San Diego Criminal Lawyers Blog

July 21, 2023

When Drones Respond to 911 Calls

It can take 30 seconds or less to get a response to your 911 call, but it will not be a uniformed officer that shows up first thing. Instead, police in some California cities and across the country are utilizing drones as first responders that can make it to the scene before a human body can get there.

Advantages of Drones

Drones have been used as first responders since they got their start in Chula Vista in 2018, and their use can be helpful in a number of circumstances. They are equipped with powerful cameras that can scan an area for blocks, or, if necessary, they have the capacity to zoom in on a specific location or to read an address or license plate. They can witness and record crimes as they occur, providing law enforcement with details and data that can inform officer response to critical situations.

Examples of Drone Benefits

Law enforcement has been struggling with a crisis of confidence from the public in recent years, so whatever they can do to improve their image is highly valued. Specific issues that have been addressed through the use of drones here in California recently include:

They clarified that the objects being carried by suspects were not guns, giving officers the confidence to approach with less aggression and use of force;
They caught a robbery on camera, clearly taping the suspects, enabling a quick apprehension and conviction.
They have been used to communicate in hostage situations.

Privacy Issues

Of course, no new program comes without some caveats. There are those who have serious concerns about privacy rights and the ethical use of footage obtained by drones. Presumably, there will be more footage for agencies to manage, and there are questions about who gets access to that footage, how long it will be retained, and whether scenes showing positive police action will be shared publicly, while footage of police misconduct might be buried. These matters are addressed differently by each jurisdiction. While departments generally do not allow recordings of places where people reasonably expect privacy, such as in neighborhood backyards, they make an exception when there is an emergency or when they have a warrant. As to who gets to see the videos, departments across the state claim it cannot be released under current records laws, although that is being challenged in court. And while there is no disputing that drones can aid police work in multiple circumstances, the government will also have access to terabytes of information on citizen movements that are unrelated to criminal activity, and, to date, the courts have labeled that an invasion of privacy that is objectionable. In fact, constant aerial surveillance in Baltimore was ruled a breach of 4th Amendment search and seizure rights in 2021, although that case was unlike California’s use of drones, in that here drones are deployed only in response to 911 calls, not to conduct general surveillance. Continue reading

July 14, 2023

The Bar is Raised for Stalking Convictions by U.S. Supreme Court

by David M. Boertje

Billy Raymond Counterman sent hundreds of thousands of Facebook messages years to local country singer Coles Whalen over the course of about five years. Whalen was finally unnerved enough to file stalking charges against Counterman. The mountains of comments left Whalen feeling frightened enough that she ultimately felt she had to leave her Colorado home in order to keep herself and her family safe. Counterman was eventually convicted of stalking and sent to prison, which is something that a 7-2 majority of Supreme Court Justices found to be a miscarriage of justice.

The Messages Counterman Left

What was so disturbing about Counterman’s Facebook messaging? The comments ranged from wholly innocuous to a bit disturbing and, later, to plainly mean. Friendly (but maybe a little unusual and questionable) were pledges from Counterman to bring Whalen fresh garden tomatoes for her to enjoy, as well as comments about how stunning she looked during a recent performance he had attended. Ultimately that turned into expletive-filled outbursts accusing Whalen of being no good for human relations, and ending with, “Die, don’t need you.”

What Constitutes a Threat?

Whalen’s attorney contended that when the volume, frequency, and tone of the messages she received were viewed in total, it became clear that the comments were a precursor to violence. The best way to ensure Whalen’s safety would be to put Counterman for a good, long time. That argument worked in court. Even so, Whalen’s sense of security was darkened, affecting family life, her ability to perform, and her overall sense of contentment.

On the other hand, Counterman’s attorney argued that his client had no intention of harming Whalen, and he most certainly did not comprehend the negative implications of his messages because he suffered from mental illness. His interpretation of the messages was that they were harmless, and therefore silencing him would be an attack on his First Amendment Right to free speech. The law required intent, reasoned the attorney, and should not require one to foresee the reaction of others prior to sending a message.

One D.C.-based attorney, John Elwood, summed it up by saying that if someone’s words are not intended as threats, there is no intent to harm, and therefore a conviction cannot be warranted. The Supreme Court agreed.

California’s Stalking Law

Under California law, stalking becomes a criminal offense once the threats or harassment gets to the point that the victim feels their safety is at risk. That leaves many wondering if the recent Supreme Court decision will have an impact on stalking charges here in the state, as they did in Colorado, or if the impact will be only on federal stalking charges.

Stalking Penalties

An initial charge of stalking could lead to a year in jail and a fine of $1,000. If felony stalking is charged based on a threat of significant harm or death, a defendant could face up to three years behind bars and $10,000 in fines. If the charges are part of a three strikes conviction, it jumps to a mandatory 25-year prison sentence. Continue reading

July 7, 2023

Criminal Justice Reforms on the Horizon

by David M. Boertje

Who leads the world in the number of incarcerated individuals? The United States. There are over two million people behind bars in this country and another three million under some other form of control (like probation or parole). Add to these numbers up to 100 million people who are living with a criminal record that impacts their opportunities in a negative way every single day. Without question, it is well past time to examine what is not working and make some changes. States from coast to coast are doing just that.

Drug Policies

People facing non-violent, low-level drug charges in Kentucky can now have their cases put on hold while they undertake treatment and take advantage of vocational services. Meanwhile, states across the country are decriminalizing or legalizing cannabis use, and Colorado decriminalized psilocybin mushroom use.

Revision of Mandatory Minimums

Eliminating or reducing mandatory minimum sentences has been on the docket in Washington, D.C. Maximum sentencing requirements of 45 years have been reduced, and rules related to the reconsideration of lengthy sentences have been adjusted to favor defendants.

Changes to Probation/Parole

Individuals in Florida who are on probation can now get education or workforce credits in order to reduce the length of their probation. They can earn:

60 days off of probation for every educational activity completed;
30 days off of probation for every six-month period that they were employed for at least 30 hours/week.

The End of Involuntary Servitude

Vermont, Oregon, Tennessee, and Alabama all amended their state constitutions to remove any language that allowed for involuntary servitude in their prisons.

Voting Expansions

Individuals serving jail sentences in Washington State and in Massachusetts are now guaranteed the right to vote. There are now funded programs designed to ensure detainees are aware of their rights and are registered to vote.

Youth Programs

The age of detention has been raised to 12 in Indiana, and improvements in data collection and youth diversion programs have been implemented.

Juvenile courts in Maryland will not have jurisdiction over children until age 13, and juveniles who commit misdemeanors or who sustain technical violations of probation can no longer be placed in secure facilities (with rare exceptions). Additionally, diversion programs have been offered to young people who have committed nonviolent felonies, even without the consent of prosecutors and/or victims.

Tennessee confronted its mandatory 51-year sentencing requirement for certain youth offenders, substituting it with the opportunity for parole after 25 years served.

Re-entry Assistance

Providing help with social relationships and collaborating services with community-based programs in Nevada is expected to help prepare inmates for their eventual release. Support for housing, employment, education, and health services is expected to improve recidivism rates.

Racial Disparities

Under the Racial Justice Act for All here in California, anyone who was convicted of a crime before 2021 may seek relief if they can prove a component of racial bias in their conviction. (Case challenges were already allowed for convictions that occurred during or after 2021). Continue reading

June 30, 2023

Finding a Needle in a Haystack: Genealogy Testing in the Criminal Justice System

by David M. Boertje

The Golden State Killer had raped and murdered for ten years and hidden in plain sight for decades before he was finally caught, years after terrorizing Californians. His crime spree involved nearly 90 victims, and because he was a former police officer, he knew how to evade detection and capture for decades. What finally led to his apprehension? It all came down to genetic genealogy.

What is Genetic Genealogy?

Millions of people worldwide have participated in genetic DNA testing in the search for unknown relatives or as they look for clues to diseases that are hereditary. Most of them probably never thought those bits of DNA would one day be used to track down perpetrators of criminal activity, but that is exactly what is happening with the technology these days. Here is how it works, in a nutshell.

A criminal leaves DNA evidence at a crime scene.
Investigators check FBI and other databases, and if they cannot find a match, they turn to genealogy websites.
Investigators fabricate a profile for a genealogy website using the DNA they have recovered from a crime scene, hoping to score a match.
When a near-match is discovered, detectives identify relatives—including those who may never have used the websites– using the newfound information.
Police have multiple leads at this point and start following the trails in hopes that one of them will lead to a suspect.

Is That Ethical?

Yes, it is a good thing that someone like the Golden State Killer was finally made to pay for his crimes. But for someone who is considered participating in genetic DNA testing or who has already done so, it may be a little concerning that law enforcement can now access the most minuscule pieces of your DNA in order to search for criminals. Do people understand that when they submit their DNA, it may be subject to forensic analysis by law enforcement? Even if it is spelled out in the company’s terms of service, do people read that and comprehend the potential consequences? Whatever happened to privacy, anyway? In the case of the Golden State Killer, police would have had to falsely claim that the DNA they uploaded to the website was authorized, was their own, or was from someone for whom they had legal guardianship. That could bring questions as to whether or not the evidence was legally obtained.

DNA Questions in General

Setting aside the question of whether genealogy testing should be accessed by police, no discussion of DNA testing is complete without acknowledging that the misuse/overinterpretation of such evidence is a real risk in the criminal justice system. Clearly, the fact that DNA was located at a crime scene does not prove that the person was there during the commission of the crime, let alone guilty of it. And that does not begin to address the fact that DNA evidence could be compromised if not properly collected and stored. Continue reading

June 23, 2023

When Police Mistakes Impact Your Case

by David M. Boertje

If you have been charged with a crime, you could be facing some pretty unpleasant penalties. That is why having an experienced and aggressive local criminal defense attorney working on your behalf is so essential. At Boertje & Associates, our defense attorneys are committed to working diligently for clients, starting with taking a look at potential errors made by law enforcement. There are plenty of places where deviations from protocol and legal procedure could lead to a boost in your defense. Just a few include the following:

Improper Stop, Search, or Seizure

Police cannot just stop and search anyone they would like based on your race, suspicious clothing, or other “gut feelings” without following certain rules:

They have to have a reasonable suspicion that you have been involved in criminal activity in order to stop you in the first place;
A search or arrest cannot legally occur without probable cause, a warrant (which requires probable cause to obtain), or your consent.

More About Search Warrants

Police seek warrants from judges or magistrates based on probable cause that they will find evidence of criminal activity. They have to submit their request with fairly specific details as to what they expect to find and then can seize only items related to the suspected activity in question. For example, vehicles discovered in a garage might be seized if the warrant relates to stolen cars. If during the search cocaine is found, it can only be seized if it was found during a reasonable search for the vehicles listed in the warrant. In other words, if the cocaine was found in plain view on a counter in the garage during the search for stolen cars, it’s fair game. If it is found, however, in a jewelry box in the bedroom, it is not because a search for a stolen car would not reasonably include looking in a bedroom jewelry box.

Failing to Secure a Crime Scene

When police neglect to properly secure a crime scene, it opens any findings up to real questions. Was there tampering with any evidence? Did evidence become smudged or damaged inadvertently? Did items enter the scene that were not there originally

Neglecting Chain of Custody Requirements

When evidence is collected, it must be carefully secured, stored, and documented in order to ensure the integrity of the material. Failure to adhere to the chain of custody with care could result in a judge’s ruling that the evidence must be excluded. Continue reading

June 16, 2023

Behind Bars: Book Bans

by David M. Boertje

When author Silja Talvi approached Lou Johnson about sharing her experiences behind bars, Johnson was happy to participate. Talvi, an investigative journalist by profession, was writing a book about incarcerated women, and wanted them to tell their stories in order to bring the abuse and trauma that was so common to women in the prison system out of the shadows. Johnson could not wait to read a copy of the final book and see her own story in black and white. She had described the degradation and anguish of having been denied meals after breaking basic rules like talking in line, being denied adequate medical care, and being required to perform hideous jobs in prison. She ordered Talvi’s book as soon as it was on the market.

Censorship Abounds

As it turns out, Johnson never did read her own account, not to mention the stories that hundreds of other women contributed, because the book was censored due to a passage that was determined to be harmful to the rehabilitation of offenders because it encouraged deviant sexual behavior. An examination of the prison system indicates that it was one of hundreds—perhaps even thousands of works that have been banned for multiple reasons, including:

Text that could encourage sexually deviant actions;
Directions to make drugs, weapons, or bombs;
Content relating to prison escapes;
Material that might provoke strikes, riots, or gang violence;
Sexually explicit material.

Like many book bans in schools and libraries across the country, sometimes a book is targeted due to a single passage taken out of context, resulting in the removal of an entire book from an approved list. Materials that address topics that are particularly relevant to many behind bars become off-limits, such as those dealing with issues of race, poverty, and gender identity. Even books written by prominent authors and Pulitzer Prize winners have been excluded from prison libraries, including books by Sinclair Lewis, Norman Mailer, John Updike, and Alice Walker. Books about civil rights, critical of the prison system, or addressing crime are frequently out of reach for prisoners, meaning Black and LGBTQ authors are winnowed out. Prohibitions even exist on books about tattoos, maps, survival guides, computer programming, and magazines that contain undesirable advertising.

California Bans

Some states allow only books sent by the publisher. Others forbid family and friends from sending reading materials to inmates. Some states allow particular bookstores to send books, while others allow approved vendors only. The explanation often given for this is that prison security is simply trying to control contraband from coming into its walls through books. Just how much in the way of illegal substances is coming from books is never actually defined, nor is the impact of book bans on controlling the input of these substances clear. And because there is very little transparency with such policies, details of how and when books are banned is often difficult to fully understand. What we do know is that in California, the bans are inconsistent because they are often at the discretion of a particular entity.

Boertje & Associates Continue reading

June 9, 2023

Preparing Your Criminal Defense

by David M. Boertje

Criminal charges are serious business, requiring a serious response. At the Law Offices of David M. Boertje, a skilled defense attorney is committed to fighting for your best interests. Part of that means we strive to keep clients informed every step of the way. Although every case is different, here is generally what you can expect:

A straightforward, no-nonsense appraisal of your situation: We will assess the facts in hand and give you the best advice we can based on California law.
100% effort on your behalf: That means responding to concerns, tracking down leads, and following through with commitments.

Preparing for a Trial

We always fight for the best possible outcomes. From beginning to end, we strive to achieve the results that have the least harmful impacts. While getting charges dropped or reduced is often ideal, sometimes a plea bargain to reduce sentencing, commuting sentencing, or an attempt to participate in alternative programming is a good outcome. If the case goes to trial, a vigorous effort toward a verdict of innocence is always the goal. You can count on a strong courtroom presence through preparation and critical thinking, and the effective development of a counternarrative to the prosecution’s story. All in all, we have a no-holds-barred approach:

Understanding the approach of the particular judge overseeing the trial;
Respecting the system and working effectively within it;
Organizing materials, plans, and strategies in a way that makes sense;
Communicating effectively with all parties;
Getting the facts by interviewing witnesses and clients;
Finding expert witnesses to address evidence;
Conducting extensive research to develop a theory of the case and find precedents to support our theory;
Filing motions on behalf of the client in order to strengthen our position;
Participating in discovery sharing according to the law;
Preparing a believable story to counter what the prosecution presents;
Subpoenaing witnesses, documents, and other evidence to support our case;
Crafting a strong, sincere opening argument to present to the jury;
Preparing you and other witnesses to testify on your behalf;
Acquiring photos, records, and other documents relevant to the case;
Producing exhibits related to the incident in question;
Considering specific objectives during jury selection;
Challenging testimony and evidence provided by the prosecution;
Anticipating the potential moves of the prosecution and being prepared for them;
Thinking on our feet and addressing issues as they arise;
Delivering strong, forceful closing arguments;
Submitting jury instructions to the judge;
Keeping accurate records in the event an appeal is appropriate.

June 2, 2023

What to Expect as Your Criminal Case Moves Forward

by David M. Boertje

If you have been charged with criminal activity, the police and the district attorney have concluded that you are the most likely suspect connected to a crime. Your arrest has you frightened and worried about your future. What is next for you?

The Arrest

Unless they caught you in the act, they have likely already collected evidence against you, including witness statements, physical evidence, photos, and more. A warrant that has been approved by the prosecutor says they have probable cause to believe you are guilty, and that gives them the right to put you behind bars until you are arraigned.

The Arraignment

Whether you have been charged with a misdemeanor or a felony, this will be the first time you appear in court on the charges. There, you are formally informed of the charges and told of your rights according to the constitution, such as the right to a trial before a jury of your peers, the fact that you are presumed innocent until proven otherwise, and so forth. You are given the opportunity to plead guilty, not guilty, or no contest. Bail and other conditions are decided.

The Pretrial Proceedings

Before the trial even starts, there may be motions by either side for the judge to make decisions related to the trial. Perhaps the defense will ask the judge to exclude certain evidence or will ask the judge to consider reasons that they believe you should not have to stand trial. Sometimes a plea deal is offered that the judge will have to weigh in on.

The Trial

If the case goes to trial (meaning charges were not dropped or a plea deal did not work out), the prosecutor has the burden of proving your guilt beyond a reasonable doubt. The trial can be held before the judge alone or before a jury. If you are found to be not guilty, you are free and clear and cannot be retried on the same charges. If the final verdict is guilty, a new date will be set for sentencing.

Pre-Sentencing Report

If found guilty, the probation department is tasked with putting together a final sentencing report detailing the crime, your criminal history, the victim’s statements, and a sentencing recommendation.

Sentencing

The judge approves the final sentencing based on guidelines in California law. Continue reading

May 26, 2023

Elder Fraud: When Seniors are Targeted

by David M. Boertje

$1.7 billion: That is how much money seniors aged 60+ lost in scams last year. What is behind the surge in fraudulent cons targeting senior citizens, and how can they protect themselves better? On the other side of the question, what should someone charged with elder fraud do?

The What and the Why

What, exactly, is elder fraud? It is any kind of scam that exploits older people in an attempt to get a hold of their money. It can involve promises of goods and services, cons to get them to help someone in need, identity theft, and more. The elderly are especially delicious targets for unscrupulous scammers for a number of reasons:

They are more trusting in general, especially in the wake of promises from those who assert they are working in the senior’s best interests;
They frequently have large savings accounts or own items of value;
Some have cognitive issues that interfere with their judgment;
Many are afraid to report crimes after the fact, worried they’ll be viewed as foolish or incompetent.
They are less proficient with technology, generally speaking.

Common Scams

There are a number of popular scams out there; here are just a few to watch out for:

Grandparent Scam: A caller claims to be a grandchild in trouble and asks for money to help them out of a pickle.
Government Worker Imposter Scams: Callers claim to be working for the IRS or some other government agency and are verifying (stealing) personal information.
Fake Investments: Callers claim to have a fabulous investment opportunity, only to disappear with the money. It could be a false charity, a Ponzi scheme, or any number of scams promising returns that seem too good to be true (and are)!
Tech Support Scams: Computer screens scream virus attacks, only to get personal information and/or remote access to one’s computer.
Sweepstakes and Lottery Scams: After claiming the elder has won a huge prize, scammers get their hands on banking information in order to transfer winnings. Surprise—fraudsters clear out accounts this way.
Love Scams: Pretending to be a great catch who is totally devoted, this scammer gains the affection and confidence of prey and ultimately “borrows” money.
Funeral Scams: Fraudsters find out where funerals are being held and show up, claiming the deceased owes them money, which the family is now responsible for.

Protecting Seniors from Scams

There is no sure-fire way to protect oneself from scammers, but there are ways to minimize the risk:

Be suspicious of anyone who wants money or personal information.
Purchase antivirus software.
Never give money to someone you do not know.
Refrain from making impulsive decisions when you are not 100% sure who you are dealing with.
If you are suspicious, check the facts by looking up the number and making a call to the real phone number of the agency.
Have accounts monitored.
Keep lines of communication open with trusted family and friends.

May 18, 2023

Blood Spatter Analysis: Is it Reliable?

by David M. Boertje

Investigators look at the clues left at the scene of a crime in order to reconstruct the event so they can understand what happened there. This is especially important when it comes to violent crimes, where evidence often points to suspects. When crimes involve a lot of blood, expert analysis of blood spatter patterns is used to draw conclusions as to the types of weapons, the sequence of events that occurred, and exactly how and why the blood wound up the way it did.

The History of BPA

This story begins in the basement of a New York home decades ago, where Herbert MacDonell put his own blood in a medicine dropper and dropped it onto a mirror in order to analyze the patterns that formed. A similar courtroom demonstration fascinated many, and blood spatter analysis was born. Since that time, conclusions have become generalized over a variety of surfaces, and courts across the country developed confidence in BPA analysis. However, in 2009 the National Academy of Sciences found that expert analysis was only a subjective conclusion, not a scientific one and that the reliability of blood spatter analysis was questionable. The belief that bloodstains can tell the facts behind a crime is no more than wishful thinking—and misguided at that.

What Do Analysts Claim?

The examination of the location, shapes, and patterns of blood found at a crime scene is all part of bloodstain pattern analysis (BPA). Analysts believe they can draw conclusions about what they see about the following:

The way in which the wounds were caused;
Which direction wounds came from;
Where the blood came from;
The locations of both the perpetrator(s) and victims(s) and whether the body was moved after the wounds occurred;
Whether there was one or more perpetrators;
How well witness statements match up with the evidence collected at the scene;
Particulars as to what happened and importantly, what did not.

How Reliable is BPA?

The fact of the matter is that the error rate for conclusions based on BPA evidence is higher than you might hope. As much as prosecutors may want to rely on the analysis of their forensic “experts” when it comes to blood spatter evidence, the potential for mistakes is a serious issue. One study reported by the National Institute of Justice found that 11% of BPA conclusions turned out to be erroneous. Those odds are horrible: more than one case of BPA analysis will draw incorrect conclusions out of every 10 cases analyzed. Equally disconcerting is the fact that when any two analysts’ conclusions were compared, opinions did not agree in at least 8% of cases. Wouldn’t it be possible, then, to find an analyst to support any number of conclusions relative to a single crime scene? Continue reading