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Copyright claim #0:
When One Admits to Having Marijuana, A Search Is Legal When An Arrest Follows
A search conducted without prior approval by a judge (in the form of a warrant) is unreasonable under the Fourth Amendment to the U.S. Constitution with the exception of a few situations. Such exceptions arise quite frequently in day-to-day police investigations. Arizona v. Gant (2009) 556 U.S. 332, 338.
In the case of Travis Pope, arrested in El Dorado National Forest in Northern California, the “Search Incident To An Arrest” exception to the warrant requirement was tested on appeal to the United States Court of Appeals for the Ninth Circuit (U.S. v. Travis Pope 2012 DJDAR 9839). In a clever opinion worth reading for the precedent it seems to set, the warrantless search by police was upheld as proper.
On the evening of August 16, 2008, Forest Law Enforcement Officer Ken Marcus was dispatched to a gathering of people in the El Dorado National Forest. Apparently, there was a report of loud music and the use of a public address system. There were many people partying, too.
Mr. Travis Pope was one of the people at the gathering. Mr. Pope approached Officer Marcus after Marcus arrested one of Pope’s friends. Officer Marcus allegedly noticed immediately that Pope was under the influence of marijuana. Consequently, Marcus asked Pope if he had smoked marijuana that evening. Pope admitted he had. Marcus then asked Pope if he had any marijuana on him. Pope said no.
Marcus then ordered Pope to empty his pockets. Pope then admitted that he did have marijuana on him and emptied his pockets on the hood of the police car. Pope was then cited for and charged with a violation of 21 U.S.C. § 844 (a), federal misdemeanor possession of marijuana. He was not arrested.
Once in court, Pope’s attorney made a motion to suppress the evidence Pope produced from his pockets. The argument was that it was a warrantless search and therefore improper. There was no arrest, so it could not be a search incident to an arrest. Moreover, the officer’s safety was not at issue.
The magistrate judge hearing the motion denied it on the ground that the search was a valid search incident to an arrest, even though no arrest took place. Frustrated, Mr. Pope then pleaded guilty, but reserved his right to appeal the denial of his suppression motion.
Pope then appealed the denial of his motion to suppress to the U.S. District Court for the El Dorado area. Pope, however, lost again. The district court affirmed the magistrate’s ruling at the trial court, but on grounds that the search was supported by probable cause and incident to an arrest.
Pope did not give up. He appealed on up to the U.S. Court of Appeals for the Ninth Circuit. There, Pope argued that because there was no arrest, the “search incident to an arrest” exception could not apply and there was really no probable cause to search him, or at least the officer conducting the search certainly did not articulate sufficient facts to establish probable cause.
The Court of Appeals seemed to agree with Pope’s arguments. However, it affirmed the two lower counts, reasoning that while indeed no arrest occurred, and thus the “incident to an arrest” exception did not apply, there really was no invasion of privacy issue. Therefore, the rights protected by the Fourth Amendment were not an issue. Cleverly, the Court of Appeals explained that this was so because the officer did not invade, i.e. stick his hand in Pope’s pant pocket. The officer only asked to look at the contents of the pocket, which Pope agreed to show.
The Court of Appeals noted that since Pope agreed to show the officer the contents of his pockets, Pope was not asserting an expectation of privacy in the contents. Therefore, it was not a search at all and no warrant was required. This reasoning meant the Fourth Amendment did not apply at all to Pope’s case.
This case should be a loud warning to all defense attorneys seeking to suppress evidence under the Fourth Amendment, as it suggests that the fundamental requirement to having the Fourth Amendment apply at all is the assertion of an expectation of privacy. Following such an assertion, the exceptions to the Fourth Amendment then must be evaluated.
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Copyright claim #1:
Grand Theft Auto
Grand theft auto, also referred to as “GTA,” vehicle theft and / or just auto theft, is the unauthorized taking of another’s car with the intent to permanently deprive the owner of the car. It may be by force, trick or false pretenses. Sometimes, the suspect takes the car to a “chop shop” to have the car disassembled for money or the suspect intentionally fails to return a rental car.
Grand Theft is a “wobbler.” This means that the charge can be filed as a misdemeanor or as a felony, depending upon the circumstances, the value of the car and the defendant’s prior criminal record. Most commonly, it is filed as a felony as a violation of Penal Code § 487(d)(1), however it sometimes is filed as a violation of Vehicle Code § 18851 (unlawful taking of a vehicle, including Joyriding).
Regardless of whether the car is valued at $500 or $50,000, the theft of a car is always filed at grand theft auto. In other words, there is no such thing as “petty theft auto,” even if the value of the car is below $950, the statutory limit between grand theft and petty theft for most other items (this does not include firearms and certain farm animals).
However, if the value of the car exceeds $65,000, the client faces an additional year of prison time if convicted. If the car’s value exceeds $200,000, the client faces an additional two years in prison (Penal Code § 12022.6).
Without these sentencing enhancements, one convicted of misdemeanor grand theft auto faces a maximum one year sentence in county jail, plus restitution to the victim for the value of the car and sometimes to law enforcement for their expenses in locating and recovering the car. If the client is convicted of felony grand theft auto, he or she faces a minimum of sixteen months and a maximum of three years in state prison, plus restitution similar to that facing one convicted of misdemeanor grand theft.
The defenses to grand theft auto begin with consent of the owner. This can be a tough defense to assert because the owner is most often the person who calls police to begin the case. Usually, the police, before going to the trouble of investigating further, make sure that the owner’s permission was never given for the client to take the car. However, the client may argue or believe that because the owner gave the client permission to use the car in the past, such permission continued.
The second most common defense revolves around intent. If one did not intend to permanently deprive the owner of the car, the crime may be simply joyriding.
Grand theft auto often is charged in conjunction with other crimes. These can be carjacking (Penal Code § 215), burglary (Penal Code § 459) and robbery (Penal Code § 211), so understanding the defenses to these similar, yet distinguishable crimes, can be important towards reaching a plea bargain that the client can accept.
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Copyright claim #2:
What is Joyriding?
Joyriding is a temporary taking of a car or motorcycle (Vehicle Code § 10851), bicycle (Penal Code § 499b(a)), or boat (Penal Code § 499b(b)), without the owner’s permission. The taking is generally thought to be for enjoyment only and is often committed by juvenile males. When the use of the vehicle, bike or boat is no longer enjoyable, the user returns or intends to return the item to the owner. Sometimes, the vehicle, bike or boat runs out of gas before it can be returned.
In this regard, joyriding differs from theft because in theft, the intent is to permanently deprive the owner. The “joyrider” never intends to keep the vehicle, bike or boat, either for personal use of to sell it.
Joyriding is usually filed as a misdemeanor, but it can be filed as a felony. When committed by a juvenile, the court the case is brought in is juvenile court. Often, the joyriding charge is just one of many charges in the case, which may also include DUI, petty theft, resisting arrest and evading a police officer. Sometimes, in worse cases, there is property damage and personal injury involved.
Depending upon the juvenile’s age and prior record, as well as the severity of the case, including the duration of the taking, such cases are often resolved over time with a dismissal through a delayed entry of plea or delayed entry of judgment arrangement. The juvenile, however, may serve time “home or probation” and may have to serve community service before receiving a dismissal.
When the client is not a juvenile, prosecutors file the case according to what code section is violated. When a violation of Vehicle Code § 10851 (car or motorcycle), Penal Code § 499b(a) (bicycle) or Penal Code § 499b(b) (boat) is alleged, a delayed entry of plea or delayed entry of judgment remains possible, especially if the client has no prior criminal history, is young, and the “victim” is not interested in prosecution, typically when the car, motorcycle, boat or bike is returned undamaged.
The defenses to joyriding are the owner’s consent, but this is often unavailable because it is usually the owner who calls the police. When the taking is for a very short period of time and/or a very short distance is traveled, it is possible to argue that the “taking” was too insignificant to merit a criminal action.
When a car or motorcycle is taken, the case may also filed as a violation of Vehicle Code § 10851, which is a “wobbler.” This means the prosecutor has the option of filing the case as either a felony or a misdemeanor, depending upon the circumstances of the case, the defendant’s age and the defendant’s criminal history.
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Copyright claim #3:
Witness Intimidation Can Make Admissible Otherwise Inadmissible Hearsay
It is common in domestic violence cases, as well as certain theft cases and certainly gang-related cases, that the unavailability of a witness for trial can mean a dismissal or defense verdict. For example, when a wife or girlfriend is the only witness to defendant’s conduct and she cannot or will not appear at trial, the prosecution may dismiss the case. Our office has experienced this many times on first day of trial, to our client’s relief.
However, a defendant’s awareness of this can be dangerous. If the client attempts to tell his girlfriend or wife to not cooperate with the prosecution by refusing to come to court, the prosecution can invoke the doctrine of forfeiture by wrongdoing to make the wife’s testimony or girlfriend’s testimony admissible.
The Torrance Superior Court case of People v. Kevin Jermaine Jones, before the Honorable Cary Nishimoto, should serve as a warning in this regard. Mr. Jones was involved romantically with two women at the same time. After nearly choking one girlfriend (Breland) to death, he used that girlfriend’s cell phone to call the other girlfriend (Durden), saying “I just choked your homegirl out and I have her phone.”
Ms. Breland then went to police, who listened to her story and contacted Durden. Durden reported the admission that Mr. Jones had made to her about choking Breland. From jail, Mr. Jones then contacted Durden twelve times by phone. During the ten hours of phone conversation, which the jail recorded, Mr. Jones attempted to dissuade Durden from appearing in court to testify about his admission.
At trial, Durden indeed did not come to court, but the prosecution attempted to admit Durden’s statements to the police about Mr. Jones’ call. Such statements were hearsay without a doubt. However, the prosecution argued that under Evidence Code § 1390(a), they were admissible. Section 1390(a) states:
Evidence of a statement is not made inadmissible by the hearsay rule
if the statement is offered against a party that has engaged in, or aided
and abetted, in the wrongdoing that was intended to, and did, procure
the unavailability of the declarant as a witness
Judge Nishimoto agreed with the prosecution, admitting Mr. Jones’ statements. Judge Nishimoto commented that, “the implication from the discussion [from jail, between Jones and Durden] was that he has friends on the outside who can assist him in doing whatever is necessary.”
Jones’ appealed the ruling, not denying that he intimidated the witness, but claiming that application of 1390(a) was limited to cases where the witness was murdered.
In People v. Kevin Jermaine Jones (2012 DJDAR 10217), the Second Appellate District upheld the trial court ruling made by Judge Nishimoto. While acknowledging the general principle of the Sixth Amendment to the U.S. Constitution that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him,” the appellate court distinguished this right by emphasizing that defendants have the duty to refrain from acting in ways to destroy the integrity of the criminal-trial system.” Davis v. Washington (2006) 547 U.S. 813, 833.
The appellate court continued, citing Crawford v. Washington (2004) 541 U.S. 36, 62, wherein the U.S. Supreme Court held that “the rule of forfeiture by wrongdoing extinguishes confrontation claims on essentially equitable grounds,” meaning it would not be fair for a defendant to take advantage of the Sixth Amendment confrontation clause rights by creating a situation of witness unavailability.
The California appellate court then brushed away Jones’ claim that the forfeiture doctrine only applied to murdered witnesses, noting that Jones’ did not cite one case, either from California or any other jurisdiction that narrowed the scope of the doctrine to such circumstances. In fact, in People v. Giles (2007) 40 Cal.4th 833, 854, the California Supreme Court discussed the forfeiture doctrine with no limits whatsoever to its application.
In short, witness intimidation is a dangerous and slippery slope for any defendant to place himself on. It can make admissible otherwise inadmissible hearsay.
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Copyright claim #4:
Unemployment Insurance Fraud
What Is Unemployment Insurance Fraud?
Unemployment insurance fraud is the receipt of unemployment benefits to which one is not entitled, or assisting one in such receipt. It is a particularly prevalent crime in today’s tough economy with numerous underemployed workers. Workers who may have been unemployed for some period of time, only find work at lower pay than expected, continue to received unemployment benefits when they are simultaneously receiving pay.
Such workers are “double-dipping” and it is illegal (Insurance Code §§ 2101 and 2102).
The State of California Employment Development Department (EDD) often discovers such fraud by checking wage records submitted to the state tax division, reviewing the national directory of new hires and comparing records for unemployment benefits with those used by child support enforcement officials. Sometimes, the state will subpoena employer payroll records and even conduct surveillance operations.
To prove one committed unemployment insurance fraud, the prosecution must prove that a person made a “willful, false representation, knowing concealment, or false identification to obtain, increase, reduce or defect any benefit under the state and federal programs.” Defecting a benefit refers to having a legitimate benefit redirected to a recipient who is not otherwise entitled to receive such money.
This definition can include scenarios where one receives pension or worker’s compensation benefits, without reporting this to the EDD while receiving unemployment benefits.. It can also include using a false name or false social security number to receive benefits when one would otherwise not qualify.
The defenses to unemployment insurance fraud begin (and sometimes end) with arguing that the client lacked the specific intent to defraud. This can mean showing that you sincerely believed you were submitting a bona-fide, honest claim. However, you unintentionally made an error in the application process and did not know you made such an error, so the application was submitted.
The second most common defense is simply challenging the sufficiency of the evidence the prosecution seeks to introduce to prove their case.
Lastly, but quite uncommon, is arguing that another person submitted the false information on your behalf. This can be a problematic defense because it requires that you agree with the information on the application when you signed the application, verifying that all information submitted in the application was true and accurate, but that you really did not verify this.
Unemployment insurance fraud is a “wobbler,” meaning it can be prosecuted as either a felony or a misdemeanor, depending upon the facts of the case, one’s age, one’s criminal history, and one’s employment history. As a misdemeanor, the maximum sentence is a year in county jail and $25,000 fine. As a felony, the minimum term is sixteen months in state prison and the maximum is three years, plus a fine of up to $20,000.
If the facts allow, one may seek to plead instead to general insurance fraud (Penal Code § 550). When the amount of the fraud is $950 or less, the case is a misdemeanor with a maximum sentence of six months in county jail and a $1,000 fine. When the amount exceeds $950, the case can still be a misdemeanor, but the penalties increase to one year in county jail and a $10,000 fine. When the case is filed as felony insurance fraud, the maximum sentence increases to five years and a $50,000 fine.
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Copyright claim #5:
Driving Without A Valid License
One of the more common offenses our clients face, usually in conjunction with other offenses such as DUI or speeding, is without a valid license, a violation of California Vehicle Code § 12500(a), or driving on a suspended or revoked license, a violation of Vehicle Code § 14601.
Often, the client is not aware that his or her license has expired or, less frequently, the client recently went to the DMV to rectify the problem, but as Murphy’s Law applies, the traffic stop occurs before the DMV mails the new license.
Charges of violating Vehicle Code § 12500(a) can arise for other reasons, too. It may be that the client never received a driver’s license at all, perhaps because the person is not a U.S. citizen (because a social security number is required to get a license). The person also may have moved from another state to California and failed to apply for and receive a California driver’s license yet.
When any of these situations arise, clients often believe there is no reason to appear in court at all. This is a big mistake, as a failure to appear in court or have an attorney appear for you can and usually does result in the judge issuing a bench warrant for the client’s arrest. Once the arrest is made, bail to be released can be up to $30,000.
When a charge of driving on a suspended or revoked license (Vehicle Code § 14601) license is bundled with other charges, for example DUI, the client must also appear in court or have an attorney appear for them if the charges are misdemeanor DUI. Driving on a revoked or suspended license is more serious than just driving without a valid license, although it is often difficult for the District Attorney to prove because the prosecutor must prove the driver knowingly drover on a suspended or revoked license.
If the client is stopped and does not have his or her license in his possession, this is an infraction (Vehicle Code § 12951). As long as the driver can later produce the license to the prosecutor, the charge is often simply dismissed.
Charges for driving without a valid license (Vehicle Code § 12500(a)) can be filed as a misdemeanor or an infraction. Such a violation is charged as infraction when the client has never before been charged with this, and or a misdemeanor if the client has. If filed as a misdemeanor, the maximum jail time is six months, the maximum fine is $1,000 and the court may impound the car for up to thirty days, at the client’s expense. When the case is filed as an infraction, the maximum fine is $250 and there is no jail time involved.
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Copyright claim #6:
Confrontation Clause of Sixth Amendment Not Violated When DNA Evidence is Admitted
The Sixth Amendment of the U.S. Constitution guarantees the right of an accused to question “witnesses against” an accused. This right is termed the “Confrontation Clause,” as it permits one to cross-examine a person has testimony that might support a conviction. This fundamental right is meant to ensure a trial is fair.
In a rape case, DNA evidence from a victim is often sent to a laboratory for examination to see if it matches a suspect’s DNA. The laboratory’s report is hearsay, as it is an out-of-court statement being offered for the truth of the matters stated therein. However, the report may be admitted into court if the defendant had an opportunity to cross-examine the analyst who prepared the report (i.e. to question if the person followed proper procedure, if the person was sufficiently trained, if there were any problems during testing that affect the certainty of the results, etc.), but the analyst is then unavailable at time of trial.
In two recent U.S. Supreme Court case, Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305 and Bullcomings v. New Mexico (2011) 564 U.S. _, the U.S. Supreme Court held that scientific reports could not be used as substantive evidence against a defendant unless the analyst who prepared the report was subject to cross-examination.
In other words, the Sixth Amendment’s Confrontation Clause seemed to protect the defendant from some analyst who could prepare a damming, sloppy and unreliable report and then hide away without being cross-examined about their work. Melendez-Diaz and Bullcomings seemed to mean a prosecution could not succeed unless the laboratory analyst testifies and the report’s credibility is evaluated.
In the recent United States Supreme Court case of Williams v. Illinois (2012 DJDAR 8091), a defendant’s right to solid evidence seems to have taken a step backwards. In Williams, a swab sample was taken from a rape victim. The sample was then taken to an outside laboratory. A sample of Williams’ blood was then taken by the Illinois Police lab to the outside lab, which then matched it to the swab sample.
At Williams’ bench trial (not a jury trial), an expert forensic specialist testified that Williams’ the DNA on the swab sample matched the DNA in Williams’ blood, but the outside laboratory’s report was not admitted into evidence. Moreover, the expert had no personal knowledge of how the outside laboratory tested the swab sample or if the lab followed proper protocol. The expert only testified that the outside lab was an accredited laboratory and that business records showed a sample went to the lab and was returned. The expert could not vouch for the accuracy of the testing by the outside laboratory.
Williams’ counsel objected to the expert’s testimony insofar as it involved events at the outside laboratory because the Sixth Amendment’s Confrontation Clause guaranteed Williams the right to cross-examine the analyst who did the testing and found the match. The trial court overruled the objection and Williams was convicted of rape.
Williams appealed the ruling to the Illinois Court of Appeal and the Illinois Supreme Court, both of whom held that the expert’s trial testimony did not violate Williams’ confrontation rights because the outside laboratory report was not offered into evidence to prove Williams’ guilt of rape, but only to prove the truth of the DNA match.
Williams thought this reasoning was wrong, so he appealed to the United States Supreme Court. The U.S. Supreme Court, however, agreed with the Illinois Supreme Court, noting first and foremost that because the case was a bench trial and not a jury trial, an expert may disclose inadmissible evidence. The U.S. Supreme Court commented that a judge would be able to draw a distinction between the limited testimony of the expert and resist making a wider, wholesale conclusion that there was a proper chain of custody and all protocol was followed. Moreover, the U.S. Supreme Court noted that the victim pointed out Williams in a line up and identified him at trial as her attacker.
Consequently, Williams’ appeal was denied and his conviction was upheld.
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Copyright claim #7:
Orange County Judge Reversed for Refusing Production of Internal Affairs Witness
Edward Rezek was charged in Orange County Superior Court with delaying or obstructing a police officer in the performance of his duties (Penal Code § 148 (a) (1)) and vandalism (Penal Code § 594 (a)), both misdemeanors.
Rezek allegedly punched the hood of a car driven by a private security guard in a parking lot at a Tustin shopping center, causing damage to the vehicle. The security guard then made a citizen’s arrest. Two off-duty Tustin police officers were nearby and came to assist Rezek then allegedly resisted arrest.
Rezek claimed he slapped the hood of the security guard’s car when the security guard almost ran him over in a cross-walk. He then walked over to a restaurant and the two plain clothes police officers dragged him away without identifying themselves. Rezek claims one of the officers broke his arm. He was taken to the hospital, where his broken arm was confirmed. Rezek also claimed the restaurant manager witnessed the tussle and would confirm Rezek’s version of events.
After being charged, Rezek filed a Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 53), seeking information from the arresting officers’ personal files, hopefully revealing instances of prior use of excessive force. The motion was granted and it was revealed that one of the officers allegedly used excessive force six years earlier.
An internal affairs investigation then ensued into Rezek’s case. Rezek then filed a second motion, seeking the production of three percipient witness statements regarding the parking lot and restaurant incident, which had been obtained by internal affairs.
The Orange County Superior court judge then handling the case denied the motion, stating that it did not have jurisdiction to “make sure” the prosecution complied with its earlier Pitchess motion ruling.
Rezek then filed a petition for writ of mandate. At the appellate court level, the petition was denied. Rezek then filed a petition for review to the California Supreme Court, which granted the petition and transferred the case to the Fourth Appellate District for further action.
The Fourth Appellate District recognized the issue as whether a court can order production of witness statements under Penal Code § 1043 when such statements really are discoverable simply through Penal Code § 1054.1. Rezek’s motion to the Orange County judge was interpreted as a less a motion, but really a request that the court proceed in camera to decide whether the prosecution had complied with § 1054.1. Accordingly, the court denied the motion because the motion only asked the court to proceed under Penal Code § 1043.
The Fourth Appellate District determined that the Orange County judge abused his discretion in this regard. Moreover, the City of Tustin did not demonstrate any reason why a statement obtained from an eyewitness while police are investigating a crime is discoverable (under § 1054.1), but the same statement is not discoverable if it is placed in the officer’s personnel file. The trial court further abused its discretion by believing such statements are exclusively discoverable under § 1054.1.
Consequently, the Fourth Appellate District ordered the trial court to conduct an in-camera review of the witness statements and order such statements produced if they are were not otherwise protected from disclosure on other grounds. In short, the appellate court ordered the police to make the internal affairs witness statements available to Defendant, finding the police could not shelter the witness statements by placing the statements in a personnel file.
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Copyright claim #8:
What Are the Limits of a “Protective Sweep” Search Without a Warrant?
It is well-established law that warrantless searches of a home are “presumptively unreasonable” under the Fourth Amendment. Payton v. New York (1980) 445 U.S. 573, 586.
However, it is also well-established law that law enforcement arresting someone in a house may perform a quick and limited “protective sweep,” warrantless search for their own safety when there is a reasonable suspicion that the house may contain a dangerous person. Maryland v. Buie (1990) 494 U.S. 325, 335. Such a search is similar to the limited pat down for weapons authorized during an arrest of a person.
The recently decided (July 20, 2012) case of People v. Craig Andrew Werner (2012 DJDAR 10051), out of Santa Clara County, set new limits on when an officer may perform a warrantless, “protective sweep” search. We believe the case is significant because its fact pattern arises quite often in cases we handle.
On February 19, 2010, police were summoned to the Campbell home of Mr. Werner because his girlfriend called police over alleged domestic violence. When police came to the house, Werner answered the door and stepped out to the front porch, where he was handcuffed and arrested. Werner then asked his roommate to go inside the house and retrieve his keys.
Police then accompanied the roommate into the home. While inside the home, police saw illegal fireworks and marijuana in plain view in Werner’s bedroom. The officers then performed a “protective sweep” and found more marijuana, marijuana plants and indicia of drug sales (a digital scale and a notebook with pay-owe information) throughout the house, including in Werner’s garage, where there were 45 marijuana plants.
Werner was then charged with three drug-related felonies, (1. Health and Safety Code § 11359 – possession of marijuana for sale; 2. Health and Safety Code § 11358 – cultivation of marijuana; and 3. Health and Safety Code § 11377(a) – possession of a controlled substance – psilocybin). He was also charged with possession of dangerous fireworks without a valid permit (Health and Safety Code § 12677) and domestic violence related charges, including false imprisonment (Penal Code §§ 236-237).
Werner moved to suppress under Penal Code § 1538.5 the evidence found in his bedroom as the product of an illegal, warrantless search of the residence and the subsequent evidence found throughout the rest of the house was the “fruit of the poisonous tree,” the initial improper search. At the trial court level, his motion was denied. Werner then appealed to the Sixth Appellate District.
The Sixth Appellate District reversed the trial court. It agreed with Werner that the police had no reason to fear for their safety in any regard. After all, they went to the home in response only to a domestic violence complaint. They were able to arrest the suspect immediately and outside the home. The officer who accompanied the roommate could not articulate any reasonable suspicion that there might have been a dangerous person inside the residence that would justify a warrantless search under the protective sweep doctrine.
In viewing the totality of the circumstances, the Sixth Appellate District found that the officer did not have a particularized and objective basis for his suspicion that there might be a dangerous person in the house. Police knew from the girlfriend that there were two people living in the house. When both residents of the home were in view of the police, they had no reason to believe the house contained anyone else.
It is our opinion that the officer properly did accompany the roommate, however, he needed to get a warrant to justify any search at all. Police would have had a tough time getting such a warrant – we would hope.
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Copyright claim #9:
Illegal Tinted Windows
What Are Illegal Tinted Windows (Vehicle § 26708.5)?
Our office has heard many clients report that they were pulled over because the police officer told them they had illegal tinted windows. The client usually suggests that the police officers had a hunch that our client was DUI, on probation, had drugs in the car or was wanted for an unsolved crime. The tinted windows, in other words, were just a pretext for the police to set up our client for a search, an arrest and much bigger charges than just illegal tinted windows.
The client suspects that his windows were in fact legal, making the traffic stop illegal and all evidence found subject to suspension.
This article seeks to clarify what exactly constitutes illegal tinted windows.
Vehicle Code § 26708 states: reads as follows
“No person shall drive any motor vehicle with any object or
material placed, displayed, installed, affixed, or applied upon
the windshield, or side or rear windows, or with any object or
material so placed, displayed, installed, affixed, or applied in
or upon the vehicle so as to obstruct or reduce the driver’s clear
view through the windshield or side windows.”
In other words, it is illegal to have completely tinted front windows or completely tinted side windows. An exception exists for a driver with a medical condition requiring tinted windows, but this must be verified by a licensed physician. A narrow strip of tinted material, however, is allowed on the windshield, but it must be no lower than twenty- nine inches from the bottom of the windshield.
No tinted material may be red or amber in color. There also cannot be any lettering that that blocks one’s view outside the car or reflects light into the eyes of drivers of oncoming cars. If the rear window is tinted in any way, the car must have outside rearview windows on both sides, according to the CHP website.
If any tinting material becomes bubbled or otherwise worn, it must be removed or replaced.
Our office has informally asked several police officer’s about this law and what constitutes a violation. The consensus response is that basically any after-market window tinting is illegal.
Such an approach raises the rhetorical question of, “well, what about all those window tinting businesses? Are they just selling illegal products? How can that be legal?
In the 1983 case of Klarfield v. State of California (1983) 142 Cal.App.3d 541 (191 Cal. Rptr. 330), this rhetorical question was addressed. The case arose when Transparent Glass Coating a California business, installed tinted windows on a customer’s car. The customer, Cintron, then received a ticket for the car’s violation of Vehicle Code § 26708. The customer then went back to the store, irate and demanding the store remove the tinting and pay for the ticket.
The business consequently brought an action for a declaration of its rights to continue doing business.
The court held that Transparent Glass Coating was entitled to conduct business in a legal manner if it installed “factory” grade tinted windows and any tinted windows pursuant to a customer’s medical condition. The shop was also legally entitled to install certain side and rear windows in trucks and buses. Such glass would be installed to replace windows broken in a crash, burglary or otherwise.
Original work URL(s):
http://www.greghillassociates.com/lawyer-attorney-1998092.html
Allegedly infringing URLs:
0. http://www.worldlawdirect.com/forum/law-wiki/64260-illegal-tinted-windows.html
SWORN STATEMENTS
I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law.
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The information in this notification is accurate, and I swear, under penalty of perjury, that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
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SIGNATURE
Signed on this date of:
04/09/2014
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