Articles Posted in Criminal

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.

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

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.

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.

The mental health diversion statute (Penal Code section 1001.36) was amended in the 2021-2022 Legislative Session to encourage the courts to make use of mental health diversion.  The amended law became effective on January 1 of this year.

Penal Code section 1001.36 was enacted in 2018 to address the fact that many defendants who cycle through the criminal justice system suffer from a mental illness or disorder. The purpose of the statute was to allow these defendants to petition the court to divert adjudication of their criminal case and allow the defendant to enter a regimented treatment program, as ordered by the court. Not all offenses are eligible and not all mental disorders will qualify, but the statute is broad and includes many mental disorders and crimes.  If the treatment is successful, the court will dismiss the charges against the defendant.

The law recognizes that often crimes are committed because individuals who commit crimes suffer from a mental disorder. For example, someone who is in and out of the justice system for theft might suffer from a drug addiction and the reason he or she constantly steals is to pay for that habit. Section 1001.36 attempts to address the underlying reasons for the defendant’s entry and re-entry into the criminal justice system. Another example might be a defendant who is charged with assault because he has bipolar disorder, but he has not been treated for this condition.

You are hanging out in a park with a couple of friends. Two police officers show up and ask you and your friends what you are doing in the park. You walk away, which is within your rights.  If you do attempt to walk away and the officers prevent you from doing so, you are legally detained. Or you don’t walk away because you believe you are not free to walk away due to an articulable intimidating presence of the officers. In either case, you are being detained.

You may ask the officers: “Am I being detained?” and, indeed, you should. It is important to establish whether you are detained on not. (If the officer says you are not being detained, then you are free to walk away.) The reason it is important to establish whether you are detained or not is because of what may come next. If you end up getting arrested subsequent to the detention, you may be able to suppress the evidence if the court determines that the detention was unlawful.

You find out from the officers that they received a report of suspicious activity in the park and that you and your friends fit the description of the individuals who are suspicious. In this case, or under other circumstances where an officer can establish reasonable suspicion that you are engaged in or about to engage in criminal activity, the officer can legally detain you for a brief investigation. This is known as a Terry stop, named after the Supreme Court case, Terry v. Ohio (1968) 392 U.S. 1., where that court held that an officer may conduct a brief investigative detention when there is reasonable suspicion that the individual stopped is armed or where the officer suspects criminal activity is afoot.

Not long after the invention the Model T, people in the U.S. fell in love with their cars. Nowhere was the car culture more celebrated than in California. (Perhaps you recall the hit 80’s song “Walking in L.A.” The chorus: “Walkin’ in L.A., nobody walks in L.A.”.) Back in the day, street (drag) racing was popular, and dangerous. The “sport” has been celebrated in iconic movies and in popular lore. Street racing remains a major concern for law enforcement in California and it is even more dangerous now. Not only is there street racing on our roads and highways, but there are sideshows, often in parking lots, and street takeovers.

While sideshows are not new, they have been increasing in popularity in Orange County, and indeed, all over the country. Sideshows and street takeovers involve exhibitions of speed with drivers performing stunts such as drifting, donuts, and burnouts. These exhibitions take place in parking lots or on city streets and highways. The most brazen of these stunts is what is known as “ghost riding,” where the driver exits a moving vehicle and dances around it before hopping back in. Some of these exhibitions involve hundreds of vehicles and sometimes multiples of that as viewers. Thousands of these events take place every year in California. According to the California Senate, the California Highway Patrol responded to almost 6,000 calls involving speed contests or sideshow exhibitions in 2021.   The National Highway Traffic Safety Association (NHTSA) links many fatal crashes directly to this type of risky driving.

In 2020, the California Highway Patrol initiated an effort, Communities Against Racing and Side Shows, to address these dangerous, and unfortunately popular, driving exhibitions. Identifying sideshows, street takeovers, and street racing as a major cause of vehicular deaths and injury, the CHP launched this campaign to focus on the issue with the goal of decreasing these tragic outcomes. Along with enhanced speed enforcement, CHP has created task forces with local law enforcement and social media promotions on the dangers of these driving behaviors.

No doubt you have heard the news that Alec Baldwin is to be charged with involuntary manslaughter after fatally shooting a cinematographer on set. I won’t recount the alleged series of events leading up to this charge as most everyone is familiar with the story. What is important to know is that Mr. Baldwin was handed the gun on set and according to Mr. Baldwin believed it was not loaded with live bullets. In other words, according to Mr. Baldwin, the shooting was, though tragic, an innocent mistake.

After the incident, Mr. Baldwin was questioned by detectives. He was cooperative and eager to help the investigation, voluntarily answering their questions.  Before his sit down with the detectives, he was read his rights, which included the right to remain silent, his right to have an attorney present, and the admonition that anything he told the detectives could be used against him in a court of law. Mr. Baldwin confirmed with the detectives that he was not charged with any crime and then proceeded to “spill the beans.”

He told all because he wanted to help and he honestly believed he was not guilty of any crime, since the shooting was an obvious mistake. As Mr. Baldwin and the detectives knew, guns are used all the time on movie sets, there are special experts on set, called armorers, whose job it is to make sure the guns are either not loaded or loaded with blanks. Mr. Baldwin explained to the detectives that when the armorer handed him the gun, she told him it was “safe” but asked him if he wanted her to double check. Having never had a problem with a “hot” gun on set before, and this being routine, Mr. Baldwin told the armorer, “I’m good.” This seemingly innocent statement to the detectives is what led to Mr. Baldwin being charged with involuntary manslaughter: this statement indicated that Mr. Baldwin was criminally negligent because he had a responsibility to check the gun before firing it on set.