Trash Rips

Trash rip is the phrase used by law enforcement to sneak to the front of your residence in the middle of the night and take the garbage you have set out for pickup the following day. Once they take your garbage, they take it to a place of warmth and comfort, dump it out, and go through the trash for evidence of illegal substances such as marijuana seeds and stems. Marijuana seeds and stems are evidence that marijuana is to be found in the residence from whence the trash derived. The courts uniformly, to my knowledge, declare that a person has no expectation of privacy in the trash that he sets out on the street for collection. I am most certain that if one read enough cases dealing with the fourth amendment and the searching of garbage bags one would find rationalization for this position. Personally I don't expect anyone to take my trash to go through it for any purpose and wouldn't much like it much if someone did take it. My neighbors, strangers, nor law enforcement do not need to know my business. The lack of expectation in privacy to trash is one of these judicial pronouncements without a basis in fact. Numerous such determinations have been made by the courts whereby they simply declare something as fact and we as citizens must conform to that determination. The practice of law enforcement to collect garbage from suspected users of illegal substances is not a secret. Most defendants who are the subject of such searches and then must endure a knock on the door by the ninja squad, usually with a battering ram, should know that neatly disposing of the remainder of their illegal substances or of the paraphernalia used to contain it or to use it is not the thing to do. Most regular drug users who I represent have been the subject of a search warrant or have friends and associates who have. They certainly have an expectation that the evidence of their crime will be disposed of properly in the landfill for none to see or suspect. These people are aware that the use of these substances is illegal, that they may be arrested, thrown in jail, fined, and required to hire lawyers. These people do not throw their used meth pipes into the front yard for the neighborhood kids to find or the guy walking his dog to pick up and call about. They put them in a bag with the other trash, tie the bag, and expect the garbage truck to pick it up and to disappear it the next day. To say that there is no expectation of privacy is simply to declare something contrary to fact. I would argue that the trash sitting in your front yard waiting for pickup is an extension of your residence, which is your castle to be protected from search to the fullest extent possible. It is part of your curtilage which is the area around your house and associated buildings. If you become aware that someone is lurking in your back yard at night or your hear something in your open garage at three in the morning, you call the cops. If you can't sleep and are looking out the window when someone pulls up and throws your garbage bags in the back of a vehicle, you don't call the cops because it is the cops. But if you did call the cops, would that not be evidence that there was an expectation of privacy. I think this a marvelous idea. Call law enforcement if someone takes your trash. You, as home owner, or resident are paying for the collection of your trash. You know who is to be picking it up. You know that the people picking up your trash have neither the inclination or time to be sifting through it. When you send a letter to a person, you have an expectation that the letter will go to that person, not to a third person. Trash is hardly any different. When you set your trash on the curb, you expect it to go to the landfill, not to the police station.

Let Them Vote!

Our governor, Terry Branstad, has magnanimously decreed that it will now be easier for convicted felons to regain their right to vote. One does wonder about this as most convicted felons who would even consider voting are democrats. I'm sure there are many in his party that question the propriety of this demonstration of democratic enthusiasm. All is well though, in that most felons don't vote. They have long ago accepted the fact that voting has no effect whatsoever on their lives and is more trouble than it is worth. The harm done by this act is minimal, if any. The other sop given to the hardliners is the money. In order to be able to vote, these convicted felons will have to pay. It will cost money to vote. From what was reported of the decision by the governor in the paper, which may or may not have any basis in fact, in order for a felon to regain his right to vote, he must have paid his fines, court costs, attorney fees, and restitution or be making regular payments on them. Since 80%, at a minimum, of convicted felons are destitute, not much will be added to the state treasury from this decision by the governor--although it does sound good and will placate those of us who worry constantly about the state budget and high taxes. What this does, in fact, is further restrict the right to vote. The governor proclaims that it will now be easier for a felon to regain his right to vote but at the same time requiring money to do it. The effect is the opposite of the proclaimed which is exactly how we do things in this country. It works since most of us don't think about anything at all and certainly will not spend any time analyzing the governor's proclamation but will take it for what it is stated to be. As we are also creating felons at a rapid pace, the numbers of the public able to vote will continue to diminish. The legislature creates new felons every session. They should quit the quibbling and just make every crime a felony and we can solve the problem of ne'er-do-wells voting once and for all.

Postage Theft

Perusing the federal criminal code for long-buried crimes, I ran across 18 USC 1720 which makes it a crime to reuse a postage stamp. Not only is it a crime, but Congress in its efforts to stamp out crime has provided that a person may be incarcerated for up to one year for reusing a postage stamp. Occasionally one will see a stamped envelope where the stamp was not properly cancelled. Since stamps now cost 45 cents, it is quite natural to think that it might be used a second time, no one knowing the better. Don't do it. You will have committed a criminal act therefore making you, at least in your own mind, a criminal. There are those who believe reusing a postage stamp is perfectly acceptable. If the post office can't properly cancel a stamp, then who are we not to use the thing again. It saves almost one-half of a dollar and is the thrifty sort of thing to do. The United States Post Office is charged with covering its costs. This was a Ronald Reagan enactment. Since the USPS charges for its services they should cover their costs if not actually make a profit. Why this most necessary function of government should be singled out to cover its cost is uncertain. Surely there are other ways the United States government can cover some of its costs. I suggest they rent out some air craft carriers to China or Japan. Russia might even be in the market for some warships. This would be a huge boon to the United States Navy. It would take a lot of stamps to cover the rental of a major warship for a year. When enacting a criminal statute it does not appear to be a relevant factor that the government must prove beyond a reasonable doubt that a person committed the crime. With the crime of reusing a used postage stamp, it would appear that the only method of proof would be to have a snitch. It doesn't appear that the United States Post Office has the technology to determine the reuse of postage; if it even exists. If it is clear that no one will ever be prosecuted for reusing a postage stamp, why does Congress make it a crime to do so? This question should be posed to our congressmen and senators. More than likely, no response will be given in that they have way too many important matters to deal with and can't be bothered with postage stamp theft. Enacting crimes is a fun thing to do; it enhances one's view of oneself as a ethical leader. It is one more step in the continuing project of the correction of immoral, public conduct.

Self-help

Occasionally as a criminal defense attorney you have a client who gives every appearance of being a person who can not be helped. In order to have even an interest in helping someone escape prison or jail, that person should show some small inclination in helping themselves. There are those who have very little, if any, socially redeeming value-they merely exist on the planet wandering about without the minutest contribution to anyone's well-being. True, as they do not produce anything, they consume very little-just enough to keep themselves alive. These people actually improve their prospects by being placed in jail or prison. They have food, warmth, and a bed to sleep in. These are items that may or may not be available to them regularly outside of jail. In these cases, their attorney should make little effort to have them released as early as possible contrary to their protestations. After all they have things to do, places to go, and people to see or so they say. Attorneys have ethical rules they must follow. These rules go to the idea that attorneys exist to assist their clients when dealing with legal problems, especially those of a criminal nature. The client comes first. However, clients come along whose reality is significantly different from the common. This can be the result of mental imbalance, stupidity, or simple ignorance. Ignorance can often be cured, but not the other two disabilities mentioned. There is no help for stupidity and little for the mentally deranged. We have a vast array of therapeutic placements for those hovering around the criminal justice system. Unfortunately little distinction is made between a person who is schizophrenic and one who has an IQ of 75 or one who simply doesn't give a rat's ass. We have apparently come to the conclusion, here in the U.S.A., that all can be helped, all can be productive members of society, all can learn to do what they are told. This is nonsense. To rehabilitate implies that a person at one point in his life did not need rehabilitated; the person exemplified the qualities most desired in a citizen. This premise is incorrect. We have a difficult time accepting the fact that there are those who simply can not or will not function as the society would have them function. I suppose we could take them out and shoot them like the Nazis did. We forget that the Nazis were killing their lunatics, schizophrenics, malformed long before they were gassing the Jews and gypsies. Theirs was an attempt to strengthen the race; a replacement for natural selection or a form of it. Since most societies have rejected this method of maintaining themselves, other solutions must be found. One thing we do have in common, however, is that these people should not be allowed to decide for themselves what is best for them. Someone else must do the deciding. It is certain, we will not leave them alone. They are far too obnoxious and annoying to be allowed to roam about at will. It may cost a great deal, but if they are incarcerated they will not bother the general public with their numerous needs; they will no longer be inconvenient and we can safely ignore them if they have been disappeared.

Miracle on 34th Street

After surviving more than half a century without watching Miracle on 34th Street, I was coerced by the family into viewing it last evening. I can no longer brag that this movie belongs to my "Refuse to Watch List" along with Oklahoma, Sound of Music, and Gone with the Wind. As we have now reached a level of inoffensive speech such that we can now refer to Kris Kringle's mental health as opposed to his lunacy, we can analyse the situation in terms more susceptible to the understanding of the general public. The mental health hearing as portrayed in the movie went from whether Kris had such bad mental health based upon his belief he was Santa Claus and should be therefore committed and treated to the issue of whether Santa Claus is real. These seem to be two entirely different issues. People believe all kinds of stuff including things that do not exit nor having ever existed. Do we consider a person deranged, having serious mental health issues, because of what he believes? Historically, and currently, what people have believed has got them killed. Religion has been adept at this as has a myriad of ideologues. Ergo we must consider belief as something that is taken quite seriously by a vast number of humans. Now most people believe something, usually quite incorrectly; so we must decide if all beliefs are committable or just some of them. Or, is there a continuum whereby the local psychiatrist will suggest commitment, medication, or therapy. Psychiatrists, as all of us, must have something to do. Consequently, some sort of diagnosis and treatment is normally prescribed for beliefs that are patently false or not held by the majority of the community. Now it is clear from the movie that it was considered by some to be committable to believe yourself to be Kris Kringle, but perfectly acceptable to believe that Kris Kringle is real, crawls down chimneys, and visits every house on the planet in one night. It is also perfectly acceptable to convince your eleven year old that Kris is real and will deliver unto her her dearest wish. The judge did the right thing, of course, but it was a tortuous path to dismissal. I do love the prosecutor, it perfectly encapsulates some of the prosecutors that I have personally known; quite happy to prosecute some harmless old man for not behaving in a socially acceptable manner. It must be admitted that mental commitment is preferable to burning at the stake or the gulag which have been some of the past practices; but we're not quite over the idea that we should do something to and with people who do not believe as we do. Beliefs can result in actions corresponding to those beliefs. Possibly this is the concern of those who do not hold those beliefs. It is possible to believe in something with no basis in fact or logic, but an issue if the person holding such beliefs either expresses them or acts upon them. Kris Kringle not only believed, but expressed his beliefs and acted upon them, hence the problem. The moral of Miracle on 34th Street is that it is ok to believe your Santa Claus, just don't tell anyone.

Office Flirtations

The Iowa Supreme Court filed an opinion yesterday, Nelson v. Knight, which resulted from office flirtation between a female employee and a male employer. Sex had not occurred but certainly was on the horizon when Mrs. Employer determined that her husband should fire the attractive, flirtatious, and suggestive employee. Well, Employee didn't think much of being fired, was apparently somewhat bitter about the whole experience, and brought suit alleging sex discrimination. Basically, she, Employee, was fired so that sex would not occur. Mrs. Employer was concerned that Mr. Employer might take advantage of the obvious offer of sexual gratification through his long acquaintance and growing affection for Employee and declared that Mr. Employer fire Employee forthwith. Which he did. Employee brought a sex discrimination suit against Mr. Employer alleging that she was fired because of her sex. The Court spends considerable time developing the thesis that this was not the case; that Employee was fired because she was a threat to Mr. Employer's marriage. She was fired so that a flirtatious and suggestive situation not become sexual. Employee believes this to be sex discrimination. The Court thinks otherwise. Sex at the office is not sex discrimination. If an employee is fired because of a jealous wife, too bad. It may not be fair, and it may be in poor taste, but it isn't sex discrimination. Personal jealousy resulting from office sex is not actionable especially when pastors are involved as they were in this case. The church is involved when sin is imminent. Mr. Employer properly admitted to violating the tenth commandment and properly atoned for his sin. The Court certainly can not determine otherwise. We can now all rest easier when we realize that consensual office sex will not result in onerous litigation when things go wrong with the arrangement. Considering the fact that most of us work in offices with people of the opposite sex these sort of situations are bound to happen on occasion. What one does need to keep in mind though are angry spouses who may object and interject themselves into such a cozy tete-a-tete-they very seldom become a menage a trois.

Permission to Drive

Many are the complaints of government interference in our personal lives; the regulation of our daily activities. One of the most important activities, a most necessary activity, is driving a car. A citizen of Iowa may not drive a car, motorcycle, truck without permission from the State. I can think of few regulations more onerous than this one. I can not drive to the grocery store, to my job, to any other destination unless I have permission from the State of Iowa to do so. One wonders whether their was a populist uprising over this provision of the law when acted. When Obamacare came into existence, a violent protest ensued over government interference in our health care as if we haven't been living with government interference in our lives since birth. Apparently it is not appropriate for the government to tell you to get health insurance, but it is ok for the government to give you permission to drive a car. This doesn't seem to be logical. There is a certain satisfaction in knowing that a large number of people don't think the government has any business telling them not to drive. These are people I represent, charged with driving without a license, driving while revoked, driving while barred. A citizen of this state may be suspended, revoked, or barred from driving a motor vehicle. It is unknown why we have such a variety of names for the withdrawal of permission to drive except for the fact that our elected representatives believe they have the right and authority to determine who can drive a car and who can't. There are innumerable methods by which the State of Iowa can withdraw a person's right to drive a car; the methods seem to increase in number each time the legislature meets. The two major reasons for losing your driving license are: One, a person is considered to be dangerous behind the wheel, i.e., operating a motor vehicle while intoxicated; and two, money. If a person owes a fine, court costs, or has a driving related judgment, one will not be allowed to drive unless the sum is paid or a satisfactory payment plan is made. Our lives are organized in such a manner that driving is a necessity. We have had no say in this. Unless one lives in a high density city where all the necessities are within walking distance, driving is required. No such place exists in Iowa. Faced with the choice of not driving and taking care of yourself and your family, driving is the choice. Those who must drive are normally in the lower income range, often receiving government assistance. There is little an attorney can do for someone caught driving without a license; one had a driver's license or one didn't. If caught driving without a license, the person is fined, jailed, and the suspension extended. Now there are more fines to pay and poor paying jobs lost because of incarceration. This is nothing more than a tax on the poorest citizens. We must understand that we use crime for purposes of control. A most important unintended consequence of driving without a license is also driving without insurance. If one does not have a driver's license, one can not obtain insurance. The consequence of this is that a significant percentage of drivers on our highways have no insurance and in the event of an accident, the person with the insurance pays. The person without insurance is normally judgment proof and if the fault of the driver without insurance, our Department of Transportation will see to it that the person without the insurance will never have a driver's license for he will never be able to pay the insurance company of the driver with insurance who was required to foot the bill. None of this makes any sense, of course, but what does? Unless, as it obviously is, the purpose of these laws is to control the citizenry. The courts have rationalized this control by stating explicitly that a driver's license is a privilege not a right. This simple statement is the basis on which the State of Iowa gives its citizens the right to drive a car. If the statement were turned around and the courts would have stated that a driver's license is a right not a privilege, the world would be a different place; and apparently, in the eyes of the legislature, chaos would ensue. This assumption seems to be without merit. There is little likelihood in this land of the free and home of the brave that anarchy would reign if its citizens had a right to drive.