Sal Martinez is an ABC agent. He is a member of the California State Law Enforcement Association and participates in CSLEA's Legal Defense Fund. On February 1, 2016, Martinez was the victim of an off-duty, possible hit and run vehicle accident. Despite acting as most peace officers would under the circumstances, he was charged with violating PC 245(a)(2) and 417(a)(2) (brandishing). After a grueling 18 months, he was acquitted and won his job back. Now, CSLEA's Legal Defense Fund is profiling his story in an in-depth hour-long video presentation. Mastagni Holstedt attorney Greg Thoming represented Martinez at trial.
Showing posts with label Criminal Law. Show all posts
Showing posts with label Criminal Law. Show all posts
Wednesday, January 3, 2018
Friday, May 24, 2013
Court Rules PC 242 Does Not Trigger Firearms Ban, Reistates Peace Officer
In Shirey v. Los Angeles County Civil Service Commission (May 6, 2013)--- Cal.Rptr.3d ---- the Court of Appeal ruled a conviction under California Penal Code section 242 does not trigger a firearms ban under the Federal Gun Control Act.
Deputy Sheriff Mark Shirey was found guilty of a simple battery in violation of Penal Code section 242, a misdemeanor. Because the subject of the crime was his live-in girlfriend, the crime was considered domestic abuse. As a result, the Los Angeles County Sheriff’s Department fired Shirey.
Title 18 of US code § 922(g)(9), the Federal Gun Control Act prohibited possession firearms if convicted of misdemeanor battery upon a domestic partner. The Department claimed that Shirey’s conviction disqualified him from continued employment as a deputy sheriff because the federal law prohibited him from carrying a firearm. Shirey appealed the decision.
The court sided with Shirey and found that a conviction under section 242 does not qualify as a predicate misdemeanor crime of battery upon a domestic partner. The court reasoned that section 242 requires use or attempted use of any amounted force which includes merely touching, whereas the federal statute requires “a quantum of force greater than a de minimus use of force or offensive touching.” Therefore, the Court granted Shirley's petition.
Deputy Sheriff Mark Shirey was found guilty of a simple battery in violation of Penal Code section 242, a misdemeanor. Because the subject of the crime was his live-in girlfriend, the crime was considered domestic abuse. As a result, the Los Angeles County Sheriff’s Department fired Shirey.
Title 18 of US code § 922(g)(9), the Federal Gun Control Act prohibited possession firearms if convicted of misdemeanor battery upon a domestic partner. The Department claimed that Shirey’s conviction disqualified him from continued employment as a deputy sheriff because the federal law prohibited him from carrying a firearm. Shirey appealed the decision.
The court sided with Shirey and found that a conviction under section 242 does not qualify as a predicate misdemeanor crime of battery upon a domestic partner. The court reasoned that section 242 requires use or attempted use of any amounted force which includes merely touching, whereas the federal statute requires “a quantum of force greater than a de minimus use of force or offensive touching.” Therefore, the Court granted Shirley's petition.
Monday, January 23, 2012
US Supreme Court: Warrant Required for GPS Tracking
In a 9-0 decision, the Supreme Court held that attaching a GPS device to a vehicle, and using it to monitor the vehicle’s movements on public streets, constitutes a search under the Fourth Amendment. As a result, the Court held it is unconstitutional to attach a GPS device to a vehicle without a warrant or consent.
The case started after the FBI obtained a warrant, but the warrant only authorized installation of the device in the District of Columbia and within 10 days of when the warrant was issued. Instead, agents installed the device on the 11th day and in Maryland. Consequently, the Court treated the case as though there was no warrant.
The agents tracked the vehicle’s movements for 28 days. Later, they secured an indictment of the defendant and others on drug trafficking conspiracy charges based in part on evidence obtained with the GPS device. The District Court suppressed the GPS data obtained while the vehicle was parked at the Defendant's residence, but decided the remaining data was admissible because the Defendant had no reasonable expectation of privacy when the vehicle was on public streets. The Defendant was convicted and appealed.
Justice Scalia, writing for the majority, reasoned one's vehicle is a type of personal "effect" the Fourth Amendment specifically mentions, and that, therefore, attaching a GPS device to one's vehicle is the type of encroachment that would count as a search under the Fourth Amendment at the time it was adopted. The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Justices Roberts, Kennedy, Thomas and Sotomayor joined his opinion.
Justice Alito wrote an opinion reaching the same result from a different perspective. He decided the use of the GPS device was unconstitutional because the length of the monitoring made it a degree of intrusion that a reasonable person would not have anticipated. Justices Kagan, Ginsburg, and Breyer joined his opinion.
The case started after the FBI obtained a warrant, but the warrant only authorized installation of the device in the District of Columbia and within 10 days of when the warrant was issued. Instead, agents installed the device on the 11th day and in Maryland. Consequently, the Court treated the case as though there was no warrant.
The agents tracked the vehicle’s movements for 28 days. Later, they secured an indictment of the defendant and others on drug trafficking conspiracy charges based in part on evidence obtained with the GPS device. The District Court suppressed the GPS data obtained while the vehicle was parked at the Defendant's residence, but decided the remaining data was admissible because the Defendant had no reasonable expectation of privacy when the vehicle was on public streets. The Defendant was convicted and appealed.
Justice Scalia, writing for the majority, reasoned one's vehicle is a type of personal "effect" the Fourth Amendment specifically mentions, and that, therefore, attaching a GPS device to one's vehicle is the type of encroachment that would count as a search under the Fourth Amendment at the time it was adopted. The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Justices Roberts, Kennedy, Thomas and Sotomayor joined his opinion.
Justice Alito wrote an opinion reaching the same result from a different perspective. He decided the use of the GPS device was unconstitutional because the length of the monitoring made it a degree of intrusion that a reasonable person would not have anticipated. Justices Kagan, Ginsburg, and Breyer joined his opinion.
Subscribe to:
Posts (Atom)