News Room

1275.1 HOLD - The Prosecutor Thinks Your Bail Money Will Be Illegally Obtained!

By Bill Nimmo

In many cases, especially where drug traffickers, financial crimes or transient crimes families are involved, defendants have holds placed on their release because someone in the system feels that illegal monies are being used to get the person out of jail. Where trafficking is involved and financial crimes are involved, the activities themselves can generate large sums of untracked money stolen or hidden to be used in case of emergencies. California law deals with this situation in Penal Code section 1275.1.

Penal Code section 1275.1 allows law enforcement to have conditions put on your bail if they can make a showing that there is reason to believe the bail money and/or the security for the bond has been illegally obtained. Either the police, the prosecutor or the court itself can have this type of hold on a defendant's release if they have probable cause to believe that any bail money in the case would be from ill-gotten gains. If the source of the hold is from the police or the prosecutor, they must file a declaration under penalty of perjury setting forth probable cause to believe that the source of bail monies has been feloniously obtained.

If this happens in your case, the "burden of proof" shifts to you to prove by a "preponderance of the evidence" that no part of the monies or security was obtained feloniously. This means that your attorney will have to bring a motion to prove that the bail monies or security are proper. In San Diego, if you are battling this issue right from the day you are arraigned, it would be filed and heard in the felony arraignment department. If you are dealing with the issue later in the case, such as after preliminary hearing, it would be filed in the supervising criminal department and assigned out to another court for hearing.

Because there are consequences to losing this motion, your attorney will have to present as much evidence as possible. Typically, a written motion outlining your proof and providing documentary evidence is best. This gives the judge an opportunity to read the motion and understand your position without any time pressure. Courts are much more comfortable on major issues if they have an advance understanding of why they should rule your way. Judges are uncomfortable making significant rulings if they are forced to do so quickly. This would be especially true if the decision meant letting someone out on bail who is facing significant time and who might have a desire to flee.

If you have legitimate sources of funds and security for your bail, you should be able to prove it. Cash is the least impressive commodity for a court to evaluate. Of course, cash can be totally legitimate, but it is hard to determine if cash comes from a legitimate source or an illegitimate source. Cash is a "red-flag" for the courts. It signals a high probability that the money is illegal.

Your lawyer should be prepared to show a paper trail that proves that the money posted is legitimate. If your cousin, for instance, wants to help post the cash bail fee showing that he sold some stock and transferred it to the bail agent by wire is a good start. You should be prepared to show that he makes a legitimate income and that the stock that he liquidated was held for a substantial period of time. In that case, for instance, if you could show that he regularly contributes money from his company paychecks to his stock market account and there are no other large deposits you will have a good chance of proving your case. In this example, it would be necessary to gather by subpoena or authorized release the records that prove the chain as well as the "cousin" who can testify to his/her own financial affairs.

Watch out for putting on evidence that ends up being a sham. The judges and the prosecutors are not stupid and they are both very capable of cross-examining your bail witnesses. So watch out if you have someone take the stand to say he has kept $25,000 buried in the back yard for years because he doesn't trust banks. If the judge determines that the defendant has willfully mislead the court regarding the sources of the bail monies the bail may be increased. You want to be very careful in this regard. Your presentation, if a sham, may give the prosecutor clues to your illegal activities and provide them leads to make further charges against you or your people.

On the other hand, if you have a legitimate source for the bail money and the security, a good lawyer with the appropriate documentation and witnesses should be able to demonstrate that legitimacy to the court. You are, after all, constitutionally entitled to reasonable bail and the courts have an obligation to uphold that principle.

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