Everyone is familiar with the term “Miranda rights.” This right derives from a 1966 U.S. Supreme Court case, Miranda v. Arizona. The Miranda court held that the Fifth Amendment to the U.S. Constitution, which protects someone accused of a crime from self-incrimination, includes protections for suspects who have been arrested for a crime. Specifically, the court held that when a suspect is arrested, the suspect must be advised that:

  • The suspect had a right to remain silent,
  • anything the suspect said could be used against him or her in a court of law, and

As has been discussed many times in these pages, the Fourth Amendment secures the right to be free of searches absent a warrant establishing probable cause. A law enforcement search without probable cause is unlawful.  …Or so they say.

Over the years, many exceptions to this right have been carved out. One exception to the Fourth Amendment is vehicle searches. While probable cause to search a vehicle is nominally still in effect, the threshold is lower. Warrantless searches of a vehicle and contents therein may be searched if a law enforcement officer can establish probable cause that some sort of criminal activity is afoot.  (Other exceptions apply, such as consent to search and a search incident to arrest, but here we will discuss a search of a vehicle based on probable cause.) Under the automobile exception, a search of a vehicle is lawful if the search is based on facts that would otherwise justify the issuance of a search warrant. The courts have found probable cause to search a vehicle based on ambiguous facts, such as the officer observed the driver or passengers making furtive movements, or the nervousness of the driver coupled with other observations.

But how far can the search go? Recently, the California Court of Appeals held that officers cannot search the trunk of a vehicle if the search was conducted on probable cause that contraband or evidence was located in the passenger portion of the vehicle. The case, People v. Leal (2023) 93 Cal. App. 5th 1143 binds officers to a probable cause search only to those portions of a vehicle where facts observed or known to officers justify the search.

The Covid-19 pandemic ushered in government benefit programs aimed at relieving the economic burdens the pandemic and the resulting lockdowns caused to individuals and businesses.  Among those benefits was the Employee Retention Credit (ERC). Individuals and employers are being warned that making false claims for an ERC credit will and has resulted in criminal charges.

The ERC program was created to help small businesses reduce the employment tax they owed as a set-off for partial or full suspension of their business due to Covid-19. The credit is tied to employee wages paid by the business. The ERC program is complex and requires that a business’ eligibility fall within certain guidelines.

The program has been plagued with fraud and scams. Small businesses and individuals have fraudulently claimed this credit while others have fallen prey, wittingly or unwittingly, to unscrupulous enterprises who aggressively advertise as “advisors” who will assist employers, sole proprietors, and independent contractors to claim the ERC. In other cases, individuals have made false claims for nonexistent businesses. According to the IRS, thousands of ERC claims have been referred for audit and 252 criminal investigations into possible fraudulent ERC claims have been initiated.

California already has some of the toughest gun laws in the country. Governor Newsom just made the laws even tougher when he signed new gun control bills into law that aim to address the rising gun violence in the state. Six new measures were enacted, and barring court challenges will become law beginning next year. (Some of the new laws will not take effect until future years.)

Senate Bill 2 amended the concealed carry law, adding restrictions and/or outright bans on where a person with a concealed carry permit may carry a gun.  The law takes effect on January 1, 2024.

Senate Bill 452 will require a microstamp on specified handguns cartridges, which is intended to enhance law enforcement efforts in tracing guns used to commit crimes. This law will not take effect until January 1, 2028 and then only after the California Justice Department has investigated the technology and determined that this is feasible.

Four years ago, heroin accounted for 80% of the opioid seizures at the Mexico/U.S. border; as of 2022, it now accounts for only 7%. What has replaced the opioid seizures? If you have read my previous blog posts, you know the answer is fentanyl. According to the U.S. Customs and Border Protection, fentanyl seizures at our southern border tripled (by weight) from 2021 to 2022. It may be surprising to learn that 20% of those fentanyl seizures were found on pedestrians crossing the border, often secreted on or inside the pedestrian’s body. Considering how potent the drug is, it is perhaps not all that surprising as a small amount can go a long way.  The majority of Fentanyl seizures are in the form of pills or tablets. In the U.S. the number of people who fatally overdose on fentanyl is seven times higher than for that of heroin. Between 2015-2022, 325,000 individuals had died from a fentanyl overdose.

The fentanyl trade has been devastating to both the U.S. and Mexico. In my previous blog, I discussed how fentanyl has supplanted the heroin production in Mexico. While nobody should be crying over less heroin production, the truth is, fentanyl is far more deadly and dangerous and the end of heroin production in Mexico has displaced subsistence farmers who once tended the poppy fields and has made the cartels even stronger.

Heroin addiction has historically accounted for the majority of opioid addictions in the U.S., but  that is no longer true. In the 1990’s until around 2010, when regulators cracked down, Americans were prescribed – and got hooked on – painkillers such as Oxycontin. When those prescriptions became harder to come by, the hundreds of thousands of addicts turned to heroin.  The docudrama series “Dopesick” dramatizes this trajectory. The series depicts how individuals suffering from chronic pain eventually became opioid addicts. Opioids affect the brain processes-rewiring the circuity so to speak-and any attempt to withdraw from use of the drug results in intense physical and psychological symptoms. Thus, many who got addicted to prescription opioids but found in the late 2000’s, when those opioids came under scrutiny and tight regulation, that their doctor could no longer fill the prescriptions they needed, turned to heroin. A former DEA agent told a Reuters reporter that prescription opioid painkillers created the market that moved from heroin and now to fentanyl.

You might remember back ten or so years ago when flash mobs were all the rage. A large group of “conspirators” preplanned an event at a crowded venue – for example at Grand Central Station in New York City or a large mall in Los Angeles – and delighted the crowd with a choregraphed dance or impromptu theater.  Such events were a welcome respite to the hustle and bustle of the city.

We still have flash mob events, but now they are far more nefarious. Across the country, mobs – sometimes only a few people, sometimes many – are invading retail stores and grabbing the merchandise.  Southern California is one of the hotbeds for this crime. Just a few weeks ago a group of five to ten thieves took off with at least $100,000 worth of merchandise from a Gucci store in South Coast Plaza. The suspects wore hoodies and masks and after grabbing the merchandise in a matter of minutes fled on foot to waiting get-away vehicles. Fortunately, no one was injured in the robbery.

Southern California, especially Los Angeles, has been plagued with flash mob robberies.  These robberies are planned and well-organized.  The robberies are often planned online via social media or other internet communications. At one flash mob event—a robbery of a Nordstrom in Los Angeles—more than 30 people were involved. All were masked, making it harder to identify the suspects. Witnesses reported that the thieves tore the store apart, broke glass cases, and made off with more than $300,000 in merchandise.  Of the many flash mob robberies, plausibly involving hundreds of suspects, only a handful of flash mob thieves have been arrested.

Ghost guns present a considerable threat to gun control laws. Ghost guns are guns that are assembled by component parts bought online. These guns are increasingly posing a challenge to law enforcement and to public safety. The component parts, essentially a gun kit, are available online for anyone to purchase.  The criminal use of ghost guns is an increasing menace and something that we will hear more about in coming months and years. These guns have been linked to hundreds of shootings, including murders; unfortunately, the use of ghost guns is rising.

Ghost gun kits or components are typically purchased online and assembled at home. Assembled ghost guns are also being sold on the street. There are no age restrictions or background checks for purchasing ghost gun kits or component parts. Once assembled, the gun has no serial number, making the gun difficult to trace. Given their ease of acquisition, ghost guns are particularly popular among teens, although they are being used in crimes committed by adults as well.

Assembling a homemade gun is not illegal. Building homemade guns has long been a tradition in the United States among hobbyists and gun enthusiasts. Ghost guns, however, do not require the skill and knowledge that is required to build a homemade gun from scratch. Ghost guns are simple enough for a kid to put together without any skills in the gun making process. The companies who sell the parts to make the gun usually sell the unfinished frame and/or receivers, about 80 percent of the gun’s component parts, while the remaining 20 percent of the gun requires simple manufacturing processes that can be done at home.

Manzanillo, a port city on Mexico’s Pacific coast and about 175 miles south of Puerto Vallarta, is one of the busiest ports in Mexico. It is also where most of the fentanyl gets it start as it winds its way up the North American continent.  It is no secret that fentanyl overdose is the leading cause of death for Americans between the age of 18-45 and represents almost 70% of the drug overdoses in the U.S. Approximately 150 people a day die from an overdose of fentanyl.

What is the journey of a fentanyl tablet or capsule as it makes it way from the Manzanillo port to the shores of the United States?

Most fentanyl that hits our shores gets it start as precursor chemicals that come in containers from China. Most of these containers are filled with clothes, electronics, auto parts and other typical exports from China, but in amounts nearly too small to find, are the precursor chemicals that are transported to rudimentary labs in Mexico’s northern states. Only small amounts of the precursor chemical are needed to make a supply of Fentanyl that would satisfy one year’s worth of demand in the U.S. This, plus the fact that these precursor chemicals can be used for legal purposes makes interception of these chemicals from China almost impossible to stop. Add to that, the fact that the Mexican cartels control the import of these chemicals and their journey to the labs and eventually to the U.S. makes this a near intractable problem. Any interference by the Mexican authorities often results in the death of the authority.

Depending upon your point of view “livestreaming” police contacts benefits citizen civil rights, impedes police officers’ ability to do their job, and/or instigates riots. All these things are true.

Many police officers don’t like it when citizens livestream their contact with the public; they believe it interferes with their ability to properly perform their job.  On the other hand, livestreams may keep the police “in check.” Some officers abuse their power and the notion that there might be a citizen livestreaming their actions may lead such officers to follow the law.

But is citizen livestreaming police contact legal? While the courts have upheld the First Amendment right to videotape an officer functioning in public, is a livestream video – i.e., videotaping an officer performing his duties in real time and broadcasting that contact in real time to the public—subject to the same First Amendment protections? The question of livestreaming an officer and the First Amendment right to do so is an evolving area of law. A recent case heard in the federal Fourth Circuit,  Sharpe v. Winterville Police Department (4th Cir. Feb. 7, 2023) 59 F.4th 674 considered this question.

In 2022, California Governor Gavin Newsom signed into law a bill creating Community Assistance, Recovery and Empowerment (CARE) Courts, a new system of courts designed to provide treatment and support to people with untreated mental illness and substance abuse disorders who are at risk of, or are already, becoming homeless or of committing crimes. The focus of the plan is on those individuals suffering from schizophrenia spectrum and related disorders, The CARE Courts are intended to be a more effective and humane alternative to the traditional criminal justice system, which often fails to adequately address the needs of people with mental illness. The CARE Court is not a collaborative court but when an individual is referred to the CARE Court following an arrest, it essentially serves the same purpose as a collaborative court.

Candidates for CARE Court may be referred to the courts by a variety of sources, including law enforcement, mental health professionals, family members, and even roommates. An arrest of a CARE Plan candidate may also trigger enrollment in the program. A participant in the program must be diagnosed with untreated schizophrenia or other psychiatric disorders.  Once a person is referred to the CARE Courts, they will be assigned a judge and a team of professionals, including a psychiatrist, a therapist, and a case manager. The team will develop a treatment plan for the participant, which may include medication, therapy, and housing assistance. The court may order participation in a CARE Plan for up to 24 months. A participant who does not successfully complete the court-ordered CARE Plan may, under current law, be hospitalized or referred to conservatorship if no other alternatives are identified.

The CARE Courts are a promising new approach to mental health treatment and crime. By providing treatment and support in the community, the CARE Courts can help to prevent people with mental illness from committing crimes and from becoming homeless. The CARE Courts are still in their early stages, with Orange County being one of the first counties to implement the CARE Court. Orange County’s program is slated to begin on October 1, 2023.