Federal Cases

Change in “equitable sharing” may mean less dubious seizures of “criminal” cash, property

Published on: February 3, 2015 | On behalf of Arnold & Smith, PLLC

J. Bradley Smith of Arnold & Smith, PLLC answers the question “Can I be arrested without evidence against me?”

Kenneth Lamont Clark runs a strip club and his patrons pay for their entertainment with cash. A lot of cash. So when deputies in Harnett County who were partnering with a United States Drug-Enforcement Agency task force pulled over and searched Clark, they found cash. Lots of it. Two stops—the first on Feb. 26, 2013 and the second on March 12, 2014—netted law-enforcement officials some $130,000.

Clark was not issued a citation in either of the stops, nor was he charged with a crime. Nonetheless, since the deputies who pulled Clark over claimed drug-sniffing dogs “alerted to drugs” in his vehicle, they seized Clark’s money.

Federal law allows agents to seize currency that “was used, or intended to be used, in exchange for controlled substances, or [currency that] represents proceeds of trafficking in controlled substances[.]” North Carolina law contains no similar forfeiture law. In order to get around that, local law-enforcement agencies partner with law-enforcement officers in federal agencies. Under a program called “equitable sharing,” if local law-enforcement officials make the bust, they get to keep most of the money seized.

Last month, United States Attorney General Eric Holder issued an order placing more restrictions on the seizure of assets pursuant to the equitable-sharing program. The restrictions mean that it will be tougher for local law-enforcement officials to seize and keep proceeds of alleged criminal activity unless the alleged criminal activity “relates to public safety concerns, including firearms, ammunition, explosives, and property associated with child pornography.”

Supreme Court: Illegal for police to search your phone without a warrant

Published on: May 27, 2014 | On behalf of Arnold & Smith, PLLC

Charlotte DWI and Criminal Defense Attorney J. Bradley Smith of Arnold & Smith, PLLC answers the question “Can the police search my car without a warrant?”

Of course police want everything off your phone. They want to take it, analyze it, and try to use it to prove you committed a crime.

In their eyes, your phone is like anything else. Anything you say and do – text, email, connect with old friends on social networking sites – can and will be used against you.

Until yesterday.

In a June 25, 2014 unanimous decision (and I don’t mean your menu choice for lunch from Moe’s Southwest Grill), the nine justices of the United Supreme Court ruled that police have to get a warrant before they can troll through the contents of your phone.

The case – Riley v. California – began when an officer pulled David Riley over for driving in a car with an expired tag. Things went downhill fast for Riley when the officer learned his license had been suspended and he found two handguns in Riley’s car.

The officer took Riley’s smartphone and searched through the portion of his contacts titled “Crip Killers.” Photos and videos on the phone showed Riley was a member of the Bloods gang and had participated in a shooting weeks before his arrest, officers alleged.

After a trial, Riley was convicted and sentenced to 15-years-to-life in prison.

He appealed, arguing that the Fourth Amendment to the United States Constitution required officers to get a warrant before searching the contents of his smartphone. Some powerful sources lined up against Riley, including the Obama administration, which argued that police have always had free reign to search people’s “letters, diaries, briefcases and purses,” so they should be able to troll through people’s cell phones.

Chief Justice John Roberts appeared to laugh off that assertion in the Court’s opinion, writing that the comparison was “like saying a ride on horseback is materially indistinguishable from a flight to the Moon.”

Former FBI Agent’s Report says Convict Should Get New Trial

Published on: May 31, 2012 | On behalf of Arnold & Smith, PLLC

A former FBI agent has come forward to tell the authorities Kalvin Michael Smith should be given a new trial because the initial investigation into his case was seriously flawed. The agent’s name is Chris Swecker and he is the former assistant director of the criminal investigative division at the Bureau. He told reporters at a press conference that the detectives who testified in court did not do so truthfully. Further he said that they failed to properly document potentially exculpatory evidence and that they failed to pursue other promising suspects for the 1995 beating of Jill Marker, for which Smith was convicted.

Swecker’s harshest critiques were reserved for Don Williams, the lead investigator in the Marker case. Post #2 criminal image 5.31.12.jpg He thought that Williams was disorganized and not prepared for the daunting task of investigating the tragic incident. Williams, of course, defended his work on the case.

The assault happened back in 1995 where the victim, Jill Marker, was a manager at the Silk Plant Forest store. Marker was severely beaten while she was working in the store. At the time of the assault she was pregnant. Fortunately, both she and her baby survived the beating, though Marker is now severely brain damaged and requires constant care. Smith was convicted of attempted murder in 1997. He has since exhausted all of his state appellate remedies and is now pursuing appeals through the federal system.

Smith’s supporters formed a group called the Silk Plant Forest Truth Committee and hired Swecker to do an independent review of the case. After an exhaustive investigation, Swecker produced a report that criticized the investigation and its focus on Smith. Specifically, Swecker found that two other suspects – Michael Fuller and Kenneth Lamoureux – were never seriously considered by the police when Swecker thought they were excellent candidates for the beating. A witness placed Lamoureux at the scene on the night that Marker was beaten and witnesses have said that Marker rebuffed Lamoureux’s romantic advances, which made him angry.

Fuller was identified as the driver of a car that was outside of the plant that evening. Detective Williams tracked him down and tried to interview him, but Fuller refused to answer any of Williams’ questions. Swecker believes that both Lamoureux and Fuller were dropped as suspects when they both retained the services of lawyers.

Federal Appeals Court Revisits North Carolina Terrorism Case

Published on: May 15, 2012 | On behalf of Arnold & Smith, PLLC

Justices at the Fourth Circuit Court of Appeals are looking into whether Mohammad Hammoud should be given a new trial or a new sentencing hearing. Hammoud was convicted of supporting a terrorist organization. The prosecution in his case claimed that he participated in a cigarette smuggling ring and sent the proceeds of the illegal operation to Hezbollah, a militant organization that the United States has identified as a terrorist organization.

Hammoud’s attorneys deny that he is a member or supporter of the organization. They concede that he sent the group money, but the money was sent to a branch of the organization that provides social services, not to the branch that carries out militant terrorist attacks. Post #1 criminal image 5.15.12.jpg Stanley Cohen, Hammoud’s attorney, believes that the sentence he received is disproportionate to the crime. Initially, Hammoud was sentenced to 155 years in a federal prison, but a federal judge reduced that to 30 years after finding the sentence grossly disproportionate. The reduction did not seem to appease either the prosecution or the defense.

Federal prosecutors are seeking a new sentencing hearing, believing that the 30 year sentence Hammoud received was too lenient. They are requesting that he be sentenced to life in prison. Cohen, on the other hand, believes that cases with similar facts as those to Hammoud’s case should set the standard for his sentence. Other cases similar to his have resulted in four or five-year sentences. There is also new evidence that has been discovered which suggests that Hammoud may have been telling the truth about not being a card-carrying member of Hezbollah. The prosecution, of course, disputes this new evidence as well as the comparison to similar cases, asking that Hammoud’s case be evaluated alone and that the sentence given be based on his actions and his prior convictions and not on how his case measures up to other similar fact patterns.