Articles Tagged with criminal defense

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The Fifth Amendment to the U.S. Constitution protects you from incriminating yourself. However, the Fifth Amendment does not apply to physical evidence, such as your fingerprint. So, what happens when police ask you to use your fingerprint to unlock an iPad? Do you have to provide your fingerprint to police?cellphone_smartphone_text_sext-300x169

According to a recent court case, police have a right to ask you for your fingerprint. Why is providing your passcode to unlock your phone protected by the Fifth Amendment while your fingerprint is not?

Touch ID and Your Right to Your Fingerprint

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It is safe to say that most people have an expectationInternet_Social-Media_Computer_Cellphone.jpg of privacy when it comes to sending messages and information on Facebook. Although posts on your wall and comments may be readily available for the public to see, you probably expect the private messages you send to remain private.

So, when you’re the alleged victim of a crime, you probably have the same expectation of privacy. However, this expectation of privacy was recently called into question in a California criminal case.

Defense Lawyers Ask Facebook for Access to Alleged Victim’s Social Media Account

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Earlier this year, under President Trump’s aggressive immigration policies, Immigration and Customs Enforcement (ICE) agents began keeping a watchful eye on people coming in and out of courthouses, seizing an opportunity to detain immigrants for possible deportation. ICE argued that courthouses made for a safe area to detain suspected illegal immigrants because the security measures at courts help remove the possibility of an armed confrontation.

https://www.southerncaliforniadefenseblog.com/files/2017/09/ICE.Immigration.Arrest.Deportation-300x188.jpgIn March, California Chief Justice Tani Cantil-Sakauye wrote to Attorney General Jeff Sessions and Department of Homeland Security (DHS) Secretary John Kelly asking their departments to cease the “stalking [of] undocumented immigrants in our courthouses to make arrests.”

In her letter, she made the argument that the threat of deportation prevents witnesses and victims of crimes from coming forward, which makes the communities in which they live less safe.

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The California Department of Justice recently released its annual report on crimes. For the year 2016, several notable trends were spotted. Here is a look at some of the important statistics in the report.California-300x145

Violent Crime Increased for the Second Year In a Row

In 2016, violent crimes, including homicide, rape, robbery and aggravated assault, increased by 4.1 percent compared to 2015. There were 8,113 more violent crimes committed in 2016 than the previous year. This is the second year in a row in which violent crimes have increased.

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After you are arrested, the court will typically assign bail. Bail is a monetary payment made by the defendant in order to be released from custody while the case is pending. The money is held by the court as a way to ensure the defendant will show up to his or her court dates. The money will eventually be returned to you if you do not miss any of your court dates, but the process may take more than a year.Money_Jail_Handcuffs-300x145

This system has been in place in California for many years. However, there is growing sentiment that the California bail system unfairly punishes poor people. Now, California lawmakers have turned to Kentucky as a possible example of how to reform the bail system.

Is California’s Bail System Unfair?

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The legality of firearm possession for people who have committed crimes in California is often a difficult issue. If you have been convicted of certain crimes, not only are you subject to California’s laws restricting gun possession, but you are also subject to a strict federal law – the Lautenberg Amendment (18 U.S.C. 922(g)(9)) imposes a lifetime ban on gun ownership by any person who has committed a “misdemeanor crime of domestic violence.”battery_convicts_firearm_possession.html

This is easy to understand if you have a felony conviction: If you are convicted of any felony, regardless of your age or whether the conviction was in California, you are subject to a lifetime ban on gun possession under California Penal Code section 29800.1

However, with misdemeanors, the ban is less clear. California law also applies a lifetime ban on firearm possession to certain misdemeanors involving the use of a firearm, such as misdemeanor domestic violence crimes, assault with a firearm, or having two convictions for brandishing a firearm. This ban is consistent with the federal law.

Adding to the confusion is this: Under California Penal Code section 29805, California has a 10-year ban on firearm possession by anyone convicted of any of 40 different types of misdemeanors.2 Among those is the crime of misdemeanor battery.

While California’s Court of Appeal ruled in 2013 (Shirey v. Los Angeles County Civil Service Commission) that people convicted of misdemeanor battery under California Penal Code section 242 are not prohibited from possessing firearms under the federal law,3 a more recent ruling by the United States Supreme Court has cast doubt on the prospects of gun possession for people convicted of misdemeanor battery.

United States v. Castleman and the Meaning of “Physical Force”

In 2014, the Supreme Court upheld a lifetime ban on firearms for a man who had a misdemeanor conviction under a Tennessee domestic violence law for “intentionally or knowingly cause[d] bodily injury to” the mother of his child. He had successfully argued in lower courts that his conviction for firearm possession was invalid because his prior conviction did not require proving he had violent contact with the victim, which was required under the law.4

The court in Castleman changed course, holding “that the requirement of ‘physical force’ is satisfied, for purposes of §922(g)(9), by the degree of force that supports a common-law battery conviction.”5 The court reasoned that the general policy behind the Lautenberg Amendment supports “grouping domestic abusers convicted of generic assault or battery offenses together with the others whom §922(g) disqualifies from gun ownership.”

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Many drivers dread the sight of a police car in the review mirror, hoping the sudden flashing of lights and blaring of a siren will not ruin their day. Should that happen to you, it is important that you understand what the police are and are not allowed to do during a traffic stop.


Reasonable Suspicion and Probable Cause

The Fourth Amendment to the U.S. Constitution protects people from unreasonable searches and seizures. Over time and through various Supreme Court decisions, the Fourth Amendment has come to mean that you cannot be arrested (or “seized”) without probable cause, which requires that law enforcement officials had reason to believe you committed a crime, were in the act of committing a crime, or were about to commit a crime.

However, the standard that an officer must meet simply to pull you over is not as high as probable cause. To initiate a traffic stop, all an officer must have is a “reasonable suspicion.” Reasonable suspicion is a standard established by the Supreme Court in a 1968 case in which it ruled that police officers should be allowed to stop and briefly detain you if there is reason to believe that you are engaging in criminal activity.

Notice the difference between the two standards: probable cause is from the point of view of a reasonable person; reasonable suspicion is from the point of view of a reasonable police officer.

What Officers Can and Cannot Do

Without reasonable suspicion or probable cause, officers are very limited in what they are allowed to ask of you during a traffic stop. They can:

  • Ask you for your identification, driver’s license, registration and proof of insurance.
  • Act on circumstances or facts that provide reasonable suspicion or probable cause that you engaged in criminal activity.
  • Conduct a “sniff test” for drugs outside of the vehicle with a police dog (K9 unit), provided the sniff test does not extend the length of the stop.

There are many acts an officer cannot do if he or she stops you and doesn’t have reasonable suspicion. An officer cannot:

  • Search your vehicle without your consent. Always remember that you have the right to refuse a search of your vehicle!
  • Detain you for longer than necessary to affect the reason for the stop.

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In 2002, Steven Spielberg directed Tom Cruise in the movie Minority Report. Spoiler alert: the movie’s plot focused on a detective in a futuristic world where the police used the gifts of three people who could see into the future to stop crimes before they could happen. Fourteen years after that movie’s release, it seems that all Cruise’s character would have needed is some Internet savvy to find out whom he should be arresting.Gen-32-300x200.jpg

Police agencies are turning to social media platforms to predict future crimes, as it is becoming increasingly prevalent for would-be criminals to thumb out a message on Facebook or Twitter that either directly indicates that they might commit a crime, or is a part of a pattern of messages that indicates that they might commit a crime.

Analyzing the Emerging Patterns

Dr. Sean Young, a behavioral psychologist at the University of California’s Institute for Prediction Technology and professor at UCLA’s medical school, analyzes data on social media, mobile device usage and online searches to show how these digital interactions can predict future events. The goal is to find how these daily interactions that happen millions of times per minute worldwide can be used to predict tragic events and possibly prevent them from occurring. According to Young, the data can predict events ranging from disease outbreaks to violent crime.1

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There is a Latin phrase that many attorneys learn in law school: “post hoc, ergo propter hoc.” Basically, that phrase translates to “after this, therefore because of this.” When one event is seemingly related to an event that follows it, there is a tendency to assume the second event was caused by the first event. However, this principle of causation is generally not true. Applying this idea would be like claiming that the St. Louis Rams decided to return to Los Angeles because their last playoff appearance was 10 years ago.unnamed-300x199.jpg

With this fallacy in mind, it is worth asking whether a change in the way crimes are classified affects the frequency in which they are committed. According to some, this is exactly what has happened in California since voters passed Proposition 47 (also known as the “Safe Neighborhoods and Schools Act”) in 2014.

The law reduced the penalties for certain drug and theft crimes to address the problems of harshly punishing non-violent offenders and jail overcrowding. The law is both prospective and retroactive, changing how crimes are charged going forward and allowing people who are serving time or have served time to have their felony conviction reduced to a misdemeanor. Continue reading →

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It has been famously said that ignorance of the law is no defense. With that in mind, the lawyers at Wallin & Klarich are here to remind you that with each new year comes new laws that you need to know about. By keeping yourself up to date, you can avoid the embarrassment of telling a police officer “I didn’t know I couldn’t do that!”Legal-2-300x199.jpg

California Gun Laws for 2016

New laws relating to gun ownership take effect in 2016. One of them, Senate Bill 707, amended parts of the Gun-Free School Zone Act of 1995.1 Previously, persons with a valid concealed carry permit were exempt from firearm bans on public or private school campuses. SB 707 updated the law to eliminate this exemption, except for certain retired peace officers. Violating the act by bringing a gun onto a school campus is punishable by two, three or five years in state prison.

Along with SB 707, Governor Brown also signed into law Assembly Bill 1014. This gun violence restraining order law allows law enforcement officials to seize firearms from individuals who pose a threat to themselves or others.2 Once a family member or law enforcement officer asks the court to issue a GVRO against someone, that person could be banned from possessing a firearm for 2` days or one year, depending on the circumstances of the case.

Rules of the Road

Several new laws affecting drivers took effect with the new year. Senate Bill 491 makes it a crime to operate a motor vehicle while wearing headphones in both ears.3 This law applies to bicycle riders as well, and carries with it a potential fine of $160.4

Assembly Bill 208 extends to bicycle riders the requirement that slow moving vehicles pull over to allow cars to pass when five or more cars are behind them.5 Assembly Bill 604 puts regulations on the use of popular “hoverboard” scooters.6 Riders must now be 16 years old or above to operate a hoverboard and are required to wear helmets.

Drinking and Drugs

Senate Bill 212 creates additional penalties for manufacturers of methamphetamine and the marijuana concentrate known as butane hash oil.7 Judges can now impose longer prison sentences when methamphetamine is made within 200 feet of an occupied residence or structure, and when butane hash oil is made within 300 feet of an occupied residence or structure. Legislators argued that the explosive nature of the chemicals used to make those drugs warranted harsher penalties.

For those people who have been convicted of a DUI in Alameda, Los Angeles, Sacramento, or Tulare counties, Senate Bill 61 extended a pilot program that requires ignition interlock devices to be placed in cars. A first time DUI conviction will result in the device being placed in your car for five months, a year for a second DUI, two years for a third DUI, and four years for each subsequent DUI conviction.8 Continue reading →

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.