Criminal Defense

February 9, 2024

Fentanyl Trafficking

If you have been charged with the distribution of fentanyl, you will be facing tougher penalties in the State of California this year. The change in the law was precipitated by the increase in fatalities related to fentanyl overdoses.

Fentanyl’s Use

A synthetic opioid, fentanyl has proved to be fatal even in small doses. Up to 100 times stronger than its cousin morphine, pharmaceutical fentanyl was originally developed as a way to help patients manage the pain of cancer. While it is sometimes sold by itself, it is also frequently used to lace other street drugs such as cocaine or heroin because it is much cheaper. Oxycodone has been co-opted, as well, with counterfeit pills containing the more powerful and dangerous fentanyl. These drugs are available on the streets of California and are extremely easy to get a hold of. Consequently, people wind up unwittingly ingesting the more dangerous drug, fentanyl.

February 2, 2024

Reverse Warrants

by David M. Boertje

We all know that a warrant has many purposes: a search warrant entitles law enforcement to search specific persons or property; an arrest warrant identifies someone who will be going to jail. But what is a reverse warrant, and how does it impact you? The fact of the matter is these reverse warrants literally scoop up huge quantities of private information, never having identified a particular criminal suspect and never showing probable cause that the evidence they are seeking will be found in corporate databases being searched.

Understanding Reverse Warrants

Law enforcement personnel have been using reverse warrants for years, and organizations like the ACLU have been increasingly alarmed. That’s because such warrants look at wide groups of people, most of whom are not even suspected of criminal activity. These warrants have several uses, but the most widely used include:

Reverse location warrants, sometimes called geofence warrants, which are used to identify all the people who were within a particular area during a particular time;
Reverse keyword warrants, which are used to identify anyone who entered a specific word or group of words into their search engines during a particular time frame, often in a specific area.

More Reverse Warrants Every Year

Google, the biggest target of reverse warrants, has seen an increase of over 1000% in federal reverse warrants over a two-year period, with an over 800% increase in state/local law enforcement over the same time frame (California’s increase reached 813%).

Google Wants Out of the Geofence Business

The Fourth Amendment prohibits unreasonable search, and it seems clear that throwing out a wide net in hopes of catching a criminal is invasive and unconstitutional. As Google felt pressure building to involve them in data collection, they moved location data that used to be sent to the corporation to now be stored in a user’s phone. Fundamentally, it takes Google out of the geofense equation, as they will no longer have access to user’s location information. As a result, fewer innocents will be dragged into law enforcement dragnets.

Reverse Keyword Searches

Despite progress with geofences, the problem with reverse keyword searches is still a huge issue, particularly in this age of shrinking women’s rights. The government still has access to the computer searches of countless Americans whose involvement in criminal activity is nonexistent. The unchecked power of law enforcement is being challenged in courtrooms across the country, but the battle is slow. Continue reading

January 26, 2024

Swatting is a Crime

by David M. Boertje

Swatting—or placing false calls requesting emergency assistance– is illegal, according to the FBI. These harassing and deceptive emergency calls send response teams to various locations with claims that an emergency is underway. Although the prank calls send SWAT teams and others to a scene where nothing unusual is occurring, officers do not know that the location is actually safe. That means they arrive with weapons brandished– making the potential for accidents distressingly high.

Types of Calls

What kinds of phony emergency service calls are we talking about? Sometimes, callers claim there is a dangerous hostage situation unfolding; other times, they say there are bombs present in a building. Still other calls report rapes, murders, or other criminal activity.

California Case

A recent swatting case here in California involved a 19-year-old man who was stalking a young woman who was underage. The two had become acquainted online, and when things did not work out as planned, the man made multiple calls reporting bombs at the high school attended by the object of his attention. Although explosive devices were never discovered, the school was evacuated repeatedly as a safety measure, interrupting school programming and burning through police resources.

Politicians Targeted

While it is true that many swatting calls focus on public areas like businesses, schools, and airports, there have been a number of recent swatting calls directed at the homes or offices of well-known politicians:

Here in California, Lt. Gov. Eleni Kounalakis was the victim of a swatting call that reported a shooting in her San Francisco home.
Rick Scott of Florida endured a swatting experience when an anonymous call came in reporting that a woman had been shot by her husband with an AR-15 at Scott’s home address.
Republican Brandon Williams, from New York, was stunned when police notified him that they had received a call reporting a crisis in his home. When law enforcement arrived, the Williams family was directed to assemble in the kitchen and to keep their hands in view.
The embattled secretary of state from Maine, Shenna Bellows, was swatted when a man claimed to have broken into her home.
Marjorie Taylor Greene, Georgia’s federal House representative, claims to have been swatted as many as eight times, including on Christmas Day 2023.

January 19, 2024

Double Jeopardy Protections

by David M. Boertje

Anyone who has watched courtroom drama on TV has heard of double jeopardy—the 5th Amendment protections against being tried twice for the same crime. But there is a qualification here — separate prosecutions are permitted when state and federal governments prosecute separately for the same crime. In fact, two different state governments could prosecute in two separate trials for a single offense if both have jurisdiction in the case. And there is one more consideration: civil and criminal trials could pursue different forms of justice for the same act.

An Example of Two Trials for the Same Act in Los Angeles

Originally, the Double Jeopardy Clause applied to just federal cases, but it later was integrated into state laws, as well. While it is true that a criminal trial and its related penalties cannot be held successively for the same act or omission, the Supreme Court has held that both civil and criminal sanctions may be handed down for the same offense after separate civil and criminal trials. So, an offender might be tried criminally for a particular offense, only to later face civil charges in a separate trial based on the same actions.

A notorious situation illustrating this ability involves the criminal murder trial of O.J. Simpson seeking incarceration or worse (found not guilty), followed by the civil trial for wrongful death seeking monetary damages after the initial trial (found guilty). Simpson managed to avoid prison time in the criminal trial but was ordered to pay over $33 million in damages after being found responsible for the deaths of Nicole Brown Simpson (his ex-wife) and Ronald Goldman in the civil trial. Same act, different trials, with different goals and different outcomes. But even after being found guilty in the civil trial, Simpson could not be retried criminally for the same offense under double jeopardy protections.

What Constitutes the Same Offense?

When weighing whether an act can be charged a second time, prosecutors must examine whether each offense to be charged has an element that is not encompassed in the previous trial. Without that unique element, it would be considered double jeopardy. In the O.J. Simpson case, for example, because the elements of the case were unchanged, the case could not be retried in a criminal court despite the guilty verdict in the civil trial.

When is Jeopardy Attached?

Jeopardy is attached when:

A jury is sworn in for a jury trial;
Any witness is sworn in in a district court;
Initial evidence is heard in a trial before a judge with no jury;
A guilty plea is accepted by a judge.

In Simpson’s case, the defendant had double jeopardy protections as soon as the jury was sworn in because he had a jury trial. Legal problems pursuant to the civil trial were completely unrelated to the slayings of his ex-wife and Goldman. Continue reading

January 12, 2024

Fingerprints Studied by AI

by David M. Boertje

A new fingerprint study is in—and plenty of scientists and forensic experts are taken aback: it claims to turn previous understandings about fingerprints upside down and to revolutionize fingerprint analysis in police work. How significant is this study?

The Old Mode of Analysis

Analysts in the fingerprint business have focused on the endpoints and branching in the ridges of fingerprints—called the “minutiae”—as they attempted to match fingerprints with suspects. This has been the emphasis for forensic experts for literally hundreds of years. Never before has the correlation between fingerprints on the same person been studied.

The New Node of Analysis

A study relying on artificial intelligence (AI) has changed the focus. Using this technology—which is the same technology used in facial recognition–researchers studied 60,000 pairs of fingerprints presented to AI. While some pairs of prints belonged to the same person but with different fingers or angles on the prints, others belonged to different people altogether. Scientists wanted to know if the technology could spot the prints that belonged to the same person or not.

Results of the Study

After examining the curves and angles at the center of each print, the computer was able to determine that the prints belonged to the same individual just under 80% of the time. These similarities disprove the old theory that every single fingerprint is different.

Implications

Although this initial research is relatively small, and researchers concede that their study needs replication using a larger and wider database of prints, they think that, ultimately, the findings will impact criminal investigation in huge ways. Innocent people who are suspects in a case can now be off the hook as suspects when their prints—using the new analysis– clear them. And more criminals could be caught with this analysis. Cold cases could be reopened, too. When investigators have only one print on file, AI can still make a match of latent prints, and new leads could be scrutinized as prints at the scene are identified when different fingers identify a suspect.

On the Other Hand…

While the study itself is not disqualifying, some critics say the authors have largely overstated the importance of their work. They say analysts have known all along that fingerprints are different but similar and that the prints on different fingers of the same person are very similar.

When it comes to the claim that reliance on AI can be the basis to reopen cold cases if the prints found at a crime scene are from different fingers than the police have on record, that is pretty much bunk, too. That is because it is common practice for officers to take all 10 fingerprints from suspects who are arrested—so how does the research really impact common practice in the legal field?

What’s Next?

As the study of fingerprints intensifies, one thing is certain: AI can provide insights previously overlooked that can help forensic scientists who are hoping to link suspects to crimes. While it is generally established that further study is necessary, the notion of looking at fingerprints in a whole new way is bringing new clarity to the conclusions reached by investigators and others. Continue reading

January 5, 2024

Is it Legal to Livestream a Police Interaction?

by David M. Boertje

Who hasn’t seen videos of police manhandling citizens who were allegedly involved in criminal activity? Such accounts, usually recorded by interested onlookers, have informed the public of the unnecessary use of force by officers across the country. Imagine how little we would know about Rodney King, Eric Garner, Tamir Rice, Walter Scott, George Floyd, and many, many others had no one taken the time to record the horrendous incidents. But beyond simply videotaping arrests and other police interactions with the public, is it legal to actually livestream them? While livestreaming might benefit the fight for civil rights, might it also hamper an officer’s ability to do their job and even lead to uprisings and riots? After all, we have seen as much with the use of video; wouldn’t livestreaming be even more evocative?

The First Amendment

The right of people to videotape law enforcement officers when they are performing public duties has been repeatedly upheld in courts across the country, which have found that it is unmistakably a right guaranteed by the First Amendment. But livestreaming is another thing altogether, allowing the public broadcast of an officer interaction in real-time. What does the law say about that?

Legal Precedent

Plenty of officers are uptight about livestreaming when they are on duty, saying it interferes with their ability to do their jobs properly and creates the potential for additional dangers. While the law is evolving on this issue, the Fourth Circuit has provided some direction regarding the legality of livestreaming.

The February 2023 case (Sharpe v Winterville Police Department) involved a motorist who was stopped by police. At the beginning of the interaction, a passenger began to livestream the occasion. The officer attempted to take the passenger’s phone, explaining that while the passenger videotaping the interaction was permissible, livestreaming was not because it could lead to an unwanted hazard if others viewing the stream showed up and caused problems at the scene of the traffic stop.

The passenger was having none of that, and challenged the officer’s contentions in court, maintaining First Amendment Rights had been violated. The Fourth Circuit agreed with the plaintiff, writing that livestreaming does contribute to the information the public has about law enforcement activity and is protected by the First Amendment under these circumstances.

Nonetheless, the court did appreciate that officer safety might be an issue in some situations:

In the event an individual became proximate to the officer, inhibiting the ability to perform duties;
In the event viewers of the livestream were invited to the scene in order to demonstrate or otherwise impede the officer’s actions.

Under these circumstances, officers potentially could have more leeway legally to claim that First Amendment protections were limited and might not include livestreaming. Continue reading

December 29, 2023

Can We Trust Black Box Technologies in Criminal Prosecutions?

by David M. Boertje

Law enforcement relies on artificial intelligence (AI) in making determinations related to investigating, charging, sentencing, and even releasing offenders across the country. More and more, AI algorithms are incredibly complex and their pathways are secretive. That has led to the use of opaque technologies, otherwise known as black boxes.

What are We Talking About?

In the criminal justice system, black box technologies use technical algorithms to interpret facial recognition, mixes involving multiple persons’ DNA, and even risk assessments related to the potential for recidivism. It’s a complicated science that is not really understood by most people but that nonetheless has a strong influence on the way people think about evidence both in and outside of a court of law. Investigators, judges, juries, and policymakers all rely pretty heavily on deductions arrived at through black box technologies. This is problematic because that reliance is rooted in secretive and complex science that can easily be misunderstood and is even downright wrong at times.

Regulation Issues

The use of these black-box AI technologies has come upon us so quickly that the legal system has been unable to keep up with regulations in order to protect the rights of individuals pitted against the algorithms. The technologies are top-secret, sometimes by design and sometimes due to corporate cloak-and-dagger moves. When civil rights violations are alleged, it has so far been nearly impossible to make a case simply because the technology is so opaque. That fact, too, has made regulation difficult to date.

Protecting the Secrets

Many judges both believe in and trust these technologies and, in fact, protect them from closer examination. One case involved a challenge to DNA technology and a request that independent evaluators review it. The judge, however, refused the defense challenge and inspection proposal on the grounds that the company would not be able to market its technology if it were more transparent.

Can it Be Relied on?

These technologies can absolutely be trusted to come to fair and accurate conclusions according to the corporations who market and run them. But because they make money based on getting favorable results, and no one else is allowed to take a closer look at the technologies, how trustworthy is it really? It is a question that literally has no answer.

AI explanations do not always stick to a model’s calculations, either. In fact, many explainable methods disagree with one another, meaning some of the explanations must necessarily be wrong, making all of the conclusions invalid. Nonetheless, advocates of the technologies argue that some mistakes are worth stomaching when weighed against the accuracy provided in other cases. Really? And when do we know a mistake has occurred versus when the conclusions were accurate? Is it okay to sacrifice the constitutional rights of some because there’s a chance others will be protected? Is that really an acceptable argument? Are we, as a society, okay with decisions impacting life and liberty being locked up in a black box that no one outside of corporate biggies understands?

Case in Point

In one case, a medical examiner’s testimony based on genotyping software was challenged, and multiple concerns were disentangled as the court took a closer look at the accuracy of the conclusions. Later, another judge ruled that relying on this kind of evidence is a mistake and even advocated a review of convictions based on AI black box technology because independent experts have not been able to examine the technology and corroborate conclusions. That judge estimated that when there are four or more DNA samples being evaluated, black box technologies are likely wrong more than half the time. Continue reading

December 22, 2023

Police Transparency a Must

by David M. Boertje

There is a social contract between law enforcement and the communities in which they work, requiring transparency and trust. But that can be extremely difficult to achieve.

Practical Implications

Roughly half of Americans say they have a declining perception of police and other law enforcement agencies primarily because of what they perceive as a lack of transparency. This suggests that agencies must shine more light on policies and procedures and give the public greater access to data and decisions made by top officials if they want the trust they need for maximum efficiency. That means agencies will necessarily incorporate clear policies designed to build visibility into the world of law enforcement:

Use modern technology to track and report crime, officer response, personnel issues, and so forth.
Implement a civilian review board that works with law enforcement with the power to provide oversight, accountability, and updates to the public.
Create policies, annual reports, organizational charts, and additional data whenever possible that is available online for the public to peruse.
Create avenues for police accountability that make sense to the public. When it comes to use-of-force issues and the public finds particular actions questionable or inhumane, but the department stands behind them, there should be an explanation/rationale for such procedures and when or why they are deployed. If certain officers have multiple issues one after another they should be held accountable for that. And when officers clearly lack compassion and decency, they should be removed from the force.
Publicize every use-of-force incident and include documentation on relevant demographic information, the type of force and reason it was used, and the officers involved.
Review and evaluate events that involve complicated issues and result in negative outcomes that could be prevented in similar situations down the road.

Benefits of Transparency

The fact is that the majority of information the general public receives about police actions comes from news stories. That being said, how might transparency improve community perceptions of law enforcement? Many stories that have gotten a lot of traction in recent years have exposed officers as ruthless, punishing enforcers who appear to enjoy their aggression toward citizens. The question is, are those isolated incidents or common practice? Transparency and accountability can answer the questions the public has about these incidents and, if effectively handled, can boost community confidence in the police. When there is a wall of secrecy around police agencies, the public can be counted on to assume the worst.

We know there are legitimate problems in any organization and that when they are handled openly, the opportunities for remediation of policy are much more likely, satisfying the public demand for better outcomes when police deal with racial disparities, mental health issues, juvenile offenders, and other problems front and center on the public agenda. Continue reading

December 15, 2023

Federal Officers’ Use of Deadly Force

by David M. Boertje

We have many federal agencies that are tasked with protecting the public. Outfits, including the DEA, FBI, ATF, and Federal Marshals all share that mandate. In the course of their work, however, they have been responsible for more than 150 fatalities and 80 injuries over a period of just five years. That leads to questions about just how these agencies operate.

Minor Reforms

The Biden administration has recently addressed some of the biggest complaints law enforcement has seen, requiring the first reforms federal agencies have experienced in the past 20 years. Those reforms include:

Intervention requirements for officers who observe excessive force in the field;
Greater requirements for body camera usage;
No-knock warrant restrictions.

Rules for Federal Agencies

The fact that state and local law enforcement agencies have undergone some monumental reforms in recent years has been highly publicized. But the same is apparently not true for federal law enforcement agencies. Data surrounding use-of-force incidents are heavily cloaked. We know that many local agencies have done away with the use of chokeholds and have ramped up training related to de-escalation, for example, but it is unclear how policies at the federal level have been impacted by publicized lethal force incidents in recent years. Former federal officers can confirm that there is generally little to no oversight when it comes to federal data, making it virtually impossible to understand the who, what, why, when, and how of federal shootings. What we do know is this: federal officers—and those working in tandem with them– are sanctioned to shoot at moving vehicles and often shoot suspects within seconds of an encounter. These are generally unacceptable for more local police.

Facts About Federal Law Enforcement

Just who are the people who wind up on the other side of federal officers’ weapons, and what do we know about the agencies that pursue them?

While all law enforcement operations must conduct a risk assessment prior to attempting an arrest, the bar for federal agencies is much lower than for state and local agencies.
Over 40% of these suspects have been charged with violent crimes, including rape, murder, and armed robbery.
Accidental victims who were simply in the wrong place at the wrong time account for about 10% of shootings.
Between ten and twenty percent of those shot by federal agents and/or cooperating local agencies were wanted for just low-level charges such as simple parole violations.
About two in ten had warrants related to felony gun or drug possession, and in some instances, these suspects fired on officers first.
49 officers were shot, six of whom died.
Multiple officers fired a weapon in roughly half of all shootings.
US Marshals are not expected to engage in de-escalation tactics prior to using lethal force.
US Marshals’ operations resulted in the majority of fatalities.
To date, no Marshals have ever been prosecuted following a shooting incident.
One in ten gun fights occurred during daylight hours in high-traffic areas.
One fatal shooting actually occurred when officers killed a pall-bearer while performing his duties at a funeral.

December 8, 2023

Voter Fraud

by David M. Boertje

A crazy election year is ahead, making it a good idea to take a look at voter fraud issues that could lead to some real problems for individuals who are charged.

Voter Fraud Facts

The truth is that the majority of Americans do care about election integrity and believe that fraud of any kind is wholly intolerable. That may be why voter fraud is tremendously rare in the United States, according to numerous studies, despite claims to the contrary by some. Claims floating around charging that the 2024 presidential election is “rigged” are unfounded, as the number of fraud cases related to voting is minuscule and would not impact election results. Here’s what we know about recent cases of such fraud:

According to one study, the probability of non-citizen voter fraud is zero.
Only 31 credible cases of voter fraud related to impersonation occurred between 2000 and 2014 across the country.
The actual rate of voter impersonation is no higher than 0.003%.
Most questionable issues can be traced back to a clerical error of some kind.
In the 2016 election, there were just four cases of documented fraud.
Mail-in votes have been determined to be just as secure as in-person votes.
In multiple studies, the majority of voter fraud claims have been found to be meritless.

Examples of Voter Fraud

In the event someone did decide to try to commit voter fraud, there are a number of ways to attempt to break the law (although safeguards usually prevent success):

Voting or registering, or trying to do so, in the name of someone else or of a fictional person and forging a signature;
Interfering with mail-in ballots;
Voting despite ineligibility (such as due to citizenship status, felony status, or age);
Casting more than one ballot in the same election;
Voting in the name of someone who has died;
Changing the information on someone else’s registration form or throwing it away because you do not like the party they are associated with;
Buying, threatening, and/or selling votes;
Being paid to vote in a particular way;

Examples of Voter Fraud by Officials

Manipulating voting machines;
Trying to determine who someone has voted for;
Manipulating ballots by throwing them out, changing them, or casting ballots in the name of other voters.

Examples of Fraud by Campaigns or Candidates

Using taxpayer money to campaign;
Secreting the names of those who pay for advertising;
Campaigning within 100 feet of a polling location.

Penalties for Voter Fraud

While voter fraud is extremely rare, when it does occur, offenders can look forward to the possibility of serious penalties, including thousands in fines and years behind bars, depending on the charges. Continue reading