Attorney Scott Campbell

Criminal Defense Attorney

Month: July, 2012

We Do It To Ourselves

People fight wars against tyranny and to gain freedom, then spend the ensuing years making laws that take that freedom away.  I heard that a long time ago, and don’t recall the source so I can’t properly cite it, but it is oh so true.  Our system is set up to elect lawmakers year after year and they dutifully go off to our City halls, County seats, State capitals, and Washington DC, and create laws.  When they can’t make laws fast enough, or want to avoid the work and political heat for creating them, they simply authorize administrative agencies to create regulations.  I heard a story about a cab driver in Singapore, when asked how things were in his country, who said “fine…for everything you do, there is a fine.”

When is it enough?  When will our lawmakers look around and say “Ya know, I think we have enough laws.  Let’s just do nothing.”  The obvious answer is never.  There will always be some interest group, or some politically strong faction, who will want to impose their idea of what is good for the rest of us on all of us.  The lawmakers will pass the laws, slap themselves on the back for doing good, then go on to their main business; getting reelected.  That is, after all, what they are really interested in.  Just like the rest of us, they want the steady income and benefits that their job comes with.

When does it stop?  The next revolution.  Sooner or later, all the laws and regulations that accumulate become our own self-made tyranny and a large enough group will revolt.  I am not advocating violence.  I hope any “revolution” in the future can be done peacefully.  But even if it is peaceful, the result will be a new order with new lawmakers.  And so it will start again.  We do it to ourselves.

How Can I do It?

I am often asked how I can represent those accused of crimes after I spent so many years as a police officer.  The answer is twofold – I believe the Constitutional rights of people are being eroded and I believe some police officers abuse their authority.

Our Constitutional rights, in my opinion, are the most important aspect of being an American. Our forefathers fought a war to guarantee them and protect people from government.  Since then, and especially in the past few decades, Congress, legislatures, and the courts have marched ahead with laws and court decisions that have eroded those rights in a misguided attempt to punish all “bad people” with little regard for the privacy of the general public.  The most significant encroachment in our rights is the reduced protection we have from unreasonable searches.  The law seems to be constantly changing giving the government, through the police, more and more legal ability to search people and their possessions in an effort to discover illegal activity.  What this does, however, is allow more and more searches that find nothing because there was nothing to be found.  I simply believe that the attitude of “if you don’t have anything to hide, why should you mind me looking” is wrong.  I am committed to be part of the resistance to this destruction of our Constitutional rights.

I know that police officers are entrusted with a great deal of authority and more power than any other actor in government.  They have the power to take away your freedom by arresting you.  They have the power of life and death with no prior review of their actions.  I know that while most police officers are honest, hardworking people, some are on a crusade to try to punish everyone who commits even the smallest infraction. Those crusading  officers will do anything, legal or illegal, to do that. But more than that, even the ones who consider themselves honest will occasionally bend the rules (our Constitutional rights) because they think a small violation of someone’s rights is justified in the pursuit of discovering what they think is obvious criminal activity. This “bending of the rules” is just plain wrong.  Yes, some people commit crimes, even horrendous crimes.  But when rights and laws are violated in the pursuit of arresting those who may be committing crimes, the ultimate result is a police state where no one has any protection from government or its agents.  I believe that, if there is no “push back” against this abuse, our rights will slowly but surely disappear.

The Exclusionary Rule – Half a Loaf Leaves Us Starving

In 1949 the Supreme Court of the United States announced what has become known as the “Exclusionary Rule.”  The Rule says that when police perform a search or seizure later determined by a court to be illegal, any evidence discovered as a result of that search or seizure is suppressed, or not allowed to be used as evidence in a trial.  The Rule extends to evidence discovered as a result of the illegal evidence, such as when an address book is illegally seized the contents cannot be used to find additional evidence against the owner of the address book.  This is commonly known as the Fruit of the Poisonous Tree Doctrine.

Prior to the Exclusionary Rule, the victim of an illegal search or seizure could sue the offending officer in civil court.  This was not effective because those found with something illegal do not make very sympathetic plaintiffs, and trying to put a dollar figure on damages for violating Constitutional rights is very difficult.  The Supreme Court recognized this when they created a new remedy for illegal searches and seizures – the Exclusionary Rule.

The Rule, as far as it goes, is good.  It is supposed to keep police honest in their search tactics because if they cross the legal line, all their efforts are wasted.  But does it.

There are two glaring problems with the Rule.  First, it does not stop police from crossing the line, and second it does not protect the innocent.

Those who know me or who have visited my website know that I am a retired police officer with many years spent in major crimes investigation.  I have performed thousands of searches.  I have obtained hundreds of warrants.  I know where the grey areas are.  The grey area exists when an officer does not think he has enough information to get a warrant or does not think the suspected crime is worth the time and effort to get a warrant.  He then reverts to the police saying that “there is no such thing as an illegal search, just suppressible evidence.”  This statement may seem odd to some, but to an officer who knows that he faces no legal consequences (to himself personally) the only risk is having evidence suppressed.

Let me explain further.  Many years ago when I was taking a beginning class in homicide investigation, a very experienced homicide investigator taught that we should gather all the evidence we could, in the best way we could, then leave it to the lawyers to figure out what was admissible.  This seemed like good advice – if you didn’t have the evidence in the first place, it could never be ruled admissible.  But think of the consequences of this advice.  I was being told not to worry about the legality of the search; I was being told not to worry too much about where the legal line was.  Why?  Because there were no personal consequences to me for crossing it.

More than police having little regard for the legality of their actions, what about all the illegal searches that turn up no evidence, suppressible or not?  What about the police illegally searching your car and finding nothing?  Where are the restraints there?  What are the consequences to police?  There is no chance for a civil suit to succeed and very little chance that a complaint to the police agency will go farther than a first line supervisor blowing off any complaint.

If you or I did what the police do with impunity, we would be arrested and prosecuted.  If I went into your house looking for drugs, I would be charged with burglary.  If the police go into your house without a warrant looking for drugs, the drugs – if any are found – get suppressed.  If none are found, the police attitude is “oh well.”  Why do the police get a pass?

The Exclusionary Rule is not enough.  Yes, illegally obtained evidence should be suppressed.  However, there should be some consequences to the police officer for performing an illegal search, whether evidence is found or not.  Historically, search warrants were a time-consuming thing to get.  It would literally take hours to type an affidavit and warrant, drive to meet a judge, have the judge consider the circumstances, perhaps revise the affidavit, have the judge sign the warrant, then drive back to the location of the search.  Today, officers get warrants in minutes, either through fax or even by a recorded telephone conversation with a judge.

Why then shouldn’t officers be getting pre-approval for even routine searches as a way to protect our right to be free from “unreasonable searches and seizures.”  Why shouldn’t officers who refuse to have a neutral judge determine before a search whether probable cause exists be subject to the same laws and consequences as the rest of us?  Why should police be able to root through our things for no reason, not find anything, and just walk away?

Why not prosecute police officers for searching without probable cause, just like you or I would be prosecuted?  Why not put a statutory value on our Constitutionally protected rights – a civil punishment for police officers violating our rights?

We give immunity to judges for their actions.  We give immunity to prosecutors for their actions.  With nothing beyond the Exclusionary Rule to protect us, we are giving de facto immunity to police also.  Where is the accountability for government and its agents when our Constitutional rights are violated?

Some will read this and think me radical.  I think a government whose actors do not face the same consequences for their actions as those governed is abusive and on the way to being totalitarian.  It’s not King George, it is King Government with a million princes.  We fought a revolution against one, and we are just rolling over for the other.

Pastor Anderson Trial Excerpts

 

 

Attorney Scott Campbell Gets Acquittal

 

Douglas Gilford was acquitted of all charges today at a trial in Quartzsite Municipal Court. First all the prosecutor’s witnesses were heard. Thereupon, Gilford’s attorney, Scott Campbell, motioned for acquittal because he felt the State had not made a sufficient case to continue the trial. Judge Sherwood Johnston III recessed for 20 minutes to consider, then returned the verdict. Less than three hours were consumed with the proceedings.

 

Gilford is a local blogger, videographer, and openly critical of Town Hall administration and Quartzsite Police Chief Jeff Gilbert and officers.

 

Judge Sherwood Johnston III made no statement on his ruling, however arguments made by Gilford’s attorney, Scott Campbell, focused on the constitutional right to video record in a public place. Town Manager Alex Taft stated she was the person who made the rule not to allow video taping at the front desk of Town Hall, to “protect the privacy of our customers”. Taft also said she didn’t consider the constitutionality at that time, but said she “considered the rights to privacy, that videos could capture private information.”

 

Witnesses for the State included Town Manager Alex Taft, Assistant Town Manager Al Johnson, QPD Officer Rodriguez, Sgt. Frausto, Sgt. Garcia, and former Mayor Jose Lizarraga (who was not called to testify).

 

Officer Rodriguez stated he was sent to Town Hall Sept. 1, 2011 with orders from Sgt. Frausto to arrest Gilford. A text message was also sent to him listing the charges. An audio of that arrest was presented, as well as two other videos taken at Town Hall on Sept. 1st and July 11th.

 

Regarding the charges of false reporting to law enforcement officers, Gilford’s defense attorney Scott Campbell argued that what Gilford said on the report was true; while Prosecuting Attorney Thomas Jones responded that Gilford called 911 when there was no actual emergency.

 

Gilford’s attorney Scott Campbell motioned for acquittal because he felt the State had not made a sufficient case to continue the trial. Judge recessed to consider, returned and announced acquittals on all charges.

 

 

Scott Campbell performed spectacularly today.

 

Your company motto is not an overstatement.

 

My expectations were exceeded

 

as soon as Scott began in court.

 

Doug