November 29, 2015

Medicolegal Aspects of Marijuana: Issues Facing Colorado Practitioners

By Jay Tiftickjian

MedicolegalMJOn December 4, CLE in Colorado will present Medicolegal Aspects of Marijuana, an all-day event that focuses on the forensic and regulatory aspects of legal and medical cannabis in Colorado. The seminar will feature most of the authors of the textbook of the same name, available from Lawyers and Judges Publishing. This event is co-sponsored by the Colorado Bar Association Cannabis Law Committee.

Colorado voters approved Amendment 20 in 2000, making Colorado the only state at the time to legalize medical marijuana in its own constitution. Twelve years later, in 2012, Colorado citizens passed Amendment 64 with 55 percent of the vote, making Colorado the first state to legalize the recreational use of marijuana. Criminal, civil, and regulatory law has since been rapidly developing and changing in this area.

Because of these rapid changes, Colorado practitioners are faced with an ever-expanding array of marijuana-related issues:

  • Regulation of Marijuana Sales: Dispensaries must abide by strict and constantly evolving state and local laws and regulations. The program explores regulations that cover both medical dispensaries and recreational stores, and includes two major economic issues: I.R.C. 280E and the lack of access to banking.
  • Driving Under the Influence: Since recreational marijuana use was legalized by Amendment 64 for persons 21 and older, the issue of driving under the influence of drugs is in the law enforcement spotlight. Denver criminal defense attorney and program chair Jay Tiftickjian will explore the drug recognition examinations and more-permissive chemical testing that are being used, and will look at controversial studies and research regarding these methods.
  • Blood Testing for DUI-D Cases: The active substance in marijuana, THC, remains detectable in the blood for only a few hours, but some research has shown that residual levels can be found in chronic marijuana users for up to 24 hours. The program includes a discussion on blood testing for marijuana to help educate practitioners about the legal intricacies.
  • Employment Issues: In June, the Colorado Supreme Court, in Coats v. Dish Network, held that employers could terminate employees for using medical marijuana because it is illegal under federal law. The program includes a discussion of the impact this decision will have for hundreds, if not thousands, of employees who use medical and/or recreational cannabis.
  • Tension Between Federal and Colorado Controlled Substance Laws: Under federal law, the punishment for persons convicted of marijuana charges is steep, and possession continues to be a misdemeanor subject to up to one year’s imprisonment. Possession of larger quantities of marijuana could lead to a felony conviction and a substantial prison term. Even under Colorado law, illegal cultivation and distribution is a felony. Program presenters will review and contrast Colorado controlled substance law and the federal Controlled Substance Act.

Medicolegal Aspects of Marijuana will provide an extensive overview of the areas of law most affected by legal cannibals in Colorado. Colorado practitioners in all areas of the law are encouraged to attend this program. More information about the program can be found here.

CLE Program: Medicolegal Aspects of Marijuana in Criminal Law, Civil Regulations, and Forensic Science

This CLE presentation will take place Friday, December 4, 2015, in the CLE Large Classroom. Click here to register for the live program and click here to register for the webcast, or call (303) 860-0608.

Can’t make the live program? Order the homestudy here: CDMP3 audioVideo OnDemand.


Jay M. Tiftickjian, Esq., is widely considered one of the best DUI attorneys in Colorado. He was named “Barrister’s Best DUI Lawyer” by Colorado Law Week multiple times, voted “People’s Choice-Best DUI Lawyer” multiple times, is Preeminent AV® Rated by Martindale-Hubbell, and is listed in Super Lawyers. He is the elected Secretary of the Colorado Criminal Defense Bar and in succession to be the president in 2018, and has been published numerous times on the subject of DUI defense and drug law. Mr. Tiftickjian is the co-author of Colorado DUI Defense: The Law and Practice, and the editor of the Colorado Criminal Defense Bar’s DUI Defense Manual as well as Medicolegal Aspects of Marijuana. He frequently lectures to attorneys, judges, and students about criminal law, law practice management, and ethics, and provided legal expertise to The New York Times, The Denver Post, 9News, Colorado Public Radio, 850KOA, and many other local and national media outlets. Mr. Tiftickjian is president of Tiftickjian Law Firm, PC, which represents clients out of the firm’s offices in Denver and Aspen.

Nine Point One Shades of Grey — Are You In Compliance?

The Law Club is performing its annual Ethics Revue next week on Tuesday and Wednesday at Lannie’s Clocktower Cabaret in Denver. This entertaining production features ethics vignettes in musical theater format. It’s the most fun you’ll ever have at an ethics CLE. To prove it, check out these photos from last year’s Ethics Revue. Don’t miss out – register today! Space is limited. Click here to register for Tuesday night and click here to register for Wednesday night.

Came in Like a Wrecking Ball - Law Revue - Nov. 2014

She came in like a wrecking ball.



The Hunger Games, ethics style.


Carnac the Magnificent - Law Revue - Nov. 2014

Carnac the Magnificent.



The Yale Team.


Finale - photo #2 - Law Revue - Nov. 2014

The grand finale. Congratulations on another successful performance!

The Colorado Marijuana Industry—Legal and Accounting Advice and Compliance

Colo_MJ_IndustryTwenty years ago, the idea of legalized marijuana was laughable. Today, there are 23 states that have legalized marijuana for medicinal purposes, and four states (Oregon, Washington, Alaska, and Colorado) along with Washington, DC, that are experimenting with the legalization of recreational marijuana. The marijuana movement appears to be an unstoppable force.

We have witnessed a major shift in how the American public views marijuana. Practically all major national polls now show that a slim majority of respondents are in favor of legalizing marijuana, or share a favorable view of the drug. An even greater percentage of Americans want to see it approved for medical uses. States have also taken a markedly different approach. Once viewed with contempt, marijuana is now looked upon as a fresh tax revenue source. Revenue generated from taxing marijuana is being used to support jobs, maintain in-state infrastructure, and even support education.

The first state to officially begin selling recreation-legal marijuana was Colorado in the beginning of 2014. Colorado hit a marijuana milestone in August 2015. According to the Denver Post, August represented the first month in its short history of recreational marijuana sales that total monthly combined sales of recreational and medical marijuana topped the $100 million mark. In August, $59.2 million was sold in recreational marijuana, and another $41.3 million came from medical marijuana. In Colorado, the three taxes associated with marijuana have raised an impressive $86.7 million through just the first eight months of 2015. With $639.4 million in combined marijuana sales through August in Colorado, and Washington and Oregon both ramping up their sales, the legal marijuana business will likely total more than $1 billion in 2015 for the first time ever.

However, federal law still views marijuana as a Schedule 1 Drug. Therefore, according to federal law, it is still illegal.

This thriving industry, its tax consequences, and the resulting conflict of laws have presented our state with a unique set of challenges, which will be discussed by some of the most influential voices in the Colorado marijuana industry on November 5 at Colorado CLE’s seminar,“The Colorado Marijuana Industry – Legal and Accounting Advice and Compliance.” Barbara Brohl, the Executive Director of Colorado Department of Revenue, will give the regulatory perspective on these complex issues. Professor Sam Kamin, one of the nation’s leading experts on the regulation of marijuana, will analyze the lawsuits that have been brought against Colorado by surrounding states. Mark Mason and Deirdre O’Gorman will be at the seminar to give us the latest information about The Fourth Corner Credit Union, the only credit union constructed to serve the interests of the legalized cannabis and hemp industries and their supporters. John Walsh, the United States Attorney for the District of Colorado, will give us the federal perspective on marijuana enforcement priorities and their interaction with state priorities.

Don’t miss the panel presentation about the challenges and opportunities of owning and operating a marijuana business. Christian Sederberg, a leading practitioner in the industry, has not only represented clients, but he and his firm have helped shape the marijuana and cannabis laws and regulations. Christian will give us an update on the law. Ron Seigneur, the Program Moderator, who has over 25 years of business valuation experience and is known nationally for his expertise, will talk about investing in a cannabis business and attendant ownership and valuation issues.

CLE Program: Colorado Marijuana Industry — Legal and Accounting Advice and Compliance

This CLE presentation will take place Thursday, November 5, 2015, in the CLE Large Classroom. Click here to register for the live program and click here to register for the webcast, or call (303) 860-0608.

Can’t make the live program? Order the homestudy here: CDMP3 audioVideo OnDemand.

Social Responsibility — Doing Good While Also Making Money And Protecting Owner Interests

BLI_2015Editor’s Note: The following article is excerpted from Herrick Lidstone’s materials for the 2015 Business Law Institute on October 28, 2015. Mr. Lidstone is leading a panel discussion about social responsibility in business. For discussion of the questions he raises below, attend the Business Law Institute. Register here or by clicking the links below.

By Herrick K. Lidstone, Jr.

There are a huge number of issues surrounding corporate/entity social responsibility. Even understanding what “social responsibility” is in this context has a divergent path. For the purposes of this discussion, it can be described as “Doing Good While Also Making Money And Protecting Owner Interests.”[1] This demonstrates the potential conflict – should an investor in a business entity (the owner) look to the entity to “do good” or merely to comply with legal requirements (do not pollute; do not violate the law) while making money for the owners (profit maximization). Should the owner have a say in the business entity’s choices?

Should an entity selling t-shirts worry about the workers in Bangladesh? Should an entity selling coffee worry about how it is grown and harvested? Should an entity selling beef burritos worry about how the cattle are slaughtered?

The legal landscape in which these questions must be considered has changed dramatically in the last five years. Consumer attitudes toward many of these issues have also changed. Some businesses are now extolling their social responsibility, while others apparently continue to consider that to be a secondary consideration, at best. Citizens United v. Federal Election Comm’n, 130 S. Ct. 876 (2010), interprets the Constitution to give business entities the right of free speech in political campaigns in a manner that is not necessarily answerable to the owners.[2] Has Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), done similarly for social responsibility and business philanthropy?

The following points are more than can be discussed at one sitting, but hopefully will form a basis for an interesting presentation.

  1. Does Hobby Lobby change the landscape for business enterprises to consider factors other than profit in making their business decisions?
  2. The duties of the Board of Directors after Hobby Lobby – can a for-profit corporation consider social responsibility even if it has the effect of reducing profits?
  3. Where investors are concerned, what is the role of disclosure regarding consideration of alternative constituencies?
  4. Should a for-profit corporation desiring to include a focus on social responsibility at the expense of profit expressly so state in its articles of incorporation or adopt a form such as (in Colorado) a public benefit corporation?
  5. Is there a religious and moral side to profit maximization and corporate social responsibility?
  6. Is there a difference between corporate social responsibility and social entrepreneurship?
  7. Are alternative entities important, and must they be carefully crafted?
  8. Is it a question of marketing?
  9. Where does “blind philanthropy” fit in?
  10. Once you have done it, can you go back?
  11. Is it the Millennials (born 1980-1995) versus the Baby Boomers (born 1945-1960)?
  12. Whither the future?

[1] Of course, the concept of “doing good” has potentially a variety of meanings depending on political, moral, religious, and other deeply held beliefs. This paper will not focus on the potentially contradictory definition of “good.” In the most controversial extreme, consider the “rights of the unborn” versus “freedom of choice” as a justification for abortion. This paper will leave the definition of “good” to others.

[2] In August 2011, the “Committee on Disclosure of Corporate Political Spending” filed a petition for rehearing with the Securities and Exchange Commission ( in which the committee asked “that the Commission develop rules to require public companies to disclose to shareholders the use of corporate resources for political activities.” Those rules still do not exist for 1934 Act reporting companies. The SEC does have rules prohibiting investment advisors from making political contributions to encourage political subdivisions to hire them as advisors. See 17 CFR § 275.206(4)-5.

Herrick K. Lidstone, Jr., Esq., is a shareholder of Burns Figa & Will, P.C. in Greenwood Village, Colorado. He practices in the areas of business transactions, including partnership, limited liability company, and corporate law, corporate governance, federal and state securities compliance, mergers & acquisitions, contract law, tax law, real estate law, and natural resources law. Mr. Lidstone’s work includes the preparation of securities disclosure documents for financing transactions, as well as agreements for business transactions, limited liability companies, partnerships, lending transactions, real estate and mineral property acquisitions, mergers, and the exploration and development of mineral and oil and gas properties. He has practiced law in Denver since 1978.


CLE Program: Colorado Business Law Institute

This CLE presentation will take place Wednesday, October 28, 2015 at the Grand Hyatt Denver Downtown. Live program only – click here to register or call (303) 860-0608.

Can’t make the live program? Click here to order the CD homestudy or click here for the MP3 audio homestudy.

Resolve Client Conflicts Through Narrative Mediation

ADR2015Editor’s Note: This article is excerpted from materials written by C. Adam Foster of Hoban & Feola, LLC, who will present “Once Upon a Mediation: The Role of Narrative in Alternative Dispute Resolution” at CLE’s 9th Annual Colorado ADR Conference on October 7, 2015. See below for registration information.

Each person tells themselves a story about how their past experiences have shaped them as a person and how these experiences, along with their goals and values, define what is important to them in life. In other words, personal narrative gives meaning to past experiences, which define the individual’s self-image in the present and in turn circumscribes how they view their relationships with others and how they evaluate their choices moving forward. Individuals create multiple narratives in different contexts that inform how they see themselves in various social roles, for instance as professionals, spouses, parents and friends. These individual narratives stand in dialog with larger social narratives involving class, race, gender, sexual orientation, religion and many other aspects of identity. Moreover, the existence of these narratives and their effect on the construction of identity may be more or less consciously acknowledged depending on the individual and their circumstances at any given time. Regardless of whether consciously or (more often) subconsciously, each individual crafts a narrative that reaffirms his or her values and identity. Thus, “[t]he stories that one constructs fit into a wider web of stories relating to other stories created by the same individual, to stories created by members of one’s social network, and even to cultural stories on a societal level” (Hansen, 2003). The notion of interrelated individual narrative and larger scale social discourse has been adopted into the practice of Narrative Mediation. Kure & Winslade (2010) elaborate:

In particular, narrative mediators focus on what can be coined “relational discourses,” which are local systems of meaning that shape the identities of parties in a relationship. These relational discourses map on to larger, more pervasive, discourses, or orders of discourse, but at the personal level, they are manifest through the ‘positioning ’of each of the parties in a power relation.

This idea of individual identity as a product of multiple individual and group discourses and narratives dovetails with the concept of “discursive positioning.” As Winslade (2003) writes: “As people speak, they position themselves not just in immediate relation to other person(s) in the conversation, but also in relation to utterances in other conversations.” Furthermore, discursive positioning occurs not just in relation to past conversations that the parties have had with each other, but innumerable conversations they have had with third parties.

The statement of facts is the most important portion of any legal brief because citation to legal authorities is meaningless unless the decision maker understands the specific factual context of the case. Judges, juries and arbitrators want to achieve a fair outcome. A properly crafted narrative creates moral tension, suggests a proper result and makes the decision maker care about the outcome. Moreover, a great deal of trial strategy focuses on advancing the client’s narrative and suppressing or disrupting the opposing party’s narrative. A compelling narrative has “integrity” in the sense that the facts fit together in a logical fashion and support the party’s message.

Attorneys must recognize that the audience is different in a bench trial, jury trial, arbitration or mediation—and attorneys should tailor this narrative to the appropriate audience while telling the story the client needs to tell. Moreover, each individual—the parties but also the attorneys and mediator, arbitrator, judge, jury, etc.—is trying to make sense of two related, but distinct, narratives: (i) a narrative regarding the facts of case and a desirable outcome; and (ii) a meta-narrative regarding who they are as a person and how case fits in with their life story.

In mediation making sure that the parties feel heard is critical. Parties want to achieve a favorable outcome but also to feel heard and validated in the process, so a good settlement accomplishes both. A party who achieves favorable financial outcome but doesn’t feel heard feels dissatisfied and may try to undermine the settlement when the opportunity arises.

Common sense dictates that it will usually be more important for parties to agree on certain elements of a joint narrative if they will be in a continuing relationship (e.g., in a workplace or parenting time dispute) versus a one-off transaction (e.g., a tort settlement for money damages). But it is often necessary to establish legal and factual stipulations to settle any type of dispute. Litigation will result in a judgment, but may not further agreement on a joint narrative.

C. Adam Foster, Esq., serves as Special Counsel at Hoban and Feola, where his practice focuses on the representation of business owners and mediation of business cases. He received a B.A. in Anthropology in 1998 from the University of Colorado at Boulder and was elected to Phi Beta Kappa. Adam returned to the University of Colorado at Boulder to attend law school, where he served as the Articles Editor of the University of Colorado Law Review, won the CU-DU Cup Mock Trial Competition, and received the Legal Aid Award for Outstanding Advocate. Adam joined Hoban & Feola in September of 2010 and today focuses on representing small to medium-sized business owners—including entrepreneurs within the burgeoning cannabis and industrial hemp industries—in transactions and litigation. He also mediates cases involving business, partnership and employment disputes. He speaks Spanish fluently and volunteers regularly, providing pro bono legal referrals through the Colorado Lawyers Committee Legal Nights and Project Homeless Connect.


CLE Program: 9th Annual Colorado ADR Conference

This CLE presentation will take place Wednesday, October 7, 2015 at the Renaissance Hotel in Denver. Live program only – click here to register or call (303) 860-0608.

Learn to Negotiate Effectively – Gain the Edge!®

Everyone negotiates. If you are a lawyer – regardless of your practice area – your ability to negotiate effectively may be one of the most critical skills you possess.

Like any skill we possess, our negotiation techniques will grow and develop as we feed them. Our upcoming Gain the Edge!® Negotiation Strategies for Lawyers seminar with Marty Latz will help lawyers hone their skills and become more effective negotiators. The video clip above shows you just one of Marty’s tips for handling negotiations successfully.

As Marty explained to us “There’s basically a right way to negotiate, and there’s a wrong way to negotiate.” While most of us tend to wing it while negotiating, Marty will share decades of proven expert research to help you sharpen your negotiating skills by navigating away from an instinctive or intuitive mindset towards a more strategic method.

This program has something for everyone. “Everybody benefits. Negotiation is truly a life skill,” as Marty says. Whether you are a litigator, family lawyer, or real estate practitioner, negotiations come into your practice. Perhaps you are trying to close a business deal, encountering discovery disputes, trying to solve a taxation issue, or negotiating your office lease. Whatever it is that you do, this program will provide you tips for negotiating in any professional legal environment. By attending, you’ll gain tools to negotiate more successfully with all of the people you encounter: your bosses, co-workers, employees, clients, and other lawyers.

We hope you’ll join us and Marty for Gain the Edge! ® Negotiation Strategies for Lawyers. You can learn more about the topics Marty will cover by viewing the program brochure. As a bonus, each attendee will receive a copy of Marty’s book, Gain the Edge! Negotiating to Get What You Want. To reserve your spot now, click here to register online or call (303) 860-0608.

Then mark your calendar and come prepared to improve your skills and have fun at the same time. Marty’s other seminar attendees have told him that they “not only find [the information] useful, practical, and interesting but they also really enjoy themselves.”

We hope you’ll enjoy it too!

CLE Program: Gain the Edge! ® Negotiation Strategies for Lawyers

This CLE presentation will take place Friday, October 2, 2015 at the CLE offices. All class attendees will receive a copy of Marty Latz’s book, Gain the Edge! Negotiating to Get What You Want. Live program only – click here to register.

Editor’s Note: A version of this post originally appeared on the blog of the Legal Education Society of Alberta on July 28, 2015. Reprinted with permission.

Associate’s Mind: Book Review — Writing to Win

keith-lee-birmingham-alabama-attorneyEditor’s Note: This post originally appeared on July 12, 2012, on Keith Lee’s blog, Associate’s Mind. Reprinted with permission.

CLE in Colorado is hosting two half-day programs presented by Writing to Win author Steven Stark; see below for registration information.

Roughly a month ago I received a review copy of Steven Stark’s Writing To Win. It’s taken this long for me to get the review up because A) I’ve been busy and B) I always fully read any book I receive and Writing To Win is long and dense – albiet in the all the best ways possible. Writing To Win now sits next to Ross Guberman’s Point Made as one of my favorite books on legal writing.

In my review of Point Made I stated:

Point Made is not an introductory level book. If you’re not familiar with basic legal writing, you might be better off starting somewhere else. But it might be the best technique oriented legal book I’ve ever read . . . Point Made is a tactical book. Point Made provides granular-level advice that can immediately be implemented in your writing.

Writing To Win is the introductory book I would hand anyone looking to learn about legal writing. If I were to design a legal writing course, it would be the course textbook.

Writing To Win’s strength is in its organization and clarity of purpose. Both of which are what Stark emphasizes again and again as fundamental tenant of strong legal writing. The book is broken into four section:

  1. The Fundamentals of Legal Writing
  2. The Fundamentals of Argument for All Lawyers
  3. Writing in Litigation
  4. Writing in Legal Practice

The first section, The Fundamentals of Legal Writing, begins with a focus on organization. It then moves into the actual construction of text. Like every other good book on legal writing in emphasizes core points:

  • Avoid legal jargon
  • Keep it short
  • Keep it simple
  • Write for the reader, not for yourself

But Stark lays it out in a very effective way. Each topic is broken down, examined, then placed into context of the the larger purposes of legal writing. Each topic also flows directly into the next one while building on top of the previous material. It’s masterfully done – the text is a perfect example of the type of writing Stark is discussing.

The second section, The Fundamentals of Argument for All Lawyers, takes a very different approach to crafting legal arguments than I imagine is taught in most law schools. For example this section:

So any time you compose an argument . . . my advice would be to do enough research first to get a general sens of the law. No matter how complex the matter, this research should never take more than an hour or so. Then put all you research aside ask yourself, if I had to explain to a judge, or another lawyer, or a client why we should win without resorting to any precedent or law, what would I say? In laymen’s terms, why are we right? Then write those reasons down. . .

Outline the argument, research it later.

Which I have found to be an excellent tool in my own writing. It’s just a shame that I had to come to it on my own and was not taught it in law school. I was also pleased to see that Stark gave heavy emphasis to the advertising industry. Like I stated in my post about the writing blogs I follow, I think lawyers could gain a lot my studying the techniques the advertising industry uses to persuade consumers. It’s nice to see it echoed in Writing To Win. 

Also, Stark emphasizes the use of narrative in argument. A well constructed narrative is the difference between a slog of a brief and one that pulls the reader along. Stark quotes Chief Justice John Roberts in this section, which makes the point most succinctly:

Every lawsuit is a story, I don’t care if its about a dry contract interpretation; you’ve got two people who want to accomplish something, and they’re coming together – that’s a story. And you’ve got to tell a good story.

Sorry lawyers, you’ve got to be good authors too. But most of you probably secretly want to do that anyway.

The last two sections, Writing in Litigation and Writing in Legal Practice, provide detailed strategies for tackling a number of styles of legal writing. From affidavits to appeals, from memos to emails, Stark provides concrete methods for making smooth, organized, flowing language that should make the text easier to parse for readers. The sections are littered with tips like study a cookbook or board game to improve your technical writing (taking a complex set of rules and systems and explaining them in a way that anyone can understand). It’s too much to go into here, but it Stark does an excellent job covering the most common writing scenarios lawyers deal with day to day.


Earlier I stated that Writing To Win “is the introductory book I would hand anyone looking to learn about legal writing.” This not because the book is simple or a beginner level book – it’s because it is one of the clearest and most well organized books on legal writing I’ve had the pleasure to read. Any law student or new lawyer looking to brush up on their writing skills would do well to pick up this book. Highly recommended.

Worth noting, the Appendix of the book contains 8 General Rules for Professionalism in Legal Writing. The number one rule?

Never lie under any circumstance. 

Sometimes I think lawyers forget that.

Keith Lee is a lawyer in Birmingham, Alabama. He is the founder and editor-in-chief of Associate’s Mind, one of the most popular legal blogs in the US. Associate’s Mind has been linked to by the New York Times, the Wall Street Journal, Above the Law, ABA Journal, dozens of  blogs and websites, and has been featured as an Editor’s Pick at the Browser. It is frequently featured in the national newsletter, Technolawyer, and many of its articles were syndicated to LexisNexis. Associate’s Mind was selected as one of the “Blawg 100″ by the ABA Journal for 2011. Keith also writes a weekly column for Above The Law.

CLE in Colorado is hosting two half-day programs presented by Writing to Win author Steven D. Stark on October 1, 2015: “Legal Writing in the Smartphone Age” in the morning and “Writing to Win” in the afternoon. All attendees of the afternoon program will receive a copy of Writing to Win. To register, click the links below or call (303) 860-0608.

CLE Programs: Legal Writing in the Smartphone Age AND Writing to Win

These CLE presentations will take place Thursday, October 1, 2015 at the CLE offices. Click here to register for “Legal Writing in the Smartphone Age,” click here to register for “Writing to Win,” and click here to register for both programs. These programs are also available as webcasts.

Search and Seizure Law in Colorado: Update and Overview

Search-SeizureThe Fourth Amendment to the United States Constitution guarantees

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Since its ratification in 1791, the Fourth Amendment has been examined in myriad fact situations in thousands of cases. Practically every word in the Fourth Amendment has been adjudicated, in cases ranging from the mundane to the insane:

  • Illinois v. Gates, 462 U.S. 213, 238 (1983): The police received an anonymous letter implicating Susan and Lance Gates in a drug trafficking scheme. Police corroborated details of the anonymous letter and were able to obtain a warrant to search the Gates’ home and car. The search was held to be valid even though the informant was anonymous.
  • People v. Leftwich, 869 P.2d 1260 (Colo. 1994): An anonymous note claimed defendant was an active drug dealer, but the investigating officer was unable to corroborate the details of the purported drug deals. This was held so insufficient to support probable cause that the warrant was not saved by the good faith exception, and all evidence was suppressed.
  • Rochin v. California, 342 U.S. 165, 173 (1952): Police forcibly entered defendant’s room and saw him put two capsules into his mouth. They were unable to extract the pills and took the defendant to the hospital, where a doctor forced him to vomit. The Supreme Court held the warrantless conduct “shocks the conscience” and offends a “sense of justice.”
  • People v. Thompson, 820 P.2d 1160, 1164 (Colo. App. 1991): Officers doing surveillance for a drug buy saw defendant swallow something as they approached. They got a warrant for an x-ray, which showed a drug-filled balloon. The court ruled that any intrusion from the x-ray was minimal and since police clearly saw defendant swallow an object, the search was reasonable.
  • United States v. Booker, 728 F.3d 535 (6th Cir. 2013): After a valid arrest, defendant was strip-searched at the police station, and officers saw a string sticking out of his anus. Defendant tried to push it in further, and was transported to the hospital where eventually he was sedated, intubated, and paralyzed, and 5 grams of crack cocaine was retrieved from his rectum. The court held that the search, which was initially lawful, went too far without a warrant.
  • Wilson v. Arkansas, 514 U.S. 917 (1995): While executing a search warrant, officers found the door to defendant’s home open and walked in, unannounced. Defendant argued the search was unreasonable because the officers did not knock and announce their presence. The Supreme Court agreed, reversing the trial court’s order to the contrary and ruling that a search warrant executed without a knock and announce may sometimes be unreasonable.
  • People v. King, 292 P.3d 959, 963 (Colo. App. 2011): Officers executed a valid search warrant for a hotel room and found no drugs, but requested that defendant remove his pants and eventually removed drugs from his anus. The court ruled that even a valid search warrant that specifies a search “on a person” does not authorize a strip search.

These are some of the many examples of issues arising from Fourth Amendment cases as highlighted by Attorney H. Morley Swingle, author of CLE in Colorado’s new book, Search and Seizure Law in Colorado. Swingle will discuss these cases and more at his entertaining program, “Search & Seizure Law in Colorado: Update and Overview,” on Friday, September 18, 2015. Click the links below to register or call (303) 860-0608.

CLE Program: Search & Seizure Law in Colorado: Update and Overview

This CLE presentation will take place Friday, September 18, 2015 at the CLE offices. Click here to register for the live program or click here to register for the webcast.

Can’t make the live program? Order the homestudy here – CD • Video OnDemand • MP3

Dignity to All Persons: CBA-CLE to Host LGBT Law Institute

LGBTOn June 26, 2015, the United States Supreme Court decided in the landmark case Obergefell v. Hodges that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. In reaching this conclusion, the majority relied on four principles and traditions that demonstrate marriage is a fundamental right under the Constitution, and applies with equal force to same-sex couples.

The first premise is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy. The second principle in the Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. The third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation and education. Finally, the U.S. Supreme Court’s cases and our Nation’s traditions make clear that marriage is a keystone of the Nation’s social order. Writing for the majority, Justice Kennedy stated:

The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era. Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied. Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it disparages their choices and diminishes their personhood to deny them this right.

What is the case law, legislation and culture surrounding the Lesbian/Gay/Bisexual/Transgender journey to this holding? Attend the Colorado Bar Association CLE’s Lesbian/Gay/Bisexual/Transgender Law Institute on September 24-25, 2015, and hear not only from Colorado Supreme Court Justice Monica Marquez, but also from Colorado Senator Pat Steadman on the LGBT legal history and landscape in our State and our Nation. Learn about changes in government programs after the Windsor case, and about LGBT issues in both the employment law and immigration contexts. Also find out about how to reach out to the LGBT community and the logistics of navigating through such legal issues as changing one’s name and Social Security if you are a transgender person.

The Institute will showcase many points of view. On August 13, 2015, the Colorado Court of Appeals affirmed a finding from May 2014 from the Colorado Civil Rights Commission that the Masterpiece Cakeshop’s policy of turning away a same-sex couple’s request for a cake violates Colorado’s Anti-Discrimination Act. The speaker at the Institute will address the topic from the perspective of Masterpiece Cakeshop owner Jack Phillips, who refused to bake a wedding cake for a same-sex couple because of his religious beliefs. Learned legal scholars will also discuss the salient points from both the majority and dissenting opinions in the Obergefell case. Religious freedoms in connection with LGBT issues will also be discussed.

There are many more topics to be found when you register here. We’ll see you in the front row on September 24-25.

CLE Program: Lesbian/Gay/Bisexual/Transgender Law Institute

This CLE presentation will take place Thursday, September 24, and Friday, September 25, 2015 at the CLE offices. Click here to register for the live program or click here to register for the webcast.

Can’t make the live program? Order the homestudy here – CD • Video OnDemand • MP3

10 iPad Apps for Use in the Office and the Courtroom

PrintThink of the first courtroom you were ever in. Was there a flip chart? An easel? A projector and slides? Or was there a sophisticated plasma TV screen and electronic system so attorneys could showcase their best evidence through their tablets? That last example may not have appeared in your first courtroom, but it certainly is becoming a common sight today.

Attorney Jason Márquez of Johnson Márquez Legal Group uses an iPad in every courtroom presentation where the judge allows it. Using apps like Adobe, Evernote, and Pocket Scan, he can create a compelling courtroom presentation to highlight favorable evidence while minimizing costs associated with photocopying and creating exhibit notebooks. Márquez believes so strongly in using iPads in his practice that he provides them to every member of his firm. He uses several apps, but suggests these ten apps as must-haves for office use and courtroom presentations:

  1. Adobe Acrobat® is multi-platform, PDF solution that allows you to work with all kinds of documents to: View, Create, Manipulate, Print, Combine files.
  2. GoodReader® is the super-robust PDF reader for iPad, iPhone and iPod touch. Sync with Dropbox, OneDrive, any FTP or SFTP server. Sync entire folders or individual files separately.
  3. DropBox® is a folder on your computer that synchronizes your files online and across computers. Any files you place within it will be available on your other computers with Dropbox, as well as the web.
  4. Evernote® is designed for note-taking and archiving. A “note” can be a piece of formatted text, a full webpage or webpage excerpt, a photograph, a voice memo, or a handwritten “ink” note. Notes can also have file attachments.
  5. Pocket Cloud® is a secure and fast way to remotely connect to your Mac or Windows desktop with your iPad, iPhone, iPod touch, or Android device no matter where you are. Access your files, pictures, and applications like Excel, Powerpoint, Photoshop, games or any other program.
  6. Tiny Scan® turns your iPhone/iPad into a portable scanner. Scans are saved to your phone as images or PDFs. Name and organize your scans into folders, or share them by: Email, Dropbox, Evernote, DropBox, Wi-Fi to your computer, Fax (using TinyFax).
  7. Dragon® Dictation is an easy-to-use voice recognition application powered by Dragon® NaturallySpeaking® that allows you to easily speak and instantly see your text or email messages. In fact, it’s up to five (5) times faster than typing on the keyboard.
  8. Prezi® is a presentation tool that can be used as an alternative to traditional slide making programs such as PowerPoint or Keynote. Instead of slides, Prezi makes use of one large canvas that allows you to pan and zoom to various parts of the canvas and emphasize the ideas presented there.
  9. Casemaker® is an alternative legal research tool to LexisNexis and Westlaw. It allows users to search and browse a variety of legal information such as statutes, regulations, and case law on the Web. Casemaker comes free with your CBA membership!
  10. JuryPad® assists with voir dire in different jurisdictions. Create custom seating charts for any courtroom. Add or modify a juror’s information including age, occupation, education, prior jury service, and much more.

Márquez will present on “The iPad Advantage” at the 2015 Colorado Legal & Technology Expo on Friday, August 21, 2015 at the Warwick Hotel in downtown Denver. Entrance to the Expo is free, and Márquez’s CLE program is only $19 for CBA members. Join us at the Warwick on Friday and learn how you can increase your productivity—and your bottom line.

2015 Colorado Legal & Technology Expo

The 2015 Colorado Legal & Technology Expo will take place on Friday, August 21, 2015 at the Warwick Hotel in Denver. Entrance to the Expo is free. Each 50-minute CLE program is $19 for CBA members and $39 for non-CBA members. Register for the event and find more information here.

Business Use of Unmanned Aircraft Systems (Drones) Expanding Exponentially

DroneDrones, also known as Unmanned Aircraft Systems (UAS) or Unmanned Aircraft Vehicles (UAV), are not just for hobbyists anymore. Drones are devices that are used for flight in the air without an onboard pilot. Drones can be small and simple, such as remote-controlled aircraft popularized by hobbyists, or large and complex, like the surveillance aircraft used by the military in hostile areas. The military has been using drones for many years to conduct surveillance and deliver weapons in dangerous war zones. However, in the last several years, civilian and business use of drones has increased dramatically.

Non-military drone use is categorized into public aircraft operations and civil operations. Public aircraft operations are uses by public agencies or organizations of a particular aircraft for a particular purpose in a particular area. Public operation uses can include law enforcement, firefighting, border patrol, disaster relief, search and rescue, and military training. Civil operations are any operations that do not meet the statutory criteria for public aircraft operations, including business uses such as for agricultural purposes, construction, security, TV and movie industry uses, environmental monitoring, insurance, aerial photography, news media, and much more.

Because they utilize airspace for their operations, drones are regulated by the FAA. In 2013, the FAA issued a comprehensive plan for the safe integration of civil unmanned aircraft systems into the country’s airspace. In early 2015, the FAA issued a Notice of Proposed Rulemaking for small UAS. The goal of the proposed rules is to provide a framework of regulations to allow routine use of certain small UAS while maintaining flexibility to accommodate future changes in technology. The public comment period for the proposed rules ended April 24, 2015.

Businesses wishing to utilize drones must obtain a Section 333 Exemption from the FAA. Petitions for Section 333 Exemption must be filed with and approved by the FAA before the drone may be used for business purposes. The FAA can also grant businesses the right to use airspace via Special Airworthiness Certificates. Special Airworthiness Certificates are available for research and development or experimental aircraft.

Attorney Thomas Dougherty, II, head of Lewis Roca Rothgerber’s Unmanned Aircraft Systems Industry Team, will discuss drone law at CLE on July 28, 2015. Topics to be explored include potential drone uses, FAA regulations covering drones, required information for petitions for Section 333 Exemption, Certificates of Waiver or Authorization, the FAA’s enforcement authority, and legal issues arising out of state and local laws for the use of drones. Register now by clicking the links below or calling (303) 860-0608.

CLE Program: Drones for Lawyers: The Do’s and Don’ts for Clients

This CLE presentation will take place Tuesday, July 28, 2015 at the CLE offices. Click here to register for the live program or click here to register for the webcast.

Can’t make the live program? Order the homestudy here – Video OnDemand – MP3


Let’s Talk About Beer (Law)

BeerColorado loves its beer. Denver is the nation’s former microbrew capital and microbreweries throughout the state continue to thrive. Naturally, because beer business is big business, beer law became a practice area.

Manufacturing and selling alcohol is highly regulated, and microbreweries must comply with myriad state and federal alcohol regulations in addition to standard business regulations. Beyond the regulatory side of beer law, though, are intellectual property concerns. Recently, New Belgium Brewery has been involved in a publicized case about trademark rights to its Slow Ride Session IPA.

New Belgium filed for trademark protection for its Slow Ride IPA, which was granted without opposition by the USPTO. Later, it learned that Oasis Texas Brewing Co. was producing a beer named Slow Ride Pale Ale. According to New Belgium, the Fort Collins brewery offered to resolve the issue amicably in order to allow both breweries to continue to use the Slow Ride name in certain locations, but Oasis refused, instead issuing a cease and desist letter to New Belgium in which it demanded that all products bearing the Slow Ride name be destroyed and profits from Slow Ride given to Oasis. (Oasis claims New Belgium tried to “strong arm” it into accepting a joint use agreement and says that all negotiations with New Belgium have devolved into hostility.) New Belgium eventually filed a lawsuit in the U.S. District Court for the District of Colorado, seeking exclusive use of the Slow Ride name pursuant to its trademark. Earlier this month, a federal judge dismissed the lawsuit for lack of personal jurisdiction over the Texas-based defendants.

The Slow Ride dispute is far from the first trademark dispute to arise from craft beer. Ohio-based Great Lakes Brewing agreed to change the name of its Alchemy IPA as a result of a trademark conflict with the Craft Beer Alliance. Innovation Brewery, a small craft brewery in North Carolina, was accused by Michigan-based Bell’s Brewery of infringing on its trademarked slogan, “bottling innovation since 1985.” Boulder-based Kettle and Stone Brewing Co. agreed to change its name after contact from California’s Stone Brewing Co. Lagunitas Brewery in California dropped its lawsuit against Sierra Nevada Brewing Co. after public outrage at its comparison of the two beer companies’ IPA logos. The list goes on and on.

Later this month, CLE will host its annual Rocky Mountain Intellectual Property Institute. The plenary session, “Innovation & Disruption: How Crafty Micro-brews are Shaking Up the Beer Industry,” features attorney Michael Drumm of Drumm Law Group, LLC and Chris Hill of Odyssey Beerworks Brewery & Taproom in Arvada. The Rocky Mountain IP Institute will also feature a beer tasting this year. To register, click the link below.

CLE Program: The 13th Annual Rocky Mountain Intellectual Property Institute

This CLE presentation will take place from Thursday, May 28 through Friday, May 29, 2015. Click here to register.

Can’t make the live program? Order the homestudy here – CDMP3