Are you the cable guy or the FBI?
By Elizabeth B. Carpenter
There is an interesting case before a U.S. Federal District Court in the Las Vegas area. The issue for the judge to decide is whether FBI agents can disconnect a utility service to an abode and then, disguise themselves as repairmen in order to gain entry and covertly search the premises in hopes of finding evidence that might justify the issuance of a search warrant.
The defendants in this case are a group of Chinese high rollers who are accused of running an illegal gambling operation from their Las Vegas villa at Caesar’s Palace Hotel and Casino. The government became suspicious of this group’s activities when they learned that some individuals in the group had been booted from Macau for illegal gambling activities. However, under the law, suspicion alone is not sufficient grounds for a search warrant.
The attorneys for the defendants in this case filed a motion to suppress asserting that the evidence in this case was obtained illegally when FBI agents disconnected the internet service to the villa, dressed up as internet service technicians, and entered the room claiming to be fixing the Internet connection. When inside the room, the agents snooped around and took photographs of items they believed to be incriminating. With this new found information, the agents believed that they had enough to get a search warrant. To make matters worse, when seeking the search warrant, the agents failed to disclose their sneaky tactics to the magistrate judge.
Can FBI agents legally do this sort “repairmen” ploy and get away with it?
The Fourth Amendment typically protects us under U.S. jurisdiction (even foreign nationals as in this case) from warrantless searches and seizures. However, when law enforcement is given consent to enter and search, a warrant is not required.
Here’s the problem: If law enforcement agents secretly cut off service to your house and pose as repairmen in order to get inside under false pretenses, are you really still consenting to a search? I’m of the opinion what you are only consenting to is a search for a cable connection. The attorneys for the accused gamblers say no, and they caution that saying yes would open a Pandora’s box for warrantless searches.
The next time your Internet or phone service goes out, it could actually be an elaborate plot by federal agents trying to gain access to your home. What do you think of this?
Of course, I will be following this case. No matter what the district judge decides, I am certain this issue will be appealed to a higher court.
Elizabeth B. Carpenter is a New Orleans attorney who focuses a significant portion of her practice on criminal defense in federal and state court.
The US Supreme Court will examine a question of privacy as it concerns hotel and motel guest records during this session. The high court agreed to review a federal appeals court ruling that struck down a Los Angeles ordinance requiring that hotel guest records “be made available to any officer of the Los Angeles Police Department for inspection.”
A divided Ninth U.S. Circuit Court of Appeals ruled this past December that the ordinance was unconstitutional under the Fourth Amendment, which guards against unreasonable searches and seizures. In my opinion, rightly so! The court concluded that hotels have an interest in keeping guest records private, even if the guests themselves have no such privacy rights because they willingly give their information to the hotel. Of course, the reason travelers give that information to the hotel is because they have been on the road all day and are not going to let a phone number or address get in the way of a hot shower and a good night’s sleep. After all when using a credit card to pay for our stay, like most of us do, we as customers expect this information to remain private. We don’t expect it to be readily shared. At least without a good reason and proper legal procedure, like a judge ordered Search Warrant.
The ordnance at issue was approved by the city in 2006. It requires hotels to collect and maintain guest information such as name and address, the number of people in the guest’s party, vehicle information, arrival and checkout dates, room number, and method of payment. Hotel operators who fail to comply with it face as many as 6 months behind bars and a $1,000 fine.
“A lot of the hotel owners in the L.A. area are being subject to warrantless searches under this ordinance,” explained the lawyer for L.A. motel owners, Naranjibhai and Ramilaben Patel. According to court documents the Patels had been cited by police for failing to keep the required records at one of their motels, the Rio Palace Motor Inn.
As the law in the state of Louisiana stands now, it is a violation of your right of privacy if the hotel discloses to another (including Police) which room you are staying in, and all other personal information related to your registering. However, a hotel may disclose whether or not you are a guest at the hotel unless you expressly instruct them not to do so.
When it comes to your actual room rental, I feel the same privacy protection should extend.
Generally, if you are using your hotel room in an ordinary way, then you have a limited right of privacy in the room. However, if the hotel believes that you are engaging in illegal acts, then hotel management has the right to enter and search your room without your permission. Under no circumstances can the hotel authorize the police to conduct a search of your room without your consent or without a PROPER SEARCH WARRANT.
Of course, I will be watching this case and will report the Supreme’s ruling.
Our freedom and liberty make us great.
Hey! Officer Dan, you wanna look into my PERSONAL information, my room, car or wallet….get a court ordered SEARCH WARRANT!
Elizabeth Bagert Carpenter is a New Orleans based Drug Crimes and Firearms Defense Attorney.
Unjust Oppression of Sex Offenders on Halloween
By: Elizabeth Bagert Carpenter
Today is Halloween. This means that law enforcement officials are going to knock on the doors of many known sex offenders to remind them of laws that restrict their freedom today. For example, in Louisiana, registered sex offenders are not allowed to trick or treat, attend parties where children will be present or even decorate their home for Halloween. In other states, these restrictions include no driving after dark, no dressing up or leaving the house between 5 p.m. and 10:00 p.m. Other jurisdictions require registered sex offenders to turn their porch light off and post of sign “No candy or treats at this residence.”
I already know. Some of you are thinking, “So, they deserve this treatment – we must protect our children.” For many people, sex offenders are scarier than witches and vampires on Halloween. But there is no evidence that children are more likely to be abducted, assaulted, or abused on Halloween than on any other day. Crime data from the National Archive of Criminal Justice Data shows that there is no recorded increase in sex crimes before or after this holiday. Furthermore, many registered sex offenders are parents who are raising children — and no, they are not currently molesting their children. Most sex crimes are non-violent, isolated incidences, for which the person paid his debt to society and received counseling. Should they be restricted from participating in a family activity because of an error in judgement or mistake that they made years or decades ago? How do they explain to their child that he cannot put a pumpkin on the porch because Daddy will be put in jail? Am I the only person who thinks that it is insane that someone could be incarcerated in this country for placing a pumpkin on his front porch?
These laws are government mandated restrictions that suppress the freedom of hundreds of thousands of Americans. For the sake of preserving our constitution and the values upon which our country was formed, we should consider some of the realities of sex offender registry.
1) The crimes that can make a person a “sex offender” range from rape to sexting with a teen to, in some states, prostitution and public urination. The majority of sex offenses are non-violent crimes. Why are we not alerted when a murderer or armed robber has moved into our neighborhood?
2) Even for more serious crimes, the recidivism rates for sex offenders are extremely low—only about 5 percent commit another sex crime after being released from prison. The Department of Justice conducted a study and concluded that sex offender registry showed no demonstrable effect in reducing sexual re-offenses.
3) Since the start the registry, there has been a growing number of serious beatings, not only of sex offenders but sometimes of their family members or people with whom they live. Some confrontations have led to tragedies. Two sex offenders were murdered in Maine. In this case, the victims were no longer likely threats; one was simply a young man who at 17 had a 15-year-old girlfriend. Posting names, addresses and photographs on a sex offender registry is a risk to those on the list.
Within the next 2 weeks I am going to write a more in depth post about the facts and myths of sex offenders.
Until then, thanks for reading and have a Happy Halloween.
Elizabeth B Carpenter is a Criminal Defense attorney in New Orleans who defends those accused of sex crimes and advocates for the reformation of sex offender registration laws.
In 2012, Louisiana voters approved a state constitutional amendment that makes gun ownership a fundamental right. This places gun ownership on the same level as freedom of speech or freedom of religion. This law also requires that any challenges should be held to strict scrutiny which is the most stringent standard of judicial review. In other words, the law should favor the constitutional right or principle more than the government’s interest.
Since this amendment passed, many defense attorneys have challenged prosecutions for Felon in Possession of a Firearm La. R.S. 14:95.1 in state courts. The issue is whether the amendment applies to convicted felons who are barred from having firearms. District Judges in state courts seem to be divided on their interpretation of the law. A couple weeks ago, the Louisiana Supreme Court heard arguments addressing this question.
I am on the edge of my seat waiting for the justices to release their decision. Last year, I had a case where I challenged the prosecution of my client for being a convicted felon with a firearm. Unfortunately, the state court judge ruled against me. I think that he just did not feel comfortable making that call. One problem that I see with Louisiana’s statute restricting firearm possession with respect to felons is that the law is too broad. I also think that the sentencing range is too harsh — 10 to 20 years. As written, the law does not even permit someone who has been convicted of a small felony, such as theft of $500.00, to possess a rifle to go hunting.
I know that I will revisit this topic when the justices release their decision.
If you or a loved one has been arrested for a violation of a Louisiana gun law, it is imperative that you hire an attorney who defends firearm offenses. Contact attorney Elizabeth B Carpenter for a consultation.
On Tuesday, April 29, 2014 two convicted murderers were set to be given lethal injections for their crimes in Oklahoma. Clayton D. Lockett and Charles F. Warner were to be Oklahoma’s latest executions. As the clock drew down on Mr. Lockett he was supposed to be given his last meal, marched down to the execution chamber, strapped down, injected with a cocktail of lethal drugs and peacefully pass away….or so the authorities thought!
Normally, and in the recent past in the U.S., the practice of injecting a person with a fatal dose of drugs was pretty straight-forward and often provided a quick end to a troubled life. The inmate would first fall asleep as the first drug entered his circulatory system. As the second drug is administered, his respiratory system would slow to a halt. The last drug would stop the heart, rendering the person dead. In essence, this was a humane approach to deadly justice. That’s the way it is supposed to work, at least.
As the world and European countries have begun to shun the practice of capital punishment, these drugs have become increasingly harder to obtain and have led the states to increasingly dramatic attempts to procure replacements. Now, many of these drugs originate from dubious and secretive origins. To make matters worse, many courts have ruled that the prisons do not have to divulge the new supplier of these drugs, as was the case in Oklahoma. Furthermore, the drugs that are now being used are still in the experimental phase. Thus, the inmate is essentially a capital punishment guinea pig. This climate of secrecy and mystery makes it impossible to know whether these executions will comport with the Constitution’s ban on cruel and unusual punishment.
This brings us to the common argument of who cares if he experienced pain or agony. He still didn’t suffer as much as his victims. This common sentiment may be a form of justice to some people but it certainly is not law and order.
I think that it is possible to support the death penalty and still be morally disgusted by the idea of torturing a man to death, especially under circumstances where those in charge knew or should have known their conduct would violate the Eighth Amendment’s “Cruel and unusual Punishment” clause. If my beliefs are incorrect, then I ask those with such sentiments if, living in an uncivilized society is acceptable to them. Within the past 48 hours, the best statement I’ve come across on this issue is
“An eye-for-an-eye does not raise anyone up; it just brings us down to the level of the condemned.”
The parents of Clayton D. Lockett’s victim released a statement to the press just prior to the execution, “We are thankful this day has finally arrived and justice will finally be served.” I ask the question, “Has justice been served?” In Oklahoma’s haste to execute Lockett, this convicted murderer has been elevated to a level that he does not deserve and never would have achieved had Oklahoma respected the basic requirements of due process. Lockett’s name and photo have been all over the news. The horrible acts that he perpetrated have quickly been forgotten. He has become a victim of bureaucracy. Ten years from now, students in criminal justice courses may read about him in text books. Did Oklahoma provide these parents with any amount of closure to help them heal from this tragedy? It appears more as if the state betrayed these poor people.
This is not a pro or anti death penalty debate. Quite frankly, I am tired of arguing that issue. I think that the most important lesson for us to learn is that regardless of how we feel about capital punishment, due process and the Eight Amendment serve to protect us all: the victims, the convicted and society in general. If we are going to have a Death Penalty- we must do it right. Until this process becomes transparent, we are only hurting ourselves.
Ten Rules for Dealing with the Police — Know Your Rights!
The 4th amendment of the Bill of Rights provides for people and their property to have the right to be protected from unreasonable searches and seizures. Law enforcement must have probable cause to obtain a search warrant. Probable Cause is defined as clear facts and evidence to know that you are involved in criminal activity. Never let the police search your vehicle or home without a warrant — even if you feel as if you have nothing to hide.
1. Always be calm and polite. Don’t talk back or raise your voice.
2. You always have the right to remain silent. During police encounters, the best thing to do is not speak.
3. You have the right to refuse searches. You should make it very clear, “Officer, I do not consent to searches.” The officer is not required to tell you that you have the right to refuse a search. Never consent to a search. You may refuse a search of your car, house and personal items. Also you are not required to empty your pockets. Do not consent to a search even if you know that you are not in possession of something illegal.
4. Don’t get tricked. The police may lie to you. Don’t let threats or promises trick you into waiving your rights.
5. If you ever feel as if the officer is detaining you, ask if you are free to go. Calmly state, “Officer, are you detaining me or am I free to go?” This will establish that the encounter is not voluntary, which can help you later in court. If the officer does not answer the question, then you are free to go. If the officer interrogates you, say, “I am going to remain silent. I would like to see a lawyer.”
6. Don’t expose yourself to criminal activity in public.
7. Don’t run from the police! This is enough evidence to support “probable cause.”
8. Never touch a cop!
9. Pay close attention to detail and the order of events during a police encounter. Record the event either visually or audibly if you can. Immediately after, write down as much detail as possible – what were the officers statements, appearance, badge numbers, names… Look around for possible witnesses. You will need this information later to report and possible police misconduct.
10. Do not let police into your home without a signed search warrant from a judge. The only times warrants are not necessary are in cases of “hot-pursuit” and emergencies. If an officer comes to your door clearly say, “I cannot let you in without a warrant.”
Ms. Carpenter is a defense attorney in New Orleans who defends people accused of Drug Crimes throughout the state of Louisiana.
United States v. Cotton (2013): U.S. 5th Circuit Ruling
Never give a police officer permission to search your vehicle or home!
In February 2011, Marvin Cotton was driving his rental car along Interstate 10 in east Texas when, without changing lanes or slowing his speed as required by Texas law, he passed Lieutenant Tony Viator’s emergency vehicle parked on the side of the road. Having already received a tip from a fellow officer that Cotton might be carrying drugs, Viator conducted a stop and a lengthy detention, running license checks with dispatch and questioning separately both Cotton and his passenger about their itinerary and their reasons for travel. Viator’s suspicion grew when inconsistencies in Cottons’s and his passenger’s stories emerged, so he sought Cotton’s consent to search the rental car for drugs. An audio recording from the camera on Viator’s vehicle captured Viator’s solicitation of Cotton’s permission to search everything in the car. Though Viator first requested permission, he twice more asked whether he could search the car. The parties disputed Cotton’s response to Viator’s initial request, but as to the two reiterated requests, Cotton indisputably responded by limiting his consent to a search of his luggage only. Nevertheless, Viator meticulously searched the entire vehicle, ultimately discovering a small, plastic-wrapped bundle containing crack cocaine concealed in the vehicle door’s inner cavity. Cotton then made incriminating statements while trying to work out a deal with the officers. He filed a motion in the District Court to suppress the drugs and the statements. The motion was denied, and Cotton pleaded guilty to one count of possession with intent to distribute more than 280 grams of cocaine and was sentenced to 121 months in prison. He appealed the District Court’s denial of his motion to suppress, having reserved the right to do so in his plea agreement.
The Fifth Circuit reversed the denial of Cotton’s motion to suppress, and vacated his conviction and sentence. The Court concluded that Cotton had limited his consent to the search of his luggage only. Consequently, Viator’s prolonged and more extensive search of Cotton’s entire vehicle violated his Fourth Amendment right, and the drugs uncovered during the unauthorized search of the vehicle, and the incriminating statements made shortly thereafter should have been suppressed as fruits of the unlawful search.
Attorney Elizabeth B. Carpenter has defended almost every type of Drug Crime imaginable in New Orleans and South Louisiana.
Serving Clients in Orleans Parish, St. Tammany Parish, St. John Parish, St. James Parish, St. Bernard Parish, St. Charles Parish, Assumption Parish, Tangipahoa Parish, Terrebonne Parish, Plaquemines Parish and Jefferson Parish.
Boykinization is a term sometimes used to refer to reading a defendant his rights. It derives from a case, Boykin v. Alabama, 395 U.S. 238 (1969), decided by the United States Supreme Court. This case is most often cited for the principle that guilty pleas are enforceable only if taken voluntarily and intelligently. Due process requires an affirmative showing that a defendant who pleads guilty to a criminal charge has been apprised of his constitutional rights and has knowingly and voluntarily waived those rights. Such waiver cannot be presumed and reversible error is presented when the record does not disclose that the defendant voluntarily and understandingly entered his pleas of guilty.
In Boykin, the defendant was charged with common-law robbery. He pleaded guilty to the five indictments against him, and the trial court entered his plea of guilty.The jury sentenced defendant to death. On automatic appeal, the state supreme court affirmed the judgment, holding that a death sentence for robbery was not cruel and unusual punishment. On further appeal, the United States Supreme Court court reversed defendant’s conviction because the record contained no showing that his guilty plea was voluntary. The court held that an affirmative showing of voluntariness on the record was necessary in order to conclude that defendant had waived his constitutional rights.
If you or a loved one is facing criminal charges, contact attorney Elizabeth B. Carpenter for a consultation. Our firm prides itself on the results we achieve for clients.
By: Elizabeth B Carpenter
Serving Clients in Orleans Parish, St. Tammany Parish, St. John Parish, St. James Parish, St. Bernard Parish, St. Charles Parish, Assumption Parish, Tangipahoa Parish, Terrebonne Parish, Plaquemines Parish and Jefferson Parish.
The following cases are being argued before the U.S. Supreme Court this week:
BAILEY V. UNITED STATES
Can police officers may detain an individual incident to the execution of a search warrant when the individual has left the immediate vicinity of the premises before the warrant is executed.
CHAIDEZ V. UNITED STATES
In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), this Court held that criminal defendants receive ineffective assistance of counsel under the Sixth Amendment when their attorneys fail to advise them that pleading guilty to an offense will subject them to deportation. The question presented is whether Padilla applies to persons whose convictions became final before its announcement.
FLORIDA V. JARDINES
Is a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is a Fourth Amendment search requiring probable cause?
FLORIDA V. HARRIS
Is an alert by a well-trained narcotics detection dog certified to detect illegal contraband insufficient to establish probable cause for the search of a vehicle?
Criminal Defense Attorney New Orleans
Elizabeth B. Carpenter, Esq. – Serving clients in Orleans, Jefferson, Terrebonne, Tangipahoa, St. Bernard, St. Charles, St. Tammany, St. John, Assumption and Plaquemines Parishes.
Life-without-parole sentences for juveniles declared unconstitutional by Supreme Court
Life-without-parole sentences for juveniles are unconstitutional, according to a 5-4 opinionMonday morning from the U.S. Supreme Court that involved a 14-year-old convicted of murder in Alabama. Evan Miller was convicted of arson and murder in Lawrence County, but his life without any possibility of parole sentence violates the Constitutional protection against cruel and unusual punishment, according to the justices.
The opinion was written by Justice Elana Kagan. The ruling, which also includes a case from Arkansas, is another in a line of decisions that don’t allow the criminal justice system to give up hope that the youngest criminals can be rehabilitated.
“By requiring that all children convicted of homicide receive lifetime incarceration without possibility of parole, regard- less of their age and age-related characteristics and the nature of their crimes, the mandatory sentencing schemes before us violate this principle of proportionality, and so the Eighth Amendment’s ban on cruel and unusual punishment,” according to the opinion that was just released this morning.
The Campaign for the Fair Sentencing of Youth, which advocates for an end to lifetime mandatory sentences for youth, said that Louisiana has 332 youths serving life terms. That’s the third highest in the United States, behind only Michigan and Pennsylvania, according to the group.
“(The decision) will impact Louisiana significantly because we do have mandatory life sentences for juvenile offenses,” said Dana Kaplan, executive director of the Juvenile Justice Project of Louisiana. Kaplan, though, is reading the Supreme Court ruling, just out this morning, and says she’ll have a more thorough analysis later.
The four justices that dissented include Chief Justice John Roberts, Justice Samuel Alito, Justice Clarence Thomas and Justice Antonin Scalia.