San Francisco & Bay Area Criminal Defense Lawyers

The United States Supreme Court recently ruled that the natural dissipation of alcohol in blood alone does not constitute exigent circumstances per se to justify a warrantless blood draw in DUI cases where the suspect does not consent. Without a warrant or consent from the suspected drunk driver, a blood draw is a violation of the driver’s Fourth Amendment right to be secure from unreasonable searches and seizures. Prior to this decision, Missouri v. McNeely , police officers in California were generally not required to obtain a warrant in order to draw blood for measuring blood-alcohol content in drunk-driving cases. In this landmark case, Missouri v. McNeely , Tyler McNeely was pulled over on the grounds of suspicion of driving under the influence. After refusing twice to take a breathalyzer, he was taken to a hospital where the police ordered his blood drawn without his consent or a warrant. The officer had not made an attempt to obtain a warrant because he thought that Miss...

The United States Supreme Court recently decided a number of criminal cases of interest to citizens, criminal law practitioners, and constitutional law aficionados.  This roundup summarizes the following cases: Bailey v. United States (search & seizure); Evans v. Michigan (double jeopardy); Florida v. Harris (4 th Amendment); and Chaidez v. United States (Sixth Amendment). Bailey v. United States , 652 F.3 rd 197 (2013): this case had to do with the execution of a search warrant. The Court held that police executing a search warrant may only “seize” or detain individuals within the “immediate vicinity” of the premises subject to the search. The facts of the case were as follows: while police were preparing to execute a warrant to search an apartment for a handgun, detectives conducting surveillance outside saw two men – later identified as Bailey and his friend – leave the apartment area in a car. The detectives followed the car for about a mile before stopping it....

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...

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)

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).

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 rel...

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, th...