Fresno Criminal Lawyer
Fresno Criminal Lawyer – Criminal Defense Lawyer Rick Horowitz
Years ago, some time after California decriminalized medical marijuana, I had a (metaphorical) roller-coaster ride with a client who inadvertently helped me hone my approach to criminal defense.
Let me tell you about the Criminal Defense Lawyer’s Toolkit.
Caveat
If you’ve read much of my blog, you know that I don’t usually talk about my clients, or their cases. When I do, I provide minimal detail.
This post might contain more details, but I’ll warn you in advance that “the names are changed to protect the innocent.”
The year wasn’t quite as far back as 1967, of course. And neither Sgt. Joe Friday, nor Officer Bill Gannon play a part — although a couple of CHP officers did.
And, also, I’m changing more than just names, though the fundamental facts — especially those key to the point of the story — are true.
So…the story you are about to read is true….
The Story Begins
Once upon a — no, no….
Some time after 1996, when the Compassionate Use Act (CUA) decriminalized medical marijuana under certain tight conditions in California, a man drove through the edge of one of the counties in which I practice criminal defense.
In fact, now that I think about it, this had to have been after passage of the Medical Marijuana Program Act (MMPA), about which I knew a little something, despite what one doctor thought. (Because, for one thing, I became a lawyer in 2007.)
The man was driving alone. It was getting dark. You might say it was a dark and lonely night.
But romance — nostalgic, melancholic, or otherwise — was not in the air.
Instead, the air would soon carry the swooning siren of a CHP patrol car, accompanied by an equally-deceptive more “festive” light show.
Time for a Rest Stop
The client — let’s call him “Tiger” — had spotted the officers sitting on the side of the freeway. This put him on edge, possibly because of the several pounds of marijuana in a box in the backseat.
Tiger decided to exit the freeway. Maybe get a few (more) munchies. Take a break and give the CHP time to move on.
What Tiger didn’t know is that (for reasons that remain unknown to this day) the officers had already focused on his truck. They pulled out onto the freeway, just as Tiger signaled to turn off.
Like most modern autos, once Tiger straightened the wheel after turning off the freeway, his turn signal automatically turned off. As he continued down the exit, the one-lane into which he had exited split into two lanes. The one Tiger was in went straight, until it became a “right-turn-only” lane. Had he taken a jog to the left, he would have entered a “left-turn-only” lane.
An Illegal Search & Seizure
The CHP officers — again, for reasons that remain unknown to this day, but to which they testified later — had already decided Tiger was “suspicious.”
As they followed him off the freeway, they noticed his blinker shut off. And then he made his right turn, never having re-engaged his turn signal.
So they lit him up.
Tiger pulled over in front of the convenience store right near the exit, where he had been headed before he realized the officers had followed him off the freeway.
The officers approached, one on each side of his “vehicle.” The report — as all reports written with copspeak do — called it that. And I frankly can’t remember if it was a regular car, or some kind of a truck.
What I do remember is that the officers noted the presence of “candy wrappers, chip bags, and an energy drink.” Each of these things, their report would say, “raised suspicions.”
You see, “based on [their] training and experience,” people transporting marijuana often “get the munchies.” Why, I have no idea. I mean, I’ve heard that people who consume marijuana sometimes get the munchies. But people who transport it?
In addition, they testified, people transporting marijuana over a long distance, which they’d decided was the case here without even questioning Tiger, rely on energy drinks to keep them going.
Plus, they smelled marijuana — highly unlikely given the way it was packed, but that’s what they said in their report, and that’s how they testilied — and so Tiger was asked to “step out of the vehicle.”
Because their “training and experience” had already convinced them there was contraband in Tiger’s “vehicle,” they searched it. This was post-Gant, and Tiger was already away from the vehicle when they did it. But what’s a little violation of constitutional rights once you’ve already started violating someone’s constitutional rights?
And what happened? Lucky guess? Who knows? But they did find the marijuana in the back seat. The bags were accompanied by several medical marijuana recommendations. (Back then, lots of people mistakenly called them “prescriptions.”)
Let the Rollercoaster Ride Begin!
Now I’m going to tell you point-blank that I have never considered myself a “marijuana lawyer,”although I do defend people accused of crimes involving marijuana. And at the time Tiger came to see me, I had built up a bit of reputation. If you were go to Google and type “site:rhdefense.com marijuana” for the search, you’ll see some reviews people left for me regarding medical marijuana on the Internet, as well as several articles I’d written about it.
Because of this nascent reputation, shortly after he bailed out, Tiger came to see me. He apparently spoke to a couple of other “medical marijuana lawyers,” as he termed it. And there were two around then who were quite well known for that.
But for some reason, after our consultation, Tiger decided to hire me.
During our consultation, we spoke of many things, including — because he kept bringing it up — a “medical marijuana defense.” Remember, at this point, “medical marijuana” was ostensibly legal, though the authorities in my area did not like it, and did everything they could to pretend the laws allowing it did not exist.
Many of the judges — and remember, almost all criminal court judges are former prosecutors, so this makes perfect sense — also hated the laws that were letting “criminals” get away with marijuana “crimes.” Nevermind that they were no longer deemed criminals by the actual LAW, and what they were doing did not constitute committing crimes.
Judges.
Second-Guessing the Attorney
When I sign up a new client, and go over the contract, paragraph 1 of the contract states,
IDENTIFICATION OF PARTIES: This original executed Agreement is made between RICK HOROWITZ, hereinafter referred to as “Attorney,” and [INSERT CLIENT NAME HERE], hereinafter referred to as “Client.
I often joke when going over that paragraph that it’s important we don’t get those two confused. I’m the Attorney; the client is the Client. I explain that bad things can happen if we mix those up.
But Tiger believed himself to be well-versed in the law. At least, the law as it applied to “medical marijuana,” and, thus, in his mind, to his case.
Not only that, but he apparently was in regular contact with at least one of those aforementioned “medical marijuana lawyers” I mentioned above.
Tiger frequently called me up to complain about how I was handling the case. “Why aren’t you putting on a medical marijuana defense!,” he complained after I filed a motion to suppress the evidence. I’d done this because the initial stop, which led to the search, which lead to the seizure, which lead to all the other evidence, was illegal.
But Tiger was transporting medical marijuana which, in his mind, meant he was totally innocent of having committed any crimes, based upon his understanding of the CUA and MMPA.
And he had another attorney who was telling him that he was right, and that I should be putting on a medical marijuana defense, which I was not (yet) doing.
One night — after G-d knows how many times this had happened — at around 11 p.m. or midnight, whilst we were arguing on the phone about it, I had had enough.
Look. I’m going to give you back all your money. I’m going to do this, even though I’ve been on your case a few months, and have already researched, written, and filed the motion to suppress the evidence. Take that money and go hire [the “medical marijuana attorney”] who keeps telling you what I should be doing. He can do it. You can be happy.
Tiger immediately became even more upset. And, apologies to Captain Motion here, he said:
I’ve been told that you’re the Master of Motions! You’re supposed to be the best!
I replied,
Then stop this constantly calling me after hours to hound me about how I’m handling the case. Let me do my job.
And I think I actually hung up on him.
The Suppression Hearing Begins
Tiger did not stop complaining.
But, finally, the day came for the hearing on the motion I had filed (and the preliminary hearing).
The officers testilied at the hearing. I mean, to be fair, they mostly told the truth about what happened. They admitted how Tiger was driving on the freeway, and signaled to exit. They admitted that they followed him.
Most importantly, they admitted that the exit was one-lane that turned into two lanes. They admitted that the one lane Tiger was in “became” the right-turn-only lane. And they admitted that he would have had to turn — to deviate from his straight path — to move into the left-turn-only lane.
Well, guess what?
In California, you do not have to signal if you’re in a right-turn-only lane, so long as you are going to make a right turn. (And if you’re in a right-turn-only lane, and you do not turn right, that would be an infraction.)
The Motion to Suppress
Perhaps you’d like to see the motion that I filed?
The relevant portion of the motion which I filed spelled out why you don’t have to signal if you’re in the right-turn-only lane.
IV
THE STOP WAS IMPROPER BECAUSE IT WAS PREDICATED ON THE LACK OF A SIGNAL FOR A TURN WHERE NONE WAS REQUIRED BY LAWVehicle Code section 22107 requires a signal only when another vehicle in proximity to the turning vehicle may be “affected by the movement.” The affected vehicle is usually to the rear of the turning vehicle. See Stephens v. Hatfield, 214 Cal.App.2d 140, 144, 29 Cal.Rptr. 436 (1963) (“[t]he signal…is more for the benefit of the vehicles to the rear of the vehicle intending to turn”). The affected vehicle may be a police patrol car. People v. Miranda, 17 Cal.App.4th 917, 930, 27 Cal.Rptr.2d 785 (1993).
Here, however, the officer’s vehicle could not have been “affected by the movement.” The lane from which the turn was executed was clearly marked as a right-turn-only lane. No other legal move than a right turn could have been made by any vehicle in that lane, including the patrol car.
In his report, California Highway Patrol Officer Joe Blow stated that Tiger was stopped because he “failed to signal while make [sic] the right hand [sic] turn on to [sic] [Some Place] Ave.” Exhibit 1.
The far right-hand lane is clearly marked as being a right-turn-only lane. Exhibit 2. If Tiger would have failed to turn right, he would have been breaking the law.
The only other potentially applicable section of the Vehicle Code on the facts of this case is section 22108, titled “Duration of Signal.” Veh.Code § 22108, emphasis added. That section states that “any signal of intention to turn right or left shall be given continuously during the last 100 feet traveled by the vehicle before turning.” Veh.Code § 22108. That section does not state that a signal is required; Vehicle Code section 22107, as noted, spells out the conditions requiring a signal. Instead, Vehicle Code section 22108 spells out how long a signal must be given, where one is required. Just as statutory construction requires avoiding making language superfluous, so, too, the California Supreme Court has noted that courts “must not insert what has been omitted from a statute”; they “must not add provisions to statutes.” People v. Guzman, 35 Cal.4th 577, 587, 107 P.3d 860 (2005).
Finally, where a defendant does not actually break the law, “the officer’s mistaken belief there has been a violation adds nothing to the probable cause equation.” In re Justin K., 98 Cal.App.4th 695, 120 Cal.Rptr.2d 546 (2002) (emphasis added). Here, the officer is mistaken as to the requirements of the law.
Since the only reason given for the stop was the failure to signal in a situation where a signal was not required, there was, therefore, no probable cause for the stop.
The Hapless Prosecutor is Pilloried by the Judge
At the conclusion of the officers’ testimony, despite occasionally fudging on the facts, they had at least been honest about the basis for the stop being the failure to signal a turn.
Since, as already noted, no signal was required, the judge — though not always a friend to my arguments in other cases — began peppering the prosecutor with questions.
In the interest of brevity, it is enough to tell you here that the hapless prosecutor was unable to muster even one satisfactory answer to the judge’s questions.
I leaned over and whispered in my client’s ear that I know he’s always upset that he feels I don’t do all the things he’d like to see, but that I was not going to snatch defeat from the jaws of victory. Unless the judge asked me a specific question, I intended not to say a word. He nervously indicated that he understood.
That’s where the real fun started.
As the prosecutor continued to flail about for an answer, the judge had had enough: “The court finds that there was no probable cause for the stop. The motion to suppress is granted.”
She then asked the prosecutor if he had a motion. For those who don’t know, the proper response — the only possible correct response — from the prosecutor would be to move to dismiss the case.
This prosecutor refused to do that. He stated that he did not. The judge said, “Then call your next witness.”
For what seemed to me to be at least 20 minutes — but it could not possibly have been that long; I doubt the judge would have had that degree of patience — the judge and the prosecutor went back and forth.
Prosecutor: I don’t have any other witnesses.
Judge: You have no other evidence?
Prosecutor: No.
Judge: Then do you have a motion?
Prosecutor: No.
Judge: Then put on the rest of your evidence.
Prosecutor: I have no more evidence. You suppressed all my evidence.
Judge: Then do you have a motion?
Prosecutor: No.
And this went on for some time with the same questions being repeated.
Finally, exasperated, the judge made her own motion: “The case is dismissed.”
A Criminal Defense Lawyer’s Toolkit
When we exited the courtroom, I asked my client, “Are you still upset that I didn’t put on a medical marijuana defense?”
My client responded, excitedly, “No! No! No! You’re the best criminal defense lawyer in the world!”
I’m not. But I’ll take that.
The point here, though, is this: I’m not — never have been; never claimed to be — a “medical marijuana lawyer.” As I said at the start, I’m a criminal defense lawyer who sometimes defends people charged with marijuana crimes.
My “toolkit,” therefore, is the complete toolkit of a well-trained, well-educated, and experienced criminal defense lawyer.
Sometimes, a case will call for a particular type of defense. Perhaps a “medical marijuana defense” such as my client kept insisting upon would have become necessary, had my motion failed.
But my toolkit contains other tools.
And sometimes — when you want to put the screws to the prosecution — a screwdriver works better than a hammer.
In this case, my motion was the screwdriver that removed the supporting screws — the probable cause for the stop that lead to the discovery of the marijuana in my client’s car — from the prosecutor’s case, causing the whole thing to collapse. The hammer to directly attack the evidence, and to show that my client had the right to transport medical marijuana in that situation was unnecessary (and, frankly, under the laws in place at that time, had a good chance of failing).
A true criminal defense attorney does not have a toolkit limited only to certain types of defense, but a comprehensive set of tools from which to choose.
Conclusion
Another part of the contracts my clients sign states:
Certain decisions regarding the case are, by law, allocated to Client; however, decisions regarding pre-trial strategy, decisions regarding researching, writing, or filing of motions, and trial strategy are within the sole province of attorney.
As I explain, clients have certain rights — the right to testify, go to trial, and other constitutional rights — and if the client chooses to go against my advice on those things, that’s his or her choice. I just have to accept, and adapt to, that choice, whether I like it, or not. (It might have a negative impact on the case, and I advise clients of this. But the choice is ultimately theirs.)
However, when it comes to strategic decisions — remember what I said above regarding identification of parties? — the attorney (me) makes those decisions. While I keep an open mind, and will explain, discuss, and sometimes even amend my strategic decisions with the client, the final decision on strategy is mine.
Why? Because as I tell the client: you hired me because I’m a trained, educated, experienced criminal defense lawyer.
I’m the one who knows what’s in the toolkit and when and how what is in there should be used.
The post The Criminal Defense Lawyer’s Toolkit appeared first on Fresno Criminal Lawyer. It was written by Rick.