Criminal Defense

April 29, 2015

Francis Pusok and Walter Scott Illustrate the Continued Need to Preserve the Right to Film

As if the recent current events surrounding Eric Garner and Michael Brown were not enough, this month saw two more high profile cases detailing police misconduct and brutality which made national news. In South Carolina, the tasering and shooting of Walter Scott occurred as he was running away from the police was shot on a cell phone by a bystander named Feidin Santana. In our own San Diego, a local NBC affiliate chopper captured the brutal beating of Francis Pusok in the desert. Both instances would not have come to light had a third party not captured it with a camera.

As the public’s trust in police dwindles, citizens are taking matters into their own hands by increasing their use of cellphone recordings as a means to advance some accountability. As police begin to feel more uneasy about this increased use of cell phone and camera recordings, many citizens are finding themselves in hot water for recording their own interactions with police, or police interactions with another third party. This is not the first time the issue of a citizen’s right to record police has come up, and it certainly will not be the last.

What Does the U.S. Constitution Say About Recording Police?

April 22, 2015

Unprecedented Criminal Case on New Revenge Porn Law

by David M. Boertje

On Friday, April 3rd, 28 year old San Diego man Kevin Bollaert was convicted in the San Diego Superior Court and sentenced to 18 years for 27 counts of identity theft and extortion via California’s newly enacted revenge porn law. Additionally, he was ordered to pay $10,000 in restitution. Although Bollaert is not the first to be convicted under California’s new law, his steep sentence is unprecedented. Specifically, Bollaert ran a revenge porn website (called Yougotposted) which allowed vengeful ex-husbands and boyfriends to post nude photos of their ex-girlfriends and link them to the women’s personal social media accounts. Bollaert, a Web developer, posted the pictures and then charged women from $300 to $350 to have the pictures removed. Prosecutors alleged that over 10,000 photos from California and other states were posted on Bollaert’s website between Dec. 2, 2012, and Sept. 17, 2013.

Bollaert faced a maximum of 20 years. In explaining his punishment, the judge noted that he stacked the sentencing terms based on the multiple victims. The hearing took all day, and eight women testified on how they were damaged by Bollaert’s actions. This was the first case of its type in the country, and California was the first state to prosecute someone for posting humiliating pictures online. Above all else, this case is more about online harassment, threats, and extortion.

New Legislation

April 20, 2015

What Does Domestic Violence Have to Do with the Family Dog?

by David M. Boertje

Well, the answer is everything. Courts and the public opinion are increasingly viewing the family pet and other companion animals as family members, and the legal trend of covering pets in domestic violence (DV) protective orders are expected to increase. This trend responds to the evidence that 71% of women entering the shelter system have reported that their abusers injured, killed, or threatened to injure the family pet as a revenge mechanism. It has also been irrefutably proven that there is a link between domestic violence, child abuse, and animal abuse. Even if you know you would never hurt an animal, the stigma of these facts are likely to subconsciously affect a law enforcement official’s perception of you if you have been accused of domestic violence.

California Domestic Violence Law vs. Animal Cruelty

Under California law, police are nearly always required to arrest any man or woman accused of spousal abuse or domestic violence—whether or not the suspect is guilty. The victim may then thereafter file for a protective order (also called a “restraining order”) to keep someone from contacting, calling, harassing or touching them. In addition, California law explicitly covers the family pet in restraining orders in cases of domestic violence. See CA FAM § 6320 – 6327. Specifically, the statute states that:

April 16, 2015

Gone Viral: The Story of an SDSU Student Passed Out While Driving

by David M. Boertje

As I have blogged before on the status of California’s DUI laws, last week saw a perfect illustration of what happens when one is caught drinking and driving. A 25-year-old San Diego State student by the name of Amber Dlaine McKinney Morgan was rescued by California Highway Patrol (CHP) officers who broke her window to get her out of her car.

Recently, the defendant was believed to be drunk and passed out in her car while it was stopped in the middle of I-805 northbound in San Diego’s Kearny Mesa area. KGTV photojournalist Paul Anderegg stopped to see what was going on and called 911. While waiting for a response, he ran out and tried to awaken the driver when there was a break in traffic. When CHP arrived, they found Ms. Morgan’s car locked, and were unable to revive her. The car then started rolling as traffic was speeding by, so CHP Officer Sergio Flores broke her window and dragged her out. Ms. Morgan was arrested about 1:20 a.m. on suspicion of driving under the influence of alcohol in the area of Interstate 805 and Clairemont Mesa. However, Ms. Morgan was freed from the Las Colinas Women’s Detention Facility after posting the bail that was set at $2,500. Her photo has gone viral on the internet.

The Bail and Criminal Process

April 14, 2015

Local San Diego Rapper Demands Change In Law, Days After Criminal Case Dismissed (Update)

by David M. Boertje

In a recent post, we discussed the current events surrounding local rapper “TinyDoo” (real name Brandon Duncan) and his charges of gang conspiracy. Specifically, Mr. Duncan, along with 15 other co-defendants, was charged in connection with gang criminal conspiracy connected with nine shootings that took place in San Diego between May 2013 and February 2014. In particular, Mr. Duncan was accused of promoting violent crimes through the lyrics of his rap music. Prosecutors claimed that he benefitted from the increased “street cred” from the shootings. However, his charges were dismissed by a San Diego Superior Court judge after he decided there was not enough evidence to prosecute him on charges of conspiracy.

Mr. Duncan claims he will not change his lyrics on the basis of free speech. In fact, just a few weeks ago the rapper spent his Sunday joining a race relations town hall meeting to demand a change in the current conspiracy law (CA Penal Code 182.5) which had him face a lengthy prison sentence. Defense attorneys argued there needs to be more than association to charge these men and the case violates free speech rights.

Promoting and Encouraging Crimes

April 9, 2015

Proposition 47 Causes Noticeable Drop in California’s Incarceration Rate

by David M. Boertje

Even though it has only been a few months since Proposition 47 has made its debut, the incarceration rate throughout the state of California has dropped a noticeable degree. As most of you may know, the controversial Proposition 47 (“Reduced Penalties for Some Crimes Initiatives”) made its way onto the ballot via the California ballot initiative process. This means that the proposed law had garnered enough petition signatures to make it onto the ballot. It was then voted on by California voters this past November, and was approved by the majority (59.61%) of the state’s voters. Since it became law, the city of Los Angeles , which houses the country’s largest jail system, saw an inmate population decline from 18,601 to 17,285 by the New Year. As such, studies have shown that it is not jail-time that is actually behind the drop in the nation’s crime rate, but rather factors such as commonsense policy reform.

What This Means for You

Specifically, Proposition 47 will reduce certain felonies into a misdemeanor, including:

April 7, 2015

When does the Miranda right apply?

by David M. Boertje

Your Constitutional Rights

The Miranda warning is a verbal warning that all police officers must give a suspect before s/he is about to be taken into custody, and applies the whole time s/he is in custody. Custody means a formal arrest or the deprivation of freedom where a reasonable person does not feel like s/he can leave. It is the result of the famous 1996 Supreme Court case of Miranda v. Arizona, and has become part of established criminal procedure law to ensure that every American’s Fifth Amendment right against compelled self-incrimination is not violated.

In that specific case, Defendant Ernesto Miranda was arrested by the Phoenix Police Department on March 13, 1963, on suspect of kidnapping and rape. After two hours of police interrogation, he signed a confession, and was subsequently convicted. Miranda’s lawyer appealed his conviction on the grounds his confession was never fully voluntary and should have been excluded from his prosecution. The Supreme Court held that due to the coercive nature of police interrogations, no confession nor statement could be admissible in court under the Fifth and Sixth Amendment right to a lawyer, unless a suspect knowingly and voluntarily waives his or her rights.

April 4, 2015

Are there circumstances where Miranda rights don’t have to be read?

by David M. Boertje

As reviewed in the previous blog, Miranda rights protects one from compelled self-incrimination, but this right is not absolute. There are certain exceptions to the Miranda rule where police do not have to read you your rights. This means in any of these situations, police will use what you say against you in the courts processes without reading you your rights:

It does not apply to basic questions.

Police are still allowed to ask you basic questions not related to a suspected crime such as your name, address, etc. When asked these basic questions, it is best to just answer them but provide no more information than the police ask. If police start asking more substantive questions about your involvement in a crime, etc. respectfully decline and request a lawyer to be present.

April 3, 2015

Complaint Alleges SFPD Officer Broke City Law While Investigating With FBI

by David M. Boertje

Recently, two civil rights groups (the San Francisco branch of the Council on American-Islamic Relations and the Asian Law Caucus) filed a federal lawsuit against the San Francisco Police Department alleging that a police inspector not only violated department rules and city law whilst working with the FBI’s Joint Terrorism Task Force, but the SFPD also failed to report it. The two groups, which represent Arab, Middle Eastern, Muslim and South Asian communities, specifically claim that Sgt. Inspector Gavin McEachern violated software engineer Sarmad Gilani’s civil rights back in July 2014. In that instance, the FBI’s Counterterrorism unit approached the plaintiff’s workplace at Google and asked him a handful of questions regarding his travel plans, personal blog, and political expressions on social media. None of those questions actually had anything to do with a criminal investigation, because Sarmad Gilani had not committed a crime.

The groups are specifically concerned over the violations of Gilani’s privacy guaranteed by Article 1, Section 1 of the California Constitution, as well as the laws and policies of the City and County of San Francisco and, as applicable to the police department, that department’s policies and procedures. They also filed a federal Freedom of Information Act request on Gilani’s behalf to obtain discovery over the subsequent travel issues Gilani had due to the investigation(s) on him.

The Use of the Federal Freedom of Information Act (FOIA) for Criminal Cases

March 25, 2015

Teen Suspected of Making Online Threats Through the Burnbook App

by David M. Boertje

Early in March, San Diego Police investigated two threats of violence to high school campuses using social media. On March 5, they investigated a threat made to to Del Norte High School through the Burnbook app. On March 11, another threat on the Burnbook app was made against Mission Hills High School in San Marcos, Ca, indicating that the poster was building a firearm. The Burnbook app allows users to post pictures and texts anonymously, modeled after the “Burn Book” made famous by the notorious movie “Mean Girls.” Students in other schools also claim that the app is being used for cyberbullying. In these two instances, parents and the school principal contacted the SDPD immediately after discovery, but in both instances, it was found the threats were not “credible” because they were not specific enough.

This is just one of the many times the legal question of when “free speech” becomes an illegal threat not protected by the First Amendment has come up, given current events. Just recently, a Seattle man was sentenced for making Facebook threats against Officer Darren Wilson, though the judge believed he was merely expressing a strong reaction.

When Does “Free Speech” Rise to the Level of a Criminal Threat?