Tips for Avoiding Unreasonable Search and Seizure

By Manuel Gonzalez

Search and seizure law is complex and ever changing and the police always know it better than you. Don’t give them an even bigger advantage by agreeing to a search of your home, your car, or your person.

The 4th Amendment to the Constitution says that you are supposed to be free from unreasonable searches and seizures unless the police have a warrant. In other words, the law specifically sets forth when an officer can look through your possessions and what he can take if he finds it during the search.
If I let the police search my car, new case law suggests that unless my consent is limited, they can search anywhere in the passenger compartment, including hidden places and containers. That means behind the door panels, speakers, or dash area.

Searches have been expanded to places the framers of the constitution could never have imagined, like inside your body. If the police stop your car and think you are intoxicated, they can ask a judge to give them a warrant to “search” inside your body for evidence of intoxication contained within your blood.

We have a huge body of case law that prevents the State from infringing on your right to be free from unreasonable searches and seizures and ensures the police must follow all the applicable rules when searching your car or person, and all of it is thrown right out the window when you tell the police it is okay to go ahead and look through your car, house, pockets, or body.

Say NO.

It really is that easy. Just like you should say “no” to drugs, you should also say “no” to searches. If you are carrying something you don’t want the police to find, do not let them search for it.

I have often asked clients why they consented to a search and often I hear the same rationale; “I thought if I said yes, the officer wouldn’t go through with the search.”

I cannot conceive of a worse rationale. Of course the officer is always going to search if you let him. The police are very intelligent and they know that the more opportunities they get to look for illegal stuff the more often they will find it.

To be quite frank, if they had a legitimate legal reason to search your car, they would do it without asking most of the time. Even if they have a legitimate legal reason to search your car, person, or home, if you give them consent to search you give up the opportunity to complain about the search later in court.

Tips for avoiding all types of searches:

Keep your appearance neat and clean. Look like a criminal, get treated like one. There is a reason why middle-aged women driving minivans rarely get pulled over.

Keep your car clean. When I say clean I mean get your car detailed at least a couple of times a year. People who leave the inside of their car messy often forget about things they have tossed on the floor or cannot see items other people have left behind.

Keep your car in good working order. Don’t give the police a reason to stop you. Make sure your car is registered, inspected, and that all the lights work. A busted taillight can cost you thousands and a trip to jail.

Put questionable items in the trunk of your car. There is no excuse to leave illegal items in the passenger compartment of your car. Better yet, don’t put anything illegal in your car.

Don’t attract unwanted attention. If your stereo has to be that loud for you to hear it, get your hearing checked. All you are doing is inviting the police to pull you over and give you a hard time.

Don’t carry drugs on your person. This is common sense regarding illegal drugs, but prescription drugs carried outside the containers they are dispensed in can get you arrested as well.

Don’t carry cigarette packages or hide your drugs inside them. This is the first place police look for dope.

Don’t leave smoking paraphernalia where police can see it. Nobody believes you use that bong or water pipe to smoke tobacco! If an officer sees something like that it will only confirm that he or she really needs to find some legal way to search you, your car, or your home.

Be careful what a police officer can see when standing at your front door. A police officer standing at your front door can look inside when you open it. What the police see from your front door is considered in “plain view” and thus not an actual search. Once the police have lawfully seen something illegal in your home they can then seize it and get a warrant to look for more.

If you can see out, the police can see in. Looking through a window does not constitute a search in most instances. No one should be able to look into your home and watch what you are doing without you knowing about it. Put up window shears or install windows with either faceted glass or glass that distorts the viewable image.

The most important thing to remember when asked for consent to search is to say “no”.

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Christmas is finally here. For millions of Americans, Christmas is simply the most wonderful time of the year. But if you are in the middle of a divorce or child-custody modification, you may have discovered that reindeer aren’t the only ones who are playing games:

1. Perhaps you just received an “Ex-text” informing you for the first time that the kids are heading out-of-state for Christmas with their dad and his new girlfriend; or

2. Maybe it is your year to have the children for the holidays but the other parent has asked you to switch periods and has already told the little ones that they can all go snow skiing — but only *if* you allow them to go; or

3. The courts have already closed and the lawyers have failed to work out a temporary arrangement for this holiday season.

Examples like these have spoiled more than one Christmas dinner in recent years. If you find yourself without the kids this year because of your ex’s gamesmanship, how should you respond? What should you do?

Of course, you always have the typical litigation option: File a motion, set a hearing, and make ’em pay for stealing Christmas. But before you do that you might consider taking a step back and thinking for a moment about what your overall long-term goals are for your children.

Most parents genuinely want to protect their children from the worst aspects of divorce and post-divorce life. What many fail to recognize, however, is how quickly they allow themselves to step onto the Crazy Cycle with the other parent over one issue or another. Whether the issue is about taking a trip with the girlfriend or trying to manipulate a possession schedule, once the parents step onto the Crazy Cycle, they lose sight of the greater injury they are inflicting on their own children. The parents have just placed the children squarely at the epicenter of the conflict. Divorce litigation usually makes bad situations like these worse, because litigation enables, and even encourages, adversarial conflict. Parents usually don’t recognize that fact until the damage has already been done.

Whatever the outcome of the particular issue or the judicial punishments that follow, the kids wind up with the lumps of coal in their stockings. And regardless of whether the children actually witness the argument(s) between the parents, they will be impacted — because you, the parent, have been impacted. Unfortunately for the kids, they will bear those emotional scars long after you have forgotten about the issue that started the conflict.

If your goal for the children really is to minimize their exposure to the harmful effects of divorce, consider developing a new, more effective set of communication skills in dealing with your ex. There is no quick fix or magic pill, of course. It will be a process.

Counseling can help those not currently involved in litigation. But for those in the midst of family law litigation, the Collaborative Law approach focuses on resolving family conflict in a respectful way while shielding the children from it. By design, this approach enables couples to communicate more effectively, both during the process, and afterward.

With time, patience, and practice, you and the other parent can learn to avoid the Crazy Cycle, stop playing games that hurt the children, and start truly co-parenting.

Logic doesn’t drive the Divorce Train

We’ve all seen news accounts about the financial nightmare called divorce. You may have heard tales of woe that go something like this: “The Smiths just got divorced and John told me it cost over $100,000 – for each side!”

Such a price tag might draw a yawn or a snicker from the blue-blooded family dynasty members, the technology titans, and the Hollywood elites. But for the vast majority of the so-called “working wealthy” (i.e. those who have been labeled by the taxing authorities as “rich” but who still have to work five to six days a week to pay the mortgage) an expensive divorce would devastate the family’s financial future.

Divorces don’t have to cost the equivalent of a college education, nor should they. So why is it that some do? Why do otherwise rational people consciously choose to put their financial future and their children’s into a potentially terminal nose-dive? The simple truth is that they fail to take ownership of the fact that divorce is not a rational process for the participants. It’s an emotionally-driven one.

People in the midst of a divorce make emotional (read “irrational”) decisions almost as frequently as you or I might accelerate through a yellow light – and with about as much forethought. For example, a judge recently told me about a trial in which the husband took a gallon of white paint and literally walked up and down the wife’s closet pouring paint all over her shoe collection. What was the logical reason for that?

In another case the parties argued over every knife, fork, and spoon in the house, and even placed values on the picture frames – separate from the pictures themselves. At the conclusion of the trial one of the parties filed a motion for new trial because she wanted a lamp that the judge had awarded to the other party. What was the logical reason for that?

Examples like these defy reason because the decisions are rooted in emotion – negative emotion. Left unchecked, these negative emotions tend to manifest themselves in every-increasing acts of lunacy that divorce lawyers call the “crazy cycle.” Once the spouses step onto the crazy cycle the legal meter starts spinning faster than your electric meter. Phone calls, emails, letters, motions, depositions, hearings and trials – they all take the lawyer’s time, which means they all cost you money. What is the logical reason for that?

To make matters worse, the traditional method of getting a divorce, which is called litigation, actually exacerbates the problem by intentionally pitting the spouses against each other in an arena we call a courtroom. In some cases the arena seems to more closely resemble an M.M.A. grudge match than a crucible for truth. Litigation, by its essence, encourages the parties to attempt to destroy each other emotionally and financially. What is the logical reason for that?

Logic doesn’t drive the divorce train. It’s an irrational, emotional process from start to finish. But that doesn’t mean it has to be ugly or costly. Even some of those Hollywood elites are choosing to step off the crazy cycle: http://tiny.cc/zoof0.

If you are facing a divorce, beware of the crazy cycle, beware of litigation, and beware of divorce lawyers who seem a little overly eager to wage war on your behalf. You do have options and you can avoid or at least minimize all three dangers briefly outlined above with a little foresight, quality solution-oriented professional guidance, and some self-discipline. Properly trained and experienced family law attorneys can serve as professional guides through the minefield. They can match clients with financial experts, counselors, or pediatric therapists as appropriate in order to minimize the collateral damage typically wrought by divorce.

If you would like to learn more about those options, including the non-adversarial Collaborative Law approach to resolving family law disputes, please contact us by email or call me at 214-423-5100.

Curtis W. Harrison, Collaborative Attorney
Board Certified – Family Law by the Texas Board of Legal Specialization
Albin | Harrison | Roach; 5601 Granite Parkway,Suite 400; Plano, Texas 75024
Telephone: 214-423-5100; Fascimile: 214-423-5111
www.ahrlawfirm.com

You have the Right to Remain Silent

You have the right to remain silent. Use it!

Most people know they have the right to remain silent.  Most people know that talking to the police is probably not going to help their situation.  Most people think their situation will turn out differently.  Las Vegas makes a living off of most people.  Don’t be like most people.

Long ago, my father told me about the theory of holes.  Namely, when you find yourself in a hole, stop digging.  The more you dig, the worse it gets.  The same could be said for talking to the police.  The more you talk, the worse it gets.

Lesson One – Nobody has ever talked their way out of trouble with the police.

Don’t fool yourself.  The police are as good at their job as you think you are at yours.  They interact with dozens of people every day and every person they deal with, with few exceptions, has one thing in common . . . they do not want to talk to that police officer.  So, the police have become experts in getting you to overcome your fear of talking to them.  They assert their authority; they allude to what might happen if you don’t speak with them; they even sometimes hint that the truth will set you free.  It won’t.  Use your right to remain silent.

Lesson Two – All you are required to do is identify yourself.

No matter what the officer says, all you are required to do during a traffic stop is show them your identification and proof of automobile liability insurance and get out of the car.  I suggest keeping your insurance attached to your sun visor and, if you think you are in a situation where you might get pulled over, (leaving a Jimmy Buffet concert, leaving a local bar or restaurant open late, driving anytime on a weekend after 2:00am) put you license there as well.

Lesson Three – The vast majority of people who are convicted got convicted because of what they said, not what they did.

Your mouth is your worst enemy!  The longer it is open, the more likely you will go to jail and later be convicted.  It is that simple.  The police are not entitled to know where you are going or where you are coming from.  Nor are they entitled to know how much you have had to drink.  Drinking and driving is extremely risky behavior, but it is legal as long as you have not lost the normal use of your mental or physical faculties.

The reason the police are asking you these questions is to get you to give them information that you believe to be harmless but, in most cases, will be used by a prosecutor against you.  For example, the reason the police want to know where you are coming from and where you are going is to see if you are coming from a bar or place where alcohol is served.  The reason they ask you how much you had to drink and when you last ate is because they know prosecutors need this information to prove your alcohol concentration at the time you were driving.  Even if you don’t take the breath test, they will still come to court and say, “She told me she was coming from Joe’s Brewhaus and had drank a couple of beers.”  Even though that may be factual and LEGAL behavior on your part, the State is going to use that testimony as the cornerstone of its case against you.

If the police have a reason for stopping you, they should be able to tell you without any help from you.  My favorite type of police deception is the officer asking you to step out of the car to perform a few tests to see if you are ok to drive.  I learned many skills in driver’s education that help me operate a motor vehicle.  None of those skills involved walking a straight line or holding up one leg and counting.  The truth is unless you are weaving all over the road, aka “A Drunk Car”, the only real evidence the police have of intoxication is developed after the traffic stop.

As I pointed out earlier, none of the “tests” they are going to administer has anything to do with driving a car.  In fact, all three of the standardized field sobriety tests, (the nine-step walk and turn, the one-leg stand, and the horizontal gaze nystagmus test) have come under harsh criticism because of the number of “false positives” they produce.  (In a future article I will discuss all the problems associated with the standardized field sobriety tests and why they don’t do what police officers believe they do.)  These tests are remnants from old ways of thinking and beliefs that have either been disproved or are in the process of being disproved.

I have a really good friend that is a doctor.  When people ask him if it is ok to take a certain drug or what they should do about their health, they always do what he says without question.  If he says, “Don’t drink diet drinks,” they quit drinking them.  If he says grape juice has been shown to promote good overall health, they stock up.  But when I tell the same people, “Get a designated driver,” or “Don’t talk to the police,” or “Never take the breath test,” they shrug off my advice and go their merry way.  Only later do I hear them say, “I really should have listened to you.”

We all like to think that getting stopped after drinking only happens to other people.  Well, tomorrow you may just be one of the “other people.”  When that time comes, you don’t want to be the guy without a plan.  For those of you who want a plan for when that time comes, here it is: Keep your car registered, inspected, and in good working order. Be prepared by having your license and insurance handy. Be polite and be quiet; identify yourself and then shut up. Finally, never take any test.  I know it sound hard, but it is easier than giving up diet drinks or drinking gallons of grape juice.


Three Things You Should Not Do in a Divorce

Curtis Harrison is a Plano-based attorney with the law firm of Albin | Harrison | Roach. He is board certified by the Texas Board of Legal Specialization in Family Law and is a member of the Collaborative Law Institute of Texas and the International Academy of Collaborative Professionals.

After sixteen years of practicing family law in and out of the courtroom I like to think I’ve seen or heard just about everything. Of course, that’s hyperbole, but the truth is that clients have a hard time surprising me anymore. And I have noticed over the years that even the most gentle and considerate of people fall prey to the universal human instinct for survival when faced with a divorce. This instinct can temporarily override common decency, parental wisdom, and even rationality.

Why is this? Almost without exception, folks facing the prospect of a separation or divorce feel extraordinary pressures. Those pressures are usually rooted in fear: fear the unknown; fear of the perceived lack of control over the future; and fear of how decisions others make during the divorce will affect them. These fears drive many divorcing couples to make terrible mistakes that will haunt them and their children for years to come. Some of the mistakes are made long before either spouse consults with a divorce attorney.

While the list of “do’s and don’ts” is long and detailed, here are three fundamental things you should not do in a divorce:

  1. Don’t involve the kids
  2. Don’t make unilateral decisions
  3. Don’t “over-lawyer”

Don’t Involve the Kids

Although this should be obvious, it is one of the most of the common – and by far the most tragic – mistake that I see couples make. Examples abound:

  • Mom and Dad cannot or will not contain their so-called “adult conversations” (arguing) in the presence of the children.
  • Dad picks up the kids to take them for the weekend and Mom tells the children she will miss them terribly instead of encouraging them to have a great time.
  • Mom is forced to tighten the budget at home out of necessity while Dad, who has recently moved into a bachelor-pad apartment, starts lavishing the children with Wii’s, off-road bicycles, and trips to Disney.

All of these examples, and countless others, place the children squarely on the chessboard of the divorce. The parents — whether they realize it or not — have made their own children the pawns in the chess match. And we all know what happens to the pawns in chess.

Don’t do it.

Don’t Make Unilateral Decisions

Cleaning out bank accounts, buying a new car, and leaving town with the kids are all examples of decisions most people would never consider making without discussing with their spouse. Yet, faced with divorce, that little voice in our head we call common sense seems to take a vacation. Making important decisions that affect others without discussing it with them virtually guarantees you a quick trip to the courthouse for a contested hearing.

Don’t do it.

Don’t Over-Lawyer

You can tell a lot from a name.

I frequently meet with potential clients who have already been served with a divorce suit and I have learned that you can discern a great deal about how ugly and expensive a divorce is going to be simply by looking to see who the other lawyer is. Individual lawyers have individualized reputations, and if a spouse wants to hire a Rambo-style litigator it is not difficult to find one.

Why do people in this day still seek out that kind of lawyers? Fear, grief, and anger are powerful emotions. Those emotions often drive otherwise rational people to make decisions that are not in their own best interests, much less in the best interest of their family. Ironically, folks who seek out the Rambos typically do so either to (i) get their “fair share”; or to (ii) get their pound of flesh. There really aren’t any other reasons.

The irony is that they will pay a $25,000 initial retainer to Rambo to fight for a larger piece of what is left over after he has picked over the carcass of your estate instead of seeking out an attorney with a reputation for problem solving that charges significantly less. As for getting the pound of flesh, nothing is free: Every pound of flesh you “acquire” will cost you something. That something could be the nest egg,  the children’s emotional well-being, or bitterness in the person’s heart that reduces  his or her quality of life for years to come.

Don’t do it.

Fortunately, there are qualified professionals in the industry who are trained to help couples end their marriage without scorching each other, the children, or the estate. If you would like more information about available options when it comes to divorce, including the Collaborative Law option, please feel free to visit our website, or contact me by email.

Making Every Dollar Count – Divorce in a Soft Economy

These are uncertain economic times for all of us. Daily news updates toss around scary catch phrases like “double-dip recession,” and “double-digit unemployment.” But for those facing a divorce or a post-divorce modification suit, the sour economic forecast can make an already painful and uncertain future feel more like a double-looped roller coaster.

Take heart, because you still have options. The current soft economy has served to highlight several important reasons why Collaborative Law is the right tool for these times:

No Trial means No Trial Expenses

In traditional divorce litigation both the husband and the wife can waste thousands of dollars preparing for a contested final trial that usually does not take place. Why? Because the vast majority of litigated divorce case wind up settling prior to trial.

In collaborative cases, 100% of every dollar spent is dedicated toward achieving the goal of settlement. 0% is spent preparing for trial.

Producing Documents is Minimized

In traditional divorce litigation both the husband and the wife can waste hundreds, if not thousands, of dollars with their lawyers fighting over what documents will or will not be produced to the other side. Why? Because the goal in litigation is to beat the other side; and one way to do that is to resist producing documents and information during discovery in the hope of bushwhacking the other party at trial.

In collaborative cases, the parties exchange documents freely, informally, and inexpensively. Transparency is paramount.

No “Expert” Witnesses to Pay

In traditional divorce litigation both the husband and wife can waste thousands of dollars by hiring competing expert witnesses to value businesses, trace assets, or make recommendations regarding custody of the children or possession of the children. Why? Again, the goal is to beat the other side and another way to do that is to hire experts to do battle either at the negotiating table or at trial.

In collaborative cases, experts are jointly engaged and serve as neutrals. They don’t take sides or play favorites. For most cases no more than one neutral financial expert is needed. So there are generally no competing opinions do battle. If a second opinion is desired, they too can be jointly engaged.

Control over the Process

In traditional divorce litigation neither you nor your spouse exercise much control over the process. You have virtually no control over the outcome. Why? Because the judge or jury makes the decisions at trial; and frequently the cases that settle short of trial actually settle as a result of emotional or financial exhaustion.

In collaborative cases, the spouses control both the process and the outcome. Texas was the first State to pass a Collaborative Law statute that actually strips the courts of the authority to make decisions in a collaborative case. As a result both spouses share an incentive to operate efficiently and effectively. If they can agree on nothing else, they can usually agree that they don’t want the lawyers to make off with their estate.

These are just a few of the economic advantages the Collaborative Law model offers over traditional divorce lawsuits. Even within the collaborative case there are ways to use the model more efficiently and cost-effectively in this soft economy. If you are considering a collaborative divorce or modification, you might consider discussing with your attorney ways to fine tune and streamline the process to make it even more efficient and cost effective. Here are a few options to consider:

Agree – In Advance – to use the Collaborative Model

Have everyone review and sign the Participation Agreement (and other documents needed to enter into the collaborative model) in advance of the first joint meeting. Why? It saves time (i.e. It saves money). And this leaves more time to discuss substantive matters during the joint meeting.

Stay Focused on the Process: Use a Neutral Communications Coach

Insist on the use of a neutral communications coach (a mental health professional with special collaborative training). There are several advantages to this approach: (1) This person proctors the joint sessions instead of the lawyers. As a neutral who is specially trained in the art of effective communication, this person can foster greater confidence in the process, more constructive dialogues between the spouses, and higher productivity both during the meetings and outside of them. Increased productivity leads to a shorter process, thereby saving both spouses money. (2) This person can work with you and your spouse in offline meetings without the attorneys to explore and develop and parenting plan. Once again, this is a potential time-saver and – that’s right – a money saver.

Use a Financial Expert who understands the Collaborative Process

If property identification or valuation will be an issue, agree to use a single, collaboratively-trained neutral financial expert. This person can serve as the focal point for all document exchanges and can both assimilate and analyze financial data more effectively than the lawyers. And, unlike the communication coach, the financial neutral may not need to participate in every joint session. For example, if the topic of the joint session focuses on the parenting plan, the financial neutral can be given a holiday.

Capture Unused Joint Meeting Time

Plan ahead to capture any unused joint meeting time. Usually, there is a set agenda for each joint meeting and each meeting is scheduled to last for a fixed period, such as two hours. If you get through the agenda early, with a little planning and coordination you can reclaim the remainder of the budgeted time by moving directly into an offline discussion with the financial neutral, the communication coach, or even your own attorney to discuss substantive matters needing attention. This is yet one more way to maximize the efficiency of any already efficient process.

Gather and Organize your own Documents

Do some of the legwork in your case. Gathering and organizing documents take time. Lawyers charge for time. Save them time and save yourself money by helping them with your case. As an added benefit you will learn more about your own case than you would otherwise.

The current economic climate may be tenuous and the future unknown. But if you are facing a divorce you need not climb aboard the litigation roller coaster. Consider keeping control over the process, the costs, and the outcome by choosing the Collaborative Law method. If you would like more information about Collaborative Law please feel free to visit my website, or you can contact me by email.

Curtis W. Harrison, Collaborative Attorney

Board Certified – Family Law – Texas Board of Legal Specialization

Albin | Harrison | Roach; 5601 Granite Parkway, Suite 400; Plano, Texas 75024

Telephone: 214.423.5100     Facsimile: 214.423.5111

www.ahrlawfirm.com

Curtis Harrison is a collaboratively trained family law attorney working for the law firm of Albin | Harrison | Roach in Plano, Texas. He is board certified in Family Law by the Texas Board of Legal Specialization and serves on the Board of Trustees for the Collaborative Law Institute of Texas.

Divorce – Rights vs. Results, by Curtis Harrison

People facing divorce usually want to know what their rights are. Who will get the children? How much child support can be expected? Who is responsible for the credit card debt? What happens to the house? The 401(k)? The list of questions goes on and on.

Yet, the core of these questions is not really about rights. Rather, it is fear of an unknown result. This distinction highlights one of the many advantages of the collaborative method of resolving family law issues:  Spouses become the decision-makers instead of a judge.

It is a novel approach, but it is also supremely intuitive. After all, who better to make decisions regarding a divorcing couple’s children and their finances than the spouses themselves? Even through the pain and the other negative emotions that accompany a divorce, divorcing couples can still make better choices for themselves and their children than a judge or jury. This is where the professional team comes in to help guide the couple through an otherwise overwhelming process. And when the question turns to “What are my rights?” the trained collaborative team of lawyers and neutrals will be there to restore the focus to achieving a result that both spouses find acceptable and in their children’s best interests.

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