The central importance of the Judge in our society underscores the importance of understanding the ways in which prospective Judges are selected and trained and of knowing the groups or individuals most deeply involved in that process. The training and reasons for selection determine, in part, the type of judiciary we will have. The role that the judiciary has played in different historical eras had depended as much on the type of men who became Judges as it has on constitutional rules that appear to set the outer limits of judicial action. Howsoever good the law is, if a person who ought not to have been made a Judge is appointed, then everything goes wrong. A poor appointee can be a blot on the bench for may years.
It would appear that the Judges are drawn from a narrow social background. Though the social climate has turned more democratic due to the efficiency of communication, there can be no doubt that social background of may Judges and the attitude of detachment to which they are conditioned during their formative years at the Bar, can produce difficulties of communication and understanding between them and people or lesser privilege and education who appear before them. The Judges with their background are less acquainted with the problems of poverty or of different pressures, loyalties and social values operating in different strata of the society. A Judge who fails to understand the behaviour of a person in the correct perspective tends to expect unrealistic standards of common sense and behaviour particularly from witnesses whose social background differs from his own. For making a good Judge it is desirable that those who aspire to become Judges should, during the course of their training and careers, have enjoyed opportunities of learning at close quarters something about the motives and pressures which have impact on the attitudes of the members of the community. For this, a Judge should have the power of imagination that can enable him to put himself in the place of the man standing before him. With such outlook he can use his knowledge more effectively.
Many appointees, when appointed have been subject specialists while at the Bar. On appointment they become jack-of-all trades. Those who have practiced essentially in criminal law are required to attend to civil law work and vice versa. Though these Judges have the ability to grasp the new subjects very quickly, it seems a little hard on the litigants in the initial cases they try, and there is wrong use of their talents, inasmuch as they are not either employed within their specialized fields, or given time and opportunity to acquire a more general knowledge of the law. Though there has been no provision for training before appointment there is a positive move now to ensure that the new Judges receive a modicum of training afterwards. There is a need to extend training and the Judges should be encouraged and be given the time to keep pace with the advances in learning particularly in the ac tuarial, sociological and psychological fields to bring about familiarity with the basic concepts, coupled with knowledge of trends in these subjects which would tend to induce in them a more sympathetic approach to their exponents.
The Judges themselves could be expected to know the areas in which they are most deficient. Therefore, during his training period which should be for three to six months, the Judge should be free to go into any Court he wished and to observe the trial procedures and techniques. He should have an opportunity to consult with criminologists, actuaries, social welfare experts, ecologists and other specialists during his training period. Regular refresher courses should be available to all Judges to enable them to keep abreast of developments in sociology, psychology, economics, medicine, etc. There is a considerable need for a Judicial college or an Institution of Judicial Administration to ensure high standards in the decision making process.
It is extremely difficult to prophesy how good a particular appointee will shape as a Judge. Behavioural defects may develop after the appointment and some Judges may abuse their position in a variety of ways. The values and standards which were normally existent ensuring the purity of judicial administration are now required to be enforced wherever laxity is detected. The very honour of the judicial system lies in the honesty of its constituents. The experience gives an indication that some kind of procedure of receiving and dealing with complaints would enhance public confidence in judiciary, lead to improved standards of judicial behaviour and may even provide a remedy in specific cases of injustice.
Independence of the judiciary has been a highly-prized feature of our Constitution. However, inviolability from informed criticism or investigation may ten to decrease confidence in the judiciary. There would be no fear of interference with the independence of judiciary if the scrutiny and investigation is done by the appellate or superior court. Care should however be taken to ensure that the disgruntled elements or unscrupulous litigants do not succeed in their design of disreputing a good Judge by hurling false and motivated pseudonymous or anonymous complaints which if countenanced would sound a death-knell of strong, forthright and independent Judges making them tense, apprehensive and indecisive. The complaints against Judges should therefore be carefully and delicately handled and if the higher judicial disciplinary authority finds, after appropriate departmental proceedings, that the incumbent is wanting in the basic qualities of a Judge there should be given no more opportunity to him to tarnish the image of this noble institution. The black sheep when they know that they are detected sometimes prefer to walk away.
The tendency of some lawyers to browbeat the subordinate Judges by threatening them on the basis of their acquaintances and easy approach to the Judges of the higher Courts having administrative control over them should be severely curbed. No subordinate Judge should countenance such threats or pressure and should bring such instances to the notice of their administrative heads since they amount to interference with the course of justice.
There should be brought about conditions so that the members of subordinate judiciary have ample opportunity to emulate the standards followed by their senior brethren. Just as a child imbibes in himself the virtues of his parents, the judicial officers will follow the high traditions of their torch-bearers. There should be no situation where they can raise a mocking eyebrow when exhorted to follow certain value standards of aloofness impartiality and integrity. It should be clear to them that the only way of fulfilling their career ambitions is to work with sincerity and honesty and not by intrigues, approaches, favours or spending in any manner on pomp and show to please their superiors whether on local visits or otherwise. They should know that they are trustees of the power constitutionally reposed in them and there should never be any abuse of that power. They must avoid favours direct or subtle and strive to ensure that no one even secretly dares to approach them in connection with their judicial work. The glorious traditions which the Judges or our superior courts have been so zealously guarding and preserving must be handed down to them during their training and in personal meetings.
The quality of Judges at various levels and their receptivity for a good grooming almost solely depends upon the principal source of their appointment namely the Bar. A vibrant, efficient and principled Bar will send judges with an acceptable outlook and standards. To foster understanding, respect and support of our courts is one of the most solemn duties of the organized Bar. It can have no greater interest than the judicial system of the country, no more pressing activity than the work and well-being of the bench and participation in the selection process by suggesting the names of its willing and worthy members. The leaders of the Bar Association can suggest panels of such names to the Chief Justice, who can consider them for selecting the right persons on merits.
For providing a useful source to fill up the high judicial offices the willing lawyers should be identified. If a lawyer who may be willing does not indicate his intention or gives contrary indication in public, he is likely to remain a private citizen. The offer to a high judicial post should be taken by them to be a public honour and ordinarily it should not be turned down. It is very essential that the knowledgeable, experienced and sincere lawyer must be attracted to these posts so that they do not get distributed amongst others under the guise of non-availability of proper incumbents. The Advocate General and the organized Bar must therefore make conscious efforts to ascertain in confidence, the willingness of the worthy lawyers who have sufficient knowledge and experience and they should periodically forward the panel of such lawyers for selection and eventual appointment.
The younger lot who aspire to join judiciary at an earlier stage must try to gain as much court experience as possible, form study groups to discuss the points of law arising in various cases and to solve the points confronting them in the matters they conduct. The deserving young lawyers should be given sufficient incentive to remain in the profession. The Bar Associations can organize training and refresher courses for its members and expose them to the standards of behaviour expected from them.
The members of the Bar are the backbone of the judicial system. They are naturally aware of the role expected of them in the court proceedings. They should resolve to see that each brief they handle is prepared by them on facts and in law. They also should ensure that the courts work full time and that their matters are taken up in their turn for hearing and not unnecessarily adjourned. They would be justified in expecting punctuality in the working of the courts. Both the Judges and lawyers must respect the timings appointed for court work. Waste of even fifteen minutes in each working session either due to non-availability of the Judge or a lawyer works out to a loss of atleast two full working days in a month. If this happens in ten courts the loss would be twenty working days of one court which means the effective Judge strength of the courts is reduced by at least one Judge, if all thes e were single Judge benches. All this at whose cost ? Lawyers and Judges should therefore conduct the work keeping foremost the interest of those who await the outcome of process and who have no say in their grooming. Mere appreciation of each other that has no relation to the actual functioning of the court will not be enough. Good grooming is relevant only in the context of the quality of the output of work. There has therefore to be a concerted effort of correcting each other to bring about a work culture where the Judges feel obliged to take up causes and ensure that public time is not unnecessarily wasted and the lawyers co-operate in the proceedings by their active and effective participation, by avoiding adjournments, by guiding the Judge on facts and in law so that he can reach a just and correct conclusion.
There should be no place for mistrust or suspicion in the judicial functioning. The Judges and lawyers belong to the same fraternity and cannot be expected to behave like total strangers in the society. However, socialization should not degenerate into any private discussion on the facts of any pending or likely case, or any personal favours, direct or indirect, or a political or social pressure calculated to prejudice the outcome of any judicial proceeding.
Ultimately the moral fiber of these two important constituents of the judicial system, their conscious effort to treat the functioning of the court as a constitutional trustee of the society can groom them to be good lawyers and better judges.
http://gujarathighcourt.nic.in/Articles/grooming.htm
Thursday, May 31, 2007
How to Groom Better Lawyers and Better Judges
The central importance of the Judge in our society underscores the importance of understanding the ways in which prospective Judges are selected and trained and of knowing the groups or individuals most deeply involved in that process. The training and reasons for selection determine, in part, the type of judiciary we will have. The role that the judiciary has played in different historical eras had depended as much on the type of men who became Judges as it has on constitutional rules that appear to set the outer limits of judicial action. Howsoever good the law is, if a person who ought not to have been made a Judge is appointed, then everything goes wrong. A poor appointee can be a blot on the bench for may years.
It would appear that the Judges are drawn from a narrow social background. Though the social climate has turned more democratic due to the efficiency of communication, there can be no doubt that social background of may Judges and the attitude of detachment to which they are conditioned during their formative years at the Bar, can produce difficulties of communication and understanding between them and people or lesser privilege and education who appear before them. The Judges with their background are less acquainted with the problems of poverty or of different pressures, loyalties and social values operating in different strata of the society. A Judge who fails to understand the behaviour of a person in the correct perspective tends to expect unrealistic standards of common sense and behaviour particularly from witnesses whose social background differs from his own. For making a good Judge it is desirable that those who aspire to become Judges should, during the course of their training and careers, have enjoyed opportunities of learning at close quarters something about the motives and pressures which have impact on the attitudes of the members of the community. For this, a Judge should have the power of imagination that can enable him to put himself in the place of the man standing before him. With such outlook he can use his knowledge more effectively.
Many appointees, when appointed have been subject specialists while at the Bar. On appointment they become jack-of-all trades. Those who have practiced essentially in criminal law are required to attend to civil law work and vice versa. Though these Judges have the ability to grasp the new subjects very quickly, it seems a little hard on the litigants in the initial cases they try, and there is wrong use of their talents, inasmuch as they are not either employed within their specialized fields, or given time and opportunity to acquire a more general knowledge of the law. Though there has been no provision for training before appointment there is a positive move now to ensure that the new Judges receive a modicum of training afterwards. There is a need to extend training and the Judges should be encouraged and be given the time to keep pace with the advances in learning particularly in the ac tuarial, sociological and psychological fields to bring about familiarity with the basic concepts, coupled with knowledge of trends in these subjects which would tend to induce in them a more sympathetic approach to their exponents.
The Judges themselves could be expected to know the areas in which they are most deficient. Therefore, during his training period which should be for three to six months, the Judge should be free to go into any Court he wished and to observe the trial procedures and techniques. He should have an opportunity to consult with criminologists, actuaries, social welfare experts, ecologists and other specialists during his training period. Regular refresher courses should be available to all Judges to enable them to keep abreast of developments in sociology, psychology, economics, medicine, etc. There is a considerable need for a Judicial college or an Institution of Judicial Administration to ensure high standards in the decision making process.
It is extremely difficult to prophesy how good a particular appointee will shape as a Judge. Behavioural defects may develop after the appointment and some Judges may abuse their position in a variety of ways. The values and standards which were normally existent ensuring the purity of judicial administration are now required to be enforced wherever laxity is detected. The very honour of the judicial system lies in the honesty of its constituents. The experience gives an indication that some kind of procedure of receiving and dealing with complaints would enhance public confidence in judiciary, lead to improved standards of judicial behaviour and may even provide a remedy in specific cases of injustice.
Independence of the judiciary has been a highly-prized feature of our Constitution. However, inviolability from informed criticism or investigation may ten to decrease confidence in the judiciary. There would be no fear of interference with the independence of judiciary if the scrutiny and investigation is done by the appellate or superior court. Care should however be taken to ensure that the disgruntled elements or unscrupulous litigants do not succeed in their design of disreputing a good Judge by hurling false and motivated pseudonymous or anonymous complaints which if countenanced would sound a death-knell of strong, forthright and independent Judges making them tense, apprehensive and indecisive. The complaints against Judges should therefore be carefully and delicately handled and if the higher judicial disciplinary authority finds, after appropriate departmental proceedings, that the incumbent is wanting in the basic qualities of a Judge there should be given no more opportunity to him to tarnish the image of this noble institution. The black sheep when they know that they are detected sometimes prefer to walk away.
The tendency of some lawyers to browbeat the subordinate Judges by threatening them on the basis of their acquaintances and easy approach to the Judges of the higher Courts having administrative control over them should be severely curbed. No subordinate Judge should countenance such threats or pressure and should bring such instances to the notice of their administrative heads since they amount to interference with the course of justice.
There should be brought about conditions so that the members of subordinate judiciary have ample opportunity to emulate the standards followed by their senior brethren. Just as a child imbibes in himself the virtues of his parents, the judicial officers will follow the high traditions of their torch-bearers. There should be no situation where they can raise a mocking eyebrow when exhorted to follow certain value standards of aloofness impartiality and integrity. It should be clear to them that the only way of fulfilling their career ambitions is to work with sincerity and honesty and not by intrigues, approaches, favours or spending in any manner on pomp and show to please their superiors whether on local visits or otherwise. They should know that they are trustees of the power constitutionally reposed in them and there should never be any abuse of that power. They must avoid favours direct or subtle and strive to ensure that no one even secretly dares to approach them in connection with their judicial work. The glorious traditions which the Judges or our superior courts have been so zealously guarding and preserving must be handed down to them during their training and in personal meetings.
The quality of Judges at various levels and their receptivity for a good grooming almost solely depends upon the principal source of their appointment namely the Bar. A vibrant, efficient and principled Bar will send judges with an acceptable outlook and standards. To foster understanding, respect and support of our courts is one of the most solemn duties of the organized Bar. It can have no greater interest than the judicial system of the country, no more pressing activity than the work and well-being of the bench and participation in the selection process by suggesting the names of its willing and worthy members. The leaders of the Bar Association can suggest panels of such names to the Chief Justice, who can consider them for selecting the right persons on merits.
For providing a useful source to fill up the high judicial offices the willing lawyers should be identified. If a lawyer who may be willing does not indicate his intention or gives contrary indication in public, he is likely to remain a private citizen. The offer to a high judicial post should be taken by them to be a public honour and ordinarily it should not be turned down. It is very essential that the knowledgeable, experienced and sincere lawyer must be attracted to these posts so that they do not get distributed amongst others under the guise of non-availability of proper incumbents. The Advocate General and the organized Bar must therefore make conscious efforts to ascertain in confidence, the willingness of the worthy lawyers who have sufficient knowledge and experience and they should periodically forward the panel of such lawyers for selection and eventual appointment.
The younger lot who aspire to join judiciary at an earlier stage must try to gain as much court experience as possible, form study groups to discuss the points of law arising in various cases and to solve the points confronting them in the matters they conduct. The deserving young lawyers should be given sufficient incentive to remain in the profession. The Bar Associations can organize training and refresher courses for its members and expose them to the standards of behaviour expected from them.
The members of the Bar are the backbone of the judicial system. They are naturally aware of the role expected of them in the court proceedings. They should resolve to see that each brief they handle is prepared by them on facts and in law. They also should ensure that the courts work full time and that their matters are taken up in their turn for hearing and not unnecessarily adjourned. They would be justified in expecting punctuality in the working of the courts. Both the Judges and lawyers must respect the timings appointed for court work. Waste of even fifteen minutes in each working session either due to non-availability of the Judge or a lawyer works out to a loss of atleast two full working days in a month. If this happens in ten courts the loss would be twenty working days of one court which means the effective Judge strength of the courts is reduced by at least one Judge, if all thes e were single Judge benches. All this at whose cost ? Lawyers and Judges should therefore conduct the work keeping foremost the interest of those who await the outcome of process and who have no say in their grooming. Mere appreciation of each other that has no relation to the actual functioning of the court will not be enough. Good grooming is relevant only in the context of the quality of the output of work. There has therefore to be a concerted effort of correcting each other to bring about a work culture where the Judges feel obliged to take up causes and ensure that public time is not unnecessarily wasted and the lawyers co-operate in the proceedings by their active and effective participation, by avoiding adjournments, by guiding the Judge on facts and in law so that he can reach a just and correct conclusion.
There should be no place for mistrust or suspicion in the judicial functioning. The Judges and lawyers belong to the same fraternity and cannot be expected to behave like total strangers in the society. However, socialization should not degenerate into any private discussion on the facts of any pending or likely case, or any personal favours, direct or indirect, or a political or social pressure calculated to prejudice the outcome of any judicial proceeding.
Ultimately the moral fiber of these two important constituents of the judicial system, their conscious effort to treat the functioning of the court as a constitutional trustee of the society can groom them to be good lawyers and better judges.
http://gujarathighcourt.nic.in/Articles/grooming.htm
It would appear that the Judges are drawn from a narrow social background. Though the social climate has turned more democratic due to the efficiency of communication, there can be no doubt that social background of may Judges and the attitude of detachment to which they are conditioned during their formative years at the Bar, can produce difficulties of communication and understanding between them and people or lesser privilege and education who appear before them. The Judges with their background are less acquainted with the problems of poverty or of different pressures, loyalties and social values operating in different strata of the society. A Judge who fails to understand the behaviour of a person in the correct perspective tends to expect unrealistic standards of common sense and behaviour particularly from witnesses whose social background differs from his own. For making a good Judge it is desirable that those who aspire to become Judges should, during the course of their training and careers, have enjoyed opportunities of learning at close quarters something about the motives and pressures which have impact on the attitudes of the members of the community. For this, a Judge should have the power of imagination that can enable him to put himself in the place of the man standing before him. With such outlook he can use his knowledge more effectively.
Many appointees, when appointed have been subject specialists while at the Bar. On appointment they become jack-of-all trades. Those who have practiced essentially in criminal law are required to attend to civil law work and vice versa. Though these Judges have the ability to grasp the new subjects very quickly, it seems a little hard on the litigants in the initial cases they try, and there is wrong use of their talents, inasmuch as they are not either employed within their specialized fields, or given time and opportunity to acquire a more general knowledge of the law. Though there has been no provision for training before appointment there is a positive move now to ensure that the new Judges receive a modicum of training afterwards. There is a need to extend training and the Judges should be encouraged and be given the time to keep pace with the advances in learning particularly in the ac tuarial, sociological and psychological fields to bring about familiarity with the basic concepts, coupled with knowledge of trends in these subjects which would tend to induce in them a more sympathetic approach to their exponents.
The Judges themselves could be expected to know the areas in which they are most deficient. Therefore, during his training period which should be for three to six months, the Judge should be free to go into any Court he wished and to observe the trial procedures and techniques. He should have an opportunity to consult with criminologists, actuaries, social welfare experts, ecologists and other specialists during his training period. Regular refresher courses should be available to all Judges to enable them to keep abreast of developments in sociology, psychology, economics, medicine, etc. There is a considerable need for a Judicial college or an Institution of Judicial Administration to ensure high standards in the decision making process.
It is extremely difficult to prophesy how good a particular appointee will shape as a Judge. Behavioural defects may develop after the appointment and some Judges may abuse their position in a variety of ways. The values and standards which were normally existent ensuring the purity of judicial administration are now required to be enforced wherever laxity is detected. The very honour of the judicial system lies in the honesty of its constituents. The experience gives an indication that some kind of procedure of receiving and dealing with complaints would enhance public confidence in judiciary, lead to improved standards of judicial behaviour and may even provide a remedy in specific cases of injustice.
Independence of the judiciary has been a highly-prized feature of our Constitution. However, inviolability from informed criticism or investigation may ten to decrease confidence in the judiciary. There would be no fear of interference with the independence of judiciary if the scrutiny and investigation is done by the appellate or superior court. Care should however be taken to ensure that the disgruntled elements or unscrupulous litigants do not succeed in their design of disreputing a good Judge by hurling false and motivated pseudonymous or anonymous complaints which if countenanced would sound a death-knell of strong, forthright and independent Judges making them tense, apprehensive and indecisive. The complaints against Judges should therefore be carefully and delicately handled and if the higher judicial disciplinary authority finds, after appropriate departmental proceedings, that the incumbent is wanting in the basic qualities of a Judge there should be given no more opportunity to him to tarnish the image of this noble institution. The black sheep when they know that they are detected sometimes prefer to walk away.
The tendency of some lawyers to browbeat the subordinate Judges by threatening them on the basis of their acquaintances and easy approach to the Judges of the higher Courts having administrative control over them should be severely curbed. No subordinate Judge should countenance such threats or pressure and should bring such instances to the notice of their administrative heads since they amount to interference with the course of justice.
There should be brought about conditions so that the members of subordinate judiciary have ample opportunity to emulate the standards followed by their senior brethren. Just as a child imbibes in himself the virtues of his parents, the judicial officers will follow the high traditions of their torch-bearers. There should be no situation where they can raise a mocking eyebrow when exhorted to follow certain value standards of aloofness impartiality and integrity. It should be clear to them that the only way of fulfilling their career ambitions is to work with sincerity and honesty and not by intrigues, approaches, favours or spending in any manner on pomp and show to please their superiors whether on local visits or otherwise. They should know that they are trustees of the power constitutionally reposed in them and there should never be any abuse of that power. They must avoid favours direct or subtle and strive to ensure that no one even secretly dares to approach them in connection with their judicial work. The glorious traditions which the Judges or our superior courts have been so zealously guarding and preserving must be handed down to them during their training and in personal meetings.
The quality of Judges at various levels and their receptivity for a good grooming almost solely depends upon the principal source of their appointment namely the Bar. A vibrant, efficient and principled Bar will send judges with an acceptable outlook and standards. To foster understanding, respect and support of our courts is one of the most solemn duties of the organized Bar. It can have no greater interest than the judicial system of the country, no more pressing activity than the work and well-being of the bench and participation in the selection process by suggesting the names of its willing and worthy members. The leaders of the Bar Association can suggest panels of such names to the Chief Justice, who can consider them for selecting the right persons on merits.
For providing a useful source to fill up the high judicial offices the willing lawyers should be identified. If a lawyer who may be willing does not indicate his intention or gives contrary indication in public, he is likely to remain a private citizen. The offer to a high judicial post should be taken by them to be a public honour and ordinarily it should not be turned down. It is very essential that the knowledgeable, experienced and sincere lawyer must be attracted to these posts so that they do not get distributed amongst others under the guise of non-availability of proper incumbents. The Advocate General and the organized Bar must therefore make conscious efforts to ascertain in confidence, the willingness of the worthy lawyers who have sufficient knowledge and experience and they should periodically forward the panel of such lawyers for selection and eventual appointment.
The younger lot who aspire to join judiciary at an earlier stage must try to gain as much court experience as possible, form study groups to discuss the points of law arising in various cases and to solve the points confronting them in the matters they conduct. The deserving young lawyers should be given sufficient incentive to remain in the profession. The Bar Associations can organize training and refresher courses for its members and expose them to the standards of behaviour expected from them.
The members of the Bar are the backbone of the judicial system. They are naturally aware of the role expected of them in the court proceedings. They should resolve to see that each brief they handle is prepared by them on facts and in law. They also should ensure that the courts work full time and that their matters are taken up in their turn for hearing and not unnecessarily adjourned. They would be justified in expecting punctuality in the working of the courts. Both the Judges and lawyers must respect the timings appointed for court work. Waste of even fifteen minutes in each working session either due to non-availability of the Judge or a lawyer works out to a loss of atleast two full working days in a month. If this happens in ten courts the loss would be twenty working days of one court which means the effective Judge strength of the courts is reduced by at least one Judge, if all thes e were single Judge benches. All this at whose cost ? Lawyers and Judges should therefore conduct the work keeping foremost the interest of those who await the outcome of process and who have no say in their grooming. Mere appreciation of each other that has no relation to the actual functioning of the court will not be enough. Good grooming is relevant only in the context of the quality of the output of work. There has therefore to be a concerted effort of correcting each other to bring about a work culture where the Judges feel obliged to take up causes and ensure that public time is not unnecessarily wasted and the lawyers co-operate in the proceedings by their active and effective participation, by avoiding adjournments, by guiding the Judge on facts and in law so that he can reach a just and correct conclusion.
There should be no place for mistrust or suspicion in the judicial functioning. The Judges and lawyers belong to the same fraternity and cannot be expected to behave like total strangers in the society. However, socialization should not degenerate into any private discussion on the facts of any pending or likely case, or any personal favours, direct or indirect, or a political or social pressure calculated to prejudice the outcome of any judicial proceeding.
Ultimately the moral fiber of these two important constituents of the judicial system, their conscious effort to treat the functioning of the court as a constitutional trustee of the society can groom them to be good lawyers and better judges.
http://gujarathighcourt.nic.in/Articles/grooming.htm
Suspended Pak CJ’s lawyer faces attack
The crisis generated by the suspension of Pakistan’s chief justice Iftikhar M Chaudhry took a turn for the worse on Thursday, when unidentified people fired gunshots at the residence of Munir Malik, one his main defence lawyers.
Malik said some 15 shots had been fired at his residence before dawn —two of which hit a room where his daughter was working on a computer.
“God was kind and no one was hurt,” he said. Malik, who is also president of the Supreme Court Bar Association, said the attack was aimed at putting pressure on lawyers campaigning for Chaudhry’s reinstatement. Malik didn’t allow the police to enter his house till the arrival of the media and fellow lawyers as he feared they might destroy all evidence.
“It will not deter me from representing the chief justice and we will carry on our campaign for the independence of the judiciary,” Malik said.
Chaudhry’s suspension has led to a series of mass protests and calls for Musharraf to step down with the movement gathering momentum and the opposition parties also jumping into the bandwagon.
Zia Rizvi, a senior police official, said the investigators had collected the shells from the scene and were looking into the incident. “It was clearly done to harass the lawyer,” Rizvi said. The Sindh Home secretary, Brigadier Mohtaram, also said officials are probing the incident.
The incident comes just two days before Chaudhry’s Karachi visit for which lawyers and Opposition parties have planned a massive show of strength against Musharraf.
Tension is running high in Pakistan’s biggest city as the Mutthaida Qaumi Movement, which is a coalition partner of the Musharraf government, has also planned a rally on the same day.
Police arrested 12 persons here on Wednesday night for allegedly plotting to disrupt the rally. Chief City Police Commissioner of Karachi Azam Farooqi said the men were held with arms.
Mohtaram has requested Chaudhry to put off his planned visit to Karachi as the Sindh government has information that terrorists were planning to use the occasion to disrupt peace and attack the suspended chief justice and Opposition leaders.
A full bench of the Supreme Court has been constituted to hear Chaudhry’s petitions from May 12 on a day-to-day basis.
http://www.indianexpress.com/story/30585.html
Malik said some 15 shots had been fired at his residence before dawn —two of which hit a room where his daughter was working on a computer.
“God was kind and no one was hurt,” he said. Malik, who is also president of the Supreme Court Bar Association, said the attack was aimed at putting pressure on lawyers campaigning for Chaudhry’s reinstatement. Malik didn’t allow the police to enter his house till the arrival of the media and fellow lawyers as he feared they might destroy all evidence.
“It will not deter me from representing the chief justice and we will carry on our campaign for the independence of the judiciary,” Malik said.
Chaudhry’s suspension has led to a series of mass protests and calls for Musharraf to step down with the movement gathering momentum and the opposition parties also jumping into the bandwagon.
Zia Rizvi, a senior police official, said the investigators had collected the shells from the scene and were looking into the incident. “It was clearly done to harass the lawyer,” Rizvi said. The Sindh Home secretary, Brigadier Mohtaram, also said officials are probing the incident.
The incident comes just two days before Chaudhry’s Karachi visit for which lawyers and Opposition parties have planned a massive show of strength against Musharraf.
Tension is running high in Pakistan’s biggest city as the Mutthaida Qaumi Movement, which is a coalition partner of the Musharraf government, has also planned a rally on the same day.
Police arrested 12 persons here on Wednesday night for allegedly plotting to disrupt the rally. Chief City Police Commissioner of Karachi Azam Farooqi said the men were held with arms.
Mohtaram has requested Chaudhry to put off his planned visit to Karachi as the Sindh government has information that terrorists were planning to use the occasion to disrupt peace and attack the suspended chief justice and Opposition leaders.
A full bench of the Supreme Court has been constituted to hear Chaudhry’s petitions from May 12 on a day-to-day basis.
http://www.indianexpress.com/story/30585.html
Wednesday, May 30, 2007
Checklist for Getting Your Financial Affairs in Order
Take the following steps to help your family should you die or become incapacitated.
√ Have you made a financial power of attorney? With a durable power of attorney for finances, you can give a trusted person broad authority to handle all of your finances for an indefinite period of time if you become incapacitated and unable to handle your own affairs. The person you name to handle your finances is called your agent or attorney-in-fact (but doesn't have to be an attorney).
1. Do you have young children?You should name either a property guardian, custodian, or trustee to manage the money and property you leave to your minor children. (This can be the same person as the personal guardian you name in your will).
2. Do you need life insurance?If you have young children or own a house, or you may owe significant debts or estate taxes when you die, life insurance may be a good idea.
3. Have you filed a beneficiary form for your bank accounts and retirement plans? Naming a beneficiary for these types of accounts makes the account automatically "payable on death" to your beneficiary and allows the funds to skip the probate process. Likewise, in almost all states, you can register your stocks, bonds, or brokerage accounts to transfer to your beneficiary upon your death.
4.Have you considered the possibility that your heirs may have to pay estate taxes? If your assets are currently worth over $1.5 million and you are married or have a domestic partner, you might want to consider an AB trust.
5.Do you own a business or part of a business? If you're the sole owner of a business, you should have a succession plan. If you own a business with others, you should have a buy-sell agreement.
6. Have you considered funeral or cremation arrangements? Rather than a funeral prepayment plan, which may be unreliable, you can set up a Totten trust with your bank and deposit funds into it to pay for your funeral and final arrangements.
7.Have you stored your important information in a place where your attorney-in-fact or your executor can find it? Your attorney-in-fact and/or your executor (the person you choose in your will to administer your property after you die) may need access to the following documents:
* will
* trusts
* insurance policies
* real estate deeds
* certificates for stocks, bonds, annuities
* information on bank accounts, mutual funds, and safe deposit boxes
* information on retirement plans, 401(k) accounts, or IRAs
* information on debts: credit cards, mortgages and loans, utilities, and unpaid taxes
* information on Totten trusts or funeral prepayment plans, and any final arrangements instructions you have made.
http://www.lagrangelaw.com/lawyer-attorney-1D56DEB5-3D5E-4692-A47FA2C05A274EBD.html
√ Have you made a financial power of attorney? With a durable power of attorney for finances, you can give a trusted person broad authority to handle all of your finances for an indefinite period of time if you become incapacitated and unable to handle your own affairs. The person you name to handle your finances is called your agent or attorney-in-fact (but doesn't have to be an attorney).
1. Do you have young children?You should name either a property guardian, custodian, or trustee to manage the money and property you leave to your minor children. (This can be the same person as the personal guardian you name in your will).
2. Do you need life insurance?If you have young children or own a house, or you may owe significant debts or estate taxes when you die, life insurance may be a good idea.
3. Have you filed a beneficiary form for your bank accounts and retirement plans? Naming a beneficiary for these types of accounts makes the account automatically "payable on death" to your beneficiary and allows the funds to skip the probate process. Likewise, in almost all states, you can register your stocks, bonds, or brokerage accounts to transfer to your beneficiary upon your death.
4.Have you considered the possibility that your heirs may have to pay estate taxes? If your assets are currently worth over $1.5 million and you are married or have a domestic partner, you might want to consider an AB trust.
5.Do you own a business or part of a business? If you're the sole owner of a business, you should have a succession plan. If you own a business with others, you should have a buy-sell agreement.
6. Have you considered funeral or cremation arrangements? Rather than a funeral prepayment plan, which may be unreliable, you can set up a Totten trust with your bank and deposit funds into it to pay for your funeral and final arrangements.
7.Have you stored your important information in a place where your attorney-in-fact or your executor can find it? Your attorney-in-fact and/or your executor (the person you choose in your will to administer your property after you die) may need access to the following documents:
* will
* trusts
* insurance policies
* real estate deeds
* certificates for stocks, bonds, annuities
* information on bank accounts, mutual funds, and safe deposit boxes
* information on retirement plans, 401(k) accounts, or IRAs
* information on debts: credit cards, mortgages and loans, utilities, and unpaid taxes
* information on Totten trusts or funeral prepayment plans, and any final arrangements instructions you have made.
http://www.lagrangelaw.com/lawyer-attorney-1D56DEB5-3D5E-4692-A47FA2C05A274EBD.html
Charitable Trusts: Tax Breaks for Do-Gooders
If you want to give a big gift to charity, consider a charitable trust.
If you want to make a substantial gift to a charity, it may make sense to use a special kind of trust called a charitable trust. A charitable trust lets you donate generously to charity, and it gives you and your heirs a big tax break.
On the other hand, if you just want to make a few small charitable gifts, then a charitable trust probably isn't worth the bother.
You need to do some serious thinking before setting up a charitable trust. Charitable trusts are irrevocable. Once you create one and it becomes operational, you cannot change your mind and regain legal control of the trust property.
How It Works
The most common type of charitable trust is called a charitable remainder trust. Here's how it usually works.
First, you set up a trust and transfer to it the property you want to donate to a charity. The charity must be approved by the IRS, which usually means it has tax-exempt status under the Internal Revenue Code.
The charity serves as trustee of the trust, and manages or invests the property so it will produce income for you. The charity pays you (or someone you name) a portion of the income generated by the trust property for a certain number of years, or for your whole life -- you specify the payment period in the trust document. Then, at your death or the end of the period you set, the property goes to the charity.
What's In It for You -- Tax Advantages
In addition to helping out your favorite charity, you get several big tax advantages from this arrangement.
Income Tax
You can take an income tax deduction, spread over five years, for the value of your gift to the charity. Where things get tricky is determining the amount of your deduction. The value of your gift is not simply the value of the property; the IRS deducts from that value the amount of income you're likely to receive from the property. For example, if you donate $100,000 but can expect to get $25,000 in income back (based on your life expectancy, interest rates and how the trust document is set up), the value of your gift is $75,000.
Estate Tax
When the trust property eventually goes to the charity outright (at your death or the end of the payment period you specified), it's no longer in your estate -- so it isn't subject to federal estate tax. (Most people don't need to worry about estate tax, however, which is assessed only on large estates.)
Capital Gains Tax
A charitable trust lets you turn appreciated property (property that has gone up significantly in value since you acquired it) into cash without paying tax on the profit. If you simply sold the property, you would have to pay capital gains tax on your profit.
A charity usually sells any non-income-producing asset in a charitable trust and uses the proceeds to buy property that will produce income for you. But charities, unlike individuals, don't have to pay capital gains tax. So if you give the property to the trust and the charity sells it, the proceeds stay in the trust and aren't taxed.
Example
Toni owns stock worth $300,000. She paid $20,000 for it 20 years ago. She creates a charitable trust, naming Greenpeace as the charity beneficiary, and funds her trust with her stock. Greenpeace sells the stock for $300,000 and invests the money in a mutual fund. Toni will receive income from this $300,000 for her life.
Had Toni sold the stock herself, she would have had to pay capital gains tax on her $280,000 profit. But no capital gains tax is assessed against the charity.
Receiving Income From the Trust
When you set up a charitable remainder trust, there are two basic ways to structure the payments you will receive.
Fixed Annuity
You can receive a fixed dollar amount (an annuity) each year. That way, if the trust has lower-than-expected income, you still receive the same annual income. Once you set the amount and the trust is operational, you can't change it. For instance, if you direct that the charity pay you $10,000 a year for life, you can't later say, "Oops, I forgot about inflation. How about $15,000?"
Theoretically, you can make the payments as high as you want. Practically, however, there are limits. First, the higher the payments, the lower your income tax deduction. Second, high payments might eat into principal, possibly even using it all up before the payment term is over and leaving nothing for the charity. Third, a charity is unlikely to accept a gift if it is likely, or even possible, that all the trust property will be paid back to you.
Percentage of Trust Assets
It's common to set your annual payment as a percentage of the value of the current worth of the trust property. For example, your trust document could specify that you will receive 7% of the value of the trust assets yearly. Each year the trust assets will be reappraised, and you will receive 7% of that amount.
Because you receive a percentage, not a flat dollar amount, if inflation (or wise investment) pushes up the dollar value of the assets, your payments go up accordingly. Under IRS rules, you must receive at least 5% of the value of the trust each year.
http://www.lagrangelaw.com/lawyer-attorney-42AE8B2E-F150-42E8-86DB468AB47C6196.html
If you want to make a substantial gift to a charity, it may make sense to use a special kind of trust called a charitable trust. A charitable trust lets you donate generously to charity, and it gives you and your heirs a big tax break.
On the other hand, if you just want to make a few small charitable gifts, then a charitable trust probably isn't worth the bother.
You need to do some serious thinking before setting up a charitable trust. Charitable trusts are irrevocable. Once you create one and it becomes operational, you cannot change your mind and regain legal control of the trust property.
How It Works
The most common type of charitable trust is called a charitable remainder trust. Here's how it usually works.
First, you set up a trust and transfer to it the property you want to donate to a charity. The charity must be approved by the IRS, which usually means it has tax-exempt status under the Internal Revenue Code.
The charity serves as trustee of the trust, and manages or invests the property so it will produce income for you. The charity pays you (or someone you name) a portion of the income generated by the trust property for a certain number of years, or for your whole life -- you specify the payment period in the trust document. Then, at your death or the end of the period you set, the property goes to the charity.
What's In It for You -- Tax Advantages
In addition to helping out your favorite charity, you get several big tax advantages from this arrangement.
Income Tax
You can take an income tax deduction, spread over five years, for the value of your gift to the charity. Where things get tricky is determining the amount of your deduction. The value of your gift is not simply the value of the property; the IRS deducts from that value the amount of income you're likely to receive from the property. For example, if you donate $100,000 but can expect to get $25,000 in income back (based on your life expectancy, interest rates and how the trust document is set up), the value of your gift is $75,000.
Estate Tax
When the trust property eventually goes to the charity outright (at your death or the end of the payment period you specified), it's no longer in your estate -- so it isn't subject to federal estate tax. (Most people don't need to worry about estate tax, however, which is assessed only on large estates.)
Capital Gains Tax
A charitable trust lets you turn appreciated property (property that has gone up significantly in value since you acquired it) into cash without paying tax on the profit. If you simply sold the property, you would have to pay capital gains tax on your profit.
A charity usually sells any non-income-producing asset in a charitable trust and uses the proceeds to buy property that will produce income for you. But charities, unlike individuals, don't have to pay capital gains tax. So if you give the property to the trust and the charity sells it, the proceeds stay in the trust and aren't taxed.
Example
Toni owns stock worth $300,000. She paid $20,000 for it 20 years ago. She creates a charitable trust, naming Greenpeace as the charity beneficiary, and funds her trust with her stock. Greenpeace sells the stock for $300,000 and invests the money in a mutual fund. Toni will receive income from this $300,000 for her life.
Had Toni sold the stock herself, she would have had to pay capital gains tax on her $280,000 profit. But no capital gains tax is assessed against the charity.
Receiving Income From the Trust
When you set up a charitable remainder trust, there are two basic ways to structure the payments you will receive.
Fixed Annuity
You can receive a fixed dollar amount (an annuity) each year. That way, if the trust has lower-than-expected income, you still receive the same annual income. Once you set the amount and the trust is operational, you can't change it. For instance, if you direct that the charity pay you $10,000 a year for life, you can't later say, "Oops, I forgot about inflation. How about $15,000?"
Theoretically, you can make the payments as high as you want. Practically, however, there are limits. First, the higher the payments, the lower your income tax deduction. Second, high payments might eat into principal, possibly even using it all up before the payment term is over and leaving nothing for the charity. Third, a charity is unlikely to accept a gift if it is likely, or even possible, that all the trust property will be paid back to you.
Percentage of Trust Assets
It's common to set your annual payment as a percentage of the value of the current worth of the trust property. For example, your trust document could specify that you will receive 7% of the value of the trust assets yearly. Each year the trust assets will be reappraised, and you will receive 7% of that amount.
Because you receive a percentage, not a flat dollar amount, if inflation (or wise investment) pushes up the dollar value of the assets, your payments go up accordingly. Under IRS rules, you must receive at least 5% of the value of the trust each year.
http://www.lagrangelaw.com/lawyer-attorney-42AE8B2E-F150-42E8-86DB468AB47C6196.html
Charitable Trusts: Tax Breaks for Do-Gooders
If you want to give a big gift to charity, consider a charitable trust.
If you want to make a substantial gift to a charity, it may make sense to use a special kind of trust called a charitable trust. A charitable trust lets you donate generously to charity, and it gives you and your heirs a big tax break.
On the other hand, if you just want to make a few small charitable gifts, then a charitable trust probably isn't worth the bother.
You need to do some serious thinking before setting up a charitable trust. Charitable trusts are irrevocable. Once you create one and it becomes operational, you cannot change your mind and regain legal control of the trust property.
How It Works
The most common type of charitable trust is called a charitable remainder trust. Here's how it usually works.
First, you set up a trust and transfer to it the property you want to donate to a charity. The charity must be approved by the IRS, which usually means it has tax-exempt status under the Internal Revenue Code.
The charity serves as trustee of the trust, and manages or invests the property so it will produce income for you. The charity pays you (or someone you name) a portion of the income generated by the trust property for a certain number of years, or for your whole life -- you specify the payment period in the trust document. Then, at your death or the end of the period you set, the property goes to the charity.
What's In It for You -- Tax Advantages
In addition to helping out your favorite charity, you get several big tax advantages from this arrangement. Income Tax
You can take an income tax deduction, spread over five years, for the value of your gift to the charity. Where things get tricky is determining the amount of your deduction. The value of your gift is not simply the value of the property; the IRS deducts from that value the amount of income you're likely to receive from the property. For example, if you donate $100,000 but can expect to get $25,000 in income back (based on your life expectancy, interest rates and how the trust document is set up), the value of your gift is $75,000.
Estate Tax
When the trust property eventually goes to the charity outright (at your death or the end of the payment period you specified), it's no longer in your estate -- so it isn't subject to federal estate tax. (Most people don't need to worry about estate tax, however, which is assessed only on large estates.)
Capital Gains Tax
A charitable trust lets you turn appreciated property (property that has gone up significantly in value since you acquired it) into cash without paying tax on the profit. If you simply sold the property, you would have to pay capital gains tax on your profit.
A charity usually sells any non-income-producing asset in a charitable trust and uses the proceeds to buy property that will produce income for you. But charities, unlike individuals, don't have to pay capital gains tax. So if you give the property to the trust and the charity sells it, the proceeds stay in the trust and aren't taxed.
Example
Toni owns stock worth $300,000. She paid $20,000 for it 20 years ago. She creates a charitable trust, naming Greenpeace as the charity beneficiary, and funds her trust with her stock. Greenpeace sells the stock for $300,000 and invests the money in a mutual fund. Toni will receive income from this $300,000 for her life.
Had Toni sold the stock herself, she would have had to pay capital gains tax on her $280,000 profit. But no capital gains tax is assessed against the charity.
Receiving Income From the Trust
When you set up a charitable remainder trust, there are two basic ways to structure the payments you will receive.
Fixed Annuity
You can receive a fixed dollar amount (an annuity) each year. That way, if the trust has lower-than-expected income, you still receive the same annual income. Once you set the amount and the trust is operational, you can't change it. For instance, if you direct that the charity pay you $10,000 a year for life, you can't later say, "Oops, I forgot about inflation. How about $15,000?"
Theoretically, you can make the payments as high as you want. Practically, however, there are limits. First, the higher the payments, the lower your income tax deduction. Second, high payments might eat into principal, possibly even using it all up before the payment term is over and leaving nothing for the charity. Third, a charity is unlikely to accept a gift if it is likely, or even possible, that all the trust property will be paid back to you.
Percentage of Trust Assets
It's common to set your annual payment as a percentage of the value of the current worth of the trust property. For example, your trust document could specify that you will receive 7% of the value of the trust assets yearly. Each year the trust assets will be reappraised, and you will receive 7% of that amount.
Because you receive a percentage, not a flat dollar amount, if inflation (or wise investment) pushes up the dollar value of the assets, your payments go up accordingly. Under IRS rules, you must receive at least 5% of the value of the trust each year.
http://www.lagrangelaw.com/lawyer-attorney-42AE8B2E-F150-42E8-86DB468AB47C6196.html
If you want to make a substantial gift to a charity, it may make sense to use a special kind of trust called a charitable trust. A charitable trust lets you donate generously to charity, and it gives you and your heirs a big tax break.
On the other hand, if you just want to make a few small charitable gifts, then a charitable trust probably isn't worth the bother.
You need to do some serious thinking before setting up a charitable trust. Charitable trusts are irrevocable. Once you create one and it becomes operational, you cannot change your mind and regain legal control of the trust property.
How It Works
The most common type of charitable trust is called a charitable remainder trust. Here's how it usually works.
First, you set up a trust and transfer to it the property you want to donate to a charity. The charity must be approved by the IRS, which usually means it has tax-exempt status under the Internal Revenue Code.
The charity serves as trustee of the trust, and manages or invests the property so it will produce income for you. The charity pays you (or someone you name) a portion of the income generated by the trust property for a certain number of years, or for your whole life -- you specify the payment period in the trust document. Then, at your death or the end of the period you set, the property goes to the charity.
What's In It for You -- Tax Advantages
In addition to helping out your favorite charity, you get several big tax advantages from this arrangement. Income Tax
You can take an income tax deduction, spread over five years, for the value of your gift to the charity. Where things get tricky is determining the amount of your deduction. The value of your gift is not simply the value of the property; the IRS deducts from that value the amount of income you're likely to receive from the property. For example, if you donate $100,000 but can expect to get $25,000 in income back (based on your life expectancy, interest rates and how the trust document is set up), the value of your gift is $75,000.
Estate Tax
When the trust property eventually goes to the charity outright (at your death or the end of the payment period you specified), it's no longer in your estate -- so it isn't subject to federal estate tax. (Most people don't need to worry about estate tax, however, which is assessed only on large estates.)
Capital Gains Tax
A charitable trust lets you turn appreciated property (property that has gone up significantly in value since you acquired it) into cash without paying tax on the profit. If you simply sold the property, you would have to pay capital gains tax on your profit.
A charity usually sells any non-income-producing asset in a charitable trust and uses the proceeds to buy property that will produce income for you. But charities, unlike individuals, don't have to pay capital gains tax. So if you give the property to the trust and the charity sells it, the proceeds stay in the trust and aren't taxed.
Example
Toni owns stock worth $300,000. She paid $20,000 for it 20 years ago. She creates a charitable trust, naming Greenpeace as the charity beneficiary, and funds her trust with her stock. Greenpeace sells the stock for $300,000 and invests the money in a mutual fund. Toni will receive income from this $300,000 for her life.
Had Toni sold the stock herself, she would have had to pay capital gains tax on her $280,000 profit. But no capital gains tax is assessed against the charity.
Receiving Income From the Trust
When you set up a charitable remainder trust, there are two basic ways to structure the payments you will receive.
Fixed Annuity
You can receive a fixed dollar amount (an annuity) each year. That way, if the trust has lower-than-expected income, you still receive the same annual income. Once you set the amount and the trust is operational, you can't change it. For instance, if you direct that the charity pay you $10,000 a year for life, you can't later say, "Oops, I forgot about inflation. How about $15,000?"
Theoretically, you can make the payments as high as you want. Practically, however, there are limits. First, the higher the payments, the lower your income tax deduction. Second, high payments might eat into principal, possibly even using it all up before the payment term is over and leaving nothing for the charity. Third, a charity is unlikely to accept a gift if it is likely, or even possible, that all the trust property will be paid back to you.
Percentage of Trust Assets
It's common to set your annual payment as a percentage of the value of the current worth of the trust property. For example, your trust document could specify that you will receive 7% of the value of the trust assets yearly. Each year the trust assets will be reappraised, and you will receive 7% of that amount.
Because you receive a percentage, not a flat dollar amount, if inflation (or wise investment) pushes up the dollar value of the assets, your payments go up accordingly. Under IRS rules, you must receive at least 5% of the value of the trust each year.
http://www.lagrangelaw.com/lawyer-attorney-42AE8B2E-F150-42E8-86DB468AB47C6196.html
Arranging to Donate Your Body
Here are the legal basics of full body donations.
Most medical schools need donations of whole bodies for research and instruction -- and shortages may be especially acute at osteopathic and chiropractic schools. The reason they are called whole body donations is that the donation will be rejected if any of the organs have been removed from the body.
After using a donated body for study or instruction, a medical institution will usually cremate it and bury or scatter the cremains in a specified plot. However, the remains or cremains can be returned to family members for burial -- usually within a year or two. Those who want the body or cremains returned to a friend or family members for the final disposition should specify this when arranging for the donation.
No medical institution is allowed to buy a body, but there is usually little or no expense to the survivors when a body is donated. When a death occurs, most medical schools will pay to transport the body, as well as pay for any final disposition. Ask the nearest medical institution that accepts body donations whether it has specific arrangements for transporting and disposing of bodies to avoid any unexpected charges.
Body donations are usually arranged with a particular institution while the donor is living, but some institutions will accept the donation at death with the written permission of the next of kin.
If you live in a state with no medical school or one that has very strict requirements for whole body donations, you may find out more about your body donation options from the National Anatomical Service, which operates 24-hour phone services: 800-727-0700.
However, you should know that even if you have arranged in advance to donate your body to a medical institution, the institution may reject the donation. This may occur, for example, if:
* you have also donated one or more of your organs and these are taken at your death
* the institution's current supply exceeds its demand and there are no facilities for storage
* you die during surgery, or
* your body is unsuitable for study because it is extremely obese, or you have died due to a number of diseases that render it unacceptable, according to the institution.
http://www.lagrangelaw.com/lawyer-attorney-626D348C-B993-47B4-BB4111CC1DF8DD37.html
Most medical schools need donations of whole bodies for research and instruction -- and shortages may be especially acute at osteopathic and chiropractic schools. The reason they are called whole body donations is that the donation will be rejected if any of the organs have been removed from the body.
After using a donated body for study or instruction, a medical institution will usually cremate it and bury or scatter the cremains in a specified plot. However, the remains or cremains can be returned to family members for burial -- usually within a year or two. Those who want the body or cremains returned to a friend or family members for the final disposition should specify this when arranging for the donation.
No medical institution is allowed to buy a body, but there is usually little or no expense to the survivors when a body is donated. When a death occurs, most medical schools will pay to transport the body, as well as pay for any final disposition. Ask the nearest medical institution that accepts body donations whether it has specific arrangements for transporting and disposing of bodies to avoid any unexpected charges.
Body donations are usually arranged with a particular institution while the donor is living, but some institutions will accept the donation at death with the written permission of the next of kin.
If you live in a state with no medical school or one that has very strict requirements for whole body donations, you may find out more about your body donation options from the National Anatomical Service, which operates 24-hour phone services: 800-727-0700.
However, you should know that even if you have arranged in advance to donate your body to a medical institution, the institution may reject the donation. This may occur, for example, if:
* you have also donated one or more of your organs and these are taken at your death
* the institution's current supply exceeds its demand and there are no facilities for storage
* you die during surgery, or
* your body is unsuitable for study because it is extremely obese, or you have died due to a number of diseases that render it unacceptable, according to the institution.
http://www.lagrangelaw.com/lawyer-attorney-626D348C-B993-47B4-BB4111CC1DF8DD37.html
Arranging to Donate Your Organs
What to do if you want to donate your organs after death.
As medical technology has made successful organ and tissue transplants cheaper, easier and safer, organs and tissues are in great demand. And a growing number of states eagerly accept any body part for donation.
Among the organs and tissues now commonly being transplanted are:
* corneas
* hearts
* livers
* kidneys
* bone and bone marrow
* tendons, ligaments, connective tissue
* skin
* pancreas, and
* lungs.
Tissues and corneas can be taken from almost anyone -- and are often used for research and study. However, there are far greater problems with donating major organs such as hearts and livers. For example, while there are tens of thousands of people now on waiting lists to receive kidneys alone, only about 1% of all people who die are suitable kidney donors.
The principal method for donating organs is by indicating your intent to do so on a donor card. Once signed, this card identifies you to medical personnel as a potential organ donor.
You can get a donor card or form from most hospitals, the county or state office of the National Kidney Foundation or a community eye bank. In most states, you can also obtain an organ donation card from the local Department of Motor Vehicles. Depending on where you live, you can check a box, affix a stamp or seal, or attach a separate card to your license, indicating your wish to donate one or more organs.
Even if you have not signed a card or other document indicating your intent to donate your organs, your next of kin can approve a donation at your death. And conversely, even if you have indicated an intent to donate your organs, an objection by your next of kin will often defeat your intention; medical personnel will usually not proceed in the face of an objection from relatives. The best safeguard is to discuss your wishes with close friends and relatives, emphasizing your strong feelings about donating your body for research or teaching.
http://www.lagrangelaw.com/lawyer-attorney-F6AA57CF-FF21-4E37-B90CE0A40D145879.html
As medical technology has made successful organ and tissue transplants cheaper, easier and safer, organs and tissues are in great demand. And a growing number of states eagerly accept any body part for donation.
Among the organs and tissues now commonly being transplanted are:
* corneas
* hearts
* livers
* kidneys
* bone and bone marrow
* tendons, ligaments, connective tissue
* skin
* pancreas, and
* lungs.
Tissues and corneas can be taken from almost anyone -- and are often used for research and study. However, there are far greater problems with donating major organs such as hearts and livers. For example, while there are tens of thousands of people now on waiting lists to receive kidneys alone, only about 1% of all people who die are suitable kidney donors.
The principal method for donating organs is by indicating your intent to do so on a donor card. Once signed, this card identifies you to medical personnel as a potential organ donor.
You can get a donor card or form from most hospitals, the county or state office of the National Kidney Foundation or a community eye bank. In most states, you can also obtain an organ donation card from the local Department of Motor Vehicles. Depending on where you live, you can check a box, affix a stamp or seal, or attach a separate card to your license, indicating your wish to donate one or more organs.
Even if you have not signed a card or other document indicating your intent to donate your organs, your next of kin can approve a donation at your death. And conversely, even if you have indicated an intent to donate your organs, an objection by your next of kin will often defeat your intention; medical personnel will usually not proceed in the face of an objection from relatives. The best safeguard is to discuss your wishes with close friends and relatives, emphasizing your strong feelings about donating your body for research or teaching.
http://www.lagrangelaw.com/lawyer-attorney-F6AA57CF-FF21-4E37-B90CE0A40D145879.html
Searches and Seizures FAQ
Your right to privacy when the police come knocking, pull you over, or stop you on the street.
What's Below:
When is a police investigation considered a search?
How Private Is Your Property?
What is a search warrant?
What does it take to get a search warrant?
What are the police allowed to do after they obtain a search warrant?
Do the police always need a warrant to conduct a search?
Can my roommate-or my landlord-give the police permission to search my apartment?
When is a police investigation considered a search?
A police investigation is not a search unless it intrudes on a person's privacy. In other words, if a person did not have a "legitimate expectation of privacy" in the place or thing searched, no "search" has occurred.
Courts ask two questions to determine whether a person had a legitimate expectation of privacy in the place or things searched:
* Did the person expect some degree of privacy?
* Is the person's expectation reasonable-that is, one that society is willing to recognize?
For example, a person who uses a public restroom expects that no one will spy on her, and most people-including judges and juries-would consider that expectation to be reasonable. Therefore, if the police install a hidden video camera in a public restroom, the action is considered a search and must meet the Fourth Amendment's requirement of reasonableness.
On the other hand, if the police glance into a car and see a weapon on the front seat, it is not a search because it is unlikely that a person would think that the front seat of a car is a private place. And even if he did, society is not generally willing to extend the protections of privacy to the front seat of an automobile.
How Private Is Your Property?
Generally, if the police are able to view contraband or evidence on your property without actually entering it, they have not conducted a search. In other words, you cannot have a reasonable expectation of privacy in an area that can legitimately be seen from outside your property. This means that the police can use what they have seen as the basis for getting a warrant to come in and take a closer look. Or, if the situation calls for prompt action (the need to stop a drug deal, for instance), they may enter without a warrant.
Law enforcement officers are allowed to take aerial photographs or come close enough to overhear your conversations-these actions are not considered searches. On the other hand, without a warrant or an exception to the rule requiring a warrant, officers are probably not allowed to use sophisticated equipment to discover what is on your property or to eavesdrop on your conversations. In general, if the investigation method is highly artificial and high-tech, it's likely to be considered a search. Where the line is drawn, however, is not clear or consistent from state to state.
What is a search warrant?
A search warrant is a kind of permission slip, signed by a judge, that allows the police to enter private property to look for particular items. It is addressed to the owner of the property, and tells the owner that a judge has decided that it is reasonably likely that certain contraband, or evidence of criminal activities, will be found in specified locations on the property.
As a general rule, the police are supposed to apply for a warrant before conducting a search of private property; any search that is conducted without a warrant is presumed to be unreasonable. This means that the police officers will later have to justify the search-and why a warrant wasn't obtained first-if the defendant challenges it in court.
What does it take to get a search warrant?
A judge will issue a search warrant after the police have convinced her that:
* it is more likely than not that a crime has taken place, and
* items connected to the crime are likely be found in a specified location on the property.
To convince the judge of these facts, the police tell the judge what they know about the situation. Usually, the information given to the judge is based either on the officers' own observations or on the second-hand observations of an informant.The police are limited in their ability to use secondhand information. As a general rule, the information must be reliable given the circumstances. Generally, reliable information is corroborated by police observation. For example, a citizen's tip that someone regularly delivers drugs to a certain location would be corroborated if an officer observes the person's routine. But corroboration is not necessary in every case. Sometimes a judge will issue a warrant if the source of the information is known to the police and has provided trustworthy information in the past.
What are the police allowed to do after they obtain a search warrant?
Once the police have a search warrant, they are entitled to enter the designated property to search for the items listed on the warrant. Legally, the search is supposed to be confined to the specific areas described in the warrant. For example, if the search warrant includes only the living room, the search should not extend into the kitchen, bathroom or bedroom. But there are exceptions to this limitation which are frequently used to justify broader searches. For example, the police may search beyond the terms of the warrant in order to:
* ensure their safety and the safety of others
* prevent the destruction of evidence
* discover more about possible evidence or contraband that is in plain view elsewhere on the property, or
* hunt for evidence or contraband that, as a result of their initial search, they believe exists in another location on the property.
For instance, although a warrant might be issued for the search of a house, the sound of a shotgun being loaded in the backyard would justify expanding the search to the yard in order to protect the officers; similarly, a search limited to the ground floor might legitimately expand to the upstairs if the police, searching for illegal drugs, hear toilets being flushed above. And the police can always seize evidence or illegal items if they are in plain view or are discovered while the officers are searching for the items listed in the warrant.
Do the police always need a warrant to conduct a search?
No. In many situations, police may legally conduct a search without first obtaining a warrant.
* Consent searches. If the police ask your permission to search your home, purse, briefcase or other property, and you agree, the search is considered consensual, and they don't need a warrant. The police typically obtain a person's consent by threatening to detain her while they obtain the warrant.
* Searches that accompany an arrest. When a person is placed under arrest, the police may search the person and the immediate surroundings for weapons that might be used to harm the officer. If the person is taken to jail, the police may search to make sure that weapons or contraband are not brought into the jail. (This is called an inventory search.) Inventory searches also frequently involve a search of the arrested person's car (if it is being held by the police) and personal effects on the theory that the police need a precise record of the person's property to avoid claims of theft.
* Searches necessary to protect the safety of the public. The police don't need a warrant if they have a reasonable fear that their safety, or that of the public, is in imminent danger. For example, an officer who suspected a bomb-making operation while walking his beat might be justified in entering immediately and seizing the ingredients. And in the famous O.J. Simpson case, the police justified their entry onto O.J. Simpson's property on the grounds that they feared for the safety of other family members.
* Searches necessary to prevent the imminent destruction of evidence. A police officer does not need to obtain a warrant if she has observed illegal items (such as weapons or contraband) and believes that the items will disappear unless the officer takes prompt action. This exception arises most frequently when the police spot contraband or weapons in a car. Because cars are moved so frequently, the officer is justified in searching the entire vehicle, including the trunk, without obtaining a warrant. On the other hand, if the police learn about a marijuana-growing operation from a neighbor, they usually would need a warrant, as it is unlikely that the growing plants and other evidence of the operation will disappear quickly enough to justify a warrantless search.
* "Hot pursuit" searches. Police may enter private dwellings to search for criminals who are fleeing the scene of a crime.
Can my roommate-or my landlord-give the police permission to search my apartment?
The police may search your apartment if the person in charge of the premises gives permission. If you and your roommate share common areas (such as the kitchen and living room), your roommate can authorize a search of those areas. But your roommate cannot give permission to search your separate bedroom.
Similarly, your landlord cannot give permission to search your apartment. Although the landlord owns the property, your monthly check guarantees your privacy at home. This is true even if you are behind in your rent or your landlord has sued to evict you. Until the landlord has a court order that permits him to enter and retake the premises, he cannot enter without your permission. (But keep in mind that many states allow a landlord to enter for inspections, which usually require advance notice of a day or two.) If the police can point to circumstances that would justify immediate entry, however -- such as the sound of a ferocious fight or the smell of burning marijuana -- they may enter without permission from anyone.
http://www.ralphbehr.net/lawyer-attorney-81B70BE7-806D-43EB-8632156E62570E6E.html
What's Below:
When is a police investigation considered a search?
How Private Is Your Property?
What is a search warrant?
What does it take to get a search warrant?
What are the police allowed to do after they obtain a search warrant?
Do the police always need a warrant to conduct a search?
Can my roommate-or my landlord-give the police permission to search my apartment?
When is a police investigation considered a search?
A police investigation is not a search unless it intrudes on a person's privacy. In other words, if a person did not have a "legitimate expectation of privacy" in the place or thing searched, no "search" has occurred.
Courts ask two questions to determine whether a person had a legitimate expectation of privacy in the place or things searched:
* Did the person expect some degree of privacy?
* Is the person's expectation reasonable-that is, one that society is willing to recognize?
For example, a person who uses a public restroom expects that no one will spy on her, and most people-including judges and juries-would consider that expectation to be reasonable. Therefore, if the police install a hidden video camera in a public restroom, the action is considered a search and must meet the Fourth Amendment's requirement of reasonableness.
On the other hand, if the police glance into a car and see a weapon on the front seat, it is not a search because it is unlikely that a person would think that the front seat of a car is a private place. And even if he did, society is not generally willing to extend the protections of privacy to the front seat of an automobile.
How Private Is Your Property?
Generally, if the police are able to view contraband or evidence on your property without actually entering it, they have not conducted a search. In other words, you cannot have a reasonable expectation of privacy in an area that can legitimately be seen from outside your property. This means that the police can use what they have seen as the basis for getting a warrant to come in and take a closer look. Or, if the situation calls for prompt action (the need to stop a drug deal, for instance), they may enter without a warrant.
Law enforcement officers are allowed to take aerial photographs or come close enough to overhear your conversations-these actions are not considered searches. On the other hand, without a warrant or an exception to the rule requiring a warrant, officers are probably not allowed to use sophisticated equipment to discover what is on your property or to eavesdrop on your conversations. In general, if the investigation method is highly artificial and high-tech, it's likely to be considered a search. Where the line is drawn, however, is not clear or consistent from state to state.
What is a search warrant?
A search warrant is a kind of permission slip, signed by a judge, that allows the police to enter private property to look for particular items. It is addressed to the owner of the property, and tells the owner that a judge has decided that it is reasonably likely that certain contraband, or evidence of criminal activities, will be found in specified locations on the property.
As a general rule, the police are supposed to apply for a warrant before conducting a search of private property; any search that is conducted without a warrant is presumed to be unreasonable. This means that the police officers will later have to justify the search-and why a warrant wasn't obtained first-if the defendant challenges it in court.
What does it take to get a search warrant?
A judge will issue a search warrant after the police have convinced her that:
* it is more likely than not that a crime has taken place, and
* items connected to the crime are likely be found in a specified location on the property.
To convince the judge of these facts, the police tell the judge what they know about the situation. Usually, the information given to the judge is based either on the officers' own observations or on the second-hand observations of an informant.The police are limited in their ability to use secondhand information. As a general rule, the information must be reliable given the circumstances. Generally, reliable information is corroborated by police observation. For example, a citizen's tip that someone regularly delivers drugs to a certain location would be corroborated if an officer observes the person's routine. But corroboration is not necessary in every case. Sometimes a judge will issue a warrant if the source of the information is known to the police and has provided trustworthy information in the past.
What are the police allowed to do after they obtain a search warrant?
Once the police have a search warrant, they are entitled to enter the designated property to search for the items listed on the warrant. Legally, the search is supposed to be confined to the specific areas described in the warrant. For example, if the search warrant includes only the living room, the search should not extend into the kitchen, bathroom or bedroom. But there are exceptions to this limitation which are frequently used to justify broader searches. For example, the police may search beyond the terms of the warrant in order to:
* ensure their safety and the safety of others
* prevent the destruction of evidence
* discover more about possible evidence or contraband that is in plain view elsewhere on the property, or
* hunt for evidence or contraband that, as a result of their initial search, they believe exists in another location on the property.
For instance, although a warrant might be issued for the search of a house, the sound of a shotgun being loaded in the backyard would justify expanding the search to the yard in order to protect the officers; similarly, a search limited to the ground floor might legitimately expand to the upstairs if the police, searching for illegal drugs, hear toilets being flushed above. And the police can always seize evidence or illegal items if they are in plain view or are discovered while the officers are searching for the items listed in the warrant.
Do the police always need a warrant to conduct a search?
No. In many situations, police may legally conduct a search without first obtaining a warrant.
* Consent searches. If the police ask your permission to search your home, purse, briefcase or other property, and you agree, the search is considered consensual, and they don't need a warrant. The police typically obtain a person's consent by threatening to detain her while they obtain the warrant.
* Searches that accompany an arrest. When a person is placed under arrest, the police may search the person and the immediate surroundings for weapons that might be used to harm the officer. If the person is taken to jail, the police may search to make sure that weapons or contraband are not brought into the jail. (This is called an inventory search.) Inventory searches also frequently involve a search of the arrested person's car (if it is being held by the police) and personal effects on the theory that the police need a precise record of the person's property to avoid claims of theft.
* Searches necessary to protect the safety of the public. The police don't need a warrant if they have a reasonable fear that their safety, or that of the public, is in imminent danger. For example, an officer who suspected a bomb-making operation while walking his beat might be justified in entering immediately and seizing the ingredients. And in the famous O.J. Simpson case, the police justified their entry onto O.J. Simpson's property on the grounds that they feared for the safety of other family members.
* Searches necessary to prevent the imminent destruction of evidence. A police officer does not need to obtain a warrant if she has observed illegal items (such as weapons or contraband) and believes that the items will disappear unless the officer takes prompt action. This exception arises most frequently when the police spot contraband or weapons in a car. Because cars are moved so frequently, the officer is justified in searching the entire vehicle, including the trunk, without obtaining a warrant. On the other hand, if the police learn about a marijuana-growing operation from a neighbor, they usually would need a warrant, as it is unlikely that the growing plants and other evidence of the operation will disappear quickly enough to justify a warrantless search.
* "Hot pursuit" searches. Police may enter private dwellings to search for criminals who are fleeing the scene of a crime.
Can my roommate-or my landlord-give the police permission to search my apartment?
The police may search your apartment if the person in charge of the premises gives permission. If you and your roommate share common areas (such as the kitchen and living room), your roommate can authorize a search of those areas. But your roommate cannot give permission to search your separate bedroom.
Similarly, your landlord cannot give permission to search your apartment. Although the landlord owns the property, your monthly check guarantees your privacy at home. This is true even if you are behind in your rent or your landlord has sued to evict you. Until the landlord has a court order that permits him to enter and retake the premises, he cannot enter without your permission. (But keep in mind that many states allow a landlord to enter for inspections, which usually require advance notice of a day or two.) If the police can point to circumstances that would justify immediate entry, however -- such as the sound of a ferocious fight or the smell of burning marijuana -- they may enter without permission from anyone.
http://www.ralphbehr.net/lawyer-attorney-81B70BE7-806D-43EB-8632156E62570E6E.html
Tuesday, May 29, 2007
Domestic Violence: Civil Liability FAQ
Can I sue the abuser for my injuries?
Possibly. When one person injures another in some way, that act is called a "tort." The person injured by the tort may sue the wrongdoer for damages. Legally, torts are known as civil (as opposed to criminal) wrongs. But some acts of domestic violence, such as battery, may be both torts and crimes; the wrongdoer may face both civil and criminal penalties. One now famous example of a civil case is Goldman v. Simpson, in which Ron Goldman's parents sued O.J. Simpson for their son's death. Because Mr. Simpson was acquitted in the criminal trial, the Goldmans sued for money damages in civil court and won.
Under traditional law, family members were prohibited from suing each other for torts. The justification was that allowing family members to sue each other would lead to a breakdown of the family. Today, however, many states recognize that if family members have committed torts against each other, the relationships are already suffering from breakdown. Thus, they no longer bar family members from suing each other. In these states, spouses may sue each other either during the marriage or after they have separated.
A few states still prohibit one family member from suing another. A court may make an exception, however, when the tort is intentional -- that is, a deliberate act which causes harm to another person. The behaviors that constitute domestic violence -- assault, battery, psychological abuse -- are almost always considered intentional torts.
http://www.ralphbehr.net/lawyer-attorney-5B3A70E2-9B86-4CAD-B394369E53920810.html
Possibly. When one person injures another in some way, that act is called a "tort." The person injured by the tort may sue the wrongdoer for damages. Legally, torts are known as civil (as opposed to criminal) wrongs. But some acts of domestic violence, such as battery, may be both torts and crimes; the wrongdoer may face both civil and criminal penalties. One now famous example of a civil case is Goldman v. Simpson, in which Ron Goldman's parents sued O.J. Simpson for their son's death. Because Mr. Simpson was acquitted in the criminal trial, the Goldmans sued for money damages in civil court and won.
Under traditional law, family members were prohibited from suing each other for torts. The justification was that allowing family members to sue each other would lead to a breakdown of the family. Today, however, many states recognize that if family members have committed torts against each other, the relationships are already suffering from breakdown. Thus, they no longer bar family members from suing each other. In these states, spouses may sue each other either during the marriage or after they have separated.
A few states still prohibit one family member from suing another. A court may make an exception, however, when the tort is intentional -- that is, a deliberate act which causes harm to another person. The behaviors that constitute domestic violence -- assault, battery, psychological abuse -- are almost always considered intentional torts.
http://www.ralphbehr.net/lawyer-attorney-5B3A70E2-9B86-4CAD-B394369E53920810.html
Monday, May 28, 2007
When a Young Person Commits a Crime
A look at what happens in juvenile court.
"Juvenile justice" is an umbrella term for the special procedures set up by every state to deal with young people whose cases belong in juvenile court. Juvenile courts handle most of the cases in which young people (usually called "juveniles" or "minors") are accused of committing crimes. Of course, the treatment of juveniles differs from state to state, judge to judge, cop to cop. And if differences of opinion generally exist about "getting tough on crime," the conflicting opinions on how to deal with minors accused of crimes are greater still.
Not every young person who commits an offense ends up in juvenile court. A police officer who suspects that a minor has committed a crime may:
* detain and warn the minor against further violations, and then let the minor go free
* detain and warn the minor against further violations, but hold the minor until a parent or guardian comes for the minor, or
* place the minor in custody and refer the case to a juvenile court.
If the police refer a case to the juvenile court, a prosecutor or a juvenile court "intake" officer (often a probation officer) must then decide whether to:
* dismiss the matter
* handle the matter informally, or
* "petition" the matter by filing formal charges.
In some localities, the probation officer makes only a preliminary assessment of whether to file formal charges, and leaves the final decision to a prosecutor. After this initial decision is made, procedures vary. What follows is a brief overview of how juvenile cases typically flow through the juvenile justice system:
* A decision to proceed informally often means that the minor must appear before a probation officer or a judge. The minor may receive a stern lecture, and may also be required to attend counseling sessions or after-school classes, repay the victim for damaged property or pay a fine, perform community service work or go on probation. If the intake officer suspects that a minor taken into custody has been abused or neglected, the officer may initiate proceedings to remove the minor from the custody of his or her parents or guardians.
If the intake officer decides to proceed formally, he or she files a petition and the case is placed on the juvenile court's calendar. (In large cities, juvenile courts may handle over 300 cases each day.)
* The minor is arraigned (formally charged) before a juvenile court judge or referee. At this point, the juvenile court either takes jurisdiction of the case or, if the crime or the juvenile's personal characteristics indicate that the case should be handled in regular court, the judge sets the case for a "fitness hearing."
At the hearing, the judge will determine whether the minor should be tried as a juvenile or as an adult in regular court. As younger and younger minors commit ever more violent crimes, these fitness hearings are becoming more common.
* If the case remains in juvenile court, the minor either enters into a plea agreement or faces trial (often called an "adjudication").
* If, after trial, the juvenile court judge "sustains the petition" (concludes that the charges are true), the judge decides on an appropriate sentence (usually referred to as a disposition).
* Post-disposition hearings may occur. For example, a judge's disposition order may require a minor to appear in court periodically so that the judge can monitor the minor's behavior.
http://www.ralphbehr.net/lawyer-attorney-C0C031DB-8342-4315-877D3948BEC1546C.html
"Juvenile justice" is an umbrella term for the special procedures set up by every state to deal with young people whose cases belong in juvenile court. Juvenile courts handle most of the cases in which young people (usually called "juveniles" or "minors") are accused of committing crimes. Of course, the treatment of juveniles differs from state to state, judge to judge, cop to cop. And if differences of opinion generally exist about "getting tough on crime," the conflicting opinions on how to deal with minors accused of crimes are greater still.
Not every young person who commits an offense ends up in juvenile court. A police officer who suspects that a minor has committed a crime may:
* detain and warn the minor against further violations, and then let the minor go free
* detain and warn the minor against further violations, but hold the minor until a parent or guardian comes for the minor, or
* place the minor in custody and refer the case to a juvenile court.
If the police refer a case to the juvenile court, a prosecutor or a juvenile court "intake" officer (often a probation officer) must then decide whether to:
* dismiss the matter
* handle the matter informally, or
* "petition" the matter by filing formal charges.
In some localities, the probation officer makes only a preliminary assessment of whether to file formal charges, and leaves the final decision to a prosecutor. After this initial decision is made, procedures vary. What follows is a brief overview of how juvenile cases typically flow through the juvenile justice system:
* A decision to proceed informally often means that the minor must appear before a probation officer or a judge. The minor may receive a stern lecture, and may also be required to attend counseling sessions or after-school classes, repay the victim for damaged property or pay a fine, perform community service work or go on probation. If the intake officer suspects that a minor taken into custody has been abused or neglected, the officer may initiate proceedings to remove the minor from the custody of his or her parents or guardians.
If the intake officer decides to proceed formally, he or she files a petition and the case is placed on the juvenile court's calendar. (In large cities, juvenile courts may handle over 300 cases each day.)
* The minor is arraigned (formally charged) before a juvenile court judge or referee. At this point, the juvenile court either takes jurisdiction of the case or, if the crime or the juvenile's personal characteristics indicate that the case should be handled in regular court, the judge sets the case for a "fitness hearing."
At the hearing, the judge will determine whether the minor should be tried as a juvenile or as an adult in regular court. As younger and younger minors commit ever more violent crimes, these fitness hearings are becoming more common.
* If the case remains in juvenile court, the minor either enters into a plea agreement or faces trial (often called an "adjudication").
* If, after trial, the juvenile court judge "sustains the petition" (concludes that the charges are true), the judge decides on an appropriate sentence (usually referred to as a disposition).
* Post-disposition hearings may occur. For example, a judge's disposition order may require a minor to appear in court periodically so that the judge can monitor the minor's behavior.
http://www.ralphbehr.net/lawyer-attorney-C0C031DB-8342-4315-877D3948BEC1546C.html
Where Our Criminal Procedures Come From
How federal and state constitutions, legislatures and courts protect the rights of criminal defendants.
The word "criminal" reflects our society's belief that certain acts are unacceptable and that people committing these acts should be punished. Because we place a high value on freedom, however, our state and federal constitutions make it very difficult for the government to take that freedom away from us. As a result -- and perhaps as a price -- the court system often appears to protect the criminal rather than the victim, and to unduly favor defendants who are blessed with clever attorneys. On the other hand, if the system doesn't place a heavy burden on government prosecutors, we risk sending innocent people to jail and we make it easier for our government to slide into totalitarian practices. One thing is sure, no matter what type of system we have for separating the bad citizens from the good, it will always be a matter of great controversy.
Though legislators have relatively unfettered power to decide whether a certain behavior should be a crime, many rules limit the ways in which the state or federal government can prosecute someone for a crime. These restrictions start with the U.S. Constitution's Bill of Rights, which provides basic protections for people suspected of and charged with crimes. These include the right to confront witnesses, the right to not testify, the right to an attorney, the right to a jury trial and the right to be free from unreasonable searches and seizures, among others. State constitutions may increase (but not take away from) the federal protections. Federal and state legislatures can pass statutes governing how criminal procedures work in their jurisdictions, but these laws cannot reduce the protections offered by the federal and state constitutions.
The courts regulate the interplay between constitutional provisions and legislative enactments. Courts decide whether or not a particular legislative rule, court practice or police action is permissible under federal and state constitutional law. What may seem like a slight variation in the facts from one case to another can be, in the eyes of a court, the determining factor that leads to a vastly different result.
Example: Using binoculars to look through a window, a police officer sees something illegal going on in a private home. If the officer is not trespassing at the time she views the activity, she may legally enter the home without a search warrant to arrest the suspects and possibly seize evidence. The legal reasoning behind this result is that people inside a home have no reasonable expectation of privacy if their activities can be viewed through the window. However, if the officer uses a high-powered telescope, or a surveillance satellite picks up the illegal conduct through an open skylight, the results may be different., because we reasonably expect that our private activities will not be subject to such invasive surveillance techniques.
http://www.ralphbehr.net/lawyer-attorney-4373DD5E-39D7-46D3-A14B18B8E8BFE2EE.html
The word "criminal" reflects our society's belief that certain acts are unacceptable and that people committing these acts should be punished. Because we place a high value on freedom, however, our state and federal constitutions make it very difficult for the government to take that freedom away from us. As a result -- and perhaps as a price -- the court system often appears to protect the criminal rather than the victim, and to unduly favor defendants who are blessed with clever attorneys. On the other hand, if the system doesn't place a heavy burden on government prosecutors, we risk sending innocent people to jail and we make it easier for our government to slide into totalitarian practices. One thing is sure, no matter what type of system we have for separating the bad citizens from the good, it will always be a matter of great controversy.
Though legislators have relatively unfettered power to decide whether a certain behavior should be a crime, many rules limit the ways in which the state or federal government can prosecute someone for a crime. These restrictions start with the U.S. Constitution's Bill of Rights, which provides basic protections for people suspected of and charged with crimes. These include the right to confront witnesses, the right to not testify, the right to an attorney, the right to a jury trial and the right to be free from unreasonable searches and seizures, among others. State constitutions may increase (but not take away from) the federal protections. Federal and state legislatures can pass statutes governing how criminal procedures work in their jurisdictions, but these laws cannot reduce the protections offered by the federal and state constitutions.
The courts regulate the interplay between constitutional provisions and legislative enactments. Courts decide whether or not a particular legislative rule, court practice or police action is permissible under federal and state constitutional law. What may seem like a slight variation in the facts from one case to another can be, in the eyes of a court, the determining factor that leads to a vastly different result.
Example: Using binoculars to look through a window, a police officer sees something illegal going on in a private home. If the officer is not trespassing at the time she views the activity, she may legally enter the home without a search warrant to arrest the suspects and possibly seize evidence. The legal reasoning behind this result is that people inside a home have no reasonable expectation of privacy if their activities can be viewed through the window. However, if the officer uses a high-powered telescope, or a surveillance satellite picks up the illegal conduct through an open skylight, the results may be different., because we reasonably expect that our private activities will not be subject to such invasive surveillance techniques.
http://www.ralphbehr.net/lawyer-attorney-4373DD5E-39D7-46D3-A14B18B8E8BFE2EE.html
You Can Run, But You Can't Hide
A recent Supreme Court decision encourages you to stand your ground if you're stopped by police.
While patrolling a "high-crime" district in Chicago, two police officers saw a man take off running when he spotted their patrol car. The police chased and caught him, patted him down and found an illegal weapon. At his trial, the man -- Wardlow by name -- asked the court to keep the weapon out of evidence, arguing that the chase and pat down were illegal. Wardlow argued that the police had no constitutional basis to believe that he might be engaged in criminal activity. The trial court refused Wardlow's request, and the case ultimately reached the United States Supreme Court.
On January 12, 2000, the Court ruled that the police acted constitutionally and that the trial court was correct in allowing the weapon into evidence. (Illinois v. Wardlow)
What does the Wardlow case teach us? Basically, it confirms what most of us already suspect -- when it comes to the police you can run, but you can't hide. But if this rule is so simple, why did it take a U.S. Supreme Court case to set us right? Let's take a closer look at the law of search and seizure, and why this case makes an important contribution to it.
The Fourth Amendment to the Constitution requires that to make a valid search, the police must first have probable cause to believe that contraband or other evidence of a crime will be uncovered. Probable cause has no fixed definition. In essence, it means that there is adequate objective information to form a belief that it is more likely than not that a crime has occurred or is occurring and that the suspect is involved. The police are supposed to obtain a search warrant -- written permission from a judge -- before making a search. However, there are exceptions, such as when circumstances don't allow adequate time to get a warrant.
In the Wardlow case, there was no search in the classic sense. Rather, the officers conducted what's known as a "stop and frisk." In a case decided over 30 years ago, the Supreme Court ruled that the police may:
* stop a person in a public place if they have a "reasonable suspicion that the person is involved in criminal activity," and
* frisk the person (pat his or her outer clothing for weapons) for self-defense purposes if they are concerned that the person might be armed.
If the police discover evidence of a crime in the course of conducting the frisk, that evidence can be used in a criminal trial only if the police can demonstrate "reasonable suspicion" for the initial stop. But what is reasonable suspicion? As with probable cause, the definition varies from case to case. Reasonable suspicion requires less certainty than probable cause but more than a mere hunch. All we really know for sure is that the police must base their suspicion on facts that can be articulated and not on mere intuition. In Wardlow, the articulated facts were:
* Wardlow was in a "high narcotics traffic" area, and
* Wardlow ran when he saw the police.
These facts, said the Court, were enough to justify the stop (actually, the chase) under the reasonable suspicion standard, so the frisk was therefore legal.
Suppose Wardlow had stood his ground. Even though it was a high crime area, previous cases have held that the police cannot use that one fact to justify a stop and frisk. It was only because Wardlow took flight that the police succeeded in proving reasonable suspicion.
http://www.ralphbehr.net/lawyer-attorney-1F59B97A-E405-4205-B17204ED7102568F.html
While patrolling a "high-crime" district in Chicago, two police officers saw a man take off running when he spotted their patrol car. The police chased and caught him, patted him down and found an illegal weapon. At his trial, the man -- Wardlow by name -- asked the court to keep the weapon out of evidence, arguing that the chase and pat down were illegal. Wardlow argued that the police had no constitutional basis to believe that he might be engaged in criminal activity. The trial court refused Wardlow's request, and the case ultimately reached the United States Supreme Court.
On January 12, 2000, the Court ruled that the police acted constitutionally and that the trial court was correct in allowing the weapon into evidence. (Illinois v. Wardlow)
What does the Wardlow case teach us? Basically, it confirms what most of us already suspect -- when it comes to the police you can run, but you can't hide. But if this rule is so simple, why did it take a U.S. Supreme Court case to set us right? Let's take a closer look at the law of search and seizure, and why this case makes an important contribution to it.
The Fourth Amendment to the Constitution requires that to make a valid search, the police must first have probable cause to believe that contraband or other evidence of a crime will be uncovered. Probable cause has no fixed definition. In essence, it means that there is adequate objective information to form a belief that it is more likely than not that a crime has occurred or is occurring and that the suspect is involved. The police are supposed to obtain a search warrant -- written permission from a judge -- before making a search. However, there are exceptions, such as when circumstances don't allow adequate time to get a warrant.
In the Wardlow case, there was no search in the classic sense. Rather, the officers conducted what's known as a "stop and frisk." In a case decided over 30 years ago, the Supreme Court ruled that the police may:
* stop a person in a public place if they have a "reasonable suspicion that the person is involved in criminal activity," and
* frisk the person (pat his or her outer clothing for weapons) for self-defense purposes if they are concerned that the person might be armed.
If the police discover evidence of a crime in the course of conducting the frisk, that evidence can be used in a criminal trial only if the police can demonstrate "reasonable suspicion" for the initial stop. But what is reasonable suspicion? As with probable cause, the definition varies from case to case. Reasonable suspicion requires less certainty than probable cause but more than a mere hunch. All we really know for sure is that the police must base their suspicion on facts that can be articulated and not on mere intuition. In Wardlow, the articulated facts were:
* Wardlow was in a "high narcotics traffic" area, and
* Wardlow ran when he saw the police.
These facts, said the Court, were enough to justify the stop (actually, the chase) under the reasonable suspicion standard, so the frisk was therefore legal.
Suppose Wardlow had stood his ground. Even though it was a high crime area, previous cases have held that the police cannot use that one fact to justify a stop and frisk. It was only because Wardlow took flight that the police succeeded in proving reasonable suspicion.
http://www.ralphbehr.net/lawyer-attorney-1F59B97A-E405-4205-B17204ED7102568F.html
Sunday, May 27, 2007
Did You Know That Health Care Providers Who Accept Assignment of Medicare Must Reduce Their Bills?
On December 29, 1998, the Indiana Court of Appeals handed down its opinion in Thompson v. Owensby, et al, in which it recognizes an independent cause of action for spoliation of evidence. The facts involved in the case are as follows. Six year old Nicole Thompson was injured when she was attacked by a German shepard dog. The dog had been restrained by a cable in its owners' (Jeff and Rhonda Owensby) yard. However, the dog broke free, got out of the yard, and attacked Nicole.
Nicole and her parents sought compensation from the Owensby, from the company they believed to have manufactured the dog cable (Orrville Leather, Inc.), and from Henry and Alva Whitis, the owners of the property where the Owensbys lived at the time of the attack.
The Whitis Defendants carried homeowners insurance with Indiana Insurance Company. During the course of its investigation of the plaintiffs' claim, Indiana Insurance took possession of the restraining cable. Before any of the parties had examined or tested the restraining cable, Indiana Insurance lost the cable. Therefore, the Plaintiffs sued the insurance company for negligence. In their Amended Complaint, the Plaintiffs alleged that Indiana Insurance had assumed a duty to safeguard the cable and that the insurance company had breached that duty by losing the cable. In addition, the Plaintiffs alleged that the loss of the cable adversely affected their claims against the dog owners and the manufacture of the cable.
The Court of Appeals characterized the question of first impression raised in this case as being "whether an insurance company that loses evidence may be liable to a third party claimant for damages attributable to the los of the evidence.(1) The Court of Appeals stated that in order to allege an actionable duty, the Thompsons were required to identify a cognizable relationship with Indiana Insurance Company; they had to allege foreseeable harm from the loss of the evidence; and, they had to allege sufficient supporting facts to demonstrate that the recognition of a duty to maintain evidence would promote Indiana's policy goals.
In analyzing these three elements, the Court of Appeals noted that a liability insurance carrier has a duty in the ordinary course of business to investigate and evaluate claims made by its insureds; and, that in carrying out this duty, carriers take possession of documents and things that must be authenticated and tested in order to evaluate claims. Those same documents and things will be key items of evidence if the claim is denied and litigation ensues. According to the Court of Appeals:
[t]his conduct by necessity gives rise to a relationship with the third party claimant. ... A liability insurance carrier like the Insurance Company can rationally be held to understand that once a claim is filed, there is a possibility of litigation concerning the underlying injuries. The Insurance Company's knowledge and investigation of the Thompsons' claims and its possession of what would be a key item of evidence in the event litigation ensued created a relationship between the Company and the Thompsons that weighs in favor of recognizing a cognizable duty to maintain the evidence.(2)
With regard to foreseeability, the Court of Appeals noted that because liability insurance carriers are "no strangers to litigation", "it strains credulity to posit in a motion to dismiss that a liability insurance carrier could be unaware of the potential importance of physical evidence".(3) Therefore, the Court concluded that "[i]f litigation was foreseeable in this case, the evidentiary value of the restraining cable was foreseeable as well".(4) In addition, the Court noted that "... foreseeability of the harm in losing evidence can be inferred from the allegation that the Company's investigator took possession of the cable: if an insurance carrier's investigator's deems certain evidence important enough to be collected, it is foreseeable that loss of the evidence would interfere with a claimant's ability to prove the underlying claim".(5) According to the Court, the duty to maintain evidence does not arise out of the relationship between an insurance carrier and a third party claimant. Rather, the duty arises from an insurance company's business practice regarding the collection and preservation of evidence. The Court based its decision in this case on the concept of accountability:
In Indiana, persons may be held accountable for their actions within the bounds of a factfinder's determination of reasonableness.(6)
The Court of Appeals concluded its opinion by noting that the remedy for failure to maintain evidence differs among jurisdictions. In cases outside of the insurance context, Indiana courts have dealt with the issue by imposing an evidentiary inference against the party that lost the evidence. Courts in other jurisdictions have addressed the issue by imposing discovery sanctions. However, in the present case, the Thompsons chose to pursue a tort action rather than availing themselves of an evidentiary inference or seeking discovery sanctions. According to the Court of Appeals, "that choice is the Thompsons' prerogative. By exercising the prerogative, the Thompsons have accepted the burden of proving that the Insurance Company breached its duty to maintain the restraining cable, that the Thompsons were harmed by the breach and that the harm resulted in damages that can be proven with reasonable specificity".(7) In addition, the Court notes that although the Thompsons base their claims on their prospective inability to prove their claims against other defendants, their damages could also be based upon the cost of retaining experts or conducting discovery needed to provide proof of the alleged defect in the restraining cable.
We represent the Plaintiffs in Thompson. After we were notified that Indiana Insurance had lost the dog cable, we filed an Amended Complaint, adding Indiana Insurance as a defendant. The portion of the Amended Complaint relative to the Plaintiffs' claim against Indiana Insurance for spoliation of evidence is as follows.
http://www.smithlaw.bz/lawyer-attorney-1182245.html
Nicole and her parents sought compensation from the Owensby, from the company they believed to have manufactured the dog cable (Orrville Leather, Inc.), and from Henry and Alva Whitis, the owners of the property where the Owensbys lived at the time of the attack.
The Whitis Defendants carried homeowners insurance with Indiana Insurance Company. During the course of its investigation of the plaintiffs' claim, Indiana Insurance took possession of the restraining cable. Before any of the parties had examined or tested the restraining cable, Indiana Insurance lost the cable. Therefore, the Plaintiffs sued the insurance company for negligence. In their Amended Complaint, the Plaintiffs alleged that Indiana Insurance had assumed a duty to safeguard the cable and that the insurance company had breached that duty by losing the cable. In addition, the Plaintiffs alleged that the loss of the cable adversely affected their claims against the dog owners and the manufacture of the cable.
The Court of Appeals characterized the question of first impression raised in this case as being "whether an insurance company that loses evidence may be liable to a third party claimant for damages attributable to the los of the evidence.(1) The Court of Appeals stated that in order to allege an actionable duty, the Thompsons were required to identify a cognizable relationship with Indiana Insurance Company; they had to allege foreseeable harm from the loss of the evidence; and, they had to allege sufficient supporting facts to demonstrate that the recognition of a duty to maintain evidence would promote Indiana's policy goals.
In analyzing these three elements, the Court of Appeals noted that a liability insurance carrier has a duty in the ordinary course of business to investigate and evaluate claims made by its insureds; and, that in carrying out this duty, carriers take possession of documents and things that must be authenticated and tested in order to evaluate claims. Those same documents and things will be key items of evidence if the claim is denied and litigation ensues. According to the Court of Appeals:
[t]his conduct by necessity gives rise to a relationship with the third party claimant. ... A liability insurance carrier like the Insurance Company can rationally be held to understand that once a claim is filed, there is a possibility of litigation concerning the underlying injuries. The Insurance Company's knowledge and investigation of the Thompsons' claims and its possession of what would be a key item of evidence in the event litigation ensued created a relationship between the Company and the Thompsons that weighs in favor of recognizing a cognizable duty to maintain the evidence.(2)
With regard to foreseeability, the Court of Appeals noted that because liability insurance carriers are "no strangers to litigation", "it strains credulity to posit in a motion to dismiss that a liability insurance carrier could be unaware of the potential importance of physical evidence".(3) Therefore, the Court concluded that "[i]f litigation was foreseeable in this case, the evidentiary value of the restraining cable was foreseeable as well".(4) In addition, the Court noted that "... foreseeability of the harm in losing evidence can be inferred from the allegation that the Company's investigator took possession of the cable: if an insurance carrier's investigator's deems certain evidence important enough to be collected, it is foreseeable that loss of the evidence would interfere with a claimant's ability to prove the underlying claim".(5) According to the Court, the duty to maintain evidence does not arise out of the relationship between an insurance carrier and a third party claimant. Rather, the duty arises from an insurance company's business practice regarding the collection and preservation of evidence. The Court based its decision in this case on the concept of accountability:
In Indiana, persons may be held accountable for their actions within the bounds of a factfinder's determination of reasonableness.(6)
The Court of Appeals concluded its opinion by noting that the remedy for failure to maintain evidence differs among jurisdictions. In cases outside of the insurance context, Indiana courts have dealt with the issue by imposing an evidentiary inference against the party that lost the evidence. Courts in other jurisdictions have addressed the issue by imposing discovery sanctions. However, in the present case, the Thompsons chose to pursue a tort action rather than availing themselves of an evidentiary inference or seeking discovery sanctions. According to the Court of Appeals, "that choice is the Thompsons' prerogative. By exercising the prerogative, the Thompsons have accepted the burden of proving that the Insurance Company breached its duty to maintain the restraining cable, that the Thompsons were harmed by the breach and that the harm resulted in damages that can be proven with reasonable specificity".(7) In addition, the Court notes that although the Thompsons base their claims on their prospective inability to prove their claims against other defendants, their damages could also be based upon the cost of retaining experts or conducting discovery needed to provide proof of the alleged defect in the restraining cable.
We represent the Plaintiffs in Thompson. After we were notified that Indiana Insurance had lost the dog cable, we filed an Amended Complaint, adding Indiana Insurance as a defendant. The portion of the Amended Complaint relative to the Plaintiffs' claim against Indiana Insurance for spoliation of evidence is as follows.
http://www.smithlaw.bz/lawyer-attorney-1182245.html
Friday, May 25, 2007
Search Warrants: What They Are and When They're Necessary
Learn when police officers must obtain a warrant before they search your home or other property.
A search warrant is an order signed by a judge that authorizes police officers to search for specific objects or materials at a definite location at a specified time. For example, a warrant may authorize the search of "the premises at 11359 Happy Glade Avenue between the hours of 8 A.M. to 6 P.M.," and direct the police to search for and seize "cash, betting slips, record books and every other means used in connection with placing bets on horses."
Police officers obtain warrants by convincing a judge or magistrate that they have "probable cause" to believe that criminal activity is occurring at the place to be searched or that evidence of a crime may be found there. Usually, the police provide the judge or magistrate with information in the form of written statements under oath, called "affidavits," which report either their own observations or those of private citizens or police undercover informants. In many areas, a judicial officer is available 24 hours a day to issue warrants. If the magistrate believes that the affidavit establishes probable cause to conduct a search, he or she will issue a warrant. The suspect, who may be connected with the place to be searched, is not present when the warrant issues and therefore cannot contest the issue of probable cause at that time. However, the suspect can later challenge the validity of the warrant before trial.
What Is Probable Cause?
The Fourth Amendment doesn't define "probable cause." Its meaning remains fuzzy. What is clear is that after 200 years of court interpretations, the affidavits submitted by police officers to judges have to identify objectively suspicious activities rather than simply recite the officer's subjective beliefs. The affidavits also have to establish more than a "suspicion" that criminal activity is afoot, but do not have to show "proof beyond a reasonable doubt."
The information in the affidavit need not be in a form that would make it admissible at trial. However, the circumstances set forth in the affidavit as a whole should demonstrate the reliability of the information. In general, when deciding whether to issue a search warrant, a judicial officer will likely consider information in an affidavit reliable if it comes from any of these sources:
* a confidential police informant whose past reliability has been established or who has firsthand knowledge of illegal goings-on
* an informant who implicates herself as well as the suspect
* an informant whose information appears to be correct after at least partial verification by the police
* a victim of a crime related to the search
* a witness to the crime related to the search, or
* another police officer.
Sometimes the police provide mistaken information in the affidavit and the judge or magistrate issues a warrant under circumstances that, given the true state of affairs, would not justify a search under the Fourth Amendment. The question then arises as to whether the search itself is legal. In most situations the search will be upheld if the police acted in good faith when seeking the warrant (that is, they didn't know about the mistakes in the affidavit). The reasoning here is that:
* it makes no sense to condemn the results of a search when police officers have done everything reasonable to comply with Fourth Amendment requirements, and
* the purpose of the rule excluding the results of an invalid search as evidence is to curb the police, not a judge, and that if a judge makes a mistake it should not be grounds to exclude evidence.
What Police Can Search for and Seize Under a Warrant
The police can search only the place described in a warrant, and usually can seize only the property that the warrant describes. The police cannot search a house if the warrant specifies the backyard, nor can they search for weapons if the warrant specifies marijuana plants. However, this does not mean that police officers can seize only those items listed in the warrant. If, in the course of their search, police officers come across contraband or evidence of a crime that is not listed in the warrant, they can lawfully seize the unlisted items.
If the warrant specifies a certain person to be searched, the police can search only that person unless they have independent probable cause to search other persons who happen to be present at the scene of a search. However, if an officer has a reasonable suspicion that an onlooker is engaged in criminal activity, the officer can question the onlooker and, if necessary for the officer's safety, conduct a frisk for weapons.
Technically, a person may require the police to produce a warrant before admitting them into his or her home for a search. However, people sometimes run into trouble when they "stand on their rights" in this way. A warrant is not always legally necessary, and a police officer may have information of which a person is unaware that allows the officer to make a warrantless entry. If an officer announces an intention to enter without a warrant, a person should not risk injury or a separate charge of "interfering with a police officer." Rather, the person should stand aside, let the officer proceed and allow a court to decide later whether the officer's actions were proper. At the same time, the person should make it clear that he or she does not consent to the search.
When Search Warrants Aren't Required
Most searches occur without warrants being issued. Over the years, the courts have defined a number of situations in which a search warrant is not necessary, either because the search is per se reasonable under the circumstances or because, due to a lack of a reasonable expectation of privacy, the Fourth Amendment doesn't apply at all.
Consent Searches
If the person in control of the premises to be searched freely and voluntarily agrees to the search, the search is valid and whatever the officers find is admissible in evidence. Police officers do not have to warn people that they have a right to refuse consent to a search. To constitute a valid consent to search, the consent must be given "freely and voluntarily." If a police officer wrangles a consent through trickery or coercion, the consent does not validate the search. Often, a defendant challenges a search on the ground that consent was not voluntary, only to have a police officer testify to a conflicting version of events that establishes a valid consent. In these conflict situations, judges tend to believe police officers unless defendants can support their claims through the testimony of other witnesses. Sometimes people who are intimidated by the police misinterpret the "request" to be a command and will allow the search. However, so long as an officer does not engage in threatening behavior -- such as placing their hand on a sidearm -- judges will not set aside otherwise genuine consents.
Many disputes about consent have to do with who has the right to consent. For example, do parents have a right to consent to a search of their children's rooms? As a general rule, an adult in rightful possession of a house or apartment usually has legal authority to consent to a search of the entire premises. But if there are two or more separate tenants in one dwelling, courts often rule that one tenant has no power to consent to a search of the areas exclusively controlled by the other tenants (for instance, their separate bedrooms). Similarly, a landlord is not considered to be in possession of an apartment leased to a tenant, and therefore lacks authority to consent to a search of leased premises. The same is true for hotel operators. On the other hand, an employer can validly consent to a search of company premises, which extends to an employee's work area, such as a desk and machinery, but not to clearly private areas such as an employee's clothes locker.
A tricky twist is that the consent in these types of cases will be considered valid if the police reasonably believe that the consenting person has the authority to consent, even if it turns out they don't.
The Plain View Doctrine
Police officers do not need a warrant to search and seize contraband or evidence that is "in plain view" if the officer is where he or she has a right to be when the evidence or contraband is first spotted. For instance, the police may search for and seize marijuana growing outdoors if they first spot the marijuana from an airplane or helicopter, since the marijuana is deemed to be in plain view. Similarly, if an officer walks by a car and spots evidence or contraband through the car window, the plain view doctrine applies and a search may be conducted without a warrant. The same rule would apply if an officer is in your home for other valid reasons and spots drugs on a table or cabinet.
Search Made in Connection With an Arrest
Police officers do not need a warrant to make a search "incident to an arrest." After an arrest, police officers have the right to protect themselves by searching for weapons and to protect the legal case against the suspect by searching for evidence that the suspect might try to destroy. Assuming that the officer has probable cause to make the arrest in the first place, a search of the person and the person's surroundings following the arrest is valid, and any evidence uncovered is admissible at trial.
To justify a search as incident to an arrest, a spatial relationship must exist between the arrest and the search. The general rule is that after arrest the police may search a defendant and the area within a defendant's immediate control. For example, an arresting officer may search not only a suspect's clothes, but also the suspect's wallet or purse. If an arrest takes place in a kitchen, the arresting officer can probably search the kitchen, but not the rest of the house. If an arrest takes place outside a house, the arresting officer cannot search the house at all. To conduct a search broader in scope than a defendant and the area within the defendant's immediate control, an officer would have to obtain a warrant. However, the police may make what's known as a "protective sweep" following an arrest. When making a protective sweep, police officers can walk through a residence and make a "cursory visual inspection" of places where an accomplice might be hiding. For example, police officers could look under beds and inside closets. To justify making a protective sweep, police officers must have a reasonable belief that a dangerous accomplice might be hiding inside a residence. If a sweep is lawful, the police can lawfully seize contraband or evidence of crime that is in plain view.
Searches of Cars and Their Occupants
Cars may be searched without a warrant whenever the car has been validly stopped and the police have probable cause to believe the car contains contraband or evidence. The reasons why no warrant is required for a car search are:
* cars are easily moved and may disappear while a warrant is being sought, and
* people driving cars do not have the same expectation of privacy in cars as they do in their homes.
If the police have probable cause to search the car, all compartments and packages that may contain the evidence or contraband being searched for are fair game.
While a police officer cannot search a car simply because the car was stopped for a traffic infraction -- since routine traffic stops are not arrests that would justify a "search incident to an arrest" -- the police can order the driver and any passengers out of the car for safety considerations, even though there is no suspicion of criminal wrongdoing other than the traffic infraction. The police also can "frisk" the occupants for weapons so long as they have a "reasonable suspicion" that the occupants are involved in criminal activity beyond the traffic violation and are reasonably concerned for their safety.
The police are sometimes accused of using technical traffic violations as a pretext for stopping the car for the real reason of conducting a further investigation that often includes a frisk and possible search of the vehicle. Whatever the police officer's motives, however, if the officer had a valid reason to stop the vehicle, even one like a broken rear taillight, the stop is legal. And, if the initial stop is valid, any lawful frisk, search or arrest that follows the stop is also valid.
The Emergency Exception
As a general rule, the police are authorized to make a warrantless search when the time it would take to get a warrant would jeopardize public safety or lead to the loss of important evidence. Here are some situations in which most judges would uphold a warrantless search:
* An officer checks an injured motorist for possible injuries following a collision and finds illegal drugs.
* Following a street drug arrest, an officer enters the house after the suspect shouts into the house, "Eddie, quick, flush our stash down the toilet." The officer arrests Eddie and seizes the stash.
* A police officer on routine patrol hears shouts and screams coming from a residence, rushes in and arrests a suspect for spousal abuse.
In these types of emergency situations, an officer's duty to protect people and preserve evidence outweighs the warrant requirement.
If a judge decides that an officer had time to obtain a search warrant without risking injury to people or the loss of evidence, the judge should refuse to allow into evidence whatever was seized in the course of the warrantless search. Judges always have the final word on whether police officers should have obtained warrants.
Other Searches That May be Made Without A Warrant
The police may search a person's trash put out for collection without a warrant on the ground that, since the trash has been put out in public, there is no longer a reasonable expectation of privacy and the Fourth Amendment doesn't apply.
A backyard may also be searched without a warrant if members of the public can see into it from where they have a right to be. Again, there is no reasonable expectation of privacy in an area that is open to public view. Similarly, fields around a house in a rural area are subject to a warrantless search as long as the police didn't trespass to obtain the information leading to probable cause for the search.
School lockers are subject to warrantless searches as long the school officials have a reasonable basis for conducting the search.
http://www.ralphbehr.net/lawyer-attorney-50CD91FC-B21D-4BE7-BA4818C8E29AC758.html
A search warrant is an order signed by a judge that authorizes police officers to search for specific objects or materials at a definite location at a specified time. For example, a warrant may authorize the search of "the premises at 11359 Happy Glade Avenue between the hours of 8 A.M. to 6 P.M.," and direct the police to search for and seize "cash, betting slips, record books and every other means used in connection with placing bets on horses."
Police officers obtain warrants by convincing a judge or magistrate that they have "probable cause" to believe that criminal activity is occurring at the place to be searched or that evidence of a crime may be found there. Usually, the police provide the judge or magistrate with information in the form of written statements under oath, called "affidavits," which report either their own observations or those of private citizens or police undercover informants. In many areas, a judicial officer is available 24 hours a day to issue warrants. If the magistrate believes that the affidavit establishes probable cause to conduct a search, he or she will issue a warrant. The suspect, who may be connected with the place to be searched, is not present when the warrant issues and therefore cannot contest the issue of probable cause at that time. However, the suspect can later challenge the validity of the warrant before trial.
What Is Probable Cause?
The Fourth Amendment doesn't define "probable cause." Its meaning remains fuzzy. What is clear is that after 200 years of court interpretations, the affidavits submitted by police officers to judges have to identify objectively suspicious activities rather than simply recite the officer's subjective beliefs. The affidavits also have to establish more than a "suspicion" that criminal activity is afoot, but do not have to show "proof beyond a reasonable doubt."
The information in the affidavit need not be in a form that would make it admissible at trial. However, the circumstances set forth in the affidavit as a whole should demonstrate the reliability of the information. In general, when deciding whether to issue a search warrant, a judicial officer will likely consider information in an affidavit reliable if it comes from any of these sources:
* a confidential police informant whose past reliability has been established or who has firsthand knowledge of illegal goings-on
* an informant who implicates herself as well as the suspect
* an informant whose information appears to be correct after at least partial verification by the police
* a victim of a crime related to the search
* a witness to the crime related to the search, or
* another police officer.
Sometimes the police provide mistaken information in the affidavit and the judge or magistrate issues a warrant under circumstances that, given the true state of affairs, would not justify a search under the Fourth Amendment. The question then arises as to whether the search itself is legal. In most situations the search will be upheld if the police acted in good faith when seeking the warrant (that is, they didn't know about the mistakes in the affidavit). The reasoning here is that:
* it makes no sense to condemn the results of a search when police officers have done everything reasonable to comply with Fourth Amendment requirements, and
* the purpose of the rule excluding the results of an invalid search as evidence is to curb the police, not a judge, and that if a judge makes a mistake it should not be grounds to exclude evidence.
What Police Can Search for and Seize Under a Warrant
The police can search only the place described in a warrant, and usually can seize only the property that the warrant describes. The police cannot search a house if the warrant specifies the backyard, nor can they search for weapons if the warrant specifies marijuana plants. However, this does not mean that police officers can seize only those items listed in the warrant. If, in the course of their search, police officers come across contraband or evidence of a crime that is not listed in the warrant, they can lawfully seize the unlisted items.
If the warrant specifies a certain person to be searched, the police can search only that person unless they have independent probable cause to search other persons who happen to be present at the scene of a search. However, if an officer has a reasonable suspicion that an onlooker is engaged in criminal activity, the officer can question the onlooker and, if necessary for the officer's safety, conduct a frisk for weapons.
Technically, a person may require the police to produce a warrant before admitting them into his or her home for a search. However, people sometimes run into trouble when they "stand on their rights" in this way. A warrant is not always legally necessary, and a police officer may have information of which a person is unaware that allows the officer to make a warrantless entry. If an officer announces an intention to enter without a warrant, a person should not risk injury or a separate charge of "interfering with a police officer." Rather, the person should stand aside, let the officer proceed and allow a court to decide later whether the officer's actions were proper. At the same time, the person should make it clear that he or she does not consent to the search.
When Search Warrants Aren't Required
Most searches occur without warrants being issued. Over the years, the courts have defined a number of situations in which a search warrant is not necessary, either because the search is per se reasonable under the circumstances or because, due to a lack of a reasonable expectation of privacy, the Fourth Amendment doesn't apply at all.
Consent Searches
If the person in control of the premises to be searched freely and voluntarily agrees to the search, the search is valid and whatever the officers find is admissible in evidence. Police officers do not have to warn people that they have a right to refuse consent to a search. To constitute a valid consent to search, the consent must be given "freely and voluntarily." If a police officer wrangles a consent through trickery or coercion, the consent does not validate the search. Often, a defendant challenges a search on the ground that consent was not voluntary, only to have a police officer testify to a conflicting version of events that establishes a valid consent. In these conflict situations, judges tend to believe police officers unless defendants can support their claims through the testimony of other witnesses. Sometimes people who are intimidated by the police misinterpret the "request" to be a command and will allow the search. However, so long as an officer does not engage in threatening behavior -- such as placing their hand on a sidearm -- judges will not set aside otherwise genuine consents.
Many disputes about consent have to do with who has the right to consent. For example, do parents have a right to consent to a search of their children's rooms? As a general rule, an adult in rightful possession of a house or apartment usually has legal authority to consent to a search of the entire premises. But if there are two or more separate tenants in one dwelling, courts often rule that one tenant has no power to consent to a search of the areas exclusively controlled by the other tenants (for instance, their separate bedrooms). Similarly, a landlord is not considered to be in possession of an apartment leased to a tenant, and therefore lacks authority to consent to a search of leased premises. The same is true for hotel operators. On the other hand, an employer can validly consent to a search of company premises, which extends to an employee's work area, such as a desk and machinery, but not to clearly private areas such as an employee's clothes locker.
A tricky twist is that the consent in these types of cases will be considered valid if the police reasonably believe that the consenting person has the authority to consent, even if it turns out they don't.
The Plain View Doctrine
Police officers do not need a warrant to search and seize contraband or evidence that is "in plain view" if the officer is where he or she has a right to be when the evidence or contraband is first spotted. For instance, the police may search for and seize marijuana growing outdoors if they first spot the marijuana from an airplane or helicopter, since the marijuana is deemed to be in plain view. Similarly, if an officer walks by a car and spots evidence or contraband through the car window, the plain view doctrine applies and a search may be conducted without a warrant. The same rule would apply if an officer is in your home for other valid reasons and spots drugs on a table or cabinet.
Search Made in Connection With an Arrest
Police officers do not need a warrant to make a search "incident to an arrest." After an arrest, police officers have the right to protect themselves by searching for weapons and to protect the legal case against the suspect by searching for evidence that the suspect might try to destroy. Assuming that the officer has probable cause to make the arrest in the first place, a search of the person and the person's surroundings following the arrest is valid, and any evidence uncovered is admissible at trial.
To justify a search as incident to an arrest, a spatial relationship must exist between the arrest and the search. The general rule is that after arrest the police may search a defendant and the area within a defendant's immediate control. For example, an arresting officer may search not only a suspect's clothes, but also the suspect's wallet or purse. If an arrest takes place in a kitchen, the arresting officer can probably search the kitchen, but not the rest of the house. If an arrest takes place outside a house, the arresting officer cannot search the house at all. To conduct a search broader in scope than a defendant and the area within the defendant's immediate control, an officer would have to obtain a warrant. However, the police may make what's known as a "protective sweep" following an arrest. When making a protective sweep, police officers can walk through a residence and make a "cursory visual inspection" of places where an accomplice might be hiding. For example, police officers could look under beds and inside closets. To justify making a protective sweep, police officers must have a reasonable belief that a dangerous accomplice might be hiding inside a residence. If a sweep is lawful, the police can lawfully seize contraband or evidence of crime that is in plain view.
Searches of Cars and Their Occupants
Cars may be searched without a warrant whenever the car has been validly stopped and the police have probable cause to believe the car contains contraband or evidence. The reasons why no warrant is required for a car search are:
* cars are easily moved and may disappear while a warrant is being sought, and
* people driving cars do not have the same expectation of privacy in cars as they do in their homes.
If the police have probable cause to search the car, all compartments and packages that may contain the evidence or contraband being searched for are fair game.
While a police officer cannot search a car simply because the car was stopped for a traffic infraction -- since routine traffic stops are not arrests that would justify a "search incident to an arrest" -- the police can order the driver and any passengers out of the car for safety considerations, even though there is no suspicion of criminal wrongdoing other than the traffic infraction. The police also can "frisk" the occupants for weapons so long as they have a "reasonable suspicion" that the occupants are involved in criminal activity beyond the traffic violation and are reasonably concerned for their safety.
The police are sometimes accused of using technical traffic violations as a pretext for stopping the car for the real reason of conducting a further investigation that often includes a frisk and possible search of the vehicle. Whatever the police officer's motives, however, if the officer had a valid reason to stop the vehicle, even one like a broken rear taillight, the stop is legal. And, if the initial stop is valid, any lawful frisk, search or arrest that follows the stop is also valid.
The Emergency Exception
As a general rule, the police are authorized to make a warrantless search when the time it would take to get a warrant would jeopardize public safety or lead to the loss of important evidence. Here are some situations in which most judges would uphold a warrantless search:
* An officer checks an injured motorist for possible injuries following a collision and finds illegal drugs.
* Following a street drug arrest, an officer enters the house after the suspect shouts into the house, "Eddie, quick, flush our stash down the toilet." The officer arrests Eddie and seizes the stash.
* A police officer on routine patrol hears shouts and screams coming from a residence, rushes in and arrests a suspect for spousal abuse.
In these types of emergency situations, an officer's duty to protect people and preserve evidence outweighs the warrant requirement.
If a judge decides that an officer had time to obtain a search warrant without risking injury to people or the loss of evidence, the judge should refuse to allow into evidence whatever was seized in the course of the warrantless search. Judges always have the final word on whether police officers should have obtained warrants.
Other Searches That May be Made Without A Warrant
The police may search a person's trash put out for collection without a warrant on the ground that, since the trash has been put out in public, there is no longer a reasonable expectation of privacy and the Fourth Amendment doesn't apply.
A backyard may also be searched without a warrant if members of the public can see into it from where they have a right to be. Again, there is no reasonable expectation of privacy in an area that is open to public view. Similarly, fields around a house in a rural area are subject to a warrantless search as long as the police didn't trespass to obtain the information leading to probable cause for the search.
School lockers are subject to warrantless searches as long the school officials have a reasonable basis for conducting the search.
http://www.ralphbehr.net/lawyer-attorney-50CD91FC-B21D-4BE7-BA4818C8E29AC758.html
Your right to privacy when the police come knocking, pull you over, or stop you on the street.
Your right to privacy when the police come knocking, pull you over, or stop you on the street.
What's Below:
When is a police investigation considered a search?
How Private Is Your Property?
What is a search warrant?
What does it take to get a search warrant?
What are the police allowed to do after they obtain a search warrant?
Do the police always need a warrant to conduct a search?
Can my roommate-or my landlord-give the police permission to search my apartment?
When is a police investigation considered a search?
A police investigation is not a search unless it intrudes on a person's privacy. In other words, if a person did not have a "legitimate expectation of privacy" in the place or thing searched, no "search" has occurred.
Courts ask two questions to determine whether a person had a legitimate expectation of privacy in the place or things searched:
* Did the person expect some degree of privacy?
* Is the person's expectation reasonable-that is, one that society is willing to recognize?
For example, a person who uses a public restroom expects that no one will spy on her, and most people-including judges and juries-would consider that expectation to be reasonable. Therefore, if the police install a hidden video camera in a public restroom, the action is considered a search and must meet the Fourth Amendment's requirement of reasonableness.
On the other hand, if the police glance into a car and see a weapon on the front seat, it is not a search because it is unlikely that a person would think that the front seat of a car is a private place. And even if he did, society is not generally willing to extend the protections of privacy to the front seat of an automobile.
How Private Is Your Property?
Generally, if the police are able to view contraband or evidence on your property without actually entering it, they have not conducted a search. In other words, you cannot have a reasonable expectation of privacy in an area that can legitimately be seen from outside your property. This means that the police can use what they have seen as the basis for getting a warrant to come in and take a closer look. Or, if the situation calls for prompt action (the need to stop a drug deal, for instance), they may enter without a warrant.
Law enforcement officers are allowed to take aerial photographs or come close enough to overhear your conversations-these actions are not considered searches. On the other hand, without a warrant or an exception to the rule requiring a warrant, officers are probably not allowed to use sophisticated equipment to discover what is on your property or to eavesdrop on your conversations. In general, if the investigation method is highly artificial and high-tech, it's likely to be considered a search. Where the line is drawn, however, is not clear or consistent from state to state.
What is a search warrant?
A search warrant is a kind of permission slip, signed by a judge, that allows the police to enter private property to look for particular items. It is addressed to the owner of the property, and tells the owner that a judge has decided that it is reasonably likely that certain contraband, or evidence of criminal activities, will be found in specified locations on the property.
As a general rule, the police are supposed to apply for a warrant before conducting a search of private property; any search that is conducted without a warrant is presumed to be unreasonable. This means that the police officers will later have to justify the search-and why a warrant wasn't obtained first-if the defendant challenges it in court.
What does it take to get a search warrant?
A judge will issue a search warrant after the police have convinced her that:
* it is more likely than not that a crime has taken place, and
* items connected to the crime are likely be found in a specified location on the property.
To convince the judge of these facts, the police tell the judge what they know about the situation. Usually, the information given to the judge is based either on the officers' own observations or on the second-hand observations of an informant.The police are limited in their ability to use secondhand information. As a general rule, the information must be reliable given the circumstances. Generally, reliable information is corroborated by police observation. For example, a citizen's tip that someone regularly delivers drugs to a certain location would be corroborated if an officer observes the person's routine. But corroboration is not necessary in every case. Sometimes a judge will issue a warrant if the source of the information is known to the police and has provided trustworthy information in the past.
What are the police allowed to do after they obtain a search warrant?
Once the police have a search warrant, they are entitled to enter the designated property to search for the items listed on the warrant. Legally, the search is supposed to be confined to the specific areas described in the warrant. For example, if the search warrant includes only the living room, the search should not extend into the kitchen, bathroom or bedroom. But there are exceptions to this limitation which are frequently used to justify broader searches. For example, the police may search beyond the terms of the warrant in order to:
* ensure their safety and the safety of others
* prevent the destruction of evidence
* discover more about possible evidence or contraband that is in plain view elsewhere on the property, or
* hunt for evidence or contraband that, as a result of their initial search, they believe exists in another location on the property.
For instance, although a warrant might be issued for the search of a house, the sound of a shotgun being loaded in the backyard would justify expanding the search to the yard in order to protect the officers; similarly, a search limited to the ground floor might legitimately expand to the upstairs if the police, searching for illegal drugs, hear toilets being flushed above. And the police can always seize evidence or illegal items if they are in plain view or are discovered while the officers are searching for the items listed in the warrant.
Do the police always need a warrant to conduct a search?
No. In many situations, police may legally conduct a search without first obtaining a warrant.
* Consent searches. If the police ask your permission to search your home, purse, briefcase or other property, and you agree, the search is considered consensual, and they don't need a warrant. The police typically obtain a person's consent by threatening to detain her while they obtain the warrant.
* Searches that accompany an arrest. When a person is placed under arrest, the police may search the person and the immediate surroundings for weapons that might be used to harm the officer. If the person is taken to jail, the police may search to make sure that weapons or contraband are not brought into the jail. (This is called an inventory search.) Inventory searches also frequently involve a search of the arrested person's car (if it is being held by the police) and personal effects on the theory that the police need a precise record of the person's property to avoid claims of theft.
* Searches necessary to protect the safety of the public. The police don't need a warrant if they have a reasonable fear that their safety, or that of the public, is in imminent danger. For example, an officer who suspected a bomb-making operation while walking his beat might be justified in entering immediately and seizing the ingredients. And in the famous O.J. Simpson case, the police justified their entry onto O.J. Simpson's property on the grounds that they feared for the safety of other family members.
* Searches necessary to prevent the imminent destruction of evidence. A police officer does not need to obtain a warrant if she has observed illegal items (such as weapons or contraband) and believes that the items will disappear unless the officer takes prompt action. This exception arises most frequently when the police spot contraband or weapons in a car. Because cars are moved so frequently, the officer is justified in searching the entire vehicle, including the trunk, without obtaining a warrant. On the other hand, if the police learn about a marijuana-growing operation from a neighbor, they usually would need a warrant, as it is unlikely that the growing plants and other evidence of the operation will disappear quickly enough to justify a warrantless search.
* "Hot pursuit" searches. Police may enter private dwellings to search for criminals who are fleeing the scene of a crime.
Back to top
Can my roommate-or my landlord-give the police permission to search my apartment?
The police may search your apartment if the person in charge of the premises gives permission. If you and your roommate share common areas (such as the kitchen and living room), your roommate can authorize a search of those areas. But your roommate cannot give permission to search your separate bedroom.
Similarly, your landlord cannot give permission to search your apartment. Although the landlord owns the property, your monthly check guarantees your privacy at home. This is true even if you are behind in your rent or your landlord has sued to evict you. Until the landlord has a court order that permits him to enter and retake the premises, he cannot enter without your permission. (But keep in mind that many states allow a landlord to enter for inspections, which usually require advance notice of a day or two.) If the police can point to circumstances that would justify immediate entry, however -- such as the sound of a ferocious fight or the smell of burning marijuana -- they may enter without permission from anyone.
http://www.ralphbehr.net/lawyer-attorney-81B70BE7-806D-43EB-8632156E62570E6E.html
What's Below:
When is a police investigation considered a search?
How Private Is Your Property?
What is a search warrant?
What does it take to get a search warrant?
What are the police allowed to do after they obtain a search warrant?
Do the police always need a warrant to conduct a search?
Can my roommate-or my landlord-give the police permission to search my apartment?
When is a police investigation considered a search?
A police investigation is not a search unless it intrudes on a person's privacy. In other words, if a person did not have a "legitimate expectation of privacy" in the place or thing searched, no "search" has occurred.
Courts ask two questions to determine whether a person had a legitimate expectation of privacy in the place or things searched:
* Did the person expect some degree of privacy?
* Is the person's expectation reasonable-that is, one that society is willing to recognize?
For example, a person who uses a public restroom expects that no one will spy on her, and most people-including judges and juries-would consider that expectation to be reasonable. Therefore, if the police install a hidden video camera in a public restroom, the action is considered a search and must meet the Fourth Amendment's requirement of reasonableness.
On the other hand, if the police glance into a car and see a weapon on the front seat, it is not a search because it is unlikely that a person would think that the front seat of a car is a private place. And even if he did, society is not generally willing to extend the protections of privacy to the front seat of an automobile.
How Private Is Your Property?
Generally, if the police are able to view contraband or evidence on your property without actually entering it, they have not conducted a search. In other words, you cannot have a reasonable expectation of privacy in an area that can legitimately be seen from outside your property. This means that the police can use what they have seen as the basis for getting a warrant to come in and take a closer look. Or, if the situation calls for prompt action (the need to stop a drug deal, for instance), they may enter without a warrant.
Law enforcement officers are allowed to take aerial photographs or come close enough to overhear your conversations-these actions are not considered searches. On the other hand, without a warrant or an exception to the rule requiring a warrant, officers are probably not allowed to use sophisticated equipment to discover what is on your property or to eavesdrop on your conversations. In general, if the investigation method is highly artificial and high-tech, it's likely to be considered a search. Where the line is drawn, however, is not clear or consistent from state to state.
What is a search warrant?
A search warrant is a kind of permission slip, signed by a judge, that allows the police to enter private property to look for particular items. It is addressed to the owner of the property, and tells the owner that a judge has decided that it is reasonably likely that certain contraband, or evidence of criminal activities, will be found in specified locations on the property.
As a general rule, the police are supposed to apply for a warrant before conducting a search of private property; any search that is conducted without a warrant is presumed to be unreasonable. This means that the police officers will later have to justify the search-and why a warrant wasn't obtained first-if the defendant challenges it in court.
What does it take to get a search warrant?
A judge will issue a search warrant after the police have convinced her that:
* it is more likely than not that a crime has taken place, and
* items connected to the crime are likely be found in a specified location on the property.
To convince the judge of these facts, the police tell the judge what they know about the situation. Usually, the information given to the judge is based either on the officers' own observations or on the second-hand observations of an informant.The police are limited in their ability to use secondhand information. As a general rule, the information must be reliable given the circumstances. Generally, reliable information is corroborated by police observation. For example, a citizen's tip that someone regularly delivers drugs to a certain location would be corroborated if an officer observes the person's routine. But corroboration is not necessary in every case. Sometimes a judge will issue a warrant if the source of the information is known to the police and has provided trustworthy information in the past.
What are the police allowed to do after they obtain a search warrant?
Once the police have a search warrant, they are entitled to enter the designated property to search for the items listed on the warrant. Legally, the search is supposed to be confined to the specific areas described in the warrant. For example, if the search warrant includes only the living room, the search should not extend into the kitchen, bathroom or bedroom. But there are exceptions to this limitation which are frequently used to justify broader searches. For example, the police may search beyond the terms of the warrant in order to:
* ensure their safety and the safety of others
* prevent the destruction of evidence
* discover more about possible evidence or contraband that is in plain view elsewhere on the property, or
* hunt for evidence or contraband that, as a result of their initial search, they believe exists in another location on the property.
For instance, although a warrant might be issued for the search of a house, the sound of a shotgun being loaded in the backyard would justify expanding the search to the yard in order to protect the officers; similarly, a search limited to the ground floor might legitimately expand to the upstairs if the police, searching for illegal drugs, hear toilets being flushed above. And the police can always seize evidence or illegal items if they are in plain view or are discovered while the officers are searching for the items listed in the warrant.
Do the police always need a warrant to conduct a search?
No. In many situations, police may legally conduct a search without first obtaining a warrant.
* Consent searches. If the police ask your permission to search your home, purse, briefcase or other property, and you agree, the search is considered consensual, and they don't need a warrant. The police typically obtain a person's consent by threatening to detain her while they obtain the warrant.
* Searches that accompany an arrest. When a person is placed under arrest, the police may search the person and the immediate surroundings for weapons that might be used to harm the officer. If the person is taken to jail, the police may search to make sure that weapons or contraband are not brought into the jail. (This is called an inventory search.) Inventory searches also frequently involve a search of the arrested person's car (if it is being held by the police) and personal effects on the theory that the police need a precise record of the person's property to avoid claims of theft.
* Searches necessary to protect the safety of the public. The police don't need a warrant if they have a reasonable fear that their safety, or that of the public, is in imminent danger. For example, an officer who suspected a bomb-making operation while walking his beat might be justified in entering immediately and seizing the ingredients. And in the famous O.J. Simpson case, the police justified their entry onto O.J. Simpson's property on the grounds that they feared for the safety of other family members.
* Searches necessary to prevent the imminent destruction of evidence. A police officer does not need to obtain a warrant if she has observed illegal items (such as weapons or contraband) and believes that the items will disappear unless the officer takes prompt action. This exception arises most frequently when the police spot contraband or weapons in a car. Because cars are moved so frequently, the officer is justified in searching the entire vehicle, including the trunk, without obtaining a warrant. On the other hand, if the police learn about a marijuana-growing operation from a neighbor, they usually would need a warrant, as it is unlikely that the growing plants and other evidence of the operation will disappear quickly enough to justify a warrantless search.
* "Hot pursuit" searches. Police may enter private dwellings to search for criminals who are fleeing the scene of a crime.
Back to top
Can my roommate-or my landlord-give the police permission to search my apartment?
The police may search your apartment if the person in charge of the premises gives permission. If you and your roommate share common areas (such as the kitchen and living room), your roommate can authorize a search of those areas. But your roommate cannot give permission to search your separate bedroom.
Similarly, your landlord cannot give permission to search your apartment. Although the landlord owns the property, your monthly check guarantees your privacy at home. This is true even if you are behind in your rent or your landlord has sued to evict you. Until the landlord has a court order that permits him to enter and retake the premises, he cannot enter without your permission. (But keep in mind that many states allow a landlord to enter for inspections, which usually require advance notice of a day or two.) If the police can point to circumstances that would justify immediate entry, however -- such as the sound of a ferocious fight or the smell of burning marijuana -- they may enter without permission from anyone.
http://www.ralphbehr.net/lawyer-attorney-81B70BE7-806D-43EB-8632156E62570E6E.html
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