Privacy, cell phones and police searches - lock up your phones!

January 25, 2011

The United States Constitution protects you from unreasonable searches and seizures.  Under the Fourth Amendment, the police must either have a search warrant or some recognized exception to be able to legally search (and therefore gather evidence to be used against you).

One of the exceptions is a search “incident to an arrest.”  Since 1973, the United States Supreme Court ruled that the police, upon a lawful arrest, are authorized to search a person, including their clothes, any containers (purses, backpacks, briefcases, etc.) at the same time as the arrest.  Sounds logical.  The rationale is that the police should be authorized to search you to make sure you don’t have a weapon or contraband before they take you into a jail facility.  Makes sense, right?  Sure.

One of the basic requirements used to be that the search had to be done “contemporaneous with” the arrest - that is, at the same time as the arrest.  In the recent case of People v. Diaz, the police stopped Diaz for his involvement in a drug deal and arrested him.  A detective then looked through Diaz’s cell phone and found a text message that the detective took to be a message regarding a drug transaction.  When confronted with this evidence, Diaz confessed to dealing in drugs.

The issue became - was this search of Diaz’s phone done 90 minutes after his arrest while safely back in the police station “incident to arrest”?

In a rather convoluted leap of logic, the California Supreme Court decided that the phone was “immediately associated” with Diaz and therefore subject to being searched under the “incident to arrest” exception.

Huh?

What about the idea behind those kind of searches that was to look for weapons or contraband being brought into the jail?  I assume the police weren’t going to let Diaz have his cell phone with him while in the cell, so what danger did his cell phone pose?  Diaz certainly had an expectation of privacy in the contents of his cell phone, didn’t he?  Why didn’t the police need to get a warrant?

The Court wasn’t unanimous on this one.  In a vigorous dissent, two Justices denounced the ruling as going too far and unreasonably invading a person’s privacy rights.

Would it really be too much to ask that the police justify the search of the phone?  It wasn’t going anywhere, so there was no need to rush in and search.  Couldn’t they have applied for a search warrant?

Sometimes, judicial logic and the expansion of exceptions to the Constitution leave me scratching my head, but the ruling also sends an important message:  If you have a smartphone (iPhone, Android, Blackberry, Palm, Windows, etc.), learn how to use any locking features it has.  Password protect it.   Yep, there’s an app for that.

While you’re at it, password protect your laptop, pocket organizer and anything else that may have data on it that you don’t want anyone to see.  Apparently, if you’ve got it near you, it’s fair game if you’re arrested.

And when asked for the password, keep your Fifth Amendment right to silence in mind.  If you give the password, you’re admitting you have access to whatever is on there, so even admitting the item is yours or knowing the password could be against your best interest.

And with every search issue, it’s up to the prosecution to justify the police’s actions.  Let me know if you want to discuss your case and the search issues involved.

Joe Dane

info@joedane.com

(714) 532-3600

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Can charges be changed after a preliminary hearing?

January 12, 2011

A recent question sent to me asked about the procedure in an involuntary manslaughter case.  The question was:  Can the judge decide to upgrade the charges if the DA doesn’t pursue greater charges?  The question was based on the recent preliminary hearing of Dr. Conrad Murray in the Michael Jackson death case.

The prosecution files whatever charges they think they can prove based on the evidence. Once the defendant is arraigned and enters their not guilty plea, the next stage is the preliminary hearing.  The prosecution puts on the preliminary hearing and make a motion that the defendant be held for trial (”held to answer”) on whatever charges they think they proved up at the preliminary hearing. For example, if they initially charged manslaughter, but during the hearing, they think they proved murder, they can ask the judge to hold the defendant to answer on murder charges. It’s up to the judge to rule whether there was enough evidence on the charge requested. If the judge thinks there is, then they can hold the defendant on the higher requested charge. The judge’s ruling at the conclusion of a preliminary hearing is based on what was presented during that hearing.

They listen to the evidence, then based on a probable cause standard, make a determination if there is sufficient evidence to hold the defendant for trial. Their ruling is typically based on what charges are filed by the prosecution.

It works the other way, too. Let’s say the DA filed murder charges initially, then put on their evidence at the preliminary hearing, but the judge wasn’t convinced the evidence was sufficient. They could refuse to hold the defendant for trial on the charged offense, but could order them held on any lesser offense they think was proven.

Once the judge has ruled, there is a period of time (15 calendar days) between the preliminary hearing and a second arraignment. The DA then files whatever charges they think were proven at the preliminary hearing in a new charging document called an information. In most cases, they file charges that are the same as the judge’s ruling. The prosecution can file additional charges - either extra charges, higher charges or lower charges.

From there, the defense can challenge those new charges in a Penal Code section 995 motion. Let’s say, for example, that the judge ruled that there wasn’t enough evidence for murder, but there was enough for manslaughter. The prosecution disagrees and decides to file murder charges anyway. The defense would then file a 995 motion to challenge those charges. A different judge would then review the transcript of the preliminary hearing and rule on whether or not there was sufficient evidence to support the charges.

The defense can file a 995 motion in any criminal case to challenge the sufficiency of the evidence, even if the charges don’t change from the initial charges. The defense can always challenge whether or not the defendant was held to answer based on enough evidence.

To answer the initial question though - can a judge upgrade charges during the trial? No. The decision of what charges to file is up to the DA. From there, the checks and balances of the preliminary hearing and 995 motions can challenge the charges, even before it gets to trial.

Once a case gets to trial, the charges the defendant will face have long since been decided. Of course, at trial, there are lesser included charges to those charged, giving the jury a whole host of options when it comes to deciding the case.

See also:

What are the stages of a felony case? and What are the stages of a criminal trial?

Joe Dane, Orange County Defense Attorney

info@joedane.com

(714) 532-3600

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Passengers rights in DUI checkpoint

January 7, 2011

With all the holiday DUI checkpoints that have occurred, I was asked recently about passengers’ rights.  For example, what if the police made observations about a passenger during a DUI checkpoint?

As a passenger in a DUI checkpoint, you have the same rights as anyone else to challenge the legality of the checkpoint, the reasonableness of your detention, etc. If the officers spent an exceedingly long time with you (instead of focusing on the driver), your attorney may have an argument to suppress the evidence.

Here’s why: DUI checkpoints are deemed acceptable for “public safety.” It’s an exception that has developed to the ordinary requirement that the police have information about criminal activity in order to be able to detain you. For example, in an ordinary DUI stop (not a checkpoint), they would point to some violation of the law (weaving between lanes, driving without headlights after dark, etc.) to justify the stop (detention) leading to the contact. In a checkpoint, there are almost never any prior observations of “bad” driving or any violation that would legally justify the stop. Instead, the courts have allowed this brief intrusion on your freedom of movement for a quick screening. Checkpoints are supposed to have guidelines in place to allow more cars through and stop fewer if traffic backs up to avoid unnecessary delay and intrusion on people’s lives.

Once in the checkpoint, the officers can contact the driver for a quick screening conversation and based on that, should they find the driver to have been drinking or seeming impaired, it would then justify a longer detention for a DUI investigation.

But what about passengers?

Every case is unique and fact specific, but the questions are going to be: Why did the officers focus on the passenger? Did their observations of potentially under the influence come immediately? Were the officers done assessing the driver by the time they made their observations of the passenger? (If so, it could be argued that the reason for the car stop was over and any further observations and detention without reasonable suspicion did not exist, making the evidence subject to suppression).  Yes, the officers can use their “plain sight” exception to at least look at the passenger, but to detain further than their observations while conducting the DUI checkpoint contact with the driver?  It may go too far.

As with every search and seizure case, they really are fact specific.

Is there an argument to be made? Sounds like there may be, but the entire case will have to be reviewed by a criminal defense attorney well-versed in DUI checkpoints and Fourth Amendment (search) law.

Joe Dane

info@joedane.com

(714) 532-3600

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Pat down searches - Orange County Criminal Defense

January 3, 2011

When can the police pat you down?  How far can they go?

A patdown search, sometimes called Terry search or a frisk is only authorized in certain circumstances.  If you want to see a perfect example of when it’s not supposed to happen, look at an old rerun of the TV show COPS.   Seems like every show you watch, the police would stop somebody for who knows what and next thing you know, they’re on the hood of the car with their pockets being turned inside out.

Obviously, that’s not how it’s supposed to go.

First, the police can search for anything if they have your consent.  If you’re in contact with the police at whatever level they asked if they can search you and you agree, it may be difficult to complain about the legality of the search later.  Of course, any consent must be freely given and not coerced by the police.

But what if you refuse to give consent?  When can they search you?

If you are lawfully detained by the police, that doesn’t automatically give them the right search.  Not only must they legally justify your detention, but they must also have specific facts which make them believe that you are armed with a weapon or something that could be used as a weapon against them.

If they can justify patdown search, that’s all they’re allowed to do. It’s not a full search where they can start sticking their hands in your pockets or looking in your wallet. They are authorized only to do a patdown or frisk search of your outer clothing for weapons.  That’s it.  If they have to manipulate, squeeze, or do something else to whatever they feel in your pocket to figure out what it is, it’s not a weapon search and they can’t legally seize it.

So how do you protect yourself?

First, always know which her legal status is.  The police could walk up to anyone they want to and start talking.  Unless they have legal grounds to detain you, you’re free to go.  If you have any doubt, ask them “Am I free to go?”  if they say yes and you don’t want to stick around, walk away.   If they tell you you’re not free to go, then you are detained.   During the detention, they can ask for permission to search, but you don’t have to give it.   If you give consent, our argument later that it was an illegal search may not get us very far.  Instead, if you decline the request search it puts the ball in their court and they have to justify the legality of the search.

If you are arrested, that they could do a full search for any and all containers, pockets, etc.

For more information, see:

Interacting with the police

How is evidence suppressed in court?

Joe Dane

info@joedane.com

(714) 532-3600

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Arrested for DUI? What are your first steps? Orange County Defense

January 2, 2011

Law enforcement in Orange County was in full swing over the holiday period with DUI checkpoints, “saturation” patrols and being on high alert for suspected DUI drivers.

If you found yourself caught up in a checkpoint or were pulled over and are now facing DUI charges, I’m sure you’re asking - Now what?

First - you only have 10 days from the date of your arrest to request a hearing with the DMV or they will automatically suspend your license for4 months.  By requesting a hearing, we can put the automatic suspension on hold until we get things sorted out.  That pink piece of paper they gave you tells you about the hearing, but the one thing the DMV is strict on is the 10-day window to at least request the hearing.

Next - there may be things we discuss about your case that can change things, even before we go to court on the DUI charges.  In addition to the sneak preview of the evidence we’ll get from the DMV, there can be defense investigation into the legality of the stop, the field sobriety tests interpretation, etc. If there were errors in the investigation, it can lead to suppression of the evidence and/or a reduction in charges.  Every case is unique, so we’ll need to discuss it in detail.  Based on my experience as a former cop and former prosecutor, we’re going to look at your case from all sides - legal defenses, factual defenses and ways to lessen the impact against you.

If your arrest was recently, don’t let that DMV window close.  Give me a call and we can talk about your case and where we’re going from here.

Joe Dane

info@joedane.com

(714) 532-3600

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