Category Archives: Police

Fed Kicks

Whenever I am at the Larson Justice Center in Indio, one of the major topics of conversation is “fed kicks”.  A fed kick (also called federal release) is an early release from the county jail because the jail is full.  Under a long-standing federal court order, the Riverside County Jail must release inmates after it reaches a fixed population cap.  In 2012 Riverside County released over 6,000 inmates early.

Criminal defendants and inmates in the jail seem to be comparing notes, trying to figure out how to game the system and figure out the best way to deal with their cases, given the reality of federal releases.  The most important thing to realize about a fed kick is that it is in no way guaranteed.  Many people will serve their entire sentence.  This is not a fair process, just because one person was kicked from the jail does not mean that the next guy will identical charges will also get out.  The number of fed kicks will be in large part based upon the number of arrests coming in.  For example, a big gang raid will mean that many inmates need to be released to make room for the new arrestees.

These are the most important things to keep in mind when trying to figure out if a person will be federally released:

1) The fed kicks seem to apply to both sentenced inmates (who have already gone to trial or took a deal) and to inmates held on bail pending trial or plea.  At one time I read the sheriff was prioritizing fed kicks for people pending trial because they are “innocent until proven guilty”.  I don’t know if this in an official policy or if they continue to make this a priority.

2) A person with other holds or warrants will not be released.  Anybody with an immigration or ICE hold is going to be stuck in county jail.  As is any individual with a warrant from another county.

3)  Only certain categories of crimes seem to be eligible.  Broadly, non-violent theft crimes and drug crimes seem to be eligible for early release.  People charged with domestic violence, sex crimes, and  violent crimes are going to stay locked up.

4)  Don’t count on federal release if the inmate is a gang member or registered sex offender.

You have the right to an attorney….(a broken promise)

Today, March 18, commemorates 50 years since the United States Supreme Court in Gideon v. Wainwright determined, for the first time, that poor defendants have a right to an attorney in criminal cases. And while most people waive flags and scream about any violation of Second Amendment guarantees, few recognize and fight for Americans’ rights regarding the Sixth Amendment Right to Counsel.

As a background, Clarence Earl Gideon was an uneducated, unsophisticated, poor and homeless man who had grown up without his father. He began getting in trouble as a young boy and eventually was charged with burglary and theft from a pool hall where they alleged he stole a few bottles of beer. As a stroke of luck, Mr. Gideon asked for an attorney for his trial and was denied by the judge who reminded him that only death penalty defendants were entitled to counsel. Mr. Gideon was outmanned and outgunned and lost his trial easily against an experienced prosecutor. The judge sentenced him to the maximum penalty : 5 years in prison.

Mr. Gideon spent his time in prison researching whether he actually had the right to an attorney for his case, and he determined that he did indeed. He hand-wrote, in pencil, a letter to the Supreme Court (after Florida Courts had refused to hear his case) and the Supreme Court decided to review his case. The Court appointed prominent attorney, and later Supreme Court Justice, Abe Fortas to argue Mr. Gideon’s side. In a landmark 9-0 ruling, the Court determined not only did Mr. Gideon have the right to an attorney, but that the States had to provide attorneys for poor defendants.

As a result of the decision, 2000 inmates in Florida alone were freed. Mr. Gideon was not. The State of Florida sought to re-try Mr. Gideon and, with the help of his new attorney, Mr. Gideon was found NOT guilty.

Mr. Gideon’s acquittal at re-trial speaks volumes about the necessity for an attorney. Yet, if you run a simple google search about Gideon’s amazing promise to protect our Constitutional rights, the search results will discuss the failure of this promise. Public defenders are saddled with more cases than any attorney could handle. As a recent attorney at the Riverside County public defender office in Indio, I know this issue firsthand. As a felony trial attorney, I had more cases than I could reasonably take to trial in 4 years, even while I had cases carrying the potential result of life in prison without parole. During my time at the office, felony preliminary hearing attorneys had caseloads ranging from 60-120 at a time. These attorneys spend a majority of their time in court waiting for their cases to be called and have little time to investigate, research the law, or meet with their clients. Misdemeanor attorneys have caseloads ranging from 120-200 cases at a time. That’s 120 people to meet with,120 investigation requests to write, 120 discovery requests to submit, witnesses to interview, etc., etc….and they are assigned new cases every day. With these sheer numbers, it’s easy to see why even the most dedicated, intelligent, and hard-working public defender might not be able to do as much as they would like on a case.

This is the story at public defender offices across the country. To be fair, California has come a long way in providing the resources for indigent defense, but as you can judge by the numbers above, it’s still not enough. And other state public defender offices are even more overwhelmed.

As you read this, you may be asking why you should care about this issue. First, consider that in Riverside County alone over a year (this is a few years back), the Prosecution had a guilty verdict rate on all charges of around 45% in the cases tried that year (this is from memory and taken from a local judge’s statistics). That means that 55% of people were judged to have been wrongfully held in jail, had their freedom denied, lost their jobs, and spent a lot of time fighting unjust charges. That wrongfully accused person could be you. Remember Mr. Gideon? He was only guilty of leaving a pool hall at the wrong time.

Second, attorneys keep the police in check. Do you know if you were legally stopped? You might question the validity of the police stopping and searching you, or of the police busting down your door and searching your house, but do you truly know if the stop was legal? Do you know how to find out? A good attorney will know almost at first glance if the stop or search was valid. A good attorney will further know how to suppress the evidence or statements that you gave due to the unlawful stop or search. In my practice, I have been told by police officers multiple times after questioning them that they will never do a practice again because I had evidence or statements thrown out of court. Good attorneys change the way the police treat you – for the better.

Finally, attorneys may be the only one on your side. Many clients have told me that I am the only person who believed in their innocence and fought for them. The prosecution is always well-funded and has the benefit of the local police, the sheriff’s department, their own investigators, the Department of Justice, and sometimes even the FBI and ICE to aid them. Add these overwhelming resources to the judge in your case, who most likely recently left the prosecutor’s office, and the jurors who stare at you and overwhelmingly believe that if you’re sitting in that defendant’s chair, “you must have done something.” Can you imagine the weight of all this on you, an innocent man or woman? Your attorney is the only thing that stands between you and this overwhelming show of governmental power. It can happen to you. Believe me.

I get teary whenever I read any individual story of a man exonerated after being wrongfully convicted (over 200 individuals from death row alone!). Let’s just hope that people begin to take the 6th Amendment as seriously as the 2nd and finally fulfill Gideon’s broken promise.

Doing drugs at the Coachella Music Festival

If you are determined to do drugs at Coachella, here are some tips to be smart about it.  Coachella is crawling with undercover cops, and a felony arrest is the worst way to end your vacation.  The law is very different for marijuana and other drugs, so I will address the issues relating to their use and sales separately:

1) Medical Marijuana

Marijuana is not legal in California.  If you are a California resident with a valid prescription  you may possess an amount of marijuana appropriate to your medical needs (don’t expect to get caught will a pound of bud in your backpack and avoid arrest because you have a card).  Prescriptions from other states are also probably not valid.

2) Strictly Recreational Marijuana

Possession of less than one ounce of marijuana is an infraction, not a criminal offense.  This means that if you are caught with less than an ounce, the police will just take your bud and issue you a ticket – similar to j-walking.  A fine of a few hundred dollars is the highest penalty, and the ticket can be contested in traffic court, but there is no right to a jury trial.  Possession of more than one ounce is a misdemeanor and can result in arrest, jail, and expensive fines.

Most troubling marijuana cases involve sales, possession for sales, or furnishing.  A guy who shares his marijuana with another person is furnishing drugs, and is technically guilty of a felony.  A person who gives his last joint to an undercover cop who repeatedly asks, even begs, for the joint will be arrested and charged with sales, especially if the person reluctantly accepts a $10 “donation” for the joint.

 3) Meth, Cocaine, Ecstasy, and LSD

Possession of any of these drugs will result in arrest and a felony charge, including possible jail time.  That said, there is a vast difference between simple possession (for personal use only) and possession for sale or actual sales.

When a person is charged with simple possession (personal use), they will typically be permitted to complete a drug program and have their case dismissed.  People with extensive criminal records, especially “strikes” are sometimes excluded.  Also, be warned that such charges may result in ineligibility for student financial aid and deportation for non-citizens.

Sales and possession for sales are completely different.  Sales charges are non-reducible felonies and will typically involve real jail time.  Police will look for a combination of factors when determining whether to charge for possession for sales or simple possession: 1) larger quantities of the drug; 2) separate or individual packaging; 3) large quantities of cash indicate sales; 4) multiple cell phones; and 5) written notes keeping track of drug sales.  If you don’t want to be charged with sales, avoid any of these indicators.

4) Urban Legends (“Are you a cop?” and Entrapment)

It seems to be a typical piece of street wisdom among drug dealers and prostitutes that cops cannot lie to you if you ask directly before selling to them, “are you a cop?”  This is complete nonsense.  If you ask the undercover cop if he is a cop, he will tell you “no”, then buy drugs from you and arrest you.  Police can and do lie to suspects.  It is part of typical police technique and training.

Entrapment is also another common complaint coming from people who inadvertently sold drugs at the Coachella Music Festival.  Suppose an undercover cop in tiny shorts and a bikini top flirts with you and asks ten times for a hit of X, so you go score some X for her from a friend of a friend you know is also at the concert.  You will be charged with sales.  You may possibly have an entrapment defense at trial, and it could work.  But that won’t prevent you arrest, charging, and being brought to trial.  Entrapment really amounts to a complicated legal defense at trial.  The police can and will entrap you.  Be prepared for a large investment of time and money getting your case in front of a jury.

5) How to Spot an Undercover Cop or Police Informant

Don’t even try, you can’t.  The informant may be a sexy girl in a bikini (this is documented and very true) or a convincing stoner.  Don’t give drugs to anybody you don’t know!

6) What do I do if I am Arrested?

Don’t make any statements to the police.  Tell them you need to speak with an attorney first.  Contact an experienced criminal defense attorney.

Check out this article if you are looking for tips on have a safe, legal, and fun time at Coachella!

What do I do if I am Pulled Over for DUI?

It depends.  If you have not been drinking or only had one or two drinks, just do everything the officer says and be on your way.  The more problematic situation arises when you know you have had a bit too much or are not sure.  If you do what is described below you may anger the officer, but stick to this if you want to beat a potential case – if the officer is getting frustrated it is only because you are lawfully hampering his efforts to collect evidence that will be used to prosecute and convict you.

1) Do not look at the officer any more than necessary.  DUI drivers are inevitably described as having “red and watery eyes”.  If it is daytime, keep sunglasses on.  Do not take them off it the officer asks you to remove them – just tell the officer “no”.

2) Only crack your window slightly when speaking with the officer.  They will attempt to smell your breath.  Do not give them the chance.

3) Refuse to perform field sobriety tests (FSTs).  If chemical test results later show sufficient BAC, the officer will ALWAYS write that you failed the tests.  You are under no obligation to do FSTs, simply refuse.  This may anger the officer, but only because he is trying to get evidence to prosecute and convict you, it is perfectly legal to refuse to do these tests.

4) Do not make any statements to the officer.  Only give your name.  In response to questioning, tell the officer you do not wish to make statements or you do not wish to speak with him.  Do not talk about how much you have had to drink, where you are going, or make any small talk.  The officer will write in his report that you had slurred speech.  Only talk the absolute minimum necessary so he cannot make that observation.

5) Refuse PAS test.  The officer will ask you to blow into a machine during the stop.  You have no obligation to blow into this device.  Simply refuse to do this test.  (Note, you MUST complete the later chemical test after arrest – the blow machine or blood test at the police station).

6) Make the right choice about chemical testing.  If you do not take a chemical test after arrest, you will lose your driver’s license.  However, you do get to choose between breath and blood tests.  If you choose blood, the test time may be delayed somewhat as the police must call a phlebotomist (person who draws blood) to the police station.  This may result in a lower blood alcohol level at the time of the draw.  However, there is a serious drawback – if there are any other substances other than alcohol, the blood test will reveal them (marijuana, Vicodin, etc.) – this will make the DUI much worse.  Breath testing only tests alcohol.

Follow the above rules and you will have an excellent chance at beating your DUI!

Overflowing Jails, Police Budget Cuts, and Declining Crime Rates

The Desert Sun recently did a long article that essentially provided various desert police departments a forum to whine about scaling back and budget cuts during recent years of recession and overall scaling back of government services.  Of course, there was almost no discussion of the value that police are providing for our tax dollars.  The fact that the crime rate continues to fall was briefly discussed and quickly dismissed.  The important message, as usual, is that unless public safety starts getting much more of our tax dollars, we will all be subject to an unbearable and horrific crime wave.  Is this fear-mongering?

Anyway, the crime rate is still falling (locally and nationwide), despite the horrible recession, decline prison populations, and declining police “protection”.  None of the smart people in charge of thinking about these things really knows why – check out discussions of this topic here and here.  This article even links inflation and crime rates!

And despite the misleading commentary in this “investigative” piece, even in this new (supposedly more dangerous) environment of reduced policing, law enforcement is not among the 10 most dangerous jobs.