Monthly Archives: May 2015

Have A Safe And Wonderful Memorial Day Weekend! Try To Avoid Chasing Bears With Dull Hatchets

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In what I would call the world’s dumbest criminal mastermind, a fine upstanding American citizen was arrested a couple weeks ago by the North Adams Police Department for chasing bears through the woods drunk with a dull hatchet.  I am not making this up.

On May 11, the North Adams Police Department made the following public service announcement on their Facebook page:

“The North Adams Police Department is urging everyone to NOT chase bears through the woods with a dull hatchet, drunk. Yes that really did happen tonight. We understand there are bears in the area. If you see a bear, LEAVE IT ALONE and call us. We certainly don’t need anyone going all Davy Crockett chasing it through the woods drunk with a dull hatchet. It is just a bad idea and not going to end well. It will however, certainly end you up in jail…which it did. The hatchet man was taken into protective custody due to his incapacitation from the consumption of alcoholic beverage. We are still trying to figure out what his end game was. Any thoughts on what he was going to do if he did locate it? We would certainly like to hear because we have no idea.”

First off, drunk or sober, Davy Crockett would not need a hatchet to take on one bear or multiple bears.  And second, I think this guy’s end game was to have one hilarious drunk story or one hilarious eulogy.  Either way, this guy is/was a complete idiot!

This story made me think of what happens when you mix too much alcohol over a long holiday weekend.  With the Memorial Day Weekend Holiday upon us, just wanted to remind everyone who is traveling, camping, fishing, boating, etc., BE SAFE AND ALWAYS UTILIZE A DESIGNATED DRIVER!  This includes boating!  This is a huge weekend for law enforcement cracking down on OVIs!

Besides utilizing at all times a designated driver, do not mix guns, knives, dull hatchets, or any other weapon with alcohol.  That poor bastard in North Adams got lucky that he was not killed.  And to prove my point even further, please enjoy this video entitled “Drunk Guy Shots Shotgun.”

Do not be these people this weekend!  Celebrate the memory of our brave men and women of the United States Armed Forces in a safe manner.

But if you find yourself in a pinch, remember to always speak with an attorney before you speak to the police!

Be safe and Happy Memorial Day!

Detouring From The Traffic Stop Mission: Why Can’t Floyd The Drug Dog Sniff A Car?

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Last month, the United States Supreme Court in Rodriguez v. United States, tackled the issue of whether or not a police officer can prolong a typical traffic stop to allow a police drug dog to sniff around a person’s vehicle.  Long story short, K-9 officers are not going to be too happy about this ruling!

The nuts and bolts of this case are as follows:

A K-9 officer observed Rodriquez’s car drift over the shoulder line and then jerk back over to the roadway.  Seeing an obvious moving violation, the officer stopped Rodriquez and proceeded with his traffic stop.  Rodriquez explained that he jerked his vehicle to avoid a pothole.  (As a resident of Dayton, I feel for Rodriquez’s pain when it comes to potholes!  Half the roads look like a demilitarized zone in this town!)

The officer asks for Rodriquez’s license, registration, proof of insurance, and requests for Rodriquez to accompany him to his police cruiser.  Being a seasoned alleged drug trafficker, Rodriquez declines the officer’s request and remains in his vehicle.  Good news for Rodriquez is his record check comes back clean.  But being diligent officer and staying true to his traffic mission, the officer asks for Rodriquez’s passenger’s information to run a records check.  The passenger complies and the officer begins a record check back at his cruiser.  And you won’t believe this….the passenger’s record comes back clean!  Two for two!  Rodriquez might get out of this one with his drugs!  But don’t hold your breath.

The officer then walks back to Rodriquez’s vehicle, most likely with a grumpy face, and issues Rodriquez a warning for the moving violation.  But knowing that something was not right and feeling his police sense tingle, the officer asked Rodriquez if his drug dog Floyd could walk around his car.  Maybe to pick up the smell of drugs or maybe hoping Floyd would mark his territory on Rodriquez’s vehicle.  In either event, Rodriquez declined this invitation and was subsequently ordered out of the vehicle.  Well I guess Floyd did not have to urinate because he sniffed out a large bag of methamphetamine.  With his grumpy face turning into a smiley face, the officer arrested Rodriquez for possession of illegal drugs.

Eventually this case makes it way up to the U.S. Supreme Court where it was sliced and diced by the Justices.  Writing for the Court, Justice Ginsburg stated that a traffic stop “can become unlawful if it is prolonged beyond the time reasonably required to complete the traffic stop mission.”   In other words, a police officer cannot prolong a traffic stop just to perform a dog-sniffing drug search.

Sounds great to me!  But, what exactly is the traffic stop mission and why the hell can’t Floyd and his fellow drug dogs be part of that mission?

Justice Ginsburg states that an officer’s mission includes “ordinary inquiries incident to the traffic stop.”  These inquires “involve checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance.  A dog sniff, however, “is a measure aimed at detecting evidence of ordinary wrong doing.”  The Court eventually concludes with “the critical question then is not whether the dog sniff occurs before or after the officer issues a ticket, but whether conducting the sniff prolongs the stop.”

Beyond the reasonable time requirement during a traffic stop, I believe the Court took a huge step in further recognizing that a drug dog is a very powerful tool for drug detection and we must treat a drug dog sniff as a search.  The bottom line is that a highly trained drug dog is no different from GPS trackers or wiretapping.  As Justice Ginsburg states very clearly in her opinion, drug dogs are used for detecting evidence of wrong doing.

Wanting to dig a little further about how powerful a dog’s nose can truly be, I did a basic Google search about the subject.  After reading a few articles, I came across an article discussing some unexpected things a dog can smell.  You can read it in full at http://listverse.com/2013/01/17/10-unexpected-things-that-dogs-can-smell/

With that said, I give you the Top Ten Unexpected Things That Dogs Can Smell! (You will be missed David Letterman.)

  1. Bacteria – Bee keepers use dogs to detect diseased beehives with deadly bacteria before that hive can spread it to healthy beehives. Honey….I would only smell honey.
  1. Counterfeit DVDs – Dogs are trained to detect polycarbonate, a key component of all DVD disks. In turn, these trained dogs help stop the Southeast Asia DVD counterfeiting trade.  Not too happy about these dogs, the Malaysian DVD Pirates (let that one sink in for a moment) put a $30,000 bounty on the dogs.
  1. Water Search Dogs – Dogs are trained to detect, locate, and recover drowned bodies! Frickin Drowned Bodies!  Bodies at the bottom of a lake or riverbed….their noses can pick that scent up!  They can do this by shore, boat, or while swimming in the water to track the drowned body scent to the strongest point.
  1. Ambushes and Vietcong Equipment – Beyond detecting the enemy during the Vietnam War, they were also able to detect enemy tunnels, weapons, and booby traps. And to alert U.S. Troops of said tunnels, weapons, and booby traps, these dogs were trained not to bark.  Instead, they were trained to raise the hairs on their necks, cross their ears, or walk on their hind legs!  I cannot even get my two dogs to sit still for five seconds let alone not bark at every damn thing that is outside in the yard.
  1. Diabetes – Dogs are now trained to alert their diabetic owners whenever their blood sugar rises to dangerous levels. And during a diabetic attack, some are trained to fetch an insulin kit.  These dogs put Lassie to shame.
  1. Whale Poop – I will admit this one is kind of weird, but if you are a scientist into whale poop a dog is truly your best friend. Apparently, whale poop is used to monitor the whale’s health/diet.  The problem is that it sinks in about 30 minutes after the whale drops his deuce.  And that is where the whale poop dog comes into play.  These dogs can trace the whale poop scent from more than one mile out and lead the scientists to the poop.
  1. Bed bugs – A dog’s nose is so useful that even bug exterminators have jumped on board to use dogs to detect bed bugs throughout a house. And get this; their accuracy rate is about 96 percent!
  1. Minerals and Ores – Need to find some valuable minerals and ores? Well look no further than a dog’s nose!  The government of Finland financed a program that taught dogs to detect valuable sulphide rocks.  So, if you find yourself in Finland looking for sulphide rocks, make sure to rent a sulphide rock dog because according to the local Fin population these dogs are pretty frickin sweet.
  1. Ovulation in Cows – That is right ladies and gentlemen, dogs can detect when a cow is in heat! Bull semen, for all you city types, is very expensive and there are not too many bull semen collection centers out there in the farmlands.  In addition, most cows are artificial inseminated.  Thus, to avoid the misuse of expensive bull semen, dogs help farmers know exactly when their cows are in heat.

And the number one unexpected thing dogs can smell is………….

  1. Cancer – You read it correctly! Dogs are trained to detect breast and lung cancer, to only name a few.  These cancer cells have a distinct smell from their waste product that is exhaled when a cancer patient breathes.  From the patient’s breath, these dogs lock into those scents and alert the patient if they smell cancer.

So why did I list all of these things about what dogs can be trained to detect?  Well the answer is really two fold.  First, I think dogs are amazing animals and I wanted to give them a shout out for all the good they do for mankind.  Second, I really wanted to drive home that a dog’s nose is a very powerful tool, especially for law enforcement purposes.  I believe that the Justice’s recognized this by ruling that a drug dog sniffing around a vehicle is not part of the traffic stop mission if it prolongs the stop.

As always, do not consent to police searches of your vehicle!  But remember to be polite and comply with police officers.  That is for both your safety and the officer’s safety.  AND DO NOT ADMIT TO ANY WRONG DOING!  Always….Always…Always call an attorney before talking with a police officer!

Giving Police Officers the One Finger Salute – How Disorderly Can A Single Finger Be?

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I am going to be honest; the one finger salute is by far one of my favorite symbols for expressing various emotions.  And as a Cleveland Browns fan, I utilize the one finger salute as a sign of frustration every Sunday afternoon during the football season.  But that comes with the territory of being a Browns fan.

The use of the middle finger in human culture is nothing new.  The gesture has been around since the time of Aristotle and was used throughout the ancient Greek and Roman times, the Middle Ages, and eventually modern society.  Society’s continued use of the middle finger, however, seems to have made a once very obscene gesture into an everyday common occurrence.  We see movie stars, professional athletes, and even politicians use the middle finger as a sign of jest versus a sign of obscenity.   In a video from 2005, former president George W. Bush is shown flicking off the camera after he jokingly told his aide to leave him alone.  You can hear the aides and President Bush laughing about giving the camera guy the middle finger.  President Bush states that it is his “one finger victory salute.”

Now that we are in the age of social media, we are inundated with pictures and videos of individuals throwing up the middle finger as a sign of jest and comedy.  Whether it is through Facebook, Instagram, or any other social media outlet, society sees the middle finger gesture on a daily basis.  Some pictures and videos can be construed as being obscene, but for the most part they are funny.

Setting the comic relief aside, using the middle finger in public towards private individuals or even government authority can, more often than not, lead to a citation or arrest for Disorderly Conduct.  Before going any further, I believe it would be helpful to take a quick look at the Disorderly Conduct Statute.

Disorderly Conduct, under R.C. 2917.11 states:

(A) No person shall recklessly cause inconvenience, annoyance, or alarm to another by doing any of the following:

(1) Engaging in fighting, in threatening harm to persons or property, or in violent or turbulent behavior;

(2) Making unreasonable noise or an offensively coarse utterance, gesture, or display or communicating unwarranted and grossly abusive language to any person;

(3) Insulting, taunting, or challenging another, under circumstances in which that conduct is likely to provoke a violent response;

(4) Hindering or preventing the movement of persons on a public street, road, highway, or right-of-way, or to, from, within, or upon public or private property, so as to interfere with the rights of others, and by any act that serves no lawful and reasonable purpose of the offender;

(5) Creating a condition that is physically offensive to persons or that presents a risk of physical harm to persons or property, by any act that serves no lawful and reasonable purpose of the offender.

As you can tell by reading this statute, it is very easy to see how the use of the middle finger or similar obscene language could be construed into the Disorderly Conduct statute.  Now you may be thinking to yourself how can the government criminalize this type of language and not violate my right to free speech under the First Amendment?  Is it not my right to express myself as I see fit if I want to protest the government or the police?  Those issues were put to test with the Ohio Supreme Court and the United States Supreme Court.  Specifically, when does free speech become unprotected fighting words in the context of police interaction?

In the hallmark case of Cincinnati v. Karlan, the Ohio Supreme Court was asked to determine if Section 901-d4 of the Cincinnati Code of Ordinances only punished spoken words. (The ordinance at issue is very similar to R.C. 2917.11, stated above).  In Karlan, Defendant Karlan was asked by a uniformed police officer if he had permission to tamper with an automobile parked in a police impoundment area.  Karlan shouted back at the police officer, “I hate all you f*cking cops, get out of my way you f*cking prick-ass cops.”  Soon after this dialogue, Karlan was arrested under Section 901-d4 of the Cincinnati Code of Ordinances.

At the time of Karlan’s arrest, there was much debate over the definition of protected speech.  The United States Supreme Court laid this to rest with a majority of opinions finding that “no matter how rude, abusive, offensive, derisive, vulgar, insulting, crude, profane or opprobrious spoken words may seem to be, their utterance may not be made a crime unless they are fighting words defined by that tribunal.”

Based on this rationing, the Ohio Supreme Court found that “persons may not be punished under Section 901-d4 of the Cincinnati Code of Ordinances, for speaking boisterous, rude, or insulting words, even with the intent to annoy another, unless the words by their very utterance inflict injury or are likely to provoke the average person to an immediate retaliatory breach of the peace.”  Unfortunately for Karlan, his words towards the police officer were construed to be fighting words, which are unprotected speech.

Even after the Karlan case, there have been additional cases that address the same issue raised in Karlan, but not too many deal with the use of the middle finger.  In looking for a case specifically dealing with the use of the middle finger towards police officers, I came across a case out of the U.S. Court of Appeals for the Second Circuit where the court spoke in detail about the use of the middle finger towards a police officer and how it relates to Disorderly Conduct.  Now, this case has been circulating on various website pages and social media pages where the commentators not only talk about the case but on some levels encourage people to extend the middle finger to police officers because there is no fear of being charged with Disorderly Conduct!  Hey, if it is on the internet it must be true, right?!?  The case in question is Swartz v. Insogna.

In Swartz v. Insogna, John Swartz was driving with his wife on their way back from a game; John was in the passenger seat.  While John’s wife was driving, he noticed a police cruiser using a speed detecting radar device at an intersection.  Not liking what the police officer was doing, John extended his right arm outside the passenger side window and extended his middle finger over the car’s roof.  John and his wife made it back home, got out of their vehicle, and then noticed police car coming up the street and eventually stopping at their house.  John and Officer Insogna went back and forth over whether or not Officer Insogna had the right to stop them, which eventually led to the arrest of John for Disorderly Conduct.  This charge was ultimately dismissed on speedy trial grounds.  John and his wife soon after file suit against the police department and Officer Insogna.

In his deposition, Officer Insogna stated that after John gave him the middle finger, he decided to follow the car “to initiate a stop on it.”  The reasons for the stop are (1) John’s gesture “appeared to me he was trying to get my attention for some reason,” (2) “I thought that maybe there could be a problem in the car.  I just wanted to assure the safety of the passengers,” (3) “I was concerned for the female driver, if there was a domestic dispute.”  Officer Insogna further stated in his deposition that he did not observe any indication of a motor vehicle violation.

Needless to say, the U.S. Court of Appeals in the Second Circuit did not buy what Officer Insogna was stating in his depositions.  The Court stated:

“Perhaps there is a police officer somewhere who would interpret an automobile passenger’s giving him the finger as a signal of distress, creating a suspicion that something occurring in the automobile warranted investigation.  But the nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness.  This ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity.  Surely, no passenger planning some wrongful conduct toward another occupant of an automobile would call attention to himself by giving the finger to a police officer.  And if there might be an automobile passenger somewhere who will give the finger to a police officer as an ill-advised signal for help, it is far more consistent with all citizens’ protection against improper police apprehension to leave that highly unlikely signal without a response than to lend judicial approval to the stopping of every vehicle from which a passenger makes that gesture.”

Based on this, the Court found the stop unlawful which would negate the Disorderly Conduct arrest.  Although the Court did a great analysis of the use of the middle finger towards a police officer, this analysis mainly went to reasonable suspicion to stop a vehicle, not to the Disorderly Conduct charge.  The Disorderly Conduct charge as it related to the use of John’s middle finger, the Court simply stated “such a gesture alone cannot establish probable cause to believe a disorderly conduct violation has occurred.”

Looking at the Karlan case, I do not believe giving the middle finger towards a police officer in certain situtations will rise to the level of unprotected fighting words.  And the very popular Insogna case circulating the internet lends very useful arguments to combat a Disorderly Conduct charge based on the use of the middle finger.  But, what I believe and what these internet commentators are preaching will not stop a police officer from placing you under arrest for Disorderly Conduct if you give him the middle finger.  Bottom line is that when facing a charge of Disorderly Conduct for giving a police officer the middle finger, you will have to fight the charge and most likely fight that charge at the appellate level to be acquitted.

So, if you want to avoid an arrest and costly legal bills, I would caution you from extending your middle finger towards a police officer.  However, if you just cannot resist that urge to show your frustration, make sure your attorney is on speed dial because you are going to need one!