David M. Boertje

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Criminal law has entered the digital age. Every day, the privacy of innocent people is compromised as law enforcement officials scoop up information about them while executing routine search warrants involving someone else. Last year, the U.S. Supreme Court ruled that a warrant was required for law enforcement to be able to access historical data about an accused person’s cell phone location over several weeks. This ruling, however, does not address the use of geo-fence warrants by law enforcement officials when seeking to identify the perpetrators or witnesses to a crime.

Geo-Fence Warrant in Action

The police department in a suburb of Phoenix obtained a search warrant to identify the perpetrators and witnesses to a crime. They asked Google to provide information about any and all devices it recorded near the crime site to identify suspects and witnesses. Independent video surveillance showed the vehicle of interest was a white Honda Civic. The video did not capture an image of the driver or license plate number.  

Google’s Sensorvault

Sensorvault is a global database maintained by Google to capture and record personal information about its users. Where you go with your friends, what you read, eat, listen to, and watch, and when these activities happen are all recorded.

For years, technology companies have responded to court orders and search warrant to reveal specific user information. That is and remains legal. Under the geo-warrants, a single warrant can collect location information on dozens or hundreds of devices at or near the area of interest.

Geo-fence warrants are just one of the technological advancements that have improved criminal investigations in California and North Carolina, Florida, Minnesota, and Washington, other states that routinely use these types of warrants during criminal investigations.

Apple states that it is not able to perform these types of searches involving their iOS devices. However, Google software is the culprit, and that software can be downloaded onto an iPhone. The software, not the device, tracks user’s location and other data.

Review and Understand Your Privacy Settings

Selling you location data is a lucrative business for Google and companies that track your information to share with themselves or others. To protect yourself against intrusion, understand the location history setting on your mobile devices and portable computers. If you routinely travel with your smartphone and tablet, the feature must be disabled on all devices to avoid being tracked. The location history setting enables users to see what information is being tracked and recorded. Users can opt to delete their location and account history permanently, but future information must also be purged or it will remain on their website in perpetuity. Continue reading

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We are preparing for summer holiday travel by familiarizing ourselves with the security process for clearing airport checkpoints. In our last post we examined property or personal belongings searches. In this post we will spotlight body searches.

Can I Refuse a Body Screen?

Most airports have full-body scanners that use millimeter waves, MMW, to screen the body for contraband. Here, a prohibited item would be a cigarette lighter. If the scan identifies a cigarette lighter in your pocket, you will be asked to discard it to clear the body search portion of the scan. If the TSO cannot identify the item, he or she will refer you to an enhanced pat-down search.

When an enhanced pat-down search is ordered, the passenger may request the search be performed by a specific gendered TSO. A passenger may also request that instead of a full-body scan using MMW, an enhanced pat-down be performed and choose the gender of the TSO.  

There are many reasons people refuse a full-body scan that have nothing to do with carrying prohibited items or contraband. A person with a pacemaker cannot withstand the body scan. An individual with a concern about receiving radiation may refuse to provide MMW screening.

If the item detected in the full-body scan is contraband, like cocaine pellets in the passenger’s stomach, the passenger will be detained and referred to law enforcement for criminal investigation and arrest.

You May Request a Private Screening

A private screening means that an enhanced pat-down is conducted out of public view. The passenger may request a travel companion be present and the gender of the TSO. Again, passengers in these scenarios seek privacy and wish to protect it.

You do Not Have to Disrobe

During a TSA search, you will not be asked to disrobe or reveal a private area of your body. A cavity search can only be done by law enforcement personnel, not the TSA. Accommodations for religious clothing, like a hijab or turbans, may be requested and granted.

Be Respectful

The TSOs are screening thousands of passengers. Everyone’s clock is ticking. If any of your rights are violated during your airport screening, remind the TSO that it is your right to request an accommodation to the process. For more information on banned items you cannot carry onto an airplane, visit the TSA website or click here.

People Get Arrested at Airports All the Time

If you are in possession of contraband at an airport, you will be referred to law enforcement for an immediate arrest. If you or someone you know is charged with a crime in San Diego, contact a qualified San Diego Criminal Defense Attorney who can help mitigate penalties today and explain your legal rights and responsibilities. Available 24/7, the Boertje Law Firm represents clients at any stage of the criminal case and for any crime charged. Continue reading

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Before you board a commercial flight anywhere in the world, you will need to go through airport security. In the United States, the Transportation Security Agency (TSA) is responsible for clearing airline passengers to fly.

The uniformed people at the airport security entrance are called Transportation Security Officers (TSOs). They are responsible for verifying that your identity matches the name on your airline ticket, inspecting and searching of your carry-on and personal items for prohibited materials, and searching your body for any contraband or prohibited items. Keep the following tips in mind this travel season to help you clear an airport checkpoint quickly.

Understanding the Search Process

What exactly is supposed to be going on when you place your bag and personal belongings on the conveyor belt? The TSA can only conduct an administrative search of your person and belongings. If they identify a prohibited item, like a shampoo bottle over 8 ounces, they advise you that in order to board the plane you must get rid of it. Once you discard the offending object, you complete the search process and may proceed to the airline boarding area.

A criminal search, on the other hand, can only be conducted by the police or law enforcement personnel such as the FBI or the Los Angeles Police Department. If, during an administrative search, a firearm is detected, for example, you will he held, and law enforcement called to investigate you and your belongings. Under most circumstances, you may be charged with illegal possession of a firearm, even if your state of residence permits you to carry one..

Be Prepared to Backup Accommodation Requests

You may be asked to demonstrate service animal credentialing for your dog to board with you. Similarly, individuals with pacemakers often travel with a doctor’s note, advising TSOs that the individual has a pacemaker and cannot undergo a security screen.

Accommodation Devices are Also Searched

Individuals traveling with wheelchairs, canes, or crutches, for example, will also have their accommodation devices screened and searched if contraband or prohibited items are detected. Even your eyeglasses can be inspected further. Any item or thing on your person can be evaluated.

Be Courteous

There is a lot going on at an airport security checkpoint. Be alert. Follow directions. Ask for clarification if confused. For a list of items you can carry onto an airplane, visit the TSA website or click here.

Large Airports Contain a Jail or Detention Facility

Large airports, like JFK in New York and LAX in Los Angeles, contain holding pens for people arrested for criminal conduct or behavior. You will most definitely miss your flight if you are detained in this way. If you are arrested an airport and charged with a crime in San Diego, contact a qualified San Diego Criminal Defense Attorney who can help mitigate penalties today and explain your legal rights and responsibilities. Available 24/7, the Boertje Law Firm represents clients at any stage of the criminal case and for any crime charged. Continue reading

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The State of California has not executed an individual since 2006, when its capital punishment procedures relating to lethal injections were declared unconstitutional by the U.S. Court of Appeals for the Ninth Circuit, in Morales v. Tilton, 465 F.Supp. 2d 972 (N.D. Cal 2006). California authorizes capital punishment by gas or lethal injection. The state will continue to hold off on executions for capital crimes.

Governor Issues Moratorium on Executions

Two weeks ago, the Governor of California announced the statewide suspension of death penalty executions, granting a temporary reprieve to the 737 inmates currently on death row. California voters have rejected two initiatives to repeal the death penalty — Proposition 62 in 2016 and Proposition 34 in 2012. Instead, they voted to accelerate the death row appeals process in 2016 with the passage of Proposition 66.

Lethal Injection Procedures Declared Unconstitutional in 2006

The Ninth Circuit of the U.S. Court of Appeals, in the Morales case, found California’s death penalty procedures relating to lethal injections flawed. At issue was the drug recipe that was used for the lethal injections. The three-drug compound that made up the lethal injection dose could lead to suffering and an agonizing death if it was not administered carefully, resulting in a violation of the Eight Amendment to the U.S. Constitution’s cruel and unusual punishment clause.

According to BBC reporting, the death penalty is legal in 30 states, including California. Since 1976, California has executed 13 death row inmates. 737 executions remain outstanding, representing the most number of prisoners on death row in the court. Overall 2,738 inmates are on death row nationwide.

As part of the settlement of the Morales case, the state was ordered to submit new procedures for execution by lethal injection. Theoretically, if the court approved the new procedures, executions could resume. The Governor rescinded the lethal injection protocol and closed the San Quentin execution chamber concurrent with his announcement. Continue reading

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Does the following scenario sound familiar?

An accused person pleads guilty to selling $225 of heroin to undercover police officers, is sentenced to one year of house arrest and five years of probation; and is also ordered to pay $1,200 in fees and fines. The accused person’s Land Rover, the car he was driving at the time of the arrest, is also seized during the arrest and forfeited in a subsequent and separate civil forfeiture action. This real-life scenario was the case that triggered a review of the State of Indiana’s civil forfeiture practice of seizing instruments of a crime by the U.S. Supreme Court.

U.S. Supreme Court Issues Unanimous Decision

The eighth amendment of the U.S. Constitution bars excessive fines and limits the ability of the federal government to seize property. Now, this limitation also applies to state governments. In a 9 – 0 decision, the U.S. Supreme Court held that the Eighth and Fourteenth Amendments to the U.S. Constitution prohibit the practice of civil forfeiture as it is currently exercised by the states.

Civil Forfeiture Actions at a Glance

Civil forfeiture is a practice by state and local governments of taking of cash, cars, houses, and other assets used to commit crimes. For decades, opponents of the practice have criticized it as a revenue producing program subject to unchecked abuse. The problem with the practice is that value of the property seized is out of proportion to the crimes involved in the charged offense.

Indiana Case

In Tyson Timbs v. Indiana, the defendant argued that the seizure of his Land Rover, an asset he purchased with the proceeds from his father’s life insurance policy, was excessive. The State of Indiana argued that the Land Rover was used to commit a crime, the sale of heroin totaling $225, and as such, was justified. The Supreme Court agreed with Mr. Timbs and ruled that the seizure of the Land Rover in this case was excessive and sent the case back to the lower court to resolve what the value of the seized item should be.

Property used during the commission of a crime will still be seized. However, an independent inquiry will be made to determine what the penalty will be.

Civil Forfeiture is an Assessed Penalty in Resolution of Criminal Cases Continue reading

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As many as eight million Californians have criminal records for misdemeanor or felony crimes. All of them are subject to denied or limited employment, housing, and credit opportunities because of their criminal convictions. Many of the past crimes are for low level misdemeanors, like simple marijuana possession, or low-level felonies that are non-violent in nature.

Jurisdictions all over the United States are banning prospective employers from inquiring about a job applicant’s criminal conviction history during the recruitment process. It is not until the job applicant is made a formal job offer that it is permissible for an employer to inquire about a job applicant’s prior criminal convictions. Despite these modest changes to the law, discrimination against prior criminal defendants persist, aided by the public record of his or her criminal conviction.

Current Law Regarding Sealing of Criminal Records

Right now, people can seal their rap sheets following the completion of all their sentencing conditions. For example, a person convicted of driving under the influence, who receives a two-month sentence in county jail and three years of probation is able to request his or her criminal conviction record be sealed after applying and paying a fee, three years from the date of his or her release from jail.

Proposed Criminal Records Bill

The proposed Criminal Records Bill, would automatically seal the rap sheet of people whose crimes are specified in the statute as eligible for automatic sealing. The bill would apply retroactively, meaning people with prior criminal convictions who have not applied to seal their record would have their records automatically sealed when the Criminal Records Bill becomes effective.

Law enforcement agencies and some employers would still be able to access prior arrest records as part of criminal investigations or deep background checks for certain job positions. Members of the public, including potential landlords and employers, would no longer have access to a person’s arrest and conviction records.

The California Justice Department under the proposed bill would be able to contest the automatic sealing of a criminal record under certain conditions and upon application to the court. All others, however, would automatically be sealed upon successful completion of sentencing conditions.

Seal Your Criminal Records Now

You do not have to wait for the Criminal Records Bill to pass to seek the sealing of your criminal record. Individuals may petition the court to have their prior criminal conviction records sealed under certain circumstances. If you would like to know if your criminal record can be sealed, contact the qualified and knowledgeable San Diego Criminal Defense Attorney today to understand the process and your legal rights and responsibilities in seeking such relief. Continue reading

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California is at the forefront of criminal justice reform. Last year, many laws were passed to reform the criminal justice system in an effort to make it fairer for Californians accused of committing crimes, whether they were serving time in juvenile detention facilities, jails, or state prisons. Abuses occur in any system, it is how those abuses are addressed that are the true measures of progress.

One area in the current spotlight is juvenile justice reform. Children under 18 who commit crimes are increasingly charged as adults as if they have the mental and emotional maturity to understand the consequences of their actions. As a society Americans feel that criminal conduct should be punished through incarceration; serving time seems to be the only acceptable form of punishment.  

The amount of time required to be served for certain crimes is disproportionate to the nature of the offenses. For example, white collar crimes are generally punished less severely than all other crimes even though the impact of the crime is felt by more people than a crime impacting just one victim. Drug crimes, especially simple marijuana possession, are punished more severely than sexual assault crimes, making no distinction between physical violence and drug addiction.

Two bills went into effect on January 1, 2019 specifically aimed at addressing some of the problems in the juvenile justice system. The first of those laws was Senate Bill §1391. This bill, now law, amends the Welfare and Institutions Code to eliminate the prosecution of 14 and 15-year-old children as adults. Effective January 1, 2019, criminal cases involving children under 15 years of age will remain in the juvenile court system. Children over 16, or individuals over 18 who committed a juvenile crime but eluded arrest until after they turned 18, or who commit a serious or violent felony can still be charged as adults should the prosecutor request it.

Prosecutors to Decline Charging Children Under 12 for Crimes

The second law, Senate Bill §439, also amends the Welfare and Institutions Code to eliminate the adjudication of crime, in both juvenile and adult court, for children younger than 12 years of age. Children accused of murder and forcible rape, however, will still face juvenile or adult charges, depending on the severity of the crime charged. A child under 12 will be released to his or her parents and be subject to supervision outside of the criminal justice system.

These reforms are an important step forward in thinking about crime and crime prevention. By offering social services rather than jail time to children accused of crimes, rehabilitation can be achieved and such children returned to society as contributing members.

Do Not Go it Alone

If your child has been arrested and charged with a crime in San Diego, contact a qualified San Diego Criminal Defense Attorney who can help mitigate penalties today and explain your legal rights and responsibilities. Available 24/7, the Boertje Law Firm represents clients at any stage of the criminal case and for any crime charged — violation, misdemeanor, or felony.   Continue reading

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For the last two weeks the owner of the New England Patriots football team has been the subject of many jokes and conjecture in regards to his sex life following his recent arrest and charge for solicitation of prostitutes in Jupiter, Florida. As many as 300 people are expected to be arrested in the latest law enforcement crackdown of sex trafficking in massage parlors in that region. Kraft faces two counts of soliciting another to commit prostitution, which are misdemeanor charges allegedly based on two separate visits to the Orchids of Asia Day Spa.

The massage parlor at the center of the Kraft investigation, the Orchids of Asia Day Spa, was shut down along with nine other massage parlor businesses in Florida. The massage parlors are accused of running a prostitution service out of their stores. These massage parlors are often located in strip malls and advertise half an hour to an hour massages for a fee. Instead of a massage, however, sexual acts are performed by the workers.

Women were also arrested during this crackdown. The women were identified as sex workers or victims of sex trafficking. The sex trafficking victims are new arrivals to the United States. They are recruited in their hometowns overseas or in the U.S. immediately after their arrival under false pretenses of a legitimate job. Once here, however, they are forced to become sex workers against their will.

Sex Trafficking in San Diego

The weekend before the Super Bowl, the FBI made splashy headlines around the nation when they announced the arrest of 139 people in the greater Atlanta Georgia area for soliciting sex from prostitutes. The Florida and Georgia stings may seem remote, but San Diego conducts such stings regularly. In January 2018, 29 people were arrested for soliciting sex during a sex trafficking sting operation here in California. The FBI lists San Diego as one of the 13 highest sex trafficking areas in the country.

Massage parlors are part of many sting operations because they are a common place at which these types of activities occur. An investigation published by WNBC San Diego in November of 2018 found that 243 massage parlors in San Diego offered sex acts to clients as a service. The practice is so rampant, that a subscription-based website was created to provide reviews and pricing of the services members received. Continue reading

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Domestic violence, according to The National Domestic Violence Hotline, is a pattern of behaviors used by one partner to maintain power and control over another partner in an intimate relationship. The behavior becomes criminal when one partner hits or strikes the other partner, known as battery, which is often part of the pattern of abusive behavior. Other words used to describe domestic violence include intimate partner violence, domestic abuse, or relationship abuse.  

Who is an Intimate Partner?

Domestic battery as opposed to battery is a crime against a close family member or among persons in an amorous relationship, regardless of sexual orientation. An intimate partner includes a current or former spouse, a fiancé, co-parent of your child, a person you are dating, or a person who lives with you.

Domestic Battery Under the California Law

To be convicted of domestic battery under California law, the prosecution must prove that the accused person inflicted unlawful force or violence upon an intimate partner. (California Penal Code §243(e)(1)). If that charge fails, the prosecutor may charge the accused person with assault or battery.

Penalties for Misdemeanor Domestic Battery

Individuals convicted, by a guilty plea or after a trial, can face up to $2,000 in fines, be sentenced to one year in county jail, and be required to complete year-long treatment program for batterers. Beginning on January 1, 2019, there is the additional penalty of taking away the right of the accused person to own a gun for life.

Misdemeanor Domestic Battery Conviction Triggers Gun Ownership Ban

Any person convicted of misdemeanor domestic battery in California after January 1, 2019, even if it is a first offense, loses his or her right to own a gun for life. The imposition of the lifetime ban on gun ownership for convicted persons became law as part of Assembly Bill §3129 and is now part of the Penal Code at §273.5

Help is Available for the Accused Person

The National Domestic Violence Hotline helps the accused person as well as the victim of intimate partner violence. Per the hotline, if you are questioning your own behavior at all, or if someone else has brought it to your attention, acknowledging it is a step in the right direction. Give us a call today at 1-800-799-SAFE (7233) or chat online with us to start the conversation. Continue reading

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This week a San Francisco free-speech group, the First Amendment Coalition, sued the California Attorney General and Justice Department over their refusal to disclose police misconduct records under the state’s new transparency laws. Last year the Senate passed a bill providing the public with greater access to police personnel files as well as greater access to video or audio from police shootings or deadly use of force encounters. Details surrounding both laws are described below.

Greater Access to Police Personnel Files

The California Penal Code was amended with Senate Bill §1421 to permit more access to police and prison personnel records. In the past, police and prison personnel records were not disclosed for confidentiality reasons even for litigation and public-records requests.

While police and prison personnel records are still confidential, they may be released in situations in which one or more of the following conditions apply.

  • When a gun is fired by police or prison personnel that results in death or great bodily injury;
  • A sustained finding that police or prison personnel sexually assaulted someone; or
  • A sustained finding that police or prison personnel were dishonest in a criminal case or in the investigation of another police or prison officer.

A sustained finding is a decision by investigational authorities in cases of police or prison personnel misconduct that finds fault in the conduct of the police or prison officer.

Greater Access to Video and Audio From Police Shootings

Assembly Bill §748 also amended the California Government Code and provides the public with greater access to video or audio from police shootings or deadly use of force incidents that result in death or great bodily injury.

The right to receive access to video and audio is not absolute. A police department or prison may deny disclosure or release of the video and audio recordings if the incident is under investigation and if would violate someone’s privacy rights. Assembly Bill §748 goes into effect on July 1, 2019.

Charged With a Misdemeanor or Felony Crime in California?

Most people in the criminal justice system are first-time offenders. For many accused people it may be the first and only criminal case they have in their lifetime. Understanding your rights and the steps involved to resolve a criminal case brings peace of mind during a turbulent and scary time for you and your loved ones.

Contact an experienced and knowledgeable San Diego Criminal Defense Attorney who can help mitigate penalties and explain your legal rights and responsibilities. Available 24/7, the Boertje Law Firm represents clients at any stage of the criminal case and for any crime charged. Continue reading