California Criminal Lawyer Blog

From the Los Angeles Times

Los Angeles judge drops Hollywood drug case after video contradicts police testimony
In echoes of Rampart scandal, defense attorney says officers planted cocaine on man accused of being a gang member. On surveillance tape produced at trial, one officer tells another: 'Be creative in your writing.'

By Jack Leonard
Los Angeles Times Staff Writer

July 1, 2008

A Los Angeles judge abruptly ended a trial and exonerated a man of possessing cocaine Monday after a courtroom confrontation in which a defense attorney produced a surprise video of his client's arrest that sharply contradicted the testimony of two police officers.

Superior Court Judge Monica Bachner dismissed charges against Guillermo Alarcon Jr., a grocery store worker, after prosecutors reviewed the tape and acknowledged that it was inconsistent with the officers' sworn testimony.

Los Angeles Police Department officials said they had launched an internal affairs investigation of the officers. Additionally, prosecutors said they would refer the matter to a division within the Los Angeles County district attorney's office that investigates police misconduct cases.

During the trial, which began Friday, the officers told jurors that they had chased Alarcon, 29, into his Hollywood apartment building last year and seen him throw away a black object. They testified that one of the officers picked up the object a few feet from where Alarcon was standing and discovered powder and crack cocaine inside.

But footage from the grainy video, which Alarcon's attorney said came from an apartment building surveillance camera, shows that it took the two officers more than 20 minutes to find the drugs. They were also aided by other officers in their search.

The quality of the tape, a copy of which was obtained by The Times, is poor and it is difficult to clearly hear what is being said. But at one point, an officer seems to make a reference to the arrest report that needed to be filled out.

"Be creative in your writing," the officer appears to tell another after the discovery.

"Oh yeah, don't worry, sin duda [no doubt]," comes the reply.

In allegations echoing misconduct from the Rampart corruption scandal of the late 1990s, Deputy Public Defender Victor Acevedo said the cocaine was not Alarcon's and described the prosecution's case as "completely trumped up."

"They have two officers who came into court and blatantly lied and planted evidence," he told Bachner on Monday.

Continue reading "COPS DROP DRUGS ON INNOCENT SUSPECTS-LOS ANGELES COPS AT IT AGAIN" »

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Posted In: Bad Cop - No Donut , California , Civil Rights , In The News , Police Misconduct Cases , Search & Seizure Cases

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The United States District Court for the Northern District of California has set the standards for strip searches occuring in the field, away from a jail or police station. Foster v. City of Oakland, 2008 U.S. Dist. LEXIS 24610 (N.D. Cal. March 27, 2008):

What is not clear is the extent to which a strip search may be conducted in the field. There is no case law suggesting that such a search may be performed in the absence of an arrest. All of the cases are premised on there being an arrest, not merely a detention or a stop for questioning.

An arrest must be based on probable cause and may thus justify some type of search depending on the circumstances. However, detentions and stops that are short of an actual arrest will not support a strip search or, indeed, any kind of search except for a Terry search when the standards of Terry v. Ohio, 392 U.S. 1 (1968), justify a Terry stop.

Given the limits on strip searches even in a jail setting, certainly the limitations are greater when the search is in the field pursuant to a valid arrest.

It is clear that the "full search" authorized by Robinson is ordinarily conducted for the officers' safety. A "full search" incident to arrest, however, does not permit a strip search or bodily intrusion. Like the searches in Fuller, the searches in the instant case are unrelated to prison security.

Field strip searches by definition occur before a suspect has arrived at a detention facility. And even after the arrestee has arrived at the facility, security concerns may not be great enough to justify invasive searches upon reasonable suspicion if the detainee is not to be admitted to the general jail population or the search is merely for evidence. Fuller, 950 F.2d at 1448. Only after an arrestee has arrived at a detention facility does institutional security become a factor, thereby permitting searches for weapons or contraband based upon reasonable suspicion. Prior to his arrival at the facility, an arrestee poses no threat to prison security, and officers in the field are adequately protected by their ability to perform security searches incident to arrest.

Therefore, the court concludes that officers in the field are generally limited to a search incident to arrest as described in Robinson and that strip and more invasive searches in the field may only be performed under exigent circumstances and with probable cause which may, consistent with the above, require a warrant.

In sum, the court concludes that the Fourth Amendment requirements for the three types of strip searches performed in the field--strip search, visual body cavity search and physical body cavity search--are as follows:

1) there must be exigent circumstances;

2) the search may only be performed on persons who have been lawfully arrested on probable cause and may not be performed on anyone for whom there is no probable cause to arrest;

3) the search requires probable cause that is independent of the probable cause found for the arrest;

4) the search may only be performed when there is probable cause to believe that the arrestee is in possession of weapons, drugs or dangerous contraband; and

5) additionally, physical body cavity searches require a warrant authorizing the search and must be administered by an authorized medical professional.

Continue reading "CALIFORNIA CIVIL RIGHTS NEWS: CALIFORNIA FEDERAL COURT SETS STANDARDS FOR STRIP SEARCHES IN THE FIELD" »

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CALCRIM 362 (formerly CALJIC 2.03) tells the jury that they can consider a willfully false or deliberately misleading pretrial statement made by the def. in order to show consciousness of guilt, but that the jury can't convict solely based on such a statement.

The Court of Appeal rejects a challenge to CALCRIM 362, saying that it doesn't unfairly pinpoint one piece of evidence.

On a second issue, the Court of Appeal says that the court doesn't have a sua sponte duty to instruct on lack of flight by the defendant.

Comment: We search high and low for the case that says that the judge does have to instruct the jury that lack of flight shows consciousness of innocence, because the other side gets the opposite instruction that goes against us. But there's no such case. The closest is People v. Williams, 55 Cal.App.4th 648, which says that the judge has discretion to give such an instruction.

People v. McGowan; 2008 DJ DAR 3393; DJ, 3/11/08; C/A 3rd

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SAN DIEGO CRIMINAL DEFENSE NEWS: Now, I'm all for fighting the good fight, pushing the envelope, raising the Sword of Gideon and all that, but when your methhead client drives around the streets with his meth, and his license plate is on upside down, well, he just deserves to be caught. And did the appellate attorney argue this case with a straight face? (CRINGE)

People v. Duncan (2008) , Cal.App.4th
[No. D050458. Fourth Dist., Div. One. Mar. 5, 2008.]
THE PEOPLE, Plaintiff and Respondent, v. LEONZA KEVIN DUNCAN, Defendant and Appellant.

(Superior Court of San Diego County, No. SCS201879, Alvin E. Green, Jr., Judge.)

(Opinion by McIntyre, J., with McConnell, P. J., and Huffman, J., concurring.)

COUNSEL

Lise M. Breakey, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, James D. Dutton, Supervising Deputy Attorney General, and Deana L. Bohenek, Deputy Attorney General, for Plaintiff and Respondent.

OPINION
MCINTYRE, J.-

This case presents an issue as to whether driving with an upside down license plate constitutes a violation of Vehicle Code section 5201. (All further statutory references are {Slip Opn. Page 2} to the Vehicle Code.) As a matter of first impression in California, we conclude that the answer is yes.

Continue reading "PROBABLE CAUSE FOUND IN SAN DIEGO DRUG CASE WHERE STOP WAS BASED ON UPSIDE-DOWN LICENSE PLATE " »

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The defendant came in to be arrested and brought a backpack, and inside was a Blackberry, which the officers searched and seized the "contacts" list. The court required further briefing of the issue of access to the Blackberry. The USMJ denied the motion to suppress the contents of the Blackberry, but the USDJ wants further briefing. United States v. Carroll, 2008 U.S. Dist. LEXIS 7485 (February 1, 2008):

As Carroll and the Government identify, this and other courts have reached varying conclusions on whether searches of an arrestee's mobile phone is a lawful search incident to arrest, and if so, how far that lawful search may extend. Among the questions courts have considered are whether a mobile phone fits within the category of property intimately associated with an arrestee's person, United States v. Park, No. CR 05-375 SI, 2007 U.S. Dist. LEXIS 40596, 2007 WL 1521573, at *7-8 (N.D. Cal. May 23, 2007), how contemporaneous the search must be relative to the arrest, United States v. Mercado-Nava, 486 F. Supp. 2d 1271, 1277 (D. Kan. 2007), and whether the search is limited to a phone's dynamic memory. United States v. Zamora, No. 1:05-CR-250-WSD, 2006 U.S. Dist. LEXIS 8196, 2006 WL 418390, at *4-5 (N.D. Ga. Feb. 21, 2006).

The Court notes also that in this case, Carroll voluntarily surrendered himself for arrest and voluntarily brought his backpack, containing the Blackberry, to law enforcement offices at the time of his surrender. Unlike the situations considered in Zamora, Ortiz, and Park, Carroll had the opportunity to make a conscious choice about which of his effects were available to law enforcement at the time of his arrest. Neither Carroll nor the Government has developed this issue factually, nor has the issue been briefed. The Court will defer ruling on the motion to suppress the information resident in the Blackberry until an evidentiary hearing is conducted and the parties further brief this issue.

Comment: See the post here on search incident of an iPhone.

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Posted In: California , Federal Cases , Search & Seizure Cases , U.S.

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To date, fewer than a dozen courts across the country have addressed searches of cell phones incident to arrest.

The Fifth Circuit’s recent 2007 in United States v. Finley is representative. Police arrested Finley after a staged drug sale. The police then searched Finley incident to arrest and found a cell phone in his pocket. One of the investigating officers searched through the phone’s records and found text messages that appeared to relate to drug trafficking. One incoming text message said “So u wanna get some frozen agua,” a common term for methamphetamine. Another text message said “Call Mark I need a 50,” a likely reference to asking for $50 worth of narcotics. Finley was convicted of aiding and abetting drug possession with intent to distribute.

In United States v. Park et al. , the United States District Court for Northern District of California reviewed a case where several subjects, including Edward Park, were arrested as San Francisco officers were about to execute a search warrant. Several individuals, including Park showed up at the location of the warrant. These subjects were detained while the warrant was executed and arrested after the police found significant amounts of marijuana growing at the location.

When the subjects were brought to the station there cellular telephones were seized. After one to one and a half hours the phones were searched. During a search of each phone, evidence was found in the address book which implicated the subjects in the illicit operation. The government sought to use this information in the prosecution of these subjects while the defense sought to suppress the evidence from the phones.

In reviewing the search of the phones the trial court noted: “Neither the Supreme Court nor the Ninth Circuit has addressed whether officers may search the contents of a cellular phone as a search incident to arrest, and the Court is aware of only one circuit court case on the issue, United States v. Finley, 477 F.3d 250 (5th Cir. 2007).” The court then distinguished this case from Edwards on the grounds that the cellular telephones were possessions within the arrestees control rather than that which is on their person.

In doing so, the court cited the United States Supreme Court decision in U.S. v. Chadwick in which a footlocker seized from an auto was searched without a warrant. The Supreme Court ruled in Chadwick that a warrant should have been obtained once the item was in police custody. The Supreme Court subsequently overturned the Chadwick rule in California v. Acevedo. In a footnote the court in this case attempted to distinguish Acevedo due to the fact that the footlocker was taken from a vehicle and the search was based in probable cause rather than incident to arrest.

The court in this case concluded that the investigators should have obtained a warrant before searching the contents of the phone back at the station. The court left open whether the officers could have searched the phone at the time of the arrest. Some other courts have not agreed with this Federal trial court.

Now, a college professor has authored an article disputing the Park line of cases and suggesting that courts and legislatures adopt stronger protections against searches of iPhones. See below.

The iPhone Meets the Fourth Amendment

ADAM M. GERSHOWITZ
South Texas College of Law
--------------------------------------------------------------------------------
January 15, 2008

Abstract:
Imagine that police arrest an individual for a simple traffic infraction, such as running a stop sign. Under the search incident to arrest doctrine, officers are entitled to search the body of the person they are arresting to ensure that he does not have any weapons or will not destroy any evidence. The search incident to an arrest is automatic and allows officers to open containers on the person, even if there is no probable cause to believe there is anything illegal inside of those containers. What happens, however, when the arrestee is carrying an iPhone in his pocket? May the police search the iPhone's call history, cell phone contacts, emails, pictures, movies, calendar entries and, perhaps most significantly, the browsing history from recent internet use? Under longstanding Supreme Court precedent decided well before handheld technology was even contemplated, the answer appears to be yes. This article demonstrates how the full contents and multiple applications of iPhones can be searched without a warrant or probable cause under existing Supreme Court precedent. The article also offers approaches courts and legislatures might adopt to ensure greater protection for the soon-to-be pervasive iPhone devices.

Click HERE to get article.

Continue reading "THE iPHONE MEETS THE FOURTH AMENDMENT" »

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The California Fourth District Court of Appeal holds in this bizaare case that it was not error to strike the defendant's testimony at a suppression hearing where the prosecutor on cross examination went into the merits of the case, not just the search issue, as to how the defendant came to know about the marijuana and what she intended to do with it because it was relevant to her credibility on the suppression motion.

The defense counsel invoked the Fifth Amendment on cross examination, so the trial court struck her testimony. No alternative to striking the testimony was offered by the defense.

People v. Seminoff, 2008 Cal. App. LEXIS 144 (4th Dist. January 29, 2008):

The prosecutor then asked her if she intended to sell the marijuana, and that prompted the same objection from defense counsel. Again, the court overruled the objection. It warned defense counsel that unless Bassett answered the prosecutor's questions, the court would strike her testimony in its entirety. The court then took a short break to allow defense counsel to converse with Bassett.

When the hearing resumed, defense counsel said Basset was willing to proceed with cross-examination on a question-by-question basis. He also indicated that, based on the court's previous rulings, she was willing to answer questions about whether she intended to sell the marijuana.

However, when the prosecutor asked her that question, defense counsel objected on both relevancy and Fifth Amendment grounds. In overruling the objections, the court stated “cross-examination should be allowed to reveal whether or not, among other things, [Bassett] has a coherent credible story about the events involved, whether or not she can remember details, whether or not she has an interest in the outcome.”

The court also told defense counsel that if Bassett continued to invoke her privilege against self-incrimination, it would have no choice but to strike her testimony. When defense counsel responded that Bassett was not going to answer the prosecutor's questions about the marijuana, the court did just that.

Comment: This case does not even cite Simmons that a defendant's testimony at a suppression hearing cannot be used at the trial unless the defendant testifies contrary to it. Here, the trial judge told the defendant that her testimony could be used against her at trial. This case is strange and unsupported under the Fifth and Fourth Amendments, and should be reviewed by the California Supreme Court.

But it won't. It should, at least, be depublished.

Continue reading "CALIFORNIA CRIMINAL DEFENSE NEWS: FOURTH DISTRICT COURT OF APPEAL STRIKES DEFENDANT'S TESTIMONY AT SUPPRESSION MOTION AFTER TELLING DEFENDANT IT CAN BE USED AGAINST HIM AT TRIAL: SAY WHAT?" »

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I can't help but laugh when I review Los Angeles Public Defender Al Menaster's commentary on new California criminal cases. Here's the newest comenatry on People v. Hua, which I posted earlier in the week. Clikc HERE to see that post.

Menaster's commentary:

In Welsh v. Wisconsin (466 US 740), the US Supremes held that the exigency exception to the requirement that the police have a warrant in order to enter a home applies only where the crime being investigated isn't minor.

In Welsh, the crime was driving under the influence; the US Supremes held that this crime was too minor to permit invasion of a home without a warrant.

Of course, the Cal. Supremes upheld entry of a home based on exigent circumstances for a DUI, saying that in Cal., a DUI was so much more serious than a DUI in Wisconsin. Right...

Anyway, this case involves a police entry into a home to investigate the serious crime of, drum roll please, possession of less than one ounce of marijuana. Even this C/A can't stomach this one. They apply Welsh and hold that the entry can't be justified by exigent circumstances.

People v. Hua; 2008 DJ DAR 409; DJ, 1/14/08; C/A 1st

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Two Pacifica police officers observed several individuals smoking marijuana in an apartment rented by defendant John Hua. The cops entered, without either a warrant or consent, and eventually discovered growing marijuana plants and a cane sword.

Hua was originally charged with cultivation of marijuana (H&S Code §11358) (count 1), possession for sale of marijuana (H&S Code §11359) (count 2), and felony possession of a cane sword (PC §12020(a)) (count 3).

In the trial court, Hua challenged the cops warrantless entry and the subsequent search of his apartment in a motion to suppress the evidence seized by the cops. (PC §1538.5.) The trial court denied the motion, concluding the entry was justified by exigent circumstances.

Hau then entered a plea of nolo contendere to cultivation of marijuana (H&S Code §11358) and misdemeanor possession of a cane sword (PC §12020(a).) On appeal, Hua challenged the denial of his motion to suppress (Penal COde §1538.5(m)).

The California First District Court of Appeal, Division Five, rejected the People’s contention that exigent circumstances justified the warrantless entry of def.’s home. Under Welsh v. Wisconsin (1984) 466 U.S. 740, 753-754 (Welsh), a finding of exigent circumstances is categorically precluded when the only crime the cops are aware of when they enter a residence to arrest the occupant and/or seize contraband is possession of no more than 28.5 grams of marijuana.

Comment: While not a DUI case, this DCA1 opinion relies on U.S. Supreme Court precedent - Welsh v. Wisconsin (1984) 466 U.S. 740, 753-754 (Welsh), a DUI case where the cops made a warrantless entry into a residence and also effected a warrantless arrest, a case which you may recall was specifically distinguished by our California Supreme Court in People v. Thompson (2006) 38 C4th 811 on the grounds that in California, a first-time DUI is a misdo, not a non-jailable civil offense and, oh yes, there were exigent circumstances here – alcohol burn-off. Oh, right!

Click HERE for the full opinion.

……………………………..

Continue reading "CALIFORNIA CRIMINAL DEFENSE LAWYER NEWS: CALIFORNIA COURT OF APPEAL REJECTS PROSECUTORS ARGUMENT THAT EXIGENT CIRCUMSTANCES EXISTED FOR WARRANTLESS SEARCH OF DEFENDANT'S HOME" »

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Following O'Connell v. City of Stockton (2007) 41 Cal.4th 1061, Second District Court of Appeal holds that an ordinance permitting the seizure and forfeiture of cars used by persons committing certain offenses (here, soliciting prostitution) are pre-empted by state law.

City of Los Angeles v. 2000 Jeep Cherokee (C.A. 2nd, 1/8/08, B185673c/B188182) 08 C.D.O.S. 259

Continue reading "FORFEITURE CASES-LOCAL ORDINANCE IS PRE-EMPTED" »

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The police were entitled to a warrant to search the defendant's property because of the unsightly junk he collected there for his various engineering projects. Carpiaux v. City of Emeryville, 2007 U.S. Dist. LEXIS 91574 (N.D. Cal. December 13, 2007).*

Hint: Clean up your front lawn if you live in Northern California.

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This California criminal stop case goes in the "you've got to be kidding me" pile. People v. Colbert (6th District)

The driver in this case had a tree-shaped air freshener hanging from the rear view mirror of his car, not unlike those smelly "vanilla" trees the car wash tries to pawn off on me all the time after they wash my car.

A police officer saw the hanging object, concluded that it was obstructing defendant’s view through the front windshield in violation of California Vehicle Code §26708(a)(2), and stopped and detained defendant. The cop found a bunch of methadone pills.

The driver asserted, at a suppression motion, that the officer lacked an objective basis for concluding that the air freshener was obstructing his view through the front windshield.

The California Sixth District Court of Appeal concluded that the evidence in this case, unlike the evidence in People v. White (2003) 107 CA4th 636 (White), supported the magistrate’s finding that the officer had an objective basis for his belief that the air freshener was obstructing defendant’s view.

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Southern California Courts Orders Pot Returned to Medical Marijuana User

The police seized marijuana from the defendant. The defendant had doctor's approval to use the marijuana, so charges were dismissed under the California medical marijuana law. The defendant moved for return of his marijuana from the police. The California Court of Appeals, Fourth District, says he's entitled to get the stuff back.

The argument rejected by the Court of Appeal is that this violates federal law. The Court of Appeal says that federal law doesn't bar return of the marijuana to a qualified user permitted to have it under state law.

City of Garden Grove v. Superior Court; 2007 DJ DAR 17553; DJ, 11/30/07; C/A 4th

Continue reading "SOUTHERN CALIFORNIA COURT ORDERS COPS TO RETURN MARIJUANA" »

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In this federal civil rights lawsuit in the Northern District of California, the Court determined Friday that the blanket strip search policy of a juvenile detention center by Contra Costa County officials survived summary judgment.

This case offers fascinating summaries of the summary judgment material presented by Plaintiffs showing the potential psychological damage to a juvenile from a strip search. Under the facts of this case, the search of the juvenile plaintiff occurred long after introduction into the detention facility.

Also, circuit law was unclear, but there was a 1981 case favoring plaintiff and there were three cases from other district courts in other circuits in point that the court used to show the claim was valid. This is a lengthy opinion developed from what appears to be a particularly strident response from the defendants on summary judgment. Moyle v. County of Contra Costa, 2007 U.S. Dist. LEXIS 89509 (N.D. Cal. December 5, 2007):

While the Court agrees that the circumstances in Flores did not present the sort of difficult security issues faced by Contra Costa Juvenile Hall, it concludes, nonetheless, that Defendants' evidence falls short of establishing the constitutionality of blanket strip searches--both upon intake and after returning from visits with individuals who were not employed by Juvenile Hall.

With respect to the strip searches that were conducted upon admission to Juvenile Hall, there has been no showing that the contraband listed in the contraband log was seized from juveniles like Ermitano, whose crime did not involve violence, drugs, or weapons. Further, in the face of Plaintiffs' evidence that this contraband could have been detected through the use of pat searches and a metal detector, Defendants offered no evidence showing that the more intrusive strip search was required. Nor have they pointed to evidence that any of the contraband listed on the logs was concealed in a body cavity. Similarly, with respect to the strip searches conducted after visits with probation counselors and parents, there has been no showing that strip searches are necessary to protect the children at Juvenile Hall. Indeed, the possibility that contraband or weapons might be given to juveniles by probation counselors seems particularly unlikely.

Continue reading "CALIFORNIA FEDERAL CIVIL RIGHTS LAWSUIT ATTACKING BLANKET STRIP SEARCHES OF CALIFORNIA JUVENILES IN DETENTION FACILITIES SURVIVES SUMMARY JUDGMENT" »

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