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Author: Ross Erlich

Do I Need a Criminal Defense Attorney if I am Innocent?

Posted on by Ross Erlich

Short answer is yes.

If you think you’ve been falsely accused, or arrested, for a crime you didn’t commit, you are not alone.  There are countless examples of people who have been arrested, and even charged, for things they haven’t done.  Witnesses who are incorrect, victims who are lying or misleading, facts that don’t add up, etc.

One may think that the right course of action is to cooperate with law enforcement and that there is no need to hire a lawyer.  Great, save some money!  Well, probably not the best idea.  Remember, the prosecutor cannot use your right to remain silent or your hiring of a lawyer against you.

In fact, if you are a suspect in a case, simply denying your involvement is not going to help much.  Cops have heard that thousands of times.  Law enforcement do not determine your fate in court, they do not file or dismiss criminal charges, they do not offer plea deals.  Their job is to investigate and make an arrest, with the emphasis on the make an arrest part.  It is easier for them to put together what they believe to be facts support your guilt, make an arrest, and pass it along to the prosecutor’s office.  They “tend” to believe you are guilty, then look for facts to support that belief.

Let me give you a story about a former client that might help illustrate the purpose of this blog post.  I represented a woman a few years ago who was charged with felony hit-and-run and felony assault with a deadly weapon causing great bodily injury for, allegedly, causing an accident with a speeding motorcyclist (estimated at 60mph) who broke his leg and then she left the scene.  This happened in the San Fernando Valley near a large big box shopping store and alongside a major busy street.  She came to me, while being represented by another attorney, after she had already had her preliminary hearing (evidentiary hearing determining probable cause in the case) and after a judge had determined there was enough probable cause that this crime was committed by her.

The police and prosecution’s take was that she had caused this accident and then was found parked alongside the business driveway of this big box store doing paperwork in her car.  There was a witness who believed her saw her car, believed to have followed her through the parking lot (even though he lost sight of her), and then came across her car parked where she was.  The police were wearing body cameras when they approached my client and you could see a few key things in that footage.  A complete lack of any damage to her vehicle, her being cool, calm and collected, a car that was filled with lots of boxes of paperwork (which wasn’t strewed about after an accident) and windows that were not tinted.  Oh, there was also some security camera footage from a taco truck that was across the street.

The prosecutor’s office believed that the eyewitness had, in fact, seen what he claimed to have seen, believed that the not-so-great security camera footage was my client’s car and, despite body camera footage and police report documentation that showed no major body damage, still believed my client was good for the crime.

Also keep in mind that my client was adamant about her innocence, often pointing out discrepancies in the reports, and looking for an attorney who could help her prove her innocence.  She had also just spent months with a different lawyer going back and forth to court with them believing she did it and, ultimately, having a preliminary hearing where the prosecutor was able to convince the judge that she did as well.  Not to mention, her defense attorney, who had access to the same evidence I did, couldn’t prove her innocence.

When I got on the case, I knew that my client was telling the truth.  The security camera footage showed the car driving down then main street after the accident away from the business driveway where she was found, there was no damage anywhere on my client’s vehicle from an accident like this, the security camera footage seemed to show 2 persons in the vehicle that caused the accident and a 911 caller mentioned that they believed the car to be a Honda Civic, which was not what my client was driving.

So, what do you do now?  The most stressful client a lawyer can have is an innocent one.  There is a reason this is a commonly known phrase.  You can see in this example how an innocent person could make it halfway down the road towards either a conviction or a forced plea deal to avoid the potential damage a conviction at trial could cause.  How an innocent person could go to court multiple times without having their innocence proven.  It’s a scary thing.

What I had to do was to clearly, and overwhelmingly, show the prosecutor the evidence that they may have overlooked which, when added up, equaled innocence.  I had to put together a package that included timelines, clips of video, mentions to 911 call, lack of car damage, her statements to police.  Had an investigator drive through the parking lot with me on video to show how it was almost impossible for this witness to maintain view of this car through the parking lot.  Even after all of that, the prosecutor needed to take that all and present it to the supervisor to get permission to dismiss.  This was a months-long, multiple appearance effort on my part, not something that just got remedied in one court appearance and a quick conversation.

Eventually, all charges were dismissed against my client.

As you can see, even if you are innocent, it is crucial to have a skilled Los Angeles criminal defense attorney represent you.  Even in this example, police saw who they thought was “good for” the crime and put together the facts they could find to support it.  No matter that my client proclaimed her innocence from the time she was contacted by police up until this very day.

If you or someone you know has been charged with, or is being investigated for, a crime here in Los Angeles or surrounding counties, contact attorney Ross Erlich today for a free consultation.

“Knock knock.” What should I do if law enforcement shows up at your door?

Posted on by Ross Erlich

Short answer: Do nothing, unless they have a warrant.

The 4th Amendment prohibits unreasonable search and seizures by the government.  Thus, police (or any law enforcement agency), must have a search or arrest warrant to enter your dwelling without your consent.  There are a few exceptions that I will explain below, but they are only exceptions to the general rule.

If they knock on your door, ask you to open up, want to chat with you (the ole “knock and talk”), anything along those lines, without a warrant, are just ways to get you to incriminate yourself.  You have no duty to talk to law enforcement and this includes allowing them to enter your home without your permission. You can simply say no, go away, have a nice day or just remain silent and ignore them.

Now, there are exceptions to this general rule.  The major ones are warrants.  If the police have a search or an arrest warrant, they may be able to enter your property without your consent.  The scope of these warrants must be spelled out in the warrant itself, however, and that may be a limitation on law enforcement.

If the police have an arrest warrant, they can enter your property without your consent if they have a reasonable belief that the person they are seeking to arrest is located there.  This might mean that they cannot enter a guest house, a garage, other locations where it would be unreasonable for them to believe the suspect is located, etc.

If the police have a search warrant, the warrant has to specify what law enforcement is able to search.  If the warrant says they can search the garage, they can’t go into the house, and so forth.  However, most search warrants can be very broad and oftentimes include all rooms and areas on a property, so I would expect that most of the property would be included if the cops show up to your house with a warrant.

Also, keep in mind that a search warrant is different than an arrest warrant in that, in many instances, law enforcement shows up to execute a search warrant and ends up not arresting anyone.

There are some key exceptions to law enforcement being required to have a search warrant to enter your property and will discuss these below.

1. Search Incident to Lawful Arrest

When a law enforcement officer makes a lawful arrest, the officer may search both the person arrested and the area within the person’s immediate control. This exception is made for “officer safety and the preservation of evidence.”  The scope of the area “within the person’s immediate control” that an officer may search is always being litigated and is subject to constant fights among defense attorneys and prosecutors.

2. Items in Plain View

An officer may seize items that are in plain view as long as the officer has a legal right to be there. For example, if an officer stops a person for speeding and when issuing a ticket to the driver the officer sees, in plain view, drugs in the backseat of the car, the officer can seize the suspected drugs without a warrant. Or, for example, an officer knocks on a door, someone opens up and they see something illegal sitting on the table, they would be allowed to go in and seize that item and, possibly, make an arrest.  Officers may even enhance their vision with the use of flashlights or binoculars, but they may not illegally enter premises and then claim the plain view exception.

3. Consent

If a person consents to a search and the officer reasonably believes that person has the authority to consent to the search, no warrant is needed. The person consenting must have or reasonably appear to have authority to consent. For example, a parent can consent to a search of her minor child’s room. However, a minor child cannot validly consent to the search of her parent’s house. In addition, the consent must be voluntary and not the product of threats or undue promises. Consent searches can apply to both individuals and property.

4. Stop-and-Frisk

If police have reasonable suspicion of a person committing, just committed or is about to commit, a crime, they may both stop a person to ask questions and conduct a brief pat-down search of the person to ensure officer safety. These Terry stops (named after the famous Supreme Court case) are sometimes a source of friction between the police and communities where stop-and-frisk is employed more aggressively.

5. Automobile Exception

In establishing the vehicle warrant exception the Supreme Court reasoned that the inherent mobility of automobiles would make it impractical for officers to always obtain a warrant prior to a search.  The Court explained that people have a lesser expectation of privacy in their vehicles. Based on this reasoning, a warrantless search of a vehicle may be justified if an officer has probable cause to believe the vehicle contains contraband, controlled substances, or other forms illegal evidence.

6. Hot Pursuit and Exigent Circumstances

If the police are pursuing a suspect and the suspect enters private property, then the police can continue the pursuit and enter the private property without stopping to obtain a warrant. Exigent circumstances are circumstances that require immediate action. For example, the police can forgo obtaining a warrant in an emergency in order to render aid to a person who needs it, to ensure public safety, or to preserve evidence that is in immediate danger of being removed or destroyed.

 

In conclusion

The idea to write this blog came from a call that I got last night, around 9:17pm.  Someone found me online and called me saying the cops were at his house, knocking on the door and asking him to open it.  He said that they were investigating a burglary, or something along those lines, and had “questions” for him.  I asked him if they had a warrant, he said no, and I told him that you have no obligation to open that door or communicate at all with them, and that he probably shouldn’t either.  If they arrest you or break down your door, cooperate, be polite, don’t say anything and then call a lawyer.

You need to know your rights and you need to enforce your rights.  It is crucial that you contact a skilled criminal defense attorney if you’ve been arrested or are being investigated for a crime and have that lawyer navigate that journey with you.  Don’t try it on your own!

The Camera (does not) Add Probable Cause

Posted on by Ross Erlich

An LAPD officer was arrested last week on charges of filing a false police report and perjury (oops!).  The officer, a 13-year veteran, was assigned to LAPD West Traffic Division, which is responsible for all handling all traffic-related investigations and enforcement.

Apparently, the LAPD’s Internal Affairs Division conducted an investigation that stemmed from concerns from the LA City Attorney’s Office regarding footage they viewed on the officer’s body-worn camera videos.  And, would you believe it, investigators established that the “camera footage was inconsistent with the written report.”

In English, the camera footage showed one thing and the cop’s written report stated another.  As a result, the DUI charge at issue was not filed.  So, sounds like the officer added a little probable cause to arrest to his written report either thinking that no one would notice or view the body-worn camera, or he just wasn’t thinking at all.

With the increasing use of body-worn cameras by the LAPD, we are now able to see what the officer sees during their encounter with our clients.  Thus, we can compare the contents of the video with what was stated in their written report and, in certain cases, point out meaningful inconsistencies to the prosecutor.  This story above is a perfect example.

Another example, that comes from dashboard camera footage, is a report that might state the my client failed to use a turn signal and this was the moving violation that gave the officer probable cause to initiate a traffic stop (pull the person over).  After pulling them over and talking with them, it was believed that the client was driving under the influence and subsequently arrested.  Well, after viewing the dash-cam footage, it was clear that the client did, in fact, use his turn signal and you can be sure this was politely pointed out to the prosecutor.

If you don’t have probable cause to stop, your arrest crumbles.  Attorney Ross Erlich is always looking out for the availability of dash-cam footage, body-worn camera footage, and other forms of surveillance footage that can help disprove the allegations made by law enforcement.  Leave no stone unturned, a wise person once said.  That’s all part of the job.

If you or someone you know has been arrested or given a notice to appear in court in Los Angeles, contact attorney Ross Erlich today for a free case consultation.

“Honey, I finally got you that designer bag you wanted!”

Posted on by Ross Erlich

Just the other day, in our own backyard, law enforcement officials seized over $12.7 million in counterfeit Cialis pills (no comment) and fake designer clothing and shoes.  The bust occurred in the Port of Long Beach and included over 47,0o0 pills and over 10,000 pieces of clothing and shoes.

Now, I know what you might be thinking.  “How in the world is all that fake stuff worth $12.7 million?”  Well, when counterfeit items’ value is calculated, law enforcement uses that manufacturer’s suggested retail price.  So, that fake designer bag you just bought for $75 is “worth” $3,000 when it comes time to charge you criminally for possessing it.  Ooopsy.

Possessing counterfeit goods in California is enforced via Penal Code section 475, aka forgery.  That section states, basically, that anyone who possesses or receives a forged item and intends to pass that item on with the intent to defraud another person is guilty of this crime.  Note that the person possessing or receiving the forged item must know the item is fake and then act with intent to defraud another in order to be guilty.

Forgery is a “wobbler” in California, which means that it can be charged as either a felony or a misdemeanor.  This typically will depend on the value of the items possessed/forged, quantity, person’s criminal history, etc.

So, what does all of this mean other than don’t sell knock-off stuff?  Well, if you are arrested for forgery, as with any crime, it is important not to make any statements to law enforcement without consulting with an attorney first.  It is human nature to want to apologize for wrongdoing or to minimalize wrongful actions, but doing that is an admission of guilty and can be used against you.  For crimes like forgery or possessing some counterfeit goods, there can be a lot said for being able to pay restitution or some other form of making any victim “whole” again, so keep that in mind.

Being charged with a crime is no fun.  Remember that it is important to consult with an attorney as soon as is possible and to treat your criminal charges seriously because the prosecutor is treating them seriously.  “Getting ahead of the charges” is always a good idea – have your attorney call law enforcement, call the DA’s office, try to speak to someone in charge of actually determining what charges, if any, get filed against you.

Call Los Angeles criminal defense attorney Ross Erlich today for a free case consultation and to find out what are some of the things that you can do to put yourself in the best position before court.

Is more accountability coming to those “bad apples”?

Posted on by Ross Erlich

Rob Bonta, the newly-confirmed Attorney General of California, said that his first order of business would be to implement a new law that requires the state’s top law enforcement officer (the state attorney general’s office) to investigate all fatal police shootings of unarmed civilians.  Bonta noted that while the state, and nation as a whole, undergo this “racial justice awakening”, it is important to also have an awakening in “how the state polices.”

State lawmakers have been questioning Bonta’s office regarding if we would allow making police misconduct files public, would share the state’s gun database with firearm violence researchers and how his office would deal with a backlog in the state’s, unique, system of seizing lawfully obtained firearms from people convicted of certain firearm-prohibitive crimes or mental illness.

Now, how does all of this apply to you?  Well, I can tell you from my decade-plus in practice that yes, law enforcement officers do commit misconduct.  Almost everyone does, or has, committed some kind of misconduct, so it may be unfair to talk about this as something unique to police officers.  However, law enforcement officers are in a unique position of being the ones who can take our liberty away, are in charge of “protecting and serving”, who are the ones who write police reports and are there to serve the public.  If they commit misconduct, there is, arguably, “more to lose” than, let’s just say an office manager who steals some office supplies.

So, cop beat you up during your arrest?  Cop write something on the report that wasn’t true?  Cop take your money and not list it in your property receipt?  Well, you might have some (more) official recourse now and a more streamlined way to obtain that recourse.  If these misconduct files and complaints are made easier to access by attorneys, that can help us shed light on facts regarding a specific police officer that should be known to the prosecutor.

If you have been arrested or charged with a crime in Los Angeles, contact attorney Ross Erlich today for a free case consultation.  If you believe the police have committed misconduct or otherwise abused their power in dealing with you, also contact attorney Ross Erlich so that I can evaluate the facts and potential claims associated with the facts.

So, I got this little DUI thingy going on…

Posted on by Ross Erlich

You wake up, not remembering much, but do recall a little paper that you received the night before.  You pull it out from your pants pocket to look and it’s a notice to appear in court for the DUI that you got last night.  What fun!  Well, there are a certain number of things that you should keep in mind while you navigate this process and I’ll do my best to help explain that complicated process to you a bit.

Nearly all DUIs begin one of three ways: 1) you are pulled over for a traffic violation like speeding or not using your turn signal, 2) you are pulled over for an equipment violation on your car or 3) you were in an accident and law enforcement responded to that accident.

The officer will make contact with you and, without fail, will note in their report that at that time, you “observed the objective symptoms of intoxication,” such as “red bloodshot eyes, slurred speech and/or a flushed face”, and observed an “odor of an alcoholic beverage emitting from your breath.”  You will then be asked to perform a number of standard field sobriety tests and, at the end of all of that fun, asked to blow into a preliminary alcohol screening device (PAS), commonly known as the breathalyzer.

Let’s take a quick break here.  You must remember, assuming you are in a state of mind to do so, that you are not obligated to perform any of the field sobriety tests and/or the PAS device and frankly, I wouldn’t do so myself.  Why you might ask?  Well, you will have to submit to another blood alcohol chemical test after you are arrested (more about that in a minute), the field sobriety tests are so difficult to complete without making an error that most people cannot successfully complete them sober, and blowing into the PAS this early into the investigation does not do you any favors.  Might as well wait for some time to go by and let that blood alcohol level decrease as much as possible.

Now, you do have to submit to a breath or blood test to determine the level of alcohol or drugs in your system.  This is known as the implied consent law in California and when you go to get your driver’s license, you are impliedly consenting to give a blood alcohol test when a law enforcement officer has suspicion that you are driving under the influence.  I typically “recommend” choosing the blood draw as this typically takes a little longer for law enforcement to get you somewhere that can draw the blood as opposed to going straight to the station where they have a breath test device set up.

So now you’ve already submitted to your blood alcohol test, have been arrested, booked, released, etc.  Now what?  Well, you now have 10 days from the date of arrest to contact the DMV to request a hearing before they automatically suspend your license and request a stay on the automatic suspension of your license, pending a hearing.  If you don’t plan on driving, you might consider not requesting a stay on that suspension in order to “start the clock” on your restriction earlier.  Remember that the DMV and the court have separate proceedings and that the court doesn’t care about the DMV and vice versa.  Thus, you criminal matter could be dismissed or never filed, yet you could still have your license suspended from the DMV.  Any Los Angeles criminal defense attorney worth their weight typically handles both proceedings for you.

Once we get to court, we are able to see all of the evidence against you.  Police reports, narratives of arresting officers, pictures, body cam footage, dashboard cam footage, etc.  This is our chance to see if you were properly arrested, if the officers’ narrative of the events are in fact accurate, whether you were properly admonished regarding the need to submit to an blood alcohol test, and a number of other things I look at to see if law enforcement did their job properly.  Anything they failed to do, lied about, or did not do as prescribed by law, creates ways I can attack the government’s case and the validity of the arrest.

The prosecutor typically looks at how “bad” your driving was, including the presence of a traffic accident, and looks a lot at the blood alcohol test results.  Thus, if the “numbers” are relatively low, lack of criminal history and not very “bad” driving, there is potential to get the charge reduced.

Without getting into more (not so exciting) detail on this post, this is the first steps involved in a DUI in Los Angeles, San Bernardino, Riverside and Orange counties.  If you want the full version, feel free to call my office and talk to me about your case.  This is what I do for a living so I’m always happy to hear your set of facts and let you know what we can expect at court.

California Supreme Court’s thoughts on bail reform. Oh, and mine as well.

Posted on by Ross Erlich

The California Supreme Court said on Thursday that judges must consider a suspect’s ability to pay when they set bail essentially requiring that defendants who are indigent be released pending trial, unless they are deemed too dangerous to be released.  Keep in mind that judges can require electronic monitoring, regular check-ins with authorities during the pendency of a case, or order stays at shelters and drug and alcohol treatment in lieu of the cash bail.

The justices, in a unanimous decision, said that “the common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional.”  This is a major win for those who champion arrestee rights, criminal justice reform, etc.  Back in November, voters were unwilling to remove California’s cash bail system and replace it with a “risk assessment” system that judges would use to determine whether an individual arrestee was a threat to the public and whether that person would return to court for their case.

This decision by the state supreme court does keep California’s cash bail system in-tact, but not for those who cannot afford it.  Prosecutors will now have to prove, by clear and convincing evidence, that a lower-income arrestee is a flight risk or danger to society, unless cash bail is put into place.  On every case.

You might ask yourself, what even is bail or why is it used?  Well, bail is money or property that is “put up” by an arrestee that can be forfeited if they fail to appear to court for their case.  Traditionally, judges have looked to seriousness of the crime, a person’s prior criminal history and any failures to appear at court when determining bail.  Many argued that this allowed for wealthy persons to post bail and remain “free” while they fight their case while poorer, in-custody persons would have to fight their case from inside jail (poor conditions) and this would unduly cause them to take plea deals they wouldn’t otherwise take.

So, what does this mean for you?  Well, if you have resources, own a home, have income or family and/or friends who might financially support you, means probably nothing.  This decision doesn’t look at those who come before a judge at arraignment who have means.  What this means is that if you are out of work, no family supporting you, a low-wage worker, etc., a judge cannot simply keep you in custody via bail if you cannot afford it and you are not deemed a flight risk or a danger to society.  Even then, you might be able to get released without bail so long as you have periodic check-ins with law enforcement, court, etc.

Personally, I think this is a great decision and something that was long overdue.  Professionally, it will likely contribute to less business for me since people who are being held in jail typically want to hire an attorney faster so that we can appear in front of a judge and attempt to get them released without bail, but there is a bigger picture here.  We’ve all seen the wave of criminal justice reform coming and even though I am a private attorney and make a living out of people being taken advantage of by the system, my true passion in life is the reform of this system I, and my clients, have to navigate through on a daily basis.  So yes, it might lead to less money for me, but it is a step in the right direction for everyone to be seen equally in the eyes of the law.

If you, or anyone you know, has questions about bail, pending charges, an arrest or what your legal rights are, contact Los Angeles criminal defense attorney Ross Erlich today or visit the rest of www.rosserlichlaw.com to read more.

Take your kid to (not into the enclosure) the zoo day!

Posted on by Ross Erlich

Many of you have probably heard about the father who took his two-year-old daughter into the elephant enclosure at the San Diego Zoo for a photo opp.  From the video that’s been posted online, you can see the elephant start to approach the two and, when the father is attempting to get out, seems to drop the child and scoop her up just moments before the elephant gets to them.

Turns out that wasn’t the smartest move, for many reasons.  Setting aside the potential for small child/elephant mishaps, the man was promptly arrested for child endangerment and booked on $100,000 bond at the San Diego County jail.  Wonder if he got his picture?

Now, you might ask yourself, seems like a “relatively” minor crime, no?  No one got hurt, there was no ill-intent, no property was damaged or destroyed, shouldn’t this just be a simple issue to resolve?  As many things in the law are, it turns out the answer to that question is “it’s not so simple.”

California punishes “child abuse” and “child endangerment” and “child neglect.”  For purposes of our zoogoer, we’ll be talking about “child endangerment” which is codified in Penal Code 273(a).  Paraphrased for all you non-lawyers out there, that code makes it illegal for someone to willfully exposing a child to unjustifiable pain, suffering or danger, or by subjecting that child to an unreasonable risk of harm, even if the child never actually suffers any harm.  If the conditions are likely to produce great bodily injury or death, that charge is a felony, punishable by up to 2-4-6 years in state prison.  If the conditions are such that there is not likely to be great bodily injury or death, that is a misdemeanor, punishable by no more than 1 year in county jail.

Some examples of how this crime is charged in California include getting arrested for DUI with your child in the car, leaving a child inside a hot car without ventilation, leaving a dangerous weapon where a child can easily access it, failing to get medical treatment for a sick child, and the list goes on.  Chances are, if you have to think about whether the conduct would be considered illegal, it likely will be construed that way.

There are also some additional penalties unique to a conviction for child endangerment that the court has under its discretion.  If probation is granted by the court, the mandatory minimum time of probation (usually 36 months) is increased to 48 months.  There will be a criminal court protective order against the person conviction to protect the victim against any further violence or threats.  The person convicted will have to take, and complete, a 52-week child abuser treatment counseling program and, if any substances or alcohol was used in connection with the incident, the court can order the person convicted to abstain from drugs and/or alcohol and be subject to random testing by the probation department.  These additional penalties are all within the court’s discretion in such that an effective Los Angeles criminal defense attorney can argue and present facts which can prevent these obligations in furtherance of justice.

You might also be thinking, “wait, I never meant for this to happen, why am I being charged with this”?  Well, maybe you shouldn’t be.  Defenses to this conduct include non-intentional “endangerment” conduct, the person was legally disciplining their child, the whole act was a false accusation, someone other than the person being charged was responsible for the child at the time.

This brings us back to our zoogoer.  I would say that most of the general public, and for sure the district attorney’s office who is responsible for enforcing laws and public safety, would argue that taking your child into the elephant enclosure constitutes a situation that could willfully expose that child to unjustifiable pain, suffering or danger, whether or not the child actually suffers.

If you find yourself on the wrong end of an arrest or call from a police officer or detective, it is important to be aware of what you say to them and, hopefully, you don’t say anything until you’ve spoken to your attorney.  Contact Los Angeles criminal defense attorney Ross Erlich today to discuss your case, for free, and see what options you have so you don’t end up in the cage.