Articles Posted in Constitutional Law

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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.

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The Fourth Amendment to the Constitution provides that we have the right to feel safe from unreasonable searches, and where a search warrant is issued, that it must be supported by probable cause and be specific. A search conducted without a warrant is presumptively unreasonable unless it meets one of a number of exceptions carved out by the Supreme Court. In 1966 the Supreme Court decided that it was acceptable for law enforcement to procure a blood sample from a suspect over his objections during a DUI investigation. A fear that the blood alcohol content of a suspect diminishes naturally spurred the Court to agree with law enforcement that there was an “exigent circumstance” supporting this very intrusive and uncomfortable search of the suspect’s body.

The Supreme Court has helped restore some strength to the Fourth Amendment of the Constitution and the protections it provides recently. Their April decision in Missouri v. McNeely strikes down the proposition that DUI investigations necessarily meet the “exigent circumstances” exception relied on in Schmerber. The accused in this case was pulled over by a Missouri State Trooper. When he refused to take a breathalyzer on the spot, he was cuffed and taken to a nearby hospital where his blood was drawn over his objections! In holding that his Fourth Amendment rights were violated the Court focuses on the lack of injuries requiring hospital care, or any other circumstances that would cause unreasonable delay in properly acquiring a warrant before drawing McNeely’s blood.

While Missouri v. McNeely doesn’t mean that warrantless blood draws are always unreasonable, it provides for a totality of the circumstances test that allows for your lawyer to aggressively ensure your rights are respected during a DUI investigation. Simply carting you off to the nearest physician and drawing blood against your will is no longer acceptable!

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Recently I visited the ongoing trial of a man accused of murder. The defendant was a Hispanic man in his twenties and was an admitted member of a Hispanic gang in Santa Ana. I walked into the courtroom, sat down and took a look at the jury. I almost laughed out loud. Here was this rough and tumble Hispanic gang member and the jury judging him was totally made up of white people. The jury members looked about as far removed from the life the defendant had lived as was possible.

The sixth amendment of the United States Constitution provides in part, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed…” It is commonly thought that a defendant is entitled to a “jury of his peers” but that is not what the Constitution guarantees. The Constitution only guarantees an impartial jury, not one that in reality has anything in common with the defendant other than they are all human.

However, the Supreme Court noted over a century ago in Strauder v. West Virginia, the jury should be drawn from a group “composed of the peers or equals [of the defendant]; that is, of his neighbors, fellows, associates, persons having the same legal status in society as he holds.” This case involved an African American defendant and a jury in which other African Americans were excluded as a matter of law. This was held to be unconstitutional.

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In California a Defendant is entitled to a dismissal following successful completion of probation or earlier if discharged from probation before the end of the probationary period. (Penal Code Section 1203.4) However, a dismissal under the provisions of PC 1203.4 does not expunge the conviction from the record. Expungement commonly means: destroy, wipe out, strike from the record or erase the conviction completely from any record. In California there isn’t any expungement available to a Defendant. Once a Defendant has been convicted the conviction is not going to be erased from the public record.

The available relief to a Defendant in a criminal case following a conviction is afforded under PC1203.4. It WILL do the following:

1: Set aside the verdict or plea;

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Almost everyone has heard of Double Jeopardy. The Constitution prevents you being tried twice for the same offense. There even was at least one movie called Double Jeopardy. However, what happens when you are arrested for one offense, plead guilty, and then the police discover evidence of a second offense and want to try you for that later discovered crime?

The recent case of People v. Barriga gives us the answer. Mr. Barriga was a passenger in a car that had been carjacked (a violation of Penal Code Section 215). One who is convicted of violating Penal Code Section 215 can be sent to State Prison for up to nine years. It is also a Strike violation under California’s Three Strike Law. Now Mr. Barriga didn’t want to get arrested so he resisted arrest, violating Penal Code Section 148(a). A violation of Penal Code Section 148(a) is a misdemeanor and is only punishable by up to one year in County Jail. Since Mr. Barriga was a passenger in the stolen car, he was only charged with violating Penal Code Section 148(a). He immediately pleaded guilty to the resisting arrest. The difference for Mr. Barriga in the possible sentence between carjacking and resisting arrest was huge.

Following Mr. Barriga’s guilty plea the police discovered cell phone calls that incriminated him in the carjacking itself. Of course, the prosecutors didn’t want to let Mr. Barriga off so easily so they now charged him with carjacking even though he had pleaded guilty to resisting arrest. It wasn’t double jeopardy because carjacking is a different crime than resisting arrest and he wasn’t being charged twice for the same thing. Can the DA get away with this?

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Alaska Senator Ted Stevens was prosecuted for corruption in office by the United States Attorney’s Office. He allegedly failed to disclose gifts made to him. He was found guilty following a jury trial. The jury based their decision on what was provided to Stevens’ defense team. However, what Stevens and the jury didn’t know was that important statements of witnesses and testimony which was exculpatory (tending to show Stevens’ wasn’t guilty) was not given to the defense.

The lawyers from the US Attorney’s Office knew that their most important witness was having sex with underage girls and part of this witness’ testimony against Stevens was most probably fabricated. Not only did the prosecutors know about these issues with their key witness, which could be used to impeach his credibility, but they covered it up. Not only didn’t they turn the information over to the defense, they hid it from Stevens’ defense team. Apparently, the prosecutors’ desire to obtain a conviction overcame their sense of right and wrong, justice, and ethical duties.

Why is this important? First of all, the defendant’s right to a fair trial hinges on the prosecutor being fair and open with all evidence which could be termed exculpatory. Anything that reflects on the credibility of key witnesses must be turned over to the defense. Failure to do so cheats the system, the defendant in question, and undermines everyone’s faith in the criminal justice system.

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The United States Supreme Court on January 11, 2012, rendered a decision in Perry v. New Hampshire, that limits the ability of the defense to successfully attack a suggestive or unreliable identification of the defendant by an eyewitness. Eyewitness identification has long been the subject of commentary and even experiments. Many of us have seen the video of or even participated in a situation where a professor has a classroom full of students when a subject rushes in steals the professor’s purse and the class is asked to describe the suspect. It’s incredible how varied the descriptions of the suspect are. Different facial features, races, clothing, height and weight and numerous other identifiers have been listed by witnesses seeing the same thing. How many times have you been in line at a theater, seen someone you think you recognize and been mistaken? It’s happened to all of us.

Stress of an unexpected, even scary, situation can affect one’s perception and ability to accurately identify suspects or describe events. On a personal note, I witnessed a car crash right in front of my eyes. I stopped, waited for the police, submitted to an interview, and was told that my account was completely “wrong”. Physical evidence and other eyewitnesses made it quite obvious that what I thought I had seen was just plain in error. I didn’t mean to mess it up or make a mistake, it just happens because when events occur quickly under unexpected conditions what we think we see isn’t always what actually happened.

Now, when a police officer investigates a crime and gets a description of the suspect from the victim he can just take the information or by his questions and technique he can influence the identification. For example, when a photograph of a suspect is shown to a victim several similar looking photos are used in a “six pack”. The eyewitness is asked to view the subjects, admonished it’s just as important to exonerate the innocent as to find the guilty person and just because a picture is in the “six pack” it doesn’t mean the perpetrator’s photo is contained in it. When that doesn’t happen and a singular photo is shown to a witness and no positive identification is made, what do you expect would happen if that same singular photo is placed in a subsequent “six pack” ? Isn’t that overly suggestive? Isn’t that type of police technique almost ensuring the identification of the photo of the singular photo individual? Of course it is. Once suggestive procedures like this one are used, the ultimate identification of the suspect (now defendant) taints the whole process. Now you will never know if the identification is the product of what the eyewitness saw or the suggestive procedure used by the police.

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On January 23, 2012, the United States Supreme Court issued it’s decision in United States v. Jones. The Jones decision is noteworthy because it requires law enforcement to obtain a warrant when using a GPS device. A look at the facts in Jones is necessary to understand the Court’s reasoning.

The Government obtained a search warrant which allowed it to install a GPS tracking device on a car registered to Jones’ wife. The warrant authorized the GPS to be installed within 10 days of the issuance of the search warrant. The agents waited until the 11th day to install the device (after the expiration of the warrant). Then the Government tracked the vehicle’s movements for 28 days.

As a result of the tracking of the vehicle an indictment was issued charging Jones with drug trafficking and conspiracy. The trial court issued a split decision when Jones moved to suppress the evidence obtained by use of the GPS device, stating when the vehicle was parked at Jones’ house it was an illegal search but when it was on the public streets there wasn’t any expectation of privacy and therefore no illegal search. Jones was convicted and appealed.

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