California Government Considering Law to Become Sanctuary State

California Senate Bill 54 has recently been introduced; it proposes to establish a new law to prohibit law enforcement agencies from cooperating with Federal Immigration Authorities. Whether state law enforcement (State Police; CHP, etc.), county (Sheriff), city (local police),  school police or security departments, organization or individual, they would be prohibited from investigating, detaining and/or arresting anyone suspected of a crime that would constitute or be characterized as aiding, assisting, helping or facilitating the enforcement of immigration laws. The Attorney General of the State of California will also be mandated to publish model policies limiting assistance with immigration enforcement by the U.S.  Immigration and Customs Enforcement (ICE). In addition, the bill would require the University of California, public schools and libraries, along with all other facilities that provide services related to education, wellness, physical or mental health, and courthouses to implement a similar policy.

ICE would still be permitted to conduct deportation raids in California, however, they could not rely upon or be assisted by state or local law enforcement (police, sheriffs, etc.). Basically, California would become a “sanctuary state” and countless numbers of individuals claim the state would be protecting criminal felons from being deported. In addition, ICE would be banned from entering jails to interview inmates suspected of living in the United States illegally.

You may be against the idea of sanctuary cities, but as you can see from SB 54, our California government is currently in the process of establishing it as a “state sanctuary.”

Opponents have argued against this bill because it would allow those with criminal records, such as violent felons, to remain on the streets. Proponents  claim by protecting immigrants, even those who have committed violent crimes and/or other felonies,  it is the only humane thing to do for anyone who lives in California. They cannot accept the proposition that there have been many innocent citizens who have been murdered at the hands of undocumented immigrants with prior criminal felony records.

Additionally, Senate Bill 54 does not distinguish between those non-documented immigrants who have a minor infraction, such as driving with an expired vehicle registration tag or broken taillight, and those who are extremely serious and heinous criminal offenders, such as having been convicted of murder, rape, arson and child molestation. Hence, California’s 2013 Trust Act that protects unauthorized immigrants who came to the United States before the age of 16 and other undocumented individuals living in California, who otherwise have been law-abiding, would be superseded by SB 54 and, therefore, these individuals would then be subject to deportation by ICE officers if they were arrested for an infraction.

 It has been reported that California gets about $1 BILLION A DAY from the federal government, and if that is withheld as a sanction against stopping immigration officers from picking up non-documented individuals (politically correct name for illegal immigrants) who have a criminal record, there will inevitably be budget shortfalls in California.

Even if the majority of the California  population oppose sanctuary cities, and no doubt will oppose SENATE BILL 54 that otherwise will make California a “sanctuary state,” if you want this to go to a referendum (to be put on a forthcoming ballot so everyone can have a chance to vote their conscience), you should place your name, city and email address on the web page posted by and this link from California State Senator Jeff Stone.

WHAT TO DO IF YOU GET PULLED OVER?

Knowing what to do in the event you get pulled over is very important. However, it is equally important to know the reasons for getting stopped by a law enforcement officer so as to avoid being pulled over in the first place.

Here are a few of the top reasons:

  1. Speeding. Clearly, driving above the speed limit is most likely going to catch the attention of the police, sheriff or C.H.P. Because it will take longer to react to an unexpected event, and the braking distances increase the faster one drives, this is the number one reason law enforcement pull over drivers as it obviously helps prevent accidents.
  2. Cell Phones. With the proliferation of mobile devices, nearly everyone is using a cell phone throughout the day and night. However, using a cell phone to text and/or talk with another person while driving a vehicle is another major reason you will get pulled over. And, to deny you were using the phone or to throw the phone on the seat next to you may not be as clever as it might seem; cell phones not only maintain their own records on the device, but can be traced to the cell towers to identify the time and location of our communications.
  3. Unsafe & Hazardous Driving. It should be no surprise that, among other things, following too closely; driving through a stop sign or red traffic signal; making an illegal U-turn; failing to yield to other vehicles; unsafe and/or improper lane changes; driving too slowly; not wearing a seat belt; and, failing to signal are at the top of the list of the various reasons for getting pulled over by law enforcement.
  4. Vehicle Equipment. At the top of the list of equipment violations are improperly (extremely) tinted windows; headlights that are inoperative (such as burned out); expired registration license plate stickers; and, having no license plate on the front bumper. These are vehicle equipment reasons officers make traffic stops.

 

Considerations:

Once you become aware an officer intends for you to stop your vehicle, you should cautiously pull over to a safe area of the road or freeway as soon as possible. When the vehicle is at rest, the motor should be turned off.

The officer will request your driver’s license, vehicle registration and proof of insurance. Being evasive or denying any wrongdoing when it is clear you violated the law is not likely to be in one’s best interest. Also, do not argue with the officer. Being polite as in most situations we face is generally the wisest decision.  By talking back to or arguing with an officer, it is likely the officer will be angered; and, being confrontational, probably will exacerbate the situation. Since an officer has discretion on how to proceed, there is little or no reason to get into a conflict with him/her. On the other hand, if the officer asks “Do you know why I stopped you,” it is noteworthy that anything you say can and will be used against you (see information below).

Some Relevant Laws:

The Fifth Amendment to the U.S. Constitution: This Amendment to the Constitution guarantees one the right to remain silent and to be free from self-incrimination. In the situation of a traffic stop, however, refusing to talk to an officer can result in unintended consequences. Ordinarily, a traffic stop is deemed an investigatory process; at the outset, you are not considered to be in custody and, therefore, there is no requirement to be admonished by law enforcement as to your rights. If you are asked to “voluntarily” come in to the police or sheriff’s station for questioning, you can refuse. On the other hand, once an individual is arrested, you will be taken into custody and, therefore, should obtain the advice of a criminal defense lawyer before making any statements. And, if the traffic stop escalates into an arrest, you should affirmatively invoke your Miranda rights under the Fifth Amendment and remain silent. However, it is important to do all of the above calmly and politely.

The Fourth Amendment to the U.S. Constitution: If an officer decides to detain you, there may be sufficient evidence to do so. If there is probable cause to make an arrest, however, the situation as noted earlier becomes one in which you are in “custody;” then, the officer must state (commonly referred to as the Miranda rights)  you have a right to remain silent; anything you say or do can and will be used against you in Court; you have a right to an attorney; if you cannot afford a lawyer, the court will appoint one. At the point of what can be characterized as a custodial interrogation, it is highly recommended you do not answer any questions nor voluntarily provide your own narrative of the facts without the prior advice of legal counsel.

This blog is not intended as legal advice. Each situation requires a proper and thorough evaluation of all of the facts and circumstances. It is noteworthy that there are many articles on the above subject matter. In addition, you can view more information by clicking the topic Probable Cause and Miranda rights.

Federal Appeals Court Bars DOJ From Prosecuting Medical Marijuana Cases

On August 16, 2016, a three- judge panel of the 9th Circuit of the United States Court of Appeals (this is the federal appellate court that covers California) ruled against the Federal Government, holding the Department of Justice (DOJ) cannot prosecute marijuana cases when a STATE permits medical marijuana &/or a business or individual is in compliance with state law.

In 2014, Congress passed a bill known as the Rohrabacher-Farr Amendment that DOJ cannot use any of its funding in any given fiscal year to interfere with medical marijuana laws in the states. In other words, the Federal Government is barred from preventing states from how they regulate the use or sale of marijuana.

This is a victory for proponents of medical marijuana laws, but there are two apparent limitations:

  • The cases will likely turn on whether there is strict compliance with the relevant conditions of state law; and
  • The Congressional appropriation restriction noted above expires 9/30/16 and, unless Congress passes a new bill to extend that prohibition, it will soon expire.

This is a unique situation inasmuch as the Federal Government has not updated its laws for40-50 years while approximately 41 states authorize at least one form of medical marijuana use. Some commentators argue the Federal Government is out of step with [what seems] a growing trend in a majority of states

We can expect to see new legislation by Congress regarding this subject very soon.

 

California Petty Theft Laws: Detention and Civil Demands

Unless specifically set forth as grounds for Grand Theft, the Petty Theft laws apply, as follows:

  •  Petty Theft is often referred to as shoplifting; as a general rule it takes place when one obtains property by theft, that involves a value less than nine hundred fifty dollars ($950);
  • A first conviction generally constitutes and is punished as a misdemeanor. Penal Code Section 490 provides for a fine for each violation of up to one thousand dollars ($1,000), or up to six (6) months in the county jail, or both;
  • The prosecutor (District Attorney or City Attorney) has the discretion to charge the defendant as an infraction if the person has no prior theft or theft-related conviction (Section 490.1);
  • In addition to other civil remedies, the merchant can make a civil demand and collect up to five hundred dollars ($500), plus costs. In addition, the store may collect the retail value of the merchandise;
  • Pursuant to 490.5 (f) (1) of the Penal Code, a merchant may detain a person for a reasonable time to conduct an investigation if the merchant has probable cause to believe the person of interest unlawfully attempted to take or has unlawfully taken merchandise from the premises of the store.
  • A reasonable amount of force not likely to cause great bodily harm may be used if it is necessary and, therefore it becomes, justifiable, to protect oneself and/or to prevent the person who has been detained from fleeing &/or the loss of the merchant’s property;
  • Following the above principles, the merchant may request the person who has been detained to voluntarily surrender the item in question, and if refused, is permitted to conduct a reasonable search to recover the same. This involves and is limited to handbags, packages, shopping bags and/or other property possessed by the detained person; this search does not, however, encompass any clothing worn. Crimes Against Property:

Although a merchant may demand attorney’s fees or threaten to cause harm to a person’s credit, they do not have the power to do so [attorney’s fees are prohibited in such a case, and because there has been no adjudication of money owed, they cannot report someone to a credit bureau]. Also, it may be deemed a violation of State extortion and Federal collection laws for a merchant to threaten criminal &/or civil action

The facts and circumstances differ in one case from another and, therefore, the information in this Blog is not intended as legal advice.

Appeals Court Upholds California Death Penalty

On November 12, 2015, the United States 9th Circuit Court of Appeals upheld
the constitutionality of the California Death Penalty and in so doing reversed the ruling by the US District Court that decided under the 8th Amendment it was unconstitutional as cruel and unusual punishment because of lengthy and unpredictable delays. The California Attorney General argued the delays were a result of the number and length of time involved in the legal maneuvers and appeal process that affords inmates their constitutional right to file appeals and writs of habeas corpus.

The history of the case is that in 2003, the California Supreme Court upheld the underlying conviction of the defendant/inmate on first-degree murder and rape charges.

In California since 1978, there have been approximately 900 defendants sentenced to death, with only 13 actual executions, and none in about ten years. Executions at San Quentin State Prison have been on hold since 2006 when a Federal Judge deemed there to be legal issues with the then current and past combined multi-drug lethal procedures. Since there is now a national shortage of single lethal drugs that too poses additional problems. In California, there are now about 750 inmates on death row (about 100 died while imprisoned due to other causes).

Unintended Consequences of Criminal Offenders Being Transferred from State Prison to County Jail

The growing population of over 150,000 inmates in state prisons in California has exceeded the level the U.S. Supreme Court opined in 2011 is permissible. There has been litigation in Federal Court to obtain a more speedy reduction of the state prison population, and a new law has been enacted as a result of the Governor and Legislature in California establishing the state’s prison realignment; this is the name given to transferring inmates to county jails to reduce the state prison population to about 110,000. A Federal three-judge court previously set June, 2013 as the deadline for California to reduce by over 37% its state prison population beyond each prison’s building capacity. The date was recently extended to February, 2016.  This narrative has been based upon the perceived challenge of the State of California to provide adequate health care to inmates.

The Federal Court allowed this additional period of time subject to transferring state prisoners to private correctional centers and county jails in California, but not any longer to out of state facilities. This was also based upon, among other reasons, the representation of Governor Brown that shorter sentences would be imposed on non-violent criminals; issuing additional good behavior credits to prisoners so they could be eligible for an earlier release; speeding up and expanding early parole for those over 65 years of age with at least 25 years in prison; along with those who are medically incapacitated, as well as expanding the rehabilitation programs provided to inmates.

The problem is not simply the transfer of inmates to County Jails, but now the local detention facilities statewide are overcrowded. Moreover, it has been alleged there is an even greater conundrum in that far more sophisticated criminals are now incarcerated in County Jails.  For example, the San Diego County Sheriff’s Department that oversees the jails in this County has reported there has been an increased number of drugs being smuggled into the jails; this drug trade that previously was typical of state prisons has now become a serious problem in county jails.  It has been reported there were 221 of these drug and alcohol cases in the San Diego County Jails in 2012, which constitutes over a 50% increase from that in 2011. There was a total of 279 of such cases in 2013, and about 335 of these particular cases between January and September, 2014.

To better address one of  these problems, San Diego has installed body scanners at a cost of $150, 000 each unit and $10,000 each year to provide service and maintenance. This month, the County Board of Supervisors also approved spending more than three-quarters of a million dollars to obtain four additional scanners and for a five year maintenance agreement. Besides visitors hiding contraband, some of those picked up for minor probation and parole violations have been smuggling drugs into the jails, as they may only be incarcerated for up to 10 days.

But what is the best solution? Clearly, we need to implement greater rehabilitation and educational programs. For the most part, we are spending the money to incarcerate people who are addicted to alcohol and drugs, have a mental illness and/or do not have sufficient education and labor skills, when rehabilitation will have a far greater impact on this growing societal problem. Many advocates believe it can help to let local and state legislators know our political views, and of course, to become more involved in community programs.

 

 

How to Handle Contacts and Interviews From Government and Others?

As a mater of great concern is what to do when confronted with a telephone call from law enforcement,  a licensing Board, Bureau or Agency,  and/or an  investigator who is seeking to obtain the underlying facts,  information, details &/or answers to questions. Even more challenging is when such an individual makes an in-person contact with you. It is the considered opinion of this writer that any of these inquiries may have or produce both intended and unintended consequences.

Accordingly, there are multiple reasons we do not recommend our clients participate in any dialogue and/or series of questions and answers, without the advice of experienced legal counsel.   What may at first glance appear to be friendly and seem to not involve legal issues, may indeed produce legal exposure and liability. Seemingly innocent queries are frequently  investigations, which then turn out to be interrogations rather than interviews by others, whether by the government or an other individual.

What are some of the issues:

1) these encounters and confrontations are frequently conducted under the guise of an interview when there appears to be reasonable cause that a violation of law has taken place that puts you at risk for criminal, administrative &/or civil liability.
2) when law enforcement personnel and/or an agent thereof has not admonished you regarding your “Miranda” rights to remain silent, that what you  say may incriminate you, etc.  Then and as a result, you may not really know and understand the underlying allegations, summary of issues and, in particular not know and fully understand your rights, and innocently make a statement that is incriminating.
3) far too often, the dialogue you believed was of little or no consequence  is tape recorded.
4) the answerer is at a major disadvantage in trying to recall facts and respond when (s)he has not had a thorough opportunity to review the question(s) and all of the facts in a non-threatening environment, and hopefully with their personal attorney.
5) there is a built-in bias on the part of investigators or persons using a different title or description but conducting a search for information, facts and evidence,  that the answerer is not likely to be fully honest and  truthful because they believe the answerer has something to hide &/or they believe (s)he is equally informed of the facts of the case, and directly or indirectly is trying to be deceptive when nothing could be farther from the truth.

In summary, we recommend you confer with an experienced attorney before you engage in and or respond to any verbal or written communications from anyone (except your lawyer), whether from an investigator, enforcement personnel, analyst, government employee or staff  and/or any other law enforcement officer or agent,  as well as a former or current employer &/or their employees relating to what may be the basis of and/or lead to a violation of law, a legal problem, dispute or issue, disciplinary action,  etc.

Should law Enforcement Be Permitted to Stop and Search on the Basis of an Anonymous Tip of Reckless Driving?

In the U.S. Supreme Court case of PRADO NAVARETTE et al. v. CALIFORNIA, 12-9490 (April 22, 2014), the Court held the Fourth Amendment to the U.S. Constitution was not violated and, therefore, the traffic stop by a CHP law enforcement in which the officer searched the bed of a pickup truck and found about thirty pounds of marijuana was lawful since he had a reasonable suspicion of criminality, smelling marijuana and having a belief the driver was intoxicated.as a result of an anonymous tip given by a 911 caller.

The Dissenting opinion in this case captured the essence of the issue by writing a compelling summary stating all of us are at risk of losing our freedom of movement by an anonymous telephone tip such as this one regarding a reckless driver, whether true or false. Further, other opponents of these types of searches argue law enforcement should not be able to stop and search the public on an en masse basis. Criminal and constitutional lawyers maintain this Supreme Court opinion constitutes a further loss of our freedom to be secure from government intrusion.

Law Enforcement Can Search a Shared Residence Even When a Co-Tenant Objects

In the recent case of FERNANDEZ v. CALIFORNIA, 12-7822 (February 25, 2014) the U.S. Supreme Court held the Fourth Amendment to the U.S. Constitution was not violated and, therefore, law enforcement can make a warrantless search of a shared residence when a co-tenant provides consent even though the other co-tenant shortly before refused to allow a search.

The general rule as to searches of a residence is that any occupant may provide consent to a search of the premises. Also, searches are considered reasonable and, therefore, deemed permissible without a warrant when the consent comes from the sole occupant of the premises However, when an inhabitant is physically present and refuses to consent to a search, that refusal is deemed legally dispositive, regardless of the consent of a fellow occupant.

Here, the U.S. Supreme Court created an exception and distinguished earlier case law that held the police cannot use any evidence seized as a result of a lawful arrest that takes place when there is a warrantless search performed immediately after a co-tenant refuses to allow a search, even though a co-tenant consents, relying upon the facts in the within case that the objection was made by an occupant that was no longer on the premises.

Some commentators have expressed outrage at the opinion as it would mean law enforcement can only initiate a consensual search if an objecting co-tenant is not standing at the door declaring the police cannot come inside and should stay out. Proponents in favor of the current opinion state the distinction in the current Supreme Court holding is the fact the objecting co-tenant was not present at the exact time a co-tenant gave consent. Nonetheless, defense attorneys would argue these distinctions are illusory since it would mean the police could come back a few minutes after they were told they could not search the premises and do so without a warrant as long as another occupant gave consent. They further contend this ruling makes it easier for law enforcement to search a residence without a search warrant when there are simple procedures for them to first obtain a search warrant. Lastly, those who object to the Court ruling believe it is a further example of the erosion of our civil liberties and right to be safe and secure in our homes without government intervention &/or intrusion.

Senate Committee Approves Eliminating and Reducing Certain Criminal Sentences

On January 30, 2014, the Senate Judiciary Committee approved a bill that would abolish mandatory minimum sentences for drug offenders who do not have a prior criminal history, as well as reducing by 50% mandatory minimum sentences for specified nonviolent drug offenses. The proposed law among other things eliminates mandatory minimum sentences if there is a finding by the Judge that the defendant does not have any previous conviction for crimes involving a firearm, violence, terrorism, a sex offense, racketeering or conspiracy involving illegal drugs. It would also reduce mandatory minimum sentences from 20 to 10 years, from 10 to five years, and from five to two years. There would be no change lowering the maximum sentence.

Opponents believe this law could result in prosecutors being unable to curtail gangs and drug organizations (drug cartels, etc.). Moreover, it is argued that there are very few criminals in federal prison for only simple drug possession, and the rest are mainly drug dealers that are the subject of the bill.

Proponents site the overcrowding and excessive costs of our Federal prisons, the latter estimate being as much as $3 billion over 10 years. They also claim the current laws do not sufficiently distinguish career criminals from low level offenders, and further that nonviolent drug offenses only would be the subject of the new law if it is passed by the full Senate, and goes through the rest of the process in which new laws are made.