Articles Posted in Constitutional Rights

Many of my clients are surprised at the amount of information law enforcement has gathered about them. I wrote awhile back about how ubiquitous law enforcement surveillance is in our everyday lives.   Many of my clients learn the hard way. Not only is it impossible to hide from the police these days unless you go live in the woods (well, not even that), but past crimes that many think they have escaped often come back to haunt the present because technology has conquered our “secret” world.

One of the “gifts” to law enforcement is the cell phone. Cell phones make it so much easier now for law enforcement to track down a suspect, discover a suspect’s plans or activity (although this usually will require a search warrant or consent in California), and learn much more about a suspect just by reviewing cellphone or cell tower data. We want to believe law enforcement conducts their cell phone surveillance lawfully but in this age of whistle blowers, we know that is not always the case.

One of the supposed advantages of iPhones is that the data on the phone is encrypted. Even law enforcement cannot access information from an iPhone…or so they say. The reader may recall the outrage over the reported inability of the FBI to access the iPhone data of the San Bernardino terrorist. The FBI couldn’t crack the iPhone code and asked (well, ordered) Apple to create software that would allow the FBI access. Apple refused. Before the FBI went to court to compel Apple to crack the code, the FBI paid a third-party “hacker” to break into the phone’s data.

While every defendant has a constitutional right to a jury of his or her peers, criminal charges rarely go to trial. In fact, around 97% of criminal cases are resolved by a plea bargain. A plea bargain is when the defendant pleads guilty or nolo contendere (no contest) to criminal charges. Often the process involves the prosecutor agreeing to dismiss some of the charges in exchange for a plea to the remaining charges. Sometimes, the plea will include an offer of a low-end sentence or probation in exchange for the plea. These are called conditional pleas. An open or unconditional plea is one where the defendant pleads guilty with no promises made to him or her for the plea.

The judge has very little to do with the conditional plea process and, in fact, in California, the judge is not allowed to engage in any plea bargaining. However, at the time the plea is entered by the defendant in court, the judge can reject the plea agreement but the judge cannot change the terms of the agreement. Open pleas can be made to the court and the judge can, in that instance, indicate the sentence he or she will levy against the defendant. If that sentence is not imposed, the defendant can withdraw the plea.

Following the acceptance by the judge of the defendant’s plea of guilty or no contest, whether after a plea bargain with the prosecutor or an open plea, the court will enter judgment, that is, the judge will enter the conviction pursuant to the plea.

When a person is charged with a crime, the prosecution is bound by law to provide all the evidence supporting the charge or charges, including evidence that might exonerate the defendant. Evidence that is favorable to the defendant is called “exculpatory evidence” and back in 1963, the United States Supreme Court held that the prosecution must give all this exculpatory evidence to the defense. This case, Brady v. Maryland, 373 U.S. 83, was the seminal case on exculpatory evidence. These days, attorneys refer to Brady evidence when they are talking about exculpatory evidence.

Unfortunately, the prosecution sometimes plays fast and loose with exculpatory evidence. And if the defense doesn’t know the evidence exists, it may be hidden by the prosecution and not available in the discovery, leaving the defendant at a disadvantage. This doesn’t happen in every case, most prosecutors run an honest practice, but it happens. A few years ago, the Orange County District Attorney’s office was scandalized by allegations that it withheld material evidence from the defense and the court in a high-profile murder case. That led to a new law in California that provides for criminal punishment of a prosecutor who withholds evidence.

Sometimes, the discovery that a prosecutor has withheld exculpatory evidence does not become known until years after the trial. For example, just this year, disciplinary charges were filed by the State Bar of California against a former L.A. City Attorney who was accused of withholding potential exculpatory evidence in a murder case that took place 30 years ago. The case was a death penalty case and the defendant was convicted and sentenced to death.

We cannot walk down our streets, drive our cars, or talk on our cell phones without these activities being caught by ubiquitous law enforcement surveillance. Use a cell phone and your location can be easily discovered. Similarly, the license plates of cars everywhere are being continuously scanned and registered in a database. Facial recognition cameras are scanning pedestrians and drivers at every turn. Next time you are walking in town, look up on the light poles and other high public structures. Smile, you’re on candid camera.

This surveillance undoubtedly helps the cops catch the bad guys. I have seen how these techniques have enabled the police to discover the perpetrator of crime and locate him or her quickly. The techniques also often provide the prosecution with solid evidence. The defendant who says, “I wasn’t there” as defendants do, will often find out that the prosecution has irrefutable evidence that the defendant was there. Maybe the defendant’s cell phone signal was running off a cell tower near the location of the crime, maybe the defendant’s license plate was scanned on the street where the crime occurred, maybe the prosecution even has a picture of the defendant from a nearby surveillance camera, and soon, a law enforcement drone or small plane may capture evidence against the defendant. Defendants are often unaware that they have been surreptitiously surveilled – as indeed we all are!

This comes with a price. Every innocent citizen is caught in this web of surveillance implicating our Fourth Amendment Right to be free from unreasonable search and seizure. Many people are willing to be constantly surveilled in trade off for greater crime prevention. But, the wisdom of our Founding Fathers should not be ignored.

Sometimes a person arrested for a crime will swear he or she was nowhere near the location when the criminal incident took place., but the prosecution will allege otherwise…with evidence to prove it. That evidence: tracking of the defendant’s cell phone. Even if the defendant wasn’t using his or her cellphone at the time, the cellphone sends data to cell towers, or more commonly these days, the GPS system embedded on most cellphones does the work. All the police need is the defendant’s cellphone (assuming he or she was carrying it at the time of the alleged crime) to find the defendant’s location at the time. But what if the cellphone, say, disappeared? The authorities can still get the information from the cellphone service provider.

In California, the state authorities need a warrant (or the cellphone owner’s consent) to search any cell phone data, but that isn’t true in all states and it isn’t the case for federal crimes. So even if an individual is suspected of a crime in California, but it is a federal crime being investigated by federal authorities, those authorities do not need a warrant to search historical data held by the suspect’s cellphone service provider.

The Fourth Amendment to the United States Constitution guarantees that every person in this country is secure from unreasonable searches and seizures. How “unreasonable” is defined is the subject of many a treatise but for purposes here and ignoring the enumerated exceptions for the moment, if there is no warrant, the search and seizure is considered by law to be “unreasonable.” How would the warrantless search of historical cellphone data as recorded by the cellphone service provider fit into the cellphone owner’s Fourth Amendment guarantee?

Police use-of-force has been big news in this country for several years now. A large segment of the public believes that the police have used fatal force without just cause. They cite many high-profile cases: Michael Brown, Eric Garner, Freddie Gray, and so on. These police killings have triggered a storm of protests across the country, including in California. In some of these cases, the officer or officers involved faced possible charges of manslaughter or even murder. In virtually all of these cases, the decision as to whether to prosecute these officers is left to a secret grand jury proceedings. With few exceptions, the grand juries have found that an indictment of the officer is not supported by the evidence. The public often perceives the grand jury as biased in favor of the cops and there has been a high level of distrust in the grand jury system. It doesn’t help that the proceedings are held in secret.

California became the first state in the country to address the public’s distrust of the grand jury system as employed in officer-involved lethal force cases. In 2015, Governor Brown signed into law a bill, SB 227, prohibiting the use of grand juries in California when an officer has used lethal force under circumstances that are possibly criminal. Rather, if a cop was to be charged, the district attorney would have to directly file the criminal complaint and the case would proceed through an open preliminary hearing. Thereafter, charges by what is called an information would be filed by the district attorney if the evidence at the preliminary hearing showed a reasonable possibility that the officer’s use of lethal force was a criminal act. Prior to enactment of SB 227, California prosecutors had the option of going to the grand jury or directly filing charges by a criminal complaint.

Not surprisingly prosecutors opposed SB 277. They argued that the grand jury system, by the fact that it is held in secret, facilitates the discovery of the truth. The grand jury proceedings, they argued, permits them to compel witnesses to testify and “offer a fuller seeking of the truth for all sides. . ..” (SB 227 Arguments in Opposition.) Prosecutors also objected because they argued that if they could not use the grand jury as an investigation tool in police lethal force cases, it hampered their ability to properly investigate the incident.

In 2015, Orange County Superior Court Judge Thomas Goethals removed the Orange County District Attorney’s Office from the trial of Scott Dekraai, who was accused and since convicted of the worst mass murder in Orange County. Judge Goethals booted the District Attorney’s Office from the case after an investigation initiated by the defendant’s lawyer revealed that law enforcement investigating the case withheld material evidence from the court. Law enforcement officers are agents for the District Attorney and as such, the judge found that the District Attorney’s Office was responsible for the illegal withholding of evidence in the trial. Although Judge Goethals found that the district attorneys on the case had committed serious misconduct, but concluded that their actions were not intentional.

Some legal observers would beg to differ with the judge’s ruling. Many defense attorneys have long suspected, or even known, that the District Attorney’s Office regularly withholds exculpatory evidence at trial. Sometimes a trial seems more like a competition, with the District Attorney out to win at all costs, than the right guaranteed by our Constitution for a fair and impartial presentation of facts to be heard and decided by a trial of peers. This is not only a violation of the defendant’s due process rights but it perverts the criminal justice system. The withholding or distortion of evidence denies a defendant a fair trial and, worse—it can (and has) result in the conviction of an innocent person.

Jumpstarted by the events in Judge Goethals courtroom, Assembly Bill 1909, was signed into law by Governor Brown last month. This law, which will be added by a subdivision to Penal Code section 141, punishes prosecutors who are found to abuse their power by “intentionally and in bad faith” tampering or withholding evidence in a criminal trial. The new law requires that the prosecutor knew the evidence was “relevant and material to the outcome of the case” and acted with “specific intent.” In the Orange County case, Judge Goethals found that the district attorneys did not act intentionally. So even though this new law was prompted by the actions in that trial, the district attorneys involved would not be prosecuted under this new law.