David M. Boertje

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Fourth Amendment protections guard Americans from unreasonable searches and seizures. However, the use of dogs in helping to conduct searches for contraband and drugs is quite common throughout the country. That is where the potential for violations of these protections can become a serious issue. 

Traffic Stops

Police dogs are often used during traffic stops.  To be clear, police are required to have a legitimate reason to stop a vehicle in the first place, such as witnessing an improper lane change, for example. You can be pulled over and issued a citation, but they must have probable cause to believe you have committed a crime or see evidence of a crime in order to search the vehicle without your permission. In other words, without your consent, they cannot search, and a dog cannot even circle the outside of your vehicle. Additionally, police cannot force you to wait around longer than necessary in order to get a dog to the scene, and they cannot use the dog to obtain probable cause of a crime without your advance consent. 

If an officer reasonably believes that there are exigent circumstances, they can prolong your stop. That would mean there is evidence to suggest:

  1. You have a weapon on your person or within arm’s length;
  2. You are likely to destroy evidence of a crime.

 How Accurate are Dog Searches When they Occur?

In a study conducted by the Chicago Tribune, researchers concluded that just 44% of dog alerts led to findings of drugs or drug paraphernalia. However, in the case of Latino drivers, the accuracy rate for the dogs dropped to a ridiculously low 27%. Both statistics are alarming, and the discrepancy amplifies concerns. What could be the reason behind this inconsistency? It is illogical to think the dogs could be racist! Dog experts believe the problem lies with the handlers, who can inadvertently or intentionally miscue their dogs when they take them around a vehicle too frequently or too slowly. When handlers are more suspicious of particular individuals, the dogs could be given indications that they should alert.

At Your Home 

Privacy protections in your home are guaranteed by the Fourth Amendment, as well. In order for police to bring a dog to your home,  they must have probable cause. The dog is not allowed at your door or on your porch or unless officers have a warrant, probable cause, or your consent.

Airport Sniffers

In an airport, it is not considered a search when a police dog sniffs luggage randomly, and officers have no need for probable cause when bringing dogs through. There are several types of screening dogs that are commonly found in airports:

  1. Drug-sniffing dogs in search of narcotics;
  2. Bomb-sniffing dogs in search of bomb components,  C-4, and TNT;
  3. Dogs searching for agricultural contraband such as banned foods and/or invasive species.

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White collar crimes may seem somewhat innocuous because they are not violent. Nonetheless,  they do cause considerable harm. That’s why the government tracks such cases and charges them eagerly. These offenses rely on deception and abusing others’ trust. When this activity crosses state lines or occurs on federal property, it becomes a federal crime, which must be investigated and prosecuted by the IRS, the FBI, and/or the Securities and Exchange Commission (SEC). If you are facing federal white collar crime charges, you need a practiced criminal defense attorney on your side looking out for your rights. 

Some Common White Collar Crimes

There are multiple crimes that fit into the category of federal white collar crimes.  Some of the most common include: 

  • Bribery: Exerting influence on individuals in positions of power or trust with monetary inducements;
  • Wire fraud: Using electronic systems such as the internet, email, etc., to engage in fraudulent activities for financial gain;
  • Mail fraud:  Using the U.S. Postal Service in the furtherance of fraudulent actions;
  • Embezzlement: Misappropriating the belongings or monies of unsuspecting individuals.

The Federal Whistleblower Pilot Program

A Corporate Whistleblower Awards Pilot Program  has been started up by the Department of Justice (DOJ). Through it, whistleblowers are encouraged to report fraudulent activity, and, if the information they provide leads to a conviction, they may eventually be rewarded with a portion of forfeited assets. 

Penalties 

The financial devastation that occurs after being duped by a white collar criminal is crushing for both individuals and businesses. This country says goodbye to over $300 billion annually due to these crimes, which makes prosecutors determined to get convictions for them. There is a range of penalties for a guilty verdict, which become more serious as the degree of financial harm rises. They include any combination of the following:

  • Home detentions;
  • Community confinement;
  • Supervised release;
  • Responsibility for the costs of prosecution;
  • Restitution for victim’s losses;
  • Fines;
  • Property related to the illegal actions being forfeited;
  • Imprisonment.

Defending Charges

Your experienced and knowledgeable defense attorney will examine the case against you and decide on a defense strategy that may include, among others:

  1. Arguing that you, too, were conned by others and were unaware that a swindle was occurring;
  2. There was no proximate cause;
  3. You had no intention of defrauding others.

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It is tough to imagine a more sinister crime. In a criminal case alleging child sexual abuse, public sentiment is essentially guaranteed to be against the defendant, which is just one of the reasons that these kinds of cases are innately difficult to fight. For the person on trial, the unqualified trepidation associated with the charges and trial is logical. A defendant’s life will never be the same—the verdict notwithstanding. Being accused of child sexual abuse or exploitation— whether it’s viewing or filming pornography, lewd acts, incest, or actual assault of a child— will have grim consequences delivered by society, regardless of whether a legal penalty is deemed appropriate. 

The Challenges of These Cases

The cases themselves contain vile details that elicit a strong reaction from the public, who simply cannot conceive of a child fabricating such a tale. Most of the time these cases are based primarily on what a child reports, and, because a huge portion of such cases are reported long after the alleged abuse occurred (the law allows plaintiffs to initiate a case up to the age of 40 for childhood incidents, or within five years of suffering psychological injuries), there is often literally no forensic evidence available to imply guilt or innocence. Additionally, there is generally no eyewitness testimony to support claims of criminal acts. Even though these cases rely heavily on personal recollections and circumstantial evidence, defending someone facing these charges is extremely difficult due to the nature of the charges and the reasonable obligation to shield innocent children. This leaves defense with three key points to examine: 

1- Whether Plaintiff’s Claims are Plausible

The defense must attempt to create reasonable doubt as to the likelihood that the events occurred as reported. That will entail reconstructing the timeline of events down to the last detail and attempting to provide autonomously-verifiable facts to support the defendant’s version of events. It will require a search for records to confirm that the defendant was in a different location when the alleged crime occurred or other evidence to create doubt in the jurors’ minds. Phone records, receipts, credit card statements, and events around the time of the accusations should be examined to see if they can implicate innocence. 

2- Whether the Witness is Credible 

The defense must examine any inconsistencies in the plaintiff’s statement by communicating with anyone possible to get an image of the child’s personality. Friends, neighbors, teachers, and others may be able to shed some light on the conditions of a child’s life at the time of the purported crime. The defense may be able to utilize facts about the child’s home life, including aspects related to conflict, the need for attention, and so on. They will also conduct an investigation to discover whether the child was ever involved in any episodes of dishonesty about serious matters, and to see what, if anything, an examination of social media reveals.  Does the plaintiff discuss the accusations? Is there a tendency to seek attention or exaggerate? All of these issues will be examined. 

3- Whether an Event was Misunderstood or Misinterpreted

Although a person may honestly and credibly believe that something inappropriate occurred at the hands of the defendant, is it possible that the plaintiff’s view was contaminated by someone else who has leaned into the idea that the defendant committed a crime? While the complaint itself may be delivered truthfully, is there a possibility that what occurred has been misinterpreted, exaggerated, or otherwise shaded by the impulses of someone else who was not present for the event in question? Is there a possibility that the memory of events could have been influenced by others? A nasty divorce, for example, could feasibly be a factor in such accusations made by a child. Memories from long ago could be muddled with other facts. Did the plaintiff receive counseling in advance of the accusations? After the allegations? What could that mean for the veracity of the claims? Continue reading

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Anyone who is looking at charges of elder abuse probably already knows how emotionally charged the topic can be. In addition to criminal charges, the accused may face reputational damage, financial losses, and a tumultuous change in lifestyle. Now, more than ever, you need a criminal defense attorney who is prepared to deal with every aspect of your defense with authority and commitment.  

Defining Elder Abuse

Elder abuse occurs under a variety of circumstances and in many ways. In any case, it is distressing and can result in grim physical and psychological harm, or even premature death. Families can be divided, finances can disappear, and trust can be permanently devastated. This type of victimization occurs in the home of an elderly person, in a nursing home or care facility, or elsewhere, and can involve strangers, family members, friends, professionals, and staff members in care facilities. The abuse falls into five basic categories:

  • Neglect: The failure to provide basic care and assistance necessary for hygienic and healthy living;
  • Physical Abuse: Hitting, kicking, slapping, pinching, unnecessarily restraining, withholding medicine, and so forth causing physical harm;
  • Psychological Abuse: Controlling an elderly person through intimidation, threats, humiliation, etc.;
  • Sexual Abuse: Forced sexual contact, taking unwanted photographs of a sexual nature, and even initiating unwanted conversations of a sexual nature;
  • Financial Exploitation: Withholding an older person’s money, engaging in unauthorized or manipulated spending, or using manipulation to convince an elderly person to sign documents they don’t understand for one’s own financial benefit.

Federal Protections 

There are multiple federal laws on the books to protect older Americans:

A couple of federal laws on the books related to elder abuse enhance protective services, improve interactions between agencies, and develop principles for monitoring and certifying nursing homes. The Elder Justice Act (EJA) and the Nursing Home Reform Act work in tandem toward these ends. The Elder Abuse Prevention and Prosecution Act (EAPPA) allows for the assembling and examination of elder abuse data and delivers support to victims of abuse. 

California Penalties

The state of California takes elder abuse very seriously, with significant penalties associated with each level of abuse that might occur. If an elderly person is killed, it could mean the death penalty for the perpetrator. Rape charges could mean 8 years in state prison. Penalties for lewd acts could lead to a year in jail in the best-case scenario, and up to 10 years in prison for more serious acts. Financial crimes are punished based on the amount of money involved, and offenders could spend as little as one year in the county jail or as much as four years there, in addition to fines. Continue reading

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The trial of Sean Diddy Combs kept people’s attention over recent weeks. Watching the highly publicized trial’s outcome sparked a lot of opinions. Combs, who was facing multiple charges related to sex parties known as “freak outs,” was acquitted of the most serious charges of sex trafficking and racketeering conspiracy but found guilty of lesser charges for transporting women across state lines for prostitution. Observers are vehemently divided: Diddy supporters are thrilled, while detractors are angst-ridden. Regardless of personal reactions to the trial’s outcomes, some of the big juxtapositions from the trial are worth noting. 

Questions related to the pursuit of justice arise when considering multiple factors related to this and trials addressing similar issues. With power and wealth up against the #MeToo movement, it seems the clash of these factors and their influence on a jury can be complicated. Queries worth considering abound:

  • Without question, celebrity influence is a factor worth bearing in mind in high-profile trials. Does being well-known impact the way a jury understands events and evidence presented at trial? Can it lead to either greater indulgence or greater severity, depending on the celebrity in question?
  • Generally speaking, are everyday citizens able to acknowledge criminal acts that occur at the hands of someone whom they have previously venerated? On the other hand, is it insulting and inappropriate to suggest that jurors cannot be fair?
  • The collision of coercion and violence was underscored in this case. Is it possible to suffer beatings from an abuser, and at the same time to have complete control over your life and decisions? Is domestic violence a separate entity from coercion altogether, or are they part and parcel of the same problem?
  • Is it possible that an abusive individual gives a survivor choices about participating in sexual activity, or does a physical attack translate into the likelihood of forced sexual encounters?
  • Is cultural bias shortchanging victims of domestic violence in a culture that glorifies tough men, or are women trying to make a buck off of wealthy men?
  • Was this particular trial about a plaintiff attempting to cash in on a relationship with someone famous, or about a violent and controlling defendant who used wealth and power to take advantage of the vulnerable?
  • The Combs case highlighted the challenges associated with testifying about abusive relationships and the difficulty of proving manipulation/coercion in abusive situations. Is re-traumatization of domestic violence survivors something we should be concerned about? 
  • Are the potential harms to a superstar—even one who is acquitted—more severe than for typical defendants? How destructive is the potential of future civil litigation, in addition to the damage to career and reputation?
  • Does the treatment of alleged victims on the stand discourage others from coming forward, especially considering the outcomes in a trial like this one? Will this trial strip victims of the will to press charges against abusers? Will it empower abusers to keep at it? 

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As a way of expressing discontent, some people may choose to engage in malicious mischief, which generally refers to things like graffiti, vandalism, or other forms of damaging or defacing property. But anyone who’s tempted to take this route could face some unpleasant consequences for their actions. 

Defining Malicious Mischief

Malicious mischief includes a range of activities, all of which must be performed with malice. In other words, it must occur intentionally, not accidentally. It could be graffiti, damaging mailboxes, throwing rocks through windows, or any other form of damaging public or private property. It could also include damaging or tampering with a vehicle,  signs, or other property belonging to someone else.

What Constitutes Graffiti?

Most have seen examples of graffiti as spray paintings across bridges, walls, and so forth. While these are, indeed, graffiti, the legal definition of graffiti is much more expansive, and includes:

  • Markings of any kind that are made on someone else’s property without their permission;
  • Markings made with a variety of materials, including paint, markers, chalk, etchings, carvings, and even stickers;
  • The damage does not have to be permanent in order to be considered graffiti.

Penalties

Violating state law related to malicious mischief could result in up to $1,000 in fines and six months behind bars if the damage done amounts to less than $400. (The penalty for a second offense doubles the time in jail and bumps the fine up to $5,000).  If the damage exceeds $400, it could land the offender in jail for a year, along with up to $10,000 in fines. Finally, if the damage amounts to over $10,000, the offender’s fine could jump to $50,000. 

The judge could also tack on some additional punishments, including:

  • Requiring an offender to clean up the graffiti;
  • Requiring an offender to keep a particular area in the community graffiti-free for up to one year;
  • Suspending the driver’s license of the offender for a full year for each offense (or delaying the issuance of the license for younger individuals).
  • Up to 80 hours of community service for minors.

Parents Will Feel the Pain, as Well

In addition to the hassle and expense associated with getting a youth offender into court to address the charges, parents can be held civilly liable for the cost of clean-up and fines, to the tune of $25,000– if the court finds that the minor child engaged in willful, malicious misconduct. Continue reading

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If you are facing charges of domestic violence (DV), you are looking at a case involving high emotion and the possibility of serious changes to life as you know it. That is why now, more than ever, you need a dedicated criminal defense attorney to protect your rights. 

Who are the victims of Domestic Violence?

In years past, domestic violence, or domestic battery, was considered to be only violent crimes against someone with whom a perpetrator formerly or currently shared an intimate relationship. But we now know that DV is a crime centered on intimidation and power—often in the form of violence—used to control another person. In general, DV abusers tend to escalate control over time using threats, deprivation, force, manipulation, and violence. Victims may be intimate partners, children, or even grandparents.

Types of Domestic Violence

  • Spousal abuse: Violence between intimate couples, whether or not they are married, heterosexual or otherwise, occurring when one partner wields dominance through verbal, financial, or physical abuse. It may include threats related to immigration status, homophobia, or to injure property, pets, or loved ones.
  • Sexual assault:  Pressure or coercion to engage in unwanted sexual activity may occur between couples as a form of control.
  • Stalking and criminal threats: Stalkers who pursue someone physically or online and harass and/or threaten their victims.
  • Child abuse: Parents, step-parents, grandparents, or the partners of a parent may abuse children verbally, emotionally, or physically.
  • Elder abuse: Children or grandchildren who live with or care for grandparents and who attempt to control them using financial, verbal, emotional, or physical abuse.

Penalties

Misdemeanor domestic battery charges in the state of California could land you in jail for up to a full year, set you back $2,000 in fines, and stick you with up to three years of probation, during which you may be ordered to engage in a batterer’s treatment program.

All of these legal penalties are in addition to having to deal with the potential of a restraining order, being kicked out of your house, and even the possibility of losing contact with your children. Continue reading

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If you have been involved in a fatal shooting, it is possible you may be charged with manslaughter, or even murder, related to the incident. But was the homicide justified? Is it ever legally acceptable to kill another human being? The fact is, under limited circumstances, such as while defending oneself, other people, or one’s home, lethal force may be legally permissible. 

Is Retreat Required in the Face of Aggression?

California’s Stand Your Ground law is clear in stating that you have no obligation to retreat prior to using force if certain conditions are met:

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Confidential informants (CIs) and jailhouse snitches are used by law enforcement to gather information and tips so suspects can be put behind bars. The practice of using these informants is not uncommon in the least. Unfortunately, there are some real problems with the custom: 

  • There are no reliable mechanisms in place to figure out if an informant (or a police officer) is telling the truth;
  • When informants are used, they are offered tempting incentives to produce information.
  • Police raids based on informant tips can be hyper-aggressive.
  • Innocent people can get caught up in serious legal issues when named by an informant.

Regulation is Non-existent for CIs

Basically, the police have no rules when it comes to using informants. In fact, there have been many court cases that have concluded that law enforcement’s dependence on testimony from informants is not a Constitutional violation. Thus, the use of informants is a prime way to get the information officers are seeking. However, informants generally have pretty good incentives to provide false testimony, especially if providing the right tips could mean receiving a lesser sentence for their own crimes. On top of that, since many law enforcement organizations lack suitable control systems to address the issues associated with confidential informants, it is not far-fetched to imagine that an officer could manufacture a fictional CI to create the evidence needed to obtain a warrant or make an arrest. Sadly, innocent people have been killed in various police raids that were based on nonexistent confidential informants. That led to calls for better controls on the use of CI’s in a Congressional hearing on the matter, but no definitive changes in the law made it into practice.

Jailhouse Informants 

Testimony from jailhouse snitches is unregulated as well, and therefore, the information gleaned from them is not necessarily unreliable. Even so, it has been used in myriad situations to put others behind bars. These informants generally get some sort of benefit in exchange for helping law enforcement, including:

  • Having their own charges reduced or eliminated;
  • Getting monetary compensation;
  • Getting special privileges while they are incarcerated.

Unreliable Information

Informants may claim that a confession or details of a crime were shared by a defendant, or that they got second-hand information from other people. This is often true with cases that are high-profile or gang-involved, and police are under extreme pressure to solve the crime. But testimony from jailhouse informants often leads to wrongful convictions. In fact, estimates have the number of convictions that relied heavily on jailhouse snitches was later overturned with DNA evidence at nearly 20%. Unfortunately, this testimony frequently occurs without the defense team or the jury ever hearing about precisely what incentives were offered in exchange for damaging testimony. Since national standards relating to such testimony do not exist and there are no rules relating to the tracking and management of it, innocent people have lost their freedom time and again due to inaccurate and downright dishonest testimony. Continue reading

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It should come as no surprise to learn that many of the women in prison who have been convicted of murder or manslaughter have been victims of intimate partner violence (IPV). In one such California case, after months of stalking by a former boyfriend, a woman stabbed the man. In another case, a woman killed her partner after he repeatedly raped and beat her, despite multiple reports to police. In some situations, women say they have been imprisoned after helping an abuser commit a crime, acting out of fear of his response if they refused. Other women were incarcerated for failing to protect their children from abuse that was ultimately deadly. Some states—including  California—punish parents who put children in dangerous situations. Across the nation, at least 100 women have been sent to prisons for accomplice liability or failure to protect after their children experienced harm from an abuser. 

The “Forgotten Women”

Andrea Cimino, a Stanford University researcher, calls those who are imprisoned as a result of actions they took to survive IPV the forgotten women. She believes the courts have not addressed the realities of life for these women, and the reasons their victimization might have led to committing violent acts themselves, often in self-defense. About 75% of surveyed imprisoned women report that they had experienced intense violence at the hands of an intimate partner within a year of their own offenses. Stories of women living in fear and suffering emotional, physical, sexual, and financial attacks have long been overlooked or downplayed by prosecutors, courts, and policies. 

Senator Cory Booker agrees, pointing out that since most incarcerated women have at some time been victims of sexual violence, society has a responsibility to do more to protect women from the violence, and to do more to assist survivors of violence to find recovery in safety and peace. Rather than intensifying their trauma, prisons and jails need to provide programs to help heal. 

Distressing Findings

The Stanford study, which focused on women, describes some truly upsetting findings:

  • Women who are incarcerated have experienced IPV at roughly ten times the rate of the general population.
  • About three in ten incarcerated women were choked or strangled repeatedly to the point of dizziness or blacking out. Such violent injuries can result in traumatic brain injuries.
  • The danger extends to all members of the household when a woman is at imminent risk of being killed. 
  • Higher rates of income and gender bias are perceived by victims of IPV than by women who have not experienced such abuse.

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