Sacramento Criminal Defense Lawyer Blog

Later this year the United States Supreme Court will decide whether jails can have a blanket policy of strip searching all people who are arrested.

The Fourth Amendment of the U.S. Constitution declares that people should be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." It falls to the courts to determine which government actions violate this principle. In each case, there is a need to balance the government's need to conduct a search with the invasion of privacy that the search causes.

The issue in Florence v. Board of Chosen Freeholders of County of Burlington is whether a jail can have a policy of conducting strip searches of every person who is arrested. Various federal appellate courts have issued conflicting decisions opinions, with some saying that such all-inclusive strip search policies violate the Fourth Amendment and others saying that they do not.

The Supreme Court will issue its decision later this year.

A California appellate court (Second District, Division Four) has issued a decision that allows police to conduct DNA analysis on saliva taken from a PAS device (used during traffic stops to test for intoxication) without the defendant's knowledge or permission. In our view, this is an incorrect decision that violates people's expectation of privacy.

The case concerns Troy Thomas, who was suspected of being involved in several burglaries between 2006 and 2008. While under surveillance on December 1, 2008, Thomas was pulled over for suspicion of DUI. After passing a number of sobriety tests - including blowing into a PAS device - Thomas was allowed to go.

What Thomas did't know was that the officers kept the mouthpiece that Thomas had blown into and subjected it to DNA analysis. When Thomas's DNA profile was compared to DNA evidence obtained at some of the burglary scenes, two matches were found. Thomas was subsequently charged with six counts of first-degree residential burglary. He pled no contest to one count and - because of enhancements for prior felonies - received a state prison sentence of 17 years. He appealed on the basis that the police violated his right to privacy when they used his saliva from the PAS mouthpiece for DNA testing.

The appellate court's decision boils down to this: Thomas had no expectation of privacy because the mouthpiece was a "discarded item" akin to a soda can or cigarette butt. Thomas, the court said, should have wiped off the mouthpiece. Because the police typically throw the used mouthpieces in the trash, they were justified in keeping the one used on Thomas and testing the saliva.

Again, in our view the appellate court has erred in its decision. A PAS mouthpiece - which the police required Thomas to blow into - is not analogous to another item like a can or cigarette that a person clearly possesses and then chooses to discard. It is unreasonable to think that someone blowing into an intoxication device will think he has a right to tell the police he wants to wipe off the mouthpiece, or even keep that particular component.

We hope that other appellate courts and the state supreme court reexamine this issue and come to a different and more reasonable conclusion.

People v. Thomas

A recent ruling by a California appellate court (Second District, Division Six) recognizes important limits on police authority to seize and open packages sent by the post office, FedEx, UPS, or other delivery service.

People v. Robey concerns Kewhan Robey, who attempted to send a package through FedEx from Santa Maria to Illinois. A FedEx employee in Santa Maria noticed the odor of marijuana emanating from the package and called the police, per company policy. The officers, both of whom had extensive narcotics training, also identified the odor as marijuana and seized the package as evidence and took it to the police station. When the department's narcotics unit decided to not take up the matter, the officers continued with their own investigation and opened the package, revealing nearly one pound of marijuana.

Robey, who had used a false name on the packing slip, returned to the FedEx office a few days later to find out why the package had not reached its destination. He was subsequently arrested and charged with possession for sale and transportation. Robey filed a motion arguing that his Fourth Amendment rights against unreasonable search and seizure were violated when the police opened the package without a warrant. The trial court denied that motion.

The appellate court, however, agreed with Robey, saying that police should have obtained a search warrant before opening the package. The key to their ruling is that no exigent, or emergency, circumstances existed. Generally, police are required to obtain a warrant from the courts before conducting a search. Under certain emergency circumstances, though, the police may conduct a search without a warrant. For example, police are given greater latitude with warrantless searches of vehicles because the evidence contained in a vehicle could be driven off and disposed of if police are not able to engage in a search immediately, without having to wait for a warrant from a judge.

In Robey, the appellate court said that since the officers had the package in the police station, an emergency situation did not exist. The officers simply needed to go to a judge and request a search warrant based on their observation that the smell of marijuana was coming from the package. Because they did not do this, Robey's Fourth Amendment rights were violated, and therefore the marijuana cannot be admitted as evidence.

Again, this case identifies important restrictions on the power of police to conduct searches. Certain legitimate instances exist when police may search without first obtaining a warrant. But absent those exigencies, our Fourth Amendment rights are preserved through the important check requiring police to obtain a warrant from the judicial branch.

Governor Jerry Brown last week signed into law AB 141, which clarifies instructions to jurors about communicating with people not involved with the trial, as well as conducting research outside the trial.

Specifically, the new law, which takes effect January 1, 2012, deals with electronic communication - tweets, texts, email, and other social media - and electronic research - for example, relevant news stories found using a Google search.

This clarification has become necessary with the growth of the internet and the prevalence of smart phones and other wireless devices. Jurors can have access to crime scene descriptions and photos, defendants' criminal records, statements by witnesses, and other information related to the case.

The problem is that jurors are supposed to consider only the information presented to them in the courtroom, and are to discuss that information only with other jurors. The goal of the new law is to ensure that all members of a jury consider only the body of information presented by prosecution and defense attorneys, and that their decisions are not tainted by the opinions of friends, family members, or other people outside the trial.

Jurors who violate the new law can be charged with a misdemeanor.

If you've been charged with a misdemeanor, one of the advantages of hiring a criminal defense lawyer is that in most cases your attorney can appear for you in court and represent your interests without you being present. Whether you appear depends on the circumstances of the alleged crime and what is being decided at each court date. You and your attorney should determine the best course of action. But having this option allows you to go to work, attend to the needs of your family, and take care of the other issues that we all face on a daily basis.

Having your attorney appear for you for misdemeanor charges can be advantageous if you've been arrested in Sacramento, Yolo, or Placer counties but live elsewhere. For example, we've had clients - including some from outside California - who were arrested while visiting the Sacramento region. They contacted us after they returned home, gave us permission to act on their behalf, and let us handle their defense without their having to return to the area.

It's important to keep in mind, however, that if your misdemeanor case goes to trial, you are well advised to appear in court during the trial, even though your are not required to do so. Again, discuss this with your attorney.

In addition, if you've been charged with a felony, you are required to appear at all of your court dates.

Following up on our post last week outlining the purpose and structure of arraignments, today we want to highlight the importance of not missing the arraignment, and seeking legal counsel when necessary.

This might seem like a common sense thing to do, but unfortunately there are instances of people receiving a citation, failing to be present at the arraignment - or not being represented by a defense attorney - and then facing even more serious penalties. Sometimes this happens because the defendant purposefully misses the court date. Other times, though, the defendant doesn't understand the significance of the court date or the nature of the charges.

When someone is arrested for a felony or misdemeanor, the arraignment date is generally clearly communicated to the defendant during the booking process. Failure to appear at an arraignment in these instances is usually a deliberate decision.

What we often see causing confusion is when someone has been issued a citation for a misdemeanor but is not placed under arrest. For example, a minor charged with possession of alcohol might not be arrested. The police might simply issue a citation - the piece of paper that lists the charges and specifies the court date. Nonetheless, underaged possession of alcohol in a public area is a misdemeanor and the court date listed is on the citation is the arraignment.

Failure to show up for an arraignment can result in a warrant being issued for the defendant's arrest and the possibility of increased jail or prison time, fines, or other penalties. If you've been cited by the police, it's important to contact a defense lawyer to determine the nature of the criminal charges and to devise a defense strategy. Moreover, a defense attorney can appear for you on your behalf for misdemeanor charges, allowing you to not have to appear in court.

All of us have seen arraignments portrayed in movies and on television. The details can change depending on the circumstances of the alleged crime, but the essential elements of each arraignment are the same: a person who has been arrested by the police or other law enforcement agency appears before a judge in a courtroom, hears the specific charges being filed by the district attorney's office, and then pleads guilty or not guilty.

This scene is so familiar that it's easy to overlook how this simple hearing highlights many of the fundamental relationships between the individual and the government - including government's public safety function, individuals' constitutional rights, and the system of separation of powers that seeks to promote both safety and rights.

At an arraignment, the defendant hears the "complaint" being filed by the district attorney's office based on the details of the arrest documents provided by the police. The complaint specifies which laws the defendant is alleged to have violated, as well as the severity of those charges (some violations can be charged as either a misdemeanor or a felony). The judge ensures that the defendant understands his constitutional rights and, if appropriate, sets bail.

For misdemeanors, there is just this one arraignment, which is followed by pre-trial conferences and motions, and a trial if necessary. For felonies, there are actually two arraignments. The first arraignment described above is followed by a preliminary hearing at which the judge decides whether enough evidence exists that a crime occurred and that the defendant might have been involved. If the judge determines that the district attorney may proceed with the case, the "prelim" is then followed by a second arraignment, where the DA files an "information," a second version of the complaint that takes into account any rulings made by the judge at the prelim. The defendant again enters a plea of guilty or not guilty.

As mentioned above, the arraignment demonstrates key principles of the criminal justice system.

• First, though the police or sheriff's departments have the ability to make an arrest, they do not have the authority to file criminal charges. After the police have made an arrest, gathered evidence, and documented their actions, they turn their findings over the district attorney's office, which decides which criminal charges - if any - to bring against the defendant.
• Second, the defendant has the right to be informed of the charges against him and to make a public declaration of his guilt or innocence.
• Third, the defendant is represented by a criminal defense lawyer who presents the defendant's version of events, provides legal arguments that support the defendant, and ensures that the police followed established procedures and the district attorney presents an accurate account of what occurred.
• Fourth, all of this takes place before an impartial judge who interprets the law in light of the details of each case and makes sure that all parties abide by court rules.

These arrangements are crucial protections against abuse of government power. Each of us gives up to government some of our liberty in exchange for allowing government to protect public safety. Our system of separated powers - and a defendant's ability to hear and respond to specific charges and have the aid of legal counsel - helps protect our rights.

In recent posts we've covered separately Miranda rights and California DUI law. It's important to be aware, however, how Miranda applies to DUI, including some important limitations.

People often ask these questions: "When I was arrested for DUI, the officer did not read me my Miranda rights. Isn't that a violation of police procedure? Doesn't that somehow compromise the prosecution's case?"

The answers to those questions are usually no and no. Here's why.

Your Miranda rights are the following:

• you have the right to remain silent;
• any statements you make may be used against you in a court of law;
• you have the right to an attorney;
• if you can't afford an attorney, the court will appoint one.

This Miranda warning concerns your rights when two conditions are met: first, you are in police custody (i.e., you've been arrested and detained); second, you are being subjected to an interrogation (the police are asking you questions about the alleged crime).

If the police pull you over for suspicion of DUI, they will pose a series of questions to determine if you are impaired. These questions are considered an investigation that precedes an arrest. Keep in mind the conditions listed above that require police to advise you of your Miranda rights: arrest, detention, and interrogation. Pre-arrest investigative questions generally do not constitute a Miranda violation.

It's also important to understand that any comments you make during a casual conversation with the officer may be used against you. For example, let's say that you talk with the officer while being transported from the arrest scene to the jail. If you volunteer information, then Miranda does not apply.

Finally, if you are pulled over for suspicion of DUI, you are within your rights to inform the officer that you do not wish to answer any questions. If the police wish to interrogate you, a Miranda warning should be given and you should seek the advice of an attorney before answering any questions.

The Miranda warning is an element of the criminal justice system that through TV and movies has become widely recognized among Americans. This warning, which springs from the U.S. Supreme Court's 1966 decision in Miranda v. Arizona, is meant to ensure that citizens understand their constitutional rights if they are arrested and subjected to interrogation by law enforcement. Supreme Court decisions during the past year, however, have placed important restrictions on the scope of the Miranda warning.

In 1963, Ernesto Miranda was arrested for the kidnapping and rape of an 18 year old mentally handicapped woman. During questioning by the police, Miranda admitted to the crime. His confession was used at trial and he was found guilty.

The U.S. Supreme Court agreed to review the case and in its decision said that people must be provided with basic information on their constitutional rights. At the time of Miranda's arrest, the presumption was that this was the responsibility of the individual. The Court ruled, however, that police must provide the following information to anyone arrested and interrogated: they have the right to remain silent; any statements they make may be used against them in a court of law; they have the right to an attorney; if they can't afford an attorney, the court will appoint one. None of this information had been provided to Miranda.

Note that the focus is on instances when someone is arrested and interrogated. Thus, someone who has not been arrested but is merely answering questions posed by police (such as during a traffic stop) need not be informed of his Miranda rights. Incriminating information provided during this sort of questioning may be used as evidence during a trial.

Two recent Supreme Court decisions placed additional important limitations on Miranda rights. In Berghuis v. Thompkins, the Court decided that the burden of invoking the right to remain silent falls on the suspect. That means that if a person does not clearly invoke his 5th Amendment right to silence, police may continue with their interrogation. In the other decision, Maryland v. Shatzer, the Court stated that for suspects who have invoked their Miranda rights and then been released, these protections do not inhibit police indefinitely. The Court declared that a 14 day period was sufficient to allow the suspect to contact a defense lawyer and decide what to do if contacted again by law enforcement. After those 14 days, police may again approach and pose questions to the suspect.

The United States Supreme court last week issued a ruling that requires suspects to clearly state that they are invoking their right to remain silent during interrogation by police. If a suspect does not articulate his/her desire to invoke the Fifth Amendment right to remain silent, police may continue with the interrogation.

The Court's decision in Berghuis v. Thompkins concerns Van Chester Thompkins, who was arrested for suspicion of committing a murder and then brought to the local police station. After being read his Miranda rights, he was asked to sign a statement that indicated his understanding of those rights. He refused to sign the form.

Over the next three hours he was questioned by police. He remained mostly silent, except for a few comments not related to questions about the crime. According to the police, he finally said "Yes" in response to two questions asking if he believed in God and if he had asked God for forgiveness for committing the crime. These responses were used in the subsequent trial, which resulted in conviction for murder.

The Court's decision, authored by Justice Anthony Kennedy, means that police do not have to interpret the silence of a suspect as invocation of the right to remain silent. The Court was far from unanimous in its ruling, however. The minority opinion, authored by Justice Sonia Sotomayor, viewed the majority's ruling as a substantial shift away from the protections against self-incrimination that Miranda had preserved for over 40 years.

Earlier this week the U.S. Supreme Court ruled that criminal defense lawyers are obligated to warn immigrant clients of any deportation risks they face as a result of agreeing to a plea bargain.

The case concerns Jose Padilla, who in 2001 was arrested in Kentucky with 1000 pounds of marijuana in his vehicle. Padilla was born in Honduras but had lived in the United States for 40 years and was a legal permanent resident, even serving in the U.S. Army in Vietnam.

Padilla's attorney at the time incorrectly told him that his guilty plea would not result in deportation. But as soon as Padilla finished serving his prison sentence, the federal government moved to return him to Honduras because his immigrant status meant that conviction of the felony would be grounds for deportation. Padilla appealed, arguing that his Sixth Amendment right to counsel had been violated since his attorney had improperly advised him.

The Court agreed with Padilla that his attorney's incorrect advice led him to enter a guilty plea that was not in his interests. But the Court went further. John Paul Stevens wrote in his majority opinion that defense attorneys must explain deportation risks to their immigrant clients. "The severity of deportation -- the equivalent of banishment or exile -- only underscores how critical it is for counsel to inform her noncitizen client that he faces a risk of deportation."

Whatever your citizenship status, if you're faced with criminal charges, you need a quality defense attorney who knows the law.

Padilla v. Kentucky (2010)
"Court Requires Warning About Deportation Risk," New York Times, March 31, 2010

The First Appellate Court of California last week issued a decision that should be heeded by any person facing criminal charges and considering a police offer to reduce or dismiss those charges in exchange for cooperation in an investigation. In short, the court said that only the district attorney has the authority to reduce or dismiss charges. Any defendant offered a deal by police to "make the charges go away" has to ask for explicit confirmation from the D.A.'s office before agreeing to cooperate. Without such approval, a cooperation agreement lacks authority and leaves the defendant with little recourse if the D.A. later decides to press charges.

The appellate court's decision had two parts. First, it said that, though little state case law exists on cooperation agreements, federal case law clearly says that agreements between law enforcement and defendants are not binding without the approval of prosecutors. Thus at the local level, the authority to bring charges against a defendant rests solely with the district attorney's office. To decide otherwise, the court argued, would raise the possibility that a junior member of a police force could on her own negotiate dismissal of charges in exchange for assistance with an investigation.

The second part of the court's decision dealt with constitutional issues. A cooperation agreement could be enforceable without prior consent of the district attorney only if there had been a violation of the defendant's due process rights, such as incriminating himself or forgoing the right to counsel. When there is no "detrimental reliance" involving a constitutional consequence, the cooperation agreement need not be enforced.

Obviously, the problem here is that few defendants are aware of the distinction between police and prosecutor (they're both looked at as part of one law enforcement team) and hardly any defendants will be aware of this appellate court decision. What we can end up with is some police officers taking advantage of this lack of understanding on the part of defendants and convincing them to cooperate without explaining the need for D.A. approval of reduction of charges. And according to this decision, the defendants will have few if any means to enforce a cooperation agreement if the D.A. balks.

Thus, the First Appellate Court's decision is a cautionary tale with a clear moral: If the police offer you a deal in exchange for cooperation, the first thing to do is demand to speak with a lawyer, and the second is demand confirmation from the district attorney's office. Without that explicit affirmation from prosecutors, a deal to help with an investigation in exchange for a shorter sentence or reduced charges is no deal at all.

People v. C.S.A.., Court of Appeal of the State of California, First Appellate District

Last week the California Supreme Court gave its approval to arrest warrants that identify a suspect by DNA profile alone. Federal and state laws allow so-called 'John Doe' warrants, which identify a suspect by means other than a name. The question before the Court was whether a DNA profile satisfies the 'particularity' requirement, meaning that it identifies a suspect with sufficient clarity. The Court ruled that the unique quality of each person's DNA serves as an adequately precise descriptor of a suspect and thus is valid for arrest warrants.

The case involved Paul Robinson, who in 2000 was arrested in Sacramento County for a sexual assault that took place in 1994. The Sacramento D.A.'s office had issued an arrest warrant for the case four days before the end of the six-year statute of limitations period. Instead of the suspect's name, the warrant listed his DNA profile, which came from evidence at the crime scene. A few weeks later, an amended arrest warrant was issued, this time with the suspect's name, which had been obtained when the crime scene DNA evidence matched a profile in the state's DNA and Forensic Identification Data Base. Robinson was arrested, subsequently found guilty in Sacramento Superior Court and sentenced to state prison.

Robinson appealed his conviction on three grounds: 1. The original 'John Doe' arrest warrant did not constitute a valid commencement of prosecution within the statute of limitations period; 2. His DNA profile did not satisfy the 'particularity' requirement of an arrest warrant; 3. The police should not have been able to use his DNA profile in their investigation since it was obtained from an invalid application of the DNA and Forensic Identification Data Base and Data Bank Act while he was incarcerated for another offence in 1999.

The Supreme Court's majority disagreed with Robinson on all three issues. First, it affirmed that a 'John Doe' arrest warrant counts as the beginning of a prosecution and thus falls within the statute of limitations. Second, use of a DNA profile to identify a suspect on an arrest warrant is valid. The Court stated that, "For purposes of the Fourth Amendment, we conclude that the arrest warrant in question, which described the defendant by his 13-loci DNA profile and included an explanation that the profile had a random match probability such that there was essentially no chance of its being duplicated in the human population except in the case of genetically identical sibling, complied with the mandate of our federal Constitution that the person seized be described with particularity." Finally, the Court said that though the blood draw that placed Robinson's information in the DNA data base violated provisions of the DNA and Forensic Identification Data Base and Data Bank Act of 1998, law enforcement personnel had made good faith attempts to comply with the law. The DNA evidence, therefore, need not be excluded.

The Court's decision does not mean that there is agreement about this issue. The two justices who dissented in the Robinson case argued that allowing 'John Doe' arrest warrants based on DNA evidence merely allows law enforcement to improperly extend the statute of limitations on a case. We'll have to watch the U.S. Supreme Court to see if it takes up this case or others like it.

The People v. Paul Eugene Robinson, Supreme Court of California, January 25, 2010

The Ninth Federal Circuit Court of Appeals issued a decision last month that sets important limits on the use of Tasers by law enforcement. The court's decision restricts the use of Tasers to situations in which there exists an "immediate threat to the safety of the officers or others." In other words, depending on the circumstances, non-lethal force can still be excessive force.

The ruling came as a result of a 2005 confrontation between Carl Bryan and City of Coronado Police Officer Brian McPherson. McPherson, who was stationed at an intersection checking for seat belt law compliance, saw that Bryan was not wearing a seat belt and ordered him to pull his vehicle over. Bryan became agitated because (1) he had received a speeding ticket earlier that morning, and (2) he had been locked out of his house and was wearing only boxers and shoes. (Click on the link below to read the court's decision and get all the details.) McPherson claims that after some back-and-forth Bryan, who was standing about 20 feet away, took a step toward him. Bryan claims that he did not. McPherson nonetheless fired his Taser at Bryan, who suffered temporary seizure and fell face forward, breaking four front teeth.

The court stated that though categorized as non-lethal force, and thus less severe than firearms, Tasers are nonetheless "more invasive" and capable of inflicting greater pain and harm than other methods, such as pepper spray. The X26 Taser used by McPherson shoots steel barbs that deliver a 1200-volt charge that causes extreme pain and temporary paralysis. Tasers can even cause death; eight people have died in the Sacramento region since 2003 after being stunned with Tasers by law enforcement.

In the incident between Bryan and McPherson, the court determined that use of the Taser violated Bryan's Fourth Amendment protection against excessive use of force, which arises from its prohibition of unreasonable searches. The court went on to say that while use of Tasers in some situations is warranted to prevent the need to employ lethal force, many confrontations, including the one between Bryan and McPherson, can be defused through less forceful means.

The bottom line is that the Ninth Circuit Court has made it clear that non-lethal force can still be excessive force in some instances. The decision is effective throughout the Ninth Circuit Court region of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. It is possible that the U.S. Supreme Court could take up the issue if it receives requests for appeal on this case or others like it.

Bryan v. McPherson, U.S. Ninth Circuit Court of Appeals, December 28, 2009

"Deaths Following Use Of Tasers," Sacramento Bee, January 6, 2010

Among the most common interactions between citizens and police are traffic stops. Many of these are straightforward: a driver is speeding or doesn't heed a traffic signal and receives a citation from a police, sheriff, or CHP officer. Though the driver is irritated and out a few hundred dollars, nothing more serious results.

Some stops go beyond this, though, with charges of more serious crimes. This is where knowledge of probable cause and rules of search and seizure is so important.

Let's say that while driving home one night you're pulled over by your local police. Because of constitutional protections, police can't pull you over, detain you, or question you just because they feel like it. For an officer to initiate a traffic stop, he has to have probable cause, or some evidence that a crime has been, or is being, committed. (See our October 28 post for a general discussion of probable cause.) That means that he has to see you committing a traffic violation - e.g., driving too fast, weaving, rolling through a stop sign - or observe that some equipment on your car, like a brake light, isn't working.

Assume that the police do have probable cause to pull you over - your left front headlight is out - and during the course of this traffic stop, the officer asks for permission to search the car. Do you have to say yes? The short answer is, NO, and we advise clients to politely but clearly state something like, "I do not give my consent to a search of my vehicle." When police lack probable cause to search your vehicle, they must let you go on your way. Moreover, the officer is not allowed to hold your refusal against you.

Under some circumstances, though, police may conduct a vehicle search without your permission and without a warrant.

Though the Fourth Amendment appears to require that police obtain a warrant to conduct a search, the reality is not so simple. A traffic stop is one of those times when police may, depending on the circumstances, conduct a warrantless search.

The law is complex and ever changing on this issue, but there are some key guidelines to keep in mind. In Carroll v. United States (1925) the U.S. Supreme Court established the principle that police may conduct warrantless searches of motor vehicles if probable cause exists that evidence of a crime is present. The justification for this is that since motor vehicles are mobile, evidence could be carried away and disposed of if police were required to go off and ask a judge for a warrant. In California v. Acevedo (1991), the Court extended the scope of searches to include containers in a vehicle, again because the evidence in the container could be driven away and disposed of. Some limits on warrantless searches were articulated by the Court in Arizona v. Gant (2009) when it ruled that once a person has been arrested and moved away from the vehicle, police may not initiate a search unless that search pertains to evidence related to the crime for which the person was arrested. (See our detailed discussion of Arizona v. Gant in our August 23 post.)

The principles to keep in mind are (1) any warrantless search of a vehicle requires probable cause, and (2) without probable cause police must obtain your permission to conduct a search.