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You may not know that your vehicle records and stores a large assortment of time stamped data that can range from the opening and closing of the vehicle’s doors, the speed at which the vehicle was driving at any given date and time, voice commands stored in the onboard bluetooth or hands-free systems, and a lot more. Unless you are driving a clunker, chances are good your vehicle has this “black box” embedded inside.  Manufacturers started installing these vehicle blackboxes in the mid-1990 and the technology is now quite advanced.  If you have ever been in a newer model Tesla, you have seen the future of this technology. Everything that controls the Tesla is done through your smart phone, from opening doors, to starting up the car and the control panel that drives and navigates the car.  This technology has become so sophisticated that the police are able to solve crimes using the digital evidence stored in by our cars.

The technology has helped the police solve many crimes, including murder. For example, in Michigan, the police were able to solve a two-year old murder after the victim’s stolen vehicle was found. Time-stamped recordings of voice commands around the time the victim went missing were recovered from the 2016 Chevy truck. That led police to identify the voice, which was not the victim’s, and eventually led to the arrest of the murderer.

In another case here in California, a man was driving his Tesla when he ran straight into a car that was pulling out of a driveway. The driver who pulled out of the driveway died from the impact. The Tesla driver told the police he was driving 55 mph; the speed limit was 45 mph. While the other car may have been violating the vehicle code by pulling out under unsafe conditions, the Tesla driver was still on the hook because he was speeding. He was facing a possible misdemeanor manslaughter charge. But then the police got a search warrant to pull the data from the Tesla. They were able to establish that the Tesla driver wasn’t going 55 mph, but 78 mph!  Now the Tesla driver is facing a felony manslaughter charge, a very serious charge.

The California Legislature had a busy year in 2020 as it concerns criminal laws. Several significant changes in criminal law will go into effect at the beginning of 2021. I will discuss some of those changes in future blogs but for this post, I want to focus on AB-3234.

AB-3234 was signed into law and is codified in the Penal Code at section 1001.95. Effective January 1, 2021, it portends sweeping changes in the way misdemeanors are prosecuted in this state…or maybe a better way of stating it is “not prosecuted.” For all but a few misdemeanor crimes, this new law takes the prosecution of misdemeanors out of the prosecutor’s domain and allows the court to order a diversion, rather than prosecute the crime. For almost all misdemeanor crimes, the defendant can request the court order a diversion, which if granted, allows the defendant to avoid any prosecution at all. In fact, if the defendant successfully completes the terms and conditions of the diversion, the crime is as if it never happened because the arrest for the crime will be deemed to have never occurred.

The misdemeanor crimes that will not qualify for diversion are few. They are Penal Code section 290 crimes (crimes that require registration as a sex offender), sexual assault (Penal Code section 273.5), domestic violence (Penal Code section 243(e)), and stalking (Penal Code section 646.9). This is a rather odd list when you consider that other misdemeanors such as elder and child abuse, DUI, misdemeanor assault (other than domestic violence), just to name a few, are not on the list of excluded misdemeanors. (There is a push to amend the law to include DUI as one of the excluded offenses, but for now, it is eligible for diversion under the new law.)

The California Department of Justice makes crime statistics available to the public that can be an interesting read for a legal nerd such as myself. Even if you aren’t a legal nerd, I think you might find the data noteworthy. In the “Crimes & Clearances” statistics, we can see the raw numbers of various crimes committed by state and by each individual county and even breakdowns by city and precinct.

Taking a look at Orange County only for the years 2010 through 2019, one crime stands out: rape.  While virtually every other category of crime, from homicide to robbery, to arson and other crimes went down or remained steady over the ten year period, rape has shown steady and notable increases (from the high 300’s to the low 400’s reported rape crimes in 2010-2013, suddenly jumping to 650 in 2014 and since then registering in the high 700’s to the low 900’s). This could reflect an increase in reported rapes, or it could reflect a real increase in rape.  The same pattern held true for the entire state.

While this news is distressing, most other crimes have held steady or declined slightly. On the other side of the rape statistics is arson. Arson crimes decreased substantially between 2010-2019. Like rape, there could be alternative explanations. For example, more robust wildfire seasons where fires are often started by individuals who are later charged with arson could account for the differences.

When police officers encounter an individual, whether as a result of a traffic stop, arrest for suspicion of a crime, even just a detention based on a suspicion, or other encounters, the officer may complete what is called a  field interview card on the individual. These cards are most often used by the officer when the individual is suspected of being a member of, or affiliated with, a criminal street gang.  If the police officer suspects gang affiliation or membership, the individual’s name, demographics, visible tattoos, suspected gang insignia or clothing, and so on is entered on the  field interview card, which eventually ends up in the statewide CalGang database.

There have been many documented abuses of this practice. Among the most egregious abuse of this practice is the entry of false information about the individual that results in the individual being added to the CalGang database. Having your name on this database is not inconsequential. When an individual’s name is entered into this database, that person’s name shows up at every subsequent law enforcement encounter as a suspected gang member. This can have consequences even on a minor traffic stop. Individuals on this database are more likely to be a suspected by the officer and are often suspected in criminal investigations.

Recently at least 24 Los Angeles Police Department officers have been identified by LAPD for suspicion of falsifying information on field interview cards. Six of those officers now face criminal charges, the others have been assigned to desk duty or put on leave. They may yet be charged. These officers allegedly filled out field information cards identifying individuals as admitting gang membership when in fact those individuals made no such admission, and some outright denied it. The falsifications were discovered when the police bodycams were viewed relative to these particular contacts and field identification cards. An officer’s false report about an individual is a violation of that person’s due process rights and as I previously blogged about, it can haunt a person for years as a suspected gang member, when in fact there was no evidence to support the suspicion.

As an Orange County criminal defense attorney, I often get calls from individuals who were previously convicted of an offense that resulted in a ban on that caller’s right to own or possess a firearm. The gun laws in this state are confusing. No wonder a person convicted of a crime in California may be completely confused about his or her 2nd Amendment rights post-conviction. Under California law, all felony convictions and many misdemeanor convictions not only punish the offense but bar the defendant from owning or even possessing (for example, borrowing a gun from a friend) any firearm. That means even hunting is off the table. In the case of a felony conviction, this prohibition is for life! For most affected misdemeanor convictions, the prohibition is for ten years.

MISDEMEANOR CONVICTION

Not all misdemeanor convictions carry the firearms ban. However, many do. This includes all misdemeanor domestic violenceconvictions and restraining/protective order violations. Also included are wobbler crimes that even when convicted as a misdemeanor, the defendant loses his or her gun rights. A “wobbler” is an offense that can be prosecuted either as a misdemeanor or a felony. Wobbler offenses that will result in a firearms ban, even if convicted as a misdemeanor, include assault, threatening a public officer or official, most criminal threats, stalking, battery, and all misdemeanors that involved a gun, such as negligently discharging a firearm or brandishing a weapon.

In California, there are statutory procedures that offer criminal record relief, most commonly through one of the following:

  • Petition for Dismissal (Expungement): A person who was previously convicted of an qualifying misdemeanor or felony, and who has successfully completed their sentence, is usually eligible to petition the court to dismiss the conviction.
  • Certificate of Detention: When a person is arrested but where charges were never filed as a result of that arrest, the arrestee may petition the arresting agency for a certificate of detention, which in effect, erases the entire arrest record and turns it into a investigatory detention.

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.