The Blog of Matthew S. Koken, Esq.

The Law Firm of Matthew S. Koken provides its clients with effective and dedicated criminal defense representation at an affordable price. We strive to not only have an extensive knowledge of the law, but of our clients as well.

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BARRING SEX OFFENDERS ACCESS TO SOCIAL NETWORKING SITES VIOLATES THE FIRST AMENDMENT

Posted on 6/23/17 by Matthew S. Koken

North Carolina makes it a felony for a registered sex offender to access an Internet social networking site where the offender knows that the site permits minors to become members or allows them to create or maintain personal web pages.  This defendant was convicted for posting a statement on his personal Facebook page about a positive experience he had in traffic court.  It appears that over 1000 people have been prosecuted for violating this law. The US Supreme Court strike down the law as violating the 1st Amendment, but note that a narrower, more tailored law might survive.

Packingham v. North Carolina; 15-1194; 6/19/17; US Supreme Court

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IS A GESTURE SUFFICIENT TO QUALIFY AS A CRIMINAL THREAT?

Posted on 12/16/14 by Matthew S. Koken

Penal Code section 422, criminal threats, applies only to “the statement, made verbally, in writing, or by means of an electronic communication device."  So is a non-verbal threat enough?  Well, Franz (88 CA4th 1426) says no.  Franz says that a throat-cutting gesture PLUS a shushing sound, is enough.  There’s no sound at all in this case; the defendant made gang signs, throat-cutting signs, simulated shooting a gun by using his hand, and, get this, "purposeful staring."  They say Franz’s discussion was dicta.  They say it would be absurd to apply the statute as literally written, so they find enough for a 422.  What happened to conservative judging, just applying the law as written?  This discussion is so broad that the staring might well be enough. Crazy.
     

People v. Gonzalez; E059859; 12/9/14; C/A 4th, Div. 2

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DO THE POLICE HAVE A DUTY TO INVESTIGATE A MEDICAL MARIJUANA DEFENSE?

Posted on 12/9/14 by Matthew S. Koken

The police obtain a search warrant based on information showing that the defendant possessed and cultivated marijuana.  The defense seeks to quash the warrant, arguing that the police failed to determine whether the defendant had the marijuana for medical purposes.  The defense point is that the police failed to determine whether the defendant had a medical marijuana defense, and thus failed to show that the marijuana was possessed and cultivated illegally, which would have undercut the basis of the warrant.  The Court of Appeals disagrees; the police have no duty to investigate whether the defendant has the marijuana legally.
     

People v. Clark; B253036; 10/9/14; C/A 2nd, Div. 5

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Community Court Plan by the San Diego City Attorney Office

Posted on 11/19/14 by Matthew S. Koken

A few weeks ago the City Attorney’s Office launched the Community Court Plan. This program will allow low-level offenders to have their case dismissed within 90 days from their first court appearance. It is important to hire an experienced criminal defense attorney to secure an offer for you in Community Court. 

Community Court will allow misdemeanor criminal defendants in San Diego to complete a 16-hour public work service project either through Urban Corps San Diego or Alpha Project San Diego. There is a $120 administrative fee that must be paid to one of these two providers. However, once you complete the 16 hours of community service and pay the $120 administrative fee, then your case will be dismissed!

There are certain misdemeanor cases that are not eligible for Community Court. These charges include:

  • Driving Under the Influence
  • Domestic Violence
  • Sex Offenses
  • Child Abuse
  • Elder Abuse
  • Hate Crimes
  • Cases involving restitution
  • Cases eligible for other statutory diversion programs (i.e. H&S 11550, H&S 11377)

If you want to know more information about getting your misdemeanor case dismissed in San Diego County, Contact The Law Office of Matthew S. Koken at 619-228-4578.

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TAKING A DRUG-SNIFFING DOG ONTO A PORCH IS A SEARCH

Posted on 4/10/13 by Matthew S. Koken

We recently lost Florida v. Harris (133 S.Ct. 1050), where the US Supremes unanimously held that a dog, formally certified by a bona fide organization as being proficient, or a dog who recently and successfully completed a training program evaluating his proficiency, can itself provide probable cause for a detention.  But the Supremes considered a second case along with Harris.  In this case, the police took a drug-sniffing dog to the defendant’s porch. The dog alerted to narcotics.  Based on that alert, the officers obtained a search warrant; marijuana plants were found.  The Supremes (5-4) find a 4th Amendment violation.  They find (Scalia writing) that the police physically intruded on the defendant’s property, the porch being part of the curtilage of the home, when they brought a drug-sniffing dog onto the porch.  That amounts to a search: “The government’s use of trained police dogs to investigate the home and its immediate surroundings is a ‘search’ within the meaning of the Fourth Amendment."  Since there was no probable cause for that search, it was illegal as were the fruits of it.  Kagan’s concurring opinion is worth reading, both for the clarity of her reasoning and for its entertainment value.

     Florida v. Jardines; 2013 DJ DAR 3953; DJ, 3/27/13; US Supremes

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IS A DOG'S ALERT SUFFICIENT TO ESTABLISH PROBABLE CAUSE TO SEARCH?

Posted on 4/2/13 by Matthew S. Koken

Probable cause to search requires facts which would lead a “reasonably prudent person” to believe that evidence or contraband is present.  The US Supreme Court here rule that a dog, formally certified by a bona fide organization as being proficient, or a dog who recently and successfully completed a training program evaluating his proficiency, can itself provide probable cause. Justice Kagan says, “A sniff is up to snuff when it meets that test."  She stresses that the defense "must have an opportunity to challenge such evidence of a dog’s reliability, whether by cross-examining the testifying officer or by introducing his own fact or expert witnesses."  You can contest the certification or training program itself, or the dog’s performance at such a program.  The dog’s history in the field (or the handler’s) is fair game.  And you can contest the circumstances of the alert of the dog in your particular case, perhaps showing that the handler cued the dog.

     Florida v. Harris; 2013 DJ DAR 2229; DJ, 2/20/13; US Supreme

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License Plate Recognition (LPR) in San Diego

Posted on 3/4/13 by Matthew S. Koken

Where’s your car? Well, dude, it’s in a huge Orwellian police database.

That might seem like the plot of a bad movie, but since around 2010, police agencies in San Diego County have quietly used a network of sophisticated devices called license-plate readers (LPR) to monitor and record the movements of thousands of everyday drivers. Even as you read this, police cars equipped with LPR are patrolling the streets, automatically scanning and photographing every license plate in sight, tagging each with a GPS coordinate and filing the information away. For years.

With 36 million scans and counting—an average of 14 for every registered vehicle in the county—the database provides a mappable, searchable record of the movements of thousands of individual drivers. It’s sort of like FourSquare for cops, except that it’s involuntary, the data is secret and there aren’t quite as many narcissistic hipsters.

The system’s become a routine part of police work in San Diego County. Investigators at several local agencies say the historical data, stored in a database maintained by the San Diego Association of Governments (SANDAG), allows police to challenge alibis, locate witnesses and generally nab a lot of bad guys. It’s not just local cops who use it; the FBI, DEA and investigators with Immigration and Customs Enforcement (ICE) are also tapping into SANDAG’s records, leveraging the broader community presence of local police to prosecute federal crimes and immigration violations.

Police say LPR is the future of law enforcement, a Robocop-style “force multiplier” that maximizes what officers can accomplish. But privacy advocates say the sheer volume of information collected, and the indiscriminate logging of mostly innocent people’s movements, amounts to a broad system of surveillance.

“With so much data, it becomes very easy to build a composite picture of what a person is doing, and to reveal an enormous amount of personal information, simply by tracking their movements,” says David Loy, legal director of the ACLU of San Diego and Imperial Counties. When police can pull up a map of your travels—visits to your church or mosque, your doctor’s office or weekly AA meeting—they have access to a great deal of sensitive information. “It becomes analogous to GPS tracking without a warrant,” Loy says.

Most of the LPR devices in San Diego County are vehicle-mounted, but there are also portable LPR that can be set up at special events, and fixed devices installed at hotspot terrorist targets, or other places deemed worthy of monitoring, like along Highway 94 in East County.

The system’s coverage is impressive. Lt. Glenn Giannantonio of the San Diego County Sheriffs Department says that when he types in a suspect’s plate number, he can be confident that he’s going to get a hit. “If it’s a normal person driving around, you can pretty much guarantee that the car’s going to get scanned,” he says.

He seems to be right. According to information gleaned from a public-records request, my Subaru was scanned, and its location logged, 24 times in the past 13 months.

SANDAG declined to release the full details of the records, so there’s no telling what scandalous predicaments I’ve been implicated in. But Dale Stockton, who manages the system for SANDAG, says that most of the reads occurred on a particular North Park street, not far from my home. This is typical of the system, Stockton says. If you happen to live on a heavily patrolled street, you’re more likely to appear in the database frequently.

San Diego County’s system is unusual; it’s one of the most seamlessly integrated LPR databases in the U.S. Thirteen different agencies operating at least 56 units—each one costs about $25,000—all send their information to a shared, countywide server.

That the SANDAG system spans the county is especially troubling to privacy experts. In most of the U.S., individual agencies keep their own data in their own systems, making it hard to search across jurisdictions.

Stockton says the interconnectivity of the data systems is critical to making LPR a useable technology for law enforcement in the county. “The value is in the data, but the value is only there if we can share with each other,” Stockton says. Criminals don’t respect town boundaries.

SANDAG’s system is worth paying attention to, because it may offer a glimpse into the future of LPR. As more and more departments acquire the technology—the majority of U.S. police departments already have at least one unit— shared systems like SANDAG’s will likely serve as a model.

When LPR devices first showed up in the arsenals of local police more than a decade ago, they were used mainly to look for unregistered drivers and bums with overdue parking citations—less Robocop, more Bionic Meter Maid—and LPR is still used for this kind of real-time, “hot list” policing. As the device scans license plates nearby, it compares each one to a list of known, wanted vehicles. When there’s a match, an alarm sounds inside the cruiser. San Diego Police Department spokesperson Lt. Andra Brown says in an email statement that LPR has been especially helpful in finding stolen cars with this kind of instant alert. But that application is becoming secondary to the mining of data.

Grants from the federal government, primarily the Department of Homeland Security, provided much of the funding for the county’s LPR system. In an elegantly circular arrangement, Homeland Security agencies like ICE are now reaping the fruits of that largesse, by tapping into local databases for their own investigations.

Christian Ramirez, human-rights director for the socialjustice group Alliance San Diego, says such close cooperation can blur the line between local police and immigration authorities.

“It runs the risk of creating a gap between local law enforcement and local communities, and particularly immigrant communities,” Ramirez says. “When that trust is eroded, when local communities believe there is close cooperation between local law enforcement and immigration authorities, they may be hesitant to contact local police.”

Both Loy and Kade Crockford, a researcher with the Massachusetts ACLU, whose work has focused on LPR technology in agencies across the country, say they don’t have a problem with using LPR in real-time to catch crooks. They don’t even object to holding the data for a short period of time. But they consider the retention periods in the SANDAG system excessive. Currently, the shared database holds scans for between one to two years, which is typical of agencies nationwide. The San Diego County Sheriff holds on to its information indefinitely, in a duplicate, parallel system independent of SANDAG.

In Massachusetts, Crockford’s group is pushing for a 10-day retention limit—enough time, they argue, to investigate crimes while also avoiding a long-term privacy threat.

“LPR is a really interesting technology,” Crockford says. With some basic protections and limits on retention, many of the privacy concerns are alleviated. “It’s really not hard to strike a balance between privacy and public safety.”

Police say they understand the apprehension some people feel about LPR and stress that there are controls in place to protect data. Any investigator accessing the system has their activity logged.

“Short of a criminal investigation, no one is accessing this data,” says Giannantonio with the Sheriff’s Department, “so there really is no need to dispose of it.”

Besides, police say, the system works. Sgt. Scott Walters of the Escondido Police Department says the data’s been critical in solving hit-and-run cases, homicides, burglaries—you name it.

I’ve lost count of how many crimes we’ve solved because we’ve been able to go back and pinpoint locations,” he says.

While it wasn’t reported at the time, LPR data figured into one of the biggest criminal cases in recent county history. When police began to investigate John Gardner’s role in the disappearance of Amber Dubois, LPR scans collected more than a year earlier in Escondido helped place him in that city around the time of her disappearance. If privacy advocates had their way, police point out, the data in that case would have been deleted long before it proved useful. Gardner was later convicted of the rape and murder of both Dubois and Poway teenager Chelsea King.

The question of whether this data gathering is legal is a matter of some disagreement. Police argue that a person traveling in public doesn’t have an expectation of privacy. Furthermore, they say, no cop needs a warrant to write down your plate number. In that sense, LPR only does what a human cop can already do.

But privacy advocates say the sheer quantity of data being collected might change that basic principle. LPR isn’t analogous to a human cop, because they’re just too powerful. To match the performance of an LPR device, a police officer would have to read a license plate, take a GPS coordinate and note the date and time once every seven seconds, for the entirety of their 10-hour shift. That could get exhausting.

Crockford and others are hopeful that the courts might place some restrictions on LPR in the future, pointing to a concurring opinion from Supreme Court Justice Sonia Sotomayor in a recent GPS tracking case. But no court has ruled on the questions directly. Loy says he doesn’t want to take away a powerful tool; he just wants to make sure that there are controls in place.

“I don’t blame law enforcement for wanting to get more information,” Loy says. “If I was in their position, I’d want all the information I could get. But we have a Constitution, and we have checks and balances precisely because no branch of government should be trusted completely.” Envisioning a future where everyone’s travels are constantly monitored? “That is extremely frightening” Loy says. “I don’t think that’s the world we want to live in.”

After San Diego Mayor Bob Filner trumpeted the removal of redlight cameras in the city—which he’s called, among other things, an invasion of privacy—we reached out to him for comment on LPR. His office didn’t return calls or emails. But a written statement he provided for a congressional hearing in 2001 might shed light on his feelings. He was talking about redlight cameras, but maybe he’d say something similar about LPR.

“Will we be faced with the government acting as “Big Brother” continuously spying on law-abiding citizens?” Filner wrote. “I realize this might seem far-fetched to some, but we must remain vigilant against these types of abuse. … Technology changes faster than most of us can keep up with at this point. We must continue to try to use its benefits to better our society, but it must not be at the expense of fairness or freedom.”

Correction: The original version of this story reported that Supreme Court Justice Sotomayor’s opinion in the GPS tracking case was a dissenting opinion.


Original Article by CityBeat magazine San Diego.

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THE DEFENDANT HAS A RIGHT TO COUNSEL AT PROBATION VIOLATION PROCEEDINGS

Posted on 1/2/13 by Matthew S. Koken

The defendant wasn’t advised of his right to counsel at his probation violation proceeding, nor did he waive counsel.  You might think that this obviously requires reversal, under Vickers (8 C3 451) (1972).  The Court of Appeal agrees.  The DA argues that the defendant was advised, when he initially pled guilty.  The Court of Appeal says that a probation revocation hearing isn’t just a continuation of the initial proceeding.  It’s a new proceeding, and requires a new advisement regarding the right to counsel.

     People v. Bauer; 2012 DJ DAR 16986; DJ, 12/20/12; C/A 4th, Div.

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CAN'T USE PENAL CODE SECTION 1385 TO DISMISS A CASE THAT IS FINAL

Posted on 1/2/13 by Matthew S. Koken

The defendant served a 3-year prison sentence on his conviction; 12 years later he got the trial judge to dismiss his case under PC 1385.  This was to avoid immigration consequences.  The Court of Appeal says that a trial judge has no jurisdiction to use PC 1385 to dismiss a case where, as here, the conviction is final.

     People v. Kim; 2012 DJ DAR 16957; DJ, 12/20/12; C/A 6th

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SCOPE OF SEARCHES OF CARS WHERE A PASSENGER IS ON PAROLE

Posted on 1/2/13 by Matthew S. Koken

The police stopped the defendant’s car, then discovered that a passenger in the car was on parole.  They searched and found meth in a shoe in the backseat. 

The Cal. Supreme Court hold that an officer may search “those areas of the passenger compartment where the officer reasonably expects that the parolee could have stowed personal belongings or discarded items when aware of police activity.” “Additionally, the officer may search personal property located in those areas if the officer reasonably believes that the parolee owns those items or has the ability to exert control over them." 

Justice Liu takes apart the majority’s reasoning, providing authority from the US Supreme Court that you can still use to resist application of these rules in your trial court.

     People v. Schmitz; 2012 DJ DAR 16140; DJ, 12/4/12; Cal. Supreme

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ONE ACT VIOLATING MULTIPLE STATUTES: HOW MANY CONVICTIONS?

Posted on 1/2/13 by Matthew S. Koken

The victim here was a woman who was passed out drunk.  The cunning DA got convictions for both PC 288a(f), oral copulation of an unconscious person, and PC 288a(i), oral copulation of an intoxicated person, even though there was only one act of oral copulation. 

The Court of Appeal holds that a defendant can only get one conviction for a single act, even if that act violates more than one statute.

     People v. Gonzalez; 2012 DJ DAR 15912; DJ, 11/28/12; C/A 4th, Div. 1

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EXCELLENT SEARCH CASE ON REASONABLE GROUNDS TO DETAIN, AGAIN

Posted on 1/2/13 by Matthew S. Koken

The Court of Appeal previously found the detention in this case unlawful because it was based on the defendant’s age and race, for a sexual battery a week earlier.  The Attorney General now argues that the detention was lawful to investigate a claimed violation of the duty to pay a light rail fare. 

The Court of Appeal modifies the opinion, saying that this isn’t a case where an officer authorized to check for fare violations was randomly checking passengers.  Thus, the Attorney General has to justify the detention based on whether a reasonable suspicion existed that the defendant committed the sexual battery.

     People v. Walker; 2012 DJ DAR 15571; DJ, 11/16/12; C/A 6th

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THE CHANGE IN CUSTODY CREDITS DOES NOT VIOLATE EQUAL PROTECTION

Posted on 1/2/13 by Matthew S. Koken

The realignment law amended PC 4019 to provide for 100% credits (4 days credit for 4 days served) if  the crime was committed on or after October 1, 2011.  This defendant committed his crime in April of 2011; he was denied the 100% credits.  The Court of Appeal rejects the defendant’s equal protection challenge to this disparity.

     People v. Verba; 2012 DJ DAR 15123; DJ, 11/1/12; C/A 2nd, Div. 1

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VOLUNTARY AND INVOLUNTARY INTOXICATION AND UNCONSCIOUSNESS AS A DEFENSE

Posted on 1/2/13 by Matthew S. Koken

The defendant took prescription Ambien and then fell asleep.  He ended up driving and was arrested and convicted of DUI drugs.  His defense was that he was sleep driving.  This Court of Appeal articulates the rules governing involuntary intoxication (a complete defense) as opposed to voluntary intoxication (no defense). 

They uphold instructions telling the jury that if it found that the defendant knew or had reason to know that his use of Ambien could cause sleep driving, this was not involuntary intoxication.  If he didn’t know and couldn’t reasonably have known that his use of Ambien could cause sleep driving, this was involuntary intoxication and the resulting unconsciousness is a complete defense to driving under the influence.

    People v. Mathson; 2012 DJ DAR 15322; DJ, 11/8/12; C/A 3rd

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WHEN CAN RECKLESS DRIVING RESULT IN A CONVICTION FOR ASSAULT WITH A DEADLY WEAPON?

Posted on 1/2/13 by Matthew S. Koken

This Court of Appeal discusses the law of intent for assault, here assault with a deadly weapon.   They say that “the jury need only find that the defendant (1) willfully committed an act which by its nature would probably and directly result in the application of physical force against another; and (2) was aware of facts that would lead a reasonable person to realize this direct and probable consequence of his or her act.  The crime does not require any intent to cause an application of physical force, or a substantial certainty that an application of force will result." 

Here, the judge told the jury that the defendant couldn’t be convicted of Assault with a Deadly Weapon unless he actually knew that his reckless driving would cause injury to another.  This was error, but the Court of Appeal says that it actually inured to the defendant’s benefit, so it can’t justify a reversal. 

The Court of Appeal holds that a defendant who deliberately blows through a red light in a busy intersection and causes an accident resulting in injury is guilty of an Assault with a Deadly Weapon.  We’re now at the point where reckless conduct qualifies as an assault.

     People v. Aznavoleh; 2012 DJ DAR 15249; DJ, 11/7/12; C/A 2nd, Div. 6

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