When Is a Pre-Trial Identification Unduly Suggestive?

While we can all agree that it is unfair if police ask a witness to identify her African-American assailant and put the suspect in a line-up with five Caucasians, what is a fair pre-trial suspect identification? What is unduly suggestive? The following case summary of a case out of San Diego addresses this issue involving a fight between two groups of soccer fans after a World Cup game. To read about the pre-trial identification of the suspect and whether it was unduly suggestive, click on the following link.


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Motion to Suppress Granted When No Articulable Suspicion

We find it tough to win on motions to suppress evidence because police officers will regularly testify to circumstances that they allegedly observed at the time of the search that are not written in the police report. It often seems like the testimony is just too convenient to preserve the evidence creating a totality of circumstances that support an articulable suspicion. In the following appellate court ruling, however, the appellate court ruled as we have dreamed would happen (maybe dream is too strong a word). To read a short summary of the decision suppressing the evidence, click on the following link.
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Is It Legal for Police to Search a Car with No Warrant?

Even the most experienced criminal defense attorneys, judges and prosecutors will pause to answer the rhetorical question posed as the title to this blog posting. Arizona v Gant is an often-cited case involving the power of the police to search a car and the following case summary explains how this case was initially cited to, but then built upon to permit the search of a car in Compton that police suspected was carrying drugs and money from drug sales. To read about this case, which defense attorneys should not like, click on the following link.


Is Validated Gang Membership Enough for a Gang Enhancement?

The answer to the rhetorical question posed in this post is no. For that reason, the following summary is one that restores one’s faith (and perhaps reluctant trust even) in our judiciary as being fair and thorough in its analysis. Too often, it seems, the mere allegation of someone being a member of a criminal street gang, with a ten-year sentence enhancement is accepted as true when defendant is a validated gang member. Digging deeper is necessary, but rarely done. To read about a case where such further analysis was done, click on the following link.


Be Careful About Being Granted Immunity and Then Not Testifying

The following case summary is something anyone granted immunity should read, as it is often overlooked what can happen if one is granted immunity and then decides to remain silent, or refuse to testify as agreed for immunity. Indeed, it could be said in this regard that if one is granted immunity, one waives one’s Fifth Amendment right to remain silent and asserting that right can have tragic consequences. To read about specific facts in a real case where this took place, click on the following link.


Confession Inadmissible When Defendant Not Mirandized?

In many cases, the failure of police to read the suspect his or her Miranda rights is of no consequence. This may be because there is eye-witness testimony to the crime or other evidence. However, in the following summary of a recent (2018) case, the appellate court found that the police officer’s failure to admonish the suspect about his right to remain silent and to have an attorney present was consequential. The admissions that followed were improperly obtained and the conviction was reversed. To read about this unusual case, click on the following link.


Gang Enhancement Removed Due to Faulty Expert Opinion

As any criminal defense attorney experienced in gang cases will agree, expert testimony on the area of gang membership is often susceptible to attack. Indeed, it can seem like anything can be interpreted as a gang activity or someone as a gang member. In the following case summary, a sentencing enhancement for gang activity was removed on appeal due to a problematic gang expert’s testimony. To read about this case arising out of the Ontario and Chino areas, please click on the following link.


Murder Conviction Vacated When DA Expert Mistaken

It is very common to read about writs of habeas corpus based on claims of a conviction being based upon false evidence. Such evidence, it often turns out, was not so much false as it was subject to impeachment due to a witness’ credibility issues. In other words, such writs are really attempts to have a second trial via a writ. However, occasionally, there is a meritorious claim of false evidence as the following case summary describes. To read about this horrendous case, click on the following link.


Three-Year Sentence Enhancement Vacated by New Law

For years, defense attorneys have criticized the effects of a three-year sentence enhancement that was applicable to someone suffering a second or further drug conviction. In fact, many prosecutors shared such criticism, agreeing that additional time in custody did not deter those with a chemical dependency and only institutionalized addicts even more, making them less and less capable of reintegrating into society when released. To read a summary of a recent case wherein this 2018 amendment to Health and Safety Code § 11370.2(c) was applied to vacate the three-year enhancement, click on the following link.