Strange Crime of the Week

Posted on January 13, 2012 by Rob McKinney

It's Friday the Thirteenth so I thought the strange crime of the week would be a good topic.  A L.A .County Sheriff's deputy was arrested for smuggling drugs into the county jail. How is why it's strange. The deputy put heroin into a burrito and brought into the jail. Evidently , he was already under investigation . The deputy was arrested and dismissed from the department. It is illegal under Tennessee to bring contraband such as drugs into a penal facility in Tennessee . It carries 3 to 6 years in jail. I wonder if he got the burrito at Taco Bell.

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Is the Smell of Marijuana Enough to Seach Your Car ?

Posted on January 12, 2012 by Rob McKinney

A warrantless search of a car or truck in Tennessee is usually prohibited , however there are exceptions to this rule. If a police officer can demonstrate probable cause that a car might contain marijuana , a police officer can search a car or truck. The big question is whether the smell of marijuana is enough to justify a search of a car in Tennessee.

Tennessee Courts have upheld a warrantless search of a car  based on the smell of marijuana alone.  One question is  it the smell of raw marijuana or burnt marijuana . Does the smell of marijuana limit the search to the interior of the car ?

Using the smell of marijuana should always be contested in a automobile search. One can test the officer in several ways;

  • What was his training in the odor of marijuana ?
  • What was his experience ?
  • Was there any other evidence of marijuana use found ?

Time and time again I see that there is no evidence recovered of burnt marijuana after the traffic stop. How do you combat the officer's testimony ? Get an independent witness to smell the car.. The Fourth Amendment is constantly being eroded and the smell is enough to search a car.

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New Reckless Endangerment Law Goes Into Effect

Posted on January 9, 2012 by Rob McKinney

Nashville's WLPN radio has been reporting on some of the new criminal laws that went into effect at the start of the New Year . Tennessee has created a new class of reckless endangerment charges. Senator Mark Norris spearheaded the new law based upon the drive by shootings that occur in Memphis, Tn. The new law makes it a Class D felony when a firearm is discharged into an unoccupied home and it is a Class C felony if the home is occupied. The price tag for the new law is just $59,000.00 per case. This is just one more example of passing laws for political capital.

A Nashville assistant district  attorney commented in the story that he did not think it would make a difference in gang related drive by shootings. Tennessee does not need to put a new criminal law on the books. Just use the ones we have. If someone shoots into a occupied house , it is called attempted first or second degree murder. It appears Tennessee tries to solve every problem by creating a new criminal law . Tennessee is fast becoming overcriminalized .The Wall Street Journal reports that there are over 4500 federal criminal laws and over 300,000 regulations that carry criminal penalties. The article further reports that the law is eroding the criminal intent element that is required in most crimes . What new criminal laws are on the horizon in Tennessee ?

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New Domestic Violence Laws Proposed For Tennessee

Posted on January 6, 2012 by Rob McKinney

Tennessee Governor Bill Haslam announced a new plan to increase punishment for certain crimes . One of these proposals is to increase jail time for those convicted of domestic violence.Gov. Haslam based his plan on a recent study that ranked Tennessee fifth in the nation in the  rate its women are murdered by men. The plan seeks mandatory minimum sentences of 45 days in jail for a second domestic violence conviction and a minimum 120 days in jail for a third or more conviction.

Society needs to address the domestic violence issue . However mandatory minimum sentencing is not the answer. Most politicians want to be tough on crime and enact tough laws to make them look good to the public. Two things happen when the government enacts mandatory minimum punishment. First , it takes discretion out of the judges hands in sentencing. By that , most judges want to make a difference and try to be creative with sentencing alternatives like domestic violence counseling. Mandatory minimum punishment takes that away from the court. Secondly , mandatory punishment gives the district attorneys took much power to cram down plea bargains to those accused of a crime . Take a deal avoid jail or go to trial and if you lose visit the jail. There is to much potential for abuse  in making mandatory minimums the answer to all that's wrong in the criminal justice system.

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The Real Truth About Forensic Science

Posted on January 3, 2012 by Rob McKinney

The image above is a lab tech sorting blood alcohol samples into a rack.  I now know why that's important due to a class I took last year. DUI lawyer Justin McShane posted an article about the details of the class on gas chromatography on his blog. The point that Mr. McShane makes is that great DUI lawyers need to understand the ins and outs of forensic science. All too often we as criminal defense attorneys look at a one page blood alcohol report and cringe with fear.Thanks to the class that Mr.McShane started. Criminal defense lawyers don't need to cower.

The link to the article lays out the agenda of the program. Attorney Machine teaches the program with real live scientists and attorney Josh Lee. . Today's post is to thank him , Josh and the teaching staff for providing a great learning experience.

Disclaimer . I graduated from the course last June . I wish I would have paid more attention in science class in my younger days. So do the lab techs. Just ask one of them to explain Van Deemter's curve.

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