California Criminal Defense Lawyer Blog

The media has spent much of the past ten days covering the arrest of New York Giants receiver Plaxico Burress on gun charges and the tragedy in India where 125 people lost their lives at the hands of terrorists. (A recent L.A. Times article can be found here) Both bring the discussion of gun control to the forefront of public discourse.

India has a ban on guns, yet terrorists were able to smuggle machine guns into the Taj Hotel while the victims of the attacks, helpless and unarmed, found themselves hostage. Many of the police who manned the hotel’s metal detectors weren’t even armed because of India’s strict licensing requirements. And, there have been extensive reports of frustration over Indian authorities’ decision to sit for hours outside the buildings the terrorists occupied, instead of ambushing the building with a SWAT team to try to save civilian lives.

“Concerned for his safety” Burress allegedly violated New York City’s gun regulations by carrying a concealed handgun and in the process managed to shoot himself in a crowded club last weekend. Would Burress really have been safer trusting the police to protect him? Or, is his arrest significant because he represents an arrogant culture that thinks that they can take the law into their own hands?

Both of these incidents bring to light problems with gun control. But I think embedded in this debate are issues of self defense, the police’s role of protecting citizens, and what the ramifications are when they don’t effectively do their job. Academic research has shown that the police are the most important factor in reducing crime—but, as in the case of the terrorist attack in India, the police can’t always be depended on to act quickly enough.

This country’s foundation was built on notions of a civil society, i.e. that citizens relinquish the right to take aggressive actions to protect themselves to the government and in return, government will step protect their members – such as forming a protective police force and a penal system that punishes those who don’t abide by this social contract. The theory of course is that people cannot be taking matters into their own hands or we would be living in utter chaos. The right to bear arms is arguably the second most important freedom that the founding fathers solidified via the second amendment. When police can’t promise to protect law-abiding citizens like the victims in India, should we be allowing people the right to protect themselves like Burress did? Or are we asking for chaos?

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For most misdemeanor offenses in California, a police officer can only make an arrest of a suspect without a warrant if the offense was committed in the officer’s presence. If a felony is suspected, officers can arrest people based upon witness statements, or where a warrant for the person’s arrest has been issued.

IF I AM ARRESTED, CAN THE POLICE SEARCH ME? The police have the authority to perform a search of a suspect and his immediate surroundings, “incident” to the arrest of the suspect. For example, if the police arrest a person in Irvine who was driving a car, they generally have the authority to search the entire passenger compartment of the car – and will usually also be able to search other passengers for weapons. The constitutional justification for this is found in the 4th Amendment of the U.S. Constitution that protects citizens from unreasonable searches and seizures by the government. Then, if the car is impounded, the police may perform an “inventory search” of the entire car– including the contents of the trunk.

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An alleged drug dealer’s five-year prison sentence was overturned last week and charges dismissed after Los Angeles County prosecutors conceded that police included false information in an arrest report to protect the identity of a confidential informant. The Los Angeles Daily News reports the District Attorney’s office told a judge that while the evidence overwelmingly supported Michael Edward Baker’s drug conviction, the conviction should be overturned because in an attempt to protect a confidential informant, there “were certain statements made in a police report that weren’t accurate.”

The inaccuracies were discovered after Baker’s defense attorney found a sworn declaration by a federal agent that contradicted the version of Baker’s arrest given by Torrance law enforcement. Torrance officers contend that they fell upon Baker last year when they were patrolling near a 7-Eleven store and noticed that he matched the description of a suspect in a robbery at the store earlier in the day. They say they stopped him, found PCP in his car and arrested him on drug charges.

But according to the federal agent, the Torrance police set Baker up. The agent — who was part of a task force investigating Baker — said that Torrance police used one of their informants to call Baker and arrange a drug deal near the 7-Eleven. When it became clear that the CI’s identity was in danger of being uncovered, Torrance police concocted a story to protect the informant.

It is entirely legal for police to use an informant to set up a drug deal with a targeted criminal, however officers lying to protect the informant’s identity is illegal. The Los Angeles D.A.’s office is considering whether they will file criminal charges against the lying cops.

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The Los Angeles Times reports that California’s Proposition 5—aka the Nonviolent Offender Rehabilitation Act (NORA)–was defeated by a margin of roughly 60 percent to 40 percent. As I discussed in an earlier post, the measure, which drew the attention of drug policy advocates nationwide, was regarded by some as “the biggest sentencing and prison reform in United States history” but was condemned by national drug-court advocates and California law-enforcement groups.

NORA called for more funding for addiction treatment and less imprisonment of drug offenders. Those supporting NORA stressed that it would increase funding for drug courts, but critics complained that NORA would have limited the ability of drug-court judges to jail drug offenders.

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That’s the question the U.S. Supreme Court was considering when they heard oral arguments in Oregon v. Ice— a case adressing whether under Apprendi v. New Jersey (2000), a sentencing judge violates the Sixth Amendment by imposing consecutive sentences based on a fact not found by the jury or admitted by the defendant. Do I think that the Supreme Court will find that consecutive sentences amount to more severe punishment, so the jury must find the facts necessary to justify them?

For some context, in 2000, the Apprendi decision changed the face of Sixth Amendment implications of criminal sentencing when the U.S. Supreme Court mandated that any facts that lead to a higher sentence–if they go beyond the facts that justified a guilty verdict–cannot be decided by a judge, but must be determined by a jury. Essentially, the Court held that this is a critical aspect of the right to be tried by a jury and since that ruling, the jury’s role in determining punishment have been significantly increased by sentencing schemes and legal precedent from lower courts.

The case before the High Court this term (Oregon v. Ice) involves Thomas Eugene Ice, an Oregon man convicted of two counts of first-degree burglary, and four counts of first-degree sexual abuse. Oregon Prosecutors claimed that, on two separate occasions, he entered the apartment of a family in the complex, went into an 11-year-old girl’s bedroom, and each time touched her breast and vagina.

As a result, Ice faced trial on six separate offenses–the burglary offenses and the molestation counts–and he was convicted on all six. (Under Oregon law, sentences imposed for multiple crimes must be concurrently served, unless the judge finds that the offenses did not occur as part of the same course of conduct). In Ice’s case, the judge found that the convictions for the two burglaries and four sex crimes arose out of separate incidents, and thus ordered consecutive sentences, totaling over 28 years, which was the result of requiring that three of the sentences be served back-to-back.

From what legal analysts are saying and the types of questions the Justices were asking the parties at the oral argument, it appears that the Court will continue to require juries to make the factual determinations to justify a consecutive sentence. It is likely though, that California Judges will maintain that this ruling doesn’t apply to California sentences because of our sentencing structure and the District Courts will be the ultimate enforcers of the U.S. Supreme Court’s ruling.

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