Prior to April 2013, any person driving in California, with or without a California driver’s license, impliedly consented to give a blood or breath sample if arrested from driving under the influence of alcohol.  If driving under the influence of drugs, including prescription drugs, then obviously only a blood sample could be taken.
 
If a person refused to provide either blood or breath, case law allowed the person to be restrained while a blood sample was forcibly drawn by a medical professional, usually a licensed phlebotomist.  This was permitted because the blood sample was considered “evanescent evidence.”  In other words, evidence that would or could disappear if not collected in a timely manner.  Other examples would be gunshot residue collection from the hands of a suspected short or fingernail scrapings from the hands of one suspected of sexual assault.
 
In a DUI arrest, because the human body dissipates or “burns off” the drugs or alcohol in its system fairly quickly, the sample was allowed to be collected without a search warrant because society (the People) had a right to that evidence before it disappeared.
 
That changed in 2013 when the U.S. Supreme Court handed down its decision in Missouri v. McNeely.  The court said that the natural dissipation of blood alcohol was not, in itself, a sufficient exigency to permit a warrantless intrusion, although they did say some other exception – other than exigency – might apply.
 
So, no more forcible blood draws unless the police first obtained a search warrant.  Because most DUI arrests are made at night, this involved a prosecutor waking up a judge so the police could obtained a search warrant telephonically.
 
Eleven states, including California, make it a crime to refuse to submit to a chemical test after a lawful DUI arrest.  Two of those states presented the issue to the Supreme Court under the theory that the chemical sample was part of the “search incident to arrest” exception the Fourth Amendment warrant requirement.
 
Earlier this year, the Supreme Court answered that question in Birchfield v. North Dakota.  The court ruled that police may now demand breath samples (but not blood) under threat of sanction for refusing) without a warrant incident to the arrest.
 
In California, the first sanction for refusing to provide a breath, or blood, sample is the suspension of your driver’s license by the Department of Motor Vehicles for a whole year.  Then, if the District Attorney charges you with impaired driving, they can tack on the “refusal” allegation, which, if you are convicted, can add additional consequences to the sentence on your criminal matter.
 
It also allows them to have the judge instruct the jury about consciousness of guilt and then use that against you during their closing argument.  It goes something like this:

Ladies and gentlemen of the jury, didn’t you find it helpful to know the defendant’s blood alcohol level was .0X points above the legal limit?  I think you will agree that was a crucial piece of evidence in the case.  Well, did you know the defendant didn’t want you to have that evidence?  That’s right, s/he refused to provide a blood or breath sample as required by law and the police were forced to wake up a judge in the middle of the night to get a search warrant so you could have the evidence here in court today.  When the judge reads you the jury instructions in a few minutes, s/he will explain that you may consider that refusal as consciousness of the defendant’s guilt!  In other words, s/he knew s/he was guilty and tried to hide the evidence.
 
I hope you see by now there is no upside to refusing to provide the legally required blood or breath sample.  So, you’re thinking, okay, I’ll go ahead and give them their stinking breath sample.
 
Well, not so fast.  I’m telling you now and the police are supposed to tell you if you get arrested, that if you choose to give the breath sample there won’t be anything left.  The machine will burn up the entire sample.  If you want a sample preserved for re-testing (something I, as your attorney, am always going to do!), then you have to give the blood sample.  A re-test will often show a discrepancy between my private lab and the police or sheriff’s lab.
 
If you see the wisdom of going ahead with the blood test, do not also give a breath test.  The police may try to trick you by saying, “Even though you gave the blood, aren’t you interested to know what your blood alcohol level is right now?  A breath test will give you instant results.”
 
Here’s the problem with that.  If your breath sample comes out as a .12% and the police blood test says .12%, the prosecutor is going to argue the two tests together are more accurate than my lab which may report a lower blood alcohol level.  So, instead of my lab versus their lab it becomes their two tests against our one.
 
In conclusion,

• while previously holding the exigency exception would not permit a warrantless, forced blood draw, the Supreme Court has ruled a breath test can be demanded as part of the search incident to arrest exception;

• there is no advantage and big disadvantages for refusing to give either breath or blood after a DUI arrest; and

• if you only provide a breath sample, there will be nothing left over for re-testing.

 
If you ever have any question about this or any of my other blog posts, feel free to send it to me at RebeccaOcainLaw.com or by me calling, 24 hours a say, at 619-431-1076.
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Let's say the police come into your house with a search warrant.  By now you know from my previous posts that the Fourth Amendment says a warrant must "particularly" describe the place to be searched and the items to be seized.  You read the warrant and, sure enough, it contains a very specific list of things the police are looking for.
 
As the police go about their business, you see one of them is videotaping your entire house.  You didn't see anything in the warrant about them being free to film the interior of your home.  Can they do that?
 
Yes.
 
As you can surmise from the TV news or YouTube videos, more and more police departments and sheriff's offices are outfitting their officers and deputies with body cameras.  Law enforcement dash cam videos have been around for years and are also becoming more commonplace  .
           
The law is pretty well-developed in this area, starting with the First Amendment.  As long as the police are where they are allowed to be, they can generally record anything they can see or hear.
           
Here's the flip side.  That same privilege applies to you!
 
As long as you are where you have a legal right to be and are not obstructing or delaying an officer in the performance of his/her duties, you can video and audio tape their activities.  It doesn't make any difference what your reasons may be -- giving it to the local TV station, posting it on YouTube, using it for a class presentation, or selling it to TMZ.
 
As much as they might not like it, the police are becoming use to being filmed by regular citizens.  They also have a job to do and have wide latitude in establishing a perimeter around crime scenes to protect evidence and allow detectives to work unhindered.  They also are the ones who get to decide, at least at that moment, what constitutes "obstructing and delaying" them.   If they tell you to back up, just do it.  If they have to tell you more than once, you might find yourself handcuffed in the back of a police car.
 
The police cannot decide that the images or sounds you recorded are now "evidence" and take your phone, camera, or tape recorder away from you.  That would be an unconstitutional seizure in violation of your Fourth Amendment rights.
 
New laws that went into effect on New Year's Day this year prohibit California law enforcement officers from detaining or arresting a person merely because s/he is taking a photograph or making an audio or video recording of an officer when s/he “is in a place he or she has a right to be.”
 
Use the Comment box if you have further questions about this subject or any of my previous blog posts.

 

In my prior blog entry about the No Trespassing signs not being a deterrent to police attempts to obtain consent to conduct a warrantless search, the appellate court used the terms "curtilage" and "open fields."  I promised to explain those legal concepts in more depth and here it is.
 
Have you ever seen someone get too close to another person and Person 2 tells Person 1, "Hey, you're in my space!"?
 
In our culture, we all protect a certain "privacy zone" around our bodies.  We'll make temporary exceptions for it on a crowded trolley, in a packed elevator, or during a mass exodus from a theater or stadium.  The rest of the time we pretty much feel the area out to about arm's length is our "bubble" as we move about that others shouldn't invade it without some reason or excuse.
 
Naturally, we allow loved ones or others we trust inside our space without any problem.  Think about it.  If you saw a man and woman you didn't know standing within each other's "space," you would assume, probably correctly, that they were in some kind of very familiar maybe even intimate relationship.
 
Well, we have that same kind of "privacy zone" around our residences.  It is even recognized by the law.  Legally, this area is called the curtilage.
 
You're might be wondering, how big is the curtilage?
 
Like a lot of things in the law, there is no "fixed" standard.  For one thing, it will depend on the type of residence.  Are we talking about a single, detached dwelling or an apartment or a condo in a complex?  Obviously, the former will have a larger curtilage than the latter.
 
Maybe that doesn't seem fair but the Fourth Amendment is all about reasonableness.  It is reasonable that people in a detached dwelling would have a greater expectation of privacy than someone living in a multi-dwelling structure.
 
One thing they both share, however, is an expectation of privacy outside their windows.  Anyone in the "Peeping Tom" zone outside a residence is certainly inside the curtilage.
 
Note, however, I said outside the windows.  Unless you have built a fenced-in security "cage" around your front porch, the front walkway and the front door step are not inside the curtilage.  Why is that?  Because most people allow the letter carrier, the UPS driver, Girl Scout cookie sellers, and Halloween trick-or-treaters to come up to the front door without challenge.
 
Does your front door have a window in it?  If you want to protect your privacy, you should cover that window, especially at night when inside lights are on.
 
Using the single, detached dwelling as an example, is their entire property within their curtilage.  Probably not.  Unless homeowners have taken steps to physically extend their curtilage, the normal curtilage probably extends only several feet around the house.  Any property beyond that would be considered "open fields."
           
In modern America where the majority of the populace lives in urban or suburban areas, a term like "open fields" automatically conjures up images of Old McDonald and corn fields, or maybe pheasant hunting and bird dogs.  Not so.  Under the law, open fields are simply a person's real estate, whether owned, leased, or rented, outside the curtilage about the residence.
 
What about a fence?  Would that extend someone's curtilage to the limits of their property?  It depends on the fence.  A short fence intended to keep a toddler or a dog in the yard but which any adult could step or leap over likely does not extend the curtilage to the fence line.   A tall, chain link fence may deter trespassers but any fence that passers-by can see through, including the weathered wood fence whose boards have shrunk or have developed some knot holes, hardly qualifies as making the yard "private."  Except for that zone around the house, the rest of it is just a fenced-in "open field."
           
No, the only "fence" for which an argument could be made that the curtilage extends to the fence line would be a solid brick or stone wall.
           
Why does the law even care about curtilage and open fields?  Because it impacts your Fourth Amendment right to be safe from unreasonable governmental (i.e., police) searches?
           
Even though the police may be permitted to trespass in your "open fields" regardless of any No Trespassing signs, they are not allowed to violate the curtilage to examine areas or things near your house, or to look in your windows in order to develop probable cause to get a search warrant.
 
Keep in mind, however, that you must also take reasonable measures to protect your privacy.  The police are allowed to use any ancient or modern devices to aid their vision and hearing.  So, if you are going to leave your curtains or blinds open at night with the lights on inside and the police are somewhere they are legally permitted to be using binoculars, telescopes, or night vision goggles, bad news for you.  Likewise, if you are going to talk about illegal activity in your backyard where the nosy neighbor can overhear you and call the police, foolish you.
           
If you have been arrested, whether or not the police violated the curtilage of your residence, you need an experienced attorney at the earliest opportunity.  Call me, criminal defense attorney Rebecca Ocain at 619-431-1076, and do not talk to the police until I get there!

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"No Trespassing” signs, by themselves, do not prevent officers from conducting a "knock and talk" (requesting consent to search) at a private residence.
 
Police received a tip that Ralph Carloss, a convicted felon, was in possession of a firearm and selling methamphetamine.  Officers went to the single-family home where Carloss was staying. A “No Trespassing” sign was on a wooden post beside the driveway, a “Private Property No Trespassing” sign was tacked to a tree in the side yard, and “Posted Private Property Hunting, Fishing, Trapping or Trespassing for Any Purpose Is Strictly Forbidden Violators Will Be Prosecuted” signs were on a pole in the front yard and on the front door.
 
When officers went to the home to speak with Carloss, they drove into the driveway, parked, went to the front door, and knocked for several minutes.   A woman came out the back door of the house, followed by Carloss shortly thereafter, and both spoke with the officers.  Carloss permitted the officers to follow him into the home, and through a room Carloss identified as his, so Carloss could ask the homeowner whether he consented to a search of the home.  Upon entry, officers saw drug paraphernalia and white powder residue that appeared to be methamphetamine.
 
After the homeowner denied consent to search the house, officers obtained a search warrant based on what they saw in Carloss’ room.  During execution of the warrant, officers found “multiple methamphetamine labs” and lab components, a loaded shotgun, two blasting caps, ammunition, and other drug paraphernalia.  Carloss' motion to suppress the drug evidence was denied and he entered a conditional plea for conspiring to possess pseudoephedrine.  He then appealed the suppression ruling to the U.S. Court of Appeals for the Tenth Circuit.
 
Among other issues in his appeal, Carloss claimed the officers violated his Fourth Amendment right to be free of unreasonable searches and seizures when they approached his home and knocked on the front door, despite the “No Trespassing” signs posted around the home. The drug evidence was therefore fruit of the poisonous tree, he argued.
 
Carloss argued to the appellate court that the “No Trespassing” signs around the home revoked the implied license the public had to approach the house and to knock on the front door.
 
Writing separately, two of the Tenth Circuit’s three-judge panel disagreed with Carloss.  While differing somewhat in their analysis, both judges concluded that the “No Trespassing” signs placed about Carloss’ home would not have conveyed to an objective officer that he could not go to the front door and knock, seeking consensual conversation with Carloss.
 
Both judges reasoned that the mere presence of a “No Trespassing” sign is insufficient to convey to an objective officer, or member of the public (for example, a mailman or a FedEx driver), that he cannot go to the front door and knock.
 
Moreover, the lead opinion said, the yard was an “open field” and not curtilage, and it is well-established that “No Trespassing” signs will not prevent an officer from entering privately owned “open fields.” (I will explain these two legal concepts in more depth in a future post but for our purposes today, "curtilage" is the "privacy zone" close to and around a residence; "open fields" are the rest of the property outside the curtilage.)  Further, the court said the sign on Carloss’ front door forbidding certain recreational activities was ambiguous and did not clearly revoke the implied license extended to members of the public to enter the home’s curtilage and to knock on the front door.  Rather, that sign could be read to have meant that that the listed recreational activities would not be allowed on the property generally.
 
Additionally, the concurring opinion noted the absence of any fence or other physical obstruction to remove ambiguity from the “No Trespassing” signs to make clear that visitors were not allowed, noting that “numerosity alone does not eliminate the ambiguity.”
 
Thus, a majority of the appellate court held the four “No Trespassing” signs around were insufficient to revoke the implied license for officers to attempt a “knock and talk” at Carloss’ residence.  For this and other reasons addressed in the lead opinion, the Tenth Circuit affirmed the district court’s decision to deny Carloss’ motion to suppress.
 
Although this is a federal case from another circuit, had this case been heard in a California state court, I believe a similar result would have occurred.
 
So, what is the "take away" from this decision?  One, No Trespassing signs don't prevent the police from coming and knocking on your door.  Two, if there are drugs and drug paraphernalia, or any other kind of contraband, in your house, don't be inviting the police inside!  Better yet, even if you "have nothing to hide," don't just give away your constitutional rights.  Politely tell the police that if they want to come in, they should go obtain a warrant.

If you are the victim of a crime, you want the person who hurt you or took your property to spend the maximum number of days in jail or prison, to pay every dollar of their fine, and to repay you ever penny of restitution you have coming.  Cops and the public pretty much feel the same way.
 
On the other hand, if you have violated some law and been charged with a crime, or multiple crimes, you may want your lawyer to negotiate some kind of plea agreement so you get sentenced to something less than the maximum penalty.
 
That's why you want me, an experienced criminal attorney, who has been involved in thousands of plea bargains on both sides of the equation, as a prosecutor and as a defense attorney.  I know how this game is played and if some kind of deal is possible, I'll do my best to get it for you.
           
There are two things you should know about plea bargaining.
 
1.  The majority of criminal cases are disposed of by way of a plea bargain.  That's right.  Of all the criminal cases initiated across America every year, only about 5% go to trial.  The same is true for civil cases where they call the agreement a "settlement."
 
Why is that?  Here are a few of the reasons.

• Depending on the prosecutorial agency, each one issues thousands to tens of thousands of cases every year.  It's impossible for them all to go to trial so they are pled out to something less than the original charge or less than the maximum penalty.

• Trials are expensive.  They tie up a judge and court staff, at least two lawyers, multiple witnesses, and 12 reluctant jurors for long or short periods of time when they could all be doing something more productive.  Still, you are entitled to a jury trial and if you insist on one or I advise you a trial is your best chance of gaining your freedom, then a jury trial you will have.

• A bird in the hand is worth two in the bush.  In other words, the prosecutor often prefers a guaranteed plea of guilty to something less the original charge, rather than risking a jury finding you not guilty which means they end of with nothing.

           

• Something may have happened that has affected the strength of the prosecution's case and they want to dump the problem with a quick plea bargain.

 
2.  The prosecutor has the total power to decide if you are going to be charged with a crime, what crime or crimes it will be, and how many counts of each offense there are.  For the same reason, the prosecutor gets to decide if there will even be a plea bargain offered and how low they are willing to negotiate to get a guilty plea.
 
This is another reason you want someone like me to represent you, a defense attorney with 14 years of experience as a prosecutor who knows how the prosecution thinks and how far they might be willing to be pushed in a plea negotiation.
 
Different Kinds of Plea Bargaining
 
There are three kinds of plea bargaining.  Count bargaining, charge bargaining, and sentence bargaining.  Here's how they differ.
 
Count bargaining, is often used in cases where the different counts are the same type of crime or have the same basic sentencing range.  For example, let's say someone got drunk and went on a vandalism rampage, busting the windshields of ten cars.  Each car counts as an individual crime, or a separate "count."  A typical plea bargain would be to plead "one for one."  In other words, for every count to which the defendant pled guilty, another count would be dismissed.  Of course, the defendant would still have to make restitution to all ten victims.  And even though the defendant's record would only show a conviction on five counts, the judge would be able to consider the dismissed counts during sentencing.
 
What if the number of crimes is an odd number, for example, five counts of commercial burglary?  A prosecutor would likely offer "plead to three, dismiss two."  Understand, the prosecution is not going to give away more than they get and, as I said above, they are in the driver's seat on plea bargaining.
           
In charge bargaining, it is the charges themselves that are negotiated rather than the number of counts.  In this type of deal, the prosecutor is going to rely more heavily on other factors, e.g. defendant's record or lack of criminal convictions, age of the victim, if a weapon was used, the criminal sophistication involved, to name a few.
 
Let's say the original charge was a strong arm robbery but the prosecutor has discovered weaknesses in the case.  Maybe the victim has become uncooperative.  The prosecutor might offer a plea to a lesser included offense of grand theft.
 
For a variety of reasons, there might be an offer to plead to a "lesser related offense."  Other examples: plead to misdemeanor "joyriding" instead of felonious "taking and using a car without permission;" or non-priorable reckless driving with alcohol instead of the heavy penalties attached to driving under the influence of alcohol.
 
Unlike the other two, sentence bargaining is the one controlled by the court.  Oh sure, the prosecutor and I will sit down and hash out something agreeable to both sides and the judge usually goes along with it, figuring if both parties like it why should he or she stand in the way.  But it is known to happen where the judge says, "Considering the severity of the crime, I don't find that an acceptable bargain.  Come up with something better (i.e. worse for the defendant) or set it for trial."
 
Lucky for the defense bar, if not necessarily for the general public, laws passed by initiative or by the legislature have greatly diminished the prosecutor's ability to use sentence bargaining.  And a proposed ballot initiative could drastically change additional sentencing laws to the benefit of convicted felons.  Needless to say, prosecutors are not happy about it.
 
So now you understand, the prosecutor will make an offer for plea bargain.  The defense attorney sometimes only gets once chance at a counter-offer.  It depends on the prosecutor handling the negotiation.  Some are more open to give-and-take than others.
 
As much as you may want to be there, defendants aren't present for the bargaining.  That is why you need someone looking out for your interests.  Why do you think major league athletes have sports agents, and people buying or selling a house use real estate agents?  They want a representative who is familiar with the industry and how far the other side can be pushed.
 
Again, that's why you need an experienced criminal defense attorney and former prosecutor like me working to get you the best deal.  Call me, Attorney Rebecca Ocain, at 619-431-1076.

 
Back in January, I posted an entry about the way the police will try to get your to waive (give up) your Fourth Amendment rights and try to get you to agree to let them search your vehicle.  They try to do the same thing with your residence, but it has its own special twists.
 
The English common law principle that "a man's home is his castle," is something we inherited and it is engrained in American law.  The Fourth Amendment protects our "persons, houses, papers, and effects" from unreasonable, that is, warrantless, searches.
 
The police are aware of this higher expectation of privacy for homes as compared to cars, backpacks, and other "effects."  They also know they need to show a judge they have probable cause (a "more likely than not" standard) that what they want to seize in the place they want to search is actually in that place.
 
Sometimes police will have reasonable suspicion (a level less than probable cause) that there is evidence or contraband in a house but just can't come up with the necessary probable cause.  Sometimes, they don't even have reasonable suspicion, but they get a tip from an anonymous source so there is no way to confirm the tip's reliability.  Or a crook who gets arrested on a case and is looking for a break tells the police that contraband is located in a certain house.  Arrestees are presumed unreliable, so the information is not enough for a warrant.
 
Cops have enough to do without wasting time going to miscellaneous houses and trying to get permission to search them.  Can you picture this?  "Good morning, ma'am.  Sorry to interrupt 'The Price Is Right,' but things were a little slow down at the station today so we were wondering if we could come into your house and do a random search for possible contraband?"  Neither can I.
           
However, depending on their training and experience and any other investigation they are able to do, the police might use the information from the anonymous tipster or the arrested crook as a springboard to attempt what they call a "knock and talk," which is just cop jargon for trying to get a resident's consent to let them come in and go through your belongings.
 
Just like the request to search your car, the approach will be nice and friendly with some guilt trip phrases like "you want to cooperate, don't you?" or "if you don't have anything to hide, what's the problem?"
 
Warn Your Teenagers
 
If you have a child old enough to drive without an adult present, that child, as the operator of the vehicle, can grant the police permission t search it.  Well, guess what?  That same teenager can allow the police to come in and search your home if you aren't there!
 
Case law prevents a minor from allowing access to the parents' sleeping area, but the home-alone teenager has the authority to give the police free rein over their bedroom and all the "common areas" of the residence, meaning those areas that family members and houseguests have access to 24-hours a day: the living room, the family room, the kitchen, the main bathroom, the hallways, the laundry area, and the garage, especially if it is attached to the house.
           
The same authority over the common areas would include any live-in employees (maid, au pair, etc.) and any adult houseguests, especially if they have stayed overnight the previous night or intend to that night.  Again, these persons could not grant permission to search the homeowners' bedroom.
 
Could a minor less than driving age grant the police permission to search in the absence of any adults?  Possibly.  In one child abuse case, permission by twelve-year-old was upheld by the appellate court.  Any such search resulting in evidence being seized and charges being filed would certainly have to be hashed out in a suppression motion.
 
Let's say you decide that standing up for your constitutional rights isn't all that important to you and you let the police in.  In that case, it is best to know some other options. 
           
1.  You can limit the scope of their search.  Maybe you have an elderly parent or a sick child in an upstairs bedroom whom you don't want to be disturbed.  You can tell the police you will permit a search of the downstairs but you do not want them searching the second floor.  Say it loud so everyone within hearing distance can hear you.
           
If the police should go up there anyway ("We thought we heard someone calling for help" or some other excuse), remind them loudly that you limited them to the first floor.  Should they discover something of evidentiary value to use against you, at least I can make an argument to have it suppressed and not admitted.
           
2. You can limit the length of the search.  Once again, you are bending over backwards to show the police "how cooperative" you can be (trust me, if they arrest you, all that cooperation won't help you one bit), but you also don't want to be late for picking up the kids, a doctor's appointment, or any other time sensitive event.  You should tell the police, again loudly so everyone nearby can hear it, that you have an appointment you need to leave for in x minutes so they can only search for x minutes.  Anything they might find if they go beyond that time limit will not be admissible against you.  Keep in mind, though, that if they do find evidence or contraband and arrest you, don't plan on making that appointment and call someone else to pick up your kids.
           
We all rely on the police to help in an emergency and want to trust them the rest of the time.  Trust me, though, that if they come to your house and "knock," ring the doorbell, or shout through a screen door, and want to "talk" about obtaining consent to come in and search your home, they are not there as your friend.  If they think there is something illegal in your house, or just aren't sure, tell them to go get a search warrant.  It's you right!
           
If you have any questions about this topic or any of the those covered in previous blog entries, post your question in the Comment box or email me, criminal defense attorney Rebecca Ocain, at rocain@rebeccaocainlaw.com.

 
The Ninth Circuit recently held that a gun-dealing drug dealer's Fourth Amendment protection against unreasonable searches and seizures was violated when probation officers conducted suspicionless searches of his cell phone.
 
Lara was on probation for Possession of Methamphetamine and Possession of Methamphetamine With the Intent to Sell.  He was granted probation and agreed to waive his Fourth Amendment rights, which required him to submit his “person and property, including any residence, premises, container or vehicle” to search and seizure at any time by any law enforcement officer “with or without a warrant, probable cause, or reasonable suspicion.”
 
Lara initialed the section that he understood he was waiving his right to be free from unreasonable search and seizure.
 
After Lara failed to report for a probation meeting, his probation officer (PO) and another PO went to Lara's house to conduct a probation search.  Lara's PO ordered Lara to sit on the couch. At that time, the other officer saw a cell phone on a table next to the couch and examined it.  The PO admitted he did not ask Lara’s permission to search the cell phone, but that Lara did not object when the officer handled it.
 
The officer reviewed the most recent text messages on Lara’s cell phone and discovered messages containing three photographs of a semi-automatic handgun lying on a bed.  The content of the messages themselves involved an exchange between an “Al” and Lara.  Al asked Lara if the gun was “clean” and received a confirmation that it was.  Al followed up by asking Lara, “What is the lowest you will take for it?”
 
The officers searched Lara’s house and car for the gun.  They did not find the gun, but did discover a folding knife, a violation of his probation and arrested Lara.
 
Forensic computer experts found GPS data embedded in the photographs of the gun, determining the address where the photographs were taken: Lara’s mother’s home.  The officers went to Lara’s mother’s home and found the gun in the closet of the bedroom matching the bedding in the photographs.
 
Lara was charged federally as a felon in possession of a firearm and ammunition.  Lara moved to suppress the gun and ammunition, contending that it was obtained as a result of illegal searches of his cell phone by the PO and the lab. After the district court denied the motion, Lara appealed the decision to the Ninth Circuit Court of Appeals.
 
The Court of Appeals first considered the government’s contention that Lara waived his Fourth Amendment rights. The court stated the law has long been that a probationer’s acceptance of a search term in a probation agreement does not by itself render unlawful an otherwise unconstitutional search of a probationer’s person or property.  However, the issue was not solely whether Lara accepted the cell phone searches as a condition of his probation, but whether the search he accepted was reasonable.  Lara’s acceptance of the terms of his probation, including suspicionless searches of his person and property, was just one factor bearing on the reasonableness of the search.
 
The Ninth Circuit proceeded to address the reasonableness of the search in question. It rejected the government’s suggestion that its 2013 decision in United States v. King fully resolved the issue.  There, the court only held that a suspicionless search, conducted pursuant to a Fourth Amendment waiver of a violent felon’s probation agreement did not violate his constitutional rights.  That decision did not address lower level offenders who have waived their Fourth Amendment rights, which the court would now consider.  The Ninth Circuit said it needed to balance the degree to which the search intruded upon Lara’s privacy with the degree to which the search was needed for the promotion of legitimate governmental interests.
 
The court of appeals held that Lara had a privacy interest in his cell phone and the data it contained.  While his privacy interest was somewhat diminished in light of his status as a probationer, it was still significant in light of the broad amount of data contained in, and accessible through, his cell phone.  The court placed emphasis on the Supreme Court’s decision in United States v. Riley, which described the importance of cell phone privacy.  Quoting Riley, “A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form – unless the phone is.”
 
Considering the government’s interest, the court of appeals stated that the commonness of cell phones cut against the government’s purported heightened interest in conducting warrantless searches of cell phones of probationers with controlled substances convictions.  It was true that combating recidivism and helping probationers integrate back into the community were important government interests, but in this case Lara merely missed one meeting with his PO and there was no reason to suspect any crime to prompt a search. 
           
The 9th Circuit held that under the circumstances of this case, the searches of Lara’s cell phone were unreasonable and the evidence was the fruit of that unlawful search.  Thus, the court reversed the district court’s denial of Lara’s motion to suppress.
 
It should be noted the 9th Circuit has long disliked California's use of Fourth Amendment waivers as a tool of enforcing probation conditions and has previously been reversed by the US Supreme Court for that prejudice.  Had this case been filed in state court, a different result may have occurred.

If you have visited my website (and hopefully you have saved it to your "Favorites"), you have seen that I do not charge anything for our first meeting.
 
Abraham Lincoln, great country lawyer that he was, is reported to have said, "A lawyer's stock in trade is his time."  Lawyers don't have shelves full of merchandise for you to examine and buy, but we have time, which includes the years we spent going to law school, taking and passing the bar exam, and working as a practicing attorney.  Our time includes our knowledge and wisdom.
 
The point is, our first meeting may be "free" to you but it is not free to me.  Nevertheless, it is an investment I'm willing to make because it serves several purposes.
 
First, it allows you to meet me, get a sense of my knowledge and skills, and decide if you think I'm the best defense attorney to represent you in criminal case.
 
On the flip side, it allows me to get a feel for you.   I don’t sign every potential client who walks in the door.  Of course, I want to know about the facts of your case, and that will have a bearing on my decision, but maybe we just don’t like each other.  Maybe one or both of us believes there's a personality conflict.
 
Maybe you want a lawyer with silver-gray hair because that's what you saw on TV.  Maybe I sense a lack of seriousness about you because you showed up 30 minutes late for our appointment without having the courtesy to call and tell me you'd be late.  (If you can't get to a simple appointment on time, how can I trust you to be punctual for court appearances?  You may get a tongue-lashing from the judge but it's my professional credibility that takes the hit. )
 
Maybe one of us is just picking up a bad vibe from the other person and realizes this is not an arrangement that is going to work.  Let's be honest with one another and admit it up front.
 
The second purpose of the initial meeting is for you to tell me why you were arrested and let me hear your side of the story.
 
If you decide to hire me, I will get a copy of the police reports and find out how they documented the incident.  Once you been have arraigned and allowed to enter a "not guilty" plea, I will also obtain a copy of the prosecution's charging documents to see what crimes they think they can prove beyond a reasonable doubt.
 
Which brings us to a third reason for our first meeting.  Your case may be so complicated that I may suggest you hire a lawyer who specializes in that kind of criminal defense.  No hard feelings, but if I don't think I can give you the quality of defense you deserve, I'm going to tell you.  Very likely I will also be able to recommend a specialist in that area of the law. 
 
The final reason for the initial consultation is for me to tell you what my representation is going to cost you.  If you have already shopped around, either in person or by phone, you will discover my rates are quite reasonable and also competitive.
If I am the first lawyer you have visited and you want chance to check out some other attorneys, go for it.  When you finally hire me, I want you to feel comfortable about it.  However, when you visit those other lawyers, here some things to find out.

• How many years have they actually been practicing law, not just how long they've had a license?
• How many criminal jury trials have they tried to an actual verdict?
• How long ago was their last criminal jury trial?
• How many years of experience do they have as a prosecutor before going into defense work?  (Knowing from the inside how the opposition works can be very important.)

 
While you're doing your comparison shopping, remember the advice your mother gave you years ago:  You get what you pay for.  Then ask yourself, what is my freedom worth?
 
You may decide that any retained attorney is more than you want to spend. There's always the Public Defenders Office.  I'm friends with a number of Deputy Public Defenders and many of them are outstanding trial attorneys.  Maybe you'll luck out and get one of them and not the kid just out of law school.
 
In summary, just because our initial appointment is not going to cost you a penny, it is still a serious professional consultation.
 
When you come, bring any paperwork you may have already received from the court.
 
When we talk, be totally candid with me.  If there's dirt, tell me.  Don't make me waste time pulling it out of you or finding it out later.  Don't be embarrassed.  Believe me, I have likely heard a lot worse.
 
Even though you are not "officially" my client yet, everything you say is protected by the attorney-client privilege.  I cannot ethically divulge (nor will I!)  anything you say to me, not even to another lawyer should you choose to hire someone else.
 
Save yourself time and bring your checkbook or credit card with you.  Guaranteed, there will no charge for this first meeting, but if you decide to retain me, Criminal Defense Attorney Rebecca Ocain, the quicker you put some money down for your defense, the quicker I can start working on trying to keep you out of jail or prison.
 
You can schedule your first and FREE consultation by calling 619-431-1076 on any day and at any hour.

 
We often hear about “right to privacy” and people’s demand for it.  One thing people fail to understand, however, is the difference between their right to be protected from governmental intrusion and any privacy rights they may enjoy in the private sector.
 
For example, there might be laws that protect you in the privacy of the bathroom where you work, but you seldom have a right to privacy anywhere else at your workplace.  Your boss can probably search your desk, your company locker, your company computer, and possibly your company-provided cell phone to make sure you are not using any of this items or areas improperly.
 
The same would likely be true of any state or private college.  Sure, the police might need a warrant to search your dorm room, but check the fine print in your housing agreement.  I’ll bet with adequate notice, the college can inspect your room without giving you a reason, just like any landlord can inspect a rental property, if advance notice is given.
 
The Fourth Amendment does cover government schools but for reasons of their safety, minors don’t have the same rights as adults.  If a municipality has a curfew for minors, kids who look under eighteen can be stopped (constitutionally “seized”) to determine their age and why they are out after curfew.
 
Similarly, public schools don’t want drugs or weapons on their campuses and they don’t even need probable cause to search for such items.  Any hint of those items gives rise to the necessary “reasonable suspicion” to search an individual or every desk, locker, and backpack in the school.
 
So, for adults, where are the boundaries for privacy protection under the Constitution?
 
Let’s go back and look at some of the amendment’s actual language.“The right of the people to be secure…against unreasonable searches…”  In other words, you are protected by the Fourth Amendment if your expectation of privacy is reasonable.
 
You are probably asking, who determines if my expectation is “reasonable?”
 
Some types of warrantless searches have already been determined to be reasonable by the Supreme Court.  For example, the ability of the police to “frisk” you if they have reasonable suspicion you are armed and presently dangerous, or the authority to search you incident to arrest, or the power to enter your house if they believe someone inside may be injured, to name a just few.
 
All other determinations will be made by a trial judge using the “reasonable person” test.  In other words, would current society consider your expectation reasonable using contemporary community standards.  Obviously this test is subjective in that it can change over time and also from place to place.
 
Let’s look at some examples of privacy expectations.
You have a very limited expectation of privacy in your vehicle.  Why?  Because you drive it around in public in view of the entire world.  You park it in public where anyone can walk up and look in the windows, at the least the three front windows on which “limousine tint” is prohibited.
 
You have no expectation of privacy in your handwriting.  You sign your name and fill out applications all the time.  Did you sign your name when you endorsed your last paycheck?
What about that drawing you entered after a recent sporting event trying to win a car that was really a come-on for a time share in Las Vegas?
 
Ditto for your fingerprints that you leave unknowingly all over town.  The police can just follow you around and lift your prints off the last surface you touched.
 
Any expectation of privacy in your face would likewise be unreasonable.  You show your mug in public all day long.  If anyone could surreptitiously snap a photo of your face, so can the police.
 
Your voice?  Not there, either.
 
What about your home?  Nope.  What are you going to do?  Keep in draped in a termite tent all the time?  Who does that?
 
Not to mention police helicopters flying at the legal height or someone with a surveillance drone, the police have other tools, too.
 
There was a recent federal case where the police has a camera on a utility pole across the street from a former felon suspected of gun-dealing.  After being convicted, the defendant appealed, claiming the video footage used to convict him was obtained in violation of his Fourth Amendment rights. The Sixth Circuit disagreed.  They said the defendant had no reasonable expectation of privacy in the activity captured by the pole camera because the camera had the same view enjoyed by passersby. In other words, the footage only captured what the suspect made public to any person traveling on the public roads surrounding the farm.
 
If you have been arrested, I will be happy to discuss with you all the possible defenses to your case.  With a valid suppression motion, I may be able to have the evidence excluded before we ever get close to trial.  Call me, criminal defense attorney Rebecca Ocain, any time of the day or night, 619-431-1076 and let me go to work for you.
            

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Okay, you’ve been stopped by the police.  Whether they tell you or not, you get the sense they are going to conduct a weapons frisk. Or patdown.
 
Try to pay attention how the officer does the patdown.
 
A US Supreme Court decision dictates the patdown must be either an actual "pat" search in which the officer's flat hand is held momentarily against a part of your body, lifted up and replaced a few inches to one side or the other, over and over again.  Or, in the alternative (or in combination with), the officer's flat hand is held against your body and dragged over each body part.
 
Here's why I want you to try to be alert.  During a patdown, an officer is not allowed to grab a hold of your pockets trying to get a three-dimensional feel of what is in the pocket.  If that happens and it leads to the officer finding some kind of contraband, I need to know.
 
However, if your pockets are full of junk, e.g. keys, coins, a hankie, old receipts, etc., there is no way any officer can tell whether there's a weapon in there and he or she can order you to empty your pockets on the hood of his or her car or elsewhere.
 
On the other hand, if the officer is conducting the patdown and feels anything he or she recognizes as a weapon, the officer can reach in to get it.  Needless to say, if you told the officer you were not armed and that officer finds a gun or a knife, he or she is not going to be happy and things may get a little rougher for you.  (Remember a cop's number one rule!)
 
Obviously, cops don't like suspects with handguns but they have a particular aversion to edged or pointed weapons, for example, knives, daggers, pins, knitting needles, screwdrivers, and even ballpoint pens (yes, really – they make excellent stabbing instruments).
 
What if the officer feels something that he or she doesn’t think is a weapon but, based on his or her training an experience, believes is contraband or evidence?
 
For example, patrol officers are notified to be on the lookout for a suspect in a blue jacket who just committed a strong arm robbery of a woman’s gold chain necklaces.  You happen to be running down the street in relative proximity to the crime and happen to be wearing a blue windbreaker.  The officer detains you.  This officer knows from his or her training and experience that robbers are often armed so has reasonable suspicion to pat you down.  He or she feels something hard and loose in your pocket that sounds like metal-on-metal when touching it.  Can that officer reach in to get it, or order you to take it out? 
 
Yes.  Based on the Plain Feel exception to the Fourth Amendment, a corollary of the Plain View exception, your detention and patdown were justified and the officer had probable cause to think the item in your pocket was the stolen necklaces.  When he or she discovers it is just your dog’s choke chain and you were chasing after your dog that ran out of the house, that officer no longer has a reason to detain you and must send you on your way.  Maybe with an apology.
 
(I will cover the Plain View, Plain Feel, and Plain Smell exceptions to the Fourth Amendment in more depth in a future blog post.)
 
Patdown of Female Suspects
 
The question often comes up, can a male officer patdown a female suspect he has reasonable suspicion to believe is armed and dangerous?
 
Some departments may have policy prohibiting such patdowns and most often, just to avoid the possibility, and hassle, of a female crook accusing him of some kind of sexual assault, male officers will ask the dispatcher to send a female officer to his location to conduct the patdown. 
 
But remember the cop’s number one rule?  Go home alive.  So, trust me, if no female officer is available, the officer is going to pat you down for weapons.  And if you are going to be arrested anyway, a much more intrusive search for weapons is permitted.

​But admit it ladies, while we may not like the idea of being stopped in the first place, I think we can all tell the difference between a police officer conducting a legitimate weapons patdown and some perv in uniform using it as an excuse to cop a feel.  Even if you can’t get his name, be sure to report the incident to the police the same or next business day.
 
So, remember, an officer needs reasonable suspicion that you are about to commit a crime, are in the progress of committing a crime, or have just been committed one, to legally stop/detain you.  Once you are detained, the officer may also conduct a patdown for weapons if he has separate reasonable suspicion that you are armed and presently dangerous.
 
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In future editions, watch for:  Bail and Own Recognizance Release, How Long Can a Detention Last?, Types of Restraining Orders, and the Plain View Exception to the Fourth Amendment.
 
If you ever have any question about this or any of my other blog posts, or would like to see a post on an aspect of criminal law of particular interest to you, feel free to send it to me at RebeccaOcainLaw.com.