November 20, 2012

Suppression of Evidence

Suppression of Evidence for a criminal defense attorney is pivotal in some major cases. Evidence that the District Attorney has obtained such as a search warrant, wiretap, video, and photos all can be challenged for its admissibility. Evidence is suppressed when a judge decides that the evidence in question was illegally obtained. This is known as the “exclusionary rule.”

Tennessee Code 50-4-108; states the following for suppression of evidence,
(a) Any person aggrieved by an unlawful inspection of premises named in an administrative inspection warrant may in any judicial or administrative proceeding move to suppress any evidence or information received, or moves for the return of any item seized, by the agency pursuant to the inspection.
(b) If the court or the administrative agency finds that the inspection was unlawful, the evidence and information shall be suppressed and any item seized returned and not considered in the proceeding.
[Acts 1979, ch. 345, § 9; T.C.A., § 50-608.]

There are other types of evidence that you can have suppressed at trial also. The “fruits of the poisonous tree” doctrine states that additional evidence discovered as a result of illegally obtained evidence is excluded at trial. For example, if an officer illegally searches your car and finds your illegal drugs in it, the drugs cannot be used as evidence at trial. The illegal search is the “poisonous tree” and the illegal drugs are the “fruit.”

However, there are some exceptions in which evidence that was obtained illegally may be used in court.

These exceptions are:
•Inevitable discovery – this means that the police would have inevitably found the evidence, with or without the illegal search
•Independent source – the discover of the evidence involved a combination of legal and illegal means, but the evidence could have been discovered by a reliable source
•Good faith – the officers who discovered the evidence has no reason to believe their search was illegal (i.e., believed the search warrant to be valid when it was not)
•Attenuation – if the connection between the illegal search and the evidence is sufficiently weak, the evidence may be considered untainted.

If you have been the victim of an illegal search and seizure or have questions about evidence suppression contact Attorney Don Himmelberg for your free consultation.

September 13, 2012

Sex Offender Registry Violations

Sex offender registry laws in the state of Tennessee continue to get stricter. Tennessee laws have increased sex offender registration violations from misdemeanor offenses to felony offenses. If you are convicted of any sexual offense you have up to (48) hours to notify the proper authorities in person. If you fail to comply with any of these regulations you may find yourself behind bars. Please contact Attorney Don Himmelberg if you or anyone you know would like more information about sex registry violations or to set up your free consultation.

Tennessee Code 40-39-208. Violations -- Penalty -- Venue -- Providing records for prosecution

(a) It is an offense for an offender to knowingly violate any provision of this part. Violations shall include, but not be limited to, the following:

(1) Failure of an offender to timely register or report;

(2) Falsification of a TBI registration form;

(3) Failure to timely disclose required information to the designated law enforcement agency;

(4) Failure to sign a TBI registration form;

(5) Failure to pay the annual administrative costs, if financially able;

(6) Failure to timely disclose status as a sexual offender or violent sexual offender to the designated law enforcement agency upon reincarceration;

(7) Failure to timely report to the designated law enforcement agency upon release after reincarceration;

(8) Failure to timely report to the designated law enforcement agency following re-entry in this state after deportation; and

(9) Failure to timely report to the offender's designated law enforcement agency when the offender moves to another state.

(b) A violation of this part is a Class E felony. No person violating this part shall be eligible for suspension of sentence, diversion or probation until the minimum sentence is served in its entirety.

(c) The first violation of this part is punishable by a fine of not less than three hundred fifty dollars ($350), and imprisonment for not less than ninety (90) days.

(d) A second violation of this part is punishable by a fine of not less than six hundred dollars ($600), and imprisonment for not less than one hundred eighty (180) days.

(e) A third or subsequent violation of this part is punishable by a fine of not less than one thousand one hundred dollars ($1,100), and imprisonment for not less than one (1) year.

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September 6, 2012

New Law on Synthetic Drugs

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New Law on K2 and other Synthetic Drugs

Tennessee has started to crack down on K2 and other synthetic drugs that were commonly sold over the counter at tobacco and convenience stores state-wide. As of July 1, 2012 the amended law makes it illegal to possess, produce, or distribute any forms of these synthetic drugs. Tennessee legislature has made it a felony to produce any form of K2, synthetic marijuana, bath salts or other designer drugs for production, manufacture, distribution, or possession with intent to produce, or distributes the synthetic cannabinoids. Also, the bill states that stores selling these synthetic drugs can be padlocked as public nuisances. As enacted, it is Class E felony for manufacturing or selling an imitation controlled substance and the Class A misdemeanor for ingesting an imitation controlled substance and possessing an imitation controlled substance for the purpose of ingesting it. A Class E Felony is a serious offense and carries jail time along with up to a $5,000.00 fine. Class A Misdemeanor is punishable by 11 months 29 days in jail and up to a $2,500.00 fine. If you or anyone you know have been charged with possessing, producing, or distributing these synthetic drugs please contact Attorney Don Himmelberg.

Commonly known names of synthetic drugs: Nightmare Herbal Incense, Purple Diesel, Bang Bang, Cloud 9 Mad Hatter, Skywalker Herbal Potpourri XXXX-tra Intense Blend, Charlie Edition, Diablo, 7H Kush, 7H Hydro and K4 Lou.

Call and schedule your free consultation!


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May 15, 2012

Implied Consent Law in Tennessee

In Tennessee and in many other states across the country when drivers get behind the wheel when they have been drinking or doing drugs, they endanger not only themselves but the other drivers on the road as well. A certain law known as the implied consent law means that when a driver operates a vehicle in a state with this law, they have given implied consent to be subject to a chemical test if they have been driving under the influence. If you have questions about how this law applies to your case and just want to know more, then you should speak to a Tennessee DUI lawyer right away. They will help answer any questions you may have about this law and whether or not it applies to your case.

According to National DUI laws, it is believed that revoking an offender’s driving privileges keeps the offender from driving and that it is effective. However, many times revoking a person’s driving privileges only means that the person can no longer drive legally. As a result of this, many states, including Tennessee have started license suspension programs for failing a chemical test and for refusing to take a test.

This implied consent law though may be in violation of the Fourth and Fifth Amendment to Constitution because the Fourth Amendment says that, the right of the people to be secure against unreasonable searches and seizures, shall not be violated,” and the Fifth Amendment says that, no person . . . shall be compelled in any criminal case to be a witness against himself." However, some states, including Tennessee, have made refusing to take a blood test a misdemeanor because the privilege of the Fourth and Fifth Amendments only protects an offender from being compelled to testify against themselves or provide the state with evidence and the blood test and analysis of it in a DUI case does not involve compulsion according to these Amendments.

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June 8, 2010

Bonnaroo 2010!!

This week marks the ninth annual Bonnaroo festival in Manchester, Tennessee. It seems each year this festival keeps getting bigger and draws thousands of fans to the otherwise sleepy town of Manchester in Coffee County, Tennessee. The lineup this year includes acts such as Dave Matthews, Jay Z, Stevie Wonder, Kings of Leon, and many, many others. We certainly hope everyone who is planning on attending the show has a great time and is both safe and hassle free. Please note, law enforcement officers throughout the State of Tennessee will be out in full force as you make your way to the show in Manchester this weekend.


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June 10, 2009

Bonnaroo 2009!

This week marks the eighth annual Bonnaroo festival in Manchester, Tennessee. The lineup this year includes acts such as Phish, Bruce Springsteen, the Beastie Boys, Nine Inch Nails, Snoop Dogg, and David Byrne. As always, we hope everyone who is planning on attending the show has a great time and makes it to the show both safe and hassle free. Please note, law enforcement officers will be out in full force as you make your way to the show in Manchester this weekend.

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June 17, 2008

Bonnaroo 2008

The seventh annual Bonnaroo Music & Arts Festival rolled out its most diverse lineup yet for 2008, with Metallica, Pearl Jam, Kanye West, Willie Nelson, Jack Johnson and My Morning Jacket among the acts on the bill for the June 12-15 event in Manchester, Tenn. We hope everyone who was in attendance enjoyed the show and made it home safely.

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We have had several calls already to our office regarding people who were stopped, searched, and charged with drug crimes on their way to and back from the show. Even when driving to and away from Bonnaroo, you always have the right to be free from illegal search and seizure. Calls with people arrested for possession of marijuana (marihuana), mushrooms, ecstacy, lsd, etc. are common to our office both during and immediately following the show. There are lots of things the police might do to trick you into giving up these rights (like threatening to call drug sniffing dogs), but you always have the right to say no to illegal searches.

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June 27, 2007

The Tennessee Drug Tax

In 2005, the State of Tennessee passed a law requiring persons to pay an excise tax on illegal substances. The Tennessee unauthorized substance tax, or "drug tax" or "crack tax", applies to controlled substances like marijuana and cocaine, and also illicit alcoholic beverages like moonshine. It allows someone to anonymously purchase stamps in person from the Department of Revenue based on the type and amount of the substance ($3.50 for a gram of marijuana, $50 for a gram of cocaine, etc.) with the understanding that doing so cannot be used against them in a criminal court. Possessing drugs is still illegal — the tax works completely outside the criminal justice system. A stamp cannot provide immunity from criminal prosecution, and a conviction of possession isn't required for the Department of Revenue to assess the penalties.

Opponents to the tax say allowing authorities to levy illegal drugs allows officials to bully people not convicted of crimes into paying thousands of dollars. The opponents of the Tennessee Illegal Substance Tax, and there are many, include a wide variety of groups.

In July, 2006, Chancellor Richard Dinkins ruled that the tax was unconstitutional stating that the tax violates an individual's right against self-incrimination and to due process.

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Despite this fact, the Tennessee Department of Revenue continues to attempt to collect these taxes. One of the biggest targets for these tax collectors are Bonnaroo concert goers.

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June 13, 2007

Bonnaroo 2007

The Bonnaroo Music and Arts Festival (Bonnaroo, Rooville, BonRoo, Broo, roo or the 'Roo for short) is a four day annual music festival by Superfly Productions and AC Entertainment, first held in 2002. The festival is held on a 700 acre (2.4 km²) farm in Manchester, Tennessee, 60 miles southeast of Nashville, Tennessee. The main attractions of the festival are the multiple stages of live music, featuring mostly jam bands, but also including hip hop, jazz, americana, bluegrass, country music, folk, gospel, reggae, electronica, and other alternative music. The festival features craftsmen and artisans selling unique products, food and drink vendors, and many other activities put on various sponsors.

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On January 10, 2007, Bonnaroo organizers Superfly Productions and AC Entertainment purchased a major portion of the site where the annual music festival is held. The purchase of 530 acres encompassed all of the performance areas and much of the camping and parking area used for the annual festival; the festival will continue to lease another 250 acres that currently serve as additional parking and camping.

Tennessee Law Enforcement Officers across the state are well aware that a large number of out of state visitors make the trek to Manchester for this annual event. Unfortunately, law enforcement in some parts of the state tend to be a bit more "aggressive" with these out of state visitors than they might normally. They often believe that Bonnaroo concert goers carry a multitude of illegal substances with them when they visit the show. There are several things concert goers should remember should they be pulled over by one of these law enforcement officers.

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April 19, 2007

Drug Sniffing Dogs- Are they constitutional? Are they reliable?

In 2005, the United States Supreme Court held in the case of Illinois v. Caballes that when a trained drug dog sniffs a persons automobile, there is no search. As a result, no constitutional violation occurs. This is the case even if the police have absolutely no reason to suspect you may be carrying illegal contraband whatsoever.

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The majority reasoned that a dog’s sniffing is not really a “search” because it detects only contraband, and therefore does not compromise the privacy of someone who has nothing to hide. Justices David H. Souter and Ruth Bader Ginsburg both dissented strongly, warning that this decision could lead to “suspicionless and indiscriminate sweeps of cars in parking garages and pedestrians on sidewalks.”

The decision was not shocking, it was merely an extension of an earlier case decided by the Supreme Court in 1982 which held that the use of drug sniffing dogs to search luggage in an airport was in fact not a search either. (United States v. Place).

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April 10, 2007

Excluding Evidence for Illegal Searches and/or Seizures

We as Americans are protected "against unreasonable searches and seizures" under the Fourth Amendment to the United States Constitution. Search warrants are not to be issued for less than "probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized". If a judge finds that a policeman or other law enforcement agent violates an individual's fourth amendment rights, then any and all evidence they collect as a result of the illegal search will be excluded at trial. This is what is known as the "exclusionary rule".

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The "exclusionary rule" has its roots in a case decided by the Unites States Supreme Court in 1886, Boyd v. United States. It was not until 1961 in the case of Mapp v. Ohio, that the Supreme Court made it clear that the exclusionary rule applied to all federal AND state law enforcement officials. However, as the Supreme Court has become more conservative in recent years, the exclusionary rule now has a much more narrow application than when the Mapp case was decided in 1961.

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April 4, 2007

DUI- The crime and penalties in Tennessee

Getting a DUI is a life changing experience. Many times, the people charged with this crime have little to no experience with the criminal justice system and have no idea what to expect. DUI also is a crime which law enforcement and District Attorneys are very aggressive in prosecuting. The blood alcohol content (BAC) limit in Tennessee is .08, this can mean as few as two drinks for some people. A persons BAC will depend on many factors, such as weight, time period in which drinks are consumed, a persons individual rate of metabolism, and many others.

Driving Under the Influence is one of the few crimes for which an individual can be convicted solely on the opinion of a police officer. While most Tennessee DUI offenses are classified as misdemeanors (although a fourth-offense is a Class E felony in Tennessee), the penalties for Tennessee DUI are typically much more serious.

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Upon conviction for First Offense DUI in Tennessee, a person is subject to a maximum sentence of 11 months, 29 days, with a minimum of 48 hours in jail, or a minimum of 7 days in jail if, at the time of the offense, the defendant's blood alcohol level was .20% or higher. A first offense also require a minimum $350.00 fine and court costs; the loss of driver's license for a period of one year; and enrollment in a court approved DUI education course.

Attendance at AA meetings may also be required. License revocation for one year is also required when a defendant is found to have refused to submit to a chemical test (blood, breath, or urine) after being lawfully requested to do so. This may apply even where the defendant is not convicted of DUI.

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