San Jose Criminal Defense Lawyer Blog

Governor Jerry Brown vetoed legislation last week that would require police to obtain a warrant before searching the personal cell phone of someone just arrested. The Legislature was responding to a recent California Supreme Court case that ruled police across California, including here in Santa Clara County, may search an arrestee's cell phone (including text messages, emails, photos, recent calls, personal records, bank statements, well, the list goes on) if the search is "incident to the arrest."
The idea of searching a suspect incident to his or her arrest has a long constitutional history. This idea has been expanded by the courts through time, however, more recently the U.S. Supreme Court in the case of People v. Gant, held that such a search must be literally within the scope of the arrestees reach. In other words, to ensure the safety of the arresting officer, and to prevent the loss of evidence, it has been held reasonable for the arresting officer to conduct a prompt, warrantless search of the arrestee's person and the area within his or her immediate control.

This past January, the California Supreme Court in the matter of People v. Diaz, once again has expanded on this idea. Specifically the court declared: "The loss of privacy upon arrest extends beyond the arrestee's body to include personal property immediately associated with the person of the arrestee at the time of arrest. This loss of privacy entitles police not only to seize anything of importance they find on the arrestee's body," but also includes cell phones.

Somehow the court believes it justified to search an arrestee's cell phone 90 minutes after the arrest was made. That is exactly what happened in the Diaz case. Mr. Diaz was involved in a sting operation regarding the sale of illicit narcotics. Diaz was arrested and transported to the Sheriff's Station for booking. An hour and a half later police searched the contents of his cell phone.

It is difficult to see how this search was incident to the arrest, or how the cell phone was still within the area of the arrestee's immediate control. It is painfully obvious that the search was far too removed in time and space to qualify as a search incident to an arrest. The phone had been in exclusive police custody for 90 minutes. It is settled that the area within an arrestee's immediate control means the area from within which the arrestee might gain possession of a weapon or destructible evidence. That being the case, the cell phone ceased to be in Mr. Diaz' immediate control once he was taken into custody and police took possession of the phone. It was quite easy for the police to obtain a search warrant before examining the content of the phone.

Unfortunately the U.S. Supreme Court refused to take the case despite the conflict with Gant. Governor Brown should reconsider his stance and stand up for the Fourth Amendment's protections.

Governor Jerry Brown signed legislation that will prohibit law enforcement agencies, including San Jose and other Bay Area police from impounding vehicles if a driver is discovered to be unlicensed during a DUI checkpoint. Previously, many police agencies would impound vehicles if the driver, even sober and not otherwise impaired, did not have a valid driver's license.

It has been alleged that the policy of impounding such vehicles unfairly affected minority groups, if not even targeted at illegal immigrants who routinely drive without valid licenses. Once impounded, sometimes for up to thirty days, the fees to get the car released can be too costly for the owner to pay. In many cases the owner of the vehicle is forced to abandon it to the City.

Under the new law, the car must be released to a legal and readily available driver. If one cannot be found at the scene of the checkpoint, it is to be released immediately at the impound yard once one is found. However, if the driver is deemed under the influence, police may still have the vehicle impounded at the owner's cost. To read the new law, AB 353, click here.

Continue reading "New Rules for San Jose DUI Checkpoints" »

An appellate panel of the Sixth District Appeals court has ruled that a former rape suspect may proceed with his civil suit against the San Jose Police Department, the Mercury News reports. Back in 2008 Michael Kerkeles was accused of raping a mentally disabled woman in March of 2005. As a part of the investigation, Officer Christian of the San Jose Police Department used a fake DNA report showing that Kerkeles semen was collected from the scene of the crime. This was used (unsuccessfully) to illicit a confession from the suspect.

The practice of falsifying police report sand medical documents is not illegal in the investigative stage of a criminal matter. However, the false report in this case was used against Mr. Kerkeles in the prosecution of his criminal matter. At the preliminary hearing, the deputy district attorney assigned to the case called Officer Christian to the stand. He testified as to the authenticity of the crime lab report and that it accurately reflected DNA evidence collected at the crime scene. The crime lab report was the same used to illicit a confession and was completely fabricated.

During trial Mr. Kerkeles' attorneys learned that the report was a fake and as a result the District Attorney drop the charges.

Kerkeles filed suit against the San Jose Police alleging, among others, fraud, wrongful arrest, prosecution and false imprisonment. The law suit was delayed by a Superior Court judge who accepted Officer Christian's later testimony that he forgot the DNA report was falsified. The Appellate Court disagreed and said that both Officer Christian and the District Attorney knew or should have known that the report was a fake.

The San Jose Police Department has since prohibited its investigating officers from using fake reports as a part of their criminal investigations.

Continue reading "San Jose Police Sued for Fake DNA Report" »

The Mercury News has reported that a 17-year old San Jose boy will be tried as an adult in the armed robbery of family living in Campbell. Stanford Hauser was arrested with two other young adults after the group robbed the household of 25 branches of what is described as medicinal marijuana plants. The Mercury reported that Hauser was armed with an AK-47 and allegedly made threats to members of the family.

Hauser is being charged in adult criminal court with armed robbery with an additional gun enhancement. Robbery carriers a prison term sentence of three, six or nine years. With the gun enhancement he could be facing an additional ten years in the state penitentiary. To further complicate matters, Hauser may be facing additional charges of making criminal threats and assault with a deadly weapon.

Although Hauser is a minor at age 17, the Santa Clara County District Attorney's Office has decided to treat and try him as an adult. The factors that go into treating minors as an adult for criminal prosecution vary, but usually include: the age and social background of the juvenile; the nature of the alleged offense; the extent and nature of the juvenile's prior delinquency record; the juvenile's present intellectual development and psychological maturity; the nature of past treatment efforts and the juvenile's response to such efforts.

Little is known about Hauser and his prior criminal history, but the nature of the offense alleged is severe. As the Mercury News correctly points out, Hauser is the twelfth minor to be charged as an adult this year.