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a Yourabusedbitch es Users searcht DrumHeads erances of Mr. Smith that gave police the pot.
Both a trial court and the Massachusetts Appeals Court, the commonwealths intermediate appellate court, rejected prosecutors' arguments and threw out the evidence--and thus, the case. Citing Massachusetts case law, the court held that bongs and Baggies--and nothing more--do not give the police probably case for a search.
Bong and Baggies Law
The Appeals Court distinguished Mr. Smith's case from two previous Massachusetts Appeals Court decisions where bongs did lead to probable cause for a search: Commonwealth v. Dolby from 2000, and Commonwealth v. Correia in 2006.
It is true the facts in all three cases were somewhat similar: cops stop car, cops see bong, cops arrest driver. However, Smith differed from Dolby and Correia in one, key respect. Unlike in Dolby and Correia, in Smith, there was neither marijuana smoke nor residue present in the bong.
The Appeals Court said that distinction was critical. In Dolby and Correia, the evidence was not suppressed, but it was because there was residue in the bong--not because police spotted an innocent bong just hanging out, minding its own business, with no nefarious residue or smoke.
Baggies get the same constitutional protections.
Citing its decision in Commonwealth v. Garcia, the court held, the observation of two lawful items--the bong and the box of sandwich bags--did not supply probably cause. The court articulated its rationale in Garcia:
"The trooper's experience, coupled with his observation of an apparently empty baggie, is not enough to provide probable cause to conduct a warrantless search of the automobile. Benign objects such as spoons, mirrors, and straws are often used in the narcotic trade. To allow police officers, experienced in narcotics investigations, to conduct a warrantless search whenever they observe one of the above items, and nothing more, would permit random searches, which are condemned by the Fourth Amendment and the Declaration of Rights," the court said.
So, Mr. Smith got off: the evidence was suppressed, and the charges were dropped. The moral of this week's Case of the Week: if you're going to go drag racing with your bong in the back seat, at least make sure it is clean._________________________
David Horrigan is an attorney, journalist, analyst at The 451 Group, editorial director at courtweek.com, and former staff reporter and assistant editor at The National Law Journal. His articles have appeared also in The Washington Examiner, Law Technology News, The American Lawyer, The New York Law Journal, The San Francisco Examiner, Corporate Counsel, Texas Lawyer, Florida Lawyer, and Daily Business Review. E-Mail: dhorrigan@courtweek.com
Read more at the Washington Examiner: blogs/opinion-zone/2011/05/law-bongs-and-baggies-fourth-amendment-searches-probable-cause-miranda-marijuana#ixzz1MKivXiVW
May 8, 2011
The Law of Cow Bones and Bungees
by David Horrigan
When you buy a product or service, how much information should the seller disclose to you? This week's Case of the Week examines that issue in a case involving breast implants, bungee cords, a surgeon's eyesight, and the jurisprudence of cow bone implants...not necessarily in that order.
Manmade Chassis
Denise Dalien decided she wanted to augment the chassis God gave her, so she consulted plastic surgeon Stanley Jackson of Puyallup, Wash. Dr. Jackson performed breast augmentation on Ms. Dalien in 2000, using saline implants.
After a diet and exercise regimen caused her to lose weight, Ms. Dalien noticed some indentation and rippling on what was once her soft and supple upper left bosom.
No problem. Dr. Jackson went in again, removed the saline implants, and replaced them with gel implants.
Turns out there was a problem. Ms. Dalien was not happy with her new gel bosoms, so under the surgical theory of more is more, Dr. Jackson performed additional revision procedures on Ms. Dalien during 2005 and 2006.
Blinding Bungee
Just before all this happened, and--importantly for our story--unbeknownst to Ms. Dalien, Dr. Jackson was having issues with a bungee cord. Dr. Jackson went into mortal combat with the killer cord in July 1999.
The bungee cord won.
Dr. Jackson received surgery on his eye, and took over a month off from his practice. In July 2006, Dr. Jackson reported additional changes in his vision. He retired in October 2006 after unsuccessful surgery.
Citing her allegedly unsuccessful surgeries, Ms. Dalien sued the good doctor twice. In one suit, Ms. Dalien argued negligent medical malpractice in the botched boob job.
In her second civil action, Ms. Dalien sued under Washington States Consumer Protection Act (CPA). Ms. Dalien argued, among other things, that Dr. Jackson violated the law by failing to disclose his eye injury.
Cow Bone Law
Dr. Jackson argued that the nondisclosure of his eye condition did not occur in trade or commerce and that any alleged professional malpractice or negligence was exempt from the CPA.
Ms. Dalien countered that the nondisclosure of the eye condition was, in fact, done in trade or commerce because Dr. Jackson solicited and retained patients by failing to disclose this condition.
In siding with Dr. Jackson, Washington State's Court of Appeals cited the Evergreen State's jurisprudence on cow bone disclosure and the case of Michel v. Mosquera-Lacy.
In Michel, Mystie Michel sought treatment from Lucy Mosquera-Lacy, a periodontist employed by Bright Now! Dental, Inc., and the doctor said Ms. Michel needed a bone graft.
When completing her pre-procedure paperwork, Ms. Michel was given the choice of human bone, cow bone, or synthetic bone for her graft. Stating she could not fathom the thought of having animal parts in her body, Ms. Michel declined the opportunity to get authentic cow bone.
Well, unfortunately for Ms. Michel, supplies were running low in the dental office that day.
When Dr. Mosquera-Lacy ran out of human bone, she finished the job with cow bone.
Although the dentist claimed she merely finished up with cow bone--and that cow constituted no more than 10 percent of the graft--Ms. Michel said she now had a McImplant with the doctor having implanted a cow bone in her mouth.
Whatever damages or urges to graze on her front lawn Ms. Michel may have experienced, her case wasn't actionable under the Consumer Protection Act, the Washington Supreme Court held, because the use of cow bone was not an entrepreneurial activity in trade or commerce.
"Michael failed to show that Dr. Mosquera-Lacy's use of cow bone is entrepreneurial. It does not relate to billing or obtaining and retaining patients. It simply relates to Dr. Mosquera-Lacy's judgment and treatment of a patient. There is no evidence that cow bone was used to increase profits or the number of patients. When the supply of human bone ran out during the procedure, Dr. Mosquera-Lacy used her judgment and skills as a periodontist to finish the procedure. This is not actionable under the CPA," the court said.
Bovine Bones and Bungees
Following the Washington Supreme Court's holding in Michel, the Washington Court of Appeals held in Dalien v. Jackson that Dr. Jackson's nondisclosure of his eye condition was also an activity that fell outside the scope of Washington's Consumer Protection Act. Thus, the court declined to certify her class action, and it affirmed a trial court's dismissal of her case.
"As in Michel, Dalien has failed to show that Dr. Jackson's nondisclosure of his eye injury is entrepreneurial. Dr. Jackson's nondisclosure does not relate to Dr. Jackson's billing or obtaining and retaining patients. Dalien has presented no evidence that Dr. Jackson represented that he had better vision than his competitors or somehow relied on his vision to promote his business," Judge Russell Hartman wrote for the court.
However, the court didn't say Ms. Dalien didn't have a case--just that she didnt have a case under the CPA. Referencing her other suit, the court said, "To the extent that Dr. Jackson's eye injury may have affected his ability to examine, diagnose, treat, or care for his patients, that question is actionable under the negligence theory, which Dalien is pursuing in her original lawsuit."
The lesson of this week's Case of the Week? If you want to sue under Washington's Consumer Protection Act, make sure they advertise their excellent vision allows them to see your head before they implant a cow bone in it.
____________________________
David Horrigan is an attorney, journalist, analyst at The 451 Group, editorial director at courtweek.com, and former staff reporter and assistant editor at The National Law Journal. His articles have appeared also in The Washington Examiner, Law Technology News, The American Lawyer, The New York Law Journal, The San Francisco Examiner, Corporate Counsel, Texas Lawyer, Florida Lawyer, and Daily Business Review. E-Mail: dhorrigan@courtweek.com
Read more at the Washington Examiner: blogs/opinion-zone/2011/05/law-cow-bones-and-bungees#ixzz1Ll8lzZ00
May 1, 2011
The Law of Bait Car Journalism
by David Horrigan
David Broder, Edward R. Murrow, William F. Buckley Jr., Walter Cronkite, and now Bait Car?
As the old Sesame Street song said, it would appear that one of these things just doesn't belong here. Well, that's not what the producers of the television show, Bait Car, say. They argue their show is real journalism, and--in an attempt to avoid producing evidence in a California court proceeding--they say their photographers are journalists. In recognition of this creative legal argument, their case gets to be our Case of the Week.
What is a Journalist?
The proliferation of new media sources has created a novel question: Just what is a journalist? Must one possess government-issued press credentials, sending shivers down the spines of First Amendment advocates? How about a requirement that you earn your living from journalism? Perhaps there should be a requirement that at least your Aunt Betsy actually read what you write?
This question has taken on real legal significance as the U.S. Congress and many states have tried to implement so-called reporters' shield laws. These laws attempt to protect reporters and their confidential sources by shielding confidential information from disclosure to courts and third parties.
Although there has been substantial progress, a federal shield law has not yet passed. However, 40 states and the District of Columbia have shield laws, with many states enacting them after what some argued were Bush administration abuses, prosecutorial attacks on the press, and the prosecution of New York Times reporter Judith Miller.