San Jose Criminal Defense Lawyer Blog

Former Bay Area BART cop Johannes Mehserle is the subject of a civil case of assault dating back to 2008, the San Jose Mercury News reports. Mehserle was convicted of manslaughter for the shooting death of Oscar Grant in January of 2009 . That case generated nationwide reporting, not to mention widespread protests in what community activists claimed was a racially charged murder.
However, before the shooting death of Oscar Grant, a civil suit was filed in San Francisco against Mehserle and four other Bay Area BART police officers in 2008. The Plaintiff claimed that the officers attacked him after he made some disparaging remarks against BART cops. Mehserle is specifically alleged to have tackled the plaintiff in response to the plaintiff's comments.

Mehserle and the other officers have claimed that their actions were in response to threats the plaintiff made to Mehserle. He was in fact arrested for making criminal threats and further charged by the police officers of resisting arrest. The District Attorney's Office dismissed the charges against the plaintiff more than two years ago.

The civil trial was put on hold pending Mehserle's criminal trial in the shooting death of Oscar Grant. The standard that must be proved in a civil trial for battery is very similar to a criminal charge. It must be shown that the defendant (Mehserle and the other BART officers) touched the plaintiff with the intent to harm or offend him, which was not consented to and did cause harm and that such harm would have offended a reasonable person in the same situation.

Mehserle and other named Bay Area officers will likely defend on the grounds that they were making an arrest of the plaintiff and that they used reasonable force in detaining him. Even if the officer is mistaken, an arrestee has a duty not to use force to resist the officer unless that officer is using unreasonable force. In determining what is reasonable force, the jury must determine whether the amount of force used against the plaintiff would have appeared reasonable to a reasonable officer in the same or similar circumstances. What is reasonable depends on the nature and seriousness of the alleged crime and whether the arrestee reasonably appeared to be a danger to the public or pose an immediate threat.

According to the Mercury News, the trial is set to begin sometime after Thanksgiving in the Northern District of California in San Francisco.

Continue reading "Bay Area BART Cop Now Faces Civil Trial" »

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.

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" »

Law Enforcement agencies in the East Bay have been rocked by a series of scandals involving allegations of threatening witnesses, making false arrests, selling evidence among other claims. However, the Mercury News is reporting that one officer may have colluded to set up one man's recent DUI arrest and conviction.

David Dutcher, a Bay Area resident was arrested and convicted of driving under the influence in 2008. His previous suspicions that he was "set-up" may now have been confirmed and those suspicions involve a conspiracy between his former wife, a too good to be true dinner-date and a now disgraced private investigator and former East Bay police officer.

Dutcher claims that his ex-wife set him up with a flirtatious dinner-date who downed Dutcher with alcohol and promises of an amorous evening before coaxing him into his car. He was soon stopped by a police officer and arrested for having a blood alcohol equivalent of .12%.

It was only after his conviction did Dutcher realize he was being spied on that evening by former PI Christopher Butler. Butler is currently at the center of a grand jury investigation for other previous DUI setups. Dutcher now contends that his ex-wife hired Butler (and his amorous date) in an orchestrated effort to smear his reputation during a child custody battle. Butler has admitted that he tipped off the police officer who arrested Dutcher, but denies any conspiracy. The ex-wife has admitted hiring Butler, but only to make sure their mutual children were not being driven by Dutcher. Dutcher's date is being described as a Las Vegas showgirl and security specialist who has previously worked on sting operations.

Dutcher is now petitioning the court to withdraw his previous plea of guilty. Penal Code section 1018 allows a person to withdraw a plea of guilty and substitute it with a plea of not guilty if good cause can be shown that the plea was not made knowingly and voluntarily and that the defendant did not fully understand all of his or her rights at the time of the guilty plea. In reality, the defendant must show mistake, ignorance, fraud, distress or some other factor that overcame the exercise of free judgment.

Although, Dutcher is a victim (one of several) there is no evidence that he did not understand his rights at the time of his plea and the following consequences. He has admitted to drinking and the subsequent driving. There is nothing to indicate that his guilty plea was anything but knowing and voluntary. Even if there was enough to retract his guilty plea, the case would not be thrown out. He would be able to re-fight the matter with the hope of getting a better deal.

However, Dutcher's case should be dismissed in the interests of justice. The surrounding circumstances have tainted the matter and the participants lack any credibility. Three other and similar cases have been thrown out. It is only fair to dismiss Dutcher's DUI.

Johannes Mehserle, the former BART (Bay Area Rapid Transit) officer was released from custody on Sunday after serving 11 months of a two year prison term, the Mercury News has reported. Mehserle was convicted this past July for involuntary manslaughter in the shooting death of 22-year old Oakland resident Oscar Grant. The tragedy sparked nationwide controversy in certain minority communities who have claimed prejudicial treatment at the hands of local law enforcement.

Mehserle's criminal case was moved out of the Bay Area and to Los Angeles for fear that the local jury pool was contaminated by the media coverage. Charged with murder, Mehserle's defense was one of mistake: he thought he reached for his stun gun and not his pistol. A smart phone camera recording the event shows Mehserle reaching to side, pulling out his .44 caliber gun and shooting Grant at point-blank range. The jury refused to convict on the murder charge, but came to a guilty verdict on involuntary manslaughter.

Mehserle's release was relatively peaceful, with some protestors attending to mark the occasion.

However, Mehserle's release once again raises the issue of distrust that many minority groups have for Bay Area and San Jose police. Here in San Jose there has been a long going feud of impounding vehicles for traffic violations where a driver is unlicensed. Latino groups argue that many of these drivers are undocumented and thus the policy singles them out for harsher treatment. The policy has, however since been dropped.

In 2010 the Mercury reported over 300 cases of abuse, most of which was targeted against minority groups. A black church reported that 35 percent of its congregation recount being stopped by police for no reason. In 2007 the police department released a inner-departmental memo which showed that police have used greater force on black and Latino detainees.

However, the San Jose Police have made great lengths to curb the unequal treatment such has setting up clear guidelines, stricter enforcement and stiffer penalties.

Continue reading "Bay Area Police Officer Released From Prison" »

In an interview with the local NBC news affiliate, newly elected District Attorney Jeff Rosen said that investigating and shutting down cannabis dispensaries will no longer be a top priority for his office. This announcement comes after an early revelation that Mr. Rosen has ordered one of his deputies to research the gray and confusing area of California marijuana laws, particularly the law on dispensaries. The underlying issue is whether cannabis dispensaries can exchange cannabis for cash as they are defined as non-profit associations.

In 1996 the people of California voted for Proposition 215, otherwise known as the Compassionate Use Law. Prop 215 allows patients suffering from cancer, AIDS, chronic migraines and other ailments, the right to buy, grow and possess marijuana for medical treatment, so long as they have a valid prescription. As the law stands a person with a valid medical card may grow, buy and possess as much cannabis as needed to treat the illness, so long as it is only for personal use.

Unfortunately the language of Prop 215 is vague and sometimes ambiguous. The courts have attempted, with a modicum of success, to clarify the gray areas. Cannabis clubs have come under particular scrutiny because they exchange marijuana for cash. Under the law such dispensaries must do business without making a profit. Critics of the dispensaries argue that accepting money violates the non-profit requirement. Supporters of cannabis clubs argue that the money received goes to operating costs, maintenance and the like, much like a charity or any other non-profit.

Law enforcement came under fire last year after a series of cannabis raids resulted in the arrest of dozens of people and forfeiture of club assets. Some raise concerns that legitimate cannabis volunteers are being prosecuted and cannabis assets seized and not returned. The accusation is that law enforcement have an interest in raiding the clubs because portions of the seized assets are distributed to the various police agencies. Some of these agencies have vowed to continue investigating the local cannabis dispensaries despite the District Attorney's more reflective approach.

Continue reading "Santa Clara to Ease -Up on Cannabis Dispensaries" »

San Jose Mayor Chuck Reed formed a commission to investigate police behavior after hundreds of citizen complaints regarding police conduct, particularly over the past two years. Many of these complaints report that police harass, harry and sometimes resort to violence over non-violent, petty crimes and infractions. The commission studied 180 different incidents over the past year and came to a conclusion: there are no "rogue" officers or any pattern of serious police abuse.

Not surprisingly, this report conflicts with the Mercury New investigation of over 321 cases where abuse was documented and often by the same officers. The Mercury reminds us of the case of Phuoung Ho, a college student, who was tasered while handcuffed. That infamous case was caught on a cell phone video, which can be seen on this blog.

I have been blogging about police for some time. We should remember the police officer who "faked" an arrest of a 15 year old boy, when the officer learned the boy had a sexual relationship with his step-daughter. What about the report from several Christian congregations that says 35 percent of its congregation have been stopped by police for no cause. And then the two separate fatal shootings of two Vietnamese men, who should have been detained, rather than killed.

In 2007 the San Jose Police release an inner-departmental memo that showed police used greater force on blacks and latinos. The department has ceased releasing such documents.

San Jose does have a problem with police abuse, whether it is using violence when not necessary, or arresting people on that catch-all charge, drunk in public. The police do protect us, but they cannot be allowed to violate constitutional rights and guarantees.

Each attorney at trial is allowed a certain number of "peremptory challenges" to dismiss potential jurors from hearing the trial. Other dismissal can be for "cause" if each side believes the potential juror unfit from sitting in the jury box.

However, race, gender, national origin among others cannot be used as factors when dismissing a juror, whether it be a peremptory challenge or for cause. The court system will not allow trial attorneys to manipulate the legal system by excusing someone merely because he or she is the same race as the defendant or victim or when race plays some other role at trial.

In 2008, Santa Clara County prosecutor Alison Filo did just that, so says the 6th District Court of Appeal. In 2008 defendant Khoa Khac Long was being prosecuted for rape and theft of a prostitute. Deputy District Attorney Filo excused three Vietnamese jurors claiming it was based on factors other than race. In fact she gave Judge Gilbert T. Brown three different excuses for each juror:

1.The first juror did not speak English well enough to understand the details of the case. Never-mind that the court offers Vietnamese language interpreters for just these instances.

2.The juror's sister was prosecuted for fraud in the past, which would prejudice the juror's view of the legal system. Of course this is purely speculative at best

3.For the third juror, Filo said: "I don't feel comfortable with his body language." This juror even said things that were favorable to prosecution!

Judge Brown excepted these explanations and after a jury was selected and trial concluded, Khoa Khac Long was found guilty of the charges. She is currently serving a 14-year prison term, but now may get a new trial based on the appellate court's ruling.

Continue reading "San Jose Judge Allowed Race to Improperly Dismiss a Juror" »

As reported by this blog, an officer of the San Jose Police faked an arrest to scare a teenage boy. On August 30, 2010, an unnamed officer discovered that his stepdaughter had engaged in intercourse with her 15 year old boyfriend. The girl was 14 years old at the time. The officer appeared at the boy's home and handcuffed him in front of his parents. The boy was told he was being arrested for having sex with a minor and that the District Attorney's Office would likely file charges.

The cop was put on administrative leave pending an investigation of matter, which was handed to the DA for further review. In a statement the Santa Clara County District Attorney's Office said that the officer had the authority to detain the boy, who was suspected of having committed a crime.

The officer's attorney told reporters that the decision not to file charges was appropriate because: "It is not a crime to act as a concerned father, nor is it a crime to 'scare straight' a juvenile who is heading down the wrong path." She concluded that the boy's parents colluded with the officer to scare their son.

However, there is scant evidence that the officer ever contacted the boy's parents, who have never made that assertion. Further, the parents secretly recorded the incident with a cell phone, which seems to negate the officer's assertion that there was an agreement between him and the parents. Lastly, a "concerned father" would not have the right to handcuff someone just to scare him straight, police officer or not.

If this officer had no intention of arresting the teenage boy his detention and handcuffing was an illegal act. Police officers are not immune from the law. This officer should have come to the home, not in uniform, and talked to the boy's parents. The two families should have settled the matter together. It is the opinion of this blog that the unnamed officer should be prosecuted.

To read this blog's original posting on this incident click here.

Continue reading "San Jose Cop Not to Be Prosecuted for Fake Arrest" »

On the day of its grand opening, the South San Jose Police Substation closed shop for a year or more. Just as the city, city officials and construction workers celebrated the completion of the $92 million facility, the lights were shut and gas turned off. The vacant building is located on Great Oaks Blvd, just off of highway 85.

The City reports that the immediate closure is due to fiscal shortfalls and that a delay of a year will save money and jobs.

"It's a reflection of just how difficult the budget challenges are," says city spokesman Tom Manheim, who nevertheless notes that the substation is expected to have a life of 50 years. He didn't say if that was 50 years of an open building or one in mothballs.

Construction of the substation began in 2007 after voters approved a bond measure in 2002. The structure came in more than $9 million over-budget. The City blames the additional costs on the original design of the facility and orders for additional mechanical and plumbing requirements.

The building is more than 2,000 square feet larger than the San Jose facility and boasts an elegant board room for police officers and detectives, conference rooms, a day care and even a gym. I dare say that the San Jose facility is more the substation than this building. There are, at last count, 25 plasma televisions throughout the structure.

What, no donut shop?

Continue reading "San Jose Police Substation Opens and Closes on Same Day" »

Officer Clay Rojas, of the Santa Clara Police Department was arrested Thursday for felony conspiracy and is held on $250,000 bail. It is alleged that Rojas (a former San Jose police officer) handed over confidential and personal information to a member of California Chapter of the Hell's Angels.
The District Attorney's Office had not revealed much, but has indicated that Rojas supplied DMV records of "private persons" using police resources. The manner in which he obtained the records could not be done at the civilian level.

It is unclear why Rojas, a 35-year veteran of the police, gave the documents to the Hells Angels and whether he is a member himself. Also to be arraigned are William Bettencourt and Vivian Rodriguez. It is alleged that Rojas gave the confidential information to Bettencourt (a member of the Hell's Angels) who then passed it on to Rodriguez. Bettencourt is being held without bail because of an extensive criminal record.

Rojas had been previously investigated in 2000 where it was alleged that he and several other officers of the San Jose Police Department wrongfully shot and killed Shaheed Jamal Daniels, after a domestic violence call. Rojas was later cleared.

In this matter Rojas faces a maximum prison term of three years. Bettencourt, because of his criminal history is looking at 25 to life.

Chief of Santa Clara Police, Steve Lodge, said that Rojas made "some incredibly bad decisions," in supplying confidential information to the Angels.

No, he made some incredibly bad criminal acts. It is most egregious because he is a law enforcement officer who has the public's trust. No special treatment should be given to this officer of the law.

Below is a History Channel Presentation of "Gang Land: The Hell's Angels." The video contains graphic images; viewer discretion is advised.

Continue reading "Santa Clara Cop to Face Prison" »

An unidentified San Jose police officer was placed on administrative leave after pretending to arrest a 14-year old boy. According to the Mercury News the boy was in a dating relationship with the officer's daughter, who learned they were sexually intimate. In an attempt to frighten the young boy the officer came to his home and placed him handcuffs. The officer informed the minor (in front of his stricken parents) that he was being arrested on the charge of rape.

The Cop told reporters that he merely wanted to scare the boy and teach him a lesson about sexual promiscuity. When contacted the Santa Clara County District Attorney's Office said they were investigating whether the officer committed any crimes. Investigating? I can come up with half a dozen off the top of my head, including false imprisonment and battery on a minor. This officer won't be prosecuted, I'm thinking.

The boy's mother told reporters: "He came over in full uniform and parked his motorcycle in front of our house; he didn't come over in jeans and shirt," said the boy's mother. "He didn't come over as a parent. He came over as somebody who had the authority to do whatever he wanted with us."

To make things even worse for a beleaguered family, after they reported the incident to Internal Affairs, the police arrested the boy for unlawful sexual intercourse with a minor. Yes, the DA can prosecute the male in these cases even though he too is underaged. However, the DA rarely does so.

No word if the teenagers are still a couple.

Below is a cellphone video of the incident taken by the kid's parents. They have retained a lawyer, but no word what they intend to do.

The United Way of Silicon Valley has presented an award to the San Jose Police Department for its civic outreach and community relations. United Way gave the award to the Police, calling the department a "community builder." The award is given annually, usually to people or organization that advances the United Ways missions and goals.

However, civil rights leaders here in San Jose has written a derisive letter to the United Way, saying that "we would not consider them (the Police) role models in community building." The group claims that the police have deliberately in a manner that has "increased tensions" with certain communities especially minority. The group further notes the abuse by police who have ratcheted up the number of arrests for public drunkenness. (I can attest that this is the catch-all charge when the police have no other probable cause to make an arrest. San Jose has demanded that police use breathalyzers before making the arrest, but the police often claim they didn't have on e at the time).

Raul Colunga, who signed the letter as a former chairman of the Santa Clara County Council on Equal Employment Opportunities said, ""It's as if they (United Way) didn't recognize the concerns people of color have with police profiling and all the other problems."

A group of Christian congregations did a survey (albeit unscientific) on police abuse and harassment. According to the survey, 35 percent said they had been stopped by the police without cause. Asked if they would report a crime in progress, 22.5 percent said they would not, giving fear of deportation as the most common reason. Only 7.5 percent said they could name at least one officer who patrols their neighborhood.

Below is cell phone video footage of San Jose Police beating a college student, who was handcuffed and on the ground. The video is somewhat graphic.

Continue reading "San Jose Police Not Popular in some Communities" »

Two young men are dead after a high-speed chase by the highway patrol. Vincent Reza and another unnamed man were crushed to death after their Ford Explorer flipped over on East Saint James Street near North Sixth Street in San Jose. The driver of the vehicle has survived but no word on his injuries.

The chase began in the pre-dawn hours today, when the California Highway Patrol, in a marked vehicle, pulled over the 2003 Explorer for not having a rear license plate. When the officers approached the vehicle it took off at a high rate of speed. The officers activated the patrol vehicles light and sirens and pursued the feeling Ford. The Highway Patrol lost sight of the Ford, but later spotted the vehicle in Downtown San Jose. It was reported that the Explorer was speeding on two wheels for several brief moments.

The pursuit ended when the vehicle flipped over and crashed into a parked car and attached utility trailer. The driver, Jose Hernandez, 19, was arrested and the other two passengers were pronounced dead at the scene. It is not known whether the Highway Patrol was in violation of its own pursuit policies.

A review of Hernandez' DMV records show that his license was suspended on July 23 for failing to appear in court. In November, the records show, he was cited for not stopping at a stop sign and not wearing a seat belt on two different occasions. Police say Hernandez was arrested for two counts of vehicular manslaughter, driving under the influence, possession of drugs, driving on a suspended license and evading an officer/failing to yield to an officer.

This accident comes on the heels of yet another high-speed police pursuit on July 13. A 24 year old man driving a Honda led the CHP on the pursuit through Downtown San Jose on San Fernando Street. The Honda smashed into a parked vehicle with such a force that the vehicle was nearly split in two. The teenage driver of that vehicle was killed by the force.

The CHP is reviewing its high-speed pursuit policies in the wake of these two tragedies.

Continue reading "San Jose Police Chase Kills Two Young Men" »

San Jose Police have released the identities of three victims of homicide over this past weekend. Jasmine Nicole Costa, only 28 years old, was found shot to death at her home in San Jose. Police have picked up a suspect, reported to be 25 years old, who is to be arraigned on murder charges this week. Ms. Costa was the 16th homicide in San Jose for the year.

The city's 17th and 18th homicide victims were identified as two San Jose residents: Alex J. Rodriguez, 27, and Phillip C. Ayala, 26. The two were shot down by a single gunman at 10:42 p.m. Saturday in a parking lot in the 300 block of San Antonio Court. It is alleged that the victims were involved in gang conflict when they were killed. Another woman was injured but her wounds are not fatal.

San Jose, recently called one of the safest major cities in the country has seen an uptick in murder these past few months. This weekend makes the number for 2010 a total of 19 murders. There were a total of 28 murders last year.

These killings come on the heels of the controversial killing of a San Jose man by police. San Jose Police were dispatched on calls of a man wielding a knife. On scene, without attempting to subdue the man (i.e. with tasers) the police shot the man to death. He was later identified as Brian Strand Casey, known for a mild disposition. Two other people have been slain by police this year in similar circumstances.