Wednesday, August 23, 2017

My nephew got legal help from Missouri lawyer David Shuler with a drug-possession case, and the record suggests Blake got what he probably paid for -- nothing

Blake Shuler
Quite a few young people probably think, "It would be great to have an uncle who is a lawyer, so he could get me out of tight spots, and I wouldn't have to pay anything." Blake M. Shuler, my 25-year-old nephew who had a traffic- and drug-related encounter last year with police in Clever, Missouri, probably isn't among them. Public records indicate he should not be among them.

Blake has an uncle who is a lawyer -- my brother, David Shuler, of Springfield, Missouri. David stepped into the breach to provide representation after Blake pleaded guilty, on his own, to possession of marijuana and drug paraphernalia after a highly questionable search of his vehicle.

According to court records, David wanted to get Blake's guilty plea withdrawn and the judgment set aside out of concern that the plea would have a negative effect on Blake's future employment prospects. David's plan worked, to an extent, because the court did dismiss Blake's guilty plea on the drug-related charges. But if part of the plan was to ensure that Blake did not come away with a criminal record . . . well, that didn't work so well.

Instead of a guilty plea for drug possession, Blake now has a guilty plea on his record for "peace disturbance" -- and the incident report in the case indicates Blake did not remotely disturb the peace. There is no indication that he was loud, rude, or disrespectful to the police or that he caused alarm to anyone else.

(Note: The incident report, plus David's Entry of Appearance and Motion to Withdraw Plea of Guilty, are embedded at the end of this post.)

It appears David negotiated with Municipal Judge Matthew B. Owen to get the plea down from drug possession to peace disturbance, perhaps thinking it's better to have the latter on your record than the former. But Blake winds up with a blotch on his record for something he did not do. Some potential employers might see this "peace disturbance" on Blake's record and think, "This guy must be a disrespectful, belligerent hothead, and we don't want anything to do with him."

Here is the big question about Blake's case, and it's one David apparently did not want to deal with: Did officers have lawful grounds to search Blake's vehicle? Officers stopped Blake after they observed him drive over the center line twice while in Clever city limits. An officer reported smelling alcohol on Blake, and Blake admitted to drinking one beer. The officer conducted field-sobriety tests, which Blake agreed to take, and claimed on the incident report that Blake failed three portions of the test.

Based on that, the officer placed Blake under arrest for "suspicion of driving while impaired." (Note: The incident report does not say under what statute Blake was arrested. Was it a state law, a municipal ordinance? We don't know. Did David try to find out? We don't know that either. He has chosen not to answer any of our questions.)

Blake was taken to city hall, where he was administered a breathalyzer test, which came back negative for alcohol. (Hark! Blake might be the first driver in history who actually told the truth about the "one beer" bit.) Blake was returned to his vehicle and his passenger/girlfriend Chelsea Cox, where the pair likely thought they would be sent on their way with no charges -- and perhaps an apology from cops for the inconvenience they had caused. (Snort! Cops don't apologize for anything do they? They certainly haven't apologized for breaking my wife Carol's arm during an unlawful eviction in September 2015. In fact, they've lied their asses off in various narratives to make it sound like Carol must have broken her own arm.)

Upon returning to his car, Blake got some disconcerting news -- the kind cops seem to specialize in delivering. A second cop had been called to the scene -- and while Blake was away proving his innocence on DUI -- Cop No. 2 took it upon himself to search the vehicle, apparently without consent. That search turned up the marijuana and paraphernalia, leading to the drug-related charges to which Blake pleaded guilty while representing himself.

David Shuler
My research has not turned up any case law that is exactly on point with the alleged facts in this case -- although I'm still researching it. But let's consider what happened: Blake was taken away from his vehicle, to city hall, where he proved that he was innocent of the charge for which he was arrested. While that was taking place, a newbie officer to the scene decided to search the car -- with Blake not present -- and found material that he believed to be marijuana and paraphernalia. leading to new charges. A skeptic might be tempted to say, "How convenient!"

Does that scenario smell funny to you? It sure smells funny to me. David Shuler, Blake's lawyer, apparently thought it smelled fine. I see no sign that David questioned either the field-sobriety tests -- which often are administered improperly and produce false results -- or the vehicle search. Those are the two key events that caused Blake's arrest, and David apparently did not question either one.

Why? David is part of the legal/law-enforcement tribe, and perhaps his main objective was to keep them happy -- even if it meant his client wound up with a criminal record he doesn't deserve. For the record, David and Clever Municipal Judge Matthew B. Owen are Facebook friends. What does that tell us? We're not certain, but it suggests Judge Owen did David a favor by withdrawing the drug-related guilty plea, and David did the judge a favor by not making noise about a search that likely was unlawful, violating the Fourth Amendment to the U.S. Constitution.

Perhaps David charged Blake nothing -- or very little -- and decided, "I don't have much invested in this case, so I'm not going to put in much work." If his nephew gets a bogus criminal conviction on his record -- for something he did not do -- well, so be it.

The record is clear that there were grounds to challenge the field-sobriety tests and the vehicle search -- but David Shuler apparently did neither, and he has shown no inclination to respond to our questions on the subject.

(To be continued)


Anonymous said...

Your nephew was dumb for having MJ, etc. in his vehicle. But no way the car should have been searched when the issue was a traffic matter, DUI.

legalschnauzer said...

@8:29 --

Agree 100 percent. All drivers should be very careful about carrying any chemical substance, even prescription drugs, in their vehicle. If you fail to signal a turn or a tail light goes out, that gives a cop the right to stop you -- and a lot of cops either are ignorant of search laws, or they knowingly break them.

legalschnauzer said...

Forgot to mention that, yes, there was no reason to search the vehicle for a traffic violation. Cops must have "reasonable suspicion" of an additional offense to search the car. As you can see from the police narrative, there was no such reasonable suspicion. Will explain this further in an upcoming post, and a fairly recent SCOTUS case goes right to the point.

Anonymous said...

I thought police had free rein to search once they stopped your vehicle.

legalschnauzer said...

@8:43 --

That's what they want you to think. But no, they don't have free rein. In this case, cops were tending to the traffic violation. They did field sobriety tests (which Blake allegedly failed); they did breath test (which Blake passed, proving his innocence). That should have been end of story. There is nothing in the police narrative -- which I would encourage you to read at the end of the post -- to suggest cops had any suspicion about an additional crime connected to that vehicle. Therefore, they had no grounds to search the car. Had they stated in narrative that they smelled marijuana or saw drug-related material in plain view inside the car, the search would have been legal. But that's not what happened. I have more coming on the relevant law in upcoming posts.

Anonymous said...

I know you catch grief for reporting on Ashley Madison, and people can debate the pros and cons of that. (I happen to think it's a legit subject.) But this is some of the most important reporting you've done. At some point, almost every American drives or rides in a vehicle. Heck, many people spend most of their waking hours in an SUV. This can happen, literally, to anybody. And you show how this, and many other traffic-related searches, are unlawful. It shows how many cops are poorly trained, and this case, a young man winds up with a criminal record for "peace disturbance" when he didn't disturb the peace, and he wasn't driving while intoxicated either.

Your brother obviously is in the law for the money and the prestige. He doesn't give a good crap about justice, even when it involves his own nephew. Pathetic.

legalschnauzer said...

@9:11 --

Thanks for a thoughtful comment. I agree that traffic law, family law, estate law, business law, consumer law, property law . . . it's hard to be an American and not be involved with some of those at some point. Traffic law might come the closest to encompassing everybody.

Anonymous said...

Is it possible your nephew was driving while high?

legalschnauzer said...

@9:52 --

Yes, that is possible. But if you check the police narrative, they say nothing that indicates they suspected use of marijuana. Reasonable suspicion often comes from cops' senses -- what they see, what they smell. Here, they never reported smelling or seeing anything related to drug activity until they searched the car. But they aren't supposed to search the car unless they have reasonable suspicion of additional criminal activity beyond a traffic violation. You will note, too, that cops never bothered to administer the test that might have shown Blake was driving while high. As a small-town department, perhaps they didn't have the necessary test on hand, but that's the cops' problem, not Blake's. For whatever reason, the cops chose to punt on that issue. Here the cops reported smelling alcohol, they tested for it, and Blake passed the test. There were no grounds to search the vehicle. The cops likely took advantage of two young people, and my brother let them get away with it because that's how you stay in good standing with the legal tribe.

Anonymous said...

I bet your brother didn't even bother looking at the police report.

legalschnauzer said...

@11:29 --

Probably not. It wouldn't surprise me if he had no clue what happened, based on the incident report. He just got the drug-related guilty plea withdrawn, and then he and his judge buddy did an "I'll scratch your back/you scratch mine" routine. David probably never even brought up the illegal search.

Anonymous said...

I don't think you can rule out that cops planted the drugs. No telling how many times that happens around the country.

Anonymous said...

Got any more pictures of BP and his famous schlong?

Anonymous said...

You keep mentioning reasonable suspicion and I think that is the wrong standard for the search of a car. I believe reasonable suspicion is the standard for a stop and frisk for weapons, but you need probable cause for a search of a vehicle. Probable cause is a higher standard than reasonable suspicion. Of course there are always exceptions such as plain view, search incident to a lawful arrest, inventory search or consent. There are limitations to these searches, but without more information regarding the stop and detention, it is impossible to know if they apply or not. It is possible that you brother knew more information and this was the best deal he could make. If the girlfriend were still in the vehicle and gave consent to search, the officer found drugs and was going to arrest her. Your nephew then found out about the arrest and admitted the drugs were his to keep her out of jail. I am not saying this happened, just giving a possible scenario that would not require probable cause.

legalschnauzer said...

@5:52 --

I have at least two follow-up posts coming, and one particularly addresses the law on reasonable suspicion, etc. I agree there are a number of possible scenarios, but so far, no one is responding to questions. I'm going by documents in the public court record, and there is no indication cops sought or received consent to search. As for my brother, it is possible that he knew more than is present in the public record, but I think it's also possible he knew less. I see little sign that he put much effort into this.

My next post on the matter will cite what I believe is the most recent SCOTUS decision on this general subject, so I invite you to stay tuned.

legalschnauzer said...

@1:56 --

The famous schlong has a way of turning up at curious times in curious ways. It's one of those "They Call the Wind Mariah" kind of things. Mysterious. Even I am surprised sometimes at how the schlong seems to drift in and out of my life -- and, trust me, that can be a bit unsettling. Bottom line: I do expect the schlong to make a return engagement. The question is "when" and "how." Legal Schnauzer readers will be the first to know, even before "The Shadow" knows.