Criminal Defense Attorney Blog

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Drone Surveillance and Privacy Rights


In a recent blog article, I explored the legality of K-9 sniffs.  In that article, I concluded that despite the Court’s permission of the practice, the Fourth Amendment would consider K-9 sniffs a search.  Further, I urged that allowing law enforcement to sidestep the Fourth Amendment and the Court’s ruling in Kyllo v. United States could have further-reaching effects on our privacy rights than we might think.  533 U.S. 27 (2001).

In Kyllo, the Court held that law enforcement’s use of infrared technology to detect illegal marijuana grow operations constituted a search and requires a search warrant.  The technology does not enter a building, but allows law enforcement to detect the lights used to grow marijuana.  Similarly, a K-9 sniff allows law enforcement to detect the presence of contraband in a building or vehicle.  When police lack the probable cause or warrant to conduct a search, they are allowed to use a dog to see inside a car or building they have no right to enter.  Real police officers cannot tell what’s inside, and use the dogs in much the same way that they used infrared technology prior to Kyllo.  Still, the Court found this practice permissible when it considered the issue of K-9 sniffs during traffic stops.  Illinois v. Caballes, 543 U.S. 405 (2005).  Next, in Florida v. Jardines, the Court will rule whether a K-9 sniff at the front door of a home constitutes a search.  This decision may include reconsideration of Caballes, but could also affect how law enforcement will proceed with the use of drone technology for surveillance.

Police do not need a warrant to fly over a property in a plane or helicopter, but drone technology permits closer, and perhaps even more discrete surveillance of a home.  To what extend will law enforcement be permitted to use this technology to further erode our individual privacy rights?

Currently, the FAA does permit use of drone surveillance by law enforcement.  While not yet widespread, the decreasing cost of this technology could eliminate our expectation of privacy in our own homes.  A window with its curtains drawn, even if 100 yards away from a public street or walkway, will no longer ensure privacy.  Many states have begun to regulate the use of drone technology, but the legislation is mostly in the early stages.  This is an important question of constitutionally guaranteed privacy rights and requires Federal government attention.

US Representative Ed Markey (D-Mass.) has proposed legislation that would, among other things, require a warrant for drone use by law enforcement and would require publication of drone flights on a public website.  If the bill passes, it will have gone a long way toward safe-guarding our privacy rights.  If it doesn’t pass, we’re in for further erosion of our sacred rights as Americans.  Either way, this is an issue likely to be before the US Supreme Court sooner or later, and one that must be resolved swiftly so as to protect our privacy rights.  Cops looking inside houses with floating cameras would have Thomas Jefferson turning in his grave.  Turning in his grave, drafting a renewed Declaration of Independence.

This issue seriously threatens privacy.  Drone surveillance should require a warrant.

LAPD Pig Sculptures


The LAPD headquarters are housed in one of the most impressive buildings Downtown LA has to offer.  This beautiful piece of architecture is accompanied by a series of sculptures that run along Spring Street.

The highlight of this $450 million dollar building project is that ballsy artist Peter Shelton dared to put pig statues next to the LAPD headquarters.  These sculptures bear resemblance only to Hamm, the piggy bank in Toy Story.  This wasn’t a defiant act of graffiti, but a city-sanctioned series of pig sculptures adorning the worlds most famed pig dwelling.

Former Police Chief William J. Bratton described the sculptures, pictured above, as looking like “some kind of cow splat.”  Bratton said that it’s unclear what the statues are meant to depict, but guessed that the statues look like bison or hippos.  If the sculptures had been of doughnuts, would the chief be saying that they look like tires or cheerios?

How this got past LAPD brass is beyond me.  The term “pig” has been used to refer to police for a long time and is perhaps the most derogatory term used to describe members of law enforcement.

There’s a Dunkin Donuts right across the street from Philadelphia’s City Hall.  Every morning, the building is absolutely flooded with police.  I always found that funny.  But large, prominent, permanent pig statues on the grounds of the LAPD headquarters?  That’s just priceless.

FALSE ACCUSATIONS: A Real American Horror Story

I became a criminal defense attorney to ensure liberty and justice.  From a very young age, I recognized the injustice in the criminal justice system.  When I was a child, my immediate family suffered the consequences of a wrongful arrest, based purely on ethnic profiling.  In law school, I had a close friend who was arrested and called a terrorist by the NYPD officers who arrested her for no reason (well…OK…she’s a bit of a pain in the ass, but committed no crime).


When a client hires me I fight the charges against them with everything I have, regardless of guilt.  Sometimes, though, I get calls from people who were already convicted; often wrongfully convicted.  The effect a wrongful conviction has on someone’s life is immeasurable.


I recently got a phone call from a man named Will.  I never represented Will in any way, but he got a hold of me one day and shared his story.  He has asked me to share his story with you.  His is one of the many stories of a life destroyed by a false accusation and a system too eager to convict in the face of shaky evidence.


Will recently finished serving a 3-year prison sentence.  He lives in Northern California in a tent.  Will never committed a sex crime in his life, but is a convicted felon and required to register as a sex offender.  Will is denied employment, housing and even common decency because of his record, but should never have been convicted and incarcerated.


The alleged crime that ruined Will’s life was that of spousal rape.


Will, the criminal justice system failed you.  When Will called me, I asked him what he was hoping to achieve.  He told me that he wanted his life back.  He wanted the courts to set the record straight.  He wanted to take back the years he spent in a cage. 


While it breaks my heart that none of these things can be achieved, I want this article to bring awareness to an important issue.  In Domestic Violence cases, it is not uncommon for a victim to recant.  A battered spouse will often refuse to testify against the person they love and share a life with. 


But how far is too far in pushing someone to testify?  In Will’s case, his wife suffered from significant mental infirmities.  She had difficulty keeping track of even the most simple details.  The interview of Will’s wife that served as the basis for the charges against Will clearly shows someone unaware of what is going on.


Will’s wife couldn’t remember where she was married, asked whether she had initially contacted the police and denied ever being forced to have sex with her husband.  In fact, during this interview, Will’s wife told the police that she always wanted to have sex.


Despite this glaring weakness, the prosecutor in this case decided to move forward with charges.  While our criminal justice system claims to make avoiding false convictions a priority, false convictions are inevitable wherever there is a zealous advocate for guilt. 


German philosopher Friedrich Nietzsche once said “distrust all in whom the impulse to punish is powerful.”  These words perfectly describe the type of person who wants to fight for the side of proving guilt, even in the face of strong evidence to the contrary.  Unfortunately, taking joy in the misery of others is all too common of a human trait. 


Worse yet than the prosecutor’s overzealous pursuit of a conviction, was the complete failure of Will’s own attorney to properly explain the evidence to him.  Will’s attorney in this serious felony matter just wanted to be done with the case.  He encouraged a guilty plea despite the weak evidence in the case and showed a complete disregard for his client’s needs.


Attorneys who accept appointments must have the skill necessary to defend the accused, but must also keep in mind that court appointed clients are just as important and deserve the same attention and care as clients paying for our services directly.  There is no room for laziness and no room for greed.  Fighting against an already oppressive system, criminal defendants need someone passionate, aggressive and knowledgeable on their side.


Will may or may not still have legal remedies, but I want his story to serve as a warning and as a motivator for my colleagues.  Public defenders, appointed attorneys and even private counsel who do a lousy job in order to dispose of cases quickly need to see what doing so can do to a person.  As lawyers we have deep ethical obligations, but none are more important than to zealously advocate for our clients.  Operating a case mill might be efficient or profitable, but its wrong.  Dead wrong. 


A false conviction, especially one followed by a long prison term, can ruin someone’s life.  Not only does Will’s record hold him back, but this experience has destroyed his ability to trust others, including the government that was so quick to punish an innocent man.  Will is ashamed by what his country and his fellow man did to him.  A descendant of President John Adams, Will has experienced a criminal justice system that our founding fathers would be ashamed of.

I hope that in time Will can get back on his feet, but I can see the vast obstacles standing in his way.

San Diego County District Attorney’s Office pats itself on the back for arresting the homeless.

ImageSan Diego’s DA’s are feeling pretty good about themselves when they should really feel ashamed of how willing they are to hurt others to advance their own careers.  In it’s annual report for last year, the DA’s office boasted 44 cases against 69 “street level drug dealer” defendants in the month of may.

They didn’t arrest the Wire‘s Avon Barksdale.  They didn’t get Bodie, Poot or even Little Kevin.  They arrest Bubs!  These undercover officers arrange to buy small amounts of drugs by propositioning homeless people to help them find drugs.  Why did the DA’s office charge almost twice as many defendants as it has cases?  Because they arrest the homeless person as well as the drug dealer and charge both with drug sales.  The police’s victim in this case doesn’t have to get any money or drugs out of the exchange.  Simply pointing to a corner could land these poor targets in state prison for years!

They always say politics is a dirty game.  When stats matter more than people’s lives, we’ve got a problem.  Though these practices are just shy of entrapment, everything these officers and DAs are doing is legal.  It’s just wrong, though, isn’t it?

Legality of K-9 Sniffs

ImagePolice use K-9 “officers” to sniff the exterior of cars, homes, warehouses, luggage, etc. to detect contraband.  The dogs are trained to find contraband through the use of scented toys.  Trainers select playful, energetic dogs who will eagerly seek out a toy, then accompany the toy with the smell of some form of contraband (e.g. marijuana).  The dog, wanting to play with the toy, will find the toy wherever it is hidden.  Training the dog to find the toy is easy.  Getting the dog to associate the toy with the smell of contraband is also easy, sometimes taking less than a day.  A bit more difficult, however, is the process of getting the dog to disregard the other scents the toy gives off and getting the dog to give a positive signal ONLY for contraband.  After all, the toy is what attracted the dog to the contraband in the first place.  Well trained dogs can be very accurate and effective at determining whether contraband exists, but there are indications that training is not always up to par.  Additionally, there is evidence of law enforcement officers inducing “false positives” to get probable cause.

Police use a K-9 sniff to determine the contents of something they have no legal right to see for themselves.  When an officer lacks probable cause to search a trunk, a garage or a storage unit, they can bring a dog in.  So long as the dog signals that contraband is present, police will usually have the probable cause to conduct a search.  Accuracy and ethical use (the inducing “false positives” problem) aside, K-9 sniffs violate the Fourth Amendment.

In 2001, the US Supreme Court held that law enforcement’s use of infrared detectors to detect illegal marijuana grow operations inside a home is a search and requires a warrant.  Kyllo v. United States, 533 U.S. 27 (2001).  The Court reasoned that law enforcement’s use of technology to see what could not be seen by the naked eye makes the scan a search, even without physically entering the property.  While this case did not address the K-9 sniff, the situations are clearly analogous.  A police officer lacks the probable cause to conduct a search (i.e. lacks the legal right to see what is inside a car, container, house, etc.), and cannot determine the contents on his own.  The officer then uses the dog to see inside the very place he has no right to be.  The Kyllo decision should have been the beginning of the end of the K-9 sniff. 

Instead, in 2005, the Court decided that a K-9 sniff during a routine traffic stop does not violate the Fourth Amendment so long as the practice does not unreasonably add to the delay of the stop.  Illinois v. Caballes, 543 U.S. 405 (2005).  Admittedly, dogs are not technology.  But they are certainly not officers, as the law enforcement side would have us believe.  They aren’t paid, can’t be held accountable, can’t reason the way humans do, and do not even understand the purpose of their function.  Remember, the dog is associating the marijuana it finds with a toy it once wanted to chew on with no concept of anything relating to the arrest or prosecution of the sniff’s victim.  The officer (the human officer, that is) is in full control, using his trained tool to tell him what is inside the place he has no right to go himself.  The Caballes Court reasoned that because the K-9 sniff is designed only to determine whether a car contains contraband no one is allowed to possess, that there is no rights violation.  Essentially, the Court is saying that a person cannot have a reasonable expectation of privacy as to contraband.  This is false. 

Privacy, by its very nature, cannot be judged by the contents of a container.  Until privacy is violated, the trunk is a “mystery box” of sorts.  We cannot logically say that citizens no expectation of privacy in their cars, or in their homes, on the basis of what is contained therein.  Determining what is inside, when doing so is not possible by the naked eye (or human nose), must be deemed a search if the Court is to remain at all consistent with its decision in Kyllo.  In fact, any delay in a routine traffic stop will be more invasive than driving by a home and scanning the exterior.  If a dog is not an officer, then its use is a search.  An officer would not be permitted to use a handheld mechanical nose under Kyllo and should not be permitted to use a K-9 either.  In Kyllo, Justice Scalia warned that allowing officers to use specialized (not widely-used/available) technology to see more than the naked eye permits could eventually lead to a much more substantial deprivation of privacy (airport body scans, anyone?).

If a farce as silly as calling a dog an officer allows law enforcement to sidestep the Kyllo decision, are we in for a real life RoboCop someday?  Can police slap a badge on an infrared detector and continue to use it?  Sure, lots of people have dogs, but the ability to properly train a dog to accurately detect contraband, and only contraband is not widely available.

Luckily for the Bill of Rights, this debate is not over.

Recently, the Florida Supreme Court held that a K-9 sniff conducted at the front door of a marijuana grow house violates the Fourth Amendment.  Florida v. Jardines, 73 So.3d 34 (Fla. 2011).  The Florida Attorney General has appealed the decision and the US Supreme Court will soon hear the case to decide the legality of a K-9 sniff conducted at a home, as opposed to one conducted on a motor vehicle (Docket No. 11-564).  It is long established that people have a greater expectation of privacy in their homes than in a car, so it will be interesting to see how the Court decides this case. 

While the court will not directly address automobile K-9 sniffs in this case, the way the decision defines a search, a sniff and a person’s expectation of privacy will have interesting implications and may affect the way some lower courts handle an automobile K-9 sniff (i.e. some lower courts may read the Jardines decision as overruling Caballes if the Court actually follows the Constitution this time around).

It seems this debate will go on for a while, but it really shouldn’t have to.  A dog is not a cop.  A K-9 sniff is a search.  A search requires probable cause.  No loopholes.


Felon Disenfranchisement Laws

Many states deny convicted felons the right to vote.  The history of these laws is truly disturbing and is rooted only in ignorance and racism, with no legitimate purpose whatsoever.  In the 1890s, many states (particularly those in the South) created a comprehensive series of laws to limit black voting.  States created literacy and landownership requirements for voting, but also made disenfranchisement a consequence of crimes most likely to be committed by African Americans.  Back then, they weren’t shy about it either.  Here’s what Virginia Delegate Carter Glass had to say on the House floor:

“This plan of popular suffrage will eliminate the darkey as a political factor in this State in less than five years, so that in no single county of the Commonwealth will there be the least concern felt for the complete supremacy of the white race in the affairs of government.”

So why do we have felon disenfranchisement laws?  Simply put, to ensure that white men can continue to run the country uninterrupted.  Today, one in three African-American males in Florida is unable to vote because of these laws.

Before the Supreme Court will invalidate a law with a discriminatory effect, there must be evidence of discriminatory intent.  In 1900, the government was honest about its racism and Mr. Glass didn’t feel a need to hide the true reason behind banning felon voting.  Courts struck down some of these laws, but only where the discriminatory purpose was clearly stated.  After the laws were struck down, the states re-enacted laws with virtually the same effect, but this time they didn’t voice their racist intentions.

Many states still have felon voting bans, but can you think of any legitimate reason to keep people from participating in society while also expecting them to follow the rules?