fourth amendment

June 23, 2023

When Police Mistakes Impact Your Case

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 13, 2019

No-Knock Raids in San Diego

by David M. Boertje

There are restrictions issued to law enforcement officers on when and how they can execute a California search warrant. Nonetheless, mistakes and errors can and do occur during the execution of warrants. Unless a search is authorized by you, incident to a lawful arrest, or some other exception provided by law, a valid search warrant must be obtained before the search is conducted. Any violation of these rules may result in a reduction in your criminal charges, dismissal of the evidence unlawfully obtained, and even dismissal of your criminal charges.

A search warrant allows the police to search you, your home, your car, and your place of business. The police can even search an area suspected of containing evidence of illegal activity so long as it is specified in the search warrant.

Storming into homes with guns, protective armor, lights, dogs, and law enforcement personnel, usually during the early dawn hours, catches everyone in the home off guard and leads to avoidable deaths, unnecessary injuries, and costly legal settlements with survivors.

In a December no-knock drug raid in Houston, two suspects were shot and killed and five police officers were injured. Even the family pet was shot in the crossfire. The pet survived, but both of his owners died. The results of the raid were so bad that the Houston Police Department no longer conducts no-knock raids during low-level criminal investigations of a nonviolent nature.

No-Knock Warrants

A no-knock warrant is issued by a judge and gives police permission to enter a property by force without prior notification to its occupants or requesting their permission. These types of warrants are often precipitated by a tip from an informant. The informant is the person who cooperates with the police and provides information about the people or companies under criminal investigation. The use of informants is common in criminal investigations, especially those involving illegal drug sales and distribution. So long as the informant’s information is reliable, it will satisfy a low threshold to support a finding of probable cause to issue the search warrant. The judge may inquire about the identity of the informant, examine past instances when the informant assisted law enforcement and the results of such cooperation. The police will also be called in to testify and corroborate the informant’s testimony. Continue reading

October 26, 2016

Governor Jerry Brown Signs New Criminal Conviction Requirement for Civil Forfeiture

by David M. Boertje

This September, the notoriously liberal state of California just made it harder for cops to take cash from innocent people. Governor Jerry Brown just signed into law SB 443, which limits the amount of civil forfeiture that is allowed to take place in the state by police and law enforcement agencies.

Civil asset forfeiture occurs when the government (ie. police) literally seizes someone’s property, without compensating them, based on the suspicion that the property was used in connection with criminal activity. For example, you can be stopped during a routine traffic stop, and police who suspect you of drug dealing may take cash that was in your car based on that premise. They do not need a warrant or criminal conviction in order to do so.

It is well known that corrupt police agencies throughout California have been using civil asset forfeiture as an excuse to pad their budgets. An investigation by the Washington Post identified almost $10,000 in cash seizures that took place without any warrants or indictments.

The Lay of the Land

Compared to other states, California was already more protective than others. The state already required a criminal conviction before real estate, vehicles, boats and cash under the value of $25,000 could be forfeited over to the government. The standard of proof in the civil forfeiture proceeding has always been “beyond a reasonable doubt,” meaning the state had to establish clear and convincing evidence that the property was connected to illegal activity.

However, California’s state requirements are different from those under federal law. Under a federal forfeiture, state, local, and federal law enforcement agencies may collaborate (called “equitable sharing”) and forfeit seized property under federal law, even if that would preempt California’s more stringent protections for property owners. This means that traditionally, federal agency such as ICE or the DEA just has to get involved in order for the forfeiture to become federal. Once state departments transfer the seized assets to a federal agencies, they get back 80% of those proceeds.

SB 443 changed that. Starting in 2017, police will first need to obtain any criminal conviction before they could receive equitable-sharing payments from forfeited real estate, vehicles, boats, and cash worth under $40,000. This is intended to prohibit police departments from sidestepping the state conviction requirements by transferring the money to federal agencies. In addition, the law also increased the threshold for forfeiting cash with criminal conviction to $40,000. Continue reading

June 8, 2016

FBI Hid Surveillance Devices Around Alameda County Courthouse

by David M. Boertje

It has been reported that once again the F.B.I. seems to be hiding planted microphones to spy on American citizens. Federal agents have planted hidden microphones and conducted secret video surveillance at Alameda County’s Rene C. Davidson Courthouse in northern California for ten months. They did not have a search warrant as required by the fourth amendment to be able to do so.

The FBI’s surveillance operation was part of an investigation into alleged bid rigging scheme at foreclosed property auctions where thousands of houses and apartment buildings were sold by banks. Defense attorneys for some of those accused of the fraud say these surveillance tactics violate their clients’ constitutional rights, along with anyone else’s whose conversations might have been recorded. They claim that speaking in public does not mean one does not have an expectation of privacy. Private conversations, especially in or near courtrooms, happen routinely amongst citizens and attorneys alike.

The FBI planted microphones in bushes, at a bus stop, on a pole, and inside vehicles near the auction site. A similar thing happened in San Mateo last year. Facing these allegatiosn of constitutional violations, government prosecutors in San Mateo had moved to withdraw the recordings as evidence at trial.

February 26, 2016

San Diego Court Waiver Allows Police to Search Cellphones Without a Warrant

by David M. Boertje

In response to the passing and enactment of SB 178 (the Electronic Communications Privacy Act) for the new year, San Diego Superior Court judges have started using waiver days after the new state law took effect. SB 178 would require police and probation officers to get a warrant signed by a judge before searching through a suspect’s electronic communications, cell phones, emails, etc.

To the surprise of many criminal defense lawyers in the area, their clients were being asked to sign a newly drafted waiver which would allow police to search cell phones, computers, and other types of electronics without first obtaining a warrant. The one-page waiver spells out the types of items that would be subject to search: call logs, emails, text messages, and social media accounts accessed through a variety of devices — everything from an iPhone to an Xbox. Perhaps more concerning is the fact that some attorneys claim their clients were being required to sign these waivers at their arraignments.

Criminal defendants who have signed the waiver have essentially signed away their rights. By the terms of the agreement, they have agreed to disclose any and all passwords used to access those devices or accounts, including fingerprint that unlocks an electronic device. Do not sign these types of waivers if you are asked. It is recommended you consult with a criminal defense attorney right away.