Being on probation does not mean all constitutional rights were waived. | Brennan v. Dawson.

Plaintiff-Appellant Joshua Brennan accuses Dawson of searching his curtilage without a warrant and arresting him for a probation violation without probable cause. On the evening of February 21, 2015, Dawson went to Brennan’s home to administer a portable alcohol breath test on Brennan, who was on probation. The terms of Brennan’s probation, imposed in August 2014, prohibited him from consuming alcohol and required him to submit to such tests at random.

When no one opened the door, Dawson made five to ten trips around the close perimeter of the home, knocking on and looking into doors and windows. Dawson also physically manipulated Brennan’s home security camera and activated his police cruiser’s lights and siren to rouse Brennan. When Brennan ultimately exited the home, he submitted to the breath test and registered a 0.000. Nonetheless, Dawson arrested Brennan for violating his probation by failing to take the breath test on demand.

The Fourth Amendment is at its strongest when the home is concerned: for centuries, the home “has been regarded as entitled to special protection,” and “[h]ome intrusions . . . are indeed the chief evil against which the Fourth Amendment is directed.”

Furthermore, the Fourth Amendment protects curtilage, the area immediately surrounding the home. United States v. Dunn, 480 U.S. 294, 300 (1987).

Although the Fourth Amendment protects the curtilage, a police officer has an implied license to enter the curtilage and attempt to speak with the home’s occupant, even if the officer lacks a search warrant. Jardines. The Supreme Court in Jardines underscored that the police officer’s implied license is strictly limited when the officer lacks a warrant. The Court explained that the implied license allows an officer to “approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.” If the occupant of the home does not wish to engage, the visitor must retreat, even if that visitor is a police officer.

Dawson exceeded his implied license when he repeatedly entered and traveled through Brennan’s curtilage over the course of ninety minutes and thus violated Brennan’s Fourth Amendment rights. Of course, Brennan was subject to at least some warrantless intrusions because his probation required him to take randomly administered breath tests on demand. But that condition did not expose his home to warrantless searches.

More on home searches: https://youtu.be/dZvV5XxTJNw

More on curtilage: https://youtu.be/ZQ-BckaR4IQ

Read full opinion here: http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0508n-06.pdf

Anton Vialtsin, Esq.
LAWSTACHE™ LAW FIRM | Criminal Defense and Business Law
www.LAWSTACHE.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!

A man’s house is his castle! The owner cannot be excluded from its sanctuary. | U.S. v. SHRUM

Did the initial securing of the Defendant’s home constitute an unreasonable seizure in violation of the Fourth Amendment? And if so, did such seizure taint the incriminating evidence ultimately uncovered in the warrant search of his home? We answer both questions yes, and reverse.

Law enforcement unreasonably seized Defendant’s home in violation of the Fourth Amendment. Immediately thereafter, Investigator Cooke interviewed Defendant for over two hours at the police station. Defendant subsequently signed a consent to search form permitting Cooke to search his home. But given the undisputed record facts, Defendant’s consent was not an act of free will sufficient to purge the primary taint of the illegal seizure. Rather, his consent was “come at by exploitation” of such seizure. Wong Sun, 371 U.S. at 488. Consequently, Cooke unlawfully searched Defendant’s home and witnessed ammunition in the home’s bedroom closet. Probable cause, tainted from the unlawful search, arose when Cooke connected Defendant’s status as a convicted felon with the ammunition. Cooke requested federal agents to procure a search warrant and a neutral magistrate judge unknowingly issued a tainted warrant. Law enforcement executed the tainted warrant and discovered the incriminating evidence the Defendant now seeks to suppress. Necessarily, this evidence too was tainted. While the causal chain is relatively long, nowhere along the links of the chain were the “fruits” of the unlawful seizure of Defendant’s home purged of their primary taint. Accordingly, the district court’s denial of Defendant’s motion to suppress is REVERSED.

Read the full opinion here: https://www.ca10.uscourts.gov/opinions/17/17-3059.pdf

Anton Vialtsin, Esq.
LAWSTACHE™ LAW FIRM | Criminal Defense and Business Law
www.LAWSTACHE.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!

What can police search for during a protective sweep of the house? | United States v. Raymond Brown

In Maryland v. Buie, 494 U.S. 325 (1990), the Supreme Court of the United States held that the Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual … Read moreWhat can police search for during a protective sweep of the house? | United States v. Raymond Brown

FBI running a child porn website? Internet privacy and TOR. | USA v. Henderson

I know that most of the people do not want to hear anything about child porn. But this case is important from the online privacy standpoint. This case reminds us about how powerful and technologically advanced the US government’s presence on the internet really is. FBI ran a child porn site for months! United States … Read moreFBI running a child porn website? Internet privacy and TOR. | USA v. Henderson

Can police come to your house, lift the motorcycle cover, and run the plates? | Collins v. Virginia

During the investigation of two traffic incidents involving an orange and black motorcycle with an extended frame, the officers learned that the motorcycle likely was stolen and in the possession of petitioner Ryan Collins. The Officer discovered photographs on Collins’ Facebook profile of an orange and black motorcycle parked in the driveway of a house, … Read moreCan police come to your house, lift the motorcycle cover, and run the plates? | Collins v. Virginia

Usually not a good idea to represent yourself, especially in a criminal case. | People v. Ramos

Rafael Ramos was charged with making criminal threats against Nancy Garcia. He asked for a new attorney three times. Each of these requests was denied. On the day of trial, he elected to represent himself, which is usually not a good idea.

Prior to opening statements, the trial court removed Ramos from the courtroom for disruptive conduct. After the court instructed Ramos to be quiet, Ramos stated, “I’m not having a fair trial, your honor. I’m not ready. I need a lawyer to represent me…I feel like this isn’t fair.” So the court removed Mr. Ramos from the courtroom. No standby counsel was appointed to represent him in his absence.

During Ramos’s period of exclusion, the prosecution presented its opening statement and conducted a direct examination of Garcia. Ramos was then permitted to return to the courtroom and participate in the remainder of the trial. How was he suppose to cross-examine a witness without hearing the direct examination?

The jury found him guilty.

On appeal, Ramos argues that (1) the court violated his Sixth Amendment right to counsel when it involuntarily excluded him from the courtroom without appointing substitute counsel and (2) the error requires automatic reversal.

The Court of Appeal agreed. The denial of counsel during the testimony of a key witness is a per se Sixth Amendment violation. Judgment is revered and Mr. Ramos gets a new trial.

Full Decision at http://www.leagle.com/decision/incaco20161121011

Sixth Amendment: https://en.wikipedia.org/wiki/Sixth_Amendment_to_the_United_States_Constitution

 

Anton Vialtsin, Esq.
LAWSTACHE™ LAW FIRM | Criminal Defense and Business Law
www.LAWSTACHE.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!

Why federal court protected defendant’s identity? Identity Fraud? | United States v. John Doe

John Doe appeals his conviction of aggravated identity theft under 18 U.S.C. Sec. 1028A, for knowingly possessing and using the name, birth date, and social security number of another person when he applied to renew a Nevada driver’s license and when he submitted a Form I-9 to his employer.

Doe appeal on two grounds. First, he says that the government failed to prove an element of the offense, specifically that he knew that the false identity he used belonged to a real person. Second, he challenges the reasonableness of his 78-months (6.5 years) sentence.

But why is this case John Doe? Aren’t criminal cases open to the public? It’s actually quite simple. After 27 years of using stolen identity, the Court could not figure out the defendant’s true identity. And he refused to tell the Court who he really was.

Here is what the Court said about his grounds of appeal. While direct evidence of knowledge is often presented in Sec. 1028A prosecutions, the element can also be proven by circumstantial evidence. Repeated and successful testing of the authenticity of a victim’s identifying information by submitting it to a government agency, bank, or other lender is circumstantial evidence that the jury may consider in deciding whether the defendant knew the identifying information belonged to a real person as opposed to a fictitious one.

Although the Federal Sentencing Guideline range was 18 to 24 months, the Court varied upward and imposed a sentence of 78 months. The court justified the upward adjustment because the defendant did not just live a normal, law-abiding life. He committed crimes under the victim’s identity and caused additional harm to the victim. The Appellate Court says that the 78-months sentence is not illogical, implausible, nor without support in the record.

I wonder if such an upward adjustment was applied because the defendant refused to tell the court his true identity. Let me know what you think in the comments.

https://caselaw.findlaw.com/us-9th-circuit/1755828.html

Anton Vialtsin, Esq.
LAWSTACHE™ LAW FIRM | Criminal Defense and Business Law
www.LAWSTACHE.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!

Can CHP seize a million-dollar car while the parties fight over it? | Lawrence v. Superior Court

Brandon Lawrence purchased a rare 1947 Cisitalia from a Japanese company (Ohtomi Kensetsu Kahushiki Kaisha). A Japanese citizen, Kiyoshi Takihana, reports the car as stolen to the California Highway Patrol (CHP). Takihana owned the Cisitalia before Ohtomi.

CHP seized the car from a repair shop. Mr. Lawrence provided evidence to the CHP that the car was not stolen, but that Ohtomi failed to pay the full amount due to Takihana.

CHP was unable to determine the true owner after a four-month investigation. CHP determined that the dispute was essentially civil in nature but refused to return the car without a court order.

CHP cannot demonstrate that the car was stolen or embezzled and must return it to Brandon Lawrence under the principles of due process.

Lawrence v. Superior Court, (2018) https://cases.justia.com/california/court-of-appeal/2018-a152513.pdf?ts=1521572517

Anton Vialtsin, Esq.
LAWSTACHE™ LAW FIRM | Criminal Defense and Business Law
www.LAWSTACHE.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!

$18 million of counterfeit vintage wine. Insurance cover it? | Doyle v. Fireman’s Fund Ins. Co.

This case is about counterfeit wine and apparently Shakespeare. The first line of the opinion reads, “O thou invisible spirit of wine, if thou hast no name to be known by, let us call thee devil!” (Shakespeare, Othello, act II, scene 3.).

David Doyle is a collector of rare and vintage wine. In 2007, he obtained a “Valuable Possessions” insurance policy from Fireman’s Fund Insurance Company, with a blanket policy limit of $19 million. During the eight years that Doyle was insured under the policy, he purchased close to $18 million of purportedly rare, vintage wine from Rudy Kurniawan. Unbeknownst to Doyle, Kurniawan had apparently been filling empty wine bottles with his own wine blend and had been affixing counterfeit labels to the bottles. In 2013, Kurniawan was convicted of fraud and was sent to prison for 10 years.

Doyle filed a claim seeking reimbursement from Fireman’s Fund “for the losses he sustained” due to Kurniawan’s fraud. The insurance company denied the claim.

The insurance policy in this case covered “direct and accidental loss or damage to covered property.” Firearm’s Fund argues that no “loss or damage to covered property” occurred; that is, “the wine is in the exact same condition now that it was in when [Doyle] first insured it.”

Based on the nature of property insurance and the plain language of the policy, the Appellate Court agreed with Fireman’s Fund; Doyle indeed suffered a financial loss, but there was no loss to his covered property. The threshold requirement for recovery under a contract of property insurance is that the insured property has sustained physical loss or damage. When it comes to property insurance, diminution in value is not a covered peril, it is a measure of a loss.

The last sentence of the opinion once again quotes Shakespeare. “Finally, we can merely offereth to Doyle this small piece of wisdom from the Bard of Avon: ‘The robbed that smiles steals something from the thief.’ (Shakespeare, Othello, act I, scene 3.)” A better advice would be to call your attorney to review your insurance policies and its coverage.

Full opinion: https://cases.justia.com/california/court-of-appeal/2018-g054197.pdf?ts=1520445714

https://www.goodfood.com.au/drinks/rockpools-david-doyle-stung-by-wine-fraudster-20140905-3ezn2

https://www.therealreview.com/tag/david-doyle/

Anton Vialtsin, Esq.
LAWSTACHE™ LAW FIRM | Criminal Defense and Business Law
www.LAWSTACHE.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!

Can 20 seconds of questioning unlawfully extend a traffic stop? | United States v. Lujan

On October 25, 2017, a police officer was traveling in the left lane on Interstate 24 in Winchester, Tennessee. He noticed a large passenger van in the right lane with a paper temporary license tag. The officer could not make out the state of origin and the temporary tag number because the paper was inside a ziplock bag.

The officer pulled over the vehicle. What was clear is that the officer could read the temporary tag and he determined it had the required information on it when he walked up to the van and prior to speaking with the driver.

The officer then asked the defendant a series of questions over a couple of minutes. He asked where the defendant was headed, where he was coming from, asked for defendant’s identification, asked why the defendant took the exit, and asked why the defendant was nervous.

The officer then asked if the people in the van were legal and the defendant said, “Yes.” The officer asked the same question again, and the defendant again said, “Yes.” Officer said, “Why are you nervous, then?” The defendant then admitted he knew the occupants were “illegal.”

In Rodriguez the Supreme Court held “that a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures.” However, Rodriguez is not focused on vaguely assessing time, measuring it against arbitrary notions of what constitutes promptness. Rather, Rodriguez requires that courts look at the officer’s actions and determine whether he inevitably prolonged the stop beyond its original mission.

The Court recognized that the line questioning was brief, lasting twenty seconds at most. And although the interrogation unfolded quickly, it “measurably extend[ed]” the defendant’s stop. In engaging in this line of inquiry, the officer detoured from his traffic mission and “embarked on another sustained course of the investigation.” The unrelated questioning made up the “bulk” of what should have otherwise been only a brief detention.

The Court found that the officer measurably extended his stop by engaging in unrelated questioning (even if for only 20 seconds).

Read the full opinion here:

https://lawstache.com/wp-content/uploads/2018/08/UNITED-STATES-OF-AMERICA-v-JESUS-ANDRES-LUJAN-JR.pdf

http://www.chattanoogan.com/2017/10/28/357486/16-Smuggled-Hispanics-Found-In-Van.aspx

Anton Vialtsin, Esq.
LAWSTACHE™ LAW FIRM | Criminal Defense and Business Law
www.LAWSTACHE.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!