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" »

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.

Starting today, the Costa Mesa Police Department will no longer announce locations of upcoming checkpoints, one of which is planned from 6 p.m. to midnight tonight.

Sgt. Dave Makiyama stated the police will no longer announce these checkpoint locations in order to add to their deterrent factor. He believes the previous policy of naming the locations allowed people to avoid the checkpoints with little or no fear of apprehension.

The California Supreme Court case of People v. Banks ruled advance notice was not a requirement for a constitutionally valid checkpoint. However, it is one of the safeguards for a constitutionally permissible sobriety checkpoint. Courts have concluded a search warrant is not an unreasonable search.

Makiyama said "Hopefully, those who do learn of our checkpoints will question if they will be drinking and driving in the vicinity of a checkpoint and make good decisions about their rides."

Mayor Pro Tem Jim Righeimer points out most DUI arrests occur later at night and the 6 p.m. to midnight timeframe was chosen to give police officers extra overtime pay.

Discussion from The Law Office of Barney B. Gibbs:

I have always winced at the idea of DUI checkpoints. The thought of randomly stopping citizens to "educate" them about what is generally a misdemeanor seems, to me, to be an unreasonable and unnecessary extension of government power. With an arrest rate of 1/5 of 1% of traffic stopped, there cannot be a valid argument of success for these roadblocks. When compared to the inconvenience to 99% of the people, the whole roadblock system looks questionable.

What DUI roadblocks give to police officers is the probable cause to stop vehicles they normally couldn't and conduct investigations they normally shouldn't. In all likelihood, patrol officers on their own have a higher success rate than roadblocks.

Maybe Mayor Pro Tem Righeimer is right. Perhaps there is a hidden purpose to modifying this already unproductive and inconvenient procedure.

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.

One area of the law least understood by people is Search and Seizure. Although most people are familiar with the term, very few really understand what it means.

The Fourth Amendment to the U.S. Constitution states:

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable search and seizures shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized.

The California Constitution has nearly the same language [California Constitution, Article I, Section 13] but it is the Federal Constitution which shapes the exclusionary rule.

The exclusionary rule basically excludes evidence which was seized by illegal searches. This is essentially the "teeth" of Search and Seizure. If evidence is seized illegally, it is excluded from evidence. Many people believe this is too harsh of a rule. They do not understand, however, the only way to ensure police follow the law, and do not violate a person's right against Search and Seizure, is to throw out that evidence which was acquired via illegal conduct.

The issues first presented under the Fourth Amendment and the exclusionary rule are 1) Was there a search and seizure under the Fourth Amendment? 2) Was it unlawful? and 3) Does the exclusionary rule apply?

A search and seizure could be a government intrusion where a seizure is an interference with a person's possessory interest in property.

With regard to the exclusionary rule, the courts have come up with a number of exceptions. One of them is the Good Faith exception. This exception is present because the courts felt the service of an invalid search warrant by an officer with a good faith, although mistaken, belief in its legality should not be subject to the exclusionary rule as there is no real need for a deterrent to illegal conduct.

This brief discussion is only the beginning of understanding Search and Seizure. Further chapters will follow.