Posts Tagged ‘criminal defense lawyer’

The Ninth Circuit court of Appeals just upheld the admissibility of drug and firearm evidence in a case where law enforcement conducted an illegal search of a vehicle under the doctrine of inevitable discovery. In United States v. Ruckes, the Court followed the recent Supreme Court decision of Arizona v. Gant. Gant limits searches of automobiles, pursuant to the driver’s arrest, to situations where the driver is “unsecured and within reaching distance” of the interior of the car at the time of the search or where it is reasonable to expect evidence related to the crime underlying the arrest might be found in the vehicle. In Ruckes, the driver was arrested for driving without a license and secured in the back of a patrol vehicle. The Court found that since no evidence related to unlawful driving might be found in the car, and since Mr. Ruckes posed no danger of getting a weapon from the car at the time of the search, the search would otherwise be illegal under the Gant decision. However, the Court allowed evidence of cocaine base and possession of a gun to be used against Ruckes under the doctrine of inevitable discovery, a recognized exception to the Fourth Amendment’s warrant requirement. Inevitable discovery exists in Ruckes because an inventory search of the car would have revealed the evidence independent of the illegal conduct of the officer.

The lesson Ruckes teaches is that criminal defense lawyers will have to be alert for the application of inevitable discovery in vehicle search cases, especially as there are multiple provisions under California law allowing for the towing and impounding of cars upon the arrest of the driver. Still, criminal attorneys can try to establish that the impound search itself was a pretext to look for other evidence, as pretext law is still favorably applied in some limited situations, such as inventory searches. If it can be proved that the inventory search was conducted for a pretextual purpose, the search would be illegal so therefore could not be upheld under the inevitable discovery doctrine and the court would be obligated to rule for suppression of the evidence.

No CommentsTags: cars, cocaine base, criminal defense lawyer, driver, drugs, evidence, firearm, Fourth Amendment, gun, illegal search, impound search, inevitable discovery, inventory search, law enforcement, Ninth Circuit Court of Appeals, officer, pretext, pretextual purpose, Ruckes, suppression of the evidence, United States v. Gant, vehicle search, warrant requirement, weaponRead More

Drug investigators have been caught on tape playing Wii games while executing a search warrant at the home of Michael Difalco. Polk County Sheriff Grady Judd lamely defends his investigators by claiming that the Wii gamesmanship would not invalidate the search. Perhaps the Sheriff should read up on the law.     

The Fourth Amendment mandates that a proceeding to search with a warrant is a drastic one and must be carefully circumscribed so as to prevent unauthorized invasions of the “sanctity of a man’s home and privacies of life,” to quote a U.S Supreme Court case that has been good law for over 125 years. When law enforcement execute a search warrant in bad faith by conducting a general exploratory search, such a flagrant disregard for the scope of the warrant may therefore justify total suppression of all evidence seized as a deterrent to such police misconduct. An exploratory search is evidenced by law enforcement rummaging through game boxes and consoles, inserting computer and entertainment resources in game players and computers, and then using the equipment.  Playing video games belonging to a homeowner whose house is invaded while executing a warrant clearly involves conduct completely unrelated to the scope of the warrant. Such an investigation reveals police disregard of the Court’s order, the Constitution, and the rights of the people whose home is being raided.  Any astute criminal defense lawyer can tell you that Federal and state constitutional law provides ample precedent for invalidating such a search.

The video can be viewed at: http://www2.tbo.com/video/2009/sep/21/polk-county-drug-bust-54649/

No CommentsTags: constitutional law, court order, criminal defense lawyer, drug detectives, exploratory serach, Fourth Amendment, game player, games, Grady Judd, investigators, law enforcement, Michael Difalco, police misconduct, Polk County Sheriff, scope of warrant, search warrant, suppression of evidence, U.S. Supreme Court, United States Constitution, video games, WiiRead More

Now that the Los Angeles Coroner has ruled Michael Jackson’s death a homicide, what charges will be contemplated by the Office of the District Attorney? Two charges are possible. A second degree murder charge is possible if it can be proved that injecting Jackson with the powerful anesthetic propofol was done under circumstances where the drug giver was actually aware of the risk of death from use of the drug but consciously disregarded that risk and unlawfully gave him the drug anyway. Involuntary manslaughter is possible where the lawful administration of the drug was conducted in a negligent manner. The punishment for second degree murder is 15 years to life in prison. Involuntary manslaughter is punishable by up to 6 years in prison. Other than punishment, the big difference between the two charges obviously concerns the state-of-mind of the defendant, whether he or she understood but ignored the actual risks involved with giving a person the drug. Presumably, a doctor would have a subjective awareness of the risks but at the same time would take actions to safeguard the patient’s welfare. The charge one would therefore expect to see in this case – if any -will be involuntary manslaughter. The circumstances relevant to determining what charge to file will include: who administered the drug, how they acquired the drug, whether they were aware of the nature and type of drug being administered, the side effects of the drug, their knowledge of the effects, the actual dosage, whether the drug was administered in a prudent and careful manner, and other factors that may bear on their subjective awareness of the dangers presented by the drug and on the issue of negligent supervision of the patient. The criminal defense attorney for Jackson’s cardiologist doctor, Conrad Murray, says his client gave Jackson nothing that “should have” killed him. In other words, the lawyer argues that the issue is whether an involuntary manslaughter occurred or no crime at all.

No CommentsTags: anesthetic, cardiologist, charges, criminal attorney, criminal defense lawyer, death, district attorney, Dr. Conrad Murray, drug, homicide, involuntary manslaughter, Los Angeles Coroner, Michael Jackson, murder, negligent, office, patient, propofol, punishment, risks, second degree murder, side effects, state-of-mindRead More

Juvenile adjudications (convictions) can be used against adult criminal defendants under the “three strikes” law even though juvenile defendants have no right to a jury trial. The California Supreme Court, in People v Nguyen, held that prior juvenile adjudications that qualify as serious or violent felonies (“strikes”) can used to substantially increase an adult criminal defendant’s felony sentence, despite the fact that juveniles are not entitled to a trial by jury. 

In Nguyen, the Court emphasized that a defendant is still free to contest the fact of a prior conviction in the adult case, and, of course, a defendant can always challenge whether the juvenile adjudication actually qualifies as a serious or violent felony offense. Juvenile cases from outside of California are example of those types of cases often subject to successful challenge on the issue of whether they qualify as a strike offense.  But for now, criminal defense attorneys can no longer successfully raise 5th 6th and 14th Amendment objections against the use of the juvenile case as a strike solely due to the lack of a jury trial right in juvenile court. 

The California Supreme Court may get overruled on this issue by the U.S. Supreme Court.  Criminal defense lawyers therefore must continue to object to the use of juvenile offense as strikes in order to preserve this issue for appeal, especially for criminal defendants looking at a life sentence.

No CommentsTags: adult criminal convictions, attorney, California Supreme Court, criminal defendant, criminal defense, criminal defense lawyer, felony, jury trial, juvenile, juvenile adjudication, juvenile strike, People v. Nguyen, prior conviction, san diego criminal defense attorney, san diego criminal lawyer, sentence, three strikes, U.S. Supreme CourtRead More

In serious drug prosecutions, criminal defense lawyers cannot blindly trust police crime lab reports supposedly confirming that a substance is really cocaine, methamphetamine, marijuana, or heroin.  For that matter, anything coming out of the crime lab, such as blood toxicology results, DNA results and chain-of custody receipts should not be blindly trusted, either. The United States Supreme Court , in Melendez-Diaz v. Massachusetts, recently confirmed that crime  lab reports are so important that the analyst that prepared the report and did the testing must be called as a witness and subjected to cross examination by the defense attorney for the results to be used as evidence. The Court held that the Confrontation Clause of the Sixth Amendment of Constitution guarantees this right to defendants seeking to challenge crime lab results. The Court was concerned with the possibility that the report could have been faked or the test may not have been completed properly, and cross examination is the best vehicle for proving problems with the report.

Indeed, here in San Diego, I have recently come into possession of material indicating that a lab analyst who formerly produced reports that were regularly relied upon by San Diego prosecutors, committed perjury while working at another job by faking lab reports and results of confirmatory lab tests. (In crime labs, the presumptive test alone is not valid to conclude the actual presence of the controlled substance; a more reliable, confirmatory test is needed). The information showed that 1000’s of tests were faked.  These false lab reports of drug results are clearly relevant to proving that his work product – in fact anything he touched – cannot be trusted. In many drug cases, the alleged controlled substance may be available for retesting or the defense may conduct their own tests. The defense lawyer should also consider a complete review of the chain-of-custody for each and every lab item sought to be used by the prosecutor.  

The lesson a bad lab analyst imparts only reinforces what every good defense lawyers knows: don’t assume that any piece of evidence is infallible.

Contact us for help with your case, (619) 232-5122, or  info@attorneylombardo.com.

No CommentsTags: analyst, chain-of custody, cocaine, confirmatory lab tests, confirmatory test, Confrontation Clause of the Sixth Amendment, controlled substance, crime lab, criminal defense lawyer, criminal lawyer, cross examination, Domenic J. Lombardo, Drug Cases, drug prosecutions, false lab report, heroin, lab report, lab reports, law enforcement, marijuana, Melendez-Diaz v. Massachusetts, methamphetamine, perjury, presumptive test, san diego criminal defense attorney, san diego criminal lawyer, San Diego Police Crime lab, San Diego prosecutorsRead More

Criminal defense lawyers uniformly advise their clients to provide information to law enforcement only by and through an attorney, and for good reason. Many cases are prosecutable only because the defendant gave the police what they needed to make their case. In the past, attorneys did not have to worry about law enforcement sneaking behind their back to interrogate their criminal defendant clients, because the law protected the defendant from law enforcement using that information without the defendant’s express consent. But just in the past week, here in San Diego, I have been informed of two occasions where law enforcement has tried to question a client of mine without my prior knowledge or consent. In the past, making a run around the lawyer would have been clearly illegal conduct.

No longer. Law involving the Sixth Amendment right to counsel was recently changed by the United States Supreme Court’s decision in Montejo v. Louisiana. The Court in Montejo overruled the famous Supreme Court case Michigan v. Jackson, where the Court held police are prohibited from initiating an interrogation of a defendant once an attorney has been appointed. Prior to Montejo, in situations where counsel is appointed by the court, there was a presumption that any later waiver of the Sixth Amendment right to counsel is involuntary. As a result of this recent decision, in such cases where counsel is appointed for a defendant, the police are allowed to later interrogate the defendant when the defendant consents. The presumption that the statement was involuntary is no longer valid. This decision has a tremendous impact on criminal defendants as many defendants would assume that once counsel is appointed police interrogations are not permitted without counsel present. This decision exposes criminal defendants to less protection from interrogations by police after counsel is obtained.

Criminal defense attorneys must take a lesson from Montejo and advise law enforcement at the earliest stage in the proceedings that that the defendant expressly invokes his or her right to counsel and does not consent to any law enforcement contact without the attorney.

Indeed, the stakes for some defendants are high: Mr. Montejo himself was charged with first-degree murder, was convicted, and sentenced to death, thanks partly to his cooperation with the police. The court had appointed counsel but the police didn’t wait to question him. The police paid him a visit and obtained not only a letter of confession but took him on a field trip to locate the murder weapon. He later met his attorney for the first time. The Louisiana Supreme Court rejected his claim that his statements and gun  should have been suppressed under the rule of Michigan v. Jackson, which forbids police interrogation after the right to counsel has been invoked. It held that Jackson’ s protection is not triggered unless the defendant has actually requested a lawyer or otherwise asserted his Sixth Amendment right, and here Mr. Montejo apparently did not actually make the request or assertion. The Court overruled Jackson. And Montejo sits on death row.

Contact us to help with your case, (619) 232-5122, or  info@attorneylombardo.com.

No CommentsTags: confession, cooperation with police, criminal case, criminal defendant, criminal defense, criminal defense attorneys, criminal defense lawyer, criminal lawyer, death penalty, evidence, interrogate, interrogation, jackson, law enforcement, montejo, murder, right to counsel, right to remain silent, san diego criminal defense attorney, san diego lawyer, Sixth AmendmentRead More

Harvard professor Henry Louis Gates Jr., an African-American scholar, was recently arrested at his residence by Cambridge police officer Sergeant Crowley who was investigating a reported break-in. Professor Gates was arrested after he yelled at the investigating officer repeatedly from inside the residence. He showed identification and then reportedly resisted a demand to step onto the porch. He did eventually follow the officer outside, where Gates continued to upbraid the officer. “It was at that time that I informed Professor Gates that he was under arrest,” the officer wrote in the report.

Law enforcement offices throughout the country no doubt sympathize with the officer’s plight in this situation. The officer thought he was going to get a “thank you” and Professor Gates thought he was a suspect because of his race. So if this case occurred in San Diego County,  under California law, on these same facts, who was acting unlawfully: Professor Gates or the police officer? This is a routine type of question for criminal defense lawyers. San Diego criminal attorneys routinely defend cases that begin with an officer’s claim that the defendant was not cooperating while they lawfully preformed their duties.

While it is not unlawful to yell at a police officer in anger for a perceived wrong such as racial profiling, it is unlawful under California law, to willfully resist, delay, or obstruct a sworn law enforcement office, or an emergency medical technician, in the discharge or attempt to discharge any duty of his or her office or employment. This provision is commonly referred to as “resisting arrest.” Some law enforcement officers no doubt justify arrests under this provision for those that “flunk the attitude” test. Conviction of misdemeanor resisting arrest carries a fine not exceeding one thousand dollars ($1,000), or imprisonment in a county jail not to exceed one year.

Professor Gates may correctly argue, however, that for a resisting arrest conviction to be valid, a criminal defendant must have resisted, delayed, or obstructed a police officer in the lawful exercise of his duties. In California, the lawfulness of the officer’s conduct is an essential element of the offense of resisting, delaying, or obstructing a peace officer. If the officer was not performing his or her duties at the time of the arrest, the arrest is unlawful and the arrestee cannot be convicted under Penal Code section 148 (a)(1)(resisting arrest). Excessive force used by a police officer at the time of the arrest is not within the performance of the officer’s duty. An arrest made with excessive force is therefore unlawful. It is a public offense for a peace officer to use unreasonable and excessive force in effecting an arrest. Professor Gates would claim that after he showed his identification the officer’s duties ended and the excessive force began.

Arresting officer Crowley, on the other hand, may correctly argue that “the time of the arrest” does not include previous stages of law enforcement activities that might or might not lead to an arrest, such as conducting an investigation; it includes only the time during which the arrest is being effected. A conviction for resisting arrest under 148(a)(1) may be lawfully obtained only if the officers do not use excessive force in the course of making that arrest. A conviction based on conduct that occurred before the officers commence the process of arresting the defendant is not necessarily rendered invalid by the officers’ subsequent use of excessive force in making the arrest. For example, the officers do not act unlawfully when they perform investigative duties a defendant seeks to obstruct, but only afterwards when they employ excessive force in making the arrest. Similarly, excessive force used after a defendant has been arrested may properly be the subject of a Civil Rights lawsuit action notwithstanding the defendant’s conviction on a charge of resisting an arrest that was itself lawfully conducted. Sergeant Crowley would thus contend that the professor delayed and obstructed a lawful investigation by failing to cooperate before the arrest outside on the porch.

In any event, no matter who has the best legal argument, any criminal defense lawyer knows that a jury will apply a common sense approach to evaluating the conduct of both of the parties. Clearly, in this case, Professor Gates would not be convicted by a jury of his hypothetical California peers, whether he is absolutely right on the law or not.  And, as California juries are historically reluctant to side against cops, Officer Crowley would also likely escape any claim for money damges based upon a Civil Rights violation.

Contact us to help with your case, (619) 232-5122, or  info@attorneylombardo.com.

No CommentsTags: 148(a)(1), California law, criminal defense lawyer, delaying and officer, Domenic J. Lombardo, excessive force, law enforcement, misdemeanor resisting arrest, obstucting an officer, police officer, Professor Gates, san diego criminal defense attorney, san diego criminal lawyer, Sergeant Crawley, unlawful forceRead More

The most commonly prosecuted theft offenses involve the alleged taking of property from a retail merchant. Often the dollar value of the items is relatively small and the accused has no prior criminal record. Yet a conviction for petty theft is a serious matter. The law requires at least one day in jail, a “book and release” that can take as long as 20 hours to accomplish, a fine and possibly a theft counseling class for another 8 hours. The maximum sentence is up to 6 months in jail and a $2,000.00 fine. And the stigma from a petty theft conviction is difficult to overcome. Employers are understandably reluctant to hire a convicted thief.

San Diego Criminal defense attorneys often negotiate lesser offenses in these cases -especially to avoid jail – but the possible availability of a Civil Compromise is rarely explored.

In fact, in many other matters where a person is charged with a misdemeanor and the misdemeanor resulted in a victim incurring financial loss, the defendant’s charge may be dismissed through the process of civil compromise. Charges of minor vandalism, hit and run and theft are common examples of violations where a civil compromise may be appropriate.  While the result of a successful civil compromise is generally very advantageous for criminal defendants, as it results in a complete dismissal of the charges, it can be a tricky procedure to negotiate.

Civil compromises are subject to several statutory limitations.  For example, a civil compromise is not permissible when a misdemeanor is committed riotously or with the intent to commit a felony. Compromise is no longer available in domestic violence matters, violations of a court order, or crimes against elders or against children.  If none of the limitations apply, the alleged victim must then be “satisfied” for the injury they have suffered. This usually involves the payment of money, which can be problematic for an inexperienced attorney or a defendant without representation, especially considering that communicating the wrong message to a victim can be viewed as witness intimidation.  Once the alleged victim is “satisfied” for their loss, the Judge has the power to dismiss the case even over the objection of the Prosecutor. 

Regardless of these obstacles, in the 18 years that I have been practicing as a criminal defense attorney and negotiating civil compromises, it has been my experience that most people are willing to eventually agree to a civil compromise simply because it is the right thing to do in many theft-related situations. Retailers are more difficult: the store’s attorney must be convinced that the matter is atypical because of some special circumstances involving the alleged offense or the defendant.  A successful result requires an advocate who can explain why this option is in the best interest of the alleged victim, the court and the defendant, and if you are facing theft charges a competent attorney must explore this option.

We have obtained dismissal by compromise in many cases this year alone. Contact us to help with your case, (619) 232-5122, or  info@attorneylombardo.com.

No CommentsTags: book and release, case dismissed, civil compromise, clear a criminal record, criminal defense lawyer, criminal lawyer, defense lawyer, felony theft, misdemeanor theft, petty theft, san diego criminal defense attorney, san diego criminal lawyer, theft, theft crimes, vandalismRead More

The El Cajon Police Department yesterday published the names and photographs of men convicted of soliciting an act of prostitution and women convicted of agreeing to an act of prostitution. The men were snared through undercover officers posing as prostitutes. The woman were snared by undercover officers posing as Johns. Prostitution involves agreeing to pay for a sex act together with an act in furtherance of the agreement. The City of El Cajon decided that this crime is so serious that they will specially treat those convicted of prostitution to public shame and humiliation. Currently, El Cajon is the only City in San Diego County to publish the names and photographs of the convicted online, and I hope it will remain that way.  In my view the police should not be publishing this information. Internet publication of offender information goes well beyond what is otherwise in the public record. The public record of conviction does not contain a photograph of convicted person and is not available to anyone with a computer, nor does it need to be. Moreover, internet information may live forever in cached sites. A person is entitled to clear their record though rehabilitation and expungement without being permanently stigmatized. In San Diego, Criminal defense lawyers expunge prostitution convictions every day. If you believe that women are exploited by prostituting themselves, you would agree that they are further exploited and victimized by the stigma of  publishing their conviction and photo to the world. The majority of these women are teenagers. They deserve a second chance. No one can seriously believe that these women will be deterred from their conduct. The men – Johns – obviously have a lot to lose and arguably are deterred by publishing their names and photographs, but why are they also singled out for this public shaming and those convicted of other crimes ignored? They are obviously also entitled to rehabilitation and expugement without having to suffer beyond their punishment. For my part, this San Diego County criminal defense attorney will continue to fight these matters to jury trial, especially in El Cajon. I have had multiple prostitution juries report to me that they believe the time and money spent prosecuting these matter would be much better spent on other crimes.

No CommentsTags: criminal defense lawyer, el cajon, expungement, jury trial, prostitution, san diego criminal defense attorney, san diego lawyerRead More