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Showing posts from 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 lif…

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)

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).

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 releas…

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 de…

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 sentenci…

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 la…

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:

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, Kenn…