Gambone Law October 2018

Gambone Law's online newsletter for October 2018

Gambone Law

Licensed in Pennsylvania and New Jersey

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October 2018

Does Consent Matter If the Stop Is Illegal?

I often advise clients never to give consent for police officers to search their property or frisk them following a traffic stop in the vehicle, known as a vehicle search, or while they’re walking down the street, known as a pedestrian stop. Consent, in most situations, will eliminate all of your constitutional rights, and specifically those under the Fourth and 14th Amendments to the United States Constitution, as well as Article 1 of the Pennsylvania Constitution and Article 1, Paragraph 7 of the New Jersey Constitution. Consent Based on an Illegal Stop If you’re facing criminal charges based on some type of contraband, and those items were found as a result of a police search, your criminal defense lawyer must evaluate the legality of that search. Even if you gave consent for the search, you should never assume that you don’t have a case for a potential illegal search and seizure issue. As I have stated in the past, a motion to suppress based on an illegal search and seizure is often the defense lawyer’s strongest tool or argument, especially where the issue of possession is not in question. Police do not need to find contraband, such as drugs,

narcotics, or a handgun, on your person for you to be convicted of a crime, such as possession with intent to deliver (PWID), possession of an illegal firearm, a violation of Uniform Firearms Act, or conspiracy related to it. Drug Profiling and Consent Searches While giving consent will obviously make a pre- trial motion much more difficult, consent isn’t valid if police have violated your rights prior to securing that consent. If, for example, police have stopped or seized you for investigative purposes, or if they have arrested you without sufficient probable cause, the consent that they later obtained is invalid. If, for example, police stop you simply because you fit a “drug dealer profile,” a Pennsylvania court will more than likely find that this stop wasn’t based on sufficient reasonable suspicion. In this case, even if you gave consent, a court will find that the consent isn’t valid. Random Police Stops Are Illegal Keep in mind that the police in Pennsylvania can’t randomly stop persons and vehicles without reasonable suspicion. Anything done after that illegal stop is therefore illegal, even if

and do not tell you that you are the target of a criminal investigation, that is illegal. If the police inform you that they stopped you or are there for some other purpose, the court could find the search illegal. If the police are involved in such activities, it makes the evidence they gather inadmissible. Depending on the situation, giving your consent won’t be the end of the world, but I highly advise that you don’t take that risk. Never give consent to the police to search your property or your person. Don’t give up your constitutional rights by giving consent during a stop, vehicle or otherwise. For more information on these important topics, I encourage you to visit my website at GamboneLaw.com. –Alfonso Gambone

it involved consent. Further, even if police have reasonable suspicion or probable cause to stop a person or a vehicle, they cannot lengthen that detention if justification for that stop no longer exists. There is a substantial amount of Pennsylvania case law on these topics. Consent Given Based on Deception Finally, consent obtained under false pretenses or by deception could be held invalid. For example, if the police stop or approach you

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The Real Man Behind Columbus Day How an Author Created a Legend

The second Monday in October may be our nation’s most hot-button bank holiday thanks to the deeply divided perception of the man the holiday originally intended to celebrate, Christopher Columbus. In recent decades, there has been a re-examination of Columbus’ role as a national icon, with critics pointing to historical evidence of the man’s cruelty, incompetence, and instrumental role in establishing a racist colonial system in the “NewWorld.” In the face of such stark evidence, one wonders where the more innocent, heroic tales of Columbus sailing the ocean blue in 1492 came from in the first place. Enter Washington Irving, one of the pioneers of American literature. Irving is best known for his short stories “Sleepy Hollow” and “Rip Van Winkle,” but the early 19th-century author also dabbled in “romantic history.”This genre of literature shares many similarities with modern historical fiction, telling gripping, personal narratives set during historical events. However, unlike writers of historical fiction, romantic history authors tended to portray their works as objective, unbiased histories, despite obvious embellishments and inferences. Romantic history was particularly popular in the United States as our young nation struggled to establish a distinct culture and history of its own. In Irving’s time, most American works of literature were seen as “low” imitations of European works. It was in this context that Irving penned “A History of the Life and Voyages of Christopher Columbus,” which portrayed the first European to come to the Americas as a dreamer who broke free of the backward mindset of his continental contemporaries. This

work perfectly captured the national mood, making this romantic origin story a hallmark of American myth.

Today, “The Life and Voyages” has largely been derided by scholars. Professor of American literature John D. Hazlett says that Irving “... saw American history as a useful means of establishing patriotism in his readers, and while his language tended to be more general, his avowed intention toward Columbus was thoroughly nationalist.” Despite this criticism, the mythic figure first popularized by Irving remains a national symbol today. The story of Irving and Columbus serves to remind us that “history” and the past are not one and the same. Histories, romantic or otherwise, are interpreted and consumed by those in the present and can often say more about their own time than those they attempt to portray. Our nation was in search of an identity distinct from Europe in 1828. As the debate around Columbus Day continues to surge, one may ask, what is our nation in search of today?

Going Beyond ‘Get Well Soon’ If you’ve ever had a friend or loved one suffer a debilitating injury, you know how powerless you can feel to help. You want to make a difference, but in the face of severe medical challenges, it can be hard to know how. It’s important to remember that, while you may not be able to have a direct impact on your loved one’s physical recovery, there are concrete actions you can take to support them in ways doctors can’t. Support their everyday life. time to help your friend with everyday tasks is more than just a practical gesture — it lets them know they don’t have to bear the burden of their injury alone. Support their emotional recovery. People faced with injuries, disabilities, and illnesses can feel emotionally isolated from their friends and loved ones. They may feel that others won’t understand their pain or 3 MEANINGFUL WAYS TO SUPPORT RECOVERY

that they should put on a brave face and not complain. You can’t force your friend to talk about their issues, but simply being there to listen to what your friend is going through makes a world of difference. Having someone who is willing to listen without judgment can provide a salve for emotional hardship. Support their rights. Sometimes an injury can leave your loved one tangled up in disputes with opportunistic insurance companies or individuals they feel are responsible for their injuries. While you may not be able to represent your friend’s legal interests in these situations, you can introduce them to someone who can. Referring your friend to a personal injury firm you trust can help them chart a path toward just compensation for their injuries.

Traumatic injuries can make many aspects of day-to-day life difficult or impossible. Simply making dinner or taking their kids to school may now be herculean tasks for your loved one. Offering to be a volunteer driver or preparing a home-cooked meal can give that person a much-needed breather. Taking the

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A LOVELY NIGHT FOR A RUN Should You Go for a Run After Dark?

Have you ever been driving home after dark and seen someone jogging on the side of the road? You might have thought they were crazy for waiting until so late in the day to go for a run, but there is actually research that suggests running in the evening is better than going for a run at any

of North Texas found that your body is better prepared to exercise in the evenings, since your muscles have been warming up all day. With improved muscular function and strength, you can push yourself harder and see greater improvement. You sleep better.

other time of day. Here are a few reasons why you should save your run until you can join all the things that go bump in the night. You can hit the snooze button. Many people who run first thing in the morning find themselves pressed for time. Hitting the snooze button is not an option, and with so little time, breakfast is usually a banana on the way out the door. Moving your run to the evening means you can enjoy a more leisurely morning. Not feeling stressed out first thing in the morning can also lead to a more relaxed day. You can push yourself harder.

You will obviously feel tired after a good run, so why not time it right and use this to your advantage? Research from the University of South Carolina found that people who ran before bedtime enjoyed a better night of sleep and increased energy levels when they woke up, meaning they felt more awake and better rested throughout the following day.

The best time to run is honestly whenever you have time to run, but if it works with

your schedule, nighttime running might provide your best workout ever. Just remember that if you do decide to save your run for after sunset, you should stay safe by wearing bright, reflective clothing, sticking to the left side of the road, and running only in well-lit, populated areas.

It can be hard to get a good workout in the morning after your muscles have been still for eight hours during sleep. A study at the University

Did You Know? In Pennsylvania, the two most common chemical tests are blood draws and Breathalyzers. If you’re arrested for drunk driving in Pennsylvania, you should not refuse either test. Even if you are found not guilty of the underlying drunk driving offense under Section 3802(a) (1), your refusal will enable PennDOT to suspend your driver’s license. How Does a Refusal Affect Ignition Interlock Eligibility? A first-time offender of refusing a DUI test is not immediately eligible for Pennsylvania’s new Interlock License. Usually, a person who refuses a Breathalyzer would face a mandatory minimum 12-month license suspension. However, the new ignition interlock law allows a person to be eligible for the program after serving six months on suspension. Repeated DUI refusal offenders face an 18-month license suspension, but are eligible for the ignition interlock license after 9-months. Ignition Interlock Violations Keep in mind that if you’re admitted to the Ignition Interlock Program, any violations in the program could result in a mandatory fine with a minimum of $300 and a maximum of $1,000, plus a possible 90-day jail sentence. The court will also extend the period the device is in your car for one year, which you must maintain. The bottom line is that if local or state police ask you to submit to a blood or Breathalyzer test, you do it. Refusing either will not help your criminal case and will only make it worse. For more information on the Ignition Interlock Limited License program and DUI defense, I encourage you to visit my blog and my free download section at GamboneLaw.com. Reasons Not to Refuse a DUI Blood Draw or Breathalyzer

5 WAYS TO FIGHT & WIN YOUR PENNSYLVANIA DUI CASE 2nd Edition - Revised and Expanded

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ATTORNEY & COUNSELOR AT LAW Alfonso Gambone

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INSIDE THIS ISSUE

1

Does Consent Matter If the Stop Is Illegal?

The Real Man Behind Columbus Day Ways to Support a Recovering Loved One

2

Running at Witching Hour Should You Refuse a DUI Blood Draw or Breathalyzer? Website Resources

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The Surprising Origins of Trick-or-Treating

Why There Are Kids on Your Porch Asking for Candy The History of Trick-or-Treating

As Halloween looms and you load up your grocery cart with candy, you may ask yourself, “Why do I provide these spooky gremlins with a sugar high every Oct. 31, anyway?”Well, when your doorbell starts ringing around 6 p.m. this All Hallows’ Eve, you can thank the Celts for this tradition of candy and costumes. Halloween itself is a kind of mishmash of four different cultural festivals of old: two Roman fêtes, which commemorated the dead and the goddess of fruit and trees (not at the same time); the Celtic Samuin or Samhain, a new year’s party thrown at the end of our summer; and the Catholic All Saint’s Day,

designed to replace Samuin and divorce it from its pagan origins.

were dressing up as saints, angels, and the occasional demon instead of spirits. Eventually, costumed children started tearing through town begging for food and money and singing a song or prayer in return — a practice called “souling.” But when did they start dressing up as Minions? Starting in the 19th century, souling turned to “guising,” which gave way to trick-or-treating in mid-20th-century America, and the costumes diversified. So put on some clown makeup and a big smile, scoop up a handful of sweets, and scare the living daylights out of ‘em — ‘tis the season!

Long before there were young’uns on your porch dressed as Thanos with candy-filled pillowcases in hand, the Celts believed that Samuin marked an overlapping of the realms of the living and the dead. To trick the spirits leaking into our world, young men donned flowing white costumes and black masks — a great disguise when ghosts were about. The Catholic Church was never a big fan of these pagan traditions, so they renamed it “All Saints’ Day” and gussied it up in religious garb. By the 11th century, people

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