Search 2017 PDF
Search 2017 PDF
Search 2017 PDF
and
Search & Seizure
An Update
Table of Contents
A Publication of The California Legal Update
Seventeenth Edition
January, 2017
Robert C. Phillips
Deputy District Attorney (Ret.)
San Diego District Attorneys Office
858-395-0302 (C)
[email protected]
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2017 Robert C. Phillips. All rights reserved.
2015 by Robert C. Phillips
All rights reserved. No part of this Outline may be reproduced or transmitted in any form
or by any means, electronic or mechanical, including photocopying and recording, or
through any information storage or retrieval system, when done for commercial purposes
or for any form of a monetary return or profit, except as expressly permitted by federal
copyright law and as indicated below.
This Outline has been prepared and published for the purpose of aiding law enforcement
officers, police and private investigators, law enforcement administrators, prosecutors,
the judiciary, other attorneys including but not limited to those engaged in the practice of
criminal law, students, and legal educators and scholars, in accessing, using and
understanding the field of Fourth Amendment Search and Seizure Law. As such,
permission is expressly granted by the author to the above listed persons, or any other
person, to use, reproduce, cite, and/or employ in the field of law enforcement, education
or instruction, any or all of this Outline, provided the source is properly and correctly
identified, and except when done for commercial purposes or profit as described above.
Robert C. Phillips
Deputy District Attorney (Retired)
San Diego District Attorneys Office
[email protected]
858-395-0302
How To Use This Manual: To locate the law on any particular subject of interest to
you, it is suggested that you first note the general description of the subject under
Chapter Summary, on page iii, below. This will guide you to the correct page of the
Table of Contents under Topics, beginning on page iv. There you will find a more
detailed description of the various legal issues. This in turn will note for you the specific
page in the expanded Outline where you will find the relevant cases and rules on that
topic.
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Table of Contents
Page
Chapter Summary:
Chapter 3: Detentions 54
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Page
Topics:
Chapter 1: 1
Scope: 2
History 3
General Rule 6
Good Faith 9
Statutory Violations 11
Rule of Exclusion: 12
Benjamin Cardozo 12
Verbal Evidence 12
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Federal Rules of Evidence, Rule 402 13
General Rule 13
Factors 14
Exceptions: 15
Identity of a Witness 16
Immigration Issues 17
Impeachment Evidence 18
Expectation of Privacy: 22
Rule: 22
Examples 22
Juvenile Cases 23
On Appeal 23
Civil Liability: 25
Qualified Immunity 25
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Effect of a Prior Conviction or Sentence 28
Summary Judgment 29
Directed Verdict 29
Rule 31
Case Law: 31
Unpublished Cases 35
The Outline: 35
Police-Citizen Contacts 35
Other Topics 35
Chapter 2: 37
Consensual Encounters: 37
General Rule 37
Test 37
Limitations 39
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No Detention: 40
A Consensual Transportation 43
Contacts on Buses 43
Factors to Consider 45
Examples 45
Specific Issues: 47
Contacts on Buses 47
Flight: 47
Rule 47
Exceptions 48
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Chasing the Subject 49
Chapter 3: 54
Detentions: 54
General Rule 54
Purpose 55
Test 56
Factors 58
Officer Safety 59
Racial Profiling 62
General Rule 63
Factors 63
Examples 64
Indicators of an Arrest: 64
Show of Force 65
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Physical Touching 65
Transporting a Detainee 65
Exceptions: 67
In General 67
Factors 68
Examples: 68
Firearms 68
Handcuffing 68
Reasonable Suspicion: 75
Defined 75
A Hunch 80
A Seizure 82
Various Factors: 83
In General 83
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A High Crime or High Narcotics Area 83
Statutory Interpretation 84
Types of Detentions: 85
Traffic Stops: 85
Legal Basis 85
Standard of Proof 86
Moving Violations 88
Estimates of Speed 91
State Rule 97
Federal rule 98
Weaving Plus 98
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Narcotics-Related Traffic Stops Using a
Controlled Tire Deflation Device (CTDD) 101
Exceptions 108
Ordering In 116
Flight 118
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Detentions in a Residence 121
Weaving 130
Sobriety Checkpoints on a
Federal Military Base 134
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Checkpoints at the Entrance to a
Prison Parking Lot 135
Examples 139
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Anonymous Information: 147
Rule: 147
Miranda 158
Rule 159
Factors 159
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Narcotics-Related Traffic Stops Using a
Controlled Tire Deflation Device (CTDD) 161
Rule 162
Issue 162
Problem 166
Chapter 4: 171
Arrests: 171
Defined 171
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Defined 171
Examples 182
Test 184
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Issuance of a Misdemeanor Citation 206
Felonies 207
Exceptions: 208
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Operating a Vessel or Recreational
Vessel or Manipulation
of Water Skis, Aquaplane
or Similar Device While
Under the Influence 213
Exceptions 219
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With an Existing Warrant of Arrest 226
Defined 227
Content 227
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Arrests without a Warrant 234
Expiration 237
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Case Law Limitations: 241
Ramey: 241
Exceptions: 242
Consent 242
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The Rule 262
Parole 263
Probation 264
Minors: 267
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Information Provided to an Arrested Person: 269
Exceptions 270
Standing 271
Miranda: 276
Rule 276
Rule 278
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Illegal Alien Arrestees; The Transparent Review of Unjust
Transfers and Holds Act (TRUTH):
Govt. Code 7283, 7283.1, & 7283.2 281
Factors 285
Baton 299
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Firearms 300
Handcuffs 304
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Applicable Statutes: 313
Limitations: 314
History 315
Self-Defense: 318
Elements 319
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Use of Deadly Force by Police Officers: 330
Rule 330
Examples 330
Rule 342
Factors 343
Chapter 5: 347
Search: 347
Trespassory Searches:
Persons, Houses, Papers and Effects 347
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Seizure 350
Rule 354
Examples 355
Exceptions: 356
Exceptions: 358
Factors: 360
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Purpose and Flagrancy 361
Miranda 361
Rule 365
Standing: 375
Defined 375
Test 376
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Prior California Rule 379
Examples: 379
Vehicles 379
Rule 386
Businesses 390
Rule 393
Exceptions 393
On Appeal 394
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Posse Comitatus; Use of the Military by Civilian Law Enforcement: 397
Exceptions 398
Purpose 399
Chapter 6: 402
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Exceptions to Good Faith Rule: 414
Examples 418
Informants 419
Procedure 422
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Sneak and Peek Warrants 426
Definitions 428
Rule 434
Violations 435
No Violation 435
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1. The Warrant: 436
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(15) For Firearms in Possession of Convicted
Felons 442
Defined 444
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of the Probable Cause 452
Rule 453
Factors 454
Cases 454
Rule 457
Issues 457
Staleness: 468
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Fingerprints 471
Miranda 473
Cases 475
Rule 483
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Corroboration: 484
Rule 484
Examples 484
Problem 485
Rule 485
Restrictions 485
Procedure 486
Rule 490
Cases 490
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Conspiracy 493
Rule 494
Exceptions: 494
Consent 495
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Mortgage Fraud Records: 499
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Federal Rules 511
Exceptions 519
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Rules as to Others Who are Not California Peace Officers: 520
Victims 521
Purpose 524
Problem 525
Exceptions: 525
Businesses 525
Refusal: 526
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Exigent Circumstances 527
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How Accomplished 552
Extensions 560
Rule 561
Procedure 562
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CCP 1822.51: Consent 564
Procedure: 568
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P.C. 1548.3: Investigating the Demand 569
Scope 570
Procedure 570
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Jail and Prison Inmates 577
Prohibitions 577
Punishment 578
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Electronic Pager Communication 586
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P.C. 629.82: Interception of Communications Relating
to Crimes Other Than Those Specified in
the Authorization Order: 604
Chapter 7 613
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Exceptions to the Search Warrant Requirement 613
Rule 613
No Search 614
Examples 615
Rule 617
Examples 618
Exceptions: 619
Defined 621
Rule 621
Examples: 622
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Officers Safety 623
Test 627
Examples: 628
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Border Patrol Checkpoints 629
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Examples Where the Special Need Fails to
Outweigh a Persons Right to Privacy: 633
Rule 634
Criteria: 634
Mining 635
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Where Licenses Include a Consent to Search 635
Cases 640
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49 U.S.C. 44901: Transportation Security
Administration (TSA) Search Authority 641
Miscellaneous: 642
Rule 642
Cases 643
Chapter 8 650
Rule 650
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Exceptions: 652
Cellphones 652
Exception 661
Exceptions: 664
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P.C. 833; Search of an Arrestee 666
Factors 668
Cases 675
Choking: 680
Rule 680
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Examples 681
Defined 682
Constitutionality 682
Procedures: 691
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When Suspect Reaches for a Weapon 692
Problems: 692
Trashcans 699
Exceptions 700
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Jail, Prison, and Prisoner Searches: 704
Purpose 704
Booking 704
Justifications 704
Containers: 705
Cellphones 705
Exceptions 706
Rule 707
Reasonableness 708
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Continued Limitations 712
Definitions: 713
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P.C. 4030(h): Recording of Required
Documentation 716
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Subd. (f): Criminal Penalties
for Violations 718
Rule 720
Exceptions: 722
Rule 724
Exception 725
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Rights Retained by Prison Inmates 727
P.C. 295 et seq: The DNA and Forensic Identification Database and
Data Bank Act of 1998: 728
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P.C. 296(e): Duty of a Prosecutor to Notify the Court 733
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P.C. 300 et seq.: Construction and Severability 742
Chapter 9: 746
Rule 747
Exception 747
Limitations: 748
Exception 755
Retroactivity 756
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Transportation 757
Cases 761
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Pretext Impounds 775
Examples 785
Elements 786
Elements 787
Penalties 788
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Case Law 789
Exceptions 793
Garage 802
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Fishing Retreat 802
Tents 807
Businesses 809
Rule 810
Reasonableness 810
Rule 811
Examples: 811
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Curtained Booth in an Adult Bookstore 811
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Held to be Illegal 821
Held to be Legal 823
In a Residence 824
Defined 826
Limitation 827
Rule 835
Rule 838
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Executing an Arrest Warrant 853
A Buster 860
Drones 861
Binoculars 871
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Controlled Tire Deflation Device (CTDD) 871
At Airports 875
Dogs: 875
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Exceptions to the Warrant Requirement: 888
At an Airport 903
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Issue 907
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Information 919
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Subd. (h): Electronic Information 922
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Factors 931
Cases 935
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Parole: 942
Probation: 945
Juveniles: 952
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W&I 730(b): Reasonable
Conditions of Probation 954
Pre-Trial 962
Constitutionality 963
Probation 963
Parole 965
Probation 968
Parole 968
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Issue 969
Exceptions 973
Miscellaneous: 978
In a Vehicle 985
Detentions 987
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Patdowns 988
Arrests 988
Rule 989
Factors 990
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Manner of Inquiry: 997
Test 1004
Cases 1005
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Specific Issues: 1013
Miranda 1016
Examples: 1021
Landlord 1021
Parent 1022
Child 1023
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Evidence of a Defendants Refusal to Consent
to a Warrantless Search 1030
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The Fourth Amendment
and
Search & Seizure
An Update
An Annual Publication of The California Legal Update
Seventeenth Edition
January, 2017
Robert C. Phillips
Deputy District Attorney (Ret.)
San Diego District Attorneys Office
858-395-0302 (C)
[email protected]
Chapter 1
The Fourth Amendment: The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures, shall not
be violated, and no warrants shall issue, but upon probable cause, supported by
oath or affirmation, and particularly describing the place to be searched and the
persons or things to be seized. (Emphasis added)
A state legislature does not have the power to deem into existence
facts operating to negate individual rights arising under the federal
constitution. (See U.S. Const., art. VI, cl. 2 [supremacy clause];
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Marbury v. Madison (1803) 5 U.S. 137, 177-180 [2 L.Ed. 60]; Younger v.
Harris (1971) 401 U.S. 37, 52 [27 L.Ed.2nd 699; 91 S.Ct. 746] [a statute
apparently governing a dispute cannot be applied by judges, consistently
with their obligations under the Supremacy Clause, when such an
application of the statute would conflict with the Constitution].) A statute
attempting such a feat would be a nullity. (Gibbons v. Ogden (1824) 22
U.S. 1, 210-211 [6 L.Ed. 23].) (People v. Arredondo (2016) 245
Cal.App.4th 186, 200-201; Petition for Review, granted.)
Scope:
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enforcement in violation of its terms. (Weeks v. United States (1914) 232 U.S.
383 [58 L.Ed. 652].)
History:
The Supreme Court subsequently held that the rule was not
constitutionally imposed upon the states. (Wolf v. Colorado
(1949) 338 U.S. 25 [93 L.Ed. 1782, . . . ]; see Breithaupt v. Abram
(1957) 352 U.S. 432, 434 [1 L.Ed.2nd 448, 450, . . . ].)
It was not until 1961, when Wolf was overruled, that the
exclusionary rule was made mandatory in state prosecutions.
(Mapp v. Ohio (1961) 367 U.S. 643 [6 L.Ed.2nd 1081, . . . ]; see
Schmerber v. California (1966) 384 U.S. 757, 766 [16 L.Ed.2nd
908, 917, . . . ].) (People v. Bracamonte (1975) 15 Cal.3rd 394,
400, fn. 2.)
General Rule:
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Good Faith:
The Ninth Circuit has held that for good faith to save an
otherwise unlawful search, the officers must have relied
upon prior binding appellate precedent. Prior authority
that is merely unclear only allows an officer to escape
civil liability under a qualified immunity argument.
Whether or not an officer may search a cellphone based
upon a Fourth waiver probationary search is not the
subject of any binding appellate precedent. Therefore,
good faith does not save such a search where current or
subsequent cases (e.g., Riley v. California (June 25, 2014)
573 U.S. __ [134 S.Ct. 2473; 189 L.Ed.2nd 430].) have held
such a search to be unlawful. (United States v. Lara (9th
Cir. 2016) 815 F.3rd 605, 612-614.)
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arrested. (United States v. Lustig (9th Cir. 2016) 830 F.3rd
1075, 1077-1085.)
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product of an illegal detention, arrest or search. (See United States
v. Crews (9th Cir. 2007) 502 F.3rd 1130, 1135.)
Factors:
Using the above factors, the fact that the defendant had an
outstanding arrest warrant may, depending upon the
circumstances, be sufficient of an intervening circumstance
to allow for the admissibility of the evidence seized
incident to arrest despite the fact that the original detention
was illegal. (People v. Brendlin (2008) 45 Cal.4th 262; an
illegal traffic stop.)
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The United States Supreme Court is in accord: (E)ven
when there is a Fourth Amendment violation, (the)
exclusionary rule does not apply when the costs of
exclusion outweigh its deterrent benefits. In some cases,
for example, the link between the unconstitutional conduct
and the discovery of the evidence is too attenuated to
justify suppression. (Utah v. Strieff (June 20, 2016) __
U.S. __, __ [136 S.Ct. 2056, 2059; 195 L.Ed.2nd 400];
existence of an arrest warrant attenuated the taint
between an unlawful detention and the discovery of
evidence incident to the arrest on the warrant, at least
where the police misconduct was not flagrant.
But, per the Ninth Circuit, even though the fruit of the
poisonous tree doctrine does not apply to the lawful search
of a residence after the house was detained for an
unreasonable time while a search warrant was obtained, the
resulting evidence recovered from the residence when the
home was searched with the warrant will be suppressed
anyway in that the officers were not acting reasonably in
taking 26 hours to get the warrant, and some punishment
must follow such an unreasonable delay. (United States v.
Cha (9th Cir. 2010) 597 F.3rd 995, 1003-1004.)
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Exceptions:
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The greater the willingness of the witness to freely
testify, the greater the likelihood that he or she will
be discovered by legal means and, concomitantly,
the smaller the incentive to conduct an illegal search
to discover the witness. (United States v.
Ceccolini, supra, at p. 276.)
Immigration Issues:
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officers. (United States v. Valdivia (1st Cir. 2012)
680 F.3rd 33, 51-52.)
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The Minimal Intrusion Doctrine: Californias First
District Court of Appeal (Div. 5) has found this theory to
be a whole separate exception to the search warrant
requirement, calling it the Minimal Intrusion Exception.
(People v. Robinson (2012) 208 Cal.App.4th 232, 246-255;
the insertion and turning of a key in a door lock; citing
Illinois v. McArthur (2001) 531 U.S. 326, 330 [148
L.Ed.2nd 838].)
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Expectation of Privacy: Whether a search or seizure is unreasonable
under the Fourth Amendment, and therefore requires the exclusion of
evidence obtained thereby, turns on whether a person has a
constitutionally protected reasonable expectation of privacy, that is,
whether he or she has manifested a subjective expectation of privacy in the
object of the challenged search (or seizure) that society is willing to
recognize as reasonable. (Emphasis added; People v. Robles (2000) 23
Cal.4th 789, 794.)
Rule: The United States Supreme Court has held: Our Fourth
Amendment analysis embraces two questions. First, we ask
whether the individual, by his conduct, has exhibited an actual
expectation of privacy; that is, whether he has shown that he
[sought] to preserve [something] as private. [Citation.] . . .
Second, we inquire whether the individuals expectation of privacy
is one that society is prepared to recognize as reasonable.
[Citation, fn. omitted.] (Bond v. United States (2000) 529 U.S.
334, 338 [120 S. Ct. 1462, 1465, 146 L. Ed.2nd 365, 370]; see also
People v. Maury (2003) 30 Cal.4th 342, 384; United States v.
Wahchumwah (9th Cir. 2013) 710 F.3rd 862, 867.)
Examples:
On Appeal:
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evidence, it must clearly appear that on no hypothesis
whatever is there sufficient substantial evidence to support
the verdict of the [finder of fact]. [Citation.] (People v.
Sanghera (2006) 139 Cal.App.4th 1567, 1573.) As our
Supreme Court said in People v. Rodriguez, supra, 20
Cal.4th 1, while reversing an insufficient evidence finding
because the reviewing court had rejected contrary, but
equally logical, inferences the jury might have drawn: The
[Court of Appeal] majoritys reasoning . . . amounted to
nothing more than a different weighing of the evidence, one
the jury might well have considered and rejected. The
Attorney Generals inferences from the evidence were no
more inherently speculative than the majoritys;
consequently, the majority erred in substituting its own
assessment of the evidence for that of the jury. (Id., at p.
12, italics added.) (People v. Dealba, supra, at p. 1149.)
Qualified Immunity:
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A right is clearly established only if its contours are
sufficiently clear that a reasonable official would
understand that what he is doing violates that right.
(Anderson v. Creighton (1987) 483 U.S. 635, 640 [97
L.Ed.2nd 523].)
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Summary Judgment:
A motion for summary judgment shall be granted when
all the papers submitted show that there is no triable issue
as to any material fact and that the moving party is entitled
to a judgment as a matter of law. [Citation.] A summary
adjudication is properly granted only if a motion therefor
completely disposes of a cause of action, an affirmative
defense, a claim for damages, or an issue of duty.
[Citation.] Motions for summary adjudication proceed in all
procedural respects as a motion for summary judgment.
(Jameson v. Desta (2015) 241 Cal.App. 4th 491, 497;
quoting Jameson v Desta (2013) 215 Cal.App.4th 1144,
1163.)
On appeal, the reviewing court makes an independent
assessment of the correctness of the trial courts ruling,
applying the same legal standard as the trial court in
determining whether there are any genuine issues of
material fact or whether the moving party is entitled to
judgment as a matter of law. (Jameson v. Desta, supra,
241 Cal.App.4th 491; citing Trop v. Sony Pictures
Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1143;
which quotes Iverson v. Muroc Unified School Dist.
(1995) 32 Cal.App.4th 218, 222-223.)
In a summary judgment finding favoring the civil
defendants, the appellate court is to independently review
the record that was before the trial court when it ruled on
defendants motion. [Citations.] In so doing, (the Court
will) view the evidence in the light most favorable to
plaintiffs as the losing parties, resolving evidentiary doubts
and ambiguities in their favor. (B.H. v. County of San
Bernardino (2015) 62 Cal.4th 168, 178; quoting Elk Hills
Power, LLC v. Board of Equalization (2013) 57 Cal.4th
593, 605-606.)
Directed Verdict:
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Plea Bargaining and Cooperation Agreements:
Rule: A police officer has no independent authority to plea bargain with criminal
suspects.
Case Law:
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The Courts Order of Priority: Federal and California law is cited in this
outline. In reviewing the cases listed, it must be remembered that tactical
decisions and actions of state and local law enforcement officers, as well
as state and local prosecutors, are bound, and must be guided, in order of
priority, by the decisions of:
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considered absent any direct California case law on the issue.
(People v. Valencia (2011) 201 Cal.App.4th 922, 932.)
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United States[,] or if the state courts conclusions were
based on an unreasonable determination of the facts in
light of the evidence presented in the State court
proceedings. (Jackson v. Giurbino (9th Cir. 2004) 364
F.3rd 1002, 1005 (reversed on other grounds), quoting
Killian v. Poole (9th Cir. 2002) 282 F.3rd 1204, 1207.)
The Outline: The following, throughout this Outline, are the rules developed by the
courts for the purpose of protecting societys reasonable privacy expectations and
effectuating the purposes of the Fourth Amendment.
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Searches of Vehicles (Chapter 9).
Searches of Residences and Other Buildings (Chapter 10).
New and Developing Law Enforcement Technology (Chapter 11).
Open Fields (Chapter 12).
Searches of Containers (Chapter 13).
Border Searches (Chapter 14).
Fourth Waiver Searches (Chapter 15).
Consent Searches (Chapter 16).
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Chapter 2
Consensual Encounters:
General Rule: Contrary to a not uncommonly held belief that law enforcement
contacts with private citizens require some articulable reason to be lawful, it is a
general rule that any peace officer may approach and contact any person in public,
or anywhere else the officer has a legal right to be, and engage that person in
conversation without necessarily having to justify such a contact. (Wilson v.
Superior Court (1983) 34 Cal.3rd 777.)
The law does not prohibit an officer from approaching any person in a
public place and engaging that person in uncoerced conversation. (People
v. Divito (1984) 152 Cal.App.3rd 11, 14; Florida v. Royer (1983) 460 U.S.
491 [75 L.Ed.2nd 229]; People v. Mendoza (2011) 52 Cal.4th 1056, 1081.)
But: The person contacted is free to leave and need not respond to
an officers inquiries. (See below)
Test: Would a reasonable person under the same or similar circumstances feel
that he or she is free to leave? (Wilson v. Superior Court, supra, at p. 790,
quoting from United States v. Mendenhall (1980) 446 U.S. 544, 554 [64 L.Ed.2nd
497, 509]; Desyllas v. Bernstine (9th Cir. 2003) 351 F.3rd 934, 940; Martinez-
Medina v. Holder (9th Cir 2010) 616 F.3rd 1011, 1015.)
If a reasonable person would not feel like he has a choice under the
circumstances, then the person contacted is being detained, and absent
sufficient legal cause to detain the person, it is an illegal detention.
(People v. Bailey (1985) 176 Cal.App.3rd 402.)
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(T)he officers uncommunicated state of mind and the individual
citizens subjective belief are irrelevant in assessing whether a seizure
triggering Fourth Amendment scrutiny has occurred. (In re Christopher
B. (1990) 219 Cal.App.3rd 455, 460.) (In re Manual G., supra, at p. 821
see also Whren v. United States (1996) 517 U.S. 806 [135 L.Ed.2nd 89];
(People v. Linn (2015) 241 Cal.App.4th 46; noting that the test is an
objective one. See also United States v. Magallon-Lopez (9th Cir. 2016)
817 F.3rd 671, 675.)
However, see People v. Linn (2015) 241 Cal.App.4th 46, 68, fn. 10,
where the Court notes that: These and similar cases are
particularly noteworthy in light of recent empirical research
suggesting that a significant number of people do not feel free to
leave when approached by police, and even less so when police
assert even mild forms of authority. (See Casual or Coercive?
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Retention of Identification in Police-Citizen Encounters (2013) 113
Colum. L.Rev. 1283, 1313, noting studies such as one in which
half the respondents indicated that they would feel either not free
to leave or less than somewhat free to leave in a mere conversation
with police on a sidewalk and concluding, [t]hus, it appears that
any interaction with a police officer, even at the lowest level of
intrusiveness, makes most citizens feel that they are not free to
leave; Smith et al., Testing Judicial Assumptions of the
Consensual Encounter: An Experimental Study (2013) 14 Fla.
Coastal L.Rev. 285, 319320, noting that while nearly three-
quarters of the sample used in the study perceived the encounters
with sworn, armed security as consensual, 45 percent also believed
they had no right to walk away or ignore the security officers
requests. See also Ross, Can Social Science Defeat a Legal
Fiction? Challenging Unlawful Stops Under the Fourth
Amendment (2012) 18 Wash. & Lee J. Civil Rts. & Soc. Just. 315,
331339 [discussing empirical studies].
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No Detention: Consensual encounters may involve investigative functions
without necessarily converting the contact into a detention or arrest. Examples:
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However, where a robbery had just occurred in the vicinity
with the suspect and vehicle description, although not
perfect, very close, and with defendant having just parked
his car weirdly, not quite at the curb, with a door left
open, and defendant apparently attempting to separate
himself from his car, the officers had a reasonable
suspicion to detain defendant anyway. (Id., a pp. 353-356.)
See United States v. Gross (D.C. Cir. 2015) 784 F.3rd 784, where it
was held that driving alongside the defendant who was walking
down the sidewalk, flashlighting him, and, and while the officer
was still inside his car, asking him, Hey, . . . how are you doing?
Do you have a gun?, and then, Can I see your waistband?, and
then, when defendant lifted only one side of his jacket, Can I
check you out for a gun?, causing defendant to flee, all held not to
be a detention, and lawful.
But see Brendlin v. California (2007) 551 U.S. 249 [168 L.Ed.2nd
132], below.
Asking a person to remove his hands from his pockets (when done for
officers safety), without exhibiting a show of authority such that (a
person) reasonably might believe he had to comply, is not, necessarily, a
detention. (People v. Franklin (1987) 192 Cal.App.3rd 935, 941; In re
Frank V. (1991) 233 Cal.App.3rd 1232.)
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under the Constitution. (United States v. Enslin (9th Cir. 2003)
315 F.3rd 1205, 1219-1227.)
During a knock and talk: Contacting a person at the front door of their
residence, done in a non-coercive manner, is not a detention. (United
States v. Crapser (9th Cir. 2007) 472 F.3rd 1141, 1145-1147.)
Factors to Consider:
The Ninth Circuit Court of Appeals has added several other factors
to consider (United States v. Washington (9th Cir. 2007) 490 F.3rd
765, 771-772, citing Orhorhaghe v. INS (9th Cir. 1994) 38 F.3rd
488, 494-496.):
Examples:
In United States v. Washington (9th Cir. 2007) 490 F.3rd 765, the
Ninth Circuit Court of Appeal found a detention when two white
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police officers had contact with the black defendant late at night,
and then asked him for consent to search. The consensual
encounter, however, reverted to an illegal detention due to the
authoritative manner of conducting the search, by walking
defendant back to the patrol car, having him put his hands on the
patrol vehicle while facing away from the officer, during a
patdown, with the second officer standing between him and his car.
It was also noted that the local Police Bureau (in Portland,
Oregon) had published a pamphlet telling African-Americans to
submit to a search when ordered to do so by the police following
several instances of white police officers shooting black citizens
during traffic stops.
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Specific Issues:
Contacts on Buses:
The United States Supreme Court has repeatedly ruled that law
enforcement officers checking buses for immigration or drug
interdiction purposes are not detaining the passengers when the
officers do no more than ask questions of an individual, ask to
examine the individuals identification, and request consent to
search his or her luggage so long as the officers do not convey a
message that compliance with their requests is required. The fact
that the contact took place in the cramped confines of a bus is but
one factor to consider in determining whether the encounter was in
fact a detention. (Florida v. Bostick (1991) 501 U.S. 429 [115
L.Ed.2nd 389]; United States v. Drayton (2002) 536 U.S. 194 [153
L.Ed.2nd 242].)
Flight:
Rule: The long-standing rule has always been that flight alone,
without other suspicions circumstances, is not sufficient to justify a
detention. (People v. Souza (1994) 9 Cal.4th 224.)
Exceptions:
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pursuit, is sufficient to justify a detention. (People v.
Rodriguez (2012) 207 Cal.App.4th 1540, 1543.)
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The Court noted that neither defendants temporary
hesitation, nor the officers use of a firearm while
telling him he was under arrest, alters the rule of
Hodari D. (Id., at pp. 1216-1217.)
The Court further noted that the fact that the technology is
not generally available to the public, and is more intrusive
than mere audio surveillance, is irrelevant to the Fourth
Amendment analysis. (Id., at p. 868.)
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A private citizen has a First Amendment right to videotape public
officials (i.e., police officers) in a public place. The arrest of a
citizen for doing this, charging him with a Massachusetts state
wiretapping violation, violated the citizens First and Fourth
Amendment rights. (Glik v. Cunniffe (1st Cir. 2011) 655 F.3rd 78,
82-84.)
Knock and Talks: Where the officer does not have probable cause prior to
the contact (thus, he is not able to obtain a search warrant), there is no
constitutional impediment to conducting what is known as a knock and
talk; i.e., making contact with the occupants of a residence at their front
door for the purpose of asking for a consent to enter and/or to question the
occupants. (United States v. Cormier (9th Cir. 2000) 220 F.3rd 1103.)
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But see United States v. Jerez (7th Cir. 1997) 108 F.3rd 684, where
a similar situation was held to constitute an investigative
detention, thus requiring an articulable reasonable suspicion to
be lawful, because the officers knocked on the motel room door in
the middle of the night continually for a full three minutes, while
commanding the occupants to open the door.
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Chapter 3
Detentions:
General Rule: A police officer has the right to stop and temporarily detain
someone for investigation whenever the officer has a reasonable suspicion
some criminal activity is afoot and that the person was, . . . is, . . . or is about to be
involved in that criminal activity. (Terry v. Ohio (1968) 392 U.S. 1, 27 [20
L.Ed.2nd 889, 909]; People v. Walker (2012) 210 Cal.App.4th 1372, 1381.)
But the other side of this coin dictates that: The Fourth Amendment
protects the right of the people to be secure in their persons . . . against
unreasonable searches and seizures by the government. U.S. Const.
amend. IV. This inestimable right of personal security belongs as much
to the citizen on the streets of our cities as to the homeowner closeted in
his study to dispose of his secret affairs. (Thomas v. Dillard, supra, at
p. 874; quoting Terry v. Ohio, supra, at pp. 8-9.)
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Purpose:
There are two different bases for detaining an individual short of having
probable cause to arrest: (1) reasonable suspicion to believe the individual
is involved in criminal activity (Terry v. Ohio (1968) 392 U.S. 1, 30-31
[20 L.Ed.2nd 889, . . . ) and (2) advance knowledge that the individual is
on searchable probation or parole (In re Jaime P. (2006) 40 Cal.4th 128,
136, 139 . . . ; People v. Reyes (1998) 19 Cal.4th 743, 754 . . . .) (People
v. Douglas (2015) 240 Cal.App.4th 855, 863-873.)
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A detention is a seizure for purposes of the Fourth Amendment, and
occurs whenever a law enforcement officer, by means of physical force or
show of authority, in some way restrains the liberty of a citizen. (Florida
v. Bostick (1991) 501 U.S. 429, 434 [115 L.Ed.2nd 389, 398]; People v.
Rios, supra.)
See also United States v. McClendon (9th Cir. 2013) 713 F.3rd
1211, 1216-1217; where defendant was threatened with an
arguably illegal arrest, resulting in him discarding a firearm. The
firearm was held to be admissible in that the officers had yet to
touch defendant, nor had he yet submitted, when the gun was
tossed.
Factors:
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(Orhorhaghe v. INS (9th Cir. 1994) 38 F.3rd 488, 494-496; United
States v. Washington (9th Cir. 2004) 387 F.3rd 1060, 1068; (United
States v. Brown (9th Cir. 2009) 563 F.3rd 410, 415; People v.
Davidson (2013) 221 Cal.App.4th 966, 972 In re J.G. (2014) 228
Cal.App.4th 402, 409-410.)
The police officer must reasonably suspect that the person stopped
is armed and dangerous.
Officer Safety:
The plight of police officers and the dangers they face on the streets are
not lost on the courts:
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decision to conduct a stop and frisk . . . . (P)olice officers (are)
entitled to protect themselves during a detention: This is a rule of
necessity to which a right even as basic as that of privacy must
bow. To rule otherwise would be inhumanely to add another
hazard to an already very dangerous occupation. Our zeal to fend
off encroachments upon the right of privacy must be tempered by
remembrance that ours is a government of laws, to preserve which
we require law enforcementlive ones. Without becoming a
police state, we may still protect the policemans status. [Citation
omitted] (In re Richard G. (2009) 173 Cal.App.4th 1252, 1255.)
The U.S. Supreme Court has ruled that for officer safety purposes,
passengers in a lawfully stopped vehicle may be ordered to exit the
vehicle. Passengers, by virtual of merely being present in a lawfully
stopped vehicle, are detained. If anything, the need to protect the safety of
the officers is even greater when he must deal with more than just a lone
driver. (Maryland v. Wilson (1997) 519 U.S. 408 [137 L.Ed.2nd 41]; see
also Ruvalcata v. City of Los Angeles (9th Cir. 1995) 64 F.3rd 1323.)
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This includes those who otherwise are not necessarily involved in
the suspected criminal activity. (Bailey v. United States (Feb. 19,
2013) 568 U.S. __ [133 S.Ct. 1031, 1037-1043; 185 L.Ed.2nd 19];
citing Muehler v. Mena (2005) 544 U.S. 93 [161 L.Ed.3nd 299].)
The United States Supreme Court has held that at least in a private motor
vehicle (as opposed to a taxi, bus, or other common carrier), the passenger,
by virtue of being in a vehicle stopped for a possible traffic infraction, is
in fact detained, giving him the right to challenge the legality of the traffic
stop. (Brendlin v. California (2007) 551 U.S. 249 [127 S.Ct. 2400; 168
L.Ed.2nd 132].)
Although Brendlin, on its face, appears to deal only with the right
(i.e., standing) of the passenger to challenge the legality of the
traffic stop (Brendlin v. California, supra., at pp. 256-259.), and
arguably was not intended as authority for the continued detention
of a passenger who might choose to walk away, the U.S. Supreme
Court subsequently ruled quite clearly that (t)he police need not
have, in addition, cause to believe any occupant of the (lawfully
stopped) vehicle is involved in criminal activity to justify a
continued detention for the duration of the traffic stop. (Arizona v.
Johnson (2009) 555 U.S. 323 [172 L.Ed.2nd 694].)
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Also; The temporary seizure of driver and passengers
ordinarily continues, and remains reasonable, for the
duration of the stop. (Id., at p. 325.)
The Court in Steele (supra, at p. 1118) cited the Colorado Supreme Court
case of People v. Taylor (Colo. 2002) 41 P.3rd 681, where the Colorado
High Court balanced the interests of the government and the defendant
and did not require the government to demonstrate reasonable suspicion to
stop the defendant. In Taylor, an officer stopped the vehicle the defendant
was driving in order to arrest the defendants passenger, for whom there
were arrest warrants. The defendant did not commit a traffic violation, did
not exhibit aberrant behavior, and the officer did not suspect that the
defendant was engaged in criminal wrongdoing. The court in Taylor said
that although the officer had seized the defendant within the meaning of
the Fourth Amendment, the seizure was not an arrest or an investigatory
stop. According to the Court, the circumstances presented one of those
rare situations . . . in which the balance of interests precludes insistence
upon some quantum of individualized suspicion that Defendant is
engaged in criminal activity to justify a seizure.
Racial Profiling:
(T)he race of an occupant (of a vehicle), without more, does not satisfy
the detention standard. (People v. Bates (2013) 222 Cal.App.4th 60, 67;
citing People v. Bower (1979) 24 Cal.3rd 638, 644.)
Examples:
Handcuffing the defendant and having him sit on the curb found to
be a de facto arrest which, under the circumstances, was not
supported by probable cause and also which, under the
circumstances, negated his subsequent consent to search his
vehicle. (People v. Espino (2016) 247 Cal.App.4th 746, 758-760.)
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While putting a juvenile in a security office at the border,
and frisking her, were not enough to constitute an arrest,
handcuffing her shortly thereafter when contraband was
found in her car was an arrest. (United States v. Juvenile
(RRA-A) (9th Cir. 2000) 229 F.3rd 737, 743.)
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Defendant was the driver of a vehicle that was following
another vehicle. Officers determined that the owner of the
lead vehicle had an outstanding warrant for his arrest.
Sheriffs Deputies activated their emergency lights just as
both vehilcles were in the process of parking. Defendants
vehicle was caught between the officers and the lead
vehicle. The Court held that defendant was necessarily
detained by this action, per Brown, even though there was
no cause to believe that he was involved in any criminal
activity. Officer safety consideratios justified contacting
defendant before proceeding to the lead vehicle. The odor
of marijuana and plain sight observations of marijuana in
the car lawfully lead to a search of the car and discovery of
more contraband. (People v. Steele (2016) 246 Cal.App.4th
1110, 1115-1120.)
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by fear for personal safety. (In re Ricardo D. (9th Cir. 1990) 912
F.2nd 337, 340.)
Examples:
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(A) police officer may handcuff a detainee without
converting the detention into an arrest if the
handcuffing is brief and reasonably necessary under
the circumstances. (People v. Osborne (2009) 175
Cal.App.4th 1052, 1062.)
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Confronting three people in the early morning hours, where
one (defendant) had an attitude, and another was carrying
a knife on his belt in an open sheath, was sufficient cause to
detain the three subjects and to initiate a patdown of the
one with the knife. A consensual encounter may turn into
a lawful detention when an individuals actions give the
appearance of potential danger to the officer. (People v.
Mendoza (2011) 52 Cal.4th 1056, 1081-1082.)
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See Post-Release Community Supervision Act of
2011, under Fourth Waiver Searches, below.
In Charley, the defendant had just murdered her three children and,
after calling police from another location, encouraged law
enforcement to go with her to check on their welfare without
specifically telling the officer what she had done. She was also
told that she was not under arrest, and was transported without
handcuffs. (United States v. Charley, supra, at pp. 1077-1082.)
(T)he police may move a suspect from the location of the initial
stop without converting the stop into an arrest when it is necessary
for safety or security reasons. (United States v. Ricardo D. (9th
Cir. 1990) 912 F.2nd 337, 340; citing Florida v. Royer (1983) 460
U.S. 491, 504-505 [75 L.Ed.2nd 229, 241-242].)
See also Michigan v. Summers (1981) 452 U.S. 692, 702, fn. 16
[69 L.Ed.2nd 340, 349], where it was held that moving the detained
suspect from the walkway in front of his home into the house,
where he was held while the house was searched pursuant to a
search warrant, was not considered constitutionally significant.
But see Bailey v. United States (Feb. 19, 2013) 568 U.S. __
[133 S.Ct. 1031, 1037-1043; 185 L.Ed.2nd 19], restricting
such detentions to occupants who are still in the
immediate vicinity of the residence being searched. The
detention of an occupant who had just left the residence,
and was already about a mile away, held to be illegal, at
least under the rule of Summers.
Gallegos v. City of Los Angeles (9th Cir. 2002) 308 F.3rd 987;
where a 2-to-1 majority found that stopping a subject at gunpoint,
handcuffing him, and then transporting him back to the scene of a
crime to see if the victim could identify him, a procedure which
took 45 minutes to an hour, was not an arrest, but was no more
than an investigative stop (that) worked as it should.
Reasonable Suspicion: Less than probable cause, but more than no evidence
(i.e., a hunch.) at all.
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States v. Sokolow (1989) 490 U.S. 1, 7 [104 L. Ed. 2nd 1]; United
States v. Valdes-Vega (9th Cir. 2013) 738 F.3rd 1074, 1078.)
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Note: No case law yet upholds more than just a minimal
detention, nor the transportation, of a victim or witness
without that persons consent.
During the execution of a search warrant, until the rest of the house
is checked for the suspects, other occupants may be detained. (Los
Angeles County v. Rettele (2007) 550 U.S. 609 [167 L.Ed.2nd
974].)
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See Detention of Residents (or Non-Resident) During the
Execution of a Search Warrant, below.
But see Bailey v. United States (Feb. 19, 2013) 568 U.S. __
[133 S.Ct. 1031, 1037-1043; 185 L.Ed.2nd 19], restricting
such detentions to occupants who are still in the
immediate vicinity of the residence being searched. The
detention of an occupant who had just left the residence,
and was already about a mile away, held to be illegal, at
least under the rule of Summers.
A hunch may provide the basis for solid police work; it may
trigger an investigation that uncovers facts that establish
reasonable suspicion, probable cause, or even grounds for a
conviction. A hunch, however, is not a substitute for the necessary
specific, articulable facts required to justify a Fourth Amendment
intrusion. (Italics added; People v. Pitts (2004) 117 Cal.App.4th
881, 889; quoting United States v. Thomas (9th Cir. 2000) 211
F.3rd 1186, 1192.)
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7-Elevens, held to be not sufficient to justify a detention and
patdown. (People v. Perrusquia (2007) 150 Cal.App.4th 228.)
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Various Factors which, when taken individually or in combination, help
contribute to justifying a detention.
In General: Such factors include, but are not limited to, the following (see
above and below):
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that neither the nighttime factor nor the high crime area
factor are activities by a person sought to be detained.)
However, note that the United States Supreme Court has held that a
subjects flight on foot from the police when it occurs in a so-
called high narcotics area is sufficient in itself to justify a
temporary detention (as well as a patdown for weapons). (Illinois
v. Wardlow (2000) 528 U.S. 119 [145 L.Ed.2nd 570]; see Flight
under Consensual Encounters, above.)
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(6) If a statute is amenable to two alternative interpretations, courts
will follow the one that leads to the more reasonable result.
(7) Courts may consider legislative history, statutory purpose, and
public policy to construe an ambiguous statute.
(8) If a statute defining a crime or punishment is susceptible of two
reasonable interpretations, courts will ordinarily adopt the
interpretation more favorable to the defendant. (People v. Arias
(2008) 45 Cal.4th 169, 177; People v. Campuzano, supra, at pp.
18-19.)
Types of Detentions:
Traffic Stops:
Standard of Proof: In that the traffic stop itself (i.e., prior to the
issuing of a citation), is considered to be no more than a detention,
it only requires a reasonable suspicion that a traffic offense had
been committed in order to be a lawful stop. (United States v.
Lopez-Soto (9th Cir. 2000) 205 F.3rd 1101, 1104-1105; People v.
Miranda (1993) 17 Cal.App.4th 917, 926 Brierton v. Department
of Motor Vehicles (2005) 130 Cal.App.4th 499, 509-510; United
States v. Miranda-Guerena (9th Cir. 2006) 445 F.3rd 1233; United
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States v. Magallon-Lopez (9th Cir. 2016) 817 F.3rd 671, 674;
People v. Nice (2016) 247 Cal.App.4th 928, 937.)
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Estimates of Speed:
But see United States v. Sowards (4th Cir. 2012) 690 F.3rd
583; 591: [T]he reasonableness of an officer's visual
speed estimate depends, in the first instance, on whether a
vehicles speed is estimated to be in significant excess or
slight excess of the legal speed limit. If slight, then
additional indicia of reliability are necessary to support the
reasonableness of the officers visual estimate.
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A traffic stop for the purpose of checking the validity of a
red DMV temporary operating permit displayed in a
vehicles window (i.e., the red sticker; see V.C. 4156),
when the number on the permit was visible to the officer
before the stop and appeared to be current, is a stop based
upon no more than a hunch, and is illegal. (People v.
Nabong (2004) 115 Cal.App.4th Supp. 1, vehicle with
expired registration tab on plate; People v. Hernandez
(2008) 45 Cal.4th 295, vehicle with no license plates.)
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See also Collier v. Montgomery (5th Cir.
2009) 569 F.3rd 214, 218; addressing a
similar safety belt statute.
Windshield Obstructions:
State Rule:
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Community Caretaking Function:
Parking Tickets:
Gang-Related Investigations:
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Narcotics-Related Traffic Stops Using a Controlled Tire
Deflation Device (CTDD):
Mistake of Law:
Original Rule:
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As a general rule, a mistake of law, whether
reasonable or not, could not be the basis for
finding probable cause or a reasonable
suspicion. (People v. Teresinski (1982) 30
Cal.3rd 822; involving an officers mistaken
belief that a curfew violation applied.
Courts on strong policy grounds have
generally refused to excuse a police officers
mistake of law. (Id., at p. 831.)
New Rule:
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be a reasonable mistake of law, justiflying
the arrest.
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Note: A petition for review was
granted by the California Supreme
Court on May 29, 2015, making this
case unavailable for citation.
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California Rule:
Pretext Issues:
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officers subjective intent. (United States
v. Lundin, supra, at p. 1160.)
To Arrest a Passenger:
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L.Ed.2nd 331, 337]; People v. Evans (2011) 200
Cal.App.4th 735, 743.)
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Ordering In: A police officer may require the driver to
remain in his or her vehicle. (Pennsylvania v. Mimms,
supra.)
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be illegal; decided after Brendlin, but failing
to mention the case.)
Detentions in a Residence:
See also Moore v. Pederson (11th Cir. 2015) 806 F.3rd 1036;
detention in plaintiffs home based upon no more than a reasonable
suspection held to be illegal, absent exigent circumstances. The
defendant police officer was held to have qualified immunity,
however, in that the issue has yet to be settled.
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A non-resident may also be detained when he comes upon the
scene during the execution of a search warrant and there is
evidence connecting him to the illegal activity at the location of the
search. (United States v. Davis (9th Cir. 2008) 530 F.3rd 1069,
1080-1081.)
But see Bailey v. United States (Feb. 19, 2013) 568 U.S. __
[133 S.Ct. 1031, 1037-1043; 185 L.Ed.2nd 19], restricting
such detentions to occupants who are still in the
immediate vicinity of the residence being searched. The
detention of an occupant who had just left the residence,
and was already about a mile away, held to be illegal, at
least under the rule of Summers.
This will necessarily include the time required to write out the
citation and obtain the offenders promise to appear. It will also
include the time it takes to obtain and examine the offenders
drivers license and registration. (G)ood police practice might
also include the time it takes to discuss the violation with the
motorist and listen to any explanation he may wish to offer. And if
the vehicles are exposed to danger, the officer may require the
driver to proceed to a safer location before the traffic stop is
completed. (People v. Tully (2012) 54 Cal.4th 952, 980-981.)
Random warrant checks during routine traffic stops are lawful, but
the subject must be released when the citation process is completed
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(People v. McGaughran, supra; see also United States v. Luckett
(9th Cir. 1973) 484 F.2nd 89.), or within a reasonable time
thereafter. (People v. Brown (1998) 62 Cal.App.4th 493; one
minute delay while awaiting the results of a warrant check was not
unreasonable, even though the officer never wrote the ticket.)
Holding onto a suspect (in handcuffs) for over 4 hours (and maybe
as long as 6 hours) while narcotics officers drove up to a marijuana
grow and searched the area to see if there was any evidence
connecting him to the grow, was diligent and reasonable under
the circumstances, and not an illegally prolonged detention.
(People v. Williams (2007) 156 Cal.App.4th 949; also finding that
the officers had enough to arrest him from the outset had they
chosen to do so.)
A police stop exceeding the time needed to handle the matter for
which the stop was made violates the Constitutions shield against
unreasonable seizures. A seizure justified only by a police-
observed traffic violation, therefore, becomes unlawful if it is
prolonged beyond the time reasonably required to complete the
mission of issuing a ticket for the violation. (Rodriguez v. United
States (Apr. 21, 2015) __ U.S.__ [135 S.Ct. 1609; 191 L.Ed.2nd
492]; finding a dog-sniff of the exterior of the defendants car,
conducted some seven to eight minutes after completing the
purpose of the traffic stop, was illegal.)
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Upon remand, no such independent reasonable suspicion
was found. (United States v. Evans (2015) 122 F.Supp.3rd
1027.)
See also at 135 S.Ct. at p. 1616, holding that the test is how
long it actually takes the officer to handle the traffic
offense, proceeding with reasonable diligence, and that
rushing the issuance of a ticket, for instance, does not earn
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(the officer) bonus time to pursue an unrelated criminal
investigation.
Over-Detention in Jail:
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Note United States v. Turvin et al. (9th Cir. 2008)
517 F.3rd 1097, discussing the invalidity of the
primary holdings of the Chavez-Valenzuela
decision, as it related to the issue of prolonged
detentions.
See also United States v. Murillo (9th Cir. 2001) 255 F.3rd
1169, 1174, where the Ninth Circuit Court of Appeal held
that an officer must be able to articulate suspicious factors
that are particularized and objective in order to broaden
the scope of questioning beyond the purposes of the initial
traffic stop. (United States v. Murillo (9th Cir. 2001) 255
F.3rd 1169, 1174; a questionable rule in light of Robinette.)
And see United States v. Mendez (9th Cir. 2006) 467 F.3rd
1162 (superseded by United States v. Mendez (9th Cir.
2007) 476 F.3rd 1077.), where it was held that questioning a
detainee about possible criminal activity not related to the
cause of the detention, and without a particularized
suspicion to support a belief that the detainee is involved
in that activity, is a Fourth Amendment violation. The
superceding version of Mendez, however, upeld the legality
of such questioning so long as the initial detention wasnt
unlawfully prolonged in the process. (Id., at pp. 1079-
1081.)
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In other cases, the Supreme Court has held: Even when law
enforcement officers have no basis for suspecting a particular
individual, they may pose questions, ask for identification, and
request consent to search luggageprovided they do not induce
cooperation by coercive means. (United States v. Drayton (2002)
536 U.S. 194 [153 L.Ed.2nd 242].); citing Florida v. Bostic (1991)
501 U.S. 429, 434-435 [115 L.Ed.2nd 389, 398-399].)
Also, the U.S. Supreme Court recently rejected the Ninth Circuits
unsupported conclusion that, absent a particularized reasonable
suspicion that an individual is not a citizen, it is a Fourth
Amendment violation to ask him or her about the subjects
citizenship. (See Mena v. City of Simi Valley (9th Cir. 2003) 332
F.3rd 1255, 1264-1265; reversed by the U.S. Supreme Court in
Muehler v. Mena (2005) 544 U.S. 93 [161 L.Ed.2nd 299].)
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California courts seem to be in line with these latest Supreme
Court pronouncements on the issue: Questioning during the
routine traffic stop on a subject unrelated to the purpose of the stop
is not itself a Fourth Amendment violation. Mere questioning is
neither a search nor a seizure. [Citation.] While the traffic
detainee is under no obligation to answer unrelated questions, the
Constitution does not prohibit law enforcement officers from
asking. [Citation.] (People v. Brown (1998) 62 Cal.App.4th 493,
499-500; see also People v. Bell (1996) 43 Cal.App.4th 754, 767;
People v. Gallardo (2005) 130 Cal.App.4th 234, 238; People v.
Tully (2012) 54 Cal.4th 952, 981-982; and People v. Gallardo
(2005) 130 Cal.App.4th 234, 239; asking for consent to search
during the time it would have taken to write the citation that was
the original cause of the stop is legal, despite the lack of any
evidence to believe there was something there to search for.)
But see United States v. Colin (9th Cir. 2002) 314 F.3rd 439,
where the Ninth Circuit Court of Appeal held that weaving
from lane line to lane line for 35 to 45 seconds is neither a
violation of the lane straddling statute (V.C. 21658(a)),
nor reasonable suspicion that the driver may be under the
influence; a questionable decision, and one than may
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probably be ignored by state law enforcement officers in
light of Bracken and Perez.
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While standardless and unconstrained discretion on the part
of government officers is prohibited; stops and inspections
for regulatory purposes, although without individualized
suspicion, may be permitted if undertaken pursuant to
predetermined specified neutral criteria. (Italics added;
Ingersoll v. Palmer, supra, at p. 1335.) The factors
identified in Ingersoll (at pp. 1341-1347) are whether:
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neutral formula for stopping vehicles was not affirmative
evidence overcoming the presumption of lawfulness. All
519 vehicles passing through the checkpoint were stopped,
thus a neutral mathematical formula of 100 percent applied.
The fact that the checkpoint was operated at a different
location than given in a media advisory was insufficient to
overcome the presumption as to decision making at the
supervisory level or reasonable location. (Arthur v.
Department of Motor Vehicles (2010) 184 Cal. App. 4th
1199.)
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Other Regulatory Checkpoints: Other than for DUI deterrence,
roadblocks, checkpoints, and similar administrative, special
needs searches have been approved in the following cases:
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Traffic safety checkpoints. (United States v. Trevino (7th
Cir. 1996) 60 F.3rd 333.)
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V.C. 2814.1(d): Motorcycle-only checkpoints are
prohibited by statute.
Exceptions:
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For example, as the Seventh Circuit Court of
Appeals noted in its reversed decision in Edmond
(see Edmond v. Goldsmith (7th Cir. 1999) 183 F.3rd
659, 662-663.), the Fourth Amendment would
almost certainly permit an appropriately tailored
roadblock set up to thwart an imminent terrorist
attack or to catch a dangerous criminal who is
likely to flee by way of a particular route. (Italics
added; City of Indianapolis v. Edmond, supra, at p.
44 (146 L.Ed.2nd at p. 345].)
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Absent the necessary reasonable suspicion, a detention is
unlawful unless the contact is handled, as qualifies, as a
consensual encounter. (See above)
Examples:
Gang Membership:
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(People v. Green (1991) 227 Cal.App.3rd 692, 699-700;
People v. Rodriguez (1993) 21 Cal.App.4th 232, 239.)
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Also, police may lawfully briefly detain visitors to a
probationers home while executing a Fourth Waiver search for
purposes of identifying the visitors (as possible felons) and for the
officers safety. (People v. Matelski (2000) 82 Cal.App.4th 837;
People v. Rios (2011) 193 Cal.App.4th 584, 593-595.)
However, once the subject has left the immediate vicinity of the
place being searched, he is no longer subject to being detained, at
least under the theory of Michigan v. Summers (1981) 452 U.S.
692 [69 L.Ed.2nd 340, 349-350] (above). (Bailey v. United States
(Feb. 19, 2013) 568 U.S. __ [133 S.Ct. 1031, 1037-1043; 185
L.Ed.2nd 19]; restricting such detentions to occupants who are still
in the immediate vicinity of the residence being searched. The
detention of an occupant who had just left the residence, and was
already about a mile away, held to be illegal, at least under the rule
of Summers.)
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Entering and securing a residence pending the obtaining of a
search warrant was supported by exigent circumstances when
officers received information that the occupant was about to
destroy or remove contraband from the residence. (United States
v. Fowlkes (9th Cir. 2015) 804 F.3rd 954, 969-971.)
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Detention Examples, in General:
Seeing three vehicles with four Black male occupants each, one of the
occupants who is known to be a gang member, driving as if in military
formation at 12:30 at night, hours after a prior gang shooting, the vehicles
being in one of the warring Black gangs territory, held to be insufficient
to justify a stop and detention. (People v. Hester (2004) 119 Cal.App.4th
376, 385-392.)
Where the defendant was confronted by six officers, all surrounding him,
with five of them in uniform with visible firearms, in an area shielded
from public view (an apartment hallway), where his request to shut the
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door to his room was denied, he was patted down for weapons, he was told
three times that he was subject to arrest for failing to register (thus
implying a need to cooperate should he wish to avoid the specter of
arrest), and where he was never told that he was free to leave, a reasonable
person in defendants position at the time would not have believed that he
was free to terminate the contact. (United States v. Washington (9th Cir.
2004) 387 F.3rd 1060, 1068-1069; finding that defendants detention was
more intrusive than necessary and that upon his denial of anything
illegal in his room, the detention became illegal.)
Observation of a truck that matched the description of one that had just
been stolen in a carjacking, but with a different license plate that appeared
to be recently attached, and with two occupants who generally matched
the suspects description, constituted the necessary reasonable suspicion to
justify the defendants detention. (United States v. Hartz (9th Cir. 2006)
458 F.3rd 1011, 1017-1018.)
A knock and talk at the defendants motel room justified the eventual
detention of defendant when (1) the officers had some limited information
from an earlier traffic stop that defendant might be involved in the
manufacturing of methamphetamine, including the presence of a pressure
cooker which the officer knew could be used in the manufacturing of
methamphetamine; (2) a roommate took a full two minutes to open the
motel room door while the officers could hear noises like people moving
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things around inside; (3) when defendant was contacted, he acted
extremely nervous, contrary to how he had acted during a previous contact
by the same officers; and (4) the roommate admitted to being a
methamphetamine user and that other people had visited the room the
night before. (United States v. Crapser (9th Cir. 2007) 472 F.3rd 1141,
1147-1149.)
Observing defendant sitting in a parked motor vehicle late at night near the
exit to a 7-Eleven store parking lot with the engine running, despite prior
knowledge of a string of recent robberies at 7-Elevens, held not to be
sufficient to justify a detention and patdown. (People v. Perrusquia
(2007) 150 Cal.App.4th 228.)
Voluntarily going with the police to the police station, where he was
interviewed as a possible witness, and not a suspect, where nothing was
ever done or said to indicate otherwise at least up until his arrest, was not
an unlawful detention. (People v. Zamudio (2008) 43 Cal.4th 327, 341-
346.)
Where a robbery had just occurred in the vicinity with the suspect and
vehicle description, although not perfect, very close, and with defendant
having just parked his car weirdly, not quite at the curb, with a door left
open, and defendant apparently attempting to separate himself from his
car, the officers had a reasonable suspicion to detain defendant. (People v.
Leath (2013) 217 Cal.App.4th 344, 354-355.)
Anonymous Information:
However, being familiar with the tipsters voice, and knowing that
he has provided reliable information in the past, might be enough.
(People v. Jordan, supra, a pp. 560-661.)
But note: The U.S. Supreme Court, in dicta, hints that had the anonymous
tipster been warning of something more dangerous, such as a bomb, a
patdown based upon this tip alone might be upheld. The Court also
indicated that certain areas where there is a lessened expectation of
privacy, such as in an airport or on school grounds, may also be an
exception to this rule. (Florida v. J.L., supra, at p. 273-274 [146 L.Ed.2nd
at p. 262].)
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reliability. (United States v. Terry-Crespo (9th Cir. 2004) 356 F.3rd
1170.)
See also People v. Wells (2006) 38 Cal.4th 1078, at page 1087, where the
California Supreme Court differentiated J.L. from a DUI case noting that
among other factors: (A) report of a possibly intoxicated highway driver,
weaving all over the roadway, poses a far more grave and immediate risk
to the public than a report of mere passive gun possession.
The exigency of a DUI driver loose on the road, with all the
damage they do, justifies an immediate law enforcement
response. (A) report of a possibly intoxicated highway
driver, weaving all over the roadway, poses a far more
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grave and immediate risk to the public than a report of
mere passive gun possession (as occurred in Florida v.
J.L.).
With the Court assuming for the sake of argument that the 911 call
constituted an anonymous tip: By reporting that she had been run
off the road by a specific vehiclea silver Ford F-150 pickup,
license plate 8D94925the caller necessarily claimed
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eyewitness knowledge of the alleged dangerous driving. That basis
of knowledge lends significant support to the tips reliability.
(Id., 134 S. Ct. at p. 1689.)
A stop and detention of a suspect based upon an anonymous call was held
to be justified where the tipster alleged a dangerous or potentially violent
situation, the alleged crime had just occurred, the suspect would have left
if not detained, and there is no reason to doubt the tipsters veracity.
(People v. Rodgers (2005) 131 Cal.App.4th 1560.)
A late night radio call concerning two specifically described males causing
a disturbance, with one possibly armed, in a known gang area at an
address where a call concerning a daytime shooting days earlier resulted in
the recovery of two firearms, and where the described males are found
within minutes of the call, is sufficient to justify a detention. (In re
Richard G. (2009) 173 Cal.App.4th 1252, 1257-1258.)
Presence of the person about whom the tip relates in a high crime
area.
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Potential accountability may help to corroborate an informants
information as well, such accountability being in the form of:
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enforcement officers observation of what appeared to be a hand-to-hand
drug transaction, justifying a detention of the vehicles occupant. (People
v. Butler (2003) 111 Cal.App.4th 150, 159-162.)
Even though the original source of the information that defendant intended
to shoot the victim was unknown, the tipster himself was known to the
police as was the defendant himself. The information was also
corroborated by other information that defendant had threatened a high
school coach and that the threats were taken seriously by the coaches who
all escorted their families out of the stadium after the game. Further,
defendant was seen by the police outside the stadium where he was
observed attempting to avoid contact with the police. The totality of the
circumstances justified the detention (and even the handcuffing) of the
defendant. (People v. Turner (2013) 219 Cal.App.4th 151, 164-170.)
See also United States v. Edwards (9th Cir. 2014) 761 F.3rd 977, 981-982;
above.
The fact that the physical description of a suspect is very specific, when
reported by an anonymous tipster to have a gun in his pocket, but where
that physical description would be visible to anyone, does not sufficently
corroborate the tipsters information. Absent at least some suspicious
circumstances observed by the responding police officers, finding the
person described by the tipster does not create a reasonable suspicion
justifying a detention or a patdown for weapons. (People v. Jordan
(2004) 121 Cal.App.4th 544, 553-652; the quick confirmation of the
physical description of the defendant and his location, by itself, is legally
insufficient.)
In Illinois v. Gates (1983) 462 U.S. 213 [76 L.Ed.2nd 527], anonymous
information reflecting inside, predictive behavior, corroborated in
numerous respects through a police follow-up investigation, was
determined to constitute probable cause (referred to as a fair
probability) when considering the totality of the circumstances,
justifying the issuance of a search warrant.
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In Prison or Jail:
Minors on Campus:
By School Officials:
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or are engaging, in a proscribed activity (that is, a violation of a
school rule or regulation, or a criminal statute).
Miranda:
People who have been temporarily detained for investigation are generally not in
custody for purposes of Miranda (Miranda v. Arizona (1966) 384 U.S. 436 [16
L.Ed.2nd 694].), at least as a general rule, and do not have to be warned of their
constitutional rights prior to questioning. (People v. Manis (1969) 268
Cal.App.2nd 653, 669; People v. Breault (1990) 223 Cal.App.3rd 125, 135; People
v. Clair (1992) 2 Cal.4th 629, 675.)
But see People v. Pilster (2006) 138 Cal.App.4th 1395, at page 1406,
where it was noted that custody for purposes of Miranda, under the
Fifth Amendment, involves a different analysis than custody for
purposes of a detention or arrest under the Fourth Amendment. In
contrast (to Fourth Amendment, search and seizure issues), Fifth
Amendment Miranda custody claims do not examine the reasonableness
of the officers conduct, but instead examine whether a reasonable person
(in the defendants position) would conclude the restraints used by police
were tantamount to a formal arrest.
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Use of Force:
Rule: A peace officer may use that amount of force that is reasonably necessary
under the circumstances in order to enforce a lawful detention. (In re Tony C.
(1978) 21 Cal.3rd 888, 895; In re Gregory S. (1980) 112 Cal.App.3rd 764, 778.)
Factors:
(See also George v. Morris (9th Cir. 2013) 736 F.3rd 829, 837.)
Refusal to Submit:
Even when the detention is illegal, every person has a legal duty to submit
(Evans v. City of Bakersfield (1994) 22 Cal.App.4th 321.), although
declining to do so is not a violation of P.C. 148 in that a peace officer is
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not acting in the performance of his (or her) duties by unlawfully
detaining someone.
The use of firearms, handcuffs, putting a person into a locked patrol car,
or simply a show of force, may, under the circumstances, cause a court
to later find that an attempted detention was in fact an arrest, and, if made
without probable cause, excessive and illegal. (United States v. Ramos-
Zaragosa (9th Cir. 1975) 516 F.2nd 141, 144; New York v. Quarles (1984)
467 U.S. 649 [81 L.Ed.2nd 550]; handcuffs; Orozco v. Texas (1969) 394
U.S. 324 [22 L.Ed.2nd 311]; force; United States v. Ricardo D. (9th Cir.
1990) 912 F.2nd 337, 340; Detention in a patrol car exceeds permissible
Terry (v. Ohio (1968) 392 U.S. 1 [20 L.Ed.2nd 889].) limits absent some
reasonable justification.
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But there are exceptions: See Detentions vs. Arrests, above.
It was further held that with knowledge that one of the sought-for
suspects had a firearm registered to him, the detainees could be
held at gunpoint until the rest of the house could be checked, even
though the detainees were unclothed at the time. It was not
necessary to allow the detainees to cover up until officers safety
could be assured. (Ibid.)
See also Muehler v. Mena (2005) 544 U.S. 93 [161 L.Ed.2nd 299];
detention of a resident is lawful while evidence in a gang shooting case
looked for, at least if not prolonged.
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puncture the tires of a passing vehicle and cause a gradual release
of air, bringing the vehicle to a halt within a quarter to half a mile.
Deadly Force:
Deadly force (i.e., force likely to cause death or great bodily injury) may
not be used to enforce a detention, unless the officer is attacked and must
defend him or herself against the use of deadly force by the suspect. (See
People v. Ceballos (1974) 12 Cal.3rd 470, 478; Tennessee v. Garner
(1985) 471 U.S. 1, 12-15 [85 L.Ed.2nd 1, 10-12].)
Demanding Identification:
Rule: While it is clear that a person who has been consensually encountered
(see Chapter 2, above) need not identify himself, nor even talk to a police officer
(See Kolender v. Lawson (1983) 461 U.S. 352 [75 L.Ed.2nd 903]; Brown v. Texas
(1979) 443 U.S. 47, 52 [61 L.Ed.2nd 357].), there is nothing improper with a peace
officer demanding that a detained person properly identify himself. (United
States v. Christian (9th Cir. 2004) 356 F.3rd 1103; not discussing whether the
officer can enforce the demand.)
See also People v. Leath (2013) 217 Cal.App.4th 344, 350-353: Merely
requesting identification from a suspect, or even retaining it, absent more
coercive circumstances, does not by itself convert a consensual encounter
into a detention.
Issue: The only issue left hanging by Christian, Vibanco, and the other above
cases, is whether a detained suspect must properly identify himself, or be subject
to arrest for refusing to do so. The Courts seem to hint, however, that he cannot
be forced to identify himself.
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The United States Supreme Court ruled in Hiibel v. Sixth Judicial District
Court of Nevada (2004) 542 U.S. 177 [159 L.Ed.2nd 292], that a person
who is lawfully detained may be charged with a criminal violation for
refusing to identify himself. Such an identification requirement violates
neither the Fourth nor Fifth Amendment (self-incrimination) rights of
the detained person.
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Also decided well before Hiibel was the case of Martinelli
v. City of Beaumont (9th Cir. 1987) 820 F.2nd 1491, which
held that P.C. 148 was not violated by refusing to
identify oneself. However, the Court in this case, which
cited Lawson v. Kolender (9th Cir. 1981) 658 F.2nd 1362
(Cert. granted), as its authority for this conclusion, failed to
differentiate between a consensual encounter and a
detention.
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It still follows, however, that a person who is only subject to a
consensual encounter is not required to identify himself. (See
Kolender v. Lawson (1983) 461 U.S. 352 [75 L.Ed.2nd 903].)
Problem:
Case Authority:
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Whether the subordinate officer was spoken to in a menacing or
threatening manner;
Whether the subordinate officer was under constant surveillance;
Whether superior officers denied a request to contact an attorney or
union representative;
The subordinate officers ability to retain law enforcement
equipment, including weapons and badges;
The duration of the detention; and
The subordinates receipt of overtime pay.
(Aguilera v. Baca (9th Cir. 2007) 510 F.3rd 1161, 1167-1171, citing
Driebel v. City of Milwaukee (7th Cir. 2002) 298 F.3rd 622, 638.)
No seizure when an on-duty Coast Guard officer was ordered to report for
an interview with an intelligence officer. (United States v. Baird (D.C.
Cir. 1988) 851 F.2nd 376, 380-382.)
Note that Greene v. Camreta (9th Cir. 2009) 588 F.3rd 1011, where the
Ninth Circuit Court of Appeal ruled that interviewing a child victim on a
school campus without the parents consent, as a Fourth Amendment
seizure, required a search warrant or other court order, or exigent
circumstances, was overruled by the United States Supreme Court in
Camreta v. Greene (2011) 563 U.S. 692 [179 L.Ed.2nd 1118]. The Ninth
Circuits decision, however, was merely vacated, leaving the issue
undecided.
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Statutory Authority for Seizure of Firearms During Detentions:
Govt. Code 8571.5 provides that a police officer may not seize or confiscate
any firearm or ammunition from an individual who is lawfully carrying or
possessing the firearm or ammunition. However, the officer may temporarily
disarm an individual if the officer reasonably believes it is immediately necessary
for the protection of the officer or another individual. An officer who disarms an
individual is to return the firearm before discharging the individual unless the
officer arrests the individual or seizes the firearm as evidence of the commission
of a crime.
Note: This new section is in the part of the Government Code entitled
the California Emergency Services Act. This section is intended to
prohibit an executive order disarming individuals who are in lawful
possession of firearms during a state of emergency or crisis, and will
conform California law to a new federal law, Public Law 109-295, which
prohibits the confiscation of otherwise legal firearms from law-abiding
citizens during a state of emergency by any agent of the Federal
Government or by anyone receiving federal funds. However, it appears to
be written broad enough to affect a police officers contacts with
individuals on the street.
P.C. 833.5, providing a peace officer the authority to detain for investigation
anyone who the officer has reasonable cause to believe illegally has in his or
her possession a firearm or other deadly weapon.
P.C. 25850(b) (formerly P.C. 12031(e)) gives a peace officer the right to
inspect a firearm carried by any person on his person or in a vehicle on any
public street in an incorporated city or prohibited area of an unincorporated
territory to determine whether a firearm is loaded in violation of subd. (a).
Refusal to allow a peace officer to inspect a firearm is probable cause to arrest the
subject for violating P.C. 25850(a) (formerly P.C. 12031(a)(1)); illegally
carrying a loaded firearm in the listed public places.
Wel. & Inst. Code 8102(a) authorizes the confiscation of firearms or other
deadly weapons owned, possessed, or under the control of a detained or
apprehended mental patient. However, it has been held that a search warrant must
be used in order to lawfully enter the house and/or to search for weapons in those
cases where there are no exigent circumstances and the defendant has not given
consent. (People v. Sweig (2008) 167 Cal.App.4th 1145 (petition granted, see
below); rejecting the Peoples argument that a warrantless entry to search for and
seize the detainees firearms was justified under law enforcements community
caretaking function.)
P.C. 1524(a)(10) provides authority for the obtaining of a search warrant in the
Sweig situation; i.e., when dealing with a person with mental issues under the
Welfare and Institutions Code (see W&I 5150 & 8102(a)).
Once the purpose of the detention is accomplished, the suspect must either
be turned over to and arrested by police, or released.
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Indefinite Detentions Pursuant to Federal Law:
Pen. Code 145.5: Effective since 1/1/2014, the California Legislature has
dictated that California law enforcement will not participate in any manner with
federal indefinite detentions.
State agencies, state employees, and the California National Guard are
prohibited from knowingly aiding an agency of the United States Armed
Forces in an investigation, prosecution, or detention of a person within
California pursuant to the indefinite detention provisions of the National
Defense Authorization Act, the federal law known as the Authorization
for Use of Military Force, or any other federal law if the state agency,
employee, or member of the Guard would violate the U.S. Constitution,
the California Constitution, or any California law by providing aid.
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Chapter 4
Arrests:
Defined: The taking a person into custody, in a case and in the manner
authorized by law. (P.C. 834)
Standard of Proof: Requires Probable Cause: (A) police officer may arrest
without (a) warrant (a person) . . . believed by the officer upon reasonable (or
probable) cause to have been guilty of a felony (or misdemeanor). (Emphasis
added; United States v. Watson (1976) 423 U.S. 411, 417 [46 L.Ed.2nd 598,
605].)
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the other hand, do not mean the same thing, and are not to
be confused.
Reasonable Seizures: The U.S. Supreme Court has noted the general
rule that Fourth Amendment seizures are reasonable only if based on
probable cause to believe that the individual has committed a crime.
[Citation]. The standard of probable cause, with roots that are deep in our
history, [Citation], represent[s] the accumulated wisdom of precedent
and experience as to the minimum justification necessary to make the kind
of intrusion involved in an arrest reasonable under the Fourth
Amendment. [Citation] (Bailey v. United States (Feb 19, 2013) 568
U.S. __, __ [133 S.Ct. 1031, 1037-1043; 185 L.Ed.2nd 19].)
Notes:
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W&I Code 300: Persons subject to jurisdiction
of juvenile court; i.e., child victims.
When Probable Cause Exists: (P)robable cause exists if, under the
totality of the circumstances known to the arresting officers, a prudent
person would have concluded that there was a fair probability that the
individual had committed a crime. (Italics added; United States v.
Hernandez (9th Cir. 2002) 314 F.3rd 430, 434; see also Dunaway v. New
York (1979) 442 U.S. 200, 208, fn. 9; [60 L.Ed.2nd 824]; People v. Scott
(2011) 52 Cal.4th 452, 474.) Various courts have used variations of this
same definition to define probable cause:
Detectives had probable cause to stop and arrest defendant and his
cohorts the officers saw four males running from one street toward
another. The officer observed defendant carrying an object which
could be used as a deadly weapon. The officer also observed
specific behavior that caused him to entertain an honest and strong
suspicion that a crime was being committed. He observed a brick
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in defendants hand, heard a shout of hes over there which he
believed to have come from one of the four males, and witnessed a
gesture from one of the group directing the others where to go.
Viewed collectively, there were clearly facts to suggest the group
intended to use their rudimentary weapons to harm someone. The
officers knowledge that defendant was a member of a street gang
that claimed that particular area reasonably supported this
analysis of the facts. At this point, probable cause existed to arrest
defendant for possession of a deadly weapon with intent to commit
an assault, per P.C. 12024. (In re J.G. (2010) 188 Cal.App.4th
1501.)
Probable cause existed under Nevada law where the arresting agent
knew that defendant (1) admitted to gambling at various casinos
under a different name, (2) admitted to using identification not
issued by a government entity identifying him by that different
name, and (3) possessed and had used a credit card issued in that
different name. (Fayer v. Vaughn (9th Cir. 649 F.3rd 1061, 1064-
1065.)
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Arresting a person in retaliation for the defendant having made
certain statements to the officer accusing the officer of being
racially motivated, even where the officer had probable cause to
make the arrest (but also had the option of releasing him on a
citation), is a First Amendment violation of the defendants
freedom of speech, subjecting the officer to potential civil liability.
(Ford v. City of Yakima (9th Cir. 2013) 706 F.3rd 1188, 1192-
1196.)
W&I 601(a) and 625(a) do not allow for taking a minor into
custody for a single instance of disobedience. The authority to
take a minor into custody, as provided for under section 625(a),
requires that the minor be a person described in section 601.
However, section 601(a) requires that the minor persistently or
habitually refuses to obey his or her parent or custodian, or is
beyond the control of that person. A single instance of
disobedience does not qualify as persistently or habitually, or
being beyond the control. Under these circumstances, the Court
found no legal justification for officers to take an 11-year-old
minor into physical custody at his school and remove him from the
school grounds in handcuffs despite the schools administrators
reporting him as being out of control. (C.B. v. City of Sonora
(9th Cir. 2014) 769 F.3rd 1005, 1031.)
The collective knowledge doctrine does not apply unless (1) the
separate law enforcement agents are working together in an
investigation even though they may not have explicitly
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communicated to the other the facts that each has independently
learned, or (2) unless one officer, with direct personal knowledge
of all the facts necessary to give rise to a reasonable suspicion or
probable cause, directs or requests another officer to conduct a
stop, search, or arrest. Some cases suggest that for the first rule to
apply, there must also have been some communication between the
two agents. (United States v. Villasenor (9th Cir. 2010) 608 F.3rd
467, 475-476.)
Officers had probable cause to arrest both the passenger and the
driver for possession of a billy club seen resting against the
drivers door. (People v. Vermouth (1971) 20 Cal. App. 3d 746,
756.)
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Dissipation of Probable Cause:
Miscellaneous Rules:
The fact that the information available to police officers gave rise
to a variety of inferences, some of which support (the suspects)
innocence, is also irrelevant. (O)fficers may draw on their own
experiences and specialized training to make inferences from and
deductions about the cumulative information available to them that
might well elude an untrained person. (Hart v. Parks, supra, at p.
1067.)
Examples:
Probable cause was found where the defendant was in the presence
of a commercial quantity of drugs while in a vehicle coming over
the International Border from Mexico, defendant was the sole
passenger (other than the driver), there was a strong odor of
gasoline in the vehicle (with the drugs being discovered in the gas
tank), hiding drugs in a vehicles gas tank was known as a
common method used by drug smugglers, and the driver lied about
his immigration status. (United States v. Carranza (9th Cir. 2002)
289 F.3rd 634.)
Conceding that most other circuits have ruled that the mere passing
of a counterfeit note (a $100 bill in this case), when coupled with
an identification of the person who passed the note, furnishes
probable cause to arrest the individual identified as passing the
note (Citations at pg. 970, infra.), the Ninth Circuit declined to
decide the issue, finding that whether or not the arrest was illegal,
the arresting officers were entitled to qualified immunity from civil
liability. (Rodis v. City and County of San Francisco (9th Cir.
2009), 558 F.3rd 964; reversing its prior finding (499 F.3rd 1094.)
that the officers lacked probable cause to make the arrest.)
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Mere propinquity to others independently suspected of criminal
activity . . . does not, without more, give rise to probable cause.
(United States v. Collins (9th Cir. 2005) 427 F.3rd 688, quoting
Ybarra v. Illinois (1979) 444 U.S. 85, 91 [62 L.Ed.2nd 238].)
Probable cause to arrest and prosecute the plaintiff for assault and
elder abuse was found where a police officer found an elderly and
infirm man bleeding profusely from a head wound admittedly
inflicted by the plaintiff who himself was without significant
injuries. Also, the victim and his wife both told the officers at the
scene that plaintiff had attacked him without provocation. The fact
that the reporting officer began a romantic relationship with the
plaintiffs wife after all of the evidence relating to the altercation
had been collected and documented in official reports was
irrelevant. His later misconduct does nothing to undermine the
existence of probable cause that existed at the time of plaintiffs
arrest. (Yousefian v. City of Glendale (9th Cir. 2015) 779 F.3rd
1010, 1014.)
Also, the fact that it was the plaintiff who origionally called
the police to the scene of the altercation, and that he
himself claimed to have been assaulted by the victim, did
not overcome the other evidence establishing probable
cause to believe that plaintiff had attacked the elderly
vicim. (P)robable cause requires only that those facts and
circumstances within the officers knowledge are sufficient
to warrant a prudent person to believe that the suspect has
committed . . . an offense. (Ibid., citing Barry v. Fowler
(9th Cir. 1990) 902 F.2nd 770, 773; and Michigan v.
DeFillippo (1979) 443 U.S. 31, 37 [61 L.Ed.2nd 343].)
Test: Whether or not a person has been arrested, (i.e., seized,), under the
Fourth Amendment, is determined by considering whether, in view of all the
circumstances surrounding the incident, a reasonable person would have believed
that he was not free to leave and/or was about to go to jail. (See In re James D.
(1987) 43 Cal.3rd 903, 913.)
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The standard for determining whether a person is under arrest is not
simply whether a person believes that he is free to leave, see United States
v. Mendenhall, 446 U.S. 544, 554, 64 L.Ed.2nd 497, 100 S. Ct. 1870
(1980), but rather whether a reasonable person would believe that he or
she is being subjected to more than temporary detention occasioned by
border-crossing formalities. United States v. Butler, 249 F.3rd 1094,
1100 (9th Cir. 2001). (United States v. Hernandez (9th Cir. 2002) 314
F.3rd 430, 436; a border arrest and search case.)
See also Yousefian v. City of Glendale (9th Cir. 2015) 779 F.3rd
1010, 1014: The fact that it was the plaintiff who origionally called
the police to the scene of the altercation, and that he himself
claimed to have been assaulted by the victim, did not overcome the
other evidence establishing probable cause to believe that plaintiff
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had attacked the elderly vicim. (P)robable cause requires only
that those facts and circumstances within the officers knowledge
are sufficient to warrant a prudent person to believe that the
suspect has committed . . . an offense. (Citing Barry v. Fowler
(9th Cir. 1990) 902 F.2nd 770, 773; and Michigan v. DeFillippo
(1979) 443 U.S. 31, 37 [61 L.Ed.2nd 343].)
However, police may not use probable cause for a traffic violation
to justify an arrest for an unrelated offense where, under the facts
known to police, they have no probable cause supporting the
unrelated offense. (People v. Espino (2016) 247 Cal.App.4th 746,
765; ruling that just because officers could have arrested defendant
for speeding, doesnt mean that that fact justifies an arrest for some
other bookable (i.e., a felony) offense for which there was no
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probable cause. Consent to search obtained without probable
cause to justify the arrest for a felony was held to be invalid.)
Because defendant had not been extradited, his argument that his
removal from Panama to the United States was not in compliance
with the Extradition Treaty, U.S.-Pan., May 25, 1904, 34 Stat.
2851 failed. Moreover, the treaty did not prohibit the use of means
besides extradition to obtain a defendant's presence in the United
States. The Government had not engaged in shocking and
outrageous conduct so as to warrant dismissal of the criminal case
against him. The lies that an embassy official told Panamanian
officials came after Panama had already decided to cooperate in
returning defendant to the United States. Moreover, defendant was
deported after his passport was revoked. The trial court properly
denied dismissal based on its supervisory powers. There was no
evidence that defendants right to counsel was violated, and he had
not developed his argument that international law was violated.
Finally, even assuming the indictment process was deficient for its
reliance on unlawfully obtained evidence, that deficiency was
cured when defendant was convicted by a jury after a trial that
excluded all of the suppressed evidence. (United States v.
Struckman (9th Cir. 2010) 611 F.3rd 560, 569-575.)
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unlawful and because no reasonable officer would have believed so, the
officer was not entitled to qualified immunity.)
P.C. 834: The arrested person must be taken into custody in a case and
in the manner authorized by law.
P.C. 835: The arrest may be made by actual restraint of the person or
the arrested persons submission to authority.
P.C. 834, 836: A peace officer may make an arrest under the
following circumstances:
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requirement having been eliminated as of 1/1/2013. (P.C.
273.5(j) & 836(b))
P.C. 834, 837: A private person may make an arrest under the
following circumstances:
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A police dispatcher, being subjected to defendants numerous
harassing telephone calls, may delegate to a police officer the
responsibility to arrest the defendant for her. The offense, over the
phone, was held to be in her presence. The arrest was timely in
that officers responded immediately to where defendant was
calling from and took him into custody. The arrest was held to be
a lawful citizens arrest. (People v. Bloom (2010) 185 Cal.App.4th
1496.)
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potential federal civil liability. (Hopkins v. Bonvicino (9th
Cir. 2009) 573 F.3rd 752, 774-776.)
P.C. 852.2: Any peace officer of another State, who enters this
State in fresh pursuit, and continues within this State in fresh
pursuit, of a person in order to arrest him on the ground that he has
committed a felony in the other State, has the same authority to
arrest and hold the person in custody, as peace officers of this State
have to arrest and hold a person in custody on the ground that he
has committed a felony in this State.
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P.C. 852.3: The arresting officer is then to take the arrestee
immediately before a magistrate of the county in which the
arrest is made. The magistrate is to determine whether the person
had been lawfully arrested. If so, the arrestee is to be held for
extradition. If not, he is to be discharge(d).
Federal Officers:
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written consent of the sheriff or the chief of police in whose
jurisdiction they are assigned.
The San Ysidro Port of Entry, in San Diego, is state land and not
federal, although the attached facilities belong to the federal
government. A federal Immigration and Naturalization Agent at
that location may therefore lawfully make a citizens arrest for a
state criminal violation (e.g., driving while under the influence)
and turn him over to state and local law enforcement officers.
(People v. Crusilla (1999) 77 Cal.App.4th 141.)
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Where a federal officer arrested an obviously intoxicated driver
just outside a federal enclave and beyond the officers territorial
jurisdiction after a lawful traffic stop, the Fourth Amendment
does not require the exclusion of the evidence obtained in a search
incident to the arrest because the arrest was supported by probable
cause. Therefore, it was not an unreasonable seizure within the
meaning of the Fourth Amendment despite the lack of any
statutory authority for making the arrest. (United States v. Ryan
(1st Cir. 2013) 731 F.3rd 66.)
Not being agents of the state, bounty hunters are not restricted by
the usual constitutional constraints that apply to law enforcement.
(See People v. Johnson (1947) 153 Cal.App.2nd 870, 873; Landry
v. A-Able Bonding, Inc. (5th Cir. 1996) 75 F.3rd 200, 203-205;
United States v. Rhodes (9th Cir. 1983) 731 F.2nd 463, 467.)
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Other provisions provide for the arrest of a bail jumper by the
bounty hunter when the bounty hunters authority is in writing
upon a certified copy of either the undertaking of bail or the
certificate of a bail deposited with the court. (P.C. 1300, 1301)
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condition whereby apprehension and
reincarceration are permitted.
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authorized by P.C. 1299.02 to apprehend a bail
fugitive.
Arrest Options: A peace officer has five options when he or she makes an arrest
pursuant to P.C. 836 or takes custody of a prisoner from a private person,
arrested pursuant to P.C. 837:
Release Without Charges: If, after a subject has been arrested, the officer
feels that based upon additional information collected, the arrest is not
justified (i.e., there is insufficient probable cause), he or she may
unconditionally release the prisoner pursuant to authority described in
P.C. 849(b)(1).
If, when arrested by a private person, the person changes his or her
mind about wanting to arrest the subject, the prisoner may simply
be released without any further action.
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Misdemeanor arrestees are, as a general rule, to be cited and
released unless one of the exceptions listed in P.C. 853.6(i)
applies. (P.C. 853.6(a))
Booking into Jail: When one or more of the circumstances listed in P.C.
853.6(i) does exist, and the subject is otherwise lawfully arrested (e.g., a
felony arrest, or a misdemeanor in the officer or private persons presence
which is not stale.), the arrested person may be subjected to a custodial
arrest and transported to county jail for booking.
P.C. 853.5 has been held to provide the exclusive grounds for a
custodial arrest for an infraction, and that 853.6 applies to
misdemeanors only. (Edgerly v. City and County of San
Francisco (9th Cir. 2013) 713 F.3rd 976, 981-985; citing In re
Rottanak K. (1995) 37 Cal.App.4th 260, and People v. Williams
(1992) 3 Cal.App.4th 1100.)
See also P.C. 853.5 and V.C. 40300.5, 40302, 40303, 40304,
and 40305 (below), for conditions under which persons arrested for
certain infractions or misdemeanors may be taken immediately
before a magistrate.
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Exception: Warrantless arrests in a persons home. (See below)
See also V.C. 40301: When probable cause exists to believe that
a particular person has violated a Vehicle Code felony, the subject
shall be dealt with in like manner as upon arrest for the
commission of any other felony, according to the general
provisions of the Penal Code on felony arrests. (See People v.
Superior Court (Simon) (1972) 7 Cal.3rd 186, 199.)
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2. Driving While Under the Influence of Alcohol
and/or Drugs, when any of the following
circumstances exist (V.C. 40300.5):
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The old California rule of requiring a valid
arrest, even of an unconscious suspect, prior
to the extraction of a blood sample (See
People v. Superior Court [Hawkins] (1972)
6 Cal.3rd 757, 762.), was abrogated by
passage of Proposition 8, in 1982. Now, so
long as probable cause exists to believe that
the defendant was driving while intoxicated,
a formal arrest is not a prerequisite to a
warrantless seizure of a blood sample.
(People v. Trotman (1989) 214 Cal.App.3rd
430, 435; People v. Deltoro (1989) 214
Cal.App.3rd 1417, 1422, 1425.)
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No hard and fast rule can, however, be laid down which
will fit every case respecting what constitutes a reasonable
time. What may be so in one case under particular
circumstances may not be so in another case under different
circumstances. All that can be affirmed with safety is that
the officer must act promptly in making the arrest, and as
soon as possible under the circumstances, and before he
transacts other business. . . . . (W)e hold that in order to
justify an arrest without warrant the arrestor must proceed
as soon as may be to make the arrest. And if instead of
doing that he goes about other matters unconnected with
the arrest, the right to make the arrest without a warrant
ceases, and in order to make a valid arrest he must then
obtain a warrant therefor (sic). (Oleson v. Pincock (1926)
68 Utah 507, 515-516 [251 P. 23, 26].)
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The violation of a state statute, standing alone, does not
form the basis for suppression under the Fourth
Amendment. (People v. Hardacre (2004) 116
Cal.App.4th 1292, 1301; United States v. Miranda-
Guerena (9th Cir. 2006) 445 F.3rd 1233.)
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Because the section is written in the disjunctive, it is the
opinion of the State Attorney General that if the person
does not have satisfactory evidence of identification, the
officer has the discretion to take the person into physical
custody despite the fact that the person is willing to sign a
written promise to appear and to provide a thumbprint.
(2005, Opn.Cal.Atty.Gen., #05-206)
See United States v. Mota (9th Cir. 1993) 982 F.2nd 1384,
where it was held that a physical arrest of a person
committing a business license infraction was a
constitutional violation requiring the suppression of
evidence: Questionable authority after Virginia v. Moore
(2008) 553 U.S. 164 [170 L.Ed.2nd 559], holding that
booking a suspect for a non-bookable criminal violation is
not a Fourth Amendment violation. (See Sanctions for
Violations, above.)
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Is charged with violating V.C. 23152 (i.e., driving while
under the influence.).
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V.C. 40303; Arrestable Offenses: This section lists 17 different
circumstances in which an arresting officer has the option of either
taking a person without unnecessary delay before a magistrate,
or releasing the person with a 10-days written notice to appear:
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form) and released unless one of the following statutory
exceptions applies:
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The misdemeanor cited in the warrant involves
giving false information to a peace officer.
The person arrested is a danger to himself or herself
or others due to intoxication or being under the
influence of drugs or narcotics.
The person requires medical examination or
medical care or was otherwise unable to care for his
or her own safety.
The person has other ineligible charged pending
against him or her.
There is reasonable likelihood that the offense or
offenses would continue to resume, or that the
safety of persons or property would be immediately
endangered by the release of the person.
The person refuses to sign the notice to appear.
The person cannot provide satisfactory evidence of
personal identification.
The warrant of arrest indicates that the person is not
eligible to be released on a citation.
Arrest Warrants:
A warrant will issue if, and only if, the magistrate is satisfied from the
complaint that the offense complained of has been committed and that
there is reasonable ground to believe that the defendant has committed it, .
. . . (Emphasis added; P.C. 813(a))
Content: An arrest warrant is directed to any peace officer, or any public officer
or employee authorized to serve process where the warrant is for a violation of a
statute or ordinance which such person has the duty to enforce (Emphasis
added), and states the following (P.C. 816):
Case Law:
In a case of mistaken identity, the county did not violate the Fourth
Amendment by issuing a warrant without including a number
corresponding to the true subjects fingerprints in that the warrant satisfied
the particularity requirement as it contained both the subjects name and a
detailed physical description. Even if the Fourth Amendment does
require the county to include more detailed information in a warrant, the
plaintiff failed to show that the county had a policy or custom of failing to
do so. Also, the sheriffs deputies were not unreasonable in believing that
the plaintiff was the subject of the warrant at the time of arrest given the
name and date of birth on the warrant matched the plaintiffs, and the
height and weight descriptors associated with the warrant were within one
inch and 10 pounds of the plaintiffs true size. (Rivera v. County of Los
Angeles (2014) 745 F.3rd 384, 388-389.)
The Rivera Court also found that the mistaken incarceration did
not violate defendants Fourteenth Amendment due process
rights absent evidence showing that the civil defendants should
have known the plaintiff was entitled to release because: (1) the
circumstances indicated to the defendants that further investigation
was warranted, or (2) the defendants denied the plaintiff access to
the courts for an extended period of time. Neither circumstance
applied in this case. (Id., at pp. 389-392.)
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A detention pursuant to a valid warrant but in the face of repeated protests
of innocence may, after the lapse of a certain amount of time, be held to
have deprived the accused of his liberty without due process of law, a
Fifth or Fourteenth Amendment violation. A wrongful detention can
ripen into a due process violation, but it is the plaintiffs burden to show
that it was or should have been known [by the defendant] that the
[plaintiff] was entitled to release. (Gant v. County of Los Angeles (9th
Cir. 2014) 772 F.3rd 608, 619-623.)
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Ramey Warrant: A term of art used to describe an arrest warrant issued
prior to the court filing of a criminal case against a specific defendant.
(See People v. Ramey (1976) 16 Cal.3rd 263.)
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Also, an officer employed by the supervising county
agency may seek a warrant and a court or its designated
hearing officer appointed pursuant to Govt. Code
71622.5 shall have the authority to issue a warrant for that
persons arrest.
Subd. (2): The court or its designated hearing officer has the
authority to issue a warrant for any person who is the subject of a
petition filed under this section who has failed to appear for a
hearing on the petition or for any reason in the interest of justice,
or to remand to custody a person who does appear at a hearing on
the petition for any reason in the interest of justice.
Warrantless arrests, at least at any location other than within ones private
home or other area to which the public does not have ready access (see
below), have been held by the United States Supreme Court to be lawful,
at least when the offense is a felony (whether or not it occurred in the
officers presence), or for any offense (felony or misdemeanor) which
occurs in the officers presence (see below). (United States v. Watson
(1976) 423 U.S. 411 [46 L.Ed.2nd 598].)
Armed police officers surrounding defendants home and then ordering him
out via a public address system is in effect an arrest within the home, and
absent a warrant or exigent circumstances, is illegal. The fact that defendant
had just fled into his home, avoiding being arrested on his front porch for a
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misdemeanor, was held not to be an exigent circumstance. (United States v.
Nora (9th Cir. 2014) 765 F.3rd 1049, 1052-1060.)
See United States v. Mallory (3rd Cir. 2014) 765 F.3rd 373, for the
exact opposite conclusion on the lawfulness of entering a residence
in hot pursuit under the exact same circumstances, although the
firearm should have been suppressed as a product of an unlawful
warrantless search after the residence was secured.
But see Steagald v. United States (1981) 451 U.S. 204 [68
L.Ed.2nd 38], below, mandating a search warrant to execute an
arrest warrant in a third partys home.
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However, if requested, the arrestee shall be shown a copy of the
warrant as soon as it is practicable to do so. (P.C. 842)
Knock and Notice: The knock and notice rules (see Search Warrants,
below) apply as well to the execution of an arrest warrant, and for
warrantless arrests within a residence. (P.C. 844.)
However, see United States v. Weaver (D.C. Cir. 2015) 808 F.3rd
26, where the D.C. Court of Appeal rejected the applicability of
Hudson v. Michigan, supra, in an arrest warrant service situation,
and held that federal agents violated the knock-and-announce rule
by failing to announce their purpose before entering defendants
apartment. By knocking but failing to announce their purpose, the
agents gave defendant no opportunity to protect the privacy of his
home. The exclusionary rule was the appropriate remedy for
knock-and-announce violations in the execution of arrest warrants
at a persons home.
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Out-of-County Arrest Warrants: If the defendant is
arrested in another county on either a felony (P.C. 821)
or a misdemeanor (P.C. 822) warrant, the officer must,
without unnecessary delay:
It is not disputed that until the point of Buie's arrest the police had
the right, based on the authority of the arrest warrant, to search
anywhere in the house that Buie might have been found, . . .
(Maryland v. Buie (1990) 494 U.S. 325, 330 [108 L.Ed.2nd 276,
283].)
Noting that five other federal circuits have ruled that something
less than probable cause is required, and that the Ninth Circuit is a
minority opinion (see United States v. Gorman, supra.), the Fourth
District Court of Appeal (Div. 2) found instead that an officer
executing an arrest warrant or conducting a probation or parole
search may enter a dwelling if he or she has only a reasonable
belief, falling short of probable cause to believe, the suspect both
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lives there and is present at the time. Employing that standard, the
entry into defendants apartment to conduct a probation search was
lawful based on all of the information known to the officers.
Accordingly, the court upheld the trial courts conclusion that the
officers had objectively reasonable grounds to conclude the
defendant/probationer lived at the subject apartment, and therefore
the officers had the right to enter the apartment to conduct a
warrantless probation search. (People v. Downey (2011) 198
Cal.App.4th 652, 657-662.)
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residence. (United States v. Bohannon (2nd Cir. 2016) 824 F.3rd
242.)
Civil Liability:
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Effect of an Arrest Warrant on the Exclusion of Evidence after an Illegal
Detention:
The fact that the defendant had an outstanding arrest warrant may,
depending upon the circumstances, be sufficient of an intervening
circumstance to allow for the admissibility of the evidence seized incident
to arrest despite the fact that the original detention was illegal. (People v.
Brendlin (2008) 45 Cal.4th 262, an illegal traffic stop; and Utah v. Strieff
(June 20, 2016) __ U.S. __, __ [136 S.Ct. 2056, 2060-2064; 195 L.Ed.2nd
400], an illegal detention.)
Arresting a subject with the good faith belief that there was an outstanding
arrest warrant, only to discover after the fact that the arrest warrant had
been recalled, does not require the suppression of any resulting evidence
where the mistake is the result of negligence only, and was not reckless or
deliberate. (Herring v. United States (2009) 555 U.S. 135 [172 L.Ed.2nd
496].)
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If officers making an arrest have probable cause to arrest him and the
arrest is otherwise lawful (e.g., in public), then it is irrelevant whether the
arrest warrant is invalid. (United States v. Jennings (9th Cir. 2008) 515
F.3rd 980, 985.)
Statutory Limitations:
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Exception #1: Cannot make a warrantless arrest within the
subjects own home (People v. Ramey. Supra: Payton v.
New York, supra.), or the home of another person
(Steagald v. New York, supra, and below.), absent an
exception.
Penal Code 964: Victim and Witness Confidential Information: Requires the
establishment of procedures to protect the confidentiality of confidential
personal information of victims and witnesses. The section is directed primarily
at prosecutors and the courts, but also contains a provision for documents filed by
law enforcement with a court in support of search and arrest warrants; i.e., an
affidavit.
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Fresh or Hot Pursuit, or at the end of a substantially continuous
investigation: A continuous investigation from crime to arrest of
the subject in his home, within a limited time period (e.g., within
hours), and without an opportunity to stop and obtain an arrest
warrant, is fresh pursuit. It is not necessary that the suspect be
physically in view during the pursuit. (People v. Escudero
(1979) 23 Cal.3rd 800, 809-810; In re Lavoyne M. (1990) 221
Cal.App.3rd 154; People v. Gilbert (1965) 63 Cal.2nd 690; United
States v. Johnson (9th Cir. 2000) 207 F.3rd 538.)
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The entry and securing of a home pending the obtaining of
a search warrant, immediately following a gang shooting,
was justified when it was believed that a second shooter
and the firearms used were likely in the house. (In re
Elizabeth G. (2001) 88 Cal.App.4th 496.)
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The officers used a public address system to order
defendant out of the house. This, the Court ruled,
was in effect an arrest within his house although the
officers did not enter the house. (Id., at p. 1054.)
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(People v. Williams (1989) 48 Cal.3rd 1112, 1138-
1139.)
See United States v. Brobst (9th Cir. 2009) 558 F.3rd 982,
997; and People v. McCarter (1981) 117 Cal.App.3rd 894,
908; both cases with officers inside executing search
warrants.
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exposes him to a public place, and the privacy interests
protected by Payton are not violated.)
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Also, calling inside the residence through a partially
open door, commanding any occupants to show
themselves, and then ordering defendant to back out
of the residence when he did show himself, was
held to be an illegal detention effected inside the
residence in that the warrantless intrusion into the
residence was not supported by probable cause.
(People v. Lujano (2014) 229 Cal.App.4th 175, 185-
189.)
Other authority, most notably from the federal Ninth Circuit Court
of Appeal, indicates that a full measure of probable cause is
required. (See Dorman v. United States (D.C. Cir. 1970) 435
F.2nd 385, 393; see also United States v. Phillips (9th Cir. 1974)
497 F.2nd 1131; a locked commercial establishment, at night;
United States v. Gorman (9th Cir. 2002) 314 F.3rd 1105; defendant
in his girlfriends house with whom he was living; and United
States v. Diaz (9th Cir. 2007) 491 F.3rd 1074; and United States v.
Gooch (9th Cir. 2007) 506 F.3rd 1156, 1159, fn. 2.)
Noting that five other federal circuits have ruled that something
less than probable cause is required, and that the Ninth Circuit is a
minority opinion (see United States v. Gorman, supra.), the Fourth
District Court of Appeal (Div. 2) found instead that an officer
executing an arrest warrant or conducting a probation or parole
search may enter a dwelling if he or she has only a reasonable
belief, falling short of probable cause to believe, the suspect lives
there and is present at the time. Employing that standard, the entry
into defendants apartment to conduct a probation search was
lawful based on all of the information known to the officers.
Accordingly, the court upheld the trial courts conclusion that the
officers had objectively reasonable grounds to conclude the
defendant/probationer lived at the subject apartment and was
present at the time, and therefore the officers had the right to enter
the apartment to conduct a warrantless probation search. (People
v. Downey (2011) 198 Cal.App.4th 652, 657-662.)
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Also noting that the California Supreme Court, in People v.
Jacobs, supra (pg. 479, fn. 4), did not find that probable
cause was required, contrary to popular belief. (Id., at p.
662.)
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A frequent visitor, with free reign of the house despite the fact that
he did not stay overnight, might also have standing to contest an
allegedly illegal entry of a third persons home. (People v. Stewart
(2003) 113 Cal.App.4th 242.)
However, see United States v. Weaver (D.C. Cir. 2015) 808 F.3rd 26,
where a divided panel of the D.C. Court of Appeal rejected the
applicability of Hudson v. Michigan, supra, in an arrest warrant service
situation, and held that federal agents violated the knock-and-announce
rule by failing to announce their purpose before entering defendants
apartment. By knocking but failing to announce their purpose, the agents
gave defendant no opportunity to protect the privacy of his home. Per this
court, the exclusionary rule is the appropriate remedy for knock-and-
announce violations in the execution of arrest warrants at a persons home,
Hudson v. Michigan not being applicable to the arrest warrant situation.
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Arrest Issues:
As long as, when arrested, probable cause to arrest for some offense was
present, it is irrelevant that defendant was arrested for the wrong offense.
(People v. Lewis (1980) 109 Cal.App.3rd 599, 608-609; In re Donald L.
(1978) 81 Cal.App.3rd 770, 775; see also People v. Richardson (2008) 43
Cal.4th 959, 988-990; and People v. Carmona (2011) 195 Cal.App.4th
1385, 1391.) No sanctions will be imposed for having selected the wrong
charge.
(A)n officers reliance on the wrong statute does not render his
actions unlawful if there is a right statute that applies to the
defendants conduct. (In re Justin K. (2002) 98 Cal.App.4th 695;
Stopping defendant for his third (rear window) brake light out
despite not knowing the correct legal justification for finding that
the inoperable light was in violation of the Vehicle Code.)
The United States Supreme Court has ruled that so long as a police officer
has probable cause to arrest for some offense, it matters not that,
subjectively, the officer erroneously believed that he only had probable
cause for another offense. (Devenpeck v. Alford (2004) 543 U.S. 146
[160 L.Ed.2nd 537]; rejecting the Ninth Circuit Court of Appeals opinion
that arresting for the wrong offense was only lawful if the two offenses
were closely (or factually) related, as described in Gasho v. United
States (9th Cir. 1994) 39 F.3rd 1420, 1428; and Alford v. Haner (9th Cir.
2003) 333 F.3rd 972; petition granted.)
The Ninth Circuit was virtually alone on this issue, with other
federal circuits following the same rule as California. (See United
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States v. Pulvano (5th Cir. 1980) 629 F.2nd 1151; United States v.
Saunders (5th Cir. 1973) 476 F.2nd 5; Klingler v. United States (8th
Cir. 1969) 409 F.2nd 299; United States ex rel LaBelle v. LaVallee
(2nd Cir. 1975) 517 F.2nd 750; Richardson v. Bonds (7th Cir. 1988)
860 F.2nd 1427; Knight v. Jacobson (11th Cir. 2002) 300 F.3rd
1272.)
However; an arrest for what the officer believes to be a felony, and which
did not occur in the officers presence, but which is in fact only a
misdemeanor, may be an illegal arrest, per P.C. 836(a)(1) (i.e.,
misdemeanor not in the officers presence.), and/or the stale
misdemeanor rule (see above).
The Rule: The United States Supreme Court initially held that an officers
good faith will validate the resulting arrest and/or search, at least in
those cases where the erroneous information came from a court source.
(Arizona v. Evans (1995) 514 U.S. 1 [131 L.Ed.2nd 34]; see also People v.
Downing (1995) 33 Cal.App.4th 1641.)
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The Reasoning: This is because the Exclusionary Rule was
implemented primarily to deter intentional or reckless police misconduct;
not misconduct by the courts or other non-law enforcement sources, or
even law enforcement when their error was simply non-reoccurring
negligence. It is not necessary to suppress the resulting evidence when to
do so does not further the purposes of the Exclusionary Rule. (Arizona v.
Evans, supra. At pp. 15-16 [131 L.Ed.2nd at pp. 47-48]; United States v.
Leon (1984) 468 U.S. 897, 920-921 [82 L.Ed.2nd 677, 697]; People v.
Willis (2002) 28 Cal.4th 22; People v. Tellez (1982) 128 Cal.App.3rd 876,
880; Illinois v. Krull (1987) 480 U.S. 340 [94 L.Ed.2nd 364].)
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Fourth Wavier. The resulting warrantless search was held
to be illegal. (People v. Willis (2002) 28 Cal.4th 22.)
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The alleged unconstitutionality of a statute, the
violation for which serves as the basis for a search
warrant, is irrelevant so long as officers reasonably
relied upon the statutes validity at the time of the
obtaining of the search warrant. (United States v.
Meek (9th Cir. 2004) 366 F.3rd 705, 714.)
Minors:
Before Ian C., it was held that a curfew violation did not justify
the transportation of a minor to a police station for interrogation,
such a custodial arrest not being one of the alternatives allowed
under the Welfare and Institutions Code, referring to W&I 601,
626, 626 and 626.5. The Court further held that such a
transportation, as an illegal arrest, was also a violation of the
Fourth Amendment. (In re Justin B. (1999) 69 Cal.App.4th 879.)
Truancy Violations:
The Issue: The Americans with Disabilities Act has been held by some
authorities (including the Ninth Circuit Court of Appeal) to apply to arrests,
creating the potential for civil liability should law enforcement violate the Act in
making an arrest. (Sheehan v. City & County of San Francisco (9th Cir. 2014)
743 F.3rd 1211, 1231-1233; certiorari granted.)
The U.S. Supreme Court, after granting certiorari in this case, dismissed
this issue as improvidently granted in that the parties changed the issue
from whether or not the ADA applies to arrests to whether a mentally ill
person being arrested qualified in the first place for the protections of the
Act, without this later issue being properly raised and debated below.
(City & County of San Francisco v. Sheehan (May 18, 2015) __ U.S.__
[135 S.Ct. 1765; 191 L.Ed.2nd 856].) So the issue was left undecided.
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Title II of the ADA provides that no qualified individual with a disability shall,
by reason of such disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public entity, or be subjected
to discrimination by any such entity. (42 U.S.C. 12132)
P.C. 841: Information to be Provided: The person making the arrest must
inform the person being arrested of the following:
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Exceptions: There is no need to comply with the above when:
The person making the arrest has reasonable cause to believe that the
person to be arrested is actually engaged in the commission of, or an
attempt to commit, an offense (See People v. Darnell (1951) 107
Cal.App.2nd 541 545; People v. Thomas (1957) 156 Cal.App.2nd 117, 130;
People v. Valenzuela (1959) 171 Cal.App.2nd 331, 333.); or
Advisal to Arrestee/Detainee: Upon the arrest and booking or detention for more
than two (2) hours of a known or suspected foreign national, the arrestee/detainee
shall be advised without delay that he or she has a right to communicate with an
official from the consulate of his or her native country. If the arrestee/detainee
chooses to exercise that right, the peace officer shall notify the pertinent official in
his or her agency or department of the arrest or detention and that the foreign
national wants his or her consulate notified. (People v. Enraca (2012) 53 Cal.4th
735, 756-758; People v. Mendoza (2007) 42 Cal.4th 686, 709.)
The United States Supreme Court, until recently (see below), declined to
decide whether a foreign national who had not been advised of his rights
under the Vienna Convention had an enforceable right in U.S. courts.
(Sanchez-Llamas v. Oregon (2006) 548 U.S. 331, 343 [165 L.Ed.2nd 557];
assuming for the sake of argument that they did, while specifically
declining to decide the issue. Four dissenting opinions would have held
that the defendants had a right to raise these issues. (At pp. 369-378.)
Note: Although Mexico is one of the 170 (which includes the United
States) countries that signed the Convention, it is not one of the countries
listed that must be automatically notified of the arrest, booking or
detention of a foreign national.
Sanctions for Violations: It has been generally accepted that a violation of the
provisions of the Vienna Convention and, presumably, this statute, will not result
in the suppression of any evidence. (United States v. Lombera-Camorlinga (9th
Cir. 2000) 206 F.3rd 882; People v. Corona (2001) 89 Cal.App.4th 1426; United
States v. Rodriguez-Preciado (9th Cir. 2005) 399 F.3rd 1118, 1130.)
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The United States Supreme Court, until recently, has rejected appeals on
this issue on procedural grounds, declining to decide this issue on its
merits. (See Breard v. Greene (1998) 523 U.S. 371 [140 L.Ed.2nd 529].)
The Court in Medellin v. Dretke did not dismiss the writ out of a
lack of interest, however, but rather because the defendant initiated
new proceedings in the Texas courts, based upon the ICJs latest
pronouncement (Mexico v. United States of America [Avena],
supra.) and an executive order issued by President Bush for
American courts to review violations of the Vienna Convention
(see International Herald Tribune (3/4/05)), that might well
resolve the issues.
Even so, four U.S. Supreme Court justices dissented, noting that
(n)oncompliance with our treaty obligations is especially
worrisome in capital cases, and that the defendant in this case had
raised some debatable issues that suggest the very real
possibility of his victory in state court. (Medellin v. Dretke,
supra.)
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Both the U.S. and the California Supreme Courts have noted that
neither Avena nor the Presidents Memorandum constitutes
directly enforceable federal law binding on state courts. (People
v. Maciel (2013) 57 Cal.4th 482, 505; see also In re Martinez
(2009) 46 Cal.4th 945, 949-950; and citing Medellin v. Texas
(2008) 552 U.S. 491 [170 L.Ed.2nd 190].)
The United States Supreme Court finally ruled on the issues of (1) the
proper remedy for an Article 36 violation and (2) whether failing to raise
the issue at the trial court level precluded the raising of the issue post-
conviction. (Sanchez-Llamas v. Oregon (2006) 548 U.S. 331 [165
L.Ed.2nd 557] (joined with Bustillo v. Johnson (#05-51), a case from the
Virginia Supreme Court). In these two cases, the Court held that a
violation of the Vienna Convention does not warrant the suppression of
evidence, including a defendants statements. The Court also held (in the
Bustillo v. Johnson portion of the decision) that failing to raise the issue
in the state courts will preclude, procedurally, the defendant from
litigating the issue by way of a federal writ of habeas corpus.
The Vienna Convention does not provide a foreign national any rights
that are enforceable in a 42 U.S.C. 1983 civil rights suit against law
enforcement for violating the persons rights provided for under the
Convention. (Cornejo v. County of San Diego (9th Cir. 2007) 504 F.3rd
853.)
In November, 2006, the Texas appellate court refused to comply with the
presidents command to provide defendants whose Vienna Convention
rights were violated with a hearing on the issue, deciding that it would not
allow Jose Ernesto Medellin to file a second habeas petition seeking relief.
(Medellin v. Texas, 06-984.)
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The United States Supreme Court upheld Texas on this issue,
finding that the terms of the Vienna Convention are not self-
executing, did not have the force of domestic law, and were not
binding on U.S. Courts. The Court also held that the President had
no authority to dictate the procedures to be used in state court and
therefore could not legally order state courts to give prisoners
hearings on this issue. (Medellin v. Texas (2008) 552 U.S. 491
[170 L.Ed.2nd 190].)
The California Supreme Court has held that even assuming a defendant is
not advised of his consular rights in violation of the Vienna Convention,
relief will not be granted absent a showing of prejudice. (People v.
Mendoza (2007) 42 Cal.4th 686, 709-711.)
Failing to advise an arrested Filipino murder suspect of his right to have his
consulate notified of his arrest does not, by itself, render a confession
inadmissible. (People v. Enraca (2012) 53 Cal.4th 735, 756-758.)
Using the same reasoning, defendants claim under the United States
bilateral consular convention with the Philippines also failed. (Id, at
p. 758.)
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Miranda:
Rule: Any person who is arrested, or who is subjected to a contact with law
enforcement which has the formal attributes of an arrest, and is questioned, must
first be advised of, acknowledge his understanding of, and freely and voluntarily
waive, his Fifth Amendment right against self-incrimination, pursuant to
Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2nd 694]: See Miranda and
the Law, Second Edition, published in 2017.
The Fifth Amendment right does not protect a suspect from being
compelled by the State to produce real or physical evidence.
(Pennsylvania v. Muniz (1990) 496 U.S. 582, 589 [110 L.Ed.2nd 528]; see
also Schmerber v. California (1966) 384 U.S. 757, 766 [16 L.Ed.2nd 908,
917]; People v. Elizalde et al. (2015) 61 Cal.4th 523, 532; People v.
Sudduth (1966) 65 Cal.2nd 543, 546; blood or breath in a DUI case.)
Minors & W&I 625(c): In any case where a minor (person under the age of 18)
is taken into temporary custody with probable cause to believe he or she is in
violation of W&I 601 or 602 (i.e., delinquent or status offender), or that he or
she has violated an order of the juvenile court or escaped from any commitment
ordered by the juvenile court, the officer shall advise such minor that anything he
says can be used against him or her, and shall advise the minor of his or her
constitutional rights including the right to remain silent, the right to have counsel
present during any interrogation, and the right to have appointed counsel if he or
she is unable to afford counsel.
Note: The statute does not require that this admonishment be made
immediately upon arrest, and in fact, does not specify when
between the arrest and the minors release such admonishment
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must be performed, so long as done before the initiation of any
custodial interrogation .
Also, when a minor taken before a probation officer pursuant to W&I 626
(Alternative Dispositions for Minors in Temporary Custody When Juvenile
Court Proceedings are not Required), and it is alleged that the minor is a
person described in W&I 601 (Status Offender) or 602 (Delinquent), the
probation officer shall immediately advise the minor and his parent or
guardian of rights equivalent to those provided in the Miranda decision.
(W&I 627.5)
While the section does not specify when an attorney, at the request
of the prisoner or a relative, should be allowed to see the prisoner,
it is suggested the request be honored as soon as is practical. The
courts tend to be critical of any purposeful delay in allowing an in-
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custody suspect to consult with his attorney. (See People v.
Stroble (1951) 36 Cal.2nd 615, 625-626; The conduct of the
officers (refusing to allow defendants attorney access to him while
officers obtained a confession) . . . was patently illegal.)
It was not an abuse of discretion for the trial court judge to order
that confidential attorney-client contact visits be allowed at the
county jail absent circumstances justifying a suspension of such
visits in individual cases. In this case, there was substantial
evidence that the partitioned rooms limited or prevented an inmate
from privately confiding facts that might incriminate or embarrass
the inmate and create an impermissible chilling effect on the Sixth
Amendment constitutional right to counsel. There was also
evidence that additional locks, cameras, and training could address
the countys security concerns. Lastly, the record showed that the
jail allowed ministers and teachers to meet with inmates in non-
partitioned rooms, indicating that the jails restrictions for visits by
counsel were an exaggerated response the countys legitimate
security concerns (County of Nevada v. Superior Court (2015)
236 Cal.App.4th 1001, 1007-1011.)
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An attorney of the arrestees choice, public defender, or
other attorney assigned to assist indigents (which may not
be monitored).
A bail bondsman.
A relative or other person.
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Case Law:
Also, a local law enforcement agency that receives an ICE hold, ICE
notification, or ICE transfer request, must provide a copy of it to the
inmate and to tell the inmate whether the local law enforcement agency
intends to comply with the request.
If a local law enforcement agency is to provide ICE with a release date for
an inmate, the agency must also provide notice of the release date to the
inmate in writing and to the inmates attorney.
P.C. 849(b): Release From Custody: Any peace officer may release
from custody, instead of taking such person before a magistrate, any
person arrested without a warrant whenever:
The person was arrested only for being under the influence of a
controlled substance or drug and such person is delivered to a
facility or hospital for treatment and no further proceedings are
desirable. (Subd. (b)(3))
When; (t)he person was arrested for driving under the influence of
alcohol or drugs and the person is delivered to a hospital for
medical treatment that prohibits immediate delivery before a
magistrate. (Subd. (b)(4))
Use of Force:
Reasonable Force: Only that amount of force that is reasonably necessary under
the circumstances may be used to affect an arrest, prevent escape, or overcome
resistance. (Headwaters Forest Defense v. County of Humboldt (9th Cir. 2002)
276 F.3rd 1125.)
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The Fourth Amendment prohibition against unreasonable seizures
permits law enforcement officers to use only such force to effect an arrest
as is objectively reasonable under the circumstances. (Emphasis added;
Id., at p. 1130.)
When police officers are sued for their conduct in the line of duty, courts
must balance two competing needs: the need to hold public officials
accountable when they exercise power irresponsibly and the need to shield
officials from harassment, distraction, and liability when they perform
their duties reasonably. (Johnson v. Bay Area Rapid Transit Dist. (9th
Cir. 2013) 724 F.3rd 1159, 1168; citing Pearson v. Callahan (2009) 555
U.S. 223, 231 [172 L.Ed.2nd 565].)
Note: The use of excessive force under the Fourth (seizure), Fifth and
Fourteenth (due process violations) and Eighth (cruel and unusual
punishment) Amendments all involve the possibility of the suppression of
any resulting evidence in a criminal case, as well as the spectre of civil
liability in a civil suit. The issue of excessive force is, for the most part,
the same in both criminal and civil cases. The cases, therefore, and
considered interchangeably below.
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Factors to consider in determining the amount of force that may be used include:
Whether the suspect posed an immediate threat to the safety of the officers
or others;
(Bell v. Wolfish (1979) 441 U.S. 520 [60 L.Ed.2nd 447]; Chew v. Gates
(9th Cir. 1994) 27 F.3rd 1432, 1440-1441, fn. 5; Bryan v. MacPherson (9th
Cir. 2010) 630 F.3rd 805; Espinosa v. City and County of San Francisco
(9th Cir. 2010) 598 F.3rd 528, 537; Mattos v. Agarano (9th Cir. 2011) 661
F.3rd 433, 441; Young v. County of Los Angeles (9th Cir. 2011) 655 F.3rd
1156, 1163; Mendoza v. City of West Covina (2012) 206 Cal.App.4th 702,
712; Gravelet-Blondin v. Shelton (9th Cir. 2013) 728 F.3rd 1086, 1090-
1091; Green v. City & County of San Francisco (9th Cir. 2014) 751 F.3rd
1039, 1049-1051; Velazquez v. City of Long Beach (9th Cir. 2015) 793
F.3rd 1010, 1024.)
The Ninth Circuit has also found that whether or not officers
provided a warning prior to the use of force is a factor to consider
when determining the reasonableness of the force used. (Nelson v.
City of Davis (9th Cir. 2012) 685 F.3rd 867, 882; citing Deorle v.
Rutherford (9th Cir. 2001) 242 F.3rd 1119, 1284; and Forrester v.
City of San Diego (9th Cir. 1994) 25 F.3rd 804.)
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in the business, and couldnt hear the warnings, this factor only
slightly favored the use of force by sending the dog into the
business.)
(See also George v. Morris (9th Cir. Sep. 16, 2013) 736 F.3rd 829,
837.)
See Tatum v. City and County of San Francisco (9th Cir. 2006) 441 F.3rd
1090, where the Ninth Circuit Court of Appeal meticulously discussed the
issue of law enforcements use of force:
Thomas and Rosalie Avina sued the United States under the Federal Tort
Claims Act (FTCA) for assault and battery and intentional infliction of
emotional distress after agents from the Drug Enforcement Administration
(DEA) executed a search warrant at their mobile home. Upon entering the
home, the agents pointed guns at Thomas and Rosalie, handcuffed them
and forcefully pushed Thomas to the floor. The agents handcuffed the
Avinas fourteen-year-old daughter on the floor and then handcuffed their
eleven-year-old daughter on the floor and pointed their guns at her head.
The agents removed the handcuffs from the children approximately thirty
minutes after they entered. The court held that the district court properly
granted summary judgment in favor of the United States as to Thomas and
Rosalie because the agents use of force against them was reasonable. The
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agents were executing a search warrant at the residence of a suspected
drug trafficker. This presented a dangerous situation for the agents and
the use of handcuffs on the adult members of the family was reasonable to
minimize the risk of harm to the officers and the Avinas. In addition, the
agents did not act unreasonably when they forcefully pushed Thomas
Avina to the floor. At the time of the push, Avina was refusing the agents
commands to get down on the ground. Because this refusal occurred
during the initial entry, the agents had no way of knowing whether Avina
was associated with the suspected drug trafficker, whom they thought
lived there. The court however, found that the district court improperly
granted summary judgment to the United States concerning the agents
conduct toward the Avinas minor daughters. The court held that a jury
could find that when the agents pointed their guns at the eleven-year-old
daughters head, while she was handcuffed on the floor, that this conduct
amounted to excessive force. Similarly, the court held that a jury could
find that the agents decision to force the two girls to lie face down on the
floor, with their hands cuffed behind their backs, was unreasonable.
Genuine issues of fact existed as to whether the actions of the agents were
excessive in light of girls ages and the limited threats they posed. (Avina
v. United States (9th Cir. 2012) 681 F.3rd 1127, 1130-1134.)
Whether four to six officers pointing guns (and one shotgun) at the
plaintiff during a felony high risk traffic stop, after an automated
license plate reader had misidentified the plaintiffs car as being stolen,
when the plaintiff was compliant and posed no threat to the officers,
constituted excessive force is a jury question. (Green v. City & County of
San Francisco (9th Cir. 2014) 751 F.3rd 1039, 1049-1051.)
Responding to a domestic violence radio call, given the fact that more
officers are killed at such situations than any other, is a factor a court can
consider in determining the reasonableness of the use of deadly force.
(George v. Morris (9th Cir. 2013) 736 F.3rd 829, 839, 844; Mattos v.
Agarano (9th Cir. 2011) 661 F.3rd 433, 450; United States v. Martinez (9th
Cir. 2005) 406 F.3rd 1160, 1164.)
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Due Process; Fifth and Fourteenth Amendment Issues:
Five deputies holding down a resisting criminal defendant for the purpose
of obtaining his fingerprints, in a courtroom (but out of the jurys
presence), where there were found to be less violent alternatives to
obtaining the same evidence, is force that shocks the conscience and a
violation of the defendants Fourteenth Amendment due process rights.
(People v. Herndon (2007) 149 Cal.App.4th 274; held to be harmless
error in light of other evidence and because defendant created the
situation causing the force to be used.)
Where a pretrial detainee alleged that jail officers used excessive force in
violation of the Fourteenth Amendments Due Process Clause in tasing
him while removing him from his jail cell, the detainee need only show
that the force purposely and knowingly used against him was objectively
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unreasonable. Remand was warranted in this case regarding the jurys
finding for the officers in a 42 U.S.C. 1983 excessive force claim
because the jury instructions were erroneous, having suggested to the jury
that they should weigh the officers subjective reasons (i.e., whether the
officers were subjectively aware that their use of force was unreasonable)
for using force. (Kingsley v. Hendrickson (June 22, 2015) __ U.S. __
[135 S.Ct. 2466; 192 L.Ed.2nd 416].)
It was also noted that shooting the family dog, albeit sad
and unfortunate, does not fall within the ambit of
deprivation of a familial relationship. (Ibid.)
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release. (Gant v. County of Los Angeles (9th Cir. 2014) 772 F.3rd
608, 619-623.)
Qualified immunity from civil liability for using excessive force was
denied where defendant police detective executed a search warrant on the
plaintiffs apartment to look for property allegedly purchased with another
deputys stolen credit card, the detective and victim deputy were close
friends, the detective purposely executed the warrant when he knew the
plaintiffs children (by the deputy) were in her apartment, an excessive
number of officers were used to execute the warrant, and plaintiff was
handcuffed so tightly as to cause bruises. (Cameron v. Craig (9th Cir.
2013) 713 F.3rd 1012, 1018-1022; summary judgment in defendants favor
was upheld on allegation that the search was conducted without probable
cause.)
Even where the force used is held to be unreasonable, an officer may still
be protected from civil liability under the doctrine of qualified
immunity. The qualified immunity rule shields public officers from (42
U.S.C.) 1983 actions unless the officer has violated a clearly established
constitutional right. This turns on a determination of whether it would be
clear to a reasonable officer that his conduct was unlawful under the
circumstances he confronted. (Mendoza v. City of West Covina (2012)
206 Cal.App.4th 702, 711; citing Saucier v. Katz (2001) 533 U.S. 194, 202
[150 L.E.2nd 272].)
Californias Civil Code 52.1, the so-called Bane Act (the state
equivalent to a federal 42 U.S.C. 1983 civil suit), authorizes a civil
action against anyone who interferes, or tries to do so, by threats,
intimidation, or coercion, with an individuals exercise or enjoyment of
rights secured by federal or state law. (See Jones v. Kmart Corp. (1998)
17 Cal.4th 329, 331.) The Bane Act applies whenever there is a Fourth
Amendment use of force violation. An illegal arrest (i.e., without
probable cause) accompanied by the use of excessive force constitutes a
Bane Act violation. It does not require a showing that the conduct also
caused a violation of a separate and distinct constitutional right. (Bender
v. County of Los Angeles (2013) 217 Cal.App.4th 968, 976-981.)
The Bane Act permits an individual to pursue a civil action for damages
where another person interferes by threat, intimidation, or coercion, or
attempts to interfere by threat, intimidation, or coercion, with the exercise
or enjoyment by any individual or individuals of rights secured by the
Constitution or laws of the United States, or of the rights secured by the
Constitution or laws of this state. (Civ. Code, 52.1, subd. (a).) The
essence of a Bane Act claim is that the defendant, by the specified
improper means (i.e., threat[], intimidation or coercion), tried to or did
prevent the plaintiff from doing something he or she had the right to do
under the law or to force the plaintiff to do something that he or she was
not required to do under the law. (Citation) (King v. State of California
(2015) 242 Cal.App.4th 265, 294.)
The Court cited three prior cases, being the only federal
cases on the issue, where it had been held that the use of a
Taser was not a Fourth Amendment violation; i.e., Russo
v. City of Cincinnati (6th Cir. 1992) 953 F.2nd 1036; Hinton
v. City of Elwood (10th Cir. 1993) 997 F.2nd 774; and
Draper v. Reynolds (11th Cir. 2004) 369 F.3rd 1270. These
three cases, respectively, involved officers being attacked
by a suicidal, homicidal, mental patient who was armed
with two knives, a violently resisting suspect who was
flailing at, kicking, and biting the arresting officers, and a
lone officer being confronted by an angry, confrontational,
and agitated truck driver who refused five times to produce
certain documents as he paced back and forth, yelling at the
officer. (Id., at pp. 446-448.)
The Court further noted that the officer in this case was not
entitled to qualified immunity in that the rules on the use of
Tasers is now well-established in the law. (Id., pp. 1092-
1096; describing the many cases on this issue.)
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Using a Taser to remove a non-threatening mental patient from his
grip onto a pole held to be excessive. The Court held that a Taser,
being a serious use of force, like a gun, a baton, or other weapon,
is expected to inflict pain or injury when deployed. It, therefore,
may only be deployed when a police officer is confronted with an
exigency that creates an immediate safety risk and that is
reasonably likely to be cured by using the Taser. The subject of a
seizure does not create such a risk simply because he is doing
something that can be characterized as resistance, even when that
resistance includes physically preventing an officers
manipulations of his body. Erratic behavior and mental illness do
not necessarily create a safety risk either. To the contrary, when a
seizure is intended solely to prevent a mentally ill individual from
harming himself, the officer effecting the seizure has a lessened
interest in deploying potentially harmful force. (Estate of
Armstrong v. Village of Pinehurst (4th Cir. 2016) 810 F.3rd 892;
Officers held to have qualified immunity, however, in that the true
was not yet well-settled in the law.)
It has been held that squirting pepper spray randomly into a crowd
of demonstrators where there was insufficient cause to believe the
demonstrators posed an immediate threat to the safety of the
officers or others might be excessive and expose the offending
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police officers to civil liability. (Lamb v. Decatur (C.D.Ill. 1996)
947 F.Supp. 1261.)
Baton:
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Where the facts are in dispute, a police officer does not have
qualified immunity for using his baton to break the plaintiffs car
window and pulling him out of the car through the window. Such
force may be excessive. (Coles v. Eagle (9th Cir. 2012) 704 F.3rd
624, 627-631.)
Firearms:
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See also Stamps v. Town of Framingham (1st Cir. 2016) 813 F.3rd
27: A reasonable officer would have understood that pointing a
loaded rifle at the head of a prone, non-resistant individual, with
the safety off and a finger on the trigger, constituted excessive
force in violation of the Fourth Amendment. Consequently, when
the officer accidentally shoots and kills the suspect, the office is
not entitled to qualified immunity in the resulting civil action.
Where officers shot and killed the plaintiffs father, there was no
violation of the plaintiff/minors Fourteenth Amendment rights
because there was no evidence that the deputies acted with a
purpose to harm unrelated to the legitimate law enforcement
objective of defending themselves when the decedent approached
with a knife in his hand. However, remand of the plaintiff/minors
negligent wrongful death claim was required because a reasonable
jury could conclude that the use of deadly force was not
objectively reasonable under the circumstances. (Hayes v. County
of San Diego (9th Cir. 2013) 736 Fd.3rd 1223, 1229-1235; a
negligence civil action.)
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Whether four to six officers pointing guns (and one shotgun) at the
plaintiff during a felony high risk traffic stop, after an
automated license plate reader had misidentified the plaintiffs
car as being stolen, when the plaintiff was compliant and posed no
threat to the officers, constituted excessive force is a jury question.
(Green v. City & & County of San Francisco (9th Cir. 2014) 751
F.3rd 1039, 1049-1051.)
Pain Compliance:
Handcuffs:
Thomas and Rosalie Avina sued the United States under the
Federal Tort Claims Act (FTCA) for assault and battery and
intentional infliction of emotional distress after agents from the
Drug Enforcement Administration (DEA) executed a search
warrant at their mobile home. Upon entering the home, the agents
pointed guns at Thomas and Rosalie, handcuffed them and
forcefully pushed Thomas to the floor. The agents handcuffed the
Avinas fourteen-year-old daughter on the floor and then
handcuffed their eleven-year-old daughter on the floor and pointed
their guns at her head. The agents removed the handcuffs from the
children approximately thirty minutes after they entered. The
court held that the district court properly granted summary
judgment in favor of the United States as to Thomas and Rosalie
because the agents use of force against them was reasonable. The
agents were executing a search warrant at the residence of a
suspected drug trafficker. This presented a dangerous situation for
the agents and the use of handcuffs on the adult members of the
family was reasonable to minimize the risk of harm to the officers
and the Avinas. In addition, the agents did not act unreasonably
when they forcefully pushed Thomas Avina to the floor. At the
time of the push, Avina was refusing the agents commands to get
down on the ground. Because this refusal occurred during the
initial entry, the agents had no way of knowing whether Avina was
associated with the suspected drug trafficker, whom they thought
lived there. The court however, found that the district court
improperly granted summary judgment to the United States
concerning the agents conduct toward the Avinas minor
daughters. The court held that a jury could find that when the
agents pointed their guns at the eleven-year-old daughters head,
while she was handcuffed on the floor, that this conduct amounted
to excessive force. Similarly, the court held that a jury could find
that the agents decision to force the two girls to lie face down on
the floor, with their hands cuffed behind their backs, was
unreasonable. Genuine issues of fact existed as to whether the
actions of the agents were excessive in light of girls ages and the
limited threats they posed. (Avina v. United States (9th Cir. 2012)
681 F.3rd 1127, 1130-1134.)
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Duty to Warn:
The Ninth Circuit Court of Appeal has held a number of times that where
it is possible to do so, the officer must warn a person before applying
force, at least when the force is likely to cause injury. (Deorle v.
Rutherford (9th Cir. 2001) 242 F.3rd 1119, 1284, beanbag; Bryan v.
MacPherson (9th Cir. 2010) 630 F.3rd 805; Taser; Hayes v. County of San
Diego (9th Cir. 2013) 736 F.3rd 1223, 1234-1235, firearm.)
See also Nelson v. City of Davis (9th Cir. 2012) 685 F.3rd 867, 882;
and Forrester v. City of San Diego (9th Cir. 1994) 25 F.3rd 804.)
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Applicable Statutes:
After defendant shot and killed his father and three other men who
he believed were plotting to kill him, he was charged with multiple
counts of special circumstance murder. He pleaded not guilty by
reason of insanity and claimed that his delusional state caused him
to believe that he was acting in self-defense. The Court held that
an instruction on self-defense in the sanity phase must inform the
jury that a defendants delusion caused him to believe that he was
in danger of great bodily injury or death that required the use of
deadly force and that he would be legally justified in doing so.
The trial court erred when it instructed the jury that defendants
beliefs also had to be reasonable; an objective standard.
(People v. Leeds (2015) 240 Cal.App.4th 822, 829-833.)
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A trial court abused its discretion and deprived defendant, who was
homeless, of his constitutional right to present a complete defense
by excluding expert testimony concerning chronic homelessness
during defendants first degree murder trial, including a homeless
mans heightened perception of a deadly threat. The experts
proposed opinion was relevant to defendants actual belief, as well
as the reasonableness of his belief, in the need to use lethal force to
defendant himself. The experts opinion was relevant to
defendants credibility. Because the subject of the expert opinion
was sufficieintly beyond common experience that it would have
assisted the jury, and a reasonable probability existed that if
presented with the experts testimony on chronic homelessness the
jury would have found defendant guilty of a lesser included offese,
the error was prejudicial. (People v. Sotelo-Urena (2016) 4
Cal.App.5th 732.)
P.C. 835a: Use of Reasonable Force: Any peace officer who has
reasonable cause to believe a person to be arrested has committed a public
offense may use reasonable force to affect the arrest, to prevent escape, or
to overcome resistance.
P.C. 843: Arrest by Warrant; Use of Force: When the arrest is being
made by an officer under the authority of a warrant, after information of
the intention to make the arrest, if the person to be arrested either flees or
forcibly resists, the officer may use all necessary means to effect the
arrest.
P.C. 844: Knock and Notice: 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 which
admittance is desired.
P.C. 845: Use of Force to Exit a House: Any person who has lawfully
entered a house for the purpose of making an arrest, may break open the
door or window thereof if detained therein, when necessary for the
purpose of liberating himself, and an officer may do the same, when
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necessary for the purpose of liberating a person who, acting in his aid,
lawfully entered for the purpose of making an arrest, and is detained
therein.
P.C. 846: Securing Weapons: Any person making an arrest may take
from the person arrested all offensive weapons which he may have about
his person, and must deliver them to the magistrate before whom he is
taken.
The force used was upheld as reasonable when a resisting defendant was
restrained by five police officers as a technician removed the blood sample
from his left arm, without any showing that the officers introduced any
wantonness, violence or beatings. (People v. Ryan (1981) 116
Cal.App.3rd 168.)
But see People v Kraft (1970) 3 Cal.App.3rd 890, where defendant refused
to submit to a blood test. Taken to a hospital, defendant resisted being
taken inside, resulting in an officer striking him in the cheek with a closed
fist. While being carried to a bed in an examination room, defendant fell
or was pushed to the floor. While on the floor, police immobilized him
while a physician withdrew blood. One officer held defendants arm
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while also holding a scissor lock on his legs. It was acknowledged in
testimony that defendants behavior had not been aggressive but was
defensive. The court concluded that the officers strong arm tactics
were aggressive beyond all need and exceeded the limits of permissible
force. (Id., at pp. 895-899.)
Note: The Supreme Court has held that being arrested for driving while
under the influence does not allow for a non-consensual warrantless blood
test absent exigent circumstances beyond the fact that the blood was
metabolizing at a normal rate. (Missouri v. McNeely (Apr. 17, 2013) 569
U.S.__ [133 S.Ct. 1552; 185 L.Ed.2nd 696].)
Note: See Birchfield v. North Dakota (June 23, 2016) __ U.S. __, __
[136 S.Ct. 2160;195 L.Ed.2nd 560], for a historical review of the
development of DUI statutes and the importance of obtaining a reading of
the suspects BAC (Blood Alcohol Concentration).
Causing Death: When the use of force results in the death of another
person, a homicide, or a killing of a human being by another human
being, has occurred. (People v. Antick (1975) 15 Cal.3rd 79, 87.)
Deadly Force Defined: Force that the actor uses with the purpose of
causing or that he knows to create a substantial risk of causing death or
serious bodily injury. (Emphasis added; See Model Penal Code
3.11(2) (1962))
The use of deadly force, and the resulting killing of a human being,
may be justifiable (i.e., not illegal) when committed as
authorized by statute, and as limited by case law. (See People v.
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Velez (1983) 144 Cal.App.3rd 558, 566-568, People v. Frye (1992)
7 Cal.4th 1148, 1155; and CALCRIM # 505-509 (Justifiable) and
# 510-511 (Excusable) Homicide.)
Applicable Statutes:
The trial court was not required to instruct the jury sua
sponte on the law of justifiable homicide in making an
arrest, per P.C. 197(4), where defendant himself claimed
he chased the victim for about a quarter of a mile with an
axe and killed him, not in an attempt to arrest him for
burglary, but rather because the victim looked like he was
not a good person. (People v. Zinda (2015) 233
Cal.App.4th 871, 877-880.)
Today, with the law vastly expanded, there are many non-
violent, non-capital felonies for which deadly force is not
an appropriate response. (People v. Ceballos, supra;
Tennessee v. Garner, supra.)
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threat of death or great bodily injury. (People v. Ceballos,
supra.)
General Rules:
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For example, in using deadly force to prevent a
residential burglary, whether or not the deceased
actually had the intent to commit a burglary is
irrelevant to the issue of whether the person who
killed him could legally use deadly force. (People
v. Walker (1973) 32 Cal.App.3rd 897.) The issue
will be what the person who applied the force
reasonably believed the circumstances to be.
Imperfect Self-Defense:
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victim. (People v. Frandsen (2011) 196
Cal.App.4th 266.)
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Similarly, a person who starts the confrontation
with an unjustifiable attack or who voluntarily
engages in a fight or mutual combat, and suddenly
finds himself losing, cannot claim self-defense
unless he first attempts to withdraw from the affray
and communicates that withdrawal to his adversary.
(People v. Bolton (1979) 23 Cal.3rd 51, 68; P.C.
197.3.)
Mutual Combat:
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Cal.4th 1015, 1044; quoting People v. Ross
(2007) 155 Cal.App.4th 1033, 1045.)
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Police may use deadly force to stop an escaping violent
felony suspect who would pose a substantial risk to others
if apprehension is delayed. (Forrett v. Richardson (9th Cir.
1997) 112 F.3rd 416; deadly force used to stop a home
invasion suspect who had previously shot and wounded a
victim.)
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stolen vehicle endangered two officers lying on the ground
and/or standing nearby.)
Examples:
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The mere fact alone that a person possesses deadly
weapons does not justify the use of deadly force.
(Harris v. Roderick, supra, at p. 1202.)
And Ting v. United States (9th Cir. 1991) 927 F.2nd 1504,
1508-1511; use of deadly force held to be unreasonable
when the suspect had already dropped his gun.
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force in that this theory was not argued in the courts
below.
Rule of Reasonableness:
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reasonable. (Gonzalez v. City of Anaheim (9th Cir. 2014)
747 F.3rd 789, 793-797.)
A high speed pursuit may or may not allow for the use of
deadly force, each case depending upon its individual
circumstances. (Brosseau v. Haugen (2004) 543 U.S. 194
[160 L.Ed.2nd 583]; finding that an officer who shot a
suspect who was attempting to flee in his vehicle did not
have fair notice based upon the conflicting case law as to
whether the force she used was excessive. She was
therefore entitled to qualified immunity from civil
liability.)
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A police officers use of deadly force is constitutional
where an escaping suspect constitutes a threat of serious
physical harm to officers or others. (Wilkinson v. Torres
(9th Cir. 2010) 610 F.3rd 546, 550-554; attempts to flee in a
stolen vehicle endangered two officers lying on the ground
and/or standing nearby.)
In Pedrin, supra, it was held that there was no due process violation where
defendant was the target of a reverse sting operation pursuant to which
an undercover ATF agent suggested that defendant and others rob a drug
stash house (i.e, a house in which drugs ae stashed.) Defendant was
convicted of conspiracy to possess with intent to distribute 40 to 50
kilograms of cocaine under 21 U.S.C. 841 and 846. Defendants
motion to dismiss the indictment was properly denied because the
prosecution did not result from outrageous government conduct since
one of the co-conspirators reached out to the government, defendant
readily agreed to participate in the supposed stash-house robbery, and
defendant supplied plans and materials. This all provided a sufficient
basis for the Government to infer that defendant had a predisposition to
take part in the planned robbery.
The Pedrin Court cites a number of other cases involving the same ATF
sting operation: United States v. Cortes (9th Cir. 2014) 757 F.3rd 850;
United States v. Black (9th Cir. 2013) 733 F.3rd 294; United States v.
Docampo (11th Cir. 2009) 573 F.3rd 1091; United States v. Paisley (11th
Cir. 2006) 178 F.Appx 995; United States v. Kindle (7th Cir. 2012) 698
F.3rd 401; United States v. Mayfield (7th Cir. 2014) 771 F.3rd 417.
Factors: The courts have identified six factors to consider when
determining whether the government has engaged in outrageous
government misconduct in conducting a reverse sting operation:
(1) Known criminal characteristics of the defendants;
(2) Individualized suspicion of the defendants;
(3) The governments role in creating the crime of conviction;
(4) The governments encouragement of the defendants to
commit the offense conduct;
(5) The nature of the governments participation in the offense
conduct; and
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(6) The nature of the crime being pursued and necessity for the
actions taken in light of the nature of the criminal enterprise at
issue.
(United States v. Pedrin, supra, at p. 796, citing United States v.
Black, supra, at p. 303; and noting that (w)hat the government
learns only after the fact cannot supply the individualized
suspicion that is necessary to justify the sting if the government
had little or no basis for such individualized suspicion when it
was setting up the sting. (Pedrin, at p. 797.)
Civil Liability Protections:
California Statutory Protection from Civil Liability: There shall be no civil
liability on the part of, and no cause of action shall arise against, any peace officer
acting within the scope of his or her authority, for false arrest or false
imprisonment arising out of any arrest when:
P.C. 836(a), (b): Such arrest was lawful or when the officer, at the time
of the arrest, had reasonable or probable cause to believe the arrest was
lawful.
P.C. 838: A magistrate orally ordered the officer to arrest a person who
was committing a public offense in the magistrates presence.
Govt. Code 815(a): Public entities are immune from civil liability
except as provided by statute.
Govt. Code 815.2(a): Public entities are vicariously liable for the torts
of their employees.
Govt. Code 820(a): Public employees are liable for their torts except
as otherwise provided by statute.
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See Conway v. County of Tuolumne (2014) 231 Cal.App.4th 1005, 1013-
1021: Under the circumstances of this case, the defendant county of
Tuolumne was held to be immune from civil liability for the discretionary
(as opposed to ministerial) conduct of its officers. Once officers decided
to arrest plaintiffs son, they were vested with the discretion in
determining the best way to accomplish that goal, using personal
deliberation, decision, and professional judgment. This discretion
included the possible use of tear gas as a way to determine whether
plaintiffs son was in plaintiffs mobile home. Given the potential impact
of liability on such decisions, Govt. Code 820.2 provided immunity for
the officers actions. (see also Caldwell v. Montoya (1995) 10 Cal.4th 972,
980.)
In a civil (42 U.S.C. 1983) suit for the use of excessive, deadly force,
where the defendant/officer moves for summary judgment, the trial court
must look at the evidence in the light most favorable to the plaintiff/non-
moving party with respect to the central facts of the case. In this case,
where the defendant/officer shot the plaintiff in the chest, the Fifth Circuit
failed to acknowledge and credit plaintiffs evidence with regard to the
lighting, his mothers demeanor, whether he shouted words that were an
overt threat, and his positioning during the shoot. The case was remanded
for a consideration of these facts. (Tolan v. Cotton (May 5, 2014) __
U.S. __ [134 S.Ct. 1861; 188 L.Ed.2nd 895].)
The U.S. Supreme Court severly critized the Ninth Circuit Court of appeal
for using the general rationale of prior decisions in holding that officers
should have been aware of any particular rule. We have repeatedly told
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courtsand the Ninth Circuit in particularnot to define clearly
established law at a high level of generality. (City & County of San
Francisco v. Sheehan, supra at p. __ [135 S.Ct. at pp.1775-1776; quoting
and citing Ashcroft v. al-Kidd (May 31, 2011) 563 U.S. 731, 742 [179
L.Ed.2nd 1149, 1159]; and Lopez v. Smith (2014) 574 U.S. __, __ [135
S.Ct. 1; 190 L.Ed.2nd 1, 5].)
It was also noted in Sheehan that the fact that officers may violate
or ignore their training and written policies in forcing entry and
using force does not itself negate qualified immunity where it
would otherwise be warranted. (City & County of San Francisco
v. Sheehan, supra, at p. __ [135 S.Ct. at p. 1777].)
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Chapter 5
Searches and Seizures:
Evidence of a crime.
Contraband.
Instrumentalities of a crime.
Fruits of a crime.
See Black's Law Dict. (9th ed. 2009) p. 365, defining contraband as
[g]oods that are unlawful to import, export, produce, or possess.
See also 3 Oxford English Dict. (2d ed. 1989) p. 833: Contraband is
[a]nything prohibited to be imported or exported; goods imported or
exported contrary to law or proclamation or something [f]orbidden,
illegitimate, unauthorized.
Note: Not mentioned above, persons are also subject to seizure, under
the Fourth Amendment, when they are detained or arrested. (Florida v.
Bostick (1991) 501 U.S. 429, 434 [115 L.Ed.2nd 389, 398].)
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under the Fourth Amendment, and under the theory of United
States v. Jones, supra. The fact that North Carolinas SBM
program is civil in nature does make it any less of a Fourth
Amendment search issue. (Grady v. North Carolina (Mar. 30,
2015) __ U.S.__ [135 S.Ct. 1368; 191 L.Ed.2nd 459]; case
remanded for the purpose of determing the reasonableness of the
search under the circumstances.)
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1173.) (See Minimal Intrusion Exception,
below.)
Note: Jones did not say this, but may likely be used
by attorneys for this argument.
(United States v. Jefferson (9th Cir. 2009) 566 F.3rd 928, 933,
citing United States v. Jacobson (1984) 466 U.S. 109, 113 [80
L.Ed.2nd 85]; United States v. Karo (1984) 468 U.S. 705, 713 [82
L.Ed.2nd 530]; Lavan v. City of Los Angeles (9th Cir. 2012) 693
F.3rd 1022, 1027-1031.)
Search Warrant: (A)n order in writing, in the name of the people, signed
by a magistrate, directed to a peace officer, commanding him or her to
search for a person or persons, a thing or things, or personal property, and
bring it before the magistrate. (P.C. 1523)
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Probable Cause: Roughly the same standards apply whether the issue is
an arrest or a search. (Skelton v. Superior Court (1969) 1 Cal.3rd 144,
150.)
Legal Presumptions:
And then, even with probable cause, searches without a search warrant are
presumed to be unlawful, absent one of the narrowly construed exceptions
to the search warrant exception. (Mincey v. Arizona (1978) 437 U.S. 385,
390 [57 L.Ed.2nd 290, 298-299]; In re Tyrell J. (1994) 8 Cal.4th 68, 76;
reversed on other grounds.)
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Examples:
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In Strieff, the Utah Supreme Court declined
to apply the attenuation doctrine because it
read the U.S. Supreme Courts precedents as
applying the doctrine only to circumstances
involving an independent act of a
defendants free will (such as) in
confessing to a crime or consenting to a
search. (2015 UT 2, 357 P. 3rd 532 at p.
544.) The Strieff Court specifically
disagreed with this interpretation. The
attenuation doctrine evaluates the causal link
between the governments unlawful act and
the discovery of evidence, which often has
nothing to do with a defendants actions.
Per the Supreme Court; the logic of (its)
prior attenuation cases is not limited to
independent acts by the defendant. (Id. at
136 S.Ct. at p. 2061.)
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The Bates Court both declined to adopt the
Durant Courts reasoning, and differentiated
the cases on their respective facts. (Ibid.)
Exceptions:
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883, 893; off-duty police trainee acting out of concern for
his own safety.)
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(1975) 422 U.S. 590, 604 [45 L.Ed.2nd
416].)
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(1979) 24 Cal.3rd 638; no.), depending upon the
circumstances.)
Statutory-Only Violations:
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Lombera-Camorlinga (9th Cir. 2000) 206 F.3rd 882,
886-887, and in the dissenting opinion, p. 893.)
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(Wilson v. Arkansas (1995) 513 U.S. 927
[131 L.Ed.2nd 976]; People v. Zabelle
(1996) 50 Cal.App.4th 1282.) Whether or
not it does depends upon the circumstances.
(See Knock and Notice, below.)
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The rule as dictated by Hudson (a search
warrant case) is applicable as well as in a
warrantless, yet lawful, arrest case, pursuant
to P.C. 844. (In re Frank S. (2006) 142
Cal.App.4th 145.)
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(United States v. Becerra-Garcia (9th Cir. 2005)
397 F.3rd 1167, 1173.)
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also United States v. Brooks (9th Cir. 2014) 772 F.3rd 1161,
1173.)
Impeachment Evidence:
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Parole Hearings: Evidence recovered in an illegal parole
search is admissible in a parole revocation proceeding, held
pursuant to the relatively informal procedures used
pursuant to Morrissey v. Brewer (1972) 408 U.S. 471 [33
L.Ed.2nd 484]. (Pennsylvania Board of Probation and
Parole v. Scott (1998) 524 U.S. 357 [141 L.Ed.2nd 344].)
Probation Hearings:
Standing:
Defined: The legal right of an individual to contest the illegality of a search and
seizure. Only the person whose rights are being violated has standing to
challenge an alleged governmental constitutional violation. (Rakas v. Illinois
(1978) 439 U.S. 128, 138-139 [58 L.Ed.2nd 387, 397-398]; Minnesota v. Carter
(1998) 525 U.S. 83 [142 L.Ed.2nd 373]; People v. Casares (2016) 62 Cal.4th 808,
835.)
Claiming ownership of the property being seized does not establish that
the defendant had a reasonable expectation of privacy in that property.
The possessory interest must be a legitimate one; i.e., excluding
contraband and other items not lawfully in the subjects possession. (See
Rawlings v. Kentucky (1980) 448 U.S. 98, 105-106 [65 L.Ed.2nd 633];
United States v. Pulliam (9th Cir. 2005) 405 F.3rd 782, 786; see also
United States v. $40,955 in United States Currency, supra., at p. 756.)
See also People v. Warren (1990) 219 Cal.App.3d 619, 624: (N)o
privacy right guaranteed by the Fourth Amendment is infringed by the
search and seizure of a known illicit substance. E.g.: While the search of
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a thing or place over which a defendant has a legitimate expectation of
privacy is subject to being tested, the searching of an illegal item (e.g.,
contraband) itself does not provide the defendant with the right to raise the
search issue.
(T)o say that a party lacks [F]ourth [A]mendment standing is to say that
his reasonable expectation of privacy has not been infringed. (Italics in
original; United States v. SDI Future Health, Inc. (9th Cir. 2009) 568
F.3rd 684, 695; citing United States v. Taketa (9th Cir. 1991) 923 F.2nd
665, 669.)
Burden of Proof: The defendant bears the burden of showing he or she had a
reasonable expectation of privacy in the place searched or the thing seized.
(Rakas v. Illinois (1978) 439 U.S. 128, 141, fn. 9 [58 L.Ed.2nd 387, 399-400];
People v. McPeters (1992) 2 Cal.4th 1148, 1171; People v. Shepherd (1994) 23
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Cal.App.4th 825, 828; People v. Cowan (1994) 31 Cal.App.4th 795, 798; United
States v. Caymen (9th Cir. 2005) 404 F.3rd 1196, 1199-1200; United States v.
$40,955 in United States Currency (9th Cir. 2009) 554 F.3rd 752, 756; People v.
Magee (2011) 194 Cal.App.4th 178, 183; People v. Diaz (2013) 213 Cal.App.4th
743, 753.)
However, the court has the discretion to order the prosecution to present
its evidence before the defendant proves his standing. (People v.
Contreras (1989) 210 Cal.App.3rd 450.)
Factors to Consider:
Whether he had a right to exclude others from that place [or the thing
seized];
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General Principles:
See also United States v. King (2010) 693 F.Supp.2nd 1200: A justified
eviction from a hotel room ends any expectation of privacy defendant may
have had in the room, or in any of the contents of that room, justifying a
warrantless entry and search of the room by FBI agents.
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Prior California Rule; Vicarious Standing: Everyone charged with a criminal
offense resulting from a search or seizure could challenge the constitutionality of
that search or seizure, without the necessity of showing standing. (E.g., People
v. Martin (1955) 45 Cal.2nd 755, 761.)
This theory, long since rejected by the United States Supreme Court (see
United States v. Salvucci (1980) 448 U.S. 83, 92 [65 L.Ed.2nd 619].), was
abrogated by passage of Proposition 8 (Cal. Const., Art. 1, 28(d)) in
June, 1982. California now follows the federal rule. (In re Lance W.
(1985) 37 Cal.3rd 873, 886-887; People v. Nelson (1985) 166 Cal.App.3rd
1209, 1213.)
Examples:
Vehicles:
See also, United States v. Webster (7th Cir 2015) 775 F.3rd 897,
where it was held that a prisoner being detained in the backseat of
a patrol car has no expectation of privacy as to his conversations.
Recording the defendants conversation with another detainee and
cellphone calls he made while seated in the patrol car is not a
violation of the Fourth Amendment.
Residential Visitors:
A person who does not stay overnight, but who has a key and free
reign of the house, coming and going as he pleases, doing his
laundry, cooking, and watching the T.V. in the house, and taking
showers, etc., was held to have standing. (People v. Stewart
(2003) 113 Cal.App.4th 242.)
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residence. (United States v. Reyes-Bosque (9th Cir. 2010) 596
F.3rd 1017, 1026-1029.)
In a capital murder case, the trial court did not err in denying the
lead defendants motion to suppress evidence seized during a
warrantless search of a drug house, defendant having failed to
provide any competent evidence that he had a legitimate
expectation of privacy in the house when it was searched.
(People v. Bryant (2014) 60 Cal.4th 335, 364-370.)
Personal Property:
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the way on a high shelf. (United States v. Fay (9th Cir. 2005) 410
F.3rd 589.)
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Pinging a victims cellphone, using its GPS capabilities to track
defendant who had just stolen it in a robbery, was not a Fourth
Amendment violation. (People v. Barnes (2013) 216 Cal.App.4th
1508, 1517-1519; the case involved no trespassory placing of the
GPS into the defendants property, and no expectation of privacy
violated.
Abandoned Property:
And see United States v. Nowak (8th Cir. 2016) 825 F.3rd
946; defendant abandoned his backpack when he fled from
police and left it in anothers vehicle. The firearm found in
the backpack was properly admitted into evidence.
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No standing to challenge the search of containers left by defendant
at an auto body shop where defendant was a mere guest or
invitee. (People v. Ayala (2000) 23 Cal.4th 225, 253.)
Renting with a Stolen Credit Card: Under California law, one who rents a
hotel room with a stolen credit card does not have standing to challenge an
unlawful entry of the room by law enforcement. (People v. Satz (1998) 61
Cal.App.4th 322.)
However, the Ninth Circuit has developed the rule that use of a
stolen credit card alone is insufficient to negate the persons
expectation of privacy in his room. There has to be evidence that
the management has, or was at least intending to, evict the tenant
for that reason before the tenants expectation of privacy in is room
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becomes unreasonable. (See United States v. Dorais (9th Cir.
2001) 241 F.3rd 1124, 1127-1128.)
Disclaiming Standing:
And see United States v. Stephens (9th Cir. 2000) 206 F.3rd
914, where the Ninth Circuit Court of Appeal has held that
even denial of standing (i.e.; That aint mine.) concerning
seized property during an illegal detention will not keep
that property from being suppressed as the product of the
unlawful detention.
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Reasonableness; Evaluated for Purposes of Search & Seizure:
Rule: As the U.S. Supreme Court has reiterated many times: The touchstone of
the Fourth Amendment is reasonableness. [Citation] The Fourth Amendment
does not proscribe all state-initiated searches and seizures; it merely proscribes
those which are unreasonable. (Florida v. Jimeno (1991) 500 U.S. 248, 250
[114 L.Ed.2nd 297]; see also Brigham City v. Stuart (2006) 547 U.S. 398, 403
[164 L.Ed.2nd 650]; Michigan v. Fisher (2009) 558 U.S. 45, 47 [130 S.Ct. 546,
548; 175 L.Ed.2nd 410]; People v. Robinson (2010) 47 Cal.4th 1104, 1119-1120;
People v. Robinson (2012) 208 Cal.App.4th 232, 246.)
See People v. Smith (2009) 172 Cal.App.4th 1354, where it was held that a
public strip search of a probationer or parolee may in fact be unreasonable.
But lowering a parolees pants and pulling back the elastic ban of his
underwear only to the extent necessary to see the crotch area, while
shielding the suspect from public view, is neither a strip search nor
unreasonable.
Taking blood samples from a convicted person in the mistaken belief that
the DNA and Forensic Identification Data Base and Data Bank Act of
1998 authorizes it, when the defendant is in fact a prisoner with a reduced
expectation of privacy, is not unreasonable and does not require
suppression of the result. (People v. Robinson (2010) 47 Cal.4th 1104,
1119-1120.)
Old Rule: Evaluating any Fourth Amendment search and seizure issue
involved analyzing the law enforcement officers actions both from a
subjective (i.e., in the officers own mind) and objective (as viewed by
a reasonable person) viewpoint. If a contested search or seizure was not
both subjectively held and objectively reasonable, the search or seizure
would be found to be illegal. (See Katz v. United States (1967) 389 U.S.
347, 3612 [19 L.Ed.2nd 576, 588].)
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Posse Comitatus; Use of the Military by Civilian Law Enforcement:
The Act: The so-called Posse Comitatus Act (PCA) provides, in part;
[w]hoever, except in cases and under circumstances expressly authorized by the
Constitution or Act of Congress, willfully uses any part of the Army or the Air
Force as a posse comitatus or otherwise to execute the laws shall be fined under
this title or imprisoned not more than two years, or both. (18 U.S.C. 1385; see
United States v. Dreyer (9th Cir. 2015) 804 F.3rd 1266, 1272.)
See also 10 U.S.C. 375: The Secretary of Defense shall prescribe such
regulations as may be necessary to ensure that any activity (including the
provision of any equipment or facility or the assignment or detail of any
personnel) . . . does not include or permit direct participation by a member
of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest,
or other similar activity unless participation in such activity by such
member is otherwise authorized by law. (United States v. Dreyer,
supra.)
Although the PCA does not directly reference the Navy or Marine
Corps, Congress prohibits Navy involvement in enforcing civilian
laws. (United States v. Dreyer, supra, quoting United States v. Chon
(9th Cir. 2000) 210 F.3rd 990, at 993; see also United States v. Hitchcock
(9th Cir. 2002) 286 F.3rd 1064, 1069-1070; the Navy and Naval Criminal
Investigative Service (NCIS) is bound by the PCA-like restrictions
mandated by 375.)
Some states, including California, still retain one form or another of this
power. (See P.C. 150; making it an infraction for any able-bodied
person over the age of 18 to fail to assist a law enforcement officer
requesting such assistance.)
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Prohibited Activity:
Exceptions:
Purpose: The federal Act was enacted to prevent the use of federal military
personnel to help enforce civilian law, thus preventing the U.S. Government from
becoming a government of force, i.e., run by the military. (People v. Bautista,
supra, at p. 233, fn. 2.)
The statute eliminate[s] the direct active use of Federal troops by civil
law authorities, United States v. Banks, 539 F.2nd 14, 16 (9th Cir. 1976),
and prohibits Army and Air Force military personnel from participating
in civilian law enforcement activities, (United States v.) Chon ((9th Cir.
2000)) 210 F.3rd (990) at 993. (United States v. Dreyer, supra.)
In 1981, Congress amended the Posse Comitatus Act to allow for certain
military assistance in fighting the war on drugs. (See 18 U.S.C. 371-
378) However, these statutes were specifically not [to] include or permit
direct participation by a member of the Army, Navy, Air Force, or Marine
Corps in a search, seizure, arrest, or other similar activity unless
participation in such activity by such member is otherwise authorized by
law. (18 U.S.C. 375)
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Case Law:
In People v. Blend (1981) 121 Cal.App.3rd 215, 225-228, it was held that
the Posse Comitatus Act was not violated when an active duty WAVE
assisted local law enforcement with arranging the purchase of cocaine
from the defendant, despite the cooperation of the Naval Investigative
Service (NIS) which permitted the investigation to proceed on the base,
provided the investigator with passes, and assisted in appellant's arrest.
Per the Court, the WAVE acted on her own initiative as a private
citizen. Moreover, she was not regularly involved in law
enforcement activities with the military, and her usefulness to civil
law enforcement was unrelated to the fact that she was a WAVE.
The court also found that the cooperation by the NIS in permitting
the investigation of appellant to continue on the base did not
demonstrate a violation of the act, and there was no evidence that
the NIS arranged or participated in a program to detect violation of
the civil narcotics laws.
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do so. (United States v. Dreyer (9th Cir. 2015) 804 F.3rd 1266, 1272-
1281.)
The Fourth Circuit in United States v. Walden (4th Cir. 1974) 490 F.2nd
372, 376-377, found no indication of widespread violation of the Act or its
policy and declined to adopt an exclusionary rule. The court stated that
the statute was previously little known, that there was no evidence that the
violation in this case was deliberate or intentional, that the policy
expressed in the Posse Comitatus Act is for the benefit of the nation as a
whole, and not designed to protect the personal rights of defendants.
Noting that a rationale for adopting an exclusionary rule for Fourth
Amendment violations is that available alternative remedies have proved
ineffectual, the court expressed confidence that the military would take
steps to ensure enforcement of the Act.
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Chapter 6
Searches With a Search Warrant:
In Jones v. United States [(1960)] 362 U.S. 257, 270 [4 L.Ed.2nd 697,
708] this Court, strongly supporting the preference to be accorded
searches under a warrant, indicated that in a doubtful or marginal case a
search under a warrant may be sustainable where without one it would
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fall. (United States v. Ventresca (1965) 380 U.S. 102, 106 [13 L.Ed.2nd
684, 687].)
Why Search Warrants are Preferred: There are a number of reasons why use of a
search warrant to conduct any search is preferable even in those instances when
one might not be legally required. For instance:
Or:
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Note: But remember, the defendant must
have standing to challenge the collection
of the illegal information in order to contest
its inclusion in the warrant affidavit. See
Standing, above.)
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2. Presumption of Unlawfulness Without a Warrant: The absence of a
search warrant raises a presumption that the search was unlawful, which
the prosecution is required to rebut. (Mincey v. Arizona (1978) 437 U.S.
385, 390 [57 L.Ed.2nd 290, 298-299]; In re Tyrell J. (1994) 8 Cal.4th 68,
76, overruled on other grounds.)
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In evaluating the applicability of good faith
reliance upon a statute, two questions must be
answered: (1) Does substantial evidence support a
finding that the officer relied on the statute, and (2)
was such reliance reasonable for purposes of the
good faith exception? (Id., at p. 208.)
See also Johnston v. Koppes (9th Cir. 1988) 850 F.2nd 594,
596, listing four relevant factors in evaluating the officers
good faith reliance on advice of a lawyer:
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A defective search warrant description (i.e., lack of
particularity) may be cured where the affidavit supplies the
necessary particularity. However, the government has the
burden of proving that the officers who executed the
warrant read and were guided by the contents of the
affidavit. (United States v. SDI Future Health, Inc. (9th
Cir. 2009) 568 F.3rd 684, 706; citing United States v. Luk
(9th Cir. 1988) 859 F.2nd 667, 677.)
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associated with a series of armed robberies. (United States
v. Graham (4th Cir. 2015) 796 F.3rd 332.)
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E.g.: The bare bones warrant, written in wholly
conclusory statements as opposed to factual
allegations. (United States v. Maggitt, supra.;
United States v. Barrington (5th Cir. 1986) 806
F.2nd 529, 542; United States v. Underwood, supra,
and below.)
Exigent Circumstances:
Examples:
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A warrant that failed to identify a particular suspect as an
alleged chemist arriving from a foreign country, to
provide any basis for the tip that a chemist was coming to
the United States, or to describe any activity by the suspect
that was indicative of setting up a meth lab, failed to make
even a colorable argument for probable cause. (United
States v. Luong (9th Cir. 2006) 470 F.3rd 898.)
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P.C. 1524(a)(10): Search Warrants for Firearms and other Deadly Weapons:
The Sweig Court also found, however, that a search warrant is not allowed
for under P.C. 1524 (see Statutory Grounds for Issuance (P.C.
1524(a)(1) through (17)), below) when the defendant is detained pursuant
to W&I 5150 only. The Court suggested that the Legislature should fix
the problem with a legislative amendment to Section 1524.
Where information later used in a search warrant has been discovered via an
illegal search or seizure, the Independent Source Doctrine allows for the
admission of the evidence recovered during the execution of that warrant that has
been discovered by means wholly independent of any constitutional violation.
(People v. Weiss (1999) 20 Cal.4th 1073.)
If the application contains probable cause apart from the improper information,
then the warrant is lawful and the independent source doctrine applies, provided
that the officers were not prompted to obtain the warrant by what they observed
during the initial entry. (See also People v. Robinson (2012) 208 Cal.App.4th
232, 241.)
See also United States v. Merriweather (9th Cir. 1985) 777 F.2nd 503, where the
Court inappropriately labeled the admissibility of illegally discovered evidence as
an application of the inevitable discovery rule instead of the independent
source doctrine. In noting this error, the Ninth Circuit Court of Appeal, in
United States v. Lundin (9th Cir. 2016) 817 F.3rd 1151, 1161-1162, describes the
differences between the two legal theories for saving evidence that was otherwise
discovered illegally: Unlike the inevitable discovery doctrine, which asks
whether evidence would have been discovered by lawful means rather than by
means of the illegal search, Nix v. Williams, 467 U.S. 431, 447, 104 S. Ct. 2501,
81 L. Ed. 2d 377 (1984) (emphasis added), the independent source doctrine asks
whether the evidence actually was obtained independently from activities
untainted by the initial illegality. Murray v. United States, 487 U.S. 533, 537,
108 S. Ct. 2529, 101 L. Ed. 2d 472 (1988).
Non-Standard Types of Warrants and Orders:
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Procedure:
P.C. 1526:
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Anticipatory Search Warrants: Issuance of a warrant, conditioned upon
the happening of a particular event (e.g., the delivery of illegal substances
or articles to a particular address; i.e., a triggering condition), is legal.
(United States v. Grubbs (2006) 547 U.S. 90, 93-97 [164 L.Ed.2nd 195];
United States v. Garcia (2nd Cir. 1989) 882 F.2nd 699; and see United
States v. Loy (3rd Cir. 1999) 191 F.3rd 360, 364; listing cases upholding the
concept.)
(T)he fact that the contraband is not presently located at the place
described in the warrant is immaterial, so long as there is
probable cause to believe that it will be there when the search
warrant is executed. United States v. Lowe, 575 F.2d 1193, 1194
(6th Cir. 1978), . . . see United States v. Dornhofer, 859 F.2d
1195, 1198 (4th Cir. 1988), . . . . (United States v. Garcia,
supra., at p. 702.)
The Federal Ninth Circuit Court of Appeal has indicated that if the
warrant specifically incorporates an attached affidavit which
describes the anticipatory nature of the warrant, this might suffice.
However, the affidavit must then accompany the warrant to the
scene of the search to be valid. (United States v. Hotal, supra.;
United States v. McGrew (9th Cir. 1997) 122 F.3rd 847, 849-850.)
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Federal Rules: According to the Ninth Circuit Court of Appeal, a
copy of the document that describes the triggering conditions (i.e.,
the warrant itself, the affidavit, or any other attachments) must be
presented to the lawful occupants (along with a copy of the
warrant) upon the execution of the warrant. Failing to do so will
invalidate the anticipatory search warrant as a Fourth
Amendment violation. (United States v. Grubbs (9th Cir. 2004)
377 F.3rd 1072, as reprinted and amended at 389 F.3rd 1306;
certiorari granted; revered and remanded; (2006) 547 U.S. 90, 98-
99 [164 L.Ed.2nd 195]; see above.)
See also United States v. Vesikuru (9th Cir. 2002) 314 F.3rd 1116,
1123-1124, holding that an anticipatory warrant, the conditions
precedent for which being contained in the affidavit and
incorporated into the warrant by reference, requires the presence of
both the warrant and affidavit at the scene.
Sneak and Peek Warrants: A sneak and peek warrant is one which
authorizes surreptitious entry of a premises, without notice, often during
the nighttime, and provides that objects of the search are not to be seized
but may only be noted, photographed, copied or otherwise recorded.
The federal courts are concerned that a sneak and peak warrant
violates Federal Rules of Criminal Procedure, Rule 41. Rule 41
requires that the officer executing the warrant either give to the
owner of the searched premises a copy of the warrant and a receipt
for the property taken, or leave the copy and receipt on the
premises. It also requires that the inventory be made in the
presence of the owner of the premises or in the presence of at
least one credible person other than the applicant for the warrant.
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However, a violation of Rule 41 . . . does not lead to
suppression of evidence unless: (1) it is a fundamental
violationthat is, a violation that in effect, renders the
search unconstitutional under traditional fourth
amendment standards [Citation], (2) the search might
not have occurred or would not have been so abrasive if the
Rule had been followed [Citation] or (3) there is evidence
of intentional and deliberate disregard of a provision of the
Rule. [Citation] (United States v. Johns, supra., at p.
1134.)
This provision is for the benefit of the victim, and, per the
requirements of the section, is not intended to serve as an aid in the
prosecution of any criminal suspect. (P.C. 1524.1(a))
Definitions:
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A foreign corporation is one that is qualified to do
business in California pursuant to Corp. Code 2105,
although based in another state.
(d)
(e) Upon the expiration of the period of delay for the notification,
the governmental entity shall, by regular mail or email, provide a
copy of the process or request and a notice, to the subscriber or
customer. The notice shall accomplish all of the following:
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which the information was supplied, and the request was
made.
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(2) Absent immediate action to interrupt communications
service, serious, direct, and immediate danger to public
safety, health, or welfare will result; and
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Business Records:
Where a search warrant for business records is served upon the custodian
of records or other qualified witness of a business in compliance with P.C.
1524 (listing the various lawful grounds for issuance of a search
warrant) regarding a criminal investigation in which the business is neither
a party nor the place where any crime is alleged to have occurred, and the
search warrant provides that the warrant will be deemed executed if the
business causes the delivery of records described in the warrant to the law
enforcement agency ordered to execute the warrant, it is sufficient
compliance therewith, making such records admissible in evidence if the
custodian or other qualified witness delivers by mail or otherwise a true,
legible, and durable copy of all of the records described in the search
warrant to the law enforcement agency ordered to execute the search
warrant, together with the affidavit as described in Evid. Code 1561
(below) within five days after the receipt of the search warrant or within
such other time as is set forth in the warrant.
(b)
(1) Every service provider described in subdivision (a) shall
maintain a law enforcement contact process that meets the criteria
set forth in paragraph (2).
(d) The exclusive remedy for a violation of this section shall be an action
brought by the Attorney General for injunctive relief. Nothing in this
section shall limit remedies available for a violation of any other state or
federal law.
Rule: The lawful issuance of a search warrant requires a neutral and detached
magistrate, as required by the Fourth Amendment. (Coolidge v. New
Hampshire (1971) 403 U.S. 443 [29 L.Ed.2nd 564].)
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Note: The idea behind this theory is to insure that there is an impartial
arbitrator between an over-zealous law enforcement officer, seeking to
intrude upon a persons privacy rights, and the person whose privacy
rights are about to be intruded upon, who may fairly determine whether
probable cause exists sufficient to justify the intended government
intrusion.
The state attorney general in charge of the investigation issued the warrant
in his capacity as a justice of the peace. (Coolidge v. New Hampshire,
supra.)
The magistrate was paid a fee for each warrant issued, with no
compensation for warrants which were not approved. (Connally v.
Georgia (1977) 429 U.S. 245 [50 L.Ed.2nd 444].)
The investigating deputy sheriff had the warrant issued by his father, a
judge. (OConnor v. Superior Court (1998) 65 Cal.App.4th 113:
However, this warrant was saved by application of the good faith rule.)
No Violation:
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1. The Warrant: The Warrant Itself, signed by a magistrate, directing a peace
officer to search a particular person, place or vehicle, for a particular
person, thing, or list of property.
P.C. 1523, 1529: Contents: The search warrant must include the
following:
And see United States v. Celestine (9th Cir. 2003) 324 F.3rd
1095, describing the policies that underlie the warrant
requirement; providing the property owner assurance of the
lawful authority of the executing officer, his need to search,
and the limits of his power to search.
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Authorization for a nighttime search (if necessary; see P.C
1533).
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a reasonable length of time, not to exceed 30
days.
(4)
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(14) When the property or things to be seized are firearms or
ammunition or both that are owned by, in the possession of, or in
the custody or control of a person who is the subject of a gun
violence restraining order that has been issued pursuant to P.C.
18100 et seq. if a prohibited firearm or ammunition or both is
possess, owned, in the custody of, or controlled by a person against
whom a gun violence restraining order has been issued, the person
has been lawfully serviced with that order, and the person has
failed to relinquish the firearm as required by law.
Probable Cause:
Probable cause must be shown for each of the items listed in the
warrant as property to be seized, justifying its seizure. (People v.
Frank (1985) 38 Cal.3rd 711, 726-728.)
The fact that the person whose property (i.e., a computer in this
case) is seized and searched is not at that time subject to arrest (i.e.,
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no probable cause) does not mean that the seizure and search of
that property is not lawful. (United States v. Adjani (9th Cir. 2006)
452 F.3rd 1140, 1146-1147.)
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The known fact that defendant uploaded a particular child
pornography video to a decentralized peer-to-peer file-sharing
network known an eDonkey, was sufficient by itself to establish
a fair probability that defendant would have other child
pornography on his computer system. (United States v. Schesso
(9th Cir. 2013) 730 F.3rd 1040, 1045-1047; search warrant upheld.)
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A search warrant affidavit was found to be legally insufficient to
establish probable cause when information from three separate
informants was found to be conclusory only, corroborating each
other only as to pedestrian facts that could have been known to
anyone (i.e., pedestrian facts). Information from an arrestee was
based upon hearsay only. Information from two other informants
did not describe first-hand information, failing to describe the facts
and circumstances underlying the informants conclusions that
defendant and his girlfriend were dealing drugs. Information that
the girlfriend had a prior criminal history did not specify the details
of that history. Also, the fact that one of the informants had
supplied information to law enforcement before was lacking in
detail as to the nature of the prior reports and how long ago.
(People v. French (2011) 201 Cal.App.4th 1307; warrant saved by
the officers reasonable good faith.)
The fact that the target of a residential search warrant was actually
in prison at the time of the alleged crime and could not have
participated in either the commission of the crime or in hiding the
weapons used is a fact that the magistrate should have known in
determining whether probable cause existed. (Bravo v. City of
Santa Maria (9th Cir. 2011) 665 F.3rd 1076, 1087-1088.)
A search warrant for defendants home was based upon the belief
that defendants two sons had some connection with a homicide
and that the firearm used would be found in defendants home.
The Court found that the warrant affidavit failed to establish
sufficient probable causes to believe that either son might have
taken the firearm to defendants home, or even that the sons might
have possessed the firearm themselves. The court further held that
the good-faith exception did not apply in this case because the
officers reliance on the warrant was unreasonable. (United States
v. Grant (2012) 682 F.3rd 827, 832-841.)
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A search warrant, supported by probable cause, authorized the
police to search defendant's house and seize gang indicia of any
sort. Such indicia could logically be found in defendants
cellphone, which had the capacity to store peoples names,
telephone numbers and other contact information, as well as music,
photographs, artwork, and communications in the form of emails
and messages. Defendant's phone was the likely container of many
items that were the functional equivalent of those specifically
listed in the warrant. The text messages seized during the search
of defendant's phone were related to a gang-related assault that he
was suspected of committing, and their suppression was thus not
required under the exclusionary rule. (People v. Rangel (2012)
206 Cal.App.4th 1310, 1315-1317.)
DNA Swab Search Warrant Taken for the Purpose of Eliminating Others
as a Suspect: A state court order pursuant to Arizona Revised Statutes
13-3905 authorizing the collection of DNA samples from officers of the
Phoenix Police Department satisfied the Warrant Clause of the Fourth
Amendment in that the orders were issued by a state court judge and
described a saliva sample to be seized by mouth swab from the person of
plaintiff police officers. The state court expressly found probable cause to
believe that the crime of homicide had been committed and that excluding
public safety personnel as the source of the of DNA left at the scene would
have plainly aided in the conviction of an eventual criminal defendant by
negating any contention at trial that police had contaminated the relevant
evidence. No undue intrusion occurred because it was hardly
unreasonable to ask sworn officers to provide saliva samples for the sole
purpose of demonstrating that DNA left at a crime scene was not the result
of inadvertent contamination by on-duty public safety personnel. (Bill v.
Brewer (9th Cir. 2015) 799 F.3rd 1295.)
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Minimum Contents: At a minimum, a warrant affidavit should include the
following:
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A Chronological Narrative and Factual (as opposed to conclusory)
Description of the circumstances substantiating the officers
conclusion that Probable Cause for a search exists. This would
include:
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The item(s) sought will be found at the location(s) to be
searched.
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Whether the warrant sets out objective standards by which
executing officers can differentiate items subject to seizure
from those which are not; and
Suggested Procedures:
Cases:
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identify the place intended. (Steele v. United States
(1925) 267 U.S. 498, 503 [69 L.Ed. 757].)
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The curtilage of the home is included as a part of the
home, whether or not specifically mentioned in the warrant.
(United States v. Gorman (9th Cir. 1996) 104 F.3rd 272.)
Cases:
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But what is, and what is not, child pornography might be
an issue. As a starting point for determining the
existence of lasciviousness in a photo or photos, a court
may use the following non-exclusive six factor test:
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exception to the Hearsay Rule. (People v. Morgan
et al. (2005) 125 Cal.App.4th 935.)
See also Guest v. Leis (6th Cir. 2001) 255 F.3rd 325,
334-337; seizure of the whole computer system was
not unreasonable so long as there was probable
cause to conclude that evidence of a crime would be
found on the computer.
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Seizure of computers in a homicide investigation
justified by probable cause to believe that specific
documentary evidence would reasonably be found
in the defendants computer. (United States v.
Wong (9th Cir. 2003) 334 F.3rd 831.)
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The fact that the issuing magistrate testified
to an intent to allow for the search of
defendants computers, and that the warrant
included authorization to search for certain
listed records which might be found in a
computer, was held to be irrelevant. (Id. at
pp. 862-863.)
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The purpose of the particularity requirement of the
Fourth Amendment is to avoid general and exploratory
searches by requiring a particular description of the items
to be seized. [Citation] (People v. Bradford (1997) 15
Cal.4th 1229, 1296; citing Collidge v. New Hampshire
(1971) 403 U.S 443, 467 [29 L.Ed.2nd 564, 583]; and
Stanford v. Texas (1965) 379 U.S. 476, 485 [13 L.Ed.2nd
432, 437].)
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monitoring his use of social media can be fashioned.
(People v. Appleton (2016) 245 Cal.App.4th 717, 721-728.)
Other Exceptions:
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be insufficient to overcome a staleness (52 days)
issue in a narcotics sales case.
With about two months between the last illegal use of the
victims address and Social Security number and the later
issuance of a search warrant for defendants residence, the
warrant affidavit was still held to support a finding of
probable cause. This finding was based upon a series of
similar incidents over several years, all of which could be
either directly or circumstantially connected to defendant.
(People v. Jones (2013) 217 Cal.App.4th 735.)
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Despite the passage of 23 years, and despite the fact that
defendant had changed residences in that time period, the
nature of the items sought (i.e., a firearm [the murder
weapon], information stored on a computer, and
photographs, journals and diaries), being items people
normally hold onto for years, and that this defendant,
having been in love with the victims husband, wouldnt
have likely discarded, the information in the affidavit
listing these as items or information being sought, was not
stale in that it was probable that defendant would not have
discarded these items, or removed the information from her
computer. (People v. Lazarus (2015) 238 Cal.App.4th 734,
765-776.)
Fingerprints: Note Hayes v. Florida (1985) 470 U.S. 811 [84 L.Ed.2nd
705], for the proposition that a search warrant may authorize the
temporary detention, without probable cause, of a person for the purpose
of taking fingerprints if:
There is thus support in our cases for the view that the Fourth
Amendment would permit seizures for purposes of fingerprinting,
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if there is reasonable suspicion that the suspect has committed a
criminal act, if there is a reasonable basis for believing that
fingerprinting will establish or negate the suspects connection
with that crime, and if the procedure is carried out with dispatch.
(Id., at p. 817.)
See also Davis v. Mississippi (1969) 394 U.S. 721, 727-728 [22
L.Ed.2nd 676, 681-682]; noting that the taking of fingerprints of a
person who is merely subject to a temporary detention is lawful.
Note: The affiant must describe the facts and circumstances which
comprise the probable cause, so that a magistrate may
independently evaluate the existence or nonexistence of sufficient
facts to justify issuance of the warrant. Merely listing the affiants
conclusions, without describing the facts and circumstances that
lead to the affiants conclusions, is legally insufficient.
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Standing depends upon a showing that it was the defendants
own constitutional rights which were violated. (People v.
Shepherd (1994) 23 Cal.App.4th 825, 828.)
Privileged Information:
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Cases:
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Nighttime Searches: Justification for a nighttime search must be
established in the warrant affidavit by establishing good cause, risking
the possible suppression of evidence if it is not. (P.C. 1533; Tuttle v.
Superior Court (1981) 120 Cal.App.3rd 320, 328.)
But see Bravo v. City of Santa Maria (9th Cir. 2011) 665 F.3rd
1076, 1085-1086, where the Court found the failure to justify the
need for a nighttime search to be the intrusive equivalent of failing
to comply with the knock and notice requirements.
Leaving a Copy at the Scene: It is not legally required that a copy of the
affidavit be left at the scene (United States v. Celestine (9th Cir. 2003) 324
F.3rd 1095, 1107.), at least when the place to be searched and the property
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to be seized is sufficiently described in the search warrant itself. (United
States v. McGrew (9th Cir. 1997) 122 F.3rd 847.)
The original is returned to the Court with the original warrant and
affidavit.
A copy is left with the person from whom property is taken, or left at the
place searched, as a receipt of for those items taken by the searching
officers.
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When the reason for a rule ceases, so should the rule
itself. (Civ. Code 3510)
Note: This assumes that the witness has the expertise necessary to
interpret what it is he sees. E.g., a witness telling law enforcement
that he has observed a person using a controlled substances would
have to be able to establish that he has the training or experience to
recognize what the controlled substance looks like.
The victim of a crime will usually qualify. (People v. Griffin (1967) 250
Cal.App.2nd 545, 550.)
See Gillan vs. City of San Marino (2007) 147 Cal.App.4th 1033, 1045;
where the alleged victim of a crime was held to be not credible, but then
cites the general rule: Typically, information from a victim or a witness
to a crime, absent some circumstance that would cast doubt upon their
information, is enough to establish probable cause. Such a victim or
witness is generally considered to be reliable. Information provided by a
crime victim or chance witness alone can establish probable cause if the
information is sufficiently specific to cause a reasonable person to believe
that a crime was committed and that the named suspect was the
perpetrator. [Citation.] Neither a previous demonstration of reliability
nor subsequent corroboration is ordinarily necessary when witnesses to or
victims of criminal activities report their observations in detail to the
authorities. [Citation]
The identity of the citizen informant need not always be disclosed, but
sufficient facts for the magistrate to conclude that the informant does so
qualify as a citizen informant must be made available. (People v.
Lombera (1989) 210 Cal.App.3rd 29, 32.)
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Some involvement with criminal activity does not preclude one from
being classified as a citizen informant. (People v. Schulle (1975) 51
Cal.App.3rd 809.) But the informants motivation for providing the
information must be examined.
Also, other negative information known to a police officer which puts into
question a victims veracity may be enough to negate probable cause.
(See Wesley v. Campbell (6th Cir. Mar. 2, 2015) 779 F.3rd 421.)
The presumption is, absent some reason to disbelieve him, that such an
informant is reliable. (See People v. Prewitt (1959) 52 Cal.2nd 330, 334-
337; People v. Metzger (1971) 22 Cal.App.3rd 338, 345; People v. Dumas
(1973) 9 Cal.3rd 871; People v. McFadin (1982) 127 Cal.App.3rd 751.)
Having given some bad information in the past does not necessarily
disqualify an informant from being labeled reliable. (People v. Barger
(1974) 40 Cal.App.3rd 662; People v. Murphy (1974) 42 Cal.App.3rd 81.)
However, facts showing why in this case the informant is to be believed
may be necessary, or other corroboration of his/her information.
Note: In practice, despite the favorable case law, police officers most
often seeks to corroborate even a reliable informants information just
because, being motivated by personal gain, common sense tells us that
such a persons credibility is almost always something that should be
substantiated before acting upon his or her information.
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provided untruthful information in the past, or as of yet, has not been used before
as an informant.
However, it has been held that two untested informants providing the same
information, acting independently, may be sufficient to corroborate each
other. (People v. Balassy (1973) 30 Cal.App.3rd 614, 621.)
The fact that the government informant had engaged in past crimes did not
raise due process concerns about the governments use of him as a
confidential informant in its investigation, and the nature of his past
crimes did not render the governments conduct outrageous. It is also not
shocking that the informant was cooperating out of self-interest. (United
States v. Hullaby (9th Cir. 2013) 736 F.3rd 1260, 1262-1263.)
Rule:
Corroboration:
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Revealing the Informants Identity: In practice, an informants identity
will have to be revealed only:
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In order to discharge his burden of proving the informant is
a material witness, the defendant need not necessarily show
what the informant would testify to, nor even that the
informer could give testimony favorable to him. (Price v.
Superior Court, supra.)
If, after such an in camera review, the court finds the necessary
substantial preliminary showing of information that tends to contradict
material representations made in the affidavit, or constitutes material
omissions from it, the court should then order the disclosure of the
documents to the defendant. Based upon this information, a Franks
hearing, per Franks v. Delaware (1978) 438 U.S. 154 [57 L.Ed.2nd 667],
may be appropriate. (See above.)
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Note: The purpose is to challenge the reliability of the information
obtained from a confidential informant, without necessarily
revealing the informants identity. The danger is in insuring that
the court does not inadvertently give away too much information,
affording the defense the opportunity to figure out who the
informant is.
If the defense can meet its burden of showing some need for the
information and some proof that there is something of some substance in
existence (beyond merely speculating that some adverse information
exists), the court should inspect the documents in camera, deleting any
reference to the informants identity before providing the information to
the defense. (People v. Luttenberger, supra.)
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Probable Cause Issues:
Searches of a Residence:
Stolen Property: When property has been stolen by a defendant and has
not yet been recovered, a fair probability exists that the property will be
found at the defendants home. A magistrate can reasonably conclude that
a suspects residence is a logical place to look for specific incriminating
items where there exists probable cause to believe that the defendant stole
them. (People v. Carrington (2009) 47 Cal.4th 145, 161-164.)
See also People v. Lee (2015) 242 Cal.App.4th 161, 173, holding
that upon proof that there are firearms resgistered to defendant, it is
logical to assume that he possesses them in his home, even though
he is only temporarily residing in that residence. (I)t is no great
leap to infer that the most likely place to keep a firearm is in ones
home.
But:
Trashcan Searches: Fresh marijuana stem and leaf cuttings found in a trashcan in
front of a residence establishes probable cause justifying the issuance of a search
warrant for the residence. (People v. Thuss (2003) 107 Cal.App.4th 221.)
Computer Searches:
Cases:
See also United States v. Lara (9th Cir. 2016) 815 F.3rd
605, 610-611; declining to include defendants cellphone
under the category of a container, in defendants Fourth
wavier search conditions.
The fact that the defendant may not have owned the computers that
the affiant was asking to search at the time of the crime did not
preclude the possibility that she had also transferred information or
recordsparticularly photographsto computers owned at the
time of the search. (People v. Lazarus (2015) 238 Cal.App.4th
734, 776; noting that personal computers often hold diaries,
calendars, files, and correspondence.)
Other Searches:
Conspiracy:
A civil plaintiffs argument that the victim and a law enforcement officer
conspired together to obtain an invalid search warrant and to execute it at
a time when the plaintiff and victims children were present, and to use
excessive force in the execution of the warrant, with a goal of giving the
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victim an unfair advantage in the couples custody proceedings, if
supported by some evidence, must be evaluated by a civil jury.
Conspiracy to violate a citizens rights under the Fourth Amendment . .
. is evidently as much a violation of an established constitutional right as
the [underlying constitutional violation] itself. (Cameron v. Craig (9th
Cir. 2013) 713 F.3rd 1012, 1023-1024; citing Baldwin v. Placer County
(9th Cir. 2005) 418 F.3rd 966, 971.)
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Consent: A consent to search excuses the absence of a search
warrant, or even probable cause. (Florida v. Bostick (1991) 501 U.S. 429
[115 L.Ed.2nd 389].)
Inevitable Discovery:
The fact that the evidence would have inevitably been discovered
anyway must be established by the People by a preponderance of
the evidence. (United States v. Young (9th Cir. 2009) 573 F.3rd
711, 721-723; where it was not shown that the hotel where its
employees discovered the defendants firearm would not have
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merely stored the weapon and return it to defendant, as according
to its policy. [See also the dissent, pp. 723-729, arguing that the
inevitable discovery rule applied].)
Searches of Vehicles:
An arrestee, and the area within his immediate reach when arrested
(i.e., the lunging area), is subject to a warrantless search, so long
as done contemporaneously in time and place with the arrest.
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(Chimel v. California (1969) 395 U.S. 752 [23 L.Ed.2nd 685];
United States v. Robinson (1973) 414 U.S. 218 [38 L.Ed.2nd 427];
People v. Sanchez (1985) 174 Cal.App.3rd 343; People v. Dennis
(1985) 172 Cal.App.3rd 287; People v. Summers (1999) 73
Cal.App.4th 288.)
Administrative/Regulatory Searches:
Murder Scene: Mincey v. Arizona (1978) 437 U.S. 385 [57 L.Ed.2nd 290];
Flippo v. West Virginia (1999) 528 U.S. 11 [145 L.Ed.2nd 16].)
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Arson Scene: Michigan v. Tyler (1978) 436 U.S. 499 [56 L.Ed.2nd 486].)
Bank Records: Otherwise private papers (i.e., records) turned over to a bank
deprives the owner of the papers of any claim of privacy as to the contents of
those records. (United States v. Miller (1976) 425 U.S. 435, 440 [48 L.Ed.2nd
71].)
Requires notice to the customer and the bank. Customer has ten
days to move to quash the subpoena.
The normal ten-day period for service and return of the warrant
may be extended if the bank cannot reasonably make the records
available within ten days.
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Judicial Subpoena or Subpoena Duces Tecum (Govt. Code
7476):
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misrepresentation, misstatement, or omission, with a loss of over
$400, is a felony (wobbler).
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(c) A violation of this chapter is an infraction punishable
by a fine of not less than one hundred dollars ($100) for
the first offense, and a fine of not less than five hundred
dollars ($500) for each subsequent offense.
Telephone Records:
Pen Registers and Trap and Trace Devices: Installation of a pen register
and/or a trap and trace device may be accomplished by use of a search warrant
or other court order, at least under state rules. (See People v. Larkin (1987) 194
Cal.App.3rd 650, 654, and newly enacted (effective 1/1/2016) statutory rules,
below.)
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(D) Electronic funds transfer information stored by
a financial institution in a communications system
used for the electronic storage and transfer of funds.
(a) Except as provided in subd. (b), a person may not install or use
a pen register or a trap and trace device without first obtaining a
court order pursuant to P.C. 638.52 or 638.53.
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(5) If the consent of the user of that service has been
obtained.
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(4) Evidence that tends to show a felony has been
committed, or tends to show that a particular person has
committed or is committing a felony.
(5) Evidence that tends to show that sexual exploitation of a
child, in violation of P.C. 311.3, or possession of matter
depicting sexual conduct of a person under 18 years of age,
in violation of P.C. 311.11, has occurred or is occurring.
(6) The location of a person who is unlawfully restrained or
reasonably believed to be a witness in a criminal
investigation or for whose arrest there is probable cause.
(7) Evidence that tends to show a violation of Labor Code
3700.5, or tends to show that a particular person has
violated Labor Code 3700.5.
(8) Evidence that does any of the following:
(d) An order issued pursuant to subd. (b) shall specify all of the
following:
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(2) The identity, if known, of the person who is the subject
of the criminal investigation.
(3) The number and, if known, physical location of the
telephone line to which the pen register or trap and trace
device is to be attached and, in the case of a trap and trace
device, the geographic limits of the trap and trace order.
(4) A statement of the offense to which the information
likely to be obtained by the pen register or trap and trace
device relates.
(5) The order shall direct, if the applicant has requested, the
furnishing of information, facilities, and technical
assistance necessary to accomplish the installation of the
pen register or trap and trace device.
(l) The magistrate, before issuing the order pursuant to subd. (b),
may examine on oath the person seeking the pen register or the
trap and trace device, and any witnesses the person may produce,
and shall take his or her affidavit or their affidavits in writing, and
cause the affidavit or affidavits to be subscribed by the parties
making them.
(1) By midnight of the second full court day after the pen
register or trap and trace device is installed, a written
application pursuant to P.C. 638.52 shall be submitted by
the peace officer who made the oral application to the
magistrate who orally approved the installation and use of a
pen register or trap and trace device. If an order is issued
pursuant to P.C. 638.52, the order shall also recite the
time of the oral approval under subdivision (a) and shall be
retroactive to the time of the original oral approval.
(2) In the absence of an authorizing order pursuant to para.
(1), the use shall immediately terminate when the
information sought is obtained, when the application for the
order is denied, or by midnight of the second full court day
after the pen register or trap and trace device is installed,
whichever is earlier.
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(b)
(d) For the purposes of this section, adverse result has the
meaning set forth in P.C. 1546(a).
Pen. Code 1546.1: Search Warrants and Pen Registers and Trap and
Trace Devices:
Effective September 23, 2016, pen register and trap and trace court
orders (P.C. 638.50638.55) are added as subdivisions (b)(5)
and (c)(12) to the list of warrants and orders authorized by the
CalECPA for the obtaining of electronic communication
information, so that it is clear that P.C. 638.50638.55 are
effective provisions and may be used by law enforcement without
running afoul of the CalECPA.
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Even if the procedures described in these statutes are
violated, suppression of evidence is not an appropriate
remedy. (United States v. Forrester (9th Cir. 2007) 495
F.3rd 1041, 1051.)
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Use of a pen register and trap and trace device, except maybe when
combined with other forms of electronic surveillance, is not
enough alone to establish the required necessity to justify the
issuance of a wiretap warrant. (United States v. (9th Cir. 2009) 585
F.3rd 1223, 1228, citing United States v. Gonzalez, Inc., (9th Cir.
2005) 412 F.3rd 1102, 1113.)
Medical Marijuana:
Newsroom Searches:
P.C. 1524(g) provides that; No warrant shall issue for any item
described in section 1070 of the Evidence Code.
This does not protect from search warrants other evidentiary items
and contraband, as listed in P.C. 1524(a)(1) through (17), where
there is probable cause to believe the item sought is in a
newsroom.
Search Warrants:
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Applicability of the Fourth Amendment:
Jurisdictional Issues:
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Search of Unauthorized Cellphones Recovered at CDCR:
Mechanics of Preparation:
Make sure all exhibits are labeled and attached to the warrant affidavit,
and are incorporated by reference in the affidavit.
Who May Serve: A search warrant is directed to any peace officer for
service. (P.C. 1529)
Exceptions: There are some exceptions to the general rule that the
person serving a search warrant must be a peace officer:
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Victims: It is permissible for a burglary victim to accompany the
searching officers and point out items stolen from him. (People v.
Superior Court [Meyers] (1979) 25 Cal.3rd 67; People v. Superior
Court [Moore] (1980) 104 Cal.App.3rd 1001.)
News Media, Etc.: Members of the news media, or any other third
party not necessary to the execution of the warrant, must not be
allowed to enter a suspects private residence. To allow such
persons to accompany the searching officers is a Fourth
Amendment violation. (Wilson v. Layne (1999) 526 U.S. 603,
614 [143 L.Ed.2nd 818, 830]; Hanlon v. Berger (1999) 526 U.S.
808 [143 L.Ed.2nd 978].)
Night Service: Search warrants must be served between 7:00 a.m. and
10:00 p.m., absent an endorsement by the magistrate for night service.
(P.C. 1533)
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Night service must be supported by good cause, i.e., some
articulable reason why service cannot wait until morning. (See
Nighttime Searches, above.)
The same rule would apply to the use of a motorized battering ram
in the execution of an arrest warrant. (Id., p. 33.)
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In-County Service: A judge can issue a warrant to be served anywhere in
the county in which he or she is sitting. (People v. Smead (1985) 175
Cal.App.3rd 1101.)
General Rule: Any time a police officer makes entry into the
residence of another to arrest (P.C. 844), with or without an
arrest warrant, or to serve a search warrant (P.C. 1531), he must
first:
Knock.
Identify him- or herself as a police officer.
State his or her purpose (e.g., serving a warrant).
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Demand Entry.
P.C. 1531: The officer may break open any outer or inner door
or window of a house, or any part of a house or anything therein, to
execute the warrant, if, after notice of his authority and purpose, he
is refused admittance.
Exceptions:
Be dangerous;
Futile; or
Inhibit the effective investigation of the crime, such
as by allowing the destruction of evidence.
For example:
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It is not necessary to explain why admittance is sought
when the officers intentions are reasonably apparent.
(People v. Hill (1974) 12 Cal.3rd 731, 758.)
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Parsley v. Superior Court (1973) 9 Cal.3rd 934, 939-949;
finding them in violation of the Fourth Amendment.)
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also see People v. Downey (2011) 198 Cal.App.4th 652,
657-662, finding that less than probable cause is required.
The Court also ruled in Hudson that because civil suits are
more readily available than in 1914 with the exclusionary
rule was first announced, and because law enforcement
officers, being better educated, trained and supervised, can
be subjected to departmental discipline, suppressing the
product of a knock and notice violation is no longer a
necessary remedy. (Ibid.)
See United States v. Weaver (D.C. Cir. 2015) 808 F.3rd 26,
where the D.C. Court of Appeal rejected the applicability
of Hudson v. Michigan, supra, in an arrest warrant service
situation, and held that federal agents violated the knock-
and-announce rule by failing to announce their purpose
before entering defendants apartment. By knocking but
failing to announce their purpose, the agents gave
defendant no opportunity to protect the privacy of his
home. The exclusionary rule was the appropriate remedy
for knock-and-announce violations in the execution of
arrest warrants at a persons home.
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A warrantless entry into defendants apartment was
justified under the Fourth Amendment when officers
received the voluntary consent of defendants housemate.
The consent was not coerced even though the housemate
was handcuffed and in custody outside the apartment. The
officer credibly testified that the housemate admitted to
having drugs and a gun in his bedroom and that no threats
or promises were made to obtain consent to search the
bedroom to retrieve these items. The trial court abused its
discretion by excluding evidence on whether the officers
waited long enough to comply with the knock-notice
requirement when they entered the apartment, but the error
was harmless because exclusion of evidence, the only relief
requested, was not the proper remedy. (People v. Byers
(2016) 6 Cal.App.5th 856, 862-865.)
Seizing Items not Listed in the Warrant: Those items listed in the warrant
may be seized, along with any other items reasonably identified as
contraband or evidence of a crime, observed in plain sight during the
search. (Skelton v. Superior Court (1969) 1 Cal.3rd 144, 157.)
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v. Fries (9th Cir. 2015) 781 F.3rd 1137, 1151; quoting United
States v. Smith (9th Cir. 2005) 424 F.3rd 992, 1004.)
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It was noted by the Court in discussing the curative
effect that an affidavit may have on a defective
warrant, that it is error to use a broad ranging
probable cause affidavit to serve to expand the
express limitations imposed by a magistrate in
issuing the warrant itself. (Id., at pp 913-914.)
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portions that satisfy the Fourth Amendment. (United
States v. Flores, supra, at pp. 1042-1046.)
(a) The law enforcement officer executing the warrant shall take
custody of any firearm or ammunition that is in the restrained
persons custody or control or possession or that is owned by the
restrained person, which is discovered pursuant to a consensual or
other lawful search.
(b)
Answering incoming calls did not exceed the scope of the relevant
search warrant. (United States v. Ordonez (9th Cir. 1984) 737
F.2nd 793, 810 (amended opinion), and United States v. Gallo (9th
Cir. 1981) 659 F.2nd 110.)
Time Limitations: The warrant must be served and returned within ten
(10) calendar days of issuance or it is deemed to be void. A warrant
which is executed within the ten-day period shall be deemed to have been
timely executed and no further showing of timeliness need be made. (P.C.
1534(a))
The day the warrant is signed by the magistrate is day zero, with
day one being the next day. Saturday, Sunday and holidays are
included in the calculation. (People v. Clayton (1993) 18
Cal.App.4th 440, 444-445.)
After service of the warrant, the officer must forthwith return the
executed warrant to the magistrate with the receipt and inventory
(referred to as the return by some jurisdictions). (P.C. 1537)
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A violation of Federal Rules of Criminal
Procedure, Rule 41s provisions for filing of the
return of inventory, by failing to file the return for
two years, did not require the suppression of
evidence in that the delayed filing was inadvertence
rather than a delibetate or intentional disregard of
the rules. (United States v. Beckmann (8th Cir.
2015) 786 F.3rd 672.)
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Leaving a Copy of the Warrant, Affidavit and/or Receipt and Inventory:
There is no state statutory nor constitutional rule requiring that searching
officers show the suspects the warrant, the affidavit to the warrant, or a
copy of either, or that a copy of either be left at the scene after the search.
(People v. Calabrese (2002) 101 Cal.App.4th 79.)
And see United States v. Celestine (9th Cir. 2003) 324 F.3rd
1095, 1105-1108, describing the policies that underlie the
warrant requirement: providing the property owner
assurance of the lawful authority of the executing officer,
his need to search, and the limits of his power to search.
Destruction of Property:
The use of a battering ram on the door, rubber bullets to knock out
windows, and flash bang devices (one of which seriously injured
defendant) to distract the occupants, even though possibly
unreasonable under the circumstances, but where there is no
causal nexus between the entry and the recovery of evidence in
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the home, does not require suppression of the evidence. (United
States v. Ankeny (9th Cir. 2007) 502 F.3rd 829, 835-838; a one to
1 second delay between knocking and entering.)
Sealing the Warrant Affidavit; i.e., the Hobbs Warrant; All or part of the
warrant affidavit may be ordered sealed by the court if necessary to protect
the identity of the informant. (People v. Hobbs (1994) 7 Cal.4th 948; see
also People v. Sanchez (1972) 24 Cal.App.3rd 664, 678; (People v.
Galland (2008) 45 Cal.4th 354, 363-365.)
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In a traversal motion:
Examples:
In a motion to quash:
Consenting to disclosure of
the sealed materials and
proceeding with the motion
to quash after full disclosure
to the defense; or
Suffering a granting of
defendants motion to quash.
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(People v. Hobbs, supra, at
pp. 971-975.)
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Post-Investigation Disposition of Warrant Application and Supporting
Affidavits:
Return of Property:
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Note: Special provisions for the disposition of firearms (P.C.
12028) and money (P.C. 1420 et seq.)
Where the subject property has been lost or destroyed, Rule 41(g)
is silent as to what alternative relief, if any, the movant may seek.
The Ninth Circuit Court of Appeal has held that even when it
results in a wrong without a remedy, the federal courts are without
jurisdiction to award money damages against the government.
Equitable considerations standing alone cannot waive the
governments immunity from suit. (Ordonez v. United States (9th
Cir. 2012) 680 F.3rd 1135.)
Extensions:
Search warrants must be served within ten (10) calendar days of issuance.
(P.C. 1534)
If, during the 10-day period, it becomes apparent that the warrant cannot,
or will not, be served, the officer may do either of the following:
Lawyer,
Doctor,
Psychotherapist, or
Clergyman,
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A special master must first be appointed by the court, who must then
accompany the officers serving the warrant. A special master is an
attorney licensed to practice law, in good standing, in California, to be
selected from a list of qualified attorneys maintained by the State Bar for
the purpose of conducting such searches. (P.C. 1524(d))
Procedure:
If, in the judgment of the special master, the party fails to provide
the items requested, the special master shall conduct the search for
the items in the areas designated in the search warrant.
The Court Hearing: If the party indicates that the items seized should not
be disclosed (e.g., due to privilege issues), the special master must seal
them and deliver them to the court for a hearing on the issue.
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The Court has a duty to hear and determine the applicability of a
claim of privilege, but lacks the statutory or inherent power to
require the parties to bear the cost of a special masters services.
(People v. Superior Court [Laff] (2001) 25 Cal.4th 703.)
The hearing must be held in Superior Court within three (3) days
of the service of the warrant, or as soon as possible if three days is
impracticable.
Although the statute is silent on the issue, it has been held that the
special master should determine whether a hearing is required and
give notice to the parties concerning when and where such hearing
is to be held. (Gordon v. Superior Court, (1997) 55 Cal.App.4th
1546.)
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Communications Privacy Act upon seeking electronic information
obtained through the execution of a warrant or court order.
Other Warrants:
Examples:
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CCP 1822.60: Warrant for DOJ Inspections: A warrant may be
issued under the requirements of this title to authorize personnel of the
Department of Justice to conduct inspections as provided in (B&P Code
19827(a)).
Hotels and Motels: Hotels and motels do not qualify as closely regulated
businesses, although an administrative subpoena or warrant is all that is
necessary for the inspection of the busniness guest registry records. (City
of Los Angeles v. Patel (June 22, 2015) __ U.S. __, __ [135 S.Ct. 2443,
192 L.Ed.2nd 435].)
Extradition by the States: All fifty states have supplemented the federal
provisions through the adoption of the Uniform Criminal Extradition
Act.
Procedure:
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A copy of any warrant issued thereon; or
Procedure:
Wiretaps vs. Right to Privacy: Both the federal Congress and Californias
Legislature, expressing concern over the potential for violating privacy rights (see
Alderman v. United States (1969) 394 U.S. 165 [22 L.Ed.2nd 176].), have enacted
statutes controlling the use of wiretaps by law enforcement.
Federal rules are contained in the Omnibus Crime Control and Safe
Streets Act of 1968 (Title III, 18 U.S.C. 2510 et seq.). However, in
that Californias state statutes are more restrictive (see People v. Jones
(1973) 30 Cal.App.3rd 852.), it is generally accepted that if a police officer
acts in compliance with P.C. 629.50 et seq., he or she will also be in
compliance with the federal requirements.
The federal Omnibus Crime Control and Safe Streets Act of 1968
authorizes the states to enact their own wiretap laws only if the
provisions of those laws are at least as restrictive as the federal
requirements for a wiretap set out in Title III. (People v. Jackson
(2005) 129 Cal.App.4th 129, 146-147; People v. Otto (1992) 2
Cal.4th 1088, 1098.)
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Subd. (c): The term confidential communication includes any
communication carried on in circumstances as may reasonably
indicate that any party to the communication desires it to be
confined to the parties thereto, but excludes a communication
made in a public gathering or in any legislative, judicial, executive
or administrative proceeding open to the public, or in any other
circumstance in which the parties to the communication may
reasonably expect that the communication may be overheard or
recorded.
Subd. (e): This section does not apply (1) to any public utility
engaged in the business of providing communications services and
facilities, or to the officers, employees or agents thereof, where the
acts otherwise prohibited by this section are for the purpose of
construction, maintenance, conduct or operation of the services and
facilities of the public utility, or (2) to the use of any instrument,
equipment, facility, or service furnished and used pursuant to the
tariffs of a public utility, or (3) to any telephonic communication
system used for communication exclusively within a state, county,
city and county, or city correctional facility.
Subd. (f): This section does not apply to the use of hearing aids
and similar devices, by persons afflicted with impaired hearing, for
the purpose of overcoming the impairment to permit the hearing of
sounds ordinarily audible to the human ear.
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P.C. 633: Exceptions: Nothing in Section 631, 632, 632.5, 632.6, or
632.7 prohibits the Attorney General, any district attorney, or any
assistant, deputy, or investigator of the Attorney General or any district
attorney, any officer of the California Highway Patrol, any chief of police,
assistant chief of police, or police officer of a city or city and county, any
sheriff, undersheriff, or deputy sheriff regularly employed and paid in that
capacity by a county, police officer of the County of Los Angeles, or any
person acting pursuant to the direction of one of these law enforcement
officers acting within the scope of his or her authority, from overhearing
or recording any communication that they could lawfully overhear or
record prior to the effective date of this chapter.
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Jail and Prison Inmates: The Recording of prisoner telephone
conversations, even when made between the jail and the outside world,
would fall within the restrictions of both the federal and state wiretap
statutes unless the inmate is put on notice that his conversations may be
monitored and/or recorded.
Under Title III; (I)t shall not be unlawful . . . for a person acting
under color of law to intercept a wire, oral, or electronic
communication where . . . one of the parties to the communication
has given prior consent to such interception. (Italics added; 18
U.S.C. 2511(2)(c))
Based upon this, it has been held that where a sign has been
posted indicating that telephone calls may be monitored
and recorded, inmates are on notice, and his or her
decision to engage in conversations over those phones
constitutes implied consent to that monitoring and takes
any wiretap outside the prohibitions of Title III. (People
v. Kelly 103 Cal.App.4th 853, 858; warrantless recording of
defendants telephone conversations to parties on the
outside approved.)
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to the wiretap restrictions of P.C. 631. (People v. Santos
(1972) 26 Cal.App.3rd 397, 402.)
See also People v. Nakai (2010) 183 Cal. App. 4th 499,
517-518: Incriminating online chat with a minor is not a
confidential communication per P.C. . 632 that requires
suppression.
Be made to:
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Another judge designated by the presiding judge, or
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A particular description of the type of
communication sought to be intercepted,
and
Upon application made per P.C. 629.50 (see above), a judge may
enter an ex parte order, as requested or modified, authorizing the
interception of;
Wire,
Electronic pager, or
Electronic communication;
2. Murder,
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There is probable cause to believe that particular
communications concerning the illegal activities will be
obtained through that interception, including, but not
limited to, communications that may be utilized for
locating or rescuing a kidnap victim;
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P.C. 629.53: Judicial Guidelines: The Judicial Council may establish
guidelines for judges to follow in granting an order authorizing the
interception of any wire, electronic pager, or electronic communication.
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There is probable cause to believe that an emergency
situation exists with respect to the investigation of an
offense enumerated in P.C. 629.52, and
Every order and extension thereof shall contain a provision that the
authorization to intercept shall:
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Be conducted so as to minimize the interception of
communications not otherwise subject to interception under
this chapter, and
Be filed with the court at least every ten (10) days, or more
frequently if ordered by the court; and
The report shall be made at the interval that the order may require,
but not less than ten (10) days after the order was issued.
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The Attorney General shall, upon the request of an individual
making an application for an interception order, provide any
information known as a result of these reporting requirements, as
required by P.C. 629.50(a)(6).
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A general description of the interceptions made under the
order or extension, including:
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The annual report shall include a summary analysis of the above.
The Attorney General may issue regulations prescribing the
content and form of the reports required to be filed by a
prosecutorial agency.
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communication or evidence derived therefrom under P.C.
629.78, below.
The sealing order may be oral or written, and the physical sealing
of the tapes need not be done in the judges presence. (People v.
Superior Court [Westbrook] (1993) 15 Cal.App.4th 41, 47-51;
discussing former P.C. 629.14, now 629.64.)
The application and orders made pursuant to this chapter shall be:
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P.C. 629.68: Notice to Parties to Intercepted Communications:
The issuing judge shall issue an order that shall require the
requesting agency to serve:
Upon the filing of a motion, the judge may, in his or her discretion,
make available to the person or his or her counsel for inspection
the portions of the intercepted communications, applications and
orders that the judge determines to be in the interest of justice.
The ten (10) day period may be waived by the judge if he or she
finds that it was not possible to furnish the party with the above
information ten days before trial, hearing or proceeding, and that
the party will not be prejudiced by the delay in receiving that
information.
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P.C. 629.72: Motions to Suppress:
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(i.e., Proposition 8) do not prevent the suppression of evidence
obtained in violation of the wiretap statutes. Pgs. 152-153.)
Case law:
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P.C. 629.76: Use of Intercepted Information:
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The evidence was obtained through an
independent source, or
See also United States v. Carey (9th Cir. 2016) 836 F.3rd
1092, holding that evidence obtained in plain hearing,
when overhearing speakers unrelated to the target
conspiracy while listening pursuant to a valid wiretap, is
admissible.
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Imprisonment in the state prison or county jail, pursuant to
P.C. 1170(h), for 16 months, 2 or 3 years (see P.C. 18),
or
Both the above fine and the county jail or state prison
imprisonment.
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pager, or electronic cellular telephone communication
pursuant to an order issued in accordance with the
provisions of this Chapter, or
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Furnish the applicant forthwith all information, facilities, and
technical assistance necessary to accomplish the interception
unobtrusively and with a minimum of interference with the
services the person or entity is providing the person whose
communications are to be intercepted.
*Note: Recertification has been set for every five (5) years.
This Chapter shall remain in effect only until January 1, 2020, and
as of that date is repealed.
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(e) An application for an order approving eavesdropping must be
made within 48 hours after the eavesdropping has begun.
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Chapter 7
Warrantless Searches:
General Rule:
Although the use of a search warrant when conducting any search is the
general rule (see below, and Searches With a Search Warrant (Chapter
6), above), under the terms of the Fourth Amendment, the search of a
person, vehicle and (possibly) container without a warrant may often be
justified under one or more of three legal theories:
Incident to Arrest
With Probable Cause plus Exigent Circumstances
With Consent
Aside from the three legal theories noted above, there are at least nine
other justifications for the search and/or seizure of evidence without the
need for a search warrant, as discussed below:
Plain Sight Observations: A plain sight observation (or plain smell or plain
hearing) is not a search, and thus does not implicate the Fourth Amendment.
The evidence must not have been discovered as the result of any
invasion, intrusion, or illegal entry other than purely formal
trespass.
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Thus a mans home is, for most purposes, a place where
he expects privacy, but objects, activities, or statements that
he exposes to the plain view of outsiders are not
protected because no intention to keep them to himself
has been exhibited. . . . (C)onversations in the open would
not be protected against being overheard, for the
expectation of privacy under the circumstances would be
unreasonable. (Id., at p. 361 [19 L.Ed.2nd at p. 588];
concurring opinion.)
Examples:
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Use of night vision goggles to observe areas within the
curtilage of defendants residence was irrelevant. (People
v. Lieng (2010) 190 Cal.App.4th 1213, 1227-1228.)
The use of a flashlight to look into a structure, when the
officers are in a place they have a lawful right to be, is not a
search. (United States v. Dunn (1987) 480 U.S. 294, 298,
304 [94 L.Ed.2nd 326, 333, 336-337]; . (People v. Chavez
(2008) 161 Cal.App.4th 1493, 1501; United States v.
Barajas-Avalos (9th Cir. 2004) 359 F.3rd 1204, 1214, but
see dissenting opinion, at pp. 1220-1221.)
The use of binoculars to enhance what the officer can already see,
depending upon the degree of expectation of privacy involved
under the circumstances, is normally lawful. (People v. Arno
(1979) 90 Cal.App.3rd 505.)
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A person who exposes his facial features, and/or body in general,
to the public, in a public place, has no reasonable expectation of
privacy in his appearance. (See People v. Benedict (1969) 2
Cal.App.3rd 400, 403-404; The latter phenomenon (defendants
physical characteristics) was in plain sight of the officer and
observed by him without any semblance of a search or seizure; his
use of a flashlight to observe the pupillary reaction was not
improper. The utilization of the light from a flashlight directed to
that which is in plain sight ordinarily does not render observation
thereof a search; citing People v. Cacioppo (1968) 264
Cal.App.2nd 392, 397.)
The Plain Sight Observation vs. the Right To Enter a Residence: When
observing contraband within a residence from the outside, a warrantless
entry into those premises to seize the contraband would not be justified
absent exigent circumstances. (Horton v. California (1990 496 U.S. 128,
137, fn. 7 [110 L.Ed.2nd 112, 123]; United States v. Murphy (9th Cir.
2008) 516 F.3rd 1117, 1121.) A search warrant authorizing the entry of the
residence must first be obtained.
Plain Hearing: It has also been held that an offense occurring within a police
officers sense of hearing is within his presence, and can supply probable cause.
(People v. Bradley (1957) 152 Cal.App.2nd 527.)
Plain Smell: It has been argued that there should be no logical distinction
between something apparent to the senses of sight and hearing and the same thing
apparent to the sense of smell. (People v. Bock Leung Chew (1956) 142
Cal.App.2nd 400.)
This, however, does not relieve the officer of the legal duty to
obtain a search warrant before opening an already seized package
which is the source of the odor, absent exigent circumstances
excusing the lack of a warrant. (Id. at p. 14 [92 L.Ed. at pp. 440-
441].)
Examples:
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defendants vehicle was sufficient to justify the warrantless search
of the vehicle. (People v. Waxler (2014) 224 Cal. App. 4th 712.)
It was not error for the federal district court to deny defendants
motion to suppress evidence retrieved from his car because the
prolonged stop following a routine traffic stop was justified by the
smell of marijuana along with the credible testimony by the police
officer. The odor alone was sufficient to establish probable cause
to search the automobile and its contents. (United States v. Smith)
(8th Cir. 2015) 789 F.3rd 923.)
Exceptions:
Minority Opinion:
Odor of Ether: The courts uniformly have held that the odor of
ether (a byproduct of the manufacturing process for some
dangerous drugs), emanating from a particular location (e.g., a
house or garage), is not probable cause to search for drugs.
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Per the California Supreme Court: We have defined exigent
circumstances to include an emergency situation requiring swift
action to prevent imminent danger to life or serious damage to
property . . . . (People v. Ramey (1976) 16 Cal.3rd 263, 276 . . . )
The action must be prompted by the motive of preserving life or
property and [must] reasonably appear to the actor to be necessary
for that purpose. (People v. Roberts (1956) 47 Cal.2nd 374, 377 . .
. ) (People v. Duncan (1986) 42 Cal.3rd 91, 97.)
Examples:
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belief that if the house is not immediately secured the
evidence will be destroyed, officers may enter to secure the
house pending the obtaining of a search warrant or a
consent to do a complete search. (United States v.
Alaimalo (9th Cir, 2002) 313 F.3rd 1188; see also Sandoval
v. Las Vegas Metro. Police Dept. (9th Cir. 2014) 756 F.3rd
1154, 1161; Sialoi v. City of San Diego (9th Cir. 2016) 823
F.3rd 1238.)
To check for other suspects, for the officers safety. (United States
v. Ojeda, supra; (People v. Superior Court [Chapman] (2012) 204
Cal.App.4th 1004, 1011)
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See Protective Sweeps, under Searches of Residences
and Other Buildings (Chapter 10), below.
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Based upon probable cause to believe a domestic violence
incident had occurred and that the female victim, known to
be in a hotel room, might need the officers assistance; a
warrantless entry was upheld. (United States v. Brooks (9th
Cir. 2004) 367 F.3rd 1128.)
Where the plaintiff mother took her injured infant son to a hospital,
losing physical custody of her son pending the resolution of
dependency proceedings, the defendant doctor was properly denied
summary judgement based upon qualified immunity as to the
plaintiffs claims under 42 U.S.C. 1983 and the Fourth and
Fourteenth Amendments. Plaintiffs allegations supported a
claim that the doctor caused a seizure of the child since a rational
jury could conclude that the doctors efforts would lead reasonable
parents in plaintiffs position to believe they could not take the
child home. A rational jury could conclude that the doctors
seizure of the child did not occur under exigent circumstances.
The case law provided fair warning to the doctor that detaining the
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child would violate the Constitution. Also, the doctor was not
entitled to the benefit of any state statutory privileges. (Jones v.
County of Los Angeles (9th Cir. 2015) 802 F.3rd 990, 999-1008.)
Examples:
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Hyde (1974) 12 Cal.3rd 158; United States v. Aukai (9th Cir. 2007)
497 F.3rd 955.)
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Searching of school lockers for a firearm reported to have been
used in a shooting by a student on a city transit bus the day before.
(In re J.D. (2014) 225 Cal. App. 4th 709, 714-720.)
A state hospital program to test pregnant women for drug use when
the results are made available to law enforcement. (Ferguson v.
City of Charleston (2001) 532 U.S. 67 [149 L.Ed.2nd 205].)
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has never been applied where the purpose of the search was
to detect evidence of ordinary criminal wrongdoing.].)
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See P.C. 11174.3(a), setting out a statutory procedures
police officers are to use in interviewing child victims
while at school.
Rule: The courts have indicated that a warrant is not necessary in those cases
where the place to be searched is commercial property, and the industry involved
is one that is so pervasively regulated or closely regulated that warrantless
inspections are necessary to insure proper, or legal, business practices. (Donovan
v. Dewey (1981) 452 US. 594, 598-599 [69 L.Ed.2nd 262, 268-169]; New York v.
Burger (1987) 482 U.S. 691, 700 [96 L.Ed.2nd 601, 612-613]; People v. Paulson
(1990) 216 Cal.App.3rd 1480, 1483-1484.)
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General Examples:
A County Jail, including lockers located outside the visitor center but
maintained by the jail personnel, particularly with signs warning visitors
that they were subject to search, is the equivalent to a closely regulated
business allowing for a warrantless administrative search of a visitor and
the property he deposits in the lockers. (People v. Boulter (2011) 199
Cal.App.4th 761.)
Liquor Sales. (Colonade Catering Corp. v. United States (1970) 397 U.S.
72 [25 L.Ed.2nd 60].)
Firearms Dealers. (United States v. Biswell (1972) 406 U.S. 311, 311-312
[32 L.Ed.2nd 87].)
Mining. (Donovan v. Dewey (1981) 452 U.S. 594 [69 L.Ed.2nd 262].)
Automobile Junkyards. (New York v. Burger (1987) 482 U.S. 691 [96
L.Ed.2nd 601].)
See also United States v. Biswell (1972) 406 U.S. 311 [32 L.Ed.2nd 87];
warrantless search of a gun dealers place of business under authority of
the Gun Control Act (18 U.S.C. 921 et seq.), upheld.
Vehicle Code:
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In Schmerber, the defendant had been in a traffic
collision and had to be transported to the hospital
due to his injuries. The Court in McNeely pointed
out that where time had to be taken to bring the
accused to a hospital and to investigate the scene of
the accident, there was no time to seek out a
magistrate and secure a warrant. (Citation) Given
these special facts, we found that it was appropriate
for the police to act without a warrant. (Citation)
(Missouri v. McNeely, supra, at 133 S.Ct. at p.
1560.)
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Note: To put this rule into a formula:
Implied consent per V.C. 23612 +
circumstances consistent with consent =
actual consent.
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A non-violent and/or non-manipulative refusal to
submit to a blood or breath test is not a violation of
the resisting a peace officer statute; P.C. 148.
To permit a refusal in and of itself to be
independently punished under section 148wholly
outside the implied consent scheme and the
Legislatures policy judgmentswould be
inappropriate. (A) person has the right to refuse
to consent to a search and the exercise of a
constitutional right cannot be punished under
section 148. (People v. Valencia (2015) 240
Cal.App.4th Supp. 11, 16-27.)
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Penal Code:
Fish and Game Code: There is case law that refers to the regulation of
hunting and fishing as having relaxed search and seizure standards due to
the fact that they are highly regulated activities, and that requiring
warrants would make it impossible to effectively implement hunting and
fishing laws. But the case law is very sparse:
Cases:
Financial Code:
Miscellaneous:
School Searches:
Students in General:
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age and sex of the student and the nature of the infraction.
(Id., at p. 342.)
Cases:
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Using a drug-sniffing dog to do sniffs of a student, being
more intrusive, are considered to be a search and controlled
by the Fourth Amendment, but only requires a finding of
a reasonable suspicion when the person sniffed is a
student. (B.C. v. Plumas (9th Cir. 1999) 192 F.3rd 1260;
random and suspicionless drug-sniff search of students held
to be unreasonable under the circumstances.)
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The suspicionless search of a student was upheld where it
was conducted pursuant to an established policy applying
to all students and was consistent with the type of action on
the part of a school administrator that fell well within the
definition of special needs of a governmental agency.
The search was of a limited nature, being told only to
empty out his pockets, as he was not subjected to physical
touching of his person nor was he exposed to the intimate
process required for a urine sample necessary for drug
testing. The purpose of the search was to prevent the
introduction of harmful items (weapons and drugs) into the
school environment. Given the general application of the
policy to all students engaged in a form of rule violation
that could easily lend itself to the introduction of drugs or
weapons into the school environment (i.e., leaving during
the school day without permission and returning later),
further individualized suspicion was not required. (In re
Sean A. (2010) 191 Cal.App.4th 182, 186-190.)
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Also, as to whether the fact that local city police
became involved in the search for the firearm in this
case might have somehow converted it into
something other than a school search, the Court
noted that; the secondary role of the police officers
does not cancel the fundamental feature of this
caseadministrators seeking to secure the school
premises from potential for violence. (Id., at p.
720.)
Airport Searches:
(United States v. Davis (9th Cir. 1973) 482 F.2nd 893, 913; Torbet
v. United Airlines, Inc. (9th Cir. 2002) 298 F.3rd 1087, 1089-1090;
United States v. Marquez, supra., at p. 616.)
Once having gone through the initial screening, a person loses his right to
revoke his implied consent to being searched and must submit his
person (United States v. Aukai (9th Cir. 2007) 497 F.3rd 955.) and his
carry-on luggage (Torbet v. United Airlines, Inc., supra.) to a secondary
screening, so long as the selection of those subject to such secondary
screenings is done objectively. E.g.:
Note: United States v. Aukai, supra, found that implied consent is not a
proper theory for upholding airport searches. Rather, a warrantless,
suspicionless search of a passenger, after the passenger has passed through
the magnetometer (or has put his carry-on luggage on the conveyor belt
for x-raying) is lawful as an administrative search.
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Californias First District Court of Appeal (Div. 5) has found this theory to
be a whole separate exception to the search warrant requirement, calling it
the Minimal Intrusion Exception. (People v. Robinson (2012) 208
Cal.App.4th 232, 246-255; The minimal intrusion exception to the
warrant requirement rests on the conclusion that in a very narrow class of
searches the privacy interests implicated are so small that the officers do
not need probable cause; for the search to be reasonable. (Id., at p. 247.)
Also, the fact that the defendants front door was within the
curtilage of his home, which also enjoys Fourth Amendment
protection, does not alter the result. With the front door being an
area open to the general public, there was no violation in
approaching the door and inserting the key. (Id., at p. 253, fn. 23.)
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Chapter 8
Searches of Persons:
Privacy Rights: Of all the areas where a person has a legitimate reasonable
expectation of privacy protecting the person from governmental intrusions, none,
perhaps, is greater than that persons own body. (See Winston v. Lee (1985) 470
U.S. 753, 759 [84 L.Ed.2nd 662]; A compelled surgical intrusion into an
individual's body for evidence . . . implicates expectations of privacy and security
of such magnitude that the intrusion may be unreasonable; even if likely to
produce evidence of a crime.)
See also United States v. Fowlkes (9th Cir. 2015) 804 F.3rd 954, 960-968;
the physical extraction of a plastic baggie by police officers during a jail
strip search of a baggie from defendants rectum without a warrant or
persons with proper medical training held to be a Fourth Amendment
violation.
Rule: Where lawful, warrantless searches of a person are justifiable under one or
more of the following legal theories:
Searches Incident to Arrest: A warrantless search of a person and the area within
his/her immediate reach incident to that persons custodial arrest, with or without
any probable cause to believe there is any contraband or evidence subject to
seizure on the person, is lawful, and is justified by the need to keep contraband
and weapons out of jail, to preserve any possible evidence, and to protect the
officer. (Chimel v. California (1969) 395 U.S. 752 [23 L.Ed.2nd 685]; New York
v. Belton (1981) 453 U.S. 454 [69 L.Ed.2nd 768].)
History Behind the Rule: See Birchfield v. North Dakota (June 23, 2016)
__ U.S. __, __ [136 S.Ct. 2160;195 L.Ed.2nd 560], for a description of the
history behind the rule since the 18th century.
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and other things which might be used to assault an officer or effect an
escape, as well as by the need to prevent the destruction of evidence of the
crimethings which might easily happen where the weapon or evidence
is on the accuseds person or under his immediate control. (United
States v. Ventresca (1965) 380 U.S. 102, 107 [13 L.Ed.2nd 684, 688]; see
also Cupp v. Murphy (1973) 412 U.S. 291, 296 [36 L.Ed.2nd 900]; Riley v.
California (June 25, 2014) 573 U.S. __, __ [134 S.Ct. 2473, 2483; 189
L.Ed.2nd 430]; United States v. Camou (9th Cir. 2014) 773 F.3rd 932, 937-
938; Birchfield v. North Dakota, supra.)
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Exceptions:
The Ninth Circuit Court noted in United States v. Weaver (9th Cir.
2006) 433 F.3rd 1104, at page 1107, that searches incident to arrest
have gone well beyond the rational underpinnings of the
Supreme Courts original approval of such searches in New York
v. Belton, supra. More specifically, the Court noted how officer
safety and preservation of evidence (see Chimel v. California,
supra.) are no longer a major concern when the arrestee is
handcuffed and put into a nearby patrol car. And the Court quoted
Supreme Court Justice OConner who is noted to have said that,
lower court decisions seem now to treat the ability to search a
vehicle incident to the arrest of a recent occupant as a police
entitlement rather than as an exception justified by the twin
rationales of Chimel . . . [This is] a direct consequence of Beltons
shaky foundation. (Concurring opinion in Thornton v. United
States (2004) 541 U.S. 615, 624 [158 L.Ed.2nd 905].)
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Note that the U.S. Supreme Court decided in Arizona v.
Gant (2009) 556 U.S. 332 [173 L.Ed.2nd 485], that a
warrantless search of a vehicle incident to arrest is lawful
only when the arrestee is unsecured and within reaching
distance of the passenger compartment at the time of the
search.
Then, in United States v. Maddox (9th Cir. 2010) 614 F.3rd 1046, at
pages 1048-1049, the Ninth Circuit found that a search of a metal
vial on the defendants key chain was unlawful where, although
under defendants control when he was physically arrested, it was
no longer within reach and was beyond defendants ability to
conceal or destroy evidence by the time it was searched because
defendant had been handcuffed and put into a patrol car.
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Transportation Requirement:
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However, P.C. 853.5 has been held to
provide the excusive grounds for a custodial
arrest for an infraction. (Edgerly v. City and
County of San Francisco (9th Cir. 2013)
713 F.3rd 976, 981-985; citing In re
Rottanak K. (1995) 37 Cal.App.4th 260, and
People v. Williams (1992) 3 Cal.App.4th
1100.)
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Contemporaneous in Time and Place:
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Exception:
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Searches of Containers: Such a search includes any containers
found within the area of the defendants arrest. (New York v.
Belton (1981) 453 U.S 454 [69 L.Ed.2nd 768]; People v. Gutierrez
(1984) 163 Cal.App.3rd 332; United States v. Robinson (1973) 414
U.S. 218 [38 L.Ed.2nd 427]; cigarette package found on
defendants person.)
But see Arizona v. Gant (2009) 556 U.S. 332 [173 L.Ed.2nd
485], below, severely limiting the search incident to an
arrest where the suspect has already been secured.
See also United States v. Lara (9th Cir. 2016) 815 F.3rd
605, 610-611; declining to include defendants cellphone
under the category of a container, in defendants Fourth
wavier search conditions.
But see Arizona v. Gant (2009) 556 U.S. 332 [173 L.Ed.2nd
485], discussed below.
But see Arizona v. Gant (2009) 556 U.S. 332 [173 L.Ed.2nd
485], above, and Searches of Vehicles (Chapter 9),
below.
Exceptions:
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The need to prevent the imminent destruction of
evidence;
To pursue a fleeing suspect; and
To assist persons who are seriously injured or are
threatened with imminent injury.
See also United States v. Lara (9th Cir. 2016) 815 F.3rd
605, 610-611; declining to include defendants cellphone
under the category of a container, in defendants Fourth
wavier search conditions.
Searches with Probable Cause: A person may also be searched without a search
warrant any time a law enforcement officer has probable cause to believe the
person has contraband or other seizable property on him. (People v. Coleman
(1991) 229 Cal.App.3rd 321.)
The Exigency excusing the need for a search warrant, obviously, is the
fact that when probable cause develops to believe that the a person
possesses contraband or evidence of a crime, there will not be an
opportunity to obtain a search warrant without risking the loss or
destruction of the items sought. (See below)
But see Arizona v. Gant (2009) 556 U.S. 332 [173 L.Ed.2nd
485], below, under Searches of Vehicles (Chapter 9),
severely limiting the search incident to arrest theory, at
least in vehicles.
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214 Cal.App.3rd 430, 435; People v. Deltoro (1989) 214
Cal.App.3rd 1417, 1422, 1425.)
Intrusions into the Human Body: Of all the areas where a person has a
legitimate reasonable expectation of privacy protecting the person from
governmental intrusions, none, perhaps, is greater than that persons own
body. (See Winston v. Lee (1985) 470 U.S. 753, 759 [84 L.Ed.2nd 662];
A compelled surgical intrusion into an individual's body for evidence . . .
implicates expectations of privacy and security of such magnitude that the
intrusion may be unreasonable; even if likely to produce evidence of a
crime.)
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Cal.4th 1104, 1119; Birchfield v. North Dakota (June 23,
2016) __ U.S. __, __ [136 S.Ct. 2160;195 L.Ed.2nd 560].)
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occurred must be obtained as soon as possible.
(People v. Thompson (2006) 38 Cal.4th 811, 825;
quoting Skinner v. Railway Labor Executives
Assn. (1989) 489 U.S. 602, 623 [103 L.Ed.2nd 639];
see also People v. Toure (2015) 232 Cal.App.4th
1096, 1103-1104.)
Cases:
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This is not to say, however, that surgery would
never be lawful. As the Supreme Court pointed out
in Winston v. Lee, supra, at p. 760 [84 L.Ed.2nd at
p. 669]: The reasonableness of surgical intrusions
beneath the skin depends on a case-by-case
approach, in which the individual's interests in
privacy and security are weighed against society's
interests in conducting the procedure. In a given
case, the question whether the communitys need
for evidence outweighs the substantial privacy
interests at stake is a delicate one admitting of few
categorical answers. In Winston, the defendant
would have had to been subjected to general
anesthesia, and the prosecutions need for the bullet
was questionable, given other evidence of the
defendants guilt.
Choking: Searches of the person may also include the need to forcefully
keep a suspect from swallowing evidence.
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Examples:
Searches with Less Than Probable Cause: In certain instances, where the
governmental interests are stronger than in cases of ordinary criminal
wrongdoing, or the individuals privacy interests are diminished, the probable
cause standards have been relaxed. For instance:
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Railway Workers: The testing of blood or urine of railway
workers involved in certain train accidents. (Skinner v. Railway
Labor Executives Assn. (1989) 489 U.S. 602 [103 L.Ed.2nd 639].)
For Students:
Constitutionality:
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(T)here exists a narrowly drawn authority to permit a
reasonable search for weapons for the protection of the
police officer, where he has reason to believe that he is
dealing with an armed and dangerous individual, regardless
of whether he has probable cause to arrest the individual for
a crime. The officer need not be absolutely certain that the
individual is armed; the issue is whether a reasonably
prudent man in the circumstances would be warranted in
the belief that his safety or that of others was in danger.
(Citation)) [I]n determining whether the officer acted
reasonably in such circumstances, due weight must be
given, not to his inchoate and unparticularized suspicion or
hunch, but to the specific reasonable inferences which he
is entitled to draw from the facts in light of his experience.
(Citation) [I]n justifying the particular intrusion the police
officer must be able to point to specific and articulable facts
which, taken together with rational inferences from those
facts, reasonably warrant that intrusion. (Citation) And in
making that assessment it is imperative that the facts be
judged against an objective standard: would the facts
available to the officer at the moment of the seizure or the
search warrant a man of reasonable caution in the belief
that the action taken was appropriate? (Citation) An
officers good faith is not enough. (King v. State of
California (2015) 242 Cal.App.4th 265, 283; citing Terry v.
Ohio, supra.)
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apprehended is committing or has committed a
criminal offense.
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A Reasonable or Rational Suspicion: The police officer needs to
be able to articulate facts establishing a reasonable or rational
suspicion that the person may be armed. (Terry v. Ohio, supra.)
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Unnatural hand postures that suggest an effort to conceal a
firearm. (United States v. Burkett, supra: Suspect opened
the passenger car door with his left hand and kept his right
hand next to his body and appeared to reach for his coat
pocket.)
Whether the officer observes anything during an encounter
with the suspect that would dispel the officers suspicions
regarding the suspect's potential involvement in a crime or
likelihood of being armed. (Terry v. Ohio, supra, at p. 28;
United States v. $109,179 in U.S. Currency (9th Cir. 2000)
228 F.3rd 1080, 1086.)
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Large-scale marijuana growing operation: Yes. (United
States v. Davis (9th Cir. 2008) 530 F.3rd 1069, 1082-1083;
Because officers reasonably suspected that Richard Davis
was involved in narcotics activity, it was also reasonable
for them to suspect that he might be armed.)
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228 F.3rd 1080, 1086; Thomas v. Dillard, supra, at p. 877,
and fn. 8.)
See United States v. Thomas (9th Cir. 1988) 863 F.2nd 622,
626-630: Although there was reasonable suspicion to stop
a driver who roughly resembled a counterfeiting suspect
and was near the scene of the crime, once the driver exited
his vehicle and it was clear he did not match the suspects
description, there was no reasonable suspicion under the
circumstances to justify further detention or a frisk.
Procedures:
Problems:
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Taking the hint, the appellate court in
People v. Coulombe (2001) 86 Cal.App.4th
52, found sufficient corroboration justifying
a patdown for a firearm when the
information came from two separate
informants, where the tips were close in
time, the informants contacted the officer
personally (thus putting their anonymity at
risk), and the setting was in a crowded
throng of celebrants at a New Years Eve
street party, thus increasing the danger.
Other Situations:
Abandoned Property:
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unreasonable. (People v. Thomas (2011) 200 Cal.App.4th
338.)
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was not yet implicated. (United States v. McClendon (9th
Cir. 2013) 713 F.3rd 1211, 1214-1217.)
Exceptions:
Fingerprint Evidence:
Use of Force:
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While excessive force is not permissible (People v.
Matteson (1964) 61 Cal.2d 466.), reasonable force which
does not shock the conscience may be used if necessary
in order to secure fingerprints from the arrested subject.
(People v. Williams (1969) 71 Cal.2nd 614, 625.)
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908, 918]; Gilbert v. California (1967) 388 U.S 263 [18 L.Ed.2nd
1178]; People v. Graves (1966) 64 Cal.2nd 208.)
Inventory Searches: A person who is to be booked, and who has objects in his
possession, may be subjected to an inventory search despite the lack of probable
cause to believe he has anything illegal on him. (Illinois v. Lafayette (1983) 462
U.S. 640 [77 L.Ed.2nd 65].)
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arrested. (See People v. Superior Court [Simon] (1971) 7 Cal.3rd 186,
208; see also P.C. 7, subd. 21.)
Belated Search Incident to Arrest: Older authority has held that a booking
search is really a search incident to arrest with an inconsequential time
lag. (People v. Superior Court [Murry] (1973) 30 Cal.App.3rd 257, 263;
and United States v. Edwards (1974) 415 U.S. 800, 803 [39 L.Ed.2nd 771,
775-776].)
Containers: The right to conduct a warrantless booking search includes the right
to search containers (e.g., purse, wallet, etc.) in the possession of the person to be
booked. (Illinois v. Lafayette, supra; People v. Hamilton (1988) 46 Cal.3rd 123,
137.)
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Note, however, the Courts discussion indicating that the
right to search property without a warrant may even be
broader: Once articles have lawfully fallen into the hands
of the police they may examine them to see if they have
been stolen, test them to see if they have been used in the
commission of a crime, return them to the prisoner on his
release, or preserve them for use as evidence at the time of
trial. [Citation] During their period of police custody an
arrested persons personal effects, like his person itself, are
subject to reasonable inspection, examination, and test.
[Citation] Whatever segregation the police make as a
matter of internal police administration of articles taken
from a prisoner at the time of his arrest and booking does
not derogate the fact of their continued custody and
possession of such articles. [Citation] (Id., at pp. 974-
975.)
Fifth and Fourteeth Due Process, and Fourth Amendment Search and
Seizure Issues:
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Rule: Whether a prison or county jail inmate may be lawfully
subjected to a strip search has been the subject of some
controversy, and been held to depend upon the circumstances, with
Fifth and Fourteenth Amendment due process, as well as
Fourth Amendment search and seizure implications.
The fact that the offense for which the defendant was
arrested is classified as a felony does not mean that a strip
search is constitutional. The seriousness of the offense
must be balanced with all the other factors. (Kennedy v.
Los Angeles (9th Cir. 1989) 901 F.2nd 702, 710-716; arrest
for grand theft did not warrant a visual strip search, under
the circumstances.)
Continued Limitations:
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Misdemeanor (and Infraction) Booking Searches:
Definitions:
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P.C. 4030(c)(1): Body Cavity means the
stomach or rectal cavity of a person, and vagina of a
female person.
P.C. 4030(f):
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(e) All strip searches and visual and physical body
cavity searches shall be conducted in an area of
privacy so that the search cannot be observed by
persons not participating in the search. Persons are
considered to be participating in the search if their
official duties relative to search procedure require
them to be present at the time the search is
conducted.
Case law:
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An en banc panel of the Ninth Circuit Court of Appeal, in
Bull v. City and County of San Francisco (9th Cir. 2010)
595 F.3rd 964, overruled itself in its prior decision of Giles
v. Ackerman (9th Cir 1984) 746 F.2nd 614, Giles having
held that a person arrested on minor misdemeanor arrest
warrants, with no prior criminal history or any relationship
to drugs or weapons, could not be subjected to a strip
search even though she was to be put into the general jail
population. Florence v. Board of Chosen Freeholders of
the County of Burlington (2012) 566 U.S. 318 [132 S.Ct.
1510; 182 L.Ed.2nd 566] also has the effect of overruling
these prior Ninth Circuit decisions.
See Cal. Code of Reg., Title 15, 3287(a) and 4711 for
statutory rules on the searches of prison cells and other
inmate property.
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However, under Title III; (I)t shall not be unlawful . . . for
a person acting under color of law to intercept a wire, oral,
or electronic communication where . . . one of the parties to
the communication has given prior consent to such
interception. (18 U.S.C. 2511(2)(c))
Based upon this, it has been held that where a sign has been posted
indicating that telephone calls may be monitored and recorded,
inmates are on notice, and his or her decision to engage in
conversations over those phones constitute implied consent to that
monitoring and takes any wiretap outside the prohibitions of Title
III. (People v. Kelly (2002) 103 Cal.App.4th 853, 858;
warrantless recording of defendants telephone conversations to
parties on the outside approved.)
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conversation with his father when the defendant knew he
was being videotaped.
See also United States v. Monghur (9th Cir. 2009) 588 F.3rd
975, 979; noting that the defendant conceded, as he must,
that he had no expectation of privacy in those calls from
county jail, where warnings were posted that telephone
conversations from jail were monitored and recorded;
citing Van Poyck, supra.)
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Lulling an Inmate into Believing a Conversation was Confidential:
Where jail officers acted so that the suspect and his wife were
lulled into believing that their conversation would be confidential.
(North v. Superior Court (1972) 8 Cal.3rd 301, 311; People v.
Loyd (2002) 27 Cal.4th 997, 1002.)
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The marital communication privilege does not protect defendants
personal letters to his wife. (United States v. Griffin (9th Cir.
2006) 440 F.3rd 1138.)
The Los Angeles County Jail has the authority to ban all
contact visits between visitors and inmates because of the
threat they posed. (Block v. Rutherford (1984) 468 U.S.
576 [82 L.Ed.2nd 438].)
Exceptions:
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All persons eligible to visit inmates must be mailed
written notice in English and Spanish of a dog
search policy, the reasons for the policy, and the
consequences of finding contraband in a vehicle or
on the person of a prison visitor.
But see Long v. Norris (6th Cir. 1991) 929 F.2nd 1111;
inferring that no more than a reasonable suspicion is
necessary, and that a search warrant was not required.
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The right to petition the government for a redress of
grievances (First Amendment). (Johnson v. Avery
(1969) 393 U.S. 483 [21 L.Ed.2nd 718].)
P.C. 295 et seq: The DNA and Forensic Identification Database and Data Bank Act
of 1998:
DNA Testing: As noted by the United States Supreme Court: DNA testing has
an unparalleled ability both to exonerate the wrongly convicted and to identify the
guilty. It has the potential to significantly improve both the criminal justice
system and police investigative practices. (District Attorneys Office for the
Third Judicial District v. Osborne (2009) 557 U.S. 51, 55 [174 L.Ed.2nd 38];
Maryland v. King (June 3, 2013) 569 U.S. __, __ [133 S.Ct. 1958, 1966; 186
L.Ed.2nd 1].)
Californias Statutes:
P.C. 295(a): Name of the Act: The DNA and Forensic Identification
Database and Data Bank Act of 1998.
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P.C. 295(e): Unless otherwise requested by the Department of Justice,
collection of biological samples for DNA analysis from qualifying persons
is limited to collection of inner cheek cells of the mouth (buccal swab
samples).
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(3): Counties to be reimbursed for expenses.
P.C. 295.2: Prohibits the DNA and forensic identification database and
data bank, and the Department of Justice DNA Laboratory, from being
used as a source of genetic material for testing, research, or experiments,
by any person, agency, or entity seeking to find a causal link between
genetics and behavior or health.
P.C. 296(a): The below listed persons shall provide buccal swab
samples, right thumbprints, and a full palm print impression of each hand,
and any blood specimens or other biological samples as described in the
statutes, for law enforcement identification analysis:
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(2): Any adult who is arrested for or charged with any of the
following felony offenses:
(2): Any person who has a severe mental disorder, per P.C.
2960 et seq.
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P.C. 296(d): Provisions are mandatory, and apply even if not so advised
by the court.
If defendant can prove the above, the government may still require
that he provide a blood sample if it can show:
P.C. 296(f): Duty of a court to inquire and verify that the required
samples have been collected. Abstract of judgment to show that a
defendant was ordered to provide such samples, and advisal to a defendant
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that he or she will be included in the DNA data bank. Failure to so notify
a defendant is not grounds to invalidate an arrest, plea conviction or
disposition, or affect the defendants duty to provide such samples.
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Subd. (b)(5): The collecting agencies responsibility to confirm
that the person from whom the specimens, etc., are collected,
qualifies.
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P.C. 298.1(b)(2): The withdrawal of blood shall be performed in a
medically approved manner in accordance with the requirements of P.C.
298(b)(2) (above).
Subd. (a): A person whose DNA profile has been included in the
data bank shall have his or her DNA specimen and sample
destroyed and searchable database profile expunged from the data
bank if the person has no past or present offense or pending charge
which qualifies that person for inclusion within the states DNA
and Forensic Identification Database and Data Bank Program and
there otherwise is no legal basis for retaining the specimen or
sample or searchable profile.
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(3): The person has been found factually innocent of the
underlying offense pursuant to P.C. 851.8 or W&I
781.5; or
Case Law:
The new provisions replacing P.C. 290.2 (P.C. 295 et seq.) have
similarly been held to be constitutional. (Alfaro v. Terhune (2002) 98
Cal.App.4th 492.)
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The taking of blood samples from prison inmates, parolees and
probationers for the purpose of completing a federal DNA database, is
lawful. (United States v. Kincade (9th Cir. 2004) 379 F.3rd 813.)
See also United States v. Lujan (9th Cir. 2007) 504 F.3rd 1003;
upholding the federal DNA Analysis Backlog Elimination Act
of 2000, 42 U.S.C. 14135-14135e, when challenged on the
basis that the Act violates the Fourth Amendment, the Ex Post
Facto Clause, that it is a Bill of Attainder, and that it
contravenes constitutional separation of powers restrictions,
when challenged by a federal felon who, when the requirement that
she provide a DNA sample was imposed, was on supervised
release.
All registered sex offenders, even when convicted prior to the DNA
statutes were passed, are required to provide a DNA sample. The statutes
added by Proposition 69, adding more offenses to the list of people who
must provide a DNA sample, are retroactive. (Good v. Superior Court
[People] (2008) 158 Cal.App.4th 1494.)
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Californias provisions for extracting DNA samples from convicted
felons, even over a prisoners objection and through the use of reasonable
force, does not violate either the Fourth Amendment search or seizure
rules, the Eighth Amendment (reckless and deliberate indifference),
nor Fourteen Amendment due process. (Hamilton v. Brown (9th Cir.
2010) 630 F.3rd 889.)
General Rule: Search warrants are not needed to lawfully seize and search a
motor vehicle, at least in most instances, the applicable exceptions overwhelming
the general Fourth Amendment search warrant requirement.
Incident to Arrest
With Probable Cause
When the Vehicle Itself is Evidence of a Crime
Inventory Searches and Impounding Vehicles
The Patdown (or Protective Search) of a Vehicle for Weapons
Statutory Automobile Inspections
Statutory Automobile Searches
Searching a Vehicle for a Drivers License and/or Vehicle Registration,
VIN Number, Proof of Insurance, etc.
Vehicle Stops Involving Agricultural Irrigation Supplies
Searching for Drivers License and Vehicle Documentation
Incident to Arrest: Any time a person is arrested in, or near (see below), or
even as a recent occupant (see below) of his or her vehicle, a search of the
suspect and the area immediately surrounding the suspect, including within the
passenger area of his vehicle, is, as a general rule, lawful. (New York v. Belton
(1981) 453 U.S. 454 [69 L.Ed.2nd 768]; United States v. Robinson (1973) 414
U.S. 218 [38 L.Ed.2nd 427]; People v. Molina (1994) 25 Cal.App.4th 1038, 1044;
Thornton v. United States (2004) 541 U.S. 615 [158 L.Ed.2nd 905].)
But see Arizona v. Gant (2009) 556 U.S. 332 [173 L.Ed.2nd 485],
which has severely limited searches incident to arrest in a vehicle,
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at least where the arrested subject has already been secured and
can no longer lunge for evidence or weapons. (See Limitation of
the Chimel/Belton Bright Line Test; When the Arrestee Has Been
Secured, below.)
Exception:
Probable Cause Not Needed: Except for that which is necessary to justify
the arrest, there need not be any separate probable cause to believe there
is anything there to seize, in order to justify the search of the vehicle. The
arrest alone justifies the search. (United States v. Robinson (1973) 414
U.S. 218 [38 L.Ed.2nd 427]; People v. Molina (1994) 25 Cal.App.4th
1038.)
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Limitations:
See also United States v. Vasey (9th Cir. 1987) 834 F.2nd
782, 787; finding unauthorized a vehicle search conducted
30 to 45 minutes after an arrest and after the arrestee had
been handcuffed and secured in the back of a police car.
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Arizona v. Gant: Finally, the U.S. Supreme Court decided
in Arizona v. Gant (2009) 556 U.S. 332 [173 L.Ed.2nd
485], that a warrantless search of a vehicle incident to
arrest is lawful only when the arrestee is unsecured and
within reaching distance of the passenger compartment at
the time of the search. (Overruling New York v. Belton
(1981) 453 U.S. 454, 460 [69 L.Ed.2nd 768, 775], in so far
as it has been interpreted to allow the warrantless,
suspicionless search of a motor vehicle incident to arrest
after the suspect has been handcuffed and secured in a
patrol car from where he could no longer lunge for
weapons or destroy evidence.)
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Thornton v. United States, supra, as authority for
its application.
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The Second District Court of Appeal
concluded that the standard is a
(r)easonable suspicion, not probable cause,
. . . (People v. Evans (2011) 200
Cal.App.4th 735, 751.)
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Stopped and physically arrested for driving on a
suspended license (with a prior conviction for the
same), defendant was secured in the back seat of a
patrol car. The subsequent search of his vehicle,
resulting in recovery of cocaine and an illegal
firearm (defendant being a convicted felon), was
found to be in violation of the rule of Gant. (United
States v. Ruckes (9th Cir. 2009) 586 F.3rd 713, 716-
718; evidence was held to be admissible, however,
under the inevitable discovery rule in that the
vehicle was to be impounded and subjected to an
inventory search; pp. 718-719.)
Retroactivity:
The arrestee need not have been arrested while physically within
his vehicle to make it subject to search so long as he is at least a
recent occupant of the vehicle. (Thornton v. United States
(2004) 541 U.S. 615 [158 L.Ed.2nd 905].)
See United States v. Osife (9th Cir. 2005) 398 F.3rd 1143, where the
Court, without discussing the issue, found the defendant to be a
recent occupant where he had left his vehicle, gone into a store,
and returned to it before being arrested.
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Being a recent occupant of a vehicle does not add a requirement
that in order to search the passenger area of the vehicle there must
be some reason to believe the vehicle contains evidence related to
the crime for which the defendant was arrested. (United States v.
Osife, supra, reaffirming the rule of New York v. Belton (1981)
453 U.S. 454, 460 [69 L.Ed.2nd 768, 775], defendant arguing that a
minority, concurring opinion in Thornton to this effect should be
accepted as a new rule.)
General Rule: If police officers have probable cause to search a car, they
may make a warrantless search anywhere a warrant could have authorized.
(Pennsylvania v. Labron (1996) 518 U.S. 938 [135 L.Ed.2nd 89];
Maryland v. Dyson (1999) 527 U.S. 465 [144 L.Ed.2nd 442]; People v.
Superior Court [Nasmeh] (2007) 151 Cal.App.4th 85, 100-102; United
States v. Davis (9th Cir. 2008) 530 F.3rd 1069, 1084; United States v.
Noster (9th Cir. 2009) 590 F.3rd 624, 633-634; People v. Xinos (2011) 192
Cal.App.4th 637, 653-659; People v. Diaz (2013) 213 Cal.App.4th 743,
753-754, search of a vehicles black box, or Sensing Diagnostic
Module, or SMD; United States v. Cervantes (9th Cir. 2012) 703 F.3rd
1135, 1148-1140; and see Florida v. Harris (Feb. 19, 2013) 568 U.S. __,
__ [133 S.Ct. 1050, 1055-1059; 185 L.Ed.2nd 61], a warrantless search of a
vehicle based upon a drug-detection dogs sniff; People v. Waxler (2014)
224 Cal.App.4th 712, 718-719, a warrantless search of a vehicle based
upon the odor of marijuana and observation of a pipe with apparent
marijuana residue.)
That same probable cause allows for the warrantless seizure of the
vehicle. (United States v. Magallon-Lopez (9th Cir. 2016) 817
F.3rd 671, 675-676.)
A suspects general consent to search his car does not allow the
officers to drill through the floor of the trunk. Cutting or
destroying an object during a search requires either explicit
consent for the destructive search or probable cause. (United
States v. Zamora-Garcia (8th Cir. Ark. 2016) 831 F.3rd 979.)
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Sometimes referred to as the automobile or vehicle exception
to the search warrant requirement, it is accepted that the
automobile is commonly an exigent circumstance in and of itself.
(People v. Nicholson (1984) 207 Cal.App.3rd 707, 711-712; People
v. Superior Court [Nasmeh] (2007) 151 Cal.App.4th 85, 100-102;
People v. Waxler (2014) 224 Cal.App.4th 712, 718-719.)
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Cases:
It is not relevant that the car must be damaged to get to the hidden
compartments. (Wimberly v. Superior Court (1976) 16 Cal.3rd
557, 571.)
The fact that the defendant and his cohorts were involved in
counterfeiting instead of drug trafficking did not detract
from the fact that probable cause to believe that the crime
being committed was related to drugs. (Id., at p. 1233.)
A vehicle stop and search based upon the following was held to be
based upon sufficient probable cause: (1) The vehicle was stopped
only 33 minutes after the initial dispatch was sent out; (2) it was
stopped in the city in which the crime of residential burglary had
occurred, and only about three miles away from the scene of the
crime; (3) the vehicle was somewhat unique in that it was a red
Ford F-150 with chrome rims; and (4) two Black people were in
the truckone male in his 50's and one female in her 30's, all
matching the descriptions put out by police dispatch. Also, upon
contacting the vehicles occupants, (5) one of the vehicles
occupants admitted being at the scene of the burglary, and (6) the
clothing descriptions for both subjects matched the victims
descriptions. (People v. Little (2012) 206 Cal.App.4th 1364, 1370-
1373.)
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Proposition 8, the Truth in Evidence Initiative in June, 1982,
dictated that trial courts follow Ross.
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Where a large amount of money is found rolled up in a vehicles
glove compartment, and five plastic glassine baggies of cocaine are
found behind the center armrest of the backseat, with the armrest
pushed up into the closed position to hide the contraband, such
contraband being accessible to all the occupants of the vehicle, the
arrest of all three subjects in the vehicle (driver, right front and rear
seat passengers) was supported by probable cause. (Maryland v.
Pringle (2003) 540 U.S. 366 [157 L.Ed.2nd 769].)
Officers had probable cause to arrest both the passenger and the
driver for possession of a billy club seen resting against the
drivers door. (People v. Vermouth (1971) 20 Cal. App. 3d 746,
756.)
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People v. Molina (1994) 25 Cal.App.4th 1038; see also
People v. Thompson (2010) 49 Cal.4th 79, 112.)
The Ninth Circuit has held that cellphones are not containers for
purposes of the vehicle exception to the search warrant
requirement, and thus may not be searched under this theory.
(United States v. Camou (9th Cir. 2014) 773 F.3rd 932, 941-943.)
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See also United States v. Lara (9th Cir. 2016) 815 F.3rd 605, 610-
611; declining to include defendants cellphone under the category
of a container, in defendants Fourth wavier search conditions.
Bicycles ridden on public streets are like cars and can be searched
without a warrant when there is probable cause to believe it
contains contraband. (People v. Allen (2000) 78 Cal.App.4th 445.)
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The vehicle exception has been used with other types of vehicles,
such as an airplane. (See United States v. Rollins (11th Cir. 1983)
699 F.2nd 530.)
Problem: Expanding the scope of the search beyond the purposes of the
original cause for the traffic stop:
When the Vehicle Itself is Evidence of a Crime: Although there is not a lot of
authority on the issue, and what authority there is tends to be a bit vague and
inconsistent, it has been held that when the vehicle itself constitutes evidence of a
crime, or is the instrumentality of a crime, rather than the mere container of
evidence, seizure and a warrantless search of that vehicle is lawful. For instance:
When the vehicle was used to kidnap the victim, it was found to be the
instrumentality of the crime of kidnapping. (North v. Superior Court
(1972) 8 Cal.3rd 301.)
The vehicle in which the victim was shot was evidence of the crime.
(People v. Teale (1969) 70 Cal.2nd 497.)
When the defendant was arrested for committing lewd acts on children
where it was suspected that he took pictures of his victims in his van, the
van became evidence of the crime. (People v. Rogers (1978) 21 Cal.3rd
542.)
The California Supreme Court noted that this theory for justifying the
warrantless seizure and search of a vehicle where the vehicle is itself
evidence of, or the instrumentality of, a crime is implicit in a number of
United States Supreme Court decisions as well. (People v. Griffin, supra,
at p. 1025, citing Cardwell v. Lewis (1974) 417 U.S. 583, 592-593 [41
L.Ed.2d 325, 336]; Coolidge v. New Hampshire (1971) 403 U.S. 443, 464
[29 L.Ed.2d 564, 581-582]; Cooper v. California (1967) 386 U.S. 58 [17
L.Ed.2d 730]; Carroll v. United States (1925) 267 U.S. 132, 153, 156 [69
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L.Ed. 543, 551, 552-553]; United States v. Di Re (1948) 332 U.S. 581,
586 [92 L.Ed. 210, 216].)
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sheriffs department taught to deputies justified an inventory
search of property on a motorcycle.)
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Unless required by the officers department inventory procedures,
the officer is not required to allow a subject to remove personal
items prior to conducting the inventory of an impounded vehicle.
(United States v. Penn (9th Cir. 2000) 233 F.3rd 1111.)
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The sole legal basis for doing inventory searches is to (1) protect
the owners property while it is in police custody, (2) insure
against claims of lost, stolen or vandalized property, or (3) protect
the police from danger. (South Dakota v. Opperman (1976) 428
U.S. 364 [49 L.Ed.2nd 1000].)
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Note, however, the dissents argument that the Court
should necessarily find that a vehicle left in any public
place might be easily subject to vandalism or theft, citing
Ramirez v. City of Buena Park (9th Cir. 2009) 560 F.3rd
1012, 1025. (United States v. Cervantes, supra, at p.
1144.)
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When Alternatives to Impounding a Vehicle are Available:
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A police department has discretion to establish guidelines that
would allow an impounded vehicle to be released in less than 30
days, under V.C. 22651(p), in situations where a fixed 30-day
statutory impoundment period, under V.C. 14602.6(a)(1), may
also potentially apply. (95 Ops.Cal.Atty.Gen 1 (2012).)
But see United States v. Cervantes (9th Cir. 2012) 703 F.3rd 1135,
where it was held that impounding a vehicle where the defendant
did not have a valid license, pursuant to V.C. 12500(a),
14602.6(a)(1), and 22651(h)(1), violated the Community
Caretaking rules in that defendant had pulled over to the curb and
legally parked his car when stopped. The fact that defendants car
was not located close to his home was held to be of minor
importance. (pp. 1140-1143.)
The California Supreme Court has ruled that a local ordinance that
purports to allow for the seizure and forfeiture of a motor vehicle
used for purposes of prostitution or to acquire any controlled
substance has been preempted by state law and therefore
unenforceable. (OConnell v. City of Stockton (2007) 41 Cal.4th
1061.)
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V.C. 2814.2: Impoundment of a Vehicle at a Sobriety Checkpoint:
Anything else seen in plain sight during such a check for weapons
is admissible in court. (See Plain Sight Observations, above)
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Examples:
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It is irrelevant that the subject has already been removed from the
vehicle. The courts feel that the subject may break away from
police control, or may be permitted to reenter the vehicle and
retrieve a weapon before the Terry investigation is over.
(Michigan v. Long, supra, at pp. 1051-2052 [77 L.Ed.2nd at p.
1221].)
See also McHam v. State of South Carolina (2013) 746 S.E. 2nd
41, where the South Carolina Supreme Court upheld the opening
of the defendants car door by a state trooper during a lawful traffic
stop as the vehicles passengers were rummaging around in the
vehicle, ostensibly looking for the vehicles registration and proof
of insurance. When the door was opened, contraband was
observed in plain sight. While opening the door was ruled to be a
search, it was justified due to the officers reasonable safety
concerns.
V.C. 2805(a):
Elements:
May inspect:
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Garage;
Repair shop;
Terminal;
Parking lot;
New or used car lot;
Automobile dismantlers lot;
Vehicle shredding facility;
Vehicle leasing or rental lot;
Vehicle equipment rental yard;
Vehicle storage pool; or
Other similar establishment; or
Ownership; or
Possession.
V.C. 2805(b):
Elements:
Implements of husbandry;
Special construction equipment;
Forklifts;
Special Mobile equipment;
When at:
Incidentally operated; or
Being transported.
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Note: Subd. (c) provides that, whenever possible, such
inspections shall be conducted at a time and in a manner so
as to minimize any interference with, or delay of, business
operations.
Penalties:
Relevant Definitions:
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Case Law:
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594, 598-599 [69 L.Ed.2nd 262, 268-269]; People v. Paulson
(1990) 216 Cal.App.3rd 1480, 1483-1484.)
V.C. 2805 has been held to meet the standards for a closely
regulated business, and thus have a relaxed search and seizure
standard. (People v. Calvert (18 Cal.App.4th 1820; People v.
Woolsey (1979) 90 Cal.App.3rd 994.)
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Statutory Automobile Searches:
Case law:
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was driven with the driver under the influence, resulting in
a vehicular manslaughter, is lawful as:
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Veh. Code 2810.2(d) & (e): Vehicle Stops Involving Agricultural
Irrigation Supplies:
General Rule: The general rule, now perhaps totally eaten up by the
exceptions, not to mention the recognized dangerousness of a traffic stop,
is that an officer making a traffic stop must allow an occupant of a motor
vehicle to locate and produce his own drivers license and registration.
(People v. Jackson (1977) 74 Cal.App.3rd 361.)
Exceptions: Case law has been quick to find exceptions. For instance, a
police officer may check for registration (or a drivers license) without
permission when:
The driver tells the officer where it is and does not object to the
officer entering to look for it. (Ingle v. Superior Court (1982) 129
Cal.App.3rd 188, 194; . . . it would defy common sense not to hold
that an officer, who has a right to see a motorist's drivers license,
may enter a vehicle to obtain the license when the motorist, who is
outside the vehicle, has told him [or her] where it is and has not
otherwise objected to his [or her] entering the car without a
warrant. (Italics added.) See also People v. Lopez (2016) 4
Cal.App.5th 815, 824-825.)
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Under the circumstances, the officer reasonably felt that it was
necessary for his or her own protection. (People v. Martin (1972)
23 Cal.App.3rd 444, 447.)
This would include under the front seat (whether looking from the
front or rear of the seat), in a glove compartment, and over the
visor. It would probably not include within containers found in the
vehicle or the trunk, absent some articulable reason to believe why
such documentation might actually be there. (Id., at p. 86, and fn.
25.)
Merely moving papers off the dash so as to make visible the VIN
commonly found in that location, resulting in observation of a gun
on the floor, was held to be lawful. (New York v. Class (1986) 475
U.S. 106 [89 L.Ed.2nd 81].)
And lifting an opaque car cover and opening the cars door while
looking for a VIN is also illegal. (United States v. $277,000.00
U.S. Currency (9th Cir. 1991) 941 F.2nd 898.)
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Chapter 10
Searches of Residences and Other Buildings:
General Rule: More so than any other thing or place which is subject to search, a
warrantless entry into a residence is presumptively unreasonable and, therefore,
absent proof of an exception to the rule, is unlawful. (Payton v. New York (1980)
445 U.S. 573, 586 [63 L.Ed.2nd 639]; People v. Williams (1988) 45 Cal.3rd 1268,
1297; People v. Bennett (1998) 17 Cal.4th 373, 384; United States v. Arreguin
(9th Cir. 2013) 735 F.3rd 1168, 1174.)
Query: Does not the human body enjoy an even higher expectation of
privacy? See Searches of Persons, above.
A man can still control a small part of his environment, his house; he can
retreat thence from outsiders, secure in the knowledge that they cannot get
at him without disobeying the Constitution. That is still a sizable hunk of
libertyworth protecting from encroachment. A sane, decent, civilized
society must provide some such oasis, some shelter from public scrutiny,
some insulated enclosure, some enclave, some inviolate place which is a
man's castle. (Lavan v. City of Los Angeles (9th Cir. 2012) 693 F.3rd
1022, 1028, fn. 6; quoting Silverman v. United States (1961) 365 U.S.
505, 511, fn. 4 [5 L.Ed.2nd 734]; see also United States v. On Lee (2nd Cir.
1951) 193 F.2nd 306, 315-316.)
It is axiomatic that the physical entry of the home is the chief evil
against which the wording of the Fourth Amendment is directed.
(Welsh v. Wisconsin (1984) 466 U.S. 740, 748 [80 L.Ed.2nd 732]; United
States v. United States District Court (1972) 407 U.S. 297, 313 [32
L.Ed.2nd 752, 764; United States v. Brooks (9th Cir. 2004) 367 F.3rd 1128,
1133; People v. Thompson (2006) 38 Cal.4th 811, 817.)
Commerical Businesses:
Hotel and Motel Rooms are accorded the same protection as ones
residence.
Hotel: Stoner v. California (1964) 376 U.S. 483, 490 [11 L.Ed.2nd
856, 861]; United States v. Alvarez (9th Cir. 1987) 810 F.2nd 879;
see also United States v. Brooks (9th Cir. 2004) 367 F.3rd 1128;
United States v. McClenton (3rd Cir. 1995) 53 F.3rd 584, 587-588;
see also People v. Villalobos (2006) 145 Cal.App.4th 310; United
States v. Young (9th Cir. 2009) 573 F.3rd 711, 715-716; People v.
Torres et al. (2012) 205 Cal.App.4th 989, 993.)
After a hotel (or motel) guests rental period has expired, or has
been lawfully terminated, or the defendant has abandoned the
room, the guest no longer has a legitimate expectation of privacy in
the hotel room. (United States v. Haddad (9th Cir. 1977) 558 F.2nd
968, 975; see also United States v. Procknow (7th Cir. 2015) 784
F.3rd 421.)
Also, one who rents a hotel room with a stolen credit card
does not have standing to challenge the otherwise unlawful
entry of the room by law enforcement. (People v. Satz
(1998) 61 Cal.App.4th 322.)
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Also, paying the rent with counterfeit bills does not
deprive a defendant of her expectation of privacy in
her motel room absent evidence that she knew the
bills she used were counterfeit. Also, the
defendants expectation of privacy does not abate
absent evidence to the effect that the motel manager
had attempted to evict the defendant, or enlist the
police to help him do so. (People v. Munoz (2008)
167 Cal.App.4th 126.)
Even though the occupant intends to use the motel room for only
one night for some illicit purpose, having a home nearby, it is still
an inhabited dwelling for purposes of finding a first degree
burglary and a first degree robbery (P.C. 460(a), 212.5(a),
respectively.) that occurs in the room. (People v. Villalobos
(2006) 145 Cal.App.4th 310.)
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However, it was also held in Patel that a provision of the
Los Angeles Municipal Code (41.49(3)(a)), authorizing
warrantless onsite inspections of hotel (and motel) guest
records upon the demand of any police officer, is facially
invalid under the Fourth Amendment because a police
officers non-consensual inspection of hotel guest records
constitutes a Fourth Amendment search and that such
searches are unreasonable where the record inspection
scheme does not afford an opportunity for pre-compliance
judicial review. (City of Los Angeles v. Patel, supra.)
Military Housing:
Military personnel, living off base in a motel, but with the housing
paid for by the military as an alternative to living in the on-base
barracks, retain the same privacy protections as anyone else in the
civilian world. (People v. Rodriguez (1966) 242 Cal.App.2nd 744.)
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A carport attached to the side of defendants house was within the
curtilage of the home. (United States v. Perea-Rey (9th Cir. 2012)
680 F.3rd 1179, 1183-1189.)
See also United States v. Burston (8th Cir. 2015) 806 F.3rd
1123; applying the rule of Jardines to a drug-dogs sniff in
the area immediately outside defendants apartment, within
six to ten inches of a window.
However, officers who enter the curtilage (i.e., the front porch) of
the defendants home at 4:00 a.m. with the intent to make a
warrantless arrest do so unlawfully absent exigent circumstances,
and therefore cannot rely upon any resulting exigency (i.e.,
defendant attempting to escape from the back of the house) to
justify an arrest in the backyard. (United States v. Lundin (9th Cir.
2016) 817 F.3rd 1151, 1158, reiterating the rule that exigent
circumstances cannot justify a warrantless search when the police
create the exigency by engaging . . . in conduct that violates the
Fourth Amendment. (quoting Kentucky v. King (2011) 563
U.S. 452, 462 [179 L.Ed.2nd 865].)
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Making a warrantless entry of the backyard of a residence and
opening the door to a shack within the curtilage of the home
without complying with knock and notice requirements, or
showing that there was an exigency or the necessity of conducting
a protective sweep, was held to be a Fourth Amendent violation.
It is legally necessary for officers to comply with the statutory
knock and notice requirements at the door to a shack found without
the curtilage of a residence, per the Court. Upon looking into the
shack, plaintiff was observed pointing a rifle (later found to be a bb
gun) at the officers, provoking the officers to shoot plaintiffs (i.e.,
Mendez and his wife). Despite the fact that the shooting was held
to be reasonable under the circumstances, the officers were also
held to be civilly liable in that the shooting and injuries were
proximately caused by the unlawful entry of the shack. (Mendez v.
County of Los Angeles (9th Cir. 2016) 815 F.3rd 1178.)
General Rule:
Tents:
The Ninth Circuit held, however, that the area immediately around
a tent, at a campsite, which is open to the public and exposed to
public view, did not have an expectation of privacy. (United
States v. Basher (9th Cir. 2011) 629 F.3rd 1161, 1169.)
A cave on federal property where defendant did not have a legal right to
be. (United States v. Ruckman (10th Cir. 1986) 806 F.2nd 1471, 1474; the
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court noting that the lack of a legal right to occupy the land and build
structures on it, were factors highly relevant to the issue of the
defendant's expectation of privacy.)
This extension of Ramey does not include areas of a business which are
freely accessible to the public. People v. Lee, supra, at pp. 746-747.)
The workplace includes those areas and items that are related to work and
are generally within the employer's control . . . even if the employee has
placed personal items in them, . . . (Id., at pp. 715-716 [94 L.Ed.2nd at p.
722].)
(R)easonableness rather than probable cause (is) the standard, balancing the
employees legitimate expectation of privacy against the governments need for
supervision, control, and the efficient operation of the workplace. (United States
v. Gonzalez (9th Cir. 2002) 300 F.3rd 1048, 1049-1050; citing OConnor v.
Ortega, supra, at pp. 719-720 [94 L.Ed.2nd at p. 724].)
See also United States v. Taketa (9th Cir. 1991) 923 F.2nd 665, 673-674,
where a search of a D.E.A. agents office by his supervisors was tested by
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the OConnor standard of reasonableness and not probable cause
because the search was a part of an internal, employee misconduct
investigation, the search was upheld.
Examples:
Doorless stalls in a public restroom with the police officer in the ceiling,
looking down into the stall. Although the officer could have lawfully
observed the illegal activity by simply walking into the bathroom,
observing that same activity from inside the ceiling above the stall
violated the Fourth Amendment. (People v. Triggs (1973) 8 Cal.3rd
884.)
It was also held to be lawful to look over and under a department store
fitting room door where there was a two-foot gap under the three-foot high
door, and another two-foot gap between the top of the door and the
ceiling. While the door was intended to provide a minimal protection to
modesty, it did not reasonably provide the occupant with an expectation of
privacy. (In re Deborah C. (1981) 30 Cal.3rd 125, 137-139.)
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Spying Into Bathrooms, Etc.; Statutes:
See also People v. Chavez (2008) 161 Cal.App.4th 1493, where walking to
the side of the house and climbing over a six foot fence, past a locked
gate, was lawful when the officer observed, in plain sight, a cocked
revolver on the ground at the side of the house. The necessity to retrieve
the weapon, for safety purposes, allowed for the entry of the side yard.
General Rule: Where police officers are already at a residence without a warrant
when evidence is lawfully discovered (e.g., by a plain sight observation), the
discovery of which provides probable cause to search the rest of the residence, but
when any other evidence in the house is likely to disappear or be destroyed while
a search warrant is obtained (i.e., an exigency; see People v. Superior Court
[Irwin] (1973) 33 Cal.App.3rd 475.), the officers have three options:
Seize only that which is in plain sight, and ignore what might be found in
the rest of the house.
Seek consent to search the entire residence from the residents. (See
Consent Searches, below)
Secure the residence (i.e., detain its occupants and guard the house)
pending the obtaining of a search warrant. (See below)
Exigency of the Officers Own Making: The old rule was that although a police
officer may, with exigent circumstances, enter and secure a residence (or other
protected place) pending the obtaining of a warrant or consent to search, the law
did not allow a warrantless entry and securing of the premises if the exigency was
of the officers own making.
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With Probable Cause: Officers, with probable cause which would have
justified the obtaining of a search warrant, but hoping to obtain an oral
consent to search instead, knock on the front door only to be told by the
occupants that admission is being denied. The fact that evidence may now
be destroyed, etc., while a warrant is obtained is not an excuse to make a
warrantless entry to secure the house. (People v. Shuey (1973) 13
Cal.App.3rd 835; see also United States v. Driver (9th Cir. 1985) 776 F.2nd
807.)
But, per the Ninth Circuit, even though the fruit of the poisonous
tree doctrine does not apply to the lawful search of a residence
after the house was detained for an unreasonable time while a
search warrant was obtained, the resulting evidence recovered
from the residence when the home was searched with the warrant
will be suppressed anyway in that the officers were not acting
reasonably in taking 26 hours to get the warrant, and some
punishment must follow such an unreasonable delay. (United
States v. Cha (9th Cir. 2010) 597 F.3rd 995, 1003-1004.)
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be admissible under the inevitable discovery rule.
(People v. Gesner, supra, at pp. 591-592.)
See United States v. Lundin (9th Cir. 2016) 817 F.3rd 1151, 1158,
reiterating the rule that exigent circumstances cannot justify a
warrantless search when the police create the exigency by
engaging . . . in conduct that violates the Fourth Amendment.
(quoting Kentucky v. King (2011) 563 U.S. 452, 462 [179 L.Ed.2nd
865].)
New Rule? The United States Supreme Court has provided considerable
clarification on this issue, appearing to establish a new rule. If so, the new
rule is that so long as the officers actions in knocking on the door and
identifying themselves, and presumably seeking a consensual entry, does
not itself constitute a violation or threatened violation of the United States
Constitution (i.e., the Fourth Amendment), there is no penalty for doing
so. Should the occupants then attempt to destroy or secret evidence, thats
their choice. (Kentucky v. King (2011) 563 U.S. 452, 459-472 [179
L.Ed.2nd 865].)
Note: The King case, however, specifically does not decide what
is, and what is not, an exigent circumstance allowing for an
immediate warrantless entry. In King, the officers were in pursuit
of a fleeing felon when they heard noises from inside consistent
with evidence being destroyed. The issue whether being denied a
consensual entry is itself an exigent circumstance was not
discussed.
Securing Cases:
Miscellaneous Issues:
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seek a search warrant. (Illinois v. McArthur (2001) 531 U.S. 326 [148 L.Ed.2nd
838]; People v. Bennett (1998) 17 Cal.4th 373.)
In Segura v. United States (1984) 468 U.S. 796 [82 L.Ed.2nd 599], 19
hours (during which the house was detained from inside) was held to be
reasonable in that the officers did not exploit the delay, only eight of the
19 hours was when a judge was available, and the defendants were both in
custody anyway.
Detention of the Residents Outside: Also, with probable cause justifying the
obtaining of a search warrant, the residents may be lawfully detained outside
pending the arrival of the search warrant. (Illinois v. McArthur, supra.)
Knock and Talk: Where the officer does not have probable cause prior to the
contact (thus, he is not able to obtain a search warrant), there is no constitutional
impediment to conducting what is known as a knock and talk; making contact
with the occupants of a residence for the purpose of asking for a consent to enter.
(United States v. Cormier (9th Cir. 2000) 220 F.3rd 1103, 1108-1109.)
Absent express orders from the person in possession against any possible
trespass, there is no rule of private or public conduct which makes it
illegal per se, or a condemned invasion of the persons right of privacy, for
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anyone openly and peaceably, at high noon, to walk up the steps and
knock on the front door of any mans castle with the honest intent of
asking questions of the occupant thereofwhether the questioner be a
pollster, a salesman, or an officer of the law. (Davis v. United States (9th
Cir. 1964) 327 F.3rd 301. 303.)
Knocking at the defendants motel room door and asking (as opposed to
demanding) the occupants to open the door to speak with them is, when
the defendant comes outside, no more than a lawful consensual encounter
when nothing is said or done which would have indicated to defendant that
he was not free to leave or return to his room. (United States v. Crapser
(9th Cir. 2007) 472 F.3rd 1141, 1145-1147.)
State authority similarly upholds the practice. (People v. Colt (2004) 118,
Cal.App.4th 1404, 1410-1411.)
See also People v. Michael (1955) 45 Cal.2nd 751, at page 754, where the
California Supreme Court noted that: It is not unreasonable for officers to
seek interviews with suspects or witnesses or to call upon them at their
homes for such purposes. Such inquiries, although courteously made and
not accompanied with any assertion of a right to enter or search or secure
answers, would permit the criminal to defeat his prosecution by
voluntarily revealing all of the evidence against him and then contending
that he acted only in response to an implied assertion of unlawful
authority.
But see Orhorhaghe v. INS (9th Cir. 1994) 38 F.3rd 488, where officers
positioned themselves so as to be certain the defendant could not escape or
leave, they deliberately revealed their previously concealed firearms, the
contact occurred in a non-public place, the officers acted in an aggressive
manner suggesting that compliance was not optional, and the officers
outnumbered defendant four-to-one. The contact was held to be an
unlawful detention.
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And see United States v. Jerez (7th Cir. 1997) 108 F.3rd 684, where a
similar situation was held to constitute an investigative detention, thus
requiring an articulable reasonable suspicion to be lawful, because the
officers knocked on the motel room door in the middle of the night
continually for a full three minutes, while commanding the occupants to
open the door.
An otherwise lawful knock and talk, where officers continued to press the
defendant for permission to enter his apartment after his denial of any illegal
activity, converted the contact into an unlawfully extended detention,
causing the Court to conclude that a later consent-to-search was the product
of the illegal detention, and thus invalid. (United States v. Washington (9th
Cir. 2004) 387 F.3rd 1060.)
Once consent has been obtained from one with authority to give
it, any expectation of privacy has been lost. We seriously doubt
that the entry of additional officers would further diminish the
consenter's expectation of privacy, and, in the instant case, any
remaining expectation of privacy was outweighed by the legitimate
concern for the safety of [the officers inside]. (Citations omitted.)
(United States v Bramble, supra, at p. 1478.)
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circumstances where it appeared he might have been the victim of an
overdose. (People v. Zabelle (1996) 50 Cal.App.4th 1282.)
Split of Authority: While knock and talks are legal (see above), there is
a split of authority on the issue of whether an officer, without probable
cause, may use a ruse or subterfuge to make warrantless observations
inside a residence.
Held to be Illegal:
Causing a suspect to open his door for the purpose of allowing the
officer the opportunity to make a plain sight observation of
contraband within the residence is illegal. (People v. Reeves
(1964) 61 Cal.2nd 268.)
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Held to be Legal:
When police officers who knock at the door are invited in by the
occupants who did not know it was the police at the door when
they made the invitation, there is no subterfuge requiring the
suppression of any observations made by the officers as they enter.
(Mann v. Superior Court (1970) 3 Cal.3rd 1.)
The Leal Court also held that the rule of Gant was
retroactive (see pp. 1065-1066); a questionable
decision in light of the decision in Davis v. United
States (2011) 564 U.S. 229, 236-239 [180 L.Ed.2nd
285], where it was held that decisions such as Gant
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are not retroactive. (See Is Gant Retroactive?
under Searches of Vehicles, above.)
Protective Sweeps:
Celis also raises, but does not answer the question whether
to make entry into the house to conduct the protective
sweep after an arrest that occurs outside requires only a
reasonable suspicion that persons are inside who
constitute a threat to the officers, or whether full-blown
probable cause is needed. (Id., at p. 678.)
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By an officer left behind to secure a residence while a
search warrant is obtained. (United States v. Taylor (6th
Cir. 2001) 248 F.3rd 506, 513.)
Plain Sight Observations, from a location the police officer has a legal right to
be, are lawful and not considered to be a search. (People v. Block (1971) 6
Cal.3rd 239, 243; North v. Superior Court (1972) 8 Cal.3rd 301, 306.) Thus,
evidence so observed when an officer is already lawfully inside, or otherwise may
lawfully enter a residence or its curtilage, is subject to seizure. For instance:
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Observation of defendants growing marijuana plants from a neighbors
property, without the neighbors knowledge or permission, looking into
defendants adjacent backyard, held to be lawful. Defendant did not have
standing to challenge the trespass into the neighbors yard, and did not
have a reasonable expectation of privacy in what was growing in his own
yard, in that his marijuana plants were plainly visible. (People v. Claeys
(2002) 97 Cal.App.4th 55.)
But see People v. Camacho (2000) 23 Cal.4th 824, where the California
Supreme Court held that observations from the side of the residence, 40
feet from the sidewalk, with nothing there to indicate that the public was
inferably invited to that side, were unlawful, at least when the officers
were checking nothing more than a complaint of loud music, it was late at
night, and they failed to first try knocking at the front door.
See also the dissent, at pp. 832 et seq., listing numerous federal
circuit court decisions seemingly in disagreement with the rule of
Camacho.
An officer standing on his tiptoes, adding about three inches to his height,
in order to see over a six foot fence, was lawful. Observation of a firearm
behind the fence by so doing was a plain sight observation. (People v.
Chavez (2008) 161 Cal.App.4th 1493, 1499-1502.)
Observations made into the curtilage of the home from the defendants
driveway, when the driveway was an area accessible to the neighbors,
were properly used to obtain a search warrant. The use of night vision
goggles was irrelevant. (People v. Lieng (2010) 190 Cal.App.4th 1213.)
Also, the Court noted the reality of such a situation when a police
officer is forced to decide what to do: It does not meet the needs
of law enforcement or the demands of public safety to require
officers to walk away from a situation like the one they
encountered here. Only when an apparent threat has become an
actual harm can officers rule out innocuous explanations for
ominous circumstances. But [t]he role of a peace officer includes
preventing violence and restoring order, not simply rendering first
aid to casualties. (citing Brigham City, supra, at p. 406.) (Ibid.)
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conducting a warrantless entry into the respective residences. (See
below.)
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Differentiating Felony vs. Misdemeanor cases:
See also United States v. Johnson (9th Cir. 2001) 256 F.3rd 895,
908, fn. 6; In situations where an officer is truly in hot pursuit and
the underlying offense is a felony, the Fourth Amendment
usually yields. (Citation) However, in situations where the
underlying offense is only a misdemeanor, law enforcement must
yield to the Fourth Amendment in all but the rarest cases.
(Citing Welsh v. Wisconsin (1984) 466 U.S. 740, 753 [80 L.Ed.2nd
732].).
Community Caretaking:
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Oceanside (9th Cir. 2004) 360 F.3rd 1078, 1081-1083; United
States v. Russell (9th Cir. 2006) 436 F.3rd 1086.)
See also United States v Snipe (9th Cir. 2008) 515 F.3rd 947, 951-
952. While the 9th Circuit here doesn't use the term community
caretaking, it does take the rules as announced in United States v.
Cervantes, supra, and modifies the elements of the doctrine based
upon the U.S. Supreme Court's decision in Brigham City v. Stuart
(2006) 547 U.S. 398 [164 L.Ed.2nd 650].
Also, while the United States Supreme Court does not use the
phrase community caretaking, the Court has upheld warrantless
entries into residences where there is an objectively reasonable
basis for believing that immediate action was necessary in order
to prevent someone from being seriously injured. (See Brigham
City v. Stuart, supra, and Michigan v. Fisher (2009) 558 U.S. 45
[175 L.Ed.2nd 410]; see below.)
However, in United States v Snipe (9th Cir. 2008) 515 F.3rd 947,
951-952, the Ninth Circuit modified these rules in light of
Brigham City v. Stuart (2006) 547 U.S. 398 [164 L.Ed.2nd 650]
and Whren v. United States (1996) 517 U.S. 806 [135 L.Ed.2nd
89], deleting altogether the second factor (the officers subjective
motivations being irrelevant) and finding the third factor to be a
part of the necessary objectively reasonable basis for concluding
that an emergency is unfolding in the place to be entered. (See
below.)
The Sweig Court also found, however, that a search warrant is not
permitted under P.C. 1524 (see Statutory Grounds for Issuance
(P.C. 1524(a)), under Searches with a Search Warrant
(Chapter 6), above) when the defendant is detained pursuant to
H&S 5150 only. The Court suggested that the Legislature
should fix the problem with a legislative amendment to Section
1524.
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In Brigham City v. Stuart (2006) 547 U.S. 398 [164 L.Ed.2nd 650]:
The Supreme Court ignored efforts by the lower courts to
categorize the entry into a house upon viewing an altercation
through the window as coming within the emergency aid
doctrine, community caretaking, or any other label, and merely
noted the exigency of protecting the occupants from being hurt. In
so doing, the Court held that a warrantless entry into a residence is
lawful when police have an objectively reasonable basis for
believing that an occupant is seriously injured or imminently
threatened with such injury, and then the manner of the officers
entry was also reasonable.
Expanding upon the discussion in Brigham City, but still not using
the phrase community caretaking, the Supreme Court further
held that officers responding to a call of a disturbance, finding a
pickup truck in the driveway which had apparently been in an
accident, blood on the truck and on clothes in the truck, broken
windows in the house, and defendant, barricaded inside, screaming
and throwing things. Defendant had a visible cut on his hand. One
officer forced his way in only to have defendant point a rifle at
him. Noting that (i)t requires only an objective reasonable basis
for believing that a person within [the house] is in need of
immediate aid, and that the officer was acting reasonably when he
made the warrantless entry into defendants home, the Court found
the entry to be lawful. (Cites Omitted; Michigan v. Fisher
(2009) 558 U.S. 45 [175 L.Ed.2nd 410].)
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Other Cases:
And see United States v. Martinez (9th Cir. 2005) 406 F.3rd 1160, a
questionable legal analysis attempting to differentiate the
differences between exigent circumstance and the emergency
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doctrine as it relates to a domestic violence situation. The Court
found that checking a residence for a potential domestic violence
victim fell under the later.
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Also see Calabretta v. Floyd (9th Cir. 1999) 189 F.3rd 808, where it
was held that an entry of a residence for the purpose of
investigating a possible child abuse, where there were no exigent
circumstances requiring an immediate entry, requires full
probable cause and a search warrant.
And see United States v. Deemer (9th Cir. 2004) 354 F.3rd 1130;
where it was held that an anonymous 911-hangup call, traceable to
a particular motel, but without sufficient information to determine
which room the call may have come from, did not allow for the
non-consensual entry into the defendants room to see is anyone
needed help merely because of the suspicious attempts by the
person who answered the door to keep the officers from looking
inside, and her apparent lies concerning no one else being there.
Exigent Circumstances and Officer Safety: The exigency exception (to the
search warrant requirement) permits warrantless entry where officers have both
probable cause to believe that a crime has been or is being committed and a
reasonable belief that their entry is necessary to prevent . . . the destruction of
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relevant evidence, the escape of the suspect, or some other consequence
improperly frustrating legitimate law enforcement efforts. (Sandoval v. Las
Vegas Metro. Police Dept. (9th Cir. 2014) 756 F.3rd 1154, 1161; Sialoi v. City of
San Diego (9th Cir. 2016) 823 F.3rd 1238.)
A possible trafficker in narcotics, ducking back into his residence upon the
approach of peace officers, while attempting to shut the door and close the
blinds, is an exigent circumstance justifying an immediate, warrantless
entry. United States v. Arellano-Ochoa (9th Cir. 2006) 461 F.3rd 1142.)
Scaling a six foot fence past a locked gate,, and thus entering defendants
side yard, was lawful when necessary to retrieve a firearm observed on the
ground where the officer feared for his own safety and the safety of a
seven year old minor who was suspected of being in the house. (People v.
Chavez (2008) 161 Cal.App.4th 1493, 1503.)
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Police officers may make a warrantless entry into a residence whenever
they have an objectively reasonable basis for believing that an occupant or
the officers are imminently threatened with serious injury. (Ryburn v.
Huff (Jan. 23, 2012) 565 U.S. 469 [132 S.Ct. 987; 181 L.Ed.2nd 966];
reversing the Ninth Circuit Court of Appeals decision that had held that
unverified rumors that the plaintiffs son had threated to shoot up a high
school, along with the sons mother, who was generally uncooperative,
running back into the house when asked about firearms in the house, was
insufficient to justify an immediate entry.
In Sims v. Stanton (9th Cir. 2013) 706 F.3rd 954, the Ninth Circuit Court of
Appeal held that entering the curtilage of a home in pursuit of a suspect
with the intent to detain him when the subject is ignoring the officers
demands to stop, at worst a misdemeanor violation of P.C. 148), is
illegal. The warrantless fresh or hot pursuit of a fleeing suspect into a
residence (or the curtilage of a residence) is limited to felony suspects
only. The United States Supreme Court, however, reversed this decision
in Stanton v. Sims (Nov. 4, 2013) 571 U.S. __ [134 S.Ct. 3; 187 L.Ed.2nd
341].
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The Ninth Circuits decision was based upon the Courts
interpretation of the United States Supreme Court decision in
Welsh v Wisconsin (1984) 466 U.S. 740 [80 L.Ed.2nd 732], and
conflicts with the California Supreme Courts reasoning in People
v. Thompson (2006) 38 Cal.4th 811 (see Warrantless entry to
arrest a DUI (i.e., Driving while Under the Influence) suspect,
above).
And then, any plain sight observations made while lawfully in the
house neutralizing the danger can provide the necessary probable
cause to secure the house, arrest the occupants, and obtain a search
warrant for the rest of the house. (People v. Hill (1974) 12 Cal.3rd
731.)
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Executing an Arrest Warrant:
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Because an arrest warrant authorizes the police to deprive a person of his
liberty, it necessarily also authorizes a limited invasion of that person's
privacy interest when it is necessary to arrest him in his home. (Steagald
v. United States (981) 451 U.S. 204, 214-215, fn. 7 [68 L.Ed.2nd 38, 46].)
It is not disputed that until the point of Buie's arrest the police had the
right, based on the authority of the arrest warrant, to search anywhere in
the house that Buie might have been found, . . . (Maryland v. Buie
(1990) 494 U.S. 325, 330 [108 L.Ed.2nd 276, 283].)
The United States Supreme Court, in Payton v. New York (1980) 445
U.S. 573 [63 L.Ed.2nd 639], merely states that a police officer must have a
reason to believe the suspect is inside his residence, without defining the
phrase.
An early California lower appellate court found that the officers needed
only a reasonable belief, or strong reason to believe, the suspect was
home. (People v. White (1986) 183 Cal.App.3rd 1199, 1204-1209;
rejecting the defense argument that full probable cause to believe the
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subject was inside is required; see also United States v. Magluta (11th Cir.
1995) 44 F.3rd 1530, 1535, using a reasonable belief standard.)
However, noting that five other federal circuits have ruled that something
less than probable cause is required, and that the Ninth Circuit is a
minority opinion, the Fourth District Court of Appeal (Div. 2) found
instead that an officer executing an arrest warrant or conducting a
probation or parole search may enter a dwelling if he or she has only a
reasonable belief, falling short of probable cause, that the suspect lives
there and is present at the time. Employing that standard, the entry into
defendants apartment to conduct a probation search was lawful based on
all of the information known to the officers. Accordingly, the court
upheld the trial courts conclusion that the officers had objectively
reasonable grounds to conclude the defendant/probationer lived at the
subject apartment and was present at the time, and therefore the officers
had the right to enter the apartment to conduct a warrantless probation
search. (People v. Downey (2011) 198 Cal.App.4th 652, 657-662.)
Officers knew defendant had lived at the suspect residence at one time but
also had newer information that he had moved elsewhere, although there
was still some indication that he was maybe visiting the prior residence or
that the occupants knew where he could be located; insufficient to
establish probable cause. (Cuevas v. De Roco (9th Cir. 2008) 531 F.3rd
726.)
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Knock and Notice: Any time a police officer makes entry into the residence of
another to arrest (P.C. 844) or to serve a search warrant (P.C. 1531), the
officer must first comply with the statutory knock and notice rules. (See
above.)
Knock and notice requirements also apply to entries made for purposes of
conducting a Fourth Waiver search. (People v. Constancio (1974) 42
Cal.App.3rd 533, 542; People v. Lilienthal (1978) 22 Cal.3rd 891, 900;
People v. Mays (1998) 67 Cal.App.4th 969, 973, fn. 4; People v. Murphy
(2003) 112 Cal.App.4th 546, 553.)
However, recent authority has noted that violating knock and notice rules
should not result in the suppression of any resulting evidence, at least
absent aggravating circumstances. (Hudson v. Michigan (2006) 547 U.S.
586 [165 L.Ed.2nd 56].) This new rule applies whether executing a search
warrant (i.e., Hudson) or to make an arrest. (In re Frank S. (2006) 142
Cal.App.4th 145.)
However, see United States v. Weaver (D.C. Cir. 2015) 808 F.3rd 26,
where the D.C. Court of Appeal rejected the applicability of Hudson v.
Michigan, supra, in an arrest warrant service situation, and held that
federal agents violated the knock-and-announce rule by failing to
announce their purpose before entering defendants apartment. By
knocking but failing to announce their purpose, the agents gave defendant
no opportunity to protect the privacy of his home. The exclusionary rule
was the appropriate remedy for knock-and-announce violations in the
execution of arrest warrants at a persons home.
See Knock and Notice, under Searches With a Search Warrant. above.
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Chapter 11
New and Developing Law Enforcement Technology:
The Problem: The United States Supreme Court (in Kyllo v. United States (2001)
533 U.S. 27 [150 L.Ed.2nd 94].), as well as the federal Congress and Californias
Legislature, has indicated a concern with developing surveillance technology
which may be used to eavesdrop upon and decipher activities in constitutionally
protected areas.
See also United States v. Hill (9th Cir. 2006) 459 F.3rd 966, 979, where it
was noted that: Technology is rapidly evolving and the concept of what is
reasonable for Fourth Amendment purposes will likewise have to
evolve.
The Supreme Court has pointed out that a physical trespassory intrusion
(physically entering a protected area or property) is not always required to
create a Fourth Amendment search issue. Per the Court; (s)ituations
involving merely the transmission of electronic signals without trespass
would remain subject to Katz analysis (referring to Katz v. United States
(1967) 389 U.S. 347, 3612 [19 L.Ed.2nd 576, 588].); i.e., whether a
reasonable expectation of privacy was violated. (United States v. Jones
(2012) 565 U.S. 400, 411 [132 S.Ct. 945, 953; 181 L.Ed.2nd 911].)
See also United States v. Cotterman (9th Cir. 2013) 709 F.3rd 952, 962-
968, dealing with a search of a suspects laptop computer, and discussing
(t)he nature of the contents of electronic devices differs from that of
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luggage as well. Laptop computers, iPads and the like are simultaneously
offices and personal diaries. They contain the most intimate details of our
lives: financial records, confidential business documents, medical records
and private emails. This type of material implicates the Fourth
Amendment's specific guarantee of the people's right to be secure in their
papers.
Also the United States Supreme Court has noted that cellphones, given the
amount of personal information contained on the modern-day smart
phone, are changing the way we live, and is entitled to greater protection
from warrantless searches. (Riley v. California (June 25, 2014) 573 U.S.
__ [134 S.Ct. 2473, 2484-2485; 189 L.Ed.2nd 430].)
Thermal Imaging Device: The use of a thermal imaging device (also known as
a FLIR, for Forward Looking Infra Red.) to read the amount of heat coming
from a persons home, without prior judicial authorization, is an unconstitutional
invasion of ones right to privacy in the home. (Kyllo v. United States (2001) 533
U.S. 27 [150 L.Ed.2nd 94].)
But, evidence from the use of a thermal imaging device, when lawfully
obtained with judicial authorization (i.e., a search warrant), may be used
as a part of the probable cause for a second search warrant. (United States
v. Huggins (9th Cir. 2002) 299 F.3rd 1039.)
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A search warrant authorizing the use of a thermal imaging device must be
supported by probable cause, or such a warrant will be held to be invalid.
(People v. Gotfried (2003) 107 Cal.App.4th 254.)
Note that the Court in Camacho differentiated the Buster from x-rays of a
person which, per the court, does require a heightened level of suspicion
(i.e., a reasonable suspicion. See United States v. Camacho, supra, p.
1186, fn. 1) to use in a border search situation given the potential personal
health issues of exposing a persons body to x-rays. (See also United
States v. Ik (9th Cir. 1982) 676 F.2nd 379, 382.)
Also note that using the Buster on a vehicle or other container in other than
a border search situation would likely require full probable cause under
the theory of Kyllo, supra, in that it is inspecting items contained within
the vehicle or container itself and not just heat emanating from the vehicle
or other container. However, there is no case law on this issue as of yet.
Spike Mike: The warrantless use of a spike mike, which, though contact with a
heating duct, was able to pick up defendants conversations while inside his
home, was held to be a Fourth Amendment violation. (Silverman v. United
States (1961) 365 U.S. 505 [5 L.Ed.2nd 734].)
Drones:
However, Civ. Code 1708.8 provides for the potential civil liability of a
person for a physical invasion of privacy which includes when that person
knowingly enters the airspace above the land of another person without
permission or while committing a trespass in order to capture a visual
image, sound recording, or physical impression of the plaintiff engaging in
a private, personal, or familial activity, and the invasion occurs in a
manner that is offensive to a reasonable person.
Also, effective December 21, 2015, anyone who owns a small unmanned
aircraft of a certain weight (between .55 and 55 pounds) must register with
the Federal Aviation Administration's Unmanned Aircraft System (UAS)
registry before they fly outdoors. People who previously operated their
UAS must register by February 19, 2016. People who do not register could
face civil and criminal penalties. (See 14 Code of Federal Regulations,
Part I & Part 21; and https://registermyuas.faa.gov/.)
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See also Small UAS Rule, Part 107 of the Federal Aviation
Regulations, effective August 29, 2016, for regulations relevant to
the non-hobbist drone users.
And, effective January 1, 2017; Govt. Code 853, 853.1; Civil. Code
43.101: Destruction of Drones by Government Entities; Immunity From
Liability:
The use of software that allows the matching of ones face by matching
from a photograph some 16,000 recognition points to photographs already
in law enforcement possession has not yet been tested in the courts.
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Stingray (Kingfish) Device:
Where a high risk stop of a suspected stolen vehicle was made, such
stop being precipitated by a misreading of the license plate by an
automated license plate reader and where the stop was made without
first making a visual verification that the license on the stopped vehicle
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was as interpreted by the plate reader, the lawfulness of such a stop was
held to be a triable issue for a civil jury to decide. (Green v. City &
County of San Francisco (9th Cir. 2014) 751 F.3rd 1039, 1045-1046;
discounting without discussion the possibility that the stop was based upon
a reasonable mistake of fact.)
The Sixth Circuit Court of Appeal has ruled that using data
emanating from a suspects pay-as-you-go cellphone to determine
its real-time location as he transported drugs along public
thoroughfares was lawful. Agents located defendant at a rest stop,
with a motorhome filled with marijuana, by pinging his phone.
There was no Fourth Amendment violation since defendant did
not have a reasonable expectation of privacy in the GPS data and
location of his cellphone because authorities tracked a known
number that was voluntarily used while traveling on public
thoroughfares; no extreme comprehensive tracking was present in
his case. (United States v. Skinner (6th Cir. 2012) 690 F.3rd 772.)
See also United States v. Wahchumwah (9th Cir. 2013) 710 F.3rd
862, 868, refusing to extend the theory of Jones to the use of a
buttonhole audio-video device in a suspects home by an
undercover agent who was in the defendants home by invitation.
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suspect our of fear for the safety of informants and
undercover officers.)
But see United States v. Carpenter (6th Cir. 2016) 819 F.3rd
880, finding the use of a court order issued by a magistrate
judge pursuant to Section 2703(d) of the Stored
Communications Act to obtain cellphone use/location
records to be lawful in that the business records maintained
by the defendants wireless carriers did not reveal anything
about the content of any cellphone calls.
See also United States v. Sparks (1st Cir. 2013) 711 F.3rd 58;
holding that the use of a GPS prior to the U.S. Supreme Courts
Decision in United States v. Jones, supra, even if done in violation
of the Fourth Amendment, does not require the suppression of
the resulting evidence due to the officers good faith reliance in
earlier binding precedence. (Accord; United States v. Barraza-
Maldonado (8th Cir. 2013) 732 F.3rd 865; noting the Ninth
Circuits original rule under United States v. Pineda-Moreno,
supra, which, at the time, had held that no warrant was necessary.)
But see United States v. Katzin (3rd Cir. 2013) 732 F.3rd
187, ruling that good faith didnt save the evidence
discovered after using a GPS without a warrant on
defendants vehicle in violation of Jones, in that the prior
cases were in conflict on this issue.
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California follows the majority rule, dictated by Davis v. United
States, supra, that because California case law allowed for the
warrantless placement of a GPS device by law enforcement at the
time such a device was placed on the co-defendants car in this
case (i.e., 2007), the fact that the United States Supreme Court has
since held that such conduct required a warrant does not dictate
exclusion of the tracking device evidence. (People v. Mackey
(2015) 233 Cal.App.4th 32, 93-97.)
Exceptions:
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Subd. (d): Electronic tracking device is defined as any device
attached to a vehicle or other movable thing that reveals its
location or movement by the transmission of electronic signals.
A person who exposes his facial features, and/or body in general, to the
public, in a public place, has no reasonable expectation of privacy in his
appearance. (See People v. Benedict (1969) 2 Cal.App.3rd 400, 403-404;
The latter phenomenon (defendants physical characteristics) was in plain
sight of the officer and observed by him without any semblance of a
search or seizure; his use of a flashlight to observe the pupillary reaction
was not improper. The utilization of the light from a flashlight directed to
that which is in plain sight ordinarily does not render observation thereof a
search; citing People v. Cacioppo (1968) 264 Cal.App.2nd 392, 397.)
However, see People v. Garry (2007) 156 Cal.App.4th 1100, where it was
held to be a detention when the officer spotlighted the defendant and then
walked briskly towards him, asking him questions as he did so.
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Binoculars:
The use of binoculars to enhance what the officer can already see,
depending upon the degree of expectation of privacy involved under the
circumstances, is normally lawful. (People v. Arno (1979) 90 Cal.App.3rd
505.)
Using binoculars from 50 yards away to watch defendant load boxes into
his car upheld. (United States v. Grimes (5th Cir. 426 F.2nd 706, 708.)
The use of night vision goggles was held to be irrelevant when used to
observe areas within the curtilage of defendants residence. (People v.
Lieng (2010) 190 Cal.App.4th 1213, 1227-1228.)
The use of a controlled tire deflation device by the Border Patrol to stop
a vehicle suspected of being used to smuggle controlled substances over
the US/Mexico border held to be a detention only (thus requiring only a
reasonable suspicion) and not excessive force under the circumstances.
(United States v. Guzman-Padilla (9th Cir. 2009) 573 F.3rd 865.)
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what they normally may view with the naked eye. (Citation) (United
States v. Taketa (9th Cir, 1991) 923 F.2nd 665, 667.)
The Court further noted that the fact that the technology is
not generally available to the public, and is more intrusive
than mere audio surveillance, is irrelevant to the Fourth
Amendment analysis. (Id., at p. 868.)
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But, see People v. Rodriguez (1993) 21 Cal.App.4th 232, 239;
stopping and detaining gang members for the purpose of
photographing them is illegal without reasonable suspicion of
criminal activity. Merely being a member of a gang, by itself, is
not cause to detain.
But see United States v. Vargas (2014) 2014 U.S. Dist. LEXIS
184672, reaching the exact opposite conclusion where a
Washington State federal trial court held that the Fourth
Amendment requires law enforcement to first obtain a search
warrant in order to continuously (six weeks, in this case) videotape
the front of defendants home and yard even though the camera,
with zooming and panning capabilities, was set up on a public
utitlity pole some 100 yards from defendants home, well off his
property.
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Police lack the authority to prohibit a citizen from recording
commissioners during a town hall meeting because [the citizens]
activities were peaceful, not performed in derogation of any law,
and done in the exercise of his First Amendment rights[.]).
(Iacobucci v. Boulter (1st Cir. 1999) 193 F.3rd 14.)
And it has been held that; The First Amendment protects the
right to gather information about what public officials do on public
property, and specifically, a right to record matters of public
interest. (Smith v. City of Cumming (11th Cir. 2000) 212 F.3rd
1332, 1333.)
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Metal Detectors: The use of metal detectors (or magnetometers) constitute a
search, but are lawful without a search warrant or individualized suspicion when:
Dogs:
Used to Search:
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Use of a dog to sniff a motel room was lawful where the
officers and the dog were voluntarily admitted by the
defendant into the room and the dog was held on a six-foot
leash. The dog was where it had a lawful right to be.
(United States v. Esquilin (1st Cir. 2000) 208 F.3rd 315.)
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Per the Court: The questionsimilar to every
inquiry into probable causeis whether all the facts
surrounding a dogs alert, viewed through the lens
of common sense, would make a reasonably prudent
person think that a search would reveal contraband
or evidence of a crime. A sniff is up to snuff when
it meets that test. (Id., 133 S.Ct. at p. 1058.)
Sniffs of a Person:
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Referring to the standards for the admission into evidence of new
scientific techniques, per People v. Kelly (1976) 17 Cal.3rd 24; and
Frye v. United States (D.C. Cir. 1923) 293 F. 1013.)
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reasonable under the circumstances. (Thompson v. County of Los
Angeles (2006) 142 Cal.App.4th 154.)
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Chapter 12
Open Fields:
Therefore, trespassing onto defendants open land does not implicate the
Constitution, and any observations made while doing so are admissible.
(Ibid; Hester v. United States (1924) 265 U.S. 57 [68 L.Ed. 898].)
Observations made into private areas from an open field beyond the curtilage
of the home are lawful. (United States v. Dunn (1987) 480 U.S. 294 [94 L.Ed.2nd
326].)
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lawful, and properly used in the affidavit for a search warrant. (People v.
Lieng (2010) 190 Cal.App.4th 1213, 1221-1227.)
Use of night vision goggles doesnt change the result. (Id., at pp.
1227-1228.)
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Chapter 13
Searches of Containers:
Although there is some authority for the proposition that; (t)he rationale
justifying a warrantless search of an automobile that is believed to be
transporting contraband arguably applies with equal force to any movable
container that is believed to be carrying an illicit substance (United
States v. Ross (1982) 456 U.S. 798, 809 [72 L.Ed.2nd 572, 584.), the courts
have not yet specifically extended this rationale to objects in containers
other than when the container is in a vehicle or seized incident to a
suspects arrest. (See Justice Stevens dissent in California v. Acevedo
(1991) 500 U.S. 565, 598 [114 L.Ed.2nd 619, 646], predicting that this this
may be the next step.)
As the law stands today, however, a search warrant will still generally be
required under these circumstances. (Smith v. Ohio (1990) 494 U.S. 541,
542 [108 L.Ed.2nd 464, 467].)
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Cardboard boxes belonging to a homeless person, being a place
where the homeless person stores his or her most private
belongings, may not be searched without a warrant or consent.
(United States v. Fultz (9th Cir. 1998) 146 F.3rd 1102.)
See also United States v. Lara (9th Cir. 2016) 815 F.3rd
605, 610-611; declining to include defendants cellphone
under the category of a container, in defendants Fourth
wavier search conditions.
The old rule (see United States v. Chadwick (1977) 433 U.S. 1 [53
L.Ed.2nd 538].), that with probable cause to search a particular
container located in a vehicle, a search warrant would be required,
is no longer a valid rule. (California v. Acevedo, supra.)
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And see Wyoming v. Houghton (1999) 526 U.S. 295 [143
L.Ed.2nd 408], holding that the searching of a passengers personal
property left in a vehicle, with probable cause to believe there is
seizable contraband somewhere in the vehicle, is lawful.
See also United States v. Lara (9th Cir. 2016) 815 F.3rd 605, 610-
611; declining to include defendants cellphone under the category
of a container, in defendants Fourth wavier search conditions.
The co-occupant of a vehicle, when she gets out of the car leaving
her purse in the car, has not abaonded her purse. Simply
getting out of the car and leaving the purse on the floorboard does
not constitute abandonment (People v. Baker (2008) 164
Cal.App.4th 1152, 1161.)
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The search of defendants purse, found in a room recognized by
the officers to be a room where defendant was staying with her
young son, when the search was based upon a Fourth waiver made
by a probationer who owned the house, was found to be illegal
absent any evidence to believe that the probationer had access to
that room or to the purse itself. (People v. Carreon (2016) 248
Cal.App.4th 866, 879-880.)
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(I)f the distinctive configuration of a container proclaims its
contents, the contents cannot fairly be said to have been removed
from the searching officers view, just as if the container were
transparent. (Robbins v. California (1981) 453 U.S. 420, 427
[69 L.Ed.2nd 744]; overruled on other grounds in United States v.
Ross (1982) 456 U.S. 798 [72 L.Ed.2nd 572].)
Per the plurality, for this rule to apply; (A) container must
so clearly announce its contents, whether by its distinctive
configuration, its transparency, or otherwise, that its
contents are obvious to an observer. (Robbins v.
California, supra, at p. 428.)
See also United States v. Bowman (8th Cir. 1990) 907 F.2nd
63, where law enforcement viewing the contents of one
bundle wrapped in plastic and duct tape already opened by
an airport employee allowed for the opening of four
identical bundles because the opened bundle spoke
volumes as to [the] contents [of the remaining bundles]
particularly to the trained eye of the officer. (pg. 65.)
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knowledge and failure to protect the defendant's rights to
attribute a private search to the government.
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the employees prior search. (United States v. Tosti (9th Cir. 2013)
733 F.3rd 816, 821-823.)
Exterior of a Container:
Customs Inspections: Similarly, the United States Supreme Court has held
that evidence lawfully observed by a customs inspector, during a
warrantless border search and resealed in its container, may later be seized
from that container without a warrant by law enforcement officers after a
controlled delivery to the defendant. (O)nce a container has been found
to a certainty to contain illicit drugs, the contraband becomes like objects
physically within the plain view of the police, and the claim to privacy is
lost. Consequently, the subsequent reopening of the container is not a
search within the intendment of the Fourth Amendment. (Illinois v.
Andreas (1983) 463 U.S. 765 [77 L.Ed.2nd 1003].)
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At an Airport: At least where there is some need for heightened
security, such as when dealing with airline luggage, squeezing a
package and noting the odor of the expended air has been held to
be lawful. (People v. Santana (1998) 63 Cal.App.4th 543; United
States v. Lovell (5th Cir. 1988) 849 F.2nd 910.)
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(W)e conclude that when an officer's observations lead him
reasonably to believe that a traveler is carrying luggage that
contains narcotics, the principles of Terry and its progeny would
permit the officer to detain the luggage briefly to investigate the
circumstances that aroused his suspicion, provided that the
investigative detention is properly limited in scope. (United
States v. Place (1983) 462 U.S. 696, 706 [77 L.Ed.2nd 110, 120].)
United States v. Aldaz (9th Cir. 1990) 921 F.2nd 227; three
to five day detention found to be reasonable under the
circumstances.
United States v. Gill (9th Cir. 2002) 280 F.3rd 923, 926-929;
six-day delay, over a weekend, okay.
United States v. Sullivan (9th Cir. 2015) 797 F.3rd 623, 633;
21 days between the seizure of the defendants laptop
computer and the obtaining of a search warrant held to be
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reasonable in that defendant was in custody for that time
period and would not have been able to use his laptop
anyway. Also, defendant was a parolee subject to search
and seizure conditions, and then, 17 days into the detention
of his laptop, he gave his consent to search it, all of which
lessened his privacy interests.
Also note:
Recent Trend:
However, see, where the Court included a whole segment criticizing the
current trend of referring to computers and cellphones as containers of
information, predicting the coming of a whole new body of law dealing
with electronic devices. Since electronic storage is likely to contain a
greater quantity and variety of information than any previous storage
method, . . . [r]elying on analogies to closed containers or file cabinets
may lead courts to oversimplify a complex area of Fourth Amendment
doctrines and ignore the realities of massive modern computer storage.
[Citation.] (People v. Michael E. (2014) 230 Cal.App.4th 261, 276-279;
citing United States v. Carey (10th Cir. 1999) 172 F.3rd 1268, 1275.)
The U.S. Supreme Court finally recognized that cellphones are entitled to
enhanced Fourth Amendment protections from other containers, and
found that the search of a cellphone found on a person upon his arrest is
unlawful absent the obtaining of a search warrant. (Riley v. California
(June 25, 2014) 573 U.S. __ [134 S.Ct. 2473; 189 L.Ed.2nd 430].)
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Other courts are now following suit: (See United States v. Camou (9th
Cir. 2014) 773 F.3rd 932, 941-943; holding that cellphones are not
containers for purposes of the vehicle exception to the search warrant
requirement.
See also United States v. Lara (9th Cir. 2016) 815 F.3rd 605, 610-611;
declining to include defendants cellphone under the category of a
container, in defendants Fourth wavier search conditions.
The Lustig Court also upheld the more thorough search of the
same cellphones four days later in that they were in continuous
police custoday during that time. (Id., at p. 1085; see United
States v. Burnette (9th Cir. 1983) 698 F.2nd 1038, 1049, upholding
a later search when the object searched has remained in continuous
police custody after being lawfully searched once.)
Seized from the suspects person incident to his arrest (Carroll v. United
States (1925) 267 U.S. 132 [69 L.Ed. 543].)
In the persons possession when that person is booked into jail. (People v.
Rogers (1966) 241 Cal.App.2nd 384, 389.)
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But see Riley v. California, supra, and United States v. Camou
(9th Cir. 2014) 773 F.3rd 932, 941-943; extending the prohibitions
on warrantless cellphone searches seized incident to arrest, under
Riley, to those seized in a vehicle with probable cause.
See also United States v. Giberson (9th Cir. 2008) 527 F.3rd 882,
where it was held that some circumstances might lead searching
officers to a reasonable conclusion that documentary evidence they
are seeking would be contained in computers found at the location,
authorizing the search of those containers despite the failure of the
warrant to list computers as things that may be searched.
But see United States v. Payton (9th Cir. 2009) 573 F.3rd 859, 861-
864, where it was held that failure to include the magistrates
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authorization to search defendants computer, even though in the
statement of probable cause the affiant indicated a desire to search
any possible computers found in defendants house, was a fatal
omission. Searching defendants computer, therefore, went
beyond the scope of the warrants authorization.
Case Law:
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The same rule is applicable a mirror port, which is similar to a pen
register, but which allows the government to collect the to and from
addresses of a persons e-mail messages, the IP addresses of the websites
the person visits, and notes the total volume of information sent to or from
the persons account. (United States v. Forrester (9th Cir. 2008) 512 F.3rd
500.)
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Customs Officers at an international border, or the functional equivalent
of a border (e.g., an international airport) may search a persons computer
without any reasonable suspicion. (United States v. Arnold (9th Cir. 2008)
533 F.3rd 1003.)
Endacott further held that the fact that the computer is further
searched at some time after the initial border crossing is irrelevant.
The right to do a warrantless, suspicionless search continues
indefinitely. (Id., at p. 1350.)
The seizure of defendants computer and all computer related items (e.g.,
compact disks, floppy disks, hard drives, memory cards, DVDs,
videotapes, and other portable digital devices), based upon no more than
the discovery of one printed-out photo of child pornography, was lawful in
that it was reasonable to conclude that the picture had come from his
computer and that similar pictures were likely to be stored in it. (United
States v. Brobst (9th Cir. 2009) 558 F.3rd 982, 994.)
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A single photograph of a nude minor (female child who is between 8 and
10 years old), by itself, is insufficient to establish probably cause for a
search warrant. But a second such photo, under the totality of the
circumstances, is enough. (United States v. Battershell (9th Cir. 2006)
457 F.3rd 1048.)
The fact that the defendant may not have owned the computers that the
affiant was asking to search at the time of the crime (a homicide) did not
preclude the possibility that she had transferred information or records
particularly photographsto computers owned at the time of the search.
(People v. Lazarus (2015) 238 Cal.App.4th 734, 767; noting that personal
computers often hold diaries, calendars, files, and correspondence.)
The Sixth Circuit Court of Appeal has found that tracking a users
cellphone location without a warrant using GPS technology (by pinging
it from various cell towers) is different than putting a GPS tracking device
on a motorists vehicle without a warrant. The Court upheld the drug
conviction of a man found with his son near a Texas rest stop with over
1,000 pounds of marijuana in their motor home. Because he had no
reasonable expectation of privacy concerning the location of his
cellphone, the court ruled, there was no Fourth Amendment violation.
(United States v. Skinner (6th Cir. 2012) 690 F.3rd 772, 777-781.)
See also Juveniles and Electronic Device and/or Social Media Probation
Conditions, under Juveniles, under Fourth Waiver Searches, below.
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(2) Pursuant to a wiretap order issued pursuant to P.C.
629.50 et seq.
Subd. (i) This section does not limit the authority of a government
entity to use an administrative, grand jury, trial, or civil discovery
subpoena to do any of the following:
Subd. (j) This section does not limit the authority of the Public
Utilities Commission or the State Energy Resources Conservation
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and Development Commission to obtain energy or water supply
and consumption information pursuant to the powers granted to
them under the Public Utilities Code or the Public Resources
Code and other applicable state laws.
Subd. (k) This chapter shall not be construed to alter the authority
of a government entity that owns an electronic device to compel an
employee who is authorized to possess the device to return the
device to the government entitys possession.
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Subd. (e) Electronic communication service means a service that
provides to its subscribers or users the ability to send or receive
electronic communications, including any service that acts as an
intermediary in the transmission of electronic communications, or
stores electronic communication information.
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P.C. 1546.2 deals with the procedures for obtaining a warrant as a
followup to an emergency situation, and is a part of the California
Electronic Communications Privacy Act (CalECPA). Pursuant to
CalECPAs provisions, within 10 days after use of a tracking device has
ended, the officer must notify the person about the nature of the
government investigation and provide a copy of the warrant. In addition,
the provisions of P.C. 1546.2(b) now apply to permit a delay in
notification of the target if the court determines that there is reason to
believe that notification may have an adverse result.
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(C) A description of how the local agency will monitor its
own use of cellular communications interception
technology to ensure the accuracy of the information
collected and compliance with all applicable laws,
including laws providing for process and time period
system audits.
(E) The purpose of, process for, and restrictions on, the
sharing of information gathered through the use of cellular
communications interception technology with other local
agencies and persons.
Subd. (c):
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Chapter 14
Border Searches:
General Rule: The United States has a governmental interest in keeping drugs
and undocumented aliens, etc., out of the country. Therefore, the search and
seizure standards are relaxed a bit at the International Borders. (Carroll v. United
States (1925) 267 U.S. 132, 154 [69 L. Ed. 543, 551-552].)
The task of guarding our countrys border is one laden with immense
responsibility. United States v. Bravo, 295 F.3rd 1002, 1005 (9th Cir.
2002). Border agents serve as our first line of defense in preventing
people intent on violating our laws from coming into our country.
(United States v. Hernandez (9th Cir. 2002) 314 F.3rd 430, 433-434.)
The authority to conduct warrant border searches may include subjects who,
mistakenly at the border, are turned around without ever having entered a
foreign country (Canada, in this case). Routine searches at the border do not
require a warrant or any level of suspicion, regardless of whether the motorist
intends to cross the border or has mistakenly arrived at the border. Second,
that defendant subjectively did not intend to cross the border is irrelevant as
well. There is no reliable way for the Customs and Border Protection officers
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to tell the difference between a motorist who has just crossed the border and a
turnaround motorist who is at the border area by mistake. (D.E. v. Doe (6th
Cir. Mich. 2016) 834 F.3rd 723.)
8 U.S.C. 1357(a): The statutory arrest and search authority for officers and
employees of the Immigration and Nationalization Service (i.e., Border Patrol) is
contained in 8 U.S.C. 1357(a): Powers Without a Warrant. Any officer or
employee of the Service authorized under regulations prescribed by the Attorney
General shall have power without a warrant:
To arrest aliens entering, or who have already entered, the United States
illegally. (Subd. (2))
To arrest for (A) any offense against the United States, committed in the
officers or employees presence; or (B) any federal felony. (Subd. (5))
Title 8 U.S.C. 1357(c) provides for the power to search the person and
personal effects in the possession of any person seeking admission to the
United States, with reasonable cause to suspect that grounds for denial
of admission would be disclosed by such search.
Because the United States has many miles of shoreline, the Government
must also have authority to stop and search boats off the coast in order to
effectively guard our borders:
Subd. (b): (A) customs officer may stop and search, at the border and
without a search warrant, any vehicle, vessel, aircraft, or other
conveyance, any envelope or other container, and any person entering or
departing from the United States. (See United States v. Seljan (9th Cir
2008) 547 F.3rd 993, 1001; a currency interdiction inspection, resulting in
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the recovery of evidence that defendant was traveling to the Philippines to
have sex with underage minors; no suspicion required.)
Endacott also held that the fact that the computer is further
searched at some time after the initial border crossing is
irrelevant. The right to do a warrantless, suspicionless
search continues indefinitely. (Id., at p. 1350.)
See also United States v. Flores-Montano (9th Cir. 2005) 424 F.3rd
1044, applying section 1581(a), rejecting the defendants
argument that 19 U.S.C. 482 (which does talk in terms of a
necessary reasonable suspicion) applied to the border searches of
vehicles.
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(People v. Blardony, supra, at p. 794; United States v. Ani,
supra.)
Use of a Buster on a vehicle, given the lack of any proof that the
defendant was exposed to any danger from the radioactivity in the
device, does not require any suspicion in a search at the border.
(United States v. Camacho (9th Cir. 2004) 368 F.3rd 1182.)
The first port where a vessel docks on arrival from a foreign country is the
functional equivalent of an international border. (People v. Laborde
(2008) 163 Cal.App.4th 870, 874.)
See also United States v. Seljan (9th Cir. 2008) 547 F.3rd 993,
where the Court held the same for a FedEx regional sorting facility
in Oakland, California, where defendants mail, bound for the
Philippines, was lawfully subjected to warrantless inspections by
U.S. Customs Service inspectors.
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The Extended Border Search Doctrine:
Extended border searches based upon less than probable cause are
lawful so long as:
Cases:
This rule applies to packages that are being sent from the United
States to a foreign country, even though it has not yet left the
country, at least where it has been put into the hands of the mail
service and is all but certain that it will be leaving the country.
(Alexander v. United States (9th Cir. 1966) 362 F.2nd 379, 382.)
An extended border search, which occurs after the actual entry into
the United States has been made, tend to intrude more on an
individuals normal expectation of privacy. It must therefore be
justified by a reasonable suspicion that the subject of the search
was involved in criminal activity. (United States v. Guzman-
Padilla (9th Cir. 2009) 573 F.3rd 865, 877.)
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An extended border search requires that law enforcement possess a
reasonable certainty that a border has been crossed, either by the
vehicle in question or by contraband suspected to be within the
vehicle. (Id., at p. 878, 879-881.)
Following defendant after seeing his car on the United States side
but near the border, after which a municipal police officer was told
to stop defendant, and where a drug sniffing dog alerted on
defendants vehicle, was a valid extended border search supported
by a reasonable suspicion, based upon informant information and
defendants unusual behavior after crossing the border. (United
States v. Villasenor (9th Cir. 2010) 608 F.3rd 467.)
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A forensic search of the defendants laptop computer, conducted
some 170 miles away from the border and over five days after the
laptop was seized at the border, held not to come within the
extended border search doctrine. Defendants computer never
cleared customs, so it cannot be said that it ever entered the United
States. (United States v. Cotterman (9th Cir. 2013) 709 F.3rd 952.
961-962; A border search of a computer is not transformed into
an extended border search simply because the device is transported
and examined beyond the border.)
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But the search of a vehicle at an immigration checkpoint,
away from the border, may require probable cause to
justify. (United States v. Ortiz (1975) 422 U.S. 891 [45
L.Ed.2nd 623].)
Although argued that such checkpoints are for the purpose of enforcing
immigration rules, their use in also preventing drug trafficking has
recently been challenged in United States v. Soto-Zuniga (9th Cir. 2016),
837 F.3rd 992, where the Ninth Circuit Court of Appeal remanded the case
back to the trial court to allow defense discovery into the records of the
San Clemente checkpoint in order to properly litigate the legitimacy of
such a use.
Roving Patrols: Border Patrol vehicle stops, away from the border, are held to
the same Fourth Amendment standards as any other domestic law enforcement
agency. (Almeida-Sanchez (1973) 413 U.S. 266 [37 L.Ed.2nd 596]; United States
v. Brignoni-Ponce (1975) 422 U.S. 873 [45 L.Ed.2nd 607].)
See also United States v. Berber-Tinoco (9th Cir. 2007) 510 F.3rd 1083,
adding:
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Behavior of the driver, including obvious attempts to evade
officers;
Appearance or behavior of passengers;
Model and appearance of the vehicle; and
Officer experience.
See United States v. Diaz-Juarez (9th Cir. 2002) 299 F.3rd 1138; Driving
late at night in a high crime area, near the International Border, apparently
looking for something, in a vehicle from another area and with a modified
suspension, held in this case sufficient to justify a stop and detention.
The U.S. Supreme Court rejected this reasoning in the Mena case,
reversing Mena while holding that it is not an unconstitutional
expansion of the original reasons for the detention merely to make
inquiry as to a persons citizenship status. Muehler v. Mena
(2005) 544 U.S. 93 [161 L.Ed.2nd 299]; specifically reversing the
Ninth Circuit on this issue.)
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A roving Border Patrol agent may stop a vehicle if he has reasonable
suspicion to believe the vehicle is involved in illegal activity. Here, the
agent was an experienced officer who had been patrolling Highway 77
near Raymondville, Texas, for almost one year, forty-five miles north of
the border, well south of the Sarita checkpoint. The agent saw defendant
and his passengers acting as if they were very nervous when they saw him.
Finally, defendant was driving a type of vehicle known to be popular
among smugglers, on a highway and on a day of the week popular among
them. Based on these factors, the court held that the agent had reasonable
suspicion to stop defendant. (United States v. Ramirez (5th Cir. 2016) 839
F.3rd 437.)
Search of a Residence:
The San Ysidro Port of Entry, in San Diego, is state land and not federal,
although the attached facilities belong to the federal government. A federal
Immigration and Naturalization Agent at that location may therefore lawfully
make a citizens arrest for a state criminal violation (e.g., driving while under the
influence) and turn him over to state and local law enforcement officers. (People
v. Crusilla (1999) 77 Cal.App.4th 141.)
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Chapter 15
Fourth Waiver Searches:
General Rule: All parolees, and some probationers, are subject to what is
commonly referred to as a Fourth Waiver; i.e., where the subject has
agreed, prior to the fact, to waive any objections to being subjected to
searches and seizures without the necessity of the law enforcement officer
meeting the standard Fourth Amendment requirements of probable
cause and a search warrant. (See Vandenberg v. Superior Court (1970) 8
Cal.App.3rd 1048, 1053.)
Parole: A condition of all paroles, after the parolee has been released
from prison, is that the parolee submit to searches by his or her parole
officer, or other peace officer at any time of the day or night, with or
without a search warrant and with or without cause. (Cal. Code of Regs,
Title 15, 2511; P.C. 3067(a); People v. Hernandez (1964) 229
Cal.App.2nd 143.)
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of public safety for the state to provide for the supervision and
surveillance of parolees . . . (P.C. 3000(a)(1))
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California case law appears to be to the contrary. (See
People v. Solorzano (2007) 153 Cal.App.4th 1026, 1030-
1032; citing People v. Middleton (2005) 131 Cal.App.4th
732.; it is not necessary that the searching officer was
aware of the existence of a signed parole search agreement,
as required by P.C. 3067, so long as he knew that the
subject was on parole.)
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with or without a warrant, by an agent of the supervising
county agency or by a peace officer.
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enforcement officer without probable cause or a warrant. (People v.
Mason (1971) 5 Cal.3rd 759, 763-764.)
(United States v. Lara (9th Cir. 2016) 815 F.3rd 605, 612;
citing Samson v. California (2006) 547 U.S. 843, 849 [165
L.Ed.2nd 250], and United States v. Knights (2001) 534
U.S. 112, 120-121 [151 L.Ed.2nd 497].)
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media websites to allow warrantless searches. (People v.
Ebertowski (2014) 228 Cal.App.4th 1170, 1174-1177.)
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monitoring his use of social media can be fashioned.
(People v. Appleton (2016) 245 Cal.App.4th 717, 721-728.)
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(3) The defendant was convicted of a felony
involving obscene matter (P.C. 311 through
311.12) and used the Internet to prepare, publish,
distribute, send, exchange, or download the obscene
matter or matter depicting a minor engaging in
sexual conduct.
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[Citation.] This is because juveniles are deemed to
be more in need of guidance and supervision than
adults, and because a minors constitutional rights
are more circumscribed. [Citation.] Thus, a
condition of probation that would be
unconstitutional or otherwise improper for an adult
probationer may be permissible for a minor under
the supervision of the juvenile court. [Citations.]
(In re Erica R. (2015) 240 Cal.App.4th 907, 911-
912; quoting In re Victor L. (2010) 182 Cal.App.4th
902, 909-910.)
The special needs of the juvenile probation
system, with its goal of rehabilitating youngsters
who have transgressed the law, a goal that is
arguably stronger than in the adult context, allows
for stricter controls. (In re Tyrell J., supra,
overruled on other grounds.)
Parole vs. Probation: Although there is some authority for the argument
that the rules are the same, whether discussing the issue of a parole search
or a probation search, when a Fourth Waiver is the issue (see People v.
Hoeninghaus (2004) 120 Cal.App.4th 1180, 1192-1198.), the United
States Supreme Court has indicated that parolees have a lesser expectation
of privacy than probationers, hinting that they (i.e., parolees) therefore
may be subject to stricter controls. (Samson v. California (2006) 547
U.S. 843 [165 L.Ed.2nd 250].)
See also United States v. Lara (9th Cir. 2016) 815 F.3rd 605, 610;
(A) probationers privacy interest is greater than a parolees,
citing Samson v. California, supra, at p. 850.)
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the conclusion that the operation of a probation system presented
such special needs:
Where defendants blood was taken over his objection and without
a warrant and without exigent circumstances, Missouri v. McNeely
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(Apr. 17, 2013) 569 U.S.__ [133 S.Ct. 1552; 185 L.Ed.2nd 696],
held that a blood draw is illegal. However, where defendant is
subject to search and seizure conditions under his post-release
community supervision (PRCS) terms, there is no need for a
search warrant. With probable cause to believe that he was driving
while under the influence of alcohol when he had a traffic accident,
his mandatory PRCS search and seizure conditions, authorizing
the blood draw without the necessity of a search warrant, is not in
violation of the Fourth Amendment. (People v. Jones (2014) 231
Cal.App.4th 1257, 1262-1269.)
However, most recently, the Ninth Circuit has conceded that the
issue of whether a Fourth wavier search may be conducted where
there is less than a reasonable suspicion is really not yet settled, at
least sufficiently to hold an officer civilly liable. (Motley v. Parks
(9th Cir. 2005) 432 F.3rd 1072, 1083-1088; officers entitled to
qualified immunity on this issue. See below.)
The Supreme Court has specifically left open the question whether
or not a probationer on a Fourth Waiver may be searched on less
than a reasonable suspicion. (United States v. Knights (2001) 534
U.S. 112, 120, fn. 6. [151 L.Ed.2nd 497]; see also United States v.
King (9th Cir. 2013) 736 F.3rd 805, 808.)
See also United States v. Lara (9th Cir. 2016) 815 F.3rd
605, 610; (A) probationers privacy interest is greater than
a parolees, citing Samson, supra, at p. 850.)
Parole: Older California case authority to the effect that a police officer
needs a reasonable suspicion of renewed criminal activity before
conducting a parole Fourth Waiver search (See People v. Burgener
(1986) 41 Cal.3rd 505, 534-535.) was overruled in People v. Reyes (1998)
19 Cal.4th 743.
See also United States v. Lopez (9th Cir. 2007) 474 F.3rd
1208, 1212-1214, where the Ninth Circuit Court of Appeal
followed Samson in finding that a suspicionless parole
Fourth Waiver search of a parolees residence was valid.
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Federal Rule: The Ninth Circuit Court of Appeals theory that Fourth
Waiver searches are a rehabilitative tool for use by probation officers only,
with local law enforcements attempt to use a Fourth Wavier to justify a
warrantless search as being no more than a ruse for conducting a new
criminal investigation and a violation of the Fourth Amendment (e.g.,
see United States v. Ooley (9th Cir. 1997) 116 F.3rd 370.), has been
overruled by the United States Supreme Court. (United States v. Knights
(2001) 534 U.S 112 [151 L.Ed.2nd 497]; see also United States v. Stokes
(9th Cir. 2002) 292 F.3rd 1164.)
Probation: It has long been the rule, at least in probation searches, that a
local law enforcement officer need not even seek the permission of a
probation officer. (See People v. Mason (1971) 5 Cal.3rd 759.)
But the Fifth District Court of Appeal went even further and took it
upon itself, in effect (without specifically stating so), to overrule
Tyrell J. and hold that a juvenile probationer, searched illegally, is
protected by the rule of Sanders: An officer cannot rely upon a
Fourth Wavier that he didnt know about at the time of the search.
(In re Joshua J. (2005) 129 Cal.App.4th 359.)
If, however, the trial court record shows the officers lack
of prior information about the defendants Fourth Wavier
status, there is no need for a remand to the trial court for
further hearings. (People v. Miller (2007) 146 Cal.App.4th
545.)
Finally, recognizing that the case law and legal commentary was
uniformly in opposition to the rule of In re Tyrell J., the California
Supreme Court reversed itself and held that a detention and search
of a minor on probation with search and seizure conditions could
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not be justified by the belatedly discovered Fourth waiver. (In re
Jaime P. (2006) 40 Cal.4th 128.)
Exceptions:
But note United States v. Caseres (9th Cir. 2008) 533 F.3rd
1064, at pp. 1075-1076, which erroneously (in this authors
opinion) held that an officer conducting a parole search
must have been aware prior to the search that P.C.
3067(a) was applicable to the defendant, i.e., that the prior
conviction leading to his parole status occurred on or after
January 1, 1997.
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Where an officer is erroneously told that the defendant is on
parole, only to find out later that he was subject to a probationary
Fourth waiver instead, the search will be upheld. It is not relevant
what type of Fourth wavier applies to the defendant. (People v.
Hill (2004) 118 Cal.App.4th 1344.)
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The need to use illegally seized evidence, from both Fourth and
Fifth Amendment violations, in parole revocation hearings,
outweighs the policy considerations underlying the Exclusionary
Rule (i.e., deterring illegal police conduct.), and therefore is
admissible in such circumstances. (In re Martinez (1970) 1 Cal.3rd
641, 648-650.)
Probation Hearings: The same theory used in Martinez has been used to
allow the admission of illegally seized evidence in probation revocation
hearings. (People v. Hayko (1970) 7 Cal.App.3rd 604.)
The Ninth Circuit Court of Appeal has ruled that in order to conduct a
Fourth Waiver search of a residence, an officer must have probable
cause to believe that the residence to be searched is in fact the parolees
(or probationers) residence. Motley v. Parks (9th Cir. 2005) 432 F.3rd
1072, 1080-1082; United States v. Howard (9th Cir. 2006) 447 F.3rd 1257,
1262-1268; United States v. Franklin (9th Cir. 2010) 603 F.3rd 652;
United States v. Bolivar (9th Cir. 2012) 670 F.3rd 1091, 1093-1095; United
States v. Grandberry (9th Cir. 2013) 730 F.3rd 968, 973.)
Noting that five other federal circuits have ruled that something less than
probable cause is required, and that the Ninth Circuit is a minority opinion
(see United States v. Gorman (9th Cir. 2002) 314 F.3rd 1105.), the Fourth
District Court of Appeal (Div. 2) has found that an officer executing an
arrest warrant or conducting a probation or parole search may enter a
dwelling if he or she has only a reasonable belief, falling short of
probable cause to believe, the suspect lives there and is present at the time.
Employing that standard, the entry into defendants apartment to conduct a
probation search was lawful based on all of the information known to the
officers. Accordingly, the court upheld the trial courts conclusion that the
officers had objectively reasonable grounds to conclude the
defendant/probationer lived at the subject apartment and was present at the
time, and therefore the officers had the right to enter the apartment to
conduct a warrantless probation search. (People v. Downey (2011) 198
Cal.App.4th 652, 657-662.)
The fact that the apartment that was searched might have been
under defendants control held to be irrelevant. The issue is
whether there is probable cause to believe defendant actually lived
there. (Id., at pp. 980-982: (W)e conclude that the property
under your control provision cannot refer to a place where
someone else, but not the parolee, lives.)
A parole Fourth Waiver continues until he has had his formal parole
hearing where he has the opportunity to contest the proposed revocation
and parole is formally revoked. Being arrested and incarcerated on a
parole hold pending a revocation hearing does not, in itself, negate a
Fourth Waiver. (People v. Hunter (2006) 140 Cal.App.4th 1147.)
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Defendant was released from prison and placed on postrelease supervision
for one year. The terms of supervision included a Fourth waiver. One
year and one day after defendants release, his probation officer conducted
a search of defendants home and discovered child pornography.
Defendant filed a motion to suppress arguing that his postrelease
supervision was complete at the time of the search. The trial court
disagreed and denied the motion. The Court of Appeal upheld the denial,
holding that P.C. 3456, which states that a person shall be discharged
within 30 days of completing postrelease supervision, means there is a 30-
day window of continuing supervision following completion. (People v.
Young (2016) 247 Cal.App.4th 972.)
See also People v. Leiva (2013) 56 Cal.4th 498, where it was held that a
possible probation violation occurring after the expiration of a defendants
probationary period is not punishable despite an earlier summary
revocation of probation which is imposed by a court prior to the expiration
of the probationary period. P.C. 1203.2(a)s tolling provisions only
allow for a court to retain jurisdiction beyond the probationary period in
order to punish for probation violations that are alleged to have occurred
prior to the expiration of that probationary period.
Good Faith Belief in the Existence of a Search Condition: The United States
Supreme Court recently ruled (in a 5-to-4 decision) that an officers good faith
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reliance on erroneous information will not invalidate an arrest even when that
information comes from a law enforcement source, so long as the error was based
upon non-reoccurring negligence only. However, deliberate illegal acts, or a
reckless disregard for constitutional requirements, or reoccurring or systematic
negligence, will not excuse the resulting unlawful arrest. (Herring v. United
States (2009) 555 U.S. 135 [172 L.Ed.2nd 496].)
Miscellaneous:
Rights of Third Persons not subject to the Fourth Waiver, but who happen to live
with a person who is subject to search and seizure conditions:
Common Areas:
The fact that a parolee or probationer lives with a third person who
is not subject to search and seizure conditions cannot be used to
immunize the one who is subject to a Fourth Wavier from
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government scrutiny. (People v. Kanos (1971) 14 Cal.App.3rd 642,
650-651; Russi v. Superior Court, supra, at pp. 166-167.)
Private Areas:
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A warrantless search of those areas of the passenger compartment
of a vehicle where an officer reasonably expects that the parolee
could have stowed personal belongings or discarded items when
aware of police activity, as well as a search of personal property
located in those areas if the officer reasonably believes that the
parolee owns those items or has the ability to exert control over
them, is lawful. (People v. Schmitz (2012) 55 Cal.4th 909, 916-
933.)
(I)n the case of probation searches, the officer must have some
knowledge not just of the fact someone is on probation, but of the
existence of a search clause broad enough to justify the search at
issue. People v. Douglas (2015) 240 Cal.App.4th 855, 863; citing
People v. Bravo (1987) 43 Cal. 3rd 600, 605-606, 608.)
The fact that the apartment that was searched might have
been under defendants control held to be irrelevant. The
issue is whether there is probable cause to believe
defendant lived there. (Id., at pp. 980-982: (W)e conclude
that the property under your control provision cannot
refer to a place where someone else, but not the parolee,
lives.)
In a Vehicle:
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A warrantless search of those areas of the passenger compartment
of a vehicle where an officer reasonably expects that the parolee
could have stowed personal belongings or discarded items when
aware of police activity, as well as a search of personal property
located in those areas if the officer reasonably believes that the
parolee owns those items or has the ability to exert control over
them, is lawful. (People v. Schmitz (2012) 55 Cal.4th 909, 916-
933.)
The knock and notice provisions of Penal Code 844 and 1531 apply
to searches conducted pursuant to a probation or parole condition. (See
P.C. 3061; People v. Rosales (1968) 68 Cal.2nd 299, 303-304; People v.
Kanos (1971) 14 Cal.App.3rd 642, 651-652; People v. Constancio (1974)
42 Cal.App.3rd 533, 542; People v. Lilienthal (1978) 22 Cal.3rd 891, 900;
People v. Mays (1998) 67 Cal.App.4th 969, 973, fn. 4; People v.
Urziceanu (2005) 132 Cal.App.4th 747, 789-792; People v. Murphy
(2005) 37 Cal.4th 490.)
However, a court may not impose a waiver of the knock and notice
requirements as a condition of probation. (People v. Freund (1975) 48
Cal.App.3rd 49, 56-58.)
Viers further held that it was irrelevant that the officers were
unaware of defendants probation status when the search was
conducted; a conclusion that has since been abrogated by People v.
Sanders (2003) 31 Cal.4th 318. (See Myers v. Superior Court
(124 Cal.App.4th 1247.)
Old Rule: When the rule was that a parole search required at least
a reasonable suspicion of renewed criminal activity, a police
officer could not justify a patdown (frisk) search of a detained
suspect for weapons based upon the detainees status as a parolee
alone, in the absence of other suspicious circumstances furnishing
grounds to believe he may be armed, unless, perhaps, it was known
that his prior offense involved the use of weapons. (People v.
Williams (1992) 3 Cal.App.4th 1100, 1105, 1108; People v.
Montenegro (1985) 173 Cal.App.3rd 983.)
New Rule: Because under the present state of the law, a parolee or
probationer may be searched without any cause (See People v.
Reyes (1998) 19 Cal.4th 743.), this rule (requiring a reasonable
suspicion) is probably no longer valid, at least pending review of
the necessary standards by the United States Supreme Court. (See
Standard of Proof Required, above.)
AIDS & HIV: A parole or probation officer seeking the assistance of law
enforcement to apprehend or take into custody a parolee or probationer who has a
record of assault on a peace officer, must, by statute, inform the officers of the
suspects infliction with AIDS or HIV. (P.C. 7521)
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Chapter 16
Consent Searches:
Rule: A valid consent is a lawful substitute for both a search warrant and
probable cause. (United States v. Matlock (1974) 415 U.S. 164, 165-166 [39
L.Ed.2nd 242, 246]; Vandenberg v. Superior Court (1970) 8 Cal.App.3rd 1048,
1053; United States v. Russell (9th Cir. 2012) 664 F.3rd 1279, 1281; (Fernandez
v. California (Feb. 25, 2014) 571 U.S. __, ___ [134 S.Ct. 1126, 1132-1137; 188
L.Ed.2nd 25]; People v. Arredondo (2016) 245 Cal.App.4th 186, 193-194; Petition
for Review, granted.)
Why do people consent? Would a person who has something to hide really
consent to being searched? Yes!
Some persons are more concerned with what they perceive to be the
appearance of guilt, and feel they must consent to avoid such an
appearance, hoping the law enforcement officer will either lose interest or
fail to find whatever it is the person hopes to keep concealed. Consent
under these circumstances, however, if the person reasonably should have
felt like he or she had the option of refusing, is still a valid consent. (See
People v. James (1977) 19 Cal.3rd 99, 114.)
Burden of Proof: The prosecution bears the burden of showing that the
defendants consent to search is voluntary and unaffected by coercion.
(Schneckloth v. Bustamonte (1973) 412 U.S. 218 [36 L.Ed.2nd 854];
Estes v. Rowland (1993) 14 Cal.App.4th 508, 527; United States v.
Bautista (9th Cir. 2004) 362 F.3rd 584.)
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Whether consent to search was voluntarily given is to be
determined from the totality of all the circumstances. (Italics
added; United States v. Soriano (9th Cir. 2003) 361 F.3rd 494, 501;
citing Schneckloth v. Bustamonte, supra; see also Pavao v. Pagay
(9th Cir. 2002) 307 F.3rd 915, 919; United States v. Crapser (9th
Cir. 2007) 472 F.3rd 1141, 1149; People v. Espino (2016) 247
Cal.App.4th 746, 762.)
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Circumstances Affecting Voluntariness:
Under Arrest:
The fact alone that the suspect is under arrest is not enough
to demonstrate coercion. (United States v. Watson (1976)
423 U.S. 411 [46 L.Ed.2nd 598]; People v. Llamas (1991)
235 Cal.App.3rd 441, 447.)
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Threatening the Suspension of Ones Drivers License and Other
Consequences for Refusing a Blood Test after a DUI Arrest:
But, where the ruse is only partial, and does not disguise
the scope of the proposed search, then the resulting search
may be upheld. (People v. Avalos (1996) 47 Cal.App.4th
1568.)
Other Inducements:
Per Delia v. City of Rialto (9th Cir. 2010) 2010 U.S. App.
LEXIS 26968 (certarori granted; eventually affirmed at
Delia v. City of Rialto (9th Cir. 2012) 682 F.3rd 1213,
without further discussion), threatening an employee with
the loss of his job if he didnt retrieve certain items from
his home was not a voluntary consent and a Fourth
Amendment search violation.
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Note: But this combination of factors certainly made it an
issue that could have gone either way.
Manner of Inquiry: It is not so much what the officer is asking, but rather
the manner or mode in which it is put to the citizen which determines
whether the response is voluntary or not. (People v. Franklin (1987) 192
Cal.App.3rd 938, 941.)
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your car? Or, Sir, may I look in your car? Not; Im
going to search your car!
But see United States v. Kon YuLeung (2nd Cir. 1990) 910
F.2nd 33, 38-40 (consent valid despite having been indicted);
and United States v. Hidalgo (11th Cir. 1993) 7 F.3rd 1566,
1570, both holding that obtaining a defendants consent to
search is not a critical stage of the proceedings protected by
the Sixth Amendment.)
General Rule: Prolonged Detentions are Illegal: A traffic stop (or any
other detention) which is reasonable in its inception may become
unreasonable if prolonged beyond that point reasonably necessary for the
officer to complete the purposes of the stop or detention. (People v.
McGaughran (1979) 25 Cal.3rd 577.)
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Robinette and other Supreme Court authority. (281
F.3rd 897.)
The Scope of the Consent; i.e., what areas may be searched based upon the
consent given?
The test is: (W)hat would the typical reasonable person have
understood by the exchange between the officer and the suspect?
(A)n officer does not exceed the scope of a suspects consent by
searching when the officer asked only if he or she could look.
Checking under the trunks carpet lining in the suspects vehicle,
therefore, was no more than part of an otherwise lawful search
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based upon the defendants consent to look for anything that
they were not supposed to have. (United States v. McWeeney
(9th Cir. 2006) 454 F.3rd 1030, 1034-1035.)
Cases:
Consenting to being searched for weapons did not allow for the
officer reaching into his pocket and retrieving marijuana. (People
v. Rice (1968) 259 Cal.App.2nd 399, 403.)
And giving an officer permission to enter his home for the purpose
of finding someone who had run into the house did not authorize
the search for a crowbar used in a burglary and found in a bedroom
closet. (People v. Superior Court [Arketa] (1970) 10 Cal.App.3rd
122.)
However, the rule of Florida v. Jimeno (1991) 500 U.S. 248, 251
[114 L.Ed.2nd 297, 303] (above) was applied to uphold a car search
that involved removing a plastic vent cover on a door post which
displayed striation marks indicating recent removal or tampering.
(People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1414.)
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Stepping aside while swinging the door open to an officer who was
responding to an incomplete 911 call for help, was held to be a
consent to enter. (Pavao v. Pagay (9th Cir. 2002) 307 F.3rd 915.)
A suspects general consent to search his car does not allow the
officers to drill through the floor of the trunk. Cutting or
destroying an object during a search requires either explicit consent
for the destructive search or probable cause. (United States v.
Zamora-Garcia (8th Cir. Ark. 2016) 831 F.3rd 979.)
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(6) Whether the searches were part of a continuous
criminal investigation having a single objective.
(7) Whether the defendant had advance knowledge of, and
an opportunity to object to, a subsequent search.
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(A)ctual consent to a blood draw is not implied consent,
but rather a possible result of requiring the driver to choose
whether to consent under the implied consent law.
(Citation.) [T]he implied consent law is explicitly designed
to allow the driver, and not the police officer, to make the
choice as to whether the driver will give or decline to give
actual consent to a blood draw when put to the choice
between consent or automatic sanctions. Framed in the
terms of implied consent, choosing the yes option
affirms the drivers implied consent and constitutes actual
consent for the blood draw. Choosing the no option acts
to withdraw the drivers implied consent and establishes
that the driver does not give actual consent. (Citation)
(Id., at p. 686.)
Also note V.C. 13384 (effective since 1999) requiring for all
new and renewed drivers licenses to include the applicants
written consent to submit to a chemical test or tests of that persons
blood, breath, or urine, or to submit to a preliminary alcohol
screening test pursuant to V.C. 23136, when requested to do so
by a peace officer, and for the applicant to sign a written
declaration consenting to the above. The legal effect of this
mandated written consent has yet to be tested, but may offer a
solution to the inability of section 23612s implied consent
provisions to avoid the need for a search warrant. Also, the
implied consent provisions under V.C. 23612(a)(5), where, by
statute, blood may be drawn from an unconscious or dead DUI
suspect, does not overcome the need for a search warrant without a
showing of exigent circumstances. (See People v. Arredondo
(2016) 245 Cal.App.4th 186, 193-205, & fn. 7; Petition for Review,
granted.)
Raising ones arms into the air after being asked by a police officer
for consent to search his person was held to be the defendants
implied consent to such a search. (United States v. Vongxay (9th
Cir. 2010) 594 F.3rd 1111, 1119-1120.)
Upon entering a military base where signs are posted warning that
persons on the base are subject to being searched. (United States
v. Ellis (5th Cir. 1977) 547 F.2nd 863, Naval base; United States v.
Jenkins, supra, military base; Morgan v. United States (9th Cir.
2003) 323 F.3rd 776, Air Force base.)
Specific Issues:
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Per the Court in McWeeney (at p. 1037), factors to consider
in evaluating this issue include, but are not limited to:
But, if he does not limit the consent to a specific area, the officer
may search the whole thing reasonably believed to be included in
the request. E.g.; A consent to search ones car, unless specifically
limited, includes the whole car and any containers in the car.
(People Clark (1993) 5 Cal.4th 950, 977-980.)
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May a suspect place conditions on the search? (E.g.; Yes officer, but only
if I may be present.) Arguably; Yes.
But, a ruse is but one factor to consider. If, under the totality of the
circumstances, a suspect is not materially misled as to the privacy
rights he is giving up by consenting, the search will be held to be
valid. (People v. Avalos (1996) 47 Cal.App.4th 1569.)
Can a suspect who is under arrest validly consent to being searched? Yes.
The fact that the defendant is in custody at the time is but one
factor to consider when determining whether that defendant gave a
free and voluntary consent. (United States v. Crapser (9th Cir.
2007) 472 F.3rd 1141, 1149.)
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L.Ed.2nd 242]; People v. Monterroso (2004) 34 Cal.4th 743, 757-759;
People v. Williams (2007) 156 Cal.App.4th 949, 961.)
Nor is it relevant that the subject had already invoked his Miranda
rights. (United States v Kon Yu Leung (2nd Cir. 1990) 910 F.2nd
33, 38; United States v. Hidalgo (11th Cir. 1993) 7 F.3rd 1566;
United States v. Shlater (7th Cir. 1996) 85 F.3rd 1251, 1255-1256.)
But see United States v. Reilly (9th Cir. 2000) 224 F.3rd
986, 994, where it was erroneously held that a defendants
invocation of his right to an attorney precluded officers
from asking him for his consent to search.
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An advisal of ones Miranda rights before asking for consent to
search is some evidence, however, that his consent is given freely
and voluntarily, in that the giving of a Miranda admonishment
infers that he is not without rights. (United States v. Morning (9th
Cir. 1995) 64 F.3rd 531, 533.)
And the Ninth Circuit Court of Appeal has recently called into
question whether the giving of a Miranda admonishment is really
a factor that should be considered at all when determining the
validity of a consent to search. (United States v. Perez-Lopez (9th
Cir. 2003) 348 F.3rd 839, 846-847, criticizing its own contrary
decision in United States v. Morning, supra.)
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Consent by Others:
General Rule: Police may rely upon the consent of whoever they
reasonably believe, under the circumstances, possesses common
authority over the premises. (Illinois v. Rodriguez (1990) 497 U.S. 177
[111 L.Ed.2nd 148]; People v. Reed (1967) 252 Cal.App.2nd 994, 996;
People v. Superior Court [Walker] (2006) 143 Cal.App.4th 1183, 1198-
1201.) The person giving consent must have either the actual authority,
or the apparent authority, to give consent:
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Where U.S. Marshals knew that the person giving consent
was a resident of the home, and had no reason to know that
defendant was occupying a back bedroom, the officers
could reasonably assume the consenter/resident had the
authority to authorize entry into that back bedroom.
(United States v. Enslin, supra.)
(A) guest who has the run of the house in the occupants
absence has the apparent authority to give consent to enter
an area where a visitor normally would be received.
(People v. Ledesma (2006) 39 Cal.4th 657, 703-704.)
Examples:
Landlord:
Parent:
A parent may give consent to search the home and even the
childs room over the childs objection, except areas
exclusive to the child (e.g.; a footlocker which was locked
by the child). (In re Scott K. (1979) 24 Cal.3rd 395, 404-
405.)
Child: Whether or not a child may validly allow police into the
family residence depends upon a determination whether, under the
circumstances, it is reasonable to believe that the child had the
authority to do so.
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An 11-year-old step-daughter, baby-sitting in the
defendants absence, was held not to have the authority to
admit the police. (People v. Jacobs (1987) 43 Cal.3rd 472.)
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Co-Occupants (Roommates or Husband and Wife): When two or
more people have equal access to a residence (e.g.; roommates,
husband and wife, etc.), the rules regarding one co-occupant giving
consent vary depending upon the circumstances:
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no longer valid in light of this Supreme Court
opinion.
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The rule of Randolph does not govern when a minor
objects to the search of his room but is overruled by his
mother. Randolph applies only to disagreements between
joint adult occupants having apparently equal authority
over a residence. (In re D.C. (2010) 188 Cal.App.4th 978,
988-989.)
But see United States v. Williams (8th Cir. 2008) 521 F.3rd
902, 907, where it was held that by the defendant slamming
the door shut on the officers and closing the deadbolt door
lock, there was sufficient affirmative conduct to qualify
as an express refusal to consent to the officers entry.
If the consent is held to be involuntary, then all the direct products of that
consent will be suppressed under the fruit of the poisonous tree
doctrine. (See cases cited above.)
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