COPS CAN’T PROLONG A TRAFFIC STOP JUST TO WAIT FOR DRUG SNIFFING DOG

by Alex Kornfeld

COPS CAN’T PROLONG A TRAFFIC STOP JUST TO WAIT FOR DRUG SNIFFING DOG

The United States Supreme Court made it clear that once a traffic stop has been completed, without further reasonable suspicion, an extended stop is an unreasonable seizure, therefore illegal. On the other hand, the Court also made it clear that if a dog sniffs a car while being issued a ticket and that sniff doesn’t add anytime to the stop then the sniff is NOT an illegal seizure. Timing is everything.
In the present case, Denny Rodriguez was stopped by an officer for driving his Mercury Mountaineer on a highway shoulder and then jerking it back on the road, which is against the law in Nebraska. The officer checked Rodriguez’s license and his passengers, then issued a warning for the traffic offense. The officer gave Rodriguez his license, registration, and written warning back. Then the officer asked Rodriguez if he could walk his dog around his vehicle. Rodriguez refused and the officer detained him until backup arrived. The officer then had his dog walk around the vehicle and the dog alerted to the presence of drugs in the vehicle. The officer searched the vehicle and found methamphetamine. Between seven and eight minutes went by from the time the officer issued the warning and when the dog alerted. Again, timing is everything.
So how much time does an officer have to complete a traffic stop without violating the Constitution? A reasonable amount of time, which is not defined but the Court gives us clues to what it means. A reasonable traffic stop will allow an officer the time to check the driver’s license, determine whether there are outstanding warrants, inspect the vehicle registration, and proof of insurance. The Court held, “a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures.”
What does all this mean? You may remember I shared a brilliant law review article that was published in 2012 that does a line by line analysis of Jay-Z’s 99 Problems, Verse 2. You know the line in 99 Problems, “We’ll see how smart you are when the K-9’s come”, right?! The Supreme Court tells us without reasonable suspicion waiting for the K-9’s to come is an illegal seizure.
If you read that article you will see that Caleb Mason correctly predicted what the Supreme Court would do three years before Rodriguez v. United States was published. Mason states,
We’ll see how smart you are when the K-9s come . . . A sniff by a drug-sniffing dog is not a “search,” for purposes of the Fourth Amendment. Dog sniffs are “sui generis,” the Court has held—they’re unique in that they don’t reveal any information about the contents of the object sniffed except the presence of contraband, as to which you have no privacy right. Thus, if the police have a dog ready to sniff your car when they pull you over for a traffic violation, you have no basis for objecting to the sniff. And, of course, if the dog does alert to the car, that is probable cause, so the police can then search the whole car. That’s what the officer wanted to do with Jay-Z, but the K-9 unit wasn’t there when he was pulled over, and was late arriving. And this brings us to the final legal issue implicated by the song: excessive prolongation of a traffic stop. A traffic stop is a legitimate seizure of the person, for purposes of investigating the violation of the traffic law and writing up the citation. But it cannot be prolonged for longer than reasonably necessary to complete that legitimate activity. If in fact the patrol car’s computer is slow, so you have to sit there for ten minutes while the cop runs your license, that’s one thing. But increasingly, given dashboard cameras and records of department computer activity, that sort of “delay” is getting harder to fudge. And the Fourth Amendment rule is very clear: if the police detain you after they’ve finished processing the ticket—or if they simply dawdle over the ticket processing for an unreasonable length of time—in order to get a K-9 team there, then the eventual dog sniff will be the fruit of an illegal detention, and any evidence found will be suppressed. The officer in Jay-Z’s case apparently knew this, and so released Jay-Z after the stop when the K-9 unit he’d called was late in arriving. Of course, if, during the traffic stop, you provide the officer with reasonable suspicion that you’re smuggling, then the traffic stop becomes a Terry stop for the purpose of investigating the suspected smuggling. And then it can be extended—not indefinitely, but for a few minutes, anyway, depending on the circuit. Courts will uphold reasonable suspicion for all the usual reasons—but there still has to be something beyond the traffic stop itself. This is a crucial distinction that all cops and perps need to be aware of, and be prepared to litigate.
I know most of you haven’t past the bar but now you know a little bit. Thanks for reading along.

i. Rodriguez v. United States, 575 U.S. _ (2015)
ii. It’s against the law in South Carolina too!
iii. Jay-Z’s 99 PROBLEMS, VERSE 2: A CLOSE READING WITH FOURTH AMENDMENT GUIDANCE FOR COPS AND PERPS
iv. Caleb Mason is the author of the article referenced in footnote iii.

by Alex Kornfeld

WHO REALLY OWNS THE ENGAGEMENT RING?

IS AN ENGAGEMENT RING MARITAL PROPERTY IN SOUTH CAROLINA?

An engagement ring given prior to the marriage is considered a conditional gift.  A conditional gift is a gift that is ‘conditional’ upon another act.  In the case of an engagement ring, the condition that must be met is the marriage.  If an engagement is ‘broken off’ then the condition is not met and the ring should be returned to the person who gave the ring if he requests the return of the ring.

If an engagement is ‘broken off’ and the ‘giver’ of the ring wants the ring back it is best for the ‘giver’ to request the return of ring in a timely fashion or else the ‘giver’ may expose themselves to a more complex legal action in which the question may become, ‘Whether the ring was conditional or whether it was an outright gift’.;

If the parties get married:

If, however, an engagement ring is given prior to the marriage and the parties wed the condition has been met and the engagement ring is considered the woman’s non-marital property in South Carolina.

If one party files for divorce:

If a party files for divorce under the scenario explained above the engagement ring will most likely be considered the non-marital property of the wife.

Sources:  McClerin v. McClerin, 425 S.E.2d 476 (1992); Campbell v. Robinson, No 4969 (SC Ct. App., May 9, 2012); SC Code of Laws § 20-3-630

Alex Kornfeld is a Divorce and Family Law Attorney in Greenville, South Carolina. His practice consists primarily of Family, Criminal Defense, and Business Law issues. You may reach Atty. Kornfeld at his office at 864-335-9990.

by Alex Kornfeld

HOW CHILD SUPPORT IS CALCULATED IN SOUTH CAROLINA

The factors a Court considers when determining support depends on the parties gross income or potential gross income, daycare expenses, extraordinary medical bills, insurance coverage, educational expenses or other expenses that are relevant to protecting the best interest of the child.

In most cases, the Courts follow the South Carolina Child Support Guidelines.  The Court might also look at income generating assets.

The Court will considered support of other children or adopted children living in the payee’s home.  A payee who also supports a step-child that is in the home is not included in equating child support unless the payee is legally responsible for support that child.

The guidelines have three separate worksheets; sole, split, and shared custody.  Each worksheet quantifies the amount of time spend with each child to decide what amount of support is appropriate for the child.

In South Carolina, the Court has discretion to Order the payee to pay the payor directly or pay through the Court.  If the Court orders the payee to pay through the Court the payee will be required to pay an additional  5% court cost.

If you are curious about what amount of support may be awarded you  may go to  http://www.state.sc.us/dss/csed/calculator.htm.  This is just an estimate and certain factors that may be unknown could change the amount significantly.  If you are interested in reading the guidelines go to  http://www.state.sc.us/dss/csed/forms/2006guidelines.pdf.

Alex Kornfeld is a Family Law Attorney here in Greenville, South Carolina. His practice consists primarily of Family Law, Criminal Defense, and Business Law. You may reach Atty. Kornfeld at his office 864-335-9990

Sources: Marriage and Divorce Law in South Carolina,  A Layperson’s Guide 3^rd edition;

The SCDSS website.

by Alex Kornfeld

South Carolina Simple Possession of Marijuana Laws: How Much?

by Alex Kornfeld

Spousal Immunity Law in South Carolina: Can my Husband or Wife be Forced to Testify Against Me?

CAN YOUR SPOUSE BE FORCED TO TESTIFY AGAINST YOU IN SOUTH CAROLINA?

With the recent plot of Breaking Bad, I’ve received some inquires about whether a person can be compelled to testify against their spouse during a trial (civil or criminal) in a South Carolina State Court.  In most cases, the answer is ‘no’ unless the communication was not vocal or if it concerned or was based on child abuse, neglect, the death or a child, or criminal sexual conduct involving a minor.  See SC Code 19-11-30.

In this season (season 5) of Breaking Bad it will be interesting to see whether Jesse Pinkman divulges any information about a child’s death that would make an otherwise valid spousal immunity privilege that may be invoked by Walter or Skyler invalid if they were charged with a crime in South Carolina.

In short, Skyler can choose to testify against Walter, but she can’t be forced to unless it involves the death of a child, or an exception like the one stated above.

Once can only presume the legislatures intent when drafting this law was to promote confidential communication amongst spouses.

The spousal immunity privilege is not as strong as an attorney-client privilege because this privilege can be enacted by a spouse but a spouse can also choose not to enact the privilege.  Further, the South Carolina Supreme Court held that the physical act of assault may not be considered as communication. In the case of State v. Govan, 320 S.C. 392 the Court held a spouse can be compelled to testify to what occurred between spouses if the occurrence is an action.  Essentially, acts are not considered communication that would be eligible for the spousal immunity privilege.

Alex Kornfeld is a Criminal Defense and Family Law Attorney in Greenville, SC. If you, or someone you know has been arrested, or is under suspicion of a crime, it may be in your best interest to consult with an attorney first. You may reach Atty. Kornfeld at his office 864-335-9990

 

by Alex Kornfeld

CAN I BE CHARGED WITH POSSESSION OF A SUBSTANCE THAT I DON’T POSSESS IN SOUTH CAROLINA

In South Carolina, is it really “The Hand of One Is the Hand of All?”

Don’t leave your common sense behind when you leave for college.

The scenario is all too common in the criminal defense field:  An officer pulls over a car, does a search and finds marijuana in the vehicle.  The marijuana is not physically possessed by anyone.  All the individuals in the vehicle state they don’t know who owns the marijuana but they do know it isn’t their marijuana. In this scenario, an officer will most likely charge all the passengers with possession of marijuana under a theory of what is legally referred to as constructive possession.  If you have been charged with possession under a constructive possession theory the state must prove that you had possession, or dominion and control in this case, and that you had knowledge of that possession.

If you are charged you will have the right to a jury trial and you or your lawyer can defend you by stating that you did not possess any drugs and that you could not be in possession of the drugs because the drugs were found in X and you were seated at Y so therefore there is no way you were in possession. Whether you are found guilty or not guilty will ultimately be decided by a jury that has to decide whether they believe you or not. This isn’t a situation you want to be in so be safe, and don’t ride in vehicles with people who may be carrying drugs or you might be calling me to defend you.

If you are a South Carolina Life Scholarship recipient you should know that if you are convicted of any felony or you have been convicted of a second subsequent alcohol or drug-related misdemeanor in any state within the past academic year you will be ineligible for the life scholarship.

Alex Kornfeld is a Greenville, SC Criminal Defense Attorney. If you, or someone you know has been arrested, or is under suspicion of a crime, it may be in your best interest to consult with an attorney first. You may reach Atty. Kornfeld at his office 864-335-9990

by Alex Kornfeld

CAN A POLICE OFFICER OPEN YOUR DOOR WITHOUT PROBABLE CAUSE?

A STORY ILLUSTRATING HOW OPENING THE DOOR WITHOUT PROBABLE CAUSE MAY NOT VIOLATE YOUR RIGHTS IN SOUTH CAROLINA

It is a rare occurrence when a criminal defense attorney has the opportunity to talk to someone before one is charged with a crime.  To quote, Lt. Colonel Frank Slade, “Are you listenin’ to me, son? I’m givin’ ya pearls here.”

On July 17, 2013 the South Carolina Supreme Court held that an officer can open the door of a car at a traffic stop if the cop feels threatened in the case of Gregory McHam v. State without violating the law.  Specifically, the court held that opening the door of a vehicle during a traffic stop constitutes a search under the fourth amendment but that if a cop is opening the door because he is worried about his safety a warrant is not needed.

In the McHam case, McHam and and his passenger, Kobe Carter, were stopped at about10:50 p.m. at a safety checkpoint.  There were three officers at the checkpoint.  At the stop, the cop asked McHam to provide his driver’s license, registration, and proof of insurance.  McHam promptly provided his driver’s license but he and Carter were not able to find his registration or proof of insurance before the Cop walked to the other side of the vehicle to make sure neither party was attempting to access a weapon.  The cop stated once he got to the other side of the vehicle he could not see the passengers hands because it was dark and there wasn’t much light so for his safety he opened the door to see what they were doing.  As soon as he opened the door, he saw a bag of crack between the seat and the passenger door.

Here are your pearls.  When stopped at a checkpoint or otherwise lawfully pulled over it is in your best interest to have your license, registration, and proof of insurance readily accessible. If a cop convinces a court that he opened your door at a search because he was concerned about his safety the court may find that opening the door falls within an exception to the warrant requirement.

Some have commented on the veracity of the cop’s statement that he opened the door for his safety.  Some have stated the cop’s real intention was to violate McHam’s 4^th amendment rights.  It’s easy to speculate about what happened at the checkpoint but the South Carolina Supreme Court has spoken and stated this was a warrantless search but that the cop legally opened the car door under an exception to the rule.  The exception in this case hinged on whether the cops claim that he opened the door for safety reasons was reasonable in the particular case. Here, the Court held the cops safety was a legitimate concern and thus reasonable because McHam and Carter were looking for registration or insurance papers in places they would not normally be kept, the cop could not see either parties hands, the area was dimly-lit, there was more than one occupant in the vehicle, and the fact that only one cop approached the vehicle.

Keep your doors locked. Have your license, registration, and proof of insurance readily available and obviously don’t drive around with illegal substances in your car.

Alex Kornfeld is a Criminal Defense Lawyer in Greenville, SC. If you, or someone you know has been arrested, or is under suspicion of a crime, it may be in your best interest to consult with an attorney first. You may reach Atty. Kornfeld at his office 864-335-9990

 

by Alex Kornfeld

Probable Cause – South Carolina Laws

What constitutes probable cause in a criminal defense case in South Carolina?

Black’s Law Dictionary defines probable cause as a reasonable ground to suspect that a person has committed or is committing a crime or that a place contains specific items connected with a crime.  In other words, an officer needs to show that it is more likely than not that the person being arrested violated the law for which they are being arrested for.

An officer needs probable cause to make an arrest.  An officer can acquire probable cause in a couple of different ways.  The officer can go before a detached magistrate and request a search warrant or arrest warrant or the officer can make a warrantless search of arrest if he has probable cause.

If an officer acquires evidence by breaking the law himself (i.e. In this case, violating a person’s 4^th amendment rights) the evidence that has been acquired may be suppressed.

Vehicle Stop:  If probable cause exists to stop a vehicle an officer may order the driver to get out of the vehicle and request a driver’s license, vehicle registration, run a computer check and issue a citation without violating a driver’s rights.  If the cop detains the driver and questions the driver about facts that are irrelevant to the stop it will most likely be deemed a violation of the driver’s constitutional rights UNLESS the cop has reasonable suspicion of a serious crime.  State v. Rivera, 682 S.E.2d 307, 384 S.C. 356 (S.C. App. 2009)

Sources:  US Constitution 4^th amendment, SC Constitution Art. 1, § 10.; State v. Dunbar, 603 S.E. 2d 615, 361 S.C. 240 (S.C. App. 2004), State v. Rivera, 682 S.E.2d 307, 384 S.C. 356 (S.C. App. 2009); Black’s Law Dictionary

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Alex Kornfeld is a criminal defense lawyer in Greenville, South Carolina. If you have been charged with, or are under suspicion of a crime, you may contact the office at 864-335-9990.

by Alex Kornfeld

Grandparents Rights in South Carolina

Grandparents Rights in South Carolina

Controlling Statute:  SC Code Ann. § 63-3-530 (A)(33) (2009) …(33) to order visitation for the grandparent of a minor child where either or both parents of the minor child is or are deceased, or are divorced, or are living separate and apart in different habitats, if the court finds that:

(1) the child’s parents or guardians are unreasonably depriving the grandparent of the opportunity to visit with the child, including denying visitation of the minor child to the grandparent for a period exceeding ninety days; and

(2) the grandparent maintained a relationship similar to a parent-child relationship with the minor child; and

(3) that awarding grandparent visitation would not interfere with the parent-child relationship; and:

(a) the court finds by clear and convincing evidence that the child’s parents or guardians are unfit; or

(b) the court finds by clear and convincing evidence that there are compelling circumstances to overcome the presumption that the parental decision is in the child’s best interest.

The Court will consider the best interest of the child, as well as any harm caused by too many people having Court ordered rights to a child, as well as the grandparents’ bond with the child.

South Carolina Grandparents Rights to Visitation:

The Family Court is a Court of Equity and the Judge has wide latitude to rule.  The Judge will consider several factors before ruling.  If the grandparents have created a very strong bond with the grandchild(ren) the Court may order up to one week each month and up to two weeks each summer.  If there is a less than strong bond and the Judge still rules in favor of the grandparent the Judge will order as she/he feels is in the best interest of the child(ren).

Relevant Case Law:

Dodge v. Dodge, 332 S.C. 401, 505 S.E.2d 344

Troxel v. Granville, 530 U.S. 57

Grantham v. Weatherford, 425 S.C. 111

SC Bar: Grandparent Rights

The article below was taken from the SC Bar Website.  You can read it below or find it here: https://www.scbar.org/public/get-legal-help/common-legal-topics/grandparent-rights/

In South Carolina, grandparents’ rights are derivative of their child’s rights. This means that in typical circumstances, a grandparent may visit with a grandchild only when the grandparent’s child has visitation.

The law is clear that parents have a protected liberty interest in the care, custody, and control of their children, and that this is a fundamental right protected by the Due Process Clause in the United States Constitution. The court must give “special weight” to a fit parent’s decision regarding visitation. A court considering grandparent visitation over a parent’s objection must allow a presumption that a fit parent’s decision is in the child’s best interest. So long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parents children. Camburn v. Smith, 355 S.C. 574, 586 S.E.2d 565 (2003).

The Family Court can grant visitation to a third party over a fit parent’s objection when faced with compelling circumstances, such as significant harm to a child. Compelling circumstances will be determined on a case-by-case basis, but the Court will consider the children’s best interests in deciding custody and the judge will consider several factors including: the children’s relationship with each other and with their parents; the children’s adjustment to home, school, and community; the mental and physical health of all children and their parents; and, in certain circumstances, the wishes of the child or children. However, it is not enough just that a child may benefit from contact with a grandparent.

When one parent dies, the parents of the deceased may still be able to have visitation rights if the meet the criteria in S.C. Code Ann. § 63-3-530(33) and can show compelling circumstances.

South Carolina also recognizes the doctrine of a psychological parent.  There is a 4-part test which is used to evaluate whether or not a person qualifies as a psychological parent:

1.    that the child’s biological or legal parent or parents consented to and facilitated the formation and establishment of a parent-like relationship with the child;

2.    that the petitioner and the child lived together in the same household;

3.    that the petitioner undertook obligations of parenthood through responsibility for the child’s care, education, and development without expectation of financial compensation;

4.    that the petitioner has been in a parental role for a length of time sufficient f or a parental bond to be established with the child.  Middleton v. Johnson 369 S.C 585, 633 S.E.2d 162 (Ct.App. 2006).

According to S.C. Code Ann. § 63-15-60, a grandparent may also qualify as a de facto custodian in some circumstances. A de  facto custodian means, unless the context requires otherwise, a person who has been shown by clear and convincing evidence to have been the primary caregiver for and financial supporter of a child who:

1.    has resided with the person for a period of six months or more if the child is under three years of age; or

2.    has resided with the person for a period of one year or more if the child is three years of age or older.

In gathering information to assist in making a decision, a judge may use investigative agencies, psychologists and others. The Judge may also appoint a lawyer to represent the interest of a child or children.