Archive for the ‘Appeals’ Category

Nervous behavior alone is not enough for pat-down search

Wednesday, February 1st, 2017

The MN Court of Appeals reversed a Felony 5th Degree Drug conviction where the officer discovered drugs after searching the defendant. The officer’s basis for the pat-search was largely based on the defendant acting nervous and placing his hands in his pockets. The Court held that the officer did not have “reasonable, articulable suspicion of criminal activity,” the legal requirement needed before an officer can conduct a protective pat-down search for weapons.

Although I often see police reports describing nervous and fidgety behavior as a basis some suspected criminal wrongdoing, most people are rightfully nervous when confronted by law enforcement. Regardless of guilt, being questioned or stopped by law enforcement can be stressful, and the level of nervousness varies greatly from person to person. From legitimate anxiety issues to lacking experience with the law, there is no right or innocent body language or behavior given the stress of such an encounter. For these reasons, MN courts are reluctant to find that nervous behavior meets the legal standard of “reasonable, articulable suspicion of criminal activity.”

Read the full court decision here.

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Coley Grostyan is a Minneapolis based drug defense attorney.

Law Office of Coley J. Grostyan, PLLC
701 Fourth Avenue South, Suite 300
Minneapolis, MN 55415

Chicago Gun Range Restrictions Violate 2nd Amendment

Friday, January 20th, 2017

gun imageThe 7th District Federal Court of Appeals ruled that age and zoning restrictions placed on gun ranges in the City Chicago violates the 2nd Amendment by being overly broad. Chicago city ordinances had prohibited anyone under 18 years-old from entering a gun range in the city. Additionally, gun ranges were only allowed in manufacturing districts and were required to be more than 500 feet away from churches and schools.

The city stated Chicago’s gun violence poses a “serious public health and safety problem with both social and economic consequences,” and argued the zoning restrictions were reasonable as gun ranges attract crime and can cause lead contamination, noise pollution and fire. However, the city offered no evidence to support their claims.

Chicago frequently makes the news about significant gun violence in the city and has enacted numerous restrictive gun laws in an attempt to curb the violence. This is not the first time Chicago gun-related ordinances have been overturned, including the highly publicized ban on handgun possession that was ruled unconstitutional by the Supreme Court in McDonald v. Chicago, where the Court stated the 2nd Amendment is applicable to the States through the 14th Amendment, and that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense.

Read the entire opinion related to gun range zoning here.

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Minnesota 2nd Amendment Lawyer Coley Grostyan is a criminal defense attorney who represents the accused and those wrongfully denied their 2nd Amendment rights.

Law Office of Coley J. Grostyan, PLLC
701 Fourth Avenue South, Suite 300
Minneapolis, MN 55415

20,000 Drug Cases Reviewed After Chemist Faked Tests

Thursday, January 19th, 2017

drug_imageToday the Massachusetts’ highest court ordered prosecutors to review over 20,000 controlled substance cases involving Annie Dookham, a former state chemist.

Back in 2013, Ms. Dookhan pleaded guilty to 17 counts of Obstruction of Justice, 8 counts of Tampering with Evidence, Perjury, and Falsely Pretending to Hold a Degree from a College or University. Ms. Dookhan worked as a chemist in the drug analysis unit at a laboratory testing suspected controlled substances. Her test results were used to obtain drug convictions, results she admitted to faking or tampering with in order to favor the prosecution.

Because of Ms. Dookhan’s actions, the Court ordered prosecutors to review the cases, and either vacate and dismiss cases or be willing to retry cases with independent evidence not tainted by Ms. Dookhan’s faked test results. The Court further stated the expectation that a large number of cases will be dismissed after review, and warned of dismissing the remaining cases without prejudice should the demand for public defenders exceed the supply.

In Minnesota, the Bureau of Criminal Apprehension (BCA) has accredited laboratories for testing of suspected illegal drugs, DNA, and fingerprints. During a trial, BCA scientists testify as to the amount and kind controlled substances admitted as evidence. Without this scientific testimony, many cases would not even proceed to trial. Because accurate scientific testimony is so critical to drug prosecutions, having scientists testify falsely and generate fraudulent reports undermines the whole criminal judicial system as innocent people could be convicted and imprisoned.

Read more about MN controlled substance laws here.

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Coley Grostyan is a criminal lawyer defending those accused of drug offenses throughout the State of Minnesota.

Law Office of Coley J. Grostyan, PLLC
701 Fourth Avenue South, Suite 300
Minneapolis, MN 55415

Court Orders Defendant to Unlock Phone with Fingerprint

Wednesday, January 18th, 2017

This week the Minnesota Court of Appeals issued an opinion upholding an Order requiring a criminal defendant to submit fingerprints to unlock a cell phone. The Court held that a defendant’s 5th Amendment right against self-incrimination is not violated when they are ordered to provide fingerprints to unlock a telephone. The court reasoned that providing fingerprints to unlock a phone is no different that requiring fingerprints for booking and identification. Nevermind the reason for obtaining the fingerprints, one being for identification and the other for the sole purpose to fish for self-incriminating evidence on a defendant’s cell phone.

The Court did distinguish this case from cases where it is a clear violation to require a defendant to decrypt a computer or provide a password combination for a safe.

The lesson to be learned from this case is that password protection actually creates a barrier from access by the government, but a fingerprint lock does not.

You can read the entire opinion here.

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Coley Grostyan is a Minnesota criminal defense attorney.

Law Office of Coley J. Grostyan, PLLC
701 Fourth Avenue South, Suite 300
Minneapolis, MN 55415

Collateral Consequences of Convictions: What Your Lawyer Doesn’t Have to Tell You

Wednesday, December 7th, 2016

As explained on most of the pages on the website, jail, prison, fines, and probation are just some of the direct consequences you may be facing when charged with a crime. However, many of the consequences stemming from a conviction are collateral, and not directly ordered by criminal court.

Many of these collateral consequences are speculative and unknown until they occur such as losing out on future job prospects, being denied housing, or even, in some cases, being subject to public scorn. Other collateral consequences are known, or should be known, by your lawyer early on in the case such as the requirement of predatory offender registration if charged and convicted of certain violent crimes and sex offenses.

In a Minnesota Supreme Court decision today, the Court held that a defense lawyer’s failure warn a client that his guilty plea to a felony domestic assault conviction would require predatory registration under Minnesota law is not ineffective assistance of counsel under the United States or Minnesota Constitutions. To be fair, the requirement of registration in this case is a much overlooked provision of the predatory registration law as a felony domestic assault conviction, on its own, does not require registration. In fact, the judge, prosecution, and the defense lawyer never mentioned the requirement to register, probably because none of them knew of the requirement.

However, under Minnesota law, predatory registration is a collateral consequence of any conviction arising out of the same circumstances as a registrable offense (i.e. originally charged as an offense requiring predatory registration). Additionally, like in the case today, predatory registration is required if the person was previously registered for a different conviction, and is subsequently convicted of a crime against the person.

The Defendant in this MN Supreme Court appeal was convicted of criminal sexual conduct 27 years ago which required him to register for 10 years following the conviction. Only because of that prior registration requirement, his conviction for felony domestic assault, a crime against a person, requires him to register as a predatory offender.

Despite today’s ruling, it is ineffective assistance of counsel if a defense attorney fails to advise a client as to deportation consequences as decided in Padilla v. Kentucky. Failure of a defense lawyer to advise on potential deportation consequences violates a defendant’s Sixth Amendment right to counsel. However, the MN Supreme Court distinguished this case from Padilla.

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Coley Grostyan is a Minnesota criminal defense lawyer.

Law Office of Coley J. Grostyan, PLLC
701 Fourth Avenue South, Suite 300
Minneapolis, MN 55415