|
Sonoma County is at a funny point in its handling of jury service right now in light of the COVID pandemic. Jurors are meeting—not at the courthouse, but at the fairgrounds. Very few trials are being held. But the county is still sending out lots of jury summons. Which begs the question (loudly these days, if you ask me): Does a person actually have to show up for jury service?
Yes. A person’s constitutionally-guaranteed right to a jury of one’s peers is one of the most important aspects of our criminal justice system, inspired by the idea that it shouldn’t just be the high ranking mucky-mucks, or government officials, or the “cool kids” who sit in judgement of the citizenry, it’s the citizens themselves. That’s why it is imperative that a person respond as directed to a jury summons, not just because it is a crime (potentially leading to actual jail time,) to ignore it. Once you’ve received that summons, take a close look at the date for which you’re supposed to respond. If you’re supposed to be somewhere else that day, because of an important medical procedure, or a pre-planned vacation, don’t worry! You get one free postponement, simply by mailing a request for postponement back. But unless you request a postponement, you’re going to need to follow the directions for reporting as indicated on the summons. (In Sonoma County, you can call or check the County’s website the night prior to your service date to see if you need to actually report in person.) If you’re called in to serve, but have a compelling reason why you should not be asked to be seated on an actual jury, you’ll have a chance to explain to the court why serving would be a hardship. Reasons accepted by the court include:
Yes, having to upset your daily life for jury service can be a real pain, but put yourself in the position of the defendant: would you rather have people from your own community sitting in judgment of you, or a default, nameless, faceless government entity?
0 Comments
A common question I’m asked is “how long do the police have to arrest me after I’ve committed a crime.” A better question to ask is “how long does the DA’s office have to charge me with the crime.” And the answer to that, like so many other questions is: “it depends.” It depends mostly on the type of crime a person has committed, but whether the victim was a minor at the time of the offense can also affect this legal deadline, called the statute of limitations. The various statutes of limitation for crimes committed in California are defined in Penal Code sections 799-805.
We have statutes of limitation to ensure the DA’s office files charges in a timely manner, when evidence should be more easily available and the events are more fresh in the minds of any witnesses, so that the defendant gets the most fair trial possible. In general, once the statute of limitations period for a case has run, the DA’s office can no longer file charges. Of course, there are very serious crimes for which there is no statute of limitations: Murder, treason, and embezzlement of public funds. From there, a general rule of thumb is that most felonies (except those that are especially serious or sexual crimes committed against children,) have a statute of limitations of three years, and most misdemeanors have a statute of limitations of one year. (An “especially serious” felony is generally one in which the maximum punishment is eight or more years in custody.) For most crimes the statute of limitations begins to run at the time of the offense is committed. In order to protect the most vulnerable segment of our community—the elderly, minors, and those who are dependent on others for their daily needs—the law allows for longer statutes of limitations. For example, some crimes which involve violent, sexual acts committed against minors have statutes of limitations which do not run until the victim has turned 40 years old. A lot of crimes which involve elderly or dependent adult victims have statutes of limitations of 5 years. And for some crimes which involve a higher degree of trickery or fraud the statute of limitations may not even begin running until the crime has been discovered. Prior to this newly-enacted law, in California the maximum term of probation to which a judge could sentence a defendant was five years for felony offenses and three years for the vast majority of misdemeanor offenses. (That said, more serious misdemeanor-level offenses such as child abuse and repeat-offender DUIs were eligible for lengthened probationary periods of up to five years). Despite concerns that any reduction in the time the criminal justice system has supervise and rehabilitate offenders might detrimentally impact an offender's rehabilitation, the legislature passed, and Gov. Gavin Newsom signed AB 1950, which effectively caps misdemeanor probation at a length of one year, and felony probation at a length of two years. The reason for the change revolves around studies that have shown that probation often disproportionately affect people of color. For example, the authors of the bill cite the fact that Black Americans make up 13% of the U.S. adult population, but 30% of people who are serving a probationary sentence. Further, the "probation monitoring fees" are often an increased burden on low-income families. A 2018 Justice Center of the Council of State Governments study found that a large portion of people violate probation and end up incarcerated as a result. The study revealed that 20 percent of prison admissions in California are the result of probation violations, accounting for the estimated $2 billion spent annually by the state to incarcerate people for supervision violations. Eight percent of people incarcerated in a California prison are behind bars for probation violations. Close to half of those violations are technical and minor in nature, such as missing a drug rehab appointment or socializing with a friend who has a criminal record. And yet despite the fact that these technical violations (non-crimes) do not threaten our communities, they cost taxpayers at least $235 million per year." Gov. Gavin Newsom signed AB 3234 earlier this month, creating additional statutory mechanisms for Court-initiated Misdemeanor Diversion. Now, via PC 1001.95 et seq, the courts throughout the state can grant client pre-trial diversion, even over the DA's objection, for a very wide array of offenses. (Currently excluded offenses are violations of Penal Code 290 et seq., 273.5, 243(e), and 646.9.
Previous law authorized a county to establish pretrial diversion programs for defendants who have been charged with a misdemeanor offense and authorizes other diversion programs, including for defendants with cognitive developmental disabilities, defendants in nonviolent drug cases, and traffic violations. Proactive Diversion programs have been shown to yield lower recidivism rates than seems when the judicial system used tactics more focused on prosecuting and jailing offenders. Under the law, the defendant can be given up to 24 months to complete whatever conditions are imposed as a part of the diversion offer, and the terms of that diversion plan can be narrowly tailored to the specific facts and circumstances of the defendant's alleged crime. Should a candidate not successfully complete the diversion program, the criminal proceedings will be reinstated. Should a candidate successfully complete the diversion program, the net result will be that the criminal case against them is officially dismissed, and the record of arrest will be sealed, allowing a person to avoid potentially lifelong collateral con sequences of a conviction generally associated with having a criminal record. Because a candidate is not required to enter a plea to participate in diversion under this section, it will not count as a "conviction" for immigration purposes. The following changes were made to Cal Fish and Game regulations, effective July 2020, relevant to our area:
For a full summary of the changes in the regulations see here. We certainly cannot expect our police officers to make perfect decisions all of the time. Because of this, the legal doctrine of qualified immunity generally applies to the decision they make. "Qualified Immunity protects officers from being held personally legally responsible for a variety of constitutional violations (notably now: the right to be free from the police using excessive force against them) for money damages under federal law if the police did not violate "clearly established law."
But right now, the Supreme Court is debating whether or not this protection for officers should continue to exist. OCTOBER 2020 Update: This legislative session changes in the law have been adopted to help address instances of potential police misconduct:
For more, see here. KEEPING AN EYE ON CHANGING LAWS In resPonse to the current BLM PROTESTS: Police misconduct records.6/10/2020 Public access to records regarding police misconduct has been a hot-button issue for the last several years. Thankfully, New York is taking steps in the right direction to bring transparency to the misconduct of its officers.
For the full story see here. The following information was originally reported by the associated press[1]:
“More than a quarter of U.S. states and numerous smaller jurisdictions are looking for ways to reduce the use of solitary confinement, according to the Vera Institute of Justice, which encourages alternatives to a practice behavioral experts say is dehumanizing and can worsen mental illness. The new policies in California came after Specter’s firm sued seven of California’s 58 counties, alleging that conditions had grown inhumane as jails absorbed inmates who previously would have served their sentences in state prisons. The state in 2011 began sending less serious offenders to local jails for years at a time to ease crowding in state penitentiaries. Some jurisdictions nationwide are banning isolation for young offenders, pregnant women or those with mental health diagnoses. The California counties’ approach of generally limiting it to those who engage in continued violent behavior has dramatically reduced the number of inmates in isolation and the length of time they stay there…. Sacramento County also is following the policy pioneered by Santa Clara County, while Fresno County is considering it. Among other things, it encourages the use of low-cost incentives to reward good behavior, like the opportunity to listen to the radio, watch a movie or get an extra snack. Sacramento County has cut its isolated population roughly in half, to about 60 inmates, said Lt. Alex McCamy: “It’s a limited time frame and a limited group, but the initial impression is positive.” Rick Raemisch, who restricted the use of solitary confinement when he headed Colorado’s prison system, said the violent, tense, dirty conditions in Santa Clara County’s jail improved markedly with the new policy. “Think of yourself being in a cell the size of a parking space for 23 hours a day,” said Raemisch, who consulted with county officials. “At a minimum you’re going to get angry, and when you get angry you’re going to fight back.” Inmates nationwide are most often segregated for nonviolent “nuisance infractions” like smoking, cursing, disobeying orders or having unauthorized items from the commissary, said the Vera Institute’s Sara Sullivan. Santa Clara County once locked a woman in solitary confinement for 2 1/2 years for talking back to correctional officers or yelling and banging on her cell door with other detainees, according to Specter’s lawsuit. The California counties’ new policy of restricting its use to continued violent behavior could be seen as a national pilot program, Sullivan said. ...There’s been a decades-long effort to reform solitary, especially in prisons. But what we haven’t seen is a paired reform effort for jails,” said Amy Fettig, director of the American Civil Liberty Union’s Stop Solitary campaign…. Long-term isolation can be so debilitating, Fettig said, that she’s had clients cut themselves “just to feel something because they’ve become numb.” ________________________ [1] https://apnews.com/2c40e61703f2a493c4dfa152150e7a29 Despite the passage of the “Wildlife Traffic Safety Act,” the result of SB 395, it is still illegal to collect or possess roadkill. However, the new law is paving the way for citizens to use the “salvageable wild game [roadkill] meat” meat of deer, elk, pronghorn antelope or wild pig. According to data from the CHP, approximately 8,000 large game animal vs. vehicle collisions have occurred statewide over the last six years. These collisions have resulted in over 1,500 injuries and at least 24 fatalities to motorists and their passengers. UC Davis researchers estimate that the costs associated with animal vs. vehicle collisions exceed $200 million annually. But perhaps more tragically, for the large animals involved in these collisions, approximately 40% of them are killed, and many are injured, however the fate of roughly one-third is unknown. According to the author of SB 395, Bob Archuleta, “By allowing the take of large game animals after a highway collision, and by logging the site of the incident, we not only clean up our highways, we gather the necessary data to prevent the occurrence in the future.” So if the new law doesn’t allow the taking of roadkill, what does it do? The new change in the law gives the California Fish and Game Commission permission to work with the California Department of Transportation, California Highway Patrol and the California Office of Environmental Health Hazard Assessment with the goal of ultimately adopting regulations to establish a “salvageable wild game meat utilization program.” Such a program would almost certainly include a permitting and a reporting process. Currently, California’s best public reporting system on roadkill statistics is that run by the University of California, Davis. (Their California Roadkill Observation System (CROS) allows anyone to contribute roadkill data and photos to the system.) However, the new law allows the Fish and Game Department to create their own roadkill reporting database, with the goal of helping wildlife managers identify the places where wildlife/vehicle collisions are most common. With that information, legislators claim the state can make more pinpointed wildlife conservation efforts. The permitting process—which per the law’s text, will generate free permits—is expected to be run via a user-friendly and cell-phone-friendly web- based portal. Permitting will take into consideration roadways, locations, species subject to salvage, and any other aspect necessary to ensure the salvage pilot program’s success. With a permit, any person who unintentionally strikes and kills a specified animal on a roadway or who encounters an unintentionally killed animal of eligible species may recover, possess, use or transport the whole animal and salvage the edible portions. That said, only an officer of the Fish and Game department or a law enforcement may kill a severely injured animal that has been struck by a passing vehicle. However, once an injured animal has been euthanized by one of these designated officers, a permitee can lawfully collect the meat. With this change in the law, California will be one of among half of the states allow roadkill to be collected, processed and eaten. If you have been arrested or cited for a Fish and Game violation in Sonoma, or any of Sonoma’s surrounding counties, contact Devina Douglas. Trapping animals for the sale or use of fur is now illegal in California, the first state to implement such a law. The fur-bearing animals protected by this law include grey fox, coyote, beaver, badger and mink.
Previously, trappers were required to obtain a trapping license, but the state claims that the licensing system had become unwieldy. Apparently, the state issued only 133 trapping licenses and four fur dealer licenses in 2017, generating only $16,000 in revenue for the state. “Not only does the cruel fur trapping trade decimate our increasingly vulnerable wildlife populations, running this program doesn’t even make fiscal policy sense,” Assemblymember Lorena Gonzalez (D), author of the legislation, said in a statement. “Taxpayers are subsidizing this unnecessary commercial activity because the cost of managing this program isn’t even covered by the revenue from trapping license fees.” Despite bobcat numbers growing steadily throughout the state and country, after the passage of Assembly bill 1254, touted as being part of a package of bills promoting “animal welfare” and “fighting animal cruelty,” the “trophy hunting”[1] of bobcats will be illegal for the next five years and possibly longer, unless state wildlife officials approve a plan to preserve the animals’ overall population. This means that under most circumstances, hunting, trapping or killing a bobcat is prohibited, with exceptions allowed for:
This law will stay in place for at least the next five years. After that, state wildlife officials will have the option of reopening the hunting season with regards to bobcats. …However, as most of us who keep our eyes on such matters have noted, the chances of Fish and Game reopening a once-closed season is small. Further, in order for the season to reopen, the Legislature will have to appropriates funds specifically earmarked to satisfy conditions imposed by the bill.[2] These conditions include performing studies,[3] which are estimated to cost $2.5 million, and setting tag fees sufficient to recoup the costs. As a point of reference, the current revenue from bobcat tags amounts to approximately $35,000 a year, less than 2% of the estimated cost of reopening a season. The necessity of this bill is in doubt as opponents (a large majority of whom are part of the hunting world,) pointed out that while during the 2017/2018 hunting season (the last season for which there is comprehensive data,) the Department of Fish and Wildlife issued just shy of 12,000 bobcat tags, but only 331 animals were actually taken. These opponents also note “The harvest rate of bobcats is so low – not because bobcats are scarce – but rather because bobcats are shy and secretive by nature, and because of the severe restrictions already in place on how and where they can be taken.”[4] California continues to be one of the most aggressive states with regards to protecting wildlife from hunting and trapping. In 1990, it became the first state to ban mountain lion hunting, the state enacted a trapping ban initiative in 1998, and the hunting of bear and bobcat hunting with hounds was outlawed in 2011. ___________________ [1] This language is considered a politically-motivated addition to the law, as neither hunters nor the state Fish and Game Code considers bobcats “trophy animals.” [2] See Fish and Game Code 4157 [3] The studies will look to the potential impacts of a bobcat hunting season, including the effects on all of the following: (1) Bobcat populations, (2) Bobcats’ wild prey, (3) Disease abatement, including, but not limited to, hantavirus, and (4) The control of invasive species, especially nutria. [4] A copy of the letter of opposition can be found here: https://www.calwaterfowl.org/wp-content/uploads/2019/06/AB-1254-SNRW-Coalition-Ltr-Oppose-6-7-19.pdf With recent school-shootings in the news, now might be a good time to talk about CA's laws regarding the possession of firearms on school property.
The Gun-Free School Zone Act of 1995 controls most of the law surrounding a person's ability to bring a firearm onto a school zone, which is defined as a zone of 1000 feet surrounding and including "an area in, or on the grounds of, a public or private school providing instruction in kindergarten or grades one to 12." That Act made it illegal to bring a firearm into a school zone under most circumstances, with exceptions being made for those with permission from school officials. In 2019, it them became illegal for school workers, or anyone else who previously had permission, to bring guns on campus, even if that person has a concealed carry permit. Prior to this change, the Gun-Free School Zone Ac allowed districts and county education offices to make their own determinations into whether qualified civilians could carry a firearm on campus. This change in the law still allows firearms to be brought to a campus for (1) certified hunter education programs (as long as the firearms are unloaded and participants do not possess live ammunition in a school building,) (2) programs that involve shooting sports, and (3) activities that are sanctioned by a school district that occur on district property. Firearms possessed by peace officers, honorably retired peace officers with valid concealed carry permits, and authorized security guards are still allowed to carry a firearm. Further, firearms are still allowed to be used at an existing shooting range, and any firearm technically can be on a campus if it is an unloaded handgun and is in a locked container or within the locked trunk of a vehicle. If you have. question about gun laws, feel free to contact Devina. Effective January 1, 2020, several changes to California Criminal law will the place. Below is a quick snapshot of the changes.
California may soon restore the voting rights of approximately 50,000 of its citizens, felons.
Currently, Only Maine and Vermont allow felons to vote while in custody in state prisons related to their sentence. Massachusetts used to… However, the law was changed after it was discovered that inmates formed a political action committee to influence their state representatives. The California Constitution states that “The Legislature shall prohibit improper practices that affect elections and shall provide for the disqualification of electors while mentally incompetent or imprisoned or on parole for the conviction of a felony.” However, in 1976, the state amended the constitution, restoring voting rights to felons if the felon was not still “imprisoned or on parole.” …But this change in the law was not quite so clear cut, especially after California passed its 2011 Realignment Act, which effectively moved a substantial number of low-level offenders out of state prisons to county jails as a way to address overcrowding. Were felons being housed in county jails “imprisoned”? “If you look at the state constitution, you would have a hard time believing that jails and prisons aren’t the same intent,” noted Hans von Spakovsky, a senior legal fellow at The Heritage Foundation who specializes in election-related issues. However, one must wonder if this change in the law was politically motivated. “Social science shows that felons overwhelmingly vote Democrat,” von Spakovsky said. California Attorney General Kamala Harris supported the bill, stating “The right to vote is fundamental to our democracy and society, and yet for too long we have stripped certain individuals of that right.” Other proponents believe that by restoring a felon’s ability to vote, the felon will be less likely to reoffend because they are more connected to their community. The ACLU believes the change in law “would address the history of racial oppression behind California’s felony disenfranchisement laws. Three of every four men leaving California prisons are either African American, Latino, or Asian American. Black Americans are four times more likely to experience felony disenfranchisement than are white Americans.” We’re hearing more and more about fights on school grounds these days, and the restrictions on what schoolchildren can and can’t do on those same school grounds seem to be getting tighter. It seems that every day school officials are announcing they are at the end of their ropes, and that the criminal justice system is getting involved.
Years and years ago a program called Scared Straight was introduced to high schoolers, designed to show troublemakers what the inside of a jail really feels like. In the original 1978 documentary, the alleged troublemakers were taken to Rahway State Prison, where a group of inmates sought to "scare them straight" in hopes that the troublemakers would begin taking steps to avoid their own jail sentences. While the participants in the documentary were volunteers, recently the California courts sought to clarify whether school resource officers (usually law enforcement officers assigned to a school campus,) could arrest a student as a way of scaring straight uncooperative students. In that case, and in response to an on-going conflict a between group of students, the school’s assistant principle called a meeting with the students, and invited the school’s resource officer (a Sheriff’s deputy,) to attend. When the meeting didn’t go as planned, the deputy formed the opinion that the students were being uncooperative and disrespectful, and within “minutes” of his arrival at the meeting threatened to take all the students to jail to “prove a point.” As he continued to lecture them, he also stated that he didn’t care who was ultimately at fault. Unfortunately, his threats did not convince the students to cooperate with his inquiry so he arrested all the students for a violation of Penal Code 415- Unlawful Fighting. One student was cited and released to her father, the other six were taken to jail. No disciplinary action was taken against the students at school, and no charges were ever filed in the court system. When the parents of a few of the student sued, our courts were asked to determine the constitutionality of the student’s arrests (a “seizure” under the US Constitution’s 4thAmendment) in this situation. As it pertains to the 4thAmendment, the US Supreme court has previously held that “the school setting requires some easing of the restrictions to which searches by public authorities are ordinarily subject.” As a result, school officials, under certain circumstances, can conduct warrantless searches of students, even where the traditional level of probable cause hasn’t been reached. In these cases, whether a search is allowable “depend[s] simply on the reasonableness, under all the circumstances, of the search.”[1] So, in these situations, what is reasonable? …When there is a “special needs exception” to the general warrant requirement. In making this determination, the court uses“a twofold inquiry,” which first looks to “whether the search (or seizure) was justified at its inception,” and then whether “the search (or seizure) as actually conducted was reasonably related in scope to the circumstances which justified the interference in the first place.” In these “special needs” situations, the “actual motivation” of law enforcement should be considered. The court here decided that the arrest of the students was not “justified at their inception,” because there were only vague allegations of fighting, with no information about who instigated the fights; the school resource officer clearly stated he was arresting the kids to make a point. As a result, the court held that the student’s arrests were constitutionally unreasonable. “The arrest of a middle schooler . . . cannot be justified as a scare tactic, a lesson in maturity, or a chastisement for perceived disrespect.” [1]New Jersey v. T.L.O. (1985) 469 U.S. 325. Generally, law enforcement is held to stricter standards, but when they are on campus and acting at a school official’s request the same relaxed standards that apply to the school officials apply to law enforcement officers. Imagine being at home when the police show up to execute a search warrant for your home, looking for documents, computer records, and electronic information storage devices. …And you’ve got to use the restroom. Should a same-gender officer be able to insist on coming into the bathroom with you to watch you relieve yourself, all under the guise of ensuring you don’t destroy or hide evidence while you’re in there? Thankfully, the court said no.
In Ioane v. Hodges[1],the IRS suspected Mr. Ioane criminal fraud. The IRS sought, and was granted, a search warrant, allowing them to access the Ioane home, looking for documents, computer records, and electronic information storage devices that could be evidence of that fraud. The Ioanes were told then were free to leave, but would not be allowed back into the house if they chose to leave. So they stayed, waiting patiently in the kitchen. At some point during the search, Mrs. Ioane informed the Agents that she needed to use the bathroom. A female agent accompanied her to the bathroom, told Mrs. Ioane to remove her clothing, and then told Mrs. Ioane to hold up her dress while she relieved herself. Feeling rightfully violated, Mrs. Ioane filed suit in federal court under 42 U.S.C. § 1983. First, the court decided that Mrs. Ioane was able to file suit as the female officer was not entitled to qualified immunity from civil liability, after balancing Mrs. Ioane’s right “to hold public officials accountable when they exercise power irresponsibly” with the government’s “need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Generally, the law defaults to finding that the government is entitled to qualified immunity unless the facts demonstrate that the officer’s conduct violated a constitutional right, andthe right was clearly established at the time of the asserted violation. Because this case revolved around the 4thAmendment, and the 4thAmendment always begs in inquiry into the reasonableness of the government’s actions, the court was, in short, asking if the female agent’s demand to actually watch Mrs. Ioane relieve herself was reasonable under the circumstances of that case, specially looking at “(1) the scope of the particular intrusion, (2) the manner in which it is conducted, (3) the justification for initiating it, and (4) the place in which it is conducted.” So let’s walk through each of these factors. First, as us reasonable minds would expect, the court had no trouble announcing that it isa violation of one’s right to bodily privacy to require that person to expose him- or herself to an officer. Because the Court logically reasoned that the “naked body” is the most “basic subject of privacy,” it found that “the scope of the intrusion into [the wife’s] bodily privacy here was significant.” Second, the court found it was important that Mrs. Ioane was not detainedat the time of this intrusion, and thus was entitled to more freedom from the scrutiny of the agent. This was especially so as there was no reason to believe that Mrs. Ioane was in possession of any weapons or evidence at the time she requested to use the bathroom. Lastly, it was noted this intrusion occurred in the Ioane home, and a person’s home has always been held to be a place in which we can expect to heightened level, of privacy. Thus, the court held that forcing a person who has not been detained to expose him- or herself to a law enforcement officer, is a Fourth Amendment violation unless the officer has reasonable articulable suspicion that the person be armed, or probable cause to believe he or she is secreting evidence. [1](9th Cir. Sept. 10, 2018) 903 F.3rd929. Let’s say you’re a passenger in your friend’s car when your friend gets pulled over for speeding. Assuming the police have no reason to believeyou’vedone anything illegal, can the officer demand youridentification? Nope!
In United States v. Landeros[1], the court heard the case of a defendant who was told he was required to give the officer his ID under circumstances similar to those above. In that particular case, the officer felt his demand was justified as he felt it was “standard for (law enforcement) to identify everybody in the vehicle.” When the defendant refused twice, the officer called in backup, told the passenger he was not being “compliant,” and ordered the passenger to get out of the car. After his exit from the car, unfortunately, the police found evidence which led them to believe that the passenger had, indeed, violated the law. The 9thCircuit heard the case, and began its analysis stating the well-settled rule that “[a]n officer . . . may conduct certain unrelated checks during an otherwise lawful traffic stop. But . . . he may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual.”[2]An officer canask about other unrelated criminal activity during the traffic stop, but should confine these unrelated inquiries to within the time it takes to accomplish their original task: addressing the potential traffic violation and whether the driver is licensed and insurance, whether the vehicle is properly registered. Anything the officer does that exceeds the time it would have taken to accomplish those tasks is likely to be held to be illegal. And as we have discussed hon this blog before, any evidence unearthed during an “unlawfully prolonged traffic stop” is subject to suppression. The court, therefore, determined that the officer was NOT acting within the confines of the law when he extended the traffic stop by asking for the passenger’s ID, and even went so far as to state that the passenger’s refusal did NOT “provide[]reasonable suspicion of the additional offenses of failure to provide identification and failure to comply with law enforcement orders,” (which is a violation of Arizona law, where this case took place.) To be clear, a person is not required to identify him- or herself to law enforcement unless law enforcement has a reasonable suspicion the person is involved in criminal activity.[3] [1](9th Cir. Jan. 11, 2019) 913 F.3rd862 [2]Rodriguez v. United States (2015) [135 S.Ct.1609] [3]See Kolender v. Lawson (1983) 461 U.S. 352. If you post a video to a social media website like Facebook, but are careful to only share the video with your “friends” have you waived your expectation of privacy with regards to that video? The CA Appeals court says yes, even ifthe posting is automatically deleted within a certain time frame, and even ifit was shared with a small group of friends, one of whom shares it with others or was undercover police officer who had been posing as a “friend.”
In People v. Pride[1]the court heard a case which arose after a man had been mugged, and the attacker posted a video, shortly thereafter, of him wearing a gold chain stolen from the victim, and bragging about his new acquisition. Unfortunately for the defendant, an undercover police officer had infiltrated his “friend” group on social media, and saw the video. As they tend to do, the police officer preserved a copy of the video, and the prosecution used the video against the defendant during his criminal case. The defendant objected to the admission of the video on several grounds, first that the police violated his Fourth Amendment rights when they accessed his social media account under false pretenses: namely that the officer was pretending to be a friend when he was not. The defendant argued that social media was intended for private messages and thus he retained some expectation of privacy in the posting. Further, his expectation of privacy should also have been protected as the message was set to be automatically deleted once all the intended recipients of the video had watched it. The court noted that the inquiry into whether one’s expectation of privacy had been violated turns first upon whether the privacy right claimed by the defendant is one that “society is prepared to recognize as reasonable.” From there, the Fourth Amendment requires that a warrant, supported by probable cause, be obtained, absent certain extenuating circumstances. While other states have discussed this issue, this case represents the first time a California court has sought to determine if California society “is prepared to recognize as reasonable” a privacy right which would prevent law enforcement from posing as a “false friend” to seek out incriminating information. Like the others states which have addressed this issue, California decided that the answer is no. The court references the Delaware Supreme Court, noting “[T]he Fourth Amendment does not guard against the risk that the person from whom one accepts a ‘friend request’ and to whom one voluntary (sic) disclosed such information might turn out to be an undercover officer or a ‘false friend.’ One cannot reasonably believe that such ‘false friends’ will not disclose incriminating statements or information to law enforcement—and acts under the risk that one such person might actually be an undercover government agent. And thus, one does not have a reasonable expectation of privacy in incriminating information shared with them because that is not an expectation that the United States Supreme Court has said that society is prepared to recognize as reasonable.” In short, a person’s legitimate expectation of privacy ends when he shares posts with ‘friends’ because those ‘friends’ are always free to use the information however they see fit. Of note, the court also addressed the defendant’s assertion that the California Electronic Communications Privacy Act[1](which limits the government’s access to electronic communication information from a certain service providers,) prevented the prosecution’s use of the video. Citing that Act directly, the court noted the Act “…does not prohibit the intended recipient of an electronic communication from voluntarily disclosing electronic communication information concerning that communication to a government entity.” So what lessons can we take from this case? First, don’t accept “friend” requests from people you don’t know. Second, don’t post anything to any social media sites you wouldn’t send directly to the police themselves. [1]P.C. §§ 1546 et seq. [1] (Jan 10, 2019) 31 Cal.App.5th 133 While the relevant (to this discussion) changes made to the California Fair Employment and Housing Act (FEHA) took effect on January 1, 2018, many CA residents don't yet know about the way the state imposed new restrictions on an employer’s ability to make pre-hiring and personnel decisions based on a person's criminal history. ...Which is a shame as the change in the law came about as an effort to give ex-offenders a second chance at becoming upstanding citizens who contribute successfully to their communities.
Writing on this subject, Forbes magazine stated: "A 2011 study found that employment was the most significant influence on whether a formerly incarcerated person re-offended. 'Two years after release nearly twice as many employed people with records had avoided another brush with the law than their unemployed counterparts.' A three-year study found that a year of employment reduced the recidivism rate by 34%, as compared to the Department of Correction’s average recidivism rate." Previous to this change in the law, only state and local agencies were prohibited from asking an applicant about their criminal record until the person was found to be otherwise qualified for the position. Now however, all employers (in California, and with five or more employees,) are prohibited from (1) asking about the applicant's criminal history on the initial job application, (2) asking about or considering the applications criminal history until after the applicant has received a conditional job offer, or (3) considering or sharing information about the applicants criminal history where: the applicant was arrested, but never charged, (subject to some exceptions under the Labor Code), the applicant earned a dismissal of their case through participation in a diversion program, or the conviction was expunged, dismissed or sealed. Your next question is probably "so what if I'm conditionally offered a job, and then I disclose my conviction?" In that case, the employer is prohibited from denying you the job based solely on the conviction(s) without performing an assessment of the facts, particular to the applicant. As part of the assessment, the employer should consider the nature and gravity of the offense, the time that has passed since the arrest and the completion of the sentence, and the nature of the job sought. In order to deny he applicant the job, the employer needs to show that the conviction is linked to the applicants proposed job duties, and the applicant must be informed of the employer's intent to deny the applicant the position, if there is to be one, in writing. As part of the written disclosure, the employer needs to give the applicant notice of the convictions which form the basis for the denial, provide the applicant a copy of the conviction history paperwork (if it is available,) and inform the applicant that they have 5 business days to provide a response. To be relevant, the applicant's response should address statements regarding the accuracy of the conviction report, evidence mitigating the offense, or evidenced of the persons rehabilitation. The employer must wait for the 5-day period to expire before making a final decision to deny employment. In order to mitigate the consequences of any arrest or conviction, speak with a qualified attorney. |
AuthorDevina strives to make information relevant to the lives of her clients easily accessible. Archives
November 2020
Categories
All
|
RSS Feed
|
Proudly serving Sonoma, Marin, Napa, Mendocino and Lake Counties (and occasionally venturing as far as Yolo, Santa Clara and San Mateo Counties).
|
