Criminal Procedure

Q. My daughter was ordered by a court to take all her medications as a condition of her probation at sentencing. Can a court do this?

A. A probation condition requiring a person on probation to take all medications prescribed by their doctor can be unconstitutionally vague and overbroad and, therefore, illegal. In a recent case, there was no evidence that the defendant had resisted, declined, or forgotten to take prescribed medication or that the defendant even had any particular disorder for which the medication would be appropriately prescribed. The court interpreted this condition as being unconstitutionally vague and overbroad because it could include medications that lack any reasonable relationship to the offense of which the defendant was convicted or his rehabilitative needs. The appellate court sent the case back down to the trial court to reconsider narrowing the language as to what medication could be prescribed, if any.

The Court of Appeal reminded the trial court that there is a California state constitutional right to decline unwanted medication and a Federal right to avoid the forced administration of psychotropic or anti-psychotic drugs. The requirement of taking drugs might be imposed in a case but it must be narrowly tailored and reasonably necessary to address an identifiable disorder, conditional problem that the defendant is suffering from, or is reasonably related to the current offense or future criminality or rehabilitation for which the medication is appropriate. The court must make express findings that the requirement is both medically appropriate and reasonably necessary. The court also held that an alcohol-related condition of probation may be imposed if the defendant has a long history of drug and alcohol abuse, even if the present crimes were not alcohol related, because the condition of probation would help the defendant combat alcoholism and, in so doing, facilitate rehabilitation (People v. Murillo, 171 Cal.App.4th 210; February 18, 2009).

Attorneys should always look for a connection between proposed probation orders and the offense which is the subject of any sentence. Lawyers in our Sonoma, Napa, Marin, Lake, Mendocino and Humboldt offices have the experience to understand this fundamental requirement in California sentencing law.

Q. Can the police stop and investigate a person or vehicle on information received from an Anonymous telephone call?

A. No! An anonymous tip (information given to the police from someone who refuses or neglects to identify themselves) is generally insufficient to justify a temporary detention for investigation by the police. The Fourth Amendment (US Constitution) prohibits unreasonable searches and seizures by the police and this extends to brief investigatory stops of people or vehicles. Without anything more, an anonymous tip by a citizen is presumed to be unreliable.

Fortunately, the police cannot rely on a mere hunch or guess that criminal activity is occurring. However, after receiving an anonymous tip, if the police witness additional corroborating behavior that raises a reasonable suspicion of criminal activity, they may then make an investigatory stop of a person or vehicle.

In a recent case, the police received a tip about a person selling drugs but that information by itself was insufficient for the police to temporarily detain the suspect. However, once they arrived on the scene and saw the conduct that they believed, based on their training and experience, was a drug transaction (confirming the criminal conduct alleged in the anonymous telephone call) there was sufficient legal justification to make a temporary detention of the suspect.

Q. A police officer saw my passenger flicking cigarette ashes out the window while we were waiting for a red light. He pulled us over and I was arrested for a DUI. Can he legally stop us for flicking ashes out the window?

A. Probably not. Although litter is something we all want to constantly avoid for obvious reasons, there is no specific state law (statute) which prohibits all forms of litter. VC (Vehicle Code) - 38320 and VC-23112 prevent the throwing of garbage from a vehicle but the ashes from a cigarette would not qualify under that law.

Further, VC-23111 and the nearly identical H&S- 3002 prohibit throwing cigarettes, cigars, matches or any flaming or glowing substances from your car. Fortunately for you, your attorney should be able to establish, through the filing of a Motion to Suppress, that a cigarette ash does not qualify as either a cigarette, or a lighted, flaming or glowing substance. In summary, if the police officer exceeded his authority and stopped you for an act which does not constitute a crime, any and all evidence which he discovered as a result of the stopping of your car can and should be thrown out of court. This evidence includes the police officer's observations of your behavior, the results of any field sobriety tests including a portable breath test, the results of any blood or breath test taken at the police station, etc.

Q: Is it legal for police officers to stop and question me when I am visiting someone who is on probation?

A: Yes, under certain circumstances. If an individual is on probation and a condition of probation is that he not associate with known felons (someone who has been convicted of a felony crime) officers can detain you to determine if you are a convicted felon. The courts have decided that police have no other way to enforce a convicted felon’s probationary term unless they can identify the probationer’s associates and determine if they are known felons. The courts give more weight to the government’s interest in enforcing a term of probation than the privacy interest of people associating with the person on probation. This detention and questioning of others by police officers often results arrests of those individuals for possession or use of drugs, possession of weapons, outstanding warrants, etc.

Q: Can the police trick somebody into leaving their house so they can get information and then make an arrest based on the information obtained by false pretenses?

A: No. In a recent court case involving possession of methamphetamine, police officers went to the defendant's house without a warrant to conduct a narcotics investigation. Their plan was to trick the defendant into leaving the house and then search him. An officer went to the door and lied, telling the people inside that he had hit the defendant’s truck. When the defendant went outside, the police asked him questions, obtained his consent to search his person and discovered meth.

All of the evidence found was suppressed (thrown out). The court ruled that the use of a police trick led to an illegal detention and the defendant’s later consent to search was a product of that illegality. So, the items found during the illegal search were thrown out. Although the law does allow a police officer to attempt to trick or falsely induce a suspect to leave a house to engage in criminal activity, the police may not lure someone from his house to engage in lawful activity. Tricking someone to do something purely legal invalidates the subsequent consent to search, and denies the prosecutor the use of any resulting evidence against the person arrested.

Q: I was recently stopped for a traffic violation. When the police discovered I didn't have a valid driver's license, I was arrested and my car was impounded. Afterwards they searched my car and I was charged with possession of marijuana. Is this legal?

A. Yes. Once the vehicle has been impounded, police officers have limited by substantial authority to search both the interior and exterior of any truck, car or motorcycle. These searches are referred to as Inventory searches and apply to vehicles that, for one reason or another, have been taken into custody of the police. Police officers can search almost all receptacles, bags compartments, etc. to (1) protect an owner's property while it is in the custody of the police, to ensure against claims of loss, stolen or vandalized property or (2) to guard the police from danger. However, the procedures for searching the vehicle must be standardized or follow an established routine.

An inventory search may not be used to generally rummage through a person's belongings to discover incriminating evidence. Also, the law recognizes no significant difference between bags or pouches temporarily attached to a vehicle (or motorcycle) and more permanent receptacles such as glove compartments or trunks. It is not uncommon for someone to have their car towed by the police for an expired registration or suspended license and the subsequent search of the vehicle result in the driver being charged with a more serious crime such as possession of drugs, possession of a concealed or loaded weapon, etc. Finally, if the police want a more thorough search than that which is authorized as an Inventory search they must then go to a judge and apply for a search warrant. These types of searches are much more invasive and involve removing various parts of the car, such as carpeting, door panels, dashboard, etc.

Q. The police went through the trash that was in my garbage can on the street waiting for the garbage men. Can they use something they find in my garbage against me?

A. It depends! Generally, the police have to acquire a search warrant to search any place i.e. house, office, place of business, etc. which a person expects to be private. If a person has a reasonable expectation of privacy, the police are required to go to a judge and attempt to get a search warrant.

However, items which have been discarded or thrown in the trash are not generally considered as having a reasonable expectation of privacy. In a recent case, a court ruled that a judge could issue a search warrant, requested by the police, who found gambling chits (recordings) inside a plastic garbage bag in the trash. Ultimately, narcotics were found inside the house.

In another case, the police searched an auto body shop and found crucial fingerprint evidence on beer cans and orange juice containers. The court ruled that since the defendant was someone who had either been there for business purposes or was an invited guest of the auto body shop owners, he had no reasonable expectation of privacy in those premises because he had only been there occasionally and the evidence could be used against him.

Abandoning items, by putting them in the trash or leaving them in an unguarded or public place will almost always certainly expose them to discovery by the police. In your particular case, any discriminating evidence that you left in your trash on the street can be used against you by the police, either by charging you with possession of an illegal item or, using the items to convince a judge to issue a search warrant for your house, the area around your house, your garage, etc.

Q. My friends and I were riding around in a car and the police pulled us over because we were suspicious. After they stopped us, they found some illegal drugs. Can they use these drugs in court against us?

A. Probably not. If the stopping of your car (a detention) was based on mere curiosity, rumor or a hunch it is unlawful. Even though the police officer may have been acting in good faith, the evidence cannot be used against you in court. If the stop is unconstitutional, any evidence they find as a result of that illegal detention will be thrown out of court. The Fourth Amendment's protection against unreasonable searches and seizures requires that traffic stops be supported by articulable facts which give rise to an objectively reasonable suspicion that the driver or passenger has violated either the Vehicle Code or some other law. A police officer's gut feeling that the car's occupants are involved in some type of criminal activity is insufficient. To detain somebody, the police must have a reasonable suspicion that the suspect(s) has committed or is about to commit a crime. The courts have made it very clear that it is the right of every person to enjoy the use of public streets, buildings, parks and other conveniences without unwarranted interference or harassment by agents of the law. This right, however, is tempered by law enforcement's right to effect a limited detention of one whom the officer reasonably and in good faith suspects of being engaged in criminal activity.

Q. What is a bail and how does it work? Are there different kinds of bail?

A. Bail is the security given to a court to ensure that a person who is released from jail will appear in court when required. There are four ways to post or put-up bail to get a person released from jail:

(1) Deposit of Cash, Check or Money Order - Although fairly unusual (because most people don't have this type of money readily available), any person, including the person arrested, can deposit money with the jail in the full amount of bail (i.e. $5,000.00, $10,000.00, etc.) The disadvantage of this type of bail is that the money is held by the court until the criminal case is completed or until the judge cancels the bail. The advantage is that the entire amount is returned to the person who deposited it and, therefore, there is no cost for this (usually 10% with a bail bondsman) with the exception of, perhaps, the lost bank interest.

(2) A Deposit of Government Bonds - This is also extremely unusual because very few people have an accumulation of United States or California bonds in the amount of the bail. Also, the court will not usually accept the face value of the bonds, but rather only their actual present market value.

(3) Giving Real Estate as Security - Equity in real estate (the difference between the value of real estate and the amount owed against it) can be used by the court as security. The equity must be twice the amount of the bail. For example, if the bail is $20,000.00, the equity in the house (or other personal property) must be valued at $40,000.00 or more.

(4) Using the Services of a Bail Bondsman - This is the most common source of bail. A bail bondsman will supply the court with an undertaking or promise by the bail bondsman to pay the full amount of bail if the person does not appear in court. A bail bondsman generally charges 10% of the total bail (i.e. $2,000.00 on a $20,000.00 bail). This amount is non-refundable but is generally the quickest way of getting a person out of jail.

Q. After I was arrested and released, my bail bondsman gave me a court date for an arraignment. What exactly is an arraignment?

A. An arraignment is usually the first court hearing that begins a criminal case. In most misdemeanor cases, if you are represented by a private attorney, you do not have to personally appear. By the same token, you must personally appear if you are charged with a felony.

Several things are generally accomplished at the arraignment: (1) the issue of bail may be discussed if you are still in custody and, if you are out of custody, the bail can be raised or lowered or an additional hearing set to discuss these issues. (2) generally, you are provided with both the criminal complaint which describes the charges the District Attorney has levied against you and the police officer’s arrest/ investigation report. (3) if you can’t afford a private attorney, that is the time to ask the court to appoint a public defender to represent you, (4) this is your first opportunity to enter your response or plea to the charges which is almost always a "not guilty" plea, and (5) this is the first opportunity for the Judge to schedule your case for a future court appearance which is generally a pre-trial motion, a settlement conference, a preliminary examination hearing (in felony cases), etc.

Although you are generally entitled to represent yourself at the arraignment, it is inadvisable for you to do so because there are numerous waivers of rights, time limits, etc. that are involved in an arraignment which can be a problem if not handled properly by an attorney.