Category Archives: Search and Seizure Law

How to Avoid a Marijuana Arrest in a Car in Minnesota: Top Nine Tips

The other day I was talking to a prosecutor.  I let him know that my objective was to keep my client’s public record clean of words like “marijuana,” “drug paraphernalia,” and “criminal conviction.”  He responded mischievously with “You know how he could avoid all that don’t you?  Don’t get caught.”  He was joking, but like many jokes there was some truth in it.

“I’m late, for a very important date.”

“Officer, am I being detained? I’m late, for a very important date.”

As of this writing, eight states in the U.S.A. have legalized marijuana for responsible use by adults 21 years and older; and, the majority of the U.S. population now lives in a state with legal medical marijuana.  We should all know by now that marijuana is safer than alcohol.  There is no lethal overdose possible with marijuana, unlike alcohol, aspirin, and many prescription drugs.   But in Minnesota in 2017 despite a majority in the polls favoring legalization, criminal Prohibition lingers on, destroying innocent lives.

What can you do to reduce the chance of getting caught? Here are nine tips:

 1. Situational awareness

Guess where the vast majority of police contacts with people happen?  Correct – in or near a motor vehicle.  As a result, the most effective way to avoid a marijuana criminal charge is to avoid having marijuana in your vehicle.

Complacency can set in.  If it hasn’t happened yet, it never will.  Right?  The smart attitude is that if a scenario is unlikely, with repetition (miles traveled in the car), it will inevitably happen.

There will be a traffic stop.  When it does happen; marijuana should not be in the car.

If the prudent marijuana smoker does carry marijuana in the car only when absolutely necessary, he or she keeps it under the “small amount” 42.5 grams if plant form (not concentrates), but always in the trunk of the car (to avoid a “marijuana in a motor vehicle” charge).

2.  Odor

The most common excuse used by police officers as probable cause to search a car after a traffic stop is “odor of marijuana” – either fresh or burned.  This is prone to abuse by police officers since it’s impossible to verify.

Even so, to prevent getting caught with marijuana in your car avoid having the odor of marijuana either on your person or in your car.

And, if you do have the odor of marijuana on your person or in your car, be sure not to have any actual marijuana in your car.

Have you or anyone you know experienced “nose blindness?”  A person who has smoked a cigarette may not be able to smell the odor of past cigarette use on another person.  The same for a person who has been drinking an alcoholic beverage – can’t smell the odor of alcohol on another person.  But non-users can smell it.

It’s best to assume that if you’ve been smoking it that day, there may be odor.  If it’s been smoked in the car, the odor is probably lingering in the car for a day or more.  (Tip: don’t ever smoke in the car.)

3.  Consent? 

“No, officer, I do not consent to a search.” Like Paul Simon’s song “50 ways to leave your lover,” there are at least fifty ways to tell a police officer that you do not consent to any searches.

Make an excuse if you like: “I’m late, for a very important date.”  But no excuse is necessary.  You should not offer any justification for refusing a search.

Be confident and politely insistent. It’s your legal right to be secure from searches and seizures by police unless they have a search warrant or an exception to the warrant requirement.

One of those exceptions is a consent search.  Police often ask people “do you mind if I search”?  The correct answer is, “I do not want to be searched.”

If you do consent to a search, you’ve waived your right to object later to the otherwise unlawful nature of the search.  Also, if police know they have no legal basis to search without “consent,” then they may leave without searching.

4.  You can do both

Don’t lie and don’t admit. How?

Remain silent.  Or if words do come out of your mouth make sure that they are not lies, and do not relate to illegality.

More than half the people stopped by police in traffic, when questioned about “marijuana in the car?” after the police officer claims “odor” will either lie or admit having marijuana in the car, often then telling the police where it is.  Wrong!

Instead, remain silent – meaning words are not produced by you.  Tightening your lips may help your resolve.  If you do say something, change the subject and avoid talking about whether there is marijuana in the car or not.  And again, do not consent to a search.

Police will try to make you think: “Busted.  The jig is up. May as well come clean now.  Give up.  You cannot win at this point.”  But don’t believe that for a minute!  You need to be prepared.  Knowing the law can help keep your confidence level up, and help you avoid or minimize legal trouble.

5.  Unlawfully prolonged detention

“Am I free to leave?”  Here is the scenario.  You’re stopped by police for a headlight out, or speeding.  Normally it takes five or ten minutes for a police officer to complete the process, hand you the ticket, encourage you to pay it without taking it to court, and walk away.  You understand that to mean that the government intrusion upon your liberty is now over and you are “free to leave.”

Now, let’s change the scenario.  You’ve been stopped for something normally resolved with a traffic ticket within five minutes, but this time the officer is prolonging the detention.  Is that legal?

The courts will apply a balancing test under the “totality of the circumstances” to determine whether they think the greater intrusion upon your Liberty interest was balanced by a greater level of reasonable suspicion of criminal activity.

But one of the factors courts will consider is: “to what extent did the person acquiesce to the detention vs. communicate a desire to end it and leave?

A common game played by police in court is to claim that “at that point, the person was free to leave and the prolonged time was consensual.”  If believed, then the prolonged detention might need less justification, fewer facts supporting a reasonable suspicion of criminal activity.

Since “Fleeing a police officer” is a crime in Minnesota – whether in a motor vehicle or on foot – whether a person is begin “detained” by police or not, ought to be a simple black and white question.  Either you are “free to leave” or not.

The best way to make a record of that is to ask: “Officer am I free to go now?”  And don’t just do it once.  Do it more than once.  Say it loud and clear, for the camera and microphones.

This will help your lawyer challenge the legality of the search and arrest later, should it come to that.  At times it can be a good idea to just start slowly walking away, to force the police officer to tell you to stop.  (Yes, you can walk away from a car stop even if you’re not the passenger.)

6.  “You have the right to remain silent.”

When you hear that, that is your cue to – what?    It’s your cue to stop forming words and allowing them to escape your mouth!

If you want to say anything, you can say:  “Officer, I realize you are doing your job but I am not a lawyer or a police officer.  I need to assert my legal right to remain silent, and to consult legal counsel before answering questions or talking about this situation at all.”  Repeat as necessary.

No matter what they do or say, they cannot require you to speak.  So don’t.  If police direct you to show your hands, lie down, hands behind your back, stand over there, and the like, follow their commands.  But do not speak.

7.  Field Exercises

Sometimes police may want to build a case for impaired driving.  When they do, they will ask you to perform what they optimistically term “Field Sobriety Tests.”  These are not scientifically valid and are designed to incriminate.  Even completely sober people have a difficult time “passing” them.

What to do?  Don’t! 

Police cannot legally require anyone to do these field exercises, such as the “Nine-step walk and turn,” “One leg stand,” “Horizontal Gaze Nystagmus” eye test.  You can and should refuse to do any of these.

When you do, the police officer may invite an excuse.  But don’t take that bait.  Any excuse could be incriminating, even if falsely.  Instead you can say: “Officer, I am aware of my legal rights and I respectfully choose not to do any field exercises or tests.”  You may get asked repeatedly.  If so, just keep repeating that you choose not to do them – no excuses.  (Who cares if you have one leg! That’s beside the point.)  It’s your legal right.

Important:  (Note that if the police officer has factual reason to suspect impaired driving and requests that you blow into a Preliminary Breath Test (PBT) machine and you refuse to blow, you can be arrested in Minnesota for that refusal.)

8.  Smile, you’re being recorded

From the beginning of a traffic stop, to sitting in a squad car, to the police station or jail, it’s best to assume that you and all you say are being recorded.

This recording may later hurt you, or help you.  Even when alone or with another person in the back of a police car, this is normally recorded – even when no police officer is in the car.

Phone calls from jail are almost always recorded for later use as evidence.  Be aware of this.  Avoid talking about the case in any of these contexts.

9.  Keep your cool

if arrested. Hitting the panic button will only make it worse.  Police may try to exploit your trauma and emotional upset.  Remain calm.

The long game can be won, by playing defense in the short game.  You or someone on the outside can help you contact a Minnesota criminal defense lawyer and if need be a bail bond agent.  Most people will be able to get out with a few days or less.

Thomas C. Gallagher is a Minneapolis marijuana lawyer frequently representing people charged with possession of marijuana and related “crimes” in Minnesota.

Have a comment?  You are welcome to leave your comments and responses below.

The Moral Peril of Minnesota Asset Forfeiture Laws

The Minnesota Senate is now considering a Bill to reform abusive asset forfeiture laws, SF2613.

Let’s review Minnesota’s current law on asset forfeiture (government takes your money):

  1. The government (police) can take your property at any time if suspicious to them, even if you are innocent.
  2. The burden is on you, not them, to do something about getting a court to look at it.
  3. If you do nothing, they keep your property, your money; and you lose; without any court or judge ever even seeing the case.
  4. If you want to do something about it, you need cash for a lawyer and court filing fees.  The law provides the government a free lawyer and requires them to pay no court filing fees.
  5. The police agency that targeted you and took you down gets to keep 70% commission on the cash, valuables, your vehicle they seize from you.  Could this affect their honesty about their investigation; or, the appearance of propriety?

Property rights for common people are relatively recent individual human rights, against the government or the king.  In 1066, William the Conqueror seized nearly all the land in England.  He exercised complete power over the land, but granted fiefs to landholder stewards, who paid fees and provided military services as a condition for use of the King’s land and people.

William the Conqueror

Centuries later, the Magna Carta asserted that cash payments were required for expropriations of land.  Over time, tenants held more ownership rights rather than only possessory rights over their land.

The Third Amendment to the United States Constitution says:

“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”

The intention of this amendment was to prevent soldiers being quartered in private property as the British armed forces had done in Colonial America by under the Quartering Act before the American Revolutionary War.

The Fifth Amendment to the United States Constitution says:

“No person shall be … nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The idea was to destroy what was left of feudalism, where the king or the government owns property, and the common people owned nothing, or owned nothing except at the discretion, whim or caprice of the government.  The third, fifth, eighth and fourteenth amendments of the United States Constitution all are attempts to further this goal.  But history has repeatedly shown us that this struggle for individual property rights against theft or seizure or taking by the ruling government has been ongoing.  Ground has been gained and lost, and gained again over the years, both in politics and in law.

Hypothetical?

Imagine that you are peacefully driving down the road, having an average day.  Then, you are stopped by people in a vehicle armed with weapons.  They hold you against your will.  They question you in a threatening manner.  The ask for your “consent” to search you and your vehicle, though they make it  appear that it will happen regardless.  They take your personal valuables.  They seize your vehicle.  There is no court process.  It’s just gone.  They have it now.  You no longer do.

What would you call this?  Armed robbery?

What if the “people in a vehicle armed with weapons” who stopped you were police officers of the State of Minnesota, acting under the color of the laws of Minnesota?  Now what do you call it?

“Administrative Asset Forfeiture.”  What does that mean?

Asset forfeiture laws are a type of government “taking” of private property that has been around a long time, but they have degenerated in recent years from “Judicial Asset Forfeiture” after conviction into “Administrative Asset Forfeiture” on a police officer’s view of suspicion.  What’s the difference?  First, a little background and context.

If you steal from a thief, is that stealing?

Ask Robin Hood, or the Sheriff of Nottingham.

There are two basic moral justifications offered for laws permitting the government to seize and keep private property suspected to have some connection to crime – instrumentality and criminal proceeds.

Instrumentality.  If a burglar uses special tools to commit a burglary, then the government seizes and keeps those as instrumentality of the crime, this may somewhat disable the burglar from committing a similar crime.  Almost all asset forfeiture seizures in Minnesota are of this type.  The instrumentality rationale for property forfeiture, however, has been stretched wafer thin.  It is now most commonly used in cases of suspected petty crimes like DWI, prostitution and banned drugs possession; not commonly in serious or violent crimes.

Criminal proceeds.  This type is relatively rare, and involves and attempt to trace (equitable tracing) the source of the funds used to purchase an asset to crime.  These usually involve larger dollar amounts only, well over $100,000 per case.  The type of crime alleged is less important.

Is the Property Guilty?  Is the Owner?

Nothing Personal: In Rem Jurisdiction.  Asset forfeiture cases, the few that ever make it into court, are usually captioned with the claimant as a party to the lawsuit against the property.  Rem is Latin meaning “thing.” When courts exercise in rem jurisdiction, they assert authority over a thing, not a person.  Like much in the law, there are historical reasons for this.

If the justification for the “taking” of another’s property is that the owner is a criminal, or that the property is somehow related to crime; should we be certain that the owner really did commit a crime in connection with the property?

Should police be able to seize and keep your vehicle or other property even though you’ve not been convicted of a crime?  Before you get a hearing before a fair and neutral magistrate?

In Minnesota today, police can seize your vehicle or other property under circumstances they view as suspicious, keep it, sell it and keep the cash, unless you file a court challenge “EXACTLY AS PRESCRIBED IN MINNESOTA STATUTES SECTION …” within 60 days.  You’ll need money for lawyer and court filing fees – just to get a day in court.  The money they get from your property after they sell it?  “70 percent of the money or proceeds must be forwarded to the appropriate agency…” i.e., the Police Agency that originally took your Private Property.  This is Minnesota’s current “administrative” asset forfeiture scheme.

What about “Judicial Asset Forfeiture?”

Judicial asset forfeiture is slightly more fair in that it affords procedural due process – the right to notice and a hearing before a neutral magistrate before the government can permanently keep your property.  A serious problem with this type is that a criminal conviction is not currently required before the government can prevail in a judicial asset forfeiture case.

Who are the victims of government asset forfeiture?

The salt of the earth – the common people of modest means have disproportionately been the victims of government abuses, negligence and shoddy practices in the area of criminal law generally.  When it comes to asset forfeiture laws, it is no different.

When police officers on an asset-forfeiture treasure hunt take cash, gold, vehicles, other valuables from a person who is never charged, never convicted of any crime; what is the cost-benefit ratio for that person to fight for return of the property in court?  Could they even afford (hire a lawyer, pay a court filing fee) to if they wanted to?  Can they do all that in time to meet the 60 day deadline?  Would that cost too much relative to what was stolen from them by police to be worth it?  Do they have enough faith in the legal process to believe it would be fair, anyway?  What will the medium term ramifications of this be, politically?

The innocent are victims of asset forfeiture laws:  Sometimes the innocent owner is not accused of having any criminal association, but merely an association with another who is suspected, such as a spouse, parent or employer.  This is an anti-marriage law, that encourages divorce of a troubled spouse.

The Minnesota Supreme Court recently published a case that makes this clear, and a majority of the Justices asked the Minnesota legislature to reform the statutes, in the Laase case.  So will the legislature and the government heed this call, from the Court and from the People?

Is the Minnesota government corrupt, victimizing the weak?  Are its laws a corrupting influence on our good police officers?

Has the time has come to reform (or repeal entirely) asset forfeiture laws in Minnesota?  Call the legislature.  Support the Reform Bill.

The author, Thomas C Gallagher, is a criminal defense attorney with offices in Minneapolis.  His practice includes Minnesota Drug Forfeiture cases.

Minnesota Supreme Court Rules Against Innocent Spouse under DWI Car Forfeiture Statute

Today the Minnesota Supreme Court released a decision interpreting a Minnesota Statute in a way to deprive an innocent spouse of their legal right to keep their car, jointly owned by a spouse who drove it in violation of a law.   The Case, David Lee Laase  vs 2007 Chevrolet Tahoe, A07-2023, December 17, 2009, was another 4-3 split and splintered decision – with the majority reversing the Minnesota Court of Appeals, to rule against the civil property rights of the individual.

Divorce to Protect Your Property?

The court’s majority held that “innocent owner defense” in Minn. Stat. § 169A.63, subd. 7(d) (2008), does not apply in a case of joint ownership of a vehicle if one of the joint owners is also the offender causing forfeiture of the vehicle.

The majority’s new rule is that all joint owners of a motor vehicle must be innocent in order for any owner to employ the innocent owner defense in Minn. Stat. § 169A.63, subd. 7(d).

As Justice Paul Anderson points out in his dissent,

“The context of the case before us involves a DWI forfeiture statute that contemplates both the ability of law enforcement agencies to seize and forfeit motor vehicles used in the commission of designated offenses and protection for innocent motor vehicle owners. Thus, the context within which we must conduct our analysis is a disfavored forfeiture statute that we must strictly construe which means that if we have any doubt about the application of the statute, that doubt is to be resolved in favor of joint owner … .”

The case involves Minnesota’s DWI forfeiture statute which creates both a presumption that a person arrested for suspected DWI will forfeit their car to the State; and also contains an affirmative defense for innocent owners of cars driven by someone else arrested for suspected DWI.  What about the case where a car is jointly owned by two or more people, such as the family car that the non-offending spouse needs to get to work?

Justice Page concludes his dissent with:

“I would construe the word ‘owner’ to refer to each individual owner throughout section 169A.63. Thus, under subdivision 7(d), a vehicle is not subject to forfeiture if any of its owners can demonstrate that he or she, individually, did not know the vehicle would be used contrary to law. Similarly, under subdivision 7(d), it is up to each of the owners to demonstrate that he or she ‘took reasonable steps to prevent use of the vehicle by the offender.’ An owner that can make the required showing cannot be divested of his or her interest in the vehicle, which subdivision 1(h) instructs extends to the whole of the vehicle. Because Mr. Laase made the required showing, I would hold that his interest in the vehicle is not subject to forfeiture.”

Is this another bad 4-3 splintered decision, with the slim majority again ruling against the rights of the individual?  So it would seem.  At least in this unjust situation, the Minnesota legislature could fix it next legislative session by amending the statute the court was interpreting.

Will the legislature repair this injustice in the law?  Public anger has been building for years over the use of asset forfeiture laws to legally steal private property, with the excuse of some crime having been committed, or the possibility of one.  The most frequent use of these laws has been in the areas of Minnesota asset forfeitures in drug cases, and in DWI cases.  Most of the injustices in these laws are common to all types of asset forfeiture statutes (whether based upon drugs, DWI or prostitution).  The innocent owner issue is only one of many.

One of these issues is the conflict of interest created by allowing the law enforcement agency which legally steals the property from the citizen, to keep much of the money proceeds from that seizure and forfeiture.  Two of the Justices concurring with the majority in David Lee Laase  vs 2007 Chevrolet Tahoe highlighted the issue, in Justice Barry Anderson’s concurrence:

“[T]here is reason to question the balance struck by the legislature between various competing interests.  For example, given the general disfavor of forfeiture statutes, the wisdom of vesting the right to possession of a forfeited vehicle in the law enforcement agency responsible for the arrest of a defendant and the forfeiture of a defendant‘s vehicle is not immediately evident. See Minn. Stat. §§ 169A.63, subds. 1(b), 2, and 3 (2008).  But such issues are for the legislature to address, not this court.

The 4-3 majority opinion, was supported by two concurring Justices who wrote, in essence, that the law  was unfair and should be changed – but by the legislature not the court (see quote above).  The three dissenting Justices also noted the serious unfairness of the statute as interpreted by the majority opinion.  Therefore five of the seven essentially agreed on one thing – the statute allowing the government to take the private property of an innocent spouse or other co-owner is unfair and should be changed.

This issue was referenced in a recent article in the Star Tribune newspaper, Crime fighters gone rogue, where a  leader of the Minnesota Gang Strike Force explained in relation to financial stress due to underfunding from the legislature, he:

“… turned in 2003 to the only major source of cash he could find: money seized from suspected drug dealers, gang members and other targets. Over the next two years, Ryan told state examiners, his unit survived on virtually nothing else.

‘We had no money and we were begging, borrowing and I hesitate to say stealing, that would be the wrong place, but … that’s the way we were operating,’ Ryan said, according to a transcript of his formal interview with the Legislative Auditor’s Office.”

Is it fair to law enforcement officers to create laws like this with inherent conflicts of interest – inciting them to take from the poor, and give to their own agency of the government?  Can a normal human be completely immune to such powerful temptations?  Why should Minnesota laws encourage such mischief upon the individual people of Minnesota?

Let’s see if the Minnesota legislature will reform forfeiture laws in Minnesota this year.

By Thomas C. Gallagher, a Minneapolis Criminal Lawyer.

The Trial of Jesus: A Criminal Law Perspective

trial of jesus

Witnesses Against Jesus

The Trial of Jesus is the most famous trial in history – really, two trials. From a criminal law perspective, the trials are fascinating for many reasons, on many levels. This article is based upon a book The Trial of Jesus of Nazareth by Law Professor Max Radin published by the University of Chicago Press in 1931. Radin brings a lawyer’s eye to the historical record, from Christian, Roman, and Jewish sources, as well as succinctly developing the context. A few areas of interest to be discussed here include:

  • The Snitch identifies Jesus and betrays him, but later refuses to testify.
  • Prosecutor asks “why would they lie?”
  • Jesus pleads the Fifth
  • The Witness Corroboration Rule more stringent then, than now
  • Politics influences criminal law
  • Death Penalty for slaves and foreigners, not Romans

The most credible Christian Gospel and likely the oldest written is “Mark.” His account contains the most attention to detail and reflects the best understanding of the laws and procedures of the both the Jewish local government and the superior Roman government. Although “Mark” shows the best understanding and most detail about the trials, his writings make clear his motive: to persuade the reader that Jesus was innocent of any crime a person could be convicted of in a Jewish court.

But is it so? Deuteronomy 18:20 appears to prescribe a death penalty for “the prophet which shall presume to speak a word in my name which I have not commanded him to speak…” This crime of false prophesy may have been the statute prosecuted at the first Trial of Jesus, before the Sanhedrin – a group of political leaders acting as a court in Judea.

The Witness Corroboration Rule.

Mark tells us: “And the chief priests and all the council, sought for witnesses against Jesus to put him to death; and found none.”

“For many bore false witness against him but their witnesses agreed not together”

“We had heard him say, I will destroy this temple that is made with hands, and within three days, I will build another made without hands.”

“But neither so did their witness agree together.”

Prosecutor asks “Why would they lie?”  Jesus Pleads the Fifth.

Mark continues:  “And the high priest stood up in the midst, and asked Jesus, saying, Answerest thou nothing?  What is it which these witness against thee?”

“But he held his peace, and answered nothing.”

Minnesota abandons the ancient Witness Corroboration Rule – a protection for the innocent.

Jewish law at the time required a conviction based upon a witnesses claims to be corroborated by other witnesses – to “agree together.”  Roman law did also, as did the laws of many other ancient civilizations.   This law continued throughout the ages, through English law which was inherited by us in the United States, as Common Law.  Many Common Laws were enacted into statute, including in Minnesota, including this one.  But in the late 20th Century Minnesota Statutes were amended to significantly water down and mostly destroy this ancient legal right, which had long served to protect innocents from false witnesses and false charges.

The Sanhedrin council deliberated then convicted him of the crime a false prophecy, had him bound and delivered to Pilate, the Roman Governor.   As a subject state, the government of Judea at the time did not have the legal authority to execute a death penalty sentence.  Previously, when they had that authority the Sanhedrin had four forms of it – stoning, hanging, burning, and decapitation – but not crucifixion.  Since they lacked the legal power to kill him, they brought Jesus to the Roman Governor Pilate to ask him to do so.  (By this time the death penalty had long been abandoned for Roman citizens.  It was only used against slaves and non-citizen foreigners.)

The Second Trial, to the Roman Governor.

Pilate had the legal authority to execute the Sanhedrin’s death sentence alone (to review the first trial), but chose to conduct another Trial, on a different criminal accusation,  instead.   Jesus was accused at this trial of a political (not religious, as before) crime – that of claiming to be The King of the Jews, a rebel against Roman authority.  The Romans already had a King of the Jews – theirs.  Any challenge to the authority of the Jewish government in Judea was effectively a challenge to Roman authority, since the Jewish King was subjugated to Rome.

As Mark tells us, 15:2:  “And Pilate asked him, Art thou the King of the Jews?  And he answering, said unto him, Thou sayest it.”

“And the chief priests accused him of many things but he answered nothing.”

“And Pilate asked him again, saying, behold how many things they witness against thee.”

“But Jesus yet answered nothing; so that Pilate marvelled.”

 The Passover lenity tradition.

These events took place during the week-long Passover time.  Tradition held that the People should be granted the freedom of a condemned person.  A rebel named Bar-Abbas was proposed along with Jesus as a possible candidate for leniency.  Though Bar-Abbas, and not Jesus, was granted leniency by the Roman Governor, the motivation for this is disputed.  The writers of the Christian Gospels seem to want to absolve the Roman Governor and blame the crowd.  But Radin points out that the crowd was indoors, smaller, and included many of those who had convicted him previously, and that Bar-Abbas was popular locally.

Radin also points out that the early Christians were mostly Greek and Roman, not Jewish; and there could have been a motive to slant the story to appeal more to potential Roman converts.  And Christianity did become a religion largely of Rome, not the Middle East.  This part of the story has been characterized as another trial of sorts, like a sentencing trial.  Radin is convincingly skeptical of this idea.

Another misuse of this part of the story has been the efforts of some to make it seem conflict between Christians and Jews, based upon Faith.  But, in reality it was not.  There were few Christians then and many religious leaders with small followings.  It was instead a continuation of the politically motivated killing of a feared rebellion against Roman authority and its local puppet government.

A Parade of Humiliations.

The Roman Governor sentenced Jesus to crucifixion, which included “scourging” before.  But a parade of other humiliations preceded those.   Consistent with his conviction for the crime of claiming to be the King of the Jews, Roman soldiers (most of whom were not from Rome) clothed him in purple, like a king, and put a crown of thorns on his head, then hit him on the head.  They put him back in his old clothes.  They plucked his beard.  They scourged him.

The Roman death penalty of crucifixion caused death because of the scourging – a brutal whipping with objects on the whip strands clawing away skin, flesh and muscle down to the bone.  The scourging was done short of killing the person.  At one time, the scourged person was then bound to a tree, which was later replaced by a timber gallows or Roman cross.  Death was slow and painful and public.  Death was by suffocation.

Sometimes soldiers or passersby took pity on a person hanging on a Roman cross and would give them “vinegar” or a low quality wine with myrrh – to help dull the mind and relieve the pain, and perhaps hasten the death by suffocation.  (The person had to stand on their feet, as hanging by the arms would suffocate them.)  Jesus was made such an offer but refused.

The Romans put up a sign, as they commonly did to deter others, over the head of Jesus on the Roman cross saying, “THIS IS THE KING OF THE JEWS.”  The crucifixions were done near a road in a public place, as examples of what kind of criminal behaviors people should avoid.  Jesus was crucified near other convicted criminals, as was commonly done along the roadway.  His accusers came to mock him there, challenging him to come down if he really were Messiah.

Radin discusses the Judas story with some skepticism, and provides a basis for that skepticism which you can find in his book.  One observation bears repeating here, however.  Judas was one of the twelve disciples at the Last Supper, of course.  He is said to have betrayed Jesus and become a snitch for the authorities, by identifying him at the time of his arrest (before the trials).  There are differing accounts of what happened with Judas after that.  But, as Radin points out, Judas did not testify against Jesus at either trial – at the religious crime trial, or at the political crime trial.  Criminal lawyers are familiar with this phenomenon, and the various reasons that can sometimes explain it.

Radin’s book is wonderful.  It examines not only the Christian Gospels versions of the trials, written a couple of hundred years after the fact, but also the limited contemporary commentators, about these events.  He explores the historic and political context, which helps us understand what really may have happened – apart from simply accepting the conflicting Gospels at face value.

As criminal lawyers,  we can appreciate the use of criminal laws and trials by the religious and political authorities to put down a threat to their power.  Along the way, we have a snitch who assists the arrest but won’t testify.

We have a highly intelligent accused, without a lawyer, who refuses to answer questions or accusations by witnesses, prosecutors or the authorities.

We have documentation of the ancient right to require witness corroboration of the details of an accusation.  And we have an ancient record of the rejection of the death penalty for civilized people, though not for the “other,” less civilized.

Yes, there is much more yet, to this great story which truly brings history to life.  There are also lessons here, for those interested, about criminals, criminal law and trials.

By: Thomas C Gallagher, a criminal defense lawyer in Minneapolis, and a student of history and famous trials.

The Midnight DWI Jail Call to a Minnesota Lawyer < Legal First Aid

phoneIn Minnesota, a person arrested on a police officer’s suspicion of DWI has the legal right to consult a lawyer prior to responding to a request by police to consent to chemical testing.  A problem often arises due to the fact that most of these situations happen in the late night or early morning hours when most people – and most lawyers – are asleep.  Most people who find themselves in this unwelcome circumstance never believed they would be, and may not know a criminal lawyer or DWI defense lawyer to call.

Sometimes they call any Minnesota lawyer they can think of, even though they might not be a criminal lawyer, or DWI defense attorney.  This article is intended to help that lawyer.

If possible, refer the caller to a DWI defense attorney to call.  If that does not work, they should call you back.  Here are some basics for the Minnesota lawyer who does not regularly practice DWI defense.

Understand that the purpose of the phone consultation is to help the caller navigate the legal threats presented by the most lengthy and complex set of criminal laws – the DWI laws in Minnesota Statutes Chapter 169A.

Here is a list:

1.  “Was there a collision or accident?”  If no, go to the next question.  If yes, “do you know if anyone was injured?” and “where are you calling from?”  If there was an alcohol-related injury motor vehicle accident, then the caller may be at risk of a felony Criminal Vehicular Operation (or Criminal Vehicular Homicide) charge.  If that is the case, they may be better off refusing to consent to provide a sample for chemical testing.  There is currently in Minnesota, however, a statute defining such a refusal to consent to such a search – a crime, the crime of “Refusal to Submit to Chemical Testing.”  Though this statute seems unconstitutional, in that it makes a crime out of a refusal to consent to a warrantless search, so far the Minnesota Appellate Courts have upheld it.  As a result, the lawyer should exercise caution, and avoid directly advising the caller in such a situation (likely felony CVO) to “refuse” to consent.  Rather, a Minnesota lawyer can safely advise the caller that “Since refusal is a crime, I can’t advise you to refuse.  A lawyer is prohibited from advising a person to commit a crime.  However a lawyer also has a duty of loyalty to the client, and to explain the legal consequences of your actions.  If you submit a sample for chemical testing that may make it easier for the state to convict you of a felony crime.  If you do not consent to giving a sample that may make it more difficult for them to do so, but could also be used to charge with a gross misdemeanor crime of ‘Refusal.’  The question “where are you now,” is intended to discover whether they are at a police station or a hospital.

2.  “If you consent to the search and provide a sample of breath, blood or urine, be sure to tell the police officer that you want to use the phone to arrange an additional test.”  In Minnesota, a person who consents to a body search by submitting a sample for chemical testing  after a DWI arrest, has the legal right to an “additional test.”  This should always be done, whenever the breath machine report is 0.08 or more, or when a blood ir urine sample is collected by or for police.

Minnesota Statutes Section 169A.51, subd. 7 (b):  The person tested has the right to have someone of the person’s own choosing administer a chemical test or tests in addition to any administered at the direction of a peace officer; provided, that the additional test sample on behalf of the person is obtained at the place where the person is in custody, after the test administered at the direction of a peace officer, and at no expense to the state. The failure or inability to obtain an additional test or tests by a person does not preclude the admission in evidence of the test taken at the direction of a peace officer unless the additional test was prevented or denied by the peace officer.

Though this right is statutory, it is also a way to protect the state’s chemical testing scheme from constitutional challenges for violation of the accused’s right to exculpatory evidence and the state’s duty to preserve it, as in the Trombetta case.

How can a person get an Additional Test (as the statute calls it)?  The time-honored method was to get someone to come down to the jail with a clean jar, and collect a urine sample, with the best attention to chain of custody issues, to be refrigerated and tested quickly.   Today, the better method in Minnesota is to call Additional Testing, Inc. – a local company that employs contract nurses to go out to jails, properly collect samples, preserve them, and submit them to a lab for chemical testing, with good chain of custody.  If the evidence is exculpatory, they can testify in court as well.  The Additional Testing Right has been held to only require police to allow an in custody person the use of a phone (again) to arrange an Additional Test.  I recommend calling Additional Testing, Inc.:  24-hour Dispatcher:  Phone: (612) 333-3226 or Toll Free: (877) 333-3226.

3.  “Is the searching police officer requesting a breath, blood, or urine sample?”  In Minnesota, the police officer may request any of these but if they request blood, the person cannot be deemed a “Refusal” unless the police officer then requests a urine sample which is then also refused.  Similarly, if urine is requested, the person cannot be deemed a “Refusal” unless the police officer then requests a blood sample which is then also refused.

Minnesota Statutes Section 169A.51, subd. 3:  Type of test.  The peace officer who requires a test pursuant to this section may direct whether the test is of blood, breath, or urine. Action may be taken against a person who refuses to take a blood test only if an alternative test was offered and action may be taken against a person who refuses to take a urine test only if an alternative test was offered.

This is called the “Alternative Test Right.”  It only applies to blood and urine requests.

4.  Most callers will (a) not have been in a motor vehicle accident, will (b) have no priors, and (c) won’t submit samples that will be claimed to be 0.20 or more alcohol concentration.  These callers will be better off consenting to the search, after consulting a Minnesota lawyer.  Callers not involved in a collision, with priors or 0.20 or more BAC will usually be better off consenting to providing a sample for testing.  The exceptions to that general statement are unusual and beyond the scope of this Legal First Aid article.

5.  After the samples for chemical testing are taken, or the claimed “refusal” is done, police officers normally will read a Miranda Warning and ask questions from an “Alcohol Influence Report” form; then write down and audio record the answers.  Callers should be advised to remain silent, and decline to answer any questions.  (The questions relate to drinking, feeling impaired, origin and destination, etc.)

The author, Thomas Gallagher is a Minneapolis DWI Defense Lawyer with decades of experience helping people facing DWI charges and license revocations, and winning more than his fair share of these cases.  You can call him for help or with a question if you like.

Underage Consumption > Do I Have to Submit a Breath Sample to Police Upon Request in Minnesota?

martiniMost people are aware that if a person is driving a motor vehicle in Minnesota, a police officer can in certain circumstances invoke legal authority under a Minnesota Statute to demand the person submit to a search by providing a breath sample for a Portable (or Preliminary) Breath Test (“PBT”) machine.  If the driver refuses, the statute then authorizes arrest for suspicion of DWI.

What about the person under 21 years of age, who is not driving or anywhere near a motor vehicle?  There is no statute or law that requires that young person to consent to a search by providing a breath sample simply because they are walking down the street, or found at a house party, with an odor of an alcoholic beverage about them.  A young person in this position can simply refuse to consent to such a search.  Refusal to submit to a PBT does not give police legal authority to arrest a pedestrian (unlike a driver, in certain circumstances).  Note that although the Minnesota Statute in the DWI Chapter concerning Preliminary Screening Tests (link above) does authorize use of these in underage consumption cases in court, it does not authorize police to “require” a breath sample for a PBT where the person has no connection to a motor vehicle.

An interesting, recent case in Michigan illustrates some of the key points in this type of case, Troy v Chowdhury, Michigan Court of Appeals, September 10, 2009.  There, the City of Troy had enacted an ordinance to allow police to force consent to breath testing of minors, and this was ruled unconstitutional.  The court in that case notes that police did not claim to have obtained consent from the accused, nor did they have a search warrant.  The court also confirms the obvious – when police take a breath sample that is a search.

Under the Fourth Amendment of the United States Constitution, in order for police to search a person they must have a search warrant, or a recognized exception to the warrant requirement must a then apply.  Consent can be an exception.  If “consent” is coerced, then it is not real consent.

I know of no statute or local ordinance in Minnesota that gives police legal authority to “require” a breath sample for alcohol testing (unless in connection with weapons or motor vehicles).  Police often will seek actual consent, or sometimes try to coerce “consent.”  The person (with no weapon, or not in relation to a motor vehicle) faced with such a request from a police officer does not have to consent to such a search or provide a breath sample simply because police want it.

The police and local prosecutors can still charge underage consumption crimes without PBT evidence, based upon other available evidence.  (The most damning are verbal admissions by the accused.)  Regardless, a person accused of this crime could be expected to have a stronger defense case if they refuse to blow into the PBT, and refuse to talk about drinking.

Other problems commonly occurring with these kinds of cases include criminal charges of giving false information or identity to police, and less often, fleeing.  I know of no law in Minnesota that requires a person to identify themselves to police (except in certain circumstances such as driving, hunting, carrying, etc.)  If a person is not driving, they need not carry a drivers license or other ID.  A person should be careful to avoid giving a false identity to police, which is a worse crime than underage drinking, in the eyes of most.  If a police officer asserts their authority as a police officer, fleeing is a crime in Minnesota, whether in a vehicle or otherwise.

In general, a person suspected of a crime cannot be compelled to talk or provide information, or consent to a search (and this is normally the best approach); however, any information that is provided should be truthful.  When in doubt, seek legal advice from a lawyer before making a statement or consenting to a search.

Author: Thomas Gallagher Minneapolis Criminal Lawyer

Minneapolis police investigate MyFastPass.com

According to recent news reports on press releases from Minneapolis police; local and federal law enforcement have arrested at least one suspect and executed search warrants – yielding a database of subscribers to My Fast Pass, apparently in connection with claimed criminal prostitution. An interesting twist in this case, police have publicly declared:

“As part of our ongoing criminal investigation, it is our intention to have face to face contact with people on this list, to include men and women. If you feel it is in your best interest to have input into the time and place of this meeting you can email [minneapolis police].”

I guess you can’t blame a fellow for trying, right?  One must wonder though – what kind of person (in that database) would find it in their best interest to set up an appointment for a police interrogation?  Why help the government take you down?

BillofRightsMost everyone realizes their sacred Constitutional right to silence in the face of police questioning, and their right to have a lawyer present from television and movies.  Unfortunately, many of those entertainments show the fictional suspect waiving their rights, to quickly commit legal suicide – but it does help move the story along, doesn’t it?

Too few movies and television stories show the innocent bullied or tricked into confessing or admitting facts by trained police officers. Criminal defense lawyers generally advise people suspected by police to (a) remain silent; (b) do not consent to any search of person or property; and (c) consult and retain a good criminal lawyer as soon as possible. In pre-charge, investigatory cases, an ounce or prevention is worth much more than a pound of cure.

For further information, see our page: Prostitution Laws in Minnesota

(Note: This was originally posted on another of the author’s blogs on June 20, 2009 – moved to here, deleted there.)