By: Vince Imhoff, Esq. & Dan Rhoads
Stealing is a crime so old that it can be traced back at least as far as the Eighth Commandment. The law has managed to categorize the types of stealing into a confusing taxonomy of terms: burglary, embezzlement, extortion, larceny, robbery, theft, and so on.
Burglary and robbery are distinct from theft. (See Model Penal Code 221, 222). Extortion is a means of theft by threatening harm to the propertys rightful owner. See Model Penal Code 223.4. Embezzlement is a misappropriation of funds by a person to whom they have been entrusted. See Embezzlement.
The remaining theft offenses are roughly divided into theft by stealth and theft by deceit. False pretenses is theft by deceit whereas [l]arceny by trick is theft by stealth. R. Pearce, Theft by False Promises, 101 U. Pa. L. Rev. 967, 987 (1953).
A person who shoplifts by switching pricetags from less-expensive items onto more expensive ones commits theft by false pretenses if the seller relies on the phony prices to transfer the product to the putative buyer. See, e.g., People v. Lorenzo, 135 Cal. Rptr. 337 (1976).
A person commits theft by larceny when that person: (1) takes possession (2) of personal property (3) owned or possessed by another, (4) by means of trespass and (5) with the intent to steal the property, and (6) carries the property away. People v. Davis, 965 P.2d 1165, 1167 (Cal. 1998).
As the cases show, the elements of larceny can be applied in a wide array of creative ways.
Girard, a former DEA agent, conspired with James Bond to smuggle marijuana into the U.S. Girard offered, for $500 a name, to find out whether or not any of the other people considered for the operation were government informants. Girards accomplice, Lambert, was a DEA agent who looked through the departments databases to get the information. Unfortunately for Mr. Girard, Bond himself became an informant and disclosed his conversations with Girard to the DEA. U.S. v. Girard, 601 F.2d 69 (2nd Cir. 1969).
Girards conviction for converting the governments property was upheld. He had taken possession of the information merely by learning it. Its owner, the DEA, was never deprived of possession of its information; but its property interest was violated once the private data were disclosed.
After Jayne broke up with Karl, he repeatedly called to harass her. Jayne changed her number to an unlisted one and intended that Karl would not learn it. In search of the phone number, Karl climbed through a window into her trailer. While inside, he copied the phone number, Jaynes social security number, and her insurance policy numbers.
Karls conviction for burglary, which entails unlawfully entering anothers property with the intent to commit a crime, was upheld. The crime that Karl intended to commit was the larceny (or theft) of the unlisted phone number. The court pointed out: Phone numbers have been recognized in different contexts as property, and a persons interest in keeping their unlisted number private has also been recognized. Dreiman v. State, 825 P.2d 758, 762 (Wyo. 1992).
The same reasoning with respect to social security, insurance policy, and credit card numbers underlies the concept of identity theft.
William Rose walked into a bar and ordered a 10 glass of soda water. William laid a $50 greenback onto the bar and expected to receive $49.90 in change. Instead, the bartender put down a few coppers upon the counter, and when asked for the change, he took [William] by the neck and shoved him out doors, and kept the money. Hildebrand v. New York, 56 N.Y. 394, 395 (1874).
The bartenders conviction for larceny was upheld even though he claimed that William had surrendered possession of the greenback. The court noted that the delivery of the bill was conditioned upon the return of the change. Thus, until the transaction was complete, William was legally in possession of the money.
When Kenneth Davis entered the Mervyns store, a security agent placed him under camera surveillance. Security watched as Kenneth took a shirt from its hanger and placed it inside a Mervyns bag, which he had brought with him. He then walked to a cashier at the other end of the store and asked to return the item, which he claimed that he had bought as a gift.
Appealing his conviction for theft by larceny, Davis argued that he had not trespassed because a self-service store like Mervyns impliedly consents to a customers picking up and handling an item displayed for sale. People v. Davis, 965 P.2d 1165, 1168 (Cal. 1998). Rejecting the argument, the court wrote, Because Mervyns cannot be deemed to have consented to defendants taking possession of the shirt with the intent to steal it, defendants conduct . . . constituted a trespassory taking within the meaning of the law of larceny. Id., 965 P.2d at 1176.
An intent to return anothers property can be a defense to theft charges if the property retains its value and if the return is unconditional. Conditional returns constituting theft fall generally into 3 categories: (1) when the defendant intends to sell the property back to its owner, (2) when the defendant intends to claim a reward for finding the property, and (3) when . . . the defendant intends to return the property to its owner for a refund. People v. Davis, 965 P.2d 1165, 1169 (1998).
Consider a hypothetical. A Pomeranian wanders into Walters back yard. Walter knows that the dog belongs to his neighbor Wendy, who loves the dog but is scatterbrained at times. Anticipating a frantic search, Walter secludes the Pomeranian in his house until a reward is offered. These actions constitute larceny because Walter is depriving the owner of a portion of the value of the property. Commonwealth v. Mason, 105 Mass. 163, 168 (1870).
The asportation element, or carrying away someone elses property, is the least important aspect of larceny. Some states have done away with it altogether. Courts in other states merely interpret the requirement broadly so that it can easily be satisfied.
In People v. Alamo, 34 N.Y.2d 453 (1974), the court held that the asportation requirement was met when the defendant got into a strangers car, turned on the lights, and started the engine. The court reasoned that the purpose of the carrying-away element is to establish the actions needed to gain possession and control. Id. Similar reasoning has made the last element of larceny the easiest to prove.
Theft is one of several species of stealing. Larceny is theft by stealth, as opposed to false pretenses. Although the offense of larceny has very specific elements, courts have found creative ways to apply those elements in order to criminalize a wide array of conduct.
The prosecutions creativity must be matched by that of the defense attorney. An effective defense can restrict the expansion of the scope of larceny and can ensure that a defendant is charged under the correct statute to avoid an unduly harsh sentence. Because theft can result from desperation or even accident, it is important that the defense attorney understand the defendants situation so that it can be related to the jury.
By Vince Imhoff, Esq. & Dan Rhoads
Anyone who has been pulled over while driving can relate to the sinking feeling that strikes once the multicolor police lights ricochet off the rear-view mirrors and into the drivers sight. Once the cars are parked on the side of the road, the officer confidently strides toward the car and requests paperwork. Then, nonchalantly, he springs the question: Can I search your car?
In most cases, the request seems harmless. But in some instances, an individual might be embarrassed to let an officer search his car. The potential shame can come from any number of materials, including intimate items, medical treatments, and LA Clippers memorabilia.
Many citizens are unsure about whether or not they must consent to a search of their vehicles.
The Fourth Amendment of the Constitution guarantees the right of the people to be secure in their persons . . . and effects against unreasonable searches and seizures. In order for a search to be reasonable in the absence of consent, the officer must have probable cause to believe that a crime has been, is being, or will be committed.
Drivers should be familiar with two important probable-cause rules. The first is the plain-sight rule, which says that anything in the cars cabin that the officer can plainly see from outside is fair game. The second is the furtive-gesture rule, which means that an officers observance of actions inside the car that can be reasonably perceived as attempts to destroy or remove evidence gives the officer permission to search.
Another common source of probable cause is odor. If an officer smells alcohol or marijuana smoke, he will probably question the driver about it. This line of questioning often results in field sobriety tests.
Federal and state Supreme Court opinions from 2005 explore the boundaries of probable cause and police searches.
In Illinois v. Caballes, 125 S. Ct. 834 (2005), a state trooper stopped the defendant for speeding. While the first officer wrote a warning ticket to the driver, who was sitting in the police car, another agent walked his canine around the defendants car. The canine alerted at the trunk of the car, and the officers searched it. Finding marijuana, the troopers arrested the defendant. Id.
The seized evidence was allowed at trial; and the defendant was convicted, sentenced, and fined. The Illinois Supreme Court reversed; but in a 6-2 opinion, the United States Supreme Court reinstated the conviction. Id.
The holding in Caballes was: A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment. Caballes, __ U.S. at __. What this holding means is that an officer does not need probable cause to use a canine to detect contraband inside a vehicle as long as the detection occurs while the driver is being detained for a lawful purpose. However, the Court warned, A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission. Id.
An Arkansas Supreme Court opinion in the wake of Caballes highlights the limitations that the Supreme Court upheld with respect to illegal searches.
In Lilley v. Arkansas, 2005 WL 1244872 (Ark. 2005), a police officer stopped the defendant after observing his car as it swerved off and back onto the highway three times. Although the officer noticed a strong scent of air freshener in the car, he decided only to write the driver a warning because it was raining. Id. While Lilley sat in the patrol car, the officer filled out the paperwork and ran the usual checks on the vehicle and its driver. The checks raised no warnings about Lilley, but his answers to the officers questions did.
The officer became suspicious when he asked about Lilleys travels. Other than the drivers growing nervousness, the most quizzical fact was that the car was a one-way rental from California to Virginia and was rented in another persons name. Even though the driver refused consent to a search, the police officer decided to walk his canine around the car. The canine alerted to the trunk, in which the officer found three duffel bags carrying marijuana.
Lilley was convicted at trial, but the Arkansas Supreme Court eventually reversed the conviction.
The Arkansas court held that the combination of the one-way rental in a third-partys name, the drivers nervousness, and the scent of a masking odor did not give Officer Bowman reasonable suspicion to detain Lilley further for a canine sniff of his car after the traffic stop was concluded. Id. The court reasoned that it is impossible for a combination of wholly innocent factors to combine into a suspicious conglomeration unless there are concrete reasons for such an interpretation. Id. (quoting U.S. v. Beck, 140 F.3d 1129, 1137 (8th Cir. 1998)).
The Lilley court was quick to distinguish its case from Caballes. It noted that sniffing by a drug dog is permissible where the sniff was conducted during the lawful traffic stop which was not extended beyond the time necessary to complete the criminal history check and issue the warning ticket. Lilley, 2005 WL 1244872, n.2. Because the officers stop was rendered complete when he handed Lilley back his paperwork and the dog run was conducted after the legitimate purpose of the traffic stop had been completed, Id., the seized evidence was the product of an illegal search.
The best way to deal with police is to know your rights while remaining polite and respectful. Refusing consent to a search of your vehicle is your right. The police must have probable cause to believe that you are involved in a crime before they search without your consent. The police may detain you only for the period of time that it takes them to complete whatever paperwork or background checks they are lawfully doing. Once the administrative work is finished, you are free to leave unless the police officer places you under arrest for committing a specific crime.
Remember to be courteous and cooperative. Misbehavior will only make the police more aggressive; and if you act egregiously enough, your actions can constitute probable cause. The other thing you should almost never do is to admit to breaking the law.
An experienced defense attorney can investigate a traffic stop to make sure that every aspect of it was permissible. A lawyer can advise you of remedies in the unfortunate event that the police have violated your rights. If the police have performed an illegal search, an attorney must work to ensure that the evidence they collected be excluded if the case goes to trial.
Vince Imhoff is the Managing Partner of Imhoff & Associates, P.C., Criminal Defense Attorneys. Originally from Chicago, he is admitted to practice law in Illinois, California and Pennsylvania. He obtained his Bachelors degree in Political Science from Lewis University, and earned his law degree from Illinois Institute of Technology/Chicago-Kent College of Law in 1989. From 2000 through 2002, Mr. Vince Imhoff was the Assistant Coach for the trial team at Loyola University School of Law.
With articles published in the LA Daily Journal, Mr. Vince Imhoff is currently a member of the State Bar of California, the California Attorneys for Criminal Justice (CACJ), State Bar of Illinois, and the National Association of Criminal Defense Lawyers (NACDL).
By Ed Martinovic, Esq., and Dan Rhoads
Those words have been popularized in television and movies, and many people recognize them as the opening of the Miranda rights. But what those rights are, and what results when police officers fail to read them to criminal suspects, are topics that are frequently misunderstood.
Before Miranda, the right against self-incrimination was never self-executing and always had to be invoked by the suspect. This invocation is what is commonly referred to as pleading the Fifth. In Miranda, the Supreme Court shifted this burden to the police, and required them to specifically advise suspects of their right to remain silent and their right to have an attorney present during questioning. The Court ruled that all statements or confessions made in the absence of the warnings are inherently involuntary and coerced, and hence inadmissible in court.
The most common misconception regarding the warnings is that police must read them to everyone that they arrest, and that an arrest without them is somehow invalid. This is pure myth: as long as police have probable cause to believe a suspect has committed a crime, the arrest is valid.
The decision in Miranda v. Arizona essentially is that The prosecution may not use statements . . . stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. Miranda, 384 U.S. 436, 444 (1966). This means that any time a person is in custody and subject to interrogation, the police must apprise the person of his rights, or the statements are inadmissible in court.
Custody is defined as any deprivation of liberty where the person does not feel the freedom to simply walk away. It should be noted that courts generally rule that people are not in custody during routine traffic stops and other routine police encounters.
Interrogation means questioning initiated by law enforcement officers after a person has been taken into custody or, any other police action that produces an incriminating response.
Once these two elements exist, the police are required to read a suspect the warnings. The reason for this requirement is that the danger of coercion resulting from the interaction of custody and official interrogation, whereby the suspect may feel compelled to speak by the fear of reprisal for remaining silent or in the hope of more lenient treatment should he confess. Illinois v. Perkins, 496 U.S. 292 (1990).
Some important exceptions to Miranda have been highlighted in Supreme Court opinions.
First, once the Miranda warnings are given, any statements that the suspect makes after that point are admissible, even if they are the same statements that were made prior to the warnings. This is true because a confession made by a suspect with knowledge of his Miranda rights is not considered the product of coercive police conduct, due to the fact that the suspect is now fully aware of his rights.
Also, [a]n undercover law enforcement officer posing as a fellow inmate need not give Miranda warnings to an incarcerated suspect before asking questions that may elicit an incriminating response. Perkins, 496 U.S. 292. This exception exists because when a prisoner does not know that he is talking to an undercover agent, the essential ingredients of a police dominated atmosphere and compulsion are lacking. Id.
It is absolutely vital that suspects understand that the rights covered by the Miranda warnings can be waived, or given up, provided the waiver is made voluntarily, knowingly, and intelligently. Miranda, 384 U.S. at 444. People can waive their rights in any number of ways, verbally, in writing, or impliedly by making statements after the warnings are issued. Increasingly, police write a persons confessions on forms containing pre-printed Miranda waivers at the bottom, and people often fail to notice the language on signing the confessions. Thus, it is essential that when taken into custody, people not talk to police or sign anything without an attorney present.
The upshot of Miranda is that a jury cannot know about any statements given prior to the defendants advisement of his Miranda rights if the suspect gives the statements in a police-dominated atmosphere. Nor can it hear any part of an interrogation that occurred after the defendant invoked the right to an attorney. See, e.g., Minnick v. Mississippi, 498 U.S. 146, 156 (1990). The fact that all police questioning must cease upon a persons requesting an attorney is a powerful tool in resisting police interrogation. However, given the inherently coercive nature of police encounters, people are sometimes hesitant to invoke their rights for a number of reasons.
When the Supreme Court revisited Miranda, it held that an accused . . ., having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police. Edwards v. Arizona, 451 U.S. 477, 484 (1981).
However, a suspect should never waive the right to counsel and should waive the right against self-incrimination only after conferring with an attorney. (See True Lies or False Truths, available at http://www.criminalattorney.com/news/false-confessions/.) When a citizen is facing prosecution by the resources of the government, his most powerful aegis is the Constitution. Once a person waives his constitutional rights, the chances of a favorable outcome quickly diminish.
By Vince Imhoff, Esq. & Dan Rhoads
When the Los Angeles Police Department recently asked the Federal Bureau of Investigation to examine crime-scene evidence in a two-decades-old murder case, the request shed light on a phenomenon that many find hard to believe in: false confessions.
On a March day in 1983, Bruce Lisker arrived at his parents house in Sherman Oaks to find his mother, Dorka, barely clinging to life. Lisker called the paramedics and later told his story to detective Andrew Monsue, who thought that the seventeen-year-old was lying. The teenager was arrested, convicted, and sentenced; and he remains in prison on a life sentence.
The conviction rested largely on the suspects confessions. A jailhouse informant testified that Lisker had confessed to him through a hole in the wall between their cells while the two were being detained at the Los Angeles County Jail. Later, Lisker confessed to the murder with the belief that his admission was required for a plea bargain. When he became eligible for parole, Lisker, believing it was what the parole board wanted to hear, admitted to the killing for the last time. But for over ten years, Lisker has consistently maintained his innocence. He avers that the confessions were desperate attempts to minimize his time behind bars for a crime he didnt commit (FBI Will Examine Lisker Case).
Due to recent scrutiny by the Los Angeles Times, evidence in Liskers favor has received renewed attention. Most prominent is a bloody footprint from the crime scene that cannot be attributed to the accused. Also, it has been revealed that jailhouse informants would testify about [other inmates] confessions in exchange for reductions in their own charges or early release from jail as part of a corrupt alliance with Los Angeles prosecutors (New Light on a Distant Verdict).
Evidence against another suspect, now dead from a drug-induced suicide, is so strong that his own mother believes that he was the killer. (The trial court judge had granted the prosecutions motion to exclude all evidence regarding the other suspect, partly due to Liskers ineffective counsel.) Even the man who prosecuted Lisker says, I now have reasonable doubt (Id.).
Confessions tend to be the most damning kind of evidence because it is hard to believe that a person would admit to a crime that he did not commit. But the possibility of false confessions is proved when different parties confess to the same crime. For example, a group of juveniles confessed to the infamous attack on the Central Park jogger. Later, an unrelated individual claimed responsibility for the same crime (Cassel). It is inescapable that at least one of the parties confessed falsely.
In general, Police interrogation tactics are so sophisticated, they bring people to the brink of hopelessness that leaves them two options: to confess guilt and hope for some leniency, or maintain innocence in which case the system will crush them. Under those circumstances, innocent people will confess, says Steve Drizin of the Northwestern University Law School (McDonald). The young, old, mentally ill or disabled, and drug-addicted are the most vulnerable classes. According to Drizin, Their vulnerability often leads to false confessions because they’re eager to please and because of their navet about the criminal-justice system (Kresnak).
When an interrogator coaxes a confession, the suspect might not realize how damning the evidence will be. The danger is that only the transcript, without a tape, will be introduced at trial. So, although the suspect might not sound believable while confessing, the reading of the raw transcript will sound to the jury like a cold-blooded admission.
In some cases, the polices tactics are not merely sophisticated, but savage.
For twenty years, Jon Burge was a detective on the south side of Chicago, one of the toughest places in the U.S. A decorated veteran of the Vietnam War, Burges battlefield experiences prepared him to combat crime in the most notorious neighborhoods in the City of Broad Shoulders. But Burge and his confederates did not get results by playing fair.
In the words of the University of Chicagos Locke Bowman, It has been for many years an open secret that at the police headquarters where Burge worked, a large number of African-American citizens were detained and subjected to horrific forms of abuse (LaPeter). Over the years, prisoners there have alleged a cornucopia of tortuous tactics during police interrogations. Their mostly consistent accounts describe terrifying methods by interrogators: mock executions with shotguns; pistol-whippings; beatings with boots and fists; applications of alligator clips or cattle-prods to sensitive parts of the body; and burning on radiators. The detectives even have pet names for some of the techniques, such as the Tucker Telephone (electric shocks) and the Dry Submarino (suffocating a suspect with a paper bag).
In many cases, law enforcement officers can rationalize their behavior. Richard Brzeczek, who was a police chief in Chicago at the time but who is now a criminal defense lawyer, explains that, in the minds of some police, Its OK because [the interrogation subject is] going to do the time for all the crimes he didnt get caught for. Or in some cases, the attitude is: We know he did it, but we have to circumvent these goofy rules of due process, either by lying or fabricating evidence, whatever it takes to convict this person (Abramsky).
The beginning of the end of Burges tenure in Chicago came when detectives left too many incriminating injuries on a suspect that they had beaten in order to get a confession.
The shooting of three Chicago police officers in 1982 whipped the department into a frenzy, the brunt of which fell squarely onto one Andrew Wilson. Wilson was apprehended five days after the shooting. After thirteen hours in custody, he confessed to killing the officers. Arriving at the county jail, Wilson showed bruises and cuts on his head; a torn retina; burns on his chest and thighs; U-shaped marks on his body; and alligator-clip marks on his ears, nose, and genitals. His appearance was so severe that the jail refused to admit him unless a doctor examined him firstno officer wanted to be blamed for whatever had happened to him.
Wilson was convicted for the murders and sentenced to death. On appeal, the Illinois Supreme Court threw out the confession because of the beating the defendant had sustained while in police custody. On remand, Wilson was again found guilty but received a life sentence. He then brought a civil suit against Burge, the City of Chicago, and others. Eventually, he was paid $1.1 million.
The stories about Burge were only symptomatic of a systemic problem in the Illinois justice system. In recognition of these failures, Gov. George Ryan imposed a moratorium on the death penalty within his state, which has been upheld by the new governor.
The best advice about giving a confession is: do not do it. The Fifth Amendment guarantees that no person shall be compelled in any criminal case to be a witness against himself. So, no one ever has to admit to a crime. It is the states duty to prove beyond a reasonable doubt that a suspect has broken the law.
The Constitution also ensures that a defendant may have the Assistance of Counsel for his defense (Amendment VI). A criminal suspect should never talk to police without an attorney present. In some cases, when a defendant is guilty, it might be in his interest to confess. But this decision should be made only upon the advice of an attorney who is truly representing the suspects best interests.
Sasha Abramsky, Trial by Torture, 3 March 2000, at www.truthinjustice.org/chicops.htm.
Elaine Cassel, The False Confessions in the Central Park Jogger Case, 17 December 2002, at http://writ.corporate.findlaw.com/cassel/20021217.html.
Scott Glover & Matt Lait, FBI Will Examine Lisker Case, L.A. Times, 10 June 2005, at B8.
Scott Glover & Matt Lait, New Light on a Distant Verdict, L.A. Times, 22 May 2005.
Jack Kresnak, Anatomy of a False Confession, Detroit Free-Press, 27 February 2001.
Leonora LaPeter, Torture Allegations Dog Ex-police Officer, St. Petersburg Times, 29 August 2004.
Karen McDonald, Not Telling the Truth, Peoria Star Journal, 27 May 2000, A1.
