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DUI Checkpoints San Diego

The California Supreme Court under Ingersoll v. Palmer outlined several factors needed to conduct a DUI checkpoint.

These factors are:

1. Policy-making officials must make the decision selecting a location instead of officers. An officer in the field should not be the one to establish the site and the procedures used at the checkpoint.

2. There needs to be a neutral mathematical formula used at the checkpoint. For instance, every third, fifth or tenth driver will be stopped.

3. The officers must maintain a safe condition for motorists. This includes “proper lighting, warning signs, signals and clearly identifiable official vehicles and personnel are necessary to minimize the risk of danger to motorists and police.” Ingersoll v. Palmer, 43 Cal.3d 1321, 1341 (1980). The screening procedures can be altered depending on the flow of traffic.

4. The DUI checkpoint must be at a reasonable location. The location site “should be those which will be most effective in achieving the governmental interest; i.e., on roads having a high incidence of alcohol related accidents and/or arrests.” Id at 1343.

5. The time and duration is of a DUI checkpoint is based on the good the judgment of officials “in setting times and durations, with an eye to effectiveness of the operation, and with the safety of motorists a coordinate consideration. “ Id.

6. The Court wants to minimize the time each motorist is detained. The motorist should be “detained only long enough for the officer to question the driver briefly and to look for signs of intoxication, such as alcohol on the breath, slurred speech, and glassy or bloodshot eyes.” Id.

7. Finally, the advance publicity is needed to minimize the intrusiveness by the DUI checkpoints.

These are factors are essential to validate a DUI checkpoint. The evidence gained from an unlawful checkpoint could be inadmissible in court.

If you have questions about DUI Checkpoints in San Diego, contact San Diego Criminal Defense Attorney Vik Monder at 619.405.0063

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DUI Checkpoints

The California Supreme Court did not declare DUI checkpoint unconstitutional.  However, the Court outlined eight factors that are “important in assessing intrusiveness.” Ingersoll v. Palmer, 43 Cal.3d 1321, 1341 (1980).   These factors are used to minimize the intrusiveness of a DUI checkpoint. One of the eight factors is that the DUI checkpoint must be published in advance.  According to Ingersoll v. Palmer, a California Supreme Court case, the Court stated that an “advance publicity is important to the maintenance of a constitutionally permissible sobriety checkpoint.” Id at 1346. The Court further stated that “publicity both reduces the intrusiveness of the stop and increases the deterrent effect of the roadblock.” Id.

The goal of publishing the DUI checkpoints in advance is to deter people from driving under the influence. This could be achieved by “either dissuading people from taking ‘one more for the road,’ persuading them to drink at home, or inducing them to take taxicabs.” Id.

Furthermore, the “advance notice would limit intrusion upon personal dignity and security because those being stopped would anticipate and understand what was happening.” Id.  Thus, according to the Court, announcing the DUI checkpoint in advance will reduce “surprise, fear, and inconvenience.” Id.

If you have questions about DUI Checkpoints, contact San Diego DUI attorney Vik Monder or visit DUI Checkpoints Attorney

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San Diego Border Search

Border searches could be done beyond the international border or its functional equivalent. The extended border search may still be used as a warrantless search. The Fifth Circuit has outlined a three factor test to determine the legitimacy of the extended border search: (1) there must be a showing of certainty or a high degree of probability that border crossing has occurred; (2) there must be a showing of reasonable certainty that no change in the condition of the person or vehicle being inspected occurred from the time of the border crossing until the time of the search and that the contraband was present when the person or vehicle crossed the border; and (3) there must be a showing of a reasonable suspicion that criminal activity was occurring. United States v. Espinoza-Seanez, 862 F.2d 526 (5th Cir. 1988).

The Courts are reluctant to give agents the flexibility in an extended border as compared to the international border. In United States v. Seljan, the 9th Circuit Court stated that the extended border searches cannot be “unreasonably intrusive.”  United Statesv. Seljan, 547 F.3d 993, 1002-03 (9th Cir. 2008). At minimum, there needs to be reasonable suspicion to conduct an extended border search.

If you have questions about a warrantless border search in San Diego contact San Diego Criminal Defense Attorney Vik Monder at 619.405.0063 or visit Criminal Border Search Attorney

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Testimonial Statement

The definition of Testimonial changed from Crawford to Davis to Hammon.  In Crawford, the definition applies to “prior testimony at a preliminary hearing, before a grand jury or at a former trial; and to police interrogations.” Crawford, 541 S.Ct 1374. The court used the dictionary term of the word which is a “solemn declaration or affirmation made for the purpose of establishing or proving some fact.” Id at 1354. The court did not directly define the meaning of a testimonial statement. The court initially left it up to the lower courts to define the term. The court said that they will “leave for another day any effort to spell out a comprehensive definition of testimonial.” Id at 1374.

In Davis and Hammon, the court said that statements that would cause the declarant to be a witness could fit under testimonials. In Davis, the court specified that when a statement is given to authorities in order to meet an “ongoing emergency” the individual giving the statement is not a witness. Davis and Hammon, 126 S.Ct 813, 827. Thus the statement would not be considered testimonial. If the statements go beyond merely assisting the authorities and more toward solving a past crime, then the statements are considered testimonial. The statements in Davis were considered nontestimonial because the 911 call was during an emergency.

In Hammon, the statements were made during an interrogation in which the police officer separated and questioned the alleged victim about a past incident.  The court determined that when the officer questioned the alleged victim and was seeking to find out “what happened,” the reply statements were testimonial. Hammon v. Indiana 126 S.Ct 813, 830 (2006).  The court also said that a Miranda warning is not required in order for statements to be testimonial. Finally, the court acknowledged that if the defendant undermines “the judicial process by procuring or coercing silence from witnesses and victims, the Sixth Amendment does not require courts to acquiesce.” Hammon, 126 S. Ct. 2280.

If you have questions about a testimonial statement contact San Diego Criminal Defense Attorney Vik Monder at 619.405.0063 or visit Criminal Defense Testimonial Attorney

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Eye-witness Testimony

On January 27, 1998, a murder took place at a parlor in Harlem. The victim was a retired police officer, Albert Ward. Mr. Ward ran an illegal gambling parlor in Harlem. Law Enforcement responded with full force. They had 37 officers which included four lieutenants and eight sergeants on the case. Later that evening, fifteen arrest and seventy-five summonses were issued. The police officers also interviewed several witnesses at the gambling parlor during the murder.

Information gathered by police indicated that there were two individuals involved in the murder of the Mr. Ward. They found out that this was a robbery that went badly. Mr. Ward was shot amidst the chaos of the robbery.  Some of witnesses interviewed stated that a black male with dreads was the trigger man and his compliance was a dark black male. The witnesses were asked to look at some mugshots. They were able to identify the compliance of the trigger man. Then law enforcement focused their attention on the shooter. They were able to draw a composite sketch of the trigger man.  The officers were then told that the shooter could be a man named Mustafa.

The investigation shifted from Mustafa to Jon Adrian Velazquez when an eyewitness named Augustus Brown pointed the finger at Mr. Velazquez. Mr. Velazquez was asked to participate in a lineup and he consented.  He was picked out of the lineup by three eyewitnesses and then he was charged with the murder of Mr. Ward.

The case for the prosecution hinged on eye-witness testimony.  There were no fingerprints or any DNA evidence gathered at the scene. All but one of the witnesses for the prosecution pointed the finger at the defendant, Mr. Velazquez.

Mr. Velazquez was convicted and sentenced to 25 to life. Mr. Velazquez did not match the composite sketch and the law enforcement failed to investigate other leads.  It was later found, according to some of the witnesses, that they were pressured to identify Mr. Velazquez. Some witnesses even recanted their testimony that Mr. Velazquez was the shooter.

Mr. Velazquez’s attorneys have filed a 440 Motion to vacate the conviction. The court has yet to rule on the motion. Mr. Velazquez, his family and his attorneys are hopeful that the judge will vacate his sentence.

If you have questions about eye-witness testimony in your San Diego case, contact San Diego Criminal Defense Attorney Vik Monder at 619.405.0063 or visit Criminal Eye-Witness Testimony Attorney

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Proving Innocence

On June 13, 1996, a murder took place in Idaho Falls, Idaho. A woman by the name Angie Dodge was stabbed multiple times. According to officers, it was a gruesome crime scene.  In the mist of this gruesome scene, the perpetrator left some DNA evidence. However, the officers were not able to link the DNA evidence to anyone. The investigators were under the impression that this was a crime of passion. At first, they focused on the victim’s boyfriend, but his alibi checked out.  Then, they focused on the victims’ friends. One of which was Benjamin Hobbs.  He was charged with sexual assaulting someone at knife point in Nevada. According to investigators, the crime had some similarities to the one in Idaho Falls. The investigators were certain that he was at the crime scene, but they did not have enough evidence to charge him with the crime.

Investigators then started to talk to some of Mr. Hobbs’ friends. One in particular was Christopher Tapp.  During the interviews, the investigators asked Mr. Tapp if he was in involved in Angie’s murder. At first, he denied that he had any involvement in the murder of Angie Dodge. However, after intense pressure from law enforcement, Mr. Tapp confessed to the murder. Mr. Tapp and several other people including the Angie’s mother have said that the detectives coerced Mr. Tapp into a confession. Mr. Tapp was later charged and convicted with the murder of Angie Dodge. He was sentenced to 30 years in prison. The DNA evidence found at the crime scene did not match Mr. Tapp or Mr. Hobbs. Mr. Tapp has consistently maintained his innocence till this day.

Mr. Tapps’ attorney filed a motion to exclude the police confession from evidence. The court heard arguments from both sides and denied the motion. His attorney then filed a Brady petition. In the petition, the defense attorney said that the prosecution withheld evidence that was critical to the defense’s case. There were some statements from witnesses that pointed the finger to another individual and not to Mr. Tapp. The court has yet to make a ruling on the matter. This is a critical moment in the case.

If you have questions about proving your innocence, contact San Diego Criminal Attorney Vik Monder at 619.405.0063 or visit Attorney Proving Innocence

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Miranda Warnings

The 5^th Amendment protects citizens from providing self-incriminating information to authorities. It is there as a mechanism to prevent the government from eliciting information the accused. The government has to inform the suspect of his Constitutional Rights before asking questions. Unfortunately, there are many instances where the police officers would ask questions prior to giving the Miranda warnings and there also times where government officials would elicit an involuntary statement from the suspect. The statements gained from a 5^th Amendment violation cannot be used in court.

However, there is an exception to the Miranda. The Supreme Court has given the government agents the authority to ask questions before Miranda warnings are given. This authority is called the public safety exception. This authority came from the decision in New York v. Quarles. There, police officers were chasing a rape suspect who reportedly had a gun. When officers apprehended the suspect, they found an empty holster. They questioned the suspect regarding the location of the gun without administering Miranda warnings.  The Supreme Court said that “the need for answers to questions in a situation posing as a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination.” New York v. Quarles, 467 U.S. 649, 658-659 (1984).

In the Boston Bombing case, according to investigators, they were concerned that there were other bombs. So, the US prosecutor informed the investigators that they do not have to give the accused his Miranda warnings until the imminent threat is put down.  The Court would allow the statements if the government could show that there was an imminent threat.

If you have questions about Miranda Warnings, contact San Diego Criminal Defense Attorney Vik Monder at 619.405.0063 or visit Miranda Warnings Criminal Defense Attorney

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DUI Blood Test

The Supreme Court has recently struck down the per se rule that require individuals to submit to a blood test without a warrant. The Court does not want to depart from the “case-by-case assessment of exigency [to] adopt the categorical rule proposed by the State.” Missouri v. McNeely, 11-425. (2013). The Fourth Amendment mandates police officers to “reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search.” McDonald v. United States, 335 U. S. 451, 456 (1948).

The Court acknowledges that in some circumstances obtaining a warrant may be “impractical” because the alcohol in the individual’s bloodstream could dissipate. However, each case should be decided based on its facts and not an overgeneralization of a per se rule. Also, it takes some time for the officer to escort the defendant to a medical facility. During this process, the officer could expedite the warrant to draw blood from the defendant. With the advancement of technology contacting the proper personnel to obtain an expeditious warrant has become less difficult now than years ago.

In this case, the Court understands the officer’s duty to limit the amount of intoxicated drivers. However, that duty should not at the expense of diminishing one’s Fourth Amendment Right.

If you have any questions about your DUI blood test, contact San Diego Award-Winning DUI Attorney Vik Monder or visit DUI Blood Test Attorney

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High Crime Area

What is a high Crime Area? The Supreme Court has never answered this basic question. The Supreme Court typically had taken words used by officers and used it as a factor towards reasonable suspicion. The Supreme Court would allow the officers to state that an area is known for a particular criminal activity.

Since the Supreme Court has never defined the term, the Circuit Courts have tried to give their own interpretation of the term. Some courts like the First Circuit do not use the term “high crime area,” but rather describe a crime that is most prevalent in the area. They would narrow the term to a specific crime. In U.S. v. Wright, the court held there are some considerable factors they will use to determine whether an area is a high crime area. U.S. V. Wright, 485 F.3d 45, 53 (1st Cir. 2007). These factors include: (1) the nexus between the type of crime most prevalent or common in the area and the type of crime suspected in the instant case, e.g., U.S. v. Wardlow (noting that the area was not simply generally crime-ridden, but was particularly “known for heavy narcotics trafficking,” where the defendant was suspected of drug activity) U.S. v. Wardlow, 528 U.S. at 124, 120 S.Ct. 673; United States v. Edmonds (noting that the finding of a high crime area was supported by the similarity between the type of crime commonly found at that location and the type of crime for which the police suspected this defendant) United States v. Edmonds, 240 F.3d 55, 60 (D.C.Cir.2001); (2) limited geographic boundaries of the “area” or “neighborhood” being evaluated, e.g., United States v. Caruthers (affirming a district court’s finding of a high crime area, in part, because the evidence of frequent crime was specific to the exact intersection where the stop occurred) ; United States v. Montero–Camargo (en banc) (“We must be particularly careful to ensure that a ‘high crime’ area factor is not used with respect to entire neighborhoods or communities in which members of minority groups regularly go about their daily business, but is limited to specific, circumscribed locations where particular crimes occur with unusual regularity.”) ; and (3) temporal proximity between evidence of heightened criminal activity and the date of the stop or search at issue, e.g., United States v. Bailey (affirming high crime area finding, in part, because of criminal activity during week prior to the stop at issue, occurring in same location as the stop). U.S. V. Wright, 485 F.3d 45, 53 (1st Cir. 2007). These factors bring us one step closer to defining a “high crime area” but it does not solve the problem. What makes a crime prevalent in the community? Do we consider crime statistics or the officer’s knowledge of the particular area? This is a question the First Circuit has yet to define.

Also in U.S. v. Black, the 4^th Circuit Court of Appeals stated that an area was considered a high crime area because there were numerous arrests. The court did not explain what constitutes numerous arrests. Is there a certain threshold of arrests that would constitute a high crime? If there are numerous arrests in Wall Street for white collar crimes, would the court conclude that area is a high crime area? I doubt the court would designate Wall Street as a high crime area. Is the term high crime area only reserved for the inner city? In U.S. v. Montero-Camargo, Judge Kozinski writing a concurrence stated “without hesitation, the majority treats this as a crime wave, but is it really? Does an arrest every four months or so make for a high crime area? Compare United States v. Thornton (“In less than one year there had been some 2,500 drug arrests in the five-block-by-five-block area where the incident occurred.”) ; United States v. Morales, (“In the past year alone, the Agent had detained approximately 600 illegal aliens on this stretch of the highway.”). Can we rely on the vague and undocumented recollections of the officers here? Do the two officers’ figures of “15–20” and “about a dozen” reflect separate pools of incidents, or do they include somewhere, as here, both officers were involved? Are such estimates sufficiently precise to tell us anything useful about the area? I wouldn’t have thought so, although I could be persuaded otherwise. But my colleagues don’t even pause to ask the questions. To them, it’s a high crime area, because the officers say [it is] a high crime area.” The decision that an area has a high crime activity is based on the unilateral testimony of the officer. There is no other source to counter that assertion. It is just taken as truth. Judge Koniski goes on to say that police are trained to detect criminal activity and they look at the world with suspicious eyes.

This is a good thing because we rely on this suspicion to keep us safe from those who would harm us. But to rely on every cop’s repertoire of war stories to determine what is a “high crime area”and on that basis to treat otherwise innocuous behavior as grounds for reasonable suspicion-strikes me as an invitation to trouble. If the testimony of two officers that they made, at most, 32 arrests during the course of a decade is sufficient to turn the road here into a high crime area, then what area under police surveillance wouldn’t qualify as one? There are street corners in our inner cities that see as much crime within a month—even a week. I would be most reluctant to give police the power to turn any area into a high crime area based on their unadorned personal experiences. I certainly would not reach out to decide the issue.” U.S. v. Montero, Camargo, 1122, 1143 (9^th Cir. 2000)

I would imagine that Judge Koniski would agree that the Fourth Amendment rights of individuals living in the inner cities have been diminished unlike individuals on Wall Street.

If you have questions about a High Crime Area in San Diego, contact San Diego Criminal Defense Attorney Vik Monder at 619.405.0063 or visit High Crime Attorney

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Domestic Disputes

Domestic Violence is defined as “abuse or threats of abuse when the person being abused and the abuser are or have been in an intimate relationship (married or domestic partners, are dating or used to date, live or lived together, or have a child together). It is also when the abused person and the abusive person are closely related by blood or by marriage.”

Following a domestic violence episode, a dispute or any type of harassment there are several actions a victim, the court or a petitioner can take. This is where family law and criminal law terms collide.
A stay away order requires the accuser to stay away from the accused for a period of time. This is a criminal law issue. The Stay Order is issued by a Judge in domestic battery case. The judge would typically impose probation unless the defendant is found not guilty or the case is dismissed.
Regarding a restraining order, one is asking the court to protect himself or herself from another individual. For example, if you are being harassed by another individual, then you may file a restraining order to ask the court to stop the individual from harassing you. This is a Civil Proceeding. Normally, a restraining order is not related to a violate act.

In domestic violence situations, a no negative contact allows the defendant to have contact with the victim, but there cannot be any negative contact. This is a less restrictive form of a no contact order. A no contact order means the defendant cannot have any contact with the victim.
Typically, these terms are used interchangeably. However, these terms address different areas of law.

If you have questions about domestic disputes, contact San Diego Criminal Defense Attorney Vik Monder at 619.405.0063 or visit Domestic Dispute Attorney