Category Archives: Criminal Defense

Law Enforcement Cannot Search Cell Phones Without Search Warrant

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In the case of Riley vs. California, Number 130132, decided by the U.S. Supreme Court on June 25, 2014, a unanimous Court held that the police cannot search or access information on a cell phone even though it is incident to an arrest (in this case it was for a weapons charge), except when it involves the threat of a terrorist attack or specific danger of a case such as child abduction.

What can be described as a landmark decision and may prove to be historic precedent in holding the right to privacy guaranteed by the Fourth Amendment of the Constitution outweighs the need and convenience of police by now requiring they get a search warrant, it will certainly have a huge impact on the procedures and protocols of all law enforcement agencies and departments.

Prior courts were split on ruling in favor or against the police being allowed to search a suspect to prevent any evidence from being destroyed and in order to determine if there were any concealed weapons for their protection and that of others. Those in favor of such invasive searches considered them no different than perhaps looking at the contents of an address book discovered during a pat down and/or a search.

On the other hand, proponents of the right to privacy focused on the unparalleled amount of data stored in and comprising the contents of cell phones, in the most part containing nearly everything a person uses and/or needs in his/her daily life, whether text messages; emails; voice mail; videos; photos; mobile apps; archives of web browsing; GPS and the inherent history of locations where a person has been or wants to go that is contained therein; bank accounts and the contents of deposits and debits; as well as charge account purchases, etc. Nothing comes even close except a tablet, laptop and/or desktop computer, and these often do not contain the extent of data and information as customarily held in smart phones commonly sold as Droids and iPhones to the public and now used by the vast majority of society.

Should law Enforcement Be Permitted to Stop and Search on the Basis of an Anonymous Tip of Reckless Driving?

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In the U.S. Supreme Court case of PRADO NAVARETTE et al. v. CALIFORNIA, 12-9490 (April 22, 2014), the Court held the Fourth Amendment to the U.S. Constitution was not violated and, therefore, the traffic stop by a CHP law enforcement in which the officer searched the bed of a pickup truck and found about thirty pounds of marijuana was lawful since he had a reasonable suspicion of criminality, smelling marijuana and having a belief the driver was intoxicated.as a result of an anonymous tip given by a 911 caller.

The Dissenting opinion in this case captured the essence of the issue by writing a compelling summary stating all of us are at risk of losing our freedom of movement by an anonymous telephone tip such as this one regarding a reckless driver, whether true or false. Further, other opponents of these types of searches argue law enforcement should not be able to stop and search the public on an en masse basis. Criminal and constitutional lawyers maintain this Supreme Court opinion constitutes a further loss of our freedom to be secure from government intrusion.

Boston Bombing – A Fortuitous Event?

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On the anniversary of the Boston Bombing, April 15, 2013 in which three innocent victims were killed and nearly 300 others were injured, many are asking whether this was a fortuitous event, or calculated killings by terrorists using weapons of mass destruction. Even more compelling is the surfacing of information that one of the bombers has been linked to a triple murder in 2011 in which three individuals had their throats sliced. These insights raise a question as to whether the bombings last year could have been prevented had even only one of the radical extremists been arrested and convicted for the slayings in 2011.

Some commentators contend the government lacks the tools to prevent such horrific crimes to maintain the safety of our citizens. Others believe it may be politics and a lack of communication between agencies; they remind us of the 9/11 deaths they claim may have been prevented had the CIA and the FBI shared data bases and the substance of their respective investigations. The sad reality is that religious fanatics are rapidly increasing all over the world, and many in society are afraid to criticize under the veil of freedom of religion. Regardless how small in number they may be the fact remains the murders that have been committed have changed the way far too many people all over the world now have to live. Few will take issue with the fact we need to do more for the family members of those killed, other survivors and first responders, and to pay tribute to each and every one of them.No one disputes that we need to put a stop to senseless carnage.

Law Enforcement Can Search a Shared Residence Even When a Co-Tenant Objects

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In the recent case of FERNANDEZ v. CALIFORNIA, 12-7822 (February 25, 2014) the U.S. Supreme Court held the Fourth Amendment to the U.S. Constitution was not violated and, therefore, law enforcement can make a warrantless search of a shared residence when a co-tenant provides consent even though the other co-tenant shortly before refused to allow a search.

The general rule as to searches of a residence is that any occupant may provide consent to a search of the premises. Also, searches are considered reasonable and, therefore, deemed permissible without a warrant when the consent comes from the sole occupant of the premises However, when an inhabitant is physically present and refuses to consent to a search, that refusal is deemed legally dispositive, regardless of the consent of a fellow occupant.

Here, the U.S. Supreme Court created an exception and distinguished earlier case law that held the police cannot use any evidence seized as a result of a lawful arrest that takes place when there is a warrantless search performed immediately after a co-tenant refuses to allow a search, even though a co-tenant consents, relying upon the facts in the within case that the objection was made by an occupant that was no longer on the premises.

Some commentators have expressed outrage at the opinion as it would mean law enforcement can only initiate a consensual search if an objecting co-tenant is not standing at the door declaring the police cannot come inside and should stay out. Proponents in favor of the current opinion state the distinction in the current Supreme Court holding is the fact the objecting co-tenant was not present at the exact time a co-tenant gave consent. Nonetheless, defense attorneys would argue these distinctions are illusory since it would mean the police could come back a few minutes after they were told they could not search the premises and do so without a warrant as long as another occupant gave consent. They further contend this ruling makes it easier for law enforcement to search a residence without a search warrant when there are simple procedures for them to first obtain a search warrant. Lastly, those who object to the Court ruling believe it is a further example of the erosion of our civil liberties and right to be safe and secure in our homes without government intervention &/or intrusion.

Update on the Right to Carry a Concealed Weapon

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In the recent case of Edward Peruta vs. County of San Diego, 10-56971, (February, 2014), the U.S. 9th Circuit Court of Appeals held a private citizen may carry a firearm in public for self-defense pursuant to the Second Amendment of the U.S. Constitution.  

 As a general rule, one previously could not carry a concealed weapon in California unless an application was first submitted to the County Sheriff’s Department and the right to do so was granted. One had to show good moral character and establish good cause after completion of a gun training class. In San Diego County, however, good cause has been strictly construed. In fact, establishing that one is concerned about their own personal safety would not suffice. The Sheriff has required one to prove a sufficiently pressing need for self-protection different than the mainstream population.  In order to obtain a concealed carry weapon permit (CCW) in San Diego, one heretofore had to prove a unique risk of harm

 The 9th Circuit Court of Appeals concluded the right to bear arms within the Second Amendment affords one the right to carry a concealed weapon outside of their home for self-defense. In doing so, the Court determined the interpretation of good cause by the Sheriff in San Diego County infringed that right. This is a significant victory for gun owners. Nonetheless, the current policy and procedures will, likely not change due to an appeal to the U.S. Supreme Court that will no doubt be filed by officials of San Diego County.

Senate Committee Approves Eliminating and Reducing Certain Criminal Sentences

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On January 30, 2014, the Senate Judiciary Committee approved a bill that would abolish mandatory minimum sentences for drug offenders who do not have a prior criminal history, as well as reducing by 50% mandatory minimum sentences for specified nonviolent drug offenses. The proposed law among other things eliminates mandatory minimum sentences if there is a finding by the Judge that the defendant does not have any previous conviction for crimes involving a firearm, violence, terrorism, a sex offense, racketeering or conspiracy involving illegal drugs. It would also reduce mandatory minimum sentences from 20 to 10 years, from 10 to five years, and from five to two years. There would be no change lowering the maximum sentence.

Opponents believe this law could result in prosecutors being unable to curtail gangs and drug organizations (drug cartels, etc.). Moreover, it is argued that there are very few criminals in federal prison for only simple drug possession, and the rest are mainly drug dealers that are the subject of the bill.

Proponents site the overcrowding and excessive costs of our Federal prisons, the latter estimate being as much as $3 billion over 10 years. They also claim the current laws do not sufficiently distinguish career criminals from low level offenders, and further that nonviolent drug offenses only would be the subject of the new law if it is passed by the full Senate, and goes through the rest of the process in which new laws are made.

Did San Diego Sheriffs Use Excessive Force When They Killed a Suicidal Suspect?

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On December 2, 2013, the 9th Circuit Court of Appeals in the case of CHELSEY HAYES V. COUNTY OF SAN DIEGO, Case #09-55644 , heard this civil rights Complaint brought under the Federal statute 42 U.S.C. § 1983 and California law wherein a minor daughter alleged violations of her 14th and 4th Amendment rights and her deceased father’s 4th Amendment rights when San Diego County Sheriff’s deputies acted negligently in shooting and killing her father who allegedly was suicidal and wielding a knife during a response to a domestic violence call.

 In the underlying case, the Court said there was no evidence the sheriff’s fired their guns for any other purpose than self-defense and, therefore affirmed the District Court’s Decision by declaring there was no violation of plaintiff’s rights under the 14th Amendment. On the other hand, the Court reversed the lower Court after it determined a jury could conclude the use of deadly force by the sheriffs was not objectively reasonable and that under California law supported a basis for a wrongful death claim.

A compelling argument was made on behalf of Hayes that the sheriffs could have avoided the incident by obtaining more information about the suspect or requesting a psychiatric emergency response team (“PERT”) when the first deputy responded to a domestic violence call at a neighbor’s house and learned there had been no physical altercation, and before the second deputy arrived and they both entered the home. At that point it became a matter of whether the officers used excessive force.

The above reported Decision can be found at the following link: https://cdn.ca9.uscourts.gov/datastore/opinions/2013/12/02/09-55644.pdf

 

Be Safe and Vigilant During This Holiday

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This is the time of the year when there are many holidays and we will be celebrating, most often with family and friends. 

However, the period of time between Thanksgiving and the New Year can also be the most dangerous days and nights of the year, whether on the neighborhood streets &/or highways.

Unfortunately, we all seem to have more stress from our work, family and societal pressures. Many individuals are tempted to have an alcoholic drink by invitations to lunch or dinner, to parties, and to holiday gatherings that when accepted can at times lead to impaired judgment. It can also be a stressful time due to the continuing and escalating expenses of living; our limited finances; as well as the expectations we impose on ourselves, and others impose on us (even if only because of our perception). Lastly, we are faced with the days getting darker much sooner in the fall and winter, which factor can also increase the risk of accidents.

Given all of the above, during each holiday season we want to be mindful of the safety of our family and loved ones, ourselves and countless others and, therefore, to be extra vigilant when we go and leave places and are on the road. 

What Evidence is Required to Establish Aiding and Abetting a Crime?

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On November 12, 2013, the U.S. Supreme Court in the case of Rosemond v. United States, #12-895, on Petition for a Writ of Certiorari to the U.S. Court of Appeals for the Tenth Circuit, heard oral arguments.

The underlying case involved the issue of whether the jury instructions were adequate and the offense of aiding and abetting the use of a firearm during a drug trafficking offense can be established by the mere fact an individual knew (he had foreknowledge) the principal offender had a firearm or there must be proof that the individual acted with actual intent to encourage &/or enable the use of the weapon by the accomplice and, therefore, there was actual intent to further the crime in question. The various U.S. Circuit Courts of Appeal have been divided on interpreting the law, although in California the Ninth Circuit requires purposeful intent.

This is a fundamental issue that has been raised in countless situations; for example, the driver of a vehicle (wheelman) &/or a passenger in a car is aware an accomplice is carrying a weapon during a bank robbery. Criminal defense lawyers have maintained that knowledge is not intent, and this individual needs to intend the gun be used by the accomplice. The government has argued in these cases that if one participates in a crime knowing his accomplice has a gun then that constitutes intent to facilitate; they maintain it is irrelevant if the person wants his accomplice to use it or not.  

Besides the disparity in standards of proof in the various circuit courts, the significance in the case at hand goes to the huge sentence enhancement imposed upon the defendant, namely 14 years instead of 5 years as a result of the disparity in the particular and minority tenth circuit.

The official transcript of the oral argument in the Rosemond case can be viewed at

https://www.supremecourt.gov/oral_arguments/argument_transcripts/12-895_8m59.pdf

Undercover Law Enforcement Operations

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On October 23, 2013, the 9th Circuit Court of Appeals in the case of UNITED STATES vs. BLACK, #11-10036, held a reverse sting operation by the government was not so outrageous and shocking to be barred by elementary principles of due process and fairness and, therefore, affirmed the U.S. District Court conviction of multiple defendants.

In the underlying case, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) used a confidential informant (CI) to obtain potential suspects to engage in a pre-planned robbery at a staged and fictitious residence as part of an ongoing sting operation. Thereafter, under the pretense of a robbery several individuals were arrested after being enticed to go to the fake stash house (a phrase used to refer to a house where weapons and drugs are hidden). One of the individuals, Cordae Black, was charged with, a jury found him guilty and he was convicted of using a loaded firearm as part of a drug trafficking offense along with conspiracy to possess cocaine with the intent to distribute. The 9th Circuit Court found the conduct of the government to be reasonable and affirmed the lower court ruling.

What is seriously problematic is the effort by the government to employ undercover operations to seduce and entice through deceit and persuasion potential suspects when there is enough criminal activity to stop through the use of clearly orthodox and universally accepted methodologies. Criminal defense attorneys often argue that law enforcement should not be permitted to induce others to engage in illegal conduct that is based upon a mere suspicion of prior criminal activity. Against this argument are court cases that have allowed law enforcement to use undercover investigations without suspicion to believe a person has already engaged in criminal activity at the time the police afford a suspect an opportunity to commit a related offense. Before it is prohibited, they maintain there must be an undue amount of coercion, threats and/or inducements made to another to break the law. It is still up to the defendant to prove he was not predisposed to commit the crime in question.

The role of defense counsel in this and other cases is to articulate and distinguish the precise facts in order to establish a truly compelling legal argument. As such, each case will rest on the exact facts and individual circumstances, and why the art of persuasion is a primary tool of a winning lawyer.

The above reported Decision can be found at the following link: https://cdn.ca9.uscourts.gov/datastore/opinions/2013/10/23/11-10036.pdf

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