Articles Posted in Criminal Defense

Three teenage friends, two girls and one boy, regularly shared videos by group text message to each other on their mobile devices. Through the bond of their friendship, there was an unspoken assumption that whatever was shared among them would remain private. There was an element to their video sharing practice of trying to outdo each other with each video posted and shared. This assumption was put to the test when one sensitive video did not stay among them.

The 16-year-old maker and sender of the video made a sexually explicit video of herself and sent it to the other teens on the group chat chain. The male teen, 17 at the time, shared a copy of the video with his school resource officer from the county sheriff’s office. The other female teen, who was 16 at the time, shared the video with other students. Before long, the video was widely distributed throughout the school. The maker of the video remained home from school for 30 days unwilling to return to school because of the backlash she was experiencing from the other students.

The only person charged with a crime for this incident, in juvenile court, was the 16-year-old maker and sender of the video. Possession and distribution of child pornography is a crime in the teen’s jurisdiction, the State of Maryland. It is also a crime in California.

Self-produced child pornography is a touchy subject. While on the one hand, the teen in this case was immature and an argument can be made that she did not appreciate the consequences of making a sexually explicit video of herself, she consented to sharing the video with her friends because she made the post herself and released it to them. She did not, however, consent to its release to the entire student body. On the other hand, child pornography is the trade of videos and photographs which depict children engaging in sexual acts. Outside of the school, this video may be on someone else’s electronic device and as such, it is being used to exploit children. The only way to combat its use is by banning possession of it strictly, as would be the case in almost all U.S. states.   Continue reading

There is a great deal of information and misinformation about CBD in food and the legality of CBD in food. In 2018, California legalized recreational use of marijuana. Despite its legalization, many uses of marijuana are still illegal.

Consider the source: Is the article you are reading or video you are watching discussing the law in California?

If you answered ‘no’ to the question posed above, do not accept the use of legalized marijuana discussed in the article or video as true in California. While recreational use and possession of marijuana is legal in 10 states, including California and the western states of the country, use or possession of recreational marijuana is illegal, under federal law, in all 50 states. Moreover, in states where marijuana use and consumption are legal, there are many different laws about which use or possession is permissible. What is legal in Colorado will not be what is legal in California.   

Can I add CBD to my food?

According to Project CBD, cannabidiol (CBD) is a naturally occurring compound found in cannabis, a plant. It is just one of the hundreds of compounds unique to the plant. The other compound that receives a great deal of attention is tetrahydrocannabinol (THC) which is the ingredient in the plant that causes the high – making the user feel “stoned” or intoxicated.

Hemp CBD has become a nation-wide health craze. There are many positive health benefits to the use of CBD to alleviate aches and pains associated with debilitating chronic conditions like cancer, AIDS, severe chronic pain, and other ailments. California legalized the use of medical marijuana in 1996.

Buying food with CBD is illegal in California. Last summer, the California public health regulators published guidelines explicitly stating that they will not consider CBD to be an approved food additive or dietary supplement until federal or state regulators approve it. Thus, Californians cannot buy food that includes CBD as a food additive or dietary supplement. Continue reading

We are close to the one-and-a-half-year mark of the legalization of the use and possession of recreational marijuana in California. There is a tremendous amount of misinformation on what is the permissible use and possession of recreational marijuana. The following post will tackle some of these misconceptions.

Use and Possession of Marijuana is Only Legal in 10 states, Including California

When reading about legal marijuana, it is important to focus on the source. More importantly, the state the author is referencing in an article or video is a critical factor. Recreational marijuana is only legal in 10 states. They are California, Washington, Oregon, Nevada, Alaska, Colorado, Michigan, Maine, Vermont, and Massachusetts. Each state defines legal recreational marijuana use and possession differently. Use or possession of recreational marijuana is illegal, under federal law, in all 50 states.  

Legal Marijuana can Only be Transported in a Closed Container in the Trunk of a Car

Even though use and possession of recreational marijuana is legal in California, certain uses and types of possession remain illegal and will result in an arrest and charge if detected by police. For example, drivers can possess marijuana in their vehicles so long as it is in a container in the trunk. Even though the driver purchased marijuana legally and possesses a legalized amount, if it is in an open container, in a purse, in a glove-compartment, or on the back seat, an arrest will follow. This law is similar to the open container rule relating to alcohol possession in a car. You would not drive around with an open beer bottle; you cannot drive around with a rolled-up joint on your dashboard. Both types of possession of the legal substance, alcohol or marijuana, will result in a criminal conviction for illegal possession of marijuana or alcohol.

Public Consumption of Marijuana is Illegal in California

Additionally, public consumption of marijuana is illegal in California. While there may be businesses that are licensed for on-site marijuana consumption in California, these businesses may not serve alcohol or allow tobacco use on their premises. This means that bars and clubs cannot allow marijuana consumption on their premises because they serve alcohol. Continue reading

Many arrests are initiated by the victim of the alleged crime calling the police. A victim can also go to the police precinct and file a criminal complaint against the perpetrator in person. Whether in person or on the phone, the police open an investigation as soon as the victim starts talking.

The police will listen to the victim’s complaint and interview him or her for details about the event. Evidence of the alleged crime is collected and identifying characteristics of the potential defendant is gathered. At some point, the details from the investigation are written in a statement, that after being reviewed by the victim, is sworn to and signed. This statement forms the basis of the criminal complaint.

Sometimes, however, these police reports are not entirely truthful. When a victim lies and files a criminal complaint against someone, it is a crime in California. With the help of artificial intelligence, the police are actively cracking down on these fake police reports.

Artificial Intelligence in Criminal Investigations

Since the 2000s, law enforcement and artificial intelligence have been working closely to develop science and technological tools that would enable law enforcement to do their job better. Take, for example, the use of DNA collected at crime scenes in rape investigations. When used correctly, unique DNA markers can be isolated and used to identify the suspect and eliminate with almost 100% certainty all other potential suspects.

The next wave of tools to be developed will assist law enforcement with specific criminal investigations. Take, for example, robbery investigations. In California, robbery is a felony with a prison sentence of over a year in state prison. A robbery charge means a suspect took personal property in possession of another person from his or her immediate presence, against his or her will, by using force or fear. California Penal Code Section 211.

When the police are called to investigate the robbery, the victim will be asked questions to elicit a criminal complaint. What happened, how did it happen, was the victim hurt, what was taken, and who did it, are basic questions the victim will be asked. The victim will also be asked for a written statement of the robbery and the events and details described.

VeriPol can Detect Lies in Robbery Reports

VeriPol is software used in robbery investigations to identify false robbery reports. It was developed by computer scientists in Spain and used by the National Police to identify false robbery reports. The software analyzes the victim’s written statement to identify false reports. 83% of the software-identified fake reports were closed after the victim faced further questioning and resulted in no robbery charges being filed.

By analyzing the fake reports, conclusions were drawn to make robbery investigations in the future better. False robbery reports tend to be shorter, focused on the stolen property rather than the robbery itself, few details were provided about the attacker or robbery, and there was an absence of witnesses. This is just one example of how artificial intelligence is transforming criminal investigations and being used by law enforcement to go after the correct defendants. Continue reading

A Whittier man, Dealio Lockhart, was recently sentenced to 22 years and four months in state prison for his role in the 2016 street race that caused a multi-vehicle pileup on the Golden State Freeway in Commerce. Three people died and four were seriously injured. An investigation by the City Prosecutor determined that Lockhart was driving 127 miles per hour just two and a half seconds before the fatal impact. The three dead included a UPS driver whose truck immediately burst into flames, burning him to death. Two young adults returning from a trip to Disneyland were also killed in the crash.

Illegal Street Racing is Dangerous

NBC News reported that a group from Orange County known as CDK are car enthusiasts that use parking lots and surrounding streets to perform sideshows or street racing. In mid-March the San Diego Police Department responded in full force to an announcement by the group, which is comprised of members of the Car Show Addicts, Dos Madres, and King Fresh car clubs, that they were going to meet in San Diego.

Strong Street Racing Culture

Southern California has long attracted car enthusiasts. The City of San Diego and San Diego County in particular, have been battling illegal street racing for decades. One program that achieved great success was launched in 1998 and was called www.racelegal.com. The goal of the program was to directly address illegal street racing activity and its accompanying public menace of death and injury by providing a safe and controlled racing environment at the SDUCC Stadium.

At the height of the program in 2003, there was a 99% reduction in organized illegal street racing activity in San Diego; and a 79% improvement in illegal street racing involved in crash deaths from bystanders or drivers. The nonprofit however, ran out of money and ceased operations in March. The group is trying to restart with new funding but faces opposition from the city because the SDUCC stadium site is being sold to San Diego State University.

Penalties for Illegal Street Racing Conviction

Individuals convicted of illegal street racing in San Diego face penalties that may include three months in jail, $1000 in fines, and having their vehicle impounded for 30 days. Continue reading

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

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

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

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

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