Law Enforcement Cannot Search Cell Phones Without Warrants

It is common knowledge that the law moves slow, much slower than technology. When it comes to technological advances, the law can barely keep up. One should be able to see why. Drafters of legislation, usually not keen on computer science and engineering, have a difficult time anticipating how new devices could impact the law.

For example, cell phones in the 1980's were bricks. Users could expect dropped calls and much attention. The ability to make calls without a landline was groundbreaking. But, cell phones did not serve any other function besides making calls. Many could not predict that cell phones would become min-computers. Smartphones are radically different from first generation cell phones; lawyers, judges, and legislators may have been the last to realize it.

Smartphones have impacted the law, and the Fourth Amendment. Messages, applications, and search history can assist law enforcement. Drug deals can be carried out by text message. Illegal transfer of stolen money can be done by mobile banking. Indeed, a murderer could develop ways to kill someone by searching on his or her cell phone. The vast majority of cell phone use is not criminal in nature. As such, it is important that privacy is protected. 

In June of 2014, the United States Supreme Court unanimously held that searching a cell phone incident to arrest requires a search warrant. Riley v. California was a strong rebuke of the government's position that law enforcement should be able to access digital data before it could be potentially destroyed.

Chief Justice John Roberts wrote, in part, that: "[t]he fact that technology now allows an individual to carry [the privacies of life] in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple— get a warrant."

In practice, law enforcement has been slow to apply Riley. One would be surprised how often police officers still search cell phones after a DUI, domestic violence, or misdemeanor arrest without a warrant. In these cases, there can be redress if inculpatory evidence is obtained.

Should law enforcement search a cell phone after an arrest without a warrant, a defense attorney may be able to prevail in suppressing the evidence. A 1538 motion to suppress should definitely be considered as an option by a defense attorney if there are possible Riley violations.

Smartphones are more than just phones, they are at the center of many people's lives. Although the Fourth Amendment didn't touch upon the legality of searching cell phones (the founding fathers were smart but not fortune tellers), we now know that it is the law of the land that cell phones cannot be searched without a warrant.

Proposition 47: Reducing Felonies to Misdemeanors

Proposition 47 passed in the last California state election and thousands, if not tens of thousands, of individuals have benefited. Voters understood that a lot was at stake. For far too long, Californians had accepted severe overcrowding in prisons. They also tolerated criminal records affecting people for a lifetime. Things have changed.

The most popular provision in Proposition 47 was the way in which drug crimes and minor theft crimes were handled. Incarcerated defendants were able to petition for release. Instead of treating every drug offender as a felon, steps were taken to acknowledge that substance abuse should be handled differently. Similarly, less violent convicts were spared from having to serve more time in state prison. So far, it has been estimated that over 2,000 non-violent inmates have been released.

Some are unaware of other relief available pursuant to Proposition 47. There is a section that deals with applications to reduce certain felonies to misdemeanors. The consequences of a reduction could positively impact a person in a number of ways.

Proposition 47 stated, in part:

"According to Section 1170.18, subdivision (f), “[a] person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors.”

Again, most of the felonies eligible for reduction relief are drug crimes, and theft crimes where the value of the items did not exceed a certain amount. When an application is filed, and served to the District Attorney, it is only a matter of time before eligible applicants reap the benefits.

Employers almost always ask whether prospective employees have been convicted of a felony. If an individual qualifies for Proposition 47 reduction relief, it could change the way he or she answers that question.

Fighting a Drunk in Public Charge

Hollywood and other Los Angeles cities are home to numerous dance clubs and bars. With drinking establishments, there is always the risk of becoming intoxicated, and making bad decisions. Some choices could lead to legal trouble.

Most people are aware that it is unlawful, dangerous, and unwise to drive after a night out drinking. Some are unaware that it is a crime to be "drunk in public." Similar to a driving under the influence allegation, a drunk in public criminal charge could lead to a criminal record, jail time, and adverse employment consequences.

California Penal Code section 647 prohibits disorderly conduct. One aspect of disorderly conduct is being "drunk in public." Subsection (f) of Pen. Code section 647, prohibits being intoxicated in public to such an extent that you cannot care for the safety of yourself or others, or so drunk that you obstruct a street, sidewalk, or public way. Let's break down the elements:

(1) Intoxicated in a public place; and
(2) Cannot care for the safety of oneself or others, OR obstructing a street, sidewalk, or public way.

An arrest can occur if a drunk person is exhibiting behavior sufficient to meet element 2. One example: Danny the Drunk leaves the bar at 2:00 am, after having consumed ten shots of tequila. Danny the Drunk drank too much, and starts to have trouble walking. He can't go further than five feet, before he falls onto the street. Danny the Drunk is not hurt, but he blocks a group of nuns from walking by. Policeman Peter sees the whole thing and arrests Danny the Drunk for being "drunk in public."

Now, like every other criminal charge, there are ways to challenge a drunk in public allegation. A defendant could challenge the probable cause of the arrest. Like in my blog post about 1538 motions, a case can be dismissed if the arresting officer arrested the defendant without sufficient probable cause. Danny may be not be drunk at all; he could suffer from a medical condition that caused him to fall onto the street.

The prosecutor also has to prove both elements beyond a reasonable doubt. A defendant could challenge the "public" aspect of the crime. If a person was arrested while in a hotel, or store, both private businesses, he or she could argue that he or she was not in a public place.

Another way to challenge a drunk in public charge is if the defendant ingested an intoxicating drug involuntarily. For example, say Alan wants to play a prank on his friend Stu. Alan buys Stu a drink, but drops a Rufilin into the drink. Unbeknownst to Stu, while taking a drink, he is also taking an intoxicating drug. If Stu later cannot care for himself, in a public place, and was arrested, he would be able to successfully beat the "drunk in public" charge.

A lot of cases involve a person who was drunk, but not so drunk that he or she could not care for himself or herself. If you or someone you know is charged with a drunk in public criminal charge, it is wise to retain a criminal defense attorney. The potential penalties are too great.

'Constructive Possession' in Drug Possession Crimes

Both federal and state governments are changing the way drug crimes are prosecuted. Sentencing guidelines that require strict prison terms are being discarded for more court discretion. States are also implementing drug courts, or diversion programs, that allow defendants to enter into drug treatment programs in lieu of jail.  There seems to be an understanding that drug offenders need treatment rather than punishment.

Even with positive changes in California, with respect to drug crimes, because of Proposition 47, which mandated that certain crimes be prosecuted as misdemeanors instead of felonies, there are still situations in which an accused may be wrongfully charged. For example, an individual may not even know that illicit drugs were near or by him/her at the time of his/her arrest.

Health and Safety Code sections 11350, et al prohibits the possession of certain controlled substances. "Possession" is not limited to drugs on a person, like in his pockets, wallet, or belongings. Possession can also be "constructive" or "joint."

"Constructive" possession has been defined in a number of cases on appeal in California. People v. Showers (1968) 68 Cal.2d 639 defined constructive possession as follows:

"The accused has constructive possession when he maintains control or a right to control the contraband. Possession may be imputed when the contraband is found in a location which is immediately and exclusively accessible to the accused and subject to his dominion and control."

"The accused is also deemed to have the same possession as any person actually possessing the narcotic pursuant to his direction or permission where he retains the right to exercise dominion or control over the property. People v. Mardian (1975) 47 Cal.App.3d 1. However, merely being near a drug, or being in association with someone in possession of a drug, in of itself, was insufficient to establish possession under the law. Exercise or control of an area still requires proof beyond a reasonable doubt.

Let's give a hypothetical, when"constructive" possession may be in dispute. Roommate A is living with Roommate B to save money. Roommate A does not abuse drugs. Roommate A is a student with a steady job. Roommate B smokes methamphetamine, but does so privately. Roommate A is unaware of Roommate B's personal habits. The police, on a tip from an informant, execute a search warrant in Roommate A and Roommate B's shared room. Roommate B is on vacation. Roommate A is studying. The police find methamphetamine in Roommate B's drawer, which is near Roommate A's bed. The police arrest Roommate A.

In the hypothetical above, Roommate A may be able to get the case dismissed because he was not in possession of the methamphetamine, including "constructive possession." In spite of the fact that he was near the drawer, and could possibly open the drawer, under California law, Roommate A probably did not exercise dominion or control over the property in the drawer. He didn't have the requisite intent, nor did he exercise control of Roommate B's drawer.

Substance abuse is most often caused by disease and studies have shown that mental health services, not prison, is the best way to combat drug crimes. Nevertheless, there are good reasons to retain a criminal defense attorney if you, or someone you care about, has been charged with a drug crime. Experienced attorneys can see if alternatives to jail are available. Further, if there are facts of the case that suggest an accused may prevail at a preliminary hearing or P.C. 1538 hearing, a criminal defense attorney could aggressively advocate on your behalf. Our office welcomes your calls and questions. 

California Posed to Reform Criminal Justice

Come November, California voters will get the opportunity to vote yes on Proposition 47. The proposed legislation would be beneficial for everyone -- residents, defendants, and inmates. As a criminal defense lawyer, I get to see everyday how our criminal justice system needs urgent reform.

A short while ago, the United States Supreme Court ordered that California lower its prison population. The harsh three-strikes law implemented 20 years ago led to a surge in incarceration. Also troublesome was the severity of non-violent crimes like: petty theft, fraud, forgery, and most drug crimes.

The proposition on the ballot will help allay some of these problems. First, it will mandate that a large amount of non-violent crimes be charged as a misdemeanor instead of a felony. This will ensure that individuals involved in a theft, in an amount under $950, and other individuals involved in personal drug crimes, will not face prison time. They will face jail time instead.

Reclassifying some felonies to misdemeanor will help but Proposition 47 does more. It will directly allow already incarcerated individuals apply for relief if they are eligible. Thus, those individuals already in prison for possibly stealing an item less than $950, and where violence was not involved, could be released. This will alleviate some overcrowding.

The savings derived from the release of inmates will benefit the community at large. Money from the budget will not go towards overcrowded prisons. Instead, all of the savings will be used for mental health programs in California. People who have struggled with substance abuse will be able to seek out help. Those that need counseling will receive it. These preventive measures do far more than mass incarceration to decrease recidivism.

Opponents cannot claim that Proposition 47 will lead to more violence because the reforms will only impact those who are involved in a non-violent crime. Further, the proponents of the reform make some great arguments, both legal and moral.

One of the biggest backers of Proposition 47 is a conservative Christian who believes in redemption and forgiveness. He was encouraged by prison ministries, a non-profit organization founded by Chuck Colson to help inmates readjust to non-prison life. Mr. B. Wayne Hughes Jr. wants to use his wealth to do good for those who are trying to change their lives for the better.

I encourage you to vote yes on Proposition 47. Further, if you want a consultation with respect to a criminal charge that may be impacted by this legislation, I welcome your calls. 

Medical Marijuana and Probable Cause Vehicle Searches

It’s well known that law enforcement officers generally need a warrant before they can search a suspect’s person or possessions and, subsequently, use whatever they find at a later trial. However, there are a number of exceptions to this general rule, so many in fact that some commentators have argued that there are more holes than coverage in the warrant requirement. One well known exception is the rule that allows officers to search a suspect’s vehicle with probable cause; this is known as the vehicle exception. This article isn’t long enough to discuss all the important details of the automobile exception, there’s a lot of nuance to the rule, but one aspect that has become increasingly important of late is the question of exactly what kinds of facts lead to probable cause for a search in the context of the legal possession of medical marijuana. As ever more states legalize some form of marijuana possession or use, figuring out just when the possession of marijuana triggers probable cause for a search is becoming increasingly difficult.

Understanding Probable Cause Searches (in brief)

Sticking with generalities, an officer has probable cause for a search where the facts and circumstances would lead a reasonable person to believe that there was a likelihood that the object to be searched contained contraband or evidence of a crime. In other words, there is probable cause for a search when officers can reasonably expect to find something illegal. So, in the case of a prospective automobile search, officers won’t need a warrant if, in the specific situation in question, there exists good reason to believe something illegal is in the car. Before marijuana was selectively legal in some states, it was an easy trigger for a probable cause search. Possession of marijuana or its implements was illegal and if an officer saw, or smelled, evidence of marijuana use or possession, a search was likely reasonable. The introduction of legal medical marijuana has muddied these waters.

Legal Possession?

Under most medical marijuana statutes, only a small quantity of the substance is actually legal; carry too much, and your medical card won’t prevent prosecution. Under these circumstances, if an officer detects evidence of the use or possession of marijuana, does this still trigger probable cause for a search? Like any good legal question, the answer is; it depends. One court recently thought it did, but let’s take a close look at the facts to see if we can understand why. In People v. Waxler, a California court of appeals ruled that presentation to an officer of a valid medical marijuana card did not destroy probable cause for an in-progress search of a suspect’s vehicle. In Waxler, the suspect was sitting in his vehicle in a parking lot when he was approached by officer Griffin. Officer Griffin smelled burnt marijuana and saw a used marijuana pipe on the seat next to the suspect. On this, the officer conducted a search of the vehicle and discovered stronger illegal drugs. At some point during the encounter, but apparently after the search had begun, Waxler presented officer Griffin with a valid medical marijuana card. The officer acknowledged the card but proceeded with the investigation and arrest. At trial, Waxler challenged the search, which is what turned up the other illegal drugs, by claiming that because he had a valid medical marijuana card the officer had no grounds for the vehicle search in the first place.

Verifying Legal Possession

Unfortunately for Waxler, the Court of Appeals disagreed; reasoning that even though Waxler’s medical marijuana card entitled him to possession of some marijuana, the officer still had grounds to conduct a search in order to determine if Waxler was in possession of more marijuana than his card allowed. The court based part of its decision on the fact that under the applicable law, possession of a valid medical marijuana card was not a bar to search or arrest, but merely a valid defense at trial. In other words, apparently the court felt that officer Griffin was well within his authority to arrest Waxler despite the medical marijuana card and that Waxler could have used the card as a defense at trial but not as a bar against search or arrest.

Distinguishing Waxler

Two things stick out about this case. The first is that Waxler apparently first presented the card to officer Griffin after the search had already begun. In other words, officer Griffin probably had clear probable cause to start the search because possession of marijuana is generally illegal in California; absent a medical marijuana card. It’s unclear if the court would have ruled the same way if Waxler had been thoughtful enough to present his card to officer Griffin right at the beginning of the encounter rather than halfway through the search. The second point of interest in this case is the fact that only validly prescribed marijuana, in limited quantities, is currently legal in California. Were marijuana legal for recreational use by the general public, it’s uncertain whether officer Griffin would still have had probable cause to search for the meth that he ultimately turned up. Prosecutors might still argue that use of marijuana suggests the possibility of other drug use or possession, and they might be right, but at some point this line of reasoning must break down. For example, does use or possession of vodka suggest use or possession of other, less legal, drugs? Who knows? Ultimately, under the vehicle exception to the warrant requirement, the totality of the facts must be considered.

As ever more states move to legalize some form of marijuana use or possession, it seems likely that the use or possession of, at least small amounts, of marijuana will become increasingly commonplace. At least to the point where such use or possession will no longer provide officers with probable cause to conduct a larger search absent some other factors.

Deferring A Drug Conviction

Drug crimes provide an interesting study in social justice. While few people will seriously argue that drug addiction is good for society, that the commercial side of the drug business is acceptable as it currently operates, or that the violence often surrounding the importation of illegal drugs is sustainable, there is strong debate about how best to address these issues; particularly from a criminal justice perspective. For many years there has been a movement towards approaching the drug problem from a health and welfare perspective rather than a purely retributive criminal angle. Recently, this movement has gained substantive momentum. Today, twenty states plus the District of Columbia have laws legalizing at least some forms of marijuana use and two states, Washington and Colorado, have legalized the drug for recreational use. Many more states have developed programs to help drug offenders and abusers rather than simply punishing them for their addictions; California is among this latter group.

Penal Code 1000

Faced with a severely overcrowded prison system and budget difficulties, California has developed a program under which drug offenders can obtain help and treatment rather than a criminal record and a jail sentence. Authorized by Penal Code 1000, California courts have the authority to delay a criminal drug conviction pending successful completion of an approved drug treatment program; successful graduates of such a program can then have their charges dismissed. This is known as a Deferred Entry of Judgment and typically requires a defendant to plead guilty to the charges prior to entering the program. Failure to complete the program will result in those charges being finalized in a conviction.

Who is Eligible?

To participate in a DEJ program, defendants must satisfy two broad requirements. First, the crime with which the defendant has been charged must match one of the several crimes specifically listed in Penal Code 1000. Generally this means that the drug crime in question must be related to personal use or possession, as opposed to possession for sale, and there must be no allegations of violence associated with the drug charge. Second, a defendant must be personally eligible, meaning that they must not have certain other drug related convictions on record, must not have participated in a DEJ program within the last five years, must be in compliance with any parole or probation requirements, and must not have certain other felony convictions on record.

Treatment

During the program the court will determine which course of treatment is best for the defendant. This process will take into consideration factors such as the defendant’s age, education, employment situation, community and family situation, and drug history. Failing to fully participate in the program can result in the court entering judgment against the defendant which will result in a sentencing hearing to determine the appropriate punishment for the crimes charged.
Success

After a defendant successfully completes a DEJ program, the court will set aside the charges. This means that successful program graduates can truthfully state that they have never been convicted of the crime in question and that the associated arrest record cannot be used against the individual with regard to employment or professional licensure or certification.

Other Alternatives

Penal Code 1000 is only one of several different alternatives for drug offenders. While it is arguably the best and broadest, not everyone is eligible for a DEJ program and, as such, some defendant’s must rely on other options. These options include the Proposition 36 drug treatment program or entry into California’s Drug Court; both of which differ in several ways from the DEJ program discussed above. Specifically, Proposition 36 programs do not conclude with an automatic dismissal of charges while in drug court there is no requirement that a defendant plead guilty before participating.
Call us for help

Because there are multiple options that apply to different types of crimes and circumstances, it’s best to seek professional legal help before attempting to negotiate any type of drug crimes alternative treatment option. If you are facing a drug related crime, don’t wait to contact us as any delay may jeopardize your legal rights.