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California Supreme Court Upholds a Troubling Arrestee DNA Collection Law

Posted By admin 2018-04-23 01:24:28

As a criminal defense attorney who practices in Los Angeles, I have successfully defended countless arrestees to stop criminal charges from being laid and, when charges exist, to secure an acquittal on all counts. The process to remove these innocent people’s DNA from California’s database is arduous and slow due to complex state rules for expungement. The California Supreme Court recently upheld the state law mandating DNA collection from arrestees. In doing so, the Court failed to properly consider the significant privacy costs this law has, especially for indigents and racial minorities.

People v. Buza involved a San Francisco man who challenged his conviction for refusing to provide a DNA sample after he was arrested. California law permits police to collect DNA from anyone arrested on suspicion of a felony. No procedural safeguards, such as a warrant or a judicial finding that there was sufficient cause for the arrest, exist. California stores arrestees’ DNA samples indefinitely, and allows DNA profiles to be searched continuously by local, state, and federal law enforcement agencies.

A lower court held that this law violates the privacy and search and seizure protections guaranteed under the California constitution. Like the U.S. Supreme Court’s 2013 opinion in Maryland v. King, the majority of the California Supreme Court in Buza accepted the government’s argument that a DNA sample is no different from a fingerprint and that the government’s interest in “identifying” an arrestee outweighs the arrestee’s right to privacy. The California Supreme Court’s decision allows the troubling DNA collection law to stand.

The California constitution enshrines the right to privacy, unlike the U.S. constitution. The Court’s reasons should have fleshed out how the unique constitutional status of the right to privacy in California impacts collection of arrestees’ DNA, rather than simply adopting the U.S. Supreme Court’s line of reasoning in King.

In my view, the California constitution bars collecting arrestees’ DNA. The constitutional right to privacy includes protecting our rights to privacy of our personal information, as well as our right to self-determination over our bodies. The majority opinion in Buza focuses on the somewhat minimal impact a cheek swab to obtain DNA has on bodily privacy, which misses the point. The state’s retention, processing, and ability to continually search individuals’ DNA samples is an incredibly serious invasion of an arrestee’s privacy. This is because, as Justice Cuellar wrote in his dissenting opinion:

A DNA sample stored by the state contains an arrestee’s entire genetic code – information that has the capacity to reveal the individual’s race, biological sex, ethnic background, familial relationships, behavioral characteristics, health status, genetic diseases, pre-disposition to certain traits, and even the propensity to engage in violent or criminal behavior.

In Buza, the defendant pleaded guilty to committing arson. The majority emphasized that its ruling is narrow and limited to defendants whose arrests were supported by probable cause. The Court wrote that someone else arrested in the future absent probable cause could have a valid as-applied challenge to the adequacy of the DNA Act’s expungement procedures, in addition to other remedies for unlawful arrest. Unfortunately, many innocent arrestees in California are indigent and cannot afford an attorney to help them apply to remove their DNA from the state database. The Court’s holding problematically ignores that most arrestees lack the resources and legal knowledge to mount such challenges, so their DNA samples will remain in the state system indefinitely.

DNA collection severely undermines people’s right to privacy on a massive scale. The state law authorizing DNA collection impacts tens of thousands of innocent Californians each year-nearly a third of 200,000-plus people arrested each year are never charged with or convicted of a felony, according to state records.

The privacy costs of a state DNA database that is designed to hold innocent people’s DNA profiles especially troubling for racial minorities. Felony arrests of African Americans disproportionately result in no charges or dropped charges, which means that innocent African Americans are disproportionately represented among the thousands of DNA profiles that the state has no legal basis for retaining. In my view, the law’s massive impact on privacy should have proved fatal under the California constitution.

Lawmakers should respond by reforming arrestee DNA collection law to at least provide for mandatory expungement in innocent cases.

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Federal Government Given Green Light to Prosecute Medical Marijuana Growers in California

Posted By admin 2018-04-23 01:19:47

As a criminal defense attorney who specializes in drug offences, I am fascinated by the conflicting state and federal laws on the use and cultivation of marijuana in California. My law firm is based on Los Angeles, a city that has long been at the forefront of efforts to reform cannabis laws. In addition, I am among a minority of defense lawyers in California who work on drug cases at both the state and federal levels. The nuances of state and federal law regarding marijuana are critical to my practice, but also the marijuana industry. A significant new decision from the Ninth Circuit provides important guidance on how courts in California will deal with federal prosecutions of marijuana cases in the Golden State.

The US Court of Appeals for the Ninth Circuit ruled in United States v. Gilmore that the federal government can prosecute cases where marijuana is grown on federal land in California. This may come as a surprise to some because marijuana is legal for both medical and recreational use in California. However, marijuana remains a Schedule I prohibited drug under federal law, and the U.S. Constitution provides that the federal government is free to enforce its laws on federal lands.

The Ninth Circuit’s decision was in the case of Russell Gilmore and Richard Hemsley, who were charged with conspiracy and growing marijuana illegally on land under control of a federal agency in El Dorado County, east of Sacramento. The Ninth Circuit in Gilmore affirmed the district court’s denial of a motion to enjoin the federal government’s prosecution.

The defendants in Gilmore tried to stop the prosecution of their case under the Consolidated Appropriations Act, which Congress passed to bar the Department of Justice from using government funds in ways that prevent states from implementing medical marijuana laws. In my view, Congress’ prohibition could reasonably be interpreted as banning or at least discouraging prosecutions of medical marijuana growers in states where marijuana is legally grown and consumed. This reading would allow states to implement local medical marijuana laws without federal interference.

However, the Ninth Circuit found in Gilmore that even if state law tolerated marijuana cultivation on public land, enforcing federal law that prohibits cultivation on federal land does not “prevent” California from otherwise implementing its medical marijuana regime. The result in Gilmore was that the defendants, who did not even know that their medical marijuana plants were on federal land, were subject to prosecution by the federal government.

The decision was an unexpected turn for the defendants, as well as some cannabis attorneys and the marijuana industry in general. The U.S. Justice Department had laid off prosecutions for medical marijuana cultivation in the Obama era, and California marijuana bloomed in the meantime.

However, the ruling was not surprising to me. In an earlier decision, United States v. McIntosh, the Ninth Circuit concluded that Congress’ prohibition applies narrowly to those specific rules of state law that authorize the use, distribution, possession or cultivation of medical marijuana. Accordingly, the Ninth Circuit’s interpretation of Congress’ prohibition is that it does not limit the U.S. government’s ability to enforce federal drug laws on federal land.

In addition, U.S. Attorney General Jeff Sessions recently rescinded Obama-era guidance that generally allowed states to implement their own marijuana laws without federal interference. The Justice Department issued a memo on marijuana enforcement in January 2018 which denounced the Obama administration’s guidance on marijuana laws as “undermining the rule of law”. The memo directed all U.S. Attorneys to use previously established prosecutorial principles to enforce federal drug laws, which, of course, reflected a tough on marijuana mentality.

The federal government’s decision to prosecute in Gilmore seems to reflect a revived interest in Washington to be tough on marijuana. The Ninth Circuit’s ruling shows that it is still important for California’s marijuana industry to closely follow federal law pertaining to cannabis, even though recreational use of cannabis is legal at the state level. Participants in California’s marijuana industry should seek advice from an attorney who specializes in both state and federal drug crimes to better understand the nuances of cannabis law.

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Skinner’s Bill Could Help the Defense Prove Police Misconduct

Posted By admin 2018-04-02 16:09:28

As an experienced criminal defense attorney practising in Los Angeles, I have won numerous cases by showing that the police acted unlawfully. A key obstacle I tackle when defending such cases is to obtain information about police officers’ prior acts of professional misconduct. Obtaining officer personnel records, which document prior misconduct, is hard-fought but could be made easier by proposed changes to California law.

A Pitchess motion is a request made by the defense in a California criminal case, such as a DUI or resisting arrest case, to access a police officer’s personnel information. Types of police misconduct that could support a Pitchess motion include excessive force, lying about events surrounding the arrest, racial profiling, and coerced confessions.

The defense files a Pitchess motion by alleging an officer’s misconduct in an affidavit to show “good cause” for disclosure of the officer’s records. A showing of ‘good cause’ exists if the affidavit sets forth both a specific factual scenario that supports allegations of officer misconduct in the defendant’s case, and reasons why the misconduct would be material to the defense case. This can be a difficult threshold for the defense to meet. Laying the factual foundation for a Pitchess motion typically demands investigatory resources, and sometimes no evidence exists to corroborate a defendant’s truthful allegations of police misconduct.

If a court grants the Pitchess motion, the information provided to the defense will include the officer’s prior incidents of use of force, allegations of excessive force, citizen complaints, and information gathered during the officer’s pre-employment background investigation.

Thankfully, legislative change could be on the horizon in California and make it easier for the defense to access officer personnel files. State Sen. Nancy Skinner (D-Berkeley) plans to introduce a bill next week that would require the disclosure of investigations of serious uses of force, including police shootings. Currently, the public is completely shut out of the disciplinary process. Besides opening access to use of force investigations, Skinner’s proposed bill would also require the disclosure of confirmed cases of sexual assault and lying while on duty. Public disclosure of police conduct would likely make it easier for defense counsel to obtain some information sought in a Pitchess motion, as well as information that would help lay the factual foundation for a successful Pitchess motion.

California currently has some of the most stringent laws in the United States against disclosing police personnel records. Most information about discipline is presumed confidential, even when complaints are determined to be valid.

The proposed legislative changes would benefit members of the public beyond defendants in criminal cases. Under current law, the Sacramento Police Department investigation of its officers for the fatal shooting of Stephon Clark earlier this month will not become public except through any potential criminal prosecution of the officers or civil litigation against the city. Mr. Clark, a 22-year-old unarmed black man, was fatally shot earlier this month by Sacramento police in his grandmother’s backyard. Discrepancies between the shooting officers’ version of events and a family-funded autopsy of Mr. Clark highlight the importance of the public serving as a watchdog on police misconduct. The autopsy found on Friday that Mr. Clark was shot eight times in his back, contradicting the shooting officers’ assertions that Mr. Clark was advancing toward them as a threat. Seven of those shots were of fatal capacity, the autopsy showed.

Making investigations of police misconduct transparent to the public will help the defense and public check unlawful police acts, which unfortunately are still common today in criminal cases and the broader community.

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Ninth Circuit Decryption Order Creates an Improper Shortcut Around the Fifth Amendment

Posted By admin 2018-04-02 16:03:13

A decision last week by U.S. Magistrate Judge Jacqueline Scott Corley of the Northern District of California ordered a criminal defendant to decrypt his device, and could mark a troubling shift in Fifth Amendment law in favor of greater government access to encrypted data.

The defendant subject to the Ninth Circuit’s order to decrypt was charged with possession and distribution of child pornography. He cooperated in unlocking his iPhone and laptop for police, but investigators were unable to access encrypted folders on those devices.

The Ninth Circuit ultimately found that the defendant, by handing over his passwords, provided prosecutors with information that was a “foregone conclusion” and exempt from Fifth Amendment protection. The Fifth Amendment of the United States Constitution generally protects a witness from being forced to provide incriminating information that could expose her to an accusation or criminal charge. The “foregone conclusion” is an exception to Fifth Amendment protection. Information is a “foregone conclusion” if it is already known to the government-meaning that the government could describe the pertinent facts of that information with reasonable particularity before they are provided by the witness.

Corley ruled that because law enforcement officials had already demonstrated through other evidence that the defendant knew the passwords to unlock the devices, his knowledge of the password was already a foregone conclusion. As a result, the Court decided that the defendant can be ordered to unlock his devices without violating his Fifth Amendment rights.

Corley’s ruling for the Ninth Circuit stands in contrast to a 2012 ruling from the Eleventh Circuit that in order for the foregone conclusion doctrine to apply, prosecutors had to show with “reasonable particularity” that they already knew what was on the encrypted hard drives seized during a child pornography investigation. They could not, and so the court reversed a decision by a district judge compelling decryption.

The Ninth Circuit’s ruling carves out from the Fifth Amendment a worrisome shortcut for investigators to decrypt electronic devices. The government will now likely be able to obtain an order to decrypt in most child pornography and other cases involving digital evidence because proving that an accused knows the password to her device is simple. It could be as simple as showing that the device was in the accused’s pocket.

As a Los Angeles criminal defense attorney who specializes in child pornography cases, I have gained specialized expertise in the Fifth Amendment case law as it applies to encryption. My respectful view is that the Ninth Circuit erred in its ruling. The crux of the self-incrimination privilege is that the government cannot compel evidence from the minds of the suspects themselves. Compelled decryption is inherently testimonial because it compels a suspect to use the contents of their mind to translate unintelligible evidence into a form that can be used against them. The Fifth Amendment, in my view, provides an absolute privilege against such self-incriminating compelled decryption.

The United States Supreme Court has stated:

Too many, even those who should be better advised, view [the Fifth Amendment] privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege.

In the modern digital age where encryption is routine practice for individuals and businesses alike to protect their sensitive information, the Ninth Circuit ruling should be worrisome to all.

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California’s Amended Firearm Use Enhancements Open a Door for Skillful Advocacy

Posted By admin 2018-03-29 20:08:21

Californians are no longer subject to a mandatory sentence enhancement for use of a firearm while committing or attempting to commit a felony under state law. Senate Bill 620, effective as of January 1, 2018, amended section 12022.53(h) of the Penal Code of California to make firearm use enhancement discretionary. A state court judge in California may strike or dismiss a firearm use enhancement if doing so would be in the interest of justice. This stands in contrast to federal law, which still requires a mandatory-minimum prison term for possessing a gun during commission of a drug offense or a violent crime.

In California, it is more important than ever for a person charged with a felony involving a firearm to retain an attorney who has specialized knowledge of firearm use enhancements. Defendants and their attorneys now have an opportunity to persuade state courts against imposing the firearm use enhancement. This even includes some cases where firearms enhancements have been ordered. The California Court of Appeal for the Second District just ruled this month in Almanza that the amendment applies retroactively to benefit defendants whose cases were on appeal when the law changed.

Before the amendment, Penal Code 12022.53 automatically added to a sentence for certain violent felonies 10 years’ jail for “using” a gun, 20 years’ jail for firing a gun, or 25 years’ jail to a life sentence for killing or seriously injuring another person with a gun. For remaining felonies, individuals who personally used a firearm or assault weapon in the commission of a crime were automatically subject to an additional and consecutive prison term of 3, 4, or 10 years for a firearm, or 5, 6 or 10 years for an assault weapon. It is laudable and sensible that firearms enhancements are no longer automatic.

In California, mandatory firearms enhancements resulted in countless unreasonably high sentences, especially in cases where the firearms were not operable or loaded. The social costs of mandatory firearms enhancements outweighed any purported public safety benefit. In debate about Senate Bill 620, Californians for Safety and Justice presented research to the Senate showing that firearms enhancements disproportionately increased racial disparities in California’s prison populations, and greatly increased the population of incarcerated persons, without deterring crime.

As a defense attorney in Los Angeles who specializes in violent crimes, I also saw firsthand how firearms enhancements affect people already serving their sentences. Enhanced sentences served for firearms use are sometimes the only obstacle to early parole for some persons under Proposition 57. For example, an individual convicted of assault with a firearm on a peace officer may be subject to an additional term under Penal Code section 12022.53. Any violation of PC 12022.53 is deemed a violent felony under PC 667.5(c), which makes that individual ineligible for early parole consideration under Proposition 57. However, without the additional term under PC 12022.53, that same offender would be eligible for early parole under Proposition 57 because assault with a firearm on a peace officer is not a violent felony under Penal Code section 667.5(c).

Discretionary firearm enhancements allow courts to tailor sentences to each case and offender. However, it is likely that firearm use enhancements will continue to be imposed in many-if not most-state felonies where firearms are used. One reason is that courts will carefully examine the aggravating features of cases involving firearms to decide what enhancements should apply. For instance, in Almanza, the Court decided not to remand the case to trial court to reconsider imposing a lower sentence without firearm enhancements in part because of the case’s egregious facts.

Defense lawyers must respond by taking a meticulous approach to trial advocacy, which includes putting on the record all mitigating factors in their cases that would weigh in favour of striking firearms enhancements. This includes thinking ahead to how firearms enhancements affect parole eligibility. Such submissions are crucial to persuade a trial judge to strike or dismiss a firearms use enhancement, as well as to protect the record for appeal.

The changes to section 12022.53 create room for defense attorneys to advocate for lower, more reasonable sentences for their clients. Individuals charged with felonies involving firearms should look for a lawyer who has a technical understanding of firearms enhancements, preferably under both state and federal law. Courts will be listening closely to defense attorneys’ submissions against firearms enhancements, and attorneys must be prepared at all stages of litigation to address how firearms enhancements affect several dimensions of a criminal case.

Karen L. Goldstein specializes in state and federal violent crimes as well as felonies where firearms are typically used, such as drug offenses. Please call (888) 445-6313 for more information.

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