Larry Thompson was arrested for resisting an officer and obstructing governmental administration after he refused to allow officers entry into his home when they told him they did not have a warrant. He spent two days in jail and after three months his case was dismissed. The initial complaint was made by his sister-in-law who believed diaper rash on her nephew was a sign of abuse. After EMTs arrived on scene and found nothing wrong, four law enforcement officers arrived and Mr. Thompson, who did not know about his sister-in-law’s call, denied them entry, resulting in his arrest.

After his case was dismissed, Mr. Thompson filed a lawsuit against the officers for malicious prosecution. The trial court dismissed the case because it found that a dismissal was not a proceeding that “formally ended in a manner not inconsistent with his innocence,” or “ended in a manner that affirmatively indicates his innocence”.

In a 6-3 decision authored by Justice Kavanaugh, the Supreme Court held that an acquittal was not required to sustain an §1983 action.

Source: Oyez.org

The Louisiana Legislature enacted a great number of new statutes and changes to the law during the 2021 Regular Session. For the next few weeks, we’ll be writing about some of the changes that might directly impact our clients in the future.

Effective August 1, 2021, the Louisiana Legislature has expanded the circumstances under which an officer shall be required to issue a summons rather than arrest someone charged with a misdemeanor and some felony offenses. The prior version of the law gave an officer permission to issue a summons instead of arresting an individual when the arrest was made without a warrant and for an offense which is a misdemeanor or felony charge of theft or illegal possession of stolen things with a value of more than $500 but less than $1,000, under certain circumstances. The change in the law now requires the officer to issue a summons rather than arrest the individual unless:

(a) The officer has reasonable grounds to believe that the person will not appear upon summons.

(b) The officer has no reasonable grounds to believe that the person will cause injury to himself or another or damage to property or will continue in the same or a similar offense unless immediately arrested and booked.

(c) There is no a necessity to book the person to comply with routine identification procedures.

(d) The officer has ascertained that the person has two or more prior criminal felony convictions.

Louisiana Code of Criminal Procedure Article 211(A)(1). The change further requires the officer to issue a summons rather than arrest the offender for the offense of issuing worthless checks in violation of La. R.S. 14:71 unless either of the following conditions exist:

(a) He has reasonable grounds to believe that the person will not appear upon summons.

(b) He has no reasonable grounds to believe that the person will cause injury to himself or another or damage to property unless immediately arrested.

La. CCrP. Art. 211(B)(1).

Additional changes to arrest procedure were made in La. R.S. 40:2405.9 and La. CCrP Art. 223. The first requires The Council on Peace Officer Standards and Training to develop guidelines for officers regarding how to deal with minor children of arrestees at the time of arrest. Article 223 establishes procedures that officers must follow to determine if a minor child will be affected by the arrestee’s arrest and require officers to:

• “Inquire whether the person is a parent or guardian of a minor or dependent child under the care, custody, or control of the arrested person at the time of the arrest, who may be at risk as a result of the arrest.”

• “Ascertain whether a child is present…”

• “Permit an arrested person a reasonable opportunity, including providing access to telephone numbers stored in a mobile telephone or other location, to make alternate arrangements for the care of a child under his care, custody, or control, including a child who is not present at the scene of the arrest…”

• “Provide an arrested person the opportunity to speak with a child who is present, prior to such caregiver being transported to a police facility” or, if not practical, having the police officer explain to the child “that the child did nothing wrong and will be safe and cared for.”

The statute also states that officers are not required to comply with the above requirements if the arrestee presents a physical threat to himself, the officers, or the child; if he has been arrested for a crime of violence (as defined by La. R.S. 14:2); or if the officer has exercised due diligence and ascertained that no minor child is under the arrestee’s care, custody, or control.

If you or someone you know has been arrested and would like to set up a consult, please give us a call at (318) 459-9111.

The likely answer to this question is, unfortunately, no. Your case will likely not be dismissed just because the officer didn’t read you your rights. To explain why, we’ll have to give you a brief run-down of what Miranda actually involved.

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In Miranda v. Arizona, decided in 1966, the United States Supreme Court consolidated several cases in which individuals who had been placed under arrest were interrogated by law enforcement or prosecutors and who, during those interrogations, gave statements that were subsequently used against them.

Prior to 1966, the Supreme Court had recognized that criminal defendants had certain rights during police interrogation, among them the right to have counsel present and the right to remain silent, but Miranda was the first case where the Court really recognized that many people didn’t actually know that they had these rights and this lack of knowledge could be taken advantage of by law enforcement attempting to obtain confessions. Miranda now requires that an arrestee who is subject to interrogation must be advised of his right to remain silent, that anything he says can be used against him, that he has the right to an attorney, and that if he cannot afford an attorney, the court will appoint one to represent him. If he is not so advised, any statements he makes then cannot be used against him.

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So, back to your set of facts: you were placed under arrest, and the officers did not read you your rights. Does this mean that your case will automatically be thrown out? No. If you were not interrogated about the facts surrounding the arrest, Miranda isn’t implicated. If you were interrogated, there may be grounds to file a motion to suppress your statement because it was taken in violation of Miranda requirements, but that does not mean that your case will automatically be dismissed if there is sufficient other evidence to prosecute you.

If you or someone you know has been arrested and interrogated for a crime and are looking to hire an attorney, give us a call at (318) 459-9111 to set up a consult.

A common mistake that people make is thinking this: “I didn’t do anything wrong, so I will just go and explain everything to the detective and everything will be okay.” There are a few things to remember before you do this:

First, if you are getting called in by a detective to “give your side of the story” you must remember that the detective has likely already labeled you as a suspect. This means he is going to view everything you say with great skepticism, and likely not believe you, which could mean you are giving a statement in vain.

Second, don’t forget that detectives go to extensive training in interrogation and interview tactics, so you are rarely actually going in for a “conversation” with them—you are going in for an interrogation, and you need to be prepared for what that means. 

Does this mean that we never take people to speak with the police? Absolutely not! We frequently take clients to give statements to the police. When you hire us, we make a plan with you, the client, to determine whether or not it is in your best interested to give a statement. We have taken many clients in to give statements who were never arrested. Taking an attorney with them provided those clients with an advocate and someone who was comfortable in the interrogation room, calling out unfair statements or tactics that the police use, when they may not have been able to accomplish that themselves, without an attorney.

Why should you hire an attorney prior to giving a statement? Aside from the fact that it is much less expensive to hire us for a pre-arrest matter than it is to litigate your case, you also may end up avoiding an arrest altogether. 

If you are wondering whether you should hire an attorney for your pre-arrest matter give us a call at (318) 459-9111 to discuss your case.

Both the United States Constitution and the Louisiana State Constitution, according to the US Supreme Court and the Louisiana Supreme Court, allow for law enforcement to set up checkpoints for various offenses. The Courts have allowed for checkpoints for the purpose of stopping and arresting intoxicated drivers, people operating their vehicles without insurance and without seatbelts, among other things.

In order for a checkpoint to pass constitutional muster, it must meet some requirements:

1. The location, time, and duration of the checkpoint, as well as any other regulations governing the operation of the checkpoint must be established by supervisory or administrative personnel with the law enforcement agency who are not involved in the operation of the checkpoint, itself. It is not required, but the cases recommend that these regulations be memorialized in writing.)

2. The law agency must provide advance warning to motorists using signs, flares, or other indicators of the official nature of the checkpoint.

3. The motorists must be detained for a minimal period of time.
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4. The officers must use a systematic, nonrandom criteria for stopping motorists.

The purpose of these rules is the “curtail the unbridled discretion of officers in the field.” State v. Jackson, 764 So.2d 64 (2000).

If you have questions about an arrest arising from a law enforcement checkpoint, call us at (318) 459-9111.

The Fourth Amendment to the United States Constitution is found in the Bill of Rights and, along with several others we’ll talk about over the next few weeks, provides protections for individuals against intrusions by the government. The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

This requires that a law enforcement agency (or other government agency) that wants to search a person’s home or property must show probable cause that evidence of a crime exists within that location. Further, it says that the government may not seize a person’s property without also showing probable cause to believe that it is evidence of or proceeds from a crime. Any warrant, in order to be constitutionally valid, must also describe the place to be searched and the description must be clear, and it must describe the property, or the person in the case of an arrest warrant, to be taken or arrested.

This requirement of probable cause, along with the prohibition against unreasonable searches and seizures means that the government must show, to the satisfaction of a reviewing judge, that they have more than just a suspicion that evidence of a crime is going to be located at the location. A person also may not be arrested except upon a showing of probable cause.

The effect of this Amendment on criminal prosecutions in Louisiana can be seen in many procedures our courts follow:

In Louisiana, if a person is arrested without a warrant, a judge must review the arrest information within 72 hours (exclusive of legal holidays) to determine whether there was probable cause to effectuate that arrest. If there was, then the case may proceed. If not, then the arrestee must be released.

Defendants who believe that they or their property have been searched unlawfully or absent probable cause may file a motion to suppress the results of the search and the Supreme Court has held that if those searches were conducted without probable cause, the evidence cannot be used against the Defendant.

Check back with us next week for our favorite legal and law-related movies in celebration of Louisiana Film Prize Weekend!

Many of us have fitness apps loaded on our phones: Nike+, Apple’s Health App, Zombies, Run!, and the list goes on and on, but there’s a new option now available from the Federal Bureau of Investigation:

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The FBI Physical Fitness Test App is now available on the Apple App Store and Google Play Store

The FBI markets this app as a way to “learn what it’s like to train as an agent.”

The problem, as we criminal defense lawyers see it? This app tracks your location, as most fitness tracker apps do, so it can log mileage for walks or runs, for example; however, if law enforcement wants that information from your average fitness tracker app, they are going to have to go to that company and ask nicely (most companies will say no as they have determined that the cost of providing their customers’ data to the government is much more expensive than the pain of not acquiescing to the government’s requests), or they have to go to court and get a search warrant ordering that company to provide them the records. And in order to get a search warrant, they must demonstrate to the court’s satisfaction that they have probable cause to believe evidence of a crime will be located in the information they want that company to disclose.

This app? Gives them access to your location data without any type of court order or supervision.

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This app requests your phone provide your precise and approximate location, that it have permission to read the contents of your USB storage, and have full network access, prevent your phone from sleeping, and read your Google service configuration.

There may be nothing harmful, here, but there are so many non-governmental fitness tracker apps, we wouldn't use one that willingly gives information on our every move to the government. Be thoughtful about the apps you install on your phone and think hard before you willingly become a witness against yourself.

If you or someone you know is facing criminal charges and your location data is being used against you, give us a call at (318) 459-9111 to set up a consult.