November 30, 2007

DUI DEFENSE ATTORNEY NEWS: DUI DEFENDANT FOUND NOT GUILTY IN DUI HOMICIDE; AMBIEN TO BLAME

TEWKSBURY, Mass. -- A judge finds an Andover attorney Ki Yong O not guilty of motor vehicle homicide in an accident that happened last year in Tewksbury.

The 36-year-old struck and killed Anthony Raucci while on the prescription sleep medication Ambien.

The judge in the case said that since O did not know the side effects of the drug, he could not be found guilty.

The accident happened while Raucci was changing a tire in the breakdown lane on I-93.

Raucci's wife and 7-year-old son were in the car at the time and watched the whole scene unfold.

O was also found not guilty on charges of leaving the scene of an accident with property damage.


Continue reading "DUI DEFENSE ATTORNEY NEWS: DUI DEFENDANT FOUND NOT GUILTY IN DUI HOMICIDE; AMBIEN TO BLAME" »

November 30, 2007

CALIFORNIA DUI ATTORNEYS BEWARE: CLIENTS WHO MIX ALCOHOL WITH RED BULL CAN DRIVE IMPAIRED AND NOT EVEN KNOW IT

California Dui Lawyers: Watch out what you mix over the holidays. Watch what your clients drink. A new study shows that people who mix alcohol and Red Bull at bars can drive drunk and not even know it.

"...The study shows that people double their risk of being hurt, injured, requiring medical attention, driving with an intoxicated driver, being taken advantage of sexually or taking advantage of another sexually. - "Only the symptoms of drunkenness are reduced but not the drunkenness. They can't tell if they're drunk," said Mary Claire O'Brien, lead researcher for the study."

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November 29, 2007

CALIFORNIA DUI DEFENSE NEWS: AUSTIN POLICE OFFICER TASES DRIVER ON THANKSGIVING

Watch this Austin police officer attack an black driver with a taser on Thanksgiving last year. I hope he got sued.

This is a prime example of why we need videos in police cars.

November 29, 2007

NINTH CIRCUIT SAYS DEFENDANT WHO ABANDONED COTTAGE LOST EXPECTATION OF PRIVACY IN HIS FORGOTTEN BACKPACK

"Knepper claims that the warrantless search of the bedroom where his backpack was recovered was illegal. The district court found that Knepper had abandoned the cottage and thus lacked an expectation of privacy in his former bedroom." That finding is supported by the evidence.

United States v. Knepper, 2007 U.S. App. LEXIS 28064 (9th Cir. November 29, 2007).


November 29, 2007

SNITCH'S VOUCHING NOT SO BAD, SAYS NINTH CIRCUIT COURT OF APPEAL

Vouching is always bad. It is particularly bad when a snitch tries to gain credibility by vouching that the prosecutor would rip up his plea agreement up if he lied. Right. Like all prosecutors are honest, and they never play to win, right? Wrong. (See my post on this blog regarding Dirty Tricks in the Crime Lab in San Diego and Prosecutorial Misconduct in San Diego).

The Ninth Circuit agreed that vouching is bad. But although it finds such bolstering here, it ultimately holds that such vouching is harmless. Right.

Still, this is an interesting and useful opinion. The Ninth Circuit unequivocally states that the usual questions of a cooperating witness about why they have to tell the truth (i.e. "because I promised and if I lie, the AUSA will tear up the plea and I'll do more time") is vouching and impermissible.

But the Ninth Circuit then goes on to say that this mild form was cured by the court's curative instructions about cooperating witnesses and the overwhelming guilt.

The overwhelming guilt (i.e. lack of prejudice) also plays into the excusing the more serious form of vouching that occurred when the government bolstered its wiretap evidence by eliciting testimony about how DOJ and the courts had to approve such an application. This gave the impression that the defendant was guilty as determined by the agency and court. Again, this is excused only because of the overwhelming evidence.

Question: Did either the District Court or the Ninth Circuit send this prosecutor who engaged in both the mild and muy caliente forms vouching off to the state bar so that he wouldn't try to get away with it again?

U.S. v. Brooks, No. 05-30261 (11-29-07).

November 28, 2007

PRETRIAL ELECTRONIC MONITORING DOES NOT VIOLATE THE FOURTH AMENDMENT SAY CALIFORNIA FEDERAL COURT

In the instant case, the sole condition of electronic monitoring does not implicate the Fourth Amendment. It does not violate a reasonable expectation of privacy under the Fourth Amendment.

Electronic monitoring simply alerts law enforcement officials when Ms. Gardner has traveled 100-300 feet away from her home in violation of her curfew restriction. It does not reveal where she is within the home. The system functions as a virtual monitor standing watch outside of Ms. Gardner's home to ensure she complies with her curfew.

Thus, electronic monitoring itself does not invade Ms. Gardner's reasonable expectation of privacy since the system monitors only what would be readily observable to the public eye. See United States v. Knotts, 460 U.S. 276, 281-82 (1983) (concluding that no reasonable expectation of privacy exists where a person travels in public); Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring). Cf. United States v. McIver, 186 F.3d 1119, 1126 (9th Cir. 1999) ("[T]here is no reasonable expectation of privacy in the exterior of a car because the exterior of a car, of course, is thrust into the public eye, and thus to examine it does not constitute a search." (quoting New York v. Class, 475 U.S. 106 (1986))).

Nor does electronic monitoring implicate any identifiable common law right to privacy and thus a fortiori does not establish a liberty interest under Paul. The common law tort of intrusion upon seclusion requires that a plaintiff show an intentional intrusion into the solitude or seclusion of another or his private affairs or concerns that is highly offensive to a reasonable person. Restatement (Second) Torts § 652B (1977). Here, similar to the Fourth Amendment analysis, electronic monitoring would not trigger liability since it only provides information that is readily gleaned by the public eye. See id. cmt. c ("[T]here is no liability ... for observing [the plaintiff] or even taking his photograph while he is walking on the public highway, since he is not then in seclusion, and his appearance is public and open to the public eye.").

United States v. Gardner, 2007 U.S. Dist. LEXIS 87843 (N.D. Cal. November 28, 2007):

November 28, 2007

FORCED DNA TESTING OF NON-VIOLENT DRUG CONVICT HELD CONSTITUTIONAL

The Ninth Circuit here holds that the amendment that allows DNA collection from all felons on supervised release, even those with nonviolent offenses, passes constitutional muster.

The Ninth Circuit looks to the need to monitor the supervisees, combat recidivism, and the diminished expectation of privacy. Mainly though, according to B. Fletcher in dissent, the Ninth Circuit permits it with a "shrug of inevitability."

What Betty? Throw in the towel because you think it's invitable?

Fletcher worries that DNA collection does invade privacy and the breach serves no overriding government purpose given that the defendant here is nonviolent (drug offense) and the record does not support such a need.

But... what the heck.

U.S. v. Kriesel, No. 06-30110 (11-29-07).

November 28, 2007

DEFENDANT'S JAILHOUSE ADMISSION OF GUILT WAS NOT COERCED

Statements made in a jail sponsored therapy session were not involuntary nor were part of a confidentiality agreement. The petitioner here was a member of a group therapy session where, in response to comments directed at him by other inmate participants, he made statements to the supervising treating doctor about how "he didn't mean to kill" the young victim.

This is one of those clients you wish you could give the "Foot in Mouth" award to. Go directly to jail, do not pass "go."

The Ninth Circuit affirmed the district court's denial of relief on this ground (the matter was a remand for this purpose).

Beaty v. Schriro, No. 05-99013 (11-28-07).

November 27, 2007

PLANTING A GPS TRANSMITTER ON PLAINTIFF'S CAR WAS NOT A FOURTH AMENDMENT VIOLATION SAYS NEW YORK FEDERAL COURT

Planting GPS transmitter on plaintiff's car was not a Fourth Amendment violation
Plaintiff's car was suspected of being at the scene of several burglaries in 2002, and the police decided, after consultation with supervisors, to plant a GPS with a cellphone transmitter on the car. Plaintiff's Fourth Amendment claim failed under Knotts. Morton v. Nassau County Police Dep't, 2007 U.S. Dist. LEXIS 87559 (E.D. N.Y. November 27, 2007):

"A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another." United States v. Knotts, 460 U.S. 276, 281 (1983). The use of the GPS Device did not permit the discovery of any information that could not have obtained by following an automobile traveling on public roads, either physically or through visual surveillance (e.g. through the use of cameras or from a helicopter), conduct that neither requires a warrant nor implicates Fourth Amendment rights. "Nothing in the Fourth Amendment prohibit[s] the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afford[s] them." Id. at 282.

In Knotts, law enforcement officials placed a tracking device, or "beeper," inside a barrel of chloroform which was sold to an individual suspected of manufacturing illegal drugs. After the suspect loaded the barrel containing the beeper into his vehicle, the police were able to track his movements. The Court in Knotts held that the law enforcement officials' use of the beeper did not violate the suspect's Fourth Amendment rights, because there is no reasonable expectation of privacy in the movements of an automobile on public roadways, and that the placement of the device did not constitute an unreasonable seizure. Id. Accord United States v. Garcia, 474 F.3d 994, 996 (7th Cir. 2007); United States v. Gbemisola, 225 F.3d 753, 758-759 (D.C. Cir. 2000); ... Alexandre v. N.Y. City Taxi & Limousine Comm'n, 2007 U.S. Dist. LEXIS 73642 (S.D.N.Y. September 28, 2007); ....

Plaintiff attempts to distinguish the instant case from Knotts on the basis that the beeper in Knotts was not actually attached to the suspect's car, but rather loaded by the suspect into his own car, whereas here, the GPS Device was attached to Plaintiff's car by the Defendants. This minor distinction is not sufficient to remove the instant case from the ambit of Knotts.

Thus, the use of the GPS Device was not an unreasonable search or seizure in violation of the Fourth Amendment, and Plaintiff's claims pursuant to the Fourth Amendment are dismissed.


November 27, 2007

CALIFORNIA DRUNK DRIVING-PERMISSIVE INFERENCE INSTRUCTION-CONVICTION REVERSED

Even though a court may instruct with CALJIC 12.61.1 which allows the jury to infer that a defendant had a BAC of at least .08% if the test administered within three hours of the stop reveals BAC of .08 or more even if evidence is conflicting... because it only establishes a permissive inference, here there was no rational connection between proved fact and fact to be inferred to justify instruction.

Prejudicial error requires reversal of .08 conviction.

Both prosecution and defense experts opined that defendant's BAC at the time of driving was between .068 to .095 (prosecution) and .06 (defense)/ Therefore, there did not exist proof beyond a reasonable doubt (the requirement when permissive inference is sole evidence used to convict) because the PAS and intoxilyzer taken together indicated that defendant's BAC was rising. "This circumstance is a classic example of the well-recognized defense in DUI cases known as the 'rising blood-alcohol' defense. (Helmandollar v. Department of Motor Vehicles (1992) 7 Cal.App.4th 52, 55; Taylor, California Drunk Driving Defense (3d ed. 2001) Forensic Chemist: Blood-Alcohol, § 11.1.1, pp. 610-611.)

People v. Beltran (C.A. 1st, 11/27/07, A116944) 07 C.D.O.S. 13484

November 27, 2007

NEW YORK JUDGE BOUNCED FROM BENCH AFTER 'INEXPLICABLE MADNESS'; BOOKED COURTROOM AFTER CELL PHONE RANG

NIAGRA FALLS, N.Y — A judge who jailed 46 people who were in his courtroom when a cell phone call interrupted proceedings was removed from the bench Tuesday by a state commission.

Niagara Falls City Court Judge Robert Restaino "snapped" and "engaged in what can only be described as two hours of inexplicable madness" during the March 2005 session, Raoul Felder, chairman of the state Commission on Judicial Conduct, wrote in the decision to remove Restaino from the $113,900-per-year post.

A phone rang while Restaino was hearing the cases of domestic violence offenders who had been ordered to appear weekly to update the judge on the progress of their counseling. A sign in the courthouse warns that cell phones and pagers must be turned off.

"Everyone is going to jail," Restaino said. "Every single person is going to jail in this courtroom unless I get that instrument now. If anybody believes I'm kidding, ask some of the folks that have been here for a while. You are all going."

When no one came forward, Restaino ordered the group into custody, and they were taken to jail, where they were searched and packed into crowded cells. Fourteen people who could not post bail were shackled and bused to another jail.

Restaino ordered them released later that afternoon.

Restaino told the state panel he had been under stress in his personal life.

His attorney, Terrence Connors, said Restaino would appeal.

Um, say what? I think what goes 'round should come 'round. Let's toss this nut in the pokey for a day.

November 26, 2007

SAN DIEGO DUI FATALITIES UP IN 2007

San Diego DUI fatalities caused by suspected drivers reportedly under the influence of alcohol on county roads over the Thanksgiving weekend increased in 2007, according to California Highway Patrol statistics.

Meanwhile, county arrests on suspicion of drunken driving decreased, authorities said.

November 26, 2007

SAN DIEGO DUI ARRESTS DOWN OVER THANKSGIVING HOLIDAY

California Highway Patrol statistics showed that while the number of arrests for San Diego DUI arrests fell this holiday weekend in San Diego over the Thanksgiving holiday, the number of road deaths increased.

In San Diego County, 128 people were arrested by CHP officers on suspicion of driving under the influence (DUI), 14 less than over the same period last year. There were 1497 California DUI arrests statewide, compared to 1542 California DUI arrests in 2006. That statewide arrest total is up from 1041 Saturday. The CHP began recording holiday weekend arrests and fatalities at 6 p.m. Wednesday.

Five people were killed on San Diego County roadways during the Thanksgiving holiday, compared to one at this point last year, the CHP report said. The CHP also reports 34 fatalities statewide, three less than the same time period in 2006.

San Diego DUI defense lawyer, San Diego DUI defense attorney, California DUI defense lawyer, California DUI defense attorney, San Diego drunk driving defense

November 26, 2007

CALIFORNIA DUI ARRESTS UP FOR HOLIDAY SEASON

The California Highway Patrol reported that the number of drunken driving arrests, and fatalities caused by impaired drivers, continued to increase on San Diego County roadways this Thanksgiving weekend.

Five people were killed on San Diego County roadways during the Thanksgiving holiday so far, compared to one at this point last year, the CHP report said. At this time Saturday, only three had died so far this holiday weekend.

The CHP also reports 34 fatalities statewide, three less than the same time period in 2006. As of Saturday, there had been only 21 statewide fatalities.

In San Diego County, 128 people were arrested by CHP officers on suspicion of driving under the influence, 14 less than over the same period last year. As of Saturday, there had been only 92 local drunk driving arrests.

There were 1497 arrests statewide for suspicion of driving under the influence, compared to 1542 in 2006. That statewide arrest total is up from 1041 Saturday.

Continue reading "CALIFORNIA DUI ARRESTS UP FOR HOLIDAY SEASON" »

November 25, 2007

FORMER CLIENTS AND LAWYERS FOR SAN DIEGO'S PACIFIC LAW CENTER SLAM FIRM'S BUSINESS PRACTICES

Former lawyers, clients of San Diego's Pacific Law Center challege unethical activity
By Greg Moran
UNION-TRIBUNE STAFF WRITER

November 25, 2007

With its highly visible, nonstop advertising, the four-year-old Pacific Law Center in La Jolla has made itself one of San Diego's best-known law firms.

By the firm's estimate, it has represented 10,000 clients in drunken-driving and other criminal cases, bankruptcy, and personal injury lawsuits since opening here in 2003.

The advertising campaign promises aggressive representation and “little or no money down” and features testimonials for the center and its lawyers.

But in recent months, that picture has been clouded by lawsuits, a judge's ruling and action by the Better Business Bureau. [for more articles on PLC, click on No.1 and No.2]

Former clients say it was difficult to get enough time with an attorney. Some say they were given unrealistic assessments about their cases.

Lawyers formerly employed by the firm have alleged in lawsuits and in sworn statements that Pacific Law Center uses unethical practices, such as allowing unlicensed clerks to sign up clients and give out legal advice. Two attorneys sued, claiming that they were fired after objecting to that.

Lawsuits filed by former Pacific Law Center attorneys depict a business where lawyers have caseloads so large that it is difficult for them to provide the kind of representation the firm advertises. Instead, they say, the emphasis is on settling cases as quickly as possible.

The Better Business Bureau, a business ethics and consumer protection agency, downgraded its rating of the firm from satisfactory to neutral after fielding 38 complaints over the past three years.

A judge ruled in June that the firm appeared to be “gouging” local taxpayers by seeking public funds to hire experts in two cases for which the firm already had collected thousands of dollars in fees from the clients.

“We have a lot of attorneys and a lot of clients,” Arentz said. “It's easy to find individuals who have individual complaints about their individual situation.

“Overall, the majority of our clients are extremely happy with their representation.”

Arentz spoke from the Phoenix office of the law firm Phillips & Associates, which is affiliated with Pacific Law Center, where he often works.

Jeffrey Phillips, an attorney with the Phoenix firm that bears his name, is listed on the articles of incorporation for Pacific Law Center filed with the California secretary of state. Phillips is not licensed to practice law in California.

Arizona state bar records show that Phillips was censured in September 2002 and placed on two years' probation because he “failed to adequately supervise subordinate attorneys and non-lawyer specialists.”

The records say non-lawyers who first met with prospective clients failed to say they were not lawyers and did not adequately describe the firm's “little or no money down” payment plan.

Phillips completed his probation in January 2005. Complaints of aggressive intake clerks and hard-sell tactics are now being made against Pacific Law Center.

Phillips said potential clients are told repeatedly that the intake clerks are not lawyers, but assistants.

“We don't believe there is any way any of our people are doing anything wrong here,” Phillips said during a recent interview.

Click below to read more on Pacific Law Center...
...

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November 24, 2007

WHAT TO DO WHEN THE SAN DIEGO DUI OFFICER STOPS YOU DURING THE HOLIDAYS; A SAN DIEGO DUI LAWYER GIVES YOU PROVEN TIPS TO HELP DEFEND YOU FROM A SAN DIEGO DUI CONVICTION

SAN DIEGO DUI DEFENSE ATTORNEY NEWS:

Southern California law enforcement will step up DUI enforcement over the holidays. It's starting now. Memorize these tips. They may come in handy over the holidays.

1. If you drive during the holidays, and you plan on having a cocktail or two, make sure you know where your license, registration and proof of insurance are. Police historically write in their DUI reports (putting only facts that harm you in them) that the suspect "fumbled for his wallet" and couldn't find his registration. They use this to try to show you were impaired. Be prepared.

2. When you get signaled by the officer to pull over by the officer for a DUI assessment, do so immediately and safely. Roll down your window and put your hands on the steering wheel.

3. If an officer asks you if you know why you are being pulled over, remember you don't have to answer. What a dumb question! He knows why he is pulling you over. He is pulling you over to assess you for drunk driving, and he's using the fact that you might have committed some minor vehicle code violations as an excuse. Don't make any admissions to him. So, you can just ask him, "why?"

4. The next question the officer is likely to ask is, "Have you had anything to drink tonight." Remember your rights? You are not required to speak to officers. I know, I know, you think, "But if I don't talk to the officer, he will be mad." Let him be. You are not at a social gathering; he is not invited to your New Year's day party. So don't worry about how he feels. He is collecting evidence against you. Don't give him any. It is best to say, "Officer, I appreciate what you do for a living, but I don't wish to answer any of your questions." You do NOT have to answer. The less from you he gets, the better for you in the long run. He is gathering evidence. But, you say, maybe he will let me go if he knows I'm being honest with him. NO. Most people who are pulled over and have alcohol on their breath get arrested. It's just a fact of life. Don't give him anything to put in that report that he can use against you later.

5. He may then say, "I'd like you to complete a series of tests for me." Again, let him know that you do not wish to participate in any tests. You are not required to comply. Officers try to give a series of field tests to determine if you are impaired. I have NEVER known any officer to do these as per the standardized protocol. I hold a certification authorized by the United Stated Department of Transportation to administer these tests, and was required to pass a practical and written test to get that certification given by a nationally re-known sergeant with the Idaho State Police. Cops learn how to do these, and then promptly forget them, making up their own "tests." Do not do them. Do NOT let the officer collect more false "evidence" against you. Just reiterate that you do not wish to perform and tests. It's your right.

6. The DUI investigation officer may then tell you he wants you to take an in field breath, hand held, breath test. Do not take this "test." It is unreliable, and regularly exhibits blood alcohol numbers higher than what you really are. The cop really, really wants you to do this now, because you have made no statements, and you have refused his field "tests." He wants this badly. He NEEDS some evidence. Do not do it. You are NOT required to blow into the little hand held machine.

7. The officer will most likely arrest you, cuff and take you downtown. You will be required to take a breath or blood test. You must choose to take one of these tests, or he will take what is called a "forced blood test" and your driver's license will be suspended for a full year.

A few pointers: If you are still absorbing alcohol, the breath test will read high. It is also an INDIRECT measurement of blood alcohol level. If you take blood, you won't get a result for at least a week. Also, SDPD and Sheriff's don't use the proper amount of sodium fluoride and potassium oxalate in the blood tubes, so you can attack those results later. Personally, I wouldn't let anyone hired by the city or county to draw my blood, after learning all I know about the incompetence of the people drawing the blood, and the lack of sanitations protocol in place. Why risk infection?

If you are arrested, you will be released within 12 hours on your promise to appear. You will received a pink piece of paper called a "DS-367." This document tells you that you, or your lawyer, must call the Department of Motor Vehicle within ten days of the arrest to secure a hearing to determine whether or not the DMV will take your license. Do not miss this deadline or you will be suspended automatically.

So, be careful tonight. Don't drink and drive if you can help it. Drive safely. Don't talk to cops. Be polite, but do not let them gather inculpatory evidence against you. And when you get home call this San Diego DUI Defense lawyer.

(San Diego DUI Defense, Chula Vista DUI Defense, Vista DUI Defense, El Cajon DUI Defense, Imperial County DUI Defense, El Centro DUI Defense, Orange County DUI Defense, Riverside DUI Defense, San Bernardino DUI Defense, Los Angeles DUI Defense, San Diego DUI Defense Attorney, San DIego DUI Defense Lawyer, California DUI Defense, Murrieta DUI Defense, Temecula DUI Defense, Riverside DUI Defense, Chula Vista DUI Defense, El Cajon DUI Defense, Vista DUI Defense, Temecula DUI Defense, Brawley DUI Defense, El Centro DUI Defense)

Continue reading "WHAT TO DO WHEN THE SAN DIEGO DUI OFFICER STOPS YOU DURING THE HOLIDAYS; A SAN DIEGO DUI LAWYER GIVES YOU PROVEN TIPS TO HELP DEFEND YOU FROM A SAN DIEGO DUI CONVICTION" »

November 23, 2007

SIX IMAMS STATED A CLAIM FOR FALSE ARREST FOR BEING DETAINED PRIOR TO A FLIGHT

Six Imams stated a claim for relief for being taken off a flight and detained for hours for questioning for no apparent reason other than praying in the gate area in Arabic before the flight [they obviously needed to pray before flying U.S. Air], one being in first class (shameful!), one being upgraded for being a frequent flyer and then walking back to offer his seat to one of his traveling companions which was declined (terrifying!), and one needed a seatbelt extension (too many Fatburgers).

The FBI questioned them, determined that they were not a security threat, and let them go, after hours of questioning. They stated a claim that there was no probable cause to believe that they were going to interfere with a flight crew in violation of 49 U.S.C. § 46504 that resulted in their detention.

After that, U.S. Air barred them from ever flying on the airline. (now they can take a real airline)

They had flown from Phoenix to Minneapolis for a conference and were returning when detained.

Shqeirat v. United States Airways Group, 2007 U.S. Dist. LEXIS 85881 (D. Minn. November 20, 2007).

Note: Do you think these men will ever fly peacefully again, without being watched, investigated, interrogated? No!

November 23, 2007

GOVERNMENT'S APPLICATION FOR REAL TIME CELL PHONE TRACKING OF SUSPECTED DRUG DEALER REJECTED BY TEXAS COURT

The government's request for realtime data as to the movements of a suspected drug dealer's cellphone was denied without prejudice, subject to the government coming up with more specific information.

In the Matter of the Application of the United States of America for an Order: (1) Authorizing the Installation and Use of a Pen Register and Trap and Trace Device; (2) Authorizing Release of Subscriber and Other Information; and (3) Authorizing the Disclosure of Location-based Services, 2007 U.S. Dist. LEXIS 83022 (S.D. Tex. November 8, 2007).

The publication of this order was the subject of a fascinating Washington Post article today: Cellphone Tracking Powers on Request / Secret Warrants Granted Without Probable Cause, by Ellen Nakashima.

To read the entirety of the Order, click on....

Continue reading "GOVERNMENT'S APPLICATION FOR REAL TIME CELL PHONE TRACKING OF SUSPECTED DRUG DEALER REJECTED BY TEXAS COURT" »

November 23, 2007

SHASTA COUNTY DRUNK DRIVING PROSECUTOR CHARGED WITH DRUNK DRIVING

Nov. 23, 2007--A Shasta County deputy district attorney who specializes in prosecuting DUI cases was arrested early Saturday on suspicion of drunken driving.

Sgt. Bill East of the California Highway Patrol said officers arrested Patricia Jean "PJ" Haley, 28, at 2:38 a.m. after an officer pulled her over on Argyle Road south of Hartnell Avenue in Redding on suspicion of a routine traffic violation.

East said the officer noticed Haley appeared to be driving under the influence and gave her a field sobriety test. She had a passenger in the car, he said.

Her breath registered a 0.10 blood alcohol level, East said. The legal limit for driving in California is 0.08. Haley was booked into the Shasta County jail on misdemeanor charges of driving under the influence and released. Assistant District Attorney Daniel Flynn said he's overseeing an investigation into possible disciplinary action against Haley and couldn't comment.

Flynn said he would contact District Attorney Jerry Benito, who is on vacation, and relay the newspaper's request for comment.

Benito did not call back Wednesday.

A secretary in the District Attorney's office said Haley was off this week. Haley did not respond to an e-mail request for an interview. Haley's arrest comes at a time when the Shasta County District Attorney's Office and other area law enforcement agencies have stepped up their drunken driving enforcement efforts, with increased checkpoints, more officers and public DUI awareness campaigns.

In August, Shasta County supervisors accepted a $256,982 state grant to boost prosecutions of misdemeanor arrests for driving under the influence.

The money made it possible for Benito's office to hire an attorney to work full time on the cases.

The grant came after the city of Redding received money for two officers specializing in drunken-driving cases and as the county Superior Court is seeking a grant to set up a DUI court.

Benito said at the time the Office of Traffic Safety grant was awarded that it would help the county reduce alcohol-related traffic fatalities and injuries.

From 2003 to 2005, 43 people were killed in Shasta County in alcohol-related crashes.

Haley was admitted to the State Bar of California in December 2004 after graduating from the University of California at Davis and UCLA School of Law, according to bar records.

COMMENT
: Now, had this been in San Diego, the City Attorney's office would try to protect her and quietly remove the case for proceedings in a "dark" department like they have done before. I'd like to hope she gets the same punishent she gives if she is guilty, but she is presumed innocent. We must remember the breath tests are extremely fallible, cause unusually high results for many reasons, and many times register mouth alcohol. Additionally, merely blowing into the machine stronger or weaker can alter the result of a test. And, the experience of the cop administering the test can alter the results. So, while it warms my soul to see one of the righteous get arrested, we must remember that at a .10, she may have a very defensible case.

November 22, 2007

SAN DIEGO POLICE DEPARTMENT STEPS UP DUI ARREST EFFORTS FOR THE HOLIDAYS

SAN DIEGO -- To get drunken drivers off the roads during the holiday season, San Diego police said they will step up DUI enforcement.

"We'll be sending out three saturation patrols to Pacific Beach, downtown and Mid-City areas," said Officer Mark McCullough. "We want to get the word out that we'll be out and about this holiday season."

Each patrol of five or six officers and a sergeant will patrol from about 8 p.m. Friday to 3 a.m. Saturday.

"We want to let people know we are serious about DUI and alcohol enforcement," McCullough said. "Our primary way of getting [the word out] is through education and enforcement."

The San Diego Police Department has two grants that fund anti-DUI efforts, dubbed "Avoid the 14," a countywide grant, and "Arrive Alive," a California Highway Patrol project.

Officials said that both grants are paying overtime for the officers involved in patrols.

November 21, 2007

ANOTHER SEARCH CASE REVERSED; COP VIOLATES TERRY

The court here suppressed evidence of an unlawful Terry search because the "plain feel" did not reveal a weapon, so opening a small package found in the jacket pocket of the detainee was improper.

Defendant's placing her hand in her pocket during a stop and refusing to remove it justified a patdown for officer safety. That's standard operating procedure. The object, however, was obviously not a weapon, so opening it up was unreasonable, and the motion to suppress should have been granted. Sudduth v. State, 2007 Ga. App. LEXIS 1243 (November 21, 2007):

In this case, as stated above, the officer could not identify the object he felt as either a weapon, or by its contour and mass, contraband and thus the State concedes that the intrusion into Sudduth's pocket was impermissible under these facts.

Comment: We are finding more and more basic Terry searches violated by law enforcment, both state and federal. One cop recently told me he does this on purpose knowing the case will get tossed out. He intentionally violates the law anyway because, "At least I got the shit off the streets." He willreach into a pocket, grab an object that he suspects is drugs but knowns not to be a weapon, open it, and either arrest and get the case thrown out, or throw the contraband away and let the suspect walk.

So much for ethics. The ends justifies the means? What is scary is that this case was reversed, meaning that some judge below actually denied the suppression motion. Scary, but more typical by the day.

November 20, 2007

MILITARY BASE ENTRY SEARCH FOR CONTRABAND AT A NO -PUBLIC GATE WAS VALID

A military entry base search of a car at a contractor entry gate that produced a small quantity of marijuana was a valid area entry search. No matter what theory is applied, the military has a compelling interest in keeping drugs off a base. United States v. Gallock, 2007 U.S. Dist. LEXIS 87512 (E.D. Cal. November 20, 2007):

The search here is no different in principle from other types of "entry point" searches whether or not the administrative search is justified with an implied consent. In either case, the scope of the search cannot exceed the purpose for which the warrantless search is justified. United States v. Bulacan, 156 F.3d 963, 968 (9th Cir. 1998) ("The scheme is only valid if 'the search serves a narrow but compelling administrative objective,' and 'the intrusion is as limited….as is consistent with satisfaction of the administrative need that justifies [it].'") Even the government appeared to concede at oral argument that the military police would be hard pressed to utilize their checkpoint to search for evidence of private party stock insider trading, a crime with no general relation to Air Force activities. As is the case in many areas of criminal law, a rule of reason must be employed even for exceptions to the search-with- warrant requirement. Morgan, 323 F.3d at 781. And, the military entry point search must be limited to those areas of the person or vehicle likely to conceal the contraband prohibited from the base.

Defendant's error is in assuming that if a check for weapons alone is the rule for government buildings, Bulacon, supra, thus it must be the rule for military bases as well. The undersigned has seen no authority for such a narrow proposition, and the case law permits different search scopes, even based on dual purposes, depending on the nature of the checkpoint. See e.g., United States v. Soto-Camacho, 58 F. 3d 408 (9th Cir. 1995) (border checkpoint search based on need to ascertain immigration status and need to thwart drug trafficking upheld).

The local Air Force regulation governing the scope of the search permits military police to conduct entry point searches "to deter theft of government property and to prevent the transportation of contraband onto and off the installation." BABI31-101, 14 May 2002, § 5.7.1.1, Govt. Exhibit 3. See also AFI 31-201, § 5.2: "Controlling entry to the installation is a fundamental security police task. We control entry…to help protect the resources entrusted to the Air Force." However, although "contraband" is a broad word, it cannot exceed the scope of items which would in some way significantly disrupt the functioning of the airbase.

The court need not stretch to understand that the Air Force has a legitimate and compelling interest in keeping controlled substances off its premises.

Egloff v. New Jersey Air Nat. Guard, 648 F. Supp. 1275, 1280 (D.N.J. 1988). Air Force functions at a base such as Beale include flight, ground control and maintenance of aircraft and other sophisticated equipment. Training with dangerous weapons takes place. Private contractors assist the Air Force in its mission. Air Force bases and use of controlled substances thereon are incompatible in terms of the danger to mission, life, and property which would be risked by application of civilian controlled substance probable cause search rules to entry points on these insular bases. Nor must the Air Force implement a plethora of different rules and standards for checkpoint searches depending on the sophistication of every job, for employees working those jobs, which takes place on an Air Force base. Such would be unworkable.

Whatever "contraband" may be beyond the proper scope of an entry point search at a military base, controlled substances fall far short of that outside parameter. Upon entering the base at Beale, defendant impliedly consented to a search of his vehicle, including the center console and items such as the eyeglass case contained therein. The scope of the search was reasonable.

November 20, 2007

TWELVE-HOUR SWAT STANDOFF AT HOME REQUIRES WARRANT UNDER PAYTON

A 12-hour standoff ultimately required a warrant under Payton under the facts of this case.

The Ninth Circuit interprets Payton to require that a 12 hour standoff that brought the SWAT team ultimately required a warrant. The initial surrounding of the house did not, but the length of the event required a warrant.

All the plaintiff obtained, however, was nominal damages. Fisher v. City of San Jose, 2007 U.S. App. LEXIS 26796 (9th Cir. November 20, 2007) (2-1):

"We have found no case of this court that directly addresses whether police must obtain a warrant during a standoff such as occurred here between the police and a citizen if any initial exigency dissipates before further intrusions into the home to coerce the targeted individual to submit to arrest. We conclude, however, from our review of cases from other circuits involving police standoffs that the Payton warrant requirement does not evaporate the moment officers surround a home with weapons and begin to take measures to induce an individual to leave his home. Rather, officers must obtain a warrant before any additional intrusions into the home if the initial exigency dissipates sufficiently to allow the police to obtain a warrant.FN9 The initial exigency can dissipate either because the danger posed by the targeted individual decreases or because, with the passage of time, resources become available that allow the police both to maintain safety and to obtain a warrant."

"We do not disagree that Fisher was seized when police surrounded his home and stationed a sharpshooter to watch him, or that the warrant requirement applied to this seizure, absent exigency. See Al-Azzawy, 784 F.2d at 893. But despite having been seized, it is indisputable that Fisher had not yet been placed under formal arrest and brought into the custody of the police. Because Fisher remained in his house, not free to leave but not in the custody of the police, he continued to be subjected to entries into his home for the purpose of forcing him outside to arrest him, and the Payton warrant requirement continued to apply. As a result, we must ask whether any exigency that existed at 6:30 a.m. dissipated before police made further entries into Fisher's home. We conclude that there was insufficient exigency to justify a warrantless arrest of Fisher at least by the time the CS gas canisters were thrown into his home at approximately 1:00 p.m."

Note: This is a fact dependent case: If other officers had not been coming and going from the scene of the standoff, the facts seemed to show that the standoff was de-escalating rather than escalating. And that does create a problem. If the situation ends up at a stand still and the police decide to act because they are tired of waiting for nothing, then what?

November 19, 2007

WATCH OUT FOR SACRAMENTO DUI WARRANT SWEEPS

Monday started like a normal work day for Walter Castillo. But the 25-year-old never finished his shift at a Folsom bakery where Sacramento County sheriff deputies came in and put him in handcuffs.

Castillo was one of dozens of people with outstanding DUI warrants picked up by deputies and Rancho Cordova police officers during the sweep which targeted more than 200 people.

"It's incumbent on a person that's arrested to finish what a judge has told them or ordered them to do," said deputy Caludio Sotelo after he cuffed Castillo and put him in the back of a patrol car.

Starting early Monday morning, the eight teams of officers hit the streets, each with a stack of outstanding warrants. Many of the warrants are for misdemeanor drunk driving, the kind officers usually don't have time to target.

"This time of year especially, it becomes a very dangerous time and we want to get these people off the street as soon as we can," said Sgt. Jeff Hattersley.

Sometimes it's hard to track people down. Before Castillo was arrested, officers tried to find him at his parents' home. Castillo was only the second person they found after the team had tried to serve about a dozen warrants.

"Even though they may list an address, they move around quite a bit," said Sotelo. "It's just hit or miss. Sometimes they're home, sometimes they're not."

At house after house, deputies were told the person they wanted doesn't live there anymore. In one case, the suspect had moved to Montana, according to the resident.

In most cases, the warrants are issued because the person failed to appear in court after being arrested for DUI, or failed to finish a work project or counseling after a conviction.

Officers hope the sweep gets suspected drunk drivers off the street as well as sends a warning to others they don't find.

"This is something that's going to be held over their head and until they clear it up, they're always going to be watching their back," said Sotelo.

The DUI sweep is expected to continue on Tuesday. To avoid an embarrassing arrest at home or work, those with outstanding warrants are urged to turn themselves in and clear the warrant at the downtown headquarters of the Sacramento County Sheriff's Department.

November 19, 2007

IF A COP GARBS YOUR ARMS AND YOU PULL HIM INTO YOUR MOTEL ROOM WHEN HE CONTACTS YOU ON A MINOR MISDEMEANOR ARREST, IT'S AN UNLAWFL ENTRY (AT LEAST IN OHIO)

Grabbing defendant's arm and the officer then being pulled into defendant's motel room when the defendant tried to shut the door on the officer in the officer's effort to arrest him for a minor misdemeanor for which defendant would be cited at best, was an unlawful entry because this was not hot pursuit by the officer and the situation lacked exigent circumstances when balanced against the minor misdemeanor offense.

State v. Johnson, 2007 Ohio 6146, 2007 Ohio App. LEXIS 5413 (9th Dist. November 19, 2007).*


November 18, 2007

CHULA VISTA DUI COPS GET CASH FOR CHULA VISTA DUI ENFORCEMENT

The Chula Vista Police Department has an extra $412,000 to help it combat drunk drivers this holiday season, thanks to a grant from the California Office of Travel Safety.

For tips from a Chula Vista DUI Defense Lawyer on how to avoid a DUI this holiday season, click on: http://www.californiacriminallawyerblog.com/2007/11/what_to_do_when_the_dui_office.html

A press release issued this week from the Chula Vista Police Department says the grant will help the city to keep impaired drivers (DUI drivers) off the streets and:

"Will provide an additional 'full-time' officer to work in the Chula Vista Police Department's Traffic Division on the DUI Enforcement Team and provide overtime money for operations such as checkpoints, saturation patrols, and warrant sweeps. The warrant sweeps will target DUI offenders who do not comply with the conditions of their probation or who do not appear in court as required."

The first operation associated with the grant will go into effect on Nov. 24, when the city will set up a DUI checkpoint within the city.

$412.000 for one full time officer and some checkpoints? I think this has got to be looked into further.

What I would like to see is more training for officers. Spend the money where's it's needed: making the cops do it right.

Attorney Mary Frances Prevost is the first San Diego sustaining member of the National College for DUI Defense. She is a certified operator of the Intox 8000 DUI breath testing instrument which is used by the San Diego Police Department. She is an owner of the EC-IR machine, used by the San Diego Sheriff's Department. She teaches seminars on DUI defense around the country to other lawyers.

November 17, 2007

VISTA DUI MOM GETS 12 WEEKENDS IN JAIL FOR LOW BLOOD ALCOHOL CONVICTION

VISTA – A schoolteacher who had been drinking wine before she crashed her car on Highway 78 in Oceanside, injuring two of her three pre-teen daughters, was sentenced Wednesday to a dozen weekends in county jail and five years probation.

Judge Aaron Katz said Jill Lori Drennon Brady, 43, of Poway, must serve her jail time on consecutive weekends beginning in January. He also ordered her to complete 50 hours of community service in a teaching or tutoring capacity.

Drennon Brady was arguing with her daughters when she lost control of her car, which rolled over near College Boulevard on June 28, according to the California Highway Patrol. The woman's vehicle landed in the center median, crushing the divider and sending debris into lanes, slowing traffic on both sides of the freeway.

The defendant and her 11- and 12-year-old daughters were treated for injuries at Tri-City Medical Center. Her youngest daughter, then 9, was unhurt.

According to court documents, Drennon Brady had a blood-alcohol level of .05 percent – below the state's .08 percent limit – when arrested. She pleaded guilty to a misdemeanor count of driving under the influence of alcohol causing injury.

Prosecutor Christine Israel said at a prior hearing that the defendant filled a thermos with wine and had it with her on a trip to take the girls to see their father in San Clemente.

A “terrible misjudgment” jeopardized both her safety and her children's, the judge said.

The defendant has been a teacher at Lincoln Elementary School in Escondido for 19 years, according to a report filed by the county Probation Department.

Comment: Why did the defense attorney allow this woman to plead guilty to impaired driving when she had, at best, a .05 blood alcohol level? San Diego DUI attorneys who practice seriously and know the science would not have let this conviction occur.

November 15, 2007

SAN DIEGO DUI DEFENDANT, ARRESTED FIVE TIMES IN FIVE MONTHS FOR DRUNK DRIVING, PLEADS GUILTY TO THREE COUNTS

By Ray Huard
UNION-TRIBUNE STAFF WRITER

4:52 p.m. November 15, 2007

EL CAJON – A Ramona woman arrested five times since May for driving under the influence of drugs has pleaded guilty to three misdemeanor charges of drugged driving.
Tiffany Anne Adamo, 26, still faces one felony charge of driving under the influence of drugs, and a second charge will be filed soon, Deputy District Attorney Victor Barr said Thursday.

Barr said Adamo also could face prescription fraud charges pending the outcome of an investigation into how she received multiple prescriptions for pain killers and a muscle relaxant.
Adamo is being held in jail in lieu of $1 million bail pending a Dec. 6 court hearing.

She pleaded guilty in El Cajon Superior Court Thursday to driving under the influence of drugs June 28 and Sept. 27, Barr said. He said she pleaded guilty Friday in San Diego Superior Court to driving under the influence May 25.

Adamo faces a felony driving under the influence charge for an Oct. 13 incident in which she pinned a 7-year-old boy against his mother's car in a parking lot, then tried to drive away.

Barr said he will file a second felony charge for Adamo's Oct. 10 arrest for driving under the influence. By law, someone can be charged with a felony when they have three prior misdemeanor convictions for driving under the influence within 10 years, Barr said.

November 15, 2007

CALIFORNIA JUDGES CAN ALLOW REARGUMENT TO HANGING JURY DURING DELIBERATIONS

The jury in this case told the Court they could not come to agreement on the charges. They were hung. The judge asked if further argument would help. Sure, said the jurors.

Of course a conviction resulted.

The Court of Appeals holds that permitting reargument is just fine, that the judge wasn't being coercive or anything. Right.

People v. Young; 2007 DJ DAR 16911; DJ, 11/15/07; C/A 3rd

November 14, 2007

SHINING A SPOTLIGHT, PLUS A BIT MORE, IS ENOUGH TO QUALIFY AS A DETENTION

The officer in this case saw the defendant standing next to a parked car in a high crime area. The officer observed the defendant for 5--o 8 seconds. The officer turned his spotlight on the defendant, illuminating him.

The officer exited his police car, in full uniform, and briskly walked 35 feet directly to the defendant. While he was approaching the defendant the officer asked the defendant if he was on parole, and the defendant said he was.

Now you're going to think that the Court of Appeal found that this was a consensual encounter. Nope, the Court of Appeal says that the officer's conduct constituted a show of authority so intimidating as to communicate to any reasonable person that he was not free to decline the
officer's requests or otherwise terminate the encounter.

The defendant's admission that he was on parole led to a search; that search was illegal!

People v. Garry; 2007 DJ DAR 16863; DJ, 11/14/07; C/A 1st

November 14, 2007

CRUZ WAIVERS; PLEA AGREEMENTS V. COURT IMPOSITION-CALIFORNIA CRIMINAL DEFENSE LAWYERS NEED TO KEEP THEIR EYES OPEN

In Cruz (44 C3d 1247), the California Supreme Court upheld a term of a plea
bargain that permits the court to sentence in excess of the lid agreed upon -- if the defendant fails to appear for sentencing. This led to the infamous Cruz waivers, now routinely imposed upon our clients.

This Court of Appeal distinguishes Cruz waivers which are expressly part of a plea agreement, versus Cruz waivers which are just imposed by the court. They find the
latter here; the Cruz waiver was just an afterthought by the judge, unilaterally imposed. The court can do this on its own, but then it has to permit the defendant to withdraw his plea.

People v. Hebert; 2007 DJ DAR 16874; DJ, 11/14/07; C/A 3rd

November 12, 2007

DOMESTIC DISTURBANCE CALL OUTSIDE OF A HOUSE DID NOT CREATE EXIGENCY WHERE FEMALE INVOLVED SAID COPS WERE NOT WANTED

Okay, I do not think the California courts will ever come to the same decision as this well reasoned West Virginia case. But it gives me hope....

Here, police received a 911 call about a domestic dispute with shots fired from defendants' house. When they arrived, the female was outside hysterical. The officers talked to the female, and she told them to leave because they were not wanted or needed. Despite this, they went inside and found a meth lab. The Court held that no emergency existed. The denial of the motion to suppress is reversed.

State v. Bookheimer, 2007 W. Va. LEXIS 88 (November 8, 2007):

"Applying the above-cited legal principles to the present case, we find it unreasonable for the officers to have conducted a warrantless entry and search. At the suppression hearing, the responding officers testified that Ms. Tingler clearly told them that there was no domestic dispute, they were not wanted, they were not needed, and that she wanted them to leave. In the face of this clear rebuke, it would not be reasonable for an officer to proceed to enter and search the premises unless there was some other condition lending to an emergency circumstance.

"While the officer testified that Ms. Tingler was acting in a "hysterical" manner, a review of the record reveals the contrary. After listening to the officer's testimony at the suppression hearing, the trial judge could not agree that "hysterical" was a proper characterization of Ms. Tingler's behavior. From the bench, the judge "note[d] that upon arriving at the scene the testimony of [the] Deputy ... was that Ms. Tingler was yelling, and was in a state of less than quite [sic] demeanor. I would not say that she was irrate [sic], but it appears that there was yelling by Ms. Tingler[.]" Moreover, the order stemming from the suppression hearing referred to Ms. Tingler's demeanor as "agitated." Being less than "irate" and "agitated" does not lend support to the officer's contention that Ms. Tingler was hysterical. An objective review of the record reveals a woman who was angry and who was, indeed, probably yelling. However, her anger and yelling were not caused by circumstances occurring prior to the arrival of the officers. Rather, her agitation was aimed at the fact that the officers were present on her property. Thus, Ms. Tingler's behavior did not create an emergency or an exigent circumstance justifying entry into the residence."

November 12, 2007

NO EX POST FACTO VIOLATION FOR EXTENDING THE DATE DUI PRIORS CAN BE USED AGAINST DEFENDANTS

The defendant pled to DUI which, at the time, was priorable for 5 years. During those 5 years, the period the prior could be used was changed from 5 years to 7 years. The defendant reoffended more than 5 but less than 7 years later.

The facts just described come from Sweet, 207 CA3d 78.

In this case, the priorable period went from 7 years to 10. The Court of Appeal relies on Sweet and rejects the ex post facto challenge. They reject the claim that Stogner (539 US 607) changes this result.

They also reject estoppel and the claim that this violated the plea agreement. The defendant here may have some action here if he can show that the he actually relied on the period that the priors would be good.

People v. Forrester; 2007 DJ DAR 16782; DJ, 11/12/07; C/A 2nd, Div. 6

November 12, 2007

CALIFORNIA COURT DEFINES MAKING A PLACE AVAILABLE FOR STORAGE OR DISTRIBUTION OF CONTROLLED SUBSTANCE

California Health & Safety Code sec. 11366.5(a) makes it a crime to make a place available for use in manufacturing, storage, or distribution of controlled substances.

This Court of Appeal engages in a lively and exciting discussion of active verbs, and ends up concluding that 11366.5(a) can be violated only by a third party using the
property, not by the defendant who is cultivating marijuana himself and using his own property to store the marijuana.

People v. Dillon; 2007 DJ DAR 16777; DJ, 11/12/07; C/A 1st

November 12, 2007

REGISTRATION AS A SEX OFFENDER ISN'T PUNISHMENT

California Penal Code section 290 permits a trial judge to order registration as a sex offender
even for crimes not on the 290 list, if the judge finds that the crime was committed and motivated by sexual compulsion or for purposes of sexual gratification.

The trial judge made that finding here. Hey, why doesn't this violate Apprendi (530 US 466), requiring a jury to find any fact used to increase punishment?

You guessed it, registration as a sex offender isn't punishment. Come on, tell that to every one registers who can't find housing or a job.

People v. Presley; 2007 DJ DAR 16784; DJ, 11/12/07; C/A 3rd

November 10, 2007

PLAINTIFF'S PRIVACY VIOLATED WHEN COPS SHOOT THROUGH THE BEDROOM DOOR

When this plaintiff in this Civil Rights suit closed the door after his co-tenant had consented to allow the police entry to the home, he exhibited a reasonable expectation of privacy. When the cops shot through the door to gain entry, they violated his civil rights.

While the police had permission to enter from a co-tenant, the act of shutting the door still manifested an expectation of privacy in that portion of the premises that would indicate that the co-tenant did not have apparent authority as to it. Lobato v. Ford, 2007 U.S. Dist. LEXIS 82373 (D. Colo. October 31, 2007):

By closing the door to his bedroom, Lobato manifested a subjective expectation of privacy in his bedroom. Further, "[i]t is well-settled that an individual has a reasonable expectation of privacy in the interior of one's home." Reeves, 484 F.3d at 1254. Under these circumstances, it is readily apparent that Lobato had a reasonable expectation of privacy in the room where he was staying. The next question then is whether the officers, specifically Herrick and Ford, infringed on that expectation by opening the door to Lobato's bedroom and firing a shot into it. This question must be answered in the affirmative based both on the physical intrusion into this room by the bullet fired from Ford's weapon as well as the officers' viewing of this room in a manner not available to members of the public. Compare United States v. Taylor, 90 F.3d 903, 908 (4th Cir. 1996) (law enforcement officers did not engage in search under the Fourth Amendment by looking through picture window adjacent to front door as anyone at the front entranceway of their home could have done). I therefore conclude that the officers conducted a search of Lobato's bedroom and must next analyze whether this search was in violation of his Fourth Amendment rights.


November 9, 2007

CALIFORNIA DUI MURDER CASE AFFIRMED

Filed 11/9/07 P. v. Banegas CA2/2

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO

THE PEOPLE,
Plaintiff and Respondent,
v.
CARLOS MANUEL BANEGAS,

Defendant and Appellant.
B193283
(Los Angeles County
Super. Ct. No. VA084675)

APPEAL from a judgment of the Superior Court of Los Angeles County. Larry S. Knupp, Judge. Affirmed.

Thomas T. Ono, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.

______________

Carlos Manuel Banegas1 appeals from the judgment entered upon his convictions by jury of second-degree murder (Pen. Code, § 187, subd. (a), count 1), felony hit-and-run (Veh. Code, § 20001, subd. (a) count 2),2 driving under the influence causing injury (§ 23153, subd. (a), count 3), driving under the influence of more than 0.08 percent alcohol (§ 23153, subd. (b), count 4), and gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a), count 5). In connection with counts 3 through 5, appellant admitted suffering two prior drunk driving convictions within the meaning of section 23566, subdivisions (b) and (c) and Penal Code section 191.5, subdivision (d). The trial court sentenced him to the upper term of four years on his conviction in count 2 plus a consecutive term of 15 years to life on his conviction in count 1. Imposition of sentence on counts 3 through 5 was stayed pursuant to section 654. Appellant contends that (1) there is insufficient evidence to support his convictions of second degree murder, hit-and-run and gross vehicular manslaughter, (2) the trial court gave erroneous causation instructions to the jury, thereby depriving him of due process and a fair trial, and (3) the upper term sentence on his felony hit-and-run conviction violates the Sixth and Fourteenth Amendments to the United States Constitution as set forth in Cunningham v. California (2007) 549 U.S.__ [127 S.Ct. 856] (Cunningham), compelling reduction of the sentence to the midterm.

The judgment is affirmed.

FACTUAL BACKGROUND

We review the evidence in accordance with the usual rules on appeal. (People v. Autry (1995) 37 Cal.App.4th 351, 358.) On July 12, 2004, at approximately 11:00 p.m., Sean Tackett was driving south in the number one (fast) lane of the 710 freeway, near Firestone Boulevard, at 70 to 75 miles per hour. He saw a white Chevy Camaro in the number four (slow) lane pass him, with its lights on, traveling 90 to 95 miles per hour. A Honda Civic traveling 70 miles per hour, four car lengths ahead of the Camaro, placed its turn signal on and merged in front of the Camaro. The Camaro did not slow down. When it was a foot or two behind the Civic, it swerved to the left to avoid hitting it, nearly hit two other cars and crashed into the center divider. It came to rest 80 percent in the fast lane and 20 percent on the shoulder. Tackett pulled over and stopped. The Camaro’s headlights were then off and its hazard lights did not come on.

Twenty to 30 seconds later, Tackett saw a motorcycle in the fast lane strike the driver’s side, rear panel of the Camaro and the rider, wearing a helmet, “fly[] through the air and hit the pavement.” Five to 10 minutes later, Tackett saw appellant exit the Camaro and walk past the motorcyclist toward the freeway exit. Tackett detected a strong smell of alcohol as appellant walked by him.

Appellant walked south on the freeway toward Gregory Boagni, an off-duty Los Angeles County sheriff’s deputy, who saw appellant hit the center divider, stopped his car and called 911. Boagni testified that he saw appellant walk south, past the downed motorcyclist, without stopping. Appellant approached Boagni a minute or so after the Camaro had hit the divider. Boagni smelled alcohol on his breadth. Appellant walked past him and, when asked, said he did not need medical attention and was going home. Boagni showed appellant his badge and told him to stay. Appellant complied and was handcuffed. He did not offer his license number, registration or assistance. Boagni turned him over to California Highway Patrol (CHP) officers when they arrived.

CHP Officer Horacio McComb responded to the scene. He observed the Camaro with its front end “smashed,” in the number one lane, parallel to the center median, facing north. A motorcycle was in the number two lane. The motorcyclist, Jack Bush, was being attended to by others, so Officer McComb attended to appellant, who identified himself as Carlos Banegas. While it was apparent that English was not appellant’s native language, Officer McComb spoke to him in English, and appellant appeared to understand. Appellant was unsteady on his feet, his breadth smelled of alcohol, his eyes were red and watery, and his speech was slow and slurred. He told Officer McComb that he had consumed six Bud Lights, between 5:00 p.m. and 10:00 p.m., and showed him a photocopy of his driver’s license.

Officer McComb administered several field sobriety tests to appellant, who failed two of them and could not perform two others, claiming he had been shot in the ankle years earlier. Officer McComb also administered two preliminary alcohol screening tests (PAS) which revealed that appellant had a blood alcohol level of .106 and .105 percent. Approximately an hour and 20 minutes after the initial radio call, appellant underwent a blood alcohol test which reflected a blood alcohol level of 0.08 percent. The officer concluded appellant was driving under the influence and arrested him. Unaware that the motorcycle had hit the Camaro, the officer cited appellant for driving under the influence and driving with a blood-alcohol level above 0.08 percent, but not for driving under the influence causing injury. His report stated that the cause of the accident was “other than driver.”

Officer McComb spoke with Bush the night of the accident. Bush was coherent, and the officer did not expect him to die. But the parties stipulated that “four days after the accident on July 16 . . . [he] died as a result of death from severe head injuries.” This was the only evidence of Bush’s physical condition.

Officer Levi Miller investigated the case. He found the Camaro’s shifter in the reverse position and, while the hazard lights on the Camaro were operative, the emergency activation button was in the off position. He concluded that the front tire of the motorcycle struck the driver’s side of the Camaro. There was no evidence the Camaro was hit by any other vehicle. Officer Miller did not try to start the Camaro, although he knew appellant claimed he tried to move it but could not. He found that Bush’s helmet was cracked down the middle. Officer Miller testified that speeding, failing to turn on one’s hazard lights after an accident, tailgating and making an unsafe lane change are Vehicle Code violations.

A criminalist from the Sheriff’s Department testified that a person of appellant’s size with a blood alcohol level of 0.08 percent is impaired to safely operate a car.

On August 17, 2004, appellant was arrested for another incident of driving under the influence. On that occasion, he identified himself as Oscar Espinosa. After this arrest, Officer Miller, who had been unable to locate appellant, did so and conducted an audio-recorded interview with him, where appellant again identified himself as Oscar Espinosa. Appellant said that he never had a driver’s license. He acknowledged having a drinking problem and knowing that drunk driving is dangerous and kills people. He could not recall how many prior drunk driving arrests he had had.

Appellant described the collision, stating that he had consumed a 12-pack of beer between 7:00 p.m. and 11:00 p.m. He was driving in the number three lane when a trailer cut him off, and he lost control of his vehicle. As other cars were hitting each other, he turned left and hit the wall. He tried to move the car to the side, but it would not start. He did not turn on the emergency lights because a motorcycle crashed into the side of his car, and he was scared for the person lying there. Appellant said that he believed the accident would not have occurred if he had not been drinking. He said he tried to get help for the motorcyclist, but an African-American police officer on the scene told him that the motorcyclist was fine, did not want to help, and arrested him.

Appellant also said that his real name was Lorenzo or Loreto Lopez or Lorenzo German, but that he used Carlos Banegas and Banegas’s driver’s license in the accident “to avoid problems.” He used the name Oscar Espinosa when arrested on August 17 because the name Carlos Banegas was “burned by the accident.” Appellant was recently arrested in Ventura for failing to attend court-ordered alcohol abuse classes. He claimed he did not have enough money for the classes, but that he had completed such a class in 1996. He was also ordered to, but apparently did not, attend alcohol abuse classes after arrests in 2000, 2002, and 2004.

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November 9, 2007

RESTITUTION WIN IN CALIFORNIA CRIMINAL CASES

The minor shot his friend in the head while playing with a loaded gun. He was ordered to pay over $1 million in restitution for medical expenses.

The Court of Appeal holds that the juvenile court is permitted to order victim restitution only for medical expenses actually expended or incurred.

The juvenile court here ordered restitution for the amounts billed. But Medi-Cal provides that a medical provider who accepts Medi-Cal payments for medical services rendered is barred from seeking any unpaid balance from the patient. So the amount billed but unpaid wasn't an actual medical expense.

In re Anthony M.; 2007 DJ DAR 16743; DJ, 11/9/07; C/A 3rd

November 8, 2007

NINTH CIRCUIT SAYS "SAFETY VALVE" NOT APPLICABLE TO MARITIME DRUG LAW ENFORCEMENT ACT

The "safety valve" sinks in the jurisdictional Maritime waters.

Defendants were convicted of drug crimes under the Maritime Drug Law Enforcement Act. The sentencing court applied the safety valve to the mandatory minimums, then codified at 46 USC 1903.

On appeal, the 9th (Smith and Kleinfeld) hold that the safety valve statute, 18 USC 3553(f), unambiguously does not apply to the offense because it is not expressly included in either the safety valve statute nor in 21 USC 960(a). If it is not enumerated, then the statutory canons sink its application.

Furthermore, the 9th finds that the legislative construction and history do not support treating 1903 offenses as the same as 960 offenses. In dissent, Fisher argues that the reading of the statute is not so clear. Section 1903 read that it should be punished like section 960, and all offenses in 960 get the safety valve. Fisher would find that it is ambiguous, and that policy supports application.

This is a case that ought to go en banc.

U.S. v. Gamboa-Cardenas, No. 05-50151 (11-8-07).

November 8, 2007

WOMAN RAPED BY POLICE OFFICERS GETS $7 MILLION IN PUNITIVE DAMAGES

Doe, a 25-year-old woman, was standing outside a store when she was approached by two police officers. They allegedly asked her to get into a patrol car so they could take her to a police station for questioning.

Instead, they took her to a vacant parking lot and took turns raping her. She went to a hospital after the rapes and underwent a rape kit. She suffered post traumatic stress disorder as a result of the rapes, causing constant nightmares and a fear of leaving her house along.

The police officers, who had been fired from their jobs after they were arrested for the rapes, pleaded guilty to criminal charges of indecent assault and official oppression and were put on probation.

Gee, imagine that. Two cops gang rape a woman under power of authority, and they get probation. Who is the DA out there in Philly?

cop.jpg

Anyway, apparently a jury wasn't as respectful of the two rotten rapists as was the local DA. The jury awarded Doe $8.3 million, including $7 million in punitive damages. Plaintiff's counsel was Dominic Guerrini and Jonathan Cohen, both of Philadelphia.

Doe v. City of Phila., U.S. Dist. Ct., E.D. Pa., No. 2:02-cv-04727, Nov. 8, 2007.

November 7, 2007

NINTH CIRCUIT HOLDS THAT MISDEMEANOR BENCH WARRANT FOR FAILURE TO APPEAR WARRANTS ENTRY INTO HOME

The Ninth Circuit holds that "police possessing a valid bench warrant for the arrest of a person who has failed to appear may enter the person's residence to the extent necessary to execute the warrant."

The police stopped a car and while investigating, a passenger, known to the police from a prior fled. The police learned there was a warrant for him for failure to appear, and so went to his address. The police entered the apartment listed on the warrant, and in the search found evidence of drugs in the bedroom and in the room rented by the defendant here. This lead to a warrant being issued to search the apartment, which was done later, and guns were found in the defendant's bed.

The Ninth Circuit took the approach of the Second Circuit that a neutral magistrate issued a warrant for probable cause for an arrest, and that satisfies the requirement of Payton 445 U.S. at 603.

U.S. v. Gooch, No. 06-30645 (11-1-07).


November 6, 2007

PATDOWN FRISK INTO CIGARETTE PACK VIOLATES TERRY

The Defendant in this case was detained because he matched the description of somebody involved in an assault. He was apparently intoxicated.

A patdown produced a hard cigarette pack which the officers opened, and then saw a folded piece of paper which was opened finding drugs.

The search of the folded piece of paper was not justified under Terry. The alternative justification conjured up by the cop for a public intoxication search incident was rejected as a post hoc rationalization because the determination was made to arrest for the drugs and not intoxication, by the officers' own testimony.

Bad Cop, No Donut.

United States v. Lee, 2007 U.S. Dist. LEXIS 82241 (E.D. Va. November 6, 2007).*


November 6, 2007

SEARCH INCIDENT EIGHT MINUTES AFTER ARREST AND HANDCUFING OKAY FOR THE EIGHTH CIRCUIT

The search by law enforcement incident of a vehicle eight minutes after the defendant was handcuffed and in custody in a police car was still valid under the bright line rule of Belton and Thornton.

United States v. Grooms, 2007 U.S. App. LEXIS 25779 (8th Cir. November 6, 2007).

What is interesting and worth noting in this passage is the defendant's policy argument which the court found unavailing. The fact it was mentioned at all suggests that the court might have been sympathetic to it, but bound by SCOTUS precedent.

"Defendant Grooms relies on this statement in Thornton and argues he is not a recent occupant because eight minutes is too long after an arrest to conduct a valid search incident to arrest. In United States v. Hrasky, however, we found an automobile search which began one hour after the defendant was arrested was a valid search incident to arrest because we found the defendant was a "recent occupant." 453 F.3d 1099, 1102 (8th Cir. 2006). We noted "the determination of whether a search is a contemporaneous incident of arrest involves more than simply a temporal analysis" and concluded "a search need not be conducted immediately upon the heels of an arrest, but sometimes may be conducted well after the arrest, so long as it occurs during a continuous sequence of events." Id. We reasoned the search in that case "took place at the scene of the arrest, immediately after the police determined to proceed with a full custodial arrest" and was therefore valid. Id. at 1103. In this case, we find the search of Grooms's vehicle occurred during a continuous sequence of events after his stop. Eight minutes is not a long period of time and some of the delay can be attributed to Grooms's attempts to offer explanations for his prior criminal conviction, for his return to the pub, and for his possession of the two cases. Under Hrasky, we find Grooms was a recent occupant of his automobile."

"In addition, as a policy matter, Grooms argues the search should be found invalid because there were no safety issues and no probable cause to believe evidence relevant to the crime of arrest would be found in his vehicle. Grooms argues the law governing the Fourth Amendment exception for a search incident to arrest has diverged from the rationale expressed in Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969). He argues the dual purpose behind a contemporaneous search incident to arrest of both the person arrested and the immediate surrounding area is (1) the need to remove weapons that might be used to resist arrest or escape and (2) the need to prevent concealment or destruction of evidence. Belton, 453 U.S. at 457-58 (citing Chimel, 395 U.S. at 762-63). Once a person has been arrested, frisked and handcuffed, Grooms argues the rationale for a search for weapons used to resist arrest or escape disappears. With respect to the need to prevent concealment or destruction of evidence, Grooms argues searches should be limited to those cases in which there is probable cause to believe evidence relevant to the crime of arrestmight be found in the vehicle."

His argument in this case provides an excellent forum for determining whether Belton and Thornton should be modified in light of what he argues is an erosion of their underpinnings.

November 5, 2007

NINTH CIRCUIT REJECTS LIFETIME SEX REGISTRATION REQUIREMENT

The defendant here appealed the imposition of lifetime sex registration requirement. He argued that it was unreasonable, and in addition that the conditions were not justified nor supported.

The defendant had a prior child sexual assault when he plead to possession of child pornography. The court sentenced him to 120 months and imposed lifetime SR, with special conditions of various sexual testing and requirements to take medication. The Ninth Circuit held that lifetime sex registration requirement was reasonable (the defendant was 58).

The Ninth Circuit reasoned though that the court failed to justify penile plethysmograph and Abel testing given the Weber decision, and the high rate of error and other conditions that could be imposed.

Likewise, the requirement to take all medication without specifying what medication, or for what purpose, was also overboard. The court needs to justify and explain the bases for its special conditions.

The Ninth Circuit also stressed that no notice was given and that was error as well because the conditions were not standard. The Court, lastly, interpreted the plea as allowing the appeal because the lifetime SR was beyond the contemplation, arguably, of the plea and Guidelines at the time.

U.S. v. Cope, No. 06-50441 (11-5-07).

November 5, 2007

NINTH CIRCUIT OVERRULES PRIOR PRECEDENT: SUSPENDED MISDEMEANOR SENTENCES CANNOT BE USED TO ENHANCE SENTENCE

The language "term of imprisonment" in U.S.S.G. section 4A1.2(c)(1) refers only to certain non-felony sentences for which the defendant actually served a period of imprisonment.

U.S. v. Williams, 291 F.3d1180, 1195 (9th Cir. 2002), in which the circuit court held that a totally suspended six-month sentence for criminal mischief counted as a "prior sentence," mandating an additional point on the defendant's criminal history score, is overruled.

U.S. v. Gonzales, No. 04-30007

November 2, 2007

COP'S CALIFORNIA DUI STOP JUSTIFIED

When the defendant's tires went over the limit line drawn on a street, the driver had violated Vehicle Code section 22450 and the officer could make a stop (which revealed odor of alcohol, etc.). A "stop at a limit line" requires a full stop before any part of the vehicle crosses the limit line.

The California DUI defendant's motion to suppress evidence based on an unlawful stop was denied.

People v. Binkowski (Super. Court App. Div., 11/2/07, CR.A.4355) 07 C.D.O.S. 13520


November 2, 2007

NERVOUSNESS AND CORN-ROWED HAIR NOT ENOUGH FOR REASONABLE SUSPICION

Reasonable suspicion in this very interesting case was lacking because no factors really suggested the defendant was a suspect.

Hallalujah!

The Court states that the Defendant's handcuffing was not a minimal intrusion, and it was not based on reasonable suspicion. Taking and applying the LaFave factors from LaFave's Criminal Procedure, as follows:

(1) the particularity of the description of the offender or the vehicle in which he fled;
(2) the size of the area in which the offender might be found, as indicated by such facts as the elapsed time since the time occurred;
(3) the number of persons about in that area;
(4) the known or probable direction of the offender's flight;
(5) observed activity by the particular person stopped; and
(6) knowledge or suspicion that the person or vehicle stopped has been involved in other criminality of the type presently under investigation.

The court, considering them seriatim, finds no reasonable suspicion.

The strongest factor the court found was corn rowed hair, which the appellate court finds not subject to judicial notice that it was unusual enough to be a factor.

Nervousness is also not a factor because even the innocent are nervous when they are stopped by the police.
(Thank you for saying what we have always known and argued)

Madison-Sheppard v. State, 2007 Md. App. LEXIS 137 (November 2, 2007).

November 1, 2007

COPS GET QUALIFIED IMMUNITY FOR ENTERING UPON INVESTIGATION OF DOMESTIC VIOLENCE

Officers here who entered a house to arrest the plaintiff in a domestic violence situation were entitled to qualified immunity in the subsequent civil rights suit.

Even though it was not a "hot pursuit" situation, it was a situation which needed immediate investigation for the safety of all concerned.

Cannon v. Hamilton County, 2007 U.S. Dist. LEXIS 81407 (E.D. Tenn. November 1, 2007), relying on Hancock v. Dodson, 958 F.2d 1367 (6th Cir. 1991).*