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BigHead posted:The slightest iota over the line and the case is tossed. Um... Isn't that the way it's supposed to work?
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Nov 25, 2018 22:52
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joat mon posted:Um... Isn't that the way it's supposed to work? What he said.
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Nov 25, 2018 23:17
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So going back through the motion my boss forwarded to me, it was written back before Amendment 2 passed and geared towards low-thc varieties of weed that were legal then. Also it only cites one case outside of Florida, Commonwealth v. Cruz, from Massachusetts. It was only 45 pages total because they included the full MMJ statute and printouts of various caselaw. My actual motion is 3 pages with an attached 10 page memorandum of law discussing the various issues with the stop and then PC based upon smell with references to three different cases from other states (California, Colorado, and Mass). I may grab another few to toss in. All in all with exhibits and caselaw attached I'll have a ~40 page submission in total, myself.
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Nov 26, 2018 00:34
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drat you attach case law?
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Nov 26, 2018 01:30
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I attach poorly photocopied pages of O’Connors
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Nov 26, 2018 01:56
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joat mon posted:Um... Isn't that the way it's supposed to work? bighead's been a prosecutor too long it seems
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Nov 26, 2018 02:01
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Hot Dog Day #91 posted:drat you attach case law? I will for at least the out of state cases.
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Nov 26, 2018 03:21
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Mr. Nice! posted:So going back through the motion my boss forwarded to me, it was written back before Amendment 2 passed and geared towards low-thc varieties of weed that were legal then. Also it only cites one case outside of Florida, Commonwealth v. Cruz, from Massachusetts. It was only 45 pages total because they included the full MMJ statute and printouts of various caselaw. My actual motion is 3 pages with an attached 10 page memorandum of law discussing the various issues with the stop and then PC based upon smell with references to three different cases from other states (California, Colorado, and Mass). I may grab another few to toss in. All in all with exhibits and caselaw attached I'll have a ~40 page submission in total, myself. Orin Kerr has an article about how the Fourth Amendment accepts or rejects state cops getting PC based on federal law (and vice versa). You might find it useful--as in, easily-stealable cites--for the prosecutor's obvious rejoinder that weed is still illegal as a matter of federal law. Depending on how your state courts treat the issue, this might be something to just hammer quick and clean in the opening brief, or, if it doesn't look good for you, get prepared for your reply brief. Article is linked here. Excerpt to give you an idea of what might be interesting for your purposes: quote:We first get our bearings by surveying existing Fourth Amendment caselaw on cross-enforcement. Although courts agree that cross-enforcement is permitted in at least some circumstances, they disagree on what those circumstances should be. The major dispute is about the role of authorization: Must the officer’s home jurisdiction, or the jurisdiction that enacted the criminal law, affirmatively bless the cross-enforcement? Courts are deeply divided on the answer.
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Nov 26, 2018 03:56
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joat mon posted:Um... Isn't that the way it's supposed to work? Yes? I was juxtaposing with the other posters.
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Nov 26, 2018 04:08
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Even I attach case law sometimes, and we have neither stare decisis nor actual case law per se
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Nov 26, 2018 05:41
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Yeah but just because medical weed is legal, doesn't mean a cop can't suspect that someone smelling like weed may be possessing it illegally? It's legal for me to pry my front door open with a crowbar, but if a cop sees me doing it, he is reasonable in thinking I'm breaking in to someone else's house. Expect the foregoing argument, is what I'm saying.
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Nov 26, 2018 05:53
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Also probable cause that the driver has recently smoked it and is therefore intoxicated? Are you fighting a search or a detention?
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Nov 26, 2018 06:01
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blarzgh posted:Yeah but just because medical weed is legal, doesn't mean a cop can't suspect that someone smelling like weed may be possessing it illegally? It's legal for me to pry my front door open with a crowbar, but if a cop sees me doing it, he is reasonable in thinking I'm breaking in to someone else's house. Sweet. Because if a cop sees you with a crowbar, that alone isn't PC to detain or search you - because a crowbar has legal uses. The reason MJ sniffs have been PC to detain/search is because its illegal nature is immediately and unmistakably discernable. If MJ can be legally possessed in the jurisdiction, its illegal nature is no longer unmistakable or immediately discernable.
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Nov 26, 2018 06:32
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joat mon posted:Sweet. Because if a cop sees you with a crowbar, that alone isn't PC to detain or search you - because a crowbar has legal uses. The reason MJ sniffs have been PC to detain/search is because its illegal nature is immediately and unmistakably discernable. If MJ can be legally possessed in the jurisdiction, its illegal nature is no longer unmistakable or immediately discernable. This is the argument, and it's the result many (but not all) states have reached. In Florida, right now medical marijuana is not legally smokeable. The enabling legislation put a smoking ban. So any time a cop smells "burnt" marijuana, they'll still have PC. Raw marijuana odor, though, is a different story. Florida MMJ users may possess up to a 70 day supply. Pre-made dry herb vaporizer cups are a thing you can get at multiple dispensaries, and they smell like raw weed because they are just raw weed ground up into little ceramic cups. A 70 day supply of these is multiple ounces of weed and will leave your vehicle stinking like a cheech and chong wagon. In my case, my guy was the passenger of the vehicle. The stop wasn't legal as it was based on a mistake of law by the police officer (1 of 2 tag lights was working - that's ok under florida law he thought both needed to be working). He then said he smelled weed (not burnt) and my dude identified himself as a Florida MMJ patient and said the smell was probably him from earlier. The cop still detained them, searched the car (that neither driver nor passenger owned) and found a small bag in a console that neither person was aware of. The registered owner of the vehicle arrived and loudly proclaimed it was her weed, but the cop had to make sure the black people got arrested instead of the white girl that owned the car. So far I've got three states in support, a bunch that I can't find anything definitive, and a few that are against me although they all specify burnt weed as PC not raw weed because driving while smoking is still unlawful everywhere.
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Nov 26, 2018 12:43
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EwokEntourage posted:I attach poorly photocopied pages of O’Connors This made me physically ill.
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Nov 26, 2018 12:57
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Mr. Nice! posted:This is the argument, and it's the result many (but not all) states have reached. Interesting. Why is it an issue of probable cause as opposed to reasonable suspicion? Seems like traffic stops are an issue of either/or. Found an interesting little review of arrest and detention in Norway while looking at some comparative sources for probably cause (wait no, probable. actually "probably cause" is accurate so I'm leaving it) I kind of liked. It's old (1957), but still gold because fuckall has changed: https://pdfs.semanticscholar.org/967a/c0a552c46cd8bf08c8cee2db4fa1841b0f79.pdf Why for arrest and detention? Because the issue of probable cause or our variants of it don't come into play until after the police have unilaterally decided to search, seize and arrest and now want to keep you around for a few months. Even that - while a court hearing - is such a gimme prosecutors often don't even bother to show up but just ship the docs and let the judge rubber stamp it. Traffic stops, frisks and such are really just left up to the police and their "hunches". Nice piece of fish fucked around with this message at 13:28 on Nov 26, 2018 |
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Nov 26, 2018 13:24
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Stop vs Arrest/Search. You can stop someone on reasonable suspicion. But to actually make the arrest the stop needs to reveal something that rises to probable cause.
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Nov 26, 2018 13:50
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ActusRhesus posted:Stop vs Arrest/Search. You can stop someone on reasonable suspicion. But to actually make the arrest the stop needs to reveal something that rises to probable cause. Right. Yeah, that's the difference then. The previously mentioned crowbar example, probably be enough for an arrest. poo poo, probably wouldn't even need that.
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Nov 26, 2018 13:59
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Nice piece of fish posted:Right. Yeah, that's the difference then. The previously mentioned crowbar example, probably be enough for an arrest. poo poo, probably wouldn't even need that. AR hit on it, and I discuss reasonable suspicion of a violation in the illegal stop portion of my memo because that’s where it matters. Need RS of a traffic violation to conduct a stop. Need PC of a crime to conduct a search.
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Nov 26, 2018 14:15
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joat mon posted:Sweet. Because if a cop sees you with a crowbar, that alone isn't PC to detain or search you - because a crowbar has legal uses. The reason MJ sniffs have been PC to detain/search is because its illegal nature is immediately and unmistakably discernable. If MJ can be legally possessed in the jurisdiction, its illegal nature is no longer unmistakable or immediately discernable. Are the MMJ jurisdictions not allowed to investigate driving under the influence or investigate whether the driver has a permit to use? I assume there would still be some hooks for marijuana S&S (though not necessarily in Mr. Nice’s case) even though they become more complicated. yronic heroism fucked around with this message at 16:42 on Nov 26, 2018 |
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Nov 26, 2018 16:36
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yronic heroism posted:Are the MMJ jurisdictions not allowed to investigate driving under the influence or investigate whether the driver has a permit to use? I assume there would still be some hooks for marijuana S&S (though not necessarily in Mr. Nice’s case) even though they become more complicated. Like a restriction by statute? In colorado police can and do investigate individuals they suspect of driving under the influence of marijuana.
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Nov 26, 2018 20:34
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Opposing counsel from douchelord firm filed a 22 pages over the limit post trial brief. Mine will be under 10. Out of spite.
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Nov 26, 2018 21:38
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Page limits are a mere fiction, observed only by those too weak to grab the reins of lady justice with one hand
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Nov 26, 2018 21:45
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Soothing Vapors posted:Page limits are a mere fiction, observed only by those too weak to grab the reins of lady justice with one hand I had a judge who would hold up reply briefs, limited to 5 pages, and rip off every page past the limit then go it looks like you didn't address defendants arguments. Motion denied. It was pretty funny to see happen to anyone but yourself
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Nov 26, 2018 21:50
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mastershakeman posted:It was pretty funny to see happen to anyone but yourself This describes much of the practice of law, really.
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Nov 26, 2018 22:22
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mastershakeman posted:I had a judge who would hold up reply briefs, limited to 5 pages, and rip off every page past the limit then go it looks like you didn't address defendants arguments. Motion denied. Justice is whatever the old, angry guy in a robe says it is, frankly.
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Nov 26, 2018 23:50
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I'm pretty sure if I were a judge I would do exactly that.
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Nov 27, 2018 00:01
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Anyone keep in touch with HooKars, or is she lost to the same inexorable sands of time that claimed Mookie and will one day soon claim Philmastershakeman posted:I had a judge who would hold up reply briefs, limited to 5 pages, and rip off every page past the limit then go it looks like you didn't address defendants arguments. Motion denied. lol that owns
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Nov 27, 2018 00:02
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mastershakeman posted:I had a judge who would hold up reply briefs, limited to 5 pages, and rip off every page past the limit then go it looks like you didn't address defendants arguments. Motion denied. Glorious.
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Nov 27, 2018 00:15
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Soothing Vapors posted:Page limits are a mere fiction, observed only by those too weak to grab the reins of lady justice with one hand Lmao
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Nov 27, 2018 03:50
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Soothing Vapors posted:Anyone keep in touch with HooKars, or is she lost to the same inexorable sands of time that claimed Mookie and will one day soon claim Phil Phil will never leave us. Not because of this thread, but GWS. I'm looking forward to this forum when we're all the 70 and retired and grumpy.
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Nov 27, 2018 05:36
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Most of us are in our 30s, save and except Phil, yuns, joat mon, vel sim. So if you think the earth will survive 40 years or that retirement will be a thing, lol
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Nov 27, 2018 12:40
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Hot Dog Day #91 posted:Most of us are in our 30s, save and except Phil, yuns, joat mon, vel sim. The earth will. We won't. Unless you move into my cabin, it's very safe from climate change. Once I build a firebreak, I think. It's hard for roving death bands in the mountains, everywhere is such a hassle to get to.
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Nov 27, 2018 13:05
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You into black metal?
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Nov 27, 2018 13:31
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Hot Dog Day #91 posted:You into black metal? More of an off-white metal type of guy, really.
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Nov 27, 2018 13:56
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I'm out
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Nov 27, 2018 14:54
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Nice piece of fish posted:More of an off-white metal type of guy, really. Typical Scandinavian racist
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Nov 27, 2018 14:57
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Phil Moscowitz posted:Typical Scandinavian racist So much for the tolerant north.
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Nov 27, 2018 15:00
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Don't worry, I'll help ensure everyone sticks around to read more:Selachian posted:Pros and That Is Not How It Works
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Nov 27, 2018 17:10
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My first in-house day today and everyone except me and one other guy left between 18:00 and 18:20 and I was like what is going on are you seriously leaving (note: this was a legit question, because this legal department does virtually all legal matters on its own, law firms aren't hired unless absolutely necessary and never for domestic matters, so it's not like they're just an intermediary between law firms and the accounting department)
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Nov 27, 2018 18:55
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