Wednesday, January 21, 2015

"Unnecessarily prolonged" traffic stops for purposes of using drug sniffing dogs.

The US Supreme Court is taking up a case related to the use of a drug-sniffing dog without a search warrant during a routine traffic stop. The Court has previously ruled that this kind of police action is permissible so long as the stop is not "unnecessarily prolonged" by the use of the drug dog.

This new case, Rodriguez v. United States, will address the issue of how long is too long.
The case arose in 2012 when a Nebraska police officer, who happened to have his K-9 dog in the car with him, stopped Dennys Rodriguez for swerving once towards the shoulder of the road. After questioning Rodriguez and issuing him a written warning for that traffic infraction, the officer sought permission to walk his drug-sniffing dog around the outside of Rodriguez’s vehicle. When Rodriguez refused to grant permission, the officer made him exit the vehicle and waited for back-up to arrive. Roughly eight minutes later, with a second officer now on the scene for support, the police dog circled the vehicle and gave an “alert” for illegal drugs. A subsequent search turned up a bag of methamphetamine.

Despite the fact that drug dogs turn up false positives as much as 74% of the time and are really nothing more than the police consciously or subconsciously motivating their dog to alert when there's absolutely nothing there, Courts continue to allow this unreliable, uncorroborated, non-uniform and un-certified practice to continue to manufacture probable cause for a search without a warrant. 
Also, the vast majority of drug dogs are allegedly trained to detect multiple illicit substances, such as cocaine, heroin, meth, and marijuana. Now that the tide across the country is rapidly moving toward legalization of marijuana the usefullness of drug dogs evaporates, as they cannot be retrained to ignore marijuana and look for other drugs instead. This would mean a massive undertaking of replacing virtually every drug dog on the force at the same time.

At a cost of up to $50,000.00 per drug dog which will lead to a violation of your rights of up to 74% of the time this is a bad policy and use of funds. The only logical decision is to end this process. 

Do Grandparents have standing to pursue custody of a grandchild?

Attorney Joseph Caraciolo from Harrisburg has an excellent blog post up on the complexities involved in grandparents filing for custody.
"Does Grandmother who has been involved in her Grandchild’s life since birth, who has been a babysitter and substantially aided in raising the child, including periods when the Mother and Child lived with her, but has not had custody of the child have standing to bring a claim for primary physical custody?  The Pennsylvania Superior Court recently reviewed the requirements for a Grandparent’s standing to bring an action for custody for a Grandchild in the case of D.G. and D.G. v. D.B. and G.D., 2014 Pa. Super. 93, filed May 2, 2014."
Read more here

Wednesday, January 14, 2015

Protection from Abuse - the Pennsylvania Restraining Order

Protection from abuse (PFA) orders (the Pennsylvania version of a restraining order) is an order directing a person's conduct toward another. It is commonly employed to prevent abusive conduct, harassment or other unwanted behaviour.

Unlike some other states there are only certain categories of people who are permitted to file for a PFA with the courts. This typically includes immediate family members, sexual or intimate partners, and household members. It does not extend to neighbours, co-workers, or others you do not have a personal relationship with. 23 PA.C.S.A. 6102(a).

The PFA can take many forms. The most drastic form is that of a "no contact" PFA, which means the parties are not allowed to have any contact with each other whatsoever. The order may alternatively provide that the parties may have certain specified contact - such as for custody exchanges if there are children involved - or may provide for the eviction of one party from the joint home, or provide immediate support to a dependent spouse. The court has wide discretion in how to fashion the PFA.

As the PFA is a civil matter the evidentiary standard is simply by a preponderance of the evidence. This is much lower than the criminal law standard of beyond any reasonable doubt.

Monday, January 12, 2015

Sexual Offender Moral Panic

Pennsylvania statute 42 Pa.C.S. 9799.32(1) creates a three tier system for sexual offender registration. The tiers require different time periods for registration and are based on the severity of the crime allegedly committed. 

The first tier requires a 15 year sex offender registration. This means the person must register their address with the state police and if they plan to move will have to update same. The person will be put on a publicly available website and their criminal history check will flag him/her as a sex offender. Crimes included under the first tier are lower level sex offenses, such as:
  • 18 Pa.C.S. § 2902(b) (relating to Unlawful Restraint).
  • 18 Pa.C.S. § 2903(b) (relating to False Imprisonment).
  • 18 Pa.C.S. § 2904 (relating to Interference with Custody of Children).
  • 18 Pa.C.S. § 2910 (relating to Luring a Child into a Motor Vehicle or Structure).
  • 18 Pa.C.S. § 3124.2(a) (relating to Institutional Sexual Assault).
  • 18 Pa.C.S. § 3126(a)(1) (relating to Indecent Assault).
  • 18 Pa.C.S. § 6301(a)(1)(ii) (relating to Corruption of Minors).
  • 18 Pa.C.S. § 6312(d) (relating to Sexual Abuse of Children).
  • 18 Pa.C.S. § 7507.1. (relating to Invasion of Privacy).
  • 18 U.S.C. § 1801 (relating to Video Voyeurism).
  • 18 U.S.C. § 2252(a)(4) (relating to Certain Activities Relating to Material Involving the Sexual Exploitation of Minors).
  • 18 U.S.C. § 2252A (relating to Certain Activities Relating to Material Constituting or Containing Child Pornography).
  • 18 U.S.C. § 2252B (relating to Misleading Domain Names on the Internet).
  • 18 U.S.C. § 2252C (relating to Misleading Words or Digital Images on the Internet).
  • 18 U.S.C. § 2422(a) (relating to Coercion and Enticement).
  • 18 U.S.C. § 2423(b), and (c) (relating to Transportation of Minors).
  • 18 U.S.C. § 2424 (relating to Filing Factual Statement about Alien individual).
  • 18 U.S.C. § 2425 (relating to Use of Interstate Facilities to Transmit Information about a Minor).
Second tier offenses require a 25 year registration and include:
  • 18 Pa.C.S. § 3011(b) (relating to Trafficking in Individuals).
  • 18 Pa.C.S. § 3122.1(a)(2) (relating to Statutory Sexual Assault).
  • 18 Pa.C.S. § 3124.2(a.2) and (a.3) (relating to Institutional Sexual Assault).
  • 18 Pa.C.S. § 3126(a)(2), (3), (4), (5), (6) or (8) (relating to Indecent Assault).
  • 18 Pa.C.S. § 5902(b.1) (relating to Prostitution and related Offenses).
  • 18 Pa.C.S. § 5903(a)(3)(ii), (4)(ii), (5)(ii) or (6) (relating to Obscene and other Sexual Materials and Performances).
  • 18 Pa.C.S. § 6312(b) and (c)(relating to the Sexual Abuse of Children).
  • 18 Pa.C.S. § 6318 (relating to Unlawful Contact with Minor).
  • 18 Pa.C.S. § 6320 (relating to Sexual Exploitation of Children).
  • 18 U.S.C. § 1591 (relating to Sex Trafficking of Children by Force, Fraud, or Coercion).
  • 18 U.S.C. § 2243 (relating to Sexual Abuse of a Minor or Ward).
  • 18 U.S.C. § 2244 (relating to Abusive Sexual Contact) where the victim is 13 years of age or older but under 18 years of age.
  • 18 U.S.C. § 2251 (relating to Sexual Exploitation of Children).
  • 18 U.S.C. § 2251A (relating to Selling or Buying of Children).
  • 18 U.S.C. § 2252(a)(1), (2) or (3) (relating to Certain Activities Relating to Material Involving the Sexual Exploitation of Minors).
  • 18 U.S.C. § 2260 (relating to Production of Sexually Explicit Depictions of a Minor for Importation into the United States).
  • 18 U.S.C. § 2421 (relating to Transportation Generally).
  • 18 U.S.C. § 2422(b) (relating to Coercion and Enticement).
  • 18 U.S.C. § 2423(a) (relating to Transportation of Minors).
Anyone convicted of a third tier offense is subject to a lifetime registration. Offenses under the third tier include:
  • 18 Pa.C.S. § 2901(a.1) (relating to Kidnapping).
  • 18 Pa.C.S. § 3121 (relating to Rape).
  • 18 Pa.C.S. § 3122.1(b) (relating to Statutory Sexual Assault).
  • 18 Pa.C.S. § 3123 (relating to Involuntary Deviate Sexual Intercourse).
  • 18 Pa.C.S. § 3124.1 (relating to Sexual Assault).
  • 18 Pa.C.S. § 3124.2(a.1) (relating to Institutional Sexual Assault).
  • 18 Pa.C.S. § 3125 (relating to Aggravated Indecent Assault).
  • 18 Pa.C.S. § 3126(a)(7) (relating to Indecent Assault).
  • 18 Pa.C.S. § 4302(b) (relating to Incest).
  • 18 U.S.C. § 2241 (relating to Aggravated Sexual Abuse).
  • 18 U.S.C. § 2242 (relating to Sexual Abuse).
  • 18 U.S.C. § 2244 where the victim is under 13 years of age (relating to Abusive Sexual Contact).
Juveniles can also be subject to registration if they are adjudicated under similar charges. 

In addition to registration, the subject also must report in person to the police on an ongoing and regular basis for questioning. It can be as limited as once a year for tier one subjects or as much as four times a year for tier three offenders. 

Although the concern over sexual offenders is understandable, it is not based on logic or rational thought, but on an emotional response to how horrifying the thought of sexual violence is. The overall rate of sexual violence has declined significantly even in just the last 20 years. 

The spectre of online child predation is also overblown in relation to the actual threat level. 
The Internet may not be such a dangerous place for children after all.
A task force created by 49 state attorneys general to look into the problem of sexual solicitation of children online has concluded that there really is not a significant problem.
Additionally, the recent moral panic about college rape is also ridiculous and unsupported by evidence, as a college campus is a far safer environment for young women than other locations. 
“Non-student females are victims of violence at rates 1.7 times greater than are college females... Even if the definition of violence were limited to sexual assaults, these crimes are more pervasive for young adult women who are not in college. [emphasis added]
Many jurisdictions are even seeking to lower the burden of proof for a finding of "guilt" on college campuses. Such actions do a great disservice to everyone who can be accused of a criminal act. 

Finally, the off-repeated myth that sexual offenders are more likely to reoffend is also not supported by evidence. In fact, aside of murder, sex offenses are the least likely to be repeated. 
Persons who commit sex offenses are not a homogeneous group, but instead fall into several different categories. As a result, research has identified significant differences in reoffense patterns from one category to another. Looking at reconviction rates alone, one large-scale analysis (Hanson and Bussiere, 1998) reported the following differences:

  • child molesters had a 13% reconviction rate for sexual offenses and a 37% reconviction rate for new, non-sex offenses over a five year period; and
  • rapists had a 19% reconviction rate for sexual offenses and a 46% reconviction rate for new, non-sexual offenses over a five year period.
  • It is noteworthy that recidivism rates for sex offenders are lower than for the general criminal population. For example, one study of 108,580 non-sex criminals released from prisons in 11 states in 1983 found that nearly 63% were rearrested for a non-sexual felony or serious misdemeanor within three years of their release from incarceration; 47% were reconvicted; and 41% were ultimately returned to prison or jail (Bureau of Justice Statistics).
    Sexual assault is a terrible crime, which requires serious punishment. But decisions as to how to deal with such acts must be based on fact and reason, not on emotional judgments.