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The Fifth Amendment right against self-incrimination is among one of our most important and well-known rights.  That clause states: “No person . . . shall be compelled in any criminal case to be a witness against himself.” Sounds simple enough but understanding how the courts have interpreted this right over the 225+ years since it was ratified is not simple. Among one of the most famous interpretations of this right was handed down by the United States Supreme Court in 1966 in the case Miranda v. Arizona.

We have all heard of the “Miranda warning” where an individual is warned that he or she has the right to remain silent and that any statement made can and will be used in a court of law. But did you know that Miranda rights are only applied and operative upon arrest, not upon detention or questioning? Upon arrest, and only upon arrest (with a few exception), the Supreme Court ruled that a suspect must be advised of his or her Fifth Amendment rights. This warning also includes notice that the arrestee has the right to talk to an attorney before answering any questions.  Without being advised of these rights, the arrestee may have grounds to challenge any subsequent charge stemming from the arrest by a motion to suppress.

Even with this warning, many suspects go on to incriminate themselves, even by statements they believe are innocent. If you are ever arrested, don’t make this mistake! Even if you are innocent. Keep your mouth shut when the police question you after an arrest except to ask for permission to contact a criminal defense attorney.

Our lives are increasingly being surveilled by law enforcement. From facial recognition software to license plate readers and so many other technological systems you have probably never heard of, law enforcement can track a person’s almost every move. While most individuals are not being actively and personally surveilled and tracked by the police, anyone who becomes a target for investigation or triggers an investigation due to one of the many technologies law enforcement deploys, can find themselves in a personal dystopian nightmare.

That is what happened to one young man in Florida. Google informed this young man that the local police had demanded the data from his Google account. He had only seven days to oppose the release of the data. He had no idea why the police would demand his personal Google information. After some investigation of his own, he learned that the police wanted his data in connection with a burglary near his home. Knowing he had nothing to do with this burglary, and not understanding why the police apparently connected him to it, he borrowed money from his parents to hire an attorney.

The attorney learned that the demand was in connection to a “geofence warrant.” You have probably never heard of this type of warrant, but law enforcement agencies are ramping up the use of geofencing in their investigations. A geofence warrant allows law enforcement to compel a technology company to provide anonymized location records for every device used within a certain geographical location within a certain time period. So far, the only geofence warrants have been on Google data users, but the warrants can be applied to any cell phone or other GPS provider.

California law enforcement agencies utilize automated license plate readers (ALPR) that collect and store images of license plates as vehicles pass within an ALPR’s view. ALPRs are cameras that are located throughout a law enforcement agency’s jurisdiction atop fixed objects, such as light poles, and on moving objects, such as patrol cars. As the cameras capture the images of every vehicle that passes within its range, the images are converted into data that then goes into a searchable database. ALPR assists law enforcement in locating a vehicle involved in a crime, stolen vehicles, child kidnappings and other investigations.

For example, the police are alerted to an armed robbery after the suspects took off in vehicle that a witness was able to get a partial license plate read on before the vehicle sped out of view. By consulting the ALPR database in real time, the police are able to track any ALPR locations the vehicle passed, helping law enforcement locate the suspects.

The ALPR data is used to feed into “hot lists” that are lists of vehicle license plates connected to a crime investigation or associated with a person of interest. However, because ALPRs do not discriminate between license plates, every vehicle that drives by an ALPR is fed into the system. In Los Angeles County, 99.9 percent of the APLR license plates do not make a match to a hot list, but the data is stored anyway.

 
The worldwide Covid-19 pandemic has changed everything and that includes criminal activity. Reports are that crime has decreased significantly in Southern California since the stay at home orders went into effect. Not only has the virus considerably diminished the opportunities for crimes such as robbery, burglary, and other crimes where one would expect to see an impact, but it has also had a notable impact on the drug trade and the attendant crime of money laundering. Many of the traditional means used by drug dealers who “wash” the proceeds of their trade have been shut down as a byproduct of the virus.  These disruptions in the money laundering trade have had a supply chain effect, leaving illegal drugs in shorter supply and making them much more expensive in Southern California and elsewhere across the nation.

The white collar crime of Money laundering of drug proceeds is illegal under California law (California Health and Safety Code section 11370.9) and under Federal law (18 United States Code 1956). How does the money laundering of drug proceeds typically work? There are almost as many money laundering schemes as there are dirty dollars but usually the strategy involves moving money through a legitimate business or through a series of transactions that almost work like a foreign currency exchange that coverts one foreign currency to U.S. dollars via complicated intermediary steps.

Money laundering, which  is usually accomplished by running dirty money through a legitimate businesses, say a restaurant or an apparel wholesaler—the latter being a favored way of laundering money in Southern California— has become all but impossible with these businesses forced to close during the pandemic. In years past, when currency transaction controls were not as strict, drug proceeds were often simply shipped as cash back to, say Mexico, and distributed as deposits to bank accounts. Drug dealers, particularly the Mexican cartels favored this method until the Mexican government instituted financial regulations that made this risky. The cartels then picked up the money laundering methods developed by Colombian traffickers by utilizing legitimate businesses to make their dollar proceeds untraceable to the drug traffickers. Now that this money laundering pipeline has been shut off, the dirty money is piling up and the drug traffickers have turned to the old method of packing up drug proceed cash in boxes and sending it across the border. Resorting to the old methods of money laundering have brought back the good old days for law enforcement when drug proceed cash was much easier to intercept and seize. Law enforcement have hauled in huge drug money seizures since the Covid 19 business shutdowns were ordered.

Johnson & Johnson, as American as apple pie and Coca Cola. The American corporation that was founded in 1886 has provided generations of American homes with consumer staples such as baby care products, toiletries, and wound care products….and opioids. Most people associate Purdue Pharma with the opioid crisis that has ravaged parts of this country for years, but Johnson & Johnson also played a huge role in the crisis.

In the mid-1990’s, while the opioid crisis was already taking wing, Johnson & Johnson embarked upon a new business: the cultivation of poppies in Tasmania. Johnson & Johnson scientists genetically modified poppy plants, engineering “super poppies” that produced abundant opiates. Rewarding farmers in Tasmania, where the super poppies were grown, with handsome prices and incentives, such as luxury cars, Johnson & Johnson cultivated a new business through its subsidiaries. The poppies became a boom crop for the tiny island state of Tasmania. And the scientist who discovered the way to genetically modify the poppies was celebrated by Johnson & Johnson. The company gave that scientist the highest science award offered by Johnson & Johnson in the year 2000, “for the Invention of the Thebaine Alkaloid ‘Norman’ Poppy.”

The poppies—grown on thousands of Tasmanian acers– were exported to the U.S. under Drug Enforcement Administration approval. The poppies were then refined by the subsidiaries into oxycodone and hydrocodone powders that were shipped to U.S. pill makers…. such as Purdue Pharma, which become one of the first major customers for the Johnson & Johnson product.

Every criminal case rests on the evidence. That is why the most recent Orange County Sheriff’s Department scandal is so disturbing. Or as on Orange County Public Defender put it: The implications of this scandal are massive. Orange County law enforcement is no stranger to scandal. In recent years, there have been crime lab scandals, informant scandals, and exculpatory evidence scandals.   And now we learn that the more than a few sheriff deputies were failing to follow protocol regarding evidence booking and much worse. This latest scandal could affect thousands of Orange County criminal cases.

An audit conducted on the Sheriff’s Department revealed that over 70% of the Sheriff Department’s deputies failed to book evidence according to the department’s procedure. In some cases, the evidence was booked days, weeks, or even months late and in some cases, the evidence was never booked at all. Another audit revealed that 47% of Sheriff Deputy reports that supposedly included evidence did not—in other words, the deputies lied on their reports. By some accounts, there are 9,000 missing pieces of evidence.

Incredibly, the Orange County Sheriff’s Department has known about this problem for at least two years but kept it under wraps—even apparently hiding it from the District Attorney, although the Orange County Sheriff maintains that the department was not obliged to inform the district attorney. It was brought to light by an assistant Orange County public defender, which prompted an article about the scandal in the Orange County Register. Understandably District Attorney Todd Spitzer is not happy about this, observing that this is part of a larger pattern of “systemic problem or failure” within the Sheriff’s Department. The auditors who discovered this multitude of irregularities euphemistically blamed it on the Sheriff’s Department’s “cultural idleness.” No matter what you call it, this is a big deal.

Four suspects were recently arrested for their involvement in a scam targeting elderly women in Southern California. The scammers would approach older women claiming they needed help cashing what was presented as a winning lottery ticket. The victims were all Latina women and the four suspects conducted their scam mostly in Spanish.

The scammers asked the victims to call a phone number on the ticket for instructions. The phone number was part of the scam and a co-conspirator would pose as a lottery official telling the victim that the ticket holder had to put up a deposit to claim the winnings. The scammer would tell the victim that he or she didn’t have the required deposit and would suggest that the victim put up the deposit and then split the winnings. Of course, as soon as the gullible victim gave the scammer money or jewelry, the scammer fled.

The tactics used to lure these elderly women were, on occasion, appalling.  In one instance, a 76-year-old victim came upon one of the scammers sitting on the ground crying. When the concerned victim sought to comfort the scammer, she was told by the scammer that she had a lottery ticket with a large payout but because she was undocumented, she was unable to claim the winnings. The victim, after falling prey to the entire scam, provided the crying scammer with thousands of dollars in cash and jewelry.

As several dangerous fires rage in California, fire authorities are investigating: Is the fire a result of natural causes (such as a lightning strike), or an external accident or negligence (for instance, a downed power line), or is the fire a result of an intentional act? If a fire is started by an intentional act, it is the crime of arson(Penal Code section 451). If the fire is started by an act of negligence or recklessness, it is a form of criminal arson (Penal Code section 452) that is not punished as severely as intentional arson, although it can become a much more serious crime if someone is injured or dies as a result of the fire. Whether the fire is intentionally set or is a result of negligence, the act of arson always carries with it the hazard that the fire will injure or kill someone.

You probably remember the Holy Fire in Cleveland National Forest last year. In that historic fire, over 23 thousand acres spanning Riverside and Orange Counties burned and 18 structures were destroyed. The Holy Fire is alleged to have been started by a man who is charged with intentionally starting fires in areas around cabins in Holy Jim Canyon, where he also lived. Reportedly, he had ongoing feuds with folks in neighboring cabins.  He may have only intended to disturb (or destroy) his neighbor’s cabins, not to burn 23 thousand acres of forest land, but because his act of starting the fires was (allegedly) intentional, he is charged with intentionally setting the Holy Fire. He in being held in Orange County jail on $1-million bail awaiting jury trial. If someone had died as a consequence of the fire, he would also face murderor manslaughtercharges.

And that is just what the California Attorney General has advised if Pacific Gas & Electric is found responsible for the Paradise Fire in 2018. Eighty-six lives were lost in the Paradise Fire. PG&E didn’t intentionally start those fires, but the allegations are that the fires were started by PG&E’s “reckless operation” of power equipment. You might wonder how a company could be charged with murder. It does seem unlikely, but it has happened before. Those old enough to remember, may recall the Ford Pinto explosion that killed three people in Indiana. It was claimed that Ford was negligent in its design of the vehicle’s gas tank, causing the explosion. Ford Motor Co. was indicted by the Indiana Grand Jury on three counts of reckless homicide. Ultimately, Ford was acquitted after a jury trial.

There are two ways a person can be charged with a crime in California. One is by grand jury indictment; the other far more common method is by a criminal complaint filed by the prosecutor, who represents the People of the State of California. (The People of the State of California as plaintiff, the offender as defendant.) When an individual is charged by complaint, there is often a long list of charges, some seemingly redundant. My clients are often confused as to how the prosecution can come up with a long list of different crimes for the same act.

For example, say John Doe is accused of punching and kicking his wife. She falls to the ground and on all fours she crawls toward the front door to escape her husband’s abuse. As she attempts to open the front door, Mr. Doe hits her on the head with a nearby large glass vase, which shatters causing several lacerations on Mrs. Doe’s scalp. He then drags her away from the front door. After dragging her back inside, he then opens the front door and tells her to get out.

In this scenario, Mr. Doe would likely see several charges filed against him in addition to the domestic abuse offense. If Mrs. Doe’s injuries were substantial enough and the vase he hit her on the head was heavy, he could even face an attempted murdercharge. But at the very least, the Orange County district attorney would charge Mr. Doe with 1) corporal injury on a spouse, with a sentence enhancement of great bodily injury, 2) assault, again with a sentencing enhancement of great bodily injury, and 3) false imprisonment effected by violence.

One of the most common questions I hear from my clients is: “Will my arrest or conviction show up on an employment or other background check, such as for a rental application?”

There is no one database that potential employers or landlords can access that provides all the criminal information about an applicant. Rather, what normally happens when a criminal background check is initiated, is that the applicant’s personal data (including past addresses) will be given to a third-party company that checks the applicant’s background for a fee. The background check can vary considerably between these companies—some offer low cost cursory background checks; some of the more expensive ones will complete a due diligence background check that may include all states the applicant has lived in and federal records. The information in these reports vary in their accuracy.

So, where does the background information come from? Depending on how thorough the background check is, the information is gathered through county court records (usually by a paid subscription service that provides this data to the background check company) and perhaps federal criminal court records.  For sensitive employment positions, such as banking or financial services, the criminal background check will be very thorough.