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Come Back With a Warrant!

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Finally! A U.S. Supreme Court decision that doesn’t chip away at our Fourth Amendment rights. The Supreme Court voted 8-1 earlier this year to prevent law enforcement from searching motor vehicles parked close to a suspect’s home without a search warrant.

The decision involved a case out of Virginia where a suspect had eluded officers twice on a motorcycle reaching speeds of 140 mph. In Collins v. Virginia, an officer later spotted what appeared to be the motorcycle draped in a tarp beside a residence. He went onto the property and lifted up the tarp to reveal the tag number. After running the number he discovered the motorcycle was stolen. A subsequent arrest was made.

How might this affect you? This decision will limit the ability of law enforcement to search your vehicle parked on private property. Obviously the level of exigency isn’t present for a vehicle parked in your driveway as opposed one being stopped on the side of a highway.

Limiting the Automobile Exception

The Fourth Amendment protects all of us against unlawful searches or seizures. Generally, a warrant is required and must be supported by probable cause. However, there are a few exceptions including the automobile exception. This exception to the Fourth Amendment allows an officer to conduct a warrantless search on the scene if the vehicle is “readily mobile”. The officer must also show probable cause to believe there is contraband in the vehicle. Examples would include a glass pipe laying in plain view or the odor of marijuana emitting from the vehicle.

Obviously automobiles can be driven around and parked in public places. People can generally see inside of them through the windows. Also, automobiles are easy to move from one place to another making it easier to dispose of evidence inside. Therefore, the rationale behind the automobile exception is: (1) because you generally have a lowered expectation of privacy in your automobile; and (2) there is an ease with which you could dispose of the contraband before an officer could seek a search warrant.

However, when your vehicle is parked close to your home (within the curtilage) your expectation of privacy is not lowered. The protected area would likely include driveways close to the house, porches, and walkways. This Supreme Court decision says that the automobile exception stops short of allowing warrantless searches of cars parked in a suspect’s driveway.

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The Opinion

Justice Sotomayor wrote: “Nothing in our case law . . . suggests that the automobile exception gives an officer the right to enter a home or its curtilage to access a vehicle without a warrant.”

The Court basically refused to apply the automobile exception to include searches of vehicles on private property. “The scope of the automobile exception extends no further than the automobile itself… nothing in our case law suggests that the automobile exception gives an officer the right to enter a home or it’s curtilage to access a vehicle without a warrant.”

What does all this mean? If you’re riding dirty, you had better park your hoopty-wagon next to the house and not along the side of the street. While this ruling does not mean officers can never search a vehicle outside the curtilage of a residence under the automobile exception, it applies constitutional limitations and restricts the carte blanche application of this 4th Amendment exception.

The Law Office of David L. Powell can help if you or a loved one has been charged with possession of drugs or paraphernalia. Call 479-785-0123 to schedule a free consultation with an aggressive Fort Smith criminal defense attorney.

This blog is for educational purposes as well as to give you general information and a general understanding of the law, not to provide specific legal advice. In reading this blog you understand that there is no attorney-client relationship between you and the author. Use this information at your own risk as this blog may not reflect the most current legal developments. This blog should not be used as a substitute for competent legal advice from a licensed attorney in your state.

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The Company You Keep: 4 Things to Remember about Constructive Possession in Arkansas

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I’ve listened to numerous clients attempt to explain how the police can’t charge them with possession because they didn’t have anything illegal on them at the time of arrest. Maybe the person happened to be in a friend’s house when law enforcement showed up to conduct a parole search. Perhaps he was a passenger in a vehicle during a traffic stop where the officer smelled marijuana. If the officer conducts a search and finds illegal items, you could face possession charges along with your cohorts by merely being in the wrong place at the wrong time. Here are a few things you should know about constructive possession laws in Arkansas.

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1. “But it wasn’t mine!”

What the hell is constructive possession anyway? Either you possess something or you don’t, right? Leave it to our criminal justice system to create this legal fiction to convict you for possession of items you don’t actually… possess. Under this theory, you can be convicted for having the ability or capacity to possess an illegal item AND the knowledge of the substance’s presence. It helps stack the deck for the state in cases where convicting on actual possession would be difficult.
Possession can be implied if an item is found in a place immediately and exclusively accessible to you. That could be at your feet in the passenger side of a car or on the kitchen table while you’re smashing a carton of Halo Top ice cream watching reruns of Real Housewives.

2. Joint Occupancy is not enough

Joint occupancy is just one of the factors the court may consider. There must be some additional factors presented by the state. When an officer conducts a traffic stop which produces some sort of contraband, the officer is going to ask who it belongs to. If none of your boys claim the item, the officer may charge every occupant in the car.

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In that situation, remember that mere presence in the vehicle is not enough to convict on the theory of constructive possession. The state must show some additional factors to make their case at trial. That could include knowledge of the presence and nature of the illegal item, whether the item was in plain view, suspect’s control of the premises, proximity to the item, the amount of time suspect was present, behavior of the suspect, and other corroborating evidence found on the suspect’s person.

3. Riding solo

What if you’re driving by yourself in someone else’s car when police conduct a traffic stop and ask for permission to search? Maybe you’re crashed out on your buddy’s couch and the police raid the residence while you’re there alone. Sole occupancy is only one factor in proving constructive possession.
The mere presence alone is typically not enough to convict. The state needs to show some nexus between the accused and the item. That link must be sufficient enough to show the person knew about the item and its illegal nature. If you’re driving to the Electric Cowboy and your meth pipe is sitting in plain view on console, that’s likely sufficient. An item found in a rear passenger door may not be.

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4. Plain View… or smell

If you’re in a vehicle stopped by police and the officer can see or smell contraband, that’ll likely be enough to get a conviction under constructive possession in Arkansas. If the officer can see it from outside the vehicle, claiming that you didn’t have knowledge of it’s presence is a tough argument to make. Your presence in the car along with knowledge of the contraband can land you and everyone in the vehicle with possession charges. That’s true even if there is only one illegal item through joint constructive possession.

The Law Office of David L. Powell can help if you or a loved one has been charged with possession of drugs or paraphernalia in the state of Arkansas. Call 479-785-0123 to schedule a free consultation.

This bog is for educational purposes as well as to give you general information and a general understanding of the law, not to provide specific legal advice. In reading this blog you understand that there is no attorney-client relationship between you and the author. Use this information at your own risk as this blog may not reflect the most current legal developments. This blog should not be used as a substitute for competent legal advice from a licensed attorney in your state.

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Texting and Driving in the Natural State: 5 Things You Should Know

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Look around the next time you’re at a stop light. How many other drivers are “intexticated’ while waiting for the light to change? Distracted drivers have overtaken the nation’s streets and highways and it’s only become worse since the smart phone hit the market.

Many of us remember a time when returning a message meant you would wait until you arrived home to see that blinking light on the answering machine. In this modern age of texting and posting, here are 5 things to keep in mind before you respond to “sup?” while behind the wheel in Arkansas.

#1 It’s no longer a $100 citation

With the passage of Act 706, a first offense of texting while driving can result in a fine of $250 while a second offense is $500. If the texting results in a car collision the fine is doubled. This law (Paul’s Law) went into effect in 2017 and is designed to get your eyes off your phone and back on the road.

#2 Paul’s law doesn’t punish everyone

Certain people are exempt while conducting their duties including law enforcement officers, firefighters, ambulance drivers or other emergency medical professional. A doctor who is communicating with a hospital to provide emergency healthcare is also exempt.

Even for the rest of us, cell phone usage is not completely barred under Paul’s Law. Entering a phone number to dial or navigating using google map’s is likely ok. Judges are given a lot of discretion under the law. However, snapping a duck-lipped selfie from the driver’s seat will likely cost you.

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#3 You can be fined without even sending/posting a message

Under ACA § 17-51-1504, you don’t even have to hit the send button. The act of typing the text alone is enough. Granted, even law enforcement officers will admit that this law is very difficult to enforce. It’s hard to prove what a driver was doing while his eyes were in his lap. It’s much easier to cite someone with careless and prohibited driving as an alternative.

#4 It’s an addiction

Younger millennials have been raised on Smart technology and view their phones and social media as an extension of their selves. In a recent national poll, roughly 90% of young people believe texting while driving is extremely dangerous. Sadly, half of teens polled admit that they simply cannot resist the urge to check incoming messages while behind the wheel.

When you break it down scientifically, our brains release dopamine when we receive pleasurable information. This is a neurochemical in the brain which makes us feel happy. The release of dopamine is part of what leads to addictive cell phone behavior.

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#5 The future of texting while driving

Nearly every state now has some sort of law on the books making texting while driving a primary or secondary offense. At the time this blog was written, at least 14 states had gone so far as to prohibit the act of talking on the phone while driving. A recent study found that automobile fatalities for people aged 15-21 has decreased over 11% in states where texting while driving was a primary offense (meaning you can be pulled over for texting).

AT&T has taken steps to help by creating a free Drive Mode app. The app silences incoming message alerts and lets the sender know the recipient is driving when speeds of 15 mph are reached. Drivesafe.ly is another app which reads your texts and emails aloud to you. It also lets you respond through voice.

Another recent study shows that 63% of people are more worried about fellow drivers being distracted by their phones than being intoxicated by alcohol. However, the penalties for these violations are at opposite ends of the spectrum. Why not add license suspensions, mandatory driving classes, and install cell phone jamming devices into the vehicles of those found guilty of violating Paul’s Law? While a $250-500 fine may act as a deterrent for some, legislators could go a step further with a law already difficult to enforce.

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The Law Office of David L. Powell can help if you or a loved one has been charged with a traffic or criminal offense in the Fort Smith, Arkansas area. Call 479-785-0123 to schedule a free consultation.

This blog is for educational purposes as well as to give you general information and a general understanding of the law, not to provide specific legal advice. In reading this blog you understand that there is no attorney-client relationship between you and the author. Use this information at your own risk as this blog may not reflect the most current legal developments. This blog should not be used as a substitute for competent legal advice from a licensed attorney in your state. 

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Hey Man, Hold my Beer: A Brief Look at the Open Container Law in Arkansas

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Until early 2017, Arkansas was one of a few states which allowed you to have an open beer or liquor bottle in your car while driving around. Last year, Arkansas joined 43 other states who make it illegal to drive or ride with an open cerveza in your cup holder. This includes beer bottles, cans, flasks, and anything else used to contain alcohol. According to the US Department of Transportation this should include any alcohol that contains one-half of one percent alcohol by volume. However, there has to actually be alcohol in the container. The mere odor of intoxicants isn’t enough for a violation.

The Law

Under Arkansas Code § 5-71-218, anyone stopped with an open container in their vehicle may be charged with a class C misdemeanor. That carries with it a potential 30-day jail sentence and up to $500 in fines. This can include the driver as well as passengers, so an officer could possibly charge everyone in the vehicle. Be careful who you’re ridin’ dirty with.

Compare that to the consequences of a DWI conviction in the state of Arkansas. A drunk driving charge can net you a lengthy license suspension, alcohol classes, and a much higher likelihood of jail time and steep fines.

The vast majority of Americans actually approve of  open container laws according to the National Highway Traffic Safety Administration. The same is true with citizens from states without open container laws. The obvious primary purpose of these state laws is to reduce the amount of alcohol-related fatalities each year. According to studies conducted by the NHTSA the numbers have dropped considerably under regulation.

Exceptions to Every Rule

There are several exceptions to this law. You’re allowed to drink in vehicles which are primarily used to transport people for compensation. This would include taxis, limousines, and busses. The living quarters of a motor home is also exempt. The law applies to vehicles traveling on public highways or on the shoulder. Therefore, if you’re charged while on private property you would have a good defense to an open container violation. However, if you’re behind the wheel when an officer walks up there’s still that pesky DWI thing to worry about.

Placing a bottle in a locked glove box or console would likely be ok. Still, your best bet is to put it in the car trunk, hatchback, or bed of your pick-up. Having a person riding in the bed of your truck will likely not violate the statute. However, keeping a person in the trunk of your car is a topic for another blog.

Think Before You Drink

The moment you break the seal on that bottle of Apple Crown, you could be in violation of the statute. You don’t even have to take a sip under the Arkansas open container law. Or even sniff it for that matter. Think this is too strict? You could avoid open-container regulation altogether by traveling across the river to Mississippi. There you can legally drink while driving under state law. Just be aware of the abnormally high rate of alcohol-related fatalities.

The Law Office of David L Powell can help if you or a family member has been charged with an open container violation, DWI, DUI, minor in possession, or public intox in the state of Fort Smith, Arkansas area. Call 479-785-0123 to schedule a free consultation.

This blog is for educational purposes as well as to give you general information and a general understanding of the law, not to provide specific legal advice. In reading this blog you understand that there is no attorney-client relationship between you and the author. Use this information at your own risk as this blog may not reflect the most current legal developments. This blog should not be used as a substitute for competent legal advice from a licensed attorney in your state.