Stop and Frisk

When can a police officer stop and frisk you before you're arrested?

A police officer's right to stop and frisk was allowed by the United States Supreme Court in Terry v. Ohio. If an officer reasonably believes that a suspect is armed and dangerous, the officer can perform a weapons pat down for the purposes of officer safety.

Of course, the Terry frisk has been subject to abuse by some members of law enforcement. Often times, a police officer will use the Terry frisk as a pretext to search for contraband, such as drugs. However, the United States Supreme Court has found that the purpose of a Terry frisk is for officer safety and NOT to gather evidence. Thus, a Terry frisk may only consist of a pat down of the outer clothing.  Asking a suspect to unzip his jacket, for example, goes beyond the scope of a Terry frisk.

However, the United States Supreme Court has held that there is a "plain-feel" exception to a Terry frisk. If an officer is performing a pat down of the suspect's outer clothing and it is immediately apparent that the officer feels contraband, the officer may seize the contraband.

The standards and rules for a Terry frisk go far beyond what is mentioned here.  If you are stopped and an officer seizes contraband, call Ascheman & Smith immediately. We will attempt to get the evidence  suppressed and have your case dismissed.

Always remember: regardless of guilt, you have constitutional rights that must be protected.

Thank you,


Grant S Smith, Esq.


Grant@AschemanSmith.com
(B) 612.217.0077 (C) 651.357.5990 (F) 651.344.0700

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Bar Time Trivia

We are happy to anounce that we have a new Bar Time Trivia card coming out. These will be dropped off at a few select bars in the Twin Cities. If your Bar is not selected, I hope that you still take the chance to check out the trivia questions listed below.

1.What author lived in the Jamaican estate Goldeneye?
2.Where did the term “Mind your P’s and Q’s” come from?
3.The longest bar in the world is 684 feet long, where is it located?
4.Who was elected President of the U.S. on a pledge to end National Prohibition?
5.What is the official spirit of the United States, by act of Congress?
6.The Indian cobra is the 15th deadliest snake in the world; the top 14 may be found in what country?
7.Atomosophobia is the fear of atomic explosions, What is the name for the fear of alcohol?
8.Can you name 5 T.V./Movie stars who were all former bartenders?
9.Where did the term “Honeymoon” come from?
10.Where and when did the melody for the Star Spangled Banner originate? (Hint: B.C.)
11.What are the top two Constitutional Rights, most people forget to use when arrested by the police?

Driving which of the following can result in a DUI arrest in MN:
a)Car
b)Boat
c)Snowmobile
d)Motorcycle
e)Bicycle
f)Horse
g)Wheelchair
h)La-Z-Boy

1.The rich want it, the poor have it, and if you eat it, you’ll die. What is it?
2.Though in theory I am always behind you, I am also around to remind you, if it’s your way to give me too much say, I can hamper or, even worse, blind you. What am I?
3.You must keep this thing, its loss will affect your brothers. For once yours is lost it will soon be lost by others

The Answers:
1) Ian Fleming
2) In English pubs drinks are served in pints and quarts. In old England, bartenders would advise unruly customers to mind their own pints and quarts. It's the origin of "mind your P's and Q's."
3) The longest bar in the world is 684 feet (or about 208.5 meters) long and is located at the New Bulldog in Rock Island, Illinois.
4) Franklin Roosevelt was elected President of the in 1932 on a pledge to end National Prohibition.
5) Bourbon is the official spirit of the United States, by act of Congress.
6) Australia
7) Methyphobia is fear of alcohol
8) Tom Arnold, Sandra Bullock, Chevy Chase, Bill Cosby, Kris Kristofferson, and Bruce Willis are all former bartenders.
9) In ancient Babylon, the bride's father would supply his son-in-law with all the mead (fermented honey beverage) he could drink for a month after the wedding. Because their calendar was lunar or moon-based, this period of free mead was called the "honey month," or what we now call the "honeymoon."
10) The national anthem of the US, the "Star-Spangled Banner," was written to the tune of a “drinking song” at a London gentleman’s club. This song was actually a Greek song from the 6th century B.C.
11) The right to remain silent, and the right to an attorney. Although most people know these rights, they fail to use them. If your arrested don't talk to the nice friendly officer. Tell her you want your attorney. Put us in your cell phone now, don't waste time trying to find one if it happens. Better to have us and never need us.

Driving which of the following can result in a DUI arrest in MN:
a) Car, Yes,
b) Yes, boating while under the influence can get you arrested. The Water Patrol and DNR are looking for the signs of intoxicated boaters. There are several things you should do if stopped for boating while intoxicated. One of the first is to call us.
c) Yes, similar to boating, you can be charged with a DWI for operating a snowmobile while intoxicated.
d) Motorcycle, Yes
e) Although there are no prominent cases in Minnesota, people have been arrested for biking while intoxicated in other states.
f) Horse? No reports in Minnesota, but as we have mentioned in previous blog posts, it does happen.
g) Wheelchair? Likely, although no reports of receiving a DUI from a wheelchair have been reported in Minnesota. Arrests have been made in Georgia and Wisconsin.
h) Yes, although the La-Z-Boy was modified to include a lawn mower engine.

Brain Teaser Answers:
1) Nothing (that’s the answer)
2) The Past
3) Your Temper

We hope you enjoyed the Bar Time Trivia.  Keep us in mind if you need a legal help.

Thank you,

Landon J. Ascheman, Esq.

Landon@AschemanSmith.com

(B) 612.217.0077 (C) 651.280.9533 (F) 651.344.0700

Contact Me     

Resisting Unlawful Arrest

While working for clients charged with assaulting a police officer, I've heard the common refrain: "I only fought back because the police officer arrested me for no reason".  Fighting back resulted in clients being charged with 4th Degree Assault - Assaulting a Peace Officer, which is a gross misdemeanor and can carry a penalty of up to a year in jail.  If the officer is injured in the assault, the client faces felony charges and the potential for 3 years in prison. Often times, the Assault charge inflicted a greater penalty than the charge filed as a result of the arrest.  Minnesota does not recognize the right to resist an unlawful arrest or search, unless the officer commits an unjustified bodily attack. State v. Wick, 331 N.W.2d 769, 771 (Minn. 1983).

The moral of this story is if you're being arrested DON'T FIGHT BACK, even if the police arrest you for no reason.  That's why you hire an attorney -- we use the law to fight back for you. 

Thank you,

Grant S Smith, Esq.

Grant@AschemanSmith.com
(B) 612.217.0077 (C) 651.357.5990 (F) 651.344.0700

Contact Me






  

Nina’s Coffee Café

The questions presented at Nina's Coffee Cafe.

1) Can you name this MN Courthouse?

2) Can you identify your MN Supreme Court Justices?

3) Driving which of the following can result in a DUI arrest in MN:
a) Car
b) Boat
c) Snowmobile
d) Motorcycle
e) Bicycle
f) Horse
g) Wheelchair
h) La-Z-Boy

4) Can you get charged with drinking underage because of Facebook pictures?

5) In MN, does having "bong water" count as drugs for drug charges?

6) What are the top two Constitutional Rights most people forget to use when arrested by the police?


ANSWERS:
1) It's the Hennepin County Government Center in Minneapolis, MN.

2) Top Row: Justice Lorie Skjerven Gildea, Justice Helen M. Meyer, Justice G. Barry Anderson, Justice Christopher J. Dietzen, Bottom Row: Justice Alan C. Page, Chief Justice Eric J. Magnuson, Justice Paul H. Anderson.

3) a) Yes,
b) Yes, boating while under the influence can get you arrested.  The Water Patrol and DNR are looking for the signs of intoxicated boaters.  There are several things you should do if stopped for boating while intoxicated.  One of the first is to call us.
c) Yes, similar to boating, operating a snowmobile while intoxicated can result in being charged with a DUI.
d) Yes
e) Although there are no prominent cases in Minnesota, people have been arrested for biking while intoxicated in other states.
f) Again, no cases have been reported in Minnesota, but as we have mentioned in previous blog posts, it does happen.
g) Likely, although no reports of receiving a DUI from a wheelchair have been reported in Minnesota.  Arrests have been made in Georgia and Wisconsin.
h) Yes, although the La-Z-Boy was modified to include a lawn mower engine.

4) Yes, in November reports of this occurring in Wisconsin came to light.  Although no reports to this extent have been seen in Minnesota, it's likely to happen.  If it happens to you or a loved one, contact Ascheman & Smith immediately.


5) Yes, in a recent Minnesota Supreme Court ruling, "bong water" was determined to satisfy the requirements for a controlled substance.


6) The right to remain silent, and the right to an attorney.  Although most people know these rights, they fail to use them.  If your arrested don't talk to the nice friendly officer.  Tell her you want your attorney.  Put us in your cell phone now, don't waste time trying to find one if it happens.  Better to have us and never need us.


Thank you,
Landon J. Ascheman, Esq.
Landon@AschemanSmith.com
(B) 612.217.0077 (C) 651.280.9533 (F) 651.344.0700
Contact Me     

"I don't know why they pulled me over"

Many people are charged with DWI's day and night. One of the things I often heard when working for the Hennepin County Attorney's Office was "I don't know why they pulled me over," "I wasn't doing anything wrong," and "They didn't say why they stopped me." It was a common story and one that I have heard over and over again. 

I recently stumbled upon an interesting post by Matthew Ruff, a criminal defense lawyer in California.  While working with the prosecution I discovered officers would look for many of the signs (listed below) Mr. Ruff indicates.

Mr. Ruff cites research by the National Highway Transportation Safety Administration for identified the following indicators of drunk driving, in descending order of probability that the driver is intoxicated, suggesting a high probability that a driver exhibiting the behavior is intoxicated:

• Turning the car with a wide radius 
• Straddling the center. (I saw this answer from officers many times)
• Appearing to be drunk or visibly intoxicated (e.g. gripping the steering wheel tightly, driving with one's face close to the windshield, or staring straight ahead with eyes fixed - imagine a 105 year-old grandmother)
• Almost striking a fixed roadside object or vehicle 
• Weaving within or outside a lane of travel
• Driving the vehicle somewhere other than the designated roadway (e.g. on the shoulder or straight through a turn-only lane) 
• Swerving in a sudden fashion
• Driving at a Slow speed (10 m.p.h. or more below the speed limit) 
• Stopping the car in the lane without cause 
• Following another vehicle too closely, improper or unsafe distance
• Drifting in and out of the lane 
• Tires traveling on center or lane marker
• Braking suddenly or erratically 
• Driving into opposing or crossing traffic 
• Signaling a turn inconsistent with driving actions 
• Stopping inappropriately other than in lane 
• Slow response to green lights or other traffic signals 
• Turning abruptly or illegally, in violation of traffic laws
• Accelerating or decelerating rapidly 
• Headlights off at night, (for example when leaving a bar) 

If more than one indicator is observed, it is even more likely that the suspected drunk driver is intoxicated . The most important observation is that speeding is not an indicator of DUI; because of quicker judgment and reflexes, in some circumstances it may indicate sobriety. Once a stop is made, the DUI police officer will generally look for the following behaviors by the driver:

• Difficulty with vehicle controls;
• Difficulty exiting vehicle;
• Fumbling with a drivers license or registration;
• Repeating questions or comments to the officer;
• Swaying, unsteadiness or balance problems while speaking to the police officer;
• Leaning on the vehicle (or other object);
• Slurred, thick or drunken speech;
• Slowness in responding to questions, or asking officer to repeat questions;
• Providing incorrect information or changing answers;
• Odor of an alcoholic beverage.

Keep in mind that officers can use other means to stop you.  One young lady was unfortunate enough to have a crystal hanging from her rear view mirror, she was stopped and arrested for a DUI.  Another young lady had her tail light smashed while she was in the bar, she was stopped and arrested for a DUI.

Thank you,

Landon J. Ascheman, Esq.

Landon@AschemanSmith.com

(B) 612.217.0077 (C) 651.280.9533 (F) 651.344.0700

Contact Me

But I can’t afford an attorney.

Yesterday I had the chance to go to the Chanhassen Dinner Theater. The play (Another Night Before Christmas) was wonderful and the food was great - so was the conversation. The pertinent portion of the conversation was that a friend was being charged with a DWI. This is how most referrals start out. We love referral clients because it means that someone believes we are good enough for their friends. We love helping friends of friends, our business is about 70% referrals.

The problem was he didn’t want to call us. He didn’t want to call us because he felt he couldn’t afford an attorney. Now I completely understand. I’ve worked with a lot of people who were too rich for a “free attorney” (MN PD, LRC, NJC). But felt they couldn’t afford to actually pay an attorney. For those of you out there in the same situation I have two great news for you. 1) Prices are Down, 2) First Consultation is Free.

1) Prices are Down!
Most people believe that the cost that the attorney charges represents her ability or quality of service. This is simply not true. There are attorneys out there that will charge an arm & leg, but barely lift a finger for you. There are "free attorneys" that will fight for you like a well trained guard dog. Price does not equal quality.

In today’s economic market, many attorneys are trying to start their own firm, people have stopped going with the highest price they can afford and are looking for the best attorney they can get for a reasonable price. The result is many attorneys lowering their price to stay in the market. This means you can get high quality service for a lower price than you may expect.

2) First Consultation is Free! 
I don't mean, if you pay cash we waive the first hour, or that you get 10% money back, or that you've initiated a contract with us simply by meeting us and you're stuck with us. Your first consultation is free. There are several firms in the area that offer this wonderful option, including Ascheman & Smith. Go in, talk to an attorney, call them, what's the harm? When you contact Ascheman & Smith, we will talk to you over the phone about your concerns. We'll make the effort to set up a time to meet face to face, on your schedule. This gives you a chance to meet us and see what we do. Above all it gives you the chance to ask some initial questions about your case and what's going to happen. The only thing at risk is a few minutes of your time.

If you have questions, call us. If you don't know if you can afford us, call us. If you don't know who to turn to, call us. It costs you nothing, but could save you a lot of trouble, and put your mind at ease.

Thank you,

Landon J. Ascheman, Esq.
Landon@AschemanSmith.com
(B) 612.217.0077 (C) 651.280.9533 (F) 651.344.0700
Contact Me

Networking Sites... When and How?

Sam Glover, over at Lawyerist had an interesting post on LinkedIn that brought up some good questions. (video attached below)

This brings up the question about what are the social networking sites out there, and what is the best way to use them for your business.  Taking a quick look around we can find a wide variety of social networking sites: Facebook, Twitter, LinkedIn, MyPractice, Orkut, and many many others. (Wikipedia list)

Now after reviewing the Wikipedia list, it's obvious that many of these are not intended for the business setting.  (match.com, Adult Friend Finder, ect.)  The following is based simply on my perceptions, I welcome your insights.


Facebook: This social networking site is almost in a league of it's own.  It seems to have grown from the random computer nerd to everybody and their mother (yep, even my mom).  I've seen nephews and nieces that are still in elementary school, to someone's 90-year-old grandmother.
This is not lost on the business community, you can find fan pages, and groups of every type out there.  Many businesses find this a great way to keep in contact with potential clients.  While most people use Facebook for interacting and staying in touch with friends and family, this allows the company to occasionally send out a reminder to everyone that "Hey, remember we're here."

Beyond advertising, it can also be useful to keep in contact with business professionals.  I still remember being the 2L at William Mitchell, studying for finals at Nina's.  While I'm trying to remember which tax code goes with which tax break I over hear the two elderly gentlemen sitting next to me (ok, they were probably only 60).  They were trying to close a business deal, but needed to know if so-and-so would go for it.  Neither of them had his contact information on hand.  The simple response was "Pull up his Facebook."

LinkedIn and the Ilk: These sites can very from place to place, such as MyPractice (primarily seems to be MN Lawyers), Xing (Europe and Asia market), Talkbiznow, Ryze, PartnerUp, ect...  These can be great ideas for social networking sites, but their application seems a little weak.  This may be due to the fact that the clients that most people are looking for are not on the site.I do like the fact that, for a small firm like ours, the LinkedIn account can be essentially a resume/ad to potential clients, and can be easily viewed by people outside the network. It also seems to come near the top on google searches.

But for the most part, I'm not sure it extends to networking as much as it could. Say you were looking for a CPA or private investigator among your contacts. Unless you have been diligent at keeping up your "Profile Organizer," chances are, you will be searching in the dark.

Summation: nice for advertising your business resume, not so great for networking.

Twitter: These “micro-blogging” sites seem to be less focused on keeping people interacting, and more about allowing you to tell everyone what your doing.  Sometimes this seems to be a valuable resource, say when a new blog just came out that you really liked and want to spread the word.  Or maybe when you made the decision to go to Buffalo Wild Wings instead of the YWCA.

As you can see, the usefulness is only there if the reader actually cares.  Personally, one of the biggest uses of Twitter for Ascheman & Smith, is their willingness and ability to integrate with Facebook and LinkedIn to essentially “RT” our status updates.

Conclusion: As I mentioned, this is only my perception of how the social networking sites can be used for businesses.  I know that many of you have different opinions.  Leora Maccabee also has some great insights into social networking for lawyers. Please let me know what you think.


Thank you,

Landon J. Ascheman, Esq.
Landon@AschemanSmith.com
(B) 612.217.0077 (F) 651.344.0700
Contact Me

With Thanksgiving right around the corner, we hope that everyone is having a wonderful year.

Here, Landon Ascheman & Grant Smith are thankful for all the friends and family that have made this year a success. 

While Ascheman & Smith primarily represents Criminal Defense & ADR clients,  if your looking for help in another area, we have many highly qualified friends we can suggest.

Although we hope you never need us, please remember that we are here if you do.

To keep in touch with us, please follow us at any of the links below.

Thank you, 
Landon J. Ascheman, Esq. 
Landon@AschemanSmith.com 
(B) 612.217.0077 (F) 651.344.0700 
Contact Me

Social Networking and the Law

Recently a 19 year old boy was saved from being wrongfully convicted of a crime he didn't commit, by a very unlikely source - Facebook.  In fact as the story goes, Rodney Bradford updated his Facebook page, at 11:49 a.m. on Oct. 17. The words were typed from a computer in his father’s apartment in Harlem. The next day, Mr. Bradford was arrested as a suspect in a robbery at the Farragut Houses in Brooklyn, where he lives

That simple Facebook update became something more.  It became Mr. Bradford's alibi.  After discussing the Facebook update with Mr. Bradford's defense attorney, Robert Reuland, the prosecutor verified the information and the charges were dropped.  Mr. Reuland admits that the posting could have come from someone other than Mr. Bradford, but “This implies a level of criminal genius that you would not expect from a young boy like this; he is not Dr. Evil.”  It also appears that there were other witnesses to support the alibi.

This appears to be one of the first cases where a social networking site has been used to help a defendant.  In most cases information posted on these social networking sites is used against the defendant.  Although we hope that there will be more cases like this.  The chances seem slim.  Just as the Miranda warnings let you know that anything you say can and will be used against you, things that you post online can also be used against you, and likely will be.

Here are a few examples of some prior social networking blunders, and how they were used against the defendant.

• In Santa Barbara, CA, 2007, Jessica Binkerd was driving under the influence the resulting car crash killed her passenger.  She and her defense attorney were hoping for probation. The prosecutor produced photos from Jessica’s MySpace page showing her partying with friends and wearing an outfit with a liquor company’s T-shirt and bandoleers of shot glasses.  The judge was convinced that she had shown no remorse for the tragedy and sentenced her to 5 years and 4 months in prison.
  

• In Santa Barbara, CA, 2007, Jessica's incident was followed closely by Laura Buys, in a near identical case.  Where a picture of her drinking wine and posting drinking stories resulted in convincing the judge that she also had no remorse.  She was sentenced to 5 years.

• In Martinsburg, Pa., Jonathan Parker, 19, was charged with one count of felony daytime burglary.  In this, slightly more interesting case.  Mr. Parker apparently paused while in the house to stop and check his Facebook account while on the victim's computer.  Unfortunately, he forgot to log out before leaving the house. 

Even if your not talking about the crime, these social networking sites can lead to bad character evidence in some situations.

• In Ind., Defendant Ian Clark was found guilty of murdering a two year old girl.  In support of the prosecutions claim that Mr. Clark committed the crime, evidence was introduced of his self statement on MySpace.  "Society labels me as an outlaw and criminal and sees more and more everyday how many of the people, while growing up, and those who judge me, are dishonest and dishonorable.  Note, in one aspect I'm glad to say I have helped you people in my past who have done something and achieved on the other hand, I'm sad to see so many people who have nowhere.  To those people I say, if I can do it and get away. B ... sh.... And with all my obstacles, why the f ... can't you."  Although he appealed, the courts found that the character evidence was admissible.

In conclusion, it's important to keep in mind that anything you post online can probably be obtained by the state, and may be used against you.  Keeping your profile set to private does not protect you from having the information used against you.  

Thanks, and be safe with your posts.

-Landon Ascheman

612.217.0077

www.AschemanSmith.com

Landon@AschemanSmith.com

DWI... Driving a What?!?

DWI Laws in Minnesota and across the nation can sometimes get a little out of hand.  

Sometimes you look at the news reports and think to yourself, "that was crazy and dangerous."  In 2007, a New Jersey Judge ruled the Zamboni driver can not be prosecuted for DUI / Drunk Driving / DWI because the Zamboni can’t be used on the highways nor carry passengers.  (AP)  Another man tried to get away with the same act in Portland, ME, in 2008, his luck was not so good.  (AP)  

But in other cases you start to wonder if the laws are being stretched too far.  We all have a general understanding of the "intent" of DWI laws, even if we question their actual application.  In Alabama, 2007, a young woman was arrested for a DWI when her vehicle had a mind of its own, literally.  She was arrested while riding a horse.  (AP)  The same thing happened to a 42 year-old man in Kentucky, 2005.  (TheLouisvilleChannel.com)

In Minnesota, I feel that we are at least a little more reasonable about what constitutes a vehicle for the DWI statutes.  62 year-old Dennis Anderson probably thought so as well.  That is until he managed to modify his La-Z-Boy to include a stereo, cup holders, and a converted lawnmower.  Eventually on his ride home, he hit a parked car and was arrested for driving while intoxicated.  Mr. Anderson received 180 days stayed and two years of probation after pleading guilty.

Since then it appears that Mr. Anderson's La-Z-Boy was seized after the arrest and sold through its eBay auction.  The city managed to receive a winning bid of $10,099.99.  More information can be found at Law.com

-Landon Ascheman

612.217.0077

www.AschemanSmith.com

Landon.Ascheman@gmail.com

In the beginning...

Welcome to Ascheman & Smith!  With our first blog entry it seems important that we let you know a little about us. 

We are fairly new to the world of independent small businesses.  Although, Landon had some experience as a contractor for the Red Cross, that was the extent of our experience.  But as we approached graduation and began looking around, we found a rather rough looking economy.  (You may have noticed it wasn’t looking so hot there for a while). 

Instead of sitting back and waiting for someone to offer us a job, we decided to venture out on our own.  Grant lived and breathed criminal defense while in law school, a more dedicated defense attorney you'd be hard pressed to find.  Landon worked with prosecutors in various cities and counties, where better to under the mind of the prosecutor than with one who worked with them.  Between the two, we knew we could get the firm up and running and help those around us.  Now we just had to face the challenge of getting a small business up and running.

We managed to find a nice office location, thanks to the Neighborhood Justice Center, and we are off and running...

Future blogs will include some information about each of the attorneys at Ascheman & Smith, LLC.  The intent of this blog is to pass along important and interesting information about us, and more importantly the law.

 -Landon Ascheman

612.217.0077

www.AschemanSmith.com

Landon.Ascheman@gmail.com