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Showing posts from September, 2013

Petitions for Factual Innocence (Penal Code section 851.8)

An arrest, even where there is no conviction, can have devastating effects on a person's life.  For non-citizens, it can result in random detentions at immigration outposts and obstacles to obtaining citizenship.  For those seeking employment, an arrest can be detected through background checks and can result in disqualification from certain jobs.  A Petition for Factual Innocence pursuant to California Penal Code section 851.8 can get one's arrest record sealed and destroyed.  The standard is very high, however, as the Petitioner must prove that he/she was factually innocent; in other words, that the arrest was improper and that the person is innocent.

At Jayne Law Group, we handle these petitions on a regular basis. In fact, just today, Julia Jayne won a Petition for Factual Innocence involving a Domestic Violence arrest.  The client's life changed today - no more stops at immigration, employment opportunities, and a chance to put that awful part of his life behind him.

Fourth Amendment update:Consent to search phone doesn't include allowing agents to answer phone

In United States v. Lopez-Cruz, the 9th Circuit held last week that a police officer may not answer a person's cell phone and impersonate that individual based on consent to look at a phone.  In the case, Lopez-Cruz was stopped by agents near the Mexico border and he had two cellphones in his center console.  Agents asked to look at the phones.  He consented to a search of the phones.  One of the cellphones rang, and the agent answered it and detected alien smuggling activity.  Lopez-Cruz moved to suppress the details of the conversation.  The 9th Circuit upheld the suppression decision by the district court, holding that the agents went too far in assuming the identity of Lopez-Cruz and having a conversation on his behalf.  Contrary to the government's argument, the Court held that his consent to search the phone did not include consent for the agents to answer his personal calls.

The case is: United States v. Lopez-Cruz, 2013 WL 4838908 (9th Cir. Sept. 12, 2013).

Warrantless DUI Arrest: No Violation of Fourth Amendment

In People v. Burton, the Appellate Division of the Ventura County Superior Court, held that a defendant's misdemeanor arrest for DUI which was not committed in the officer's presence did not violate the Fourth Amendment.

In the case, a witness observed Mr. Burton driving, and Mr. Burton admitted to driving, but the officer never saw him drive.  This issue arises in many DUI cases.  Mr. Burton challenged the stop in a motion to suppress.

The court held that Vehicle Code section 40300.5 does allow officers to make warrantless arrests in suspected drunk drivers.   Thus, his motion to suppress was denied, which was upheld by the Appellate Division.  The court explained that the officer had probable cause to arrest Mr. Burton.

The case is: People v Burton, (2013) __ Cal.App.4th Supp. __