Articles Posted in Constitutional Law

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Mr. Glover, a Kansan pickup truck owner, was driving when he passed a sheriff’s deputy. The deputy, who was randomly checking license plates, searched the plate of his truck. Upon his search, the deputy found that the state revoked the license from the registered owner of the truck. The sheriff, assuming Glover was driving, pulled the truck over, verified that the driver was Glover, and charged him with driving on a suspended license.  Glover did not accept the idea that he was lawfully stopped and detained.  Instead, he believed that the police had no right to stop.  The officer hadn’t witnessed him commit any violation of law.  The deputy only had a  “hunch” he was driving the truck.  After all, he hadn’t done anything that would satisfy the usual standard for probable cause to detain.  That is, something the officer saw that led him to believe that the driver had committed a crime.   Glover’s lawyers argued the misdemeanor case all the way to the US Supreme Court. On April 6, 2020, the United States Supreme Court ruled in favor of the State of Kansas and made law that the rest of the country is going to have to live with as well.  It is now legal for police to assume the driver of a car is also the registered owner.

Before the Glover decision, police needed reasonable evidence to confirm the identity of a driver they knew was driving without a valid license before making a traffic stop. If the identity of the driver wasn’t known to the police there had to be an articulable objective suspicion of criminality before a detention could occur.  No longer, it is now much easier for police to stop your car on the road and issue a traffic ticket.

Our founding fathers created the Fourth Amendment to the Constitution, the protection against unreasonable searches and seizures, to protect us from abuses of power by the government. For this reason, it is essential to continue to fight the idea that police can use this case to justify all traffic stops. This case must be limited to it’s facts.  Unfortunately, based on past experience I believe that law enforcement will use this case to justify many stops based on hunches and speculation.  If there isn’t  reasonable evidence to believe you have violated the law, a vehicle code violation or other grounds to pull you over and detain you, don’t give up on the idea that your right to be free from unreasonable searches and seizures no longer exists.

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For years the law in California was use of a gun in the commission of a felony meant a State Prison sentence if convicted.  The consequences of gun use in commission of a crime went beyond just the fact that it made a State Prison sentence mandatory, it also meant that the credits a person earned in custody were limited.   In addition, for future crimes, the use of a gun meant that it was a violent felony.

Now, under Senate Bill 620 starting January 1, 2018, anyone charged with the enhancement of Penal Code Section 12022.5 or 12022.53  (use of a gun during a felony) may become probation eligible if the judge strikes the enhancement.  SB620 gives the judge, who is doing the sentencing, the option to strike the 12022.5 or 2022.53 enhancement if he or she feels it is appropriate in the interests of justice.

How this will be implemented is still unresolved.  If the Court strikes the enhancement pursuant to Penal Code section 1385(a) then it may be that the crime is no longer a violent felony leading to the possibility that the underlying crime isn’t even a strike.  However, if it is stricken only for purposes of sentencing, it may be that the conviction will still qualify as a strike and decrease the credit for time served.  

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Even if you aren’t familiar with the justice system, most people have heard of Miranda rights by watching TV.  These are rights that are guaranteed to a person when he/she is arrested and the police want to interrogate the person.  Before the police question anyone they have placed in custody, they must read these rights and make certain that the suspect either agrees or disagrees with them.  It is not ambiguous.  The person has to explicitly agree to talk to the police knowing that he doesn’t have to.  These are the Miranda rights:  “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”

When a police officer testifies falsely that the defendant waived his Miranda rights, what happens if the District Attorney doesn’t reveal there is a video tape of the interview that shows the defendant didn’t give up his Miranda rights?

That’s what happened in the recent case of People v Harrison decided by the 2nd District Court of Appeal (B272132 decided October 26, 2017).  The detective testified that he gave the defendant his Miranda rights and then the defendant confessed.  However, a videotape of the interrogation came to light and it was clear that the defendant invoked his right to remain silent.

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Recently 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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Imagine 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 ( 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 (! 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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