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.

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.

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.

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.

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.

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.