Criminal Defense

May 11, 2015

The Infamous California “3 Strikes Law”- Which Crimes Count?

The State of Washington was the first state in the nation to pass the ‘no-nonsense’ 3 strikes policy to address repeat, criminal offenders in 1993. California enacted its 3 strikes law shortly after Washington in 1994. These “habitual offender laws” are statutes adopted by individual state legislatures to impose harsher sentences on those who have committed three or more felonies. In most states including California, this means a life sentence without the possibility of parole on the 3rd strike.

Since 1993, 28 states have passed that same policy (Arkansas, California, Colorado, Connecticut, Florida, Georgia, Indiana, Kansas, Louisiana, Maryland, Massachusetts, Montana, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, North Dakota, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Washington, and Wisconsin), with Massachusetts being the latest state to adopt a 3 strikes law in 2012.

May 7, 2015

Landmark Ruling: Police May Not Detain Traffic Violators Longer than Necessary

by David M. Boertje

The Supreme Court once again re-visited the topic of traffic stops (the Court held this past December that evidence obtained from a search at a traffic stop based on a mistake of law was okay). Its most recent ruling issued on April 21 held that that police may not detain a traffic violator longer than necessary so as to allow police time to conduct a dog sniff for drugs. See Rodriguez v. United States.

On March 27, 2012, defendant Denny Rodriguez was stopped alongside a Nebraska highway for swerving in and out of lanes, by Officer Morgan Struble, who subsequently questioned him, checked his license, registration, and whether he had any outstanding arrest warrants. He also checked the documents of Rodriguez’s passenger as well. Twenty minutes later, the officer tried to detain Rodriguez further, to which he objected. Rodriguez was detained while additional officers and a K-9 unit arrived at the scene. The K-9 sniffed out a bag of amphetamines and Rodriguez was indicted for possession and intent to distribute methamphetamine and sentenced to five years in prison. He appealed to the Supreme Court which granted certiorari, and with Justice Ruth Bader Ginsburg speaking for the 6-3 majority, the Court held that officers may only check a driver’s license, registration, and any outstanding warrants. The stop becomes “unlawful if it is prolonged beyond the time reasonably required to complete the mission of issuing a warning ticket.”

What This Means

May 5, 2015

Another Incident of Police Reacting Badly to Being Filmed

by David M. Boertje

On Tuesday, April 21, the U.S. Marshals Service announced they would be reviewing a video that shows a deputy U.S. Marshall in South Gate, California charging at a woman who was filming them at a crime scene, grabbing her phone, smashing it onto the curb, and then subsequently kicking her belongings (you can view the 53-second video here). Unbeknownst to the U.S. Marshals, someone else was quietly filming the woman doing the filming, and posted their video capturing the incident online. While the caption originally tagged the South Gate Police Department, it has been confirmed that the ‘officers’ involved in the video were U.S. Marshals, and the incident is now being “investigated.” In an interview with the Los Angeles Times, Beatriz Paez, 34, said she feared for her life during the confrontation. According to her attorney, the phone’s screen is shattered and doesn’t work, but they will be trying to recover Paez’s video from the phone’s chip.

Constitutional Violations

I have blogged about the constitutionality and the right to record police before, but today, I am going to discuss the potential civil rights violations that may have occurred in the aforementioned incident to further drive in my point that those exercising their constitutional rights are not doing anything illegal or wrong. By now, it should be obvious to most of you that constitutional law and criminal law are inter related, and have huge implications for those who have been subject to criminal charges and/or actions by police. Because of 1st amendment protections of free speech and 4th amendment protections against unlawful search and seizure and undue force, there should be no situation where an officer can intentionally grab and destroy a camera being used to lawfully record law enforcement in a public place, especially when the filmer was not impeding on police activities.

April 29, 2015

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

by David M. Boertje

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.