Carlsbad, CA Criminal Defense Attorney and DUI Lawyer
Carlsbad is in the Northern San Diego County, and stretches the Pacific coastline about 87 miles south of Los Angeles. Locals know Carlsbad as the "village by the sea" and is a beach town that values community. Carlsbad also has a prominent arts and cultural presence, and takes pride in its high quality education and community services. Although Carlsbad is regarded by many as one of the best places in to live in Southern California, it is certainly not crime-free. As Carlsbad continues to grow and sprawl, the crime rate inevitably increases. As a result, police presence will also increase, so it is important to know your rights if you are arrested. With low crime rates, local law enforcement can place a special emphasis on reducing DUI. Carlsbad is nearby Oceanside, Vista, San Marcos, Escondido and Encinitas, and is served by the 5 and 78 Freeways.
If you or someone you care about is arrested, be sure to check the Practice Areas page for more information regarding various arrests and potential convictions - ranging from drug offenses and theft crimes to homicide. It is also important to know about the conviction process. For example, your case may be appealable, and there are many different strategies to appeal a guilty conviction. For more information about the appeals process, visit the Appeals Page. LAW ENFORCEMENT The City of Carlsbad Police Department is a full service department, headquartered at West Mermod Street. The Department prides itself on a strong ethical code of conduct, and devotes a significant amount of resources to community outreach, including a prevention and intervention counseling program for elementary and middle school students in the Carlsbad Unified School District. They also coordinate a neighborhood watch program, and a free, seven week program designed to teach Carlsbad residents about their city government. Additionally, California Highway Patrol is the primary law enforcement agency on the 5 and 78 Freeways passing through Carlsbad. COURT FOR CARLSBAD CRIMINAL CASES Carlsbad is served by the San Diego Superior Court North Regional Center (located on Melrose Dr. in Vista, California). As a full service branch, this facility is shared by the Sheriff, Probation, District Attorney, Revenue and Recovery, and the Board of Supervisors. This branch has most of the operations and functions as the downtown San Diego courthouse, and the business office at this location handles all filings and records, the Arbitration Department, jury facilities, Family Court Services, Probate Examiners, Legal Research Department, and the older Records and Exhibits Office. FREQUENTLY ASKED QUESTIONS ABOUT CARLSBAD CRIMINAL DEFENSE Below is a general guideline for some of the most frequently asked questions regarding criminal cases: What is the Three Strikes Law? California is one of the states that adopted the three strikes law, which counts any felony conviction as a "strike." Once someone has a strike on their record, subsequent convictions receive harsher punishment. Once someone has one strike prior, a subsequent felony conviction will make prison mandatory and double the punishment under the law. If the third strike is serious or violent felony, the defendant may receive a 25-year-to-life sentence. Judges and DAs can strike a strike as part of a plea deal, but it is important to have a persuasive hard-working lawyer on your side. If the victim in my case no longer wants to press charges, will the DA dismiss the case? Unfortunately, once the charges are filed, the case now belongs to the state, and the state will determine whether or not to proceed in the case against you. This means that even if the victim comes forward and requests the charges be dropped, the state will likely proceed if there is sufficient evidence for a conviction. It is important to hire a skillful and competent attorney, even in this situation, as the victim may become an important part of the defense. What is the difference between probation and parole? Probation is an alternative to incarceration, where the defendant is allowed to remain in the community under supervision and specific restrictions. Parole, however, is a condition of release when a person is being released from prison. Another key difference is that probation is handed down by a judge, whereas parole is decided by a parole board. What is the difference between a felony and a misdemeanor? In California, felonies are punishable by a minimum confinement of one year. Generally, a felony conviction will also include fines and may include probation. As a lesser charge, misdemeanors are punishable by maximum confinement of one year. Those convicted of misdemeanors are also usually required to pay a fine (maximum of $1,000). There are also charges known as wobbler charges, which give the District Attorney's office the discretion to file the charge as a felony or a misdemeanor depending on the circumstances of each particular case. What are some of the considerations to weigh when choosing to take a plea deal? A good attorney should be able to gauge whether or not it will be beneficial to have a jury trial, but sometimes it is better to avoid a trial. Trials can be costly, lengthy, and stressful. In addition, taking a plea bargain may help get you a reduction in the number of charges and/or the type of charges against you. However, each case will have different considerations to weigh, so it is important to have an attorney that will explain all of the pros and cons in your specific case. CONTACT A NORTH COUNTY SAN DIEGO CRIMINAL DEFENSE ATTORNEY NOW FOR A FREE CONSULTATION. 619-550-4422
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San Diego Criminal Defense Attorney Explains PC 977
For many defendants, having to go to court may be a daunting source of anxiety. For others, it may be impossible to get out of other obligations in order to attend. Fortunately, § 977 of the California Penal Code allows certain defendants to avoid court, as long as they send counsel. The licensed attorney may appear in court on the defendant’s behalf, and the Penal Code even allows the attorney to enter or change a plea, set subsequent hearings, and negotiate or finalize plea agreements. Although the very purpose of an arraignment hearing is to give the defendant an opportunity to be present, some defendants may wish not to attend.
Additionally, people are often charged with a crime in San Diego who do not reside in San Diego. An arrest that takes place on vacation may be handled without your personal presence if you have an attorney who can represent you in court. It is our job to best protect your rights and interests. Sometimes this includes appearing in court on your behalf so that you can continue to attend work or school and take care of other obligations. Here is a breakdown § 977, which governs when a defendant does not have to go to court: PC 977(a) says that only those charged of a misdemeanor may appear by counsel unless the defendant falls under one of the statutory exceptions, which require the defendant to be present. Some misdemeanors do require that the defendant be present. One such misdemeanor is an offense involving domestic violence. In this case, the defendant must be present for the arraignment and the sentencing, and at any time the court needs to inform the accused of the conditions of a protective order against him or her. Other misdemeanor exceptions in which the accused must appear in court is a driving under the influence-related (DUI) offenses. The court may order the defendant to be present for arraignment, or during a plea or sentencing. The offenses under this DUI exception include: gross vehicular manslaughter, reckless driving, or causing bodily injury to anyone other than the driver. As a general practice, judges are apprehensive to allow a defendant’s absence to clear a bench warrant, even in a misdemeanor case, unless there is a strong and persuasive excuse for why the defendant is not present. This demonstrates the importance of going to court when required to be present, or at least having counsel present in cases where a § 977 is permissible. PC 977(b) applies to those charged with a felony. Unlike PC 977(a), which allows most defendant charged with a misdemeanor to be present through counsel, those charged with a felony must be present. This includes: at the time of a plea, the preliminary hearing, portions of the trial when evidence is offered before the judge or jury, and at sentencing. The defendant must be present at all proceedings unless the court grants a waiver. The written waiver must be done with leave of court, executed in open court, and signed by the defendant and defendant’s counsel, and then filed with the court. The initial court appearance, arraignment, and plea may then be done by video. However, it’s important to note that the court may still require the defendant to be present at any specific proceeding, including those listed above. PC 977(b)(2) provides the form in which the waiver should be written. The court also has the power to allow an initial court appearance and arraignment of the defendant to be conducted via audio video, unless the defendant was indicted by a grand jury Finally, the court can compel attendance in felony cases where the defendant fails to appear on a fixed date and place for arraignment. PC 978 and 979 allow for bench warrants to be issued when the defendant fails to appear to court. IF YOU OR A LOVED ONE HAS BEEN ARRESTED OR CHARGED WITH A CRIME AND MUST NOW FACE CHARGES IN COURT, CONTACT US NOW FOR A FREE CONSULTATION. IN MANY CASES, WE CAN ARRANGE FOR YOU TO NEVER HAVE TO SET FOOT IN THE COURTROOM. FREE CONSULTATIONS 619-550-4422
Warrants Explained by a San Diego Criminal Defense Lawyer
Warrants can be very pesky and tend to rear their ugly heads at the worst possible time—such as on a first date, or during a family holiday celebration. Often, an experienced criminal defense attorney can help you clear a warrant BEFORE you find yourself arrested and booked into jail wondering what to do next. Warrants can result in an untimely and humiliating arrest, as well as potentially costing you employment, and often a suspension of your driving privilege.
Bench Warrants. Bench warrants are issued by a judge (i.e. from the bench) typically upon a defendant’s failure to appear (FTA) in court or upon an allegation that the defendant has violated probation in some fashion. Failing to appear on a scheduled court date will usually result in the issuance of a bench warrant. Probation violations are commonly alleged when a person fails to complete court-ordered requirements, fails to appear for a probation appointment, or fails to submit proof of completing a court-ordered class or program, or even failure to pay a fine or fee on time. If you have a bench warrant, contact a San Diego Criminal Defense Attorney immediately for a free consultation. Your attorneys may be able to appear in court on your behalf to recall the warrant BEFORE you are arrested on the warrant. Arrest Warrants. Arrest warrants are also issued by a judge upon application by a police detective (Ramey Warrant) or the District Attorney’s Office upon the filing a felony complaint alleging a new criminal offense. Arrest warrants are usually handled with more urgency than bench warrants. If you are the subject of an arrest warrant, it is imperative that you contact us without delay. A San Diego Criminal Defense Lawyer can contact the police and/or District Attorney’s Office on your behalf and arrange a peaceful surrender on the warrant—preventing the embarrassment of being arrested in public or at your place of employment, and even work together with your bail agent to ensure you do not have to go into police custody. The California Penal Code governs arrest Warrants. Section 817(a)(1) provides: “When a declaration of probable cause is made by a peace officer of this state, in accordance with subdivision (b) or (c), the magistrate, if, and only if, satisfied from the declaration that there exists probable cause that the offense described in the declaration has been committed and that the defendant described therein has committed the offense, shall issue a warrant of probable cause for the arrest of the defendant.” Penal Code section 817(b) provides: The declaration in support of the warrant of probable cause for arrest shall be a sworn statement made in writing. Penal Code section 817(c) allows the magistrate to take an oral statement (from a peace officer), under oath, under certain circumstances. If you are the subject of either a bench warrant or an arrest warrant, contact our law firm immediately for a free consultation and case evaluation. 619-550-4422.
SAN MARCOS CRIMINAL DEFENSE ATTORNEY AND DUI LAWYER
A CRIMINAL DEFENSE ATTORNEY IS YOUR FIRST LINE OF DEFENSE AGAINST A VERY AGGRESSIVE CRIMINAL JUSTICE SYSTEM. POLICE, PROSECUTORS AND EVEN JUDGES ARE SEEKING TO IMPOSE HARSHER PUNISHMENTS HERE IN THE US THAN WHAT WE SEE ELSEWHERE IN THE WORLD. SAN DIEGO COUNTY IS NOTORIOUSLY TOUGH ON CRIME. IF YOU HAVE BEEN ARRESTED, CHARGED WITH A CRIME OR ARE BEING INVESTIGATED, CALL NOW FOR A FREE CONSULTATION WITH A SAN DIEGO CRIMINAL DEFENSE ATTORNEY. 619-550-4422.
San Marcos is located just west of Escondido, in San Diego County. Neighboring towns include: Encinitas, Carlsbad, and Vista. San Marcos is known for its educational system, parks, recreation, and environmental awareness. It’s also known for having some of the best restaurants in North County and several golf courses to choose from. Although San Marcos is a quiet, safe community, like any community – crimes do occur. While violent crimes are somewhat rare in San Marcos, the city does experience crimes like burglaries, rape, assaults, and robberies. Law Enforcement in San Marcos The San Diego County Sheriff’s Department provides contract law enforcement services to San Marco, and covers a service area of more than 100 square miles – including Escondido and other unincorporated areas of San Marcos. Patrol deputies in this area are assigned to specific parts of the city, which allows the officers to become familiar with the residents and any particular problems within that area. San Marcos also has a Detective Unit, which investigates various crimes, including property crimes and general crimes against people (theft and burglaries, physical assaults, sexual assaults, vandalism, and domestic violence). San Marcos also has a Crime Prevention Unit, focusing on community outreach and free services. San Marcos Courts San Marcos is serviced by the North County Regional Center in Vista, which is shared by the Superior Court, Sheriff, Probation, District Attorney, Revenue and Recovery, and the Board of Supervisors. As a full-service branch court, this location deals in criminal, civil, family, probate, small claims, appeal, adoption, traffic, and minor offense cases. If you or someone you know has been arrested in San Diego County, it’s important to have a competent criminal defense attorney who knows California law. Whether you’re being charged with a minor offense like vandalism or a serious crime like homicide, it’s vital to secure the best legal representation available to you. Be sure to check our Practice Areas page for additional information about various criminal charges under the California Penal Code, Vehicle Code or Health and Safety Code. Put our vast experience with California Law, San Diego County and the North County (Vista) Courthouse to use for you. Below is a general guideline for some of the most frequently asked questions regarding criminal cases. What rights do I have at the time of my arrest? Your right to remain silent is perhaps your most important right at the time of arrest. Many people may unintentionally make their situation worse by talking to the police without counsel present. In addition, if you are in custody, the police must read you your Miranda Rights before they question you. You have the right to have an attorney present whenever the police perform a custodial interrogation. What is the difference between a felony and a misdemeanor? In California, felonies are punishable by a minimum confinement of one year. Generally, a felony conviction will also include fines and may include probation. As a lesser charge, misdemeanors are punishable by maximum confinement of one year. Those convicted of misdemeanors are also usually required to pay a fine (maximum of $1,000). There are also charges known as “wobbler charges,” which give the District Attorney’s office the discretion of filing the charge as a felony or a misdemeanor depending on the circumstances of each particular case. What is the difference between probation and parole? Probation is an alternative to incarceration, where the defendant is allowed to remain in the community under supervision and specific restrictions. Parole, however, is a condition of release when a person is being released from prison. Another key difference is that probation is handed down by a judge, whereas parole is decided by a parole board. Do I need a lawyer even if I plan on entering a guilty plea? Deciding to enter a guilty plea can involve complex negotiation with the prosecutor. A good criminal defense attorney may be able to negotiate for a lesser charge or a lighter punishment, so having an attorney is critical, especially when deciding whether or not to enter a plea. How does a prosecutor decide to file charges? The prosecutor will file a case when he or she believes that a case has enough evidence for a conviction. In addition, the prosecutor will consider whether this evidence was obtained without violating the defendant’s constitutional rights. If the evidence was obtained unlawfully, it will be inadmissible in court. WITH AN OFFICE IN VISTA, CA, OUR OFFICE IS VERY FAMILIAR WITH THE NORTH COUNTY COURTHOUSE. HIRE AN EXPERIENCED SAN DIEGO CRIMINAL DEFENSE ATTORNEY TO HELP YOU WITH YOUR CASE. 619-550-4422.
Crimes that involve providing false information while under oath (whether in court or in other communication with government agencies) are treated very seriously in San Diego, under California law. Providing false information to police or other government agencies is also a crime and is aggressively prosecuted in San Diego. The most serious offenses involve lying under oath and otherwise undermining the integrity of the court process: perjury, suborning perjury, dissuading a witness, intimidating a witness, and obstruction of justice. Providing false information to police, filing a false report or lying while not under oath are also criminal acts, but are generally treated as misdemeanors, not felonies. Perjury is always a felony, and dissuading a witness can be a "strike" under California's Three Strikes Law. All of these crimes involving dishonesty can carry serious consequences, including time in jail or prison, probation, fines, immigration consequences and loss of employment/professional licensing. Crimes involving moral turpitude (crimes of dishonesty, or "crimen falsi") are a special category of crime, a conviction of which it is vital to try to avoid.
If you or a loved one has been arrested or charged with perjury, dissuading a witness, intimidating a witness, filing a false report, providing false documents to the DMV or must testify in the future and is concerned about how the testimony could expose possible criminal liability, you need a passionate, aggressive, experienced San Diego criminal defense attorney on your side to protect your rights and your liberty. Call now for a Free Consultation. 619-550-4422. SAN DIEGO PERJURY DEFENSE LAWYER Pursuant to PC 118, California Law makes it a felony to intentionally provide false information under oath. This most typically applies to false statements made on the witness stand in court, but can also apply to testimony at depositions, sworn declarations or affidavits, and applications with the DMV and other government agencies. There are many defenses to perjury including: the statement was not false, the statement was not known to be false when made, the question was not understood, the answer was misunderstood, the lie was regarding an immaterial fact, the person was not actually under oath, the person was threatened or under duress and more. Suborning perjury is the act of getting another person to lie under oath and is also a felony under California Law, pursuant to PC 127. This can be done by parties to a lawsuit, criminal defendants, and even attorneys who call witnesses to the stand knowing that the testimony will be false. Bribery by a witness or of a witness is also a felony under California Law, pursuant to PC 137. Those convicted of Perjury or suborning Perjury are punishable by two, three or four years in prison. SAN DIEGO DEFENSE LAWYER FOR FALSE DOCUMENTS TO HIDE CITIZENSHIP STATUS California has a large population of undocumented immigrants. Though recently laws have passed to allow those without proof of legal status to obtain certain government benefits, it is a serious crime to present false documents to a government agency to obtain employment licenses, drivers licenses, etc. Pursuant to PC 114, it is a felony to use any false documents to conceal citizenship or resident alien status. The false documents are often falsified birth certificates, social security cards, drivers licenses, state ID cards, among others. Those convicted under PC 114 face up to 5 years in prison. SAN DIEGO DISSUADING A WITNESS AND INTIMIDATING A WITNESS DEFENSE California Law treats any efforts to keep a witness from testifying very seriously. These offenses include dissuading a witness pursuant to PC 136.1 and bribing a witness pursuant to PC 137. Defenses include: false accusations, misunderstandings, mistaken identity and more. PC 136.1 is a "wobbler" meaning that it may be charged as a misdemeanor or as a felony. If a felony, dissuading a witness is also a "strike" under California's Three Strikes laws. As a misdemeanor, dissuading a witness carries up to one year, while as a felony, it is punishable by up to four years. Additionally, there can be enhanced penalties if the offense involved the use of a firearm or other weapon or if the act was committed by a gang member for the benefit of the gang. SAN DIEGO OBSTRUCTION OF JUSTICE LAWYER Obstruction of justice is a broad term that is often applied to a variety of conduct concerning criminal investigations and court proceedings. Proving false written evidence, pursuant to PC 132, is a felony, punishable by up to three years. Preparing false evidence for any legal proceedings is also a felony, pursuant to PC 134. Destruction of evidence or concealing evidence of a crime is a misdemeanor, pursuant to PC 135. Planting evidence is also a crime pursuant to PC 141. If committed by a police officer, planting evidence is a felony, punishable by up to 5 years. SAN DIEGO PROVIDING FALSE DOCUMENTS TO THE DMV ATTORNEY Treated much less seriously than lying under oath (perjury), VC 20 makes it a crime to use a fictitious or false name or to knowingly make any false statements in a document filed with the DMV or California Highway Patrol. Providing false documents to the DMV is a misdemeanor, punishable by up to 6 months in county jail. SAN DIEGO FILING A FALSE REPORT ATTORNEY Knowingly making a false report of a crime (felony or misdemeanor) is a serious crime in San Diego and under California law, pursuant to PC 148.5. Law enforcement officers, prosecutors and the courts are very aggressive in their prosecution and sentencing of such crimes. If the false report leads to the arrest of an innocent person, the false report will be punished even more harshly. Filing a false report is a misdemeanor in California and is punishable by up to six months in county jail, a fine of as much as $1000, and a term of probation of up to 5 years. There are many defenses in these cases including that the statement was not false or not known to be false when made. SAN DIEGO FALSE STATEMENTS TO A PEACE OFFICER Making a false statement to a peace officer is a broad crime that can cover a wide range of statements to law enforcement. From simply denying speeding, all the way up to filing a false report, making any false statements to police with the intent to defraud is a misdemeanor, punishable by up to six months in county jail, a fine of up to $1000 and up to five years probation. Like with filing a false report, the government must not only prove that the statement was false, but that it was known to be false when made. This is a difficult burden for the government to meet, but asserting the defenses will still require effective, aggressive representation from your attorney. SAN DIEGO FALSE REPORT OF A STOLEN VEHICLE ATTORNEY Though any false statement to police, and any false report of a crime are both already crimes in California, the California Vehicle Code (VC) provides for a separate crime in cases involving a false report of a stolen vehicle. A false report of a stolen vehicle is common, often to deflect liability for an accident, DUI, hit and run, or as part of a more serious insurance fraud course of action. VC 10501 is generally a misdemeanor, but can be filed as a felony if the defendant has a prior conviction for the same offense. If you or a loved one has been arrested, charged with a crime or is under investigation for a crime relating to perjury or other false statements, you need a passionate, experienced, detail-oriented attorney who knows the law and how to best fight for you. Contact us now for a FREE CONSULTATION with a San Diego criminal defense attorney. 619-550-4422.
San Diego Criminal Defense Attorney Explains Your Right to be Free from Unreasonable Search & SeizureThe Fourth Amendment to the US Constitution protects our rights to be free from unreasonable searches and seizures by the government. The delegates to the Constitutional Convention refused to sign into law the Constitution until the Bill of Rights (the first ten amendments) was added to protect individual freedoms. Our framers and founders were deeply concerned with an overreaching government taking too great an interest in our private lives. One of the most important concepts of protecting individual liberty was to ensure that agents of the government could not subject our citizens to searches or arrest without such action being deemed "reasonable". Though this freedom has eroded throughout our history, the Fourth Amendment is alive and well in our office, and any courtroom we step into. We fight hard for our clients, asserting their Fourth Amendment rights in court. If you or a loved one has been searched or arrested without probable cause in San Diego, you need a passionate, knowledgeable, dedicated San Diego Criminal Defense Attorney. Our office has an excellent track record asserting clients' Fourth amendment rights, often leading to dismissals of criminal charges or exposing police officer credibility issues to be used later at trial. WHAT CONSTITUTES A SEARCH? Not all government intrusions into our lives give rise to Fourth Amendment protections. Items observed in plain sight or officer observations of a person or their property in a public place are generally not seen as a search by the courts. Still, a search need not necessarily involve any physical entry into or onto property. For example, the US Supreme Court has held that the use of heat detection technology to uncover marijuana grow operations is a search, requiring a warrant. Though police used the technology from the street, it was not readily available technology and thus violated the Fourth Amendment. The test for whether an intrusion into our privacy is a search is whether a reasonable person would expect to have privacy in their actions or possessions. Accordingly, different levels of protection will apply to conduct occurring inside the home and conduct in public. So while indoor, basement marijuana grow operations are likely to require a warrant to uncover, an outdoor grow operation is more likely to be discoverable without a search. Another example of police conduct that does not rise to the level of a search is a pat-down. The US Supreme Court has authorized officers to engage in a brief detention and pat-down of the exterior of a suspect's clothing without probable cause and without a warrant. The reasoning is that the "limited" intrusion of a pat-down can be justified by a lower level of evidence (reasonable suspicion). Pat-downs, searches, and even alleged plain sight observations should all be challenged in court to protect the rights of the accused. STOP & FRISK SEARCHES OF PERSONS The stop and frisk (pat-down) discussed above is considered by the courts to be short of a search, but the scope officers are afforded during these limited intrusions is also limited. A pat-down may include only the outside of a suspects clothing. If the pat-down does not give an officer probable cause to search, it must end right there. In reality, police will often state that the pat-down gave them probable cause to search, and getting rid of the evidence would require a showing that the officer either: (1) initially lacked reasonable suspicion to conduct the investigatory detention, or (2) did not acquire additional evidence from the pat-down to justify a search. HOW TO SUPPRESS EVIDENCE Under California law, the remedy for unlawful searches is to have the evidence suppressed. More often than not, when the evidence found as a result of the unlawful search is suppressed, the case will be dismissed. This prophylactic rule exists to protect all citizens from unreasonable intrusion by law enforcement. If police could just pat-down and/or search people, their vehicles and their homes without any reason, they would do so for arbitrary and discriminatory reasons. If an innocent person is searched and violated, there will be no court case and no opportunity for the judge to address the rights violation. This is why evidence is suppressed in criminal cases arising out of unreasonable searches. By throwing out unlawfully obtained evidence, police are encouraged to respect people's rights and conduct searches only when authorized under the constitution. Search and seizure issues are complex and require close attention to detail, thorough knowledge of Fourth Amendment case law and persuasive argument before the judge or magistrate. SEARCHES OF VEHICLES AND EFFECTS Due to the public nature of automobiles, drivers have a lessened expectation of privacy in their cars. Traffic stops are not considered charges, but are rather deemed to be a type of investigatory detention like a stop and frisk. During a traffic stop, an officer might observe items in plain sight, smell the odor of marijuana, alcohol or other contraband, and engage in conversation with the driver. Police do not need a warrant to search a vehicle, but will still need to have probable cause, consent, or to arrest the driver based on probable cause for arrest. After a lawful arrest, police may conduct what is known as an "inventory search" of the vehicle, including opening up luggage, bags or other containers within the vehicle. CONSENT SEARCHES The most common justification for searches is that the person to be searched gave their consent to be searched. Police officers are trained to use intimidation, lies and other forms of manipulation to obtain consent. In reality, most "consent searches" are not voluntary, and informed citizens would assert their rights if they felt they were allowed to do so. Police will frequently begin their searches without permission and assert that the lack of objection represents consent. Clearly, this is not true consent. It is important to note that the law defines the same word (consent) very differently depending on how well it suits the government's objectives. For example, in many rape prosecutions, the issue of consent is the primary defense. In these cases, the defendant will need to make a strong showing of affirmative consent in order to avoid prosecution. At the same time, courts are likely to deem searches consensual, even where it would be clear to any reasonable person that there was in fact no consent, or that such consent was coerced by the use of fear, force or false information. "Consent" obtained through the use of threats and fear should be challenged in court, but it is imperative that your attorney can make forceful, persuasive arguments. The cards are stacked against the defense, but that does not mean these important rights are not still the supreme law of the land. HOW TO REFUSE A SEARCH Knowing and asserting your rights during a police encounter are key to protecting your rights from being violated by police. During encounters with law enforcement, it is important to make it clear that you decline to be searched and are not consenting to any police searches. The police might very well ignore your demands, but it is important to assert these rights at the scene so as to better protect yourself in court. When possible, it is also vital to preserve objective evidence of police encounters and searches. Filming police can go a long way towards protecting your rights from being violated in the first place, or showing that a violation in fact did take place later down the line. TYPES OF CASES MOST OFTEN INVOLVING FOURTH AMENDMENT ISSUES DUI, Drug Crimes, Theft Crimes, Marijuana,Financial Crimes, Weapons, Homicide and more. Search and Seizure issues have a deep, rich history in American jurisprudence. Criminal defense attorneys protect these important Constitutional rights on a daily basis, not only helping our clients avoid criminal convictions, but also keeping police (at least a little bit) honest in their dealings with civilians. If you or a loved one has been arrested, searched, charged with a crime or may be under investigation, you need an experienced, knowledgeable, passionate San Diego Criminal Defense Attorney on your side, fighting for you.
San Diego Criminal Lawyer Explains the Warrant Requirement
A warrant is a specific grant of power to either (1) search a place, vehicle, computer, etc., or (2) arrest a person. In California, when a law enforcement officer wishes to make an arrest or conduct a search, it is common to first obtain the appropriate warrant. The officer must go to a judge and present sworn testimony that would authorize the intrusion. A warrant-less search or arrest is presumptively invalid under both Federal and California law. Though there are exceptions to the warrant requirement, an arrest or a search made without a warrant will be more susceptible to attack from the defense should the search or arrest result in criminal charges against a defendant. It is for this reason that law enforcement officers are generally encouraged to get a warrant when there is time and opportunity to do so. In San Diego, if a law enforcement officer wishes to search a home or make an arrest for a felony that they did not personally observe, they should get a warrant, even if an exception to the warrant requirement might apply.
WHEN DO POLICE NEED A SEARCH WARRANT? Generally speaking, all searches require a warrant. Nevertheless, most searches are performed without a warrant. A police officer may search with consent, probable cause, for their safety or due to exigent circumstances. Though many judges in San Diego broadly interpret these exceptions to give police more freedom to search and deny others their privacy, these exceptions to the warrant requirement are among the most litigated issues when it comes to motions to suppress evidence. The exceptions are most narrowly construed when the search in question involves the search of a home. Intrusion by the government into the home is the chief evil that the Fourth Amendment aimed to address, and a search of a home is harder to justify on exigent circumstances and officer safety/public safety grounds. While it may be difficult to obtain a search warrant for a vehicle, a house is not going anywhere. In most instances of searches of a residence, it is argued that police had every opportunity to seek a warrant first. More Information About Suppression Motions More Information About Vehicle Searches Search warrants are most common in cases involving: drugs, marijuana crimes, weapons, financial crimes, and more. WHEN DO POLICE NEED AN ARREST WARRANT? An arrest warrant is a document issued by a judge or magistrate on behalf of the state, which authorizes the arrest of an individual. Law enforcement officers who believe that they have substantial evidence that a person has committed a crime can go before a judge or magistrate to have a warrant issued. The judge will review the proposed evidence and make a determination as to whether enough evidence exists for a warrant. Though most arrests are made without a warrant, there are instances where an arrest cannot be made without a warrant. In order to conduct a misdemeanor arrest, the officer needs to have personally witnessed the alleged crime. Police get around this requirement in two ways (1) they will have a witness sign a "citizen's arrest" document, and (2) they will make a felony arrest for conduct that would clearly be misdemeanor conduct. Such is the case in many domestic violence cases. SHOULD THE WARRANT HAVE BEEN ISSUED? In cases where there is a warrant, the search or arrest can still be challenged on grounds that the warrant was issued in error. In these cases, the defense must point to unreliable/inadmissible evidence that was relied upon by the affiant seeking the warrant (the detective, usually). If a search or arrest warrant should not have been issued in the first place, there will be a strong argument for suppression of the evidence. PROBATION OR PAROLE STATUS AND SEARCHES Frequently, those on felony (formal) and even misdemeanor (summary/informal) probation have, as a condition of their probation, a waiver of their Fourth Amendment rights to be free from searches. This means that probationers generally must consent to searches when so requested by law enforcement. Officers may conduct searches of a probationer's (or parolee's) person, effects, vehicle or home, without having to first obtain a warrant. This does not, however, mean that all searches of probationers are valid. In fact, these searches can still be challenged in court. Often times what will happen is that the searching officer will be unaware of the probationer's search terms at the time of the search. This does not necessarily invalidate the search as it may be justified on other grounds, but a police officer may not justify a search as a probation search without knowledge of the probation and search terms. OTHER SEARCH AND SEIZURE TOPICS: STOP & FRISK SEARCHES OF PERSONS WHAT CONSTITUTES A SEARCH? CONSENT SEARCHES HOW TO SUPPRESS EVIDENCE SEARCHES OF VEHICLES AND EFFECTS HOW TO REFUSE A SEARCH If you or a loved one has been arrested or charged with a crime, searched or investigated for a crime in San Diego, with or without a warrant, contact our office now for a Free Consultation with a San Diego Criminal Defense Attorney. We can discuss any searches or warrants involved in your case as well as evaluate other defenses, discuss the possible and likely outcomes and get started right away in protecting your rights and working to get you the best possible outcome. Criminal charges are scary, frustrating and can have serious consequences on your life and liberty. We can help. 619-550-4422.
Arrests and criminal charges in San Diego frequently stem from searches of vehicles, backpacks, luggage, etc. Whether the items found are drugs, weapons or other evidence of criminal activity, these cases are often best defended by challenging the search. In order to challenge the Constitutional validity of a search in California, a defendant must raise the issue, asserting violations of his/her Fourth Amendment rights by the unlawful search. At this point, the burden then is placed on the government to prove that the search did not violate the Fourth Amendment. Our office has extensive experience with the Constitutional law that protects the rights of all citizens to be free from unlawful search and seizure. We have successfully litigated motions to suppress in a wide range of criminal cases, including drug crimes, weapon offenses, DUI and more. This article discusses some of the prominent cases dealing with searches of vehicles. If it appears that you may have been the victim of an unlawful car search, contact a San Diego Criminal Defense Attorney now for a Free Consultation. The information contained in this article should not be construed as legal advice, or as a substitute for attorney representation and consultation. It is nevertheless important that you have a strong grasp of the law and your rights. Vehicle searches are most commonly conducted with "consent" which the courts have interpreted very broadly to permit police intrusion into our privacy. DO NOT CONSENT TO SEARCHES.
More on Consent Searches More on Refusing a Search More of Our Case Results Unlike a search of a home, searches of motor vehicles generally do not require a warrant. When law enforcement goes to a judge to get a warrant, there has already been at least one judicial determination that the search is supported by probable cause. Though a search warrant may also be challenged, warrant-less searches are more likely to be challenged and more likely to result in evidence being thrown out. Car searches are very frequently litigated and are often the best defense in cases that rely on physical evidence. Unfortunately, we have a diminished expectation of privacy in our cars, and the courts have repeatedly expanded police authority to search vehicles. Officers can search a vehicle with probable cause, with consent, after arresting a recent occupant, due to "exigent circumstances" or (most broadly) for their safety. PROBABLE CAUSE TO SEARCH A VEHICLE Besides consent searches, vehicle searches are most commonly defended on probable cause grounds. Officers claim that the evidence available to them at the time of the search was sufficient to conduct a search of the vehicle. This standard is not a bright-line rule and is one of the most frequently litigated definitions in American jurisprudence. In essence, a search is supported by probable cause if there is a reasonable basis that evidence of a crime will be uncovered in the place to be searched. This can be a difficult standard to meet in the case of a vehicle search. Evidence tending to point to guilt can include: contraband in plain sight, an informant's tip, observation of the driver's behavior and more. If a search is based on the officer's claim of probable cause, the search should be challenged in court. A warrant-less arrest made on the basis of probable cause can also be challenged, especially if the arrest resulted in a further search, yielding additional evidence. SEARCH INCIDENT TO ARREST After arresting the driver of a vehicle, police may then conduct a "search incident to arrest." In Colorado v. Bertine, the US Supreme Court held that police could conduct an "inventory search" of a vehicle, even after a minor arrest for something like DUI or driving on a suspended license. Though the arrest in Bertine did not give rise to probable cause that there would be additional evidence of criminal activity, the Court allowed the inventory search on officer safety grounds. This power was further extended in Thornton v. United States, where the US Supreme Court allowed for a search of a vehicle based on the arrest of a recent occupant, rather than (as in Bertine) the arrest of an occupant of the car. Thornton was not pulled over or arrested froom his vehicle; rather, he observed police following him and parked and exited his car. He was approached by police, admitted to possessing narcotics and was arrested. Officers then searched his parked vehicle. The Court reasoned that even though Thornton was in their custody and secured in the back of a police car, the officers could conduct a search to ensure their safety. This case goes to show just how unreasonable the courts can be in their extension of police power. This power has also been limited, however, to cases where an arrest does actually take place. In Knowles v. Iowa, the Court addressed a case where the driver could have been arrested for, but was not arrested for a traffic violation. The officers searched the vehicle, claiming they had a right based on their ability to make an arrest. The Court held that search invalid. SEARCH OF CONTAINERS IN A CAR In Wyoming v. Houghton, the Court addressed a case that involved a more detailed search of the vehicle and its contents. Houghton was arrested when police observed drugs in plain sight, then proceeded to search the car, including a backpack present in the car. The Court upheld the search as a valid extension of the inventory search. This ruling extends to other vehicle searches; if police have probable cause or consent to search a car, they will attempt to use that same justification to search luggage and other containers within a vehicle. There are very fact-specific limits on this type of extension and all such searches should be challenged in court. SEARCH OF RVs & MOTOR HOMES With a search of a home generally necessitating that police obtain a warrant, motor homes create a gray area in the law. In the landmark case California v. Carney, the US Supreme Court addressed this very issue. Carney lived in a motor home, but the Court nonetheless upheld a warrant-less search based on probable cause alone. The motor home could be driven and moved quickly, and was parked in a parking lot in San Diego, not in an area generally used for residential purposes. This is a very fact-specific inquiry, and one addressed in the TV series Breaking Bad. The Carney ruling was limited in that this particular motor home did not qualify as a home requiring a warrant for search, though other motor homes may be more protected. Especially motor homes connected to a permanent physical location, those connected to plumbing/electricity, etc. OTHER SEARCH AND SEIZURE ISSUES TO READ ABOUT: STOP & FRISK SEARCHES OF PERSONS WHAT CONSTITUTES A SEARCH? CONSENT SEARCHES HOW TO SUPPRESS EVIDENCE WHEN DO POLICE NEED A WARRANT? HOW TO REFUSE A SEARCH If you or a loved one has been arrested or charged with a crime in San Diego, contact our office for a Free Consultation with a San Diego Criminal Defense Attorney. We can discuss your case in detail, analyze the pertinent facts and get started on your defense. Whether there is an unlawful search, unlawful questioning, false accusation, etc., our experienced lawyers will work hard to protect your rights. 619-550-4422
San Diego Criminal Defense Attorney Explains California Stop and Frisk and Search of Persons Law
When are the police allowed to stop a person and search them? This is a question I am asked frequently, and a question that defense attorneys in San Diego frequently are left to argue in court, when our clients have been arrested by an officer who searched our clients in violation of the Fourth Amendment rights. The Fourth Amendment of the US Constitution guarantees our freedom from unreasonable searches and seizures. That is, without a probable cause (or in some cases a warrant), police may not trample our privacy rights. We are most protected in our homes, and have a diminished "expectation of privacy" in all other areas, including in our vehicles, yards or public places.
In a 1968 case called Terry v. Ohio, the US Supreme Court gave police officers an explicit power to conduct "investigatory detentions" without having probable cause. In requiring a lower level of evidence (reasonable suspicion), the Court gave officers more authority to stop and detain a person, who might otherwise be free to go for lack of probable cause. This ruling has had far-reaching implications, because police have been permitted to stop people for lawful conduct such as: sweating, appearing nervous, making moves to avoid police, etc. Additionally, Terry stops have been extended to traffic stops. Officers may conduct an investigatory detention of a driver of a vehicle without having probable cause to do so. REASONABLE SUSPICION This lessened standard does not permit an officer to conduct a stop for no reason, however. An investigatory detention is not permissible for no reason at all, or just because the officer has a "hunch" that there might be some evidence of a crime to uncover. Instead, an officer must be able to articulate specific facts which indicate that there may be a crime taking place. In the Terry case, the officer saw several men pacing back and forth in front of a store, and also noticed a bulge that turned out to be a gun. Another case, Illinois v. Warlow, decided that someone running from police in a high-crime area provides reasonable suspicion for a Terry stop, but NOT probable cause for arrest. STOP AND FRISK: THE SCOPE OF AN INVESTIGATORY DETENTION What makes a stop & first (or "investigatory detention") any different from a search or arrest? The scope of a Terry stop is limited due to the diminished level of evidence needed to justify the intrusion. This means that an officer who has reasonable suspicion, but not probable cause, might go too far while conducting a pat down, rendering the search unlawful (and the evidence suppressed). During a pat-down, an officer may only pat down the outside of a suspect's clothing, looking for weapons or other contraband, easily determined during the pat-down to be something illegal. A landmark case dissecting the issue of scope of a Terry stop is the case of Minnesota v. Dickerson. In that case, Dickerson was in possession of a small amount of crack cocaine in a jacket pocket. A simple pat-down as permitted under Terry would not have revealed that there was anything illegal in Dickerson's possession. The officer came to the conclusion that the item in Dickerson's pocket was crack only after manipulating the object with his fingers, thus exceeding the scope of a Terry stop. Another restriction on the Terry stop investigative detention is time. In United States v. Place, the US Supreme Court held that a 90 minute detention was not a valid exercise of the Terry-stop "investigatory detention" and requires probable cause. If you or a loved one has been arrested or charged with a crime arising out of a potentially unlawful search, you need a knowledgeable, aggressive San Diego Criminal Defense Lawyer on your side to fight for you, file a motion to suppress the evidence and work to get the evidence against you dismissed. We have very important rights, enshrined in the Constitution that is still the law of the land. Though the Courts have carved out exceptions to our rights at every turn, our office takes the position that the Bill of Rights and the Fourth Amendment are alive and well in the courtroom, even if not respected by police on the street. Call now for a Free Consultation with a San Diego Criminal Defense Attorney. FREE CONSULTATIONS 619-550-4422 Other Search & Seizure Articles: WHAT CONSTITUTES A SEARCH? CONSENT SEARCHES SEARCH OF VEHICLES AND EFFECTS HOW TO SUPPRESS EVIDENCE WHEN DO POLICE NEED A WARRANT? HOW TO REFUSE A SEARCH
Chula Vista Criminal Defense Lawyer and DUI Attorney
Chula Vista, CA is a city in southern San Diego County, just miles away from the Mexican border. Neighboring communities include: San Ysidro, Imperial Beach, National City and the San Diego Bay. With a population of over 250,000, Chula Vista is the second largest city in San Diego (after San Diego) and the eighth largest city in Southern California. Chula Vista is conveniently located to Downtown San Diego (just 7 miles) and the US Border with Mexico. Chula Vista is served by the 5, 805 and 54 Freeways and the San Diego MTS Trolley's Blue Line, which provides convenient access to Downtown San Diego, the border and other parts of San Diego.
Chula Vista is a safe community, particularly along the east side of the city. Nevertheless, all sorts of crimes and arrests do take place in Chula Vista. From misdemeanors like DUI, Domestic Violence, and Unlicensed Driver, all the way to serious felony crimes like Homicide and Gang-related crimes. Drug Crimes, Theft Crimes, and Federal Crimes are also not uncommon. Check our Practice Areas page for information about various criminal charges. The Chula Vista Police Department provides law enforcement services to Chula Vista, with criminal cases proceeding to the South County Courthouse of the San Diego Superior Court. If you or someone you know has been arrested, charged with a crime, accused of a crime, or may be under investigation for a crime in Chula Vista, San Ysidro, National City, or anywhere else in San Diego and San Diego County, you can expect to face aggressive prosecution in Superior Court. You have a Constitutional right to counsel, and need the best representation you can get. Contact us now for a Free Consultation with a San Diego Criminal Defense Attorney. FREE CONSULTATION 619-550-4422 SOME EXAMPLES OF CHULA VISTA CRIMINAL CASES: 1. Nathan, a long time Chula Vista resident and green card holder was convicted of grand theft in 1997. Due to his felony conviction, he has had difficulty obtaining work, and has not worked to go from lawful permanent resident status to become a citizen. Nathan goes to a San Diego Criminal Defense Attorney to see what his options are. Nathan is in luck. His attorney points out two different ways that Nathan can reduce his felony conviction to a misdemeanor. First, because Nathan was sentenced to probation and completed that probation, he is entitled to a reduction of his felony to a misdemeanor pursuant to Penal Code Section 17(b). Additionally, the amount alleged to have been stolen was less than $950. Nathan is also eligible for a reduction of his felony to a misdemeanor pursuant to Prop 47, a voter's initiative in November 2014 that made many former felony offenses misdemeanors (thefts under $950 and drug possession). With the right motions, Nathan will be eligible to become a citizen! 2. Tyler, a Chula Vista resident, is driving home from a Chargers game, when he is pulled over by the California Highway Patrol for speeding. At the game, Tyler had two beers, but feels completely sober and safe to drive. The CHP officers claim to smell the odor of alcohol coming from the car, but Tyler has two passengers, who have both been drinking much more than Tyler. Tyler does not answer any of the officer's questions (smart move), and refuses to do any field sobriety tests. The officer nonetheless arrests Tyler for DUI. At the station, the officer asks Tyler if he will also refuse this test, not properly advising him of the consequences. Tyler refuses the breath test at the station and a blood draw. Tyler is charged with DUI, with a refusal allegation, and is subject to a one year suspension with the DMV. He hires a knowledgeable San Diego DUI lawyer to represent him at both the court hearings, and the DMV hearing. At the DMV hearing, the lawyer brings in evidence of the officer's failure to properly admonish Tyler as is required for the implied consent chemical testing procedures. As for the court case, Tyler's lawyer sets the case for trial, knowing that the government does not have enough evidence of Tyler's impairment. The case gets dismissed right before trial. Tyler gets to keep his license and his clean record. 3. Adam is a student at Southwestern College in Chula Vista. One day he is driving around Downtown Chula Vista in his car when he is pulled over for having tinted windows. Adam's back windshield and back seat windows on both sides are tinted, but there is no tint on the front driver and passenger side windows, or the front windshield. Chula Vista Police are suspicious of Adam and pull him over for the tinted windows. Upon reaching Adam's window, the officers can smell marijuana, and ask Adam to step out of the vehicle. They begin to search the car, and handcuff Adam. In the car, they find one pound of marijuana, a loaded firearm, and about 50 Xanax bars. Adam is placed under arrest and later charged with possession of a controlled substance for sale (HS 11351), possession of marijuana for sale (HS 11359), carrying a loaded firearm (PC 25850), and possession of a controlled substance while armed with a firearm (HS 11370.1). Facing serious charges and a long period of incarceration, Adam hires a San Diego Criminal Defense Attorney to represent him. At the preliminary hearing, Adam's lawyer files a motion to suppress evidence, citing that the traffic stop was not a valid traffic stop. The tint on Adam's car was legal because it was on the back windows only. Further, the lawyer urged that the smell of marijuana does not justify a search since so many Californians can possess marijuana lawfully as medical marijuana patients. The officers should have first determined whether Adam was a medical marijuana patient. The judge finds the arguments persuasive and throws the evidence out, leaving the government with no evidence, and resulting in a dismissal of all the charges. 4. Amanda is shopping at a Target store in Chula Vista, when she is approached by loss prevention personnel while still in the store. Amanda was shopping when she saw the Starbucks store inside the Target and decided to get some coffee. She had some Target merchandise in her possession that she had not paid for yet, including several DVDs and a portable DVD player. The store security does not believe Amanda that she was just going to get coffee and call the police. The police do not arrest Amanda, but give her a citation, with a promise to appear in court. Amanda hires an attorney who immediately reaches out to the prosecuting attorney to discuss the case, and ask for a pre-filing diversion. Citing Amanda's lack of record and the lack of evidence in the case, the attorney is able to persuade the DA not to file the case. Amanda has not been arrested, charged with a crime or convicted, thanks to the work of her lawyer. She still will have a clean record. Being arrested and charged with a crime is scary, frustrating and can have serious negative impacts on your life. Consequences can include time in jail or prison, long periods or probation or parole, fines, fees, restitution, immigration consequences, loss of driving privileges, loss of employment, loss of professional licensing and more. You need a passionate, dedicated, aggressive San Diego Criminal Defense Lawyer on your side to protect your rights and fight for you. Call now for a Free Consultation. 619-550-4422.
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