Articles Posted in Criminal

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California Penal Code section 3055 provides that inmates who have been incarcerated for 20 years or more and are over the age of 50 or those incarcerated for 25 years or more and are over the age of 60 are eligible for what is called “Elderly Parole.” Even violent sex offenders and child molesters are eligible. The only inmates not eligible are those who were sentenced to death or life in prison without the possibility of parole. Those under 60 years of age are not eligible if they are serving a sentence for a second or third strike under the three strikes law. However, after reaching the age of 60, those inmates are also eligible.

An inmate who reaches eligibility for this program is entitled to a parole hearing. Among other factors, the Board of Parole Hearings considers the early release applicant’s physical condition, mental capacity, and the inmate’s social adjustment or lack thereof while incarcerated.  (California Code of Regulations, title 15, section 2449.43.)

The Elderly Parole program as it currently operates became effective on January 1, 2024; however elderly parole programs have operated in California for a decade.

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Here’s a recipe for the stupid criminal files:

Fill large packages – about watermelon size – with methamphetamine. Form each package into a watermelon shape and cover each package with a wrapper that is printed to look like a watermelon. Oh, don’t forget to slap an agricultural sticker on each package. Load the packages up in a watermelon truck from Mexico bound for California. What could go wrong?

In the annals of disguises that didn’t work, a truckload of 1,220 packages of methamphetamine wrapped in plastic painted to look like watermelon (well, sort of), was seized among real watermelons as the truck crossed from Mexico into the US at the Otay Mesa crossing. The total amount of methamphetamine seized weighed in at around 4,500 pounds. The haul is estimated to be worth $5 million.

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You’ve been stopped by the police for speeding. Can the officer search your vehicle without your consent? The answer is yes and no. Yes, the officer can search your vehicle, without your consent, if he or she has probable cause to believe your vehicle contains evidence of a crime. This is one of the so-called automobile exceptions to 4th Amendment protections against unreasonable search and seizure.

Let’s say the officer stops your vehicle and as soon as you roll down the window, a strong waft of cannabis smoke hits the officer’s olfactory senses. While recreational cannabis is legal in California, smoking it while driving is not. In this scenario, the officer can establish probable cause—that is a reasonable belief based on the fact of the strong smell of burning cannabis in the vehicle—that there is evidence of crime in the vehicle, to wit: burned cannabis.

Let’s consider another scenario. The police encounter a group of known gang members in a parking lot. Several individuals are arrested for weapons possession. The car belonging to one of those individuals was parked in the parking lot where the police encounter occurred. Even though this individual (here, the defendant) was not in his car at the time, the police surmised they had probable cause to search the vehicle. And indeed, the law permits the police to search an unoccupied parked car if “there is a fair probability that contraband or evidence of a crime will be found in a particular

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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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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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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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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.

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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.

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