The tickle of curiosity. The gasp of discovery. Fingers running across the keyboard.

The tickle of curiosity. The gasp of discovery. Fingers running across a keyboard

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Showing posts with label Law. Show all posts
Showing posts with label Law. Show all posts

Sunday, February 19, 2017

Talk About a Plot Twist! Jury information with Judge Hopkins


Today our guest is the Honorable Judge Hopkins.
Judge, would you introduce yourself to everyone?

Judge Hopkins-
My name is Bill Hopkins and I have been in the legal profession since 1971. I have been a civil attorney, criminal defense attorney, prosecutor, administrative law judge, and trial court judge, all in the state of Missouri.


Fiona - 
This article is "Jury Nullification in Criminal Trials" which is not something I've ever heard of before. But you're going to walk us through this new way of twisting our plots. I'm just going to let you have free rein.

Judge Hopkins -
Doug Linder wrote an article about jury nullification, which I recommend to you. It’s found HERE


“Jury nullification” is a fancy legal term for what happens when a jury doesn’t buy the prosecutor’s reason for the state’s case even though the defendant is truly guilty of a crime. In other words, the jury cancels the effect of a law that they don’t like. The law may be in their minds immoral or unfair or wrongly applied to the defendant (the one on trial).

Now, as a writer, you could develop a thousand or more plots just on the information set out above. For example: 
Is there a defendant who admits to killing his ailing wife who was suffering from terminal cancer and was in pain so extreme that no drug could alleviate it? A jury may have a great deal of sympathy for the surviving husband. The jury lets him go although he is definitely guilty of murder. But, wait! A month after the trial, a juror finds out that the “grieving husband” had his wife take out a million dollar life insurance policy when she was healthy. The insurance carrier has paid off. Now the defendant is going to Belize with his sweetie who he’d been seeing long before his wife got sick. The informed juror convinces all the other jurors to help him kill the grieving husband. The Case of the Informed Juror. Sounds like an Agatha Christie plot. Or maybe Perry Mason.

Linder, in the article cited above, asks if juries have the right to nullify. Juries clearly have the power to nullify. But that doesn’t mean they have the right to nullify. If the jury in a criminal case finds a defendant not guilty (which, by the way is not the same as “innocent”) then the state can never prosecute the defendant again. The Fifth Amendment to the Constitution states (in part) that no person shall “...be subject for the same offense to be twice put in jeopardy of life or limb....” The state is allowed to try a defendant only once.

Today, courts not only don’t want to tell juries that they can nullify (or cancel) a criminal law they don’t like, they are often actively discouraged to nullify. In Missouri, for example, jury nullification is not allowed. Things could be different in whatever jurisdiction you’re writing about. Checking with the state bar in the capitol would be the best way to find information about legal questions where you live.

Judges in Missouri instruct jurors that it is their duty to apply the law as it is given to them, whether they agree with the law or not. And, I suspect, it would be reversible error for a defense lawyer in my state to use jury nullification in a closing argument for a client.

The Case of the Unwelcome Snitch. Another plot might be that a jury really wants to free a person who is clearly guilty. One of the jurors who wants to send the defendant to prison, sneaks a note to the judge, explaining that the jury’s deliberations are wandering into forbidden territory. There’s a hung jury and later the snitch is found dead behind the courthouse, beaten to death with the judge’s gavel. That’s kind of flimsy, but you get my drift.

Linder reports that many legal scholars “have suggested that it is unfair to have a defendant's fate depend upon whether he is lucky enough to have a jury that knows it has the power to nullify.”

I won’t comment whether I think jury nullification is fair or unfair. However, I know that judges worry that courtrooms will become hotbeds of anarchy if jurors are told they have the power (but not necessarily the right or duty) to nullify a law. Judges also worry that jurors do not have the legal training to decide what the law is or isn’t. Jurors should decide facts only and apply the law that the jury instructions give them, whether they agree with the law or not. That’s what most judges (I suspect) believe today.

As I said, this is an article about criminal trials. Today, in America, there is very little control over prosecutors, who, in some ways, have more power than judges do. I was a prosecutor once. I could’ve announced in the newspapers that I was investigating Suzy Saintly Citizen for smuggling dope from Canada. There would be a flurry of news. Then I could say, “Sorry. There’s not enough evidence to charge Suzy Saintly Citizen for this serious crime.” If I were a deceitful prosecutor and knew she had never so much as stepped on a crack in an attempt to break her mother’s back when she was in kindergarten, I have now ruined her reputation. Nothing could be done to me as a prosecutor. Note that everything I said to the newspaper was true: (1) I’m investigating a leading citizen of the town, and (2) I’ve decided that there’s not enough evidence to charge her. 

Another plot: The Case of the Slimy Prosecutor.

Linder’s article concludes: “[J]ury nullification provides an important mechanism for feedback. Jurors sometimes use nullification to send messages to prosecutors about...what they see as harassing or abusive prosecutions. Jury nullification prevents our criminal justice system from becoming too rigid—it provides some play in the joints for justice, if jurors use their power wisely.”

I could go along with that. A good book on criminal law that every crime writer should have is by Leslie Budewitz:

Full disclosure: I am in the book!


Fiona - 
So fun!

Thank you so much for this information. Would you please take a minute and tell us about your latest book?

Judge Hopkins -
My latest book DISHONEST CORPSE was out last year: 



The ebook versions of my first two books (COURTING MURDER and RIVER MOURN) are FREE from Amazon. Courting Murder.

Fiona- 
Free books? Woohoo!!!

Thanks for joining us. Happy reading and writing!

Monday, October 20, 2014

Firearms, Self-Defense, and the Law: Information for Writers Plotting a Gun Scene

_______________________________________


Image found publicly on Facebook
Your heroine is in a spot she could never -
would never - imagine finding herself. Sure, when she bought her gun  it was with the thought that it was for self-protection - but it was a distant thought, one that didn't comport real conviction. Now here she was loading her ten precious silver bullets into her magazine, sliding it into place, ready to take out the werewolf pacing outside her bedroom door.

In your fictional work, laws don't just go away. You will need to research the area in which your heroine lives and have her come to some decisions about her own conduct. In Janet Evanoviche's Stephanie Plum series, Plum disobeys the law by carrying a concealed gun - that she has no intention of shooting or even brandishing. Plum relies on the fact that she has dumb-luck (and a hunky police investigator boyfriend) on her side to keep out of jail.


What choices will your heroine make? 


Legal or Illegal? How does your heroine get a gun in her hand?
 * If she is buying a gun she must  fill out BATF form 4473. 
    This form includes information about the buyer, the serial
    number, and a description of the firearm. (Not applicable to
    private sales - obviously, if your heroine is getting it from 
    Crud Murphy in the back alley, she won't be filling out a form)
 * There are legal reasons why your heroine may not be able to
    follow the straight and narrow. It is illegal for her to buy a gun if 
    she :
     ^ Was convicted of domestic violence
     ^ Has ever had a court ordered restraint
     ^ Was a United States Citizens then renounced their
        citizenship.
     ^ Was discharged from the armed forces dishonorably
     ^ Is addicted to a controlled substance
     ^ Is illegally in the U.S.
     ^ Is fugitive from the law
     ^ Was convicted of or under indictment for a crime that carries
        over a year in jail.


Legally possessing and legally transporting a gun are two different things.

Federal law prohibits guns in federal buildings such as
   post offices, some military installations, some public lands.
* The area your heroine lives will determine if she can open carry,
   conceal carry, whether she can only have her gun in her home or
   if she can have it in her yard/on her property.
* Gun safety laws are important to how you lay out your plot line.
   If your heroine's jurisdiction requires her to have a gun lock - can
   she get access to it in time? Especially under high-stress 
   circumstances? Remember that violent acts usually happen close 
   and quick. Did she prepare for that by having her bedroom set up
   like a safe room with steel doors? Does she decide to ignore the
   law and keep the gun under her pillow? You might just have her
   shoot the serial killer and have her butt dragged to jail. Isn't that 
   an interesting twist?


Image found publicly on Facebook

The Use of Deadly Force in Self Defense


The "Reasonable Man" Standard - What would a reasonable man (or heroine) do in a given situation. This is the standard that is placed before a jury. What seems reasonable to a person in the heat of the moment - with tunnel vision and other physiological and psychological factors running amok - may not seem so reasonable to those 12 who are rendering a verdict.

Reasonable Force -  The amount of force your heroine uses to defend herself can't exceed what is called for to get out of the situation. If the heroine hit the guy on the noggin with her fry pan, she can't pull out her gun and shoot the unconscious villain in the head to have it over with. While she may feel it's a reasonable response after all the heartache he's caused her, the courts would disagree.

Use of Deadly Force 
Image found publicly on Facebook
- In order to lawfully use deadly force. Your heroine must be the innocent victim of an imminent attack that threatens her life or the lives of those around her (her children for example). The threat has to be deadly and not about property. Sometimes other responses are requires by law - living outside of D.C. I would be required to attempt a retreat prior to using force, for example.

Brandishing - Is when your heroine displays her firearm in a threatening or aggressive manner; this action is illegal for the most part. Let's assume for a minute that your heroine is confronted by her crazy ex who hisses in her ear, "I'm coming after you. I'll toy with you then kill you and laugh as I burn your body." YIPES! Your heroine cannot pull out her gun and point it at him and say, "I'll be waiting." 1) that's brandishing and 2) that's provoking which means that if he does come after her, she is not an innocent party. So if anyone heard that exchange, she's in deep doo-doo if his body is splayed across her kitchen floor.

Castle Doctrine - "a man's home is his castle" and he has every right to defend it. This is the law in many jurisdictions such as Texas. In your home you are not required to retreat from an attacker. Also, in some places this law protects you wherever you are staying such as a hotel or friend's house.

Cessation of Threat - Your heroine is entitled to use deadly force against the attacker as long as she is still being threatened. If the zombie fled, surrendered, or collapsed in a pile of entrails, lethal force must stop.

So Your Heroine Shot the Bad Guy, Now What?

* In all jurisdictions if a shooting results in injury or death it will be
   investigated by the police.
* Anything your heroine says can be used against her
* She has the right to be quiet - though she may not have the right
   mental state to exercise her right. But sometimes less is more
   until she talks to her attorney. Yes, she is going to need one.
* If your heroine knew the person or quarreled with the person
   even if she was protecting herself - she may have acted illegally.
   (though many will say they'd rather be tried by 12 then carried by
   6) your heroine needs to think about that in advance and take
   precautions. In the trial was her only precaution to buy a gun and
   take one-on-one classes in quick draw? Uh-oh. Putting in a
   security system, getting a dog, putting up lights, filing for a 
   restraining order all of the OTHER steps she took to harden her 
   surrounding against attack will go in her favor.
* Your heroine is not going to get a pat on the back and a 
   handkerchief handed to her. She will probably be arrested, 
   booked, fingerprinted, and photographed. She will be put in a
   cell where she will wait until charges are dropped or bail posted. 
   This could take several days.
* The police may take the heroine's gun and any other gun in the 
   house since she is a suspect in a homicide (or if the villain lives
   she will have committed assault with a deadly weapon). And if
   the villain lives, his side of the story might be vastly different
   than your heroine's. (ballistic forensics LINK)
* They will probably fire her guns for ballistic impressions if they 
   are trying to make a case against her.




* An area where a shooting took place may (probably will be)
   treated as a crime scene. As the police run through their normal
   evidence collection (crime scene 101 information), they will
   cordon off the area and only the police will have access. This can
   go on for days or even weeks. Does your heroine have someplace
   else to stay?

* If your heroine carries in a state that requires a gun permit, she
   may have that permit suspended. Uh-oh. She killed the villain 
   and now his brothers are after her in retribution. Now what 
   choices is she going to make? 

* Criminal Trial - is possible

* Civil Suit is almost inevitable - as the family steps forward and
   tries to sue your heroine for killing their sweet baby. Just the
   legal bills will be thousands. (Check state law.)

I hope everything turns out great for your heroine and she gets to live happily ever after. 


Thank you so much for stopping by. And thank you for your support. When you buy my books, you make it possible for me to continue to bring you helpful articles and keep ThrillWriting free and accessible to all.



As always, this is a non-political site that is geared to help writers write it right. I am presenting information to help develop fictional characters and fictional scenes. In no way am I advocating any position or personal decision.
Information for this blog article comes from NRA Guide to the Basics of Personal Protection in the Home, (2000) National Rifle Association of America

Sunday, August 17, 2014

I've Got My Eye On You: Surveillance Information for Writers w/ Jay Korza



________________________________________________________________________________

A 'nest' of surveillance cameras at the Gillet...
 (Photo credit: Wikipedia)
Today on ThrillWriting we are answering a reader's questions about surveillance. To do this, I have invited our friend Jay Korza back to share his knowledge.



Fiona - 
Hi Jay, can you give our readers a little bit of your background? Why do you know how to keep track of people?

Jay - 
I've been in law enforcement for fourteen years now. I have worked on SWAT for eight. SWAT doesn't deploy the stuff we're talking about, but we work with the guys who do when we serve their warrants based off the surveillance.

I've also worked as a detective and in a special operations unit doing stuff with Border Patrol, Customs, 
ICE, ATF and other federal acronyms. So 
I've had exposure to what we're talking about.

Fiona - 
From an law enforcement point of view, what's allowed without a warrant and how does access increase with a warrant in hand? I'm trying to set the legal v. illegal perimeters.

Jay -
First, we need to clarify electronic surveillance can include GPS, wire taps, cameras, microphones, and other data collection methods. 

Let's start with the GPS - 
Garmin eTrex Yellow GPS acquiring satellite signal
 (Photo credit: Wikipedia)

Basically, law enforcement uses off-the-shelf products and nothing really fancy. I asked my buddy if there was really high tech stuff out there that we don't use because of cost, and he said no. Even your Fed agencies use the same basic stuff we do.

There are two basic monitors. One that is hardwired into the car's electrical system and one that isn't and has its own battery. Up until last year, you needed a warrant for the hardwired monitor but not the stand alone unit. Now the Supreme Court says you need a warrant for both types. The warrant must specify a length of time you will be recording data. At the end of that time, you must retrieve or attempt to retrieve the tracker.

Many of the GPS trackers are magnetic so you just roll under the suspect's car and slap it on to the frame.

The hardwired kind has more options. It can send a signal to say the vehicle was turned on or off. Both types have options that allow them to automatically turn on or off at certain times or not turn on until the vehicle is in motion. This is important because you can get a cell phone signal detector from radio shack and run it around your car to see if it's being tracked. But if the tracker won't turn on until there is movement, then you would have to do this while moving and that's not feasible.
 
Fiona -
Oh! Very interesting.

Jay - 
Wire taps need warrants, always.

Fiona - 
When you say wire tap - that is a phone line only?

What about sniffing the airwaves for wifi signal and cell phones?

Jay
In some states, to record a conversation, only one party in the conversation needs to be aware of the recording. In other states, both parties need to be aware. This generally only applies to non-law enforcement related stuff. For example if you want to record your neighbor being a jerk to you.

But for wire-tapping, listening in on hardline or cell phone conversations for law enforcement purposes, this requires a warrant.

Fiona - 

Found on my Facebook feed
That's audio - but video without the sound is legal, yes?

Jay - 
Photographing and listening devices can be placed anywhere in public without a warrant. Some states MAY vary with their own more restrictive laws so a writer would need to check their story's state for specific.

So I, as a cop, want to watch someone's property for drug traffic. I can put a camera up in a neighborhood on a telephone pole and point that camera towards their yard and not need a warrant to do that.

Warrants boil down to this basic concept: If you want to watch, listen, or search for anything, and what you want to watch, listen, or search for is in an area that ANYONE could access it, you don't need a warrant. If the person or item or whatever is in any location that a person believes is private and/or has an expectation of privacy in that area, you need a warrant.

There are obviously caveats and details that we can go into more specifics with, but that is the general idea.

Your backyard, isn't private. Your neighbor can look into it. Someone can stand next to it and listen in on it. So putting up a camera or listening device to do the same thing is okay without a warrant.

If you choose to conduct your criminal activity in an area where your average mailman, pool guy, weed guy, neighbor - has access to, then we don't need a warrant to watch those areas



Found in my Facebook feed.

Fiona - 
What if my character obtained the information illegally and sent it anonymously to the police - could they use that?

Jay - 
Depends.

Let's say a burglar, acting on his own volition, breaks into someone's house and steals a laptop. He leaves and finds child porn on the laptop. He turns it into the police. We can look at what he has already looked at and use that to get a warrant to search further.

That actually happened not too long ago.

Fiona - 
WOW that's an upstanding burglar with a code of ethics! 


Say our character "knows" someone is doing something wrong - maybe a wife who thinks her husband is having an affair. What are some techniques your average everyday run of the mill scorned woman might use to catch hubby with his hand in the cookie jar?

Jay - 
Facebook!

Fiona - 
Ha! I mean in terms of using apparatus.

Jay - 
There are programs you
HTC Aria android 2.2 smart phone review www.li...
 (Photo credit: Wikipedia)
can install on smart phones that will track the phone without the owners knowledge. I don't know any specific names, but they are out there. I'm sure some work better than others.

You can easily get a GPS tracking device that attaches to the car. There are some that send wireless updates and others that you have to download the information later, and then you can see where it was but not as it is happening.

There are now a few products out that plug into the computer port on your car, the one they use to check error codes and stuff, and those can be made to do a lot of different things including tracking.

Fiona - 
Can she walk into court with that information? "He said he went to Maryland for business, he was actually three blocks over sleeping at my best friends house!"

Jay - 
You could call your cell service provider as the account holder and ask them to set up your husband's phone as a child account with tracking (if they provide this option) and then track his phone through the cell service.


For court use: It depends on the laws of the state. In general, yes.
There could be civil laws in some states that preclude that information.


Three blocks?! Stupid guy!

Fiona - 
That he's doing her best friend makes him the worst kind of stupid guy. But hey, it's not my plot line.

Okay what about the computer? She wants to see what hubby is saying to whom - how could she get that information on a PC? What about if it were a laptop and adding any plug ins would be more visible?

Jay - 
PC: There are programs that log keystrokes or ones that take video of the screen so you can watch the video later. There are plenty of options out there for that sort of thing. The main thing is the wife would need access to the computer as an admin in order to install the programs. So if the hubby uses a pass code, and she doesn't know it, she's locked out and can't do that. She'd need to set up a nanny cam to view the screen. If you're using Windows 8.1 you can set up accounts to monitored for their web and program history. It won't give you details like what was said in a chat, but you could see the general usage stats. That wouldn't help too much in this situation. It will tell you the site they went to though.

But when my kid logs into her account, it says "This account is being monitored". So that isn't too helpful.

Fiona - 
Well it stops your kid from going somewhere they shouldn't, so that's all good.

Jay - 
There are in-line keystroke loggers that plug into USB gadgets. They aren't obvious on an empty port. So you plug it in then plug the printer into it so it isn't an "extra" odd thing plugged in.

In the end, if you have access to the computer and aren't locked out, there are tons of apps that will watch the computer and report back to you. It's just a matter of finding the one that you like best.

Fiona - 
Go back to the key stroke logger. 

Jay - 
Keystroke loggers are great for showing one side of the conversation.

They could get pass codes and access the email, Facebook private messages etc.

Most people won't see a USB keystroke logger if you plug it into the back of their computer. Who checks the back of their PC??

But the crux is getting it there and getting it back. Not to mention you don't get real-time data, you have to wait until you retrieve it to get what you need. Unless you find one that sends out info via the computer's Internet connection.

Fiona - 

Exactly. But you would see it on a laptop. So is there something that captures keystrokes that have already happened? More importantly - would the police use something like that?

Jay - 
You can install software, but the police would need access to the computer AND a warrant.

We could take a phone or computer, get a warrant to install the software, then return the item under false pretenses. "Sorry we took this, we didn't mean to. Here you go. Have a nice day."

Fiona - 

That person would be an idiot to say - oh, okay officer - then I'll just go ahead and use this for my drug deals.

They are nuts. Sell the darned thing and buy a new one. Don't they read crime novels?

Jay - 
No they don't!!!

Fiona - 
Tsk tsk - not very competent criminals - hardly gives the police a challenge at that point.

Jay - 
I actually have plans to write a satirical book when I retire called "How to be a Criminal." Chapter one, don't steal this f*cking book! You aren't ready yet.

Fiona - 
Hahaha! LOVE that!

So someone with some computer savvy could take another person's laptop surreptitiously and install hardware, slip it back in place, and see live anything happening on the laptop?

Jay - 
Yes.

Fiona - 
What about if the police want to follow someone's movements within a building - a GPS would not be helpful for that - do you put trackers in people's shoes? Do you put cameras on their buttons so you can see where they've gone and what they've done?

Jay - 
GPS would be helpful in a building. We can pinpoint altitude (floor level in the building) and within a meter or two of their location. So we could track someone in a building just fine with GPS. However, unless we're talking CIA level investigation, there isn't a reason to in regular law enforcement to get that level of tracking of done.

But that's not true if you din't have access to the GPS and were, for example, following the pings from a cell tower to get generalized location.

Tower pinging is much less accurate. And it requires a subpoena or a warrant. We can ask for emergency pings without either, such as a kidnapping, suicidal subject, or other exigent circumstances.


Most tower pings are now actually GPS locate, it's just still called pinging the phone. The company knows your GPS location unless you have a really dumb phone with no extras on it. Then they actually use tower triangulation.

Fiona - 
What is a tracking issue that has bugged you (giggle) in a book or movie?


Jay - 
Movie and book issues: Tracking someone and looking at their tracking screen and somehow, their screen has an exact map of wherever the person happens to be. They ducked into an office building? No problem, my screen automatically downloaded the wire-frame blueprints of that building, and now I can see them walking up the stairs and into room 819. Nope.

Fiona - 
Boo! That sounds so awesome!

Jay -
One thing they do get right is the lag time. If you have someone tracking a person for you and then relaying the information to you, you are always behind the curve. You may miss the street they took and have to take the next one to catch up.

Fiona - 
How long is that seconds? Minutes?

Jay - 
Could be either depending on the equipment being used. It's worse when the information is going to a third party, say OnStar, then OnStar is relaying it to a dispatcher who then relays it to you. I had that once for a stolen vehicle that we were tracking. My dispatcher said, "Ok, they're stopped at a street just up the road from you and it dead ends." Nope! They were heading straight for me down that road.

Fiona - 
YIPES!

Can you tell our readers about your books?





Jay - 
Plot for Extinction: An ancient race created a species of warriors to conquer other planets/systems for them. A millennium after the conquering, the current Emperor wanted to end the tyranny, but even he couldn't do it. He would be overthrown. So he devised a plan to lead an expansion colony himself to an unexplored part of the galaxy, and then cut himself off from the Empire, letting it wither without him. Then, he would come back and rebuild things the right way. His plan didn't work.

A thousand years later, humans are exploring the galaxy and come across one of the Emperor's first colony sites in our region of space. The scientists accidentally set off a distress signal to the old empire and the warriors find out that the old Emperor had lied to them, and now they are coming to claim our portion of space. Two special forces teams will embark on separate missions to stop the threat.

Amazon Link $2.99


Fiona - 
Very fun! I have a lot of readers here on ThrillWriting who love to read and write sci-fi. You also wrote a zombie theme?

Jay -
My second book is called "This Is Not What I Wished For..." It takes place where the zombie genre is unheard of. A boy on his fourteenth birthday has his family wiped out by what he believes to be demons. He sees his neighbors and family eaten and killed in front of him and then turn into these demons. He flees and ultimately joins with other survivors and leads them to the epicenter of the outbreak, a hospital that is really a covert government lab that accidentally allowed this foreign contagion to escape their labs.

Fiona - 
A huge thank you to Jay Korza for all of his excellent insider information.


Thank you so much for stopping by. And thank you for your support. When you buy my books, you make it possible for me to continue to bring you helpful articles and keep ThrillWriting free and accessible to all.


Related articles

Sunday, December 8, 2013

Warrants - Information for Writers

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Alcatraz Escape Cell
 (Photo credit: derekskey)
“He might have read about someone being a drug mule and swallowing deflated balloons with cocaine in them. Same scenario. He could have made the leap. If he had breaded the diamonds, it would have created issues with the fourth amendment and due process. If we really thought he had breaded them, we’d have to arrest him and hold him long enough for his natural due process to occur. Believe me, that search is no fun.” I grimaced.
    “Believe you? You’ve searched someone’s feces before?” Striker’s lips curled in disgust.
                                                 ~ Missing Lynx

* This blog is based on an interview with a Virginia police officer. The officer has asked that his name and
   image be withheld for his privacy.


Arrest Warrant

* In order for an arrest to be effected there must be probable cause and an arrest warrant
   (when an officer is not involved in an immediate case).
* The warrant is issued by a magistrate based on the affidavit from the police. An affidavit is simply a 
   declaration made under oath.
* According to the 4th amendment the arrest warrant must particularly describe the person who is to 
English: Double locking police handcuffs appli...
 (Photo credit: Wikipedia)
   be seized. Without the description the warrant is
   invalid.
* Mittimus - is a writ to convey a person to jail

Video Quick Study (2:43) Attempt to arrest a juvenile
                                         without a proper warrant
Video Quick Study  (1:54) Warrant serving does not always go well.
Video Quick Study (1:45) Doing a warrant sweep.


* Bench Warrant - 
  ~ Allow for the immediate on-sight arrest of a person
  ~ Usually for contempt of court where someone failed to come to a hearing.
  ~ Issued by judges or magistrates
  ~ Cases can be criminal or civil in nature

English: Bench Warrant for Sam Jain's arrest.
English: Bench Warrant for Sam Jain's arrest. (Photo credit: Wikipedia)

*Outstanding Arrest Warrant - is a warrant that has not been served.
  

English: Images of the 1990 arrest warrant iss...
 (Photo credit: Wikipedia)


Warrantless Arrests - 

So, if a warrant is required to make an arrest, why are police officers handcuffing folks and taking them away without the proper procedures?

London August 12 2013 004 Police Handcuffs
 (Photo credit: David Holt London)
Officers can arrest an individual if
* They are hurting themselves or others
* Causing damage to property
* Taking property (causing loss)
* Offending public decency (exposure, drunkenness, etc)
* Unlawful obstruction say of the highway for example.
* To protect someone, such as a child or other vulnerable
   person who is being threatened
* If the officer thinks that the person will disappear and not
   cooperate if they wait for an arrest warrant to be issued.
* To allow for quick investigation of a law that is believed to
   have taken place.

The officer will take the suspect to the magistrate and will present their understanding of the situation, the suspect will be allowed to have their say. If there is enough probable cause, the magistrate will issue the warrant at that time. 

The magistrate will consider the officer's understanding of which crime has been committed and either accept that charge, upgrade the charge, or downgrade the charge.


Search warrant - 

The capacity to search and/or seize items from a person, car, or building is based on the fourth amendment.
Without a warrant the officers must have permission to search.
Video Quick Study (2:34) Lawyer explains search warrants


THREE WAYS TO GAIN A SEARCH
* Exigent Circumstances (emergency circumstances) mean a search warrant is not required. 
   ~ There is no definition for this.
   ~ Clear evidence of probable cause
   ~ Likelihood of evidence destruction
      Video Quick Study (3:23) Further explains this concept
* Search Warrant
   Video Quick Study (5:21) SWAT team breaking in on a search warrant
   Video Quick Study (2:08) No search warrant means that permission is required before an officer
                                           can search
   Video Quick Study (2:25) Explains about fourth amendment and warrants
   Video Quick Study (1:33) Drug dogs cannot be brought onto a property without a search warrant.
* Permission
   Video Quick Study (5:24) Lawyer addresses tactics used by police to get a citizen to consent to a search.
English: Dutch police handcuffs Nederlands: Ne...
 (Photo credit: Wikipedia)
Officers can stop and frisk if they believe that a person has
   committed or is about to commit a crime. (Terry v. Ohio, 1968)
   NOTE: frisk and search have different legal definitions.
   They must have probable cause such as
   ~ plain view
      Video Quick Study (3:29) plain view explained.
   ~ plain touch - so for example if they come across drugs or stolen
      property while patting someone down for weapons.
      Other than that they need a warrant -  legal order signed by a 
      judge.
* Once your character is arrested - they have the right to do a
    search of you AND around you like your car.
    If you are in your home, they can search the room you are in. (If
    you are standing in the kitchen, they can
    search that room but not your basement or bedroom.)
   Video Quick Study (3:29)
* The warrant specifies what they are looking for  - so if they are
   looking for a television set, the officers
   cannot look inside of a jewelry box. BUT if they went in to look
   for a TV and they come upon cocaine scales and drugs that are in
   plain view then that is a different matter.                                       


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Wednesday, December 7, 2011

Book Review: Police Procedure and Investigation

South Australian Police officers wearing duty ...Image via WikipediaHowdunit - Police Procedure and Investigation - A Guide for Writers by Lee Lofland
http://www.leelofland.com/

Is listed on Amazon for $13.59 and used from $9.90
http://www.amazon.com/Lee-Lofland/e/B001JRUKC6

RATING: Highly recommended

Lee Lofland was involved in law enforcement for two decades and is now a writer and the sponsor of The Writers’ Police Academy. (For further information about the 2011 WPA please see my labels below. Also, there is a link under my blog list for Graveyard Shift - Lee‘s blog). In person, Lee is hysterical, and I very much looked forward to reading his book, that I was lucky enough to win in the raffle.

This book walks a crime writer through the labyrinth of law enforcement. Chapter 1 starts with an overview of our policing system. Who is in charge of what? How is a police department organized, and just what does a sheriff do anyway? Lofland reviews the hiring process -which is arduous. The departments look into every nook-and-cranny of a potential hire's life. It’s very intrusive. Lofland then reviews the missions of the various federal, state and local agencies. Very helpful if you are trying to figure out who is going to show up and investigate. For example, I thought that
drug culture fell under vice - it turns out that many departments have a separate drug department because the manpower need is so great. And the illicit drug investigators will work closely with gang investigators, etc.

Lee then spends a chapter helping us to understand the training. Last spring, I had the opportunity to go to our
State police Academy to ask questions. These men and women must maintain high standards in all aspects of their training - one little glitch and they are out. Most police officers with whom I have spoken all tell me that their job is the culmination of a life-long dream; they had always known they were supposed to be officers. Can you imagine the heartbreak of failing to attain the uniform?

Lee goes through the pertinent aspects of the job. He talks about what a police officer does versus a detective. How arrests are made and searches conducted. How death is categorized and investigated along with crime scene investigation techniques including fingerprinting,
DNA, and autopsy. He includes the court process, prisons and jails, and the death penalty. And, Lofland loves to critique TV, so he included a chapter entitled, “C.S…I don’t think so.”

Of further help to writers’ is a glossary of terms, an index of 10 codes, drug quantity, and federal sentencing tables.

Lofland has written clearly, in an accessible voice, with vocabulary free of cop-speak. It is non-fiction that has the hold-you-to-the-page quality of a novel. A great reference - if you’re doing your due diligence and want to get the sequencing, procedure and players right.

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Book review: Making Crime Pay

eigen werkImage via WikipediaMaking Crime Pay, the Writers’ Guide to Criminal Law, Evidence, and Procedure
By Andrea Campbell
http://www.mysterywriters.org/user/253

Available at Amazon new for $27.50 used from $0.14

http://www.amazon.com/Making-Crime-Pay-Criminal-Procedure/dp/1581152167/ref=sr_1_1?ie=UTF8&qid=1318713540&sr=8-1


Rating: Recommended

I admit that I bought my copy, used on Amazon, for ten cents. I more than got my ten cents worth. I read this book because it was listed as a resource book on the “
Sisters in Crime” website. I have had a course in law, and almost all of my clients were under my care by court order, so I already had a fair acquaintance with the legal system. I would have appreciated having this book back then, for quick reference and better understanding of the process.

This book is divided into three parts:

Part 1 - Criminal law is explained. What is the difference between a
federal crime and a misdemeanor? Crimes are defined as well as defenses, justifications and excuses.

Part 2 -
Criminal procedure - this includes the rights of the accused, search, seizure and arrests.

Part 3 - A Walk Though the
Criminal Justice System - this covers arrest procedures, charging, and booking. There is a chapter on juvenile justice and how that differs from the adult system.

Sprinkled throughout are historic points - which could be a boon to a historic novelist. Also, there are “Writers’ Tips.” These tips help the writer to pick out an interesting twist that could develop the plot line in a new way. There are “FYI” inserts that are like a heads-up to bring an aspect forward that a writer needs to take into consideration when writing a scene. Campbell includes photos of various documents used in the criminal process such as a
search warrant. There is an index, which helps to make looking up a detail easier.

Not a great read for entertinment value. The writing is clear and makes the concepts understandable with straight forward language. I mostly pulled it from my purse to read while waiting for various appointments. Little nibbles were satisfying.



An overall read will give a writer a base from which to launch a plot line. Having this book on the shelf to check on a vocabulary word or resolve a processing question is a handy resource.


I hope this was helpful. If you have anything to add - or if you know a great book that I should look at - please feel free to leave a comment below.
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