Shows
Collect Call with LawstacheExpunged But Not Forgotten: How the Feds Use ‘Dismissed’ Charges Against You. Is PC 1203.4 worth it?In this video, attorney Anton Vialtsin breaks down the Ninth Circuit’s 2025 ruling in United States v. Robert Louis Carver — a major case on how California expungements under Penal Code §1203.4 are treated in federal court. Spoiler: they still count! If you thought your old convictions were wiped clean, this case might change your mind. Learn what this means for criminal history scores, sentencing, and anyone with a “dismissed” state record.📚 Full Opinion: https://cdn.ca9.uscourts.gov/datastore/opinions/2025/04/02/23-4105.pdf#FederalSentencing #Expungement #NinthCircuit #CriminalLaw #Lawstache #LegalNews #RobertCarverCase #USAvCarver #CaliforniaExpungement #SentencingGuidelines #FederalCourt #CriminalDefense #Section1203.4 #FederalAppeal #CriminalReco...2025-07-2310 min
Collect Call with LawstacheTop 3 of 2024: Police enter home without a warrant to arrest a felon, ruse checkpoint, & containersThank you all for an incredible year! I experienced the biggest surge in viewership, and it’s all because of your amazing support in sharing my videos. A special thank you to everyone who purchased my Do Not Arrest This Person t-shirts—you’ve made this journey even more rewarding! ~ Anton V. aka LAWSTACHE1. NOT a crime for citizen to refuse entry to her home to police who do not have an appropriate warranthttps://youtu.be/IazZorTNtA8Read the full case here: United States v. Prescott, 581 F.2d 1343 (9th Cir. 1978), https://casetext.com/ca...2025-01-0112 min
Collect Call with LawstachePolice enter a home WITHOUT consent for welfare check, find woman unharmed, ILLEGALLY search anyway.During the evening hours of January 5, 2019, officers were dispatched to Dane Arredondo's ("Dane") house on a neighbor's report of a woman screaming and crying inside the residence. When the officers arrived, they entered the home without consent to check on the woman. They found her downstairs, extremely intoxicated but apparently unharmed. While inside the house questioning Dane's brother, David Arredondo ("David"), about the disturbance, the officers discovered small glass medicine vials. Dane was charged with (1) health care fraud, in violation of 18 U.S.C. § 1347 ; (2) acquiring controlled substances by fraud, in violation of 21 U.S.C. § 843(a)(3) ; and (3) possession of co...2024-05-2211 min
Collect Call with LawstacheMay 13-17, 2024 Recap: Felon in Possession Unconstitutional, Right to Protest, and Cryptocurrency.Ninth Circuit Holds Felon-in-Possession Unconstitutional as to Non-Violent Offenders After BruenMay 9th 2024, in United States v. Duarte, No. 22-50048 (9th Cir. May 9, 2024), a split panel of the United States Court of Appeals for the Ninth Circuit held that under New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), § 922(g)(1) violates the Second Amendment as applied to Duarte, a non-violent offender who has served his time in prison and reentered society. The opinion, written by Judge Bea and joined by Judge VanDyke, begins:18 U.S.C. § 922(g)(1) makes it a crime for any perso...2024-05-1814 min
Collect Call with LawstacheWhy did police search the entire car, if I only let them look at my luggage? Limitations on consent!The Fourth Amendment proscribes unreasonable searches and seizures, but it permits a warrantless search to which the suspect consents. “When conducting a warrantless search of a vehicle based on consent, officers have no more authority to search than it appears was given by the consent.” Thus, it is “important to take account of any express or implied limitations or qualifications attending that consent which establish the permissible scope of the search in terms of such matters as time, duration, area, or intensity.” The Supreme Court's standard, under Florida v. Jimeno, is “that of ‘objective’ reasonableness—what would the typical reasonable perso...2024-05-1510 min
Collect Call with LawstachePolice took the man's phone and ANSWERED an incoming call IMPERSONATING the person being arrested.When Andres Lopez–Cruz (“Lopez”) gave a border patrol agent permission to “look in” or “search” the two cell phones he had with him, the agent did not ask him whether he would also consent to the agent's answering any incoming calls. Nonetheless, when one of the phones rang while the agent was conducting his search, he answered it, passing himself off as Lopez. By answering the call, the agent obtained information leading to Lopez's arrest and felony charges of conspiracy to transport illegal aliens under 8 U.S.C. § 1324(a)(1)(A)(ii) and (v)(I). Lopez moved to suppress the evidence ob...2024-05-0812 min
Collect Call with LawstacheATF Agents LIED to the resident that someone planted a bomb to gain CONSENT to search.Agent Brenneman told Mr. Harrison they were there because, "our office received an anonymous phone call there were drugs and bombs at this apartment," and he asked if Mr. Harrison "would mind if we look around the apartment." Id. at 19. The government concedes the ATF had no reason to believe there were bombs in the apartment, but Agent Brenneman testified he had planned to say this to Mr. Harrison "in an effort to gain his consent to search."It is true that not all deception or trickery will render a search invalid. For example, "an undercover agent...2024-05-0112 min
Collect Call with LawstacheWhen cops can't find house number 3171, they execute the warrant at 3170. Seems legit, right?Officer Harold Cheirs and his partner, Officer Robinson, tried to serve an arrest warrant on Phyllis Brown at 3171 Hendricks Avenue in Memphis, Tennessee. When they got to Hendricks Avenue, they could not find a house with a 3171 address. They eventually found two houses on opposite sides of the street with a 3170 address, at which point, you might say, they were getting warmer. One of the houses presumably was mislabeled, and the officers had several options at their fingertips to figure out which house was 3171 Hendricks and which was not. They could have determined which side of the street contained...2024-04-2411 min
Collect Call with LawstachePolice Helicopter Lit Up the Suspect's House Like a Christmas Tree. Forcing to exit = illegal arrestNora next contends that, even if the officers had probable cause to arrest him, they arrested him in violation of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). The Court held in Payton that the Fourth Amendment forbids arresting a suspect inside his home unless the police first obtain an arrest warrant or an exception to the warrant requirement applies. Id. at 590, 100 S.Ct. 1371. That rule is designed to protect “the privacy and the sanctity of the home,” id. at 588, 100 S.Ct. 1371, and stems from “the overriding respect for the sanctity of the home that has been e...2024-04-1715 min
Collect Call with LawstachePolice aimed his gun at her nose, told her to freeze, and detained: ARREST and NOT a "Terry Stop."Robertson:Robertson encounters a fundamental obstacle: standing. A defendant must show standing even if the government has not pressed the issue in the district court. United States v. Nadler,698 F.2d 995, 998 (9th Cir. 1983). Fourth Amendment rights are personal rights which may not be vicariously asserted. Rakas v. Illinois,439 U.S. 128, 133-34, 99 S.Ct. 421, 425-26, 58 L.Ed.2d 387 (1978). Even when officers make a blatantly pretextual arrest of one defendant that creates exigent circumstances justifying search of a second defendant's house, the second defendant may not challenge the legality of the arrest. United States v. Chase,692 F.2...2024-04-1013 min
Collect Call with LawstacheNO PROBABLE CAUSE to ARREST, just being close to the wrong people at the wrong time.The district court found inexplicable discrepancies between, on the one hand, the events as depicted in an audio recording and reports of agents nearly contemporaneous with the arrest and, on the other hand, later statements, reports and testimony of the agents. Accordingly, the district court discredited the later statements, reports and testimony, and confined its determination of probable cause to the sparse earlier evidence. The government does not challenge the adverse credibility finding on appeal, but contends that the remaining evidence was sufficient to establish probable cause.As the district judge noted, the relevant inquiry is what...2024-04-0310 min
Collect Call with LawstacheConclusory statements and general claims of expertise by police do not establish probable causeWarrantless searches by law enforcement officers “are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” Katz v. United States,389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Under the automobile exception to the Fourth Amendment's warrant requirement, “[t]he police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained.” California v. Acevedo,500 U.S. 565, 580, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991). An officer will have probable cause to search if “there is a fair probability that contraband or evidence of a crime will b...2024-03-2718 min
Collect Call with LawstacheNOT a crime for citizen to refuse entry to his home to police who do not have an appropriate warrantThe Supreme Court has held that police need no warrant to arrest a felony suspect on probable cause in a public place; United States v. Watson, 1976, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598; United States v. Santana, 1976, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300.In Coolidge the Court stated in dicta that "the notion that the warrantless entry of a man's house in order to arrest him on probable cause is per se legitimate is in fundamental conflict with the basic principle of Fourth Amendment law that searches and seizures inside a man's house without warrant are...2024-03-2014 min
Collect Call with LawstacheI was just a passenger in the car with secret compartments filled with pounds of drugs. Am I Guilty?This appeal stemmed from two individuals' cross-country car trip. Inside the car were secret compartments containing bundles of methamphetamine. But to the casual observer, the car looked like any other car.The driver apparently knew about the secret compartments of methamphetamine, but did the passenger? It's possible, but there was no evidence that• the driver had told the passenger about the methamphetamine or• the passenger had detected the secret compartments.Without such evidence, could a reasonable jury find the passenger guilty of crimes that required her knowledge of the drugs? We answer no.2024-03-1316 min
Collect Call with LawstacheTeenager detained by police was a de facto arrest! Without probable cause the arrest became illegal!The Supreme Court itself has recognized that distinguishing a Terry investigative stop from a de facto arrest "may in some instances create difficult line-drawing problems." United States v. Sharpe,470 U.S. 675, 685, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605 (1985). As noted by the Court in the seminal case of Terry v. Ohio,392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968), each case must be decided on its own facts. "Whether an arrest has occurred depends on all the surrounding circumstances, including the extent to which liberty of movement is curtailed and the type of force or authority employed." United States v. Robertson,833 F.2...2024-03-0613 min
Collect Call with LawstacheNo way of knowing that drugs found in a trash came from defendant's residence. Invalid Warrant.The Constitution's Fourth Amendment provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. A "state search warrant being challenged in a federal court must be judged by federal constitutional standards." United States v. McManus , 719 F.2d 1395, 1397 (6th Cir. 1983) (citing Elkins v. United States , 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960) ). "Probable cause is defined as ‘reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion.’ " United Stat...2024-02-2814 min
Collect Call with LawstachePolice had no reasonable suspicion to detain for 45 minutes on belief that power washer was stolenThe Fourth Amendment's protections extend to brief investigatory stops that fall short of a traditional arrest. Ramirez v. City of Buena Park, 560 F.3d 1012, 1020 (9th Cir. 2009) (citing United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002)). Courts must determine, based on the totality of the circumstances, whether a police-initiated stop is supported by the officer's reasonable suspicion. Id. Reasonable suspicion exists if "specific, articulable facts . . . together with objective and reasonable inferences" suggest that the persons detained by the police are engaged in criminal activity. United States v. Lopez-Soto, 205 F.3d 1101, 1105 (9th Cir. 2000) (citations omitted).An...2024-02-2115 min
Collect Call with LawstacheA seizure occurs when police prevents a person from leaving by keeping his driver's licenseIn sum, under the most recent cases a seizure occurs only if: (1) a reasonable person would feel, under all the circumstances, he could not disregard the police inquiries and go about his business; (2) the restraints imposed upon him result from the police conduct itself rather than the happenstance of where the encounter occurred; and (3) the person actually reacted in a manner consistent with being “seized.”While a police request for identification does not automatically give rise to a seizure, we have stated on previous occasions that “once the identification is handed over to police and they have had a...2024-02-0709 min
Collect Call with LawstachePolice block a person's car in a narrow parking lot. Was this a seizure under 4th Amendment?A Fourth Amendment seizure occurs "when physical force is used to restrain movement or when a person submits to an officer’s ‘show of authority.’ " United States v. Brodie , 742 F.3d 1058, 1061 (D.C. Cir. 2014) (quoting California v. Hodari D. , 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) ). A show of authority sufficient to constitute a seizure occurs where "the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business," Florida v. Bostick , 501 U.S. 429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (internal quotation marks omitted), or, put anothe...2024-01-3113 min
Collect Call with LawstachePolice holding on to your driver's license can constitute an illegal seizure under the 4th AmendmentFor purposes of the Fourth Amendment, a seizure occurs when a law enforcement officer, by means of physical force or show of authority, in some way restrains the liberty of a citizen. Florida v. Bostick, 501 U.S. 429, 434 (1991). A police officer has restrained the liberty of the citizen if, "taking into account all of the circumstances surrounding the encounter, the police conduct would `have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.'" Id. at 437 (quoting California v. Hodari D., 499 U.S. 621, 628 (1991)).When a law...2024-01-2412 min
Collect Call with LawstacheAwakened at 3am, handcuffed, led shoeless and dressed only in his underwear to the police station.Kaupp was arrested within the meaning of the Fourth Amendment before the detectives began to question him. A seizure of the person within the meaning of the Fourth and Fourteenth Amendments occurs when, "taking into account all of the circumstances surrounding the encounter, the police conduct would 'have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.''' Florida v. Bostick, 501 U. S. 429, 437. This test is derived from Justice Stewart's opinion in United States v. Mendenhall, 446 U. S. 544, 554, which includes, as examples of circumstances that might indicate...2024-01-1711 min
Collect Call with LawstachePolice block a one-lane driveway and not let the person leave the house. Illegal seizure of a person.On Sunday December 15, 1985 at 3:30 p.m., Deputy Sheriff Hedrick was on routine patrol in a rural neighborhood. Deputy Hedrick observed Kerr by a car parked near a barn located on a residential property. The car's trunk was open, exposing cardboard boxes. Because he knew of several recent residential burglaries in the area, Deputy Hedrick made a U-turn, returning to the residence's driveway. The driveway was a one lane dirt road approximately seventy to one hundred feet long. As Deputy Hedrick pulled into the driveway, Kerr was backing his car out. When he was approximately forty to fifty feet from...2024-01-1008 min
Collect Call with LawstachePolice "secured" the home & didn't let husband back inside after suspicious death of his wifeFollowing the unexpected death of Defendant Walt Shrum’s common law wife at the couple’s home around 5:30 a.m. on March 11, 2015, police officers in Kingman, Kansas "secured" the home, prohibiting Defendant access. Approximately three hours later and without access to his home, Defendant signed a consent to search form permitting an investigator from the Kingman County Sheriff’s Office (KCSO) to enter his home for the express purpose of retrieving his deceased wife’s medication in anticipation of an autopsy. While in the home, the investigator saw ammunition in plain view inside an open bedroom closet. After returning to headq...2024-01-0316 min
Collect Call with LawstacheLast Video and Top 5 cases of 2023! Happy New Year! Buy Do Not Arrest T-Shirt at LAWSTACHE.com/MERCH1. Know Your Rights: Can Cops Inquire About Probation/Parole in Routine Traffic Stops? Driver Pat-Downs https://youtu.be/98LFwrhsMHE2. Is it Legal for Police to Enter an Attached Garage Without a Warrant to Arrest a Drug Trafficker? We can conceive of no reason to distinguish a garage, where people spend time, work, and store their possessions, from a den or a kitchen, where people spend time, work, and store their possessions. Simply put, a person's garage is as much a part of his castle as the rest of his home. https://youtu.be/DIZJHIFj7m03...2023-12-2713 min
Collect Call with LawstacheDid police illegally seize a luggage bag when they removed it from cargo area of the bus?The Supreme Court held in United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984), that a Fourth Amendment "`seizure' of property occurs when there is some meaningful interference with an individual's possessory interests in that property." Id. at 113, 104 S.Ct. 1652. In Va Lerie, this court, en banc, applied Jacobsen in the context presented by this case-property entrusted to a third-party common carrier. Va Lerie, 424 F.3d at 701-03, 708 n. 9. Va Lerie presents similar facts, and, thus, this case turns on whether Va Lerie, in which the en banc court concluded that a seizure did not occur, id...2023-12-1311 min
Collect Call with LawstacheCan police search and take garbage left for collection outside your home WITHOUT A WARRANT?Local police suspected Billy Greenwood was dealing drugs from his residence. Because the police did not have enough evidence for a warrant to search his home, they searched the garbage bags Greenwood had left at the curb for pickup. The police uncovered evidence of drug use, which was then used to obtain a warrant to search the house. That search turned up illegal substances, and Greenwood was arrested on felony charges.Voting 6 to 2, the Court held that garbage placed at the curbside is unprotected by the Fourth Amendment. The Court argued that there was no reasonable expectation...2023-11-2908 min
Collect Call with LawstachePolice inserted a key into car's door to see if the car belonged to Dixon and then searched it.The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. But individuals "subject to a warrantless, suspicionless search condition have ‘severely diminished expectations of privacy by virtue of their status alone.’ " United States v. Cervantes , 859 F.3d 1175, 1182 (9th Cir. 2017) (quoting Samson v. California , 547 U.S. 843, 852, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006) ). Here, a condition of Dixon's supervised release mandated that he "submit to a search of his person, residence, office, vehicle, or any property under his control ... at any time with...2023-11-2216 min
Collect Call with LawstacheCan police remove a car cover off a vehicle without a warrant to inspect for a VIN number?The Government obtained the civil forfeiture of a 1986 Dodge Ram Charger and $277,000 in U.S. currency found in this vehicle, pursuant to 21 U.S.C. § 881 (1988). Claimant Montes appeals on the ground that evidence discovered in the search of the Dodge Ram Charger should have been suppressed because it was obtained in violation of his Fourth Amendment rights. He contends that the police conduct in searching the leased Dodge Ram Charger, which was covered and parked in the backyard of a home, in order to discover the vehicle identification number ("VIN"), was a violation of his Fourth Amendment rights. The $277,000 i...2023-11-1510 min
Collect Call with LawstacheCan police search a bag you left behind in someone's apartment? Jail and prison calls are recorded!"The Fourth Amendment is a vital safeguard of the right of the citizen to be free from unreasonable governmental intrusions into any area in which he has a reasonable expectation of privacy." Winston v. Lee, 470 U.S. 753, 767, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985) (citations omitted). As the parties agree, Monghur, at least initially, held a reasonable expectation of privacy in the closed container that he stored in the closet in Wilson's apartment. See United States v. Davis, 332 F.3d 1163, 1167 (9th Cir. 2003) ("`A person has an expectation of privacy in his or her private, closed containers' and `does not forfeit that...2023-11-0811 min
Collect Call with LawstacheCan CBP Search A Passenger Cabin Aboard a Cruise Ship Without Suspicion of Criminal Activity?The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. Whether a search is reasonable will depend upon its nature and all of the circumstances surrounding it, United States v. Montoya de Hernandez, 473 U.S. 531, 537, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985), but, as a general matter, warrantless searches are unreasonable. See Cody v. Dombrowski, 413 U.S. 433, 439, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973).Searches conducted at the nation's borders, however, represent a well-established and long-standing exception to the warrant requirement...2023-11-0112 min
Collect Call with LawstacheCan Police Search a Tent Illegally Placed on Bureau of Land Management (BLM) Land Without a Warrant?Sandoval's expectation of privacy was also objectively reasonable. In LaDuke v. Nelson, 762 F.2d 1318, 1326 n. 11, 1332 n. 19 (9th Cir. 1985), we held that a person can have an objectively reasonable expectation of privacy in a tent on private property. In Gooch, 6 F.3d at 677, we extended that holding to find a reasonable expectation of privacy in a tent on a public campground. Here, the tent was located on BLM land, not on a public campground, and it is unclear whether Sandoval had permission to be there. However, we do not believe the reasonableness of Sandoval's expectation of privacy turns on whether...2023-10-2508 min
Collect Call with LawstacheKnow Your Rights: Can Police Search a Tent Located on a Public Campground? Can They Arrest Occupant?Gooch must have had both a subjective and an objectively reasonable expectation of privacy in the tent. Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967). SEARCH: We have already established that a person can have an objectively reasonable expectation of privacy in a tent on private property. LaDuke v. Nelson,762 F.2d 1318, 1326 n. 11, 1332 n. 19 (9th Cir. 1985). Accord LaDuke v. Castillo,455 F. Supp. 209 (E.D.Wash. 1978). This reasonable expectation is not destroyed when a person's tent is pitched instead on a public campground where one is legally permitted to camp. The Fourth Amendment "...2023-10-1811 min
Collect Call with LawstacheIs it Legal for Police to Enter an Attached Garage Without a Warrant to Arrest a Drug Trafficker?Nowhere is the protective force of the fourth amendment more powerful than it is when the sanctity of the home is involved. The sanctity of a person's home, perhaps our last real retreat in this technological age, lies at the very core of the rights which animate the amendment. Therefore, we have been adamant in our demand that absent exigent circumstances a warrant will be required before a person's home is invaded by the authorities.We can conceive of no reason to distinguish a garage, where people spend time, work, and store their possessions, from a den...2023-10-1111 min
Collect Call with LawstacheAirport Worker Searches Luggage in Hopes of Getting a Monetary $$$ Reward From the DEA.The United States appealed from orders of the United States District Court for the Western District of Washington, Donald S. Voorhees, J., granting defendants' suppression motions. The Court of Appeals, J. Blaine Anderson, Circuit Judge, held that action of airline employee in opening a “Speed Pak” was that of a government agent where only reason he opened case was his suspicion that it contained illegal drugs, employee, who at one time had been a listed informant, expected a probable reward from Drug Enforcement Administration, DEA agent testified that such expectation was reasonable and that although agency had no prior know...2023-10-0415 min
Collect Call with LawstacheMessy Vehicle Interior Doesn't Justify Extended Police Traffic Stop and K9 Search.Mr. Luis Alfonso Leon was stopped by law enforcement after he was observed illegally driving in a passing lane. During the traffic stop, the officer began to suspect Mr. Leon was trafficking drugs. A search of his vehicle uncovered seventy-six pounds of methamphetamine, and Mr. Leon was charged with one count of possessing methamphetamine with intent to distribute. Following a failed motion to suppress, he pled guilty and was sentenced to seventy months’ imprisonment. On appeal, Mr. Leon challenges the denial of his suppression motion, arguing that the officer lacked reasonable suspicion to extend the stop and investigate the su...2023-09-2716 min
Collect Call with LawstacheCan Police Prolong a Traffic Stop to Pat Down and Frisk a Driver Because He Wears a Fanny Pack?The panel affirmed the district court’s denial of a motion to suppress evidence discovered following a traffic stop, and remanded for the district court to conform the written judgment to its oral pronouncement of sentence, in a case in which Xzavione Taylor entered a conditional guilty plea to being a felon in possession of a firearm. The panel held that the officers did not unreasonably prolong the traffic stop. The panel wrote: • An officer’s asking Taylor two questions about weapons early in the counter—once before the officer learned that Taylor was on federal supervision...2023-09-2012 min
Collect Call with LawstacheExtended Roadside Questioning: Don't Let Police Use "Just One More Thing" Line of Questioning.Most drivers do not know that they have a right to deny consent,and troopers are more than happy to exploit their lack of knowledge of their legal rights. Even though the law requires that consent be knowing, intelligent and voluntary, troopers don’t generally let such niceties stand in their way. For drivers who are not initially forthcoming with consent, troopers are trained to conclude the traffic stop, somehow signal that the driver is free to go, then immediately re-engage the driver in friendly, casual conversation to keep the driver at the scene and enable the trooper to de...2023-09-1307 min
Collect Call with LawstacheOutrageous: Wearing a Fanny Pack Over Your Shoulder Could Land You in a Police Search!?!At approximately 1:00 a.m. on October 14, 2020, officers from the New York City Police Department (NYPD) encountered Defendant Michael Hagood near a housing complex managed by the New York City Housing Authority (NYCHA) in the Bronx. Mr. Hagood was notably wearing a fanny pack slung across his chest while standing beside a double-parked vehicle. The officers observed that Mr. Hagood appeared visibly anxious upon spotting them, with one officer noticing an unusual protrusion in his fanny pack that resembled the shape of a handgun.Prompted by these observations, the officers decided to stop and frisk Mr. Hagood, leading...2023-09-0613 min
Collect Call with LawstacheCan evidence obtained during a search of my girlfriend's place without a warrant be excluded?In Steagald v. United States, 451 U.S. 204 (1981), the Supreme Court held that, in the absence of valid consent or exigent circumstances, warrantless searches are per se unreasonable and violate the Fourth Amendment. Id. at 211, 101 S.Ct. 1642. Here, the only warrant the police possessed at the time they entered Cruz's home was an old warrant for Medina's arrest for driving a car with a suspended license. In Steagald, the Supreme Court stated that an arrest warrant for a non-resident was insufficient to authorize a search of a third party's home.Id. at 216, 101 S.Ct. 1642. Operating under the premise that the p...2023-08-3017 min
Collect Call with LawstachePolice were able to search the passenger compartment of the vehicle, but could NOT search the trunk!"[W]hen an officer has probable cause to believe evidence of a crime will be found specifically in the passenger compartment of a vehicle, and no other subsequent discovery or information provides further probable cause to believe the evidence will be found in the trunk, an officer’s search of the trunk exceeds the permissible scope of a warrantless search under the automobile exception."The Fourth Amendment’s guarantee of the right to be free from unreasonable searches and seizures is fundamental to our sense of liberty and justice. (U.S. Const., 4th Amend.) The general rule is tha...2023-08-2313 min
Collect Call with LawstacheWhat's going on with the number 5000?· Five thousand is the largest isogrammic numeral in the English language.· It has been estimated that there were around forty million people worldwide by 5000 BC· CULTURE 5000 – THE WORLDS LONGEST PAINTINGo 201.5 meters longo And it has a bunch of fish drawno 5,339 to be precise.· Things that weight 5000 poundso Average White Rhinoso Whale’s tongueo Heaviest Elephant Sealo Mercedes Maybach S560§ $195000 base version§ zero to 60 mph in 4.7 seconds· Lincoln is on the {$5} bill, Grant is on the...2023-08-1610 min
Collect Call with LawstacheDid police abandon the 4th Amendment, when searching abandoned vehicle at the bank parking lot?Alexander Hillel Treisman appeals the district court's denial of his motion to suppress evidence that police discovered while searching his van without a warrant. But warrantless searches of vehicles carried out as part of law enforcement's community caretaking functions do not violate the Fourth Amendment if they are reasonable under the circumstances. And because the record here supports the district court's conclusion that the officers acted reasonably in searching the van under their community caretaking functions, we affirm.The Supreme Court first mentioned this concept in Cady v. Dombrowski, 413 U.S. 433 (1973). There, the Court explained,...2023-08-0914 min
Collect Call with LawstacheWhat began as a lawful traffic stop violated 4th Amendment's shield against unreasonable seizuresWhat began as a lawful traffic stop violated the Fourth Amendment’s shield against unreasonable seizures when the officers detoured from the traffic stop’s mission by conducting the dog sniff and inquiring into matters unrelated to the traffic violation and these detours prolonged the stop “‘beyond the time reasonably required to complete the mission’ of issuing a ticket for the [traffic] violation. [Citation.]” (Rodriguez, supra, 575 U.S. at pp. 350–351.)___The United States Supreme Court has identified tasks that are part of an officer’s mission during a stop for a traffic violation: “Beyond determining whether to issue a t...2023-08-0220 min
Collect Call with LawstachePolice promises NOT to arrest, "settled notions of fundamental fairness" may require a DISMISSAL.On September 24, 2019, shortly after witnessing Manley Johnson leave Appellant Maurice Bailey's home, Kannapolis, North Carolina police officer Jeremy Page discovered 0.1 grams of cocaine base during a search of Johnson's vehicle. Officer Page then confronted Bailey about the cocaine sale and instructed him to turn over any drugs still in his possession. In return, Officer Page assured Bailey that he was “going to take it and ․ leave,” and everything would still be “squared away.” J.A. 112. As he later testified, Officer Page expected that Bailey would assist him in future investigations. Prompted by Officer Page's offer, Bailey handed over 0.7 grams of cocaine...2023-07-2610 min
Collect Call with LawstacheGovernment’s egregious failure to locate and prosecute for 8 years justified the case being dropped.In February 1980, petitioner Doggett was indicted on federal drug charges, but he left the country before the Drug Enforcement Agency could secure his arrest. The DEA knew that he was later imprisoned in Panama, but after requesting that he be expelled back to the United States, never followed up on his status. Once the DEA discovered that he had left Panama for Colombia, it made no further attempt to locate him. Thus, it was unaware that he reentered this country in 1982 and subsequently married, earned a college degree, found steady employment, lived openly under his own name, and stayed...2023-07-2011 min
Collect Call with LawstacheCan CBP officers manually search your phone at the BORDER without any individualized suspicion?The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const. amend. IV. “[W]arrantless searches are typically unreasonable where a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing.” Carpenter v. United States, 138 S. Ct. 2206, 2221 (2018) (quotation omitted).The border search exception is a “longstanding, historically recognized exception to the Fourth Amendment’s general principle that a warrant be obtained” for a search. Ramsey, 431 U.S. at 621. “[T]he border-search exception allows officers to conduct ‘routine inspections and searches of individuals or conveyance...2023-07-1209 min
Collect Call with LawstacheForgetting the 4th Amendment, agents point guns at the home and order everyone outside. Curtilage.Border Patrol agents watched a man climb over the Mexico-United States border fence and followed him as he took a taxi to Heriberto Perea-Rey's home. An agent watched the suspected undocumented alien walk through the gated entrance to the home and knock on the front door. The agent followed him through the front yard, around the side of the house and into the carport. He found the suspect there, standing with Perea-Rey in front of a side door entrance to the home, and detained both men until other agents arrived. Perea-Rey refused to allow the agents to enter his...2023-06-2811 min
Collect Call with LawstacheCan police enter the DRIVER's home without a warrant if he is suspected of a DUI & leaves the scene?The issue before this court is whether Captain Walsh was justified in making entry into the Defendant's residence without first obtaining a search warrant. The United States Supreme Court has held that a warrant is not required to enter a person's home when "the exigencies of the situation make the needs of law enforcement so compelling that the warrantless [entry] is objectively reasonable under the Fourth Amendment." Mincey v. Arizona, 437 U.S. 385, 393-94 (1978) (internal quotation marks omitted). "One exigency obviating the requirement of a warrant is the need to assist persons who are seriously injured or threatened with such...2023-06-2112 min
Collect Call with LawstacheCan police continue to use a GPS tracker knowing that the owner of the vehicle no longer drives it?“To invoke the Fourth Amendment protections, a person must show that [they] had a legitimate expectation of privacy.” U.S. v. Shryock, 342 F.3d 948, 978 (9th Cir. 2003) (citing Smith v. Maryland, 442 U.S. 735, 740 (1979)). An expectation of privacy is legitimate if it is one that society accepts as objectively reasonable. See Minnesota v. Olson, 495 U.S. 91, 95-96 (1990); California v. Greenwood, 486 U.S. 35, 3940 (1988).“The Fourth Amendment shields not only actual owners, but also anyone with sufficient possessory rights over the property searched.” Lyall v. City of Los Angeles, 807 F.3d 1178, 1186 (9th Cir. 2015). “[A] defendant who lacks an ownership interest may still have...2023-06-1415 min
Collect Call with LawstacheCan police ask if you are on probation or parole during a routine traffic stop? Pat down of driver.On August 26, 2020, at approximately 2:32 AM, Odom drove past two California Highway Patrol officers at 92 miles per hour, in violation of California law. ECF No. 1 at 5. The officers followed the vehicle and instructed Odom to stop, roll down the windows, and turn off the car. He complied immediately. Dashcam 1:04-1:12. After the car stopped, Officer Guajardo approached the passenger-side window and Officer Lee approached the driver's side. Id. at 1:32-1:42. Officer Guajardo told Odom that he was speeding and asked for his license, insurance, and registration. ECF No. 1 at 5. Odom explained that he did not have any of those items...2023-06-0712 min
Collect Call with LawstacheCan police claim "community caretaking" functions during an illegal entry & search of a hotel room?Under the Fourth Amendment, defendant had a legitimate expectation of *320 privacy in his rented hotel room. See Stoner v. California, 376 U.S. 483, 490, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964); United States v. Kitchens, 114 F.3d 29, 31 (4th Cir. 1997). Additionally, warrantless searches are presumptively unreasonable unless the search falls within a valid exception. See Hupp v. Cook, 931 F.3d 307, 326 (4th Cir. 2019) (citing Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)).The government cites the so-called “community caretaker” exception as justification for the officers dispensing with the warrant requirement in entering the hotel room. Community caretaking functions include established proc...2023-05-3112 min
Collect Call with LawstachePART 4: "GPS Tracking Initiated at the Border" | US v. Ignjatov, GPS installed without a warrantThe Court concluded that “[o]nce the entity at issue is beyond the border, the concerns animating the border search doctrine, namely the integrity of the border, diminish, and the robust Fourth Amendment requirements adhere.” This was because the installation of a GPS device “implicates a search away from the border, once the target has gained entry into the country. The placement of a GPS device at the border necessarily implicates a search away from the border, once the target has gained entry into the country. As Justice ALito noted in his concurring opinion in Jones, the OCurt d...2023-05-2415 min
Collect Call with LawstachePART 3: "GPS Tracking Initiated at the Border" | 4th Amendment and the Border Search DoctrineThe Border Search Doctrine is one of the longstanding warrantless search exceptions to the 4th Amendment.Most searches at the border do not require a warrant or probable cause because of Congress’s authority to regulate commerce and maintain sovereignty.• Border Search can be classified as “routine” or “non-routine”. o Pat-Down or X-Ray versus Body Cavity Search. o Non-Routine require reasonable suspicion• Distiction does not apply in the context of vehicles. o United States v. Flores-Montano - suspicionless disassembly of a fuel tank at the borderExtended Border Search (Checkpoints)...2023-05-1709 min
Collect Call with LawstachePART 2: "GPS Tracking Initiated at the Border" | 4th Amendment and Technology #gpsThe Fourth Amendment protects individuals from unreasonable government searches and seizures.•Seizures can be split into two categories.oA seizure of property is “some meaningful interference with an individual’s possessory interests in that property.”oA seizure of an individual occurs when an individual reasonably believes that he is not at liberty to leave a government official’s presence, given all of the circumstances surrounding the incident.•Warrantless searches under the Fourth Amendment are typically per se unreasonable.oThe Supreme Court decided in Katz v. United States that the attachment of an eavesdroppin...2023-05-1010 min
Collect Call with LawstachePART 1: "GPS Tracking Initiated at the Border" and Continuous Surveillance Within the US. #gpsThe Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” This protection is not limited to only a physical intrusion on property. It also protects a person’s “reasonable expectation of privacy." Warrants are therefore necessary in almost all instances for a valid search to occur, unless an exception applies. The Border Search Doctrine, however, is one of the few exceptions to this general rule.The Border Search Doctrine predates the Fourth Amendment and derives its powers from Congress’s inherent authority to regulate c...2023-05-0307 min
Collect Call with LawstacheWhy did police think they can seize a van when it's clear that the warrant didn't authorize it?Warrant. Defendant argues that the affidavit was insufficient because there is no information on the reliability of either confidential informant provided therein. Although the Court acknowledges that the affidavit lacks evidence related to the reliability of the two confidential informants, the information provided by the informants was sufficiently corroborated. First, each informant corroborates the other. See Schaefer, 87 F.3d at 566 For example, both informants stated that they had observed the same types of firearms in the Defendant's residence and said that Defendant was stockpiling firearms to "prepare for the end of the world." Both informants also similarly d...2023-04-2618 min
Collect Call with LawstacheCan an intoxicated (drunk) person waive his Miranda Rights? Spontaneous statement by a suspect.But intoxication alone does not preclude a valid waiver. See United States v. Figueroa-Serrano, 971 F.3d 806, 815 (8th Cir. 2020) (finding a valid Miranda waiver when the suspect, after using marijuana, did not appear affected by intoxication and told officers he understood his rights). Instead, the test is whether, considering the totality of the circumstances, the mental impairment “caused the defendant's will to be overborne.” United States v. Jones, 842 F.3d 1077, 1083 (8th Cir. 2016).Read full case here: United States v. Harris, --- F.4th ---- (2023), https://ecf.ca8.uscourts.gov/opndir/23/04/221210P.pdfAnton Vialtsin, Esq.LAWS...2023-04-1909 min
Collect Call with LawstacheCan medical professionals share results of diagnostic tests (drug tests) with law enforcement?Held: A state hospital's performance of a diagnostic test to obtain evidence of a patient's criminal conduct for law enforcement purposes is an unreasonable search if the patient has not consented to the procedure. The interest in using the threat of criminal sanctions to deter pregnant women from using cocaine cannot justify a departure from the general rule that an official nonconsensual search is unconstitutional if not authorized by a valid warrant. Ferguson v. City of Charleston, 532 U.S. 67, 67–68, 121 S. Ct. 1281, 1283, 149 L. Ed. 2d 205 (2001)While state hospital employees, like other citizens, may have a duty to provide th...2023-04-1210 min
Collect Call with LawstacheCan police search a car if there is probable cause to arrest passenger or he could not provide ID?Passenger and vehicle searches have played a prominent role in Fourth Amendment jurisprudence. The Supreme Court has consistently held that probable cause is necessary to conduct a warrantless search of a vehicle. See Carroll v. United States, 267 U.S. 132, 160–62, 45 S.Ct. 280, 69 L.Ed. 543 (1925); California v. Carney, 471 U.S. 386, 390, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985). In recent years, the Court has clarified that “[i]f there is probable cause to believe a vehicle contains evidence of criminal activity,” the search may extend to any area where evidence might be found. See Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 1721, 173 L.Ed.2d 4...2023-04-0511 min
Collect Call with LawstacheCan police search a property even if the owner is NOT implicated in the crime? You'd be surprised.One might think that someone who didn't commit any crimes or even suspected of committing a crime would be afforded some protection under the Fourth Amendment, one that protects you against unreasonable searches and seizures. That is not so. “In situations where the State does not seek to seize ‘persons’ but only those ‘things’ which there is probable cause to believe are located on the place to be searched, there is no apparent basis in the language of the [Fourth] Amendment for also imposing the requirements for a valid arrest—probable cause to believe that the third party is implicated i...2023-03-2911 min
Collect Call with LawstachePolice search the entire vehicle because of a legal possession of less than 28.5g of weed.The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures ....” U.S. Const. amend. IV. Searches and seizures conducted without a warrant are “per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Due to the diminished expectation of privacy in one's vehicle as compared to on one's person, the “automobile exception” allows an officer to search a vehicle without a warrant if the officer has probable cause...2023-03-2209 min
Collect Call with LawstachePolice unlawfully detained a bystander who had no apparent connection to the crime or the 911 call.Responding to a report of suspicious activity in the area, a police officer unlawfully detained a bystander who had no apparent connection to the report. The officer ran a records search and learned that the bystander, Duvanh Anthony McWilliams, was on parole and subject to warrantless, suspicionless parole searches. The officer proceeded to search McWilliams and his vehicle, where the officer found an unloaded gun, ammunition, drugs, and drug paraphernalia.As a general rule, evidence seized as a result of an unlawful search or seizure is inadmissible against the defendant in a subsequent prosecution. But the law...2023-03-1509 min
Collect Call with LawstacheCan police search a car at the scene and 2nd time at impound lot? #4thamendment #car #illegalsearchOfficers stopped defendant and appellant Vernon Evans after they observed him commit traffic violations. When Evans refused to comply with a command to exit his automobile, officers broke the vehicle's window, "Tased" and pepper sprayed him, forcibly removed him from the car, and arrested him for interfering with a police investigation. A warrantless search of the vehicle at the scene revealed 11 empty sandwich baggies and $65 in cash, but no contraband. A second warrantless search of the car at an impound yard revealed cocaine hidden in an air vent. After the trial court denied Evans's motion to suppress...2023-03-0813 min
Collect Call with LawstacheWhy did the police remove the defendant's Buick key from his belt loop during a stop-and-frisk?The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. A “search” involves governmental infringement on “an expectation of privacy that society is prepared to consider reasonable,” while a “seizure” of property involves “some meaningful interference [by the government] with an individual's possessory interests in that property.” United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). Fourth Amendment rights are personal rights that “may not be vicariously asserted.” Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). To est...2023-03-0110 min
Collect Call with LawstachePolice search a semi-truck hauling a ford explorer. 40 pounds of meth found. Fourth Amendment."An individual asserting Fourth Amendment rights must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable." United States v. Russell , 847 F.3d 616, 618 (8th Cir. 2017) (citation omitted). "The defendant moving to suppress bears the burden of proving he had a legitimate expectation of privacy that was violated by the challenged search." Id. (citation omitted).The main issue in this appeal is whether Sierra made an initial showing of a reasonable expectation of privacy in the Ford. He would have a privacy interest if he owned it, since "[o...2023-02-2207 min
Collect Call with LawstachePolice cannot enter your porch or side garden and trawl for evidence with impunity. Curtilage.In April 2021 the Springfield, Illinois police saw a Snapchat post of Jeremy Banks barbequing on his front porch with a gun sitting on the grill's side shelf. Because Banks was a convicted felon, the officers needed nothing more to request a warrant to arrest him for unlawful gun possession. But they skipped this step and instead proceeded to Banks's home, walked onto his porch, and, after a tussle, arrested him in his family room. The Fourth Amendment did not permit the shortcut, as the Supreme Court has held in no uncertain terms that a front porch—part of a ho...2023-02-1506 min
Collect Call with LawstacheCan the government track your eScooter (Bird/Lime) with real-time location data without a warrant?SynopsisBackground: Lessee of motorized electric scooters brought action challenging constitutionality of city program requiring companies that leased such scooters to obtain permits from the city department of transportation, which, among other conditions, mandated that companies provide real-time location data directly to city for all leased scooters. The United States District Court for the Central District of California, Dolly M. Gee, J., 2021 WL 1220690, dismissed the action. Lessee appealed.Holdings: The Court of Appeals, Hawkins, Senior Circuit Judge, held that:1 city's collection of real-time location data on scooters...2023-02-0810 min
Collect Call with LawstacheCan police search a camper truck without a warrant under a pretense of helping wife get her propertyA search typically requires a warrant based on probable cause. SeeUnited States v. Dalton , 918 F.3d 1117, 1127 (10th Cir. 2019). "Searches conducted without a warrant are per se unreasonable under the Fourth Amendment—subject only to a few ‘specifically established and well-delineated exceptions.’ " Roska ex rel. Roska v. Peterson , 328 F.3d 1230, 1248 (10th Cir. 2003) (quoting Katz v. United States , 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ). Although "the defendant bears the burden of proving whether and when the Fourth Amendment was implicated," Hernandez , 847 F.3d at 1263 (quotations omitted), "[t]he government then bears the burden of proving that its warrantless actions were justif...2023-02-0108 min
Collect Call with LawstacheDoes mere presence of LAWFUL amount of marijuana on passenger justify probable cause to search car?In People v. Lee (2019) 40 Cal.App.5th 853 [253 Cal.Rptr.3d 512], the court held a defendant's possession of a small amount of marijuana could not justify a probable cause search. (Id. at p. 856.) After initiating a traffic stop, officers discovered a small amount of marijuana on the defendant during a patsearch. (Id. at p. 857.) Officers then searched the vehicle and uncovered cocaine and a firearm. (Id. at pp. 858-859.) Finding the lawful amount of marijuana seized 803*803 from defendant's person could not establish probable cause to search the vehicle, the trial court granted the defendant's motion to suppress. (Id. at p. 860...2023-01-2508 min
Collect Call with LawstacheWas defendant "in custody" for MIRANDA purposes following discovery of a firearm in a trash can?The familiar Mirandawarnings are required for the “in-custody interrogation of persons suspected or accused of crime.” Miranda v. Arizona, 384 U.S. 436, 467 (1966) (emphasis added). And without those Miranda warnings, any statements made during a custodial interrogation are inadmissible in the prosecution’s case in chief. United States v. Leshuk, 65 F.3d 1105, 1108 (4th Cir. 1995). But so long as a defendant is not “in custody,”then statements made during an interrogation remain admissible, even if the defendant were not given Miranda warnings. The district court found that Leggette was not “in custody” when he made incriminating statements at the park. So Miranda warnings were not required and the...2023-01-1810 min
Collect Call with Lawstache[RESPONSE] Don't you have a right to a face-to-face confrontation with your accuser in court?Response to "Error to allow juror to participate in criminal trial remotely by Zoom?" at https://youtu.be/4YrIOHuMZMMThe Confrontation Clause of the Sixth Amendment to the United States Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him." The right only applies to criminal prosecutions, not civil cases or other proceedings. Generally, the right is to have a face-to-face confrontation with witnesses who are offering testimonial evidence against the accused in the form of cross-examination during a trial. The Fourteenth Amendment makes the ri...2023-01-1302 min
Collect Call with LawstacheError to allow juror to participate in criminal trial remotely by Zoom?The Court of Appeals, Lasnik, District Judge, sitting by designation, held that: district court's alleged error in permitting juror to participate in criminal trial remotely did not fall within limited class of structural errors that could not be waived, and defendant's waiver of his right to insist that all jurors be present in courtroom during his trial was knowing, voluntary, and intelligent.The panel affirmed Edward Knight’s robbery convictions in a case in which a juror participated remotely in the first two days of trial. Knight asserted that permitting a juror to participate remo...2023-01-1110 min
Collect Call with LawstacheTop 5 videos and criminal defense cases from LAWSTACHE in 2022. Happy New Year!The following are the top 5 videos from LAWSTACHE in 2022 based on the number of views. 0:00 Introduction to top videos and cases1:50 1. Is carrying a concealed knife or box cutter legal in California? Does the length of blade matter? 1:50 https://youtu.be/fzbfePRmpyQA] morally blameless person carrying a concealed box cutter for innocent purposes, such as a grocery store worker, carpenter or car mechanic, cannot be convicted of violating Penal Code section 21310. Defendant was convicted of violating section 21310 because he inflicted a deep, bloody wound on the victim and yelled at the victim a...2023-01-0413 min
Collect Call with LawstacheWas a warrantless search of defendant's cellular telephone by probation officers reasonable?Appellant-Defendant Paulo Lara appeals his conviction for being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g (1). At the time of his arrest, Lara was subject to a term of probation that required him to submit his "person and property, including any residence, premises, container or vehicle" to search and seizure "without a warrant, probable cause, or reasonable suspicion." Lara contends that his Fourth Amendment right to be free from unreasonable searches and seizures was violated when probation officers conducted two warrantless, suspicionless searches of his cell phone. He contends that the e...2022-12-2813 min
Collect Call with LawstacheCan police search a backpack left at the hotel room? Reasonable Expectation of Privacy?Holding that "because the hotel did not actually evict [the defendant], he maintained a reasonable expectation of privacy in his hotel room," and explaining that "[b]eing arrested is different from being evicted, and being arrested does not automatically destroy person's reasonable expectation of privacy in his hotel room."Full case here: U.S. v. Young 573 F.3d 711 (9th Cir. 2009), https://casetext.com/case/us-v-young-313Anton Vialtsin, Esq.LAWSTACHE™ LAW FIRM | Criminal Defense and Business Lawhttps://lawstache.com(619) 357-6677Do you want to buy our Lawstache merchandise? Maybe a...2022-12-2113 min
Collect Call with Lawstache[RESPONSE] Nerber Video, Private Search Doctrine, Video/Audio Surveillance by Police or Citizens.This is a response video to a comment left by JO BR on "Can FBI record citizens in a hotel room with a secret hidden camera without a warrant? Nerber (2000)" video found at https://youtu.be/txO6CPt7JKk [Published on 12/14/2022]The Fourth Amendment protects you against government intrusions and does not restrict private citizens. Under the private search doctrine, when a private actor finds evidence of criminal conduct after searching someone without a warrant, the government can use the evidence in criminal proceedings. (United States v. Jacobsen, 466 U.S. 109 (1984)). As long as the private actor is...2022-12-1407 min
Collect Call with LawstacheCan FBI record citizens in a hotel room with a secret hidden camera without a warrant? Nerber (2000)Evidence derived from video surveillance of a hotel room was suppressed by the United States District Court for the Western District of Washington, Thomas S. Zilly, J., and the United States appealed. The Court of Appeals, James R. Browning, Circuit Judge, held that: (1) the Fourth Amendment protects citizens from secret video surveillance in another person's hotel room without a warrant or the consent of a participant in the monitored activity, and (2) thus, though defendants were invited to a hotel room, rented by government agents, by informants who had consented to video surveillance, once the informants left the room, defendants...2022-12-1414 min
Collect Call with LawstacheUNCONSTITUTIONAL: 922(n), which makes illegal receipt of a firearm by a person under indictment.The Second Amendment is not a “second class right.” No longer can courts balance away a constitutional right. After Bruen, the Government must prove that laws regulating conduct covered by the Second Amendment’s plain text align with this Nation’s historical tradition. The Government does not meet that burden. Although not exhaustive, the Court’s historical survey finds little evidence that § 922(n)—which prohibits those under felony indictment from obtaining a firearm—aligns with this Nation’s historical tradition. As a result, this Court holds that § 922(n) is unconstitutionalFull case here: UNITED STATES OF AMERICA v. JOSE GOMEZ QUIR...2022-12-0710 min
Collect Call with LawstacheLAWSTACHE LAW FIRM | San Diego Based Criminal Defense and Business LawEvery week, host Anton Vialtsin (California attorney and YouTuber) discusses legal cases from the Supreme Court, 9th Circuit, and California State Courts. We focus on the First, Second, Fourth, Fifth, and Eighth Amendments. We make predictions and scrutinize the law. Anton Vialtsin handled hundreds of federal and state criminal cases. He has an in-depth knowledge of the Federal Sentencing Guidelines, the Federal Criminal Codes and Rules, mandatory-minimum sentences, the death penalty, and too many state laws to list. Dozens of federal cases Anton Vialtsin managed involved individuals charged with the importation and distribution of controlled s...2022-12-0502 min
Collect Call with LawstacheUNCONSTITUTIONAL: 922(k), prohibits possession of a firearm with altered or removed serial numberUntil recently, federal courts uniformly applied at least intermediate scrutiny to firearms laws and conducted a means-end analysis to determine whether the state’s interest in the regulation was sufficient to overcome whatever burden the law placed on one’s Second Amendment right. See, e.g., United States v. Carter, 669 F.3d 411 (4th Cir. 2012). In Bruen, however, the Supreme Court of the United States determined that all of the lower courts had been incorrect in applying means-end scrutiny. N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022). Rather thanbalancing any government interest, no matter how import...2022-11-3012 minCollect Call with LawstacheFlorida Federal Judge tosses suit challenging GUN BAN for medical marijuana patients. (POST-BRUEN)Federal law prohibits certain people from possessing firearms. 18 U.S.C.§ 922(g). Among them are convicted felons, fugitives from justice, and—relevant here—anyone “who is an unlawful user of or addicted to any controlled substance.” Id. As the parties agree, Florida’s medical marijuana users are “unlawful user[s] of . . . [a] controlled substance,” so this law makes it a crime for them to possess firearms. The primary issue in this case is whether the Second Amendment allows this result.In 2016, Florida stopped criminalizing the medical use of marijuana. Many people refer to this change as Florida’s “lega...2022-11-1610 min
Collect Call with LawstacheWhat is the Single-Purpose Container exception to 4th Amendment warrant requirement?The "single-purpose container" exception to the warrant requirement originated in the United States Supreme Court's decision in Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), overruled on other grounds by California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991). The central question in Sanders was "whether, in the absence of exigent circumstances, police are required to obtain a warrant before searching luggage taken from an automobile properly stopped and searched for contraband." Id. at 754, 99 S.Ct. 2586. The Court answered this question in the affirmative, but declared:Not all containers and packages found by police...2022-11-0909 min
Collect Call with LawstacheChild can't waive privacy rights of her parents and does not have authority to consent to a search.Although parents may choose to grant their minor children joint access and mutual use of the home, parents normally retain control of the home as well as the power to rescind the authority they have given. "It does not startle us that a parent's consent to a search of the living room in the absence of his minor child is given effect; but we should not allow the police to rely on the consent of the child to bind the parent. The common sense of the matter is that the ... parent has not surrendered his privacy of place in...2022-11-0210 min
Collect Call with LawstacheOpening box truck's cargo door constitutes a search under 4th Amendment and police needed a WARRANT.Yuen contends, inter alia, that Officer Kline's opening the rear cargo door without his permission violated the Fourth Amendment to the United States Constitution, and, therefore, all evidence the government obtained through exploitation of that illegality must be suppressed as “ ‘fruit of the poisonous tree.’ ” Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). We assume, without deciding, that the officers' conduct up until the time that Officer Kline opened the rear cargo door without permission did not violate the Fourth Amendment. However, Officer Kline's opening of the rear cargo door constituted a search for purposes of Fourt...2022-10-2607 min
Collect Call with LawstacheCan police search a motorcycle saddlebag without a warrant as incident to arrest?Defendant Hall was arrested at approximately 2:30 p.m. on May 14, 2008 after he exited a house trailer at 2233 East 8th Street, Lot 340, Pueblo, Colorado. Agents had an active arrest warrant and there is no dispute the arrest itself was legal. Immediately before the arrest, agents had observed Hall and a female companion leave another residence and travel on Hall's motorcycle to the house trailer. One officer, situated approximately 75 yards away, saw Hall near the saddle bag hanging over the rear tire of the motorcycle. At that distance he could not discern whether Hall opened the saddlebag, put something in or...2022-10-1909 min
Collect Call with LawstachePART 2 of Howard Case. Officer threatens a motorcyclist that he will search the rider's backpack.As mentioned at the outset, the dialogue between Ruffin and Howard on the side of the road had a certain unreality to it. A number of times, Ruffin seemed to go out of his way to tell Howard that he was not under arrest—even when Howard was in handcuffs and would not likely have believed he was free to terminate the encounter. Why did Ruffin go to such great lengths to communicate this message to Howard, notwithstanding the reality of the situation?Although we don't know for sure what was going through Ruffin's mind, the answer is...2022-10-1204 min
Collect Call with LawstacheOfficer threatens suspect that he will search his backpack in violation of the 4th Amendment, Part 1In this case, a highway patrol officer announced he was going to search a suspect's backpack. That search would have violated the Fourth Amendment, because the officer did not have a warrant to search the backpack, and no exception to the warrant requirement applied at the time the officer made his announcement. In response to the officer's threat, the suspect confessed to being a felon and having a gun in the backpack. The government has now charged him with being a felon in possession of a firearm. But the government may not use in court evidence that an officer...2022-10-1209 min
Collect Call with LawstacheBorder Patrol SEARCH cell phone WITHOUT a WARRANT by relying on search incident to arrest exception.Search Incident to ArrestA search incident to a lawful arrest is an exception to the general rule that warrantless searches violate the Fourth Amendment. The exception allows a police officer making a lawful arrest to conduct a search of the area within the arrestee's “immediate control,” that is, “the area from within which [an arrestee] might gain possession of a weapon or destructible evidence.” Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) (internal quotation marks omitted), abrogated on other grounds by Arizona v. Gant, 556 U.S. 332, 344, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009).T...2022-10-0513 min
Collect Call with LawstacheCharged with burglary despite not having any burglary tools and claiming to be visiting his cousin.Early one October morning, defendant Isaiah Hendrix walked up to a house in **281 Oxnard, knocked on the door, and rang the doorbell. Hearing no response, Hendrix walked around the house to the backyard, opened a screen door, and attempted to open the locked glass door behind it. Then, failing that, Hendrix sat down on a bench and stayed there. Hendrix was sitting on the bench when police arrived. Hendrix told police he was there to visit his cousin, but Hendrix's cousin did not, in fact, live in the house. Hendrix was charged with burglary. At trial, the c...2022-09-2809 min
Collect Call with LawstacheAcceptance of responsibility levels under § 3.E1.1 of the federal sentencing guidelines.Wilke contends that the district court erred by denying him the adjustment solely because of the time and money the Government spent before and at trial. According to Wilke, § 3.E1.1(a) of the Guidelines focuses only on whether, in its words, “the defendant clearly demonstrates acceptance of responsibility for his offense,” not on whether he saves Government resources. Saving the Government resources is, rather, the basis for a separate 1-point reduction under § 3E1.1(b).Whether USSG § 3.E1.1(a) permits consideration of the Government’sexpenditure of resources is a legal question this Court reviews de novo. United St...2022-09-2107 min
Collect Call with LawstacheLegal possession of ammunition raises risk to society that justifies an arrest of the driver?In a per curiam opinion, the panel affirmed the district court’s denial of Sergio Guerrero’s motion to suppress because of the consistent conclusions of Judge Gould and Judge Bea, which represent a majority of the panel, even though the reasoning of Judge Gould and Judge Bea in their separate concurrences is different.The panel noted that one exception to the Fourth Amendment’s prohibition of searches and seizures conducted without prior approval by judge or magistrate is a Terry stop, which allows an officer to briefly detain anindividual when the officer has a reason...2022-09-1407 min
Collect Call with LawstacheJudge orally approves the search of the home, but what does the 4th Amendment say about warrants?The Fourth Amendment specifically requires a warrant to include a description of the “place to be searched.” The police officers here—at first—complied with that requirement, obtaining a warrant that listed a motel room suspected of being a hub for drug trafficking. The officers then decided to search the suspect’s home as well, and asked the judge over the phone to expand the scope of the warrant to include the home. The judge agreed, but the officers did not physically amend the warrant.We agree with the district court that the officers violated the Fourth Amendment...2022-09-0707 min
Collect Call with LawstachePretextual inventory search conducted as a ruse for a criminal investigation. People v. Torres 2010The purpose behind the decision to impound is crucial because of the reason for condoning inventory searches of impounded cars. "In the interests of public safety and as part of what the Court has called `community caretaking functions,' [citation], automobiles are frequently taken into police custody." ( Opperman, supra, 428 U.S. at p. 368.) "When vehicles are impounded, local police departments generally follow a routine practice of securing and inventorying the automobiles' contents. These procedures developed in response to three distinct needs: the protection of the owner's property while it remains in police custody, [citation]; the protection of the police a...2022-09-0213 min
Collect Call with LawstacheReasonable Suspicion can't be a broad profile casting suspicion on entire categories of peopleThe Fourth Amendment's prohibition of unreasonable searches and seizures extends to the brief investigatory stop of a vehicle. United States v. Brignoni–Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578–79, 45 L.Ed.2d 607 (1975). An officer may not detain *246 a motorist without a showing of “reasonable suspicion.” Rodriguez, 976 F.2d at 594. This “objective basis, or ‘reasonable suspicion,’ must consist of ‘specific, articulable facts which, together with objective and reasonable inferences, form the basis for suspecting that the particular person detained is engaged in criminal activity.’ ” Id. (citations omitted). A “gloss on this rule prohibits reasonable suspicion from being based on broad profiles which cast suspicion on enti...2022-08-3115 min
Collect Call with LawstacheCannabis is "not contraband” and “shall not constitute the basis for detention, search, or arrest.”Following a traffic stop, officers searched Brandon Lance Lee's car without a warrant and discovered 56 grams of cocaine, a firearm, and other items associated with selling narcotics. After Lee was charged with various drug and weapons offenses, he filed a motion to suppress the evidence obtained from the warrantless vehicle search. The trial court granted Lee's motion, rejecting the People's contentions that the search was proper under the automobile exception as supported by probable cause or, alternatively, as an inventory search of a vehicle following an impound. Reviewing that order, we rely on the trial court's express and implied...2022-08-3117 min
Collect Call with LawstacheCan police SEARCH your RENTAL car if you are NOT an authorized driver on the rental agreement?The Fourth Amendment guards “against unreasonable searches and seizures.” U.S. Const. amend. IV. To challenge the legality of a search under the Fourth Amendment, a criminal defendant must prove that he has a “legitimate expectation of privacy” in the item or area searched. “A person who is aggrieved by an illegal search ... of a third person's premises or property has not had any of his Fourth Amendment rights infringed.” To determine whether a legitimate expectation of privacy exists, we look to “concepts of real or personal property law or to understandings that are recognized and permitted by society.” Byr...2022-08-2608 min
Collect Call with LawstacheWho decides whether a knife is a "Dirk or Dagger" under California law? DA? Judge? Jury?"[S]ection 21310 makes it a criminal offense to carry `concealed upon the person any dirk or dagger.'" (People v. Castillolopez (2016) 63 Cal.4th 322, 327 [202 Cal.Rptr.3d 703, 371 P.3d 216]; see § 21310 ["any person in this state who carries concealed upon the person any dirk or dagger" commits a criminal offense punishable as a felony or misdemeanor].) Section 16470 defines a dirk or dagger as "a knife or other instrument with or without a 653*653 handguard that is capable of ready use as a stabbing weapon that may inflict great bodily injury or death.""[T]he legislative history is clear and unequivocal: t...2022-08-2507 min
Collect Call with LawstacheIs carrying a concealed knife or box cutter legal in California? Does the length of blade matter?Penal Code section 16470 defines a dirk or dagger as "a knife or other instrument with or without a handguard that is capable of ready use as a stabbing weapon that may inflict great bodily injury or death." (Ibid. ) This definitional language is immediately followed by an exemption: "A nonlocking folding knife, a folding knife that is not prohibited by Section 21510[, i.e., a switchblade], or a pocketknife is capable of ready use as a stabbing weapon that may inflict great bodily injury or death only if the blade of the knife is exposed and locked into position." (Ibid .)2022-08-2509 min
Collect Call with LawstachePolice request for passenger to show driver's license constituted an unlawful seizure under 4th amd.In prosecution for willfully and unlawfuly carrying concealed weapon and for willfully and unlawfully carrying loaded firearm in a public place, the Municipal Court, Los Angeles Judicial District, Ronald Schoenberg, J., granted defendant's motion to suppress evidence on ground that discovery of firearm resulted from unlawful search and seizure. State appealed. The Court of Appeal, Johnson, J., held that: (1) acts of police officer constituted a “detention” where the officer stood at passenger door of car which police had legitimately stopped and asked to see driver's license of passenger not suspected of any crime; (2) fact that the restraint on passenger's libe...2022-08-2510 min
Collect Call with LawstacheCan police order a passenger to stay in the car or get out? Does he need to show ID?The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures of persons, including unreasonable investigative stops. With respect to seizures, “[a] seizure occurs whenever a police officer ‘by means of physical force or show of authority’ restrains the liberty of a person to walk away.”It is well settled that the driver of a vehicle that is the subject of a traffic stop is seized within the meaning of the Fourth Amendment. (Whren v. United States (1996) 517 U.S. 806) The question whether a passenger in the vehicle is also seized at the time of the traffic...2022-08-2510 min