THR, legal assistance needed
- Thread starter El Tejon
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RichardInFlorida
Member
Does the truth matter? OR are we supposed to help the accused because he had a gun??
Rob,
The original poster lists some of the facts and asks for help. Prior to providing any help, it would be nice if he provided all of the facts. Innocent people should be helped, but I'll be darned if I will offer any assistance to someone committing a crime.
Representing your client to the best of your abilities is the ethical thing to do as an attorney. However, as an officer of the court, the attorney must assist the court in seeking out the truth. Somewhere along the lines, a lot of attorneys have managed to forget #2 to further the pursuits of #1. If the truth is that the gun had an obliterated serial number (and was therefore most likely stolen from an honest citizen), attacking the credibility of the officers and their ability to find a serial number isn't exactly seeking out the truth. It is more of a red herring designed to draw the court's attention away from the truth.
I think Lincoln had it right.
-Richard
Rob,
The original poster lists some of the facts and asks for help. Prior to providing any help, it would be nice if he provided all of the facts. Innocent people should be helped, but I'll be darned if I will offer any assistance to someone committing a crime.
Representing your client to the best of your abilities is the ethical thing to do as an attorney. However, as an officer of the court, the attorney must assist the court in seeking out the truth. Somewhere along the lines, a lot of attorneys have managed to forget #2 to further the pursuits of #1. If the truth is that the gun had an obliterated serial number (and was therefore most likely stolen from an honest citizen), attacking the credibility of the officers and their ability to find a serial number isn't exactly seeking out the truth. It is more of a red herring designed to draw the court's attention away from the truth.
I think Lincoln had it right.
-Richard
So it sounds like you would like photos of everywhere on the Ruger Mk 1 where the serial number appears?
If that is indeed the case, I have a MK 1 I can strip and photo for you. That's no problem.
As one attorney to another, I'd advise you to call up Jay Hansen at http://www.hansenguns.com/ and speak to him. The gunsmith they employ is the guy who did all of the diagrams for the R.L Wilson Ruger book. I am trying very hard to no longer practice law, but I'm happy to point you at the guys in Southport who can tell you everything there is to know about a particular Ruger.
If that is indeed the case, I have a MK 1 I can strip and photo for you. That's no problem.
As one attorney to another, I'd advise you to call up Jay Hansen at http://www.hansenguns.com/ and speak to him. The gunsmith they employ is the guy who did all of the diagrams for the R.L Wilson Ruger book. I am trying very hard to no longer practice law, but I'm happy to point you at the guys in Southport who can tell you everything there is to know about a particular Ruger.
Geronimo45
Member
I'm thinking that El T's saying that his client shouldn't be expected to know the whereabouts of the serial number on the pistol - since serials can be found all sorts of places on a pistol. That client may not've known the serial was mashed up.
That's what I get, anyhow - but I ain't a lawyer.
That's what I get, anyhow - but I ain't a lawyer.
maybe I am missing something obvious, but what does that have to do with the price of rice in new mexico?
Yes, in a dark car I would be hard pressed to spot a serial number, but how does that apply to this case?
1)guy accidentally banged up serial number when messing around in a dark car?
2)guy didn't see banged up serial number in the dark car, if he had, he wouldn't have stuck gun down his pants
3)this specific gun has 2 serial numbers, only 1 is botched, cops didn't see 2nd number in the dark
Prince Yamato
Member
This guy is dumb. Why are they tossing the pistol around? He had a pistol with an obliterated serial number? If he's truely that naiive, then MAYBE he didn't know it was illegal. I'd bet that they DID know it was illegal though. Otherwise, no game of "hot potato".
Feanaro
Member
Perhaps a lack of intent would help get it dismissed. That is to say, he did not know there was no serial number and certainly couldn't have looked to see. Evidence of inconspicuous serial numbers would help in this line of reason. IANAL.
Fly320s
Member
El T,
Any chance of pleading the case and getting the C felony charge dropped? Seems like that would work for a first time offender, unless the DA is battling "gun crimes."
Any chance of pleading the case and getting the C felony charge dropped? Seems like that would work for a first time offender, unless the DA is battling "gun crimes."
jimbob1911
Member
- Joined
- Dec 3, 2005
- Messages
- 118
point
I think the point is that the driver was not originally in poss. of the firearm and that one of the other passengers may very well have known that the serial was obliterated and prob did start hot potato to get it out of their poss. but they prob. did not tell the driver that it was obliterated.
The driver is the only one charged because he had it in his waistband and the argument is how could he know it was obliterated when it was painted over with black paint and hard to spot having just taken possesion of the firearm especially when 1) in a dark car, 2) being pulled over, 3) serial numbers are not in any specific location on all firearms(hence El T's request for pics of guns with serial in all different places.)
Did I get it?
I think the point is that the driver was not originally in poss. of the firearm and that one of the other passengers may very well have known that the serial was obliterated and prob did start hot potato to get it out of their poss. but they prob. did not tell the driver that it was obliterated.
The driver is the only one charged because he had it in his waistband and the argument is how could he know it was obliterated when it was painted over with black paint and hard to spot having just taken possesion of the firearm especially when 1) in a dark car, 2) being pulled over, 3) serial numbers are not in any specific location on all firearms(hence El T's request for pics of guns with serial in all different places.)
Did I get it?
Kimber1911_06238
Member
lessons learned....don't carry guns illegally and don't play hot potato with a pistol if you get pulled over.
That being said....the serial number just had ink or paint over it? does that even count as defacing a serial number?
That being said....the serial number just had ink or paint over it? does that even count as defacing a serial number?
TimboKhan
Member
Whats that old saying about ignorance not being a defense?
El Tejon
Member
What happened to my thread?
But I should expect this as not everyone understands what I do and I am not universally loved (just ask any woman)
for what I do.
First, jimbob, Feanaro, and Geronimo45, thank you for keeping this on track. Yes, you all nailed it. It is a criminal intent argument. Ignorance of the law is not a defense, but ignorance of the facts IS a defense. E.g. if someone hands you a briefcase before they go into the washroom and inside is a kilo of coke, are you guilty of Possession of Cocaine? No, of course not, you had no intent to possess cocaine.
Old Fuff, yes, any handgun is fine. Just post them here and I can print out and show the prosecution like last time.
Lashlarue, maybe, but we aren't going forward with a motion to suppress yet. I always like to do prep work before any motion to suppress and I need the cops to testify as in their police reports before I scare them off with depositions and a motion to suppress.
rkh, 1) he may not be very smart, but at 19 who is. He did not consent to any search, no one said he did. I am his lawyer and I have talked to myself. 2) The point is that gun makers put SNs in different places. My guy could not be expected to know this or see this. In short, he did not know what he had, like the cocaine in the briefcase. Make sense?
yhtomit, yes, exactly.
Dave Markowitz, valid concern at a hearing or trial, sir, but now I could care less about admissibility right now. I need them to beat the DPA over the head with.
RichardinFlorida, yes, as I said twice the SN was punched (by punched I mean someone took a punch, a hand tool, and beat on it with a hammer to displace the metal to disfigure the SN). The police were not arrested, my client was.
I have no idea what you are talking about the police "missing". They did not miss the pistol or the fact that the SN was punched. If the cops had missed either I would not be needed. I am not disputing that the police found what they found (I will in the motion to suppress) but I am arguing to the prosecution that there is no way they can proved that my kid knew he had a pistol with an obliterated SN.
Logan5, in recovery are we? Good for you, sir. However, not necessarily looking for Rugers, but any pistols. "Look, serial numbers are put everywhere. My guy is 19 how's he gonna know that? *El Tejon hands photos over one by one* Look, here are a bunch of photos of guns with different serial number placements. Here, here, and under here, how's he gonna know, at 19, in a dark car, at a heartrate of 130, after a game of hot potato."
akodo, criminal intent, mens rea, my guy knew he had a pistol, but he did not know, could not know that the SN was punched (obliterated).
Prince, they are passing around the pistol because they are young, stupid and worried about being pulled over.
Kimber1911, no, the serial number was punched (metal displaced by hand tool) and then a marker or paint (I could not tell which by looking at it) was used.
Timbo, no one is claiming ignorance of the law. Ignorance of the law is not a defense, ignorance of the facts IS a defense, and one which I have used before (drugs, sexual misconduct with minor, auto theft, etc.).
I looking for photos to help my guy. It's an adversial system, I'm in a fight everyday with the other side that wants to use violence against my people and I want to win. It's what I do, it's what the Supreme Courts of my state and the U.S. expect me to do, get in a fight. This isn't Japan where everyone dog piles the defendant until he confesses. If you were accused of a crime, would you want someone fighting for you or telling you how right the police are?
The people I fight for may not be very educated, or have a lick of common sense, shower daily, live like you or me, have flashy jobs, or practice solid dental hygenie, and you wouldn't want to have them over for dinner. However, fighting for them is what I am sworn to do.
Lot of times the fight is lopsided (really, really lopsided) and I have no chance. I still go out when the bell rings and I smile when they knock my teeth down my throat and spit the teeth back at them. I fight for them as fighting for them is fighting for the Bill of Rights and battling against the Leviathan. I will fight for my guys without apology until they carry me out horizontal, briefcase and cell phone in hand, and in my death throes I will bolt up and cry out, "objection!".
I need some photos of serial numbers of guns. I'm not asking for anyone to make anything up. I'm simply asking for photos. If you don't wish to post any, that's fine, I'm not ordering or forcing or paying you. Your choice. I simply thought THR would be a good place to ask for some low-cost help. I am sorry if any is offended that a criminal defense attorney wishes to do his duty and needs some help, it was not my intention to make anyone mad.
But I should expect this as not everyone understands what I do and I am not universally loved (just ask any woman) for what I do.First, jimbob, Feanaro, and Geronimo45, thank you for keeping this on track. Yes, you all nailed it. It is a criminal intent argument. Ignorance of the law is not a defense, but ignorance of the facts IS a defense. E.g. if someone hands you a briefcase before they go into the washroom and inside is a kilo of coke, are you guilty of Possession of Cocaine? No, of course not, you had no intent to possess cocaine.
Old Fuff, yes, any handgun is fine. Just post them here and I can print out and show the prosecution like last time.
Lashlarue, maybe, but we aren't going forward with a motion to suppress yet. I always like to do prep work before any motion to suppress and I need the cops to testify as in their police reports before I scare them off with depositions and a motion to suppress.
rkh, 1) he may not be very smart, but at 19 who is. He did not consent to any search, no one said he did. I am his lawyer and I have talked to myself. 2) The point is that gun makers put SNs in different places. My guy could not be expected to know this or see this. In short, he did not know what he had, like the cocaine in the briefcase. Make sense?
yhtomit, yes, exactly.
Dave Markowitz, valid concern at a hearing or trial, sir, but now I could care less about admissibility right now. I need them to beat the DPA over the head with.
RichardinFlorida, yes, as I said twice the SN was punched (by punched I mean someone took a punch, a hand tool, and beat on it with a hammer to displace the metal to disfigure the SN). The police were not arrested, my client was.
I have no idea what you are talking about the police "missing". They did not miss the pistol or the fact that the SN was punched. If the cops had missed either I would not be needed. I am not disputing that the police found what they found (I will in the motion to suppress) but I am arguing to the prosecution that there is no way they can proved that my kid knew he had a pistol with an obliterated SN.
Logan5, in recovery are we? Good for you, sir. However, not necessarily looking for Rugers, but any pistols. "Look, serial numbers are put everywhere. My guy is 19 how's he gonna know that? *El Tejon hands photos over one by one* Look, here are a bunch of photos of guns with different serial number placements. Here, here, and under here, how's he gonna know, at 19, in a dark car, at a heartrate of 130, after a game of hot potato."
akodo, criminal intent, mens rea, my guy knew he had a pistol, but he did not know, could not know that the SN was punched (obliterated).
Prince, they are passing around the pistol because they are young, stupid and worried about being pulled over.
Kimber1911, no, the serial number was punched (metal displaced by hand tool) and then a marker or paint (I could not tell which by looking at it) was used.
Timbo, no one is claiming ignorance of the law. Ignorance of the law is not a defense, ignorance of the facts IS a defense, and one which I have used before (drugs, sexual misconduct with minor, auto theft, etc.).
I looking for photos to help my guy. It's an adversial system, I'm in a fight everyday with the other side that wants to use violence against my people and I want to win. It's what I do, it's what the Supreme Courts of my state and the U.S. expect me to do, get in a fight. This isn't Japan where everyone dog piles the defendant until he confesses. If you were accused of a crime, would you want someone fighting for you or telling you how right the police are?
The people I fight for may not be very educated, or have a lick of common sense, shower daily, live like you or me, have flashy jobs, or practice solid dental hygenie, and you wouldn't want to have them over for dinner. However, fighting for them is what I am sworn to do.
Lot of times the fight is lopsided (really, really lopsided) and I have no chance. I still go out when the bell rings and I smile when they knock my teeth down my throat and spit the teeth back at them. I fight for them as fighting for them is fighting for the Bill of Rights and battling against the Leviathan. I will fight for my guys without apology until they carry me out horizontal, briefcase and cell phone in hand, and in my death throes I will bolt up and cry out, "objection!".
I need some photos of serial numbers of guns. I'm not asking for anyone to make anything up. I'm simply asking for photos. If you don't wish to post any, that's fine, I'm not ordering or forcing or paying you. Your choice. I simply thought THR would be a good place to ask for some low-cost help. I am sorry if any is offended that a criminal defense attorney wishes to do his duty and needs some help, it was not my intention to make anyone mad.
vis-à-vis
Member
Is that really probable cause? From mere movements in the car, I don't know how I could arrive at a reasonable suspicion that a crime has been or is being committed. I mean, the other night as a passenger, I had a heck of a time moving something I needed from the back seat to the front. Should I expect to get pulled over for such a thing? If the officer saw me unbuckled in a moving car, sure...
I do not mean to derail and my question is definitely not an answer. I think this thread is highly fascinating and I look forward to hearing a conclusion. But would like to know how movement in car, though odd, constitutes probable cause.
El Tejon
Member
vis, fascinating? Really? The smelly, dirty day to day drudgery of a tilecrawler? The phone continually rings, secretaries pout, overhead looms, a schedule requiring your presence in 9 courts at once? Fascinating? You've got to get out more, find a hot chick and take her to dinner and then dancing.
I've never had groupies before. And if I did they would have 3 teeth and be covered in tattoos.
Well, since you are fascinated: do not confuse the standards, "probable cause" repeated at least 50 times every espisode of Law & Order [the show which is responsible for believing every state uses grand juries just because New York does, heck I saw a mention of grand juries being required on Closer to Home which is set in Indiana] is not necessary for a stop und frisk. Under Terry you need "reasonable suspicion", the step below.
Requiring this defendant to stop and exit the vehicle and be subjected to a frisk is most likely to be upheld under Indiana case law, e.g. the Supreme Court caseline of Sweeney v. State, 704 N.E.2d 86 (Ind. 1998) (warrantless search of car justified where Defendant lean over as though placing something, during stop defendant was shaking and nervous, etc.). Other cases involving similar situations like mine which resulted in frisk so my frisk is likely to be upheld as valid. Don't know for sure until I research it and then file and argue it, but I am a long time away from a Motion to Suppress.
On your sitatuation of just retrieving something from the backseat? Don't think a frisk would fly without something more (reason for cop to be concerned for safety). Maybe your "Molon Labe" t-shirt or your Gadsen flag window sticker?
I want to kill the top count first, then if I bluff a Motion to Suppress the prosecution may dismiss whole thing as we would only be fighting a misdemeanor.
I like to have solid motions and that's helped my rep as the prosecution will stop and reexamine their case and sometimes dismiss without a hearing. Just had a Disorderly Conduct (just a B misdemeanor here) dismissed Friday morning and the hearing on my Motion to Dismiss was Friday afternoon. To win without fighting is the greatest victory.
Usually you fight the Motion to Suppress first and then second line of defense is Motion to Dismiss but I have a solid argument on mens rea here and am reversing the order intentionally as they other count is small potatos (hey, keeping them off balance sometimes works).
I've never had groupies before. And if I did they would have 3 teeth and be covered in tattoos.
Well, since you are fascinated: do not confuse the standards, "probable cause" repeated at least 50 times every espisode of Law & Order [the show which is responsible for believing every state uses grand juries just because New York does, heck I saw a mention of grand juries being required on Closer to Home which is set in Indiana
] is not necessary for a stop und frisk. Under Terry you need "reasonable suspicion", the step below.Requiring this defendant to stop and exit the vehicle and be subjected to a frisk is most likely to be upheld under Indiana case law, e.g. the Supreme Court caseline of Sweeney v. State, 704 N.E.2d 86 (Ind. 1998) (warrantless search of car justified where Defendant lean over as though placing something, during stop defendant was shaking and nervous, etc.). Other cases involving similar situations like mine which resulted in frisk so my frisk is likely to be upheld as valid. Don't know for sure until I research it and then file and argue it, but I am a long time away from a Motion to Suppress.
On your sitatuation of just retrieving something from the backseat? Don't think a frisk would fly without something more (reason for cop to be concerned for safety). Maybe your "Molon Labe" t-shirt or your Gadsen flag window sticker?
I want to kill the top count first, then if I bluff a Motion to Suppress the prosecution may dismiss whole thing as we would only be fighting a misdemeanor.
I like to have solid motions and that's helped my rep as the prosecution will stop and reexamine their case and sometimes dismiss without a hearing. Just had a Disorderly Conduct (just a B misdemeanor here) dismissed Friday morning and the hearing on my Motion to Dismiss was Friday afternoon. To win without fighting is the greatest victory.
Usually you fight the Motion to Suppress first and then second line of defense is Motion to Dismiss but I have a solid argument on mens rea here and am reversing the order intentionally as they other count is small potatos (hey, keeping them off balance sometimes works).
TexasRifleman
Moderator Emeritus
Well my friend the problem is that things that "should" happen or would be "the right thing to do" seldom happen in the court system.
El T is doing what he is supposed to do in our adversarial system, represent his client as much as he possibly can without getting into a personal debate on whether the client was right/wrong.
That's how this system works, and it works pretty well.
Depending on the DA to just 'do the right thing' doesn't work. Don't get your legal advice, or idea of how the system works, from television.
In the end it's they jury that decides whether something is right or wrong, and no one else.
vis-à-vis
Member
You're just going to have to settle for a fella with a Glock.
Quite scandalous, eh?I find it interesting due to the fact that I'd like to go to law school once I finish my undergrad. My failure to understand the complete picture results from a lack of a solid legal knowledge base. Working on that when I have free time to read.
And the stress of your day is nothing that a fine glass of brandy, good music, and good company can't cure. And there is always the range when the brandy runs out. [You're right too, I need a woman; they are helpful].
A cop should certainly be afraid of my Gadsen flag bumper sticker. He is attempting to tread on me.
VARifleman
Member
I hope you have a large email inbox...I sent you three pictures, each 490kb, 2592x1944 (jpeg) for printing clarity.
Zen21Tao
Member
(Just my 2 cents)
What you need to try is to have the firearm found excluded under the “exclusionary rule.” To see if this is possible, the question you have to raise is whether or not the frisk/pat down of “your guy” violates the search standards set fourth in the Supreme Court case of Terry v. Ohio.
Court Ruling:
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0392_0001_ZO.html
It was argued that there is a difference between mealy stopping and frisking someone and actually seizing the person. The court held that the 4th Amendment only applied to seizure situations. However, it concluded that a “stop and frisk” in Terry’s case constituted a seizure because the person's ability to continuing to move freely was obstructed. So the question then becomes whether a “stop and frisk” is reasonable in the individual case at hand.
The court established an objective standard of reasonability follows:
The arguments you would have to make would be that the “stop and frisk” in your guy’s case also constituted a seizure and that this seizure was not reasonable.
The problem you face is that “reasonability”, even based on the above standard, is very subjective. You may be able to successfully argue that simply shuffling around in your vehicle isn’t sufficient to claim a reasonable belief that someone in the vehicle has a weapon. For example, shuffling around may be viewed as common if the people in the vehicle were looking for the proper documents they thought they would be asked for.
If you ask me it is an up hill battle, but is definitely one that’s worth fighting. If anything, he may get a misdemeanor plea deal that allows him to retain his 2nd Amendment right (assuming of course no prior felonies convictions in his past).
What you need to try is to have the firearm found excluded under the “exclusionary rule.” To see if this is possible, the question you have to raise is whether or not the frisk/pat down of “your guy” violates the search standards set fourth in the Supreme Court case of Terry v. Ohio.
Court Ruling:
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0392_0001_ZO.html
It was argued that there is a difference between mealy stopping and frisking someone and actually seizing the person. The court held that the 4th Amendment only applied to seizure situations. However, it concluded that a “stop and frisk” in Terry’s case constituted a seizure because the person's ability to continuing to move freely was obstructed. So the question then becomes whether a “stop and frisk” is reasonable in the individual case at hand.
The court established an objective standard of reasonability follows:
The arguments you would have to make would be that the “stop and frisk” in your guy’s case also constituted a seizure and that this seizure was not reasonable.
The problem you face is that “reasonability”, even based on the above standard, is very subjective. You may be able to successfully argue that simply shuffling around in your vehicle isn’t sufficient to claim a reasonable belief that someone in the vehicle has a weapon. For example, shuffling around may be viewed as common if the people in the vehicle were looking for the proper documents they thought they would be asked for.
If you ask me it is an up hill battle, but is definitely one that’s worth fighting. If anything, he may get a misdemeanor plea deal that allows him to retain his 2nd Amendment right (assuming of course no prior felonies convictions in his past).
TheOld Man
Member
RE: All these arguments about the legality of "Stop & Frisk." Remember, the standard can vary considerably in different jurisdictions. In my home state of Washington, the officers need "Reasonable Suspicion" to search. I was pulled over in Oregon for "Suspicious Demeanor." My car was searched while I was held at gunpoint by one of the other officers. Search team found a bottle of whiskey in trunk, one pours it out and writes me up for "Open Container." The judge told me that by virtue of driving on public highways, you give Implied Permission to be searched.
Question: What is the standard in the jurisdiction where this occurred?
Last edited:
Aguila Blanca
Member
Ummmm ...Lashlarue said:
El Tejon is a good attorney, and he is asking our help in getting the kid off. Did you want to offer some assistance, or lecture an attorney on the law?
El T, would a photo of a cowboy 6-gun with the serial number on the front of the trigger guard be of any help?
I may be wrong, but serial numbers I don't believe were mandated until after 1968 on guns. Mark I Rugers were made before and after that date I believe. I have several older rifles that have no numbers at all on them. Pistols may be different. Something to check into possibly.
Dave Markowitz
Member
Hearsay is an out of court statement offered to prove the truth of the matter asserted. In this case, the "out of court statement" is a digital picture offered as evidence that serial numbers can be stamped in various places on a gun.
It appears that for the purpose El T. wants to use them, this may not be as big an issue as I was concerned about.
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