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Valid Consent

A valid Consent allows an officer to search the individual or his property without a warrant. The Circuit Courts have outlined factors to determine whether a consent given was valid or not.

The Fifth Circuit has five factors to determine whether consent is valid. The five factors are: “(1) the defendant’s custodial status, (2) the presence of coercive police procedures, (3) the extent and level of the defendant’s cooperation with the police, (4) the defendant’s awareness of his right to refuse consent, (5) the defendant’s intelligence, and (6) the defendant’s belief that no incriminating evidence would be found. No single factor is dispositive.” United States v. Gonzales, 79 F.3d 413, 421 (5^th Cir. 1996).

The Eighth Circuit examines the individual characteristics of the person giving the consent and the environment in which the individual allegedly gave consent. United States v. Hathcock, 103 F.3d 715, 719-720 (8th Cir. 1997). The Eighth Circuit has factors for each component. The component for the individual characteristics are: “(1) age; (2) general intelligence and education; (3) whether an individual was under the influence of drugs, alcohol or otherwise; (4) whether an individual was informed of his or her Miranda rights prior to the consent; and (5) whether an individual had experienced prior arrests so that he or she was aware of the protections the legal system affords to suspected criminals.” Id at 719.

The factors for examining the environment where the alleged consent occurred are: “(1) the period of time the individual was detained or questioned; (2) whether the police threatened, physically intimidated, or punished the individual; (3) whether police made promises or misrepresentations, upon which the individual relied; (4) whether the individual was in custody or under arrest at the time consent was given; (5) whether the consent occurred in a public or a secluded place; and (6) whether the individual stood by silently while the search occurred.” Id at 719-720.

The Ninth Circuit has a five factor test to determine whether the consent is voluntary. The five factors are: “(1) whether defendant was in custody; (2) whether the arresting officers had their guns drawn; (3) whether Miranda warnings were given; (4) whether the defendant was notified that [he] had a right not to consent; and (5) whether the defendant had been told a search warrant could be obtained.” United States v Washington, 490 F.3d 765, 775 (9^th Cir.2007).

Each Circuit has their own factors, but some factors overlap with each other. The Circuit Courts do not want to see an individual coerced by law enforcement. They want to make sure that the statement was given voluntary without any coercion.

If you have questions of whether you gave an officer valid consent to search, contact San Diego Criminal Defense Attorney Vik Monder at 619.405.0063 or visit Valid Consent Attorney

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Criminal Surveillance on Home

As the law stands today, law enforcement for the most part, cannot use enhanced method to gain information that would otherwise have been private. This would be a violation of a one’s legitimate expectation of privacy. Law enforcement can use technology to see or hear information that is public.

There have been cases that address this issue. For example, Kyllo v. United States, law enforcement used a thermal-imaging technology to detect heat from the home. They wanted to know if the defendant was growing marijuana. As a result from the surveillance, the officers figured that the defendant was using heat lamps to grow marijuana. The Court stated that “obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search—at least where (as here) the technology in question is not in general public use.” Kyllo v. United States, 533 U.S. 27,33 (2001). So technology such as a thermal-imaging device cannot be used to detect what the individual is doing inside his residence.

However, the Supreme Court ruled that it is acceptable to use aerial surveillance on a private home. The Court stated “the Fourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares.” California v. Ciraolo, 476 U.S. 207, 213 (1986). Law enforcement is limited from using enhanced technology, but the Court has given them a little leeway in using some enhanced instruments to conduct surveillance.

If you have questions about the limitations of government criminal surveillance on home, contact San Diego Criminal Defense Attorney Vik Monder at 619.405.0063 or visit Criminal Surveillance Attorney

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Prior Criminal Conviction Evidence in San Diego Criminal Trials

There are couple rules of evidence that can exclude prior convictions. These rules were enacted because the legislators do not want the defendant prior convictions to be on trial. The court wants the jury to focus on the alleged crime the defendant is charged at trial. These rules are FRE 609, 404, 403. Let’s focus on FRE 609.
FRE states (a) states in relevant, in part, for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant. FED. R. EVID. (a)(1)(B). The sentence of the prior conviction must be over a year in order to be admitted into evidence.

Regarding the probative value of the evidence, the Ninth Circuit has outlined five factors it uses to consider whether the probative value outweighs its prejudicial effect on the accused. United States v Browne, 829 F.2d 760, 762-763(9th Cir. 1987). These five factors include: “(1) the impeachment value of the prior crime; (2) the point in time of the conviction and the witness’ subsequent history; (3) the similarity between the past crime and the charged crime; (4) the importance of the defendant’s testimony; and, (5) the centrality of the defendant’s credibility.” Id. The government bears the burden of showing that the evidence’s probative value outweighs its prejudicial effect. Id.

The impeachment value of the prior conviction goes into whether the crime is a crime of truth or honesty. If the defendant has a prior conviction that deals with truth or honesty, then that would weigh against him.
The Court weighs each factor evenly. The more factors a defendant could get in his favor the more likely the court could rule in his favor.

If you have questions about prior convictions being used in your trial, contact San Diego Criminal Defense Attorney Vik Monder at 619.405.0063 or visit Prior Criminal Conviction Attorney

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What is an Invalid Warrant

The Warrant Clause of the Fourth Amendment categorically prohibits the issuance of any warrant except one particularly describing the place to be searched and the persons or things to be seized. Maryland v. Garrison, 480 U.S. 79,84 (1987). If the scope of the search goes beyond what was permitted by the terms of a validly issued warrant, then the search and any subsequent seizure are unconstitutional. According to the Supreme Court case of United States v. Ross, the scope of a lawful search is “defined by the object of the search and the places in which there is probable cause to believe it may be found.” 456 U.S. 798,824 (1984). For example, if the warrant states that an individual has a stolen vehicle which may be found in the garage, then the officer’s search is limited to the garage. The officers may not search the bedroom for drugs or any other contraband or else it is an invalid warrant.

This rule becomes a bit tricky when it comes to computers. For example, if the officer has a warrant to search for drug-related content on the computer, then he could only search for that drug-related content. Now, if the officer inadvertently discovers child pornography, then the Court may not suppress the evidence of the child pornography. The result changes if the office intended to look for child pornography all along. Then, the court will suppress the evidence regarding the child pornography.

Thus, it’s important to read the warrant to know what and where the officers could search or else it is an invalid warrant.

IF YOU HAVE QUESTIONS ABOUT THE CRIMINAL PROCESS, CONTACT SAN DIEGO CRIMINAL DEFENSE ATTORNEY VIK MONDER AT 619.405.0063

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The Ambient Defense

Imagine this… You were suffering from insomnia, so you decided to take an ambien pill. You thought it would relieve your ailment. Unfortunately, it did more than that. When you woke up, you were sleeping on a hard cement floor in the local jail. Little did you know, you were involved in a head on collision. You were going the wrong way on a one-way road and collided with an oncoming vehicle. The driver in the other vehicle died as a result of his injuries.
This is not an isolated case. There have been numerous cases with these similar facts. One case that was widely-publicized was the Congressman Patrick Kennedy case. Congressman Kennedy crashed his vehicle into a barricade on Captiol Hill in Washington D.C. A Police official arrived at the scene and stated that the Congressman appeared intoxicated. Later, it was determined that Congressman Kennedy took some Ambien pills. The Congressman said that he had no recollection of the incident.

The Ambien Defense or — also referred to as the Zombie defense — is used to show that the defendant had no knowledge of the act. Defense attorneys have used this defense which led to favorable plea bargains or, in some cases, outright acquittals. For example, in the Congressman Kennedy case, he pled guilty for driving under the influence of prescription drugs and he received one year probation and a $350 dollar fine. The prosecution dismissed the reckless driving charge and the failure to exhibit the driving permit charge. The Ambien Defense played a role in his plea bargain. However, there are some cases where the Ambien defense did not work.
Thus the law and the courts are not clear on how to deal with the Ambien Defense. There are some factors the court may consider: “(1) was the Ambien taken pursuant to the prescription? (2) was the Ambien mixed with alcohol, an illegal drug, or a drug forbidden by Ambien’s warning label? (3) did the defendant have any prior Ambien sleepwalking instances to put him on notice of the sleepwalking risks?” http://www.examiner.com/article/the-ambien-defense-criminal-law-unclear-on-how-to-treat-the-ambien-zombie-phenomenon. It is prudent to discuss with your doctor about the effects of Ambien, so you do not have to talk to an attorney about the problems that may result from the pill.

IF YOU HAVE ANY QUESTIONS ABOUT THE AMBIEN DEFENSE, CONTACT SAN DIEGO CRIMINAL DEFENSE ATTORNEY VIK MONDER AT 619.405.0063

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Beyond a Reasonable Doubt

There are different standards of proof depending on the type of trial. The standards have different definitions and different levels of difficulty.

For example, in criminal trials, the prosecution has the burden of proving the defendant committed the crime “beyond a reasonable doubt”. This is the highest burden of proof to meet out of all the possible standards.

“Beyond a reasonable doubt” requires that the prosecution must prove its case to the extent that there could be no “reasonable doubt” in the mind of a “reasonable person” that the defendant is guilty. There can still be a doubt, but only to the extent that it would not affect a reasonable person’s belief regarding whether or not the defendant is guilty.

However, if doubt does affect a “reasonable person’s” belief that the defendant is guilty, the jury is not satisfied beyond “reasonable doubt.”

Another standard of proof is the “preponderance of the evidence” standard. This is the standard that that a plaintiff must meet in civil trials. This standard is met if the proposition is more likely to be true than not true. The standard is satisfied if there is a greater than a 50% chance that the proposition is true.  This standard has the lowest burden to meet which means that it is easier to meet than the beyond a reasonable doubt standard.

If you are ever involved in a trial, civil or criminal, it is a good idea to know which of these standards are relevant to the case.

IF YOU HAVE ANY QUESTIONS, CONTACT SAN DIEGO CRIMINAL DEFENSE ATTORNEY VIK MONDER AT 619.405.0063 OR VIST BEYOND A REASONABLE DOUBT CRIMINAL ATTORNEY 

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Ways to Help your Attorney During Trial

If you or a loved one has been charged with a crime and is facing a trial, you are probably feeling overwhelmed. Despite the stress you may feel, it is time to think strategically, help your attorney, and to follow the well-intentioned advice of your attorney.

Your attorney is working tirelessly to formulate, present your defense, and hold the prosecution to their burden of proving their case. Although your attorney has the legal knowledge and experience to defend you, there are some things you can do to help your attorney during trial.

It’s important to listen to everything that all the witnesses have to say and to take very detailed notes. Prosecutors are not allowed to surprise defendants with witnesses that are not on the witness list. Prosecutors must disclose the names of all witnesses and experts that they intend to call at trial. The defense also must do the same thing. If the prosecutor calls a witness to the stand that was not on the witness list, there is the possibility this witness will not be able to testify.

Also, the defense must have received information on what a prosecution witness will testify about. Usually, a prosecutor will have their investigator interview a witness, write a report, and then give that report to the defense. If the witness testifies on the stand about additional information that was not in the report or other documents, the defense may try to strike the testimony or in an extremely prejudicial situation, move for a mistrial.

Both the defense and the prosecution must be aware of the information a particular witness will testify about. Neither the defense nor the prosecution can be completely surprised. Many times, the prosecution will provide the defense with a supplemental report with additional information the prosecutor expects the witness will testify to that was not included in the original investigative report. This avoids any surprises in the courtroom.

Another thing to watch out for is exculpatory evidence. Exculpatory evidence is evidence favorable to the defendant which clears or tends to clear the defendant of guilt. This is the opposite of inculpatory evidence which tends to prove guilt.

Prosecutors have the duty, under the United States Constitution to turn over to the defense exculpatory evidence that would raise a reasonable doubt about the defendant’s guilt. You can help your attorney by telling him or her if you are aware that the prosecution has not done this.

To sum up, there are ways you can help your attorney during a criminal trial. One way is to take notes on witnesses who testify in order to make sure that witness was on the witness list and is not testifying about more information the defense was not already aware of. The other you can help your attorney is by alerting him or her when the prosecution has not turned over exculpatory evidence about you if you are aware of this.

IF YOU HAVE ANY QUESTIONS, CONTACT SAN DIEGO CRIMINAL DEFENSE ATTORNEY VIK MONDER AT 619.405.0063 or VISIT CRIMINAL TRIAL ATTORNEY 

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Three-Strikes Sentencing

Now that the three-strikes law has been changed to require that a third conviction be serious or violent in order to be sentenced 25 years-to-life in prison, it’s estimated that about 3,000 inmates could qualify for re-sentencing. Prosecutors, defense lawyers, and the San Diego Superior Court officials are preparing for all the requests from inmates for re-sentencing. The San Diego District Attorney’s Office has already received many petitions.

Once a petition is filed, what is the process for a re-sentencing?

First, an inmate must file a petition to be re-sentenced.

Next, the inmate must qualify for a hearing in front of a judge.

Some inmates will not qualify for a sentence reduction. For example, those who are registered sex offenders will not qualify for a reduction. Also, prisoners with convictions for rape or child molesting also won’t qualify even if their final strike was a nonserious felony. However, some convictions that involved the use of a firearm or drugs will qualify.

Once an inmate is qualified to appear for a hearing, he or she will face a judge. The judge has the final call on whether to reduce the sentence and can refuse if it is determined doing so presents an “unreasonable risk to public safety.” An inmate’s prior convictions and their record of behavior in prison will be part of these hearings.

This new opportunity to be re-sentenced has given inmates and their families new hope. Now, inmates who have been sentenced as long or more than 18 years ago could be released. Inmates who had been serving life sentences for committing a nonserious and nonviolent third felony will now have the chance to leave prison, re-join society, and begin living their lives with their families and friends again.

IF YOU HAVE ANY QUESTIONS, CONTACT SAN DIEGO CRIMINAL DEFENSE ATTORNEY VIK MONDER AT 619.405.0063 OR VISIT CRIMINAL THREE STRIKES ATTORNEY

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Sex Offenders In San Diego

Proposition 35, called the “Californians Against Sexual Exploitation Act” Initiative was passed on November 6^th. The new law

• Increased prison terms from human traffickers.
• Requires convicted sex traffickers to register as sex offenders.
• Requires all registered sex offenders to disclose their internet accounts.
• Requires criminal fines from convicted human traffickers to pay for services to help victims.
• Mandates law enforcement training on human trafficking.

81% of the voters approved Proposition 35 on election day. Even though it has been approved, it is not now being implemented. A judge has now granted a temporary stay to block part of Proposition 35. The judge has allowed the stay while the ACLU and the San Francisco-based Electronic Frontier Foundation challenge the proposition.

The groups challenging the proposition are against all the disclosure requirements of Proposition 35. The new law requires sex offenders to register their online screen names, email addresses, and Internet service providers with law enforcement. The law also requires them to let police know anytime they leave a comment online. Sex offenders would have to disclose comments such as restaurant reviews an opinion on a blog.

The groups challenging Proposition 35 argue that the law is overly broad and violates the First Amendment rights of sex offenders by prohibiting their anonymous speech.  The groups believe that reintegration into society is an important part of their rehabilitation.

Oral arguments for extending the court order will be held on November 20^th.

IF YOU HAVE QUESTIONS ABOUT SEX REGISTRATION, CONTACT SAN DIEGO CRIMINAL DEFENSE ATTORNEY VIK MONDER AT 619.405.0063 OR VISIT SEX OFFENDER ATTORNEY

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Medical Marijuana is not Illegal

On Election Day, November 6, 2012, the voters of Colorado and Washington State voted to legalize marijuana for recreational use. People in Colorado are already looking to buy marijuana but under the new law, people cannot begin buying pot until next year. Colorado still needs to set up a regulatory framework to handle what is expected to be a big expansion of its marijuana market even though Colorado already has had more medical marijuana dispensaries than it has Starbucks.

Colorado is already seeing the effects of legalizing marijuana. There are more and better marijuana products in the stores such as well-grown medicine. Prices have also come down. In 2009, an ounce of marijuana was $400 but now the price is around $250. Next year, when legalization is fully implemented, prices could fall even further.

However, under federal law, marijuana is still an illegal drug. There will inevitably be a clash between the state law of Washington and Colorado with federal law.

In California, pot is still illegal for recreational use but not for medicinal use. In California, a person may consume and possess pot as long as they have a recommendation from their doctor that using medical marijuana would be beneficial.

There is a possibility that more states, such as California will eventually also legalize the recreational use of marijuana. People in California have been working to legalize marijuana for recreational use

Lawmakers in Rhode Island and Maine are planning to introduce legalization bills next year. It has been said that the question of legalized marijuana across the nation is not whether, but when.

IF YOU HAVE ANY QUESTIONS, CONTACT SAN DIEGO CRIMINAL DEFENSE ATTORNEY VIK MONDER AT 619.405.0063 OR VISIT MEDICAL MARIJUANA ATTORNEY