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Nolle Prosequi - A Blawg For Heads


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#1 Sidestreet

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Posted 11 December 2016 - 09:37 AM

Nolle Prosequi

A Blawg For Heads

 

 

Welcome to Nolle Prosequi, Mycotopia’s first law blog.  I’ll be posting short pieces that I hope you’ll find interesting and useful.  I’m leaving it unlocked so anyone can participate.  Feel free to ask questions or post stories.  What do you want to know about?  I want to talk about practical tips for protecting your rights, policy reform, investigative techniques used by law enforcement, trends in the law, and other interesting or funny tidbits.

 

While we will discuss practical tips and I will often give general advice, nothing I say should be construed as legal advice specific to you.  If you have a legal problem, assert your rights the best you can and contact a lawyer as soon as possible.

 

Finally, I'll try to keep it light!  I don't know about you, but talking about criminal law sometimes gets my adrenaline going, so let's crack some jokes here and there.

 

IMG_0982.JPG

Edited by Sidestreet, 11 December 2016 - 09:52 AM.

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#2 Sidestreet

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Posted 11 December 2016 - 09:47 AM

Let's start with a story that could win a legal Darwin Award: this mom tried to mail some white powders to her daughter--while she was in jail.  I mean, friggin' duh, right?

 

 

A Florida mom is now in the same jail as her daughter after being arrested for mailing her daughter drugs while the daughter was in jail. The 55-year-old mother, Nadine Carroll, is being charged with smuggling contraband into the jail, while her daughter, 27, was charged with possession of cocaine and driving on a suspended license approximately two weeks before her mother sent the drugs.

The Florida jail noticed that the envelope sent by Carroll had a chemical smell, and when they opened it, discovered a suspicious substance that turned out to be a type of synthetic opioid. Neither mother or daughter have commented on the situation, nor is it known whether either have retained counsel.

http://blogs.findlaw...ghter.html#more

 

Here's my first piece of advice.  DON'T MAIL DRUGS TO A JAIL.  lol.  Of course all prisoner mail is closely monitored.

 

As if you needed another reason to avoid hard drugs.  We'll take risks for the experiences we want to have with psychedelics, but if you fucking need some heroin you'll go take dumb, dumb, dumb chances to get ahold of some.  I doubt we have many skag users here, but if you do use it or have in the past, I'd be super interested to hear about it.  Heroin's a major issue these days and I want to know as much as I can.


Edited by Sidestreet, 11 December 2016 - 09:53 AM.

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#3 Myc

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Posted 11 December 2016 - 10:57 AM

  I doubt we have many skag users here, but if you do use it or have in the past, I'd be super interested to hear about it.  Heroin's a major issue these days and I want to know as much as I can.

 

I still have some 50 mcg/hr Fentanyl transdermal patches left over from the last back injury. After I no longer needed them, I discovered how dangerous they are. One must be "habituated" to opiates - and in acute agony or the medicine can kill you. There is no anti-dote and overdose victims usually die. You can't even throw them in the trash. If a pet were to get ahold of a spent one - it would kill them. I really don't know what to do with this toxic waste and will probably wait for one of those "community pill dumps" where you can get rid of expired prescriptions with no questions asked. 

 

So I guess this fits. I legally, by prescription, possess some toxic waste which would kill me if I used it. I need to safely and responsibly dispose of this stuff in a place where it won't fall into the wrong hands (anyone's hands - the stuff is poison). 


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#4 Sidestreet

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Posted 11 December 2016 - 12:27 PM

Fentanyl definitely fits any discussion about heroin because it's regularly being mixed into heroin these days, making the powder more dangerous and resistant to overdose-reversing drugs like Narcan.  First responders like police and paramedics are more regularly equipped with Narcan, but because fentanyl is being put in the heroin, the Narcan is less effective (this is my own inference made after listening to first responders talk about having to use multiple doses to reverse overdoses).

 

Then there's an even more potent variant called carfentanyl which recently made an appearance in the Midwest.  Carfentanyl is used as an elephant tranquilizer and contributed to a spike in overdose deaths (even beyond the wave we're already experiencing).

 

Here's some info on the safe disposal of fentanyl patches:

 

 

Disposal:

  • Patients and caregivers should properly dispose of fentanyl patches immediately after use to prevent fatal accidents.
  • Used patches must be folded so that the adhesive side sticks to itself, then returned to the pharmacy for disposal.
  • They should never be placed in the household trash where children or pets can find them.
  • Patients should dispose of unused patches remaining from a prescription as soon as they are no longer needed. Unused patches should be removed from their pouch and then appropriately discarded like used patches.

http://healthycanadi.../36239a-eng.php


Edited by Sidestreet, 11 December 2016 - 12:30 PM.

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#5 catattack

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Posted 11 December 2016 - 12:34 PM

 

  I doubt we have many skag users here, but if you do use it or have in the past, I'd be super interested to hear about it.  Heroin's a major issue these days and I want to know as much as I can.

 

I still have some 50 mcg/hr Fentanyl transdermal patches left over from the last back injury. After I no longer needed them, I discovered how dangerous they are. One must be "habituated" to opiates - and in acute agony or the medicine can kill you. There is no anti-dote and overdose victims usually die. You can't even throw them in the trash. If a pet were to get ahold of a spent one - it would kill them. I really don't know what to do with this toxic waste and will probably wait for one of those "community pill dumps" where you can get rid of expired prescriptions with no questions asked. 

 

So I guess this fits. I legally, by prescription, possess some toxic waste which would kill me if I used it. I need to safely and responsibly dispose of this stuff in a place where it won't fall into the wrong hands (anyone's hands - the stuff is poison). 

 

 

 

Fentanyl definitely fits any discussion about heroin because it's regularly being mixed into heroin these days, making the powder more dangerous and resistant to overdose-reversing drugs like Narcan.  First responders like police and paramedics are more regularly equipped with Narcan these days, but because fentanyl is being put in the heroin, they are having to use multiple doses of the Narcan to revive people suffering an overdose.

 

Then there's an even more potent variant called carfentanyl which recently made an appearance in the Midwest.  Carfentanyl is used as an elephant tranquilizer and contributed to a spike in overdose deaths (even beyond the wave we're already experiencing).

 

Here's some info on the safe disposal of fentanyl patches:

 

 

Disposal:

  • Patients and caregivers should properly dispose of fentanyl patches immediately after use to prevent fatal accidents.
  • Used patches must be folded so that the adhesive side sticks to itself, then returned to the pharmacy for disposal.
  • They should never be placed in the household trash where children or pets can find them.
  • Patients should dispose of unused patches remaining from a prescription as soon as they are no longer needed. Unused patches should be removed from their pouch and then appropriately discarded like used patches.

http://healthycanadi.../36239a-eng.php

 

 

I used to love those patches. I only used them when I was already pill-ed up (last decade), so I didn't die. It's like 3 days with no pills to take.

 

In the heroin addict's brain, as soon as there are a bunch of overdoses, everyone wants to know the "brand" and it actually leads to knock off stamps a couple of days later.


Edited by catattack, 11 December 2016 - 12:35 PM.

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#6 Sidestreet

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Posted 11 December 2016 - 12:56 PM

 

In the heroin addict's brain, as soon as there are a bunch of overdoses, everyone wants to know the "brand" and it actually leads to knock off stamps a couple of days later.

 

Mind-blowing.  I heard the story of an overdose who was pissed off when revived with Narcan because it ruined his buzz.  I can't fathom wanting to take something that just killed a bunch of people.

 

 

"Drugs are so fucking good that they'll ruin your life!  That's how good they are!"

 

[Direct Link]


Edited by Sidestreet, 11 December 2016 - 12:56 PM.

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#7 fungi2bwith

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Posted 11 December 2016 - 02:05 PM

I've done heroin, shot it, snorted it, smoked it.....It's nothing special, gives you the same buzz a handful of vicodin will give you, just faster....

 

I've sucked the gel right out of fentanyl patches without prior tolerance build up.....I'm still here and kickin'

 

I no longer dabble in opiates, except for the occassional seed tea.....Which IMO is just as strong as the fentanyl patches.....


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#8 Sidestreet

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Posted 12 December 2016 - 10:02 AM

The Fifth Amendment is Not Just Some Haven for Crooks

 

With the re-surfacing of this excellent video about why you should never talk to the police, I think it's a good time to talk about the Fifth Amendment a little bit.  Let's start with the text:

 

 

 

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

U.S. Const. Amend. V

 

 

 

I'm going to focus on the clause, "nor shall be compelled in any criminal case to be a witness against himself."  Of course, this is the clause that's being invoked when we wisely invoke the Fifth Amendment in response to police interrogation, questioning, or mere conversation.  The Fifth Amendment has a spotty reputation among the upright citizens of the country who might never imagine themselves as the subjects of investigation.  But the philosophy informing the self-incrimination clause is far more beautiful than the imagined "shelter for wrongdoers."

 

 

 

 

It is relevant to define explicitly the spirit in which the Fifth Amendment's privilege against self-incrimination should be approached. This command of the Fifth Amendment ("nor shall any person . . . be compelled in any criminal case to be a witness against himself. . . .") registers an important advance in the development of our liberty -- "one of the great landmarks in man's struggle to make himself civilized." Time has not shown that protection from the evils against which this safeguard was directed is needless or unwarranted. This constitutional protection must not be interpreted in a hostile or niggardly spirit. Too many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege.  Such a view does scant honor to the patriots who sponsored the Bill of Rights as a condition to acceptance of the Constitution by the ratifying States. The Founders of the Nation were not naive or disregardful of the interests of justice. The difference between them and those who deem the privilege an obstruction to due inquiry has been appropriately indicated by Chief Judge Magruder:

 

"Our forefathers, when they wrote this provision into the Fifth Amendment of the Constitution, had in mind a lot of history which has been largely forgotten today. See VIII Wigmore on Evidence (3d ed.1940) § 2250 et seq.; Morgan, The Privilege Against Self-Incrimination, 34 Minn.L.Rev. 1 (1949). They made a judgment and expressed it in our fundamental law, that it were better for an occasional crime to go unpunished than that the prosecution should be free to build up a criminal case, in whole or in part, with the assistance of enforced disclosures by the accused. The privilege against self-incrimination serves as a protection to the innocent, as well as to the guilty, and we have been admonished that it should be given a liberal application. Hoffman v. United States, . . . 341 U. S. 479, 341 U. S. 486.

Ullmann v. United States, 350 U.S. 422, 426 (1956) (emphasis added).

 

 

 

The statement that I bolded above is one that has been echoed a few times through the centuries.  Probably the most famous jurist in history, William Blackstone, said, "better that ten guilty persons escape than that one innocent suffer."  Some say that Benjamin Franklin thought the number of theoretical escaping guilty persons to one hundred.  The point is that the self-incrimination clause protects the innocent as well as the guilty.

 

 

 

 

 

But we have never held . . . that the privilege is unavailable to those who claim innocence. To the contrary, we have emphasized that one of the Fifth Amendment's "basic functions ... is to protect innocent men ... 'who otherwise might be ensnared by ambiguous circumstances.'" Grunewald v. United States, 353 U. S. 391, 421 (1957) (quoting Slochower v. Board of Higher Ed. of New York City, 350 U. S. 551, 557-558 (1956)) (emphasis in original). In Grunewald, we recognized that truthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker's own mouth. 353 U. S., at 421-422.

Ohio v. Reiner, 532 U.S. 17 (2001) (emphasis added).

 

 

 

The bolded portion from Reiner reiterates what the attorney in the video said: even if you're innocent, your own statements can be used against you and maybe even get you convicted.

 

Remember that it's important not just to keep your mouth shut- you actually have to say "I'm exercising my Fifth Amendment right," or something to that effect.  Otherwise even your silence can be used against you


Edited by Sidestreet, 12 December 2016 - 10:05 AM.

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#9 TVCasualty

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Posted 17 December 2016 - 12:54 PM

The power of the Fifth is what all the shitty TV cop shows that have ever been produced apparently seek to undermine. That's one of many excellent reasons to never watch stupid cop shows (if one must watch TV at all, I guess). Or most police-centric movies for that matter.

 

They seem to be examples of propaganda intended to plant the idea in people's heads that when you're "taken down to the Station" you should defend yourself and answer their questions during the interrogation, oops I mean "interview," and that those who "lawyer up" (with the implication that lawyers are bad, mm'kay?) are obviously criminals (and as such, are clearly Guilty of whatever they're accused of).

 

Such shows also act as propaganda that celebrates and promotes the "hard boiled, street-smart cop who doesn't play by the rules!" kind of officer as a populist hero or something (i.e., all the variations on the Dirty Harry theme in movies and on TV shows).

 

Never mind the fact that a technically-accurate description of a law enforcement officer who "doesn't play by the rules" would be "a criminal;" on TV or in the movies the "bad guys" are unambiguously-evil and always deserve what happens to them, even if the hero-cop protagonist(?) has to become one of them in the process of delivering "street justice."


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#10 Sidestreet

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Posted 17 December 2016 - 05:08 PM

 

They seem to be examples of propaganda intended to plant the idea in people's heads that when you're "taken down to the Station" you should defend yourself and answer their questions during the interrogation, oops I mean "interview," and that those who "lawyer up" (with the implication that lawyers are bad, mm'kay?) are obviously criminals (and as such, are clearly Guilty of whatever they're accused of).

 

Well it doesn't help that being "uncooperative" can lead to a much heavier sentence.  Often this means that you aren't willing to rat out strangers or even your friends, but I wonder how often it means simply asserting your rights as you are being prosecuted--a factor that judges and statutes are not allowed to use for heavier sentences.  It's the same reason I think putting on a minimally courteous affect is a good policy.  Of course, it's probably pretty hard to pull off if you're being badgered or intimidated (let alone knocked around).

 

Roberts v United States is a good example of how a refusal to cooperate, without the assertion of your Fifth Amendment right, can be used at sentencing to impose much heavier penalties.  445 U.S. 552 (1980).  At the same time, it stands for the principle that a person may not be punished for asserting that right.  Roberts was a suspect in a heroin dealing case (heroin again?  Happily, there just aren't very many mushroom cases) and refused to talk, though questioned over the course of three years.  At sentencing, the judge imposed consecutive terms of years in prison followed by a lengthy probation term, citing Roberts's refusal to cooperate.

 

Roberts appealed that sentence to the U.S. Supreme Court, arguing that his refusal to cooperate was protected by the Fifth Amendment.  The Court rejected that argument, saying that the time to assert his right was at sentencing or as he was being questioned.  The point is that you can't go back later and "plead the Fifth."  You have to speak up and assert your right.  And then shut up.  :biggrin:

 

Now, a judge still has a lot of discretion in sentencing, so as long as he or she doesn't actually say your heavy sentence is due to your intransigence, it may be harder to appeal successfully.


Edited by Sidestreet, 17 December 2016 - 05:09 PM.


#11 TVCasualty

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Posted 19 December 2016 - 03:37 PM

 

 

Roberts appealed that sentence to the U.S. Supreme Court, arguing that his refusal to cooperate was protected by the Fifth Amendment.  The Court rejected that argument, saying that the time to assert his right was at sentencing or as he was being questioned.  The point is that you can't go back later and "plead the Fifth."  You have to speak up and assert your right.  And then shut up.  :biggrin:

 

It's ridiculous, but not a surprise, that "the Court" decided that justice is somehow served by turning it into a childish game of "gotcha!"

 

"You are hereby sentenced to the maximum penalty for the crime you've been convicted of because you forgot to say 'Simon Says!'"

 

Never mind, of course, that the fact that one remains silent could just as easily be construed as "asserting one's right to not incriminate oneself." After all, after being told that we "have the right to remain silent," wouldn't the most obvious way to assert it be to remain freakin' silent?!?

 

I guess the answer is "no," and that in order to remain silent without suffering repercussions for doing so we have to speak up and declare an intention to remain silent. And as soon as too many people catch on and start asserting their 5th Amendment rights 'properly,' I'm sure that another arbitrary, bureaucratic hoop will be created that we'll have to jump through to assert rights we thought we already enjoyed by virtue of their being in the Bill of Fucking Rights (and it will be an obscure, counter-intuitive hoop that's hard for most citizens to find without a lawyer, of course...) Gotcha again, suckers!

 

:deadhorse:


Edited by TVCasualty, 19 December 2016 - 03:39 PM.

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#12 Sidestreet

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Posted 04 January 2017 - 07:18 PM

iRat: Investigation and the Internet of Things

 

 

  At one time, the personal computer was the average person’s only portal to the internet.  Then came cell phones with internet capability.  Now, with increasingly ubiquitous wi-fi connections and bluetooth, the number of devices with internet connectivity is mushrooming.  It’s almost as if the internet is reaching out into the physical world, its tendrils tipped with tablets, watches, smart televisions, and more. 

 

 

  Recently, a number of unique devices is being released.  The Amazon Echo is a voice-controlled speaker that is connected to the internet and listens for voice commands.  When the “magic words” are spoken, it records the vocal prompt and sends it to Amazon’s networks.  Google Glass is a product that is worn like eyeglasses and can be used for everything from taking pictures to e-mail to facial recognition—and it’s been more or less abandoned by the company after being dogged by a buggy release and massive privacy issues.

 

 

  The proliferation of unique devices that can connect to the web has come to be known as “the Internet of Things” or “IoT” for short.  And notwithstanding the roll-back of Google Glass, the trend is toward greater numbers of devices that collect more kinds of information.  Naturally, law enforcement wants access to that information.  This should be no surprise to my fellow Topiates, and I’m sure that many of you are already conscientious device users.  I don’t expect to see any of you in court  because you posted your grows on Facebook under your own name.  :)  Likewise, I would hope none of you are posting or texting your ex-partners in ways that could hurt you in a custody battle, because that comes up all the time.  You get the general idea.

 

 

  So let’s get specific.  Just how is law enforcement eyeing the internet of things as fertile ground for investigation?  How might it be used in the future?  Well, for starters, devices have already been used to charge people with crimes.  Last summer, a woman in Florida reported to police that she was sleeping when an unknown assailant broke into the house where she was staying and raped her.  But when law enforcement found her Fitbit, a watch designed to help the user exercise by tracking activity, exercise, food, weight, and sleep, her story fell apart.  The cops downloaded the information gathered by her Fitbit and found that she had been up all night walking around, and not asleep as she claimed.

               

 

  More recently, the Amazon Echo gained notoriety for its involvement in a murder investigation.  When police found a body in James Bates’ hot tub, they obtained a search warrant for his home and found a number of internet-capable devices, including his Echo.  The Echo is a wireless speaker with a microphone that is “always on.”  Really, it isn’t recording unless it hears one of the preprogrammed commands.  A command initiates the devices recording function so that the user’s words can be transmitted to Amazon.  However, it’s wise to remember that the Echo, like any other device with a microphone that connects to the internet, can be hacked.

               

 

  Because of the way the Echo works, police have served Amazon with a warrant requesting any audio recordings it made during the time in question.  Amazon has so far refused to comply with the warrant, turning over Bates’ account information but no recordings.  The prosecutor in the case, Nathan Smith, expressed frustration over the refusal:

 

"They're focused on their marketing, on making money and their bottom line," Smith said. Smith said evidence on devices like the Amazon Echo and the iPhone could help prove suspects' guilt or innocence.   Smith brought up the FBI's efforts to obtain information from a locked Apple device used in the 2015 San Bernardino attack.

 

"I'm not saying Amazon needs to go rat out people," Smith said. "You need a warrant and you need probable cause to get this information."

 

"Amazon needs to follow the law like every other company," Smith said.

 

"If we can search your house, your car and your bank account, I don't understand why we can't search this," Prosecutor Smith told 40/29. "The Echo is not protected from the warrant requirement."

 

http://katv.com/news...cates-attention

 

 

  For all of Smith’s strong words, the county in the Bates case is unsure whether they will push to compel Amazon to release the information because of the high level of resistance expected from Amazon.  The tech companies have so far put up a good fight when it comes to their devices, or at least made a show of putting up a good fight.  The government has fought hard as well for access to the information created by those devices.  The FBI’s struggle with Apple earlier this year brought widespread attention to the issue.

 

 

  The future of privacy protection in the law is uncertain when it comes to the Internet of Things.  There is a longstanding legal principal called the “Third Party Doctrine,” which states that people cannot reasonably expect privacy in things that they convey to third parties.  This includes garbage you put out to the curb to be hauled away and mail you entrust to UPS. 

 

 

  However, electronic information is somewhat different.  There are at least minimal protections for things like e-mail, codified as the Stored Communications Act.  Unlike garbage, issues involving personal information are likely to get privacy advocates riled up and willing to fight the good fight, or at least stir tech companies to protect the image of their products.  At the same time, law enforcement agencies frequently get what they want despite the impact on personal privacy.  Take for example the recent mushrooming of the federal government’s hacking powers.

 

 

  Of course, there’s no need to become an expert on any of this.  I bring it to you just to give you a sense of where things are at and where they’re heading.  Be aware, stick to the basic principles of safety, and be a little fish.  You’ll be fine.  <3


Edited by Sidestreet, 05 January 2017 - 05:23 AM.

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#13 TVCasualty

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Posted 10 January 2017 - 05:32 PM

"If we can search your house, your car and your bank account, I don't understand why we can't search this,"

 

 

Maybe because our houses, cars, and bank accounts don't record what we say within the privacy of our homes (thereby getting around that pesky 5th Amendment stuff since recordings can't plead the 5th).

 

What a tool.


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