Should California Allow Digital Search Warrants?

August 22, 2014,

In California, drivers who are pulled over on suspicion of DUI can refuse to have their breath tested. When a driver refuses a breathalyzer test, the police officer can request a warrant to have the suspect’s blood tested. However, it takes time to receive these warrants, so law enforcement will often opt against requesting one. 1
A potential solution to this problem is being put into place in Missouri, which has enacted a “no refusal” policy. The policy essentially allows police officers to request a digital warrant for blood tests when DUI suspects refuse. Instead of physically visiting a judge, a warrant can be requested and authorized electronically in a matter of minutes. 2

While the policy in Missouri will not affect you if you are pulled over for DUI in California, the situation will be monitored closely and could lead California lawmakers to push for a similar policy. Let’s take a look at some of the pros and cons of using digital warrants in California…

Pros of Electronic Search Warrants

The obvious advantage of an electronic search warrant for law enforcement is the speed of which they can be obtained. Police officers who are currently working late at night have to fax warrant requests or affidavits to on-call judges. The judge can sign it and return it via fax. 3

As you can imagine, this process can take a while. An electronic search warrant would allow police to submit documents at the scene of a crime from an electronic device. Judges would be able to respond from anywhere in seconds. This could lead to more arrests of guilty persons.

Electronic warrants would also serve environmental benefits. Going through the warrant process electronically would significantly reduce the amount of paper used by law enforcement.

Cons of Electronic Search Warrants

The quick process of obtaining a digital warrant could be considered a positive for law enforcement, but it could also violate your rights as a citizen. The purpose of requiring police to obtain a search warrant is to instill a “checks and balances” system in order to protect your right to be free from unreasonable searches. With the ease at which a digital warrant could be obtained, police officers and judges may not invest the time and care necessary to decide if you should be searched.

It could also lead to instances in which law enforcement feels the need to quickly obtain evidence. This can lead to hasty decisions and possible violations of your Constitutional rights.

For example, if you are pulled over for having a broken tail light, the officer can request to search your car. If you refuse, the officer can quickly request a search warrant for your car. Within minutes, the officer could be searching your vehicle despite your refusal.

One major disadvantage of the electronic search warrant is the fact that there is no paper copy. With a paper copy, officers can present it to a suspect, renter or owner. 4 This allows citizens to trust the officer and be informed as to why their property is being searched.

Do You Think California Should Allow Digital Warrants?

Adopting digital warrants would have a major impact on Californians rights. Do you think that digital warrants should be adopted? Do you feel that allowing law enforcement to acquire a digital warrant would be a violation of your Constitutional right to be free from unreasonable searches? Wallin & Klarich would like to hear your opinion. Leave your comments below.

1. []
2. []
3. []
4. [Id.]

Should California Regulate Medical Marijuana Dispensaries?

August 20, 2014,

A bill that would have begun regulation of medical marijuana dispensaries in California and required dispensaries to get state licenses before opening stalled in the California State Assembly. 1

Senate Bill 1262 was initially approved by the California State Senate, but it was blocked by the Assembly Appropriations Committee before it could move on to the governor for final approval. Officials are expected to try advancing a similar bill next year. 2

Requiring Medical Marijuana Dispensaries to Get a State License (Senate Bill 1262)

Introduced by State Senator Lou Correa, SB 1262 would have required medical marijuana dispensaries to get a license from the state in order to conduct business and have cities where medical marijuana dispensaries are located sign off on any such licenses. 3 Federal%20Crimes%20vs.%20State%20Crimes%20-%20California%20Federal%20Attorney.jpg

In order to create a licensing system and standards for cultivating, transporting and providing medical marijuana, a Bureau of Medical Marijuana Regulation would have been created within the Department of Consumer Affairs. Similar bills that have also failed had the Department of Alcoholic Beverage Control regulating marijuana.

The bill would have allowed local governments to tax medical marijuana and develop their own regulations.

It also called for guidelines to ensure that physicians recommend marijuana only after real examinations and prohibit physicians from having a financial interest in medical marijuana dispensaries. 4

Financial Impact of Regulating California Medical Marijuana Industry

The bill would have helped regulate an industry that many people believe has been poorly regulated since medical marijuana was approved by voters in 1996. 5 In California, the medical marijuana industry is a $1.8 billion industry. 6

Passing the bill into law would have had an immediate financial impact on the state, but taxes generated from regulating marijuana would have made up for it quickly.

An analysis conducted by the Assembly Appropriations estimated setting up a Bureau of Medical Marijuana would have cost $20 million. However, if the bill had been approved, it could have resulted in about $400 million in sales taxes generated in California each year.

Despite the bill’s potential financial impact, stalwarts believed that were too many revisions to the bill and it included too many additional provisions to be passed into law. The most objections came from the California National Organization for the Reform of Marijuana Laws and the Drug Policy Alliance.

Among the complaints, proponents of the bill disagreed with provisions discouraging people with prior felonies from obtaining licenses and with having the Department of Consumer Affairs manage the program.

Do You Think California Should Regulate Medical Marijuana?

While Senate Bill 1262 was not passed into law, the topic of regulating medical marijuana remains a highly controversial issue. What do you think about Senate Bill 1262? Did the California State Assembly make a mistake by failing to pass the bill into law? Should medical marijuana dispensaries be required to get a license before conducting business?

Wallin & Klarich would like to hear your thoughts about this controversial issue. Please leave your comments below or join the conversation on Facebook.

1. []

2. [Bills on crack cocaine, medicinal pot advance in California, May 28, 2014,]

3. [Id.]

4. [Id.]

5. [Id.]

6. []

Should Selling Crack Cocaine and Powder Cocaine Carry the Same Punishment?

August 18, 2014,

The federal Anti-Drug Use Act of 1986 created separate sentencing guidelines for crimes involving crack cocaine and powder cocaine. California adopted the same sentences a year later, resulting in crimes involving crack being sentenced 100 times harsher than crimes involving powder cocaine. Under the law, it takes one-tenth the amount of crack cocaine to trigger the same strict sentences as powder cocaine. 1 Possession%20of%20Drugs%20for%20Sale%202.jpg

In an effort to reduce severe prison overcrowding, California is rethinking overly harsh criminal sentencing, especially for nonviolent crimes such as drug offenses. The California State Senate recently gave initial approval to Senate Bill 1010, which would reduce penalties for possessing crack cocaine for sale so they would match the punishment for crimes involving powder cocaine. 2

The bill will soon be voted on by the California State Assembly. If passed, it will then go before the governor for final approval. 3

Reducing Penalties for Possessing Crack Cocaine for Sale (Senate Bill 1010)

Under California Health and Safety Code Section 11352, possession of crack cocaine with the intent to sell is currently punishable by three, four or five years in county jail and a fine of up to $20,000.

Introduced by State Senator Holly Mitchell, Senate Bill 1010 would reduce the penalties for possession of crack cocaine (also known as cocaine base) for sale to equal the penalties for possession of powder cocaine. If passed, sentencing for those convicted of possessing cocaine base for sale would be reduced to two, three or four years in county jail. 4

The proposed bill would also make it easier for anyone convicted of either of these possession of cocaine offenses to obtain probation in lieu of jail time.

Why Pass Senate Bill 1010?

Supporters of Senate Bill 1010 argue that California’s current laws have led to institutional racism, citing state statistics that show African Americans are imprisoned for possession of crack cocaine for sale at a rate of 43 times more than whites. Since the sentencing guidelines were adopted in the late 1980s, cocaine base has been associated more with African Americans in urban neighborhoods, while powder cocaine has been more popular among wealthy and middle-class whites. 5

According to supporters of SB 1010, sentencing guidelines have led to a culture of rehabilitation amongst whites who possessed powder cocaine and arrest and punishment for blacks who possessed crack cocaine. The Journal of the American Medical Association said the two forms of cocaine have essentially the same effects on the human body. 6

Should Penalties for Selling Crack Cocaine and Powder Cocaine Be Equal?

What do you think about California’s proposed new bill? Should possession of crack cocaine for sale carry the same punishment as possession of powder cocaine for sale? Do sentencing guidelines for crack cocaine promote racism? Should California pass Senate Bill 1010 into law?

Wallin & Klarich would like to hear your opinion on this matter. Please share your thoughts in the comments below.

1. []
2. [Bills on crack cocaine, medicinal pot advance in California, May 28, 2014,]
3. [Id.]
4. [Id.]
5. [Id.]
6. [Id.]

Residents of San Bernardino Can Avoid the Line by Going Online

August 13, 2014,

Whether we are waiting in traffic, stuck at the bank, or spending an eternity at the DMV, waiting in line is one thing Californians are familiar with. A recent trend, however, has given residents of San Bernardino seeking easy access to justice one less line to worry about.

In order to alleviate the consequences of statewide budget cuts that resulted in numerous courthouse closures, projects are being created throughout Southern California. Specifically, these projects provide individuals living in rural areas with a more convenient way to accomplish mundane legal tasks.

Filing a Domestic Violence Restraining Order Online

Marsha Slough, the Presiding Judge of San Bernardino County, has created a project that allows individuals who need to file a domestic violence restraining order to do so online. Previously, if someone from a small town within the county wanted to file a restraining order, he or she would have to drive several hours to the closest courthouse to begin the lengthy process. They would then be required to fill out a number of confusing legal documents without the assistance of a lawyer and face the possibility of a drawn-out phase in which the document is returned with corrections needed. Fatal%20Car%20Accident%20Lawyer%20California.jpg

“What we want to do is to leverage technology in a way that is providing access to justice for people who find it extremely difficult to access courts because of geography, shortened clerk hours or not enough labor within the court to process documents,” Slough said. 1

San Bernardino is an extremely populated county and the introduction of the new online system has had a vast impact on a large portion of its citizens. Victims are now able to complete the form from the comfort of their home and file the restraining order at their own convenience.

Other counties have taken note of San Bernardino’s increase in efficiency and have quickly followed suit.

Fighting a Traffic Violation Online

After becoming another county to fall victim to courthouse closures, the Fresno County court sought a way to provide motorists with a practical way to contest traffic violations without the hassle of traveling to the main courthouse in Fresno. In March 2013, a pilot program was launched that allowed online video conferencing of traffic court rather than requiring violators to appear in court. Drivers who choose to contest a violation can now have a hearing before a judge regardless of their location within Fresno.

Based on the program’s undeniable success in Fresno, a number of other courts -including San Bernardino- are looking into implementing similar video conferencing programs in their county as well. 2

Call Wallin & Klarich Today

If you or a loved one is facing a criminal charge, the attorneys at Wallin & Klarich can help -regardless of the severity of the charge. Our attorneys have over 30 years of experience defending our clients and making the legal process as simple and stress-free as possible. Let us help you with your case; we will get through this together.

With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is an experienced Wallin & Klarich Southern California criminal defense attorney near you no matter where you work or live.

Call our offices today at (888) 280-6839 for a free telephone consultation. We will be there when you call.

1. [Daily Appellate Report - “Courts go online to alleviate access to justice problems – Katie Lucia -July 31, 2014]
2. [Id.]

Improper Use of Jailhouse Informants in Orange County Could Lead to Your Case Being Overturned

August 6, 2014,

Recently, a Santa Ana man’s life sentence for a murder conviction was vacated in Orange County Superior Court due to the prosecution’s improper use of jailhouse informants. 1

Judge Gregg Prickett approved an agreement between prosecutors and defense attorneys to reverse the conviction of Leonel Vega, who was convicted in 2010 for murdering Giovanni Onofre in 2004. Prosecutors said Vega will be retried. 2

It is the first case overturned following the discovery of prosecutorial misconduct by the Orange County District Attorney’s Office, but it could open the door for more convictions to be vacated.

Orange County District Attorney’s Office Engaged in Misuse of Jailhouse Informants

Vega’s appellate attorney said his client’s constitutional rights were violated when the Orange County District Attorney’s Office and Sheriff’s Department used jailhouse informants to secure evidence against Vega and failed to turn over the evidence to his defense attorney. 3 According to defense attorneys, the conduct rose to the level of a Brady violation, thus warranting dismissal of criminal cases. Motion%20for%20New%20Trial.jpg

The decision came down after information was revealed during a hearing in the case of Scott Evans Dekraai, who plead guilty to murdering eight people in a Seal Beach hair salon. At the hearing, Oscar Moriel, who testified during Vega’s trial, said that he was hoping his use as an informant would lead to his early release. 4

During the hearing, it was discovered that Moriel handwrote more than 300 pages of notes but Vega’s defense attorneys only received four. Prosecutors also failed to disclose reports and recordings of Moriel discussing Vega’s case. 5

The hearing was sought by defense attorneys to prove allegations that prosecutors engaged in unconstitutional misuse of jailhouse informants and hid their work from defense attorneys.6

What is a Brady Violation?

In criminal cases, prosecutors are obligated to turn over all evidence and information to defense attorneys. The Brady rule, which stems from the landmark 1963 case Brady v. Maryland, 373 U.S. 83, requires prosecutors to turn over evidence that shows the defendant’s innocence or evidence that can impeach a witness.

A prosecutor who suppresses or purposely tries to avoid giving favorable evidence to the defendant violates the due process rights of the defendant. Only evidence available to the prosecution or its officers must be disclosed. As such, any evidence that the prosecution does not have access to does not fall under the Brady rule.

How Does This Affect Your Case?

If you were convicted of a crime in Orange County based on testimony provided by jailhouse informants, you need to contact an experienced appeals attorney immediately. Like Vega, you may be able to get your conviction overturned due to misuse of jailhouse informants and violation of your Brady rights.

At Wallin & Klarich, our appeals attorneys can help you review all of your options and determine if your conviction can be vacated. Our skilled and knowledgeable attorneys have been successfully helping our clients appeal their criminal convictions for over 30 years. Let us help you with your case.

Call our offices today at (888) 280-6839 for a free telephone consultation. We will be there when you call.

2. []
3. [Id.]
4. [Id.]
5. [Id.]
6. [Id.]

Should Police be Required to Wear Video Cameras?

August 4, 2014,

Recently, police officers in Rialto, California took part in a controlled study. The study had them wear a small camera at all times while they interacted with the public. In the first year of the study, the results were substantial.1 police%20citation.jpg

Since the cameras were introduced, complaints against Rialto officers dropped by 88 percent. The use of force by police officers fell by almost 60%. According to Rialto Police Chief William A. Farrar, “When you put a camera on a police officer, they tend to behave a little better, follow the rules a little better.” Now, troubled police departments in cities like New York, Oakland, and New Mexico are going to try similar studies.2

The Pros

As the Rialto study showed, police behavior dramatically improved when they were required to wear video cameras. When you know you are being recorded and your actions can be scrutinized, you will undoubtedly behave better. Think about it. If your teacher recorded you while you were taking a test, would you cheat?

The same logic applies to the citizens. As the Rialto Police Chief noted, “If a citizen knows the officer is wearing a camera, chances are the citizen will behave a little better.” 3 When police and citizens encounter each other, video cameras can make these interactions far less hostile.

The video data could also be used for training purposes. Citizens usually complain about police officers’ attitudes, demeanor, and how they treat people. 4 Having access to recorded interactions between police and the public could help show future officers the “do’s and don’ts” of police behavior.

Finally, requiring police to wear a video camera can legitimately change the criminal court process for the better. When police are called to a crime, the interaction will be caught on video. When a case goes to trial, this video evidence can drastically reduce the length and overall costs of the process. When a citizen has a complaint about an officer’s behavior, there will also be video proof.

The Cons

From a financial standpoint, having officers wear video cameras comes with a cost. Police in Spokane, Washington reportedly signed a $733,000 contract with Taser International, a company that supplies the body cameras. On top of this, the city of Spokane will also pay an annual fee to store the recorded data. These fees are for only 220 cameras. 5

There are also legitimate privacy questions that need to be addressed. Will the cameras be recording at all times, no matter where an officer goes? If a police officer enters a private home to either respond to a disturbance or execute a search warrant, will they be able to record the inside of the home? If so, this may be a major invasion of privacy.

There is also the issue of how the data is stored. In the case of Spokane, Washington’s police department, they are trusting Taser International to store all of the video data. With a third party, there is always concern that the data could be compromised.

Local agencies would also need to figure out who can access the video recordings and for what reason. If all of the general public can view a recorded interaction at any time, it may have negative effects. People may want to view the recordings for sheer entertainment purposes. This would serve little public benefit and is a moral dilemma that law enforcement needs to resolve.

Give Us Your Feedback

Should police be required to wear a video recording device at all times while on duty? What benefits do you see in making this a requirement? What rules should be in place regarding the cameras? Wallin & Klarich would like to hear your opinion.

1. []

2. [Id.]

3. [Id.]

4. []

5. []

Assisting in or Encouraging a Crime Can Result in a Lengthy Prison Sentence

July 28, 2014,

Have you ever been offered an opportunity to assist in a crime? Perhaps a friend or family member asked for your help in committing theft or robbery. If you had any influence in committing the crime, either by assisting in its planning, being an active participant or ordering others to commit the crime, you can be found guilty of aiding and abetting and could be facing severe punishment.

Under California Penal Code Section 31, you can be prosecuted for a crime that is committed by another person even if you did not directly participate in that crime if you were found to have aided and abetted the crime.

Aiding and Abetting a Crime –PC 31

To prove that you are guilty of a crime based on aiding and abetting that crime, the prosecution must prove beyond a reasonable doubt that:Fatal%20Car%20Accident%20Lawyer%20California.jpg

  • The perpetrator committed the crime;
  • You knew that the perpetrator intended to commit the crime;
  • Before or during the commission of the crime, you intended to aid and abet the perpetrator in committing the crime; and
  • Your words or conduct aided and abetted the perpetrator's commission of that crime.

For example, you and your friend decide to rob a bank. Your friend actually commits the robbery inside of the bank while you wait outside and act as the getaway driver. Even though you did not personally commit the robbery and only drove the car, you can still be charged for robbery under the principle of aiding and abetting.

Aiders and abettors are not only equally responsible for their intended criminal activity, but also for any crimes that are the natural and probable consequence of their actions.

For example, during the bank robbery, your friend shoots and kills a bank teller. Though you may not have thought anyone would be killed during the bank robbery, you would still face a murder charge because the shooting was a natural and probable consequence of the original armed robbery crime.

What is the Punishment for Aiding and Abetting a Crime?

The punishment for aiding and abetting a crime depends on the crime you are charged for. As an aider and abettor before or during the crime, you will be regarded as a participant in the crime and face the same penalties as if you actually committed the offense.

Call Wallin & Klarich Today

If you or a loved one is facing a charge of aiding and abetting a crime, it is critical that you speak to an experienced criminal defense attorney as soon as possible. At Wallin & Klarich, our attorneys have over 30 years of experience in defending persons charged of aiding and abetting crimes in Southern California. Our attorneys will fight to get you the best possible outcome in your case.

With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is an experienced Wallin & Klarich Southern California criminal defense attorney near you no matter where you work or live.

Call us today at (888) 280-6839 for a free phone consultation. We will be there when you call.

Thousands of Drug Offenders Could Get Sentence Reductions

July 25, 2014,

More than 46,000 federal drug offenders could be eligible for sentence reductions after the U.S. Sentencing Commission recently approved a plan to extend federal drug sentencing guidelines to current inmates. 1 Possession%20-%20Transportation%20of%20Drugs%20for%20Sale.jpg

Prisoners who are eligible for sentence reductions will not be released until November 2015, giving judges the time necessary to review candidates and allow prosecutors to object if there are concerns about any inmates. 2

The commission’s unanimous vote follows a decision made in April to amend sentencing guidelines in some federal drug cases involving non-violent drug offenders. Those new guidelines will now extend to thousands of inmates currently serving time in federal prison due to drug crime convictions. 3

Sentence reductions for non-violent drug offenders will help condense the overcrowded federal prison system without harming public safety. The commission’s decision is a step towards ending decades-long efforts to punish drug crimes harshly.

How Will Sentence Reductions Affect You?

Federal judges in California will be able to begin reviewing eligible cases in November. Congress has until Nov. 1 to reject the measure, but they are not expected to reverse the decision. 4

According to the Daily Journal, there are more than 2,500 estimated federal drug offenders currently serving time in the California prison system that may be eligible for sentence reductions. Sentences for non-violent drug offenders will be reduced by two years, allowing many of the eligible inmates to be released. 5

Delaying reductions by a year will allow for any public safety concerns about eligible inmates to be addressed and give convicted drug offenders time to apply for sentence reductions. The Federal Bureau of Prisons will begin notifying inmates about the application process.

Despite the large number of eligible cases, reviews of federal drug offenders are not likely to overwhelm defense attorneys, prosecutors and judges. Much of the work involved has already taken place, including evaluating the inmates criminal history and determining a sentence. However, a small number of cases are expected to require an additional investigation by attorneys and judges, such as cases in which the prosecutor no longer works for the U.S. attorney’s office.

Are You Eligible for a Sentence Reduction?

If you or a loved one is currently serving time in jail for a federal drug offense, you need to contact an experienced federal defense attorney immediately to discuss eligibility for sentence reductions. You may be able to be released from prison and reunite with your family earlier than expected.

At Wallin & Klarich, our skilled federal attorneys have been successfully helping our clients with federal drug crime matters for over 30 years. We can help guide you through the application process and give you the best chance to have your sentence reduced.

With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, our experienced federal defense attorneys are available to help you no matter where you work or live.

Call our offices today at (888) 280-6839 for a free telephone consultation. We will be there when you call.

1. []
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3. [Id.]
4. [Id.]
5. [Id.]

Driver Takes Passed-out Passenger to a Motel: Was His Arrest a Rush to Judgment?

July 23, 2014,

Recently, a San Fernando Valley-based independent driver for the rideshare service Uber was arrested after being suspected of criminal activity involving a woman too drunk to tell him where she wanted to go.


Frederick Dencer, 32, of Encino, was charged on suspicion of kidnapping with intent to commit sexual assault, according to LAPD Lt. Paul Vernon. 1

The driver was held in custody after the woman called 911 to complain that she had awoken in a motel room in Panorama City early in the morning following a night of bar-hopping. The woman was alarmed to discover she was lying next to a shirtless man. She told police investigators she didn't know how she got there.

An Uber spokesman said the company learned of the incident through the media and has suspended the driver's account. According to an Uber spokesman, Dencer was not logged in to operate as an Uber driver at the time of the incident. 2

Not Enough Evidence to Prosecute the Driver, D.A.’s Office Says

The alleged incident unfolded after a valet employee at a West Hollywood nightclub told Dencer to drive the 26-year-old woman home, police said. According to police reports, the woman was so intoxicated, she could not tell the driver where she lived. The driver never collected a fare from the drunken woman and instead drove her to the motel. She told police she woke up about 6 a.m. Monday to find Dencer next to her. 3

Surveillance footage from the motel confirmed that the driver carried the passed-out woman into the room. However, there was nothing in the video to prove he sexually assaulted her. Although he invited her to stay with him, according to the woman’s statement, there was no evidence that the driver attempted to restrain her from leaving.

Prosecutors dropped the charges against Dencer after determining there was not enough evidence to charge him with kidnapping or sexually assaulting the woman. 4

Was This a Rush to Judgment?

Unfortunately, this situation presented the driver with an awkward choice of what to do with a passenger who was too intoxicated to tell him where to take her. What was he supposed to do with her? Leave her out on the streets?

Perhaps he should have just refused the fare and left the passenger to the next driver. But then, someone had to take responsibility for her since she was unable to care for herself. Who should that be? The bar management? After all, bartenders served her to the point where she eventually passed out.

Law enforcement’s reaction of arresting the driver for serious criminal charges without supporting evidence was inappropriate. More in- depth investigation was needed in this case to determine all of the facts. The LAPD simply failed to do a professional job to distinguish an awkward situation from an alleged crime.

What Does Wallin & Klarich Think?

Law enforcement agencies in this country have a tough job to do. Protecting the public is their professional responsibility and we are dependent on the police for our safety. Yet, we as individuals are concerned with remaining free from unreasonable arrest. Law enforcement agencies sometimes ignore this fundamental right in the course of their duties.
Just being accused of a crime is more than enough to give you a bad stigma. Sadly, this is a reality that our attorneys see all too often, which is why we urge you to remain silent and contact a lawyer if you are suspected of a crime.

We must hold police more accountable for affording due process prior to making an arrest. In the present case involving the Uber driver, the police got it wrong. Fortunately, prosecutors recognized this and dropped the charges, but not before the man spent a few days locked up while the matter was sorted out.

Contact Wallin & Klarich Today Before You Speak to the Police

If you or someone you love is suspected in a criminal matter, we strongly recommend that you contact our experienced criminal defense attorneys at Wallin & Klarich right away.

Our attorneys at Wallin & Klarich have been protecting the constitutional rights of our clients for over 30 years. If you are ever contacted for questioning by the police, we urge you to politely invoke your right to remain silent and let our knowledgeable attorneys do the talking for you. In a criminal investigation, you are not obligated to answer any questions without legal representation.

With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, our experienced criminal defense attorneys at Wallin & Klarich are available 24 hours a day, 7 days a week to provide you with knowledgeabl legal representation. We will help you get the best possible result in your case.

Call us today at (888) 280-6839 for a free telephone consultation. We will get through this together.

1. [Los Angeles Times: “Uber driver accused of kidnapping clubgoer, taking her to motel”;]
2. [Id.]
3. [Id.]
4. [Los Angeles Times: “Uber driver not charged in alleged kidnap but still barred from job”;]
5. ["Uberlogo" by Kobolen - Own work. Licensed under Public domain via Wikimedia Commons]

Lawsuit Alleges Mistreatment of OC Student Expelled for Cheating Scandal

July 21, 2014,

Corona del Mar (CdM) High School is reacting to a lawsuit filed by the family of a student who was expelled in a recent cheating scandal. Filed on May 9, the lawsuit alleges that school officials illegally threatened and intimidated the student into making coerced statements. canstockphoto0322598.jpg

Eleven students were forced into signing expulsion agreements in January prohibiting their return to CdM High this year. By signing the agreements, the students waived their right to appeal the expulsion, according to the school district.

The family alleges the student’s agreement was obtained under duress after illegally harassing and intimidating the student into agreeing to be expelled.

According to the lawsuit, the school’s resource officer pulled the junior from class into a closet-sized supply room and demanded the student’s cellphone and password. The officer proceeded to interrogate the student over his involvement with a local tutor. The tutor is accused of providing students with access to school computers through unlawfully obtained logins and passwords. The access was allegedly used to alter grades and obtain exams.

The student alleges in the lawsuit that he was denied his parents’ presence during questioning. He further alleges that he was denied adequate medication for attention deficit disorder, and food and water over a period of several hours.

Attorneys for Newport-Mesa Unified School District refuted the family's claims that district officials violated the student's rights.

Was This a Kidnapping? (California Penal Code Section 207)

Did the resource officer commit a crime? On one hand, keeping a person confined against his will is a tort (a civil wrong against a person) of false imprisonment. However, false imprisonment is not a crime unless it meets the definition of kidnapping.

Kidnapping in California is defined under Penal Code Section 207 as “forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county.”

The student never left the school, so it is not likely that a kidnapping occurred. Moreover, unless the student was threatened with the immediate prospect of a crime leading to serious bodily injury or death, he was not criminally threatened pursuant to Penal Code section 422.

Did Authorities Deny the Student His Rights by Forcing Him to Admit to Cheating?

In this case, the student claims he requested his parents’ presence while being questioned but was denied. However, California Education Code, beginning with Section 48900, permits school districts to set their own policies when it comes to informing parents during student disciplinary actions (Education Code section 48914).

What is troublesome is that this student was not just being compelled to answer whether he cheated, but perhaps was being coerced into admitting he committed a crime. Like anyone else, he maintained a Fifth Amendment constitutional right to remain silent, and should have invoked this right.

Knowingly receiving stolen school property or private property is grounds for expulsion pursuant to California Education Code section 48900. For the purposes of this code, “school property” includes electronic files and databases.

More importantly, this student may have implicated himself under Penal Code section 502(c), California’s anti-computer hacking law. Under this law, it is a crime to knowingly access and without permission a computer for the purposes of altering, damaging, deleting, destroying, using, copying or obtaining any data.

You violate this law if you either:

  • Devise or execute a scheme to defraud, deceive or extort; or
  • Wrongfully control or obtain money, property or data.

Generally, a conviction under Penal Code section 502(c) is punishable as either a misdemeanor or a felony, making it a California “wobbler” offense. If convicted of a misdemeanor violation of computer hacking, you face as much as one year in jail, a $5,000 fine, or both. If you are convicted of a felony, you could be sentenced to as much as three years in jail, ordered to pay a maximum $10,000 fine, or both.

Frivolous Lawsuit or Legitimate Complaint?

It is alleged that after several hours of questioning, the student wrote a statement for school officials, providing information about his involvement in the cheating. canstockphoto5801121.jpg

In the written statement, the student outlined his involvement in the cheating, which included requesting that the tutor boost his grades by 1% to 3%.

However, the student later retracted his written statements, instead saying that the tutor changed the grades without his knowledge. When the student became angry and asked him to change them back, the tutor made him vow not to disclose what was going on.

It may appear that the student has a legitimate grievance. However, it is hard to ignore the fact that he changed his story and, six months later, filed suit complaining denial of food, water and medication. This seems a little far-fetched.

Moreover, the suit appears to be connected with a denial of a court request that the student be allowed to attend the prom. Under the terms of the stipulated expulsion agreement, the student is forbidden from attending extracurricular or school activities.

What Do We Learn From This Case?

School and law enforcement authorities may question a student absent parental consent, but this does not mean the student must answer, either orally or in writing.

Invoking a Fifth Amendment right to remain silent must be expressly communicated. Asking for a parent’s presence doesn't trigger this right, so students should be polite but clear if they intend to refuse to answer questions. This is particularly true if police officers suspect the student of criminal activity.

It is important that you exercise your right to remain silent and speak to an attorney before answering any questions that may incriminate you.

Wallin & Klarich Can Help Protect Your Constitutional Rights

If you or someone you love has been the victim of a forced confession to a crime, you should speak with one of our experienced criminal defense attorneys at Wallin & Klarich right away.

At Wallin & Klarich, our attorneys have over 30 years of experience successfully representing our clients who have been denied their basic constitutional rights.

Wallin & Klarich has offices conveniently located in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville. Our priority is to help you receive the best possible outcome in your case.

Call us today at (888) 280-6839 for a free telephone consultation. We will get through this together.

California Death Penalty Ruled Unconstitutional

July 18, 2014,

A federal judge in Orange County has ruled that California’s death penalty is unconstitutional because it violates a person’s right to be free from cruel and unusual punishment. bail%202.png

In a 29-page ruling, Santa Ana-based U.S. District Judge Cormac J. Carney vacated the death sentence of Ernest D. Jones, who was sentenced to death nearly two decades ago. 1

This decision will be viewed as a major legal victory for those aiming to eliminate the death penalty in California. A smaller victory occurred eight years ago when all executions were stopped.

Jones’ Journey to the Death Penalty

In 1995, Jones was convicted of raping and murdering his girlfriend’s mother, Julia Miller. He had already spent time in prison after he was convicted of raping a previous girlfriend’s mother, according to court records. He was sentenced to death.

According to CNN, witnesses at his trial said that Jones had told them he was hearing voices and experiencing flashbacks dating as far back as a year before the incident. Jones said Miller confronted him regarding his girlfriend and pulled a gun on him. This caused Jones, who grew up in a violent home, to experience a flashback, to which he responded by raping and killing her. 2

Jones’ appeal reached the California Supreme Court in 2003, and his conviction on first-degree murder and rape charges was upheld.

Is California’s Death Penalty Unconstitutional?

The Eighth Amendment to the U.S. Constitution protects against cruel and unusual punishment. In his ruling, Carney said California’s death penalty system is so dysfunctional that the uncertainty and delay violated Jones’ Eighth Amendment rights. 3

Carney pointed out that more than 900 convicted criminals in California have been given the death penalty since 1978 but only 13 of those convicts have been executed.

The state’s last execution occurred in January 2006. There have been no executions carried out in California since a 2006 moratorium was put on the death penalty. A 2010 execution of a man who raped and killed a 15-year-old girl was blocked by state and federal courts due to concerns about lethal injections. 4

California currently has 748 inmates on death row, the most of any state. About 40 percent of those inmates have been on death row for more than 19 years. 5

According to Carney, this has resulted in a sentence that is not the same as the death penalty, but should instead be considered “life in prison, with the remote possibility of death,” a sentence that no jury or legislature should be able to impose. 6

Attorney General Kamala D. Harris is reviewing the decision. It is expected to be appealed.

What Do You Think about the Decision?

The ruling should be considered a victory for Jones, any inmate currently on death row, and any person facing the death penalty. However, this is likely not the final court decision regarding this very controversial topic. Wallin & Klarich will keep you posted with any updates that occur in the future.

What do you think about Carney’s ruling? Is California’s death penalty system broken? Should the death penalty be considered cruel and unusual punishment? Should California spend the money necessary to develop a system to execute those that receive the death penalty that is not considered “cruel and unusal?” Please share your thoughts in the comments below.

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Appeals Court Rules Fourth Amendment Protects Cell Site Location Privacy (U.S. v. Davis)

July 16, 2014,

When you are making phone calls on your cellphone, should you expect your identity to be private? The U.S. Supreme Court doesn’t think so. However, what happens when your cellphone records are used not to determine who you’ve been in contact with, but where you were at the time?

A federal appeals court was asked to answer that question recently in a case involving a suspect convicted in part upon evidence collected as a result of a warrantless search of his cellphone records used to place him at the scene of several armed robberies.

The government was permitted to collect the defendant’s cell records under court order but without a warrant, according to a federal law known as the Stored Communications Act (SCA), codified at 18 U.S.C. sections 2701–2712. The law addresses voluntary and compelled disclosure of “stored wire and electronic communications and transactional records” held by third-party internet service providers (ISPs).

The issue before the 11th Circuit Court of Appeals was whether use of a cellphone constitutes “voluntary” disclosure of your location and whether a search of your records is exempt from Fourth Amendment protection against unreasonable searches and seizures.

The federal court’s decision should have a lasting impact on what information law enforcement is permitted to collect absent a warrant regarding your cell phone usage.

United States v. Davis (No. 12-12928, Eleventh Circuit Court of Appeals, June 11, 2014)

Defendant Quartavius Davis and five co-defendants were indicted on 17 counts of robbery, conspiracy and possession of a firearm in furtherance of a crime of violence. A jury returned guilty verdicts on all counts and Davis was sentenced to nearly 162 years in prison.

During his trial, prosecutors submitted evidence obtained without a warrant of cellphone calls made and received by the defendants near several commercial establishments where the robberies took place.

Under authority of the Stored Communications Act (SCA), the government can obtain records of subscriber services when officials have obtained a warrant (which shows probable cause that a crime has been committed), a subpoena or, as occurred in this case, a court order (which requires mere suspicion).

Under the SCA, all that the government is required to show is “that there are reasonable grounds to believe that the… records or other information sought, are relevant and material to an ongoing criminal investigation” (18 U.S.C. § 2703(d)).

The evidence obtained under the order and presented against Davis in the district court consisted of “cell site location information.” That location information includes a record of calls made by the providers’ customer, in this case Davis, and reveals which cell tower carried the call to or from the customer. The cell tower in use will normally be the cell tower closest to the customer. The cell site location information will also reflect the direction of the user from the tower. Therefore, it is possible to determine the location of the cellphone user at the time and date reflected in the call record.

Davis appealed on several grounds, primarily arguing that the court admitted stored cell site location information obtained without a warrant as evidence.

How Did the 11th Circuit Court of Appeals Rule?

The court ruled for the first time that cellphone location data enjoys the same reasonable expectation of privacy under the Fourth Amendment as other information already included under that provision of the Bill of Rights.Federal%20Crimes%20vs.%20State%20Crimes%20-%20California%20Federal%20Attorney.jpg

The court reasoned that, unlike decisions handed down in similar cases of warrantless cellphone tracking, “Davis has not voluntarily disclosed his cell site location information to the provider.”

The ruling turns on what constitutes “voluntary” disclosure. The U.S. Supreme Court held in a case called Smith v. Maryland that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”

However, the 11th Circuit was concerned that “the exposure of the cell site location information can convert what would otherwise be a private event into a public one. When one’s whereabouts are not public, then one may have a reasonable expectation of privacy in those whereabouts.”

The court concluded that a person’s location is personal in nature and thus protected by the Fourth Amendment. Not only could this information reveal whether the defendant was near the location of a crime, but it could also reveal other private information, such as whether the defendant is “near the home of a lover, or a dispensary of medication, or a place of worship, or a house of ill repute.”

Because cellphone data location can be used to determine an individual’s location, these records constitute a “search” of one’s private movements that a person does not voluntarily waive. In this case, the Fourth Amendment protects an individual’s reasonable expectation of privacy.

What Does Wallin & Klarich Think?

This decision is a clear victory for individual expectation of privacy in an era when the government has systematically chipped away at our Fourth Amendment guarantee against unreasonable searches and seizures.

This is probably best illustrated by whistleblower Edward Snowden’s exposure of the NSA’s long-arm tactics in seizing the cellphone records of millions of consumers who had never been suspected of committing a crime.

While this case doesn’t directly impact the NSA’s warrantless collection of private communications, it could have long-lasting implications in upholding the Fourth Amendment when and if a case against the U.S. government for spying on its citizens is brought before a federal court.

Furthermore, this decision sends a direct message to law enforcement that courts may require that search warrants be obtained in future cases concerning cellphone data location.