Part 3: Conspiracies | Elements of the crime and Overt Act definition from U.S. v. Rabinowich

A conspiracy, having for its object the commission of an offense denounced by the Bankruptcy Act, is not, in itself, an offense arising under that act within the meaning of § 29a thereof, and the one-year period of limitation prescribed by that section does not apply. We cannot agree that there is anything unreasonable or … Read morePart 3: Conspiracies | Elements of the crime and Overt Act definition from U.S. v. Rabinowich

Can California and Nevada robbery REALLY NOT be a crime of violence under federal law?

It is undisputed that §4B1.2(a)(2) (https://guidelines.ussc.gov/gl/%C2%A74B1.2) lists robbery as one of the possible predicated offenses, but the analysis does not end there. To determine whether a prior conviction qualifies as a crime of violence, the Court must use the categorical approach outlined in Taylor v. United States, 495 U.S. 575 (1990). First, the Court needs … Read moreCan California and Nevada robbery REALLY NOT be a crime of violence under federal law?

San Diego Federal Court closure | Coronavirus (Covid-19) | Update for clients and public 3/17/2020.

The District Court for the Southern District of California (Federal Court in San Diego and El Centro) issued a new order addressing concerns around the Coronavirus (Covid-19). The Court Order is linked below. All jury trials in civil and criminal cases in the Southern District of California are continued until April 16, 2020. Except as … Read moreSan Diego Federal Court closure | Coronavirus (Covid-19) | Update for clients and public 3/17/2020.

Can you get pulled over for flipping off a cop? | CRUISE-GULYAS v. MINARD

Fits of rudeness or lack of gratitude may violate the Golden Rule. But that doesn’t make them illegal or for that matter punishable or for that matter grounds for a seizure.

Minard, a police officer in the city of Taylor, Michigan, stopped Cruise-Gulyas in June 2017 for speeding. But he decided to show her leniency and wrote her a ticket for a non-moving violation. As she drove away, Cruise-Gulyas repaid Minard’s kindness by raising her middle finger at him. Minard pulled Cruise-Gulyas over a second time, less than 100 yards from where the initial stop occurred, and amended the ticket to a speeding violation.

Fourth Amendment. Under the facts set forth in the complaint, Minard violated Cruise-Gulyas’s right to be free from an unreasonable seizure by stopping her a second time. All agree that Minard seized Cruise-Gulyas within the meaning of the Fourth Amendment when he pulled her over the second time. Whren v. United States, 517 U.S. 806, 809–10 (1996). To justify that stop, Minard needed probable cause that Cruise-Gulyas had committed a civil traffic violation, id. at 810, or reasonable suspicion that she had committed a crime, United States v. Arvizu, 534 U.S. 266, 273 (2002). He could not rely on the driving infraction to satisfy that requirement. Any authority to seize her in connection with that infraction ended when the first stop concluded. Rodriguez v. United States, 135 S. Ct. 1609,1614 (2015).

First Amendment. Cruise-Gulyas also alleges that Minard violated her free speech rights by stopping her the second time in retaliation for her expressive, if vulgar, gesture. To succeed, she must show that (1) she engaged in protected conduct, (2) Minard took an adverse action against her that would deter an ordinary person from continuing to engage in that conduct, and (3) her protected conduct motivated Minard at least in part. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc).

In his reply brief, Minard analogizes his case to a prosecutor who might reasonably think he could take a plea deal off the table if a defendant behaved offensively or a judge who might reasonably think that she could increase a defendant’s sentence if the defendant raised his middle finger at her right after she read her sentence from the bench. Judges, it is true, have wide latitude to consider expressive conduct during sentencing. See 18 U.S.C. § 3661; United States v. White Twin, 682 F.3d 773, 778–79 (8th Cir. 2012). But we need not wade through those complicated questions now because these facts differ materially. As alleged, the first stop had ended, a constitutionally significant event, before the officer initiated the second, unjustified stop. The Supreme Court has said that any justification for the first stop ceases when that stop ends. Rodriguez, 135 S. Ct. at 1614. These facts more closely resemble a prosecutor who tries to revoke a defendant’s deal a few days after everyone has agreed to it or a judge who hauls the defendant back into court a week or two after imposing a sentence based on the defendant’s after-the-fact speech. Those examples seem more problematic and more in keeping with today’s decision. Minard, in short, clearly had no proper basis for seizing Cruise-Gulyas a second time.

Full Opinion at http://www.opn.ca6.uscourts.gov/opinions.pdf/19a0043p-06.pdf

DEBRA LEE CRUISE-GULYAS v. MATTHEW WAYNE MINARD

Anton Vialtsin, Esq.
LAWSTACHE™ LAW FIRM | Criminal Defense and Business Law
https://lawstache.com
https://russiansandiegoattorney.com
185 West F Street Suite 100-D
San Diego, CA 92101
(619) 357-6677

Based in San Diego, CA
Licensed: California, Nevada, and Federal Courts

The San Diego-based business litigation and criminal defense attorneys at LAWSTACHE™ LAW FIRM are experienced and dedicated professionals singularly focused on one goal: achieving the best results for our clients. Through our hard work and expertise, we guarantee all of our clients that we will diligently protect their rights and zealously pursue justice. Our clients deserve nothing less!

In United States v. Knapp, officers searched the defendant’s purse despite the fact that she was handcuffed behind her back, her purse was closed and three to four feet behind her, and three officers who were present had exclusive possession of the purse since cuffing the defendant.

The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” In general, warrantless searches are per se unreasonable. Katz v. United States, 389 U.S. 347, 357 (1967). The warrantless search rule, however, is subject to several exceptions. One exception allows arresting officers to “search the person of the accused when legally arrested.” Weeks v. United States, 232 U.S. 383, 392 (1914).

Case law has developed to allow not only the search of the arrestee’s person, but also the area within the arrestee’s “immediate control.” Chimel v. California, 395 U.S. 752, 763 (1969). This authority is justified by the need to disarm the suspect and preserve evidence. United States v. Robinson, 414 U.S. 218, 234 (1973).

“Of the Person”
The Supreme Court has not clearly demarcated where the person ends and the “grab area” begins. The 10th Circuit resolves this question, and it holds that the better view is that a carried purse does not qualify as “of the person.” First, because of an arrestee’s ability to always access weapons concealed in her clothing or pockets, an officer must necessarily search those areas because it would be impractical (not to mention demeaning) to separate the arrestee from her clothing. Second, given that handheld containers such as purses are easily dispossessed, classifying such containers as potentially part of an arrestee’s person would necessitate unworkable determinations about what the arrestee was holding at the exact time of her arrest. Third, a holding to the contrary would erode the distinction between the arrestee’s person and the area within her immediate control.

“Immediate Control”
This question depends on whether the purse was within the area the arresting officers could “reasonably have believed . . . [the arrestee] could have accessed . . . at the time of the search.” Arizona v. Gant, 556 U.S. 332, 344 (2009) (emphasis added).

The 10th Circuit looked to the following factors to determine whether an area searched is within an arrestee’s grab area under Chimel: (1) whether the arrestee is handcuffed; (2) the relative number of arrestees and officers present; (3) the relative positions of the arrestees, officers, and the place to be searched; and (4) the ease or difficulty with which the arrestee could gain access to the searched area. United States v. Parra, 2 F.3d 1058,
1066 (10th Cir. 1993)

Full Opinion: https://www.ca10.uscourts.gov/opinions/18/18-8031.pdf

Anton Vialtsin, Esq.
LAWSTACHE™ LAW FIRM | Criminal Defense and Business Law
https://lawstache.com
https://russiansandiegoattorney.com
185 West F Street Suite 100-D
San Diego, CA 92101
(619) 357-6677

Based in San Diego, CA
Licensed: California, Nevada, and Federal Courts

The San Diego-based business litigation and criminal defense attorneys at LAWSTACHE™ LAW FIRM are experienced and dedicated professionals singularly focused on one goal: achieving the best results for our clients. Through our hard work and expertise, we guarantee all of our clients that we will diligently protect their rights and zealously pursue justice. Our clients deserve nothing less!

Does a woman in a bathrobe have authority to consent to a search of a home? | US v. Terry

  Two officers knocked on the door of defendant’s apartment, and a woman answered, wearing a bathrobe and looking sleepy. The agents identified themselves, explained that they had just arrested the defendant, and asked to come inside. They didn’t ask the woman who she was, how she was related to the defendant, or whether she … Read moreDoes a woman in a bathrobe have authority to consent to a search of a home? | US v. Terry

Reasonable Suspicion for Border Patrol to Stop a Vehicle on Interstate 8 | US v. Rodriguez

The fourth amendment’s prohibition of unreasonable searches and seizures extends to seizures of the person, including the brief investigatory stop of a vehicle. U.S. v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578-79, 45 L.Ed.2d 607 (1975). The record indicates that the agents relied upon these factors in deciding to stop Rodriguez: –Interstate 8 … Read moreReasonable Suspicion for Border Patrol to Stop a Vehicle on Interstate 8 | US v. Rodriguez

Should illegal aliens be able to possess firearms and weapons? 2nd Amendment | US v. Torres

The Second Amendment to the United States Constitution guarantees that “the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. “[T]he Second Amendment does not guarantee the right to possess for every purpose, to possess every type of weapon, to possess at every place, or to possess … Read moreShould illegal aliens be able to possess firearms and weapons? 2nd Amendment | US v. Torres

I hear you knocking, but you can’t come in. Exigent Circumstances | US v. Lundin

This case goes just like Dave Edmunds’ song. Link at the end. Facts: Around 4:00 a.m. on April 23, 2013, three northern California law enforcement officers approached Defendant Eric Lundin’s home without either an arrest warrant or a search warrant. They came onto his front porch and knocked on his door with the intent of … Read moreI hear you knocking, but you can’t come in. Exigent Circumstances | US v. Lundin

4th Amendment Waiver does not permit cops to search you… | United States v. Job

Facts: Police, looking for someone else, approach Travis Job. They patted him down because he was nervous and had many things in his pockets. They discovered a glass pipe in Job’s pocket, $1,450 in cash, and car keys. Cops then opened the car parked in the driveway and searched the car. They found meth, a … Read more4th Amendment Waiver does not permit cops to search you… | United States v. Job