http://www.courts.mo.gov/file.jsp?id=57643

In its opinion released just this week, the Missouri Court of Appeals for the Southern District ruled that the mere observations of law enforcment personnel may be enough to find you guilty of driving while intoxicated!  If the officer can testify that you smell drunk, that your eyes are watery, and that you admit to drinking, you can be found guilty. 

Read the above link, and feel free to respond to the blog or email me if you have specific questions. 

Remember, be careful out there, and if you find yourself the target of a police investigation, CALL FEE TO PROTECT YOUR BACK! (816) 225-2148.

http://www.feebacklaw.com

In Missouri, Revised Statute 455.010, defines the words used to control the issuance what is known as a Full Order of Protection.  Other Jurisdictions, and most T.V. shows, refer these Orders as a “Restraining Order.” A Full Order of Protection can be a very important barricade in an abusive relationship.  However, they are to be issued with great discretion.  In a case decided last week by the Missouri Court of Appeals for the Southern District, the Court determined that there exists both a Subjective component (what the actual individual seeking the Order) believes causes them “alarm”, and an Objective component (what a reasonable person in that situation) would be ”alarmed” by that must be proven before an Order of Protection should be issued. The definition of stalking, pursuant to Court is: 

RSMo 455.010:

(13) “Stalking” is when any person purposely and repeatedly engages in an unwanted course of conduct that causes alarm to another person when it is reasonable in that person’s situation to have been alarmed by the conduct. As used in this subdivision:

(a) “Alarm” means to cause fear of danger of physical harm;

(b) “Course of conduct” means a pattern of conduct composed of repeated acts over a period of time, however short, that serves no legitimate purpose. Such conduct may include, but is not limited to, following the other person or unwanted communication or unwanted contact; and

(c) “Repeated” means two or more incidents evidencing a continuity of purpose.

In Missouri, in order to be considered “stalking”, there must be evidence of more than one occasion of a course of conduct which serves no legitimate purpose.  Such conduct must cause “alarm” (fear of danger of physical harm) to another person (subjective portion) AND evidence that it is reasonable for a person in that situation (objective standard) to be alarmed by the conduct.

This means that even if you are “alarmed”, it must be reasonable for a person in your situation to be “alarmed” by the conduct.  If it isn’t reasonable, then according to the case, the Order of Protection should not issue. 

What do you think? 

IF YOU ARE THE TARGET OF ABUSE OR STALKING, OF IF YOU BELIEVE YOU ARE BEING WRONGLY ACCUSED OF IT, CALL FEE TO PROTECT YOUR BACK! (816) 225-2148

In Missouri, Revised Statute 455.010, defines the words used to control the issuance what is known as a Full Order of Protection.  Other Jurisdictions, and most T.V. shows, refer these Orders as a “Restraining Order.” A Full Order of Protection can be a very important barricade in an abusive relationship.  However, they are to be issued with great discretion.  In a case decided last week by the Missouri Court of Appeals for the Southern District, the Court determined that there exists both a Subjective component (what the actual individual seeking the Order) believes causes them “alarm”, and an Objective component (what a reasonable person in that situation) would be ”alarmed” by that must be proven before an Order of Protection should be issued. The definition of stalking, pursuant to Court is: 

RSMo 455.010:

(13) “Stalking” is when any person purposely and repeatedly engages in an unwanted course of conduct that causes alarm to another person when it is reasonable in that person’s situation to have been alarmed by the conduct. As used in this subdivision:

(a) “Alarm” means to cause fear of danger of physical harm;

(b) “Course of conduct” means a pattern of conduct composed of repeated acts over a period of time, however short, that serves no legitimate purpose. Such conduct may include, but is not limited to, following the other person or unwanted communication or unwanted contact; and

(c) “Repeated” means two or more incidents evidencing a continuity of purpose.

In Missouri, in order to be considered “stalking”, there must be evidence of more than one occasion of a course of conduct which serves no legitimate purpose.  Such conduct must cause “alarm” (fear of danger of physical harm) to another person (subjective portion) AND evidence that it is reasonable for a person in that situation (objective standard) to be alarmed by the conduct.

This means that even if you are “alarmed”, it must be reasonable for a person in your situation to be “alarmed” by the conduct.  If it isn’t reasonable, then according to the case, the Order of Protection should not issue. 

What do you think? 

IF YOU ARE THE TARGET OF ABUSE OR STALKING, OF IF YOU BELIEVE YOU ARE BEING WRONGLY ACCUSED OF IT, CALL FEE TO PROTECT YOUR BACK! (816) 225-2148

State vs. James Arthur Clampitt WD73943

In a case decided last week by the Court of Appeals for the Western District of Missouri, the appellate court upheld a ruling by the trial court of Chariton, County Missouri supressing several hundreds of text messages sent and received by the Defendant.  In its opinion, the court was deciding whether the prosecuting attorney for Chariton County, Missouri could have access to the text messages sent and received from James Clampitt’s cellphone after he was arrested and charged with involuntary manslaughter in connection with an automobile accident.

In its opinion, the court found that:

1. Citizens have a reasonable expectation of privacy in the contents of their text messages, much like letters and telephone calls.

2.  Cell phone subscribers assume that the contents of their text messages will remain private despite the necessity of a third party to complete the correspondence.  Society expects the contents of their text messages to receive the same Fourth Amendment protections afforded to letters and telephone calls.

Not that this case would apply in every instance.  The court found that the investigative subpoenas used by the prosecuting attorney’s office were not sufficiently limited in scope and relevance. The subpoenas amounted to asking for all messages during a thirty-two day period. This amounted to over 300 pages worth of information.

Further, the opinion seems to suggest that law enforcement officers may be able to seize the information under an exception to the right to privacy.  However, I believe the opinion is most important in that it speaks the Western District’s view on the privacy of text messages. 

IF YOU FIND YOURSELF THE TARGET OF A CRIMINAL INVESTIGATION, CALL FEE TO PROTECT YOUR BACK! (816) 225-2148.

In a case decided December 20, 2011, the Missouri Eastern District Court of Appeals affirmed the conviction of Ali Ellis after law enforcement searched his backpack and found ecstasy.

After being caught peeing on a wall (not too smart), Mr. Ellis attempted to get away from law enforcement.  This resulted in him meeting the pavement in a harsh way.  After he was cuffed, he was stuffed into the patrol car minus his backpack that he was wearing at the time.  The rest writes itself.  When law enforcement searched his backpack, they discovered the controlled substance known as “ecstasy” hiding inside.  He was subsequently charged with possession of these beauties. 

At trial, he tried to keep the pills from becoming evidence by filing a motion to suppress the evidence due to the search conducted running afoul of the Constitution.

In its decision, the Eastern District ultimately ruled that the search of Ali’s backpack was not unconstitutional as it fit neatly into an exception known as the “good-faith” exception.

The “good-faith” exception simply is that even if the search is unconstitutional, if law enforcement officers act with a good-faith belief that the search is legal, if they find any goodies on you, they can charge you with a crime simply because throwing the evidence out would not deter law enforcement from repeating the same behavior in future searches.

HUH?

Basically, the Court found that since there has been prior decisions that have held that personal effects of a person, for example: purses, wallets, boots, etc., are valid  to search if the defendant has been arrested (search incident to arrest) a backpack should be as well. I especially like the reasoning cited to:

“The human anatomy does not naturally contain external pockets, pouches, or other places in which personal objects can be conveniently carried.  To remedy this antomical deficiency, clothing contains pockets.  In addition, many individuals carry purses or shoulder bags to hold objects they wish to have with them.  Containers such as these, while appended to the body, are so closely associated with the person that they are identified with and included within the concept of one’s person.  To hold differently would be to narrow the scope of a search of one’s person to a point at which it would have little meaning.”

Translation, because no one walks around naked, backpacks, purses, wallets, boots, etc. are an extension of your body, and thus able to be searched by law enforcement if you are arrested. 

IF YOU HAVE BEEN ARRESTED AND NEED AN ATTORNEY WHO WILL FIGHT YOUR YOUR RIGHTS,

CALL FEE TO PROTECT YOUR BACK! (816) 225-2148.

This week, the Missouri Southern District Court of Appeals upheld the conviction of a Defendant who was convicted of his third DWI in Jasper County, Missouri.  The defendant was found behind the wheel of his truck by law enforcement.  The radio was on, and there were lights coming from the dashboard.  Also, the officer noticed “a large amount of steam emitting from the engine compartment.” The vehicle was making loud, strange noises as well.  The officer agreed with defense counsel that the truck appeared to be having mechanical problems.  The officer testified that he wasn’t sure if the vehicle could move under it own power. 

Under the Missouri statute for DWI, 577.010 “a person commits the crime of driving while intoxicated if he operates a motor vehicle while in an intoxicated or drugged condition”. According to the definitions section, RSMO 577.001.2 the term drive, driving, operates, or operating, means physically driving or operating a motor vehicle.  The prosecution basically has two elements to prove.  (1) operation of a motor vehicle, and (2) while intoxicated.   “Drive” means “guide a vehicle along or through” and “Operate” means “to cause to function usually by direct personal effort: work.”

The defendant relies on previous decisions which ruled that if the engine is not running when the defendant is found by law enforcement, then “the State must present significant additional evidence of driving and the connection of driving in an intoxicated state to sustain a criminal conviction.” However, there was evidence in this particular case that the law enforcement officer found the defendant behind the wheel with smoke emitting from the engine area, and that the defendant turned the keys backwards from a forward position when he exited the vehicle, and that the engine was at least making some kind of noise to indicate a running status. 

Further, the court pointed out that there was no evidence heard that the engine was NOT running.   

DWI cases are extremely fact intensive.It is important to hire an attorney experienced in uncovering factual and legal issues. 

CALL FEE TO PROTECT YOUR BACK! (816) 225-2148