--Paul E. Padilla
On June 20, 2016, the U.S. Supreme Court issued a ruling in Utah v. Strieff that allows the police to use evidence in a criminal case, even when the police collect the evidence unconstitutionally.
The general rule is that if the police violate your constitutional rights when collecting evidence, they are not allowed to use that evidence to prosecute you in a criminal case. Although there are exceptions to this rule, it is a right created by the 4th Amendment of the U.S. Constitution. In short, the police cannot benefit from breaking the rules.
In Utah v. Strieff, the Supreme Court expanded one of the exceptions to the rule, which will allow the police to use evidence against you, even if the evidence is collected illegally.
In this case, the police were watching a house where they thought drugs were being sold. They saw a man walk out of the house and down the street. The police had no evidence that the man had committed any crime. The police stopped the man and demanded his ID. When the man gave the police his ID, they learned that he had an arrest warrant from a completely different crime, so they arrested him. As they arrested him, they discovered methamphetamine in his pocket, which was used against him at trial.
When the police first stopped the man, it was an illegal stop because the police did not have any evidence to believe that the man had committed a crime. Before this case, the drugs found in the man’s pocket could not have been used in his prosecution because the police violated his constitutional rights.
But, this case now allows the police to use the evidence in prosecution, even if the original stop was illegal. The Supreme Court expanded a rule called the “attenuation doctrine” so a court will now consider three factors to decide if the police can use the evidence:
This test is very dangerous for ordinary citizens, because it gives the police an incentive to conduct illegal searches with the possibility of finding very bad evidence.
For example, the police could pull over a car for no reason, with the hope that the driver has an arrest warrant, past due child support, or drugs in the car. Essentially, it will reward the police for making illegal stops, as long as the illegal activity is minor (stopping you on the street or pulling your car over) and does not relate to the reason for the illegal search (they stop you while driving, but find that you have bail violations for other crimes).
The Court's full decision is below:
Guardianship of a Minor Child
-- Beth Padilla
Many families are faced with difficult situations where a parent is not able to care for his or her child. In that situation, it is not uncommon for a grandparent, aunt, uncle, or other relative to step in to care for the child until the parent is able to do so. It is important to ensure the caregiver relative has the appropriate legal documentation in place to care for the child. For example, in an informal arrangement, the caregiver may not be able to enroll the child in school or seek routine medical attention for the child.
Some caregivers will choose to petition the Court for guardianship. In Colorado, we have three types of guardianship: (1) emergency guardianship, (2) temporary guardianship, and (3) guardianship.
The Court may appoint an emergency guardian pursuant to C.R.S. 15-14-204(5) when the normal procedures for appointment of a guardian will “likely result in substantial harm to a minor's health or safety and that no other person appears to have authority to act in the circumstances, the court, on appropriate petition, may appoint an emergency guardian for the minor.” An emergency guardianship cannot last for more than sixty (60) days.
Another option is for the caregiver to file for temporary guardianship. The Court may appoint a temporary guardian pursuant to C.R.S. 15-14-204(4) “upon a showing that an immediate need exists and that the appointment would be in the best interest of the minor.” A temporary guardianship cannot last for more than six (6) months.
The final option would be to seek a full guardianship. A guardianship will last until the child reaches eighteen (18) years of age.
There are many considerations when deciding whether to petition the Court for a guardianship. It is important to remember that every situation is different and this brief explanation of guardianship is only one part of a very complex legal situation.
Beth Padilla was recently selected for membership into The National Advocates: Top 40 Under 40. The National Advocates: Top 40 Under 40 is a professional organization comprised of America's top attorneys 40 years of age and under in the areas of Matrimonial and Family Law, Bankruptcy Law, Social Security Disability Law, Employment Law, Immigration Law, and Wills, Trusts, and Estate Law.
-- Beth Padilla
What are your options if you need a lawyer’s advice but you cannot pay a retainer? This is a common situation. One solution is to hire an attorney to provide unbundled legal services.
Unbundled legal services can operate in many different ways depending on a client’s needs. For example, if a client is involved in a dissolution of marriage (divorce) case and needs an attorney to advise him on how to create a reasonable parenting plan, the client might be able to hire the attorney for that specific purpose. Often, when an attorney is providing unbundled legal services, the attorney will not attend Court proceedings with the client, but will provide advice and can help draft documents.
A major advantage to unbundled legal services is that it allows a client to seek an attorney’s advice and to limit the scope of the attorney’s representation. This type of legal service is generally less expensive than hiring an attorney to represent a client throughout an entire case.
Importantly, unbundled legal services are not always the right answer. If a client has a very complex case, it is likely more appropriate to hire an attorney for the entire matter.
Our firm routinely provides unbundled legal services and is happy to discuss whether this is appropriate for your case.
Keywords: lawyers in Durango, Cortez, Pagosa Springs, Cortez lawyer, Durango lawyer, Durango mediation
-- Paul Padilla
Recently, many clients have asked about creating revocable trusts for estate planning, rather than a traditional Will. They have heard that probate is a horrible thing, and that a trust is a smart and easy alternative. However, the truth is that whether a Will, a trust, or another alternative is appropriate for you will depend on your personal circumstances.
Using a Will, you can give specific gifts, limit the use of property, or create sophisticated instructions, so that your wishes are carried out after you have passed away. But, a Will generally has to be probated, which means the Will is submitted to the court and a legal process must be followed.
Historically, the probate process was very formal and cumbersome. However, in the past few decades, most courts have modified the probate process to be much more efficient and cost-effective.
Significant costs and time can be required when there is a dispute in the family or a significant amount of property with very detailed instructions to follow. But, depending on what kind of property the person has when they pass away, and how the family interacts with each other, probating a Will can be a fairly easy process.
Both revocable and irrevocable trusts have become very popular for estate planning, because they can avoid probate (meaning you don’t have to file anything with a court), and there can be major tax benefits (and consequences). For this blog, I will only discuss revocable trusts, because irrevocable trusts have much more serious tax consequences (and I am not a tax attorney).
The main benefits of a revocable trust are that 1) you can avoid probate, which may be expensive, and 2) you can actively manage the trust while you are alive to adapt to changed circumstances and family dynamics.
But, the main downsides to creating a revocable trust for estate planning are 1) trusts are generally more expensive than Wills to create and fund properly (i.e. the cost is upfront, rather than after you pass away), and 2) you have to transfer your property into the trust, which can create unintended consequences. Because the trust is revocable, you can transfer the property back to yourself, if necessary, but that will un-do the benefit of creating the trust.
Trusts may also require much more active management and accounting to maintain. In comparison, once a Will is created, it essentially sits on a shelf (or in a fire-proof safe) until a person dies and the probate process begins.
A trust can also be a very useful tool for parents who have children under the age of 18. If property is held in trust and the parents die, a successor (or second) trustee can be nominated and the property can be held and managed for the children until they are old enough to get it. This is one of the primary reasons my clients ask me to create trusts. However, the parents need to understand that major items, such as your home, need to be transferred into the trust right away for the benefits of the trust to work.
Transferring property into the trust raises issues with deeds, titles, insurance, and several other factors, which may negate the benefit of setting up the trust in the first place.
Depending on the kind of property you have and how much instruction you want to provide following your death, there are several alternatives to both Wills and trusts.
For example, if you do not own any real estate and have minimal personal property (generally less than $60,000), your property can be collected and distributed by affidavit, and will not require probate.
Similarly, if your home or other real property is held in joint tenancy with another person, title to the property will transfer to the other person the instant that you pass away, and no probate is necessary.
Many investment accounts and other financial instruments also have pay-on-death or beneficiary designations, which will give the investments to the beneficiary once you pass away (again without probate).
So, depending on who you are, what you own, and what you want to do, there may be several other options available for your estate planning. A Will may be a simple and straightforward tool for you; a trust may meet the complexity you are looking for; or, a combination of real estate, investment, and health care plans can also meet your needs.
Paul Padilla Represents Global 500 Company
Paul Padilla recently represented a Global 500 company in a civil litigation in Cortez, Colorado. Mr. Padilla successfully represented the company and came to a swift settlement for his client.
Beth Padilla Chosen as Rising Star by Super Lawyers 2015
Beth Padilla was chosen as a Rising Star 2015 by Super Lawyers magazine. The 2015 publication of Super Lawyers magazine was released in March, 2015.
-- Beth Padilla
Jurisdiction is defined as "[t]he power and authority constitutionally conferred upon a court or judge to pronounce the sentence of the law." Black's Law Dictionary. A court must have jurisdiction (i.e. authority) to issue a decision in a case.
In general, a Colorado court will only have jurisdiction in a family law case involving children if Colorado is the children's home state.
But, what is a home state? A child's home state is defined as "the state in which a child lived with a parent . . . for at least one hundred eighty-two consecutive days immediately before the commencement of a child-custody proceeding. . . . A period of temporary absence of any of the mentioned persons is part of the period." C.R.S. 14-13-102(7).
Here is an example: John and Sally are married, have a son, and live in Colorado. John and Sally decide to get divorced and John moves to New Mexico. Sally remains in Colorado with their son. Although John lives in New Mexico, Colorado is the appropriate state to hear the divorce case.
It can get very complicated when families move often or when the child does not have a home state. Filing a case in the wrong state can be costly and stressful. Like many areas of the law, jurisdiction in family law cases can be complicated. This brief explanation is not intended to be legal advice, but is intended to point out the importance of filing a case in the right state.
-- Beth Padilla
What is mediation?
Black’s Law Dictionary defines mediation as “the act of a third person who interferes between two contending parties with a view to reconcile them or persuade them to adjust or settle their dispute.”
Why should I mediate?
Mediation can be helpful in order to resolve disputes without involving the court. Often, clients that are able to mediate even one issue save thousands of dollars on attorney’s fees. Mediation can also preserve a working relationship between the parties because it can eliminate or lessen the amount of time the parties spend in court. In addition, meditation can offer a relatively quick resolution to a dispute.
What type of case should be mediated?
Many types of cases can be mediated. Mediation is often very beneficial in dissolution of marriage and child custody cases. It is not uncommon for a dissolution of marriage case to cost each party thousands of dollars. If the parties are able to sit down with an impartial party with experience in family law matters, it will likely save them a substantial amount of money.
How does mediation work?
Every mediator will handle mediation differently. Generally, we will ask the parties to submit a pre-mediation statement outlining the issues and the parties’ position. Then, the mediator will meet with both of the parties at the same time. The mediator will facilitate the discussion between the parties. The goal of mediation is for the parties to reach an agreement that will be binding in the case. If the parties reach an agreement, the mediator will draft the agreement and the parties will sign it. The agreement will then be filed with the court.
Padilla Law Mediators
Paul Padilla has been successfully mediating cases for five years. He was professionally trained in Denver. Beth Padilla recently underwent forty hours of professional training. Both Paul and Beth are accepting mediation clients. Padilla Law will offer one Saturday mediation slot per month.
Padilla Law, P.C. is pleased to announce that it has relocated to its new offices, located at 150 East 9th Street, Suite 100, Durango, Colorado 81301, on the first floor of the Colorado Heritage Plaza.
The firm's telephone and fax numbers, email addresses, mailing address, and website will remain the same. We look forward to serving you in our new facilities.
Padilla Law, P.C.
First Draft is a collaborative effort between Beth and Paul Padilla, both equity partners in the firm, and is intended to give you a brief overview of current legal topics and let you know what effects those issues may have in your life.