General Information on Criminal Law

Published on: January 31, 2014

No More DMV? No More DUI’s? Could it happen…

by Law Offices of Rudolph E. Loewenstein

No more DUIs? No more car accidents? No more driving on a suspended license? No more rites of passage like getting your drivers license at 16? You mean the DMV doesn’t exist? Well yes, there could be lots of benefits to the concept car coming out. What concept car you ask? Multiple carmakers, including even Google which isn’t even a car manufacturer, are working on; an automated car. No driver needed.

I personally like driving my car. However the era of driving a car yourself may soon be coming to an end. The new automated car can drive itself to the market, the courthouse, grandmother’s house, just about anywhere you would ever want to go. The technology is there. How would this affect the legal profession? We have thousands of laws on the record books that control how you drive, when you drive and where you drive. All of these would really become moot with the automated car. You would program where you want to go and if there was a road closed then the car could reroute you and take you on a different road to your destination. It would be programmed to obey all rules of the road.

The crime of driving under the influence would be extinct. In fact think of the impact on limo companies? None would be needed because you just tell the car to go find a place to park while you go into the bar. On the program Sunday morning the car was parking itself in a parking spot that IT found. Criminal law will be changed forever. Driving laws will become similar to laws that are still on the books about where and how you tie your horse up when you leave it to go to the feed barn.

Published on: January 21, 2014

Can Police Search Your Cell Phone After a Traffic Stop in Orange County, CA?

by Law Offices of Rudolph E. Loewenstein

Imagine you are driving along and you get pulled over for a registration violation. The police officer asks for your cell phone along with your drivers license and insurance card. You say what? You have a right to have my cell phone?? The officer says, “oh yes I do. You are not under arrest, you are being given a citation for registration violation. Now hand over your cell phone because I want to search it.” This is essentially the case now pending before the United States Supreme Court. If you have a cell phone then you are going to want to follow this case.

David Riley, a man out of San Diego, was stopped by police for having expired registration tags. The police had suspected him of being a gang member who was involved in a shooting, but they had no evidence to tie him to the shooting. When they saw David Riley driving a car that had expired registration, the police pulled him over. They discovered he had two cell phones and decided to search them. They looked through the cell phones and found that there were photographs on the cell phone. After opening the photos the police found photographs that linked Riley to the gang shooting. At trial, his lawyer argued that the search of the cell phones was illegal and that the prosecution should not be able to use the evidence found on illegal search at trial against Riley. That argument didn’t work and he was convicted. Now the Supreme Court will take up the issue. Can the police search your cell phone anytime you’re given a citation or arrested, without a warrant?

Under the Fourth Amendment, police generally need a warrant before they can conduct a search. The warrant itself must be based on “probable cause,” evidence that a crime has been committed. However, The high court ruled 40 years ago that police don’t need a search warrant to look through anything a person is carrying when arrested. But lower federal and state courts have differed over whether that decision, predating the digital age, should apply to increasingly sophisticated cellphones, including even more advanced smartphones.

Published on: December 30, 2013

Rudolph Loewenstein Invited To Join The National Trial Lawyers Top 100 Trial Lawyers Association

by Law Offices of Rudolph E. Loewenstein

Every year the National Trial Lawyers Association creates a list of the top 100 trial lawyers from around the nation. They look for the best and brightest of minds, those who have achieved the unthinkable in determining to fight for their clients’ best interests. The National Trial Lawyers Top 100 is an invitation-only organization composed of the premier trial lawyers from each state in the nation who meet stringent qualifications as civil plaintiff and or criminal defense trial lawyers. Membership is extended solely to the select few of the most qualified attorneys from each state who demonstrate superior qualifications of leadership, reputation, influence, stature and public profile. The mission statement from the organization is to promote excellence in the legal profession through advocacy training, networking and education of trial lawyers. The National Trial Lawyers also endeavors to keep its members current on business and professional matters of interest through frequent conferences and publications.

I have been recognized for my work and commitment to excellent client representation and have been included in the 2014 selection of the Top 100 Trial Lawyers. If you have been accused of a crime, arrested, or are under investigation, or if you’ve never been in trouble with the law before what do you do? It might be embarrassing to ask friends for a recommendation but how else do you find someone you can trust?

The Internet has become a great tool for finding and evaluating professionals. A recommendation from someone you trust is probably the best and easiest way to go but if that isn’t possible, or if several people are recommended, then a Google check might be your next step.

Published on: December 20, 2013

The Shocking Truth about Secret Bail Hearings

by Law Offices of Rudolph E. Loewenstein

Think secret bail hearings only exist in fiction? Unfortunately the answer is no, even though the 6th amendment to the constitution guarantees everyone the right to a public trial if they’re accused of a criminal act. The United States Supreme Court has long held that this right extends to pre-trial hearings and motions. (Waller v. Georgia)

Bail hearings are no different, as the outcome of a bail hearing directly decides whether or not defendants must remain in custody while they await trial! (United States v. Abuhamra). That’s what makes the recent decision in In Re Carrillo so unsettling. (In Re Carrillo 219 Cal.App.4th 572). Mr. Carrillo was arrested on charges of committing assault with a deadly weapon. At his initial bail hearing, Mr. Carrillo’s bail was set at $90,000. Then, without any notice to Mr. Carrillo, and without giving him a chance to contest, the Judge and Prosecutors held a second, closed door bail hearing. At this bail hearing Prosecutors presented “confidential” evidence indicating they believed Mr. Carrillo was a threat to the community and should post a larger bail. The Judge took the Prosecution at its word, and set Mr. Carrillo’s bail at $1,000,000.

Mr. Carrillo had no chance to contest the information presented to the Judge. He didn’t even know what was presented to the Judge. He just knew that without his knowledge a warrant was issued for his arrest, even though as far as he knew he had posted bail. The Court in his case found this to be a violation of his rights, but in doing so laid out a perfect plan for any Prosecutor wishing to repeat this feat without getting in trouble. What are the magic steps? Well, the Prosecutor has to give notice, but the defendant still doesn’t have the right to be present! As long as he knows the “gist” of what is being presented at this hearing, and as long as the Judge makes an independent determination that the information being presented is reliable, well then it’s just fine to raise a defendant’s bail to $1,000,000! It’s now possible to have secret search warrants (People v. Hobbs 7 Cal.4th 948), anonymous juries (People v. Thomas 53 Cal.4th 771), and secret witnesses (US v. Jesus-Casteneda 705 Fed.3d 1117). With this new attack on the fundamental concept of presumption of innocence, it’s no wonder the average defendant thinks he faces a presumption of guilt regardless of what the Constitution says.

Published on: December 17, 2013

Tables Are Turned On LA’s Abusive Deputies

by Law Offices of Rudolph E. Loewenstein

It wasn’t too long ago that I cautioned those who were comfortable with law enforcement practices to ask “Who watches the watchers?” On the heels of a nationwide scandal involving the NSA and their blatant violations of our Constitutional rights comes a scandal that strikes much closer to home. 18 L.A. County Sherriff’s deputies working in L.A. County jails have been indicted for multiple counts of federal civil rights violations.

Ranging in rank from deputies to sergeants to lieutenants, in other words, all the way up to supervisors, these 18 deputies are accused of violently beating inmates, detaining visitors against their will, and obstructing investigations into their wrongdoing by hiding away inmate victims from the FBI. In fact, these deputies attempted to intimidate an FBI Agent at her home, going so far as to tell her they were seeking a warrant for her arrest . What may have been the final indignity, among all the indignities suffered by the general public visiting friends and relatives in custody, was the detention and roughing up an Austrian Consulate official attempting to visit an inmate. This event apparently reached the ears of the Federal government when the Austrian government complained about the abusive treatment suffered by their official. Apparently it’s not enough to get action when only American citizens complain of mistreatment and abuse. Let a foreign dignitary get abused and it’s guaranteed action by those in power.

Abuse by the law enforcement agents we trust to protect our citizens and, yes, even our citizens who have been detained either suspected of or accused of a crime can’t be tolerated by a law abiding society. It’s easy to think that anyone in jail should suffer whatever consequences await him or her. But that is dangerous thinking because it is against the principles of our Constitution and basic notions of humanity (5th amendment, 6th amendment, 8th amendment). It reduces our democracy and our civil liberties if we, as a society, tolerate such rampant abuse. We entrust our law enforcement officials with the duty to protect all of us. We must remain vigilant as a society. The FBI and federal government are doing the right thing, but it should never have come to this in the first place. Our state and local communities must demand our law enforcement officials live up to the motto written on the side of their patrol cars, “To Serve and Protect”. It’s time the motto is changed to read, “To Serve and Protect Everyone Equally”.

Published on: December 4, 2013

What Happens When A Necessary Witness Can’t Appear At Trial in Orange County, CA?

by Law Offices of Rudolph E. Loewenstein

The justice system has to be able to conduct lengthy criminal trials even when important witnesses can’t be there. For example, a typical murder trial will last at least two to three weeks, and may require the testimony of dozens of witnesses. Because of the backlog in our court system, it can be fairly unpredictable as to exactly when a trial will start. For instance, even after all the formal delays in starting a trial (known as asking for a “continuance”), the state still has 10 days to “trail” the case as they wait for a courtroom to become available. And none of this takes into account the time between when an alleged crime occurs and when a case actually goes to trial. In fact, a trial can be years in the making.

So what happens if a witness who has important testimony simply won’t be available when a case finally goes to trial? Sometimes an important witness for either the prosecutor or the defendant will fall ill, move out of the country, or any other number of things happen which would make them unavailable to appear at the trial. The solution to this dilemma is what is known as a “conditional examination.” The procedure to be used in such an examination is carefully crafted to protect the prosecution and the defense and the ability of both to have a fair trial when that time comes.

California Penal Code Sections 1335 through 1345 set forth the circumstances when a conditional examination may be conducted. A conditional examination is appropriate when a witness is: 1) About to leave the state, 2) So sick or disabled that their ability to testify is in doubt, 3) Sixty-five years of age or older, or 4) A dependent adult. For purposes of the “conditional examination” the witness’ testimony is taken in a normal courtroom setting. The Judge, Prosecutor, Defendant and his counsel are all present. While a jury is not present, the testimony is audio and video recorded. If the witness is truly unavailable for trial the tape recording can be played for the jury during the trial. The testimony given at a conditional examination has the same force and effect as if the testimony were conducted live and in person in front of the jury.

Published on: November 25, 2013

Orange County, CA Gang Injunctions

by Law Offices of Rudolph E. Loewenstein

Tally another victory for civil liberties and constitutional rights. On Tuesday November 5, 2014, the 9th Circuit Court of Appeals ruled that a gang injunction in place in Orange County was overly broad and violated an individual’s basic freedoms. An injunction is an order by a court for someone to do something or refrain from doing something. A gang injunction is a new and dangerous twist on this traditional court order that is being used by District Attorney’s offices throughout the US. A gang injunction is a court order that attempts to restrain members of known gangs from associating with each other in public or representing their gang. As of 2010 there were 150 active gang injunctions in California alone.

But wait, what’s the problem with telling gang members that they can’t hang out with each other and wear gang attire? Why wouldn’t we want to do that? Well, the problem is gang injunctions typically draw in a swath of law abiding citizens in an act of profiling and enforcement practices that resemble something closer to a police state than a democracy. For instance, the gang injunction that came before the 9th Circuit restricted what clothes could be worn within the “safety zone”. It limited people’s 1st amendment right to publicly associate with whomever they choose, and even imposed a mandatory curfew. The particulars of such a gang injunction seem better fitted for martial law than a free republic.

For instance, children of a community activist were served STEP (Street Terrorism Enforcement and Prevention) notices for merely being in a car with a suspected member who might have associated at one time or another with an associate of a gang. Her children were even finger printed, all at a routine traffic stop. Stories like these led the 9th Circuit to find that “the injunctions provisions were so sweeping that enforcement of them constituted a heavy burden on an individual’s basic freedoms”

Published on: November 15, 2013

Los Angeles, CA Justice DENIED

by Law Offices of Rudolph E. Loewenstein

On November 8, 2013, the Los Angeles Times had a headline that read, “34 year wait for justice is over”. The defendant, Kash Register, was convicted of murder in 1979 on the testimony of a woman named Brenda Anderson. Register spent 34 years in State Prison maintaining his innocence. He couldn’t be paroled because he always maintained his innocence. He refused to admit to a murder he didn’t commit. The Parole Board is programmed to deny parole to those inmates who don’t admit their crime because without an admission, how can the inmate be rehabilitated?

So, Register languished in prison, denied his freedom, the basic human rights of American citizens, but not the love of his family, who believed in him from the beginning. Along came Loyola Law School who diligently sought out the truth.

What truth were they seeking? The truth that the prosecution had failed to disclose to Register’s defense attorneys that Brenda Anderson’s sister had told LAPD before trial that her sister was lying. Brenda Anderson’s sister told the police in 1979 that the man she had seen commit the murder was not Register.

Published on: November 12, 2013

In Orange County, CA, What Happens When the Police or Prosecutor Hides Evidence?

by Law Offices of Rudolph E. Loewenstein

Subvert the criminal justice system. Lie to the judge. Hide evidence. Sounds like a defendant in a criminal case doesn’t it?

Who else could it be? If it isn’t the criminal defendant, it must be the much maligned criminal defense attorney, right? You know who he or she is, right? He’s the one who you love to ask at cocktail parties, how can you represent those guys (defendants in a criminal case)?

Well, it’s not either one of the above. In the case of the State of Texas against Michael Morton, the liar was none other than the prosecutor, Ken Anderson.

Published on: October 28, 2013

Who Watches the Watchers in NSA Surveillance?

by Law Offices of Rudolph E. Loewenstein

Is the government growing a conscience? Our previous blog post discussed the NSA’s very nasty habit of watching everything we do without warrants or permission, and then turning over their information to law enforcement agencies. Well when we asked “who watches the watchers”, it seems like we may have found an answer. The New York Times has reported that the Solicitor General for the United States, Donald Verrilli Jr. has voiced strong opposition to such tactics.

Typically there is no way to know if evidence gathered against you comes from the NSA’s warrantless surveillance program. You can’t fight what you don’t know, so even if the government has illegally gathered evidence against you you’re out of luck. But the Justice Department is set to inform certain defendants that the evidence gathered against them may have come from warrantless surveillance. Apparently Mr. Verrilli is extremely troubled by the actions of the NSA and the Justice Department and doesn’t believe it’s legal or right. Imagine that! Hopefully this is just a small step towards shoring up our Constitution and the rights it affords us.