Below is a copy of a very few laws and cases dealing with drug related matters. It was put together before the death of my friend Bill Mayo ESQ with my help and was part of his previous website before his death. It is with his permission I use it and will update it as often as possible. Bill was the finest example of an advocate for his clients and warrior against oppressive government at whatever level he could attack it that I have ever known in my almost 40 years of practice. All credit for the content is given to Bill and I hope I will be worthy enough to update it. Remember drug laws change daily at the Federal, State, County, and even City level often so do not depend on any case law or laws on this website as a definitive source in regards to rules, legislation, laws, or cases. It is an overview and you must consult with a drug law specialist as to current law.
If you have been arrested for a drug offense – typically, a felony – or if you know someone who is being investigated for a drug-related offense, you or they absolutely, positively need an attorney who knows the law, who will pursue justice in your/their case, and who can and will protect your or their liberty and property interests in a court of law. At the Law Office of Joe VanDervoort and Geoff Dulebohn we vigorously defend individuals who are being investigated or who have been arrested for any number of drug offenses. CALL US AT (530) 342-2858 TO SCHEDULE YOUR FREE CONSULTATION!
America’s “War On Drugs” is being waged throughout the State of California with great vigor by both state and federal authorities, and despite how innocuous the alleged offense might actually be. This “War On Drugs” has become so serious that, upon the mere arrest for a drug charge, a person may well find themselves facing a rather hostile government which is attempting to seize any and all assets of that person on the premise that the personal assets of the defendant (cash, a bank account, a home, vehicle, boat or plane – see below) are, in fact, the fruits of the alleged underlying drug activity. Money laundering charges in drug cases are also on the rise, as the government has made no secret of the fact that it considers money laundering to be an integral component of virtually any substantial drug offense. Given this enraged response by government to many drug charges, it is little wonder why a defendant needs a vigorous defense by competent counsel.
It is a chargeable public offense for any person to possess, possess for sale, transport, sell, furnish, administer, purchase, use, be under the influence of, manufacture, or offer any controlled substance, unless that person has a legal prescription or is otherwise in the legal chain of distribution to persons with prescriptions. A useable quantity is necessary, as trace or residue amounts of a controlled substance will ordinarily be insufficient to substantiate a criminal charge. This includes, but is not limited to drug crimes involving possession of drugs, sale of drugs, marijuana crimes, cocaine crimes, methamphetamine crimes, or any other drug and narcotics crime.
In In re Johnny O (2003) 107 CA4th 888; 132 CR2d 471, the Court of Appeals held that the prohibition in Health & Safety Code §§11364 and 11054(d)(20) against possessing paraphernalia used for smoking tetrahydrocannabinols (THC) applies only to synthetic tetrahydrocannabinols, not tetrahydrocannabinols found in marijuana. The Court held that possession of a device for smoking marijuana, without more, is simply not a crime in California. Here, the defendant was found guilty of possessing two bongs — devices for smoking marijuana. The Court stated that because the State Legislature limited the meaning of “tetrahydrocannabinols” in this context to synthetic tetrahydrocannabinols, the defendant, a minor, did not violate the law.
The essential elements of unlawful possession of a controlled substance are
“dominion and control of the substance in a quantity usable for consumption or
sale, with knowledge of its presence and of its restricted dangerous drug character.
Each of these elements may be established circumstantially.” (People v. Camp
(1980) 104 CA3d 244, 247-248; People v. Palaschak (1995) 9 C4th 1236, 1241-1242.) It has been observed that the statute proscribing the unlawful possession of controlled substances (Health & Saf. Code, §11377(a); §11350, former §11500, Stats. 1970, ch. 1098, §1, p. 1945, repealed by Stats. 1972, ch. 1407, §2, p. 2987) “makes possession illegal without regard to the specific intent in possessing the substance.” (People v. Sullivan (1989) 215 CA3d 1446, 1452.) Although the possessor’s knowledge of the presence of the controlled substance and its nature as a restricted dangerous drug must be shown, no further showing of a subjective mental state is required. Intent to possess the controlled substance for a minimally prescribed period of time has never been an element of the statutes criminalizing simple possession. Thus, unlawful possession of a controlled substance requires proof that the defendant exercised control over the subject contraband, had personal knowledge of its presence, had personal knowledge that the material was a controlled substance, and had a sufficiently useable amount. Possession of a controlled substance can be either actual or constructive. Actual possession is when a person carries the contraband on his or her person. Constructive possession occurs when a person maintains control over the contraband, or when the contraband is immediately accessible to the person. Editor’s Note: See Defenses, below.
Electronic/Telephonic Search and Arrest Warrants California was an early adopter of electronic warrant procedures, and has been a progressive state in terms of expanding the methods by which an officer may apply for either a search and/or an arrest warrant. California law allows a magistrate to take an oral statement made under oath from a field officer via telephone (PC §817(c)). In addition, because many police cruisers are equipped with a form of personal computer, the applying officer may also send his written, signed proposal to the magistrate via facsimile transmission. If the magistrate decides that probable cause exists, he/she may then complete the warrant, sign it, and send it back to the officer via facsimile, noting the exact date and time of execution on the copy retained at the courthouse. In the event such transmission is unavailable, a magistrate may authorize the officer to sign his/her name on a “duplicate” original warrant prepared on location. In 1998, California further amended its telephonic search warrant statute to include e-mail as an acceptable method of application. An officer’s oath can still be taken over the telephone, but the warrant application and all supporting documents may also be transmitted using e-mail. A digital signature is further required from the officer to ensure the application’s authenticity. Under the new provision, a magistrate who decides to issue a warrant may return it to the applicant via either facsimile or e-mail.
By enacting PC §817, the California Legislature intended to (1) codify that portion of People v. Bittaker (1989) 48 C3d 1046; 774 P.2d 659; 259 CR 630, that upholds, under the doctrine set forth in People v. Ramey (1976) 16 C3d 263; 545 P.2d 1333; 127 CR 629, the legality of issuing an arrest warrant upon a complaint without that complaint instituting a criminal action, and (2) to provide for the issuance of telephonic arrest warrants in essentially the same manner as telephonic search warrants pursuant to PC §1526 (including facsimile, e-mail (internet) applications, affidavits and original warrants), and (3) to reaffirm, in accordance with the decision of the U.S. Supreme Court in Payton v. New York (1980) 445 U.S. 573; 100 S.Ct. 1371; 63 L.Ed. 2d 639, that an arrest warrant founded on probable cause implicitly carries with it the authority to enter a dwelling in which the suspect lives or, alternatively, a place of business in which the subject has a proprietary interest, in order to arrest the suspect, when there is reason to believe the suspect is in the dwelling or place of business, and (4) by amending PC §813, to codify that portion of People v. Sesslin (1968) 68 C2d 418; 439 P.2d 321; 67 CR 409, that clarifies that an arrest warrant shall issue on a complaint if, and only if, the magistrate is satisfied from the complaint that the offense complained of has been committed and that there is reasonable ground to believe that the person named in the warrant has committed the offense. However, the Legislature made it clear that nothing in the law (or its subsequent amendments) shall be construed to abrogate the holding in Badillo v. Superior Court (1956) 46 C2d 269; 294 P.2d 23 (which case places the burden of proving the validity of a warrantless search or seizure on the prosecution. Editor’s Note: While the above California statutory scheme is relatively recent, there are unfortunately no reported cases considering either the impact of this law on warrantless searches and/or seizures by the government, nor the validity of the process in general. However, at least one Northern California District Attorney has considered the procedures involved in such a process. (See Alameda County DA’s Point of View: E-Mail Warrants and the DA has gone so far as to provide form search warrants on-line – see Alameda County DA’s Search Warrant Forms.)
Drug Arrest In A Vehicle Doesn’t Provide The Necessary Probable Cause For The Issuance Of A Residential Search Warrant – In People v. Pressey (2002) 102 CA4th 1178; 126 CR2d 162, the Appellate Court held that probable cause to believe that a person uses illegal drugs does not automatically provide probable cause for the issuance of a warrant to search the person’s home for those drugs. Here, the arresting officer obtained a search warrant from a Napa County Magistrate for a search of the defendant’s house after arresting defendant for driving under the influence of drugs and for possessing meth. The Appellate Court refused to extend cases that held evidence of dealing is enough to support the issuance of a search warrant for one’s residence to those of mere users or possessors of drugs. However, because the question here was one of first impression and, hence, debatable, the Appellate Court held that the police could rely in good faith on the issued warrant, expressly noting though, that future warrant applications will have to account for the Court’s decision in this case.
What The First District Court of Appeals Giveth, It Can Also Taketh Away (See People v. Pressey, supra). In People v. Ledesma* (2003) 106 CA4th 857; 131 CR2d 249, (another case coming out of Napa County) the Court of Appeals held that in a warrantless probation search of a probationer’s home (probationer having a searchable condition to the terms of his probation), the police could perform a warrantless search of the room of another member of that residence who was not on probation at the time under the guise that it was a “protective sweep” of the residence made for purposes of police safety (i.e., from any surprise attack). Thus, here the Court held that particular facts known to officers, when evaluated in light of their training and experience, justified a protective sweep conducted prior to a valid probation search. Money and controlled substances discovered in plain view in the defendant’s bedroom (which officers would have been unable to enter during a probation search because the defendant was just a roommate of probationer) during course of protective sweep were not to be suppressed as the fruit of an illegal search. *Editor’s Note: On May 14, 2003, the California Supreme Court denied reveiw of People v. Ledesma, supra, however, the Court also ordered that the opinion be de-published – meaning, it can’t be cited as any authority for any legal proposition.
Mistake of Law Does Not Justify Vehicle/Traffic Stop Following the lead of the 9th Circuit, in People v. White (2003) 107 CA4th 636; 132 CR2d 371, the First District Court of Appeal held that where a police officer mistakenly believes another state requires two license plates (here, Arizona) but that, in truth, only one is required by Arizona law, the state cannot lawfully justify a traffic stop based upon a mistake in the law. The Court distinguished the holding in People v. Glick (1988) 203 CA3d 796 and, instead, relied on U.S. v. King (2001) 244 F.3d 736, 741; U.S. v. Twilley (2000) 222 F.3d 1092, 1096; U.S. v. Wallace (2000) 213 F.3d 1216, 1220-1221; U.S. v. Lopez-Soto (2000) 205 F.3d 1101, 1106.) for the proposition that, under the 4th Amendment, a mistake of law by the police cannot justify a detention of an individual. See, also, US v. Colin (2002) 314 F.3d 439, infra, for the similar proposition in a DUI case.
In U.S. v. Colin, supra, the 9th Circuit Court of Appeal held that the Fourth Amendment’s prohibition against unreasonable searches and seizures applies to investigatory traffic stops. (U.S. v. Arvizu, (2002) 534 U.S. at 273; U.S. v. Sigmond- Ballesteros (2002) 285 F.3d 1117, 1121, reh’g en banc denied by 309 F.3d 545 (9th Cir., 2002). In order to justify an investigative stop, a police officer must have reasonable suspicion that a suspect is involved in criminal activity. (U.S. v. Lopez- Soto (2002) 205 F.3d at 1101, 1104-05.) Reasonable suspicion is formed by “specific articulable facts which, together with objective and reasonable inferences, form the basis for suspecting that the particular person detained is engaged in criminal activity.” Id. at 1105 (internal quotation marks and citations omitted); see also U.S. v. Mariscal, (2002) 285 F.3d at 1130; U.S. v. Twilley (2002) 222 F.3d 1092, 1095. An officer’s inferences must “be grounded in objective facts and be capable of rational explanation.” Lopez-Soto, supra, 205 F.3d at 1105 (internal quotation marks and citations omitted); see also Mariscal, supra, 285 F.3d at 1130; U.S. v. Twilley, supra, 222 F.3d at 1095. In reviewing the district court’s (trial court) determination of reasonable suspicion, we must look at the “totality of the circumstances” to see whether the officer had a “particularized and objective basis” for suspecting criminal activity. U.S. v. Arvizu, supra, (internal quotation marks and citations omitted); see also U. S. v. Diaz-Juarez (2002) 299 F.3d 1138, 1141-42. Officers are encouraged to draw upon their own specialized training and experience in assessing the “totality of the circumstances.” Arvizu, supra, 534 U.S. at 750-51. The Officer’s inferences must be grounded in objective facts and be capable of rational explanation. In the Colin case, the traffic stop was based on an observation by the Officer that the defendant’s car touched, but did not cross the fog line (the white line on the right side of the road), as well as touched, but did not cross, the solid yellow line. Accordingly, the defendant did not violate Vehicle Code §21658(a) (lane straddling), nor was the action enough to cause a reasonable officer to think that the defendant was under the influence (VC §23152), therefore, the Officer did not have the requisite reasonable suspicion in order to lawfully make an investigatory traffic stop. The appellate court also noted that the Officer did not conduct any roadside field sobriety test, which it considered an indication that the Officer did not really suspect the defendant of driving under the influence.
In U.S. v. Fernandez-Castillo (2003) 324 F.3d 1114, the Ninth Circuit held in another traffic stop case that an officer had a reasonable suspicion that the driver of a car was impaired, justifying an investigatory traffic stop of that car, where: (1) the vehicle had been reported as driving erratically; (2) the officer who stopped the vehicle knew the source of the report; (3) the report described the vehicle in detail, noting the car’s color, make and model, and state license plate; (4) the report was made contemporaneously with the source’s observations of the erratic driving; (5) the officer discovered the car in the area where the report indicated that the car would likely be found; (6) the officer noticed that the driver was sitting very close to the steering wheel, a behavior the officer knew was typical of impaired drivers; and (7) the officer corroborated the report of erratic driving by observing the car weave within its lane. Given the “totality of these circumstances”, the Court held that the trial court correctly found, after an evidentiary hearing, the existence of a reasonable suspicion that the operator of the car was impaired and properly held that the investigatory stop of the vehicle was constitutional. (See, also U.S. v. Thomas (2000) 211 F.3d 1186 – possible “sound” of marijuana bail hitting truck bed is insufficient to establish a reasonable suspicion of criminal activity and U.S. v. Morales (2001) 252 F.3d 1070 where tip provided to officer by another police department via an “Attempt to Locate” dispatch, which did not include info about the tip’s source, is treated as being an anonymous tip.) Editor’s Note: Traffic stops/detentions for DUI, or where contraband is ultimately seized by the police, and where an arrest ensues, raise similar Fourth Amendment issues, regardless if the arrest is for an alcohol-related offense, a drug-related offense, a weapons-related, etc.
In People v. Saldana (2002) 101 CA4th 170; 123 CR2d 763, a deputy sheriff received a dispatch communication that, according to an anonymous tipster, a certain gray station wagon with a license number ending in the numbers 319, was parked in the parking lot of a restaurant at an intersection of San Gabriel and Garvey in the City of Rosemead, and the driver was carrying a gun and a kilo of cocaine. The deputy sheriff went to the parking lot and saw the subject station wagon. The deputy sheriff entered the license plate number and received information that a person at that address, a Bernardo Moreno, was wanted on a misdemeanor FTA (bench) warrant. When the deputy saw the defendant go to the station wagon, the deputy made a “felony extraction” with the help of other officers (defendant is ordered out of the car at gun-point and then immediately hand-cuffed and interrogated as to the whereabouts of any gun). Defendant supposedly then (while hand-cuffed) consented to a search of the car, which revealed drugs. As a consequence of the search, the defendant was at that time arrested. When the defendant’s suppression motion was denied, he pleaded guilty and appealed. Based upon the U.S. Supreme Court’s holding in Florida v. J.L. (2000) 529 U.S. 266, 268, the Court of Appeals held here that the uncorroborated anonymous tip here was insufficient to justify the search and seizure, because the anonymous tip was uncorroborated by any observations or information available to the deputies. Since defendant’s motion to suppress evidence was erroneously denied, the defendant was given the opportunity to withdraw his guilty plea per People v. Ruggles (1985) 39 C3d 1, 13. See, also, People v. Gotfried (2003) 107 CA4th 254; 131 CR2d 840, where the the Court of Appeals held that the application of the “good faith” exception (in reliance on an issued search warrant) requires a factual presentation of the officers’ activity, which is then measured against a standard of objective reasonableness. (Higgason v. Sup. Ct. (1985) 170 CA3d 929, 944.) This objective standard “requires officers to have a reasonable knowledge of what the law prohibits.” (U.S. v. Leon, supra, at p. 920, fn. 20.) “Any rookie officer knows uncorroborated, unknown tipsters cannot provide probable cause for an arrest or search warrant.” (Higgason, supra at p. 952) In Gotfried, supra, the officer, who was found to be well-trained, knew or should have known that the limited corroboration he undertook was insufficient and that the affidavit requesting the search warrant was “‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’” (U.S. v. Leon, supra, at p. 923; see also People v. Johnson, 220 CA3d pp. 750-751.) Hence, the defendant’s conviction was reversed and the seized evidence was ordered suppressed.
In Bingham v. City of Manhattan Beach (2003) (5/19/03; 03 C.D.O.S. 4122; ___ F.3d ___), the Ninth Circuit held in a civil rights violation case brought by the plaintiff under 42 USC §1982, that a party held for several hours in a police station following a traffic stop because the check of the party’s expired license found an outstanding warrant for an individual with similar identifying information, the officer was not entitled to summary judgment on the issue of qualified immunity with respect to the traffic stop, and that an unlawful traffic stop is not a de minimis (minor) violation of one’s rights under the 4th Amendment. However, the police officer was entitled to summary judgment as to the arrest, since the arrest of the plaintiff for the purpose of verifying the outstanding warrant was a reasonable seizure under the 4th Amendment.
In People v. Willis (2002) 28 C4th 22; 46 P.3d 898; 120 CR2d 105, the California Supreme Court held that the good faith exception to the exclusionary rule did not apply to a warrantless search of a person who the police thought was still on parole. Here, the police relied on information supplied to them by a CDC parole agent to the effect that an erroneous parole list showed the defendant to still be on parole. In this case, the Court held that the CDC parole agent who supplied the erroneous information to the police, as well as the CDC clerks that made the erroneous data entry regarding defendant’s parole status, are “adjuncts to the law enforcement team,” to whom the exclusionary rule applies. In accord is People v. Ferguson (2003) (5/30/03; 03 C.D.O.S. ___; ___CA4th ___) a case which following a traffic stop the police relied on faulty information that the defendant was on searchable probation for a prior drug offense. It turned out that the defendant was not on probation, and based upon Willis, supra, the Third District Court of Appeal was compelled to reverse its earlier decision and overrule the trial court’s denial of defendant’s suppression motion. Thus, where clerical staff for the County Probation Department is in error, that error redounds to the police, and the good faith exception to an otherwise erroneous warrantless search cannot be justified.
In People v. Thuss (2003) (3/21/03; 03 C.D.O.S. 2585; 107 CA4th 221) the Court of Appeals held that the presence of fresh marijuana clippings in defendant’s trash outside his house furnished probable cause to obtain a warrant to search the house.
In another federal marijuana cultivation case, U.S. v. Celestine (2003) 324 F.3d 1095, the Ninth Circuit held that a DEA agent’s affidavit was sufficiently factual in detail for purposes of establishing the necessary probable cause for the issuance of a search warrant of the defendant’s residence, and that it was not disputed that the DEA agent served the defendant with the face sheet of the warrant and all the attachments incorporated into the warrant (but not the actual affidavit) necessary to satisfy the requirements of the Fourth Amendment. The Court concluded that this was all that is required under the Federal Rules of Criminal Procedure (FRCP), Rule 41, as Rule 41(f)(3) provides that the “officer executing the warrant must: (A) give a copy of the warrant and a receipt for the property taken to the person from whom, or from whose premises, the property was taken; or (B) leave a copy of the warrant and receipt at the place where the officer took the property.” The Court went on to state that “We have held clearly that Rule 41 must be interpreted in the light of the policies that underlie the warrant requirement: providing the property owner assurance of the lawful authority of the executing officer, his need to search, and the limits of his power to search. (See U.S. v. Gantt (Gantt I) (1999) 194 F.3d at 990 and U.S. v. Gantt (Gantt II); see also U.S. v. Chadwick, 433 U.S. 1, 9 (1977), abrogated on other grounds, California v. Acevedo (1991) 500 U.S. 565. To comport with Rule 41, the government must serve “a complete copy of the warrant at the outset of the search.” Gantt, 194 F.3d at 990.
In Kyllo v. U.S. (2001) 533 U.S. 27, the U.S. Supreme Court held that the use of thermal imaging equipment or other devices “not in general public use” to discern “details of the home that would previously have been unknowable without physical intrusion” is a search, unreasonable under the Fourth Amendment unless supported by probable cause and, presumptively, authorized by a warrant. (See, also, People v. Deutsch (1996) 44 CA4th 1224.) In U.S. v. Huggins (2002) 299 F.3d 1039, the Ninth Circuit determined that, in that case, there was no evidence that the magistrate judge acted with partiality or in any way compromised the “neutrality and detachment demanded of a judicial officer when presented with a warrant application.” (See, Lo-Ji Sales, Inc. v. New York (1979) 442 U.S. 319, 326-27) and, thus, the government (police) conducted the thermal imaging search in good faith reliance on a facially valid warrant. As such, the Fourth Amendment therefore does not require the suppression of the images recovered during that search (i.e., the U.S. v. Leon, (1984) 468 U.S. 897 “good faith” exception to a search warrant which was not supported by probable cause). However, in People v. Gotfried (2003) 107 CA4th 254; 131 CR2d 840, the Court of Appeals held that the application of the “good faith” exception (in reliance on an issued search warrant) requires a factual presentation of the officers’ activity, which is then measured against a standard of objective reasonableness. (Higgason v. Sup. Ct. (1985) 170 CA3d 929, 944.) This objective standard “requires officers to have a reasonable knowledge of what the law prohibits.” (U.S. v. Leon, supra, at p. 920, fn. 20.) “Any rookie officer knows uncorroborated, unknown tipsters cannot provide probable cause for an arrest or search warrant.” (Higgason, supra at p. 952) In Gotfried, supra, the officer, who was found to be well-trained, knew or should have known that the limited corroboration he undertook was insufficient and that the affidavit requesting the search warrant was “‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’” (U.S. v. Leon, supra, at p. 923; see also People v. Johnson (1990) 220 CA3d pp. 750-751; 270 CR 70 – disapproved in People v. Camarella (1991) 54 C3d 592; 818 P.2d 63; 286 CR 780, to the extent Johnson may be read to require an officer to exhaust all avenues of investigation and corroboration at the risk of falling within Leon’s third situation.) Hence, the defendant’s conviction was reversed and the seized evidence was ordered suppressed.
In People v. Camacho (2000) 23 C4th 824; 3 P.3d 878; 98 CR2d 232, the California Supreme Court held that a warrantless residential police search which consisted of a police officer crossing the defendant’s front yard in order that he could then peer into a side window of defendant’s house and, thus, see the defendant on the floor packaging what appearded to be drugs, was an unreasonable and, hence, illegal search under the 4th Amendment inasmuch as the police had not been invited onto defendant’s property, nor had the defendant consented to the police being there, nor had the police any exigent circumstances for being on defendant’s residential property in the first instance.
In People v. Amador (2000) 24 C4th 387; 9 P.3d 993; 100 CR2d 617, in a residential drug search case, where the defendant sought to controvert the search warrant on the basis of three errors regarding the description of the residence to be searched in the supporting affidavit, the California Supreme Court upheld the warrant stating that complete precision in describing the place to be searched was not required. “It is enough if the description is such that the officer with a search warrant can with reasonable effort ascertain and identify the place intended.” (Steele v. U.S. (1925) 267 U.S. 498, 503.) Many cases have upheld warrant searches despite errors in the description of the place to be searched. (E.g., People v. Sup. Ct. (Fish) (1980) 101 CA3d 218; 161 CR 547 [wrong lot number, wrong roof color]; U.S. v. Turner (1985) 770 F.2d 1508 [wrong street address]; U.S. v. Gitcho (1979) 601 F.2d 369 [wrong address].) “Where one part of the description of the premises to be searched is inaccurate, but the description has other parts which identify the place to be searched with particularity, searches pursuant to such warrants have been routinely upheld.” (U.S. v. Gitcho, supra, 601 F.2d at p. 371.) When the warrant contains an inaccurate description, “[t]he test for determining the sufficiency of the description of the place to be searched is whether the place to be searched is described with sufficient particularity as to enable the executing officer to locate and identify the premises with reasonable effort, and whether there is any reasonable probability that another premise might be mistakenly searched.” (Ibid.) “In applying this test, we are mindful of the general rule that affidavits for search warrants must be tested and interpreted in a common sense and realistic, rather than a hypertechnical, manner.” (U.S. v. Turner, supra, 770 F.2d at p. 1510.)
In Ferguson v City of Charleston (2001) 532 U.S. ___, the U.S. Supreme Court held that a state hospital’s performance of a diagnostic test to obtain evidence of a patient’s criminal conduct for law enforcement purposes is an unreasonable search if the patient has not consented to the procedure. The interest in using the threat of criminal sanctions to deter pregnant women from using cocaine cannot justify a departure from the general rule that an official nonconsensual search is unconstitutional if not authorized by a valid warrant. Because the hospital in question was a state hospital, its staff members are government actors subject to the Fourth Amendment’s strictures. (New Jersey v. T.L.O. (1985) 469 U.S. 325, 335–337.) Moreover, the urine tests at issue were indisputably searches within that Amendment’s meaning. (Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602, 617.) Furthermore, both lower courts viewed the case as one involving the hospital’s right to conduct searches without warrants or probable cause, and this Court must assume for purposes of those decisions that the tests were performed without the patients’ informed consent. Because the hospital seeks to justify its authority to conduct drug tests and to turn the results over to police without the patients’ knowledge or consent, this case differs from the four previous cases in which this Court considered whether comparable drug tests fit within the closely guarded category of constitutionally permissible suspicionless searches. See Chandler v. Miller (1997) 520 U.S. 305, 309; see also Skinner, supra, Treasury Employees v. Von Raab (1989) 489 U.S. 656 and Vernonia School Dist. 47J v. Acton (1995) 515 U.S. 646 – drug tests for employees involved in train accidents. Those cases employed a balancing test weighing the intrusion on the individual’s privacy interest against the “special needs” that supported the program. The invasion of privacy here is far more substantial than in those cases. In previous cases, there was no misunderstanding about the purpose of the test or the potential use of the test results, and there were protections against the dissemination of the results to third parties. Moreover, those cases involved disqualification from eligibility for particular benefits, not the unauthorized dissemination of test results. The critical difference, however, lies in the nature of the “special need” asserted. In each of the prior cases, the “special need” was one divorced from the State’s general law enforcement interest. Here, the policy’s central and indispensable feature from its inception was the use of law enforcement to coerce patients into substance abuse treatment. Respondents’ assertion that their ultimate purpose — namely, protecting the health of both mother and child— is a benificent one, was unavailing. While the ultimate goal of the program may well have been to get the women in question into substance abuse treatment and off drugs, the immediate objective of the searches was to generate evidence for law enforcement purposes in order to reach that goal. Given that purpose and given the extensive involvement of law enforcement officials at every stage of the policy, this case simply does not fit within the closely guarded category of “special needs.” The fact that positive test results were turned over to the police does not merely provide a basis for distinguishing prior “special needs” cases. It also provides an affirmative reason for enforcing the Fourth Amendment’s strictures. While state hospital employees, like other citizens, may have a duty to provide the police with evidence of criminal conduct that they inadvertently acquire in the course of routine treatment, when they undertake to obtain such evidence from their patients for the specific purpose of incriminating those patients, they have a special obligation to make sure that the patients are fully informed about their constitutional rights, as standards of knowing waiver require. Cf. Miranda v. Arizona (1966) 384 U.S. 436.
In U.S. v. Gonzalez (2003) (5/5/03; 03 C.D.O.S. 3814; ___ F.3d ___), the Ninth Circuit held that a defendant did not have a reasonable expectation of privacy from government surveillance (a warrantless search) when the defendant was videotaped taking possession of a shipment of ecstacy in the quasi-public mailroom of Kaiser Hospital. Evidently, the drugs in question were shipped by Fed Ex from Belgium in a package addressed to fictitious doctor at the hospital. The government (DEA) had earlier been tipped off of the drug shipment and, thus, set up a video camera in the hospital’s mailroom – a warrantless search. Upon delivery, the defendant took possession of the package in the hospital’s mailroom. The Court held that one’s expectation of privacy in a hospital mailroom used by the public was “not one that society recognizes as reasonable in light of the facts and circumstances.”
In US v. Bradley (2003) 321 F.3d 1212, the Ninth Circuit Court of Appeals held that the initial warrantless entry into the defendant’s home was justified under the rarely used “emergency doctrine”, since the officers were trying to locate a nine year old child in the middle of the night as a result of having just arrested the child’s mother for drug possession. Having made a lawful entry, contraband was in the “plain view” of the officers. In turn, this provided the necessary evidence described in a police affidavit in order for a search warrant to be later issued authorizing a full-blown search of the premises. Bradley follows US v. Cervantes (2000) 219 F.3d 882 – “emergency doctrine” justified officer’s entry into apartment to investigate chemical odor consistent with methamphetamine production and possible fire/explosion resulting from chemicals. The “emergency doctrine” derives from the police “community caretaking” function. The Ninth Circuit relied on Mincey v. Arizona (1978) 437 U.S. 385, 392 for this judicially-created doctrine.
In U.S. v. Vargas-Castillo (2003) (5/15/03; 03 C.D.O.S. 4053; ___ F.3d ___), the Ninth Circuit held that routine border searches do not require a warrant or an articulable level of suspicion. (U.S. v. Okafor (2002) 285 F.3d 842, 845, citing U.S. v. Montoya de Hernandez (1985) 473 U.S. 531, 537-38.) The search of defendant’s vehicle was routine because it did not reach “the degree of intrusiveness present in a strip search or body cavity search.” (U.S. v. Ramos-Saenz (1994) 36 F.3d 59, 61.) The search also did not rise to the level of intrusiveness condemned in U.S. v. Molina-Tarazon (2002) 279 F.3d 709, 713-17, because there was no risk of harm and defendant’s sense of security was not significantly diminished. Furthermore, even absent the anonymous tip, the totality of the circumstances established a particularized and objective basis for suspecting defendant’s criminal activity. (See U.S. v. Arvizu (2002) 534 U.S. 266, 273, supra.) In addition, the defendant contended that the federal indictment for importation of cocaine and marijuana, and for possession of cocaine and marijuana with intent to distribute (21 USC §§841(a)(1), 952, and 960) charged him twice for the same offenses, namely importation and possession of “controlled substances” with intent to distribute. The Court recited the test to determine whether an indictment is multiplicitous as being “whether each separately violated statutory provision requires proof of an additional fact which the other does not.” McKittrick, 142 F.3d at 1176 (quoting Blockburger v. U.S. (1932) 284 U.S. 299, 304) (internal quotations omitted). In the present case, the defendant was indicted for possession of cocaine with intent to distribute and possession of marijuana with intent to distribute, both in violation of 21 USC §841(a)(1). He was likewise indicted for importation of cocaine and importation of marijuana, in violation of 21 USC §§952 and 960. The required elements for possession with intent to distribute are: (1) the defendant knowingly possessed the controlled substance; and (2) the defendant possessed the controlled substance with the intent to deliver it to another person. U.S. v. Orduno- Aguilera (1999) 183 F.3d 1138, 1140. Similarly, the elements of importation are: (1) the defendant intentionally brought the controlled substance into the U.S.; and (2) the defendant knew that it was a controlled substance. Id. In light of the foregoing, the Court held that the indictment charging the defendant with separate counts for different controlled substances was not multiplicitous and no double jeopardy violation occurred.
In Kaupp v. Texas (2003) 538 U.S. ___, a per curiam opinion by the U.S. Supreme Court, the Court appeared in this case to be particularly upset with the actions of the police officers in their interrogation of a 17-year old suspect. Here, the police came to the residence of an adolescent (17 year old) at 3 a.m. The defendant had been implicated in the murder of a 14-year old girl by the confessed killer. The defendant was woken up by the police and told “we need to go and talk.” The defendant responded by saying, “Okay.” From his residence, the defendant was hand-cuffed and then taken half-naked (wearing only boxer shorts) to the scene of the alleged crime, and then to the police station for further interrogation. The Court held that a confession “obtained by exploitation of an illegal arrest” may not be used against a criminal defendant. Brown v. Illinois (1975) 422 U.S. 590, 603. Further, the Court reiterated that a seizure of the person within the meaning of the Fourth and Fourteenth Amendments occurs when, “taking into account all of the circumstances surrounding the encounter, the police conduct would ‘have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.’” Florida v. Bostick (1991) 501 U.S. 429, 437 (quoting Michigan v. Chesternut (1988) 486 U.S. 567, 569). This test is derived from Justice Stewart’s opinion in U.S. v. Mendenhall (1980) 446 U.S. 544, see California v. Hodari D. (1991) 499 U.S. 621, 627–628, which gave several “examples of circumstances that might indicate a seizure, even where the person did not attempt to leave,” including “the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” Mendenhall, supra, at 554.
See, also, U.S. v. Patane regarding Miranda Violation and suppression of physical evidence per Wong Sun.
Possession of a controlled substance with the intent to sell requires proof that the defendant exercised control over the subject contraband and had the specific intent to sell it. Possession with intent to sell can occur even if the person controlling the controlled substance had a prescription, if there is proof that the same person intended to sell the controlled substance to someone who did not have a prescription. If a person is convicted of having two or more controlled substances in his or her possession, and it is proven that the person intended to sell both, punishment may be by way of consecutive sentences for each such controlled substance.
In a charge involving the manufacturing of a controlled substance, the government is not required to prove that the defendant either completed or was in the process of manufacturing the controlled substance. Rather, the government only needs to show that the defendant has knowledge of the narcotic nature of the controlled substance, and has the ability to manufacture the same. In certain instances, proof of manufacturing a precursor chemical may also allow the government to prove that the defendant manufactured the controlled substance.
In People v. McCall (2002) 104 CA4th 1365; 128 CR2d 917*, the Court of Appeals held that the statutory mandatory presumption that possession of red phosphorous and iodine establishes possession of hydriodic acid is unconstitutional. The Court stated, “Mandatory presumptions in criminal statutes may be unconstitutional if they relieve the prosecution from having to prove each element of the offense beyond a reasonable doubt. (People v. Roder (1983) 33 C3d 491, 496-498; Sandstrom v. Montana (1979) 442 U.S. 510, 520 [61 L.Ed.2d 39, 48].) A mandatory presumption is one that tells the trier of fact that it must assume the existence of the elemental fact from proof of the basic fact. (People v. Roder, supra, at p. 498; Ulster County Court v. Allen (1979) 442 U.S. 140, 158; 60 L.Ed.2d 777, 792.) The prosecution may not rely on a mandatory presumption unless it is accurate. There must be a “rational connection” between the basic fact proved and the ultimate fact presumed (Ulster County Court v. Allen, supra, at p. 165 [at p. 797]) and “the fact proved is sufficient to support the inference of guilt beyond a reasonable doubt.” (Id. at p. 167 [at p. 798]; Sandstrom v. Montana, supra, 442 U.S. at pp. 521-524 [61 L.Ed.2d at pp. 49-51].) Here, the Court held that, in essence, the jury was instructed that it must find defendant possessed hydriodic acid if it found she possessed the precursors of hydriodic acid, namely, red phosphorus and iodine. Thus, a mandatory presumption may be constitutional if it is accurate beyond a reasonable doubt. (Sandstrom v. Montana, supra, 442 U.S. at pp. 521-524 [61 L.Ed.2d at pp. 49-51].) Here, neither the statutory presumption nor the instruction based upon the statute are accurate. They both equate possession of the essential chemicals with possession of the synthesized substance. The Court found that they were not the same. Nor was the instructional error harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18; 17 L.Ed.2d 705; Rose v. Clark (1986) 478 U.S. 570; 92 L.Ed.2d 460.) “The issue under Chapman is whether the jury actually rested its verdict on evidence establishing the presumed fact beyond a reasonable doubt, independently of the presumption.” (Yates v. Evatt (1991) 500 U.S. 391, 404-405 [114 L.Ed.2d 432, 449], overruled on other grounds in Estelle v. McGuire (1991) 502 U.S. 62, 72, fn. 4; 116 L.Ed.2d 385, 399.) In this case, the Court held that the answer to that question was perfectly clear because there was absolutely no evidentiary support for a finding of the presumed fact of possession of hydriodic acid. The prosecution conceded no hydriodic acid was found in defendant’s residence. In order to establish the presumed fact, the prosecutor relied on the unconstitutional presumption, arguing there was “red phosphorous and iodine, and these two things, in combination make hydriodic acid.” Accordingly, because there was no evidence upon which the jury could have found defendant was in possession of hydriodic acid, we hold the error was not harmless. *Editor’s Note: On March 26, 2003 the California Supreme granted review of the People’s appeal in McCall and denied review of the defendant’s appeal and, hence, will consider the 3rd District’s opinion. Hence, the McCall case is not citable under the rules of court for the proposition that any statutory mandatory presumption that possession of red phosphorous and iodine establishes possession of hydriodic acid is unconstitutional.
Transporting of a controlled substance merely means moving it from one location to another. In most instances, minimal movement is all that is required, as it has been held sufficient in some cases if a person drives only 20 feet with a controlled substance. Similar to possession with intent to sell, if a person is convicted of transporting two or more controlled substances, punishment may be by way of consecutive sentences for each such controlled substance transported.
In People v. Ormiston (2003) 105 CA4th 676; 129 CR2d 567, the First District Court of Appeals held that the mere act of walking while possessing drugs now permits the prosecution to charge a person with the more serious offense of “transportation” of drugs. The Appellate Court stated, “The uncomplicated issue, which nevertheless appears not to have been previously resolved, is whether walking may be a form of transportation for purposes of section 11379, which provides that “every person who transports . . . any controlled substance . . . shall be punished by imprisonment in the state prison for a period of two, three, or four years.” (Italics added.) “ ‘Transport,’ as used in this statute, has no technical definition,” but rather “as used in the statute is ‘commonly understood and of a plain, nontechnical meaning.’ (People v. Eastman (1993) 13 CA4th 668, 673-677; 16 CR2d 608.)” (People v. LaCross (2001) 91 CA4th 182, 185; 109 CR2d 802.) “Transportation of a controlled substance is established by carrying or conveying a usable quantity of a controlled substance with knowledge of its presence and illegal character.” (People v. Meza (1995) 38 CA4th 1741, 1746; 45 CR2d 844; see also People v. Emmal (1998) 68 CA4th 1313, 1315-1316; 80 CR2d 907.) “The crux of the crime of transporting is movement of the contraband from one place to another.” (People v. Kilborn (1970) 7 CA3d 998, 1003; 87 CR 189; see also People v. LaCross, supra, at p. 185; People v. Arndt (1999) 76 CA4th 387, 398; 90 CR2d 415.) The evidence indisputably establishes the movement of methamphetamine by appellant from one place to another. After a methamphetamine processing enterprise was discovered in a hotel room jointly occupied by appellant, later the same day he was detained while “walking southbound away from the hotel” with three baggies of “recently manufactured” methamphetamine powder in his jacket pocket. Appellant’s use of foot travel, rather than some other means of conveyance, to take the methamphetamine to whatever destination he intended to reach, does not negate the element of transportation. Section 11379 neither mentions nor excludes from its scope any particular means of transportation. A violation of the statute requires movement of the controlled substance to another location, but not the use of a mechanized or motorized means of delivery. It is the trafficking in controlled substances, not the method used to achieve it, that is the misconduct the statute seeks to prevent. The statute “is intended to inhibit the trafficking and proliferation of controlled substances by deterring their movement.” (People v. Arndt, supra, 76 CA4th 387, 398; see also People v. Holquin (1964) 229 CA2d 398, 402; 40 CR 364.) Inclusion of walking within the statutory definition of “transport” is consistent with the purpose of the statute. Our high court explained in People v. Rogers (1971) 5 C3d 129, 136-137; 95 CR 601, 486 P.2d 129, that by imposing more severe penalties for transportation of controlled substances,“[t]he Legislature was entitled to assume that the potential for harm to others is generally greater when narcotics are being transported from place to place, rather than merely held at one location. The Legislature may have concluded that the potential for increased traffic in narcotics justified more severe penalties for transportation than for mere possession or possession for sale, without regard to the particular purpose for which the transportation was provided, a matter often difficult or impossible to prove. Moreover, a more severe penalty for those who transport drugs may have been deemed appropriate to inhibit the frequency of their own personal use and to restrict their access to sources of supply, or to deter the use of drugs in vehicles in order to reduce traffic hazards and accidents, as well as to deter occurrences of sales or distributions to others.” (Fns. omitted; see also People v. LaCross, supra, 91 CA4th 182, 186.) “Thus, a prohibition on the simple transportation of drugs affects the transporter’s ability to make sales or purchases of contraband; it reduces the risks of traffic accidents due to drivers under the influence; and it arguably even reduces the frequency of personal drug use by discouraging users from carrying supplies in vehicles.” (People v. Eastman, supra, 13 CA4th 668, 676, fn. omitted.) A more severe penalty for those who transport drugs may also have been deemed necessary to inhibit the frequency of their own personal use and to restrict their access to sources of supply, as well as to deter occurrences of sales or distributions to others. (People v. Cortez (1985) 166 CA3d 994, 1001, 212 CR 692.)
Furnishing a controlled substance means to supply it to another, while selling refers to the transfer to another for a price. The exchange of money for the controlled substance is not required, as exchanges for almost anything of value will frequently suffice to establish a sale. Administering a controlled substance means to cause another person to use the controlled substance. However, one cannot be convicted of furnishing, selling or administering a controlled substance to oneself. Using a controlled substance refers to the act of ingesting or injecting the controlled substance.
Marijuana cultivation is a felony drug offense. Thus, any person who plants, cultivates, harvests, dries, or processes any marijuana, or any part thereof, is deemed to have committed a felony and can be punished by imprisonment in a state prison. However, California’s Compassionate Use Act of 1996, a law recently upheld by the California Supreme Court in the case of People v. Mower (2002) 28 C4th 457; 49 P.3d 1067; 122 CR2d 326, provides certain affirmative defenses to a cultivation charge, particularly, if the person can demonstrate that the seized plants were medical marijuana plants. The defense of medical marijuana has only been recognized as valid under state law. Hence, the federal government still refuses to recognize the validity of Proposition 215. In sufficiently large cultivation cases, both state and federal prosecutions are possible. Recently, the California Attorney General announced the results of CAMP (Campaign Against Marijuana Planting) stating that the government had seized record amounts of marijuana plants – 354,164 plants worth an estimated $1.4 Billion – in 2002 alone, and that more than 3 million marijuana plants had been seized by the government since 1983, with 1.2 million being seized within just the past 4 seasons.
In People v. Galambos (2002) 104 CA4th 1147; 128 CR2d 844, the Court of Appeals held that judicial recognition of the broader and different immunity afforded by a medical necessity defense — which would not require a physician’s recommendation, would excuse crimes other than the cultivation or possession of marijuana, and would extend beyond patients and their primary caretakers — would break faith with the California electorate in light of their adoption of the more narrow legislative exception to our criminal drug laws expressed by Proposition 215. An unexpressed, common law defense (medical necessity) should not be engrafted onto a statutory scheme that embodies an inconsistent policy determination. The Court also rejected the defendant’s claim that the limited immunity afforded under Proposition 215 to patients and primary caregivers should be extended to those who supply marijuana to them. The voter-approved statute carefully delimits the proffered immunity to patients and their primary caregivers. (H&S §11362.5(d)) Neither the language of the proposition nor its ballot materials suggest any intent to extend its protections to those who do not qualify thereunder but who purport to supply marijuana to those who do. To the contrary, the proponents’ ballot arguments reveal a delicate tightrope walk designed to induce voter approval, which we would upset were we to stretch the proposition’s limited immunity to cover that which its language does not.
In People v. Bianco (2001) 93 CA4th 748; 113 CR2d 392, the Court of Appeals held that the defendant was granted probation subject to certain conditions, one of which was that the defendant was prohibited from using or possessing marijuana. The Court held that this probation restriction did not impinge upon defendant’s right to the medical use of marijuana under state law. (H&S Code §11362.5.) The Court of Appeals concluded that the trial court acted within its traditional discretion in imposing the probation condition.
Recently, the U.S. Drug Czar, John P. Walters, denounced both Arizona and Nevada’s 2002 ballot initiatives which were evidently similar to California’s Proposition 215. Mr. Walters went so far as to call the initiatives stupid, insulting cons. He went on to state that, we know that marijuana is the single largest source of dependency. Walters, who heads the Office of National Drug Control Policy, also remarked, “We know that it (sic, marijuana) is responsible for 20 percent of accidents on the road today. “ Editor’s Note: Both the Arizona and the Nevada ballot initiatives went down to defeat in the November, 2002 election.
Termination Of A Conspiracy In US v. Recio (2003) 537 U.S. ___, the U.S. Supreme Court reversed the Ninth Circuit’s long-standing rule that “a conspiracy terminates when ‘there is affirmative evidence of abandonment, withdrawal, disavowal or defeat of the object of the conspiracy.’” The Court held that a conspiracy does not automatically terminate simply because the Government, unbeknownst to some of the conspirators, has “defeat[ed]” the conspiracy’s “object.” The Court went on to state that it has repeatedly said that the essence of a conspiracy is “an agreement to commit an unlawful act.” Iannelli v. U.S., 420 U.S. 770, 777 (1975); U.S. v. Shabani (1994) 513 U.S. 10, 16; Braverman v. U.S. (1942) 317 U.S. 49, 53. According to the Court, that agreement is “a distinct evil,” which “may exist and be punished whether or not the substantive crime ensues.” Salinas v. U.S. (1997) 522 U.S. 52, 65. The conspiracy poses a “threat to the public” over and above the threat of the commission of the relevant substantive crime—both because the “[c]ombination in crime makes more likely the commission of [other] crimes” and because it “decreases the probability that the individuals involved will depart from their path of criminality.” Callanan v. U.S. (1961) 364 U.S. 587, 593–594; also U.S. v. Rabinowich (1915) 238 U.S. 78, 88 (conspiracy “sometimes quite outweigh[s], in injury to the public, the mere commission of the contemplated crime”). Where police have frustrated a conspiracy’s specific objective, but conspirators (unaware of that fact) have neither abandoned the conspiracy nor withdrawn, these special conspiracy-related dangers remain. Cf. 2 W. LaFave & A. Scott, Substantive Criminal Law §6.5, p. 85 (1986) (“[i]mpossibility” does not terminate conspiracy because “criminal combinations are dangerous apart from the danger of attaining the particular objective”). So, too, remains the essence of the conspiracy—the agreement to commit the crime. That being so, the government’s defeat of the conspiracy’s objective will not necessarily and automatically terminate the conspiracy. Editor’s Note: The general rule regarding conspiracies is that a conspiracy is presumed to continue unless there is affirmative evidence that the defendant (as opposed to the government) abandoned, withdrew from, or disavowed the conspiracy, or defeated its purpose. The Supremes were not concerned with possible police entrapment argument (see Defenses, below), as the Court noted, “The law independently forbids convictions that rest upon entrapment. (Jacobson v. U.S. (1992) 503 U.S. 540, 548– 549; Sorrells v. U.S. (1932) 287 U.S. 435, 442–445.)
Conspiracy – Overt Act Requirement In People v. Russo (2001) 25 C4th 1124; 25 P.3d 641; 108 CR2d 436, the California Supreme Court held that in California, a conviction for conspiracy requires proof that at least one of the conspirators committed an overt act in furtherance of the conspiracy. The Court held that with respect to the specific overt act, a jury need not unanimously agree on one specific
overt act as long as it unanimously finds beyond a reasonable doubt that there was, in fact, a conspiracy and that at least one of the conspirators committed an overt act in furtherance of the conspiracy. The Court also disapproved any interpretation of People v. Brown (1991) 226 CA3d 1361, and People v. Ramirez (1987) 189 CA3d 603, that is inconsistent with the Russo opinion.
The Rule of Consistency? In People v. Palmer (2001) 24 C4th 856; 15 P.3d 234; 103 CR2d 13, the California Supreme Court considered the so-called “rule of consistency” — that the acquittal of all alleged coconspirators but one, requires acquittal of the remaining alleged conspirator. The Court also considered whether this rule requires the reversal of a conspiracy conviction in this case, and whether similar principles require the reversal of a finding as to one, but not both codefendants, that an attempted murder was premeditated. The Court concluded that the “rule of consistency” was a vestige of the past with no continuing validity. Thus, the Court stated that if substantial evidence supports a jury verdict as to one defendant, that verdict may stand despite an apparently inconsistent verdict as to another defendant.
Of course, drug offenses like other criminal offenses carry enhanced penalties. Not to mention the drug forfeiture laws, drug laws in California carry some of the more notable enhanced penalties, including enhanced punishments for sizeable quantities of drugs, for being personally armed with a gun, for using a minor child in any manner, or for sales in certain areas, for example, parks, schools or declared drug-free zones and consecutive sentencing in the event one is convicted of possession of two (2) or more different drugs. Persons convicted of controlled substance offenses can also anticipate having their drivers license suspended by the DMV. In addition, a defendant released on bail or on his or her OR in a pending felony case (primary offense) and who later is charged with committing a fresh (secondary) felony offense any time before his or her conviction (or final determination on appeal) on the primary offense, may be punished separately under PC §12022.1. Effective January 1, 1999, PC §12022.1 expands the definition of primary offense to include a felony offense for which the defendant is out of custody between the pronouncement of judgment and the time the person actually surrenders or is otherwise returned to custody. Secondary offense means a felony offense alleged to have been committed while the person is released from custody on the primary offense. The two (2) year enhancement called for in PC §12022.1 provides that the term for the enhancement must be served (imposed by the court) as a consecutive term as opposed to being served concurrently with any sentence for the underlying offense.
In People v. Chambers (2002) 104 CA4th 1047; 128 CR2d 679, the Court of Appeals ruled that for purposes of sentencing on the basis of an enhancement allegation in the People’s Information (here, the allegation of the personal use of a firearm in the commission of a robbery by the defendant) the trial court, as well as the sentencing court, could make that finding implicitly as opposed to expressly. Punishment for a firearm use enhancement may be imposed only if the trier of fact finds the enhancement allegation to be true. PC §12022.53, subdivision (j), provides: “For the penalties in this section to apply, the existence of any fact required . . . shall be alleged in the information or indictment and either admitted by the defendant in open court or found to be true by the trier of fact.” §1158a, subdivision (a) provides that, when a defendant is alleged to have used a firearm within the meaning of §12022.5, “the jury, if they find a verdict of guilty of the offense with which the defendant is charged, or any offense included therein, must also find whether or not the defendant was armed as charged in the count to which the plea of not guilty was entered. A verdict of the jury upon a charge of using a firearm may be: ‘ We find the charge of being armed contained in the _______ count true’ or ‘ We find the charge of being armed contained in the _______ count not true . . . .” The requirements as to form for a jury verdict substantially apply when trial is by the court: “When a jury trial is waived, the judge or justice before whom the trial is had shall, at the conclusion thereof, announce his findings upon the issues of fact, which shall be in substantially the form prescribed for the general verdict of a jury and shall be entered upon the minutes.” (1167.) The Court of Appeal held that the controlling authority was People v. Clair (1992) 2 Cal.4th 629. In Clair the defendant was charged with murder and two counts of burglary. The information alleged that he had been previously convicted of a serious felony. The murder and burglary charges were tried to a jury, which returned guilty verdicts. The defendant waived jury on the prior serious felony allegation and consented to trial by the court. The trial court did not expressly find that the prior allegation was true, but it imposed a five-year prison term for the prior serious felony conviction. Clair rejected the contention “that the sentence on the serious-felony enhancement must be set aside because no finding on the underlying prior-conviction appears.” (Id., at p. 691, fn. 17.) Clair reasoned: “At sentencing, the court impliedly – but sufficiently – rendered a finding of true as to the allegation when it imposed an enhancement expressly for the underlying prior conviction.” (Ibid.)
In People v. Dale (2003) 106 CA4th 194; 130 CR2d 530, a case where the defendant pled no contest to possessing cocaine and being under the influence of a controlled substance, but expressly denied the enhancement allegation that he suffered a “strike” prior (serious felony conviction) in Alameda County in 1991. Thus, after his plea, the issue of the prior was tried before the court, which proceeded to find the allegation to be “not true.” Evidently, the trial court did not believe the victim’s preliminary hearing testimony that defendant slashed at her with a bottle during an assault (PC §245(a)(1)) and, therefore, found the evidence insufficient to show personal use of a deadly or dangerous weapon. The People appealed, contending that the judge “erred as a matter of law in reweighing the evidence and judging the credibility of the victim who was not before him” and in substituting his judgment for that of the magistrate at the preliminary hearing. The Court of Appeals held that PC §1238 did not afford the People the right to appeal an adverse decision after trial by a court on the issue of truth of the defendant’s prior “strike” conviction. Editor’s Note: On April 30, 2003, the California Supreme Court granted review in the case, but held it pending a determination in a related case. Hence, People v. Dale is currently not citable for any legal proposition.
In People v. Mijares (1971) 6 C3d 415, the California Supreme Court held that,
under limited circumstances, momentary or transitory possession of an unlawful
narcotic for the sole purpose of disposing of it can constitute a defense to a charge
of criminal possession of the controlled substance (“the physical control inherent during the brief moment involved in abandoning the narcotic is not ‘possession’ for purposes of the statute. In People v. Martin (2001) 25 C4th 1180; 25 P.3d 1081; 108 CR2d 599, the California Supreme Court explained that the defense of transitory possession for disposal meant exactly that, mere momentary control of a controlled substance for the specific purposes of disposing of the same. Thus, where the defendant’s girlfriend gave him drugs she found in her son’s room for the purpose of disposing of the same, and where the police later found those same drugs on the defendant’s person, the defense of transitory possession applied only to a momentary or transitory possession of drugs for purpose of disposal, not to any longer period, as was the case here. The Supreme Court went on to dissaprove the more expansive defense (longer than momentary possession) as provided in People v. Cole (1988) 202 CA3d 1439, and People v. Spry (1997) 58 CA4th 1345.
The purpose of the entrapment defense is to deter impermissible police conduct. People v. Barrazan (1979) 591 P.2d 947, 956 n.5; People v. Holloway (1996) 55 CR2d 547, 551, overruled on other grounds by People v. Fuhrman (1997) 941 P.2d 1189, 1199 n.11. In adopting an objective test of entrapment, the California Supreme Court reasoned, “the function of law enforcement manifestly’ does not include the manufacturing of crime.’ ” Barraza, 591 P.2d at 954 (quoting Sherman v. United States (1958) 356 U.S. 369, 372.) It is permissible for the police to offer “the simple opportunity to act unlawfully,” by the use of decoys or otherwise. Id. at 955. However, “it is impermissible for the police or their agents to pressure the suspect by overbearing conduct such as badgering, cajoling, importuning, or other affirmative acts likely to induce a normally law-abiding person to commit the crime.” Id. It is also impermissible for the police or their agents to conduct themselves in a manner that would induce a normally law-abiding person “to commit the act because of friendship or sympathy, instead of a desire for personal gain or other typical criminal purpose.” Id.
Entrapment is a jury question because of “its potentially substantial effect on the issue of guilt.” Id. at 956 n.6; see also People v. Lee, 268 CR 595, 598 (1990) (“Entrapment is ordinarily a fact question.”) The defendant is entitled to an entrapment instruction if he presents sufficient evidence for a reasonable jury to conclude that he was entrapped. See People v. Watson, (2000) 22 C4th 220; 990 P.2d 1031; 91 CR2d 822 (citing substantial evidence standard from People v. Flannel (1979) 603 P.2d 1, 10. “Doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused.” (Flannel, 603 P.2d at p. 10).
In Bradley v. Duncan (2002) 315 F.3d 1091, the 9th Circuit held that the failure to instruct the jury on the defendant’s defense theory of entrapment was not simply a state law error, it also effected a violation of the defendant’s due process rights inasmuch as the Supreme Court has held that “[a]s a general proposition, a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.” Mathews v. United States 485 U.S. 58, 63 (1988). This standard has been applied to habeas petitions arising from state convictions. See Conde v. Henry, 198 F.3d 734, 739 (9th Cir. 1999) (“It is well established that a criminal defendant is entitled to adequate instructions on the defense theory of the case.”). The failure to instruct the jury on entrapment deprived defendant of his due process right to present a full defense. The U.S. Supreme Court has held: “Under the Due Process Clause of the Fourteenth Amendment, criminal prosecutions must comport with prevailing notions of fundamental fairness. We have long interpreted this standard of fairness to require that criminal defendants be afforded a meaningful opportunity to present a complete defense.” California v. Trombetta, 467 U.S. 479, 485 (1984). Thus, the state court’s failure to correctly instruct the jury on the defense may deprive the defendant of his due process right to present a defense. See Barker v. Yukins, 199 F.3d 867, 875-76 (6th Cir. 1999) (granting habeas relief under AEDPA because the erroneous self-defense instruction deprived the defendant’s of a “meaningful opportunity to present a complete defense”) (relying on Trombetta, 467 U.S. at 485), cert. denied, 530 U.S. 1229 (2000). This is so because the right to present a defense “would be empty if it did not entail the further right to an instruction that allowed the jury to consider the defense.” Tyson v. Trigg, 50 F.3d 436, 448 (7th Cir. 1997). Prejudice is shown for purposes of habeas relief if the trial error had a “substantial and injurious effect or influence in determining the jury’s verdict.” Id. at 6 (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). Moreover, we must grant the petition if we are “‘in grave doubt as to the harmlessness of an error.'” Id. (quoting O’ Neal v. McAninch, 513 U.S. 432, 437 (1995)).
CALJIC No. 4.60 provides:
It is a defense to a criminal charge that the commission of the alleged criminal act, was induced by the conduct of law enforcement agents or officers [or persons acting under their direction, suggestion or control] when the conduct would likely induce a normally law-abiding person to commit the crime. [¶ ] To establish this defense the defendant has the burden of proving by a preponderance of the evidence that the conduct of the law enforcement agents or officers [or persons acting under their direction, suggestion, or control] would likely induce a normally law-abiding person to commit the crime.
CALJIC No. 4.61 provides:
In deciding whether this defense has been established, guidance will generally be found in the application of one or both of two principles. First, if the actions of the law enforcement agent would generate in a normally law-abiding person a motive for the criminal other than ordinary criminal intent, entrapment will be established. An example of this type of conduct would be an appeal by the police that would induce a normally law-abiding person to commit the act because of friendship or sympathy, instead of a desire for personal gain or other typical criminal purpose. Second, affirmative police conduct that would make commission of the crime unusually attractive to a normally law abiding person will likewise constitute entrapment. This conduct would include, for example, a guarantee that the act is not illegal or the crime will go undetected, an offer of exorbitant consideration, or any similar enticement. [¶ ] Finally, while the inquiry must focus primarily on the conduct of the law enforcement agent, that conduct is not to be viewed in a vacuum; it should also be judged by the effect it would have on a normally law-abiding person situated in the circumstances of the case at hand. Among the circumstances that may be relevant for this purpose, for example, are the transactions preceding the crime, the suspect’s response to the inducements of the officer, the gravity of the crime, and the difficulty of detecting instances of its commission. [¶ ] [Matters such as the character of the defendant, [his], [her] predisposition to commit the crime, and [his] [her] subjective intent are not relevant to the determination of the question of whether entrapment occurred.]
CALJIC No. 4.61.5 provides:
It is permissible for law enforcement agents or officers [or persons acting under their direction, suggestion or control] to provide opportunity for the commission of a crime including reasonable, though restrained, steps to gain the confidence of suspects. It is not permissible for law enforcement agents or officers [or persons acting under their direction, suggestion or control] to induce the commission of a crime by overbearing conduct such as badgering, coaxing or cajoling, importuning, or other affirmative acts likely to induce a normally law-abiding person to commit the crime.
Subject to certain qualifications, upon conviction or the entry of a guilty plea, Proposition 36, also known as the Substance Abuse and Crime Prevention Act of 2000 (PC §1210, et seq.), provides for a form of diversion for non-violent drug offenders rather than imprisonment. Thus, many non-violent drug offenders are placed into a county-run drug rehabilitation or substance abuse program, typically, a program controlled by the county probation department. Evaluation, regular drug testing and frequent counseling are all part of the Prop 36 agenda. Dirty testing by a Prop 36 participant doesn’t always mean automatic jail. In fact, Prop 36 has its own version of the three-strikes law, inasmuch as persons may be given multiple chances to rehabilitate themselves and, thus, stay in the Prop 36 program, even though they have tested dirty in the past (See People v. Murillo, below). While Drug-Court under Prop 36 is truly like no other criminal courtroom – there is routinely heard applause from the audience for those who are doing good, and plenty of judicial, prosecutorial and peer pressure scorn for those who have tested dirty – nevertheless, it is apparent that the general intention of Drug- Court is, if at all possible, to help participants shake their drug dependency. Obviously, its a government-run program.
In People v Mendoza (2003) (3/6/03; 03 C.D.O.S. 2092; ___ CA4th ___) the Court of Appeals held that where a defendant has entered a guilty plea prior to the effective date of Proposition 36 (July 1, 2001), that same defendant was not entitled to be sentenced under Prop 36 (granted probation & drug court treatment) in the event that he happened to be sentenced after July 1, 2001. Here, the defendant pled to a non-violent drug charge in 1977, but failed to appear in court at the time of his sentencing. Later, the defendant was arrested in May, 2002 and, thus, subsequently sentenced after July 1, 2001. At his post-July 1, 2001 sentencing, the court denied him Prop 36 treatment (probation and drug court). The Court of Appeals affirmed the sentence, holding that in this instance, the clear and unambiguous language in PC §1210.1(a), controled the resolution of the issue inasmuch as PC §1210.1(a) states that “any person convicted of a nonviolent drug possession offense shall receive probation.” This language contemplates that to be “convicted” a defendant need not be sentenced, because it is only once a defendant has been convicted — meaning adjudicated guilty by verdict or plea — that the defendant, if eligible, is then given the sentence of probation. Here, since defendant’s conviction in 1977 (pre-July 1, 2001) preceded his sentencing (post-July 1, 2001), the defendant was simply not eligible for a Prop 36 sentence (probation).
In People v. Murillo (2002) 102 CA4th 1414; 126 CR2d 358, the Court of Appeals held that Prop. 36 applies to probation violations, and unless the government proves by a preponderance of the evidence that the defendant poses a danger to others, or has violated probation at least three (3) times, the trial court may not impose incarceration when revoking probation. Rather, the trial court must reinstate the probationer on probation. Even more recently, the Court of Appeals in In re Taylor (2003) (03 C.D.O.S. 1113; 2/4/03*, held that a probationer’s failure to report to his probation officer for a drug test involved a “drug-related condition” of probation for purposes of Prop 36. Hence, the trial court’s order incarcerating the probationer (Taylor) was contrary to the mandates of Prop 36 and was therefore reversed. It would appear that barring a new non-drug related offense, most, if not all, Prop 36 probation violations would call for probation reinstatement, at least up to three (3) separate probation violations. *Editor’s Note: In re Taylor is not citable for any proposition of law, as it was ordered de-publisghed.
Conversely, in People v. Ayele (2002) 102 CA4th 1276; 126 CR2d 262 (DCA4, 10/18/02) the appellate court held that the defendant was not eligible for probation under Prop 36 treatment because he was also convicted of a misdemeanor not related to drugs (PC §1210.1(b)(2)), that is, resisting arrest, even though the act of resisting arrest was motivated by a desire to conceal the drugs. Thus, the appellate court held that the trial court did not abuse its discretion in refusing to strike the resisting arrest misdemeanor under PC §1385 so as to make the defendant Prop. 36 eligible. Lastly, in People v. Barasa (2002) 103 CA4th 287; 126 CR2d 628 (DCA4, 10/30/02) the appellate court held that the defendant bore burden of proving that transportation of drugs was for his personal use, thus, making him eligible for Prop. 36 treatment.
Similarly, in People v. Esparza (2003) (04/1/03; 03 C.D.O.S. 2851; ___ CA4th ___), the Court of Appeals held that a defendant who has been placed on probation for a non-drug-related charge (here, felony vandalism – PC §594(b)(2)) and who was still on probation at the time he was arrested for (and subsequently convicted of) felony possession of a controlled substance (meth), the trial court could sentence the defendant to prison for violating probation of the felony vandalism charge, even though the violation was as a result of the non-violent possession of drugs (NOVPOD) – an otherwise Prop 36 eligible offense.
In People v. Superior Court (Martinez) (2002) 104 CA4th 692; 128 CR2d 372, the Court of Appeal held that construction of PC §1210.1(b)(1)’s eligibility phrase “after a period of five years,” although admittedly ambiguous, referred to the period immediately preceding the commission of the non-violent drug possession offense. Thus, here, due to the defendant’s conviction of a felony weapons violation within five years of her arrest for the non-violent drug possession, meant that she was ineligible for Prop 36 drug treatment.
Alien Exception In People v. Espinoza (2003) (4/14/03; 03 C.D.O.S. 3172; ___ CA4th ___) the Court of Appeals held that, in the case of a defendant who happens to be an illegal alien subject to deportation, and where the alien defendant pleads no contest to possession of heroin and was sentenced to 16 months in state prison, the trial court did not err in denying the defendant probation under the provisions of Proposition 36. The Court reasoned that in view of the substantial likelihood that defendant would be be deported, probation is not mandatory under Proposition 36 because it is impossible to condition such probation on defendant’s completion of a drug treatment program. Accordingly, the Court affirmed the judgment sentencing defendant to state prison in lieu of Prop 36 probation.
Editor’s Note: See also Probation-Parole for cases wherein the Prop 36 probationer violates probation and court determines probationer’s continued eligibility for Prop 36 (Drug Court), that is, probation and treatment as opposed to incarceration.
Recently, a number of cases have held that a person is simply not eligible for Proposition 36, the Substance Abuse and Crime Prevention Act of 2000 – PC §1210, et seq., (aka Drug Court) in the event the charge is for driving under the influence of a drug. Hence, the court reasons that simple non-violent possession is not what is charged in a DUI and, thus, drug court (for which expungement of one’s record may be available), is simply precluded in a VC §23152(a) charge. People v. Walters (2002) 103 CA4th 936, and Trumble v. Superior Court (2002) 103 CA4th 1011. However, although the Courts of Appeals have unanimously held that a person is ineligible for Prop 36 treatment, in People v. Canty (2002) 100 CA4th 903, the Supreme Court granted review of this case (and holding). In light of its review of People v. Canty, supra, the Supreme Court has now granted review in People v. Walters and People v. Trumble, however, it has merely placed these two cases on hold pending its determination in People v. Canty. And chalk up another DUI-Drug-Prop 36 case placed on hold by the Supreme Court. In People v. Garcia (2002) (11/27/02; ___ CA4th ___) the Fifth District Court of Appeals ruled against a defendant who had pled guilty to felony possession of methamphetamine and misdemeanor driving under the influence of methamphetamine. Editor’s Note: On February 11, 2003, the California Supreme Court granted review of this case, subject to its ruling in People v. Canty, supra.
In general, the Substance Abuse and Crime Prevention Act of 2000 mandates drug treatment, rather than incarceration, for defendants, probationers, and parolees who commit qualifying offenses or violate qualifying conditions of probation or parole. (Prop. 36) However, in a new twist to the issue of Drug-related DUI’s and one’s qualification for Prop 36 treatment, the Court of Appeals in People v. Campbell*(2003) 106 CA4th 808; 131 CR2d 221, held that a defendant who was placed on probation for simple drug possession (heroin) prior to the enactment of Proposition 36, may nevertheless have his probation revoked when the defendant has an otherwise non-qualifying probation violation. Here, the Court held that a Drug-related DUI is not a nonviolent drug possession offense. (citing People v. Anzalone (1999) 19 C4th 1074, 1081 [the expression of one thing is the exclusion of another].) Editor’s Note: On 5/21/03, the California Supreme Court granted review of Campell, but held the same pending its decision in People v. Canty, supra.
While not that dissimilar from Prop 36 Drug-Court (save and except for the Drug-Court cheerleading atmosphere), PC §1000 diversion is offered to those defendants who have a first-time encounter with drugs. Generally less rigorous than Prop 36 Drug-Court, PC §1000 diversion program permits a person to enter a guilty plea early on in the court process, and have that plea held in abeyance by the court pending successful completion of a substance abuse program. Typically, a defendant will be ordered back into court mid-way through the diversion program to determine his or her status. Upon completion of the diversion program, the defendant is permitted to withdraw his or her guilty plea, have a not guilty plea entered, and then and there have the criminal case dismissed by the court, such that only the actual arrest for the drug charge remains as a public record. However, if a defendant in a diversion program relapses into drug use or otherwise violates the terms of his or her diversion program, including having a new criminal charge filed against the defendant, diversion can be (but not always is) terminated and the previously given guilty plea may then be taken by the court in a rather summary process (although absent an admission by the defendant, some form of hearing is constitutionally mandated) and judgment entered against the defendant. Of course, this is not good, as the court will also thereafter sentence the defendant as though following an actual conviction of the drug charge, all-the-while knowing that another criminal charge is pending over that defendants head. Consequently, diversion in felony cases can, in some instances, be a complete disaster for the defendant. Caution and serious deliberation in terms of weighing the immediate acceptance of diversion is certainly called for in any felony drug charge.
In In re Sergio R (2003) 106 CA4th 597; 131 CR2d 160 the Court of Appeals held that the Juvenile court had the discretion to grant or deny deferred entry of judgment (diversion) to an otherwise eligible minor. Here, denial of diversion was deem not to be an abuse of discretion merely because the minor has satisfied the eligibility requirements of Welf & Institutions Code §790(a), and Cal Rules of Ct 1495(a). Under facts of case, the sentencing court did not abuse that discretion since it made a specific finding that the juvenile was not suitable for diversion.
However, in Martha C. v. Superior Court (2003) (5/6/03; 03 C.D.O.S. 3846; ___ CA4th ___), the Court of Appeals reversed a juveniel trial court in holding the juvenile was not eligible for diversion under Welf & Institutions Code §790(a). The defendant argued that when a minor meets the eligibility requirements of §790(a), the court may deny DEJ only if it determines the minor would not benefit from the education, treatment or rehabilitation available through the program. The minor further argued that the trial court abused its discretion in denying her DEJ since it did so not because she was unamenable to education, treatment or rehabilitation but because the court wished to deter other minors who might engage in sophisticated drug smuggling schemes. The Court of Appeal agreed with the minor and, therefore, found the trial court had abused its discretion and reversed the lower court’s order denying the minor diversion.
In People v. Mazurette (2001) 24 C4th 789; 14 P.3d 227; 102 CR2d 555, the California Supreme Court held that following denial of a defendant’s suppression motion, and where a defendant then pleads to a divertible offense (here, H&S §11377 – possession of methamphetamine), where entry of judgment is also then deferred pursuant to PC §1000, et seq., PC §§1000-1000.4, thereafter preclude a defendant from immediately appealing the trial court’s decision denying the defendant’s suppression motion.
California’s asset forfeiture laws are similarly numerous and equally as perplexing as the federal statutes. The objectives of the state forfeiture laws are the same as those of the federal government – to assist law enforcement by means of seizing both the alleged tools as well as the profits from the suspect who has supposedly engaged in the alleged proscribed conduct. Property which can be seized is the controlled substances itself, the raw materials and equipment used to manufacture the controlled substance, all personal property used to transport or deliver, or used as a container for the controlled substance, including boats, cars, planes, etc., and all books and records used in the process of violating the drug laws. Also, all cash, bonds, stocks, etc., which are traceable as proceeds from the sale of the controlled substance are similarly fair game for seizure by the government. The seizure of real property, on the other hand, poses certain problems and can only be seized by the government in limited circumstances. Seizure of fees paid to ones attorney for defense purposes can likewise be seized by the government under specific circumstances. While state officials experience the very same headaches involved in seizing personal assets of a drug suspect, the bottom line is that law enforcement officials will continue to utilize the draconian forfeiture laws if they believe there is any strategic advantage to be gained in doing so, even if it costs the taxpayers far more than it returns to the government.
Considered by ignorant government bureaucrats to be the Achilles Heel of all criminal suspects, asset forfeiture has been hailed by the President of the United States on down as the panacea of all law enforcement. However, as with most government-backed panaceas, many innocent civilians who are caught up in the governments hysterical Drug War are rapidly beginning to appreciate how absurd the government can truly be when it comes to asset forfeiture. In truth, asset forfeiture in the context of this country’s War On Drugs is, in many instances, merely a euphemism for a salary bonus for dirty cops. The corrupting influence on narcotic agents who are now lawfully permitted to seize cash from individuals found to possess drugs (controlled substances) is overwhelming. Regular shake downs of drug suspects by the police are all too frequent on the street. Notwithstanding the California Legislatures admonition to the contrary (Health & Safety (H&S) Code §11469), drug raids which may net cash in amounts between $20,000 and $100,000 are clearly the principal objective of law enforcement. Huge amounts of cash revenue seized by the police oftentimes goes missing between the time of the police raid (seizure) and the time the assets ends up in the police evidence locker. Thus, officer integrity is plainly laughable in the face of these ongoing drug raids. What’s a person to do – complain that the police have taken contraband (drugs) and cash and have left without arresting any suspects? The police obviously know this will never happen. Hence, Americas War On Drugs has devolved into a Raid On Cash by those who pray on drug suspects who, in turn, cannot protect themselves from the oppressive conduct of these same crooked cops. As a direct consequence, state and federal asset forfeiture laws are far more corrupting of the police than any other factor influencing police corruption.
In California a forfeiture proceeding is a civil in rem action in which property is considered the defendant, on the fiction that the property is the guilty party. (Jauregi v. Superior Court (1999) 72 CA4th 931, 937-938; People v. $28,500 U.S. Currency (1996) 51 CA4th 447, 462.) Statutes imposing forfeitures are disfavored and are to be strictly construed in favor of the persons against whom they are sought to be imposed. (People v. $28,500 U.S. Currency, supra, p. 463.) A claimant has both a statutory and a California constitutional right to a jury trial on civil in rem forfeiture proceedings. (H&S §11488.5(c)(2); Cal. Const., art I, § 16; People v. One 1941 Chevrolet Coupe (1951) 37 C2d 283.
California’s drug asset forfeiture law has undergone numerous revisions since its enactment in 1972. (Mundy v. Superior Court (1995) 31 CA4th 1396; People v. Nazem (1996) 51 CA4th 1225 [noting that California’s statutory forfeiture scheme has had a long and confusing history.].) The current law, H&S §11469, et seq., as amended effective 1994, sets forth a comprehensive scheme governing forfeitures of controlled substances, property, cash, and other things of value used in connection with the trade in controlled substances. The statutory scheme provides that currency is subject to forfeiture if it is furnished or intended to be furnished in exchange for a controlled substance, traceable to such an exchange, or used or intended to be used to facilitate trafficking in, or the manufacture of, various controlled substances. (H&S §11470(f)). Property subject to forfeiture may be seized by a peace officer if there is probable cause to believe the property was used for the specified illicit purposes. (H&S §11471(d)). If the appropriate governmental agency determines, based upon the facts, that property valued over $25,000 is forfeitable, the Attorney General or district attorney (i.e., the government) must file a petition of forfeiture in the superior court, within specified time limits, and must comply with various service and notice requirements. (H&S §11488.4(a),(c),(d),(e),(f)&(j).) Once a verified claim is filed, the claimant is entitled to a hearing by jury, at which the provisions of the Code of Civil Procedure generally apply. (H&S §11488.5(a),(c)(2)&(3).) To obtain forfeiture, the government must show at the hearing that: the owner of any interest in the seized property consented to the use of the property with knowledge that it would be or was used for a purpose for which forfeiture is permitted, (H&S §11488.5(d)(1)), and the property was so used (H&S §11488.5(e)). If the seized property is cash over $25,000, the government must prove these elements by clear and convincing evidence. (H&S §11488.4(i)(4).) The government must prove a nexus between the seized funds and a narcotics transaction. (People v. $47,050 (1993) 17 CA4th 1319) There is no requirement that a criminal conviction have been obtained in the underlying or related case. (H&S §11488.4(i)(4).)
The only provision explicitly dealing with the requirement of standing is H&S §11488.4(g). That section states, Nothing contained in this chapter shall preclude a person, other than a defendant, claiming an interest in property actually seized from moving for a return of property if that person can show standing by proving an interest in the property not assigned subsequent to the seizure or filing of the forfeiture petition. Also indirectly relevant to the meaning of subdivision (g) is H&S §11488.5(a)(2)& (e). Subdivision (a)(2) provides, in pertinent part: Any person who claims that the property was assigned to him or to her prior to the seizure or notification of pending forfeiture of the property under this chapter, whichever occurs first, shall file a claim with the court and prosecuting agency pursuant to H&S §11488.5 declaring an interest in that property and that interest shall be adjudicated at the forfeiture hearing. Subdivision (e) provides, in pertinent part, Unless the court or jury finds that the seized property was used for a purpose for which forfeiture is permitted, the court shall order the seized property released to the person it determines is entitled thereto.
If the court or jury finds that the seized property was used for a purpose for which forfeiture is permitted, but does not find that a person claiming an interest therein, to which the court has determined he or she is entitled, had actual knowledge that the seized property would be or was used for a purpose for which forfeiture is permitted and consented to that use, the court shall order the seized property released to the claimant. (§ 11488.5(e).) Standing is typically treated as a threshold issue, in that without it no justiciable controversy exists. As a general principle, standing to invoke the judicial process requires an actual justiciable controversy as to which the complainant has a real interest in the ultimate adjudication because he or she has either suffered or is about to suffer an injury . . . (Holmes v. California Nat. Guard (2001) 90 CA4th 297, 314.) Without standing, there is no actual or justiciable controversy, and courts will not entertain such cases. (Clifford S. v. Superior Court (1995) 38 CA4th 747; Common Cause v. Board of Supervisors (1989) 49 C3d 432 [contentions based on lack of standing involve jurisdictional challenges and may be raised at any time in the proceeding]; McKinny v. Board of Trustees (1982) 31 C3d 79.) The purpose of a standing requirement is to ensure that the courts will decide only actual controversies between parties with a sufficient interest in the subject matter of the dispute to press their case with vigor. (Common Cause v. Board of Supervisors, supra, 49 C3d at p. 439.) Typically, the issue of standing is decided by reference to the allegations made in a party’s complaint. (Clifford S. v. Superior Court, supra, 38 CA4th at p. 751.)
A claimant in a civil forfeiture proceeding must show he [or she] has a recognizable legal or equitable interest in the seized property in order to establish standing; it is the claimants burden to establish an interest in the seized property sufficient to satisfy the court of his standing to contest forfeiture. (Jauregi v. Superior Court, supra, 72 CA4th at pp. 938-939.) California and federal courts considering the drug forfeiture laws have reiterated that standing is a threshold legal issue. (Jauregi v. Superior Court, supra, 72 CA4th at p. 939; People v. $28,500 U.S. Currency, supra, 51 CA4th at pp. 466-467; People v. $241,600 U.S. Currency (1998) 67 CA4th 1100; U.S. v. $9,041,598.68 (5th Cir. 1998) 163 F.3d 238, 245 [[t]he issue of standing is one of law].) Absent standing, the claimant in a forfeiture action cannot contest the governments decision to seek forfeiture; this is the rule in state and federal proceedings. (Jauregi v. Superior Court, supra, 72 CA4th at p. 938; People v. $28,500 U.S. Currency, supra, 51 CA4th at p. 467.)
H&S §11488.4, subdivision (g), does not mandate that the trial court resolve factual issues underlying the question of standing. The plain language of subdivision (g) — that a claimant can move for return of property if that person can show standing by proving an interest in the property — imposes upon the claimant the burden of proving a sufficient legal or equitable interest in the seized property. (H&S §11488.4(g); Jauregi v. Superior Court, supra, 72 CA4th at pp. 938-939; People v. $28,500 U.S. Currency, supra, 51 CA4th at p. 467.) Such a requirement is logical: [r]equiring proof by admissible evidence of a claimants right to the property assures to some extent that such property will not be released to a person whose claim is spurious or contrived. (Jauregi v. Superior Court, supra, 72 CA4th at p 943.) Thus, the question of standing is to be resolved as a threshold determination. California and federal courts have uniformly held that, in forfeiture proceedings, the question of a claimants standing is a threshold issue. (E.g., Jauregi v. Superior Court, supra, 72 CA4th at pp. 938-939; People v. $28,500 U.S. Currency, supra, 51 CA4th at p. 467; People v. $241,600 U.S. Currency, supra, 67 CA4th at p. 1107; U.S. v. Cambio Exacto, S.A. (2d Cir. 1999) 166 F.3d 522, 526; U.S. v. $38,570 U.S. Currency (5th Cir. 1992) 950 F.2d 1108, 1111; U.S. v. Real Property Known as 22249 Dolorosa St. (9th Cir. 1999) 167 F.3d 509, 511.) One who claims property sought to be declared forfeit should be compelled to establish his or her interest by admissible evidence before expenditure of time and expense on the merits of the forfeiture. (Jauregi v. Superior Court, supra, 72 CA4th at p. 943; 1 David B. Smith, Prosecution and Defense of Forfeiture Cases ¦ 9.04  [b], p. 9-70.8, fn. 15 [where the government challenges a claimants standing in a timely manner the issue should logically be decided at the outset rather than at the end of the forfeiture proceeding].)
Beyond these basic principles, however, the statutory scheme is not a model of clarity in regard to the procedural mechanisms by which the claimant is to prove standing, including the questions of whether, when the facts underlying the standing determination are controverted, the court or the jury is to decide disputed factual issues. Moreover, it does not inexorably flow from the fact that standing is a threshold legal question that the government may, by simply filing a motion purporting to require that the claimant prove his or her standing, require the court and the claimant to engage in a full-blown evidentiary hearing prior to the forfeiture hearing. Thus, standing is a threshold question of law for the trial court where the matter can be determined on the undisputed facts. Where, however, the determination of a claimants standing to challenge the governments forfeiture turns on disputed facts or credibility determinations, and the issue of the claimants ownership and the merits of the forfeiture action are inextricably intertwined, a jury must make factual findings on the issue of the claimants ownership or interest in the seized property before the trial court decides whether the facts, as determined by the jury, confer standing as a matter of law. (Cf. Sheldon Appel Co. v. Albert & Oliker (1989) 47 C3d 863, 877 (Sheldon Appel).) H&S §11488.4(g) requires that the claimant must prove his or her standing by showing a legally cognizable interest in the property by a preponderance of the evidence, before the government is put to its burden of proof.
Hence, standing to challenge a forfeiture is a question of law (Jauregi v. Superior Court, supra, 72 CA4th at p. 939; U.S. v. $9,041,598.68, supra, 163 F.3d at p. 245; U.S. v. $191,910.00 in U.S. Currency (9th Cir. 1994) 16 F.3d 1051, 1057 fn. 10), and involve[s] jurisdictional challenges. (Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 C4th 352, 361; Common Cause v. Board of Supervisors, supra, 49 C3d at p. 438.) Questions of law are to be tried by the court, while questions of fact are to be decided by the jury. (See CCP §591 [issues of law must be tried by the court]; CCP §592 [issues of fact must be tried by the jury unless right to jury trial is waived]; EC §310 [all questions of law, and the determination of issues of fact preliminary to the admission of evidence, are to be decided by the court]; EC §312 [all questions of fact are to be decided by the jury]; Martin v. Hall (1971) 20 CA3d 414, 421 [it is error to submit to the jury a question of law]; City of Monterey v. Del Monte Dunes at Monterey, Ltd. (1999) 526 U.S. 687, 720 [In actions at law predominantly factual issues are in most cases allocated to the jury.]; Vorse v. Sarasy (1997) 53 CA4th 998, 1001 [Under all but the most limited circumstances, credibility of witnesses is a question of fact to be resolved by the jury]; see generally Wegner, Fairbank & Epstein, Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2001) ¦¦ 2:37-2:57, pp. 2-8 – 2-10].)
As noted, H&S §11488.5(e)s provisions — that unless the trier of fact finds the seized property was used for a forfeitable purpose, the court shall order the seized property released to the person it determines is entitled thereto and If the court or jury finds that the seized property was used for a purpose for which forfeiture is permitted, but does not find that a person claiming an interest therein, to which the court has determined he or she is entitled — strongly suggest that the court is to make the legal determination of whether the claimant has standing. Under California case law, the trial court does just that, either prior to the forfeiture hearing (if the facts underlying the standing inquiry are undisputed) or at the forfeiture hearing based upon the facts found by the jury (if the facts underlying the standing inquiry are disputed and a jury trial is not waived).
H&S §11488.5(a)(2) strongly suggests that the jury is to try the factual issues relevant to standing. As noted, section 11488.5(a)(2) states that a claimant who claims that the property was assigned to him or to her prior to the seizure or notification of pending forfeiture of the property under this chapter shall file a claim, and that interest shall be adjudicated at the forfeiture hearing. (see also §11488(c) [presumption that person to whom receipt for property was issued is owner may be rebutted at the forfeiture hearing specified in H&S §11488.5].) The language requiring adjudication of the interest at the hearing is mandatory. (Common Cause v. Board of Supervisors, supra, 49 C3d at p. 443 [use of word shall in statute is construed as mandatory].) Therefore, it appears that the Legislature intended to require that a claimants interest in the seized property be adjudicated at the forfeiture hearing, presumably by the trier of fact, i.e., the jury unless waived.
Conversely, federal cases seem to hold that where the issue of standing turns upon disputed issues of fact, the trial court is required to, or may, hold an evidentiary hearing to resolve disputed facts related to standing. (U.S. v. 1998 BMW I Convertible (8th Cir. 2000) 235 F.3d 397, 400; Bischoff v. Osceola County, Fla. (11th Cir. 2000) 222 F.3d 874, 881-882, fn. 10; U.S. v. $364,960.00 in U.S. Currency (5th Cir. 1981) 661 F.2d 319, 326.) However, we are not bound to follow the precedents of the lower federal courts. (People v. Cleveland (2001) 25 C4th 466, 480.) However, the majority of federal courts hold that a claimant need only produce evidence establishing a colorable claim, a standard which seems to be in tension with the resolution of the issue at a full-blown evidentiary hearing intended to resolve disputed facts. (E.g., U.S. v. One Parcel of Real Property (1st Cir. 1991) 942 F.2d 74, 78 [to satisfy standing requirement, all that needs to be shown is a facially colorable interest in the proceedings sufficient to satisfy the case-or-controversy requirement and prudential considerations defining and limiting the role of the court [Citations.]]; U.S. v. Cambio Exacto, S.A., supra, 166 F.3d at p. 527 [[A]n allegation of ownership and some evidence of ownership are together sufficient to establish standing to contest a civil forfeiture ]; U.S. v. $9,041,598.68, supra, 163 F.3d at p. 245 [claimant need not prove the merit of his underlying claim to establish standing, but need only show a facially colorable interest in the proceedings]; In re Seizure of $82,000 more or less (W.D.Mo. 2000) 119 F.Supp.2d 1013, 1017 [Definitive proof of ownership is not needed to establish standing]; U.S. v. Forfeiture, Stop Six Center (N.D.Tex. 1991) 781 F.Supp. 1200, 1201-1202 [claimant required to show only a facially colorable interest in the proceedings at summary judgment stage; requiring evidence documenting source of funds improperly accelerates Claimants burden of proving innocent ownership].)
While the California forfeiture statutes were initially patterned after the federal forfeiture laws, People v. $497,590 U.S. Currency (1997) 58 CA4th 145, 151; People v. $28,500 U.S. Currency, supra, 51 CA4th at p. 468, the 1994 amendments to California’s statutory scheme imposed very different burdens of proof on the government and the claimant than did the analogous federal forfeiture law then in effect. The current version of the California forfeiture statute requires that the government prove the owner of an interest in the property knowingly consented to the illicit use of the property, either beyond a reasonable doubt or by clear and convincing evidence, depending upon the nature of the property involved. (H&S §§11488.4(i) and 11488.5(d)(1).) In contrast, prior to the passage of the federal Civil Asset Forfeiture Reform Act of 2000 (CAFRA), 18 USC §983, the federal drug forfeiture statute tilted heavily in the governments favor. The government bore the minimal burden of demonstrating probable cause for instituting the forfeiture proceeding. Once probable cause was established, the burden of proof shifted to the property owner (the claimant), who could avoid forfeiture only by establishing by a preponderance of the evidence that the property was not subject to forfeiture. (U.S. v. $80,180.00 in U.S. Currency (9th Cir. 2002) 303 F.3d 1182, 1184.) Thus, while federal forfeiture cases provide persuasive authority in some respects, they are not particularly germane to questions related to the burden of proof in California actions after the 1994 amendment to the California statutes. Thus, in conclusion, in a California asset forfeiture case, the determination of disputed facts and the evaluation of witness credibility is for the jury to determine. Once the jury has rendered a factual finding on the question of the claimants interest in the seized assets, then the trial court can properly resolve the legal question of whether the claimant has standing to contest the forfeiture.
Cities Getting Into The Act
In 1997 the City of Oakland got into the asset forfeiture act when it passed a vehicle forfeiture statute covering instances of prostitution solicitation and/or drug purchase solicitation and dubbed “Operation Beat Feet,” so named because suspects have to hoof it after their arrests. In July, 2000, Oakland’s confiscation law was upheld in by a California appeals court ruling, Horton v. City of Oakland (2000) 82 CA4th 580; 98 CR2d 371. The challenge in Horton only raised the issue of state preemption, and did not raise any issues concerning the constitutionality of the ordinance. Distinguishing on the grounds that the City of Oakland’s vehicle confiscation law applied to drug buyers (solicitors), the court determined that the local ordinance was not preempted by state law, since the ordinance did not conflict with H&S Code §11469, et seq., because state law did not reflect a clear indication of legislative intent to preempt other vehicle forfeiture regulations and, particularly, because state law was silent with regard to vehicles used by drug buyers (solicitors). The court also held that Oakland’s ordinance did not conflict with VC §22659.5 because the passage of state legislation authorizing local communities to enact a pilot program for confiscating the vehicles of arrested Johns (solicitors of prostitution) did not constitute a clear indication by the state of an intent to occupy the entire legislative arena.
In Zeltser v City of Oakland (2003) (4/8/03; 03 C.D.O.S. 3026; ___ F.3d ___) the Ninth Circuit held that the trial court’s granting of summary judgment in favor of the City of Oakland was in error, as the Court previoulsy held in Sanders v. City of San Diego (1996) 93 F.3d 1423, 1430 that “the pawnbroker, as pledgee, has a legitimate possessory interest in the property as against the rest of the world except the person having title to the property” and is therefore entitled to due process regardless of the ultimate determination of entitlement to possession or ownership. Furthermore, we held that California Financial Code §21206.8 “directly address[es]” and “explicitly governs” the disposal of stolen property that has been seized from a pawnbroker. Fin. Code §21206.8 and PC §1407 are designed to provide California pawnbrokers with an opportunity to be heard before the custodian releases the seized property to a competing claimant. Under Sanders, supra, it is evident that the pawnbroker here was entitled to an opportunity to assert her interest in the property (a ring) before it was released from police custody. The fact that the warrant at issue in this case was served pursuant to Cal. PC §1536 does not alter matters. The district court’s grant of summary judgment to the City is contrary to established Ninth Circuit law requiring the application of Cal. Financial Code § 21206.8 and Cal. PC§1407, et seq. when property is seized from a pawnshop owner. In the absence of any justification for denying the pawnbroker the opportunity to assert her ownership interest in the ring, summary judgment was inappropriate. The City deprived the pawnbroker of her constitutional right to due process of law by failing to comply with the statutory provisions governing the disposition of property seized from a pawnbroker pursuant to a warrant. Therefore, the Court reversed the district court’s award of summary judgment to the City and remanded the matter for consideration of the pawnbroker’s remaining claims.
In contrast to civil in rem forfeiture actions, criminal forfeiture is an action brought as a part of the criminal prosecution of the defendant. It is an in personam (against the person) action and requires that the government indict (charge) the property used or derived from the crime along with the defendant. Although there are more than two hundred federal statutes that provide for forfeiture as a penalty, relatively few provide for criminal forfeiture. If the jury finds the property charged to be forfeitable, the court issues an order of forfeiture. For forfeitures pursuant to the Controlled Substances Act, Racketeer Influenced and Corrupt Organizations Act (RICO), as well as money laundering and obscenity statutes, there is an ancillary hearing for third parties (most commonly lien holders – banks) to assert their interest in the property. Once third party interests are addressed, the court issues a final forfeiture order.
Petitions for remission or mitigation are the means provided for in 19 USC §1618, to reduce the harshness of the forfeiture sanction in administrative and judicial (including both civil and criminal) forfeitures. These petitions do not contest the validity of the forfeiture itself; they simply ask for consideration of the good faith of the petitioner and his or her innocence or lack of knowledge in the matter, or in the case of the wrongdoer, of a plea for leniency. Petitions in remission and mitigation are ancillary to and independent of the judicial forfeiture proceedings. The granting of a petition during the pendency of a forfeiture action advises the court that if the property is ultimately forfeited, the government prosecutors have determined to return the property, or a portion thereof, to the petitioner.
21 USC §853 is another frequently used federal statute for the forfeiture of property in the case of drug dealers and/or manufacturers convicted of operating a criminal enterprise. In US v. Chavez (2003) 323 F.3d 1216, the Ninth Circuit held that the California State Lottery winnings of a defendant were subject to a court forfeiture order notwithstanding that the defendant had provided for his wife to inherit his winnings upon his death or “other legal impediment.” Defendant’s wife claimed that his conviction and the ensuing court forfeiture order triggered the “other legal impediment” provision and, hence, the Lottery winnings (payable in annual installments over 20 years) went to her. The Court held otherwise, stating that unless the Lottery winnings were already defendant’s wife’s sole separate property under state law prior to the time of the court’s forfeiture order, federal law (U.S. v. Hooper (2000) 229 F.3d 818 and U.S. v. Lester (1996) 85 F.3d 1409.) determined that the money went to the federal government, not to the defendant’s wife. Here, the defendant got married after winning $1 million in California’s “Big Spin” game, thus, the winnings were his separate property and were never the community property of the marriage. However, in U.S. v. Hooper, supra, the Ninth Circuit held that the applicable federal criminal forfeiture statute, 21 USC §853, subjects to forfeiture any community property interest of the claimants (i.e., the wives) in any property acquired as a result of the drug-sale proceeds.
Ironically, disposition of forfeited property has proven to be the Achilles Heel of government. What does the government do with forfeited property? Well, the Attorney General has the authority to dispose of forfeited property by sale or by any other commercially feasible means. The authority to sell forfeited property is routinely delegated to the U.S. Marshal. The Marshal, therefore, is often burdened with the care and maintenance of property pending a sale. Care of property can entail such matters as paying bills, repairing leaky roofs or plumbing, and mowing lawns – a business which, in the long run, costs taxpayers billions of dollars so that the government can collect millions of dollars from criminal suspects, any number of whom may later be acquitted of their charges after trial.
In US v Rosacker (2002) 314 F.3d 422, the appellate court held that in cases where, for sentencing purposes, the district court must estimate the quantity of drugs a defendant’s lab could produce, the district court could not rely on an inherently unreliable (i.e., conclusory) police laboratory report. The information which supports a reasonable approximation must possess sufficient indicia of reliability to support its probable accuracy. In other words, a drug approximation must have “a reliable evidentiary basis.” Accordingly, a district court may not adopt conclusory statements from the pre-sentencing report which, in turn, are unsupported by either the facts or the Sentencing Guidelines. However, the district court was correct when it applied the “preponderance of the evidence” standard, rather than the “clear and convincing” standard, in making the drug quantity approximation.
In U.S. v. Shumate (2003) F(5/20/03; 03 C.D.O.S. 4218; ___ F.3d ___), the Ninth Circuit held that where the district court found the defendant guilty of two prior felonies, within the meaning of USSG § 4B1.1, the defendant was found to be a career offender, and use of an Oregon solicitation of drugs prior conviction was proper to determine whether the defendant was a career offender for purposes of sentencing. Thus, the Oregon conviction for delivery of marijuana for consideration was a predicate offense for career offender purposes under USSG §4B1.1, since it was a felonious controlled substance offense within meaning of the Guidelines. Even accepting defedant’s assertion that his Oregon conviction might have been for solicitation of delivery of marijuana, the word “include” in §4B1.2 allows inclusion of solicitation not only for crimes of violence, but also for controlled substance offenses.
In California, most state and federal felony drug convictions (or drug-related convictions) require that the offender formally register with the local chief of police or sheriffs department as a past drug offender within at least 30 days of his or her coming into any county or city, or city and county in which he or she resides or is temporarily domiciled for that length of time. Shorter time periods for registration and/or notice of any change of address may be required (such as within 10 days for certain address changes). If in doubt, it is obviously best to check with the local police or sheriff station sooner rather than later.
Obviously, all drug offenses, whether charged as a felony or as a misdemeanor, are serious accusations and can result in substantial prisons sentences, a complete forfeiture of all of ones assets as well as lifetime registration as a past drug offender. Therefore, if you have been arrested for a drug offense – typically, a felony – or if you know someone who is being investigated for a drug offense, you or they absolutely, positively need an attorney who knows the law, who will pursue justice in your/their case, and who can and will protect your or their liberty and property interests in a court of law. As stated above, at the Law Office of Joe VanDervoort and Geoff Dulebohn we vigorously defend individuals who are being investigated or who have been arrested for any number of drug offenses. CALL US AT (530) 342-2858 TO SCHEDULE YOUR FREE CONSULTATION!