Monday, August 28, 2017

Recent SCOTUS ruling indicates search of my nephew's vehicle in Clever, MO, was unlawful, but attorney David Shuler apparently failed to challenge it

Blake Shuler
A recent U.S. Supreme Court (SCOTUS) case proves the search of my nephew's vehicle in Clever, MO, was unconstitutional, but records indicate he has a criminal record because my lawyer-brother, David Shuler, apparently failed to challenge the search.

The case is Rodriguez v. United States (Sup. Ct., 2015), which involved a driver and his passenger who were stopped for a traffic violation -- driving on the shoulder of the highway. Instead of simply dealing with the traffic issue, a police officer conducted a dog-sniff search of the vehicle, which turned up methamphetamine. Rodriguez was hit with federal drug charges and a magistrate judge refused to suppress evidence from the search. Rodriguez entered a conditional guilty plea and was sentenced to five years in prison. On appeal, the case went to SCOTUS, which found the search violated the Fourth Amendment and vacated the judgment.

My nephew, Blake Shuler, went through a similar unlawful search (minus the dog sniff) in Clever, MO, but he wound up with a criminal record anyway -- for "peace disturbance." We will have more on the Rodriquez case shortly. But first, I would like to drive home why this case matters to me, and why it should matter to you.

I have a criminal record in Alabama for an offense -- resisting arrest -- that I did not commit and should not be on my record, for several reasons. One, it came as the result of an unlawful traffic stop. Two, it came as the result of an unlawful entry to our home -- without an apparent warrant, without the cop stating his purpose for being on our property, and with no allegation of a crime. (It involved an alleged contempt of court over a preliminary injunction in a defamation lawsuit, with such injunctions having been prohibited by more than 200 years of First Amendment law. In other words, the officer had no criminal issues to tend to at my home; it was a 100 percent civil matter.)

Both the traffic stop and the entry to our home of 25 years in Birmingham are violations of the Fourth Amendment right to be free from unreasonable searches and seizures. Still, I wound up with a resisting arrest charge, even though Officer Chris Blevins admits in his incident report that I never initiated contact with him -- while he pushed me to the concrete floor in our basement three times, doused me with pepper spray, and one of his associates threatened to break my arms.

Bottom line: I know what it feels like to have a bogus criminal mark on my record, and it sucks. It makes you ask, "Where do I go to get my reputation back?" I didn't like it when it happened to me -- and we have two pending federal lawsuits in an effort to resolve the violation of civil rights -- and I don't like it now that cops concocted bogus "assault on a law enforcement officer" charges against my wife, Carol, in the wake of our unlawful eviction in Springfield, Missouri on Sept. 9, 2015. That also was the result of gross Fourth Amendment violations.

Records now suggest another member of my family, nephew Blake Shuler, also has a bogus criminal blotch on his record. Blake's issues started with a traffic stop in Clever, MO, for alleged DUI and involved a field-sobriety test that he supposedly failed -- followed by a breathalyzer test, which came back negative for alcohol. While Blake was proving his innocence of the alleged offense at Clever City Hall, a second officer who had been called to the scene, decided to conduct a search of Blake's vehicle, apparently without bothering to ask for consent. That turned up marijuana and drug paraphernalia, so police hit him with those charges -- even though he had proven innocent on the charge for which he was stopped.

Blake pleaded guilty to the drug-related charges, while representing himself. His lawyer-uncle, David Shuler (my brother) made an appearance in the case and got the drug-related guilty plea withdrawn. But Blake still wound up pleading guilty to "peace disturbance," even though there is nothing in the public record to suggest he disturbed the peace in any way. (Incident report is embedded at the end of this post.)

I was convicted of a bogus charge largely because I was dealing with a corrupt court system in Shelby County, AL -- but it didn't help that my resisting-arrest trial came while I already was unlawfully incarcerated in the defamation matter, and I had no opportunity to prepare a defense and no ability to hire a lawyer, even if a good one had been available. Blake had a lawyer, but his uncle David apparently was not willing to fight for him. David probably was interested mainly in catering to Clever Municipal Judge Matthew B. Owen (who is one of his Facebook friends) and placating the keystone cops who apparently populate the city's police department. It also is possible David didn't charge Blake anything, so he put forth minimal effort. If that's the case, our review suggests Blake got what he paid for -- nothing.

This much is clear: David doesn't want to answer questions about the case. We've given him multiple opportunities, and he has not responded to our queries.

At least three aspects of Blake's case were ripe for challenge from a competent lawyer. It appears David didn't challenge any of them one. We will look at two of the issues today and examine the third one (the most important one, by far) tomorrow.

(1) Field-sobriety tests -- The police narrative claims Blake was administered field-sobriety tests and failed three of them. But the report provides no details on what tests were administered, how they were administered, and how police determined that Blake failed them. That Blake allegedly failed the field tests but then passed the breathalyzer test raises all kinds of questions about how the field tests were conducted. But David Shuler apparently didn't bother to ask such questions. Blake was arrested based on the outcome of the field tests, but they are known for questionable reliability. From an article at the Web site for Ward and Associates, a St. Louis, MO, law firm:

Many times, police officers have inadequate training, and the field sobriety tests are not properly administered. The average police officer learned about the exercises/tests at the police academy, and has had no training since that time. The result is that the required testing conditions and scoring procedures are never learned, or they are forgotten or modified.

Police officers have also been known to create their own tests, such as having the subject recite the alphabet backwards, starting from the letter M, and then fail the subject because he or she could not do so. Having to recite the alphabet backwards is not a recognized field sobriety test in Missouri or anywhere else.

The research conducted by NHTSA attributing a likelihood of impairment assumed that the police officer properly administered, interpreted and scored the standardized field sobriety tests. If the officer does not properly administer the tests, NHTSA states that their “validity is compromised.” In such case, they should not have been relied on.

Were Blake Shuler's field tests reliable? It appears David Shuler didn't bother to find out.

David Shuler
(2) Peace disturbance -- Blake wound up pleading guilty to "peace disturbance," but the obvious question is, "Why?" Here is how the City of Clever Municipal Ordinances defines the offense:

Section 210.200. Peace Disturbance. A. A person commits the offense of peace disturbance if: 1. He/she unreasonably and knowingly disturbs or alarms another person or persons by: a. Loud noise; b. Offensive language addressed in a face-to-face manner to a specific individual and uttered under circumstances which are likely to produce an immediate violent response from a reasonable recipient; c. Threatening to commit a felonious act against any person under circumstances which are likely to cause a reasonable person to fear that such threat may be carried out; d. Fighting; or e. Creating a noxious and offensive odor. 2. He/she is in a public place or on private property of another without consent and purposely causes inconvenience to another person or persons by unreasonably and physically obstructing: a. Vehicular or pedestrian traffic; or b. The free ingress or egress to or from a public or private place.

The offense essentially involves making a loud noise, using offensive language, making a threat, or fighting. There is nothing in the police narrative to suggest Blake did any of those things. So why did David Shuler allow his nephew to plead guilty to something he didn't do?

Again, David isn't answering questions, but we will show the questions posed to him in an upcoming post, after we take a closer look at Rodriguez v. U.S.

(Previously in this series)

Blake M. Shuler, my nephew, pleads guilty to possession of marijuana and paraphernalia . . . (6/29/17)

My nephew, Blake M. Shuler, faced a harsh lesson of American life . . . (7/26/17)

My nephew got legal help from Missouri lawyer David Shuler . . . (8/23/17)


Anonymous said...

I wish every American who drives a vehicle would read this. Most Americans have no clue about their rights when they are behind the wheel.

Anonymous said...

Many of these small-town cops probably couldn't tell you where the U.S. Supreme Court is located, much less what the court has ruled.

Anonymous said...

These cops are just punks, taking advantage of a young guy and his girlfriend.

Anonymous said...

Getting closer and closer to a police state. But . . . but . . . her e-mails.

Anonymous said...

In the incident report, an officer plainly states that he smelled consumed alcohol. It says nothing about him smelling or seeing drugs.

They were dealing with the supposed "consumed alcohol" with the breathalyzer test. So, why did they searched the damned vehicle?

Rogue cops make my blood boil.

Anonymous said...

Would be interesting to see if a real lawyer would take Blake's case and appeal it.

legalschnauzer said...

That would be interesting. He probably would need to take it into federal court and argue ineffective assistance of counsel to get the "peace disturbance" guilty plea removed.

Anonymous said...

Chances those field-sobriety tests were done correctly? Zero.

Anonymous said...

This is Scott Wells' friend again. Have you had a chance to look into the GoFundMe site David and Gina has arranged for their son, Jack? These people have money coming out their ears, but they are trying to con people into giving them more on GFM.

legalschnauzer said...

@12:25 --

Yes, I've looked into it some; still need to do more research. But right now, the word "galling" comes to mind. So does the word "shameless."

legalschnauzer said...

@11:51 --

I agree with you. How could the field-sobriety tests be accurate when the breath test came back negative for alcohol? Makes no sense.

Anonymous said...

I get the impression your brother is lazy. Last thing I would want for myself is a lazy lawyer.

legalschnauzer said...

@12:30 --

I suspect your senses are correct. It could be a combination of laziness and a desire not to upset the judicial/legal apple cart. David makes a nice living from staying in good graces with the legal tribe. That's why he's tried to screw over Carol and me. This is from my comment, posted last week, about how he handles his divorce work:

"Not sure why anyone would hire David as a divorce lawyer. He told me that he encourages his divorce clients to settle and tells them, in so many words, "If you don't settle, you run the risk of losing at trial." I assume he tells them that after they've already paid him a nice chunk of change up front.

"I took that to mean that he essentially tells them to do the work of the case themselves -- to settle it -- while he gets paid a princely sum and shuffles a few papers. It sounds to me that if you are his divorce client -- and you've been the victim of domestic violence or serial adultery -- he still encourages settlement, and he's not likely to fight for you."

Anonymous said...

I don't understand why they went from an alcohol charge (not guilty) to a drug charge (should have been not guilty, due to unlawful search) to disturbing the peace, and there is nothing about that in the incident report at all.

legalschnauzer said...

It's a curious trail, for sure. A reader suggested to me offline that Blake might have gotten caught in what could be called a "drug snitch operation." The reader says he has heard of such law enforcement schemes, where an individual will sell drugs to someone and then snitch on them, and then the next person (Blake, in this case) will be encouraged to become a snitch in order to get a reduced sentence -- and perhaps have his record cleared if he participates as instructed.

Under this scenario, cops knew weed was in the car, and that was the whole reason they stopped Blake. If that happened, I'm guessing Blake didn't actually weave over the center line. The cops just made that up. It's all wildly unconstitutional, of course, but I would not put it past postmodern cops.

Again, I don't know this happened in Blake's case. But a reader, whose family has some experience with this sort of event, said he has seen it happen. He encouraged me to keep an eye out for the possibility in Blake's case.

Beevis said...

Clever Missouri. Isn't that where Inspector Clouseau used to work?

Heh-heh! You get it?


legalschnauzer said...

Good one, Beevis. Pull my finger, huh, huh.