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A POWERFUL TOOL IN THE DEFENSE TOOLBOX: THE MOTION TO SUPPRESS

Here’s an interesting case that caught my eye: Narcotics officers in Colorado Springs observed a driver in his parked vehicle conducting what appeared to be a narcotics transaction. The officers made contact with the driver and after a brief struggle, they discovered a brown satchel containing cash and Ziploc bags near the vehicle. They then searched the vehicle and found controlled substances, firearms, and ammunition. The first question any good defense attorney would ask is, “What reasonable suspicion did the officers have for contacting and detaining the driver in the first place?” Why? Because the Fourth Amendment to the United States Constitution requires either a search warrant or a “reasonable and articulable suspicion” that the driver has violated the law before a vehicle can be searched. The courts have fashioned many exceptions to this requirement but if an arrest is the result of a search without a warrant and without probable cause or any of the enumerated exceptions, the entire arrest can be challenged by a motion to suppress.

The Colorado case is particularly interesting because of the facts: The police got a warrant to place a GPS tracking device on a vehicle, the vehicle was sold, and the new vehicle owner was the guy that ended up getting arrested. The police continued to track the vehicle even though there was evidence that they knew the vehicle had been sold. The officers testified that they surveilled the vehicle to see if the previous owner was still driving the car. It was during that surveillance that the new owner of the car was observed parking the car and was contacted by the officers, which ended up in the search of the vehicle and the driver’s arrest.

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DEPORTABLE CRIMES

With immigration a big topic in the news, many are confused about who exactly can be deported from the United States. It goes without saying that someone who is in the US without going through the proper channels, i.e., no visa allowing entry (undocumented), can be deported in most instances. Exceptions might be made on humanitarian grounds for example for asylum seekers and people who were born in another country but brought to the U.S. as children.

This post is about those who can be deported even though they are in the U.S. legally, whether on a visa, a resident alien, or categorized as an asylum seeker waiting approval or those who have been allowed to stay pending review of their particular case.

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CRIME RATES REMAIN STABLE THROUGH CALIFORNIA’S POLICY REFORM ERA

In 2011 the Public Safety Realignment Bill became law in California. This legislation was designed to stem the “revolving door” of non-violent criminals in the state prisons. Realignment, as it is commonly called, was in response to the severe overcrowding in California’s prisons and mandated by requirements set by the federal court. It resulted in major changes in the state’s criminal justice system is administered.

Essentially, realignment provided for offenders convicted of certain non-violent, non-serious crimes would serve their sentence in county facilities rather than the state prison system. It sounds as though the bill just off-loaded low-level felons from the state to the counties and in many respects, that is true. But Realignment is also focused on a reduction in recidivism and has provisions that allow house arrest and other alternative sentencing schemes.

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HOW TO BE A DRUG DEALER WITHOUT GETTING BUSTED

No, I am not really going to tell you how to break the law and get away with it, but Purdue Pharma certainly knows how to deal an extremely dangerous drug, which has been abused by millions in this country, without going to jail. I’m talking about the pain killer OxyContin. OxyContin is believed by experts to have been the synthetic opioid that triggered the serious epidemic of opioid abuse sweeping this country. No longer confined to certain areas of this country, the opioid epidemic is everywhere.

You might be familiar with OxyContin, maybe it was prescribed to you for pain, maybe you are even addicted to it. It is estimated that over the last 20 years, more than 7 million Americans have been or are now addicted to OxyContin and there are 2.1 million people in this country presently addicted to opioid painkillers; many of these addictions started with legitimate prescriptions for pain. OxyContin and similar opioids have killed almost 200,000 people in this country since 1999. I’ve previously discussed this terrible opioid epidemic, but how did this happen?

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Police use-of-force has been big news in this country for several years now. A large segment of the public believes that the police have used fatal force without just cause. They cite many high-profile cases: Michael Brown, Eric Garner, Freddie Gray, and so on. These police killings have triggered a storm of protests across the country, including in California. In some of these cases, the officer or officers involved faced possible charges of manslaughter or even murder. In virtually all of these cases, the decision as to whether to prosecute these officers is left to a secret grand jury proceedings. With few exceptions, the grand juries have found that an indictment of the officer is not supported by the evidence. The public often perceives the grand jury as biased in favor of the cops and there has been a high level of distrust in the grand jury system. It doesn’t help that the proceedings are held in secret.

California became the first state in the country to address the public’s distrust of the grand jury system as employed in officer-involved lethal force cases. In 2015, Governor Brown signed into law a bill, SB 227, prohibiting the use of grand juries in California when an officer has used lethal force under circumstances that are possibly criminal. Rather, if a cop was to be charged, the district attorney would have to directly file the criminal complaint and the case would proceed through an open preliminary hearing. Thereafter, charges by what is called an information would be filed by the district attorney if the evidence at the preliminary hearing showed a reasonable possibility that the officer’s use of lethal force was a criminal act. Prior to enactment of SB 227, California prosecutors had the option of going to the grand jury or directly filing charges by a criminal complaint.

Not surprisingly prosecutors opposed SB 277. They argued that the grand jury system, by the fact that it is held in secret, facilitates the discovery of the truth. The grand jury proceedings, they argued, permits them to compel witnesses to testify and “offer a fuller seeking of the truth for all sides. . ..” (SB 227 Arguments in Opposition.) Prosecutors also objected because they argued that if they could not use the grand jury as an investigation tool in police lethal force cases, it hampered their ability to properly investigate the incident.

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You probably heard about the four Chicago youths who kidnapped a mentally disabled 18-year-old male, tied him up, assaulted, tortured him, and taunted him with profanities against white people and Donald Trump. Perhaps you saw the video. The assailants actually live-streamed this 30-minute ordeal over Facebook; the video is revolting. The youths are being charged with multiple offenses and while the hate crime charge is getting the most attention, the most serious sentence exposure for these four relates to the mental disability of the victim.

In Illinois, as in California, certain crimes are “aggravated” when the victim is mentally disabled. This can substantially enlarge the potential sentence. For example, in the case of the Chicago four, the kidnapping charges alone stand to enhance the sentence by an additional 25 years (5 years max for kidnapping but up to 30 years when the victim is disabled).

In California, when the victim of a crime is disabled, whether mentally or physically, it can be an aggravating factor that can tack many additional years on to the defendant’s sentence as it applies to certain crimes. Many misdemeanor assault and battery crimes become a felony when the victim is disabled. Surprisingly, in California, unlike Illinois and many other states, kidnapping is not elevated to an aggravated crime if the victim is disabled.

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FENTANYL MAKES FOR GRIM STATISTICS AS WE CLOSE OUT 2016

Prince was one of thousands of people who died last year after overdosing on fentanyl. The number of deaths attributed to fentanyl overdoses is rising almost exponentially. Fentanyl, a potent synthetic opioid, is said to be from 50 to 100 times more potent than morphine and so powerful that heroin addicts report they can no longer get high off heroin after using fentanyl.   Developed over 50 years ago as a “safe alternative” to morphine, its purpose was to treat severe pain. And it is still prescribed, although strictly controlled, to treat cancer pain and as an anesthetic during surgery.

The New York Times recently reported that fentanyl fatalities are surpassing heroin fatalities in much of the country and as part of a national trend that is expected to continue. Drug overdose fatalities are increasing, in no small part due to the rise of fentanyl abuse. For the first time in New York City’s history, drug overdoses exceed 1,000 people in 2016 and half of those were a result of fentanyl. One addiction counselor aptly described fentanyl as “the serial killer of drugs.”

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THE ULTIMATE PUNISHMENT

California is one of 30 states in which the death penalty is legal. In the last election, California voters voted to keep capital punishment legal (Proposition 62) and, beyond that, voted to speed up the process (Proposition 66). Proposition 62 would have replaced the punishment for those convictions under which a person could be sentenced to death to life imprisonment without the possibility of parole. The California voters soundly defeated this proposition with 53% of the voters voting nay. A corollary proposition, Prop 66, approved by 51% of the voters, shortens the time a death row inmate can take to appeal his or her sentence to a maximum of five years. Opponents of Proposition 66 have filed a lawsuit in the Californian Supreme Court challenging the legality of Proposition 66. That lawsuit is pending.

So what is the fate of an estimated 750 death row inmates presently sitting out their time in California prisons? The last time a person was executed in California was in January 2006, when 76 year old Clarence Ray Allen was put to death by lethal injection. A month after Mr. Allen’s execution, the U.S. District Court blocked a scheduled execution after a lawsuit was filed challenging the lethal injection protocol as cruel and unusual punishment. Since this challenge, there has been an almost eleven year stay on lethal injections in California. That stay was challenged in 2010, but the Ninth Circuit Court of Appeal ruled that the stay continued to apply. Even though no one has been executed in this state since 2006, prosecutors continue to ask for the death penalty and new death row inmates are added to the prison population every year.

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Researchers have discovered a there is a genetic link between personality and mental illness. As one of the researchers explained: “Mental illnesses can be viewed as maladaptive or extreme variants of personality traits.” The researchers studied the genetic profiles of 260,000 people focusing on the five long-established personality traits (extraversion, neuroticism, agreeableness, openness to experience and conscientiousness) that are considered the basic categories of personality. What the researchers found was that these personality dimensions when identified on a person’s genome map (yes, there are “personality genes”) strongly correlated to gene variations that predicted various mental illnesses.

Now you might say, “What’s new?” It is observable in our everyday life that people we know who have, for example, a neurotic personality also tend to have anxiety disorders and depression. These links between personality and mental illness have long been observed and studied. What this study reveals however is that there is a genetic link; in other words, it’s not all nurture. The researchers theorize that the personality a person is born with may tip over into mental illness when pushed to extremes by life experiences.

This field of research, which is sure to eventually unlock the keys to mental illness, is a potential minefield in terms of the criminal justice system. It would not be a stretch to say that many criminals are born. In other words, a criminal is born with a certain personality type—as are we all— but the criminal personality is one susceptible to the risk of mental illnesses, such as antisocial disorders or psychopathy. Indeed, it is estimated that more than half of all incarcerated criminals have some kind of mental illness. (Removing the large numbers of persons incarcerated for victimless crimes would increase that percentage substantially.)

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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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