Criminal Defense

Media outlets move to unseal records of cellphone, wireless-device surveillance

Published on: November 4, 2014 | On behalf of Arnold & Smith, PLLC

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

Two Mecklenburg County Superior Court judges have indicated that they may be willing to unseal court records detailing how law-enforcement officers have used secret surveillance of cellphones and other wireless devices in closed investigations.

Superior Court Judge Richard Boner told the Charlotte Observer that the legal justification for sealing court records ends “once everything is over and done with” in a case. Superior Court Judge Robert Bell also indicated a willingness to consider unsealing some court orders that authorized the use of secret surveillance.

The surveillance equipment—known as StingRay, Hailstorm, AmberJack or TriggerFish—imitates a cellphone tower and enables officers to uncover the location of cellphones and wireless devices in the area, their serial numbers and other information. Charlotte-Mecklenburg Police have denied using the surveillance equipment to eavesdrop on conversations or store data from innocent people.

A number of Charlotte criminal defense attorneys told the Observer that they were unaware of CMPD’s use of the equipment until the Observer’s recent stories on the matter. In the stories, CMPD acknowledged that law-enforcement officers have been using the surveillance equipment for at least eight years.

Trend sees elected officials picking and choosing the laws they will enforce

Published on: October 28, 2014 | On behalf of Arnold & Smith, PLLC

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

Bill Stevenson became the latest North Carolina magistrate to resign his post in the wake of court rulings that paved the way for same-sex marriages to being in the Tar Heel State. The Gaston County magistrate—like at least six others in the state—cited religious objections to same-sex marriage as the reason for his resignation.

Magistrates, judges and clerks were warned by North Carolina’s Administrative Office of the Courts that if they refused to officiate same-sex weddings, they could be suspended, removed from office, or face criminal charges. Refusing to perform same-sex weddings, a memo warned, constituted a willful violation of a magistrate’s duty to uphold the Constitution of the United States.

The magistrates may be wondering exactly who is bound by the law, since the state’s highest law-enforcement official—Attorney General Roy Cooper—announced in July that he would not defend North Carolina’s State Constitutional Amendment banning same-sex marriage. At the time, Cooper correctly predicted that the Amendment would be overturned, but it is undisputed that he instructed justice department attorneys to ignore then-existing law when he ordered them to “stop making arguments we will lose, and instead move forward.”

Cooper was not alone. At least seven other state attorneys general refused to enforce bans on same-sex marriage. In each case, the attorneys declared that state laws or state constitutional amendments banning same-sex marriage either violated the Constitution or created ethical conflicts for lawyers asked to defend the bans.

Businesses face civil and criminal penalties for refusing same-sex business

Published on: October 21, 2014 | On behalf of Arnold & Smith, PLLC

Charlotte DWI Lawyer Brad Smith answers the question: What are the long term effects of being convicted of a crime?

Officials in a northern Idaho city have threatened two citizens with arrest, fines and imprisonment after the citizens “politely declined” a same-sex couple’s request to be married at their wedding chapel.

Donald and Evelyn Knapp, who own the Hitching Post wedding chapel in Coeur d’Alene, Idaho, were notified by city authorities that they violated Coeur d’Alene’s city code Chapter 9.56, which provides for “equal opportunities for employment, housing, commercial property, and the use of public accommodations… regardless of sexual orientation and/or gender identity/expression[.]”

City Attorney Warren Wilson told the Idaho Statesman that the term “public accommodations” applies to wedding activity, noting that similar laws have applied to florists, bakeries and photographers in other states who refused to work on same-sex weddings.

Donald Knapp told KXLY in May that he could not unite people in a way that he believes is in conflict with what the Bible teaches. The Coeur d’Alene ordinance provides exemptions for religious organizations, but the Knapps’ wedding chapel is a for-profit business, so the exemptions do not apply to them.

The Knapps face a 180-day jail term and $1,000 per-day fine for each day they decline to perform the same-sex wedding. Under Title 1, Chapter 1.28(B) of Coeur d’Alene’s city code, the penalties are cumulative, meaning the Knapps face a separate 180-day jail term and $1,000 fine for each day on which their refusal continues.

City backs away from attempt to seize sermons from pastors who objected to ordinance

Published on: October 16, 2014 | On behalf of Arnold & Smith, PLLC

Charlotte DWI Lawyer Brad Smith answers the question: What are the long term effects of being convicted of a crime?

A group of Texas pastors who participated in a political effort to repeal a controversial city ordinance have been targeted by pro bono attorneys representing the City of Houston.

The pastors and others filed a lawsuit after petitioning unsuccessfully to repeal Houston’s “Equal Rights Ordinance.” Attorneys representing the city subpoenaed sermons and other materials related to the ordinance, to Mayor Annise Parker and the subject of homosexuality. On Wednesday, however, Mayor Parker backed away from the subpoenas, calling them overly broad and appearing to agree with critics who said the subpoenas trampled on the pastors’ free speech rights.

The ordinance was passed this spring with great fanfare, however the “roaring chorus of cheers” that erupted inside Houston’s city hall in May has dulled, and the passage of the anti-discrimination ordinance that precipitated those cheers is circling into a drain of acrimony.

The council that governs Texas’ largest city passed by a vote of 11-6 what many consider to be Mayor Parker’s signature achievement. The ordinance was passed after a string of hotly-contested public meetings.

The ordinance outlaws discrimination based on a variety of factors. Initially Mayor Parker suggested that the idea for the ordinance arose after African-American men complained that they were refused entry to nightclubs in the city based on their race.

Fall foliage playing unexpected role in hunt for accused cop killer

Published on: October 14, 2014 | On behalf of Arnold & Smith, PLLC

J. Bradley Smith of Arnold & Smith, PLLC answers the question “If I have an outstanding warrant, what should I do?”

North Carolina is not the only state that boasts of rich fall foliage painting its Appalachian hillsides and mountains annually. Now one eastern seaboard state is counting on the falling foliage to uncover an accused cop killer.

Eric Frein, a self-described “survivalist” and trained marksman who—according to his father—“doesn’t miss” when he shoots, has been on the run in Pennsylvania’s mountainous Appalachian region since September 12. Police allege Frein shot Cpl. Bryon Dickson to death and critically injured Trooper Alex Douglass outside their Pike County, Pennsylvania barracks.

Frein, who is considered “armed and extremely dangerous,” ambushed the officers and then fled into the forested Poconos Mountains. The Poconos are part of the Appalachian range situated in northeast Pennsylvania.

The search for Frein has dragged on for over a month and, according to officials, it is costing taxpayers in the Keystone State some $1.1 million per day. Before the shooting, Frein lived with his parents in Seneca Lake, Pennsylvania. After his son went missing, Frein’s father told authorities Frein was likely armed with an AK-47 and a .308 rifle with a scope, which were missing from the home.

Frein was trained by his father to shoot the weapons and also knows how to survive in the woods. On September 29, searchers found a cache of food, two pipe bombs and handwritten notes detailing the shootings of Dickson and Douglass when they stumbled on Frein’s recently abandoned hideout.

Disturbing trend sees disaffected youths joining terrorist fighters abroad

Published on: October 9, 2014 | On behalf of Arnold & Smith, PLLC

J. Bradley Smith of Arnold & Smith, PLLC answers the question “Should I talk to the police?”

Notes urging loved ones not to give away your criminal plans are never a good idea, especially if you do not want to get caught. This is something would-be ISIS fighter Mohammed Hamzah Khan did not learn before attempting to travel overseas to join and fight with the infamous terrorist group.

ISIS—a name short for Islamic State in Iraq and Syria—is a terrorist organization that has taken control of much of northwestern Syria and northeastern Iraq. The United States has said the group has as many as 35,000 fighters under its flag. It is also called—most notably by U.S. President Barak Obama—“ISIL,” short for Islamic State of Iraq and the Levant. The Levant is a term historically used to refer to an area of the eastern Mediterranean lands now comprised of Syria, Lebanon, Jordan and Israel.

Disillusioned young people from Europe and the United States have been travelling to Syria and Iraq in alarming numbers to join forces with ISIS. James Comey, director of the U.S. Federal Bureau of Investigators, said his agency is aware of at least a dozen Americans fighting for ISIS in Syria. As many as 100, however, have either tried to travel to Syria and were arrested or have travelled there and returned to the United States, Comey said.

Khan planned to fly to Vienna, Austria—in Eastern Europe—and from there planned to fly to Istanbul, Turkey. Turkish troops are fighting ISIS at the Syrian border to prevent fighters from advancing into the NATO-member state. NATO stands for the North American Treaty Organization, a union traditionally comprised of North American and European trading partners. Turkey has been a member of NATO since 1952, and European NATO states have promised to help Turkey in the event of an ISIS invasion.

Young woman plans to commit suicide on Nov. 1, wants others to have the same right

Published on: October 7, 2014 | On behalf of Arnold & Smith, PLLC

Charlotte DWI Lawyer Brad Smith answers the question: What are the long term effects of being convicted of a crime?

A 29-year-old terminally ill woman is shining her light on “dying with dignity,” a cause she hopes she furthers when she kills herself on November 1.

On that date, Brittany Maynard plans to take a lethal dose of a medication prescribed to her by a doctor. She said she plans to “painlessly fade away” in her bedroom, surrounded by her loved ones, with her favorite music playing.

Maynard was diagnosed on New Year’s Day this year with Stage 4 glioblastoma, a form of aggressive cancer that would end her life in a matter of months, her doctor told her. Maynard said she is not suicidal. “I want to live,” she told People Magazine, but there is no cure for her disease.

After doctors told her what would happen to her body during the final stages of her illness, Maynard said it was a relief to discover an alternative: Death with Dignity. Death on her own terms is an option because, Maynard said, she lives in one of the few states that allows it. Oregon’s Death with Dignity Act, passed in 1997, allows “terminally-ill Oregonians to end their lives through the voluntary self-administration of lethal medications, expressly prescribed by a physician for that purpose.”

Only five states have so-called “Death with Dignity” laws on the books. North Carolina is not one of them.

Male student’s “epic threesome” with teachers should spark outrage, police say

Published on: October 2, 2014 | On behalf of Arnold & Smith, PLLC

J. Bradley Smith of Arnold & Smith, PLLC responds to “The person that called the police doesn’t want to press charges, can I still be prosecuted?”

Some in the media have suggested that the latest teacher-student-sex case to make national news is a victimless crime. The case involves a 17-year-old male student who slept with two of his English teachers—at the same time. Detectives are now investigating rumors that the three made a sex tape of their encounter.

St. Charles Parish, Louisiana sheriff’s deputies said yesterday that the encounter between the student and teachers occurred at one of the teacher’s apartment on a Friday night after a school football game. The teacher/host has been identified as 24-year-old Rachel Respess. She surrendered herself to authorities yesterday and was charged with one count of carnal knowledge involving a juvenile, one count of indecent behavior, and one count of contributing to the delinquency of a minor.

The second teacher—34-year-old Shelly Dufresne—stands accused of engaging in sexual relations with the same student. She has also been arrested and faces charges. According to media reports, Dufresne is married and is the mother of three young children.

Ironically, one of the three judges who hear felony cases in St. Charles Parish is Dufresne’s father, Emile St. Pierre. Judge St. Pierre is the senior judge of the 29^th Judicial District Court. Another judge in the district has already recused herself from the case, due to conflict. Before recusing herself, Judge Lauren Lemmon set Dufresne’s bond at $200,000 and placed her under house arrest.

FBI’s fake defendant and his gun charge take down two Philadelphia judges

Published on: September 30, 2014 | On behalf of Arnold & Smith, PLLC

J. Bradley Smith of Arnold & Smith, PLLC answers the question “Should I ever plead guilty to a charge?”

In May 2012, Officer John Snyder pulled over 40-year-old David Khoury after he spotted the man driving erratically down a busy stretch of Torresdale Avenue in Holmesberg, Pennsylvania. When he approached the car, Snyder said, he spotted a gun lying on a floor mat. Khoury admitted he did not have a license to carry the unloaded Glock .40-caliber pistol. The Louisville, Kentucky native was booked on felony weapons charges and released on a $50,000 bond.

In 2010, an unnamed campaign donor gave $1,000 to the reelection campaign of Judge Joseph Waters, Jr. Judge Waters told the donor to get in touch with him if any of the donor’s “people” ran “into a problem.” After Khoury’s arrest, the donor called Waters and told him about Khoury’s felony weapon charge problem. Khoury, the donor said, was the cousin of a business associate.

Judge Waters determined that Khoury’s case was set to be heard by another Judge, Dawn Segal. He called Judge Segal and told her to help Khoury, identifying the man as a personal friend. Judge Segal reduced Khoury’s charge to a misdemeanor. When Khoury failed to appear for trial, the charge was dropped because court staff could not locate his address. Prosecutors and defense lawyers who worked on Khoury’s case could barely remember the man.

It seems David Khoury never existed.

Charlotte eye doctors arrested after detectives uncover alleged hydrocodone trafficking

Published on: September 25, 2014 | On behalf of Arnold & Smith, PLLC

Charlotte DWI and Criminal Defense Attorney J. Bradley Smith of Arnold & Smith, PLLC answers the question “If I simply intend to plead guilty, why do I need a lawyer?”

Charlotte-Mecklenburg police officers arrested two Charlotte eye doctors on Tuesday and charged them with trafficking in opiates, obtaining a controlled substance by fraud, and larceny.

A patient of Dr. Benjamin Lanier Hobbs and Dr. Samuel Ryan Hobbs said he was given a prescription for hydrocodone and told to return to Clear View Eye Care—where the doctors worked—once it was filled. The patient complied, but said when he brought the pills to the doctors’ office, the doctors removed a portion of the pills from the bottle before returning the bottle to him.

Detectives told Charlotte’s WBTV that the doctors prescribed large amounts of hydrocodone to patients. Detectives executed search warrants at the doctors’ offices in order to seize records relating to unknown victims.

The doctors’ arrest follows several other high-profile drug trafficking cases involving Charlotte-area doctors. Law enforcement officials say the over-prescribing of drugs and doctor involvement in prescription drug trafficking is a troubling trend.