated does not enhance one’s ability in making this difficult decision.

In contemplating this situation, I’ve often wondered what I might do if I were confronted with this dicey choice to take or refuse a breath test. If I refuse, they are going wake a prosecutor, then they are going to wake a judge and then the judge is going to sign a search warrant: basically a court order telling the police officer to take a sample of my blood.

There are police officers or police technicians in some places who may be qualified to draw blood, but in my neighborhood, the police are going to take me to the local emergency room. They then show the search warrant to the nurse or technician and tell them to take two tubes of my blood. They obey and everyone is happy except me.

What if–just before the nurse sticks me–I say to her:

“Get away from me. I do not give you consent to take my blood. Take a look at the search warrant. Does that paper personally order you to take my blood, violating my rights and your professional ethics? See if your name is on it.

I am not sick; I’m not injured and I’m not your patient. Without my consent what you are doing is simply a criminal assault. If you do this, I will file a criminal complaint and I am going to sue you, this hospital and its Board of Directors for every nickel you’ve got. That warrant may be Officer Friendly’s get-out-of-jail-card, but you don’t have one. I suggest you call a lawyer.”

Or something like that, even if my speech was a bit slurred. I should note that prosecutors have been taught to insert language into a search warrant that directs some unspecified health care professional to execute the warrant. This seems questionable to me, since Missouri  law requires that a search warrant: 1) be directed to a peace officer; and 2) that it “be executed only by a peace officer.”

I don’t know how all that would work out in the courts, but how many health care professionals would willingly put their licenses and their assets on the line without knowing in advance they were 100% safe in doing what some cop assures them is fine. True enough, they are accustomed to committing acts which in any other context would be a criminal assault (sticking, cutting, drugging, etc.). But that’s OK, because it is done with expressed–or at least implied–consent of the patient. In that situation they are trying to help a patient.

The trouble with taking blood for evidence is that nobody suggests they are treating or helping a patient. Instead, he is a prisoner and he is not being given medical treatment. He does not consent; and if he physically resists the draw, the nurse may end up harming him.

Until recently, I’ve wondered what would result if a suspect tried to discourage E.R. personnel in this way. My bet was that health professionals would refuse and that law enforcement would try to bully them into obedience. That is, indeed, what is happening:

Doctors refuse to pump suspect’s stomach despite search warrant

In one recent case, a man was suspected of swallowing cocaine, so police got a judge to sign a search warrant to pump the man’s stomach. The doctors advised the authorities that unless the man consented to the invasive procedure, they could kiss off. The cops had no choice but to mount a five-day vigil around the suspect’s backside, which failed to produce any evidence.

Florida nurse arrested for refusing blood draw

If the police did not manhandle the obstinate doctors in that case, things did not go as well for a mere nurse who applied the same professional ethics. When presented with a search warrant to draw a suspect’s blood she refused and the sheriff’s deputy arrested her and took her to jail on obstruction of justice charges. Although the charges were later dismissed, a federal jury refused to award her damages for the incident.

This issue pits police against health care workers who are being forced to act in ways that conflict with their care-giver role. A similar conflict prevents a physician from assisting in the execution of criminals. Ultimately, this ethical conflict–along with the requirement that a peace officer execute all search warrants–could cause the widespread use of some sort of peace officer paramedic, that is, someone with a badge, but unburdened by any medical ethics.

1. that a seemingly abusive St Louis police officer brutally struck a hand-cuffed teenager in the head and was then acquitted of assault by a St Louis judge who (for reasons unknown) refused to admit the video of the unprovoked  assault into evidence; or
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2. that Missouri State Representative Jeff Roorda–who is also spokesman for the  police union–defended the officer’s attack on the suspect and argued that police vehicle cameras should be used to protect the police, not to make them accountable for wrongdoing.

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Decide for yourself.  The link and video are below.  It raises the question of how well Roorda can represent both the St Louis area citizens of District 113 and rogue cops at the same time.

Surveillance video released of St. Louis officer allegedly beating handcuffed teen

Full video follows the news story: