A fairly recent California Appellate Court decision should be hailed as a landmark case for pot smokers. In People v. Hua, (158 Cal. App. 4th 1027) a court ruled that law enforcement must have a warrant to enter a private residence when the only evidence of a crime being committed is for simple possession of marijuana.
In Hua, two police officers walked up to an apartment in response to a complaint of a noise violation and saw, through a window, four college kids sitting around a table passing around a couple of blunts. The police officers knocked on the door and asked to come in. The kids said no but the officers entered anyway. In the apartment, the police found 46 marijuana plants. The young man who lived at the apartment, Hua, was arrested and charged with cultivation of marijuana.
A little legal background info at this point: As you may know, the Fourth Amendment of the U.S. Constitution protects citizens from unreasonable searches and seizures, meaning police must have a warrant to enter any private area. Any evidence obtained from an illegal police search is suppressed, and may not be used against a defendant in court. However, there are several exceptions to the warrant requirement. For example, if the police reasonably believe that evidence will be destroyed if they don’t enter immediately, they may legally do so.
And that was the excuse the officer in Hua used; if he had not entered immediately (and without a warrant), the evidence of pot would have been destroyed. However, possession of less than 28.5 grams of marijuana is at most a misdemeanor (and often charged as merely an infraction), and a non-jailable offense. The Appellate Court cited the 1984 Supreme Court Case Wisconsin v. Welsh (466 U.S. 740), which stated that “entry into a home to preserve evidence from imminent destruction is limited to evidence of crimes that are not minor.” The court in Hua reasoned that possession of marijuana was exactly the sort of minor crime described in Welsh.
The officers in Hua, when looking through the window, saw evidence of only the crime of possession of less than 28.5 grams of weed (they did not notice the dozens of marijuana plants when they first peeked in). The court determined that the minor seriousness of the crime was outweighed by the protection given to citizens by the Fourth Amendment “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The entry by the officers was illegal, and thus all evidence seized from the illegal search was thrown out. Despite being found with 46 pot plants, Hua got off scot-free.
What does this mean? Well, it basically means you can smoke weed on your balcony while smiling down at a cop and he can’t do a thing, short of leaving to find a judge to sign a warrant. This case is truly a landmark victory for pot smokers everywhere.
However, that doesn’t mean that smoking pot in plain view of an officer is a good idea; always use common sense! Just because a warrantless entry by law enforcement is illegal doesn’t mean it won’t be done. And while you may have law as determined by the Hua court on your side, it’s definitely not worth going through the legal process to be proclaimed innocent. So if you choose to smoke marijuana, be sure to do so carefully. And if you are ever arrested for any sort of drug related crime, you should contact the Law Offices of Scott R. Ball today.
9/4/09
"Bail" Explained
After a person is arrested and taken into custody, at the first appearance before a judge they have a right to a “bail hearing” where the amount of bail is set. When a defendant makes “bail” this means they are giving a specified amount of money to the court in exchange for being let out of jail with a promise that they will return to court at their next scheduled appearance. If the defendant returns to court as scheduled, the bail is exonerated and the full amount of money is returned. However, if the defendant does not return as promise, the bail is forfeited and the money is kept by the court.
Most people don’t have large amounts of cash lying around, so the most common way for a person to make bail is through a bail bondsman. Generally, a bondsman will charge 10% and require some sort of collateral to post bail on behalf of the defendant. For example, if the bail is $10,000 (the common amount for a second DUI charge), the defendant must give the bondsman $1,000 plus some form of collateral, such as the pink slip to their vehicle. If the defendant does not skip out on bail and returns to court as scheduled, the defendant will receive the collateral back and the bondsman will receive the $10,000 back from the court and keep the 10% fee.
A defendant has a right to a “reasonable” bail. Usually, the judge initially sets bail according to a pre-determined county-wide bail schedule. For example, in Orange County, the charge of rape carries a $100,000 bail, grand theft is $20,000 or the amount stolen, and a first time DUI is $2,500.
However, a judge may deviate from the bail schedule based on many factors relating to the facts surrounding the crime charged and the particular defendant. For example, a defendant charged with a first time DUI who has no criminal history and extensive ties to the community such as a family, job, and property ownership, will likely be able to have his bailed reduced to zero. When bail is reduced to zero, the judge is letting the person off “on his own recognizance” or “O.R.”
A judge may also deviate from the bail schedule by increasing bail. This is common where a judge finds that a defendant has a long criminal history, is a flight risk, or may be likely to harm another person while out of custody. When a person is facing life in prison or the death penalty, bail will always be denied.
When a person is arrested and taken into custody, the most pressing concern for most is getting out jail. However, it is often a wise decision to make your first call to an attorney and not the bail bondsman. This is because a skilled attorney will be able to negotiate on your behalf the possibility of lowering your bail, and may be able to get you release O.R. In addition, your attorney, having experience in these matters, will be able to find a reputable bail bondsman on your behalf.
For more information or a free and confidential evaluation of your case, contact the Law Offices of Scott R. Ball today.
Most people don’t have large amounts of cash lying around, so the most common way for a person to make bail is through a bail bondsman. Generally, a bondsman will charge 10% and require some sort of collateral to post bail on behalf of the defendant. For example, if the bail is $10,000 (the common amount for a second DUI charge), the defendant must give the bondsman $1,000 plus some form of collateral, such as the pink slip to their vehicle. If the defendant does not skip out on bail and returns to court as scheduled, the defendant will receive the collateral back and the bondsman will receive the $10,000 back from the court and keep the 10% fee.
A defendant has a right to a “reasonable” bail. Usually, the judge initially sets bail according to a pre-determined county-wide bail schedule. For example, in Orange County, the charge of rape carries a $100,000 bail, grand theft is $20,000 or the amount stolen, and a first time DUI is $2,500.
However, a judge may deviate from the bail schedule based on many factors relating to the facts surrounding the crime charged and the particular defendant. For example, a defendant charged with a first time DUI who has no criminal history and extensive ties to the community such as a family, job, and property ownership, will likely be able to have his bailed reduced to zero. When bail is reduced to zero, the judge is letting the person off “on his own recognizance” or “O.R.”
A judge may also deviate from the bail schedule by increasing bail. This is common where a judge finds that a defendant has a long criminal history, is a flight risk, or may be likely to harm another person while out of custody. When a person is facing life in prison or the death penalty, bail will always be denied.
When a person is arrested and taken into custody, the most pressing concern for most is getting out jail. However, it is often a wise decision to make your first call to an attorney and not the bail bondsman. This is because a skilled attorney will be able to negotiate on your behalf the possibility of lowering your bail, and may be able to get you release O.R. In addition, your attorney, having experience in these matters, will be able to find a reputable bail bondsman on your behalf.
For more information or a free and confidential evaluation of your case, contact the Law Offices of Scott R. Ball today.
9/1/09
Sentencing Alternatives to Jail Time
If you are facing the possibility of jail time, there are actually many sentencing alternatives that may be available to avoid any actual time behind bars. While the availability of such programs vary greatly from county to county, the following options are often possible:
1. Home Electronic Confinement – This type of sentencing requires a person to remain at home but allows you to leave to perform your normal activities such as attending work or school, court or DMV appointments, caring for dependants, or shopping for necessities. Electronic confinement can be arranged by either the probation department or a private company. There is generally a nominal cost associated with using this program.
2. CalTrans Work – This is a sentence often given in lieu of jail time. CalTrans are the crews wearing orange vests you see as you drive down the freeways in California. A court may allow a defendant to work on a CalTrans crew instead of going to jail. This can be hard work, but is often a welcome alternative to jail time.
3. Community Service Work – Similar to the CalTrans program, each court has a separate office responsible for assigning community service in lieu of jail time. An individual must be approved by the prosecutor and judge to perform community service work. Generally, 8 hours of community service for an approved community organization converts to 1 hour of jail time. Community service may also be available to pay off fines ordered by the court.
4. Work Furlough – This privileges means that during the day you are allowed to go out and work at your regular job and after work, you are required to spend the remainder of the evening back in jail. While you do remain incarcerated, this option will allow you to keep your job.
5. Private Jail - In some instances, where the judge requires that you serve actual jail time, many people choose to serve their sentence in a private jail facility. This alternative can be somewhat costly, however, in a private jail, the facilities are much nicer and work furloughs are also more likely to be available.
If you are facing a jail sentence, it is important to have an attorney on your side to explore the possibilities of alternatives to time spent in the clink. Contact the Law Offices of Scott R. Ball today for a free and confidential evaluation of your case.
1. Home Electronic Confinement – This type of sentencing requires a person to remain at home but allows you to leave to perform your normal activities such as attending work or school, court or DMV appointments, caring for dependants, or shopping for necessities. Electronic confinement can be arranged by either the probation department or a private company. There is generally a nominal cost associated with using this program.
2. CalTrans Work – This is a sentence often given in lieu of jail time. CalTrans are the crews wearing orange vests you see as you drive down the freeways in California. A court may allow a defendant to work on a CalTrans crew instead of going to jail. This can be hard work, but is often a welcome alternative to jail time.
3. Community Service Work – Similar to the CalTrans program, each court has a separate office responsible for assigning community service in lieu of jail time. An individual must be approved by the prosecutor and judge to perform community service work. Generally, 8 hours of community service for an approved community organization converts to 1 hour of jail time. Community service may also be available to pay off fines ordered by the court.
4. Work Furlough – This privileges means that during the day you are allowed to go out and work at your regular job and after work, you are required to spend the remainder of the evening back in jail. While you do remain incarcerated, this option will allow you to keep your job.
5. Private Jail - In some instances, where the judge requires that you serve actual jail time, many people choose to serve their sentence in a private jail facility. This alternative can be somewhat costly, however, in a private jail, the facilities are much nicer and work furloughs are also more likely to be available.
If you are facing a jail sentence, it is important to have an attorney on your side to explore the possibilities of alternatives to time spent in the clink. Contact the Law Offices of Scott R. Ball today for a free and confidential evaluation of your case.
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