Thursday, April 14, 2011


In a major setback for Arizona and Gov. Jan Brewer, the 9th Circuit Court of Appeals recently concluded there was sufficient evidence to believe that provisions of SB 1070 are an unconstitutional infringement on the exclusive power of the federal government to regulate immigration. The Ninth Circuit upheld a lower court's block of much of Arizona's controversial SB 1070 law aimed at illegal immigration.
The judges agreed with U.S. District Court Judge Susan Bolton, who issued a preliminary injunction in July preventing sections of SB 1070 from being enforced. The three-judge panel ruled that the lower court "did not abuse its discretion" in blocking parts of the law from taking effect last year.
The court specifically rejected Arizona’s argument that it could make it a state crime for an undocumented worker to seek employment in Arizona. The judges noted that Congress, in approving federal regulations, chose not to make looking for work a criminal act.
The court found that the relevant provisions of S.B. 1070 facially conflict with Congressional intent. The decision rejected Arizona's contention that it could enact a state law against undocumented workers seeking employment, citing Congress' affirmative choice not to criminalize work as a method of discouraging unauthorized immigrant employment. By imposing mandatory obligations on state and local officers, the court held that Arizona interferes with the federal government's authority to implement its priorities and strategies in law enforcement, turning Arizona officers into state-directed DHS agents. The opinion stressed that the question was not, as Arizona claimed, whether state and local law enforcement officials can apply the statute in a constitutional way. The court found that there can be no constitutional application of a statute that, on its face, conflicts with Congressional intent and therefore is preempted by the Supremacy Clause.
The court also upheld Bolton's injunction against Arizona law enforcement arresting suspected illegal immigrants without warrants based on a belief that they could be subject to civil removal from the United States.
The decision, a victory for the Obama administration and immigration activists who filed suit to block the law, means the SB 1070 case will likely find its way to the Supreme Court.

Tuesday, March 1, 2011


Recently, the California Supreme Court expanded the authority of the police to search items taken from a person at the time of arrest.
In the case of People v. Diaz , California Supreme Court , Case #S166600, it was held that the police do not need a warrant to search a cell phone carried by someone who has lawfully been arrested.
Mr. Diaz was arrested on suspicion of selling drugs. The police then searched the text message folder on his cell phone. When confronted with a text message that implicated him in the sale of drugs, he admitted participation.
He then filed a motion to suppress the evidence seized from his cell phone, arguing that it was an unlawful search. The trial court denied his motion to suppress the warrantless search of the phone, finding it was lawful since the property had been seized and searched incident to a lawful arrest.
The California Supreme Court granted review to decide if the search fell within the "search incident to arrest" exception which is usually justified by a search for weapons for officer safety or to avoid the concealment or destruction of evidence. Mr. Diaz argued that the search should not have been upheld based on this exception because it was too remote in time and police had exclusive control over the phone at the time.
The court reviewed U.S. Supreme Court authority, including U.S. v. Robinson (1973) 414 U.S. 218, U.S. v. Edwards (1974) 415 U.S. 800, and U.S. v. Chadwick (1977) 433 U.S. 1. The court held that items immediately associated with the person arrested can be searched without a warrant even if the search is delayed, but items not associated with the person, but rather just in his or her immediate control at the time of the arrest, will require a warrant when too much time has elapsed. The majority held the cell phone was immediately associated with defendant's person because it was on his person at the time of arrest, and so the search was lawful. The majority rejected the notion that the nature of the character of the item seized should determine whether a warrant is required to search it.
(Editorial Note: As a word of advice, if you don’t want anyone to access your phone in the event you are arrested, you should use a lock feature with a password.)

Monday, December 6, 2010

Prison Overcrowding in California: Time is Running Out

Fyodor Dostoyevsky once said that the degree of civilization in a society is revealed by entering its prisons. As a society we should be concerned about the deplorable condition of our prisons, particularly in California.
The prison system in California is severely overpopulated, resulting in inhuman conditions. The prison population has grown from 76,000 in 1988 to nearly 170,000 today, in a system that is designed to hold 80,000.
In 2001, The Prison Law Office in Berkeley, Calif., filed a class-action lawsuit alleging that California prisons were in violation of the Eighth Amendment to the Constitution, which bans "cruel and unusual punishment." The case was consolidated with another case and assigned to a three-judge court panel in federal court. Following a lengthy trial, the three federal judges determined that serious overcrowding in California's 33 prisons was the "primary cause" for violations of the Eighth Amendment. An order to reduce the prison population was entered on January 12, 2010. The court ordered the release of enough prisoners so the inmate population would come within 137.5 percent of the prisons' total design capacity. That amounts to between 38,000 and 46,000 inmates being released. California appealed the order to the Supreme Court.
On November 30, 2010, the United States Supreme Court heard oral arguments in the case. The legal question presented by the appeal is the following: Does a court order requiring California to reduce its prison population to remedy unconstitutional conditions in its correctional facilities violate the federal Prison Litigation Reform Act? The broader question is this: What type of society are we to treat our fellow human beings in such a callous and barbaric manner?
Reducing prison overcrowding also has practical benefits. We now understand—in psychology and related disciplines—that powerful social contexts like prison can have real consequences for the people who enter them. When prison environments become unduly painful, they also become harmful, and prisoners carry the effects or consequences of that harm back into the free world once they have been released. Thus, bad prisons are not only unpleasant or uncomfortable; they can be destructive as well.
The Supreme Court’s decision will have a great impact on the future of prison conditions in this country. A decision is expected within the next few months.
What would Dostoyevsky say about our prisons?

Saturday, November 6, 2010


The U.S. Supreme Court decided in early November to consider whether a juvenile burglary suspect who was interrogated at school by the police should have been given a Miranda warning about his rights.

In 2005, a North Carolina boy identified as J.D.B., a 13-year-old special education student, was questioned by police who showed up at his school. He was suspected in a string of neighborhood burglaries.

The boy was escorted to a school conference room, where he was interrogated by a Chapel Hill, N.C., juvenile crimes investigator in the presence of the school resource officer, an assistant principal, and a school administrative intern. J.D.B.'s parents were not contacted, and he was not given any warnings about his rights under the 1966 high court decision in Miranda v. Arizona, such as the right to remain silent or to have access to a lawyer.

After being confronted with the officer’s suspicions, and with the assistant principal urging him to "do the right thing because the truth always comes out in the end," the boy confessed to the burglaries and wrote a statement admitting the crimes.

Juvenile-delinquency proceedings were filed against the boy charging him with two counts each of breaking and entering and larceny. His lawyers filed a motion to suppress his confession but they lost in lower courts and before the North Carolina Supreme Court.

The North Carolina Supreme Court rejected the boy's claim that he was in custody during the school interrogation and should have been given a Miranda warning. In a 4-3 decision in December 2009, the court said it could not consider the boy's age or special education status in determining whether he was in custody, and because he was not in custody, he was not entitled to Miranda warnings.

One of the dissenting justices said the police took advantage of the middle school's "restrictive environment and its psychological effect by choosing to interrogate J.D.B. there."

"It is troubling that in the instant case a public middle school, which should be an environment where children feel safe and protected, became a place where a law enforcement investigator claimed a tactical advantage over a juvenile," said the dissent.

The court will hear arguments in the case early next year, with a decision likely by late June 2010.

Tuesday, September 7, 2010

GPS and the Fourt Amendment - Is it 1984 or 2010?

GPS and the Fourth Amendment - Is it 1984, or 2010?

Did you know that government agents can sneak onto your property in the middle of the night, attach a GPS device to your car and keep track of everywhere you go? This doesn't violate your Fourth Amendment rights, because you do not have any reasonable expectation of privacy in your own driveway — and no reasonable expectation that the government isn't tracking your movements.

That is the rule that now applies in California and eight other Western states. A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit, which covers this vast jurisdiction, in January of thus year decided that the government can monitor you in this way virtually anytime it wants — with no need for a search warrant. U.S. v. Pineda-Moreno (9th Cir. - Jan. 11, 2010).

More disturbingly, a larger group of judges on the circuit, who were subsequently asked to reconsider the ruling, last month decided to let it stand.

In 2007, Drug Enforcement Administration (DEA) agents decided to monitor Juan Pineda-Moreno, an Oregon resident who they suspected was growing marijuana. They snuck onto his property in the middle of the night and found his Jeep in his driveway, a few feet from his trailer home. Then they attached a GPS tracking device to the vehicle's underside.

He was arrested and charged with drug sales. Pineda-Moreno pleaded guilty conditionally to conspiracy to manufacture marijuana and manufacturing marijuana while appealing the denial of his motion to suppress evidence obtained with the help of GPS.

In affirming the denial of the motion to suppress, the judges justified their decision by saying that Pineda-Moreno's driveway was not private. It was open to strangers, they said, such as delivery people and neighborhood children, who could wander across it uninvited.

Chief Judge Alex Kozinski, who dissented from the decision refusing to reconsider the case, pointed out whose homes are not open to strangers: rich people's. The court's ruling, he said, means that people who protect their homes with electric gates, fences and security booths have a large protected zone of privacy around their homes. People who cannot afford such barriers have to put up with the government sneaking around at night.

The government violated Pineda-Moreno's privacy rights in two different ways. For starters, the invasion of his driveway was wrong. The courts have long held that people have a reasonable expectation of privacy in their homes and in the "curtilage," a legal term for the area around the home. The government's intrusion on property just a few feet away from his home was clearly in this zone of privacy.

The court went on to make a second terrible decision about privacy: that once a GPS device has been planted, the government is free to use it to track people without getting a warrant. There is a major battle under way in the federal and state courts over this issue, and the stakes are high. After all, if government agents can track people with secretly planted GPS devices virtually anytime they want, without having to go to a court for a warrant, we are one step closer to a classic police state.

Fortunately, other courts are coming to a different conclusion from the Ninth Circuit's — including the influential U.S. Court of Appeals for the District of Columbia Circuit. That court recently ruled that tracking for an extended period of time with GPS is an invasion of privacy that requires a warrant. The issue is likely to end up in the Supreme Court.

This is a dangerous decision — one that could turn America into the sort of totalitarian state imagined by George Orwell. It is particularly offensive because the judges added insult to injury with some shocking class bias: the little personal privacy that still exists, the court suggested, should belong mainly to the rich.

Sunday, April 18, 2010

Padilla v. Kentucky: Defense Counsel Has a Duty to Advise a Client About Immigration Consequences

Padilla v. Kentucky: New Supreme Court Case on Defense Counsel’s Duty to Advise Client of Immigration Consequences

In an important case issued on March 31, 2010, the United States Supreme Court held that defense counsel has a duty to advise a noncitizen client of the immigration consequences of a plea . Padilla v. Kentucky, No. 08-651.

In 2002, Jose Padilla, not the terrorism detainee, a Legal Permanent Resident of the United States, pleaded guilty to a Kentucky drug trafficking offense. Padilla claimed he pled guilty in reliance on his defense counsel’s advice that he did not have to worry about deportation as a consequence of his plea. In fact, under federal law, drug trafficking is a deportable offense. Padilla claimed that under the Sixth Amendment, he was denied effective assistance of counsel because his defense counsel failed to advise him as to the possible immigration consequences of his plea, and in fact misadvised him. The Commonwealth of Kentucky contended that Padilla was not denied effective assistance of counsel, because the Sixth Amendment does not require that defense counsel advise clients of collateral consequences, and immigration consequences are collateral consequences of guilty pleas.

The questions presented in this case were: (1) Whether the mandatory deportation consequences that stem from a plea to trafficking in marijuana, an "aggravated felony" under the Immigration and Nationality Act (INA), is a "collateral consequence" of a criminal conviction which relieves counsel from any affirmative duty to investigate and advise; and (2) Assuming immigration consequences are "collateral,” whether counsel's gross misadvice as to the collateral consequence of deportation can constitute a ground for setting aside a guilty plea which was induced by that faulty advice.

In a decision which expands defense counsel’s duties, the court held that because counsel must inform a client whether his plea carries a risk of deportation, Padilla had sufficiently alleged that his counsel was constitutionally deficient.

The rationale for the decision was that changes to immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction. While once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation, immigration reforms have expanded the class of deportable offenses and limited judges’ authority to alleviate deportation’s harsh consequences. Because the drastic measure of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes, the importance of accurate legal advice for noncitizens accused of crimes has never been more important. Thus, as a matter of federal law, deportation is an integral part of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.

The Supreme Court pointed out that before deciding whether to plead guilty, a defendant is entitled to “the effective assistance of competent counsel.” Strickland v. Washington, 466 U. S. 668 (1984). The Supreme Court of Kentucky rejected Padilla’s ineffectiveness claim on the ground that the advice he sought about deportation concerned only collateral matters. However, the Supreme Court pointed out that it has never distinguished between direct and collateral consequences in defining the scope of constitutionally “reasonable professional assistance” required under Strickland, 466 U. S., at 689. The question whether that distinction is appropriate need not be considered in this case because of the unique nature of deportation. Although removal proceedings are civil, deportation is intimately related to the criminal process, which makes it uniquely difficult to classify as either a direct or a collateral consequence. Because that distinction is thus ill-suited to evaluating a Strickland claim concerning the specific risk of deportation, advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel.

Editor’s Note: Immigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. However, it is my practice to always consult with an immigration attorney whenever there is any doubt about immigration consequences.

Monday, March 29, 2010

DNA Evidence: Is it Foolproof?

In 2004, the passage of Proposition 69 mandated the collection of DNA samples from all felons, and from adults and juveniles arrested for or charged with specified crimes, and submission to a state DNA database; and; starting in 2009, from adults arrested for or charged with any felony.
Last year, California began taking DNA upon arrest and expects to nearly double the growth rate of its database, to 390,000 profiles a year from 200,000.

The state is accumulating a statewide DNA database to be used to solve crimes. In order to solve crimes, the system will search for matches between database DNA and other profiles once a week, from now into the indeterminate future — until one day, perhaps decades hence, an arrestee might leave a drop of blood or semen at some crime scene.

Courts have generally upheld laws authorizing compulsory collection of DNA from convicts and ex-convicts under supervised release, on the grounds that criminal acts diminish privacy rights. Law enforcement officials say that DNA extraction upon arrest is no different than fingerprinting at routine bookings and that states purge profiles after people are cleared of suspicion. In practice, defense lawyers say this is a laborious process that often involves a court order. (The F.B.I. says it has never received a request to purge a profile from its database.) While many civil rights activists see law enforcement obtaining and filing this genetic information as a potential violation of privacy, others worry over the evidence for different reasons.

Dangers Associated with the Perceptions of Evidence
Some have warned that courts should be cautious in relying on DNA evidence. The problem with DNA is that if you get a match the evidence is so strong and compelling it almost guarantees conviction.

The idea that concerns many defense lawyers is that juries may begin to perceive that when DNA evidence is introduced into a court case it will encourage these men and women to ignore everything else presented. While DNA evidence has helped to better assure innocence or guilt in many cases, there is no evidence that it should be perceived as the absolute truth. Defense lawyers go to lengths to establish their own contexts into which each piece of evidence is explained and, like any evidence, its placement and purpose in the crime is something only the victim or perpetrator will ever know beyond a reasonable doubt.

Relying on Evidence a Consistent Fear as the Science of Detection Evolves
Concerns of evidence biasing juries is not a new concern in courtrooms. Whenever science uncovers a new way for detectives to approach crimes the new technology is often perceived as more incriminating than established methodology or evidence. Examples include items such as the polygraph or "lie detector." Oftentimes when a person submits to a polygraph and the results are found to be either inconclusive or detecting deception many assume this indicates guilt. However, the biological processes that the polygraph examines allow for errors not always associated with guilt. This is why polygraphs are inadmissable in courts unless ordered by a judge; they create a false sense of truth that can greatly damage juries ability to weight both sides of an issue.

The Ability to Fabricate DNA Evidence?
Last year, scientists in Israel showed that one can fabricate DNA evidence, calling into question the credibility of what has been considered the gold standard of proof in criminal cases.

Nucleix, a Tel-Aviv-based life sciences company, was able to create credible DNA evidence that could be used to finger the wrong person, proof that even genetic evidence can be manipulated (beyond planting a hair or used cigarette) just like other physical traces.

To make the fake DNA, all the researchers needed was a small sample of the DNA they wanted to plant (such as that from hair or lingering in saliva left on a discarded coffee cup) and blood from a donor. Donor blood was centrifuged to separate DNA-containing white cells and DNA-free red cells. The researchers then expanded the filched DNA into a larger sample size via whole genome amplification and added it to the DNA-free red blood cells from the donor. Blood that matched the genetic profile of the person to be framed—not the donor—was created.

Nucleix was also able to replicate a deceptive double helix just by working off genetic profiles in a police database. Building a small collection of common genetic variations—425—for different genome points, they were able to drum up a fabricated sample.

This development calls into question the presumed infallibility of this forensics golden child—by showing that it can be fabricated. Since we're creating a criminal justice system that is increasingly relying on technology, we need to examine the implications of fake DNA.