California DUI law is steadfast in the fact that no evidence can be admitted if it violates the constitution. In this case the courts rule the evidence was suspect. A jury convicted appellant of possession of methamphetamine and active gang participation. Law enforcement officers received information that a homicide suspect could be found at appellant’s residence. At the residence, they found appellant and Ramirez in the garage, each holding suspected methamphetamine. (They did not find the homicide suspect.) At trial, the prosecution’s gang expert, a sheriff’s deputy, testified that appellant was a high-ranking member of and active participant in the East Side Victoria (ESV) criminal street gang. He based his opinion in part on the testimonial hearsay statement of another gang member, Perez. The court considered whether the expert’s testimony violated appellant’s Sixth Amendment right to confrontation and concluded that federal cases provide the proper standard. Experts may rely on testimonial hearsay in forming their opinions but may not simply parrot the content of such hearsay to the jury on direct examination unless the declarant is unavailable or the defendant had a prior opportunity for cross-examination. The question is whether the expert is giving an independent judgment or merely acting as a transmitter of testimonial hearsay. The court found that admission of Perez’s out-of-court statement that appellant directed an uncharged robbery of a drug dealer by ESV gang members, as the basis for the expert’s opinion, violated appellant’s Sixth Amendment rights. The statement essentially was offered for its truth and it was not shown that Perez was unavailable or that appellant had a prior opportunity to cross-examine him.
This week the US Supreme Court allowed cops to stop any motorist for suspected DUI when the caller gives the dispatcher information that a driver is impaired. The case, Navarette, is the first to allow law enforcement to detain a driver when a person simply calls in and says that another car is driving erratically. The case raises many concerns for many constitutional scholars who believe that the opinion will allow others to harrass and seek revenge on others.