Criminal Defense Attorney – Minnesota

February 7, 2010

Move Over for Police Officers: It’s a Minnesota Law

As I have been driving on Minnesota freeways this winter, I have seen many motorists violating a Minnesota Law designed to keep Minnesota’s Highway Patrol Officers and other police officers, emergency medical personnel and tow truck drivers safe as they assist motorists, respond to vehicle collisions and emergencies, and issue traffic citations breaking Minnesota Traffic law.

When drivers see police officers executing a traffic stop on the shoulder of Minnesota freeways and roads, or responding to other roadway emergencies, it is the law that the drivers are to move over full one lane to leave an empty lane between the emergency vehicles and moving traffic. Police officers may pull drivers over that violate this law.

Minnesota Statute Section 169.18, subd. 11, states in part, “the driver of a vehicle shall safely move the vehicle so as to leave a full lane vacant between the driver and any lane in which the emergency vehicle is completely or partially parked or otherwise stopped…”

This law was passed in reaction to the unfortunate death of Minnesota State Trooper Ted Foss. Trooper Foss was hit and killed by a semi-truck on August 31, 2000, during a routine traffic stop. Also known as the Ted Foss Law, it is designed to give emergency vehicles room to safely work on the portion of roadway they are occupying by requiring passing motorists to leave a lane vacant between them and those parked emergency vehicles. The law also requires that drivers reduce their speed as they pass the location of the emergency vehicle(s) and road repair equipment. Emergency vehicle is defined by Minnesota statute as the following: towing vehicles, police vehicles, ambulances, and fire trucks.

Although a stop by a police officer is fully legal, what the state has to prove in an alleged violation of this offense is that it was possible to move over.

To see the full statute, click here. Meanwhile, respect Minnesota’s police force that responds to traffic emergencies and enforces our traffic laws. If you have any questions about a traffic stop, please call a Minnesota criminal defense attorney for a free consultation.

Attorney John Scott, Office: 651-203-5990, Cellular: 612-963-4629, john@bennerotte.com

August 7, 2009

Obstructions On Rear View Mirror – Probable Cause?

Minnesota Police Officers – Probable Cause With Fuzzy Dice?

Here is a tip on how to NOT get pulled over by a police officer. You have all seen cars with fuzzy dice, graduation tassels, air fresheners, garters and disco balls with hanging from the rearview mirror?  They are breaking the law – there is a Minnesota statute that says so.

Police officers can use objects hanging from a rear view mirror as probable cause to pull you over and check you out! To avoid these unwelcome intrusions, don’t hang anything from your rearview mirror.

If you have questions about a traffic stop or need legal help to challenge a citation, give me a call today.  I’m attorney John Scott, and I’m on your side.

Tel: 651-203-5990

April 29, 2009

Selling Simulated Substances Is a Felony Crime in Minnesota

 

Felony Criminal Charges For Selling Simulated Controlled Substanses

 Selling simulated controlled substances in Minnesota is a felony offense.  A recent client of ours was charged with this drug crime.  Often the people charged with this crime are unaware of the seriousness of selling something that is not a drug, representing that it is a drug.

 

 

Aspirin - Legal until sold as a Controlled Substance

Aspirin - Legal until sold as a Controlled Substance

Illegal Ecstasy Pills
Illegal Ecstasy Pills

For example, in my recent case, my client was charged in Redwood County.  An undercover officer from the Drug Task Force contacted my client, seeking to buy Ecstasy. My client declined to do so initially, but the undercover officer continued to pressure my client.  So my client caved in, and agreed to sell him Aspirin that looked like Ecstasy pills. The undercover agent knew that the pills were fake Ecstasy, but agreed to buy them anyway.

   Under Minnesota Statute Section 152.092 selling a substance representing it as an illegal drug, even though it is not, is a serious felony offense.

 Fortunately for my client, there are good defenses available suitable for the specific facts of his case.

 If you have been charged with a Minnesota drug related crime, please call criminal defense attorney john Scott at 651-203-5990, or visit  my website.  Come back and visit my blog for more criminal defense information.

 

January 19, 2009

An Alford Plea-Not Necessarily the Best Defense –Criminal Defense Attorney in Minnesota

You Have Been Told To Take An Alford Plea, Should You?

You find yourself in a predicament where you are faced with charges.  Maybe you are guilty of one charge, but not the other.  You are offered a plea for both.  Maybe it is a good deal for the one, but not really for the other.  Should you take an Alford plea for the one charge you didn’t do?

What is an Alford Plea exactly?  An Alford Plea is a plea in criminal court in which the defendant does not admit the act and asserts innocence, but admits that sufficient evidence exists with which the prosecution could likely convince a judge or jury to find the defendant guilty.  Upon receiving an Alford plea from a defendant, the court may immediately pronounce the defendant guilty and impose sentence as if the defendant had otherwise been convicted of the crime.  It is basically the same as a guilty plea, and is treated as such by all parties, except-the defendant, who is proclaiming their innocence. 

If you find yourself in a situation like this, or you need council in your court proceedings, call Minnesota Attoreny John Scott at 651-203-5990.

 

 

 

 

April 23, 2008

No Insurance ticket for a non-owner driver

One type of traffic ticket that you should always talk to a criminal defense attorney about is a No Insurance ticket. Under Minnesota law, it is a crime to not have insurance on the vehicle you are driving. Police can give you a ticket for driving another person’s car that does not have insurance.

But don’t just pay the fine. Remember that you are presumed innocent of the crime of No Insurance until you admit that you are guilty, and paying the fine is considered an admission of guilt. You also have the right to remain silent. A Minnesota criminal defense attorney will tell you that the State has to prove that the non-owner driver given a ticket for no insurance, knew or should have known that the vehicle did not have insurance. Think about it. Can you prove beyond a reasonable doubt what I know if I say nothing?

The most obvious case is a potential client of mine who was an 18 year old, still living at home, who was driving his father’s car and got into an accident. The investigating police officer called the family’s insurance company from the scene of the accident to verify insurance coverage. The insurance coverage had been cancelled for non-payment of premiums. The client was given a ticket for no insurance, even though he had no idea the insurance was lapsed, and even though it was not his responsibility to pay the premiums. If this client had simply paid the ticket like he wanted to do, the State of Minnesota would have suspended his driver’s license, even though the accident was not his fault, and it was his dad’s fault that the insurance had been cancelled. There is no way the State could have proven this client was guilty.

If you have a question concerning your Minnesota ticket for No Insurance, call today for a free consultation.

John Scott, 612-963-4629

April 2, 2008

Felon in Possession of a Firearm

I am currently working on a case illustrates why probable cause is so important. I am representing a 24 year old man who in Olmstead County who is charged with the crime of Felon in Possession of a firearm. After his release from custody on the felony charge, he went to live at his parents’ house, and went to work in his family’s business. At the home, in addition to my client, my client parents and six of his 9 brothers lived at the home, which is located in a rural area including wooded acreage and farm fields. My client was the only person at the home with a criminal record. My client’s dad and brothers and are hunters and shoot target practice for sport and recreation, and own rifles and shotguns for those purposes.

He was under the supervision of Olmstead County’s probation agents. His probation agent and another corrects agent visited the home on July 27, 2007. None of the residents were there, but the agents observed shell casings and live rounds for guns of three different calibers, primarily rifle rounds. The corrections agents then met with an Olmstead County Detective, who obtained the search warrant to permit a search for firearms and related materials.

The deputies did execute the warrant a few days later. At the contested evidentiary hearing, the deputies testified that there were no guns in the bedroom of my client. The deputies did find guns in house and garage, but did not find any evidence indicating that Jonathan Nett intended to possess the guns, use the guns, or control the guns to the exclusion of the other residents of the home. The detective testified that my client told him that he took some of the guns out of the house to the garage two or three months prior so that one of his brothers could lock them up.

In representing my client, we asked the court to suppress all physical evidence seized pursuant to the search warrant executed July 26, 2007 on the ground that there was no probable cause for the warrant, and thus, the search and seizure violates the Fourth Amendment to the United States Constitution. The Fourth Amendment provides:

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

Specifically, the Defendant contends that the search warrant was not issued on probable cause. Probable cause exists when the affidavit sets forth sufficient facts to lead a prudent person to believe that there is a “fair probability that contraband or evidence of a crime will be found in a particular place.” My argument to the Court in this case, is that the was no facts showing that my client specifically was in possession of a firearm.

Under Minnesota Statute § 624.713, subd. 1(b), it is a felony for a person convicted of a crime of violence to possess any type of firearm. A conviction under that statute requires either actual or constructive possession of a firearm. Actual possession means the defendant physically had the firearm on her person. Constructive possession requires that:

(1) the police found the item in a place under the defendant’s exclusive control to which other people did not normally have access, or (2) if the police found it in a place to which others had access, that there is a strong probability, inferable from the evidence, that the defendant was, at the time, consciously exercising dominion and control over i

My client’s case specifically requires that prosecutor prove that my client had constructive possession over the firearms. The Minnesota Supreme Court has recognized that even though actual possession may not exist in many cases, the constructive possession doctrine is sufficient to establish possession for a conviction “where the inference is strong that the defendant at one time physically possessed the substance and did not abandon his possessory interest in the substance but rather continued to exercise dominion and control over it up to the time of the arrest.” My argument was that the under a constructive possession analysis, there was no probable cause that my client possessed a firearm.

The standard for probable cause is lower than the beyond-a-reasonable-doubt standard necessary for a conviction. Probable cause exists if “evidence worthy of consideration . . . brings the charge . . . within a reasonable probability. Stated differently, probable cause exists when “the facts would lead a person of ordinary care and prudence to hold an honest and strong suspicion that the person under consideration is guilty of a crime.”

My client’s case is similar to an unreported case the Minnesota Court of Appeals reviewed in 2006. In that case, State v. Adiel Pedersen, the Mrs. Petersen, the Defendant, was a convicted felon, and lived in a single family residence with her husband. Officers executed a search warrant of the residence, looking for controlled substances. In a downstairs closet, officers found two firearms. Among other charges the Defendant was charged with prohibited person in possession of a firearm, in violation of Minn. Stat. § 624.713. At trial, the Defendant denied knowledge of the guns in the closet. The state argued that the gun’s presence in the same closet in Defendant’s home of both firearms and clothing and other objects that may have belonged to Defendant established her possession of the firearms. The jury found the Defendant guilty of the firearm-possession charges. On appeal of the firearms conviction, Defendant also argued that because her husband had a lawful right to possess the firearms, there was insufficient evidence that Defendant possessed the guns.

On appeal, the Defendant argued that her firearm possession conviction was not supported by the evidence. The Court held that there was insufficient evidence to charge the Pedersen Defendant with the firearm possession charge, meaning that the Court found that there was no probable cause that Mrs. Pedersen could have been guilty of the firearm charge. The Minnesota Court of Appeal’s analysis and discussion included an overview of other jurisdictions that have reviewed possession charges when the guns are actually owned by someone else in the home. In all of those cases, the State has to show evidence that the person charged actually had dominion and control over the firearm.

In my client’s case, the Court should dismiss the charges against my client. Probable cause, “the facts that would lead a person of ordinary care and prudence to hold an honest and strong suspicion that the person under consideration is guilty of a crime” does not exist, as there are no facts indicating that my client possessed the firearm that were in the home that he lived in with eight other people.

The probable case standard is supposed to be a safeguard to prevent innocent people from being charged with crimes, and probable cause refers to a standard by which a police officer has the right to make an arrest, conduct a personal or property search or obtain a warrant. It is also used to refer to the standard to which a grand jury believes that a crime has been committed. This term comes from straight from the Fourth Amendment of the United States Constitution, is a simplistic definition is would be “a reasonable belief that a crime has been committed” and that the person is linked to the crime with the same degree of certainty. As a Minnesota criminal defense attorney, I believe that probable cause should be argued in every case, especially those cases where the State must rely on circumstantial evidence to prove guilt.

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