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Generally, the 4th Amendment requires police to get a warrant to avoid an illegal search. However, the 4th Amendment as it applies to drones is a new and unsettled area of the law. Currently, police do not need a warrant to fly a drone over your property for investigative purposes, but a new bill in California is proposing that law enforcement need obtain a warrant before conducting drone surveillance of your property.

Reasonable Expectation of Privacy and Drones

The legality of drone usage and the 4th Amendment warrant requirements hinges on whether drones violate your reasonable expectation of privacy. Over the last 25 years or so, courts have struggled with how new advancements in technology should be reconciled with 4th Amendment protections. With the widespread use of smartphones, GPS and other technologies, our privacy expectations have arguably been lowered.

Legal Precedent

Drone Search WarrantIn one case, the Supreme Court ruled that flying a helicopter 400 feet over one’s house was not a search at all and thus the 4th Amendment did not apply. The court’s decision stemmed from the fact that it was navigable airspace—as defined by the FAA—and therefore no different than a commercial airplane flying over your house.1

In another case, the Supreme Court specifically tackled the issue of what surveillance technology violated privacy interest.2 The court said that technology not readily available to the public (in that case thermal imaging) used to gather information that could not be observed by the naked eye was a search.

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When the family members or friends of an inmate accept a jailhouse call, they will likely have to acknowledge a recording stating that the call is being recorded. There are also usually signs by the phones in the jail informing inmates that their calls are being recorded. The only calls that remain private are between inmates and their attorneys.

jailhouse phone callsDespite the warning, inmates often talk about their cases over the phone, sometimes even incriminating themselves. Even though attorney-client conversations are privileged, they sometimes are recorded or even monitored live. One such case took place in New York. A prosecutor submitted a recording of an inmate’s conversation with his attorney from a jail call.1 In another case, Baltimore County prosecutors used a recording of an inmate’s call to his ex-girlfriend to present what the judge called “overwhelming, damning evidence of [the inmate’s] guilt.”2

Prosecutors have long been using recorded phone calls as evidence, and inmates have been admitting to crimes during these phone calls for years, so it seems the practice is gaining in popularity. However, jailhouse phone calls must be certified by the telephone provider of the correctional facility to be used by the prosecution.3

When you speak to your lawyer from a jailhouse phone, you need to begin your conversation with the words, “I am only speaking to my lawyer because I know what I tell him is 100% confidential and cannot be used as evidence in a court of law.” This will mean that your phone call is private and can’t be used against you as evidence.

Why Inmates Admit Guilt Over the Phone

Most of the time, inmates don’t think anyone is really listening to their calls, or they may just get caught up in their situation and say too much. Many don’t realize their call can be used as evidence. Inmates may try to pass information, apologize for their action or try to convince someone to lie or hide evidence. Sometimes they talk about their case because they feel lonely and just want to talk about what’s happening. Unfortunately, it doesn’t matter why you say too much on the phone, only that you did.

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warrant for phoneSearch warrants have been a part of our criminal justice system since this country was founded, but when the Fourth Amendment to the U.S. Constitution was ratified in 1791, the Founding Fathers could not have possibly anticipated the advances in technology that are a part of our daily lives in the 21st century. Laptops, tablets and smartphones could not have been imagined at a time when even the telegraph had yet to be invented.

Likewise, the men who wrote the Bill of Rights could not have foreseen the technology that law enforcement agencies would use to conduct searches and seizures of private information. Technology moves faster than the laws that govern its use, so there is always a gap between the time a new privacy invasion device is invented and the time that legislators find a way to protect against it.

Fortunately, California lawmakers are working on strengthening the public’s protections against unwarranted invasions of privacy in the digital age.

Existing Law Provides Few Protections

Law enforcement agencies have been able to exploit the gap between technology and the slow-moving process of changing the law. Police can search the physical aspects of the phone, such as pulling the phone out of its case or opening the battery compartment (if the model has one). In situations where they actually believe evidence on the phone is likely to be immediately destroyed, police officers can search the cell phone without a warrant.

Nicole Ozer, an attorney with the American Civil Liberties Union (ACLU), explained, “While technology has advanced exponentially, California privacy law has remained largely unchanged. Law enforcement is increasingly taking advantage of outdated privacy laws to turn mobile phones into tracking devices and to access e-mails, digital documents, and text messages without proper judicial oversight.”1

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Juvenile False ConfessionsFalse confessions are a serious problem in our criminal justice system, particularly for young people under 18 years old. According to The Innocence Project, an organization dedicated to exonerating wrongfully accused individuals, between 2.3% and 5% of individuals in prison are actually innocent of the crime they were convicted of, and one-third of those people were between 14 and 22 years old when they were arrested.1

One of the main reasons for wrongful convictions is making a false confession or incriminating statement. In fact, 1 out of every 4 people who are wrongfully convicted and later exonerated falsely confessed to a crime they did not commit.2 Falsely incriminating yourself can have devastating effects on the outcome of your case, and false confessions make up 16% of all known wrongful convictions. Studies show that the younger you are, the more likely you are to admit to a crime you are innocent of.3

Why are Juveniles More Likely to Falsely Admit to a Crime?

According to research studies, adolescents and young adults are more susceptible to making false confessions. During a police interrogation, a minor may be induced to admit to a crime that he or she did not commit as a result of:

  • Duress (being in a stressful environment)
  • Coercion (the influence of police or other intimidating authorities)
  • Intoxication
  • Diminished capacity (being unaware of what is happening)
  • Mental impairment
  • Ignorance of the law
  • Fear of violence
  • Actual infliction of harm
  • Threats of harsh sentences, or
  • Misunderstanding the situation4

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Nearly half of all nursing home residents across the country have experienced abuse, and nearly all (95%) have been neglected or witnessed another patient being neglected, according to a recent report.1 Currently, more than 10,000 complaints and incidents of elder abuse and neglect are currently open in Los Angeles County alone.2

Los Angeles Elder AbuseState and county enforcement officials are hoping proposed changes will improve enforcement programs and patient welfare within the county. California currently provides LA County with $26.9 million each year to conduct elderly abuse and neglect investigations. However, the county says that to do the job right, it needs at least twice as much money and an additional 150 employees.3

Gov. Jerry Brown’s budget proposal would increase LA County funding amounts and give more responsibility to state employees. Under the proposal, the state would handle the investigations of abuse, neglect or inadequate care complaints and the county would focus their efforts on yearly inspections of nursing homes, hospice care centers and acute care facilities. Officials hope the shift in responsibilities will help address the current backlog, as more than 2,700 of the 10,000 complaints have been sitting open for more than two years.

When nursing facility oversight falls short, procedures and patient care policies may not be updated and adhered to, there may not be enough staff to properly care for all residents and training procedures may not be up to standard. Each of these issues creates a recipe for disaster for patients and employees.

California Elder Abuse Laws (PC 368(c))

California law says that anyone who causes or allows an elderly person or dependent adult to suffer unjustifiable physical pain or mental suffering is guilty of elder abuse. California Penal Code Section 368(c) requires that caregivers and custodians provide a standard of care to all dependent or elderly adults. If that standard of care is willfully not met, the caregiver can also be charged with elder abuse.

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LEAD program diversionLaw Enforcement Assisted Diversion (or LEAD) is a growing pilot diversionary program originally implemented in Seattle and now being used by some California counties. Established in 2011, the program was developed as an innovative solution to drug- and prostitution-related crimes. Criminalization and imprisonment are increasingly seen as inappropriate responses for these non-violent, low-level crimes.

Between the years 1990 and 2008, over 85,000 bookings were made for drug offenses in Seattle alone.1 As a result, experimental diversionary initiatives such as LEAD have been enacted as possible alternatives.

LEAD, with private funding totaling $4 million, was a pilot experiment in which 203 voluntary participants were selected randomly over a period of four years. The program was offered to arrested people who:

  • were not carrying over 3 grams of illegal drugs,
  • had no history of violent crimes, and
  • were not involved in promoting prostitution or exploiting minors within an organized drug enterprise.2

What are Diversion Programs and What Makes LEAD Different?

If you are arrested for a drug possession charge, entering a diversion program may be in your best interest. These programs seek to more effectively reduce the negative social and individual effects which are connected with drugs, such as homelessness and disease. Rather than criminalize drug addiction, diversion programs use a “harm reduction” strategy in which placement in social programs replaces incarceration for those convicted of these crimes.3

There are two main types of diversionary programs: pre-booking and post-booking. A pre-booking program occurs before you are arrested or formally charged, while post-booking occurs after charges are filed.4

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All lawyers have an ethical responsibility to vigorously advocate for their client. In California, a lawyer must put his or her client’s interest above all—even if a client admits guilt. This is because a lawyer never knows if the client is being coerced, protecting someone else close to them, or is not of right mind when admitting guilt.

Innocent Until Proven Guilty

attorney client privilegeEvery American citizen has the constitutional right to a presumption of innocence; that means you are innocent unless the prosecution can prove beyond a reasonable doubt that you are guilty of the crime for which you’re charged.

Your defense attorney’s role is to weaken the prosecution’s evidence against you. If the prosecution has not met their burden of proof, then they have not done enough to justify convicting you of a crime.

When the founding fathers drafted the constitution, they realized that it was better to let a hundred guilty persons go free than to imprison one innocent man for crimes he did not commit. This is because freedom and liberty is held most dear. That is why the prosecution’s burden to prove that you are guilty rather than your criminal defense attorney’s burden to prove that you are innocent.

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According to a recent report by the LA Times, California is experiencing a backlog of mentally ill and developmentally disabled defendants who have been ruled incompetent to stand trial.

The problem is reportedly directly related to a lack of funding and resources to appropriately treat the mentally ill. There are simply not enough beds to house the hundreds of defendants declared mentally incompetent.1 As a result, many mentally ill and developmentally disabled individuals are siphoned into California prisons and jails, where they may be a danger to themselves and others.

mentally ill prisoners CaliforniaAt least one psychiatrist argues that imprisoning the mentally ill only worsens their symptoms; not only because of the environment, but also because sick individuals are not receiving needed medication.2 As a result, some mentally ill are spending more time in jail/prison and in mental hospitals than they would have if they were convicted of the crimes they were accused of. Many experts are now concerned about whether mentally ill defendants are being subjected to cruel and unusual punishment.3

Some argue that Proposition 47 will ease some of the overcrowding issues. Prop 47 is a legislative effort to reduce prison population by reducing non-violent crimes to misdemeanors so that offenders may qualify for a drug or mental health program. However, since its implementation, Prop 47 has had little effect on those declared mentally incompetent. Only 17 offenders have been released under Prop 47.4

California’s failure to effectively deal with those declared mentally incompetent is not only inhumane but it’s a circular problem as it only adds to prison overpopulation. As long as mentally ill patients are denied treatment while housed in prison, they cannot get better and recidivism rates will only increase.

Some are proposing treatment programs in prison as a short-term solution. However, this proposal does not address:

  • The ill effect that the prison environment will have on the mentally ill
  • The overcrowding issue
  • Excessive punishment, and
  • The fact that funding is now spent both to house a prisoner and to treat them, when the funding could be better spent to address the root of the problem.

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Facebook criminal caseIf you are like most people who use Facebook, you probably enjoy reading about the good things that happen in the lives of your social circle, and you probably share the same type of information, photos and videos. In fact, a recent study found that the majority of social media users screen the photos they post online and only post photos in which they seem “socially desirable.” The study also found that social media users “are unlikely to capture shameful, regrettable or lonely moments with a camera.”1

Yet these same purposefully positive posts can be used as evidence against you in court. Because most people only post photos in which they appear happy on social media, it could hurt their case if they claim they are unhappy.

Emoticons and Birthday Wishes May Be Used Against You

Don’t think that photos and status updates are the only thing that can be used against you as evidence. All those birthday wishes from friends, family members, co-workers and people you are connected to may hurt your case as well. You may also want to stop using smiley face emojis.

Take for example, the case of a woman who was injured when her chair collapsed at work. The woman sued the manufacturer of the chair, claiming the collapse caused her to suffer a serious back injury that confined her to her home and caused her to suffer a loss of enjoyment of life. The manufacturer checked out the woman’s social media profiles and found that the woman regularly used smiley emoticons, indicating the woman was happy.2

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You have just gotten home from a long, difficult day at work. You are at a point where you can relax and truly consider yourself done for the day, and now it is time to have some fun. You fire up your Xbox and start playing “Grand Theft Auto V,” the open world game where you can commit just about any act of violence or criminal mischief you have ever imagined doing if there were no real-life consequences. Steal a car? No problem. Rob a liquor store? Have at it. Murder other players and steal the money they drop? No one will stop you.

You find yourself dominating other players in deathmatches and capture missions. As the police chase you all over the fictional city of Los Santos, the sirens blaring on your TV drown out the sounds of those coming from the real police cars headed down the street to your house. Without warning, police dressed in full body armor and armed to the teeth burst into your house and order you to place your hands behind your head and lie face down on your floor.

You have just been “swatted.”

What is “Swatting?”

swatting prank“Swatting” is where, either as a practical joke or as revenge, a person or group will gather up personal information on you and send police to your home or business, claiming that a heinous crime has been committed. Usually, the prank will involve a dire and urgent situation, such as a hostage taking or a murder. The goal is to make the report so dire and urgent that police will send a Special Weapons and Tactics (SWAT) team.

The result is that the victim finds him or herself staring down the barrel of a police officer’s assault weapon. In many cases, the victims have been people who play games while streaming their gaming to an audience on Internet sites such as Twitch or Periscope. In other cases, victims have been celebrities, such as singer/actress Miley Cyrus and rapper Lil Wayne.

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About Wallin & Klarich

Wallin & Klarich was established in 1981. Over the past 32 years, our law firm has helped tens of thousands of families in their time of legal need. Regardless of whether our clients faced criminal or DUI charges, the loss of their driving privilege, or wanted to clean up their criminal record, we have been there to help them.