Tuesday, January 31, 2012


             In a landmark decision in United States v. Jones, the Supreme Court looked at whether police can attach a GPS unit to a suspect’s car without a warrant. Antoine Jones was a nightclub owner in Washington D.C. and was suspected of drug trafficking. The FBI and the D.C. Police investigation included tapping the phone of Mr. Brown, and monitoring his nightclub. This investigation led to the authorities obtaining a warrant to place a GPS unit on Mr. Brown’s car, which was registered to his wife. However, the warrant required the GPS unit to be attached within ten days. It wasn’t attached until the 11th day, making it a warrantless attachment. The authorities then used this GPS unit to gather data over the course of the next four weeks. The information they obtained through the GPS was integral to indicting and convicting Mr. Brown. Mr. Brown then appealed his decision, claiming a violation of his constitutional rights.
            The fourth amendment states, in relevant part, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” In order to tell when and where a violation has occurred, the Supreme Court has adopted the “reasonable expectation of privacy test”, which was explained in a previous case written by former Justice Harlan. He stated that a violation occurs when government officers violate a person’s “reasonable expectation of privacy.” A reasonable expectation of privacy in a thing is normally understood as someone’s home, or private space. A car on public street presented a difficult question. This gave the District Court and Appeals Courts great pause, as they had difficulty finding that anyone had a reasonable expectation of privacy while driving on public roads. However, the Supreme Court disagreed, finding that a person has a reasonable expectation of privacy in their vehicle. Considering the way we can sometimes live out of our cars, it seems the Supreme Court reflected a common view of the privacy we expect while in our cars.
In this case, the Court found that Mr. Brown did have a reasonable expectation of privacy in his vehicle. Of great concern to the Court was that the Government was essentially arguing that they could place a GPS unit on any car they want. In fact, the Government told the Supreme Court justices during oral argument that they could attach GPS units to their car without a warrant and track their comings and goings.
            In striking down the conviction, the Court unanimously agreed that such conduct by the Government was a violation of Mr. Brown’s constitutional rights. How would you feel if the Government attached a GPS unit without a warrant to your car? Let us know in the comments section below. To read the full decision, click here: (http://www.supremecourt.gov/opinions/11pdf/10-1259.pdf

Tuesday, January 24, 2012

Can you get divorced without ever being married?

            In a recent case decided on January 13, 2012, the New Hampshire Supreme Court decided that very question. The case is titled In the Matter of Mallet v. Mallet, and it involved a couple that had lived together for almost fourteen years. This was no ordinary unwed couple, as they had children together, repeatedly told others they were married, wore wedding rings, owned property together, shared the same last name, and even told people they had participated in a wedding ceremony.
The mother, Tami, petitioned for divorce and argued that they were married by “estoppel”. Estoppel is a legal concept that involves three basic factors: (1) a knowingly false representation or concealment of material facts; (2) a recipient who was ignorant of the truth and who was intentionally induced to rely on the misrepresentation; and (3) a resultant injury. The Court decided not to address whether New Hampshire would even recognize a marriage by estoppel, because the mother never believed that the parties were married. Thus, it failed prong two of the estoppel test, as Ms. Mattel was never ignorant of the truth that they had never been married.  However, there still remained the question as to whether it was proper for the Conway Family Division to divide the parties’ assets, debts and property when they were never married.
Judge Albee, the parties’ Judge at the Conway Family Division, had decided that such claims were within the jurisdiction of the Family Court. The Supreme Court disagreed. At issue was the language of New Hampshire statute RSA 490-D:2, which governs the jurisdiction of the Family Divisions of New Hampshire. Typically, the family division does not have jurisdiction over division of assets or debts between parties that are unmarried. That jurisdiction typically lies with the Court of Equity, which are our Superior Courts. Judge Albee felt it was inequitable to have the Mallet’s property division case in the superior court, and the determination of the parties’ parenting rights and responsibilities to be determined in the family court. The Supreme Court found this decision was ignoring what they called ‘the plain language of [the statute].’ The Supreme Court held that the Family Division’s jurisdiction is only acceptable in division of property cases if it is brought through a divorce from a legally recognized marriage. Without the legally recognized marriage in the Mallet’s case, the Court found that the Conway Family Division incorrectly assumed jurisdiction. This meant that the Mallets would have to divide their property and debts through the Superior Court, while also needing to continue the parenting case in the family court.
To divide unwed property, assets, and debts, unwed persons must file a petition to partition, which also has its own statute (RSA 457-C). Here at Parnell & McKay, we have taken on a number of unwed cases and had to pursue each aspect in both courts. Is this a fair ruling by the Supreme Court given the complaints of judicial waste in New Hampshire? Please comment below and let us know how you feel about this ruling. To read the ruling yourself, click here: (http://www.courts.state.nh.us/supreme/opinions/2012/2012008mallett.pdf). 

Wednesday, January 11, 2012

Introduction to Parnell & McKay Law Blog

With the launching of our new website, Parnell & McKay is happy to announce we will be instituting a new law blog. The blog will focus on developments of the law in New Hampshire and Massachusetts, and will also touch on new law handed down by the U.S. Supreme Court. Our blog will address other issues, like the practical approach to law, and how to deal with common issues faced in even the smallest of cases. Our blog will also address issues facing the administration of our Court systems, and how to navigate them as our Courts go through major structural changes. Please check in daily to see what is going in with the state of law in New Hampshire.