“Dine-and-Dash” Diner Evades Felony Charges

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Paul Guadalupe Gonzales, a 45-year-old resident of Pasadena, dated frequently but for very short intervals, according to southern California prosecutors. Between May 2016 and April 2018, they say, Gonzales scheduled first dates at restaurants throughout the region with 10 women he had met on dating websites or computer applications.

During those get-togethers, Gonzales dined extensively and expensively, favoring pricey choices like prime steaks and lobster tails; on occasion, he ordered two entrees for himself, and the price of his orders sometimes topped $100.

Then, just as the two diners were getting acquainted, Gonzales excused himself from the table on one pretext or another – a restroom visit, retrieving a phone charger from his car, or having to make an urgent phone call – but never returned, sticking his date with paying the entire bill.

The Los Angeles County district attorney’s office early in August filed seven counts of extortion, two counts of attempted extortion, and one count of grand theft against Gonzales. He was also charged with a couple of other misdemeanors: defrauding an innkeeper (a restaurateur who absorbed a loss, rather than making the abandoned date pay for Gonzales’s hearty meal) and petty theft.

The charges did not explain why Gonzales’s disappearing act might be considered extortion, which California criminal law defines as using force or threats to make someone give you money or other property.

Altogether, his dine-and-dash routine cost his dinner partners nearly $1,000. If convicted on all the felony charges, Gonzales could have faced 13 years in prison; after he was arrested later that month, bail was set for him at $315,000.

At a preliminary hearing in Los Angeles Superior Court in early September, many of his short-term dates testified to their humiliation, and Gonzales pleaded not guilty to all charges. His public defender shrewdly argued the extortion charges did not apply to Gonzales’s actions.

The presiding judge agreed, saying the restaurants were the victims, not the dates who chose to pay for the departed Gonzales’s meals, and dismissed most of the felony charges. Bail was also lowered to $100,000. Unavailable witnesses led to the dismissal of four other charges.

Gonzales is still facing the remaining charges, and some new ones that recently emerged. It turns out a Pasadena salon’s security camera captured footage of Gonzales getting a haircut and dye job, then leaving without paying, still wearing the salon’s smock.

Perhaps he’ll get another public defender who may argue that his serial dine-and-ditch client left the salon absent-mindedly, his thoughts preoccupied with whether he looked sharp enough to make a good first impression at a forthcoming dinner date.

Crystal Meth or Donut Glaze?

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Last April, I wrote about here the tale of Daniel Rushing, the Florida retiree who was pulled over by Orlando police as he drove out of a 7-11. Though the cops first said they stopped him for not coming to a complete stop before entering traffic and travelling 12 miles over the speed limit, it turned out they were staking out the location, after area residents complained about drug activity there.

When Rushing handed over his license, the police noticed his wallet also held an out-of-state concealed-carry permit. Asked if he had a gun in his car, the former city parks employee in his mid-60’s said he did. The police then started search his car – and that’s when the real trouble started.

Though having his gun in the car was perfectly legal, one of the cops soon discovered what she took to be evidence of a serious drug crime. Specifically, she detected on the driver’s side floorboard near the spot for the driver’s feet a few pieces of a shiny, rock-like white substance. At first, she thought it was crack cocaine, but soon decided it was crystal methamphetamine.

The driver offered a different explanation for the mysterious substance: once a week, he drives a sick friend to a chemotherapy appointment. After that, he often picks up a treat, usually a glazed doughnut, at a nearby Krispy Kreme shop, and eats it in his car. So, the objects triggering the cop’s suspicions weren’t cocaine or meth, but instead flakes of doughnut glaze.

But the drug-hunting cops next performed a field test on the mysterious substance, got a positive reaction, and were soon bundling Rushing in handcuffs to the county jail, where he was strip-searched, locked up for 10 hours, and delayed six hours in taking anti-pain medicine for a back injury. Eventually released on bail, he was charged with possessing methamphetamines; the presence of a gun escalated the maximum penalty from five years to 15.

Field tests like the one given Rushing are cheap — usually about $2 – but far from precise (they’re not accepted as evidence in most courts, because many innocent substances can produce false positives), plus they require careful use (the meth field test Orlando police use requires two separate chemicals; if applied in the wrong order, results are worthless). When more detailed and reliable testing results came in from a state lab a few days later, no controlled drug was found to be present, and the charges against Rushing were dropped.

But the second-degree felony drug and firearms arrest was still on his record, which stymied his efforts to start a security consulting business. Rushing sued the Orlando police, and the maker of the roadside drug testing kit they used. His case was helped by state police data showing in over a fifth of cases where local cops turn over suspected meth for testing, the sample turns out not to be meth. While the county initially defended the arrest and testing, before year’s end they paid Rushing a $37,500 settlement, and hundreds of Orlando police got added training on field testing for drugs.

 

Cop Fired for Arresting Nurse Who Blocked Unconsented, Warrantless Blood Draw from Patient

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Videos, taken on July 26 in the emergency room of the University of Utah hospital’s burn unit, show Jeff Payne, a veteran Salt Lake City policeman, growing increasingly frustrated as he argues with Alex Wubbels, the unit’s head nurse, a blonde female in blue scrubs, over the cop’s intent to draw a blood sample from a severely burned, unconscious patient. Wubbels tells him the hospital’s policy only allows police to take blood from a patient who either consents, is under arrest, or is covered by a search warrant.

Here, the patient is a truck driver gravely injured in a fiery crash when the tractor-trailer he was driving was hit head-on by a swerving pickup truck being chased by state police, who had gotten reports of the pickup’s erratic driving. The comatose patient cannot consent, isn’t under arrest, and there’s no warrant, the nurse notes.

Then Payne grabs the nurse, drags her outside the emergency room, handcuffs and arrests her, and shoves her into an unmarked police cruiser. Thanks to plentiful cameras – hospital security cameras, plus body cameras worn by police on the scene – there’s ample detail of Payne’s manhandling Wubbels, of her screaming she’s done nothing wrong, and of Lt. James Tracy, the supervisor who ordered Payne to arrest Wubbels for obstruction of justice, then came to the hospital, telling the handcuffed nurse she should have yielded to police demands, even if unlawful and contrary to hospital policy.

The videos, as many of us have seen, obtained by local news outlets, quickly went viral, and news coverage of the incident was also widespread, if not always accurate. Here are some lessons that can be learned from this unfortunate but instructive incident.

First, many press accounts prominently mentioned last year’s Supreme Court decision (Birchfield v. North Dakota) requiring police to have a warrant for blood tests, but not for breath-alcohol tests, in DUI investigations. That’s true, but irrelevant. The patient was not suspected of any offense, but the victim of the crash caused by the pickup driver, who died in the crash (the tractor-trailer driver would linger a while before dying).

Second, as captured in a recorded conversation between Payne and another cop, Payne knew he couldn’t get a search warrant to authorize drawing a sample of the truck driver’s blood, since there was no probable cause. Later claims the patient’s commercial driver’s license gave implied consent for blood tests are unpersuasive retroactive rationalization attempts.

Third, it was the availability of body camera footage that produced an outcry that helped produce investigations by the city police and a citizens’ review panel (both finding multiple police violations of their own policies), and apologies by the police chief and mayor. Payne eventually was dismissed from the force, and his supervisor demoted (both plan to appeal). If Wubbels, who was never formally charged, decides to sue for assault, wrongful arrest or other torts, the videotapes will also be prime plaintiff exhibits.

The last, but not least, lesson: however tempting, the police need to stop throwing their weight around just because they think they can. Especially in cases, like this. If an officers action is legally permissible, then obtain permission through legal process, not strongarm tactics.

Mandatory Arrest in Domestic Violence Cases

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Arrest is Automatic in Domestic Violence Cases

New York dramatically changed its criminal law procedures when it implemented a “mandatory arrest” law for cases involving domestic violence. If the police are called for a potential domestic violence incident and they have probable cause to believe you committed an act of domestic violence, they are required to arrest you. Even if the alleged victim doesn’t want to press charges, new police training puts much less emphasis on the victim’s wishes.

This can make it more complicated to defend against domestic violence charges because, unlike some other criminal charges, the case can still proceed, even if the alleged victim changes his or her mind or the parties resolve the issue before the police arrive at the scene.

 

Why Was this Law Put into Place?

This law came about through good intentions. Unfortunately, many victims of domestic violence will change their story out of fear or love, because they feel trapped economically, or for a number of other reasons specific to their situation. Since a number of domestic violence cases end in serious injury or death, even after the victim has retracted their claims of abuse, New York no longer relies on the victim before pressing charges and making an arrest.

Sadly, by automatically arresting alleged abusers in an attempt to protect their victims, New York state has created a complicated problem for criminal defendants. If you are involved in or accused of being involved in a domestic incident, you could be automatically arrested, even if the victim has recanted their claims of abuse. Even if you and the other person were both participating in the incident, if the police believe you were the “primary” or main aggressor, you may be the only person arrested. An arrest could you leave you with a criminal record that could impact your future.

 

What Will the Police Do?

If the police are called in an emergency, they are required to come and investigate, whether the emergency is related to domestic violence or any other incident. Once on the scene, police must begin to investigate to see if there is enough evidence to show that you committed a crime by harming or threatening the alleged victim. If police gather enough of this evidence to have probable cause to believe, or reasonable belief, that you committed an act of domestic violence and are required to arrest you under New York law.

Police typically begin gathering this evidence by questioning the alleged victim. They will want to know what happened, in the victim’s perspective, where you are, whether any weapons were used, and where they may be, if there are any injuries, and if any children are present in the home. The police will typically take photos of any injury or property damage, confiscate any weapons, and make copies of any messages that threaten the victim, apologize for the incident, or otherwise discuss the incident.

 

When will Police have Probable Cause?

As noted above, police must make an arrest if there is probable cause that domestic violence has occurred. You can’t be charged with a domestic violence offense simply for assaulting another person. Crimes under the domestic violence statute fall under a very limited scope. The first thing police must determine is whether the alleged victim was a member of your family or household. A domestic violence victim can only be a spouse, former spouse, person you share a child with, person you share blood relationship with, or current or former intimate partner. If you do not have one of these relationships with the alleged victim, the incident cannot be domestic violence.

Your relationship with the victim is not the only thing that the state will try to prove is that you committed a crime that falls under the domestic violence statute. Police must believe that a criminal offense occurred or that you violated an order of protection by either failing to stay away from the victim or that you committed a family offense crime that was prohibited in the order.

 

What if We Were Both Involved?

The mandatory arrest law has one possible exception: if you and the alleged victim were both involved in the incident. If the crime is a misdemeanor, police may choose to arrest only one of the parties involved in the domestic incident. Police will investigate and determine whether you or the other party was “primary aggressor,” or the party most responsible for the domestic incident. However, if both parties have committed felony crimes, this exception does not apply. Police will be required to arrest both you and the other party.

 

What Happens after Arrest?

After police arrest you, they will bring you to the police precinct for booking, and you will appear before the court for arraignment shortly after. At the arraignment, a judge will review the information surrounding your arrest and the charges. Based upon your alleged crimes, your criminal history, and the likelihood that you would appear at trial, the judge will make a determination as to your possible bail. The judge may choose to release you on your own recognizance, to set a bail that you must pay in order to be released, or to refuse to set bail. In the final scenario, you could be placed in jail to await a hearing on your charges.

As with any criminal charge, there are other consequences beyond appearing for trial and the possible sentence you could receive. The ramifications can have impact your future education, career, and even your relationships. It makes this well-intentioned law very risky for defendants. It is why I always recommend to my clients that they are cautious if they find themselves in a domestic incident and help them protect their interests if they find themselves arrested as a result.

What is Your Right to Film the Police?

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Whether you are being questioned by police or are witnessing a police encounter with another person, you may consider recording the interaction. The news has shown how a police recording can provide evidence of whether a police officer has acted lawfully in making an arrest. However, depending on how and where you are filming the police, you could find yourself facing a host of charges related to the filming. 

What is Your Right to Film Police?

In general, you have the constitutional right to take photographs and videos of things that are plainly visible from public areas. This is how many news agencies film footage of crowds and street shots for certain articles. However, the term “public area” is broader than you might expect. Transportation facilities like subways and train stations, federal buildings, parks, streets, and state-owned buildings are all public areas. Also, since the police action must be visible from public areas, it does not mean that the police may not be on private property like an easily visible front porch or store parking lot at the time you are filming them.

Wherever you are filming from, you must be in the area legally, so you do not want to be in a public park after hours, for instance. You may also film on private property, but only if you have permission to do so by the owner of the property. New York is a state that requires only one party in a conversation consent to an audio recording, but the courts have, so far, held that even in states with much stricter recording laws, it is a citizen’s First Amendment right to record police conduct in public, as well as public speeches and protesters.

What Should You Avoid Doing?

As mentioned before, you should be sure that, wherever you are filming from, you have permission from the owner to do so. Otherwise, you could be arrested for trespassing. You should also be sure that your filming does not interfere with the police’s actions, as you could be charged with obstructing the police. The courts will often side with officers’ judgment as to whether your recording was actually interfering with their duties unless it is very clear that your recording could not have possibly limited their ability to do their jobs. That is why it is best to record from a distance and, if the officer tells you you can’t film from a particular location, be sure to take a step or two back.

Police may ask you to stop recording, even when you have a legal right to do so. Even when you have the absolute right to continue filming or taking pictures, doing so could have consequences. As noted above, police may find a reason to arrest you or attempt to confiscate your phone. Even if the the charges are wrong or exaggerated, you could be face arrest. Although most police officers should know the law and your rights, you should be prepared for this possible worst case scenario and how it could impact you.

What Shouldn’t the Police Do?

The officers shouldn’t tell you to stop filming, as long as you are on public property or have the permission of the owner of private property and you aren’t interfering in their stop and/or arrest of you or someone else. Police also shouldn’t order you to delete the photos or video you have already recorded or attempt to confiscate your phone or view your recordings. Police are only authorized to seize a phone or camera if the officers have a reasonable belief in good faith that it has evidence of a crime committed by someone other than the police, and may need to obtain a warrant before the officers can search the phone or camera themselves.

What Happens if I Am Stopped from Filming?

If you are filming or photographing the police, there are a few things to remember. You should always be polite to the officer; you do not want to give the police additional opportunities to charge you with fighting them or obstructing them in anyway. If the officer has stopped you, be sure to ask the police if you are free to go. As soon as you ask to leave, you are no longer there voluntarily and the police are officially detaining you, which they cannot do if they do not have reasonable suspicion that you have or are about to commit a crime.

You should assert your rights, but again, remember to be polite. Tell the officer that you believe you have the right to photograph or video the officers and that you do not consent to any searches of your phone or camera or the deletion of anything on it. Do not resist an officer attempting to take your camera, but again repeat that you do not consent. Otherwise, you could face a charge for “resisting arrest.”

What If I Am Arrested?

If you are arrested, you will want to make note of everything that happened and do what you can to preserve the recording or photographs you took of the incident. These can serve as proof as to whether you complied with the officer. Identify any other witnesses who may have seen you recording the incident and how you responded to the officers and keep note of where you were filming from and where the officers were making their stop or arrest.

If you asserted your rights and asked to go at the time you were stopped by police, you should have a few options to challenge the charges issued against you. Police cannot claim that you voluntarily handed over your phone if you told them you did not consent to do so or that you stayed of your own free will if you asked to leave and were not given permission by the officers at the scene. Then, it is on the police to show they had a reasonable suspicion that you had or would commit a crime.

Keep in mind that challenging these kinds of charges often involves complicated Constitutional issues, and hiring a lawyer is, probably, one of the wisest steps you can take if you decide to challenge an arrest as a result of recording the police.