Tuesday, December 4, 2012

Ninth Circuit Opinion on Terry Frisk

In United States v. I.E.V., a Juvenile Male, the Ninth Circuit reiterated the parameters of a frisk pursuant to a Terry stop.  The facts of the case involved a male (juvenile) passenger of a car which was detained due to an alert by a drug-sniffing dog.  The officers didn't find that the boys in the car were either threatening or likely to flee.  Nonetheless, an officer testified that he found the juvenile to be "nervous" and "fidgety" and so both boys were patted down.  An officer felt an object under the juvenile's shirt, lifted his shirt without permission, and discovered a brick of marijuana. The juvenile defendant appealed the district court's denial of his motion to suppress the marijuana found under his shirt. 

The Ninth Circuit concluded that the police officers had no particularized suspicions directed at the unthreatening defendant to justify the Terry frisk at its inception; the searching officer exceeded the lawful scope of the frisk by lifting defendant's shirt to retrieve an object; and therefore, the court reversed and remanded with instructions to grant defendant's motion to suppress.

The patdown was unconsitutional because the officer frisked the defendant based on nothing more than the suspicion of drugs being found, rather than a particularized suspicion of the boy possessing a weapon or the officers being in danger.  Being nervous and fidgety was not enough to justy the pat-down.  The Ninth Circuit noted that Terry doesn't justify "a perfunctory attitude towards frisking a subject once a justified stop has occurred."

The Case is United States v. I.E.V., a Juvenile Male, 2012 WL 5937702.

Read more about weapons violations at: http://www.bayarea-criminaldefense.com/Criminal-Defense-Overview/Weapons-Violations.shtml

Thursday, November 15, 2012

Deliberately running red light can result in conviction for assault with deadly weapon




This week the California Court of Appeal concluded that a driver who deliberately races through a red light at a busy intersection and collides with another vehicle, causing injury to another, can be convicted of assault with a deadly weapon.  “Assault with a deadly weapon requires proof of an intentional act committed with knowledge of facts that would lead a reasonable person to realize that physical force would be applied to another as a direct and probable consequence of that act.”  Drivers beware!

The Case is: People v. Aznavoleh, ____ Cal.App.4th ____, ____ Cal.Rptr.3d ____, 2012 D.A.R. 15249 (2nd Dist. 2012) November 06, 2012 (B231434)

Thursday, November 1, 2012

Size of medical marijuana collective doesn't bar defendant from introducing MMPA defense

Defendant's conviction for sale and possession of marijuana was reversed and remanded where the trial court erred in disallowing the defendant from offering his defense under the Medical Marijuana Program Act (MMPA), with respect to distribution to patients who associated for the purpose of collectively cultivating marijuana.  Contrary to the trial court's ruling, the large membership of defendant's collective, very few of whom participated in the actual cultivation process, did not as a matter of law prevent defendant from presenting an MMPA defense.

The case is People v. Jackson, Cal.App.4th, Oct 24, 2012 (D058988).

Thursday, August 2, 2012

San Francisco Mayor Lee’s Stop-and-Frisk Policy: A Legal & Statistical Review

Mayor Lee has remained firm in his initiative to implement a Stop-and-Frisk policy in San Francisco as a means of gun control, particularly in the wake of the movie theater mass shooting in Aurora, Colorado. The policy, which already exists in New York City, Philadelphia, and Chicago, has sparked major debates, as some point to it as a prime example of racial profiling.

The Supreme Court of the United States held in Terry v. Ohio that police may briefly detain a person if they have reasonable suspicion that the person is, or is about to be engaged in criminal activity. When police additionally have reasonable suspicion that the person may be armed, they may "frisk" them for weapons; this includes a limited search of the suspect’s outer garments for weapons, but not for contraband, like drugs. This is known as a “stop and frisk.” If the officer uncovers further evidence during the frisk, the stop may lead to an arrest, but if no further evidence is found, the person is released. A stop and frisk is initiated on “reasonable suspicion,” a lower standard than the 4th Amendment’s “probable cause,” needed for a search and seizure.

Reasonable suspicion is evaluated using the "reasonable person" standard which depends upon the totality of circumstances, and can result from a combination of the particular facts present in a given situation. The standard is lower than probable cause, but more than a hunch; it requires objective, individualized suspicion, but it cannot be based on racial stereotyping. The police must have an independent basis for fearing the person is armed before they frisk them, as reasonable suspicion must be based on “specific and articulable facts,” taken together with rational inferences from those facts.

There may be no difference between Mayor Lee’s stop and frisk policy (fine details of which have not yet been published) and existing law; it appears to just be a change in policy directed by the Mayor to encourage police officers to stop and frisk suspects more often in the hopes it will help end gun violence. In San Francisco, police already engage in widespread stop and frisks, but this policy change will give them more leeway and encouragement to stop whomever they choose.

Most stops don’t lead to arrests, and the majority of stop and frisks are never subjected to judicial review. Since the police conduct is not subject to review, an obvious concern of critics is that there may be potential for police officers to cut corners.

The policy has sparked large debates, with protestors referring to it as the new Jim Crow laws. In New York, stop and frisk policies have reportedly risen to unprecedented levels, with African Americans and Latinos bearing most of the burden. There, stop and frisks result in gun discovery in only about one of every 666 stops. The NYPD points to the city’s exceptionally low crime rate and claims that its tactics have saved thousands of lives.

Yet the Center for Constitutional Rights (CCR) has filed a federal class action lawsuit, Floyd, et al. v. City of New York, et al., against the NYPD and the City of New York that challenges the NYPD’s practices of racial profiling and unconstitutional stop and frisks. In 2011, in New York City, 685,724 people were stopped, 84% of whom were African American and Latino residents, although they comprise only about 23% and 29% of New York City’s total population, respectively. In 2011, 88% of all stops did not result in an arrest or a summons being given, with contraband only found in 2% of all stops. The NYPD asserts that their stop and frisk policy keeps weapons off the street, but weapons were recovered in only 1% of all stops. The CCR on the other hand claims that these practices contribute to “mistrust, doubt and fear of police officers in communities of color that are already scarred by systematic racial profiling and major incidents of policy brutality.”

In San Francisco, the Black Young Democrats, ACLU and the Asian Law Caucus have all rallied against the policy, claiming it would violate the civil rights of San Franciscans. They claim that racial profiling is inevitably involved, and civil liberties will be denied. Mayor Lee denies that his policies would violate anyone’s constitutional rights or result in racial profiling, stating “I'm not into any program that will violate people's rights, but we've got to get to the guns.”

In the wake of the Colorado massacre, it’s difficult to judge whether Mayor Lee’s policy will get passed. Earlier this month, the Board of Supervisors passed a resolution urging the mayor to abandon any attempts to bring stop-and-frisk to San Francisco. While there are pros and cons to each side of the argument, it can be guaranteed that if any type of stop-and-frisk policy is enacted, much backlash and controversy will ensue.
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Campbell & Jayne LLP is a premier criminal defense firm which offers representation for individuals and small businesses at every stage of a criminal proceeding in state or federal court. The firm provides representation in virtually every area of criminal law, including white collar crime, felonies and misdemeanors, drug cases, and driving-related offenses. Campbell & Jayne LLP practices criminal defense in Federal Courts and in all Bay Area counties, including San Francisco, Alameda, Contra Costa, San Mateo, Santa Clara, Santa Cruz, Marin, Sonoma, Napa, and Solano counties.


For more information, see our new, updated website: http://www.bayarea-criminaldefense.com/


The Criminal Law Update is a periodic newsletter published by Campbell & Jayne LLP to provide general information and updates on the legal field. It is not intended to provide legal advice or opinion on any set of specific circumstances. Please consult counsel regarding any legal questions you may have concerning your individual situation. For additional information, please contact Campbell & Jayne LLP.








Thursday, July 26, 2012

Is possession with intent to distribute a “substantial step” towards committing a crime, thereby establishing federal venue?

On July 16, 2012, the U.S. 9th Circuit Court of Appeals ruled in United States v. Pariseau that possession with intent to distribute qualifies as a substantial step towards the commission of a crime; therefore, it established federal venue in the district where the crime began.


Two cases from other circuits have addressed this issue directly: United States v. Muhammad, 502 F.3d 646 (7th Cir. 2007) and United States v. Zidell, 323 F.3d 412 (6th Cir. 2003). Both cases affirmed venue on the principle that possession with intent to distribute is a continuing crime, and venue is proper wherever the crime began, continued or was completed. 18 U.S.C. § 3237(a).

It was held in United States v. Scott, 767 F.2d 1308, 1312 (9th Cir. 1985) that prior conduct may “be of such a nature that a reasonable observer, viewing it in context, could conclude beyond a reasonable doubt that it was undertaken in accordance with a design to violate the underlying statute.”

In United States v. Pariseau, the defendants’ girlfriend testified that he traveled from Alaska to Arizona to obtain the methamphetamine, and strapped the drugs to his legs with ACE bandages to avoid detection. Thus, it was held that the defendant’s prior conduct established sufficient substantial steps taken towards completing the offense.

The district court did not err in finding that venue was proper in Alaska because possession with intent to distribute methamphetamine is a continuing offense, and the defendant took substantial steps in Alaska in pursuit of that offense.

The judgment was affirmed.

United States v. Pariseau; 9th Cir; July 16, 2012; 10-30237



Tuesday, July 24, 2012

When do prior convictions become final for federal sentencing purposes?

On June 22, 2012, the U.S. 9th Circuit Court of Appeals ruled in United States v. Suarez that upon successfully completing California’s deferred entry of judgment program, that conviction cannot be subsequently used in a later federal sentencing for a California drug charge.

As held in People v. Mazurette, 14 P.3d 277, 230 (Cal.2001), if a defendant successfully completes a rehabilitation program, the charges against him would be dismissed. This is done because it has been found that most nonviolent drug offenders could benefit much more from treatment and education than from jail and a criminal record. California’s deferred entry of judgment (“DEJ”) allows such an alternative, as it permits eligible defendants to be diverted out of the criminal court and into a drug rehabilitation program.

Here, the 9th Circuit held in that when a plea never ripens into a final judgment or a legally cognizable sentence, there is no “final” prior conviction for purposes of later drug charge sentencing. Thus, to apply a mandatory minimum sentence based on a previous drug conviction that was resolved via DEJ would be in error.

Suarez's conviction was affirmed, sentence vacated and remanded for resentencing in conformity with this opinion.

United States v. Suarez, 9th Cir; June 22, 2012; 10-10393

Thursday, April 19, 2012

Does An Employee Who Uses a Work Computer for Non Business Purposes Commit a Federal Crime?

On April 10, 2012, an en banc panel of the Ninth Circuit Court of Appeals limited the application of the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030, to violations of restrictions in accessing information, i.e. “hacking,” rather than criminalizing violations of restrictions on use of information obtained through authorized access of a computer. 


In United States v. Nosal, an ex-employee of an executive recruiting firm was prosecuted on the theory that he persuaded current company employees of the company to access the company's proprietary database and provide him with information in violation of corporate computer-use policy, presumably to start a competing business. The government claimed that the violation of this private policy was a violation of the Computer Fraud and Abuse Act (CFAA). Following a decision issued in 2009 by the Ninth Circuit, the district court ruled that violations of corporate policy are not equivalent to violations of federal computer crime law.

The court held that: “We need not decide today whether Congress could base criminal liability on violations of a company or website’s computer use restrictions. Instead, we hold that the phrase ‘exceeds authorized access’ in the CFAA does not extend to violations of use restrictions. If Congress wants to incorporate misappropriation liability into the CFAA, it must speak more clearly.”

Wednesday, April 4, 2012

US Superme Court case update

The United States Supreme Court, led by Judge Scalia, ruled that a federal district court had the discretion to order that defendant's federal sentence run concurrently to the anticipated, but not yet imposed, state court sentence.  This was Sester v. United States, March 28, 2012; 10-7387.

For assistance with federal sentencing and related issues, contact the attorneys at Campbell & Jayne LLP at: http://www.bayarea-criminaldefense.com/

Monday, March 5, 2012

U.S. Supreme Court Rules Installation & Monitoring of GPS Tracking Device on Suspect’s Vehicle Constitutes a Search

The United States Supreme Court ruled unanimously this past January that attaching a GPS device to suspect’s car constitutes a search within the meaning of the Fourth Amendment, and thus requires a valid search warrant. The case, United States v. Jones, arose when the Washington D.C. police department installed a GPS device on Mr. Jones’ car as part of a drug trafficking investigation. They tracked his movements for almost a month, ultimately leading them to a stash house in Maryland containing nearly 100 kilos of cocaine and $1 million.

A trial court convicted Jones and sentenced him to life in prison. The U.S. Court of Appeals for the D.C. Circuit reversed, finding that the police’s gathering of evidence after its warrant for the GPS tracking device had expired violated the Fourth Amendment. Once before the Supreme Court, the justices faced the question of what constitutes reasonable privacy rights in the digital era.

The opinion by Justice Antonin Scalia – joined by Roberts, Kennedy, Thomas and Sotomayor, – began by noting that the U.S. government had to occupy private property for the purpose of obtaining the information. Justice Scalia wrote, “We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.” The majority concluded that installing the device, and using it to monitor the defendant together constituted a search by committing a trespass onto the defendant’s property right in his car for the purpose of gathering information.

The minority pushed for a more sweeping declaration that installing the GPS tracker not only trespassed on private property, but violated the suspect’s reasonable expectation of privacy by monitoring his movements for an extended period of time (a month). Justice Alito wrote in a concurring opinion that limiting Fourth Amendment protections to trespassing property as understood in the 18th Century is “unwise” and “highly artificial.” He added that, “it is almost impossible to think of late 19th century situations” analogous to placing a GPS tracker on the car. The majority held that it wasn’t necessary to go that far, because the act of putting the tracker on the car invaded the suspect’s property in the same way that a home search would.

Justice Sotomayor, while joining the Scalia opinion, wrote separately to set out various privacy issues that emerging technology presented, citing the fact that so many routine actions now are tracked by private websites. She suggested that the Court’s ruling that a person “has no reasonable expectation of privacy in information voluntarily disclosed to third parties” was “ill suited to the digital age.” “People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers," Sotomayor wrote. "I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, month, or year."

The Jones decision is viewed by many as a pivotal event in Fourth Amendment history. Privacy advocates said that despite the differences in the opinions, the court’s unanimity on the outcome sends a strong message. Although the ruling focused on police use of GPS devices to monitor a vehicle’s location, the justices opened the door to further debate about the use of technology to track people’s movements.

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Campbell & Jayne LLP is a boutique criminal defense firm which offers representation for individuals and small businesses at every stage of a criminal proceeding in state or federal court. The firm provides representation in virtually every area of criminal law, including white collar crime, felonies and misdemeanors, drug cases, and driving-related offenses. Campbell & Jayne LLP practices criminal defense in Federal Courts and in all Bay Area counties, including San Francisco, Alameda, Contra Costa, San Mateo, Santa Clara, Santa Cruz, Marin, Sonoma, Napa, and Solano counties.

For more information, see our new, updated website: http://www.bayarea-criminaldefense.com//

The Criminal Law Update is a periodic newsletter published by Campbell & Jayne LLP to provide general information and updates on the legal field. It is not intended to provide legal advice or opinion on any set of specific circumstances. Please consult counsel regarding any legal questions you may have concerning your individual situation. For additional information, please contact Campbell & Jayne LLP.