I do not believe I can afford a private attorney

After you are charged with a crime you will appear in court. In court you will be asked if you intend upon hiring a lawyer, or applying for the services of a public defender. Many people do not believe they can afford a private lawyer. I am willing to discuss people's financial situations and work with them to develop a payment plan if need be. Do not allow your fear of asking about a payment plan to deter you from seeking representation.

For a free consultation with an experienced lawyer that will aggressively represent you, contact: Patrick Flanagan 763-786-5324 651-291-5453 email:patflanagan@patflanagandefense.com www.patflanagandefense.com

Drug Possession and Drug Sales Questions

If you have a general question about drug possession charges or drug sale questions, please post your question here.


For a free consultation with an experienced lawyer that will aggressively represent you, contact: Patrick Flanagan 763-786-5324 651-291-5453 email:patflanagan@patflanagandefense.com www.patflanagandefense.com

Pre-arrest silence may not be used against you.

Often times people do not apply the Miranda warning properly in their discussions. Some believe that Miranda warnings must be read before law enforcement may arrest you. This is not the case. Miranda only applies to in custody statements. If you are in custody and law enforcement questions you without first reading Miranda, your statement may then be thrown out. However, if there is enough other evidence to suspect you of the crime, the arrest will still stand.

There has often been the question, what happens if I remain silent, or do not answer an investigators letter or questions before I am arrested? May the prosecutor use that silence to imply my guilt? While the Defense bar was adamant that the Constitution protects a person's Right to remain silent at any time, Prosecution often argued that since Miranda only applies to statements while in custody, you do not have the Right to remain silent before an arrest.

The Minnesota Court of Appeals just clarified that the Constitution does protect your right to remain silent at all times, not just when you are actually arrested. Both the Minnesota and United States'Constitution guarantees a criminal defendant the right to remain silent. US Const. Amend. V; Mn const. art. I sec. 7. Admitting evidence of defendant’s silence could deprive the defendant of a fair trial. State vs. Borg (Minn. Ct. App.), A09-0243, March 15, 2010.

It is possible that the silence may be used for impeachment purposes. However, the silence may not be used in the State's case in chief. If you are accused of a crime, you will want a lawyer to walk you through when your statements, and or silence, may be used against you and when those same may not.

For a free consultation with an experienced lawyer that will aggressively represent you, contact:

Patrick Flanagan
763-786-5324
651-291-5453
email:patflanagan@patflanagandefense.com
www.patflanagandefense.com

Out of State Convictions

Out of state convictions are very important. Out of state convictions will be counted against you in both State court and Federal court. This includes such convictions as DWI, DUI, or BUI (boating under the influence). You must be aware of your out of state convictions and make sure your attorney is also aware of what are your convictions and what are not. Sometimes the State may attribute crimes to you that are not your convictions.

Recently, I had a client that with his previous lawyer, went to prison when he never should have. Thankfully, we were able to correct the error avoid him having to serve more prison time.

My client's troubles all started with his previous attorney not reviewing and investigating the criminal history. In Minnesota a sentencing guideline grid is used. Along the left side of this grid are ranked offenses. Murder in the first degree is not included in this grid as that carries a life sentence without parole. The rankings start with the low level felonies such as the sale of a simulated controlled substance (level 1) all the way up to level XI (Murder 2nd degree). Along the top of the grid are your criminal history points, 0 - 6 or more. Depending upon the crime and your criminal history score, you may do local jail time if convicted, or prison time. Obviously, a lower criminal history score means less jail or prison time to serve.

My client had convictions from Cook County, Chicago, Illinois. The State of Minnesota relies upon information from other States to determine criminal history scores. This usually works well, as long as the counties and cities within the states maintain the same recording system. Unfortunately, that is not the case for Cook County and the State of Illinois. Cook County and the State of Illinois do not keep the same records, nor do these to governmental agencies record convictions the same way. The State of Illinois relies upon booking numbers for convictions. Cook County does not. Book numbers do not mean much in Cook County apparently. Cook County will book several people under the same booking number. If a group of people are arrested, they all get the same booking number in Cook County.

Well, one day my client was arrested for loitering with a group of people. Cook County gave them all the same booking number. One of the people in the group was then investigated and convicted of murder. The State of Illinois assigned everyone in the group a murder conviction because the State relied upon the booking number to determine who should receive the conviction. My client was assigned 2 criminal history points without even knowing it.

My client then moved to Minnesota. While in Minnesota he was arrested and convicted of a theft charge. This was a low level theft, a level two. In order to serve prison time, he would need to have a criminal history score of six. According to his records, he had a criminal history score of 7. That meant he should go to prison. He did go to prison and sat there for two years.

When I got involved with my client case, I went through his criminal history score with him. I came across the murder conviction in Illinois that said he served prison time for. My client insisted he never committed murder, was never convicted of murder and never spent time in an Illinois prison. As I investigate the matter, I found out what I described above. The next step was to clear up his criminal history score recorded in Minnesota. This is not an easy task. Once you agree to a criminal history score and do not challenge it, the score becomes the score. My client's former attorney did not challenge the criminal history score, but simply accepted the number the government said was accurate.

In the end, we were able to make sure my client did not serve more prison time. Unfortunately, he had to sit for two years to correct the mistake.

It is important that you discuss all aspects of your case with your attorney and that your attorney listens to you and educates you on your case. If you are in need of a free consultation, call Patrick Flanagan.

763-786-5324

651-291-5453

email: patflanagan@patflanagandefense.com

www.patflanagandefense.com

Federal Sentencing

Sentencing in the Federal Courts is very different from State Court. In Federal Court, if convicted, you receive a level for your offense committed. That level may be a level 34 for instance. If you accept responsibility for your actions, the Court will often grant a two or three level decrease to a level 31. This may save you a significant amount of time in prison. However, there are also ways that you can increase your levels, for instance, lying to the Court.

There are other ways levels can increase or decrease. If your criminal history shows a State conviction for Illegal use of a motor vehicle, you may receive an increase in your levels because of a crime of violence. However, tampering with a motor vehicle is not considered a crime of violence. This will often depend upon how the State defined the crime you may have been convicted of in State Court. Sometimes, the District Court may consider an act a crime of violence when really the act should not be.

In United States v. Kobyashi Jones, No. 06-2901 (E.D. Mo) (Unpublished)

Mr. Jones pleaded guilty to being a felon in possession and was sentenced
to 180 months based on the armed career criminal statute. One of his
priors was for the Missouri offense of Tampering (operating a vehicle
without owner's consent). Upon review by the 8th Circuit Court of Appeals, the Court held that Tampering with a motor vehicle under Missouri law does not constitute a crime of violence. The sentence was vacated and remanded for a new sentence without considering a the level increase for a crime of violence criminal history.

This is an example why you must retain a lawyer to assist you in your criminal matters. Your lawyer's work does not end at the conviction. Sentencing is also an important part to have your attorney at. If you find yourself in need of a lawyer, call Patrick Flanagan for a free consultation.

763-785-5324

651-291-5453

email: Patflanagan@patflanagandefense.com

www.patflanagandefense.com

Innocent man executed

Recently an innocent man was executed in the State of Texas. Mr. Todd Willingham was executed after a jury found him guilty of arson that resulted in the deaths of his three children. The government's expert testified that the fire was definitely arson. The Defense attorney accepted this conclusion, as did the jury. This case highlights why it is important to have a competent attorney review your case and consider all facets. For a free consultation from a competent attorney that will assist you in your legal situation, contact Patrick Flanagan at

763-786-5324
651-291-5453
Email: patflanagan@patflanagandefense.com
www.patflanagandefense.com

The article can be found at the Chicago Tribune's website, or the following link: http://www.chicagotribune.com/news/chi-tc-nw-texas-execute-0824-082aug25,0,5812073.story

Cameron Todd Willingham case: Expert says fire for which father was executed was not arson
August 25, 2009|By Steve Mills, Tribune Newspapers

In a withering critique, a nationally known fire scientist has told a state commission on forensics that Texas fire investigators had no basis to rule a deadly house fire was an arson -- a finding that led to the murder conviction and execution of Cameron Todd Willingham.

The finding comes in the first state-sanctioned review of an execution in Texas, home to the country's busiest death chamber. If the commission reaches the same conclusion, it could lead to the first-ever declaration by an official state body that an inmate was wrongly executed.

Indeed, the report concludes there was no evidence to determine that the December 1991 fire was even set, and it leaves open the possibility the blaze that killed three children was an accident and there was no crime at all -- the same findings found in a Chicago Tribune investigation of the case published in December 2004.
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Willingham, the father of those children, was executed in February 2004. He protested his innocence to the end.

The Tribune obtained a copy of the review by Craig Beyler, of Hughes Associates Inc., which was conducted for the Texas Forensic Science Commission, created to investigate allegations of forensic error and misconduct. The re-examination of the Willingham case comes as many forensic disciplines face scrutiny for playing a role in wrongful convictions that have been exposed by DNA and other scientific advances.

Among Beyler's key findings: that investigators failed to examine all of the electrical outlets and appliances in the Willinghams' house in the small Texas town of Corsicana, did not consider other potential causes for the fire, came to conclusions that contradicted witnesses at the scene, and wrongly concluded Willingham's injuries could not have been caused as he said they were.

The state fire marshal on the case, Beyler concluded in his report, had "limited understanding" of fire science. The fire marshal "seems to be wholly without any realistic understanding of fires and how fire injuries are created," he wrote.

The marshal's findings, he added, "are nothing more than a collection of personal beliefs that have nothing to do with science-based fire investigation."

Over the past five years, the Willingham case has been reviewed by nine of the nation's top fire scientists -- first for the Tribune, then for the Innocence Project, and now for the commission. All concluded that the original investigators relied on outdated theories and folklore to justify the determination of arson.

The only other evidence of significance against Willingham was another inmate who testified that Willingham had confessed to him. Jailhouse snitches are viewed with skepticism in the justice system, so much so that some jurisdictions have restrictions against their use.

Samuel Bassett, an attorney who is the chairman of the commission, said the panel will seek a response from the state fire marshal and then write its own report.

Contacted Monday, one of Willingham's cousins said she was pleased with the report but was skeptical that state officials would acknowledge Willingham's innocence.

"They are definitely going to have to respond to it," said Pat Cox. "But it's difficult for me to believe that the State of Texas or the governor will take responsibility and admit they did in fact wrongfully execute Todd. They'll dance around it."

Search Warrants have many requirements

Just because law enforcement obtains a search warrant does not mean the search is legal, or that the evidence found from the search will be allowed in as evidence.

The validity of a search is governed by the Fourth Amendment to the United States Constitution and Article I, Section 10 of the Minnesota Constitution. The Fourth Amendment protects people and areas against unreasonable searches and seizures by the government. In the absence of a search warrant, a search is per se unreasonable unless the search comes within a defined exception.

In order for a search warrant to be upheld in court the information presented must be adequate, contain no misrepresentations and be properly executed. In order to be adequate, the warrant must be issued by a neutral, disinterested magistrate; demonstrate probable cause to believe there is a basis for the search or that the articles sought are located at the place to be searched and the things to be seized must be described as well as the places to be searched.

Statutes and case law help to define the terms such as: probable cause, adequacy, unreasonable or reasonable, seizures, and proper execution. A lawyer can help you to properly research and argue these points to the Court. If you find yourself in a situation where you need legal assistance, contact Patrick Flanagan for a free consultation.

763-786-5324

651-291-5453

Email: patflanagan@patflanagandefense.com

www.patflanagandefense.com

War Veterans and the Criminal Justice system

With more than 1.8 million Americans havin served in Afghanistan and Iraq, it was only a matter of time before those dedicated service men and women had contact with the criminal justice system. There is no possible way for those in society who did not serve in the armed forces to understand the stress this proud service caused on these soldiers individually.

Unfortunately, many of these same soldiers who proudly served our nation and faced the greatest of adversities in order to survive and keep others safe, have not sought help for themselves once returning home. This has landed some in the criminal courts with charges of assaults, dwi's and other alleged crimes. One of the questions that we need to ask in the criminal justice system is, but for the experiences that this young person saw in combat, would they be here now? But for their service to a nation that called upon these soldiers to serve, would they have engaged in the behavior the government now accuses them of?

As was pointed out in a recent Star Tribune Article, New vets court aims to help scarred soldiers, March 9, 2010 (by Mark Brunswick), "Veterans are a unique group of people, and the combat veteran in particular needs to be addressed." Right now veterans account for roughly 10 percent of people with criminal records. Id.

A soldier who does receive help through private means, or the United States Department of Veteran Affairs (VA), may very well receive a report that diagnosis them with Post-Traumatic Stress Disorder (PTSD). This may also be inflamed by, or accompanied with alcohol use to self-medicate and manage anxiety since returning home. A returning soldier may also experience intrusive and distressing daytime thoughts about experiences, hypervigilance, exaggerated startle response, avoidance of trauma and war related stimuli, emotional and physical reactions to internal re-experiencing of the traumas, sleep disturbance marked by trauma and violent themed nightmares, insomnia, elevated anxiety, anxiety attacks, short term memory loss, emotional numbing, depression, isolation, detachment and survivor's guilt.

A recent RAND Corporation study estimates that nearly 20 percent of Iraq and Afghanistan war veterans -- 3000,00 in all-- are returning with symptoms of post-traumatic stress disorder or depression; and only slightly more than half have sought treatment. Star Tribune Article, New vets court aims to help scarred soldiers, March 9, 2010 (by Mark Brunswick). Of that group, only half received minimally adequate treatment. Id.

Your attorney needs to understand and convey these unique circumstances to the prosecutor and the Court. Your attorney should also act as a legal counselor to provide guidance on where you can go to seek evaluations and treatment.

If you should find yourself involved in the criminal justice system and would like to discuss your case, contact Patrick Flanagan for a free consultation.

763-786-5324
651-291-5453

email: patflanagan@patflanagandefense.com

www.patflanagandefense.com

Sentencing Trials

If you are convicted of a crime, the next phase is sentencing. In certain circumstances, the government may ask for the statutory maximum, rather than the guideline sentence. A guideline sentence is based upon a grid that is created by the sentencing guideline commission. This grid offers a guideline to the courts for sentencing. The guideline is based upon several factors, including, but not limited to, how people in similar circumstances have been sentenced in the past. For example, in Minnesota, possession of over 42.5 grams of marijuana is a felony with a statutory maximum penalty of 12 months and one day in prison. The guidelines suggest a sentence that has that 12 months and one day in prison stayed (do not have to do) as long as certain probationary conditions are met. This may, or may not include local jail time with work release privileges. Take a person caught with 45 grams of marijuana, with no criminal history. This person may want a sentence with no jail and probationary conditions to remain law abiding and remaining jail/prison time hanging over their head. The government may ask the court to not follow the guidelines and seek what is called an upward departure. The government may want you to serve the full one year and a day in prison, even though the guidelines do not recommend that.

In past years, the Court was simply able to consider the arguments of the prosecutor to determine if this prison sentence recommendation would be the correct thing to do. The legal landscape has just changed considerably on this issue. Blakely v. Washington, 542 U.S. 296 (2004), held that, in the context of mandatory sentencing guidelines under state law , the Sixth Amendment right to a jury trial prohibited judges from enhancing criminal sentences based on facts other than those decided by the jury or admitted by the defendant. This means that you have a right to a sentencing trial before the Court is able to upward depart on your sentence. In State v. Rourke, 773 N.W.2d 913 (2009), the Minnesota Supreme Court explained the difference between “facts” and “factors.” It also explained the differing roles that courts and juries play in sentencing departures.

Under the Minnesota Supreme Court’s Rourke case, in order for a defendant to receive an upward departure, a jury must find “additional facts.” By “additional,” the court means some fact that wasn’t necessary to prove the offense and wasn’t admitted by the defendant. For example, a finding that a defendant sprayed the handcuffed victims with chemicals is a fact, and it might be the kind of fact that justified a departure IF the sentencing court decides that spraying helpless people with chemicals amounts to “particular cruelty.” The court, not the jury, gets to decide that issue because “particular cruelty” is not a fact, it’s a factor.

If you should have questions about your criminal case, contact Patrick W. Flanagan for a free consultation.

651-291-5453
763-786-5324

email: patflanagan@patflanagandefense.com

www.patflanagandefense.com

Sixth Amendment Right To Confrontation

The Sixth Amendment of the Constitution gives us the Right to confront our accusers in open court. However, the the government would often times simply attempt to use video taped interviews for certain witnesses rather than putting them on the witness stand. Recently the Supreme Court did away with this violation by the government. Crawford v. Washington, 541 U.S. 36 (2004. When statements are testimonial, the accused has a right to Confrontation.

There are some limitations to the Right to Confrontation. First, the statement must be testimonial. This is a term of art that is used by the court system. Your attorney should be able to determine whether the statement is testimonial or not.

Another limitation to the confrontation clause is that the accused can't be the cause of the failure to confront. This may happen in a situation where the accused attempts to threaten, or does threaten a witness. However, the burden is on the government to show this. Giles v Calif, 128 SCt 2678 (2008), requires the trial court to find: 1) the declarant is unavailable; 2) def engaged in wrongful conduct; 3) wrongful conduct procured unavailability of witness; 4) def intended to procure unavailability of witness. The Court also says the burden is on the state to prove this by a preponderance.

If you should have a question or a case that involves your right to confront an accuser, contact Patrick W. Flanagan.

651-291-5453
763-786-5324

Patflanagan@patflanagandefense.com

www.patflanagandefense.com

Fake drugs still a crime

Every once in awhile a person may try to sell a powdery substance, or a pill, that they claim is a narcotic such as cocaine, methamphetamine, ecstasy, or some other narcotic. The person selling the product may mistakenly believe that because the substance was not really a drug, they did not commit an offense. Why might someone do this? To turn an easy profit, for one. However, to believe that this is not a crime is a mistake.

Under Minnesota law, Minnesota Statute Section 152.097, it is felony to sell a simulated controlled substance.

There are many elements to an offense such as this and the government must prove each and every element by proof beyond a reasonable doubt before you can be convicted. Make sure you have a lawyer review your case before entering the courtroom to face such allegations.

If you are need of a free consultation, contact Patrick W. Flanagan

763-786-5324
651-291-5453

email: patflanagan@patflanagandefense.com

www.patflanagandefense.com

Your lawyers role does not end upon a finding of guilty

Often times a person accused of a crime will ask, "what can you do for me?" This is then followed up with, "well, I can plea and take the standard deal, right?" True, this may happen. However, what if you did not do the alleged offense? What if their are mitigating circumstances? What if the probationary conditions requested by corrections are such that you will not succeed and end up doing your sentence behind bars?

This last situation almost happened to a client of mine. Had he not had a lawyer, he would have failed on probation and had to spend his time behind bars. Thankfully, we were able to educate the judge as to how unfair the proposed conditions of probation were. The judge modified the sentence that will eventually allow my client to have the case dismissed.

Here is the scenario: My client met a young lady when she came into his place of employment to purchase some merchandise. The young lady stated she was 17. My client was 19. The young lady looked like she was 17 according to some witnesses and my client. The young lady began texting my client. This continued for several days. One evening, the young lady slept over at a friends house. She texted my client asking him to meet her. My client invited her to a party at his friends house. There was alcohol at this party. The young lady told my client she could not drive there and needed a ride. My client picked her up, met her at the driveway of her friends house and brought her to the party. This is where the facts become in dispute.

A few days after this party, the young lady went to her counselor at high school and told the counselor she believed she may be pregnant from having sexual intercourse with her 19 year old boyfriend. Turns out, the young lady was not 17, but 15. A felony as a 15 year old can't give consent. There is a defense of mistake of age at 15, and that was offered by us as a defense in this case. The young lady stated she did not want my client prosecuted and that the sex was consensual. Remember, a 15 year old can't give consent. She also claims that she told my client how old she was. There were also some other factors about whether my client should have known how old she was. Those were up for dispute.

My client admitted to officers that he knew the young lady and that they kissed and and feeling each other. This is not a felony. This is a gross misdmeanor. My client denied any sexual intercourse. In fact, that was the only night these two had contact according to my client. That he has not spoken to her since the event.

The young lady's mother acknowledged that the young lady is a handful. That she tries to look older than she is. That in fact, she no longer lives at home as she will not listen to what her parents instruct her to do. The mother also claimed that my client has known the young lady since she was 14 years old and the two have had a romantic relationship together. The mother stated that my client continued to text her explicit messages and that the relationship continues despite a court order to stay away from each other.

In the end our investigation found these accusations to be false. There was no intercourse between the two. My client's telephone records established that he never sent her a text after the night in question and there was no ongoing relationship. Furthermore, the investigation revealed that my client and the young lady never met until she came into that store a few days before this event. The young lady was 15, only a few days away from 16.

The case resolved. My client was fearful of being convicted of a criminal sexual conduct with a minor. An offense that would be a felony, mandatory registration and prison time. The eventual offer was for sexual contact, not conduct (contact over clothing of sexual parts, not penetration), a gross misdemeanor and the court would consider a stay of adjudication given the circumstances. A stay of adjudication means that at the end of completing probationary conditions, the case will be dismissed.

My client then had to follow the statute and complete a psychosexual evaluation. During this interview, my client was asked about the penetration. My client stated that there was none. The department of corrections and the evaluator took that as a denial of acceptance of responsibility. Why is this important? This is important because the department of corrections recommended that my client successfully complete sex offender treatment and after care as directed by the Corrections department. Also that my client comply with polygraph testing. If the client does not successfully complete these requirements, the client fails probation, will have a conviction and must go to jail, or prison as the case may be. Corrections further recommended that the court execute my client's sentence because he is not amenable to probation and will successfully complete sexual treatment because he won't admit to having sexual intercourse with the young lady.

This is absurd. After significant debate about the issue the department of corrections acknowledged that they consider what the initial complaint is to be true, not what the evidence shows. So, even though the evidence shows that sexual intercourse never happened, my client would be required to admit to having sexual intercourse in order to be successful with his treatment. This is because, whether treatment is successful, is completely subjective and arbitrary to the person performing the treatment. The kicker is this. Had my client admitted to having sexual intercourse with the young lady, that would be a lie and he would fail the polygraph and thus fail probation and end up in jail or prison. As was finally acknowledged, there is no way to successfully complete this absurd request.

The sex offender laws are a knee jerk reaction to very bad events. The downfall is that rather than looking at the specifics of the case and the specifics of the individual, we sentence according to a mob fear. A guilt by association. We lump in the minor offenses of a senior dating a freshman or sophomore with the child molesters. This is wrong. This is against every meaning of our Constitution and should make everyone appalled. A person can outright lie in their initial report to police because they are angry with their parents and want to spite them, the true facts can come to light, but the overpowering government because of our apathy as voters to educate ourselves, can decide that the truth is not the truth. Instead, what the government states is the truth must be accepted as the truth, or sit in prison. Sound familiar? Dictatorships are run this way.

Thankfully in this case, we had a judge that saw through the inconsistencies and nonsense of the alleged facts coming, not from the alleged victim, but the mother. The judge also discerned that Department of Corrections demands were a joke. That the demands were subjective, arbitrary and had no foundation. In the end, my client was placed on a proper probation with educational courses and also received that stay of adjudication. Had my client not had a lawyer, the department would convinced the court to do the opposite. They almost succeeded.

Your lawyer does much more than get a deal, an offer, or doing a trial. The representative role continues to insure that the government does not succeed in taking advantage of you during sentencing should you be convicted.

If you should find yourself in need of legal advice, please call for a free consultation.

Patrick W. Flanagan
763-786-5324
651-291-5453

email: patflanagan@patflanagandefense.com

www.patflanagandefense.com

Each incremental intrusion during a stop must be analyzed

Often times a person's vehicle is stopped due to an alleged traffic violation. This alleged violation may then result in a search of the vehicle, leading to felony charges or other charges significantly more severe than the reason for the initial stop. Just because an officer may find something illegal in your vehicle during such a search, does not mean that you will be convicted. One reason that the conviction may not occur is that the officer may have illegally searched the vehicle, or questioned the driver. This may result in the suppression of found evidence, or of information garnered from the driver's answers.

"[E]ach incremental intrusion during a stop must be strictly tied to and justified by the circumstances which rendered the initiation of the stop permissible." State v. Askerooth, 681 N.W.2d 353, 364 (Minn. 2004) (quotations omitted). Here, the first intrusion occurred when the officer identified Defendant. Once they had knowledge that the Defendant was not the owner with a suspended driver’s license the purpose of the stop had evaporated. Further detention and search violated the Defendant’s legal, statutory and constitutional rights in that the basis for the stop had ended. See also State vs. Hickman, 491 NW2d 673 (Minn.App.1992).

When confronted with an issue involving the search of your person or property, you should always seek the advice of an attorney knowledgeable in this area. Should you have such an issue and wish a free consultation, please contact Patrick Flanagan at:

763-786-5324
651-291-5453

email: patflanagan@patflanagandefense.com

www.patflanagandefense.com

Eyewitness evidence is not always reliable

Eyewitness testimony frequently provides information for arresting and charging someone of a crime. This testimony is also used by the prosecutor in an attempt to convict someone of a crime. These convictions can have dire consequences on future freedoms, employment, housing and life events. Therefore, it is imperative that eyewitness evidence be accurate and reliable. The accuracy and reliability depends upon how the government obtains that eyewitness testimony.
Recent DNA cases have shown the importance and the need for accurate and reliable eyewitness evidence. When recent DNA science has shown the convicted person did not commit the crime, the eyewitness testimony that convicted the person was shown to be fallible. Eyewitnesses do make mistakes in recalling and interpreting events. The human memory does have flaws.
These flaws are further emphasized by an investigator’s cues such as, body language, tone of voice, eye movement and other non verbal indicators. Each cue will negatively impact the reliability of eyewitness evidence. One way to avoid such cues is for investigators to use a “blind” procedure when obtaining eyewitness testimony. Many departments, or investigators, do not use these blind methods. There are various reasons the blind method is not used, but the most common is time. Using the blind methods requires more time and effort.

If you are accused of a crime, it is important that you have a lawyer review all the evidence in your case to make sure all proper procedures were followed. For a free consultation and review of the accusations against you, contact Patrick W. Flanagan at:

763-786-5324

651-291-5453

Email: Patflanagan@patflanagandefense.com

www.patflanagandefense.com

Not Guilty Blog. Accused of a crime? Protect yourself and your Rights: Drug possession in a motor vehicle

www.patflanagandefense.com

Drug possession in a motor vehicle

I represented a defendant in a methamphetamine case were the issue was possession. The methamphetamine was found in my client's motor vehicle. A passenger was also in my client's vehicle.

The state attempted to prove their case through "constructive" possession. In order to show constructive possession, the State must prove: a) that the officers found the methamphetamine in a place under Defendant's exclusive control to which other people did not normally have access; or b) that there is a strong possibility, which may be inferred from the evidence, that Defendant consciously exercised dominion and control over the methamphetamine if it was found in a place to which other people had access. State v. Florine, 303 Minn. 103, 105, 226 N.W.2d 609, 611 (Minn. 1975).

The State attempted to also work in the presumption of control one has when operating a motor vehicle. However, this presumption can be overcome. In this case, the presumption was overcome. The officer allowed the passenger to remain in the vehicle while searching and running a background check on my client for 45 minutes. Furthermore, the officer observed the passenger make "furtive" movements while in the vehicle. In addition, the officer then allowed the passenger to leave the scene without searching the passenger.

The verdict was returned as Not Guilty.

It is important that you have an attorney review all the allegations and "evidence" the government alleges to have against you. There may be inconsistencies or mistakes made that the untrained eye will not recognize. If you have questions about your case, please contact Patrick W. Flanagan for a free consultation.

Patrick W. Flanagan
763-786-5324
651-291-5453
Patflanagan@patflanagandefense.com
www.patflanagandefense.com

Make sure your license is valid before you drive

In a recently appealed case to the Federal 8th Circuit, a man was brought down by his suspended driver's license. This case helps to illustrates how law enforcement may use information from one source to lead to an investigation on a more serious offense. Searches by law enforcement is an area of law that is often contested. To properly contest a search and to determine if law enforcement violated your 4th Amendment Rights, you should contact a lawyer immediately. Patrick Flanagan offers free consultations. You can reach him at 651-291-5453; 763-786-5324; email: Patflanagan@patflanagandefense.com; www.patflanagandefense.com

United States v. Joe Franklin, No. 09-1549 (W.D. Arkansas).

In May 2008, a confidential informant notified police that Frankling was supplying cocaine to a street dealer, which led officers to begin to monitor him. Later, police observed the street dealer enter and exit Franklin's house before meeting with the informant to complete drug deals. During the investigation, officers obtained Franklin's bank records from the previous 8 months, which revealed more than $145,000 in total transactions. Then, on June 19, 2008, after a discussion between one of the investigating detectives and a police officer with the local police department, who knew Franklin's driver's license had been suspended, Franklin was stopped after being observed driving his vehicle. During the stop Franklin was arrested and officers discovered cocaine on his person. Thereafter, a judge issued a warrant for a search of Franklin's residence which revealed incriminating evidence.

The Eighth Circuit held that based on the information discussed between the investigating detective and local police officer, there was probable cause to make a warrantless arrest because the officer could reasonably believe Franklin was dealing cocaine. Also, the Eighth Circuit concluded that the warrant to search Franklin's home was supported by probable cause,including statements by the informant, surveillance of Franklin's house, and the suspicious transactions in Franklin's bank account.

If you believe that you may have a case that involves a search issue, contact Patrick Flanagan at the Flanagan Law Office immediately. Office: 763-786-5324; 651-291-5453; email: patflanagan@patflanagandefense.com; www.patflanagandefense.com

One death, one defendant, two convictions

The federal system can often result in significantly greater penalties and consequences than in state court. One example can be found in drug distribution resulting in death convictions. Below is a summary of a case where Mr. Washington sold Fentanyl and Percocet to a young man who took both drugs. The young man died. The coroner testified that the Fentanyl amount in the young man’s system, the Percocet amount, or the combination would have been enough to kill him. That was enough to convict Mr. Washington of two criminal acts resulting in death. One for the Fentanyl and one for the Percocet. The fact that there was only one death did not matter. This should be a cause for concern if someone is engaged in selling drugs. While Mr. Washington’s sentence was a concurrent 360 months, it would have been possible for the Judge to sentence the 360 consecutively. Such a sentence would have resulted in 720 months, or sixty (60) years.
Mr. Washington made one very grave error in his case. Mr. Washington thought it would be better to represent himself rather than have a lawyer represent him. Remember, if you are accused of a crime, or questioned by law enforcement, it is extremely important that you ask for a lawyer and then remain silent. For a free consultation, call Patrick Flanagan at 763-786-5324 or at the numbers and addresses listed below:


United States v. Burl Washington, No. 08-3678 (E.D. Mo.).
Sentenced to concurrent 360 month terms.


Self-representation. The district court duly cautioned defendant (“I think it would
be a grave, grave mistake for you to try to represent yourself. . . .”).

Sufficiency/841 death. Defendant distributed Fentanyl patches and
Percocet to Justin Knox, who ingested a patch and took some Percocet. Mr.
Knox died the next day from a “mixed narcotics overdose” of Fentanyl and
Oxycodone (Percocet has Oxycodone and Acetaminophen in it.) The circuit
was satisfied that the expert testimony at trial established that Mr. Knox
had sufficient amounts of Fentanyl and Oxycodone in him to kill him, either
independently of one another or in combination. The evidence was therefore
sufficient to uphold separate convictions for distributing Fentanyl
resulting in death, and for distributing Oxycodone resulting in death. No
error in obtaining two such convictions despite only one death. “We cannot
see any reason why the fact that the distributions at issue resulted in the
same death means that Washington cannot be convicted for each
distribution....”

Flanagan Law Office
Patrick Flanagan
763-786-5324
651-291-5453
Email: Patflanagan@patflanagandefense.com
www.patflanagandefense.com

Miranda not required for arrest

A common misconception is that officers must read someone their Miranda Rights before a person can be arrested. Miranda warnings are required only for custodial interrogations - "questions initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda v. State of Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966).

This is important to remember. Some people believe that since the arresting officer did not read the Miranda Rights, the case must be thrown out. This is not the case. There may be other evidence that the officer is relying upon to make the arrest. Do not begin making comments, or providing information, simply because you believe that the officer made a mistake by not reading your Miranda Rights.

Before speaking to law enforcement, request a lawyer. I do offer free consultations. Feel free to contact me at:

patflanagan@patflanagandefense.com
651-291-5453
www.patflanagandefense.com

What Constitutes a Burglary

In a recent case of mine a young man was accused of burglary. Somebody at the party called the young man and invited him owner. During that telephone call the female owner of the home also told the young man to come over. When the young man got to the house, the doors were locked and only males that the young man did not recognize were in the kitchen. The door appeared to be locked. The male owner of the house (the husband to the female mentioned above) did not invite the young man and did not answer the door. The young man pushed on the door until it opened and entered the home.

Entering a residence, without permission may constitute a burglary. If that residence is occupied, the charge will be burglary in the first degree, in violation of Minn. Stat. 609.582 subd. 1. It is important to remember that this includes attached garages. Therefore, if there are people in the living room and someone enters the attached garage with the purpose of stealing something, the charge could be burglary in the first degree, a felony.

We had a trial on our matter. Our defense relied upon the Jury Instruction that states "when several persons are in lawful possession of a building or of the same part of the building, any one of the persons may consent to the entry remaining of another person."

As the female owner of the home had given permission to my client, the verdict was not guilty.

If you have been accused of a crime, it is important that you have an attorney assist you in determining what defenses may be available to you and that the government is really able to prove all of the elements by proof beyond a reasonable doubt.

If you have any questions regarding your legal situation, please feel free to contact me for a free consultation.

Patrick Flanagan
763-786-5324
651-291-5453
www.patflanagandefense.com

Lawyer needed to protect you from prosecutorial misconduct

In the January issue of The Champion Magazine, author Shana-Tara Regon points out why it is so important to hire a lawyer and protect yourself from prosecutor misconduct. Even if you are a respected United States Senator. The article reviews an interview with Senator Stevens' lawyers. Senator Stevens was originally convicted, but the Department of Justice later asked the Court to set aside the verdict when new prosecutors discovered that evidence was manufactured and exculpatory evidence had not been disclosed to the defense.

Ms. Regon's introduction to the article brings up some great questions and statements. I will paraphrase those here.

"What is the role of the prosecutor? [T]o ensure that justice is served. Frequently, 'ensuring that justice is served' is understood to prioritize securing an indictment and then convicting the accused. Ensuring that justice is served should mean that only the guilty are appropriately accused and convicted, and that, quite importantly, the innocent are not. Prosecutorial overreaching and misconduct distort the truth-finding process and taint the credibility of the criminal justice system. Where conviction rates and win-at-all-cost attitudes eclipse this goal, the fundamental principles of our legal system are compromised. When prosecutors' fundamental obligations are ignored and individuals' rights are violated in order simply to secure a conviction, the damage is likely irreversible. For every defendant who eventually wins this battle, the unfortunate truth is that there are hundreds more who lose, and frequently, even more who have neither the means nor the appropriate circumstances to even begin to fight" Shana-Tara Regon, The Champion, January/February 2010, pg. 12.

Do not be that statistic. When you are accused of a crime, contact a lawyer immediately to protect your Rights and to make sure that relevant information establishing the lack of guilt is not hidden from you. If you have any questions about your legal situation, you are welcome to contact me at my site listed below.

www.patflanagan@patflanagandefense.com

Arrest illegal, search legal, conviction stands

Here is an odd twist for you. Be certain that you not only remember your right to remain silent, but that your friends and passengers do as well.

Law enforcement set up in a local establishment's parking lot to review the entry procedures for a warrant they were going to execute upon X's house for alleged drug offenses. As law enforcement spread out their maps on the hood of their vehicle and suited up for the big raid, along came X in his sport utility vehicle. X pulled up into the stall next to the plain clothes entry team. Law enforcement quickly gathered their items, jumped into their vehicles and began to watch.

A few minutes later, my client, "Y," pulled up in a car and parked next to X. Y was a passenger, with his girlfriend driving. Officers testified that Y got out of the vehicle and entered X's vehicle. Officers observed Y bend down while in X's vehicle. A few seconds later, Y exited X's vehicle and re-entered his girlfriend's car. Officers did not observe drugs, nor money exchange hands.

As Y and his girlfriend left, law enforcement stopped the vehicle as it was exiting the parking lot. Law enforcement then pulled out Y at gunpoint, handcuffed him and had him sit on the curb. Y's girlfriend then told law enforcement officers that Y had just purchased narcotics and the drugs were in his sock.

The district court ruled that the stop, arrest and search were all legal. The Appellate Court took a slightly different view, but the result was the same. The Court of Appeals found that the stop was legal as officers had a reasonable, articulable suspicion of criminal activity to justify the investigatory stop. Detectives had watched a suspected drug dealer under investigation stop in a large commercial parking lot far from the store entrance in a vehicle that he had driven to three recent controlled buys and that was subject to an active search warrant for drugs. Y had stopped next to the drug dealer's car, entered the drug dealer's car, reached down and returned to his own car in less than one minute. Therefore the stop was legal according to the Court of Appeals.

However, the arrest is a different story. The Appellate Court found that the officer did not have enough probable cause to arrest the Y. The court reasoned that the circumstances easily justified the stop and Y's girlfriend told detectives that Y had purchased drugs and that the drugs were in Y's sock. However, the Court found that these statements and subsequent discovery of the drugs occurred only after Y's arrest (being pulled out of the car at gunpoint) and therefore cannot establish probable cause for that arrest. Certainly the statements and circumstances are suspicious, but a person cannot be arrested "merely because he is found in suspicious circumstances." Therefore, the Court of Appeals ruled the arrest to be illegal.

That should end the inquiry, right? Well, not quite. The Court then stated that while I was correct and the arrest was illegal, that did not mean that the evidence found on Y's person needed to be suppressed. The Court did not agree that this evidence in Y's sock was fruit of the poisonous tree and that it was not evidence seized in violation of the Constitution, which would call for suppression. Instead, according to the court, the discovery was not the product of any police illegality but of a valid stop that resulted in his girlfriend affirming a sale and the location of drugs. Therefore, the conviction stands.

If only the girlfriend would have remembered her Constitutional Right to remain silent, we may have won this case. If you are ever found in this situation, be sure to request an attorney and invoke your right to remain silent.

Patrick Flanagan
www.patflanagandefense.com
651-291-5453