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A New Zealand couple’s vacation in Southern California ended in tragedy. The couple, a prominent businessman in New Zealand and his wife were visiting Newport Beach’s iconic outdoor shopping mall Fashion Island. There they were accosted by two men brandishing guns. Perhaps the two men didn’t intend their robbery to end in murder, but it did. One of the men put a gun to the businessman’s head while another dragged the businessman’s wife to into the street as he tried to pull away the shopping bags she was carrying from her. Another accomplice, the getaway driver pulled his car toward the man trying to grab the shopping bags. In the process, the getaway driver ran over the woman and dragged her body across the parking lot resulting in the woman’s death.

While not all murders are capital murder cases (that is, a murder charge eligible for the death penalty), the circumstance here makes the crime a potential capital murder case and indeed, all three men have been charged by the Orange County District Attorney with capital murder.

You may wonder how all three could be charged with capital murder when there did not appear to be an intent to murder the woman and her death was caused only by the driver.  The answer is special circumstances. The men are all charged with murder in commission of a felony (robbery) which is a special circumstances charge. This charge does not require the intent to commit murder but only that the underlying felony was intended. Furthermore, the special circumstances murder charge applies to anyone who aided or abetted the underlying crime that resulted in the murder.

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A law enforcement officer can perform a temporary investigative detention of an individual only when the officer can articulate specific facts, which considered in light of the circumstances, provides an objective reason to believe the individual is engaged, or about to engage, in criminal activity.  (A detention occurs when an individual does not feel that he or she is free to leave, as contrasted with a consensual police encounter in which a person can just walk away.)

Note that the officer’s reasons for believing a detention is warranted is an objective standard—the officer’s assessment must be such that a law enforcement officer presented with the same circumstances would reasonably suspect possible criminal activity. Thus, an officer who detained an individual on the suspicion that the individual was engaged in criminal activity simply because that individual is walking in a high crime area would not be objectively reasonable. But if that individual is also observed by the officer in what appears to be a drug transaction, a detention might be objectively reasonable.

Lawful detentions have often been a bone of contention between defense attorneys and the prosecution, and the courts have often taken a fairly hard line on the subject. For example, the courts have held that a lawful detention can be found simply on an individual’s attire, demeanor, evasiveness and other ambiguous circumstances. Whether a detention is lawful or not is important because a lawful detention often leads to a search of and if the officer discovers a crime (for example, find drugs or a weapon on the individual), any subsequent charges can be dismissed if the defendant’s criminal defense attorney files a successful motion to suppress evidence on grounds that the detention was unlawful.

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The Fourth Amendment provides that law enforcement cannot conduct a search of property or person without a valid warrant. Any warrantless search is unlawful and should law enforcement arrest you pursuant to that search, the arrest itself becomes unlawful.

However, there are exceptions where a warrantless search is permitted under the law. One of those exceptions is consent to the search. As I have discussed elsewhere, you are not required under the law to consent to a search, and it is usually a good idea not to. Unfortunately, consent searches are quite frequent because people are often frightened and intimidated by the officer’s request. But even a consent search may be unlawful if consent is not voluntarily given.

If you consent to a search and you get arrested due to contraband found in the search, the arrest is presumed lawful because you consented to the search. But what if you consented because the police “strong-armed” you into allowing the search or threatened you or acquired your consent by deception? Whether the consent is voluntary or not is oftentimes difficult to determine, but it is the prosecutions burden to show in light of the circumstances that the consent was voluntarily given.

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With the recent death of OJ Simpson, we are reminded of the police pursuit of OJ’s Bronco through Los Angeles and Orange Counties. While the OJ chase was a slow-speed chase, many police pursuits are high speed and dangerous. Some of these chases have ended in fatalities. Because they are so dangerous, police often terminate the pursuit in the interests of public safety. Fortunately, high speed chases will soon be a thing of the past.

In a marriage of low tech and high tech, police cruisers are being fitted with GPS launchers. The launchers, mounted to the front of police vehicles, hold GPS darts that when deployed stick to the target vehicle. The police need to chase a vehicle only long enough to be within range to deploy the dart. The dart is fired using laser assist. The dart’s sticky substance allows the dart to stick even if the target vehicle is wet or dirty.  Once the dart sticks to the evading vehicle, the police can track the vehicle’s movements and location. Currently the use of the darts is somewhat hampered because they have a limited range (about 20 to 30 feet).

Is this a violation of the Fourth Amendment warrantless search and seizure prohibitions? In 2012, the United States Supreme Court ruled that law enforcement serendipitously placing a GPS tracking device on a vehicle without a warrant was an unlawful search under the Fourth Amendment.

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Many of us do our retail shopping online. Often a Google search helps us to identify the best price for the product we are shopping for. How many times have you searched for a product and found the product being offered on a no-name retail platform or Craigslist or Ebay or even Amazon for a price that is far below what the big retailers are charging. Score!

Yes, you may have scored but you may not realize it, but you might be buying a product from a “fence.” A fence is a person who sells stolen merchandise. The buyer of that merchandise can be charged with “receiving stolen merchandise.” Now I am not suggesting that if you buy a product at a fantastic price on the web you have exposed yourself to a criminal charge; one of the essential elements of receiving stolen merchandise is knowledge that the merchandise is stolen. But, if you are looking for the best price on the internet and finding products at prices that may be too good to be true, consider that you may be buying stolen merchandise.

This is far more common than people realize.  According to the California Attorney General, these types of operations are not unique. Late last year, authorities arrested a San Diego County woman who was running a huge retail theft ring. Huge as in an estimated $8M worth of merchandise stolen.

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Every year the FBI publishes an extensive analysis of crime data in the U.S. The crime data for 2022 was recently published and shows a mixed picture. While violent crimes and homicides decreased slightly from 2021, the rates are still high when compared over the past ten years of 2012-2022.

The rate of violent crimes for the U.S. took a significant upswing in 2020, but has declined since then, although the rate remains high at 380.7 violent crimes per 100,000 people. (For comparison, 2014 had the lowest violent crime rate in the past 10 years at 361.6 per 100,000.) California was an outlier with an increase in overall violent crime in 2022. In fact, California’s overall violent crime rate is at its highest rate since 2008. While murder was slightly down in California, there was a significant increase in aggravated assault, which likely contributed to California’s overall violent crime statistics.

Homicides nationwide saw a slight decrease in 2022, although the rate is still high as compared to the years 2012-2019. In 2020 and 2021, homicides increased from 5.1 per 100,000 people in 2019 to 6.5 and 6.8 in 2020 and 2021 respectively. The 2022 rate saw a slight decrease to 6.3. California followed this trend with a 5% decrease in homicides in 2022.

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You might recall a news item from 2021 when a laser pointer was aimed at a Huntington Beach Police Department helicopter investigating a fatal hit and run accident. These types of dangerous pranks are not new to police department arial surveillance and investigations. In this case, the police were able to capture an image of the man pointing the laser by utilizing the helicopter’s thermal camera. The officers in the helicopter called in for an on-the-ground police response to investigate.

Patrol officers responded to the apartment building where the image of the laser pointing suspect was located and identified a man they believed to be the suspect standing on a balcony of a second floor apartment. When the police contacted a resident inside that apartment, a woman, they determined that she lived there with her boyfriend, who police believed was the suspect. After that encounter, the suspect appeared and stepped outside the apartment onto the landing. The officers led the suspect downstairs where they spoke with the suspect. The officers detained the suspect and handcuffed him to a mailbox.

While speaking with the suspect, another officer went back to the apartment and asked the suspect’s girlfriend if they could search the apartment for a laser pointer. She consented. As she was signing the consent form, the suspect yelled up to his girlfriend to not let the police in or talk to them. He also yelled that she should talk to the police outside There was no dispute that the officers and the suspect’s girlfriend heard the suspect.  The officers searched the apartment and found a laser pointer with the suspect’s name etched on it. The suspect was arrested.

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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
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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.

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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.

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