Oct. 24, 2021

Exigent v. Extenuating, Green Lasers, and Gang Association Warrants


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Transcript

Two years ago, Alaska Curtis was murdered in the woods. He was found shoeless in a pool of his own blood. Now, after taking time to mourn, Alaska's brother is looking for the killer. This isn't a wanted ad. Nope. This is a podcast. And it's called, who killed Alaska, who killed Alaska is a fictionalized true crime podcast.

About two people competing to solve Alaska's death. BU Curtis is trying to unravel the mystery while his rival detective Denver is hot on the trail. This spooky story will be perfect for your Halloween season. So tune in for thrills ridiculous hi-jinks supernatural twists and queer romance. This series is supported by Patreon donations, which means it's available for free. Yes, for free,

wherever you get your podcasts. Check out the podcast who killed Alaska. Now this week on the writer's detective bureau exigent versus extenuating green lasers and gang association warrants. I'm Adam Richardson. And this is the writer's detective bureau. Welcome back to episode number 112 of the writer's detective bureau, the podcast dedicated to helping authors and screenwriters write professional quality crime related fiction. This week,

I'm translating a bit of, legalees talking about the crime of discharging a laser at an aircraft and how we use warrants to take down multiple gang locations at the same time. But before we can do to that, I just want to say, I know it's been a minute since my last episode, but I've been busy, busy creating the writer's detective school.

And my very first cohort of students, most of whom are listeners like you are knee deep in a case of their own. We meet on zoom a few times a week, and together we work through a realistic investigation and I am having so much fun. So the next cohort of the writer's detective school will launch on January 1st, 2022. So if you'd like to get on the waiting list for cohort 22 dash one,

just go to writer's detective school.com and type in your email address. And you'll have first shot at a seat in the next cohort. But now that things are willing handed underway with the writer's detective school, the writer's detective bureau, this podcast is back on track a few months back. I revamped the website for this podcast in one of the tools that I added was a voicemail tool where you can record your own voice to ask your question in Elaine Chissick is my first guest to do so.

So let's take a listen to Elaine's question right now. Hi, It's Elaine Chissick from Northeast Yorkshire UK. Thanks for answering my question. I'm main character innocent. It's given me a lot to work with. I'm still working my way through your other podcasts, and they've raised a few more questions. The first is if the judge finds a fault in the affidavit or doesn't agree with something and refuses to sign it off,

what happens? Can you also explain the difference between exigent and the extenuating circumstances? And the last question is if an investigating officer needs to be in the courtroom for the whole of the trial is involved with what happens to other cases that that officer may have been working on, especially if those are the cases, have something about them that makes them time-sensitive or they're passed onto another investigating officer.

That's all I have for the moment. Thanks for all your help, because what you are doing for as authors is absolutely invaluable. Stay safe in these COVID times, even though we are hopefully coming out of it. And I look forward to sending any more questions as I get back into my current work in progress. Thanks for the questions, Elaine. So if the judge doesn't sign a warrant,

what happens? I get to go home, right? I'm just kidding. It means we have a lot more work to do when a judge does not sign a search warrant or an arrest warrant. It's usually because we, the detectives haven't shown sufficient probable cause for whatever we're asking for in the warrant. So that means we have more investigating to do. We need to uncover more facts that we can articulate in a warrant affidavit that tend to show the need and reasonableness of the warrant that said most of the time,

the probable cause is really there in the investigation. We just didn't do a good enough job explaining everything with our writing when we presented that to the judge. So this is why we, as the tech will have a prosecutor review our warrant affidavit before going to a judge, the prosecutor will usually tell the detective whether there's sufficient, probable cause PC in that affidavit as it's written,

or if we need to keep working on that affidavit before going to the judge, think of the affidavit like your homework and that homework is pass fail. And if the judge is the professor, then the prosecutor is the teaching assistant that knows what the professor is looking for. And that TA is in a position to help you with it. The judge, however,

has to remain impartial. So you are not going to get any help from the judge as for exigent and extenuating circumstances. They certainly sound similar, but they are quite different. Exigent means requiring immediate aid or action extenuating means to provide partial justification or excuse for something. So exigent circumstances have to do with having an exigent or emergency type situation where waiting to get a search warrant is not reasonable.

On the other hand, extenuating circumstances have more to do with explaining how someone's actions aren't quite as drastic as they seem. Once you get the full picture of what's going on. But before I give an example of each of these, let me give you Cornell law. School's definition of exigent in extenuating circumstances, exigent circumstances, circumstances that would cause a reasonable person to believe that entry or other relevant prompt action was necessary to prevent physical harm to the officer or other persons.

The destruction of relevant evidence, the escape of the suspect, or some other consequence, improperly frustrating, legitimate law enforcement efforts, extenuating circumstances. That definition also called the mitigating factors are facts or details that are important for fully understanding a situation. Let's say we're working patrol in our police car and dispatch gets a nine 11 call. And they're now sending us out on this nine 11 call.

And the call is of a woman running out of a house, screaming at the top of her lungs and only partially closed. Then a man reportedly came out of the house, grabbed the woman around her waist and pulled her back into the house and then slammed the door shut. So what do we have? Is this a domestic violence situation? Is this a kidnapping or false imprisonment situation?

Is it a hostage situation? Was the woman trying to escape and call for help? I think it's reasonable for us to think that this woman needs help, like immediately needs our help, right? We don't have 30, 60 or 90 minutes to go get a search warrant from a judge to save this woman Dewey. So when we do get to the house and we hear that woman's screaming inside,

we decide to break down the door to save her. And we're justifying our actions based upon our having exigent circumstances, which the courts have held to be a viable exception to the warrant rule. So that's exigent circumstances. Now let's say that once we get inside, we learned that this woman is actually the daughter of the man that grabbed her in the woman is suffering a mental health crisis.

She's been diagnosed as paranoid schizophrenia and the father is trying to get her into the car to go to the hospital. That explanation of why the father was doing this would be extenuating circumstances that allow us to fully understand what's going on. And that the father isn't actually guilty of kidnapping someone Elaine's last question was about what happens to your other cases while you're in court as a detective.

And that's one of the things a detective would be talking to their boss, likely a detective Sergeant about when we are going to be tied up in court for an extended period, like during a jury trial for a murder, we usually know it's coming months in advance. So we're able to plan for it. In fact, we may be working with the prosecutor day in and day out for weeks leading up to the trial.

So my boss is going to make sure I take on any new cases while I'm tied up with this one. And anything that's really important or has any kind of significant time element may get reassigned to another detective in the bureau. Thank you so much for your question, Elaine. And thanks for asking my first voicemail question on the podcast. If you would like to record your own question,

you can do so by going to writers, detective.com forward slash podcast. And you can also use that link to write in a question as well. Now, as luck would have it, we are starting a trend. I have voicemail question number two as well. And this one comes from guy Jay wood. Will you marry me? Sorry, guy. I'm already married or wait a minute.

Do you mean you want me to marry you to someone else like officiate at your wedding? I'd be happy to let me just get internet ordained in your people can talk to my people to make it happen. How does that sound guy, Jay wood, any bets that the bride to be is named? Amanda Hugginkiss. Now, before I go any further, I do need to thank my Patreon patrons,

especially my gold shield patrons, Debra Dunbar from Debra Dunbar com CC Jameson from CC Jameson com. Larry Keeton Vicki Tharp of Vicki tharp.com. Chrysann Larry darter, Natalie Barrelli Craig Kingsman of Craig Kingsman dot com. Lynn Vitale, Marco Carocari of Marco Carocari dot com. Terry Swann, Rob Kerns of nightfall, press.com, Mariah stone of Mariah stone.com and Aurora Jacobson for their support.

Along with my Silver Cufflink in coffee club patrons, you can find links to all of the patrons supporting this episode in the show notes at writers, detective.com. And as always, you can learn about using Patreon to grow your author business, or to support this podcast by going to writers, detective.com forward slash Patreon and our friend Christopher Kratchman wrote on Facebook awhile back.

Hey Adam, I just got through listening to your recent interview on the cops and writers podcast and was wondering if you have personally dealt with cases of private citizens pointing lasers at helicopters and other aircraft. I know it's a big issue. Oh man. Sadly I have many times, and it is a crime here in California. The penal code is divided into chapters where similar types of crimes are kind of lumped together in their numbering.

The homicide sections are in the one hundreds, like 1 8, 7 for first degree murder. And the violent crimes are in the two hundreds. The property crimes are in the four hundreds and so on. You might be wondering why I skipped the three hundreds and that's because that's all the non touching sex crime stuff like child porn or exposing your junk in public. The,

okay, so back to the two hundreds, the violent crimes, two 11 is the crime of robbery. 2 42 is simple battery or misdemeanor battery 2 43 is felony battery. Well, technically 2 43 is a wobbler. A wobbler is a crime that can be charged as either a misdemeanor or a felony. So it can wobble from one side to the other, I guess 2 45 is a salt with a deadly weapon,

which is also a wobbler and 2 47 0.5 is discharge of a laser at an aircraft. Again, a wobbler, the legislature listed this crime in this chapter, right in this section because they consider pointing a laser at an aircraft to be similar to assault with a deadly weapon. In fact, if you maliciously point a green laser at a commercial airliner, you can potentially be charged with a felony for each person on that airplane.

So if that lasers pointed at a Southwest airlines, 7 37, you're looking at 143 passengers plus the flight crew. So nearly 150 felony counts against you. If something happens to that airplane. So yeah, it is a big issue and serious stuff. Green lasers, especially can cause temporary blindness, which is exactly what you don't want a pilot to have when you're relying upon them to get you on the ground safely.

Oh, and in addition to the criminal charges, the FAA can go after you civilly like $15,000 for a first offense. So it's definitely not something you want to mess with. Thanks so much for the question, Chris, Kimberly, my friend also known as K a Lugo of Jack slaughter, thrillers.com writes in my story, a huge Chinese gang has just been taken down in San Francisco as part of a joint task force operation.

The gang was dealing drugs, arms, prostitution, money laundering, all the good stuff. This gang owns or owned six shops in the city they were using as fronts. So I'm guessing they'll all be seized and staff detained for interviews and possible arrests. How would a joint task force go about this? Are the warrants served by one department, such as the SFPD and then the various groups come in and sees what they want or do they all serve their own warrants?

DEA, ATF, FBI, us marshals ice. What would this or these warrants be called? And also who oversees all the assets once the deal has been made by undercover police and the bad guys, the shops, merchandise accounting, as well as the drugs and other illegal items like firearms, illegal tobacco products, et cetera. Thanks in advance. Well,

we tend to refer to operations like this as gang association warrants. I know you have a federal task force set up for this, but one agency would likely be the lead on it. Given the ongoing criminal enterprise aspect, it could be charged as a Rico case, our ICO, or treated as a more traditional drug trafficking organization, which means you could likely put the FBI or the DEA as the lead agency.

Each location will be listed on the search warrant and a team will be assigned to each location regardless of the makeup of the team, whether that's FBI San Francisco PD, U marshals, ice HSI, or whatever, there will be one member from the lead agency assigned to that team. And that lead agency member will be responsible for the custody of the evidence.

As it will go back to that lead agency for booking retention or testing or whatever, make no mistake. These can be huge operations. I've been on dozens of these kinds of operations. Some with over 300 cops involved where briefing was done in a high school gymnasium at four o'clock in the morning, which I share with you because I know that right there is a scene in itself,

right? But Hey, a quick note about the warrant itself. Even if we're talking about six different locations, it will usually be one single search warrant that lays out the entire investigation for the judge. And the warrant will include all six locations. One of the key things that a search warrant has listed is the location to be searched. And as I've mentioned before,

we leave a copy of the search warrant at the place we searched, or we give it to the person responsible for that location, which in this case is likely a gang member. The last thing I want is for gang member a at location, a to read the warrant and see that we're also serving warrants at locations, B C, D E, and F.

So to combat this, we will list the locations on separate attachments, literally separate individual pages, like attachment a attachment B and so on to the warrant. Then when we leave a copy of the warrant behind it, location a they only get location. A's search warrant with attachment a as part of the warrant. It's an easy way to compartmentalize the information.

Similarly, if I serve a search warrant on a bank and I have the bank listed as location F on attachment F they won't get to see the other locations where searching, which limits how much let's say a bank employee can learn about our investigation. They can't go Snoop around the houses in the neighborhood to learn which one is the drug dealing house. Since he had a detective come serve a drug-related search warrant,

looking for checking account records, which he could have done had I listened to all of my warrant locations on the face page of the warrant. Now the asset forfeiture side of things is a civil court procedure, not a criminal one that said the assets, the teams encounter can be seized or frozen in place. So think bank accounts or investments pending that civil process.

So the persons or businesses that have had their assets seized will be provided with paperwork to challenge that seizure and forfeiture. So if it's evidence of crime, it's booked as evidence for the criminal case, if it's fruits of the crime like money made from, or the cars in houses paid for by the proceeds of the crimes, those can be seized civilly. Now,

if you're new to the podcast or you aren't sure about the differences between criminal and civil cases, here's just a really quick explanation. If the court case we're talking about involves a crime, meaning you're looking at a fine or imprisonment than its criminal case, it is a criminal case, or it is part of the criminal justice system. Crimes can be infractions,

which are punishable by a fine misdemeanors, which are traditionally punishable by a fine or up to one year in the county jail. Or they can be felonies punishable by one year or more in prison. Now that is a super simplified explanation, especially as California has completely put that on its ear and really changed up penalties for misdemeanors and felonies. But hopefully you get the idea,

but if the court case is for anything other than a crime, it's a civil case, suing a contractor for breaching a contract, civil contesting, a last will, and Testament through probate, civil, changing your legal name, or getting a divorce, civil fighting your cars, money, and house being taken away through asset forfeiture laws because you're a drug dealer,

civil going to jail for being a drug dealer criminal. So I hope that helps answer your questions about how we work with some of the bigger cases and the difference between criminal and civil cases. Let's see what else as I record this, we're just a few weeks away from the 20 books Vegas conference. My good friend, Patrick O'Donnell of hosts of the cops and writers podcast is hosting a police procedural panel again this time.

And I will again be one of his panelists. So if you're attending the conference, please come say hello. I would love to meet you, hear all about what you're working on and even invite you to our meetup during the 20 books conference, I'm actually driving to Vegas tomorrow to scout out the super secret location with Patrick. So if you're going to be at the conference,

definitely come find me or come find Patrick. If you're looking for me, I'll be the bald cop looking guy. Thank you so much for listening and Hey, I need questions for next few episodes. You can even record your question on audio, just like Elaine did by going to writers, detective.com forward slash podcast. Just please. No more proposals. Thanks again for listening.

Have a great week and write well, Yeah, just a second. Check. Amanda Hugginkiss. Hey, I'm looking for Amanda Hugginkiss. Why can't I find Amanda Hugginkiss?