Monthly Archives: February 2013

Kansas Supreme Court Rules Passing Sobriety Test Is Meaningless

Roadside sobriety tests can be used only to gather evidence to convict a driver, not to exonerate him, under a decision handed down last week by the Kansas Supreme Court. The court found passage of such tests is only one of many factors that play into the “whole picture” of whether someone should be arrested for driving under the influence of alcohol (DUI).

The decision came down in the case of Bruno Edgar, who was stopped at a driver’s license roadblock on July 29, 2007. A police officer at the checkpoint asked Edgar for his license (which was suspended) and noticed a “real light smell of alcoholic beverage” coming from Edgar’s white Dodge pickup truck. The officer decided to conduct three of the standard field sobriety tests.

Edgar passed the horizontal gaze nystagmus test, passed the one-leg stand and “did fine” on the nine-step walk-and-turn test. At this point, the officer testified he would not have arrested Edgar, but he decided to try a preliminary breath test (PBT) — a handheld portable breathalyzer-like device. The officer then told Edgar he had no choice but to submit and that he had no right to consult an attorney regarding the test. Edgar failed and was convicted of DUI.

Edgar appealed, arguing the reasonable suspicion needed to conduct the breath test evaporated when he passed all three sobriety tests. The district court ruled having the initial suspicion was enough to “run a gamut of tests” and that officers should not be hampered by an arbitrary order of which test needs to be performed before another. The high court narrowly sided with Edgar that the sobriety tests must be considered as a factor in determining whether there was reasonable suspicion, but the court punted on the harder question of whether passing all the tests eliminated suspicion.

“We are asked simply whether the results from Edgar’s three successful field sobriety tests should have been considered in deciding whether reasonable suspicion existed to request the PBT,” Justice Dan Biles wrote for the court. “The answer to that question is yes. And while the Court of Appeals continued the analysis to consider whether there was reasonable suspicion in light of the field sobriety test results in Edgar’s case, we need not address that question, which may be a close call at best, given our holding on the next issue.”

Edgar had also appealed the preliminary breath screening because the officer falsely told him he had no right to refuse the test. Under Kansas law, refusal to use the handheld breath-testing device is a “traffic infraction.” The court treats the test as a search for Fourth Amendment purposes and consent to the search must by voluntary. The high court found it did not matter that the state has an implied consent statute covering the handheld test device.

“So even though Edgar impliedly consented to the PBT under the terms of the statute by driving, such consent may always be withdrawn — an event made unlikely when a driver is affirmatively misinformed by a law enforcement officer that he or she cannot refuse, which effectively contradicts the statute,” Justice Biles ruled. “We hold that the officer’s misstatement that Edgar had no right to refuse the PBT rendered the test involuntary… Accordingly, the district court erred by not suppressing the PBT results. And that error also invalidates Edgar’s DUI arrest and the subsequent blood-alcohol test.”


Gang Members Arrested After Friending Cop on Facebook


Do you know who your friends are?

Your parents probably told you never to talk to strangers. Fourteen Brooklyn gang members learned that lesson the hard way—and now they’re facing hard time in prison.

New York City Police Officer Michael Rodrigues got a tip that the Brower Boys gang members might be responsible for a year-long rash of burglaries in Brooklyn’s Crown Heights neighborhood. As the saying goes, you have to think like a criminal to catch a criminal. These criminals included a bunch of 18-year-old boys, so Officer Rodrigues turned to every teen’s favorite online hangout—Facebook—and sent friend requests to many of the suspects.

Fortunately for Officer Rodrigues, some of the suspects were dumb enough to accept the request, granting him access to their online world. And what a world it was: One where they talked about the next break in, divvied up the loot and posted pictures with their weapons.

Brooklyn police quietly gathered information then staked out potential crime scenes they identified through Facebook chatter. Writes the New York Post: “In one police surveillance video from March, alleged gang member Olurabu ‘Sleepy’ Henry can be seen in broad daylight as he carries a backpack out a window and onto a rooftop, where cops were waiting for him — having been alerted through the Facebook posts.”

In all, the police nabbed 14 gang members thanks to information gleaned from Facebook postings.

“They signed off on their messages with LOL—laughing out loud,” New York City Police Commissioner Ray Kelly said when announcing the arrests. “Well, there was a person who was laughing out loud. That was Police Officer Michael Rodrigues of the 77th Precinct.”

It may be dumb, but what happened to the Brower Boys isn’t unique. Illinois criminal defense lawyer David L. Freidberg says he’s represented clients whose online comments have also gotten them in trouble.

“Making an admission of any sort is a bad move,” Freidberg says. “I’ve had clients recently who have done just this, making admissions, bragging to their other Facebook friends about their conquests. ‘Hey man, just pulled a lick over on 95th Street!’ And even though they’re using their street name, people know who they are.”

Freidberg says it’s tough—but not impossible—to represent clients who have admitted to crimes online.

“It’s not easy for the state to get Facebook posts admitted as evidence in court,” Freidberg says. “It’s very difficult to authenticate a Facebook post, and unless it’s authenticated, it’s hearsay in most if not all jurisdictions.”

That said, Freidberg still advises his clients against bragging about their crimes online.

“Don’t be fooled by your alleged anonymity on Facebook,” he says. “People know who you are and your ‘friends’ on Facebook might be contacted by a cop to take a statement or find out who you really are. Also, Facebook posts are possibly subject to discovery by the state, so you should avoid posting anything on Facebook that could be used against you in any forum. The same rule of thumb applies to Twitter or any social networking site.”


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