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Sometimes a person arrested for a crime will swear he or she was nowhere near the location when the criminal incident took place., but the prosecution will allege otherwise…with evidence to prove it. That evidence: tracking of the defendant’s cell phone. Even if the defendant wasn’t using his or her cellphone at the time, the cellphone sends data to cell towers, or more commonly these days, the GPS system embedded on most cellphones does the work. All the police need is the defendant’s cellphone (assuming he or she was carrying it at the time of the alleged crime) to find the defendant’s location at the time. But what if the cellphone, say, disappeared? The authorities can still get the information from the cellphone service provider.

In California, the state authorities need a warrant (or the cellphone owner’s consent) to search any cell phone data, but that isn’t true in all states and it isn’t the case for federal crimes. So even if an individual is suspected of a crime in California, but it is a federal crime being investigated by federal authorities, those authorities do not need a warrant to search historical data held by the suspect’s cellphone service provider.

The Fourth Amendment to the United States Constitution guarantees that every person in this country is secure from unreasonable searches and seizures. How “unreasonable” is defined is the subject of many a treatise but for purposes here and ignoring the enumerated exceptions for the moment, if there is no warrant, the search and seizure is considered by law to be “unreasonable.” How would the warrantless search of historical cellphone data as recorded by the cellphone service provider fit into the cellphone owner’s Fourth Amendment guarantee?

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ANGER MANAGEMENT

Many violent crimes have one common variable: anger. As a criminal defense attorney in Orange County, I have witnessed the role anger plays in violent crimes from domestic abuse to assault to murder. While most people are able to control their feelings of anger to some degree or another, those who commit violent crimes often do so because they do not have the ability to control their anger. While there is certainly a multitude of variables that plays into any violent crime, anger is almost always one of them. And according to an analysis conducted by psychiatrists at Oxford and Maastricht Universities, when anger is combined with impulsiveness, there is a substantially increased risk of a violent outcome. But we don’t need studies to tell us what we already know: many who commit violent crimes have a problem with uncontrolled anger.

That is where anger management comes in. One of the most common exhibitions of uncontrolled anger that ends in arrest is domestic violence and child abuse. A person convicted of either one of these offenses in Orange County will surely be required to attend anger management as a part of the sentence. The defendant so ordered would be wise to take these classes very seriously. Why? A felony domestic violence conviction is the single greatest predictor of a future violent crime. Domestic abusers, if they cannot get their anger under control, will often abuse again…. or worse.

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Last week I wrote about computer-assisted bail decisions. There is something even bigger afoot: a bill before the California Legislature—California Money Bail Reform Act of 2017—would end bail altogether for a wide array of charged offenses. Even when a judge grants bail, the offender often can’t pay it. This results in a huge number of individuals who are incarcerated even though they have not been convicted of any crime. In effect, they are incarcerated because they are poor—or at least, too poor to pay the bail bill. The California Money Bail Reform Act of 2017 would end excessive bail amounts for most misdemeanors and some felonies.

Consider that the median bail amount ordered in California is $50,000. Even with the services of a bail bondsman, the defendant, or his or her family and friends, must come up with $5,000 to make bail. This is no small amount, especially if you are poor. And it means that a defendant unable to make bail will probably lose his or her job, with the cascading consequences of a job loss. Seems as though the bail system is pretty unfair to poor people and that is one of the primary reasons for the introduction of this bill. And if you think this affects only a small number of people, you would be wrong. According to the Public Policy Institute of California, over 60 percent of inmates incarcerated in county jails across the state are there awaiting trial or sentencing, that translates into 46,000 incarcerated individuals on any given day. Most are there because they couldn’t afford bail. Not only does this affect the individual who couldn’t post bail, but his or her family too.

In reality what this creates is a two-tiered system. One for the reasonably well-off and one for the not so well-off. If a person accused of a crime—even a very serious crime—has enough money to make bail, he or she will usually be granted freedom on bail. If a person is too poor to make bail—even for a minor crime such as a misdemeanor—he or she will lose the freedom to return home to family and work. In both cases, the alleged offender is innocent until proven guilty but one is free the other is a prisoner. What justice is there when it takes money to buy your freedom?

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With the recreational use of Marijuana now legal in eight states including California and its medical use legal in many more states, it might be time to revisit Reefer Madness. We laugh at that 1936 film that claimed marijuana created psychotic addicts but there may have been some truth in that old movie. While there is no evidence that “the burning weed with its roots in hell” as marijuana is depicted in Reefer Madness causes users to become violent or insane, there is substantial evidence that marijuana usage can increase the risk of developing schizophrenia and other psychotic disorders.

The risk is particularly pronounced in adolescents who have a genetic susceptibility to schizophrenia. In a study conducted at the Sackler School of Medicine at Tel Aviv (Israel) University, researchers conducted experiments on mice that had a mutant gene indicating a genetic susceptibility to schizophrenia and on a control group of mice that were not susceptible. The mice were there exposed to THC. After exposure, the schizophrenia-susceptible mice exhibited behavioral and biochemical brain pathologies indicating a schizophrenic episode, while no similar indications presented in the non-susceptible mice. I am simplifying the research and findings but the upshot is that the researchers found that the clinical representation mimics a schizophrenic “first episode” in humans.

Now you might think, as I did, that this is one study and it was done on mice. But other studies, independent of the one conducted at Tel Aviv University, have confirmed these results. At Bristol University in England, researchers found that THC disrupted the brain activity in rats that is responsible for memory and decision-making leaving the rats no longer able to navigate a maze. The areas of the brain affected in this study are also the areas of the brain implicated in schizophrenia. The authors of the study, which was published in the Journal of Neuroscience, believe that there is a connection between abuse of marijuana, which causes the brain disruptions, and onset of schizophrenia. One U.K. study even estimated that if marijuana use were eliminated in the U.K., schizophrenia would decrease by 8%.

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On November 8, 2016, California voters passed Proposition 57, The Public Safety and Rehabilitation Act of 201, by an overwhelming majority of 64%. This proposition contained two key provisions:

1) It makes certain non-violent felons eligible for immediate parole and

2) It requires a court hearing before a juvenile can be tried in adult court.

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COMPUTER-ASSISTED BAIL HEARINGS

When a person is arrested and held in custody, his or her first appearance before a judge will be in what is called an arraignment.   Under California law, the defendant must be afforded an arraignment within 48 hours (not to include weekends or holidays). At the arraignment, the judge will determine whether the defendant should be released on bail and, if so, the judge will set the bail amount. Some defendants are released on their own recognizance, usually when the alleged offense is not serious. Most defendants are allowed to post bail at an amount set by the court, which depending on the crime or crimes charged may be in the millions of dollars but is often in the tens of thousands of dollars (for which the defendant typically uses a bail bondsman and pays a percentage of the bail amount). For some defendants, the courts will deny bail. When the court denies bail, the defendant who is legally innocent (innocent until proven guilty) will likely be incarcerated until trial. It happens sometimes that a defendant denied bail spends months, even years, in jail only to be found not guilty of the crime by a jury. On other occasions, it goes the other way: the judge releases a defendant on bail who then skips bail or commits another crime while released.

In California, all alleged offenses, including murder, are eligible for bail (except murder with special circumstances). It is left to the judge’s discretion whether to grant bail, usually after hearing brief arguments from both the defense and the prosecution. But a judge, as experienced as he or she may be in making this call, is a human being with human biases and prone to human error.

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Legislature Enacts Post-Conviction Relief to Remove Potential Immigration Consequences After a Penal Code Section 1000 Plea

Last week I wrote about the immigration consequences that may attach to an “expunged” conviction. This week I offer better news. The California Legislature has addressed the immigration consequences that attach to certain convictions and will offer relief to some noncitizens who may be facing deportation due to a previous conviction on a deportable offense.

The first of these Legislative remedies concerns those who have pleaded guilty under a deferred entry of judgment as set forth in Penal Code section 1000 et seq. When a person is arrested on a first-time non-violent drug offense in California, he or she is often given the opportunity under this section to enter a plea of guilty, with that plea being “suspended” by the court and ultimately dismissed by the court if the defendant successfully completes a drug rehabilitation program. However, as with the other California statutes that provide for dismissal of a prior conviction, the federal government considers a deferred entry of judgment and dismissal under Penal Code 1000 rehabilitative relief only and it is, as far as the federal government is concerned, still a conviction with the same liabilities for a noncitizen for immigration purposes.

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Many people who have been convicted on a misdemeanor charge or certain felonies for which they were not sentenced to prison can, after certain conditions are met, apply to the court for what is commonly called an “expungement” of the conviction. This relief is available under several statutory schemes, the most common being Penal Code section 1203.4. Referring to this relief by the term “expungement” is a misnomer because the conviction is not entirely expunged. But since everyone calls it an expungement, I will use that term here also.

When a defendant who has completed probation, or is otherwise discharged from probation, he or she may apply to the court to set aside the verdict of guilty and order the conviction dismissed. I discuss how this process is accomplished here. If the court so orders, the defendant is relieved of the penalties and disabilities resulting from the conviction and no longer carries the many burdens of having a criminal conviction on his or her record. For example, the former defendant no longer has to report the conviction on a job application (with some exceptions) and will reflect favorably when applying for a professional license.

However, many people are surprised to learn that the record of the offense still appears on the person’s Department of Justice criminal history record, although it now shows as dismissed. Furthermore, the expunged conviction still imposes some burdens upon the former defendant. For example, the offense must be reported if the former defendant is applying for certain jobs or wants to enter a career, which require licensing or are public service jobs, and the expungement will not relieve the former defendant of any firearm possession restrictions that were part of the conviction.

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Way back in 1971, President Nixon declared a “War on Drugs.” The federal drug control agencies were dramatically beefed-up, the DEA was created (1973). Quaint as it seems now, much of the effort was directed at marijuana. Back in those innocent days, marijuana was considered a major drug problem. By the 1980s the use of cocaine and its cousin, crack, became a major problem in this country. Cocaine usage increased by 700% just in the years 1978-1984. Many believed that marijuana was a gateway drug to these harder substances.

By the early 80’s, President Reagan, initiated get tough laws on drugs. “Zero tolerance” initiatives were the trend. It was during the 1980’s that this country’s prison began to fill with drug users. From 1980 to 1997, the number of people incarcerated for nonviolent drug offense increased eight-fold! The DARE program, an off-shoot of the War of Drugs was initiated in the 1980’s by Los Angeles Police Chief Daryl Gates, who was actually quoted as saying that casual drug users should be shot. (I’m sure he didn’t mean that literally but it sure did fit in with the “war” theme.)

By the 1990’s Presidents Bush and Clinton continued to escalate the so-called War on Drugs. The prison population continued to explode in great part because of the increasingly hysterical War on Drugs. Three-strikes laws became a thing and many who found themselves in prison for life under three-strikes laws were there because at least one of the strikes was a drug offense. I am not talking about cartel-type drug dealers, these were often drug users and addicts and no more.

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KNOCK AND TALK: A TACTIC POLICE USE TO BYPASS THE WARRANT REQUIREMENT

It’s the middle of the night. Someone is banging on your door yelling for you to open the door. Whoever it is does not identify himself and you do not recognize the voice. The adrenaline rushing, you grab the gun in your safe and cautiously open your front door with your gun in hand but pointed safely towards the floor. Just before you are shot dead, you see it was the police banging at your door. Sounds outrageous but that is exactly what happened to a Florida man, Andrew Scott, who committed no crime. In fact, the police were investigating a crime that had nothing to do with Mr. Scott. Accounts of the incident vary but Mr. Scott’s girlfriend, who witnessed the incident said Mr. Scott never even raised his gun and was retreating from the front door right before he was shot.

Now this incident, unfortunate though it was, was an isolated incident. The police tactic, known as “Knock and Talk” is an investigative tool used when the police have no search warrant but believe there is reason to search a residence so they knock and “request” to search the residence. While police often use this tactic, they usually don’t kill someone in the process but you can see how it could quickly escalate into a dangerous situation. The police don’t normally politely knock on your door and politely ask if they may search your premises. Polite requests are easy to decline. Rather, the police typically intimidate the resident by banging on the front door and staging a threatening presence, sometimes with many officers, guns drawn and sometimes even in SWAT gear as happened in a Michigan case over the dangerous crime of …. marijuana butter.

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