San Jose Criminal Defense Lawyer Blog

The City of Sunnyvale doesn't have a "Police Department" or a "Fire Department." No, actually it has the Office of Public Safety. Now that really sounds like something from the French Revolution, but nevertheless, the OPS is an integrated office of police officers and firefighters. What makes this so different is that every police officer is also a firefighter and well, of course vice-versa. That means an employee of the OPS is a cop on one shift and then a fireman on his next shift.

At first blush this sounds like an efficient operation where the police and firefighters are far more integrated and connected which should prove more resourceful. And this is probably true. But there is an inadvertent darker side to this efficient makeup: the police now have a vehicle for circumventing the 4th Amendment to the U.S. Constitution.

The 4th Amendment keeps us safe from intrusive searches and seizures of our persons, places and things. Most people know that law enforcement cannot search your home without a warrant for example. Now this rule is applied differently (given the circumstances) to police and fire safety personnel. For instance, when a fire damages a home firefighters can rush in to put it out. More to point, when the fire is out, firefighters may remain to investigate the cause of the fire. Police cannot.

Now let's take this scenario to Sunnyvale. House was on fire, the firefighter put it out. Can an OPS officer, wearing blue (acting as a cop) enter the building? Common sense would say no, absolutely, 100% no. Well, according to the Superior Court, this police officer may merely take one hat off and put his other on. The reasoning is convoluted and I will not bore you with it.

Actually, I had a client who experienced this very thing. His apartment caught fire and apartment personnel put it out. The fire unit arrived on scene and entered to conduct an investigation. The police arrive and waited outside, receiving and making reports. Good. Fine. Well, a fireman walks out and up to the commanding police officer and reports that they found pornographic DVDs strewn upon the ground and that there was a computer downloading "something." No warrant. No permission. No probable cause to even get a warrant. The commanding police officer entered the building and searched the apartment, including my client's computer! He was arrested for possession of child pornography. To a Superior Court judge that was just fine.

Of course I wanted to appeal, but the DA offered conditional no state prison. My client took it and served six months.

Santa Cruz officials have been battling with a rise of heroin use in the forest areas of the city. It is alleged that Salvadorian gangs are working under the cover of the forest trees selling the drug to fund their wars against other gangs and other criminal activity. The sellers are extremely mobile and constantly on the move. It has gotten so bad that the city has asked the Drug Enforcement Administration (DEA) to step and help with the fight.

There are hundreds of gullies and covered hillsides close to highways 1 and 9. Police say that most of the activity takes place in the Pogonip Trails, which are miles long. Police have dubbed the area Heroin Hill, but have been totally unable to stop the spreading sale of heroin. The city fears a spread of violence and even cities such as San Jose and Santa Clara have expressed concerns about a potential spillover effect. To read a detailed article on this situation please click here.

Some may think it odd that heroin is still widely used. It seemed that by the 1990's expensive heroin had been replaced by cheap methamphetamines, or meth. To a large extent this is true. Meth is cheap to produce and cheap to sell.

But ironically, the use of heroin remains visible in Santa Cruz and even San Jose. According to the National Institute on Drug Abuse or the NIDA, the levels of heroin use are greater now than the early 90's. According to the same report it is heroin that is most correlated to negative social consequences, HIV/AIDS, tuberculosis, fetal effects, crime, violence, disruptions in family life and workplace environment.

Continue reading "Santa Cruz's Heroin Hill" »

San Francisco Police Captain Dennis Schmitt has made a claim that has caused a riff between the Police Department and the Police Commission: that crime rates spike in areas where you find cannabis clubs. There are currently two such clubs now in San Francisco with a third to be opened soon.

San Francisco Police Commissioner Petra DeJesus has ordered the Police Department to review the department's database and report on the crime rates near the clubs. The department has a computerized system that police officers update with crime incidents. The police report that there were no crimes that could be correlated with the existence of the clubs.

In fact, studies conducted in Berekley have shown that there are no increases of crime rates in the area of cannabis clubs. In fact some studies show a decrease in crime. As a matter of fact, those making the claim that the existence of cannabis clubs increases crime, have not been able to prove it. Even Officer Schmitt had to admit, that she could not link any crime to the two dispensaries. To read an article regarding the situation in San Francisco click here.

It all comes down to the fact that medical users of marijuana are being bullied, but especially here in San Jose and the rest of Santa Clara County. There are many reports of arrests even when the arrestee has shown a valid card and prescription. Some are even being prosecuted, despite California law allowing the medical use of marijuana. Such users must always keep their valid card on their persons and I would even suggest a separate prescription with them (and copies for the car and elsewhere).

Maurizio Contarino, a former bank manager at the Bank of America in Willow Glen has been convicted of elder fraud, grand theft and other very serious chargers. Contarino devised a somewhat sophisticated scheme where he would send debit cards to elderly customers. Next he would change the address of the card to the bank's address on Lincoln Ave in Willow Glen. He then ordered duplicate cards, which would be mailed to the bank, intercepted by Contarino. To ensure his safety, Contarino used the workstations of other employees.

This comes on the heels of a similar case at Wells Fargo just up the street. The District Attorney's Office is prosecuting John Tran, a banker with Wells Fargo who is being prosecuted for similar charges, namely elder abuse. The San Jose Police report that this type of crime is on the rise, mostly because of the recession, but also because of new computer technologies that allow people greater stealth from authorities.

All said Contarino stole $18,000 from Bank of America customers. He is to be sentenced at the San Jose Hall of Justice on May 27. Contarino is facing up to four years in the state penitentiary; however, having spoken to his defense attorney, the negotiated disposition is four months. This case demonstrates the need to legal counsel if accused of a crime of this or any nature.

Continue reading "San Jose Banker Convicted" »

The U.S. Supreme Court announced this past Monday that correctional facilities may keep certain sex offenders beyond the term of their sentence. The court is upholding a federal law that states if an inmate, convicted of a sex crime, is deemed a danger to the community, he may be further detained even if he has credited out all of his sentence. Justice Breyer penned the decision saying: ""The Federal Government, as custodian of its prisoners, has the constitutional power to act in order to protect nearby (and other) communities from the danger such prisoners may pose."

The decision is based on the Necessary and Proper clause to the U.S. Constitution which allows Congress to pass legislation that is "necessary" and proper" to facilitating existing law. To this end the court said: "Taken together, these considerations lead us to conclude that the statute is a 'necessary and proper' means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned, and to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others."

However, what were not mentioned by the court, not even in dicta, are the constitutional rights of the inmates. The court ignored the argument that these inmates are protected by the 14th Amendment to the constitution, or the guarantee to equal protection. Also, criminal defendants often plea bargain with the District Attorney and agree to a certain disposition. I would argue that a sex offender forced to stay an extended term, only because Congress says so can overturn his case because the original terms of the disposition have been changed. It much like a contract: you can't change the terms of the agreement.

Antonin Scalia and Clarence Thomas dissented. They argue (and rightly) that this law gives extra-constitutional powers to the federal government, never intended by the founders. Specifically, Thomas said: "To be sure, protecting society from violent sexual offenders is certainly an important end," Thomas writes but continues by saying "the Constitution does not vest in Congress the authority to protect society from every bad act that might befall it."

Continue reading "Supreme Court Goes Too Far" »

Last summer members of a gang crashed a birthday party of a 16-year old girl. In the melee they stabbed an 18-year man to death. They were apprehended because of new cross-city protocols that have made it much easier for police in different cities to cooperate and apprehend criminal suspects. Recently, the South Bay has seen the creation of the regional gang task force that has freed up the flow of information between different agencies.

The Mercury reports that six South Bay cities have banded together and have created the South Bay Gang Alliance. There is a total of 50 government agencies involved that reach as far as King City. The aim of this new cooperation is the unfettered movement of gang members crossing city and county borders to recruit new members. Additionally, gang related crime is spreading beyond San Jose and into residential and bedroom communities.

Further problems for the police are that gang members have contacts in other cities and even counties. Norteno members in San Jose are now sharing information and resources with their counterparts in Salinas. It is the same with the Surenos and even the smaller Pilipino and Vietnamese gangs. Now law enforcement is gearing-up to be as resourceful as many gang outfits have become. This requires cross border intelligence gathering and sting operations. They are now using "gang experts" and even former gang members to assist in investigations and analysis. The role of this new cooperation is prevention, intervention and suppression

But as the police step up their activities against gangs, other people get caught in the crosshairs. The video below is just one case, where a young man, who should have received one to three years (even less in my opinion) is now in state prison for life.

Continue reading "Santa Clara County Steps up on Gangs" »

The Mercury reported that 19-year old Pablo Rosas Hernadez, a San Jose resident, was arrested yesterday on suspicions that he killed his eight month baby girl. He is set to be arraigned on felony first degree murder, a charge if convicted, carries a term of 35-years to life. The Police report that Hernandez, a suspected gang member, bludgeoned the baby to death at his San Jose home on Julian Street. When emergency personnel arrived, the baby was unresponsive and declared dead at the scene.

The suspect's father, Santiago Hernadez, told police that when he (Santiago) came home from the flea market he heard that the baby had been in an accident, possible a fall, and was seriously injured. Santiago admits that his son was troubled as a youth, but that he reformed his ways after the birth of his daughter. However, in March, the suspect was involved in a gang-related stabbing. Although Hernadez was a victim, it is not clear if he was involved in gang activity at the time.

At the time of Hernadez' arraignment he will most likely be referred to the Public Defender. That is of course, unless he or his family can afford to retain private counsel. This is a case that is almost certain to go to trial, unless Mr. Hernadez' lawyer can broker a plea bargain for him. However, often times in murder cases there will be no offer on the table and the case will have to proceed to trial. For Santiago, well, he already lost a grandaughter, now he may well lose his son too the penitentiary.

Continue reading "San Jose Dad Kills Own Son" »

On May 7, 2010, San Jose Police arrested a 12-year old boy on suspicion of selling illegal drugs, namely ecstasy. The boy is a student at Piedmont Middle School and was found in possession of $50. The Police were notified after an 11-year old girl reported to the school administrators that she had digested a pill after purchasing it from the boy. Four students were taken to a local hospital for observation and testing.

Police and school officials will not release the name of the boy because of his age, but it is reported that the suspect received the pills from his brother aged only 13. It is not known how many pills were sold in all, but authorities are aware of 13 children who purchased the ecstasy. The boy has been expelled from school, which will report the incident to all parents of the 980 student school.

Ecstasy is a entactogenic drug, which is a type of psychoactive drug that induces distinct emotional reactions. Some of these reactions are intense feelings of love, euphoria and emotional connectiveness. The unintended side-effects (like many similar drugs and medications) is neurotoxic damage to the central nervous system and chemical imbalances in the brain. Although some studies have suggested that Ecstasy-like medications could be useful to treat depression and post-traumatic stress disorder, use of it remains illegal.

Ecstasy is also highly associated with dances and music clubs. It is also associated with teens and young adults. Unfortunately, the drug increases the body's metabolic and heart rates. With a dancer's heart rate already elevated, ecstasy use runs the risk of heart failure, even in teenagers.

Continue reading "Pre-Teen in San Jose Selling Drugs" »

In the past several months San Jose has seen a rash of sexual touchings on the Saratoga Creek Trail near Mitty High School. One man is suspected in the alleged assaults which began in October last year. The last one happened just this past Tuesday. Most occurrences take place between 7:00 a.m. and 10:00 a.m. between Bollinger and Doyle Roads.

Most of the victims are joggers aging between 15 and 31 years old. The suspect is reported to grab his victim's legs wrapping himself around her. In one instance it is said that the suspect grabbed his victim's ponytail and pulled her to the ground. Fortunately the suspect was too winded to continue the attack. In most cases the suspect waits for the victim to pass him on the trail, when he then jogs up to them and then grabbing their legs.

The Police have handed out fliers, but have found no leads as to the suspect's identity. They have released a sketch of the man's face and continue to reach out to the public. A further concern is the proximity of these attacks to Mitty High School. Teenagers have been warned to stay away from the trail and to remain vigilant.

Continue reading "Sex Crimes in San Jose" »

A student in San Jose was beaten with a baton and tased by the police on a suspicion that the student had brandished a weapon. Although unarmed at the time, Phuong Ho was caught on taped as the police used tasers to make the arrest. The 21-year old student has filed charges against the City of San Jose and the Police Department for wrongful arrest and excessive force. The District Attorney on the other hand is not pressing charges against Ho and has declined to file against the police officers.

This comes on the heels of yet another student being tased by the police in Philadelphia. On May 5, 2010, a teenager jumped the rails and onto the field during a ballgame between Philadelphia and St. Louis. The teen was unarmed and just making a show. However, instead of subduing the teen by pursuing him, the police pulled out a stun gun and raced 50,000 volts of electricity into the kid. Shocking, to say the least.

Stun gun use by the police is on the rise, including in San Jose. A 2006 national study done by the Justice Department reported that between 2000 and 2006 there were 184 stun-gun related deaths of criminal suspects. By contrast there were only two such related deaths in 1986 and only one in 1990. It should be noted that tasers send out 50,000 volts of electricity by way of two barbed darts that penetrate clothing. The official name of these tasers is electro-muscular disruption devices, or EMD.

The fact is stun gun use by the police is up and it has shown itself to be "disruptive" to the muscular and cardiovascular systems. Even more disturbing is the prolonged use of these devices on criminal suspects, many of who are mentally ill or under the influence. These conditions can certainly make the body react even more violently and can do more external and internal damage to the body. Perhaps police departments should rethink their stun gun policies.

Tasing isn't the only brutal contact the police have with teenagers. Below is a video of San Jose Police beating a handcuffed teenager. Please beware, the video is graphic.