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Bitten By A Stingray? You’ll Need A Criminal Defense Attorney.

stingray

 

(Did you really think this was going to be about a protected species along the seashore and that I’d gone all tree-huggy??)

In this week’s article, I am referring to the FBI’s new dance in getting around the now oft-litigated prohibitions against 4th Amendment warrantless searches vis-a-vis cell phones.  Their latest gig is called the “stingray”.

Obviously tracking cars is a strict no-no without a warrant for law enforcement professionals, but what about cell phone data? As it turns out the law is a bit murkier on how that applies when it comes to cell phone data and “stingrays,” as Ramsay C. McCullough notes in a post for The Corporate Compliance & White Collar Advisor:

The Federal Bureau of Investigation is taking the position that search warrants or other court orders are not required when deploying cell-site simulators, known as “stingrays,” in public places which imitate cell phone towers and capture the locations, identities, calls and texts of mobile phone users.  With the pervasive use of smart phones in business today and with those phones containing confidential personal and business information, this may present real concerns for employers.

McCullough continues by saying that nine states have passed laws banning practices by law enforcement.

The problem is, no one can get to the bottom of exactly how these things should be regulated or even how they’re working, since the FBI has multiple non-disclosure agreements with local law enforcement in regards to stingrays. It’s gotten so bad that prosecutors are dropping cases rather than disclose the details of the stingray operations. And despite how shadowy this whole thing may seem, these devices are largely unrestricted in the United States.

For a country making a big push behind the internet of things, we are shockingly unprepared for how this will change the scope of privacy in the state.   Let’s make sure that with all of this great responsibility in being a technology leader, we don’t forget such little things as oh say, the Constitution, the Bill of Rights and related court decisions.

NEW NEWS: New bill would require husbands to get their wives permission for a Viagra Rx. in KY.

BNI Operatives: Situationally aware.

As always, stay safe.

 

Civil Asset Forfeiture – A Good Concept Gone Awry?

asset-forfeit

(This article in a point/counter point manner to quickly argue both sides of the issue of police seizing assets first, investigating later.)

Point: (from Syracuse.com)

SYRACUSE, N.Y. – Justin Lucas gathered up $50,000 in cash in 2011 to bail his brother out of jail on a drug charge.

But when Lucas brought the money to the Otsego County jail in a brown paper bag, sheriff’s deputies seized the cash without releasing his brother. They told him the money was the subject of a drug investigation.

How much did your police agency get? Check out our national database (below).

Lucas’ brother eventually pleaded guilty to a felony marijuana possession charge. But even with the case over, Lucas couldn’t get his money back. The sheriff’s office had already used a federal law to force him to forfeit the money to the government.

 Investigators cited the fact that their drug-sniffing dog picked up the scent of marijuana on the cash, and Lucas’ admission that $10,000 of it had come from his brother’s co-defendant.

The federal civil asset forfeiture law allows local police to get up to 80 percent of money or property seized, with the rest going to the federal government for their role in the investigations and for administering the program.

Lucas’ case was among 117 in the 32-county Northern District of New York over the past five years in which the federal government used the law to seize $43 million in assets without having to charge the owners with a crime.

Revenue from alleged criminal activity

This is the asset forfeiture revenue for the Department of Justice and the Department of the Treasury for the fiscal years 2001-2013. The money and goods are seized under the premise that they were obtained by illegal activities, and therefore, are subject to seizure by law-enforcement agencies. The revenue is split 80/20 with the larger portion going to the agency that seized the goods and money. The other 20 percent pays for the administration of the seizure programs.   Below is in billions of dollars.

Under the federal law, law enforcement agencies such as the FBI or DEA can seize someone’s property without charging him or her with a crime. The law allows the government to take the property, then requires the owners to prove their possessions were legally acquired.

For police to keep someone’s assets, they have to be able to prove only that it’s more likely than not that the money or property was used to commit a crime or was the proceeds of a crime. That’s lower than the standard for convicting someone of a crime – “beyond a reasonable doubt.”

If federal prosecutors agree with the law enforcement agency’s decision, they file a civil lawsuit against the property, not the owner. That’s why the lawsuits have odd captions, such as “United States of America vs. One 1999 Chevrolet Pickup Truck.”

 

Counterpoint: (from Heritage.org)

Criticisms of Civil Asset Forfeiture

One of the main criticisms of civil asset forfeiture is that the deck is stacked against any property owner who wishes to contest the forfeiture. Because the legal proceeding is against the property rather than the property owner, the owner does not enjoy many of the constitutional protections that are afforded to those who are accused of engaging in criminal activity. Such inequities prompted Brad Cates, director of the asset forfeiture program at the Justice Department from 1985 to 1989, to declare recently that “[a]ll of this is at odds with the rights that Americans have.”

First, the vast majority of cases never see the inside of a courtroom.  Any amount of currency can be administratively forfeited; the only time administrative forfeiture is not available is when the forfeiture involves any real estate or personal property worth more than $500,000 (except for so-called hauling conveyances: that is, vehicles, vessels, and aircraft allegedly used to transport illegal drugs, which, like cash or other monetary instruments, can be subjected to administrative forfeiture regardless of their value).

In an administrative proceeding, the agency that stands to gain directly from the forfeiture acts as investigator, prosecutor, judge, and jury. The rules and deadlines governing these proceedings are complicated and opaque, a minefield of technicalities full of traps for an unwary (and often unrepresented) property owner.

With the exception of the Customs Service, there is no effective judicial review from an administrative ruling, and the administrator does not even need to write an order justifying his or her decision. While there is within many agencies a process whereby someone can file a petition for mitigation or remission of the harsh effects of forfeiture, the rules do not allow someone to file such a petition while at the same time contesting the validity of the forfeiture itself.  Moreover, it is once more an agency official, not an impartial arbiter, who acts on the petition.

Second, unlike a criminal case, there is no entitlement either to representation by counsel or (except as to real property) to a pre-seizure hearing.  Forfeitures are often for an amount small enough that it would make little financial sense for a property owner to hire counsel to contest the forfeiture. Forfeiture cases can take months or years, effectively tying up somebody’s property and creating an extreme hardship for people of modest means or people who run small businesses.

Adding insult to injury, the Civil Asset Forfeiture Reform Act of 2000 (CAFRA) lays out specific filing deadlines that must be met by property owners challenging forfeitures. Failure to meet a filing deadline by even a day often results in immediate forfeiture, whereas agencies can allow property to languish in their custody for years.

Third, unlike a criminal case in which a prosecutor must prove a defendant’s guilt beyond a reasonable doubt, in a civil forfeiture case, the prosecutor only needs to establish the basis for the forfeiture by a preponderance of the evidence. Defenders of current civil asset forfeiture procedures note that preponderance of the evidence is the standard of proof that is traditionally used in civil cases. While a true statement, this does not mean that it is the appropriate standard to use in civil asset forfeiture cases given the clear connection between this type of action and a typical criminal case. Moreover, unlike a dispute between two private citizens, there are tremendous disparities in available resources and expertise between the property owner contesting the forfeiture and the governmental entity seeking the forfeiture.

Fourth, also unlike a criminal case in which the prosecutor must prove that the person who used or derived the property acted intentionally or at least was willfully blind to its misuse, in a civil case, the government does not have to prove any of that. Rather, the burden is placed on the “innocent owner” to prove a negative: that he did not know about its illegal use and that, if he did know about it, he did all that could reasonably be expected under the circumstances to terminate such use.

Defenders of current civil asset forfeiture procedures note that the Supreme Court of the United States has held that an innocent owner defense is not constitutionally required,  yet the law provides a claimant with the opportunity to present such a defense. Again, while true, that does not mean that the current procedure is fair or the most appropriate standard under the circumstances. The Constitution provides a floor, not a ceiling, when it comes to providing rights; it states what must be provided at a minimum, not what ought to be provided to ensure fairness and strengthen the integrity of the process.

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With a new administration in power and a President and an AG who are allegedly on the side of law and order, we’ll keep an eye on any legislation going through Congress on this matter.

BNI Operatives: Situationally aware.

As always, stay safe.

Profiling A Perpetrator & Distinguishing an M.O. From Signature

profile

NEW NEWS: IRS releases 2017 Standard Mileage Rates for Business: 

  • 53.5 cents per mile for business miles driven, down from 54 cents for 2016

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BEACON BULLETIN

Based on crime scene evidence, one basic method of characterizing  offenders divides them into three categories:

  • Organized offenders: These criminals are more sophisticated in their approach, and their crimes show evidence of planning. These types tend to be of average or better intelligence, employed, and in active social relationships such as with spouses and families. Even though they’re driven by their fantasies, they maintain enough control to avoid being impulsive. They prepare and even rehearse. They tend to target specific victims or types of victims and use control measures such as restraints to maintain victim compliance. They bring the tools they need to gain access to and control of the victim and avoid leaving behind evidence. As killers, they generally hide or dispose of the body and are likely to have a dumpsite already selected.
  • Disorganized offenders: These criminals usually live alone or with a relative, possess lower-than-average intelligence, are unemployed or work at menial jobs, and often have mental illnesses. They act impulsively, or as if they have little control over their fantasy-driven needs. They rarely use ruses to gain the victim’s confidence, but rather attack with sudden violence, overwhelming the victim. The crime scene often is messy and chaotic. This type of offender doesn’t plan ahead or bring tools along, but rather uses whatever is handy. As killers, they typically leave the body at the scene and exert little effort to avoid leaving behind evidence. Some have sexual contact with the victim after killing him or her.
  • Mixed offenders: Some offenders leave behind mixed messages at crime scenes. They show evidence of planning and a sophisticated MO, but the assault itself may be frenzied or messy, which may indicate some control over deep-seated and violent fantasies.

Profilers have developed categories of descriptors, describe the types of individuals who commit the crimes. Some of the descriptors used in serial killer profiling are as follows:

  • Age: Most serial killers are in their 20s or 30s.
  • Sex: Almost all are male.
  • Race: Most don’t cross racial lines. That means, in general, White offenders kill Whites, while Black offenders kill Blacks.
  • Residency: Organized offenders may be married, have a family, and be well liked by their friends. Disorganized offenders, because of their mental instability and immaturity, tend to live alone or with a family member.
  • Proximity: The location of the perpetrator’s home in relationship to the crime scene is important. Most kill close to home, a factor that is particularly true with the first few victims. The area close to home is a comfort zone. With experience, however, the killer may move his predatory boundaries farther and farther from home.
  • Social skills: Killers who use a ruse to ensnare their victims, like Ted Bundy did, typically possess good social skills, whereas those who use a blitz-style attack are less comfortable with conversation.
  • Work and military histories: Organized offenders more often have a stable work history and are more likely to have left any military service with an honorable discharge. Disorganized offenders often are quite simply too unstable to hold a job in the long term or to complete military service.
  • Educational level: Organized offenders tend to have more schooling than their disorganized counterparts.

Using these descriptors, profilers can create a pretty good picture, or profile, of the type of person who likely committed the crime.

  • Method of entry
  • Tools that were used during the crime
  • Types of objects taken from the crime scene
  • Time of day the crime was committed
  • The perpetrator’s alibi
  • The perpetrator’s accomplices
  • Method of transportation to and from the scene
  • Unusual features of the crime, such as killing the family dog or leaving behind a note or object to taunt the police

In contrast to an MO, a signature is an act that has nothing to do with completing the crime or getting away with it. Signatures are important to the offender in some personal way. Torturing the victim, overkill, postmortem mutilation or posing, and the taking of souvenirs or trophies are signatures. These actions are driven by the killer’s psychological needs and fantasies.

Unlike an MO, a signature never changes. It may be refined over time, but the basic signature remains the same. For example, if a serial killer poses victims in a religious manner, praying or as a crucifix, details such as candles, crucifixes, or other ceremonial objects may be added later. The signature has changed, but its basic form and theme remain the same.

Obviously, a professional profiler should be contacted if you believe there is a need for such; the above is simply a broad explanation of criminal profiling.

BNI Operatives: Situationally aware.

As always, stay safe.

 

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