19 October 2006
What a great service you all are providing for those of us stumbling around in detective mysteries resulting in legal battles. Thank you. I believe I have questions for various of your specialties.
1. Disabilities. If a person with an extremely well-trained dog discovered they had a medical condition (heart failure) that required possible calls for aid, regular medication, etc., how difficult would it be to get said dog certified as a helper dog?
2. Estate disposition. If said person dies intestate and has no immediate family, how far is a search made for relatives before the estate is liquidated, and once liquidated, what happens to it?
3. Estate disposition. If said person dies with a will leaving a blanket statement of "all worldly possessions to go to X", will that person have any difficulty in simply taking over the deceased's estate? Should there be an executor named? If they were in business and he is leaving the business to her could she keep it active while the will is being settled? Would any other person (like an ex-wife) be able to make any claims against the estate?
4. Search warrants. If there is reason to suspect a cyber-crime has been committed, let's say embezzlement, can the authorities (police? FB I? FINCen?) get a search warrant for the contents of a computer? If in the act of searching for evidence of said crime, they find evidence of a different crime (say child porn) can they bring additional charges based on that discovery even though they had no reason to suspect that crime when the original warrant was issued?
Thanks to all of you and any who respond to these questions. I hope I haven't gotten myself into plot-hell with setting up these situations!
friendof:
(Disabilities) This is the only one I know a little something about (took a class on it in law school... hopefully I am remembering correctly).
Fortunatly for your story, it's really whatever you want. Not only is each state different, each city can be different if the state is silent on the issue (and I believe most are). A condo association that tries to keep the person from moving in or a store that seeks to block the dog from coming in can't stop a service animal (doesn't even have to be a dog) under the ADA . So what makes an animal a "service" animal? At least one court has said that the city ordinances can require "training" but can't require what form of training and can't require certification. Either way, it's a fairly new area of law... so I say go with whatever you want for your story. (If you want huge conflict over the issue, make the dog a pit bull in a city that's banned pit bulls!) :)
BLAH BLAH LEGAL DISCLAIMER THIS IS NOT LEGAL ADVISE THIS IS JUST SOME GENERAL KNOWLEDGE BLAH BLAH.
wayzgoose:
Thank you. I'll check to see if there are any local ordinances in Seattle. Funny you should mention pit bulls. Maizie, in my story, is a cross between a pit bull and a dachsund. (Don't ask.)
friendof:
Honestly, I would be shocked to hear that Seattle doesn't have an ordinance involving pits and, sadly, pit mixes. If you want the dog to be able to get into places, you may need to change breeds (or have the vet write that it's a "dachsund mix" with no one any the wiser...). The second you mention pit bull, the city's interest in protecting citizens is likely going to outweigh any ADA requirements for reasonable accomodation. Some cities (like Miami) have banned pits completly and that's in people's private homes... allowing a pit bull service animal (even a mix) is even more of a risk to the public. Just something to keep in mind........
saraswati:
I am going to have to respectfully disagree with the previous poster (friendof) who gave info on service animals. This is my area of legal practice, so I might have a little bit more specifc info that may be helpful for you.
Yes, there are specific laws that vary from state to state (I can give you CA law specifically if you need it, but I don't have info on any other state), but the Americans with Disabilities Act (ADA) and case law does explicitly define what a service animal is, and what it must do to qualify as a service animal. So there is actually a very clear answer to your question.
(what friendof may be referring to is that there are no set limits right now on what kind of animals can be considered service animals. People have claimed monkeys and snakes and things like that are service animals, and sometimes it sticks. Also, there is still some vaugeness in what "tasks" a service animal performs for someone who is claiming a mental illness as a disability. But for physical disabilities, the law is pretty clear. )
To be considered a "service animal", the animal must be trained to perform a specific task that relates to the disability. However, here is some more info. Not all medical conditions are "disabilities". In order to be a disability under the ADA, the medical condition must severely limit a daily activity, such as seeing, hearing, moving, walking, showering, etc. So first of all, your character's heart condition must be severe enough that it affects their daily life and keeps them from performing basic life tasks. If the heart condition is so severe that they can't get around without a walker or wheelchair, or that they are prone to severe dizzy spells, fainting, or can't drive. Then it might be a disability. Usually disabilities under the ADA are mobility based (paralysis, wheelchair, cane), sensory-based (blind, deaf), general auto-immune based (HIV, Lupus), nervous system failures, or mental illnesses.
Bottom line, if the heart condition leaves them frail enough to qualify under the ADA, they are going to have some severe limitations in their daily life.
Now under CA law, you don't need to be quite so ill, but that's CA law.
Second, any animals that you want to qualify as service animals must be trained to do specific tasks that alleviate the disability in question. So, for example, seeing eye dogs do tasks assisting with blindness. And hearing dogs alert their owners to sounds (like a doorbell or phone or siren). So I'm having trouble imagining what your character's dog is trained to do? I don'[t think dogs can be trained to call 911 in a heart emergency, or to give medication. If you can give me an example of what the dog is specifically trained to do, and what the person's limiations are, I can tell you if it would legally be considered a service animal or not.
If you want to create a situation with a service animal, is it possible to give your main character a different disability? If it doesn't impact the story. Or, if a heart condition is needed, can the character also have a sight condition? or something else that would require a service animal? I am assuming that for some reason in your story you want an animal with the right to accompany it's owner everywhere it goes. Here is another possibility, your character could be training a seeing eye dog, then it would have the same rights as a regular service animal. All your character would need is some experience as a dog trainer and a license from the state to be an official seeing eye dog trainer.
Also, it is true that under the ADA only seeing eye dogs need to be trained and certified by specific licensed trainers. All other kinds of service animals can be trained by anybody to perform the specific tasks, including the owner themselves. (many deaf people train their own hearing dogs).
Let me know if I can help you solve your quandry.
good luck and I hope that helps
friendof:
I stand corrected... I actually only meant to say what you said above about not having to be certified or specifically trained but you've explained it and said it much better than I! :)
saraswati:
No worries, friendof, we are all on the same team :) Hopefully my response didn't come across as too "territorial". I'm really glad you are here to answer stuff too. thanks!
Aggie80:
2. Estate disposition. If said person dies intestate and has no immediate family, how far is a search made for relatives before the estate is liquidated, and once liquidated, what happens to it?
Many places have a limit of how far they will search, usually within 3 degrees of relation (no laughing inheritors). They are typically not going to look at anyone aoutside the country if it is US. Without an heir, the estate will go to the state.
3. Estate disposition. If said person dies with a will leaving a blanket statement of "all worldly possessions to go to X", will that person have any difficulty in simply taking over the deceased's estate? Should there be an executor named? If they were in business and he is leaving the business to her could she keep it active while the will is being settled? Would any other person (like an ex-wife) be able to make any claims against the estate?
First step is to open the estate with the court. The court will almost always appoint an executor, (there are a few exceptions, but they are for very small estates). If there is a will as you mentioned, they may very well appoint them as executor. The executor will be responsible for maintaining and preserving the value of the estate, including continuing to run businesses. Yes, an ex-wife may be able to make claims against the estate and can surely file against it, success will depend on many factors.
wayzgoose:
I appreciate the estate information. Can the business owner make his employee a joint tenant with right of survivorship without her knowing? Would that circumvent the inheritance problem?
Aggie80:
Can the business owner make his employee a joint tenant with right of survivorship without her knowing?
Creation of a Joint Tenancy can be tricky. Certainly not without her knowing about it. For it to be done, both parties must acquire their interest at the same time, in equal shares. If the owner didn't set up the business as a Joint Tenancy, he can't 'give' half of it away. There are ways around it, but they do require costs for multiple title transfers and filing and taxes, etc. And both parties at that point would be fully responsible for their share of expenses, taxes and liabilities. And it is important to realize that Joint Tenants own real property, i.e., land or cash. Businesses are not held by Joint Tenants, thought the real property associated with a business could be. They could be partners with survivorship rights, but certainly not without knowledge. And the value of the business could get included in the estate.
Would that circumvent the inheritance problem?
Yes. The survivor simply files a copy of the death certificate to obtain a new deed or title.
Analise:
4. Search Warrant--From what I remember in my computer forensics class and my time working for a state attorney general's cyber crime office (and, of course, this is based off of couple-year-old memory and I don't claim to be an expert but thought I might help):
Many judges err on the side of being careful when it comes to computers. Therefore, when writing out a warrant, not only do you need a lawyer and a police officer, you also need someone who understands computers. Not only that, but you have to be careful of what you say you're searching. If you're looking for things that only should be found in say, the My Documents folder, but you search the entire computer, and your warrent says you were only looking in My Documents and you find evidence stashed away in some obscure folder somewhere, that might not be permissible, since you didn't specifically say you were searching the entire computer in the warrent.
Same goes for, if you go to seize the computer and there are disks right next to the computer (or one in the drive), if you only said you were searching the computer, that would mean the hard drive. You would need to have enumerated floppy/flash/cds/etc to be able to search those as well.
And as for the first question: I'm under the impression it would be just like any other search, if there's reason to believe it's a computer crime (ie. a crime committed either against/to a computer or a crime committed with the use of a computer, which embezzlement often is) then, yes. However, it might be difficult to prove that the evidence resides on their home computer (where that evidence of another crime might be) since that would involve work computers. Unless they somehow did it online, or kept a record of the embezzling on their computer (old emails with a confederate, spreadsheets detailing the money info), or perhaps a second set of "books" showing their "real" cash inflow.
Also, when searching computers, you need to keep in mind investigators have to be very careful about how they go about looking for evidence. They don't just crack the computer open and go to town, because even turning the computer on, or looking at a directory listing of files can change information about files that might useful and then the defense attorney could argue there's no way to prove that they weren't tampered with at that point. Instead, you have to use hardware that allows you to make a bit-for-bit copy of all the contents of the harddrive (or better, yet, make two or three, one to work with, one to give the defense, and one to save as backup) that you can search around to your heart's content.
Hope this helps? A little?
1. Disabilities. If a person with an extremely well-trained dog discovered they had a medical condition (heart failure) that required possible calls for aid, regular medication, etc., how difficult would it be to get said dog certified as a helper dog?
2. Estate disposition. If said person dies intestate and has no immediate family, how far is a search made for relatives before the estate is liquidated, and once liquidated, what happens to it?
3. Estate disposition. If said person dies with a will leaving a blanket statement of "all worldly possessions to go to X", will that person have any difficulty in simply taking over the deceased's estate? Should there be an executor named? If they were in business and he is leaving the business to her could she keep it active while the will is being settled? Would any other person (like an ex-wife) be able to make any claims against the estate?
4. Search warrants. If there is reason to suspect a cyber-crime has been committed, let's say embezzlement, can the authorities (police? FB I? FINCen?) get a search warrant for the contents of a computer? If in the act of searching for evidence of said crime, they find evidence of a different crime (say child porn) can they bring additional charges based on that discovery even though they had no reason to suspect that crime when the original warrant was issued?
Thanks to all of you and any who respond to these questions. I hope I haven't gotten myself into plot-hell with setting up these situations!
friendof:
(Disabilities) This is the only one I know a little something about (took a class on it in law school... hopefully I am remembering correctly).
Fortunatly for your story, it's really whatever you want. Not only is each state different, each city can be different if the state is silent on the issue (and I believe most are). A condo association that tries to keep the person from moving in or a store that seeks to block the dog from coming in can't stop a service animal (doesn't even have to be a dog) under the ADA . So what makes an animal a "service" animal? At least one court has said that the city ordinances can require "training" but can't require what form of training and can't require certification. Either way, it's a fairly new area of law... so I say go with whatever you want for your story. (If you want huge conflict over the issue, make the dog a pit bull in a city that's banned pit bulls!) :)
BLAH BLAH LEGAL DISCLAIMER THIS IS NOT LEGAL ADVISE THIS IS JUST SOME GENERAL KNOWLEDGE BLAH BLAH.
wayzgoose:
Thank you. I'll check to see if there are any local ordinances in Seattle. Funny you should mention pit bulls. Maizie, in my story, is a cross between a pit bull and a dachsund. (Don't ask.)
friendof:
Honestly, I would be shocked to hear that Seattle doesn't have an ordinance involving pits and, sadly, pit mixes. If you want the dog to be able to get into places, you may need to change breeds (or have the vet write that it's a "dachsund mix" with no one any the wiser...). The second you mention pit bull, the city's interest in protecting citizens is likely going to outweigh any ADA requirements for reasonable accomodation. Some cities (like Miami) have banned pits completly and that's in people's private homes... allowing a pit bull service animal (even a mix) is even more of a risk to the public. Just something to keep in mind........
saraswati:
I am going to have to respectfully disagree with the previous poster (friendof) who gave info on service animals. This is my area of legal practice, so I might have a little bit more specifc info that may be helpful for you.
Yes, there are specific laws that vary from state to state (I can give you CA law specifically if you need it, but I don't have info on any other state), but the Americans with Disabilities Act (ADA) and case law does explicitly define what a service animal is, and what it must do to qualify as a service animal. So there is actually a very clear answer to your question.
(what friendof may be referring to is that there are no set limits right now on what kind of animals can be considered service animals. People have claimed monkeys and snakes and things like that are service animals, and sometimes it sticks. Also, there is still some vaugeness in what "tasks" a service animal performs for someone who is claiming a mental illness as a disability. But for physical disabilities, the law is pretty clear. )
To be considered a "service animal", the animal must be trained to perform a specific task that relates to the disability. However, here is some more info. Not all medical conditions are "disabilities". In order to be a disability under the ADA, the medical condition must severely limit a daily activity, such as seeing, hearing, moving, walking, showering, etc. So first of all, your character's heart condition must be severe enough that it affects their daily life and keeps them from performing basic life tasks. If the heart condition is so severe that they can't get around without a walker or wheelchair, or that they are prone to severe dizzy spells, fainting, or can't drive. Then it might be a disability. Usually disabilities under the ADA are mobility based (paralysis, wheelchair, cane), sensory-based (blind, deaf), general auto-immune based (HIV, Lupus), nervous system failures, or mental illnesses.
Bottom line, if the heart condition leaves them frail enough to qualify under the ADA, they are going to have some severe limitations in their daily life.
Now under CA law, you don't need to be quite so ill, but that's CA law.
Second, any animals that you want to qualify as service animals must be trained to do specific tasks that alleviate the disability in question. So, for example, seeing eye dogs do tasks assisting with blindness. And hearing dogs alert their owners to sounds (like a doorbell or phone or siren). So I'm having trouble imagining what your character's dog is trained to do? I don'[t think dogs can be trained to call 911 in a heart emergency, or to give medication. If you can give me an example of what the dog is specifically trained to do, and what the person's limiations are, I can tell you if it would legally be considered a service animal or not.
If you want to create a situation with a service animal, is it possible to give your main character a different disability? If it doesn't impact the story. Or, if a heart condition is needed, can the character also have a sight condition? or something else that would require a service animal? I am assuming that for some reason in your story you want an animal with the right to accompany it's owner everywhere it goes. Here is another possibility, your character could be training a seeing eye dog, then it would have the same rights as a regular service animal. All your character would need is some experience as a dog trainer and a license from the state to be an official seeing eye dog trainer.
Also, it is true that under the ADA only seeing eye dogs need to be trained and certified by specific licensed trainers. All other kinds of service animals can be trained by anybody to perform the specific tasks, including the owner themselves. (many deaf people train their own hearing dogs).
Let me know if I can help you solve your quandry.
good luck and I hope that helps
friendof:
I stand corrected... I actually only meant to say what you said above about not having to be certified or specifically trained but you've explained it and said it much better than I! :)
saraswati:
No worries, friendof, we are all on the same team :) Hopefully my response didn't come across as too "territorial". I'm really glad you are here to answer stuff too. thanks!
Aggie80:
2. Estate disposition. If said person dies intestate and has no immediate family, how far is a search made for relatives before the estate is liquidated, and once liquidated, what happens to it?
Many places have a limit of how far they will search, usually within 3 degrees of relation (no laughing inheritors). They are typically not going to look at anyone aoutside the country if it is US. Without an heir, the estate will go to the state.
3. Estate disposition. If said person dies with a will leaving a blanket statement of "all worldly possessions to go to X", will that person have any difficulty in simply taking over the deceased's estate? Should there be an executor named? If they were in business and he is leaving the business to her could she keep it active while the will is being settled? Would any other person (like an ex-wife) be able to make any claims against the estate?
First step is to open the estate with the court. The court will almost always appoint an executor, (there are a few exceptions, but they are for very small estates). If there is a will as you mentioned, they may very well appoint them as executor. The executor will be responsible for maintaining and preserving the value of the estate, including continuing to run businesses. Yes, an ex-wife may be able to make claims against the estate and can surely file against it, success will depend on many factors.
wayzgoose:
I appreciate the estate information. Can the business owner make his employee a joint tenant with right of survivorship without her knowing? Would that circumvent the inheritance problem?
Aggie80:
Can the business owner make his employee a joint tenant with right of survivorship without her knowing?
Creation of a Joint Tenancy can be tricky. Certainly not without her knowing about it. For it to be done, both parties must acquire their interest at the same time, in equal shares. If the owner didn't set up the business as a Joint Tenancy, he can't 'give' half of it away. There are ways around it, but they do require costs for multiple title transfers and filing and taxes, etc. And both parties at that point would be fully responsible for their share of expenses, taxes and liabilities. And it is important to realize that Joint Tenants own real property, i.e., land or cash. Businesses are not held by Joint Tenants, thought the real property associated with a business could be. They could be partners with survivorship rights, but certainly not without knowledge. And the value of the business could get included in the estate.
Would that circumvent the inheritance problem?
Yes. The survivor simply files a copy of the death certificate to obtain a new deed or title.
Analise:
4. Search Warrant--From what I remember in my computer forensics class and my time working for a state attorney general's cyber crime office (and, of course, this is based off of couple-year-old memory and I don't claim to be an expert but thought I might help):
Many judges err on the side of being careful when it comes to computers. Therefore, when writing out a warrant, not only do you need a lawyer and a police officer, you also need someone who understands computers. Not only that, but you have to be careful of what you say you're searching. If you're looking for things that only should be found in say, the My Documents folder, but you search the entire computer, and your warrent says you were only looking in My Documents and you find evidence stashed away in some obscure folder somewhere, that might not be permissible, since you didn't specifically say you were searching the entire computer in the warrent.
Same goes for, if you go to seize the computer and there are disks right next to the computer (or one in the drive), if you only said you were searching the computer, that would mean the hard drive. You would need to have enumerated floppy/flash/cds/etc to be able to search those as well.
And as for the first question: I'm under the impression it would be just like any other search, if there's reason to believe it's a computer crime (ie. a crime committed either against/to a computer or a crime committed with the use of a computer, which embezzlement often is) then, yes. However, it might be difficult to prove that the evidence resides on their home computer (where that evidence of another crime might be) since that would involve work computers. Unless they somehow did it online, or kept a record of the embezzling on their computer (old emails with a confederate, spreadsheets detailing the money info), or perhaps a second set of "books" showing their "real" cash inflow.
Also, when searching computers, you need to keep in mind investigators have to be very careful about how they go about looking for evidence. They don't just crack the computer open and go to town, because even turning the computer on, or looking at a directory listing of files can change information about files that might useful and then the defense attorney could argue there's no way to prove that they weren't tampered with at that point. Instead, you have to use hardware that allows you to make a bit-for-bit copy of all the contents of the harddrive (or better, yet, make two or three, one to work with, one to give the defense, and one to save as backup) that you can search around to your heart's content.
Hope this helps? A little?
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