BRP Recalls Youth Model Can-Am All-Terrain Vehicles Due to Violation of the Federal ATV Standard

Immediate Recall on Youth Model ATVs from Can-Am

If you or a loved one has been injured on this vehicle, contact the Vogel Law Firm immediately by calling 865-357-1949 or email Karen@robertvogellaw.com

 

Recall Date: May 26, 2015

Recall Number: 15-149
 

Recall Summary

Name of product: All-terrain vehicles (ATVs)

Hazard: The youth ATVs fail to meet performance requirements of the federal ATV standard for maximum unrestricted speed and parking brakes, posing a crash hazard.

Remedy: Repair

Consumers should immediately stop using the recalled ATVs and contact a BRP dealer to schedule a free repair. BRP is notifying registered consumers directly.

Consumer Contact:  BRP toll-free at (888) 272-9222 from 9 a.m. to 9 p.m. ET Monday through Friday, or online at www.can-am.brp.com/off-road and click on Owners, then "View Details" for Safety, then "View Notices" for Safety Recalls.

Recall Details

Units: About 12,500

Description: This recall is for model year 2008 through 2015 Can-Am Mini DS ATVs. The recalled vehicles are youth model ATVs and have engines sizes of 70 cubic centimeters and 90 cubic centimeters. They were sold in the colors black and yellow. "Can-Am DS" and the engine size is on both sides of the vehicle's fairing. "Can-Am" appears in white letters on both sides of the seat.

Model year 2008 through 2014 DS 70 ATVs fail to meet requirements pertaining to the unrestricted maximum speed of the vehicle. Model year 2008 through 2015 DS 70 and DS 90 ATVs fail to meet requirements pertaining to parking brakes.

Incidents/Injuries: None reported

Sold at: Can-Am dealers nationwide from July 2007 through January 2015 for between $1,800 and $2,800.

Importer: Bombardier Recreational Products, of Canada

Manufactured in: Vietnam

If you or a loved one has been injured on this vehicle, contact the Vogel Law Firm immediately by calling 865-357-1949 or email Karen@robertvogellaw.com

 

Don't Wait for the Dogs - Police Stops

It used to be that the police had the right to hold you for a little while - what the courts might call a "reasonable" amount of time, to call for a drug dog to sniff your car. The dog would then show up, work its magic, and somehow, would indicate to the police, through various forms of telepathy and peeing on your tire, that you were likely the head of a South American Drug cartel and your vehicle was chock full of cocaine and guns. You would then be arrested and spend some time in jail sorting out the allergy pills you had in your backpack - ultimately being asked to plea to some trumped up meth charges to satisfy the prosecutors need for blood.

You don't have to suffer through that any more.

The Supreme Court ruled 6-3 on Tuesday that the Constitution forbids police from holding a suspect without probable cause, even for fewer than 10 extra minutes.

Writing on behalf of the court, Justice Ruth Bader Ginsburg declared that the constitutional protections against unreasonable search and seizure prevent police from extending an otherwise completed traffic stop to allow for a drug-sniffing dog to arrive. The Court held that "a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures."

The Defendant in the case of  Rodriguez v. United States was pulled over for driving on the shoulder of a Nebraska highway. After the police checked his license and issued a warning for his erratic driving, the officer asked for agreement by Rodriguez to walk his drug-sniffing dog around the vehicle. Rodriguez refused. The officer detained him for “seven or eight minutes” until a backup officer arrived. Then, the original officer got out his dog and walked him around the car. The officer claimed that the dog "hit" on drugs in the car.

 

Rodriguez was indicted for possessing methamphetamine. The stop lasted less than 30 minutes. According to the Supreme Court, though, that search of Rodriguez’s car was illegal, and the evidence gathered in it should not be used at trial. While officers may use a dog to sniff around a car during the course of a routine traffic stop, they cannot extend the length of the stop in order to carry it out.

“[T]he tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s ‘mission’ — to address the traffic violation that warranted the stop,” Ginsburg ruled. “Authority for the seizure thus ends when tasks tied to the traffic infraction are — or reasonably should have been — completed.”

Dissenting, Justices Clarence Thomas, Samuel Alito and Anthony Kennedy argued that police can reasonably detain people to investigate other possible violations of the law. Thomas said that majority’s ruling makes “meaningless" the legal difference between “reasonable suspicion” — which does not authorize a search of someone’s property — and “probable cause," which does.“Had Officer Struble arrested, handcuffed, and taken Rodriguez to the police station for his traffic violation, he would have complied with the Fourth Amendment,” he wrote, using the majority’s argument. “But because he made Rodriguez wait for seven or eight extra minutes until a dog arrived, he evidently committed a constitutional violation. Such a view of the Fourth Amendment makes little sense.”

What Thomas, and the other hawks, miss in their argument is that in most States, a traffic offense is not a "detainable" offense. At the most extreme, a summons is issued for a future appearance in court. In this case, there would have been no arrest and no search of the car.

Police routinely attempt to bootstrap traffic stops into a search. In my years assisting defendants, I have learned that police will threaten defendants with jail if they won't consent to a search or a sniff by a dog. Multiple defendants have shared that if they have children in the car, the police will threaten the parent that unless they consent to a search or a sniff, they will take them in and call DCS to take the children - which can result in a D&N filing by DCS and a couple of years of fighting to keep your kids.

It is mostly the poor and minorities who suffer these types of threats. People less likely to try to exercise their civil rights - people used to being bullied by the police. When we get to court, the police officers deny this behavior - arguing that the defendant is making it up to try to get out of doing something wrong. At first, its easy to believe the officer - but after fifty or a hundred of the same type of report, by unrelated defendants, over a period of time, it becomes difficult to discount the stories.

I'm happy to see that the Supreme Court supported individual rights in this case. This holding protects all of us in our encounters with the police. Whether you have something to hide or not, we are all protected by the 4th Amendment of the Constitution against illegal searches and seizures. The whining of the dissent is the echo of the sentiment "don't let them off on a technicality." Over the years, the conservative part of the bench has allowed the police to invade our rights more and more - giving them magic words to utter so they can get around the protections of our rights.

This decision is a victory for the individual and for individual rights. Congratulations to the majority for its courage and willingness to protect us all.

Cheating Justice

I am battling this right now in a local criminal case. We have fought half a dozen battles in front of the judge over information that we need that the prosecution has. Slowly, like an iceberg melting, the prosecution is dripping some of th...e information on us. It is like a strange dance, we know that they know that there if information that is helpful to our case. But they get to decide what we are going to get. The best we are getting from the judge is that if it comes out during the trial that they withheld exculpatory information, he will make a ruling then. To say the least, the prosecution is not intimidated by the court's position and doing whatever they want. My client is facing the at least twenty years of prison time, and they are playing cat and mouse. It is unbelievably frustrating that the system perpetuates the prosecutions behavior. And now we have a new rule to contend with, we have to disclose our impeachment evidence against the accuser and let the court decide if we can present it. So, not only is my client unable to mount a complete defense, the prosecutor gets to attack our defense before we put it on in court. It is painful to watch our rights - yes, our, all of our, rights get dismantled in this way in the name of expedient justice where the ends justify the means.

 

See this article that appeared in the Knoxville News for more information and the frightening results of a national study.

 

http://www.knoxnews.com/decodedc/judges-rarely-take-action-even-when-prosecutors-withhold-evidence-from-defense

War over discovery and exculpatory evidence

 Why is it that prosecutors don't want to turn over evidence? Are they scared that if they do, they are going to lose? When I was a prosecutor, I figured that if I showed you how strong my case was, you would be more likely to take my plea offer. And, if there were weaknesses in my case, I needed to understand and acknowledge them. I had several cases I sent back to the detectives for further investigation.

In the end, the mandate of the prosecutor is to DO JUSTICE.

When I worked for the DA of New York, the mandate was taken seriously. That was a dozen years ago, and I don't know how things are today.

In Tennessee - the mandate seems to be to win at all costs. Cases are brought without sufficient evidence. I get the feeling the standard the prosecutors use for measuring a case has nothing to do with proof beyond a reasonable doubt but whether or not they have enough for the much lower probable cause to get through preliminary hearings and grand juries.

I think the problem is that most criminal cases plea out. So, the prosecutors know that if they can get it past preliminary hearings and grand jury, then the defendant is likely, probably 97 or 98 percent of the time, to plea. Those are pretty good odds for the prosecutor.

Frankly, I blame my fellow defense attorneys and myself. We need to do a better job demanding evidence and defending our cases. We need to attack the case more and be willing to take cases to trial. The more we do that, the more likely we are to accomplish a couple of things.

1. Get better results for our clients;
2. Get weak cases dismissed;
3. Win jury trials;
4. Get better plea offers for our clients;
5. Force the prosecutors to take a close look at their cases from the start (this will happen if we take away the almost guaranteed plea deal from them and make them work for their case).

A wise friend once said that the quality of the prosecution in your town or county is a direct reflection of the quality of the defense bar. (Brent Turvey, criminologist). I believe that to be a true statement.

The more we hold their feet to the fire, the more they will demand from their police officers in the field. There will be fewer weak cases - frivolous you might call them, fewer unjust pleas, the case loads will lighten up, and the real cases will go forward. We will have a more proficient defense bar that is willing to take more cases to trial.

Believe me, in many instances, you will get a better result from 12 of your neighbors in a jury trial than you will ever get from the State. And, if the prosecutor knows you are willing to go that far, he will become much more realistic, much quicker.

Results speak for themselves. Over the last year, I took four criminal cases to trial with not guilty verdicts on all of the charged crimes. Subsequently, I have answered ready on three felony cases, one a first degree murder, one a rape and one a coercion case, all of which have been dismissed by the State prior to trial.

If we do this, if we fight for discovery and exculpatory evidence. If we battle the case all the way through, the quality of our criminal justice system will improve for everyone. Trials get the citizens involved, too. The community will feel it has a stake in the system. This is a good result and empowering for all of us. Believe it or not, it is even a good policy for the prosecutors.

Never say die. Put on your best defense.

Bob V
rlvogel@robertvogellaw.com

A Moment of Reflection

A little over a year ago, I returned to my practice after realizing a career dream. I was privileged to attend the Gerry Spence Trial Lawyers College in Dubois, WY for their three week trial skills course. For two decades, I had been a fan of Gerry's and aspired to be an attorney like him. I had my ups and downs, but did pretty well in court and on appeals overall.

Since coming back from the college, I have changed and so has my practice. All for the better. I take fewer cases now. I do that because I have learned how to work deeper into each case. There is a powerful story in there. The case is about the person and their story. I need to dig in and find it. This takes time. I learned that at TLC.

I learned how to be me. That was the greatest gift. I learned first how to tell my story. And since last year, I've dug in and learned about me. I'm still learning my story, and I'm still writing it.

Today, I celebrated one of the milestones of my story. I married my wife Karen 28 years ago today. And she has stuck with me through this journey. She has loved me when I was unlovable. She has kept me sane when I flirted on the edge of insanity. She has kept my faith when I faltered.

I am the person I am, at least, the good parts, because of the pages in my life that Karen has written. I have learned mercy, compassion and grace from living with her. I am learning to find peace and joy in each day because of her.

I look forward to the pages of our story yet to be written.

Happy Anniversary, Karen - I love you. Bob

FBI crime lab testing evidence in Ja'Naya Thompson's killing

By ROBIN FITZGERALD

rfitzgerald@sunherald.com Twitter: robincrimenewsSeptember 20, 2014 

2014-09-21T05:44:25Z

By ROBIN FITZGERALD Sun_Herald

 

FBI Lab Director Dwight Adams, right, explains trace evidence examination during a tour of the FBI's then-new crime lab in Quantico, Va., in 2003. Evidence is being analyzed there that was collected in the disappearance and killing of 5-year-old Ja'Naya Thompson.                                 

 

GULFPORT -- One of the largest, most comprehensive crime labs in the world is analyzing evidence collected in the disappearance and killing of 5-year-old Ja'Naya Thompson.
It's the FBI Laboratory in Quantico, Va., whose teams have recovered evidence in some of the most high-profile international disasters and performed forensic tests to identify child pornographers, kidnappers and terrorists.
Local police typically use the Mississippi Crime Laboratory or a private crime lab for forensic tests to solve a crime.
So how did the Gulfport Police Department obtain the full resources of the FBI?
Panic gripped neighbors, first responders and strangers July 16 when a search of The Palms apartment complex turned up no sign of Ja'Naya. She had been playing outside the sliding-glass doors of her family's apartment before she disappeared that night.
"All the conventional methods we were using were not finding her," Police Chief Leonard Papania said.
Asking for help
"We were getting concerned if we were moving forward properly. As we were garnering resources to search for her, I reached out to the FBI for their expertise. We were thinking it was going to go long-term."
Agents from the FBI's Gulfport office were on scene the next morning when a search-and-rescue dog, using the scent from a piece of Ja'Naya's clothing, raised suspicions outside a vacant mobile home on Whitney Drive, about 50 yards north of the apartments. A search team alerted some Gulfport firefighters. They found Ja'Naya hanging from two socks tied to a metal bar on a small window above the bathtub. It appeared she had been sexually assaulted.
The girl, who loved to dress up and wear jewelry, died of asphyxiation by strangulation. She was looking forward to starting kindergarten at the school across from her apartment on Klein Road.
Papania said the FBI offered to bring in its evidence-response team unit from the Jackson office, which oversees FBI activity in Mississippi. He accepted the offer.
More than 100 pieces of evidence were collected, according to police testimony in the recent preliminary hearing of Alberto Garcia.
Garcia's arrest
Police arrested Garcia, 29, the day after Ja'Naya's body was found. Police said they were questioning him about her disappearance when he voluntarily admitted he had broken into the mobile home days earlier, saying his fingerprints would be found there. Garcia also lived at The Palms.
Police first arrested Garcia on a burglary charge, but identified him as one of two suspects in the killing. A judge set his bond at $500,000.
A few days later, Garcia asked to speak to a detective, and reportedly gave information only police and the perpetrators would have known. He also told them a neighbor, Julian Gray, came to his apartment that night and told him he'd had an incident with a girl and needed his help, recent testimony revealed.
Police said Garcia confessed to sexually assaulting Ja'Naya and helping hang her.
Police arrested him on a capital murder charge July 23. He is being held with no bond.
Testimony at Garcia's preliminary hearing revealed his DNA and statements to police linked him to her sexual assault and hanging. The testimony offered no explanation as to who took Ja'Naya to the trailer.
Gray a person of interest
Meanwhile, the 31-year-old Gray, also a resident of The Palms, is held on unrelated charges and remains a person of interest.
Two months later, Gray has not been charged in Ja'Naya's death.
Papania said the FBI Laboratory is continuing to process evidence.
Police arrested Gray the night Ja'Naya was found dead. He is held on bonds of $500,000 on charges of rape and sexual battery. Police have said they arrested him on the complaint of a female acquaintance who claims he sexually assaulted her at his apartment.
The lack of a second arrest has drawn criticism from some in a widespread community that united in an outpouring of concern for the child and her family.
However, grand juries often decline to hand down indictments in cases in which tests on crucial evidence have not been completed.
Status of evidence
So where does the processing of evidence stand?
"As a matter of practice, the FBI Laboratory does not publicize information regarding forensic examinations conducted in support of criminal investigations that belong to our law enforcement partners," said FBI Special Agent Ann Todd of the Office of Public Affairs in Quantico.
Todd said the FBI lab "uses cutting-edge science and state-of-the-art technology" and has more than 500 scientific experts and special agents. "The men and women of the FBI Laboratory are dedicated to using the rigors of science … to assist law enforcement and national security investigations worldwide."
Papania said he has no idea how long it will take.
"We all want this to be done and over with," he said. "The quality of the process is what we need to focus on. Our job in law enforcement is to bring it to a conclusion, and when we conclude our investigation, the District Attorney's Office will take over.
"By no means has this investigation concluded."

Read more here: http://www.sunherald.com/2014/09/20/5811723/fbi-crime-lab-testing-evidence.html#storylink=cpy

Silence can be used against you

Tell Police Why You are being quiet!

The California Supreme Court has entered one of the worst rulings I've ever seen, destroying sixty years or more of established civil rights law and gutting the 5th Amendment to the Constitution. No citizen of the United States can be made to testify against himself. If you choose to talk to police, whatever you say can be used against you. This is the mantra of the Miranda warning.

 

However, this Court has said that until you affirmatively evoke your right not to speak, your silence IS speech and can be used against you. According to this decision, a prosecutor can stand up and tell a jury that your silence means you are guilty. Silence equals guilt. Which stems from the logic that an innocent person would tell what happened. Innocent people talk, guilty people claim the 5th. That stereotypical thinking is what is exploited here to convict a person.

 

My experience in dealing with thousands of criminal cases is that it is more likely a guilty person will try to explain away his crime. An innocent person falsely accused often shuts up and gets angry and frustrated. Guilty people often try to talk their way out of it.

 

These are not truths that I would apply as rules of the road, simply observations I've made. The point is that the assumption that the California courts have made does not hold true. Neither the choice to talk to police or to remain silent is an indicia of anything. 

 

The police will often try to manipulate people into talking using the strategy that, if you have nothing to hide you'll tell us what happened, or, only guilty people need lawyers. If the police were really interested in solving the crime, this might not matter. But, the police are interested in arresting the person in front of them. If they're asking you question, you're a suspect. If you're a suspect, they want to arrest you. So, they try to get you talking and hang you with your own words.

Now, they can hang your with your own silence.

Since the ruling requires a suspect to invoke his rights, what happens if the police wait four hours to advise you of your rights, or a day, or two? Does the fact that you have remained silent about the accusations against you mean you are guilty? Can the police create an indicia of guilt by letting you sit there in silence? According to this Court they can.

If asked, my advice to clients is to shut up. That is still my advice. Don't talk to the police. They are not there to help you, they are there to make an arrest. If a prosecutor tries to use that against you, let your lawyer handle it. Fortunately, a California decision has no influence on any other State. Until your state supreme court adopts this decision, the prevailing law remains intact.

The bottom line here is that the facts in this case and the "right outcome" of this case - i.e. the guilt of the defendant, were more important to this court than the preservation of our fundamental rights. For this court, the 5th amendment rights of a citizen were not as important as the conviction of that citizen for this crime. The court is no longer doing justice. It is no longer upholding the law. It is sacrificing a fundamental right of all citizens so this conviction could be maintained. In doing so, it has given the prosecutors in California another, underhanded tool with which to go after people who innocently exercised their right not to talk.

We must be careful not to let this happen anywhere else.

Bob Vogel
rlvogel@robertvogellaw.com
www.robertvogellaw.com
 

 

 

Court: Silence can be used against suspects

AP Photo: Jeff Chiu

In this Nov. 10, 2011, file photo, Justice Marvin Baxter sits on the bench at the California Supreme Court in San Francisco.

3 days ago By PAUL ELIAS of Associated Press

 

SAN FRANCISCO (AP) — The California Supreme Court has ruled that the silence of suspects can be used against them.

Wading into a legally tangled vehicular manslaughter case, a sharply divided high court on Thursday effectively reinstated the felony conviction of a man accused in a 2007 San Francisco Bay Area crash that left an 8-year-old girl dead and her sister and mother injured.
Richard Tom was sentenced to seven years in prison for manslaughter after authorities said he was speeding and slammed into another vehicle at a Redwood City intersection.
Prosecutors repeatedly told jurors during the trial that Tom's failure to ask about the victims immediately after the crash but before police read him his so-called Miranda rights showed his guilt.
Legal analysts said the ruling could affect future cases, allowing prosecutors to exploit a suspect's refusal to talk before invoking 5th Amendment rights against self-incrimination.
"It's a bad and questionable decision," said Dennis Fischer, a longtime criminal appellate lawyer.
Tom's attorney Marc Zilversmit said he is deciding whether to petition the U.S. Supreme Court to take up the issue or renew his arguments in the state court of appeal.
"It's a very dangerous ruling," Zilversmit said. "If you say anything to the police, that can be used against you. Now, if you don't say anything before you are warned of your rights, that too can be used against you."
The state Supreme Court in a 4-3 ruling said Tom needed to explicitly assert his right to remain silent — before he was read his Miranda rights — for the silence to be inadmissible in court.
Tom has been freed on $300,000 bail pending his appeal.
Tom was arrested after his Mercedes sedan plowed into a car driven by Lorraine Wong, who was turning left onto a busy street.
Prosecutors argue that Tom's car was speeding at 67 mph in a 35 mph zone when the collision occurred. He was placed in the back of a police cruiser but was not officially arrested and advised of his rights until later in the day.
Prosecutors said Tom's failure to ask about the Wong family while detained showed his guilt.
Justice Goodwin Liu dissented.
"The court today holds, against common sense expectations, that remaining silent after being placed under arrest is not enough to exercise one's right to remain silent," Liu wrote.
The ACLU filed a friend of the court brief supporting Tom's appeal.
Fischer and others say the ruling might not be the last word on the issue.
The high court ordered the court of appeal to reconsider the case, meaning it could return to the California Supreme Court.
The high court is undergoing a dramatic transition and it's possible that two new justices would reconsider the ruling.
Baxter, a Republican appointee and reliable conservative vote on the court, is retiring in January.
Meanwhile, Gov. Jerry Brown recently nominated Stanford University law professor Mariano-Florentino Cuéllar to fill a vacancy.
"This could be the last hurrah for a conservative Supreme Court," appellate lawyer Jon Eisenberg said.