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If you are being charged with a crime and someone has recorded a phone call or a conversation with you the law in that type of case can be very complicated.  As an Attorney with more than 13 years of experience, and someone that has dealt with this type of police action on many occassions, the short answer is yes the person can record if they are acting in conjunction with the police when they recorded.

 

AS A GENERAL RULE PEOPLE ARE NOT ALLOWED TO TAPE PHONE CALLS OR CONVERSATIONS WITH PEOPLE WITHOUT PERSONS PERMISSION. 

 

However, there are many exceptions to this general rule that I will go over below.

 

PRETEXT PHONE CALL

A pretext phone call is a tactic often used by Law Enforcement.  The person will call you with a phone or recording equipment provided by Law Enforcement.  For example in sexual assault cases.  Police will often give equipment to the alleged victim when they do not have much evidence or want to bolster there case.  

The alleged victim may call the person that allegedly sexually assualted them under the pretext of wanting to know why the incident happened.  Any and all statements made by the alleged defendant can and will be used against him.

The reason for this is that if the person is acting at the behest or direction of law enforcement than the general rule does not apply.

WHAT IF THE ALLEGED VICTIM WORE A WIRE DURING THE CONVERSATION?

The result will be the same.  In fact we had a case where a person wore a wire while meeting with our client.  Our client made admissions to the effect that he was sorry and other specifics implicating him in the offense.  We filed a motion to have the conversations not allowed as a violation of our clients Fourth Amendment rights.  The Motion was denied. 

Usually these type of conversations must be done at the investigation stage, of the process.  In other words before initialization of criminal proceedings.  If these are done later they could be suppressed during a motion to suppress hearing. 

Usually the police will do this before they make arrest, or file charges.  Once charges are filed and a person has a right to an Attorney the communications are more likely to be kept out of court. 

However, Jail call and letters and other communications initiated by the defendant are not part of this process.  In other words your words made during a Jail phone call as discussed below can and will be used against you.  

 

AS A GENERAL RULE WHEN THE PERSON IS ACTING WITH LAW ENFORCEMENT THEY CAN RECORD CONVERSATION THAT THEY WOULD GENERALLY NOT BE ABLE TO RECORD

 

WHAT ABOUT JAIL CALLS?

Courts have held almost unanimously that there is no expectation of privacy in communications from a Corrections facility.  In fact, if you use the phones usually there will be a warning that all calls are recorded.  I don't even like talking specifically about cases with clients from Jail.  The reason is I believe that all calls from Jail are recorded.  Even though calls to an Attorney are recorded.  This is not a certainty but why take a chance on confidential communication being overheard by the wrong person?

WHAT HAPPENS IF I MADE ADMISSIONS ON TAPE OR RECORDING?

Again, as a general rule those communication will be admitted to prove your guilt.  

DOES THAT MEAN I AM DOOMED TO BE CONVICTED?

NO.  Sometimes people say things just to get others off there back.  It could be a case where someoen after being called several times actually says OK I did it.   Sometimes ther Jury will not believe such statements.  As they may believe they were only said to stop the call from alleged victims. There should be something to back that statement up such as facts of excactly how you did the crime. 

 

If you have this issue in your case go ahead and call to get advice.  

 

Many times people are wrongfully arrested for everything up to and including Murder when they were simply defending themselves.  If you are charged with Assualt, Battery, or Homicide, it is important that you obtain experienced Criminal Defense Trial Counsel.  With many Felony Trials under my belt and excellent outcomes I have the experience to heldp you.  If you hire defense counsel for a defense such as Self Defense, you must have EXPERIENCED  defense counsel not just an Attorney that has been an Attorney for many years, one who actually does a lot of trial work is needed.

 

As for Self Defense the law of Self Defense is complex, lets start with Self Defense for a Homicide.

 

There are actually two kinds of Self Defense for Homicide, which is actually two defenses both of which I went into on my Homicide article, but want to go further into here. 

The two defenses are Self Defense and Imperfect Self Defense

 

SELF DEFENSE

Self Defense is someone 1. Actually believes in the need to use deadly force and 2. That belief was Resonable.

Lets break those down

An Example of Actual belief in the need to use deadly force would be if someone walks outside and you know that the person does not like you and is known  to have weapons.

You can testify that you actually believed in the need to use deadly force. 

WAS THAT BELIEF REASONABLE

If the before mentioned person came outside and you knew he did not like you and he suddenly turns and pulls a gun, you have your own gun and shoot him dead. 

Because ther other person pulled a gun first a reasonable person would be in fear for there life and this would supply a complete defense to the crime of Murder.

 

Now lets say under the same circumstances the person above comes outside and you know he hates you and he turns to you and you believe he is coming to kill you and you honestly believe that, but your assumption is wrong and the person is not armed and you shoot and kill him. 

you had an Unreasonable belief in the need to use deadly force and therefore, you would not be guilty of First or Second Degree Murder, but instead, Manslaughter. 

Let's look at this a little closer.

For both Self Defense and Imperfect Self Defense the first Element is the same

An Actual Belief in the need to use deadly force

If that belief is reasonable then the defense is complete and you could be found not guilty.

If you belief was unreasonable then the crime would be Mansaughter.

This unreasonable belief can reduce a First Degree Murder to Second Degree and Second Degree Murder to Manslaugher.

That is becuase you are not acting out of deliberation and premiditation, you are acting out of the unreasonable belief in the need to use deadly force.

And you are not acting out of Malice, which is needed for second degree murder because you are acting out of the unreasonable belief in the need to use deadly force, not with intent to kil. 

Now this unreasonable self defense is not available for example a Battery charge.

For a charge of Battery you must use reasonable force to protect yourself or someone else from force.

And you must only use the amount of force necessary to protect yourself. 

Many cases will involve self defense during a mutual combat situation, or when the original aggressor becomes the victim.  this is beause the person that was originally attacked used unreasonable force in protecting himself.  The person protecting himself cannot after having defended himself proceed to beat the person that attacked him unconscious for example.

 

If you have been charged with a Battery or a Homicide, please give us a call so we can held you out.

 

 

 

 

The answer to that question is complex, depending on whether there is a warrant for your arrest, and if there is exigent circumstances.  If you have been arrested you need experienced criminal defense help.  As an Adunct Criminology Instructor, former Probation Officer, and an Attorney with more than 13 years of criminal defense experience I can help you with your criminal defense questions.

In most circumstances the police need a warrant to enter  your home even if they have a warrant for  your arrest.  However, there is several exceptions to this.

 

HOT PURSUIT

If the police are in hot pursuet of a person suspected of a Felon the police may follow the person into the home to make an arrest.  They may even break a door or a window in order to gain access to the home, however, the police must be acting reasonably.

Also, threre is what is commonly referred to as the plain veiw doctrine which states that if the police have a legal right to be in the place where they are standing and if there  is something within plain view meaning they don't have to conduct an investigation to ascertain if it is illegal, they may seize that item. 

 

EXIGENT CIRCUMSTANCES 

 

Exigent circumstances means an emergency.  The destrution of evidence.  Or the person may be arming themselves with a weapon, or someoene may be in danger the police may enter the home to deal with the emergency. 

 

PENAL CODE SECTION 844

This is a section of law  I often see Attorneys, deal with completely wrong, and is sometimes reaises complicated issues of law.

California Penal Code section 844 states "to make an arrest, a private person, if the offense is a Felony, and in all cases a Peace Officer, may break open the door or window of the house in which the person to be arrested is, or in which they have reasonable grounds for believing the person to be, after having demanded admittance and explained the purpose for wich admittance is desired.  (CA Penal Code 844)

The meaning of this statute is that the Police to make an arrest for a Felony may break a door or a window to arrest a person if they have reasonable grounds to believe the person is in the home However, they must first knock and announce there presence and demand the person come to the door wait for him and then enter to arrest the person.

 

Knock and announce

This knocking and announcing is what is currently referred to as knock and announce. 

REASONABLE GROUNDS TO BELIEVE THAT THE PERSON IS IN THE HOME

The courts in decisions like people v jacobs have held that the police must have reasonable grounds to believe the person to be arrested is currently in the home.  Not that he lives there and might be home. 

The court willl look at factors such as did the officers see the person enter the home

did a neighbor see the person go inside

did the person see police and run inside

was the person to be arrested have his car outside

in Jacobs the police simply believed that the person to be arrested was inside because he was not at work the police entered the home and seized evidence that was illegal.  The court held that this was an illegal entry because the police had no ability to know if the person to be arrested was currently in the home. 

If the police illegally enter a home all evidence observed inside the home is illegally obtained.  Under what is called the fruit of the poisonous tree doctrine and the evidence would be suppressed.

 

If you or a loved one has been arrested inside your home without a warrant call us so we can help you.   

Vehicle Code 23109(c) VC "exhibition of speed"--also known as "speed ex"--is a fairly common vehicular crime in California. The legal definition of exhibition of speed is driving or accelerating at an unsafe speed, in order to show off for someone else.

Video surveillance cameras play an important role in criminal investigations. These cameras are in many locations, public and private, and proliferating in new places. For example,

The short answer to that question is yes.  Although as I will explain more in detail below, the questions regarding interrogation of minors is much more complex.  I will explain how those laws work and how these laws even affected the outcome of the netflix series making of a murderer. 

I have practiced criminal defense including Juvenile defense for more than 13 years.  I have won more than 10 not true petitions in Fresno County alone.  I have represented kids in crimes ranging from petty theft to double first degree murder.  I recently worked a deal having all adult charges against a minor dismissed by the District Attorneys office and having the case retured to Juvenile Court based on our investigation.   This saved the minor many decades behind bars. 

 

lets look at our first question

WHEN DOES A MINOR HAVE TO BE GIVEN MIRANDA WARMNINGS

unlike adults that only need warnings when there is police dominated custodial interrogation

a minor must always be given miranda warnings whenever he is questioned

 

DOES A PARENT HAVE TO BE PRESENT

NO. as  I will explain below that is only one of the factors the court looks at when determining if the minor gave a free voluntary uncoerced statement. There has been some bad advice given from some supposed experts on the next question.

 

IF THE MINOR ASKS FOR A PARENT DOES ALL QUESTIONING HAVE TO STOP

NO. despite what some Attorneys say this is simply not correct.  Again it is a factor that will be taken into consideration.  Some Agencies will not continue questioning however there is case law that says this is not a hard and fast rule.   The basic rule is did the police unfairly question the minor without a parent that is very much different than saying a parent must be present.   

 

A MINOR MUST MAKE A FREE AND VOLUNTARY WAIVER OF HIS RIGHTS

The burden is on the prosecution to establish by a preponderance of the evidence that the Miranda Waiver and subsequent statatements were voluntary.

This means the prosecution cannot use unfair tactics, cannot make promises of leniency or do anything else that would make the confession not voluntary. 

a confession is involuntary if an individuals will was overborne. 

In deciding if the minors will was overborne the court will look at all surrounding circumstances of the interrogation, both charecteristics of the accused, the details of the interrogation. 

the court will consider age

the minors experience with the criminal justice system. 

threats

promises of confinement

are all likely to have a more coercive affect on a minor than an adult.

RECENT MAKING OF A MURDERER CASE

In the making of a murderer case many people concentrated on things other than the minor and what happened during his interrogation.  This was wrong and the court found that minors will was overborne.

in citing the record the court found said the state court errred in finding that investigators never made promises during the minors interrogation.

instead the Federal Court that overturned the state court used the following factors.

the investigators repeadedly claimed to already know what happened on October 31, and assured the minor had nothing to worry about, These repeated false promises, when considered in conjunction with all relevant factors, most especially the minors age intellectual defecits, and the absence of supportive adults, rendered the minors confession involuntary.  Notice the court did not indicate the absence of parent or any one factors made the confession involuntary, rather, it was the combination of factors that indicated the minors wil was overborne. 

The cour then ordered the confession thrown out the District Attorney can now re-try or have the minor released from jail within a certain time period usually 90 days. 

This is the type of analysis that needs to go into every type of motion to suppress the minors statements.

unfortunately these suppression motions usually occur in the trial court.  We have in Juvenile cases did them earlier sometimes to show the District Attorney the problms in there case.  This has worked for us on several cases. 

If you have a minor charged with a crime and there has been a confession you must get experienced counsel immediately.  Call if you have questions.

 

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Gerald Schwab, Jr.

CRIMINAL DEFENSE ATTORNEY & DUI ATTORNEY SERVING ALL OF CALIFORNIA

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