Orange County Criminal Attorney Blog

The Supreme Court's unanimous January ruling in U.S. vs. Jones was hailed as historic, marking an important affirmation of privacy rights amid law enforcement's increasing use of advanced technology, specifically warrantless GPS monitoring, to track suspects. Many people, criminal defense attorneys in particular, saw the Jones decision as an important step towards safeguarding individual privacy against electronic snooping by law enforcement. Since then, however, the FBI has stated that it faces difficulties and added expenses without the use of the GPS devices, and federal district judges in some areas have found ways around the Court's prohibition on warrantless tracking.

Jones involved a suspected D.C. drug dealer who was under surveillance through a GPS device secretly attached, without a warrant, to his vehicle by the FBI. Jones appealed his conviction in part on the ground that the FBI violated his Fourth Amendment rights against unreasonable search and seizure. The U.S. Court of Appeals in D.C. broadly ruled that the FBI's practice of using GPS devices without a warrant violated the Fourth Amendment by revealing far more about a person than the FBI ever could have learned simply by following him through the streets.

The Supreme Court took up the case and affirmed the Court of Appeals, but on much narrower grounds. A unanimous Court ruled, in essence, that the FBI could not attach GPS monitoring devices to Jones' vehicle without a warrant because it violated Jones' property rights by physically attaching the device. This leaves the question of how the Fourth Amendment generally governs electronic surveillance unanswered. It also does not specifically address whether law enforcement needs a warrant or only "reasonable suspicion" in order to use GPS trackers in the future.

Since the Jones ruling, the FBI has had to change the way it conducts surveillance operations. It reportedly had to deactivate around 3,000 deployed GPS tracking devices in January, meaning it had no way to retrieve the devices. The FBI complained that it had to substitute teams of six to eight agents to do the work of a single GPS tracker, a significant additional cost. Privacy advocates might not find this argument persuasive, but some federal district judges have entered orders that help the FBI.

Continue reading "Judges, Law Enforcement Skirt Supreme Court's GPS-Tracking Ruling" »

Amanda Knox, the American who spent several years in an Italian prison for the murder of her roommate before being cleared and freed, is back in the news with several recent events. The latest news is that she has signed a $4 million book deal to tell the story of her experience in Italy. She is also appealing her conviction in an Italian court for slander. A court had convicted her of falsely implicating bar owner Patrick Lumumba in the 2007 death of her roommate, although Knox says police "manipulated" her into making an accusation against him. Of greatest interest to criminal defense attorneys, however, is the recent news that Italian prosecutors intend to appeal the order from October 2011 overturning Knox's murder conviction.

The story is familiar by now: Knox was an exchange student in Perugia, Italy, sharing a house with British student Meredith Kercher. Kercher's body was discovered in the house on November 2, 2007, the victim of a brutal murder. Knox and her Italian boyfriend, Raffaele Sollecito, were arrested and charged with the murder. After a trial that included accusations of various missteps by the prosecution, both Knox and Sollecito were convicted in December 2009. Prosecutors accused Knox of killing Kercher in a bizarre ritual, describing her as a "sex-crazed femme fatale." Knox was sentenced to twenty-six years in prison and Sollecito to twenty-five years.

Knoix began the process of appealing her conviction right away. Her attorneys challenged the mostly-circumstantial evidence, pointing out the many circumstances in which physical evidence could have become contaminated, such as the lack of security at the crime scene. The trial and appeal pitted two legal cultures against one another, with prosecutors portraying Knox as a "she-devil" and the American public viewing her as an innocent victim of an unfamiliar legal system.

An appellate court ruled on October 3, 2011 that Knox's conviction for murder should be overturned, although it upheld her slander conviction. Experts appointed by the court had offered testimony about flaws in the police's collection of evidence at the crime scene, and had also challenged prosecution experts' findings linking DNA recovered at the scene to Knox. The DNA evidence proved persuasive to the court. Knox returned home to Seattle several days later.

The prosecutors' appeal of the October 2011 judgment is expected, and it is reportedly a common procedure in the Italian legal system. If prosecutors succeed in getting a new trial, they can retry Knox in absentia. If she is convicted, they may be able to bring her back to Italy through the extradition process. The Italian Supreme Court will only consider the prosecutors' appeal of the appellate court ruling, so it will not consider any new evidence.

Continue reading "Italian Prosecutors Request New Trial in Amanda Knox Case" »

The Connecticut Supreme Court reinstated the conviction for manslaughter and drunk driving against former teacher Tricia Coccomo earlier this month. Coccomo had appealed her 2007 conviction, arguing in part that the trial court had improperly allowed the prosecution to introduce irrelevant and prejudicial evidence. An appeals court agreed with her and reversed her conviction and 12-year prison sentence, but now the state's highest court has imposed the original punishment again. The case illustrates some interesting issues of evidence and due process.

This case originated with a July 2005 car crash that killed three people. Coccomo's sport utility vehicle crossed over the center line of Long Ridge Road in Stamford and collided head-on with a convertible. The driver and two passengers of the convertible died. Prosecutors charged her with manslaughter and driving under the influence. They presented evidence that her blood alcohol content at the time of the accident was .20, more than twice the legal limit of .08. Coccomo had allegedly requested a blood alcohol test in the hospital. Coccomo's attorney argued that the blood sample tested did not belong to Coccomo because staff at the emergency room mixed up the blood samples. Prosecutors also introduced evidence that, about ten days after the crash, Coccomo transferred her ownership interest in her home to her mother for the sum of $1. They argued that this demonstrated a "guilty conscience" on Coccomo's part. Based largely on the blood alcohol results, a jury convicted Coccomo in February 2007. In March of that year, she received a sentence of twelve years in prison.

Coccomo appealed the conviction and posted a $1 million bond, which led to her supervised release from jail. She argued to the appeals court that the trial court made an error in admitting evidence of the sale of her house, and in arguing that this sale, along with her request of a blood test, could serve as evidence of guilt. Connecticut's Appellate Court agreed with her, and in the summer of 2009 they reversed her conviction. The Appellate Court ruled that evidence of the asset transfer only served to inflame and distract the jury from the pertinent issues in the case. In an unusual move, the Connecticut Supreme Court agreed to hear the case, potentially setting a precedent on the question of whether a transfer of assets can prove guilt. The Supreme Court issued a 4-3 ruling in early November reinstating Coccomo's conviction and prison sentence.

Continue reading "Convictions for Manslaughter, DUI Reinstated for Fatal Car Accident" »

Continuing with our previous discussion regarding search and seizure, the following are a few current updates on detentions:

People v. Garry (2007) 156 CA 4th 1100 -A defendant was standing by his car in a high crime area. When an officer saw this, he shined his spotlight on the defendant, approached quickly and began questioning him.

This case is important because the officer's actions turned this into a detention due to said actions being so intimidating.

Brendlin v. California (2007) 551 U.S. 249 held that a passenger is detained in a traffic stop. This gives passengers standing to contest the stop.

Arizona v. Johnson (2009) 555 U.S. 323 -Passengers may be pat searched if the officer has a valid reason (i.e. officer safety).

People v. Krohn (2007) 149 CA 4th 1294 -In order for there to be a detention, an officer's suspicion must be related to criminal activity. This essentially means the reason to initiate a detention cannot be for just any reason at all. It must have an objective basis linked to criminal conduct.

People v. Hernandez (2008) 45 CA 4th 295 -An officer's real life experiences are important in developing the suspicion necessary to stop. However, an objective suspicion must still exist. In this case, a police officer stopped a car with a temporary operating permit because his experience told him these permits are sometimes invalid. This is inadmissible. Acting on an unfounded hunch is unconstitutional.

The necessary probable cause to detain a person has been consistently stretched by police over the years. Sometimes police officers try to use a generalized reason to pull people over without a specific objective reason. I remember a police officer from another state created a profile of drug traffickers. It was essentially Hispanic males driving on one certain road, at the speed limit and at a certain time. This type of profiling does not include the particularized type of suspicion necessary under the law.

Whether a person is stopped for a DUI or battery, it is important for the criminal defense attorney to be fully versed on search and seizure. At the Law Office of Barney B. Gibbs, I have kept abreast of these developments for 28 years and will continue to do so.

Many people probably think every type of search and seizure issue has been addressed. This is not so. Search and seizure is an ever-growing and expanding realm of criminal law.

It is important for the criminal defense attorney to constantly be abreast of new developments. Here at the Law Office of Barney B. Gibbs, we continuously review the updates from court. In addition, since I appear in court every day and speak to judges, prosecutors as well as other defense counsel, I am often aware of an important case before it arrives.

The following is a collection of new cases in the area of search and seizure:

People v. Rivera (2007) 41 Cal.4th 304 is consistent with prior cases which allow the police to begin a consensual encounter with no suspicion of criminal activity. Many people have trouble accepting the fact that the police can just come up to you and start a dialog. They can, but you do not have to talk to them.

U.S. v. Drayton (2002) 536 U.S. 194 states when police agents ask passengers of a bus if they can search their luggage, the passengers do not have to be told they can refuse.

A common thread through all of these consensual encounter types of cases is that a consensual encounter is the lowest form of intrusion into personal liberty. The courts have generally held a person can simply leave. Although there is solid legal precedent for this holding, the reality is different. It is easy for a Supreme Court Justice to say there is no restraint and you can "just walk away." It is a completely different thing, however, for a young person being approached by a much older adult who is dressed in a uniform, wearing a badge and carrying a gun.

We are all taught to submit to the authority of the police. We know they possess legal powers significantly greater than our own and, although this type of submission is not wrong (and, in fact, is required in a civilized society), it does uniquely place the police in a position of extreme power. The phrase "Can I talk to you?" can be spoken in a number of ways. It can be spoken as a request as well as an order.

The next issue is when does the consensual encounter become a detention? Usually this requires some objectively reasonable belief to suspect the detainee is engaged in some type of criminal conduct. The next step up from a consensual encounter could be a temporary detention.

Our next article will address updates in the law regarding temporary detentions.

In a recent decision, the California Supreme Court ruled it is permissible for police officers to search a person's cell phone incident to an arrest.

Previously courts have allowed police officers to inventory a person's possessions, or even packs of cigarettes wherein drugs may be stored, upon arrest. The new ruling, however, greatly extends the scope of a search incident to arrest.

Cell phones are no longer devices strictly used for making phone calls. These machines are now essentially small, handheld computers which can carry and store vast amounts of sensitive information.

At this time, Senate Bill 914, introduced by Senator Mark Leno, if passed, would provide a level of personal protection against this sort of unlimited search. The bill allows the search of a cell phone only where there is an immediate threat to the officer(s) or the public.

This new bill will provide important judicial oversight necessary to curtail rapidly expanding police powers. By requiring police officers to obtain a search warrant before getting unlimited access to a person's confidential information, the courts will be in a position to make sure citizens' rights are not infringed.

Police unions, though, are voraciously against SB 914 and these unions wield substantial power over politicians in this state.

Information in a person's cell phone, by any reasonable interpretation, must be considered to be confidential. Many people live their lives through these services. It is now rare to find someone who does not possess a cell phone or some other complicated contrivance which can hold nearly limitless personal information.

The Supreme Court's decision effectively hands over to police any possible type of private communication regardless of the crime for which the person is arrested. This is simply too much power to hand over to police in a free country.

The Fourth District Court of Appeals has overturned a conviction for transportation of methamphetamines due to lack of probable cause for the stop.

Defendant Paul Carmona was pulled over by police because he failed to signal when he turned right onto Olive Street from Walnut Street in the city of La Habra. During a subsequent search of the vehicle, officers found 7.1 grams of methamphetamines in baggies as well as other possible evidence of narcotic sales.

The District Court of Appeals ruled that Carmona didn't need to use his turn signal because there was no evidence any other vehicle could have been affected by the turn.

Probable cause for a stop is always an important issue for a criminal defendant. At the Law Office of Barney B. Gibbs, this issue is reviewed on all cases. This case makes perfect sense. The requirement of a turn signal, both legally and logically, arises from the need to notify another vehicle of a desire to turn. If there is no other vehicle affected, then, there is no need for a signal.

The probable cause for a stop is just the beginning of the legal issues to consider. A police officer, who spots a vehicle violation, may give a motorist a ticket after a brief investigation. But how long is a brief investigation? Can he/she order the driver out of the car? Can he/she order passengers out of the car? Can he/she conduct a search of the passengers of the car?

Florida v. Roger (1983) 460 U.S. 491. 500 103 Sct. 1319 has held that an investigative detention can only last as long as necessary for the purpose of the stop. It is important then to determine if the police acted diligently. Detentions up to 20 minutes have been upheld. However, it is possible that a delay of just a few minutes may be unjustifiable if, under the circumstances, the officer(s) prolonged the stop past what was necessary.

When a stop is made, police may check a person's driver's license and registration. If these are not produced, this could prolong a stop. If an officer is alone, he/she can order passengers to the curb, and this may prolong a stop.

Whether a police officer can search a vehicle after a stop can be determined by a number of factors. First, if there is no probable cause to search, can a police officer ask to search? Many courts say it is okay for a police officer to ask to search, during the investigation, if there is no coercion. However, if after the investigation is completed, an officer asks to search, the question arises whether the encounter becomes consensual.

In our next article, we will discuss consensual searches and encounters.

The United States Supreme Court affirmed an order last month requiring the State of California to reduce the inmate population to 137% of capacity. This will require the reduction of thousands of prisoners.

With a current prison population of over 140 thousand people, it is clear to see the "tough on crime" attitude taken across the state may be backfiring. Given the average cost of housing an inmate is over $45,000 per inmate per year, there are simply not limitless resources to throw at state prison incarceration for drug and nonviolent offenses.

A plan by Governor Jerry Brown to transfer many low-risk offenders to county jails appears to be a step in the right direction. However, why are they in prison in the first place?

Perhaps it is time to take a close look at the "one penalty fits all" mindset prevalent throughout the State of California. Considering the economic disaster facing California, a person can make an economic argument that warehousing tens of thousands of nonviolent offenders does not make sense.

The concept that needs to change is the belief incarceration is the answer to a wide variety of crimes. Perhaps it would be possible to allow individuals who have committed nonviolent offenses to pay back their debt to society by doing community work. By allowing community work as punishment, the People of the State of California win in numerous ways. First, a savings of $50,000 per year can be spent on more pressing matters, such as education. Second, society benefits by having work done which no one else wants to do. Finally, the state saves money by not having to pay for this work.

There must be alternatives to incarceration. We are only limited by our inability to see them.

The United States Supreme Court expanded the definition of exigent circumstances to include the sound of evidence being destroyed. Ruth Bader Ginsberg stated "It arms the police with a way to routinely dishonor the warrant requirement of the Fourth Amendment.

This issue was raised in Kentucky v. King. While pursuing a drug suspect, police caught the odor of marijuana coming from a residence. After knocking and identifying themselves, officers allegedly heard the sound of evidence being destroyed.

The real opportunity for misuse is the definition of "the sound of evidence being destroyed." This is obviously an overbroad phrase. As a criminal defense attorney in Orange County for 30 years, I know the police can be quite ingenious. Many different sounds emanating from a residence can be construed as destruction of evidence, from toilets flushing to a garbage disposal running.

Search warrants are an important safeguard for citizens. By presenting information to an impartial judge, there is less chance of a mistake, such as the wrong residence being entered. Every time a wrong residence is entered by police, there is a chance someone, citizen or peace officer, will be injured.

The fact that this decision was almost unanimous gives a clear indication of the Court's mental process. I believe it is a logical decision that destruction of evidence is an exigent circumstance. CVC Section 40300.5 allows a peace officer to arrest without a warrant if the person would destroy or conceal evidence of a crime, i.e. driving under the influence. The presence requirement is thrown out if the individual destroys evidence. This could mean blood alcohol being eliminated from his/her system.

Although there is logic in the decision, the room for abuse is very high. Where will the line be drawn? What if a search is conducted and a very large amount of drugs are found but there is no evidence of destruction? The Law Office of Barney B. Gibbs is dedicated to insuring the rights of defendants. Whether the case is in Orange County or Los Angeles, we will be paying close attention to any justification for entering a person's residence.

Antonio Nunez was sentenced to 5 life terms plus 100 years after he sprayed police with AK-47 fire during a kidnap attempt at age 14. Nunez would have been unable to seek parole for 175 years.

A California Appeals Court, however, ruled it was unconstitutionally harsh to sentence a juvenile to life without even the possibility of parole. Nunez has been in custody since 2001. The appellate court's decision is based upon a United States Supreme Court case which set aside a life sentence in a juvenile, non-homicide case.

The Appeals Court sent the case back to the lower court for resentencing. This will be the second resentencing. Nunez was originally given 1 life without the possibility of parole sentence, 4 life sentences and 111 years. The original sentence was also overturned.

Although some may hail this decision, the actual result may not be great. There has yet to be a determination as to how many years a juvenile should serve before he/she becomes eligible for parole. Is it 20, 30 or 40 years? Regardless of the amount, Mr. Nunez will likely be a very old man before he is released from prison.

A 9-year-old Oregon girl was removed from her classroom by a Sheriff's deputy in order to investigate a sexual abuse allegation against her father. The little girl said she falsely incriminated her father because the deputy would not take no for an answer.

The United States Supreme Court will hear arguments in the case which has caused considerable interest in the legal community. In a lawsuit filed by the girl's family, a California Appeals Court held that her rights had been violated by the State. The State appealed the case and it is now in front of the U.S. Supreme Court.

The issue presented is whether there was an unlawful search and seizure when the girl was interrogated without her mother's consent, a warrant or exigent circumstances. The State is arguing this technique is a proven method of investigation and requiring a warrant would severely interfere with law enforcement's ability to acquire evidence in child abuse cases. Conversely, the defense's argument is that a warrant should have first been obtained.

Each side of the argument has considerable support from interested third parties. This will be the first case of this kind the U.S. Supreme Court has handled in many years and is a very sensitive issue which may have far-reaching results. On one hand is the need to protect children while, on the other hand, is the need to exercise control over aggressive police interrogation methods.

Beginning with the McMartin case, there have been untold numbers of police interrogations of children which have produced inaccurate and/or false evidence. Police interrogation tactics are often unsuited to interviews with children. That is, since most officers deal primarily with adults, sometimes with career criminals who are very sophisticated, their approach to interrogations often involve aggressive and confrontational police methods. Said methods, however, are counterproductive when applied to children.

It is thus necessary to have clear guidelines and restraints on the police so children are not traumatized and false evidence is not obtained. This is why the U.S. Supreme Court should rule for the defense in this case.

The California Supreme Court will be hearing a case with the intent of defining the word "pimp." The facts of the underlying case are straightforward. The original defendant pulled up to an alleged prostitute for the purpose of asking her to come to work for him. The defendant introduced himself as a pimp. The alleged prostitute was, in fact, an undercover police officer. The defendant was arrested, convicted and subsequently sentenced to four years in state prison.

The underlying legal question is the definition of the word "pimp." California law makes it a crime for anyone who "induces, persuades or encourages another person to become a prostitute." When the defendant approached the undercover officer, it was apparent he believed she was a prostitute and he was trying to get her to change management, so to speak. Defense counsel, however, argues that as worded the phrase was meant to protect innocent victims from being led into a life of prostitution, not prostitutes already in the business. Conversely, the Attorney General argues the law was meant to lock up anyone who tried to encourage someone to work for them as a prostitute.

Defense counsel's argument hinges on defining the word "become." The Defense argues that up until recently, only brothel owners and heads of large, organized prostitution rings were prosecuted under this charge...only recently has the prosecution begun over-filing these kinds of cases, which carry a sentence of three years in state prison, against individuals.

In the past, courts have generally sided with the prosecution; however, this may be changing. In 2009, an appellate panel threw out the conviction of a man who was trying to get a prostitute to work for him. Judge William Bedsworth stated "If the legislature had wanted a more broadly applicable provision, it could have easily replaced the phrase 'become a prostitute' with the phrase 'engage in prostitution.' But they did not."

It will now be up to the California Supreme Court to sort this out.

Many people charged with driving under the influence cases in California have their license suspended by the Department of Motor Vehicles, prior to ever going to court. There is, however, some hope for people as a result of a recent court opinion.

Many people do not know, upon arrest for a DUI, a person's California Driver License is confiscated by the police officer and the person is given an Admin Per Se (APS) temporary license. A hearing must be requested within 10 days of arrest or the temporary license will expire in 30 days and the person's license suspended.

At the DMV hearing, evidence is presented by the Department. One important piece of evidence is a person's blood alcohol level. Whether this is blood or breath, it is reported to the second decimal (i.e., .08).

A recent California case has given a boost to attorneys defending individuals at these hearings. Derek Brenner was charged for DUI in 2008 and, even though his blood alcohol level registered as .08 percent, his license suspension was set aside. The reason for this was evidence presented by his attorney regarding the breath test machine's tendency to give a result .002 higher.

What makes this result interesting is that California law allows a breath testing machine to have a variance of ±.01, which is much higher than the evidence presented at the DMV hearing.

The real issue in this case is, if a person has a reported blood alcohol of .08 percent (right on the legal limit) and evidence by the defense shows a variance of .002 (which would bring the blood alcohol down to .078), the presumption of validity of official documents has been rebutted. This now requires the DMV to present evidence to prove the test was nonetheless reliable, which in the Brenner case did not occur.

Although this case doesn't completely level the playing field in these cases, it is nonetheless well-reasoned and helpful to the defense bar.

District Court Judge David Armstrong dismissed a DUI case in October 2010 because the driver was asleep. Prosecutors from Jefferson County, Kentucky, however, are appealing.

The issue at hand is: Did the defendant have physical control of the vehicle? Although DUI laws vary from state to state, this appears to be an element of the crime in most states. In California, both C.V.C. Section 23152(a) and (b) require a defendant drive a motor vehicle. However, what constitutes driving is the issue. When a person is pulled over by a police officer on the freeway in Irvine or Orange, this is generally not a problem. But what if a person is pulled over while parked alongside of the road in Orange?

The California case of Mercer v. DMV held that mere actual physical control is insufficient. Rather, what is required is volitional movement. The court also held that volitional movement does not mean a police officer has to personally view driving. What must be shown is proof the defendant drove and this proof can be shown by circumstantial evidence in trial. This is where the fact situation itself will determine volitional movement.

The question of circumstantial volitional movement for a man asleep in the Number 1 lane of traffic in Santa Ana, with the vehicle in drive, engine running and stopped at a green light, may be straightforward. However, what about a man asleep in the driver's seat, while legally parked in front of a restaurant, with the vehicle in park, the engine not running and the keys in his pocket?

As can readily be seen, the issue of driving can be more complicated than a lot of people may think. Having a thorough understanding of the law and the experience of seeing hundreds, if not thousands, of DUI fact patterns is important.

The 6th Circuit Court of Appeals has ruled a search warrant must be obtained before government agents can read your email. The Court noted, in U.S. v. Warshak, emails require protection under the 4th Amendment. The Court held emails are fundamentally similar to more traditional forms of communication and hence should receive similar 4th Amendment protection.

The beginning of this ruling goes back to Steven Warshak, the man behind the male enhancement product Enzyte. The FTC said there was no proof Enzyte worked. Further, Warshak's employees were alleged to have signed up individuals for monthly prescriptions which were very difficult to terminate. It was within this context the federal government obtained Warshak's emails via a court order. A court order, however, is much easier to secure than a search warrant. Warshak alleged the search violated his 4th Amendment rights. In the civil case, the 6th Circuit Court ruled the emails were protected and, subsequently, upheld Warshak's criminal conviction for 93 counts of conspiracy to commit fraud and money laundering. The Court, however, threw out his 25 year sentence and ordered Warshak resentenced.

The ruling by the 6th Circuit Court is right in line with the current law requiring protection for communications. There should be no difference between emails and other forms of protected communication. Federal and state authorities will always try to find "shortcuts" in acquiring evidence. This is why it is vital to rigorously enforce the 4th Amendment.