A lot can be done with technology these days. Police can track the movements of anyone with a cell phone. They can, but under what circumstances do they actually do this and are they required to get a warrant ahead of time? The answers to those questions aren’t so clear.

Law enforcement organizations across the country use this technology everyday, but the standards under which they use it differ from department to department. Even within the state of Colorado, there is no one single uniform practice.

In Denver, any cell phone access by law enforcement requires a warrant. That isn’t the case in other communities, however. Emergency circumstances, like a kidnapped child for instance, allows police in Lakewood to access phone location data without a warrant. In Arapahoe County, prosecutors use a court order that requires less than probable cause.

The U.S. Supreme Court ruled just last week that tracking the location of someone via cell phone without a warrant could constitute a violation of their 4^th Amendment rights. While this “jolted the legal community,” according to the Denver Post, the ruling shouldn’t be seen as surprising.

Denver Chief Deputy District Attorney Dick Reeve points out that state laws and court precedent require probable cause to get a wiretap or a “trap and trace” device, which show calls but not the content of the conversation. This same standard could easily be applied to cell phones. The technology has changed but the motivation behind the laws is no different—to protect the civil liberties of the people.

It would seem that law enforcement agencies, in the absence of a clear law or practice, would err on the side of precaution, getting a warrant just in case. But, that’s not always the case.

At the federal level, there are two bills in front of Congress that would address this and other similar matters. They would make it abundantly clear to law enforcement agencies across the country that warrants are required for GPS tracking, cell phone tracking, or accessing historical cell phone location data.

For now, in Colorado, however, agencies are left to make their own decisions. If the police used cell phone location data in a criminal case and did not get a warrant ahead of time because the law didn’t explicitly require it, they could face some challenges if that case ever goes to trial. A good argument could be made for the suppression of that evidence because it constituted an unconstitutional search.

If you are facing criminal charges and have questions about the legality of the evidence, contact our offices today. We may be able to help you fight the charges and emerge successful in court.

In a period of seven years, there were at least 500 cases of mistaken-identity arrests in Denver, this according to a study from the ACLU and used in a lawsuit on behalf of some of those mistakenly detained in the Denver jail. Both the city and county of Denver are named in the lawsuit, which seeks compensation from people who were held for days and even weeks before the officials corrected their mistakes.

In some of these cases, the warrant was for someone of a different race, with different tattoos, and even different names. One African American male was held for nine days on a warrant for a white male, wanted in conjunction with a sex offense. It seems the deputies or officers conducting the arrests were most interested in getting someone, anyone, in jail.

Missed work and tarnished reputations abound in these victims of mistaken arrest. Imagine being arrested on a warrant for sexual assault and having to explain to a new girlfriend that they “had the wrong guy.” That’s exactly what happened to Carlos Alberto Hernandez, one of the men named in the lawsuit.

The city, not surprisingly, says that although mistakes do happen, they are the exception, and that there are safeguards in place to protect against such mistakes.

The ACLU study looked at arrests from 2002 through 2009 and searched through records and files from judges, internal affairs, jail records, and arrest warrant logs. The ACLU says they believe additional cases exist because records don’t include cases where the arrestee didn’t lodge an official complaint.

In 2008, the city began a program where the police identification bureau would be notified when a prisoner claimed to be wrongfully incarcerated. Because this is a fairly recent program, much of the results from it weren’t included in the ACLU study.

The city and county have settled with many victims of mistaken-identity arrests, though the ACLU has more lined up. In their defense, the city’s attorneys state that the mistakes haven’t amounted to a “deliberate indifference” on the part of the city officials, that is knowing that their actions would likely lead to an infringement on someone’s constitutional rights.

Many of the cases outlined in this Denver Post article, show a complete disregard for the rights of those arrested. When a warrant is issued, much more than a name shows up in the system. Police can find a description, birthdate, and often photos and fingerprints. It seems many of these mistakes could be prevented by officers simply taking the time for a little quality assurance.

Whether you’ve been arrested and you think they have the wrong person, or if you are wanted on a warrant, a defense attorney may be able to help. Contact our offices today to discuss the details of your case.

Police Chief Gerald Whitman may not be the head of Denver’s police department for much longer, but he is making waves on his way out. He has proposed a change in procedures for when officers or other local criminal justice employee or public officials are pulled over for drunk driving.

Independent Monitor Richard Rosenthal suggested Denver police don’t arrest their own for drunk driving. Chief Whitman decided even the possibility of this was too alarming to not do something about.

The suggested change would require officers to call a supervisor whenever they pulled over such an official on suspicion of drunk driving. This would then leave them more accountable if they chose to not make an arrest.

According to the Denver Post, five Denver officers have been arrested for driving drunk following an accident since 2005. None have been arrested for DUI without an accident being involved. On the other hand, data shows that for every three people arrested for DUI, one involves a collision. Assuming police officers function at the same rate as regular folks, this means it would make far more sense for there to have been around 15 DUI arrests of police officers over the same period.

Not everyone is happy with the recommendation, stating that they should not be held to a higher standard. But why shouldn’t they be? If they are tasked with enforcing the laws, shouldn’t they be expected to follow them even more closely?

Whitman made the recommendation knowing another Chief and incoming safety manager Justice Alex Martinez would ultimately make the final decision on its implementation.

Police spokesperson Matt Murray says in defense of his officers “We are not tolerant of DUI; we are pretty committed in that area. No public officials, in fact nobody, should be driving drunk. We believe there is a standard and everybody should meet it.”

Cronyism in policing is nothing new. In certain cities, officers would be given card to pass out to friends and family members, cards that when shown to another officers would indicate this person to be a friend of a cop and therefore worthy of special treatment.

It’s not surprising that cops would let each other off the hook, most people would be shocked to find out police officers weren’t practicing this unequal enforcement.

Unfortunately, if you are a regular citizen and suspected of drunk driving, you won’t have this benefit. If you are facing charges of DUI, contact us today to discuss what can be done.

In 2002 Charles Farrar was convicted of several counts of sexual assault on a minor. The victim, his daughter, Sacha, accused him and her mother of “forcing her into sexual encounters from the age of eleven until she was fifteen,” according to Westword. Now nine years into his sentence, Farrar is appealing on the basis of inadequate representation and prosecutorial misconduct.

There was no physical evidence in this case and it was instead built off the testimony of the young victim. A few months after testifying against Farrar refused to testify against her mother and ultimately recanted her entire story, saying she made the whole thing up to go live with her grandparents. This recantation wasn’t enough to get Farrar off the hook, however, as a judge ruled it was no more reliable than the initial accusations that Sacha levied.

Since that time, Sacha has stood by her recantation. She is now an adult and maintains that the sexual abuse never happened. But Farrar was not granted a new trial and the conviction was upheld by a narrowly divided state Supreme Court in 2009.

Farrar is trying again, this time alleging his defense team didn’t do enough to investigate the child’s claims at the time, even failing to contact key witnesses. He also alleges prosecutors failed to disclose information that could have resulted in a different outcome at trial, violating his rights.

Once convicted, someone can go through the appeals process, typically claiming their rights have in some way been violated and asking for a new trial or a dismissal of the case. As they raise the issues and the appeals courts strike them down, they are unable to revisit that particular issue but can continue to appeal on the basis of other issues. Once there are no longer any issues to raise, no other legal objections on how the case was handled, their appeals are said to be “exhausted”.

This latest request filed by Farrar was submitted via a handwritten request. It seems Farrar is working on his own now and has no attorney to handle his appeals.

Hindsight is 20/20 and although Farrar may have seen the alleged injustices taking place while his case was in the trial stage, many people convicted of criminal offenses don’t see the problems until long after they have passed and they are serving their sentence.

The key is to avoid a conviction in the first place and though that’s not always possible, having a local defense attorney on your side may improve your chances.

If you are charged with a sex crime or other criminal offense in Colorado and in need of advice, contact our attorneys today for a free consultation on your case.

An Aurora Colorado man got a lot more than a pizza last week when he called Papa John’s. He got a visit from the police, who were there to check on the welfare of the man’s 9 year old daughter. The welfare-check was done because the pizza delivery man who came to drop off dinner smelled marijuana and was concerned the man had been smoking in front of the child.

Frederick Smith actually has a medical marijuana card. He was in the comfort of his own home, exercising his right under Colorado’s medical marijuana law, to relieve pain with the use of pot. According to Smith, he never smokes in front of his child and wasn’t smoking with her in the room that night either.

Smith uses marijuana to cope with residual pain from a bike accident and he represents many in the state who are allowed, under state law at least, to smoke the plant in their home.

Currently, there aren’t any laws specifically attributed to the use of medical marijuana around children, though an ambitious prosecutor might be able to make a case that exposure to the “drug” puts a child in harm’s way regardless of the legal nature of it. This hasn’t happened yet, however, and Smith was left alone that night after the police determined his daughter was okay.

Smith complained to the pizza company and has heard nothing in response. In response to this story from 9News, however, the company said it stands behind the driver’s call to police. “He was acting as a concerned citizen and for what he believes was the best interests of our community.”

Though there were no criminal charges brought in this case, it represents the fine line that medical marijuana users must walk when engaging in their legalized use of pot. Because marijuana is still considered a drug and because federal law does not necessarily recognize state laws allowing it for certain patients, the medical marijuana user is likely on edge a good deal of the time.

Many are hoping the state, and others, will eventually move to legalizing the substance altogether. And while support for such a measure may be higher than ever, it will likely take several years to see such a major shift in the majority and then in the mindset of the feds who still see marijuana as a Schedule I drug, the most dangerous substance out there.

Until that time, people will be charged with marijuana possession and those accused of bringing the drug into the state could face much more serious charges. If you are accused of a marijuana crime, contact our Colorado criminal defense attorneys today to discuss your case.

The American Civil Liberties Union of Colorado announced its support for full marijuana legalization in Colorado this past week. The ACLY says that it cannot support marijuana prohibition at a time when there are scarce public resources, among other things. They said this should be a civil rights issue as well as a financial issue.

The Campaign to Regulate Marijuana Like Alcohol is the program that the ACLU has formally endorsed. The ACLU statement said, among other things:

“The war on drugs has failed. Prohibition is not a sensible way to deal with marijuana.”

“…we are wasting scarce public resources in our criminal justice system by having police, prosecutors and the courts treat marijuana users like violent criminals. It is unconscionable for our state to spend tax dollars to arrest, prosecute and crowd the courts, and jail people for possession of a small amount of marijuana, especially when those being arrested and jailed are disproportionately people of color.”

“Current drug laws contribute to the mass incarceration of people of color, especially young people of color.”

The ACLU says that supporting the legalization of marijuana is in line with their mission of defending civil rights and individual freedoms. A big named organization like this can only bring further attention to the marijuana legalization movement in Colorado.

Right now, if you are caught with less than a single ounce of marijuana, you receive a fine. It has been decriminalized. However, if you have more than one ounce, you will face criminal charges, up to 18 months in jail for an amount less than 8 ounces.

As states look for ways to save money, marijuana legalization is just one hot button issue that’s being brought to the table, both at the state and national levels. And Colorado isn’t the only state looking at marijuana legalization. California’s race to be the first state to legalize pot fell short last year, but that doesn’t seem to have discouraged activists.

Though public opinion seems to be more relaxed now than ever in regards to marijuana use, it’s still against the law. And even in states where there are medical marijuana programs in place, there is much controversy on whether or not legalization is the right way to go.

Until the day pot is completely legal, however, you will run the risk of being criminally charged any time you grow, smoke, possess, or sell marijuana. If you are currently facing marijuana charges, contact us today to discuss your case.

Two Denver police officers who were found to have used excessive force and later to have lied on their reports documenting the situation are now back in blue, working desk jobs with the Denver Police Department and likely hoping to make it back on the streets. A civil service hearing panel determined their firing was unjust this week, much to the dismay of the victims of their beating and nearly anyone who saw the video.

The beating took place in April 2009 when two men were kicked out of a bar when one used the ladies room. Much of what happened next was caught on a video camera on a downtown Denver building. The cops can be seen beating the two men with a metal instrument as the men offer no resistance.

Both victims, Shawn Johnson and Michael DeHerrera were arrested and charged with interfering with officers (obstructing a peace officer) and not following a lawful order.

Initially, the cops were suspended without pay for three days by former safety manager Ron Parea. This year, Parea’s replacement Charles Garcia fired the duo. According to the panel, Garcia didn’t have a right to fire the officers because the initial punishment was approved and all time for appeals had lapsed.

This seems to suggest the overturning of their termination was purely based on policy. But the president of the Police Protective Association seems to think it’s because they were good cops. “At the end of the day, you actually have human beings who were out there trying to protect the public and were doing it and were darn good cops at the time. They will come back and they will be good cops again,” says Nick Rogers.

The victims of the beating and their families see the ruling in another light. “It was finally clear what was right and what was wrong and everybody agreed that they were wrong,” said DeHerrea. “So now to put that back up into the air is just ridiculous.”

The now-acting Denver Manager of Safety doesn’t like the ruling either. In support of her predecessor’s firing of the officers, Ashley Kilroy says “I cannot and do not tolerate excessive force in our city’s safety agencies or departing from the truth by any of our employees.”

It isn’t clear what will happen next but it appears as if there are no additional recourse for appeals following the panel’s reinstatement of the officers.

In the midst of more serious repercussions for misconduct, are officers with the Denver Police Department laying low, avoiding citizen contact whenever possible? The Denver Post suggests fear of discipline may be driving lower contact numbers across the city, though the union says there’s “no organized work slowdown.”

John Bronson, a member of the Denver Police Protective Association’s (DPPA) board says that some officers are afraid a situation could escalate and lead to discipline and that this fear may be causing more officers to choose the path of least resistance, avoiding officer initiated contact when possible.

Police respond to citizen calls and they also make contact of their own initiative. In 2009 the DPD recorded 80,226 officer-initiated contacts. In 2010 that number was 74,399. In the first six months of 2011, the number of officer-initiated contacts has fallen to 67,054. The drop isn’t being seen in all districts but is most pronounced in District 1 of northwest Denver.

Since March, nine officers have been fired in disciplinary actions.  The new disciplinary procedures being enacted across the city are in an effort to clean up the department, which has received media coverage and the attention of the Justice Department for allegations of brutality and civil rights violations.

But the fear of getting in trouble isn’t the only thing likely driving the drop. There are fewer officers on patrol, leading to less time for the officers to initiate investigations and contact. Though the number of officers only dropped from 1,462 in January of this year to 1,434 this month, the drop still makes a difference and because of a hiring freeze, that number isn’t expected to go anywhere but further south.

If the officers are avoiding contact for fear of discipline, it’s a sad situation indeed. The father of Michael DeHererra, beaten by Denver police, said to the Denver Post, “We are not asking them to quit doing their jobs, just do it right without violating people’s rights and beating them down.”

The majority of arrests and criminal charges are a result of citizen calls. Occasionally an officer will initiate such an investigation. More often than not, however, officer-initiated contacts are proactive or positive in nature, for instance discussing safety measures with business owners or checking on homes when the residents are out of town.

When you are on the other side of the handcuffs, it likely doesn’t matter to you whether or not you were arrested because of a citizen call or an officer initiated investigation. What matters when you are facing criminal charges is how you handle them. And a local defense lawyer can help.

Whether you are charged with drug possession or assault, a criminal defense lawyer knows what options are available to you and how to best play your cards for the most positive outcome in court. If you are charged with a crime, contact our attorneys today for a consultation on your case.

We’re only four months into 2011 and already six members of the Denver Police Department have been fired. Just this week two more were fired, not for their inappropriate uses of force (caught on camera here), but for lying about the incident after the fact.

The fourth safety manager in less than a year, Charles Garcia, has risen to the occasion and carried the torch of Mary Malatesta, safety manager #3, who left the position shortly after firing two officers who were found to have lied about an incident involving the pursuit of a stolen car.

So are there more unethical acts being perpetrated by police officers? No, not necessarily. Rules were changed in October 2008 that dictated when an officer lied in connection with an investigation; he or she was to be fired, even for a first offense. In 2011 that rule has been enforced with a heavy hand.

The belief is that an officer who lies about an official act has something to hide, and that’s not too far of a reach to believe. In the video of these officers who were most recently fired, it’s apparent they acted inappropriately, showing an unnecessary level of force. And interestingly, the Chief of Police recommended their suspension for “inappropriate force” before they were fired this week by Garcia.

It boils down to police integrity and accountability. The people who the police serve have to be able to trust them in order for their work to be truly effective. In appointing Garcia, Mayor Vidal stated “At the end of the day, our citizens should feel safe and they should not be afraid of our people in uniform.”

Another effort being made to mend the relationship between the public and the police is found in the push to streamline the disciplinary process. Garcia has been tasked with shortening the time it takes for an internal investigation to take place. To this end, he eliminated the Disciplinary Review Board, something he says will help get the investigation stage beneath the 60 to 90 day mark.

The police are largely ineffective when they are forced to enforce laws among people who don’t believe they can be trusted. Mending this relationship through strict accountability and no nonsense disciplinary measures is a smart move. The police have to act with the upmost integrity and not like they are above the law.

When you are arrested or questioned by police it is common to feel intimidated. But, you shouldn’t be made to feel that your rights aren’t respected. As a matter of fact, if your rights are violated during the arrest, investigative, or search procedures, there’s a chance the charges against you could be dropped.

If you are facing criminal charges in Colorado, contact our defense attorneys today for a consultation on your case and to discuss your potential options.

Right now if you were to be stopped by the police for solicitation of a prostitute, you would be fined $75. This is less than the fine for littering. Lawmakers in Colorado are trying to change this imbalance by increasing penalties for prostitution customers, more commonly known as “johns”.

The bill passed the Senate Judiciary Committee this week in a 9-0 vote, one success in its road to becoming a law. The bill would boost the minimum fine to $5,000. And perhaps more importantly, the newly increased fines would go to a diversion program aimed at reducing the demand for prostitution.

Under current laws the providers of sex services (prostitutes and pimps) facing criminal charges in Colorado are penalized far harsher than their customers. Supporters of the new bill say the state can’t expect to make any significant impact on the prostitution trade without also decreasing the demand for these services.

Currently there are diversion programs in place within certain jurisdictions. But this law would make a statewide system of such programs, a first in the nation. By decreasing demand for such a market, lawmakers and supporters are hoping to reduce prostitution overall.

One supporter of the law, a former prostitute herself, now works to reform johns in Chicago. She says the problem won’t go away until the johns are given help. She states “Some think they’re helping women. Many think there’s a rite of passage. Many think women enjoy this experience, which is untrue.”

An opponent, also a former sex trade worker, states the law is a bad idea. She believes shaming the men over their offense will backfire and instead thinks that legalizing prostitution is a smarter move. That, however, is not on the table.

In Denver alone, it’s estimated that $60 million every year is spent on prostitution. A Department spokesperson states that they make about 375 prostitution arrests every year and only 150 john arrests, a significant imbalance.

Under the proposed legislation, the crime of solicitation would remain a petty offense but advocates believe it’s a step in the right direction.

As long as there is money to be made, prostitutes and pimps will continue to provide a service. It’s the age old law of supply and demand. Eliminating demand could impact the trade, but it’s a question of just how effective the proposed diversion program would be at reducing this demand.