Articles Posted in Constitutional Law

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OC-District-Attorneys-Office-Accused-of-Violating-Constitutional-Rights.jpgRecently the Orange County Public Defender’s Office filed a 500 page brief with the Orange County Superior Court alleging that their client, Scott Dekraai, had his Constitutional Rights violated by intentional misconduct by the Orange County District Attorney’s Office. In essence, among other claims, the OCPD says that prosecutor’s office sent a police informant into the jail AFTER Dekraai was represented by an attorney. Dekraai then made incriminating statements to the informant which were recorded on a hidden recording device. All of this conduct by the OCDA was accomplished with the covert assistance of the Orange County Sheriff’s Department.

Who is Scott Dekraai? Well, he’s the defendant who is charged with murdering 8 people in the biggest mass murder case in Orange County history. In such a heinous case, many would say, who cares? Who cares if law enforcement is covertly recording statements he makes to a police informant.

Well, the United States Constitution cares. That sacred document that spells out all of our rights as citizens and members of a free society, is not just a piece of paper that applies only to those who are sympathetic. The United States Supreme Court ruled in 1964 in Massiah v. U.S. 377 US 201, that after an accused is represented by an attorney, law enforcement cannot interview or get statements out of him out of the presence of his lawyer. The OCDA knows this long standing rule of law yet apparently chose to ignore it in the pursuit of a conviction.

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Cell-Phone-Search.jpgImagine you are driving along and you get pulled over for a registration violation. The police officer asks for your cell phone along with your drivers license and insurance card. You say what? You have a right to have my cell phone?? The officer says, “oh yes I do. You are not under arrest, you are being given a citation for registration violation. Now hand over your cell phone because I want to search it.” This is essentially the case now pending before the United States Supreme Court. If you have a cell phone then you are going to want to follow this case.

David Riley, a man out of San Diego, was stopped by police for having expired registration tags. The police had suspected him of being a gang member who was involved in a shooting, but they had no evidence to tie him to the shooting. When they saw David Riley driving a car that had expired registration, the police pulled him over. They discovered he had two cell phones and decided to search them. They looked through the cell phones and found that there were photographs on the cell phone. After opening the photos the police found photographs that linked Riley to the gang shooting. At trial, his lawyer argued that the search of the cell phones was illegal and that the prosecution should not be able to use the evidence found on illegal search at trial against Riley. That argument didn’t work and he was convicted. Now the Supreme Court will take up the issue. Can the police search your cell phone anytime you’re given a citation or arrested, without a warrant?

Under the Fourth Amendment, police generally need a warrant before they can conduct a search. The warrant itself must be based on “probable cause,” evidence that a crime has been committed. However, The high court ruled 40 years ago that police don’t need a search warrant to look through anything a person is carrying when arrested. But lower federal and state courts have differed over whether that decision, predating the digital age, should apply to increasingly sophisticated cellphones, including even more advanced smartphones.

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Secret-Bail-Hearing.jpgThink secret bail hearings only exist in fiction? Unfortunately the answer is no, even though the 6th amendment to the constitution guarantees everyone the right to a public trial if they’re accused of a criminal act. The United States Supreme Court has long held that this right extends to pre-trial hearings and motions. (Waller v. Georgia)

Bail hearings are no different, as the outcome of a bail hearing directly decides whether or not defendants must remain in custody while they await trial! (United States v. Abuhamra). That’s what makes the recent decision in In Re Carrillo so unsettling. (In Re Carrillo 219 Cal.App.4th 572). Mr. Carrillo was arrested on charges of committing assault with a deadly weapon. At his initial bail hearing, Mr. Carrillo’s bail was set at $90,000. Then, without any notice to Mr. Carrillo, and without giving him a chance to contest, the Judge and Prosecutors held a second, closed door bail hearing. At this bail hearing Prosecutors presented “confidential” evidence indicating they believed Mr. Carrillo was a threat to the community and should post a larger bail. The Judge took the Prosecution at its word, and set Mr. Carrillo’s bail at $1,000,000.

Mr. Carrillo had no chance to contest the information presented to the Judge. He didn’t even know what was presented to the Judge. He just knew that without his knowledge a warrant was issued for his arrest, even though as far as he knew he had posted bail. The Court in his case found this to be a violation of his rights, but in doing so laid out a perfect plan for any Prosecutor wishing to repeat this feat without getting in trouble. What are the magic steps? Well, the Prosecutor has to give notice, but the defendant still doesn’t have the right to be present! As long as he knows the “gist” of what is being presented at this hearing, and as long as the Judge makes an independent determination that the information being presented is reliable, well then it’s just fine to raise a defendant’s bail to $1,000,000! It’s now possible to have secret search warrants (People v. Hobbs 7 Cal.4th 948), anonymous juries (People v. Thomas 53 Cal.4th 771), and secret witnesses (US v. Jesus-Casteneda 705 Fed.3d 1117). With this new attack on the fundamental concept of presumption of innocence, it’s no wonder the average defendant thinks he faces a presumption of guilt regardless of what the Constitution says.

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Hiding-Evidence.jpgSubvert the criminal justice system. Lie to the judge. Hide evidence. Sounds like a defendant in a criminal case doesn’t it?

Who else could it be? If it isn’t the criminal defendant, it must be the much maligned criminal defense attorney, right? You know who he or she is, right? He’s the one who you love to ask at cocktail parties, how can you represent those guys (defendants in a criminal case)?

Well, it’s not either one of the above. In the case of the State of Texas against Michael Morton, the liar was none other than the prosecutor, Ken Anderson.

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Is the government growing a conscience? Our previous blog post discussed the NSA’s very nasty habit of watching everything we do without warrants or permission, and then turning over their information to law enforcement agencies. Well when we asked “who watches the watchers”, it seems like we may have found an answer. The New York Times has reported that the Solicitor General for the United States, Donald Verrilli Jr. has voiced strong opposition to such tactics.

Typically there is no way to know if evidence gathered against you comes from the NSA’s warrantless surveillance program. You can’t fight what you don’t know, so even if the government has illegally gathered evidence against you you’re out of luck. But the Justice Department is set to inform certain defendants that the evidence gathered against them may have come from warrantless surveillance. Apparently Mr. Verrilli is extremely troubled by the actions of the NSA and the Justice Department and doesn’t believe it’s legal or right. Imagine that! Hopefully this is just a small step towards shoring up our Constitution and the rights it affords us.

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How does the NSA surveillance scandal affect you personally? Most people take the attitude that the NSA snooping into everyone’s lives is harmless if you have nothing to hide. The problem is sometimes we don’t know we’re hiding something! There are thousands upon thousands of laws, and it’s impossible for even the most experienced lawyer to know all of them. Everyone at some point in time has made a harmless mistake and broken a law. Merge into another lane without using your blinker? Well it’s not too farfetched to think that in a surveillance state even these small actions might eventually result in harsh punishment and prosecution. But the NSA can’t arrest you! Plus they’re only interested in terrorists! What a waste of time it is to get worked up over this!

Well, while the NSA can’t arrest you themselves, it is becoming apparent that whatever they learn about your life gets passed along to law enforcement. You might be wondering how this is constitutional! They can’t just snoop on you and violate your constitutional rights and then arrest you can they? Well, it turns out that law enforcement agencies use something called “parallel construction” to make it legal.

Parallel construction occurs when the NSA gives a law enforcement agency a “tip”, and this law enforcement agency uses this tip to invade every aspect of your life until they can construct a legal way to introduce that evidence in a case against you. Right now the Drug Enforcement Agency is the biggest culprit. But even the IRS is in on this action! This is the scariest part! Where does it stop? Will the NSA give tips to local and state law enforcement? It’s a brave new world when your government can spy on you at will illegally, and then help law enforcement agencies arrest and convict you legally. So whenever someone says they have nothing to hide, ask them “Who watches the watchers?”

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Are you a defender of the 2nd amendment? One of the most valued personal liberties in the United States is the right to bear arms. Just recently, the United States Supreme Court reiterated that the 2nd amendment guarantees the right to personally possess firearms (http://en.wikipedia.org/wiki/District_of_Columbia_v._Heller). But it’s important to realize that this doesn’t mean you get to carry a firearm wherever you like, whenever you like. For instance, California does not allow a citizen to openly carry a loaded firearm in public (http://codes.lp.findlaw.com/cacode/PEN/3/4/2/1/2/s12031)! In fact, even carrying an unloaded firearm can get you into trouble these days.

But what is most troubling is that you can get in trouble for accidentally having a firearm or some form of ammunition on you. For instance, did you know that if you accidentally bring an empty magazine or even a single bullet into an airport, you can spend up to 6 months in jail? It doesn’t matter if you have a firearm, or the ability to use that ammunition. It doesn’t matter if it was just an accident; you can and will be charged with a violation of the Penal Code! Many people are unsure of where your 2nd amendment rights begin and end. That’s why it’s very important to have a good advocate on your side so you don’t spend 6 months in jail for an accident!

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Just imagine this scenario: you get arrested for something, are released from the police station later that day, and never hear anything from the police or district attorney’s office again. Then months or maybe years later you get pulled over for a simple speeding ticket, or try to renew your driver’s license and find out there’s a warrant out for your arrest! This happens all the time! Because our courts are so backed up sometimes District Attorney’s offices simply don’t get around to pursuing and completing a criminal action against you. So without knowing it, you might have missed a court date, or have a warrant for your arrest and are seemingly a fugitive on the run!

But don’t worry! An experienced defense attorney knows that long delays during a criminal prosecution against you can be considered violations of your Constitutional right to a speedy trial. For instance, in California, if the District Attorney waits longer than a year to pursue and complete a criminal action against you, you are entitled to a dismissal! The District Attorney must have very good reasons for delaying in order to avoid this dismissal! Simply saying “we forgot!” or “we didn’t have the time or resources!” won’t work.

This process is known as filing a Serna motion, named after a famous case that established this right. While an inexperienced defense attorney might get caught up trying to argue the facts of your case or settle a plea agreement that is detrimental to you, a good attorney will first file a Serna motion and try to dismiss all allegations against you!

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Feel like you’re being tried in a kangaroo court? Has someone falsely accused you of committing a serious crime and then disappeared before you have a chance to defend yourself in court? It happens more often than you think. You get accused by someone in a “he said she said” situation of committing a serious crime. That person gives a statement to the police or provides testimony in a preliminary hearing against you. Then they disappear! And the District Attorney suddenly says your accuser is “unavailable” for trial.

An inexperienced defense attorney might not know that you have a Constitutional right to confront your accusers in court. Without a chance to have a jury evaluate your accuser’s statements for themselves you might find yourself in jail for a long time. An experienced defense attorney however would know that a District Attorney has to try a little harder than simply saying “they’re gone!” For instance, a District Attorney is required to subpoena witnesses, and even put out warrants for their arrest if they refuse to testify and instead try to disappear. Even if they flee to another country like Mexico, a District Attorney has a duty to use things like U-Visas to get those witnesses back! A U-Visa is a temporary visa that a state or federal official can grant to a witness who has vital knowledge of a crime being prosecuted in the USA.

Before you get railroaded in court by a system that seems stacked against you, make sure you have an experienced attorney on your side to hold the government accountable!

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Are you trying to get your belongings back after the police took them away? It’s an all too common situation to be in. The police have taken you into custody or searched your house. After tearing through your stuff they decide to keep certain things that are valuable to you and probably don’t have much to do with why they’re there. Well, just because they have taken your belongings the police don’t have the right to keep them! Even if you’ve been arrested or the police had a search warrant, an experienced defense attorney has a good chance of getting your property back for you.

Penal Code §1536 commands the police to keep anything they take from you in their custody. They can’t just dump it off at an auction or say they “lost it”! §1536 also says that the court can order the police to release your belongings back to you at their discretion! An inexperienced attorney may not know that the law entitles you to get your possessions back. An experienced attorney can write a §1536 Motion to Return Property and get the judge to order your property returned to you.

This is just another reason why it’s very important to have the right attorney helping you at all times to make sure your rights and your property are respected.